Volume 92 — Pennsylvania State Reports

<p>1. A policy of insurance contained a condition, “ that, if the assured shall keep_or.have in any place on the insured premises where this policy may apply, petroleum, naphtha, benzine, benzole, gasoline, benzine-varnish, or any product, in whole or in part, of either ; or gunpowder, fireworks, nitro-glycerine, phosphorus, saltpetre, nitrate of soda; or keep, have or uggjsamphene, spirit gas, or_any burningJluid, or chemical oils, without written permission in this policy, *tKen, and in every such case this policy shall be void.” With proper precautions the assured took and used benzine on the premises insured for the purpose of cleaning machinery. Held, that the words “ keep or have” were intended to prevent the permanent and habitual storage of the prohibited articles, and taking them on the premises for the purpose of cleaning the machinery, was not embraced within the meaning of these words.</p> <p>2. As the use of benzine was not prohibited in terms it was a question of fact for the jury whether it came within the description of burning fluids or chemical oils; and in the absence of proof it is not a matter of which the court will take judicial notice.</p> <p>3. A small portion of carbon oil had been used at the same time with the benzine in cleaning the machinery. It was not among the prohibited articles named in the condition; not having been shown that it was of the same nature as eamphene and spirit gas the court cannot take judicial notice of it.</p> <p>4. Per Paxson, J. What is intended to be prohibited in this and similar clauses of policies of insurance, is the habitual use of the prohibited articles, and not their exceptional use in some emergency.</p>

1, of Allegheny coimtg : Of October and November Term 1879, No. 37. Case by Mary A. Langdon, widow of Stephen Langdon, Albert Smith and Anna Maria Smith, his wife, in right of said wife and Mary Emma Langdon, a minor, by her mother and next friend, Mary A. Langdon, against the Pennsylvania Railroad Company, operating the Western Pennsylvania Railroad, to recover damages for the death of Stephen Langdon, which it was alleged was caused by the negligence of defendant.

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 265.</p> <p>Debt by Andrew Bender, for use of John M. Mueller, against Michael George.</p> <p>The facts were these: Andrew Bender, being the owner of the premises No. 242 Pride street, in the city of Pittsburgh, let the same on June 27th 1872, for the term of four years and eight months from August 1st 1872, to G. Tochterman, at $1200 per annum. Krehan, an alderman, who was concerned with Bender in the negotiation of the lease, subsequently received the rent for Bender, and otherwise acted as his agent. A firm doing business as Meyer & Co., and John M. Mueller, the equitable plaintiff, became sureties on this lease. On August 23d 1873, Tochterman, the lessee, assigned his interest to 0. A. Campbell, and on the 27th September 1873, Campbell assigned to John Anderson. Prior to the assignment to Anderson, the rent had fallen behind, and A. S. Bright, a co-partner in the firm of Meyer & Co., had obtained possession of the property and controlled it for the protection of the sureties. He procured the assignment of the lease to Anderson, and as part of the transaction, stipulated with Anderson for security for the payment of the rent. Anderson tendered his father-in-law, the defendant, Michael George, and Bright met Anderson at Krehan’s office to consummate the arrangement.The blank form of the covenant of suretyship usually found on the back of leases in use in Allegheny county was cut off by Krehan, and filled up as follows:</p> <p>“ For a valuable consideration as well as in consideration of the letting of the premises No. 242 Pride street unto John Anderson, I hereby become security, as bail absolute, for the payment of rent, and performance of the covenants in the foregoing agreement mentioned by the said party of the second part, to be paid, kept, done and performed. And in the event that any default shall be made therein, I hereby covenant and agree to pay unto the said party of the first part such sum or sums of money as will be sufficient to make up any deficiency, and fully satisfy the conditions of the said agreement, without requiring any notice of non-payment or proof of demand being made.</p> <p>“Witness my hand and seal this first day of October 1873.</p> <p>“Michael George.” [seal.]</p> <p>This document was taken by Anderson to George, and returned with the latter’s signature to Bright; who afterwards gave it to Mueller. George was examined as to it in another proceeding, and swore that he had signed it for “ the house, Bender’s house, No. 242 Pride street,” and that when he signed it “he understood he was going bail for Anderson for the rent of the house.” There was also an offer by plaintiff, which was rejected by the court below (fourth assignment of error), to prove that when Anderson had defaulted in the payment of his rent, and Mueller had been sued for it by Bender, the landlord, Mueller, went to George with the latter’s agreement, told him that Anderson’s rent was in arrear, and demanded the payment of it; and that George excused himself from the compliance on the ground that he had to meet a mortgage on his property, and was therefore without funds. Bender recognised Anderson as his tenant, and on one occasion allowed him a reduction of his rent.</p> <p>Mueller was compelled to pay to Bender $1033.65 of Anderson’s rent, and the present suit was brought in the name of Bender as the legal plaintiff, treating the engagements of George as having been made to him. Various offers were made of the agreement signed by George, all of which were excluded by the court below. The court granted a compulsory nonsuit, regarding the action as not well brought in the name of Bender as the legal plaintiff, because George’s contract, if any, was (in the court’s opinion) with the sureties.</p> <p>A motion was made to set aside the nonsuit, and after argument the court, Bailey, J., in an opinion said: “It is quite apparent, from the inability of plaintiff to show that Bender ever saw the paper signed by George, that the persons with whom George contracted, if with any one, were Mueller and his co-securities. If the principle underlying Kramer & Rahm’s Appeal, 1 Wright 71, and kindred cases, is, as seems reasonable, that it would be inequitable, under the guise of protection to a surety, to divert assets of a debtor from the reach of a creditor, whom both debtor and surety were bound to secure, such cases can have no application here. See Homer v. Savings Bank, 7 Conn. 484. To so apply them would be to confound the attitude of the parties, and to convert the equitable claim of Bender to have recourse to George into a legal right, merely in order to suspend therefrom an equitable right in Mueller, who was a party to the contract sued upon. The motion to set aside the nonsuit is refused.”</p> <p>The plaintiff then took this writ and, inter alia, alleged that the court erred in refusing to admit in evidence the deed of George, and in rejecting the offer alluded to in the fourth assignment of error above.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, Nos. 261 and 311.</p> <p>Case by John Gilmore against Samuel Brown and others, and by Henderson & Co. against same defendants, to recover damages for the loss of certain barges and the coke, which composed the cargo therein, alleged to have been caused by the negligence of defendants in the management of the steam-tug Bigley, of which they were the owners.</p> <p>These two cases were tried together in the court below as they involved the same state of facts and nearly the same principles of law. The Gilmore case was brought by the owner of the steam-tug Phillips and certain coal and coke barges, and the Henderson case was brought by the owner of the coke and coal laden in the Gilmore barges, and both against the owners of the steam-tug Bigley, to recover for damages caused by a collison between the two tugs on the Ohio river in September 1876. The declaration in the Gilmore case, as amended, alleged that the plaintiff being the owner of a fleet of barges, viz.: nine barges laden with coal and coke moored in the Ohio river at a place called Merriman, the defendants, by neglect and carelessness of their employees in the navigation of their steam-tug Bigley, ran foul of and struck against the said fleet of barges and broke, damaged and injured the same.</p> <p>In the Henderson case, plaintiffs, in their narr., alleged that they owned a quantity of coke laden in certain barges of John Gilmore, and then being towed down the Ohio river from the city of Pittsburgh; that the steam-tug Bigley, owned by defendants, with her tow of barges, by negligence, had collided with and run into the Gilmore barges, and stove, wrecked and broke the same, thereby causing loss of the coke.,,.</p> <p>The facts were as follows: The steam-tug Phillips having broken one of her shafts, was lying at shore near Merriman’s shoals in the Ohio river. When, early in the morning of September 12th 1876, the Bigley and tow, in a heavy fog, came to land just above her, both the boats having their bows down steam — the trees to which the Bigley was made fast pulled out, and while endeavoring to back out into the stream, the foremost barge of the Bigley’s tow got foul of the wheel of the Phillips, having failed to clear it by about three feet in turning. The momentum of this collision caused the Phillips to move out — one of the lines holding her tow to shore was parted, the other was cut by the captain, and the whole tow drifted down and was stranded upon a dangerous bar just above which she had been moored. Some of the barges were gotten off, but others remained until a sudden rise in the river, about a week afterwards, wrecked and ruined them.</p> <p>Upon the trial, before Collier, J., a large amount of testimony was given upon the question as to negligence upon the part of defendants’ employees, and as to contributory negligence on the part of plaintiffs.</p> <p>There were two verdicts for the plaintiffs, amounting in the aggregate to $>7800, and after judgments thereon, the defendants took these writs.</p> <p>The following assignments of error will show the various questions raised in the case:</p> <p>1. The court erred in refusing to affirm defendants’ first point, viz.: That in cases of collision between steamboats while navigating the Ohio river, the respective claims and liabilities of the parties owning or navigating said boats, for damages caused by such collision, present a cause of admiralty jurisdiction vested exclusively in the courts of the United States, and of which by the constitution and laws of the United States, the state cannot take cognisance.</p> <p>Ans. “Refused.”</p> <p>2. The court erred in refusing to affirm the seventh point of defendants, as follows: If the jury find that the loss might have been avoided, even after the collision, had those in charge of the Phillips not cast off the lines by which they were held to the shore, the verdict should be for defendants [and plaintiff must satisfy the jury that casting off the lines did not contribute to the loss].</p> <p>Ans. “ Affirmed, if the jury find the facts as stated in this point, except the part in brackets, which is .refused.”</p> <p>3. The court erred in its answering the defendants’ eighth and ninth points, as follows :</p> <p>8th point. That even if the jury find that the striking of the Phillips’s wheel was occasioned by the negligent act or default of defendants’ employees, and yet that the subsequent stranding of the Phillips’s tow was owing to her inability to manage her tow in consequence of her broken shaft, the loss resulting from such stranding was too remote a consequence of defendants’' negligence, and cannot be recovered in this action.</p> <p>Ans. “ Refused.”</p> <p>9th point. If the foregoing point be refused, then, that under the same facts, if found by the jury the loss of the three barges by the sudden rise of the river, several days after the collision, was too remote a consequence of the collision, and defendants would not be liable for such loss.</p> <p>Ans. “ Affirmed, unless you find that the plaintiffs used due and proper diligence in the meantime.”</p> <p>4. The court erred in its answer to plaintiffs’ second point, and to defendants’ eleventh point, as follows :</p> <p>Plaintiffs’ 2d point. That the measure of damages is the value of the coke lost, and the damage done to the coke saved after the collision, at the nearest market for coke, considering the character of the river and navigation, with interest thereon from the date of the loss and damage, deducting the time and expense required to reach that market.</p> <p>Ans. “ Affirmed.”</p> <p>Defendants’ 11th point. That in cases of collision between steamboats, it is the actual damage sustained by the party at the time and place of injury that is the measure of damages. [And if defendants are liable at all for the value of property lost or destroyed, they are liable only for the value of such property at the port of shipment, with the additional allowance of the expenses of reaching the point of loss.]</p> <p>Ans. “ Affirmed, except as to the coke. The part in brackets is refused.”</p> <p>And in charging the jury as follows : “ Whatever was the real market value of the coke — not the retail market value — together with what it would cost to get it there (Wheeling), Henderson et al. would be entitled to.”</p> <p>5. The court erred in instructing the jury as follows: “The owner of the boat, Gilmore, would be entitled to every dollar he lost directly, and to all the money he expended in and about the barges trying to save and take care of them, with interest.”</p> <p>6. The court erred in refusing to charge the jury as requested in defendants’ 12th point, as follows: If the jury find that the actual collision which took place was merely the striking of the extreme point of defendants’ tow, when swinging round in order to back out, against the wheel of plaintiffs’ boat, the Phillips, as she laid tied to shore, causing thereby no damage to the wheel or boat, but simply forcing her from her moorings into the river, and that in consequence of the broken shaft of the Phillips, she was unable to manage her tow, which stranded on the shoal below, and that the actual loss did not take place till several days afterwards, when the barges were wrecked and wholly destroyed by a sudden flood, the plaintiffs cannot recover for the loss of such barges, for the reason that no such cause of action is set forth in the declaration, even if the alleged injury was not too remote from its alleged cause.”</p> <p>Ans. “Refused.”</p> <p>7th. The court erred in not allowing defendants’ motion in arrest of judgment for want of jurisdiction.</p>

1, of Allegheny county: Of October and November Term 1879, No. 157. Covenant by John Irwin, Jr., against Frederick Herzberg.

<p>Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1879, No. 346.</p> <p>Appeal of George Yollman and J. C. Breitlauch from the decree of the court in the matter of their petition as executors.</p> <p>The Grand Lodge of the Ancient Order of United Workmen was incorporated by that title by the legislature, March 9th 1871, and by its charter was authorized to create, hold and disburse a beneficiary fund for the relief of the members and their families, of the lodges established by said corporation, under such regulations as might be adopted by it. The corporation adopted what was called “the beneficiary article,” by which the order guaranteed to such members of the third (or master workman’s) degree, $2000, to be paid to such person or persons as the member might, while living, direct. Each member, upon applying for the third degree, was required to enter into a contract, by which he became entitled to participate in the beneficiary fund, and to receive a beneficiary certificate for the sum of $2000, to be paid at his death to such person as he might designate; in consideration of -which he bound himself to pay all beneficiary assessments or forfeit the certificate, and to accept it subject to such laws, rules and regulations, as said order had then or might thereafter adopt. The beneficiary article also provided that any member desiring at any time to make a new direction as to its payment, might do so by authorizing such change in writing on the back of his certificate in the form prescribed (printed on the back of each certificate), attested by the recorder, with the seal of the lodge attached, and by the payment to the grand lodge of the sum of fifty cents.</p> <p>Schiller Lodge, No. 46, was a subordinate lodge, organized under the grand lodge, and of it Charles E. Lang was a member in the third degree. On June 1st 1878, a beneficiary certificate was issued to him, which upon its face specified that, at his death, the amount was to be paid to Jacob E. Lang’s surviving children. This certificate was issued subject to the conditions set forth in the beneficiary articles.</p> <p>Jacob E. Lang wms a brother of Charles E. .Lang, and at or about the issuing of the certificate, Charles E. Lang delivered it to Jacob, in whose custody it remained until after the death of Charles.</p> <p>Charles died in July 1879, having first made a will, by which he devised the money to come from the lodge as follows: To Mary, Charles and Albert Lang, the children of Jacob F. Lang, each $300; to Mary Lang, wife of Jacob F. Lang, $200; to George Vollman, $300; for the erection of tombstones over himself and wife and J. F. Lang, his deceased father, $300. The residue was not disposed of specifically. Charles F. Lang left neither wife nor children surviving him.</p> <p>It was claimed that the designation in the certificate that it should be paid to the surviving children of Jacob F. Lang, -was but a testamentary act, and sufficiently revoked by the last will of which appellants are executors, and that the executors were entitled to receive the money. The lodge obtained leave to pay the money into court, and appellants applied for an order to take out the fund. The court below awarded it to L. H. Smith, guardian of Mary, Charles and Albert Lang, who were the only children of J. F. Lang, and dismissed the petition of appellants, inter alia, saying:</p> <p>“As between Charles F. Lang and the children of Jacob Lang, the policy of life insurance described in this case became the subject of an executed gift to the latter from its date. There was no condition, qualification nor power of revocation appearing on the face of the policy by means of which the assured could change the beneficiaries. When the policy was issued he had done everything which was then in his power to make the gift complete. It is true he might subsequently refuse to pay the premiums; but, having paid them, they necessarily enured to the benefit of the donees. The gift was absolute. There is nothing in the laws of the order which issued the policy from which an argument can be drawn that the gift is executory and therefore revocable. The 14th section of the article upon which the counsel for the executors relied, is a mere regulation of the mode of transfer of policies, and was intended exclusively for the benefit of the insurers. It gave no quality of assignability to the policy. Such regulations are common to life insurance companies, and no case has been found in which they were treated as reservations of the right of revocation. * * *</p> <p>The effect of the attempted change of beneficiaries in the present case, if valid, would be to defeat the declared object of the order in issuing the policy. That object was to aid the family of the assured. The .title to the policy would, if the contention of the executors be sustained, vest in the assured and pass to his executors at his death, for the benefit first of creditors, and second of legatees. The family of the assured might never receive any benefit whatever. McBride’s Appeal, 22 P. F. Smith 480. And there would thus be no “guarantee” against want so far as the family of the assured was concerned. The executors can, therefore, have no title to the fund.”</p> <p>From this decree the executors took this appeal.</p>

<p>1. 0. purchased, from H. & Co. certain furniture, for a stipulated price, and the articles were charged upon the books of II. & Co. The delivery, however, was made.upon an agreement, signed by C., to pay “not less than $>5 for each succeeding week, until the above amount (the price of the articles) is paid ; the goods above enumerated to be and remain the property of II. & Co., subject to removal by them or their order upon any failure to make any or all of the above payments.” C. having received the furniture under this agreement placed it in his house and failed to make any of the stipulated payments, and finally sold it to S., without notice of the agreement. II. & Co. brought replevin against S., and the court below held that the defendant took no title and that plaintiffs could recover. Held, that this was error; that the transaction between H. & Co. and C. was not a bailment but a sale.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 70.</p> <p>Assumpsit by B. K. Bailey, for use of W. P. Stallings, against William Holmes and others, trading as Holmes, Lafferty & Co.</p> <p>On the 9th of October 1876, Stallings, the equitable plaintiff, sold to Bailey, the legal plaintiff, twenty-two head of cattle for §>1099.45, and on the same day Bailey shipped seventeen of these cattle at Louisville, Kentucky, by the Louisville, Cincinnati & Lexington Railroad Company, to the defendants, who are live-stock commission merchants at Pittsburgh, Pennsylvania, and received from said railroad company a bill of lading for the said seventeen head. On the same day Bailey also drew a draft on the defendants for the price of said cattle ($1099.45), payable to the order of Stallings five days after sight, which draft he delivered to Stallings together with the said bill of lading, and Stallings caused the draft with the bill of lading accompanying it to be sent to the defendants for payment, and they were presented to them on the 11th of October 1876, but defendants refused to accept the draft, and it was thereupon protested for non-acceptanc'e. On the next day the defendants received the said seventeen head of cattle and sold the same for $883.17, being the net proceeds after payment of charges for transportation, &c.</p> <p>On the 9th of October 1876, the day of the shipment of the said seventeen head, the remaining five of the twenty-two head purchased by Bailey from Stallings, were shipped by Bailey in a separate car with eleven head which Bailey had bought from Brown & Jones, of Louisville, Kentucky, and these sixteen were all consigned in the name of Brown & Jones to the defendants, who sold the same on the 12th of October 1876, and received from the sale of the said five head purchased from Stallings $284.07 as the net proceeds thereof.</p> <p>On the 19th of said month, the said draft was again presented to the defendants for payment, which being refused, it was thereupon protested for non-payment.</p> <p>The plaintiff maintained that the delivery to him of said bill of lading with the draft payable to his order was an assignment of a sufficient amount of the proceeds of the sale of the said twenty-two head of cattle to pay the amount of said draft, and that the presentation of the draft to the defendants before the delivery of the cattle was notice of such assignment, and that they were then bound to retain and apply the proceeds thereof to the payment of said draft.</p> <p>On part of the defendants, however, it was proved and not contradicted that on the 12th of October 1876, when all these cattle were received by them (the seventeen head being in one car shipped in the name of B. K. Bailey, and the sixteen in another car-shipped in the name of Brown & Jones), the defendants also received a letter from Bailey, dated the 10th of the same month, notifying them of the shipment of the said two car-loads of cattle, and that eleven head had been purchased from Brown & Jones, with instructions to pay a draft drawn by Brown & Jones on defendants on account of the cattle bought of them and out of the balance of the proceeds to pay whatever he (Bailey) was then owing the defendants, and to remit to him the remainder.</p> <p>In pursuance of these instructions, the defendants accordingly applied the proceeds of the cattle as follows:</p> <p>On the 13th of October 1876, to balance due from B. K. Bailey to defendants on a former account, . . $387.90</p> <p>October 14th 1876, to payment of draft of Brown & Jones on defendants, ...... 647.20</p> <p>October 14th and 16th 1876, to remittance to B. K. Bailey as per his direction, ..... 780.21</p> <p>Which sums, amounting in all to $1815.31, exhausted the entire proceeds of the said two car-loads, and were applied and paid out in obedience to the aforesaid letter of instructions from Bailey before said draft was presented for payment. It further appeared that when the draft was presented for acceptance, not only was there nothing in defendants’ hands due or belonging to Bailey, but the latter was then indebted to defendants in the sum of $387.90 on account of prior transactions.</p> <p>At the trial, before Stowe, P. J., the plaintiff, inter alia, submitted the following point, to which is subjoined the answer of the court:</p> <p>3. That the draft drawn by Bailey to the order of Stallings, for $1099.45 at five days’ sight, and addressed to the defendants, being for value, to wit: the price of said twenty-two head of cattle, the delivery of the bill of lading, at the same time, by said Bailey to said Stallings, as security for said draft, transferred the right of property in the seventeen cattle embraced in said bill of lading, or the proceeds of the sales thereof, to said Stallings, [and if the jury believe that five of said cattle, being the residue of the cattle purchased from Stallings by Bailey, were shipped in the name of Brown & Jones, and the same were received by the defendants, and they knew they were part of the Bailey shipment for which said draft was drawn, the plaintiff is entitled to recover the full amount of his claim],</p> <p>Ans. “ This point is double, and refused as a whole. The first part to the bracket is affirmed; the latter part within brackets is refused.”</p> <p>The following were the points of defendants with the answers of the court:</p> <p>1. That the bill of lading attached to the draft in suit being for only seventeen head of the cattle shipped to defendants, and the proceeds thereof being only $883.17 (less by $216.28 than the amount of said draft) the defendants were not bound to apply the same towards the payment of the indebtedness represented by said draft.</p> <p>Ans. “Refused.”</p> <p>2. That as the net proceeds of the twenty-two cattle bought by Bailey of Stallings was considerably in excess of the amount of said draft (the difference being $67.74), the said draft with the bill of lading accompanying it, did not operate as an assignment of a sufficient amount of said proceeds to entitle Stallings to recover the same from the defendants in this action, without their consent and in the absence of an acceptance or agreement on their part to pay it.</p> <p>Ans. “ This is affirmed. It did not appropriate the proceeds of the twenty-two head of cattle, but the draft with the bill of lading for seventeen head was an appropriation of the net proceeds of said seventeen head of cattle.”</p> <p>3. That if the jury find that the defendants, after the receipt of the cattle in dispute, applied the proceeds thereof as directed by B. K. Bailey in his letter of October 10th 1876, and that such application was made before the presentation of said draft on the 19th of said month, then the verdict should be for the defendants.</p> <p>Ans. “Refused.”</p> <p>4. That under all the evidence in the case the verdict should be for the defendants.</p> <p>Ans. “ Refused.”</p> <p>Verdict for plaintiff for the net proceeds of the sale of the seventeen cattle, with interest. Defendants took this writ, and alleged that the court erred in the answers to the above points.</p>

<p>1. The jurisdiction vested in the courts of the United.States, of all matters and proceedings in bankruptcy, is exclusive.</p> <p>2. A composition with creditors is authorized to be made only in cases pending in court, and is of no validity until confirmed by the court, and then is binding on all creditors who were named and made parties..</p> <p>3. If the composition be not confirmed, or if.the same be set aside, in either case the debtor shall be proceeded with as a bankrupt.</p> <p>4. Pending the petition in bankruptcy and before the court shall have confirmed the composition the courts of the state cannot interfere; nor can they afterward. While the composition stands, the creditor who is bound by it, cannot maintain an action for the original debt; he is barred everywhere, except in an application to the court where the confirmation was made to amend it for cause.</p>

<p>Where materials are furnished for a new building intended to be used in connection'with an old manufacturing establishment, the mechanics' lien therefor should be filed specifically against the new erection, and it is fatal to the claim to file it against the general building.</p>

<p>Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1878, No. 202.</p> <p>Appeal of A. S. Williams, guardian of the minor (children of F. August Ruckert, deceased, from the decree of the court in the matter of the distribution of the estate of said decedent.</p> <p>F. August Ruckert, died testate on the 31st day of March 1877, Edward Ruckert being the executor of his last will and testament. The decedent left a divorced wife and three minor children, the oldest being nine years of age. John W. McArthur was appointed guardian of said minors on the 5th of October 1877, but he dying, A. S. Williams was subsequently, on the 10th day of June 1878, appointed their guardian. The executor filed an inventory of the decedent’s personal estate on the 12th of May 1877, amounting to the sum of $241.10. The then guardian, McArthur, filed a petition in the Orphans’ Court on the 27th of October 1877, praying for a citation to issue to said executor to show cause why he should not have appraised and set apart to the minor children of said decedent the sum of $300, out of the estate, which citation, since the taking of this appeal, has been dismissed. The executor filed his account on the 3d of June 1878, hut neglected to allow the said minors the sum of $300 claimed by them, and also failed to account for certain moneys received by him, as executor, from the St. Antonius of Padua Beneficial Association (of which association the decedent was a member), which moneys the present guardian claimed as belonging to his wards, according to the regulations of said association.</p> <p>To the account, the said guardian, on behalf of said minors, filed exceptions, among others, the following:</p> <p>1. The accountant does not charge himself with the sum of $88, paid him as executor by the St. Antonius of Padua Beneficial Association.</p> <p>2. The said guardian claims for said minor children the sum of $300, for which no allowance is made them in said account; said executor having been notified by the mother of said minor children, before and at the time he disposed of the goods and effects of said decedent, to “keep for the children what the law allowed them.”</p> <p>The first exception was sustained by the oourt — the executor admitting that he had received certain moneys from the before-mentioned association — and the executor was surcharged with the sum of $86.95, so received by him; but the second exception being dismissed, the balance of the fund, together with the money received from the association, was ordered to be distributed pro rata among the creditors, and the minor children received no share thereof.</p> <p>From this decree this appeal was taken.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 254.</p> <p>This was a petition for a mandamus by the Commonwealth ex relatione Adolph Kuehneisen against William Ruske, Secretary of the Birmingham Fire Insurance Company, to compel the transfer on the stock books of said company of ten shares of stock alleged to have been purchased by relator at sheriff’s sale.</p> <p>The relator obtained a judgment against Louis Kuehneisen, on which a fi. fa. was issued, returnable to first Monday of April, and placed in the sheriff’s hands January 21st 1878. In pursuance of the fi. fa., the sheriff levied upon and sold some personal property, on the 81st of the same month, but the proceeds were not sufficient to satisfy the writ. He then, on the 12th of February, in pursuance of the same writ, levied upon ten shares of stock in the Birmingham Fire Insurance Company, standing in the name of the defendant, Louis Kuehneisen, and sold the same to the plaintiff on the 20th of Februai’y. He executed and delivered a bill of sale of. the stock to the plaintiff, who, on the 21st March presented the same to the insurance company, and demanded of the secretary, William Ruske, a transfer of the stock to him on the books of the company, which was refused.</p> <p>The answer admitted these facts, but denied the plaintiff’s right to a mandamus: (1) because the secretary had no right to transfer the stock, and, (2), a sale of the stock to another party. It averred also that on a judgment of the Birmingham Fire Insurance Company against F. Kohne and Louis Kuehneisen, for the use of Charles Mel-ling, an execution-attachment was issued January 23d 1878, and served the same day on William Ruske, Secretary of the Birmingham Fire Insurance Company, attaching the said ten shares of stock standing in the name of Louis Kuehneisen. Interrogatories were served upon the secretary on the 12th February 1878, which he answered on the 18th, and admitted that “the said Louis Kuehneisen, one of the defendants, is the owner of ten shares of stock in the Birmingham Fire Insurance Company, unattached, of the par value of $50 per share, of which amount $35 per share has been paid, and said stock, as appears by our books, stands in his name.” On this answer judgment was entered against the garnishee (the Birmingham Fire Insurance Company) on the 16th March’1878, directing a sale of the stock, on which execution was issued and the stock sold April 10th 1878, to Charles Melling.</p> <p>The court, White, J., in an opinion, inter alia, said:</p> <p>“ The question is: Which purchaser is entitled to the stock ?</p> <p>Adolph Kuehneisen’s execution was in the sheriff’s hands January 21st 1878, two days before the execution-attachment of Charles Melling was issued; but the attachment was served upon the Fire Insurance Company on the 23d January, and the levy upon the stock under Kuehneisen’s fi. fa. was not made until the 12th of February. The sale on the fi. fa. was on the 20th February, and on the judgment against the garnishee on 10th April.</p> <p>“ If the lien of the fi. fa. on the stock dates from the time it was placed in the sheriff’s hands, it has priority over the execution-attachment ; if only from the date of the levy, it is subsequent.</p> <p>“ At common law a fi. fa. was a lien upon the goods and chattels of the defendant from the teste of the writ, even before delivery to the sheriff. But in this state it has always been a lien from the time of its delivery to the sheriff. Stock in a body corporate, however, could not be levied upon and sold on a fi. fa. until after the passage of the Act of 29th March 1819. That act expressly provided that ‘the stock of any body corporate owned by any individual or individuals * * * in his or her * * * own name, shall be liable to be taken in execution and sold, in the same manner that goods and chattels are liable in law to be so taken and sold.’</p> <p>“ The sheriff cannot under a junior execution levy upon and sell goods and chattels which he may not have levied upon under a former execution, and apply the proceeds to the junior execution, even if the property had come into possession of the defendant after the first execution had been issued. He is bound to sell under all the writs in his hands and apply the proceeds to the executions according to their priorities in time: Duncan v. McCumber, 10 Watts 212; Earl’s Appeal, 1 Harris 485.</p> <p>“ There is no good reason why a distinction should be made between stock liable to be seized and sold on a fi. fa. and goods and chattels ; and the act seems to place it on the same footing. It ‘shall be liable to be taken in execution and sold in the same manner that goods and chattels are liable in law to be so taken and sold,’ are the words of the statute. They are liable to be taken and sold from the time the writ is placed in the hands of the sheriff; in fact they are, in law, taken and seized from that date, without a levy: Watmough v. Francis, 7 Barr 206; Wilson, Seiger & Co.’s Appeal, 1 Harris 429; Schuylkill County’s Appeal, 6 Casey 358.</p> <p>In this case there is no controversy between the sheriff or his purchaser and an innocent purchaser before a levy; nor are there any intervening equities. Both claimants are purchasers at sheriff’s sale. The garnishee is a mere stakeholder, and not liable over to either party. The relator had the first execution and is the purchaser at the first sale. We think he is entitled to the stock.</p> <p>“ But the mandamus should not issue against the secretary alone. The corporation is the real party to be made defendant, and against whom the mandamus should be directed, including the secretary, however, if he is the proper officer to make the transfer.</p> <p>“Although the relator’s title is by virtue of the sheriff’s sale, yet he has a right to have the stock transferred in his name.</p> <p>“ The stock was sold, under the act, subject to any debts due by Louis Kuehneisen to the corporation, and these rights, if any exist, should be protected in the transfer.</p> <p>“ The counsel of the relator will take such further steps as may be necessary, under this opinion, to obtain a peremptory mandamus.”</p> <p>In a supplemental opinion the court said:</p> <p>“The opinion of the court filed March 7th 1879, was in favor of the relator, for the reasons then given. In pursuance of the suggestion then made, the Birmingham Fire Insurance Company has been made a defendant also, and brought into court. An •answer has been filed by said company. It sets up substantially the same facts as in the answer of the secretary, upon which the court have already passed. But it is now averred that the stock has been transferred to the purchaser under the attachment-execution, and is not under the control of the company. But no date is given. And from the former answer of the secretary, it is manifest the transfer has been made since that answer was filed, and in defiance of these proceedings.</p> <p>“ It is, therefore, ordered that a peremptory mandamus issue as prayed for and in accordance with the opinion of this court filed March 7th 1879.”</p> <p>The company took this writ and alleged that the court erred in ruling:</p> <p>1st. That the relator had the first execution and is the purchaser at the first sale. We think he is entitled to the stock. 2d. In ordering a peremptory mandamus to issue. 8d. In ruling that although the relator’s title is by virtue of the sheriff’s sale, yet he has a right to have the stock transferred in his name. 4th. In not refusing to issue the writ of mandamus in this case.</p>

<p>1. A municipal lien for a street improvement is a proceeding in rem. It is filed against the abutting or adjacent property and involves no personal liability on the part of the owner.</p> <p>2. As against the purchaser at a sheriff’s sale it cannot be shown that the name of the real owner, where the property was sold as that of an “ unknown owner” was known to the municipal authorities and should have been inserted in the lien. '</p> <p>3. By the express terms of the Act of April 1st 1870, any error or irregularity in regard to the name of the owner is cured by the sheriff’s sale.</p>

<p>1. A lad who was employed by a coal dealer was engaged in unloading ears standing upon a siding constructed by the dealer upon his own land. By reason of the neglect of the railroad employees to change the switch lead ing to the siding from the main track, several cars were propelled from the main track upon the siding and colliding with the cars on which the lad was employed, he received injuries from which he lost his leg. In a suit against the railroad company for damages. Held, that the- lad was employed on or about the company’s road within the vezy terms of the Act of April 4th 1868, and could, not recover.</p> <p>2. Mulherrin v. Delaware, Lackawanna and Western Railroad Co., 31 P. F. Smith, followed.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 283.</p> <p>Replevin by Joseph H. Borland against Thomas H. Murphy, for a lot of shoes, upon which the latter had distrained as the bailiff of Mrs. Margaret McClurg.</p> <p>Mrs. McClurg filed a bill in equity at December Term 1874, praying that her dower in the estate of her late husband, Alexander McClurg, might be awarded to her. On January 12th 1876, a decree was made, fixing her dower at $3000 per annum and charging $2500 per annum thereof on certain property on Eifth avenue, in the city of Pittsburgh, payable quarterly. Her dower having fallen in arrear, she distrained for the quarter ending December 31st 1876 ($625), and levied upon goods of Joseph H. Borland, the plaintiff below, which were found on the premises. Borland was in possession as the tenant of the children (who were the only devisees) of Alexander McOlurg. He sued out a writ of replevin, to which Murphy filed his cognisance, justifying the taking as the bailiff of Mrs. McClurg.</p> <p>At the trial, before Bailey, J., it was proposed on behalf of plaintiff to show that Borland became the tenant of part of the McOlurg property on Fifth avenue, the latter part of June 1875, at a rent at the rate of $1500 per annum, and that the tenancy continued until July 1877, when he quit the premises; that the demise to him was by the children and devisees of Alexander Mc-Olurg, through their agent E. J. Allen; that the first distress by Margaret McOlurg for dower was levied upon the plaintiff’s goods, namely, his stock of shoes, on the 15th December 1876 ; that prior to that date the plaintiff had paid his rent in full to the first of December 1876 ; that the second distress for Mrs. Mc-Olurg’s dower was made in January 1877, and yet a third distress in May 1877 ; that all the plaintiff’s rent which accrued after the first day of December 1876, and down to the time of the termination of the tenancy, July 1877, was needed to pay the dower embraced in the first distress, and was so applied.</p> <p>Defendant objected, on the ground that Murphy made the distress and levied upon the goods because he found them on the premises, subject to the charge of dower, and therefore it was wholly irrelevant in what relation Borland stood to the McOlurgs, whether as tenant or otherwise, or whether there was such rent due as would pay the arrearages of dower, or there was any rent due, Mrs. McClurg having an undoubted right to levy upon any goods that she found there, and sell them, unless interfered with by some proceeding in discharge of her claim for dower.</p> <p>The court overruled the objection and admitted the evidence. (First assignment of error.)</p> <p>The plaintiff then offered in evidence the petition of Mrs. Mc-Clurg, filed at December term 1874, praying for the appointment of a sequestrator ; and the decree of the court making said appointment ; to be followed by evidence, that said sequestrator had paid Mrs. McOlurg out of the rents of said property, a sum in excess of all the arrears of dower embraced in the several distresses against the plaintiff, and more than sufficient to pay all her dower until the Borland tenancy ceased.</p> <p>The defendant objected. First, on the ground that the decree of court, appointing the sequestrator, directs the payment of the rents and income of the property to the dower and arrearages of dower; and,</p> <p>Second, if no appropriation had been made of the income of the property, by tbe court, then the application that the law would make would be in favor of the creditor, Mrs. McOlurg, and for her exclusive benefit; that where there were two funds, one of which was unsecured and the other secured, the law, in her favor, would apply any payments made by the sequestrator to the unsecured fund, being the arrearages of dower that accrued, due after these distresses were made.</p> <p>The court overruled these objections and admitted the evidence. (Third assignment.)</p> <p>The first point of the defendant, with the answer of the court thereto, was as follows: 1st. It is immaterial what amount of rent, or whether any, was due from Borland, as the tenant of the devisees of Alexander McOlurg, to the said devisees, at the time Mrs. McOlurg distrained his goods for her arrears of dower.</p> <p>' Ans. “ The effect of this point is to rule that if Mr. Borland’s rent was $375 a quarter, and the amount due Mrs. McOlurg $625 a quarter, that notwithstanding the agreement on the part of Mr. Borland to pay $375, he could be levied on every quarter for $625, and be compelled to pay it. That point is refused. I do not understand that to be the rule.” (Fifth assignment.)</p> <p>In the general charge, the court, inter alia, said: “ The seventh point of the defendant is refused. This would authorize you to find $625, which I do not mean you to find at all. I mean you have a right to find Mrs. McOlurg is entitled to rent from Mr. Borland for three months, at the rate of rent which Mr. Borland was bound to pay to the landlord, which is, as I understand it, $375.” (Eighth assignment.)</p> <p>The jury, under instructions from the court, rendered a verdict that there was due Mrs. McOlurg $375, with interest from January 1st 1877.</p> <p>Murphy then took this writ and alleged, inter alia, that the court erred as set forth in the above assignments of error. (See the following case of Boland v. Murphy, post, p. 91.)</p>

<p>Under an order of sequestration certain rents were to be applied to a widow’s dower. The payments made by the sequestrator were on account of the dower generally, without appropriation to any particular portion of it. It was claimed that the payments must be applied to that portion first due. Held, that the payments should be appropriated in the way most beneficial to the widow and to that portion of the dower least secured.</p>

<p>Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1879, No. 301.</p> <p>Appeal of Matilda Heineman, from the decree of the court in the matter of the exceptions to the account of the executors of Louis Heineman, deceased.</p> <p>Louis Heineman died February 28th 1877. He left a will dated February 22d 1877, which contained the following provisions:</p> <p>“First. I direct all my just debts and funeral expenses to be fully paid and satisfied by my executors, hereinafter named, as soon as conveniently may be after my decease</p> <p>“ Second. I give and bequeath to my wife Catharine so much of my household furniture, beds, bedding and such other articles, useful or ornamental, contained in my house or residence on Troy Hill, as she may select, to the value of five hundred dollars, according to the appraised value thereof, to bé made by appraisers to be selected by my said executors, hereinafter named. And I further give and bequeath unto my said wife, the sum of twelve hundred dollars, to be paid to her by my said executors yearly and every year during her natural life, for her maintenance and support. All which legacies to my said wife, I do declare to be in lieu and stead of her dower at common law.</p> <p>“ Third. I devise and bequeath to my executors, hereinafter named, the store-house and lot situate on Fifth avenue, in the city of Pittsburgh, in trust, however, for the following uses and purposes, and no others, to wit: To rent the same at such rent or rents and for such term or terms of years as they may deem best, until the term of twenty years after my death shall have fully expired and ended, and after paying all expenses, taxes and other charges against the same, to divide the residue of the rents equally between my five children, as follows: One share to my daughter, Matilda Heineman, to be paid to her without power of anticipation or liability to attachment, and free from the control of her husband, and in case she should die before the expiration of said term of twenty years, her share of said rents shall be paid to her children.</p> <p>“Fourth. I direct and empower my said executors, hereinafter named, to sell all the rest, residue and remainder of my estate, real, personal and mixed, of what nature or kind soever, and wheresoever the same may be at the time of my death, for such price or-prices, either together or in parcels, and on such terms as they may deem best, and to execute and deliver good and sufficient deed or deeds therefor, to the purchaser or purchasers thereof.</p> <p>“ Fifth. I direct and empower my said executors, hereinafter named, to sell the said store-house and lot on Fifth avenue, in the city of Pittsburgh, as soon after the expiration of said term of twenty years after my death as they can obtain a satisfactory price therefor, and to execute and deliver a good and sufficient deed therefor to the purchaser or purchasers thereof.</p> <p>“ Sixth. I direct my said executors, hereinafter named, to invest the one-fifth part of the proceeds of all sales of my property made, in such securities as they may deem best, with power to sell, change, alter, renew and re-invest the proceeds of the same in other securities from time to time, the income thereof to be paid to my said daughter, Matilda Heineman, during her natural life, free from the control of her husband, without power of anticipation, and free from liability to attachment, and upon her death the principal thereof to be equally divided among her children.</p> <p>“ Seventh. All the rest, residue and remainder of my estate, not otherwise hereinbefore disposed of, I give and bequeath unto my four sons — Richard Alexander, Charles, Albert and Edwin Alonzo — share and share alike, to their heirs and assigns for ever.</p> <p>“And lastly, I hereby nominate, constitute and appoint my beloved son, Charles Heineman, and my nephew, Augustus R. Heineman, to be the executors of this my last will and testament.”</p> <p>Testator’s real estate consisted of a valuable building, store-room, offices, &c., situate on Fifth avenue, between Wood and Market streets, Pittsburgh; and his residence on Troy Hill, back of Allegheny city. He had considerable personal property, consisting of stocks of various kinds, &e.</p> <p>The executors took charge of the assets, and collected the rents and dividends until the 19th of April 1878, when they sold the stocks at auction. Among the stocks sold were eight shares of the capital stock of the Germania Savings Bank, of the par value of $1000 a share paid up. These shares were sold at the auction at $100 a share. They had been appraised and returned in the inventory at $800 a share, and in filing their account the executors claimed credit for the difference, $5600, between the appraised value of the stock and what it sold for. Mrs. Heineman excepted to this, and claimed that the stock had been sacrificed and sold for a nominal price without due notice to her.</p> <p>The executors filed their account in the register’s office on May 3d 1878. It was presented for approval in the Orphans’ Court on June 3d 1878, and exceptions were then filed on part of Mrs. Heineman. Many of these exceptions were sustained and the account surcharged' with $6565.</p> <p>The court found there were $22,309.66 in the hands of the executors for distribution, and dismissed the exceptions, and made a decree as follows:</p> <p>First. That Catharine Heineman, widow of the testator, has refused to accept the provisions made for her in his will, and having elected to take under the intestate laws of the Commonwealth, she is entitled in addition to the personal property, appraised at $300, and set apart to her, to one-third the proceeds of the personal property and rents collected after the payment of debts, expenses of administration, insurance, repairs, &c., and that said one-third is $7436.55; Second. That under the trust created by the 3d clause of the will, the accountants have received rents, less expenses, taxes, insurance and repairs, amounting to $3297.67 ; one-third of which is payable to Catharine Heineman, widow, and the residue is to he divided equally among the testator’s five children ; Third. That under the trust created by the 4th and 6th clauses of the will, accountants have received proceeds of sales and household goods, &c., less expenses, amounting in all to $8646.06; one-fifth of which, amounting to $1729.21, is to be invested as directed by the will, in trust for Mrs. Matilda Heineman, less her share of costs of audit, &c.; and Fourth, $3176.05 was declared to be the amount to which each of the four remaining legatees were entitled.</p> <p>From this decree Mrs. Heineman took this appeal, and alleged, inter alia, that the court erred,</p> <p>1. In not surcharging the account with the sum of $5600, the difference between the appraised value of the stock of the Germania Savings Bank and what it was sold for at the auction on the 19th of April 1878.</p> <p>3. In its construction of the third clause of the said will, and in holding that Matilda Heineman was only entitled to one-fifth of the two-thirds of the net income from the rents of the Fifth avenue property.</p> <p>4. In the construction of the sixth clause of said will, and in holding that Matilda Heineman was only entitled to have invested for her share the one-fifth of the two-thirds of the proceeds of the property mentioned.</p> <p>5. In not ruling and holding that under said will, as Mrs. Heineman was deprived of one-third of her share of the rents of the Fifth avenue property by reason of the widow’s refusing to take under the will, that therefore she, Mrs. Heineman, was entitled to be reimbursed out of the amount, $1200 per annum, set apart by said will for the support of the widow.</p>

<p>1. A city can create a valid municipal lien for improving a street, only when the improvement is made in pursuance of law and the mode prescribed by statute or ordinance is strictly followed.</p> <p>2. In opening and improving one of its streets a municipal corporation graded beyond the limits of the street as located by law, and built a stone wall to sustain the street, one-half of which was within the street line and the other half on private property. Held, that the wall was built in violation of law and the taking of the ground was a trespass. Held, further, that the city could not recover from the owner of the property any portion of the cost of the wall.</p>

<p>C. & Co. agreed with. W. & Co. to consign oil to them, to be stored until they authorized its sale, with certain rates for storage and stipulated commissions. They sold the oil without the order or knowledge of C. & Co., and afterwards went into bankruptcy and made a composition with their creditors. C. & Co. brought an action of trover and conversion, but only one of the two defendants was served. Held, that in the absence of affirmative evidence that the defendant in fact participated in the sale of the oil, or knowingly appropriated its proceeds, the court was right in holding that he was not guilty of positive fraud, involving moral turpitude or intentional wrong, and although fraud was implied against him because of the partnership relation, yet the action was barred by the composition in bankruptcy.</p>

<p>Error to the Court of Common Pleas No. 2, of Allegheny county: Of October and November Term 1879, No. 60.</p> <p>Scire facias sur municipal lien filed by the city of Allegheny against George W. Smith. «</p> <p>This-claim was for an assessment of $555.62, on a lot owned by the defendant on Boyle street, and extending along Pairmount street in the city of Allegheny, on account of the grading, paving and curbing of said Pairmount street.</p> <p>At the trial before Kirkpatrick, J., the plaintiff offered in evidence the Act of April 1st 1870, Pamph. L. 755, whereby the improvement of the streets of Allegheny was authorized, the ordinance for the improvement and the Act of May 20th 1871, Pamph. L. 1032, and then offered the lien which had been filed in this case. The defendant objected, and the court overruled the objection. (First assignment of error.)</p> <p>It was then proposed to be proved by the testimony of the defendant, “that the city of Allegheny established a grade for Fairmount street on or about the level with Boyle street. That the street was so graded, and the defendant was assessed to pay to the city of Allegheny the cost and expenses of the grading of the first grade; that since that time they have established a new grade, for which the assessment is now made; that they have erected a stone-wall debarring him from Henderson street; that they have left a little alley by which he can pass into his own house. That this change in the grade has depreciated his property at least one-half in value, rendering it almost uninhabitable. This for the purpose of showing that he has already paid*"all that can he legally charged upon him for the grading and improvement of Fairmount street.”</p> <p>Objected to as immaterial and irrelevant, and further, that if the defendant is injured by the change of grade he has his remedy under the Act of 1870. Objection sustained and evidence excluded. (Second assignment.)</p> <p>Verdict for plaintiff, when defendant took this writ and alleged that the court erred in admitting in evidence the plaintiff’s lien and excluding defendant’s evidence.</p>

1, of Allegheny county: Of October and November Term 1879, No. 183. Assumpsit by the Central Bank of Pittsburgh against Pulton, Marvin & Co. This was an action by the bank against the defendants, late partners doing business under the firm of Eulton, Marvin & Co., as the makers of two notes, and the endorsers of a third note of which the following are copies, viz.: “$4000. Pittsburgh, June 29th 1875.

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, Nos. 161, 162, 163 and 164.</p> <p>Scire facias sur municipal lien for grading, paving, &c., issued by the city of Pittsburgh against Richard Knowlson. In the court below this case and that of the same plaintiff against Watson’s Estate, Same against Coward, and Same against Moffatt, were all tried together. The same testimony was given in each, and the facts in each are identical. They were liens filed by the city of Pittsburgh for the grading, paving and curbing of Locust street, from Shingiss street to Miltenberger street.</p> <p>The Act of January 6th 1864, sect. 6, Pamph. L. 1131, authorized the councils of the city of Pittsburgh, whenever they deemed it expedient, to grade, pave and set with curbstones, “any public street, lane or alley, or any parts thereof, which is now, or which may hereafter be laid out and opened in said city.” The councils, in pursuance of this power, on July 28th 1873, authorized the grading, paving and curbing of said portion of Locust street. Accordingly, on February 6th 1874, a contract with Evan Jones was duly made by the city, through her engineer, for that work. This contract provided, inter alia:</p> <p>“ All the materials furnished, and all the work done, which, in the opinion of the engineer, shall not be in accordance with this specification shall be immediately removed and other materials furnished and work done that will, in the opinion of the engineer, be in accordance therewith.”</p> <p>Further on, in the contract, the contractor agrees to complete the work “ to the satisfaction of the engineer and again, it provides that if any ambiguity shall arise under the contract, “ the engineer’s instructions shall be considered explanatory, and shall be of binding force.”</p> <p>Jones did proceed with the work, and completed the same on October 25th 1876. The engineer then took the work off his hands, and at once made his assessments against the lots fronting on the street for the cost of the improvement. These he duly advertised, and, as required by law, handed the assessments over to the city treasurer for collection. The treasurer in turn gave notice, and after waiting the allotted time, on February 28th 1877, passed the assessments to the city attorney. As is usual in his office, to save the lot-owners costs, he waited for some time for them to pay, and on March 28th 1877, filed the liens in these different cases, for the assessment against each lot for its share of the cost of the improvement. After the introduction in evidence of the Act of 1864, above referred to, the city ordinance of July 28th 1873, and the liens filed, the city rested.</p> <p>The defendants, among other defences, claimed that the lien had not been filed within six months after the work was done. They alleged the work was finished on September 5th 1876; that the liens were not filed until March 28th 1877, and that therefore they were void, and there could be no recovery. They introduced witnesses to show that about September 1876, the street commissioners of the city inspected and approved the work; and they also called Mr. Jones, the contractor, and one or two workmen, to show when the last work was done. All of the witnesses, however, who were called, agreed that work was done on this street in October 1876; that when the street commissioners sent their written approval of the paving to the city engineer, he went out on the work; that he notified the contractor that the work was not satisfactory to him ; that the contractor must reset some curbing, a portion of it, near Cooper street, being out of line; that a certain portion of the pavement where there had been a fill, had sunk, and the contractor must fill up to grade at that point, and relay the pavement. The contractor accordingly did this work. Mr. Dempster, the engineer, says it was done in October 1876, and he accepted the work in October 1876. John Callahan who did the work, was also called, and he testified he did it in October 1876.</p> <p>There was no dispute that the work was done in October 1876, but the defendants claimed that the re-setting of the curb was rendered necessary by a mistake of the engineer, and that the sinking of the pavement was by a heavy rain, and therefore, they argued, the time of the completion of the work was not extended.</p> <p>The plaintiff claimed that the provisions of the Act of 1864, relating to the time of filing the liens for assessments, was, as between the city and the lot owner directory merely, not mandatory ; that an omission to file within six months after the completion of the improvement would not defeat the lien. That the act, when it says, in fixing the time -for the filing of the lien within six months “ after the completion of said improvements,” intended, in harmony with all the city laws, to mean within six months after the work was done and accepted by the engineer; that in this case, as in fact if work was required by the engineer to be done, and it was. done under the contract for grading the street, within six months preceding the filing of the liens, they were good, and it was immaterial whether this work was rendered necessary by mistake of the city engineer, or by rains.</p> <p>The court declined so to charge, but said that the six months for the filing of the liens ran from the day when the last of the original contract work was done on the street.</p> <p>The following points were submitted by plaintiff, all of which the court refused:</p> <p>1. That the provisions of the Act of Assembly, with reference to the filing of municipal liens within six months from the completion of the work, is directory only, and will not, as between the lot owner and the city, defeat the right of the city to file such a lien.</p> <p>2. That the time from which the six months runs is the “ completion of said improvements,” and under the contract in evidence, and the Acts of Assembly and ordinance, the said improvement is not completed until approved by the city engineer.</p> <p>3. That as under the laws and ordinances of the city, and the contract in this case in evidence, it is made the duty of the city engineer to finally approve and pass upon the 'work done by the contractor in the improvement of the street — the improvement is not completed until that officer is satisfied with the -work of the contractor, and makes a declaration to that effect by a final estimate or otherwise.</p> <p>4. That under the laws and ordinances of the city, and the contract in this case, the gradiug, paving and curbing of Locust street was not completed until the last work was done by the contractor, under the direction of the city engineer, as the officer of the city therein and thereby designated to pass upon the workmanship and quality of work done upon the street.</p> <p>In the general charge, the court, White, J., charged the jury:</p> <p>“ The lien must be filed within six months after the actual completion of the work. The acceptance of the work by the street committee or the city engineer, does not fix or determine the date from which the period of six months is to be counted. Such acceptance by the street committee, and a certificate by them to that effect .to the city engineer, is evidence that the work was then completed but not conclusive. The actual completion of the work by the contractor, under his contract — the day when he did the last work under his contract, fixes the date from which the period for filling the lien must be counted.</p> <p>“ Any imperfection in completing the work required by the contract, or any defect in the work, which has to. be remedied before the engineer will accept the work, or take it off the contractor’s hands, will extend the actual completion until that work is done, and the time must be counted from that date. [But repairs made necessary by heavy rains, or a change of a few feet of curbing, after the contractor had quit work and after the acceptance of the work by the street committee, would not have the effect of extending the time of the actual completion, unless the curbing thus changed had been improperly placed through the neglect or fault of the contractor.]</p> <p>“The question for you to determine upon all the evidence,'is this: When was the work of grading, paving and curbing on Locust street, under the contract with Evan Jones, actually completed ? The lien was filed March 28th 1877. Six months before that was September 28th 1876. If, therefore, the work was actually completed before September 28th 1876, the six months had expired before the filing of the,liens, and your verdict should be for the defendants, otherwise your verdict should be for the plaintiff.</p> <p>“'All the other questions in these cases, are questions of law and for the court.”</p> <p>Verdict for defendants, and after judgment plaintiff took this writ and alleged, that the court erred in refusing the above points, and in the portion of the foregoing charge included in brackets.</p>

<p>1. As a general rale, a mortgage of personal property, like a sale, is void as against creditors if a corresponding change of possession does not accompany the same. But where a removal of the property is impracticable, when all has been done that reasonably can be to mark the change of ownership and possession, the law is satisfied.</p> <p>2. A long term of years, of very great value, is not such an interest in land as is subject to the lien of a judgment; it is a chattel, subject to seizure and sale, by a constable, on an execution issued by a justice of the peace.</p> <p>3. All kinds of property may be mortgaged to secure debts. A mortgage of personal property, in some respects, is like a pawn or pledge. Without delivery of possession to the mortgagee, it is a nullity as to creditors unless made under some statute; but if possession be given, the mortgagee may hold it till his debt is satisfied. At most, a creditor of the mortgagor can only sell it subject to the claim of the mortgagee, whose lien is not divested by the sale, and who is not entitled to share in the proceeds, and the purchaser at sheriff’s sale takes just the interest, if anything at all, which was left in the mortgagor.</p> <p>4. It is not the intendment of the Acts of September 23d 1783, March 28th 1820 and April 6th 1830, relating to mortgages, to include leaseholds in the words properly signifying freeholds. The Act of March 28th 1820 has no relation to mortgages of leaseholds, nor have any other acts which relate exclusively to mortgages of “real estate.”</p> <p>5. A mortgage of an estate for years may be recorded, any time within six months, where it does not come within the acts respecting collieries, mines and manufactories. If the mortgagee take and retain possession of the property it will be as free from liability to answer an execution against the mortgagor as would any other personal estate, and once free, because under his dominion, it would continue so. The mortgage is of such a nature that under no circumstances can it come into competition with the judgment for the proceeds of sale on the execution ; the claim is on a chattel, and notice to the purchaser supplies the place of recording.</p> <p>6. An adverse claimant of a chattel, sold on execution against another, cannot take the money made from the execution-creditor; his remedy is by an action for recovery of the property, or damages.</p>

<p>Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, Nos. 1 and 2. In equity.</p> <p>Appeal of David Hostetter from the decision of the court in certain proceedings in equity. The case will be found stated in the opinion of this court. [See also Lewis’s Appeal, 10 Norris 359. — ■ Rep.]</p>

2, of Allegheny . county: Of October and November Term 1879, No. 323. Assumpsit by Samuel Burrill against the Dollar Savings Bank, to recover the amount of a deposit. Plaintiff was a colored man, who, at the time he opened his account with the bank in 1868, could neither read nor write. When he opened the account, he made his mark on the signature book of the bank; but subsequently having learned to read and write he, in 1876, signed the book with his own hand.

<p>Certiorari to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1879, No. 44.</p> <p>On the 2'7th of February 1878, a petition was presented to the Court of Quarter Sessions, signed by twenty-five persons, alleged to be qualified electors of the Seventh Ward of the city of Pittsburgh, contesting the election of Edwin C. Mathews, as alderman of said ward, and averring that the votes in the second precinct of said ward had not been properly counted.</p> <p>On the 16th of March 1878, Mathews filed his answer to said petition, denying the allegations therein, and alleging that fraudulent votes had been cast in the third precinct for Joseph A. Butler, and that a fraudulent count of the votes in said precinct had been made in Butler’s favor.</p> <p>A replication was filed to this answer, and a commissioner appointed to take testimony. On the 13th of April 1878, Mathews presented his petition to court, alleging therein that the petition to contest his election had not been signed by twenty-five qualified electors of said ward, and specifying the parties who signed the petition who were not such qualified electors, and prayed the court to quash the petition to contest the election. An answer was filed denying the averments in said petition, and counsel for Mathews then filed a motion to have a commissioner appointed to take testimony, which the court held under consideration, and eventually dismissed the petition to quash without hearing any evidence, which action of the court was assigned for error by Mathews, who took this writ.</p> <p>Considerable testimony was taken by the commissioner appointed on the petition to contest the election, and returned to court on the 7th of December 1878, and on the 4th of January 1879, the court filed an opinion finding that Joseph A. Butler had received the highest number of legal votes, and declaring him to be the duly elected alderman of the ward, which was also assigned for error.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 379.</p> <p>Case stated wherein the Commonwealth of Pennsylvania, to use of John Porterfield & Co., was plaintiff, and John H. Hare, sheriff, and James Kelly and M. B. Brown, his sureties, were defendants. The following was the case as stated:</p> <p>That on June 9th 1875, John Porterfield & Co. obtained a judgment against John L. Lloyd, William Gordon, James Collins and C. L. Brennan, owners of the steamboat “ Juniata,” at No. 1224 'June Term 1875, of this court, for $1229.90, and the same day issued upon said judgment a writ of fi. fa., No. 55 September Term 1875, returnable to the first Monday of September 1875, which execution was received by the sheriff, J. H. Hare, Esq., at 9 o’clock, A. m., of the 10th of June 1875, and so endorsed by said Hare upon the wmit. The counsel for the plaintiffs gave no instructions to the sheriff at the time of the delivery of said writ to him, or at any time thereafter, and did not know of any property belonging to the defendants in said writ, or any of them, to levy upon. I</p> <p>That on July 13th 1875, the Champion Coal and Tow-boat Company obtained judgment against the same defendants, Lloyd, Gordon, Collins and Brennan, owners of the steamboat “ Juniata,” at No. 897 July Term 1875, of the Court of Common Pleas, No. 2, of this county, for $2940.08, and on July 14th 1875, issued thereon a fi. fa., No. 88 October Term 1875, specially directing said sheriff to levy upon the interest of John L. Lloyd in and of any and all personal, real or mixed property, rights, claims and credits of the partnership styled J. G. De Huff & Co. (of which the said Lloyd was a member at the date of said fi. fa.), carrying on the druggist business in the borough of Sharpsburg, in Allegheny county, and having its chief place of business in said county; and of the interest of the said Lloyd in and of any and all property, rights, claims and credits of the partnership styled the ¿Etna and Sharpsburg Savings Bank (of which said Lloyd was a member at date of said fi. fa..), carrying on the business of banking, and having its principal place of business in said county. That said fi. fa., No. 88 October Term 1875, containing said special levy, was re.ceived by the said John H. Hare, sheriff, at 9 o’clock, A. m., of the said 14th day of July 1875, and that in pursuance thereof, he, the said sheriff, did, on the said 14th day of July 1875, at 9 o’clock, A. M., levy upon the interest of said John L. Lloyd in and of all personal and mixed property, rights, claims and credits of said partnership firms of J. 0. De Huff & Co., and “ The Sharpsburg and iEtna Savings Bank,” as in and by said writ he was directed and commanded to-do, and by virtue of said writ and levy, having first given due and legal notice of the time and place of sale, did, on the 23d day of July 1875, expose to public sale the interest of said John L. Lloyd in and of the personal and mixed property, rights, claims and credits of the said partnership firms, and sold the same for the sum of $>1320. That said fi. fa., No 55, September Term 1875, remained in the sheriff s hands from the time of its receipt by him as aforesaid, until after the sale above mentioned, without any levy having been made under the same upon the interests of said John L. Lloyd in said partnership firms. That after said sale of July 23d 1875, the said John H. Hare, sheriff, finding said fi. fa. No. 55 September Term 1875, to be in his hands and to be prior in order of time to said fi. fa., No. 88 October Term 1875, refused to appropriate the proceeds of said sale to either of said writs (they being claimed by the respective plaintiffs in each of said writs), but, after deducting the costs in both writs, to wit: the sum of $>34.03, by leave of court he paid the balance, ¡$1285.97, into court. That thereupon the court appointed an auditor to make distribution of said proceeds, before whom the plaintiffs in said writs appeared and made proof of the facts herein stated. That said auditor, on November 29th 1875, reported to this court a distribution appropriating the fund, paid into court as aforesaid, to said fi. fa., No. 88 October Term 1875. That exceptions having been taken by the plaintiffs in fi. fa., No. 55 September Term 1875, to the finding and distribution of said auditor, they came on for hearing before this court, and were overruled and the report of said auditor confirmed absolutely. That said exceptants thereupon took an appeal to the Supreme Court of this state, at No. 151 October and November Term 1876, assigning for error the rulings of this court in overruling said exceptions and confirming said report; at which term the said Supreme Court affirmed the rulings of this court. That upon said action of this court and of the said Supreme Court, the proceeds of said sale were paid out of court to said fi. fa., No. 88 October Term 1875, whereupon the said plaintiffs, being the plaintiffs in said fi. fa., No. 55 September Term 1875, brought this action.</p> <p>Now it is -agreed that if the court is of opinion that it was the duty of the sheriff, when informed by the special levy contained in said fi. fa.. No. 88 October Term 1875, of the partnership interests of said John L. Lloyd in said firms of J. G. De Huff & Co. and The Sharpsburg and iEtna Savings Bank, to have levied upon said interests under said fi. fa., No. 55 September Term 1875, at or prior to the sale thereof, and that a levy so made would, notwithstanding the levy made in pursuance of special directions under said fi. fa., No. 88 October Term 1875, have given to said fi. fa., No. 55 September Term 1875, priority in the distribution of the proceeds of said sale, then judgment to be entered for the plaintiffs against the defendants for the sum of $1285.97, with interest from the first Monday of September 1875.</p> <p>But if the court be of the opinion that said fi. fa., No. 88 October Term 1875, which specially directed the sheriff to levy upon said John L. Lloyd’s interests in said firms, would have had priority in the distribution of the proceeds of said sale, notwithstanding any levy the sheriff might, subsequently to the reception of said writ, have made thereon, by virtue of said fi. fa., No. 55 September Term 1875, then judgment to be entered for defendants.</p> <p>The court was of opinion that the law under the facts as stated was with the plaintiff, and directed judgment to be so entered for $1285.97, with interest from the first Monday of September 1875, and costs.</p> <p>The defendants took this writ, and assigned this action of the court for error.</p>

<p>1. The proper mode of taking advantage of a defect appearing upon the face of a mechanic’s claim is by demurrer, or motion to strike off. After pleading to the scire facias such defect must be considered as waived.</p> <p>2. The first item of a claim was bad, and would have been stricken out on motion. No motion to strike out was made, but the defendant made it the subject of a special plea, which concluded to the court and was, in effect, a demurrer. The parties went to trial on the issue of fact, the court reserving the question raised by the issue of law, which they decided for plaintiff. Meld, that this was error, and that the issue should have been determined in. favor of defendant.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 73 and 74.</p> <p>Case by William Munhall against the Pennsylvania Railroad Company and the Allegheny Valley Railroad Company, and by Jackson & Brother against the same defendants.</p> <p>These two actions were of like character, and depending upon like proofs, and by consent of the parties, were tried together in the court below.</p> <p>They were actions against the Pennsylvania Railroad Company and the Allegheny Valley Railroad Company for conspiracy and injuring the plaintiffs, respectively, in their business.</p> <p>The plaintiffs were éngaged in the transportation of crude oil in bulk boats and barges, via the Allegheny river, from the oil regions of Pennsylvania to Pittsburgh and vicinity, and in the prosecution of their business, had invested in and were using steamboats, barges, bulk boats and other appliances specially built for and adapted to said trade. They had ljuilt up a steady and prosperous trade, and had been engaged in the same for a number of years prior to 1871. A large number of persons at Pittsburgh and in the vicinity thereof were engagéd in the business of refining crude oil, and shipping the refined .product to the eastern markets over the Pennsylvania railroad. These refiners had been for several years the regular customers of the plaintiffs in their aforesaid transportation business.</p> <p>The Pennsylvania railroad was, and is, the direct route for transportation of refined oil from Pittsburgh to the eastern market. During much of the time covered by the proofs in these cases it was the only route, and during the whole period was the principal and favorite route with refiners at Pittsburgh and vicinity.</p> <p>The Allegheny Valley Railroad was completed to Oil City and opened about the year 1869, and it has since been the only route by rail for the transportation of crude petroleum from the oil regions of Pennsylvania to Pittsburgh and vicinity.</p> <p>The natural and cheapest route for the transportation of crude petroleum from the oil regions of Pennsylvania to Pittsburgh is the Allegheny river, and for some time after the opening of the Allegheny Valley railroad to the oil trade, as above mentioned, the plaintiffs continued to supply their customers, the refiners, at Pittsburgh and vicinity, with crude oil brought down the Allegheny river in their bulk-boats and barges.</p> <p>In the year 1870, and prior thereto, in order to compete with the river trade in the transportation of crude petroleum to Pittsburgh and vicinity, the Allegheny Valley Railroad Company allowed rebates or drawbacks to shippers of crude petroleum over its road ; but this policy left the plaintiffs to open competition, and they, by lowering their rates, retained their trade.</p> <p>It was in evidence that early in the year 1870, at the office of the Allegheny Valley Railroad, at Pittsburgh, the president of the road remonstrated with a large transporter of crude petroleum to Pittsburgh, and who had been receiving rebates from the road, against his running oil to Pittsburgh by river, and then and there declared he would “ fix this barge business so there couldn’t be any more barge oil run on that river.”</p> <p>It was also in evidence that about 1870 the president of the Allegheny Valley Railroad declared to a Pittsburgh refiner and a broker at Pittsburgh for the purchase of crude petroleum for refiners, that the shipping of crude petroleum to Pittsburgh by the river should he stopped, and that he would compel the barges “ to stop the business and go out of the business.”</p> <p>Shortly thereafter the Pennsylvania Railroad Company and the Allegheny Valley Railroad Company entered into an arrangement whereby the Pennsylvania Railroad Company allowed to Pittsburgh refiners of crude oil upon eastern shipments of oil refined at Pittsburgh and vicinity from crude petroleum brought to their refineries from the oil-producing regions of Pennsylvania, via the Allegheny Valley Railroad, a drawback or rebate upon the freight or cost of transportation. But any such drawback or rebate was not allowed upon oil refined at Pittsburgh or yieinity from crude petroleum brought there in barges or boats via the Allegheny river. This general arrangement between the defendant companies, with some modifications in details, prevailed from the time it was entered into between the two roads, about 1870 or 1871, down to the trial of these cases.</p> <p>The Allegheny Valley Railroad Company (like the bargemen on the river), carried crude oil from the oil regions to Pittsburgh at one uniform rate, without reference to the point at which it first reached the railroad. But it went a step further in competing with the rivermen. It carried crude oil to the refinery, and its manufactured product to Allegheny Junction, at one uniform rate. Pittsburgh refiners — all of them — were thus put in as good position, as if their refineries had been situate at Allegheny Junction. They had one uniform through rate on oil from the oil regions to the seaboard.</p> <p>Parties shipping oil over the Allegheny Valley Railroad, received receipts showing the amount of freight paid. When they shipped their oil east, these receipts were accepted by the Pennsylvania Railroad Company, as evidence that the freight chargeable to the first part of the carriage had been paid, and that company collected only its own freight in money. If no such receipts were presented — if no freight had been paid for carriage between Pittsburgh and Allegheny Junction — it collected freight for the whole route.</p> <p>In consequence of this arrangement, the plaintiffs alleged, that refiners of oil at Pittsburgh and vicinity, were compelled to and did desist from purchasing crude pretroleum brought to Pittsburgh or its vicinity, by barges or bulk boats via the Allegheny river, and thus the business of the plaintiffs was almost entirely broken up and destroyed.</p> <p>The plaintiffs, to counteract the effect of the above-mentioned discrimination, lowered their rates of freight to 8 and 10 cents per barrel — a rate far below that charged by the Allegheny Valley Railroad Company, which was then about 35 cents per barrel — but without avail.</p> <p>They further alleged that their former customers continued in the business of refining crude oil at Pittsburgh and vicinity, and were purchasers of crude petroleum, but that by reason of the above arrangement, they were compelled to withdraw their patronage from plaintiffs, and supply themselves with oil brought via the railroad.</p> <p>The plaintiffs having closed their testimony, counsel for defendants move the court for judgment of peremptory nonsuit, for the following reasons:</p> <p>1. No evidence has been given connecting the Pennsylvania ■ Railroad Company, one of the defendants, with the combination declared upon. 2. There is no evidence of any illegal combination for any purpose. There is no evidence of any combination for an illegal purpose, and especially none from which the jury could find a malicious injury “to the plaintiffs in their business.” 4. There is no evidence of an unlawful combination between the defendants for the purpose of, and resulting in, “ actual legal damages ” to the plaintiffs.</p> <p>The court said: “ We do not see how we could sustain a verdict for the plaintiff under the evidence, and, therefore, judgment of nonsuit granted with leave, &c.”</p> <p>This action of the court was assigned for error by plaintiffs, who took this writ.</p>

<p>Appeal from the Common Pleas of Butler county: Of October and November Term 1876, No. 268. In Equity.</p> <p>Bill in equity filed by J. W. Christy, Robert Campbell, W. C. Glenn, H. C. Linn, J. C. Glenn, William Conway and W. H. Timblin against W. H. Timblin, AVilliam Conway, Robert Campbell, J. W. Christy, A. B. Rhodes, W. J. Breaden, R. J. Thompson, Samuel Russell, W. C. Glenn, J. C. Glenn, W. C. Bryson, H. C. Linn, David Morrison, A. M. Hutchion, W. W. Christie, Peter Grace, H. P. Conway, S. M. Kier, W. Wallace Perkins, E. M. Campbell, Yiola McElwain, Elenor Campbell, M. M. Say, T. B. Clark and J. N. Wick, to compel contribution by defendants to pay the losses and settle the partnership account of the firm, of which plaintiffs and defendants were members, the same being insolvent.</p> <p>The bill, inter alia, set forth:</p> <p>1st. That on or about the 5th of April 1873, the plaintiffs and defendants, above named, entered into a. co-partnership to carry on the business of banking, under the name, style and title of the “ Concord Savings Bank.”</p> <p>2d. That the partners above named, at a meeting held at their banking house in Greece City, agreed and determined that the capital stock of said bank should consist of one hundred- shares, each share to be $300, to be paid in from time to time to said bank. That all the foregoing plaintiffs and defendants subscribed for and became liable for shares in said bank, in different proportions, the number of H. P. Conway being eight.</p> <p>3d. That the said association or partnership was organized by the election of W. H. Timblin as truste.e and II. C. Linn, J. 0. Glenn, Robert Campbell, Wm. Conway, J. W. Christie, David Morrison, A. M. Hutchison,. W. H. Timlin, W. Wallace Perkins, W. W. Christie and W. C. Glenn as directors, on or about the 5th of April 1873, at a meeting regularly called and held at Greece City, at the banking house of the Concord Savings Bank. That the said board of directors was elected and organized with W. H. Timblin as president, II. C. Linn as vice-president, and J. C. Glenn, W. C. Glenn and David Morrison as discount committee. That it was agreed that W. H. Timblin, David Morrison and Dr. II. C. Linn, act as a committee to procure a cashier arid bookkeeper for said bank. That at the said meeting the aforementioned parties agreed to pay in one-fourth of the capital stock, and that the capital stock should be $30,000. That at the said meeting they agreed that they would commence the said business of banking on or about the 24th day of April 1873.</p> <p>4th. That the committee aforesaid, appointed, by and with the consent of the board of directors, J. N. Wick, cashier, and Henry Bredin, bookkeeper, and the officers above named took upon themselves the duties of th'eir respective offices and acted in that capacity until about the 1st day of September 1873, when the said bank, by resolution of the board of directors, was removed to the borough of Sunbury; and the cashier and bookkeeper, aforesaid, continued in said office until about the 1st of October 1873, when they resigned their respective offices, and J. C. Glenn as cashier carried bn the business of said bank until about the 27th day of November 1873, when the business was stopped and payment suspended for the want of funds.</p> <p>5th. That while the said partnership in the said general banking business was being carried on, losses were sustained by the said partnership to the amount of about $50,000, in the course of their business as bankers. That a very small amount of the capital stock, to wit, $6075, had actually been paid in, and that the said partnership has no available assets to pay said indebtedness.</p> <p>6th. That the plaintiffs, J. W. Christy, Robert Campbell, W. C. Glenn, H. C. Linn, J. C. Glenn, Wm. Conway and W. H. Timblin, borrowed money and have become individually responsible to the amount of $27,653.50, in order to pay the most urgent debts of the said partnership, and to relieve themselves and co-partners from judgments and executions thereon. That the amounts aforesaid were borrowed to pay depositors in said bank on the credit of the co-partners above named. Yet the defendants above named refuse and neglect to come in and contribute their share of the losses of the said co-partnership and deny their responsibility so to do.</p> <p>7th. That the co-partners above named are each of them able to contribute his legal share of the losses sustained as aforesaid while carrying on said business, except W. IT. Timblin, T. B. Clark, W. W. Christie, W. Wallace Perkins, S. M. Kier, J. N. Wick, R. J. Thompson, Viola McElwain, Elenor Campbell, and M. M. Say, who at present are believed to be insolvent and unable to contribute their shares of the losses aforesaid.</p> <p>Wherefore, your orators pray—</p> <p>1st. That a just and true account be taken of all transactions between the parties to this bill, as well as the items and amounts of indebtedness due from said partnership to the creditors of said firm; and generally, that an account be taken or stated between the partners aforesaid; also one. showing the indebtedness of the firm and the debts due said firm, and from and to whom they are due and owing.</p> <p>2d. That the court decree that the partners above named, viz: Wm. Conway, Robert Campbell, J. W. Christy, A. B. Rhodes, W. J. Breaden, Samuel Russell, W. C. Glenn, J. C. Glenn, W. C. Bryson, IT. C. Linn, David Morrison, A. M. Hutchison, Peter Grace, H. P. Conway and F. M. Campbell, who are responsible, be directed to contribute each according to the number of shares of the stock subscribed and held by them in said bank, a sum which in the aggregate will amount to the entire indebtedness of said co-partnership, and that the contribution shall be a pro rata of the entire indebtedness of said bank on the number of shares held by each responsible stock or shareholder.</p> <p>3d. That the court decree that each stockholder contribute pro rata on the number of shares of stock of said bank held by him, a sum of money which in the aggregate will amount to the entire indebtedness of said firm or partnership.</p> <p>4th. That the court direct the defendants who have refused before the filing of this bill to contribute their share of the losses of said partnership, to pay the costs of this proceeding.</p> <p>5th. To grant such other and further relief in the premises as to the court may seem proper.</p> <p>H. P. Conway, one of defendants, filed an answer, of which, the following is an abstract:</p> <p>1st. That to the best of his knowledge, information and belief, there was a co-partnership formed on or about the date mentioned between the plaintiffs and certain of the defendants named, to carry on the banking business as alleged, but denies that he became a member of said co-partnership at the date mentioned, or any other.</p> <p>2d.' That the partnership in said concern did agree on the amount of the capital stock, the number of shares and the value of each share, as alleged, but denies that he was one of said partners or had anything to do with the agreement, and that he subscribed and became liable for the payment of eight or any other number of shares of stock.</p> <p>3d. That the allegations may or may not be true as to the partnership, but denies that he was a member, or bound by the organization and election mentioned, or by fixing the amount of capital stock, and time they would commence the banking business.</p> <p>4tb. That he knows nothing about the matters alleged in paragraph 4 of plaintiffs’ bill, but believes that they are true, and alleges that the removal of said bank was unauthorized by the stockholders, and contrary to the rules and by-laws said to have been adopted by the co-partnership.</p> <p>5th. That the allegations contained in paragraph 5 of plaintiffs’ bill are true, but that he was not a partner in the business. That the business was entirely too general; was run principally by the plaintiffs, or some of them, as directors and officers in a very unskilful and profligate manner, without regard to rules or by-laws, or the rights of the stockholders or depositors. That the books of the concern are in the possession or under the control of the plaintiffs, or some of them, or of their counsel. And that they are able to furnish a complete statement of the indebtedness, the assets, whether available or not and the loss incurred. That the said losses were incurred by mismanagement of the directors a.nd officers, of whom the plaintiffs were a part, and did most of the business, by permitting loans and over drafts, in violation of the rules and by-laws of the partnership, &c.</p> <p>6th. That the plaintiffs did borrow money from the individuals mentioned as alleged, but denies that it was borrowed for or applied to the payment of depositors who deposited in said bank, especially denying his co-partnership, and that any deposits were made on his account, and alleging that the defendants did not relieve themselves or prevent the obtaining of judgments against them, and that the money was borrowed to pay obligations or deficiencies occasioned by neglect and fraudulent conduct of the directors and officers of said bank. And further that it is not true that all the defendants refuse to contribute to the losses of said co-partnership, or that he is legally liable to contribute. That several suits have been brought against him by the creditors of said co-partnership, in the Court of Common Pleas of Butler county, Pennsylvania, along with others as a member, for an amount in the aggregate of over eight thous- and dollars, and being in excess of his liability if he were liable for all the plaintiffs allege. That he has denied his partnership in said suits by affidavit, and that they are still pending.</p> <p>7th. That the allegations contained in paragraph 7 of plaintiffs' bill are true, but again denies his membership and liability to contribute to the alleged losses of said co-partnership. That the plaintiffs are nor entitled to the relief asked for against him, because they allege no assets in his hands, and allege no fraud nor contemplated fraud, in support of their prayer. That the plaintiffs have not shown themselves entitled to relief in the second prayer. That judgments are now of record in the Court of Common Pleas of Butler county, against the responsible partners in said concern, ■ which are liens on real estate for all or nearly all the indebtedness, ■and that a decree in equity would not make the money any more secure to the creditors.</p> <p>That a complete remedy Being available at law and already secured, the plaintiffs are not entitled to the decree asked in the fourth clause o-f their prayer for relief, but that plaintiffs should pay the costs.</p> <p>This defendant further alleges that certain of the plaintiffs herein named, to wit: J. W. Christy, Robert Campbell, W. C. Glenn, J. 0. Glenn, H. 0. Linn and William' Conway, did on or about the day of December 1874, file their petition in the District Court of the United States, for the Western District of Pennsylvania, at Pittsburgh, praying that themselves and the other defendants be adjudged bankrupts, alleged as members of the said co-partnership called the “Concord Savings Bank.” Whereupon the said court, granted a rule on this defendant, among others, to show cause why the prayer of said petition should not be granted, to which he filed his answer under oath, denying that he was a member of said co-partnership or in any way liable for any of its debts. That issue was joined on said rule and answer, which is still pending in said court.</p> <p>This defendant alleging that he is willing and able to pay all claims against him which are just, or for which he is adjudged liable, asks that the plaintiffs’ bill be dismissed and they be ordered to pay the costs.</p> <p>The case was referred to a master for the purposes stated in the prayers of the bill. Testimony was adduced before the master who made a report to which H. P. Conway filed, inter alia, the following exceptions:</p> <p>1st. The report is incomplete. The reference to the master was general, and included the whole case or none of it. The plaintiffs put in all the testimony they claimed to have upon the whole ca.se. The master has no authority to pass upon the question of fact, except as incident to the equities claimed in the bill without defendant’s consent.</p> <p>2d. The master should have reported explicitly upon the question raised before him on behalf of defendants, and in defendant’s answer as to the rights of plaintiffs to maintain their bill upon the law and facts before him; and should have reported, that plaintiffs are not entitled to a decree in their favor therein in any event, and that their bill should be dismissed.</p> <p>10th. Concluding that IT. P. Conway was a member of said partnership, and owned or took eight shares of stock therein, and became liable and is liable to contribute to pay the losses of the partnership ; and all the conclusions of the master upon the facts and law pertaining to such membership and liability of said defendant.</p> <p>11th. Not reporting that the creditors of the “ Concord Savings Bank” are not prosecuting this suit. That they have a full, complete and adequate remedy at law, for their claims against said partnership; and that, as between H. P. Conway and the plaintiffs, they are not entitled to any contribution from him in any event in this suit.</p> <p>12th. Recommending a decree in the form prescribed; and not reporting, that the necessary parties to enable the court to make a decree at all, have not all been brought into court; and not reporting, that plaintiffs are not entitled to a decree against defendant, and that their bill should be dismissed at their cost.</p> <p>The court, McJunkin, P. J., after argument, without filing any reasons therefor, sustained the exceptions, dismissed the bill and ordered plaintiffs to pay the. costs. From this decree they took this appeal.</p>

<p>1. To set aside a written instrument on the ground of fraud, the evidence thereof must be clear, precise and indisputable, and of that which occurred at the execution of the instrument.</p> <p>2. A jury should not be permitted to find fraud to impeach a settlement in writing on any fancied equity, or on vague, slight or uncertain evidence, although they might think it fairly and fully satisfied them.</p>

<p>Appeal from the Court of Common Pleas of Butler county: Of October and November Term 1876, No. 234. In Equity.</p> <p>Bill in equity filed by W. E. Messimer and D. C. Backus, partners, as Messimer & Backus, against P. A. Templeton, J. Y. Foster and William Templeton.’</p> <p>The following opinion of Bredin, P. J., sufficiently states the cáse:</p> <p>“ The plaintiffs’ hill sets forth nothing that-brings his case within the equity jurisdiction of the court.</p> <p>“ His bill alleges: That Roland Island and A. H. Williams were owners of the undivided one-fourth of a certain lease for oil purposes, and of the engine and other fixtures necessary to a pumping-.well on said lease. That plaintiffs by virtue of a sheriff’s sale became the owners of said interest, but that defendants who are in possession of said lease and well refuse to recognise plaintiffs’ right or account to them for their share of the profits of said well, &c.</p> <p>“ Wherefore they pray:</p> <p>“ That defendants be restrained by injunction from selling any of said property. And ordered to account to them for oil produced since their purchase at sheriff’s sale. And also pray for a receiver to take charge of said well, and for costs.</p> <p>“ This bill could have been safely demurred to for -want of jurisdiction.</p> <p>“ The defendants in their answer admit that plaintiffs became the owners of the undivided eighth belonging to Island, but claim that Williams’s eighth had' before sheriff’s sale been purchased by one of defendants, and belonged to said William Templeton, and they aver their readiness to account for the eighth of the proceeds of the well, and pray that plaintiffs’ bill be dismissed, and for their costs.</p> <p>“ The answer does not aid the bill or supply any of its deficiencies. The case presented on bill and answer is simply the ordinary case of property claimed by one party, plaintiff, in the possession of another party, defendant. The parties stand in no relation to each other that would give us jurisdiction, and there is no complication of accounts or other ground of equitable relief. The bill must therefore be dismissed.</p> <p>“And now, to wit: July 20th 1876, after hearing and argument on exceptions to the report of the master, the. court dismiss plaintiffs’ bill for want of jurisdiction, and direct the "costs, except the costs of defendants’ witnesses, be paid by the plaintiffs.”</p> <p>The plaintiffs took this writ, and alleged that the court erred:</p> <p>1. In.not decreeing Williams’s sale and Templeton’s purchase fraudulent and void as to the plaintiffs. 2. In not decreeing that the plaintiffs took title to the whole undivided one-fourth owned by Island and Williams in said well, &c., by their purchase at sheriff’s sale. 3. In not decreeing that P. A. Templeton and J. Y. Foster account to the plaintiffs. 4. In dismissing the plaintiffs’ bill.</p>

<p>1. A bill in equity prayed “ that the ownership, possession, care and control of said leaseholds, the profits therefrom and the products thereof, be decreed to plaintiff, to the extent of his purchase of the interest of L. therein, and that the possession thereof be surrendered to plaintiff, and the defendants be restrained and enjoined from in any way interfering with or disturbing the same.” Held, that this was an ejectment bill, and should be dismissed.</p> <p>2. The parties to said controversy agreed that in the equity case between the parties and two ejectment suits between the same parties, by consent of counsel, the court should decree an issue to supersede and take the place of the ejectment cases, the determination of said issue to decide the issues of fact, raised in the bill of equity, as to the title of said leaseholds, the costs of the bill in equity to follow the verdict in the issue ordered. Held, that this submission was binding on the parties, and the verdict of the jury was conclusive.</p>

<p>Appeal from the Court of Common Pleas of Butler county: Of October and November Term 1878, No. 54. In Equity.</p> <p>Bill in equity filed by G. G. B. Greenwood, assignee of John T. Perdue, against George S. Long and Mary Ann Long, his wife, by amendment, Mrs. Milinda H. Pennock and Horace A. Pennock, her husband.</p> <p>The account to be taken and stated in this case was of the production of two oil-wells, being No. 1 and No. 2, on a lease taken in the name of John T. Perdue, consisting of eight and one-fourth acres on the Widow Smith farm in Fairview township, Butler county, of the one-half interest in which he was held to be a trustee for Mrs. Mary Ann Long, for her assigns, by a decree of the Supreme Court of this state, made on the 8th of January 1877 (see Long v. Perdue, 2 Norris 214), as well as of the cost and necessary and proper expenses of putting down and operating said wells. After said decree an arrangement was made between the parties by which the plaintiffs have been receiving their proportion of the proceeds of said leasehold, so that the account to be taken by the master ended at the date of January 8th 1877, as to the production.</p> <p>The case was referred to a master who took testimony, and after argument made a report, wherein he, inter alia, said:</p> <p>“ The learned counsel who argued the cause on part of plaintiffs before the master, contended that the defendant, having been found and declared a trustee ex maleficio for plaintiffs, should be charged with the highest price per barrel for the oil that oil reached at any time between the time of its production and the accounting for it; and cited in support of his argument Bank of Montgomery v. Freese, 2 Casey 147 ; Backenstoss v. Stoller’s Admrs. 9 Id. 251; Robinet’s Appeal, Donnelly’s Estate, 12 Id. 189; Hill v. Canfield, 6 P. F. Smith 459 ; Persh v. Quiggle, 7 Id. 255 ; Neiler v. Kelly, 19 Id. 408; Annual United States Digest 1850, 417, sect. 38, and case of Sly v. Lyon, C. Ga. 530, there cited; also, Freeman v. Cook, 6 Ired. 173; Jenkins v. Cornier, 26 Ala. 212; Caison v. Ernst, 9 Harris 90, and Sedgwick on Measure of Damages, sect. 475, &c.</p> <p>“ On the other hand, it was contended on the part of the defendant, that he should only be charged with the prices received by him for the oil sold, and interest thereon after deducting credits to which he is entitled; the proof being that he had sold the oil in good faith for the best prices he could get in the market at the dates of his several sales as reported.</p> <p>“ The plaintiffs having disputed the prices reported by defendant, it was agreed that the master should go with the parties or their solicitors to Oil City, and take such testimony as might there be offered on part of plaintiffs as to the market-price of oil on the several days on which defendant alleged he had made sales of oil. This was done, and the quotations of the Oil City Derrick, of the highest and lowest prices of oil sold on the dates mentioned, with the testimony of witnesses as to the correctness of those quotations, were taken, and are found with the other testimony herewith returned. Afterwards, upon the plaintiffs’ theory of the case, and at their request, it was agreed that the master should return to Oil City, and take from the files of the Oil City Derrick, the quotations of the highest and lowest prices of oil per barrel for each and every day from December 12th 1872, until January 8th 1877, which he did, and said quotations are returned with the testimony herein. * * *</p> <p>“ After careful consideration of the testimony and proofs, the master has concluded that a just and proper measure of damages in this case will be adopted by charging the defendant with the highest market-value of each run of oil on the day it is run, and interest from such date. The prices are obtained from the quotation from the Oil City Derrick, and are the prices that the master was satisfied do not include pipeage.”</p> <p>Exceptions were filed to this report, which the court, McJunkin, P. J., overruled, when defendant took this writ, and, inter alia, made the following assignments of error:</p> <p>2d. The court erred in overruling the defendants’ second exception to the report of the master, which was as follows:</p> <p>The master erred in adopting as the measure of damages the highest price at which oil was sold on the day that each run of oil was made from the wells into the pipe-line. The price of the oil should have been fixed or charged to the defendant at the price he actually received, which is fully shown by the testimony, with interest from that date, after deducting proper credits.</p> <p>3d. The court erred in overruling the defendant’s third exception to the report of the master, which was as follows:</p> <p>The master erred in receiving as testimony and basing his conclusion upon quotations of prices from the Oil City Derrick, of oil for each day for the time oil was run from these wells, as the evidence was objected to, and incompetent and unreliable. This and any other testimony taken by the master was not such evidence as he could, with reasonable certainty, find the highest and lowest prices of oil on the days mentioned. The master states “the prices are obtained from the quotations from the Oil City Derrick,” in all of which he erred. The defendant should have been charged alone for the price which he received for the oil.</p> <p>27th. The court erred in continuing to exercise jurisdiction, make orders and decrees in this case after the appellant, John T. Perdue, was declared a bankrupt, to wit: December 11th 1877.</p>

<p>Appeal from the Court of Common Pleas of Butler county: of October and November Term 1878, No. 91.</p> <p>Appeal of Esther Hutchinson from the decree of the court overruling her exceptions to the report of the auditor to distribute the fund arising from the sheriff’s sale of the real estate of W. A. Black.</p> <p>Rev. William A. Black and M. H. Black., his wife, on the 2Sd of August 1875, made their joint judgment-note to Esther Hutchinson for $717, due in one year. On the same day judgment was entered on this note in Butler county, at October Term 1875, but by mistake the middle initial “ A ” was omitted and the letter “ G ” inserted in its place, and the judgment was entered as against “ W. G. Black.” At the time this judgment was entered, judgments were entered against W. A. Black, which, at the time of the sale of his real estate, amounted to about $2400.</p> <p>Mr. Black’s real estate was sold by the sheriff of Butler county on October 1st 1877, to Mrs. Hutchinson for $4600. Several judgments were entered subsequent to Mrs. Hutchinson’s, more in all than the fund realized by the sheriff on the sale of the land. All the judgments, except Mrs. Hutchinson’s, were entered against W. A. Black.</p> <p>An auditor was appointed to make distribution, and after a hearing of the matter made a report, allowed no part of the fund to be applied to the payment of Mrs. Hutchinson’s judgment, and gave as a reason that the_ judgment was entered against W. G. Black and not against W. Á. Black.</p> <p>Mrs. Hutchinson excepted to the report, but the court, Bredin,. P. J., overruled her exceptions and confirmed the report. From this decree this appeal was taken.</p>

306. Debt on a bond by the Commonwealth for the use of G. H. Graham, committee of Mrs. Elizabeth McCleary, a lunatic, against J. J. McCleary and George C. Conway. Elizabeth McCleary was declared a lunatic, and her son, J. J. McCleary was appointed her committee on August 15th 1870, and qualified and assumed the duties of the trust.

298. Appeal of Jane Neil from the decree of the court confirming the report of the auditor appointed to distribute the estate of her husband, Samuel J. Neil, deceased. Samuel J. Neil was the illegitimate son of Hannah Thompson. He died in the year L876, seised of a tract of land, intestate, without issue, and left surviving him his mother, Hannah Thompson, and a widow, Jane Neil.

<p>S. assigned for the benefit of his creditors all his estate, real, personal and mixed. At the date of the assignment he was entitled to a legacy from a certain estate. Among the assets collected by the assignee was a portion of this legacy. The assignee filed his account, including this amount, and his report was confirmed, and an auditor appointed to distribute the fund among creditors. Before the auditor M. claimed the amount collected from the legacy by virtue of a prior agreement with S., made before his assignment, by which the money from the legacy was to be appropriated, as soon as collected, to the payment of two notes held by a certain bank upon which M. was surety. This claim the auditor and court allowed. Held, that this was error; that the fund in court was, by the decree of the court, appropriated to creditors, and the auditor was ordered to distribute it to them, and he had no authority to pass upon the rights of an adverse claimant and award any portion of the fund to him. Held, further, that the agreement did not constitute an equitable assignment of the legacy; that it was only an agreement of the debtor to appropriate the proceeds in relief of his surety, hut no such direct appropriation of the claim itself to the surety as would authorize a direct payment to him.</p>

<p>1. Where a judgment-creditor waives his right to a fund arising from a sale on a subsequent judgment, he does not thereby prejudice his right to claim a fund arising from a sale of other property of the debtor upon another subsequent judgment.</p> <p>2. If there are any equities to compel the prior lien-creditor to recover satisfaction from any particular'fund, the subsequent creditor must notify him thereof, for a prior creditor is not bound to know of the existence of any subsequent encumbrances.</p>

195. Appeal of Matilda Montgomery from the decree of the court dismissing the exceptions to and confirming the report of the auditor appointed to distribute the fund in the hands of the assignee of A. •J. Montgomery. On June 27th 1876, A. J. Montgomery, made a voluntary assignment of all his property to Dr. John VY. Kelly, in trust for the benefit of his creditors.

84. Ejectment by Samuel Wilson and others against Alexander Gaston and others, for a tract of seventy-one acres of land. The facts are sufficiently stated in the opinion of this court.

<p>1. A prosecutrix swore on cross-examination that she did not testify to certain facts when before the grand jury. The defendant called the foreman of the grand jury to prove what she actually did testify. The court excluded him on the ground of public policy. Held, that this was error, and he was competent to so testify.</p> <p>2. On no sound principle can it be 'said that a witness who has testified before a grand jury shall be permitted to claim that his evidence was a privileged communication, so that it shall not be shown, under the direction of the court, whenever it becomes material in the administration of justice. It is material when the evidence is necessary to protect public or private rights.</p>

<p>Appeal from the'Court of Common Pleas of Washington county: Of October and November Term 1879, No. 277.</p> <p>Chauncy Beach, of Monongahela city, Washington county, Pennsylvania, died testate on the 19th day of May 1870. At the time of his death he was a member of the firm of Foster, Blythe & Co., and engaged in the lumber business, building boats, furnishing materials for buildings, &c. The firm owned, beside their stock in trade, tools, &c., a large amount of real estate on which their mills were erected, or used as lumber yards, &c. The title to the larger part of this real estate was in the firm, but some of it was in the members of the firm as tenants in common. By his will, Chauncy Beach gave all his property, real and personal, to the children of his son, Charles E. Beach. In the third clause he makes provision for his daughter Cordelia, in case she came to want. In the fourth clause he appoints Charles guardian of his own children and custodian of their property. In the fifth clause Charles is authorized, in case of sickness or inability to provide for himself and family, to use the property for that purpose. He is also authorized to invest the property in business or otherwise, as he may think best for the estate.</p> <p>In the last clause he appoints Charles E. Beach and George T. Scott, executors,'and authorizes them or the survivor to make, sign, seal, deliver acknowledge any deed or deeds, or other writing that may be necessary to carry out the intent and meaning of the said will. C. E. Beach alone took out letters testamentary on the will.</p> <p>After the death of Chauncy Beach, his son Charles E. Beach continued the investment of his father’s estate in the firm of Foster, Blythe & Co., until the 13th day of April 1876, when he entered into an agreement with James Neel, one of the other members of the firm of Foster, Blythe & Co., to sell the interest of the said Chauncy Beach in the firm property, it being an undivided one-fourth of all the real and personal property. The agreement was consummated. James Neel gave judgment notes, which were entered as a lien in the prothonotary’s office for the deferred payments, and received a deed dated April 13th 1876, acknowledged May 16th 1876, for all the interest of Chauncy Beach in the real estate, including that held by the partners in common. This deed was executed by “ C. E. Beach for himself and as executor of C. Beach, deceased,” and by Elizabeth Beach, his wife, in consideration of the sum of $8225. After the consummation of the agreement and the delivery of the said deed on the 17th day of April 1877, George T. Scott, the co-executor named in the will, filed his renunciation in the register’s office. On the 21st day of April 1877, three days after the filing of the renunciation of George T. Scott, C. E. Beach caused a writ of fieri facias to be issued on judgment No. 56, August Term 1876, it being one of the judgments for purchase-money already mentioned, and the property of James Neel was levied upon. James Neel then presented his petition to the Court of Common Pleas of Washington county, setting forth the facts, claiming that the deed of April 13th 1876, did not convey him a good title, and that the execution of the said deed was not a valid execution of the power in the will. The petitioner also offered to reconvey the property on repayment of the money already advanced on the contract. On this petition the execution was stayed and a rule granted on C. E. Beach to appear and answer. The petition was afterwards amended to embrace a prayer to open the judgment and let the defendant into a defence. To this petition 0. E. Beach filed an answer, setting forth the will, the renunciation of George T. Scott, the article of agreement and contract in full, and adding an offer to correct any informality the court might think there was in the deed.</p> <p>There were substantially three questions raised upon the argument in the court below :</p> <p>1st. Did the renunciation of George T. Scott, filed April 17th 1877, validate the deed of C. E. Beach, executed the year before '!</p> <p>2d. Was the partnership real estate to be considered in law as personal estate, in such a sense as to render a formal deed by the persons authorized in the will unnecessary ?</p> <p>3d. Was there sufficient authority granted in the will to C. E. Beach alone to execute a deed ?</p> <p>The first point the court below decided adversely to the plaintiff below, saying: “Looking then at the deed as a conveyance by one of two executors empowed by will to execute such, it must be regarded in the light of Heron v. Hoffner, 3 Rawle 393, as a defective execution of the power, and therefore passing no title to the defendant.”</p> <p>The second point was decided the same way, the court holding that the legal title, “ though held as partnership property, must nevertheless pass by proper and legal conveyance.”</p> <p>The third question was decided in favor of the plaintiff below, the court holding that the fifth clause of’ the will standing alone, which authorized Charles to “invest my property in business,” conferred ample power upon him to sell, transfer and convey all the property, real and personal; and that th.e direction of the testator in the last section, to the executors, to make deeds, &c., did not abridge the power already given to his son Charles, in the section immediately preceding.</p> <p>The court then discharged the rule at the costs of the petitioner.</p> <p>Neel took this appeal and alleged that the court erred,</p> <p>1. In ruling that “ the sale and conveyance by Charles to the defendant, James Neel, was valid and passed a good title to the testator’s interest in the real and personal assets of Foster, Blythe & Co.” 2. In ruling that the “5th section of the. will confers ample powers upon Charles E. Beach to sell, transfer and convey any and all of the property, real and personal, of which he was made trustee or custodian.” 3. In ruling that the power given to the executors in the last clause of the will did not “ abridge the power already given to his son Charles in the section immediately preceding.” 4. In refusing the petitioner the relief prayed for in his petition. 5. In discharging the rule to open the judgment.</p>

318. Assumpsit by Levi Johnston against N. Q. Speer, on two notes, of. which the following is a copy : $583.48. Belle Vernon, Pa., Aug. 27, 1877.

<p>The Pennsylvania Reform School is a public institution and the buildings thereof are not the subject of a mechanic’s lien.</p>

<p>Error to the Court of Common Pleas of Gfreene county: Of October and November Term 1879, No. 188.</p> <p>Trespass vi et a/rmis by Maria Jane Strosnider and Ida M., Harriet and John Henry Strosnider, by their guardian, James P. Cos-gray, against Washington Stephens, for mesne profits.</p> <p>On April 13th 1871, John A. Strosnider purchased from Whlliam Nixon, by articles of agreement, 100 acres of land in Greene county for $400, of which sum, $200 were to be paid April 1st 1872, when possession was to be given, and $200 without interest on April 1st 1873. On April 1st 1872 Strosnider went to the house on the lands where Nixon had lived, with $200 in legal tender money, to pay the instalment due on that day, but found the premises in possession of one Jones, Nixon having removed to an adjoining county. Jones was the tenant of Stephens, who claimed to have purchased from Nixon by virtue of articles of agreement dated February 20th 1870. On April 2d 1872, Strosnider brought ejectment for the premises. Pending the suit he died, and his children, the plaintiffs, were substituted in his stead. On April 1st 1873, the executor of the decedent went to the house on the premises, to pay the instalment of $200 due on that day. On the trial of the cause, the plaintiffs paid into court the $400, the full consideration for the land under the articles of agreement, and the jury returned a verdict in their favor for the land described in the writ, with six cents damages and costs. On January 25th 1875, judgment was entered on this verdict, and on March 17th following, Stephens took out a writ of error to this court. This writ was non-prossed, and on July 12th 1877 an alias writ of error was filed, and on April 9th 1839 still another writ of error. A writ of habere facias issued and the plaintiffs were given possession of the premises on June 3d 1877-, and on June 6th 1877, they brought this action for mesne profits.</p> <p>At the trial before Willson, P. J., the plaintiffs offered evidence to show the payment or tender of the consideration-money mentioned in the articles of agreement, which the court, under objection, admitted.</p> <p>The defendant submitted the following points, to which are appended the answers of the court:</p> <p>1. That the judgment and all proceedings had in this court in the ejectment case at April term 1872, upon which the present action is based, having been removed into the Supreme Court, by writ of error filed, and the same not having been heard or determined by that court, this suit cannot now be maintained.</p> <p>Ans. “ Refused.”</p> <p>2. That the verdict and judgment in the ejectment at April term 1872, being in effect, upon condition that the plaintiffs pay to the defendant the sum of $400, the plaintiffs cannot now recover from the same defendant in an action of trespass for the mesne profits of the land.</p> <p>Ans. “ Refused. If the jury find that Strosnider had tendered the purchase-money coming to Nixon, according to the article of agreement between Nixon and Strosnider, and that said tender had been kept up until, said money was paid into court, then the plaintiffs are entitled to recover from the date of the bringing of the action of ejectment; but if said tender was not made and kept up, then the plaintiffs can only recover from the date of the verdict in said action.”</p> <p>3. That the plaintiffs cannot recover for the mesne profits of the land prior to October 22d 1874, when the record at April term 1872, shows that the plaintiffs paid into court for the defendant, the sum of $400.</p> <p>Ans. “ This is correct, unless a tender was made and kept up, as stated in answer to 2d point.”</p> <p>4. That under all the evidence in the case, the plaintiffs are not entitled to recover.</p> <p>Ans. “ Refused.”</p> <p>The verdict was for plaintiffs for $472, and after judgment thereon, defendant took this writ and alleged, that the court erred in the admission of the evidence above mentioned, and in the answers to defendant’s points.</p>

<p>1. A judgment entered on a bond conditioned that the obligor will pay to the obligee the sum of all notes, checks, drafts and obligations of every kind or nature which B. has incurred or assumed, or may hereafter incur or assume, to a certain bank, is a lien for future advances as against intervening encumbrances only from the date of such future advances, and not from the date of the judgment.</p> <p>2. The Bank of Montgomery’s Appeal, 12 Casey 120, followed.</p>

<p>Appeal from the Court of Common Pleas of Butler county: Of October and November Term 1879, No. 96.</p> <p>Appeal of E. M. Bredin, Jr., and others, from a decree of the court refusing to open a judgment entered against them on a warrant of attorney, and to let them into a defence.</p> <p>A. W. McCullough and P. Dorsey were oil speculators and producers. In 1875, McCullough borrowed from Dorsey 1000 barrels of oil. As security therefor, he gave Dorsey a check on the Citizens’ Bank of East Brady for $2000, in which it was written, that the bank held 1000 barrels of oil as collateral for the c.heck. This check was not to be presented nor otherwise used during the continuance of the loan. The check was endorsed, “ Good, J. Y. Foster, cashier.” This indorsement and signature of Foster was alleged to have been forged by McCullough; and for this, Dorsey made an information against McCullough for forgery. McCullough was arrested, and indicted by the grand jury of Butler county, for forgery, in January 1878. A jury was empanelled, and a verdict of not guilty entered on the issue joined.</p> <p>The verdict was the result of an arrangement previously made by Dorsey, the prosecutor, and the appellant, the brother-in-law of McCullough, by which, in consideration of McCullough’s securing $2800 to Dorsey by anote, the latter agreed not to appear as a witness against McCullough, and to keep back all other witnesses, and thus insure a verdict in favor of McCullough. This was carried out. Neither Dorsey nor any other witness appeared to testify. Upon the rendition of the verdict, the note of the defendants, in pursuance of such arrangement, was handed over to Dorsey, who accepted it as the consideration for suppressing the prosecution.</p> <p>Dorsey entered judgment on the note, by virtue of the warrant of attorney, to September term 1878, and issued an execution thereon. The defendants therein then presented a petition to the court, setting out in detail the history of the transaction, alleging, that the giving- of the note was against the policy of the law, fraudulent and void, and asking the court to open the judgment, let them into a defence, &c. A rule was granted to show cause why the relief prayed for should not be granted, and depositions were taken by both parties.</p> <p>The court, Bredin, J., refused to open the judgment, in an opinion, inter alia, saying:</p> <p>“ The evidence-is, that McCullough gave to Dorsey, as collateral security for the loan of 1000 barrels of oil, a check on the East Brady Savings Bank for $2000, purporting to be certified as “good ” by J. Y. Foster, as cashier of said bank. The oil was not returned by McCullough, and the check went to protest. The bank refused to pay, alleging that the acceptance was 'a forgery, and that if genuine, it was beyond the power of the cashier. The latter position was sustained by the Supreme Court. Dorsey having then no recourse except on McCullough, who was insolvent, indicted him for forgery, evidently as a means towards securing the debt. Dorsey claimed that McCullough owed him about $2300; McCullough admits some $1400 or $1500; but the great fluctuations in the price of oil. and the difference it would make if the oil was estimated at the price when borrowed by McCullough, or at the price when Dorsey asked its return, give room for a considerable difference in the views of the creditor and debtor, without injuring the honesty of either. We have no evidence that Dorsey used the prosecution to extort from defendants a note for one dollar more than he believed to be honestly due him from McCullough, or that he used any fraud or misrepresentation in the matter. The defendants therefore must rest their application entirely on the grounds, that part of the consideration of the note on which judgment was confessed, was the settlement and stifling of the criminal prosecution, and that, being against public policy, renders the note void. If this was a suit on a note or bond, the defence could be set up, ‘A& turpi causa non oritus actio.' But here the defendants are the actors, they apply to open a judgment and restrain an execution. In this attempt they are met by the maxims: ‘ In pari delicto melior est conditio possidentis,’ and ‘Nemo allegans suam twrpitudinem audiendus est.’ There are cases, indeed (such as attempts to poison the fountains of justice, and others), where the public interests demand the overthrow and exposure of the scheme, that the particeps criminis may be used for that purpose. But this is not such a case, and the agreement being executed not executory, defendants are without remedy. The practice which has grown up in this and other counties in the western part of this state, of making use of judgment notes in lieu of promissory notes, for vendue notes, for discount paper in bank, and. indeed for all ordinary business transactions,-must if such practice becomes general over the state, lead the courts or the legislature to relax the rules as to defences thereto. But as yet ‘ There is no difference in legal effect between a judgment confessed, and a judgment on a verdict of a jury Hopkins v. West, 2 Norris 109. A judgment is an executed contract. “ So long as a contract continues executory it may not only be impeached for fraud or mistake, but'any illegality which would be a defence at law, would in general be ground for cancellation in equity; as for instance, the illegality of contracts for gaming or smuggling, or aiding prosecution for compounding a felony or for paying usury. But a contract already executed, cannot be set aside as illegal or immoral, and nothing but fraud or palpable mistake is ground for rescinding an executed conveyance:" Nace v. Boyer, 6 Casey 110. See also Hershey v. Weiting, 14 Wright 245; Blystone v. Blystone, 1 P. F. Smith 375, and Steinbaker v. Wilson & Young, 1 Leg. Gazette R. 76. Rule discharged.”</p> <p>The defendants in the judgment then took this appeal and alleged, that the court erred in refusing to open the judgment.</p>

<p>"here a woman anout to marry, m an ante-nuptial contract, “ relinquishes all right of dower, and all interest of any kind whatsoever to which she might be entitled in the estate of “ her intended husband” “ by reason of her marriage,” she waives her right to §300 of her husband’s estate under the Act of April 14th 1851.</p> <p>2. Dillinger’s Appeal, 11 Casey 357, followed.</p>

<p>1. A will contained the following clause; “ To my beloved wife P. (so long as she remains my widow) I give all the income of the home farm, on which I now live, containing two hundred acres, more or less, with all the tenements and appurtenances belonging thereto, together with all the products arising therefrom ; also, the mansion house in which I live, together with all belonging to it, and all that is in it, or about it, I give to my beloved wife P., the same to be hers and to belong to her for ever.” Held, that the widow had a life-estate in the realty, limited further by the duration of her widowhood, and that she took the personalty absolutely.</p> <p>2. The income and profits having been limited to the duration of the widowhood, her estate in the land was limited to the same period of time. She took an estate for life, because it might possibly last for life ; bu-t liable to be determined sooner on the happening of the contingency of her marriage.</p>

<p>Appeal from the Court of Common Pleas of Washington county: Of October and November Term 1879, No. 236.</p> <p>Appeal of George T. Work, sheriff, from the decree of the court directing him to pay Elizabeth Ilowden $200 out of the proceeds of the sale of the goods of David Shanor.</p> <p>On 1st October 1877, James M. Miller caused a fi. fa. to issue on a judgment which he had obtained against David Shanor and another. This process was returnable to the second Monday of October; the second Monday being the eighth day of that month. In the execution of this writ, the appellant levied upon personalty of Shanor. The levy was made on 3d October 1877, by a deputy-sheriff, who immediately thereafter informed the plaintiff that the defendant, before the levy was made, had advertised a public vendue of the property. The plaintiff and defendant then had an interview, and the result of their conference, was the conclusion that the property would sell to better advantage at the proposed vendue, than at sheriff’s sale. Miller at once notified the sheriff that under the circumstances he deemed it best to permit Shanor himself to sell the property (he, Shanor having agreed to apply the proceeds to his claim), and directed him not to advertise a sale. In consequence of this direction, the sheriff (having no other claims against Shanor in his hands), took no further action, “for the reason that he thought he had nothing more to do with the writ but receive the costs.”</p> <p>On 10th October 1877, Shanor, with Miller’s assent, sold the property upon which the 'levy had been made, at public sale, the proceeds, or the greater part of them, being then handed to Miller to be applied to his claim against Shanor.</p> <p>On the 13th of that month, five days.after the return-day of the writ, and three days after the consummation of Shanor’s sale, and the reception of the proceeds by Miller, the appellee notified the sheriff that Shanor’s goods, which had been levied upon under Miller’s writ, were liable to a distress by her for one year’s rent, due 1st September 1877, and requiring him to pay her “ out of the proceeds of sale,” the amount of rent due, to wit: $200.</p> <p>As the sheriff had not received any part of such proceeds he did not comply with this demand.</p> <p>On May 7th 1878, Elizabeth Ilowden petitioned the court, setting forth that she has a life-estate in certain lands, which, at the date of the issuance of the execution, to wit: October 1st 1877, were held by David Shanor, defendant, under lease from her; that there was due her from said Shanor, $200 of rent, on 1st September 1877 ; that the personalty levied upon by the sheriff under the fi. fa. was on the demised premises, and liable to be distrained by her for said rent; that on 13th October 1877, the property levied not having been sold by the sheriff, she gave him notice of her claim; and that no part of said rent had been paid her.</p> <p>The court granted the petitioner a rule upon the sheriff to show cause why he should not pay her the rent demanded in said notice, and on the 21st of May 1878 the sheriff made answer that he knew nothing as to the petitioner’s right to receive rent from Shanor; that a levy was made on personalty, probably upon the demised premises, belonging to Shanor; that he did nothing in execution of his writ other than to make the levy, because after levy made, he was directed by the plaintiff not to advertise a sale; as he (plaintiff) had concluded to let the defendant sell the property which had been levied on, at public vendue; that as he then had no other process in his hands against Shanor, he regarded the direction not to advertise, and the reason assigned therefor, as a stay of the writ; that his information was, that on 10th October 1877, the property levied upon, had been sold at public sale by the defendant himself, with the assent of the plaintiff; and that the proceeds of such sale, were transferred by Shanor to Miller.</p> <p>On July 9th 1879 the court, Hart, P. J., made the rule absolute, in an opinion saying:</p> <p>“ That the writ of fi. fa. was not stayed by the plaintiff is evident from the sheriff’s own statement of the facts, that after having made the levy he received a notice, or instruction, from the plaintiff, not to advertise, as he (the plaintiff) believed ‘ a larger price could be realized if the defendant himself was permitted to make the sale.’ It is plain, that at any time before the sale by the defendant, the plaintiff could have withdrawn the instructions given to the sheriff, and directed him to proceed with the execution. There was, therefore, no final and peremptory stay of the writ. It follows, that the sheriff having seized the defendant's goods, and afterwards allowed him to sell them and appropriate the proceeds as he saw fit, must be held, in law and equity, accountable to the landlady, as though he had himself sold the property levied, and realized therefrom a sum sufficient to satisfy her claim.”</p> <p>From the decree of the court, making the rule absolute, the sheriff took this appeal.</p>

76. This suit was originally brought by David L. Cowell against Jacob Shriver, before a justice of the peace, to recover the sum of $28.84, the amount of school tax alleged to have been levied against the defendant in Whiteley township, Greene county, Pennsylvania, for the year 1875, and paid by the plaintiff for the defendant. The justice having entered a judgment against the defendant by default, the case was removed by appeal to the Common Pleas.

<p>Appeals from the Orphans’ Court of Fayette county: Of October and November Term 1879, Nos. 830 and 363.</p> <p>Appeals of Everard Bierer and others, executors and devisees of Everhart Bierer, deceased, from the decree of the court dismissing the exceptions of said executors and devisees to the report of the auditor appointed to report upon exceptions to the final and partial account of said executors, and confirming said report.</p> <p>Also the appeal of Ruth Bierer from the same decree of said court.</p> <p>The material facts are stated in the opinion of this court.</p>

<p>Appeal from the Court of Common Pleas of Qrawford county : Of October and November Term 1879, No. 20.</p> <p>Appeal of Guthrie & Byles, trustees, from the decree of the court in the matter of the petition of George Pitchford and others, for a citation to said Guthrie & Byles to account.</p> <p>On the 14th day of July 1874, John Dillingham, treasurer of the Titusville Manufacturing Company, assigned to Messrs. Guthrie & Byles, accounts or claims in favor of said company against Porter, Moreland k Co., Woods, Johnson & Co., and Ealph Dawson. At the time the assignment was made Mr. Dillingham informed Messrs. Guthrie & Byles of the amounts that were due upon these several accounts, and instructed them to apply the proceeds, when collected, to the payment of the following claims against said company, and in the following order, to wit: 1st, a claim in favor of Julius Byles, $244.44; 2d, a claim in favor of Guthrie & Byles of $400, and the balance, if any, to the payment of such laborers as the book-keeper would direct and identify, and in accordance with statements to be furnished by him.</p> <p>Messrs. Guthrie & Byles accepted the assignment for these purposes, and upon these terms and conditions. At the time the assignment was made the exact amount due upon these accounts was uncertain, but upon settlement there was ascertained to be due from Woods, Johnson &. Co., the sum of $1476.19, of which Guthrie k Byles collected the sum of $600, and from Porter, Moreland & Co., the sum of $2319.67, of which Guthrie & Byles collected $600. The Dawson claim is in litigation, and is wholly uncollected. All the money collected by Guthrie k Byles was paid over to the laborers as directed by the book-keeper. This was done in two payments, July 31st, and August 29th 1874. As Guthrie k Byles were unable to collect enough to pay the laborers who were designated, Mr. D. H. Mitchell advanced to them for this purpose $2516.74, on condition that they would refund him that amount when they would collect it from the claims in their hands. Guthrie & Byles, on the 31st of July, and 29th of August, thus paid to these laborers, under the direction of Mr. Dillingham and the book-keeper, the sum of' $3616.74. The balance of the claim of Woods, Johnson and Co., after dedueting the amount paid Guthrie & Byles, was afterwards attached. Mr. Mitchell gave them an indemnifying bond and received from them this balance, which he applied to the repayment of the advances he had made. The amount which Mitchell thus received from Woods, Johnson & Co., was $876.19.</p> <p>On the day Mr. Dillingham assigned these accounts the following resolution was entered on the books of the company, to-wit:</p> <p>“ Resolved, that the treasurer place in the hands of Guthrie & Byles, bills, as follows:</p> <p>Porter, Moreland & Co. . . . . $ 2000</p> <p>Woods, Johnson & Co. .... 2800</p> <p>Walph Dawson .... 3606</p> <p>$8400</p> <p>to be collected and paid to the employees of the company for work and labor due to them.”</p> <p>The auditor found that Mr. Guthrie was absent when the assignments were made, and that Mr. Byles did not know of the passage of the above resolution until after the commencement of the proceedings in this case. It was proved that the general duties of the treasurer was to receive and disburse the moneys and assets in the management of the business. Mr. "Dillingham, the treasurer, made the assignment. At the time he had made the assignment he gave Mr. Byles instructions how to disburse the proceeds of the accounts, and Messrs. Guthrie & Byles did disburse the money received by them as instructed. At no time prior to the commencement of these proceedings had they any knowledge that any different disposition of this money was ever intended or desired by any one.</p> <p>The petitioners alleged that they were employees of the company at the time the assignment was made, and that by the terms of the resolution mentioned above, as it appears in the books of the company, Messrs. Guthrie & Byles held the money received from these accounts in trust for them and all the other employees, and that they should receive their pro rata share of the money. The respondents alleged that the resolution mentioned does not create them trustees for any one, that these accounts were assigned to them for a certain specific trust, and that the petitioners are in no way interested in it.</p> <p>The court overruled the respondent’s exceptions to the report of the auditor, and made the following decree :</p> <p>“January 11th 1876, on hearing and due consideration it is ordered and decreed that the respondents render an account of the trust alleged in the petition, and Wm. S. Morris, Esq., is appointed to state the said account, charging the respondents with all money made out of the said trust, or that with due diligence ought to have been made by them, or either of them, and also finding and reporting who are the persons entitled to share in the said trust and in what proportion they are so ; what amounts have been paid to them respectively, and what amounts remain to be paid to each of them out of said trust, after making to the respondents all proper allowances for their expenses and charges in the management thereof.”</p> <p>From this decree’this appeal was taken.</p>

<p>1. In a proceeding to levy and sell upon an execution issued upon a judgment against a member of a firm for his private debt, his interest in said firm, the directions of the Act of April 8th 1873, Pamph. L. 65, must be conformed to and the fieri facias must be a special writ commanding the sheriff to sell the special interest referred to.</p> <p>2. Hare v. Commonwealth, to use, of Porterfield & Co., ante, p., 141, followed.</p>

<p>Error to the Court of Common Pleas of Fayette county: Of October and" November Term 1877, No. 289.</p> <p>Case by Daniel Sentmeyer and Susan Sentmeyer, his wife, against the Pittsburgh & Connellsville Railroad Company, to recover damages for the death of their son, alleged to have been killed by the negligence of defendants. The son of the plaintiffs, a young man about sixteen years old, was employed as a hrakeman on a freight train of the defendant company. While thus employed, On the 26th of March 1872, he was knocked or fell off the top of a freight car and was killed, under the following circumstances : A train of empty cars, coming from Brinton to the coke works below Connellsville, was divided into two sections, one running some time behind the other. Sentmeyer was flagman on the first section, an.d for some cause (which did not appear) was directed to get off and go back and flag the section which was behind. He did so, and ■when it started he got on the engine of this section to ride until he overtook his own train. This was some twenty miles below ■where the accident occurred. On this section he had nothing to do but to remain on the engine until he reached his own section. At the place he was killed, there were coke ovens near the upper side of the railroad, from which had been built, many years before, a narrow bridge or gangway, running over the railroad, something over fifteen feet high, on which the ashes from the coke ovens were w'heeled over to get them out of the way. Before the train came to this gangway, Sentmeyer left the engine on which he was, and passed upon and over the top of the cars, for some purpose unknown, and in passing under this gangway was knocked off and killed, and for the loss of his life under these circumstances his parents brought this suit. He had been in the employ of the company about a year.</p> <p>On the trial the defendants having proved that the only place Sentmeyer had a right to be, on that section of the train, was on the engine, claimed that having left that place of his own accord, and gone where he had no business and had no right to be, the plaintiffs were not entitled to recover.</p> <p>The following were among the points of plaintiffs, all of which the court affirmed:</p> <p>1. That by entering defendants’ service, George W. Sentmeyer assumed only the ordinary and reasonable risks incident to such service; and if .the jury believe from the evidence that it was required of employees of the company, of the same class as Sentmeyer, and was usual and customary for them, to be on the top of freight and stock cars while in motion, and that defendant permitted a bridge to be erected and maintained over its track of a height insufficient to allow the safe passage of persons while on the top of such freight or stock cars, and that while on the top of such cars Sentmeyer was knocked off and killed, while in the service of the company; they may find that the death of Sentmeyer was caused by such negligence of the company, as would make it liable to the plaintiffs in damages therefor.</p> <p>8. That Sentmeyer had the right to assume that if the company required other employees of the same class to be on top of the freight cars while in motion, they could be there without being exposed to danger to their lives, and they may find that if he, while in the service of the company, went only where other employees of the same class were required to go habitually, and was killed while there, by coming in collision with a bridge which the company allowed to be kept and maintained there of insufficient height to allow the safe passage of persons in such a place, he was not guilt of such contributory negligence as would relieve the company from responsibility for his death.</p> <p>6. That before Sentmeyer can be fixed with contributory negligence it must have been shown that he was in fault in doing what he did; that he was not innocent but was incautious; and if the jury believe that he went only where other employees of the same class went and were required to go, and did no more than they did, they may find that he was not in fault nor incautious, but innocent.</p> <p>7. That before the jury can find that Sentmeyer was guilty of contributory negligence by being out of his place, they must be satisfied from the evidence that there was a certain place for him by the rules of the company; and evidence that flagmen, taken up like he was, usually rode on the engine, and that his death occurred while he was in another place where other employees of the same class were required to be, is not of itself sufficient to charge him with contributory negligence.</p> <p>8. That if Sentmeyer was out of his place, he is not chargeable with contributory negligence by reason thereof, unless he was guilty of actual negligence by being wAiere he was.</p> <p>The following were among the points submitted by defendants, with the answer of the court thereto:</p> <p>6. That if the jury believe that George W. Sentmeyer was a flagman, and that his position as such was on the engine of the train or section on which he was at the time of the supposed accident, and that he left the engine and passed over the top of the cars, he left his position and was out of the line of his duty and it was at his own risk, and the accident was caused by his own negligence, and the plaintiffs cannot recover.</p> <p>Ans. “Refused.”</p> <p>7. That the defendant corporation having had the bridge complained of in this case constructed of sufficient height, it is not liable to an employee for injury, when the sinking of the bridge, if any such there was, was not apparent, and of which it had no notice. •</p> <p>Ans. “Refused. We cannot say that the bridge was constructed of sufficient height; that is a question for the jury.”</p> <p>8. That George W. Sentmeyer, the deceased, having been in the employ of the defendant company for many months, runnizig on the road as a brakeman, had every opportunity of informing himself of the position and height of this bridge, and danger arising therefrom was clearly incident to the labor he undertook to perform. Therefore the plaintiffs cannot recover.</p> <p>Ans. “If the jury, find that deceased had every opportunity of informing himself of the position and height of the bridge, then the point is affii-med; otherwise it is refused.”</p> <p>Verdict for plaintiffs for $2351.38, and after judgment defendants took this writ assigning for error, inter alia, the answers to the above points.</p>

134. Ejectment by Silas Wheeler against James B. Paige and Ezra Cooper for sixty acres of land. At the trial defendants offered in evidence deed from James B. Paige and wife to Silas Wheeler, dated December 11th 1871; acknowledged same date; recorded in Deed Book “A,” No. 4, p. 319, for the land in dispute.

<p>M. agreed to loan to the Titusville Savings Bank §9000 in U. S. bonds, which were to be returned to M. in.sixty days, and for the performance of this contract a number of the shareholders of the bank became jointly and severally liable. The bank was to hypothecate the bonds for the purpose of raising money to meet its liabilities, and the bank did hypothecate them by depositing them as collateral security in a bank in New York. Certain overdrafts of the Titusville Bank being unpaid, the New York bank sold the bonds, and placed the proceeds to the credit of the Titusville Bank. M. brought an action of trover against the shareholders of the latter bank. Held, that as the Titusville Bank did not authorize the sale of the bonds by the New York bank, further than an authority to sell may be implied from the pledge itself, there was no breach of trust or tortious conversion by defendants, and the bonds having been sold, and the plaintiff’s right thereto divested, he owned nothing that could be the subject of an action of trover. All that was left to him was an action upon his agreement.</p>

<p>.Error to the Court of Common Pleas of Crawford county: Of October and November Term 1878, No. 324.</p> <p>This ease is stated in the following opinion of the court below, Church, P. J.:</p> <p>“ This was an action of assumpsit, brought by the County of Crawford against Benjamin F. Stebbins, a former treasurer of the county, to recover a balance of $1717.76 of public moneys remaining in his hands at the end of the year 1874. The action is founded upon an alleged express promise to pay the same, after a discovery had been made by the county officials and the treasurer, in January 1878, that the county auditors had made a mathematical error in settling the account of the treasurer for the year 1874, by neglecting to carry over against the treasurer $1000 in one place, and $717.76 of road and school funds in another place. After the suit was brought, plaintiff entered a rule of reference under the compulsory arbitration law. Whereupon the defendant, under the provisions of the Act 6th April 1870, Pamph. L. 948, 1 Purd. Dig., p. 80, pi. 20, et- seq., elected to have a legal arbitration, and the cause was then submitted to an arbitrator learned in the law, and the cause was then proceeded with, tried, and an award made thereon in full accordance with the provisions of that act, for the plaintiff, for the sum of $1975.32, being the amount of the above-mentioned errors with interest thereon. Judgment nisi was entered on the award, and within the time allowed by the act, exceptions were filed to the decision and ruling of the law in the case, and these exceptions are now heard in this court, as in the nature of a writ of error to it.</p> <p>“ There are fifteen separate exceptions filed to the reception of evidence, answers to points and rulings of law, but they can readily be resolved into one, or at the most,'two, which will be noticed together. It will be perceived that this is not an action of debt or for money had and received, or on an implied promise to pay, but as was before said, an express, promise to pay a specified sum. On the trial, plaintiff offered, in evidence the auditor’s reports for the years 1874 and 1875, for the purpose of showing that error was committed against the county, and in favor of the treasurer, of $2056.06 for the former year, and of $2011.75 for the latter year. These offers' were proposed to be followed by evidence of an admission of the errors, and a promise by defendant to pay the same. To these offers defendant objected on the ground that the auditors’ -reports had passed into judgment, and were final and conclusive, and not having been appealed from, could not be attacked by the kind of evidence offered, nor in this form of action, and the promise, if ma le, had no binding effect, because there was no legally existing debt, and it is not binding for want of consideration.</p> <p>“The legal arbitrator overruled the objection, with the understanding that no evidence was to be introduced of any errors, except such as could be followed with proof of an acknowledgment and promise to pay the same' by the defendant. There was no error in admitting these offers, with the qualifications annexed, by the arbitrator to his ruling, and when" he comes to make up his award in the form of a special verdict, he expressly ‘rejects from the case all evidence of errors in auditor’s reports offered in this case not followed by evidence of a subsequent acknowledgment and promise to pay the same by the defendant.’</p> <p>“It will thus be seen, that the legal arbitrator was not unmindful of the Act of 15th of April 1834, defining the functions of county auditors, and giving legal effect to their respective reports, but kept the same steadily in view, together with the adjudication of the courts thereon, as' found in Blackmore v. Allegheny Co., 1 P. F. Smith 160; Northumberland County v. Bloom, 3 W. & S. 542; Northampton County v. Yohe, 12 Harris 305, and many kindred cases. This sufficiently appears in the legal arbitrator’s answer to defendant’s first and second points, wherein is affirmed the doctrine, that county auditors’ reports are conclusive and binding upon the parties; and that the Act of 1834, in its ’provisions for the settlement and adjustment of the accounts of county treasurers, must be strictly pursued; and that no action at common law can be maintained, to re-settle said accounts or to correct errors therein. That the legal arbitrator based his aw.ard upon other and different grounds, also appears from the fact, that he only gave an award, to plaintiff for about half her claim ; that is, for the errors of one year upon which the express promise to pay was made, and rejected entirely the claim for errors for the year that lacked such promise. The Act of the 6th of April 1870, hereinbefore noted, defining the duties of the legal arbitrator, provides, inter alia, that ‘ it shall be the duty of the arbitrator to conduct the trial, and at the conclusion thereof, find and report the facts of the case in the form of a special verdict, together with the exceptions taken during the trial to the admission or rejection of evidence, and the points of law made by the parties ; and his decisions or rulings thereon,' and his award or finding in the case.’ This has been very fully and completely done by him. In the special verdict he finds as facts, that the auditors, in their report of 1875, committed two errors, which appear upon the face of the reports in evidence, to wit: A mistake of $1000 against the county, in carrying over the balance remaining in the hands of the treasurer at the end of the year 1874; and also a mistake of $717.76, in not carrying over .and in not charging the amount of road and school funds in the hands of the treasurer, at the end of the year 1874 ; by which two mistakes, the defendant, then treasurer of Crawford county, was charged with $1717.76 less than was in his hands at the beginning of 1875, and was enabled to retain that amount of the money justly belonging to the county; and that the auditor’s report of 1875, containing the said errors, was properly filed in the prothonotary’s office on the 3d of February 1876, and became a judgment, which was not appealed from by any of the parties interested; and the defendant paid over to his successor in office, the full amount shown by that auditors’ report to be in his hands at the expiration of his term of office, to wit: the sum of $20,553.61, and took receipts for the same; that some time in January 1878, the errors above mentioned having ' been discovered, the defendant, who had no knowledge of the errors prior thereto, admitted the said errors, acknowledged the mistakes of the amounts above named, and promised O. H. Hollister, clerk to the commissioners, and J. (x. Foster, the treasurer of the county, that he would pay the same; that the admission was definite and specific as to the items and amounts; and the promise, as shown by the evidence, was positive and unconditional.</p> <p>“ These are the facts reported in the form of a special verdict. By the act is undoubtedly meant that the finding of the facts should have all the force and effect of a special verdict, and then the cause could be ultimately decided upon these facts, according to law. In so deciding, the court is confined to the facts found by the special verdict, and its judgment must be confined to that verdict : Wallingford v. Dunlap, 2 Harris 31 and cases there cited.</p> <p>“ It may be proper here to say that we cannot pass upon the fifth exception, which goes to an alleged error in the legal arbitrator reporting as a fact that the promise of the defendant was unconditional. If that be error, it must be reached by an order on the arbitrator to return his testimony taken, which order must be founded upon motion, supported by affidavit, stating explicitly wherein the alleged error consists, and then for a motion as in nature of motion for new trial, to refer the case back to the legal arbitrator for a new finding. The Legal Arbitration Act, under which these proceedings were had, makes no provision for returning the evidence, and it is not a part of the record. In this case ho has returned it, and from an examination of it we cannot say that he has erred in his finding of the facts proven. We come now to the material point in this case.</p> <p>“ The facts are that two years after the auditor’s report was filed, and which was unappealed from, and hence final and conclusive, and binding as a judgment upon all parties, the defendant, upon the discovery of two important clerical and mathematical errors, admitted the errors, and promised to pay the same definitely, specifically and unconditionally. Was there a moral obligation restT ing on the defendant to pay this money, sufficient for a consideration to support this promise, or was it void as being mere nudum pactum ? From an examination of the authorities, we find the rule to be this: A moral obligation is sufficient to support an express promise, where there has been a pre-existing obligation which has become inoperative by positive law. Express promises, founded on preexisting equitable obligations, may be enforced as founded on good consideration. They merely remove an- impediment erected bylaw to the recovery of debts honestly due, but which the statute law and public policy protect the debtors from being compelled to pay.</p> <p>“ The case of debts barred by the Statute of Limitations, of debts incurred by infants, of debts of bankrupts, are illustrations of this rule. In all these cases there was originally a quid pro quo, and according to the principles of natural justice, the party receiving ought to pay, but the legislature has said he shall not be coerced. Then comes the promise to pay the debt that is barred; the debt of the infant, the debt of the discharged bankrupt, to restore to his creditor what by the law he had lost. In all these cases there is a moral obligation founded upon antecedent valuable consideration. Such promises, therefore, have a sound legal basis. They are not promises to pay something for nothing, not rfaked pacts, but the voluntary revival or creation of obligations which before existed in natural law, but which had been dispensed with, not for the benefit of the party obliged solely, but principally for the public convenience: per Parker, C. J., in Mills v. Wyman, 3 Pick. 207. To the same effect is Willing v. Peters, 12 S. & R. 177 ; Hemphill v. McClimans, 12 Hands 367; Kennedy v. Ware, 1 Barr 445 ; Paul v. Stackhouse, 2 Wright 302. Now, applying this rule to the facts in this case, wdiat do we have ? An actual pre-existing debt owing by this defendant to the plaintiff — a debt for trust moneys, which in foro conscientice is of a higher character than the ordinary debts ■which arise on account of dealings between individuals. This debt is barred by positive law by a judgment entered, in which the debtor is unwittingly but none the less positively released. According to the common sense and feeling of mankind, the debt exists until it is actually paid; the mind of the defendant assented to this principle. He felt the obligation of the unsatisfied debt, and in the language of the verdict, specifically and definitely admitted it, and positively and unconditionally promised to pay it. There can be no doubt, therefore, that this moral obligation was a sufficient consideration upon which to base this promise of the defendant to pay the debt, and the legal arbitrator did not err in applying these principles and answering defendant’s points as he did.</p> <p>“ The defendant’s seventh point was correctly answered. The clerk to the county commissioners and the county treasurer are both functionaries recognised by law, and the promise of defendant might with propriety be made to them, or at least to the treasurer. The^were not engaged in the settlement or adjustment of the affairs of the county, and even if they were, it is difficult to see why the treasurer could not receive the defendant’s promise. It is made the duty of the treasurer by law to receive all moneys due or accruing to the county.</p> <p>“ This money in the hands of defendant was due and accruing to the county, and if it could or would have to be paid to him he could certainly receive a promise of defendant to pay it. As well say the cashier of a bank, or the treasurer or receiving officer of any corporation could not receive the promise of a debtor to the bank or corporation to pay a debt owing, as to say the county treasurer cannot receive the promise of a debtor to the county to pay a debt justly due it. In this case the treasurer is not an> actor; he is but the passive recipient of the promise to pay. In this respect he was the agent of the political corporation, the county, and this political body has the right to reap the benefit of the defendant’s promise made to pay them through its agent, the county treasurer, and to maintain this suit to enforce performance of that promise.</p> <p>“ This cause was well decided by the legal arbitrator, and there is nothing in the judgment of which the defendant has any right to complain, either In law, morals or good conscience.</p> <p>“ The exceptions filed to the award of the legal arbitrator are all dismissed, the award is affirmed, and final judgment directed to be entered on the same against the defendant for the amount of the award with interest from the filing thereof, together with costs of suit.”</p> <p>The defendant took this writ and alleged that the court erred in' dismissing defendant’s exceptions and in affirming the report and award of the arbitrator, and entering judgment for the plaintiff thereon.</p>

<p>1. The transcript from the docket of a justice of the peace showed a judgment was rendered on a note, but did not show that it contained any waiver of the right of appeal. The defendant in the judgment appealed therefrom. The court below, on parol evidence that the right of appeal had been waived, struck off the appeal. Meld, that this was error, as the court had no authority to look beyond the record of the justice.</p> <p>2. Wherever a justice’s transcript shows the cause of action, it cannot be supplemented or changed by parol evidence, so as to deprive a party of a trial by jury.</p>

<p>1. A party claiming to hold land under a parol sale may set up the Statute of Limitations to protect his title.</p> <p>2. The statute is not so inconsistent with an equitable defence as to render it inadmissible. The statute is applied with the same effect in a court of equity as in a court of law.</p> <p>3. After a lapse of twenty-seven years, it is unreasonable to require the same strictness of proof in establishing^ parol sale of land as is requisite where the transaction is recent.</p> <p>4. The court below required the defendant to elect whether he would defond under a parol purchase or the Statute of Limitations and said : “To defend under a merely equitable defence, such as a parol purchase, is, as a defence, inconsistent with a defence under the Statute of Limitations, which is purely legal.” Held, that this action and instruction of the court were erroneous.</p>

<p>Error to the Court of Common Pleas of Mercer county: Of October and November Term 1879, No. 376.</p> <p>Case stated for the opinion of the court, where John J. Hofius was plaintiff, and Maria, Laura and Julia Hofius, by their guardian, O. G. Hofius, were defendants. The facts as stated were substantially these: John Hofius died July 17th 1874, leaving a widow, nine children and eight grandchildren, the children of three deceased daughters. He died seised of three farms, one of one hundred acres in Hocking township, one of one hundred and thirty acres in Rymahoning township, and the other of forty acres in Hocking township.</p> <p>It was admitted that John Hofius, after making various devises and bequests of real and personal property in his said will, made the following: “The residue of my estate, after paying all just debts and the above bequests, it is my will that said residue shall be put out at interest by my executors, with ample security, and the interest thereon paid annually to my said wife, Maria, during her natural life, or as long as she remains my widow, and in one year after her death be equally divided between my children Laura and Julia, the two youngest heirs.” It was admitted that there was no specific devise or disposition made of the above-mentioned forty acres, unless it was embraced in the last clause of said will recited above.</p> <p>It was contended by the plaintiff that John Hofius did not dispose of said forty acres in his will, but died intestate' as to the same. On the other hand, it was contended by the defendants that the testator did dispose of the said forty acres in his said will, and that the same was embraced in the residue of his estate and belongs to the said Maria for life, and to the said Laura and Julia after her death.</p> <p>If the court should be of the opinion that said testator died intestate as to the forty acres, then judgment to be entered for the plaintiff. But, if of the opinion that the land was embraced in the will as recited above, then judgment for the defendants.</p> <p>The court entered judgment for the plaintiff, and in an opinion, inter alia, said :</p> <p>“ It should not be, and never is, presumed that a testator intended to die intestate of any portion of his estate, if a contrary intention can be fairly deduced from the language of his will. Although the testator specifically devises his other two farms, he does not name or allude to these forty acres, unless he intended to embrace them in said residuary clause.</p> <p>“We must presume the testator was of at least ordinary intelligence, and if so, he knew the difference between rent and the proceeds of a farm, and the interest which would or might be realized from putting the proceeds of the sale of it on interest, but he does not say it should be sold, or rented, or farmed, or used in any mode or manner. He simply says, ‘ the residue of my estate shall be put out at interest,’ &c. Surely he understood the use of language better than to direct his executors to put a farm out at interest. Had he intended them to sell or rent it, he would have said so; or had he intended his widow, or any of his children, to have had the use of it during her life, nothing was easier than for him to say so. We are forced to conclude either that the testator forgot the forty acres entirely, or intended them to be disposed of under the intestate laws, or that the scrivener omitted to insert in the will his disposition of them, and which omission was unnoticed by the testator when the will was read to him.”</p> <p>The defendants took this writ, and alleged that the court erred in entering judgment for the plaintiff.</p>

<p>1. Where fractional parts of the same judgment debt are successively assigned to different persons, and the proceeds of the sale of the property bound by the judgment are insufficient to pay them all, they takeywo raía, and not in the order of their assignment.</p> <p>2. After the plaintiff in a judgment had assigned certain portions thereof to different persons he assigned the residue to the appellant, in these words, “ February 9th 1878, for a valuable consideration I hereby assign the balance of this judgment unassigned to Stella C. Moore, being the amount due and unpaid after the above and foregoing assignments.” The court below construed this language to mean that the sums previously assigned should be fully paid before the appellant was entitled to any of the proceeds. Held, that this was error: that the plain import of the language was to assign all that part of the judgment not previously assigned, and that the appellant was entitled to share pro rata in the distribution.</p> <p>3. Donley v. Hays, 17 S. & K. 400; Perry’s Appeal, 10 Harris 43; Hancock's Appeal, 10 Casey 155, followed.</p>

381. Case stated as follows: Hamilton Stewart et al. obtained a judgment against Robert McKnight before a justice of the peace, for $288 and costs, and execution was issued ther'eon, and the said McKnight’s goods were seized and levied upon by W. T. Allison, the constable, under said execution. McKnight was a merchant tailor doing business in Titusville, Pennsylvania.

<p>1. In ejectment the plaintiffs claimed the land in dispute as the heirs of W., who in his lifetime.held title thereto by virtue of a deed from P. The defendants set up a resulting trust, alleging that the land was purchased with the money of the son of W. and the title taken in the name of the father. P., under instructions from W. before his death had the deed corrected and the title made to the son. The original deed from P. to W. was of record. The court held that this was a valid surrender of title by W. to P., and that she had the power and right to execute a deed to the son. Held, that this was error.</p> <p>2. The Statute of Frauds does not prevent a declaration of trust from being made by parol and it follows that such trust may also be defeated or rebutted by parol.</p> <p>3. The plaintiffs in above ejectment offered evidence that the son agreed to take from his father, and actually did take, a conveyance of other land as a consideration for his equity in the property in controversy and also evidence tending to rebut the presumption of a trust, which the court rejected. Held, that the evidence should have been admitted.</p>

<p>Error to the Court of Common Pleas of Qrawford county: Of October and November Term 1879, No. 216.</p> <p>Appeal from the judgment of a justice of the peace, wherein Ohleman & Kingsbacher were plaintiffs and the Union Express Company defendants. The suit was to recover for the loss of a package of goods.</p> <p>The facts in the case were few and substantially undisputed. On Thursday the 26th of March 1876, Ohleman & Kingsbacher delivered to the Union Express Company at Conneautville the goods in question, consigned to Benjamin McMahon, at Millerstown. The property was valued at $40, and this amount was to be collected on delivery. The goods, according to the testimony of Ohleman, should have reached their destination on the day they were delivered to the company. They did reach Millerstown on the next Saturday at five or six o’clock, according to the testimony of the agent of the express company. On the afternoon of that day McMahon called at the express office for the goods, and was informed that they were not there. Millerstown is a small village and McMahon was well known in the place and had beqn living within a hundred rods of the office of the company for one year previous to the fire. The company made no effort to find the consignee or to deliver the goods, and on Tuesday night or Wednesday morning after the delivery of the goods they were burned in the warehouse of the company.</p> <p>At the trial before Taylor, P. J., the defendant offered in evidence a blank receipt, and proposed to prove by its agent that it was the usual form of receipt used by the company before, since and at the time these goods were shipped. The court rejected the offer, but allowed the plaintiff to show what the receipt was which the plaintiffs took.</p> <p>The defendant submitted the following points to which are appended the answers of the court.</p> <p>1. That at the time the loss of the package occurred, the responsibility of the defendant, as a common carrier, had ceased, and that of a warehouseman attached, and as such it is only liable for gross negligence, of which there is no evidence to submit to the jury, and the verdict must be for the defendant.</p> <p>Ans. “We answer this point in the negative. We think their liabilities were not the same as that of a railroad company. We think they were insurers of the goods and bound to deliver the goods.”</p> <p>2. That if the jury find from the evidence that at the time the loss occurred, the package had been carried by the defendant from Conneautville to Millerstown in the usual manner, and was deposited in the defendant’s office, awaiting delivery to the consignee, the defendant was not liable for the loss unless its gross negligence occasioned it.</p> <p>Ans. “ We answer that in the negative.”</p> <p>In the general charge, the court, inter alia, said: “ We instruct you that the express company were common carriers, and were insurers of the property. When they took the property, received it, they insured safe delivery in a reasonable time. The simple question for you is, did they deliver the goods ? If they did not, we instruct you, under the evidence, that the plaintiffs are entitled to recover the value of the goods, with interest thereon from the time the property should have been at Millerstown; with interest from that time when it ought to have been delivered at Millerstown. If we are wrong, we can be set aright. Nothing but an unbending rule of law would compel us to charge you as we do.”</p> <p>Verdict for plaintiffs for $50.50. Defendant took this writ and alleged that the court erred in rejecting the above offers of evidence, in the answers to the points, and the foregoing portion of the charge.</p>

<p>An ordinance of the city of Meadville dedicated and set apart certain grounds and spaces as a city market, and directed that the revenues to be derived therefrom should be disposed of annually to the highest bidder, who should be invested with the office of superintendent and entitled to all the fees derived from the rent of stalls and stands, as well as the fees collected from the vendors of produce, and for the use of the public scales. Plaintiff's bid was accepted and he became superintendent in 1875. At that time there was a cellar under the market-house. There was no evidence that it had ever been used for the storage of meat or vegetables. In the fall of 1874, it was fitted up and used as a place to confine “ tramps.” There was a privy vault in this room, which became offensive the succeeding summer, and the use of the cellar as a “tramp room” was discontinued. The plaintiff alleged that it affected the entire cellar so as to make it unfit for use by the market people for the storage of meat and vegetables, whereby he was prevented from renting some of the stalls, and was deprived of the use of the cellar for 1875, and he brought an action to recover damages therefor. Held, that there was no contract of letting, and that he could not recover.</p>

<p>Error to the Court of Common Pleas of Crawford county: Of October and November Term 1879, No. 210.</p> <p>Assumpsit by W. W. Daniels against J. T. McBride. Appeal from the judgment of a justice of the peace. Defendant pleaded “non assumpsit, payment with leave, set-off,'&c.” McBride was the owner of a farm in Crawford county, in the year 1873. On the 27th of November of that year he demised said farm to Daniels, for the term of two years from the 1st of March following. Daniels, by the terms of the lease, agreed and covenanted “ to take all proper care of said premises, the same as a careful and prudent farmer should of his own property, and return the same at the end of said lease in as good condition as the same is received, except natural wear and unavoidable accidents.” In the lease it was also agreed that “ in case he (Daniels) has any hay, straw or fodder at the end of said term which he raised on said premises, said first party (McBride) is to have the privilege of buying the same at twenty-five per cent, discount below the market price, at the end of the term.” Daniels also agreed to leave as many acres of said farm seeded down at the end of the term as there were at the date of said lease, and to work said premises as a careful and prudent farmer.</p> <p>This suit was brought by Daniels to recover the value of the hay and straw bought by McBride at the end of the term, under the terms of the lease.</p> <p>McBride had certain claims against Daniels, among which was a claim for damages arising from the breach of his contract in the lease. Under his plea of set-off McBride proposed to prove the breach of the covenants in the lease by Daniels and show the damages arising therefrom, and for this purpose made the following offers, both of which the court, Church, P. J., rejected: First, “ To prove that the plaintiff premitted Canada thistles to grow and go to seed upon the farm, and that in consequence the property or the farm of defendant was greatly damaged. Offered as damages under the contract already in evidence.”</p> <p>Second. “ To prove that the plaintiff pastured his meadow with sheep, and thereby destroyed said meadow; also, that plaintiff did not leave seeded down the ground which he agreed to seed, under his contract. Offered as damages under th^ contract already in evidence by way of set-off.”</p> <p>Verdict for plaintiff for $50. Defendant took this writ and alleged that the court erred in rejecting the above offers.</p>

<p>In. crossing a railroad track at a crossing the horse which plaintiff was driving caught his foot in the space between the rail and the plank on the crossing and fell down on the track. Plaintiff alighted and endeavored for about two minutes to extricate the foot, when a train came along and broke the horse’s leg. In a suit for damages the court non-suited the plaintiff invoking the rule that he should have “ stopped, looked and listened” before approaching the crossing. Held, that the rule was not applicable to the case, that the true question was whether the company was guilty of negligence in allowing the track at the crossing to be in an insecure condition, and that this question should have been submitted to the jury.</p>

<p>Error to the Court of Common Pleas of Crawford county: Of October and November Term 1879, No. 57.</p> <p>Feigned issue, wherein Mary Holcomb was plaintiff, and the Peoples’ Savings Bank and the Meadville Savings Bank defendants.</p> <p>The Meadville Savings Bank entered a judgment on the 23d day of October 1878, against C. T. Holcomb and Thomas D. Durant, in the sum of $120.75, and on the same day issued execution to No. 279 of November Term.1878,</p> <p>The Peoples’ Savings Bank entered a judgment on the 8th day of October 1877, against Thomas D. Durant and Charles T. Holcomb, in the sum of $1571.62, and on the 2d November 1878, issued execution to No. 297, November Term 1878.</p> <p>On these executions the sheriff made levy on the 9th day of November 1878, on “ two horses, double harness, wagon, one erackey, one buggy, one light double harness, lot of hay and oats, lot of corn fodder, two sheep, two pigs, six cows, three calves, mowing-machine, one seed sower, all farming tools, and a general assortment pf household goods,” as of the property of the said Thomas D. Durant and Charles T. Holcomb. None of it in fact was the property of Thomas D. Durant, but was in the possession of Charles T. Holcomb and Mary Holcomb, his wife, on the farm where they resided.</p> <p>. Mary Holcomb, the wife of Charles T. Holcomb, claimed the property to be her own as to some of it, and the balance she claimed as belonging to herself and her husband, as being the fruits of the joint ownership of the real estate which was willed to her and her husband by her father, Bailey Fullerton. Upon this claim being made, the feigned issue here was made up.</p> <p>At the trial, before Church, P. J., the plaintiff submitted the following points, to which are subjoined the answers of the court:</p> <p>1. That if the jury find from the evidence that the property in dispute, and claimed by Mary Holcomb, is the fruits of the joint ownership and occupancy of the real estate which was willed to Mary Holcomb and Charles T. Holcomb by Bailey Fullerton, that the plaintiff holds the property in dispute in entirety, and said property is secured to the plaintiff by the provisions of the Act of April 11th 1848, securing to married women their separate estate, and is not liable for the debts of her husband, Charles T. Holcomb, and their verdict must be for the plaintiff.</p> <p>Ans. “ We cannot charge as requested, as the proof is not sufficient to entitle the plaintiff to claim the whole of this property as against the creditors of the husband.”</p> <p>2. That if the jury find from the evidence that the property in dispute, or any part thereof, was paid for by or out of the separate estate of the plaintiff which accrued to her during coverture and not through her husband, their verdict must be for the plaintiff for all the property in dispute so paid for by the plaintiff.</p> <p>Ans. “Affirmed, but the jury must have the evidence of such property being paid for by the wife, and there is not sufficient evidence of the wife’s ownership of the whole of the property in dispute by purchase as is required by law.”</p> <p>3. That the land being owned by the husband and wife jointly, the presumption of law is, that the growth or fruits of the land and the farming implements necessary to the production of such fruits belong to them as entireties and not in two equal or other proportions, and that during the life of the wife, such personal property cannot be sold from her on. execution for the debts of the husband.</p> <p>Ans. “Refused.”</p> <p>In the general charge, the court, inter alia, said: “ We say to you that to the personal property levied on by the sheriff, such as farming utensils, the plaintiff has not shown sufficient title in herself to recover in this suit. * * * That all the property levied on in this case, or such portion of it as is the fruit or result of the labor, energy or industry of either the plaintiff or her husband is the property of the husband, and liable for the payment of his debts. * * * Apply that rule to the facts in this case and see what we have. Mrs. Holcomb herself is put upon the witness stand. She claimed one horse, so far as the court sees, except through the mouth of her counsel, she only claimed one horse. Cows she claimed — she bought one of those herself. She lays no claim to the mowing-machine, except through the mouth of her counsel. Moreover, if she did, how has she shown what became of the money derived from her sister’s estate, some twenty odd years ago ? Some eight or twelve years ago she had $700. She said it was used in and' about the house and farm, for the purpose of making gain with it, giving it to her husband to use. Mr. Holcomb says the cows were raised from calves; and when he was in the drove business, buying and selling cows, when he would find a good cow in the drove, he would put it into his own stock ; he would take one out of the drove and make an exchange for one in his own dairy. Here the husband was buying and selling and owning all this property. We say to you that there is not sufficient evidence as to her ownership of either the mowing-machine, farming utensils, or this other movable property, horses, wagon, crackey wagon, buggy —as far as the buggy is concerned, Mr. Holcomb says he bought it himself. * * * As to the crops harvested this last year — corn, hay, oats — we find more difficulty in that because of the peculiar manner in which these parties hold under the will of the father-in-law of one and the father of the other. We will charge you that these crops are the property of Charles T. Holcomb, and not of Mary Holcomb ; and we will reserve that point and give the parties an opportunity to be heard upon that question. But, so far as you are concerned, we will instruct you that the growing crops belong to Charles T. Holcomb and not to Mary Holcomb. She has not shown title to them.”</p> <p>The verdict was for defendants. Mary Holcomb took this writ and alleged that the court erred in the answers to the above points, and the portions of the charge noted, and in refusing a motion for a new trial, and ordering judgment to be entered for defendants.</p>

<p>1. The court in charging the jury said: “ The court would not set aside your verdict even if you compromise between them. * * * You may compromise the verdict.” Meld, to be error.</p> <p>2. Per Paxson J. — Juries are prone enough to disregard the evidence and set up their own standard of right between the parties, without a permission to do so from the court.</p>

<p>Error to the Court of Common Pleas of Orawford county: Of October and November Term 1879, No. 50.</p> <p>Ejectment by Alexander Power and W. P.' Porter, administrators of Robert Hannah, deceased, against George R. Wilson and William Thorp, terre-tenant, for the undivided one-half of certain real estate, known as the Red Mill property, in the city of Meadville.</p> <p>The title to this property was vested in Edward Ellis on the 20th of November 1863. On the 2d of December 1863, Ellis sold this property to George R. Wilson and Henry A. Howe, by articles of agreement, for $8000. On the 15th day of November 1866, Howe reassigned his interest in the property to Edward Ellis, and on the 22d day of November 1866, George R. Wilson sold his interest therein to Robert Hannah, and on or before December 4th 1866, Hannah paid to Edward Ellis $3000, in full of the, balance of purchase-money due from George R. Wilson and H. A. Howe to Ellis.</p> <p>On the 21st day of February 1866, J. S. Crane entered judgment, in the Court of Common Pleas of Crawford county, against Fred A. Howe and Edward Ellis, for $5000, which was a first lien upon all the real estate of Edward Ellis, upon which judgment there /was a credit, October 11th 1866, of $2500.</p> <p>An alias fi. fa. was issued to No. 104 January Term 1868, upon the aforesaid judgment, and real estate of Edward Ellis was sold, amounting to $5755, which money was receipted to the sheriff by William Thorp, a,nd applied to the payment of judgments against E. Ellis, entered after the Crane judgment. This was done with the consent of Ellis, as shown by a memorandum of agreement, dated April 29th 1868.</p> <p>A pluries fi. fa. was issued upon the same judgment to No. 114, June Term 1868, and levy made upon a lot in the city of Mead-ville, and also on the mill property in dispute, as the property of Edward Ellis and F. A. Howe. The first-mentioned property was sold for $4000, and the mill property was sold for $2110 to William Thorp, and the proceeds of the sale, except the costs, were paid to Thorp.</p> <p>At this sale, Thorp, by his attorney, gave notice, that the title being sold was the undivided one-half of the property known as the Red Mill property, and that Robert Hannah owned the other half, which is the property in dispute. This notice was repeated by the sheriff, and the bidders proceeded on the supposition that the notice was true; and it was alleged, Thorp thereby got the property at one-half the value of the whole property.</p> <p>At the trial, plaintiffs offered “to prove by the testimony of A. B. Richmond, Pearson Church and others, that at this sheriff’s sale William Thorp, by his attorney, Pearson Church, gave notice, that the title being sold was the undivided one-half of the property known as the Red Mill property, and that Robert Hannah owned the other undivided one-half, which is the property in suit; that this notice was repeated by the sheriff; and that the biddings at the sale proceeded on the supposition that the notice was true, and that William Thorp thereby got the property at one-half the value of the whole property. This, offered for the purpose of estopping Thorp from claiming that he obtained by virtue of that sheriff’s sale, more than the undivided one-half of the property; and also for the purpose of showing, that he has no equities derived by or under that sale, available in this case as a defence to the payment of purchase-money in this suit. We propose to follow this by evidence, that the judgment was in fact paid by the sheriff’s sale of the property of Dr. Ellis, made in January 1868, and by other sales made prior to this sale of the Red Mill property.”</p> <p>“ Offer overruled as to all, excepting the offer to prove the judgment was satisfied.” (Second assignment of error.)</p> <p>The following were among the points of defendants, both of which the court affirmed:</p> <p>1. That under and by virtue of the sheriff’s sale of June 8th 1868, under the judgment of Duffield, administrator of Crane v. Howe and Ellis, and the sheriff’s deed made in pursuance» thereof, William Thorp acquired the legal title to the whole of . the premises in dispute, subject to the right of Robert Hannah or his heirs, to the undivided one-half thereof, upon the payment to said Thorp of the balance of the purchase-money due under the articles of agreement between Edward Ellis, and Howe, and Wilson, on the 21st day of February 1866, the date of the entry of the judgment on which said land was sold. (Tenth assignment.)</p> <p>4. That under all the evidence in this case, the verdict should be for the defendant. (Eleventh assignment.)</p> <p>In the general charge the court, inter alia, said :</p> <p>“ Under that judgment the land was sold and purchased by William Thorp, who, so far as the legal effect is concerned, was an innocent purchaser without notice. There is no equitable defence against that judgment. That sale vested in Thorp a good title to the land. Thorp under that sale went into possession.</p> <p>“ As to transfers afterwards, we think they have little to do with the case. We think that the holder of a legal or equitable interest by virtue of an outstanding agreement, whatever his equities may be upon that contract, or however much he might enforce them at law in an action upon this contract, cannot maintain an action of ejectment against the holder of a legal title in possession of the land.” (Thirteenth assignment.)</p> <p>Verdict for defendants, and after judgment plaintiffs took this writ and alleged, inter alia, that the court erred as set forth in the above assignments of error.</p>

326. Debt by the Mutual Benefit Life Insurance Company against Marion T. Bales and C. B. Caldwell, Henry C. Davis and Charles Beirschmitt, his sureties, on a bond given by said Bales to the plaintiff company. The following was the opinion of the court below, Taylor, P. J., in which the facts are fully stated: “ The plaintiff is a foreign life insurance company, located at Newark, in the state of New Jersey.

<p>1. To recover from a county costs accrued in a criminal proceeding, it is necessary to show a statute obliging the county to pay, and when this cannot be done, an action against the county must fall.</p> <p>2. Section 64 of the Act of March 31st 1860, on its face, applies to costs on bills of indictment. It is part of an act directing the procedure in courts of Oyer and Terminer and Quarter Sessions, and was not intended to extend the liability of the county for costs to convictions before justices of the peace.</p> <p>3. County commissioners have no power to discharge a prisoner, or to remit fines, forfeitures and costs. If courts have sanctioned their acts in paying costs out of county funds, where a party was committed solely in default of payment of costs, that does not authorize their interference where there has been a conviction and sentence for a criminal offence.</p>

<p>The Supreme Court is bound to disregard an assignment of error, under the Act of April 18th 1874, unless the record shows an exception was taken.</p>

<p>1. Where the widow of an intestate enters into possession of realty as a tenant for life, under a decree in partition, the owners of the remainder can have no possessory action until her death, and the Statute of Limitations only begins to run against her and her vendees from that time.</p> <p>2. Where, however, the proceedings in partition are inchoate and never consummated, and she had no right thereunder, and her claim and posses-, sion were adverse for over thirty years prior to the action of ejectment, such a lapse of time will bar a recovery against her and her vendees.</p>

<p>In the Supreme Court, Eastern District, of January Term 1880, No. 104.</p> <p>This was a writ of habeas corpus specially allowed by one of the justices of the Supreme Court. The facts were these: William Torrey petitioned the Supreme Court, setting forth that he was unjustly confined in the jail of the county of Schuylkill, to await trial upon a bill of indictment charging him, as the cashier of the First National Bank of Ashland, a bank organized, incorporated and established under the laws of the United States, with embezzling the moneys of said bank, and suggesting that the court in w'hich said indictment had been found had no jurisdiction of the offences charged in said indictment, and that he was therefore unlawfully detained in the custody of the warden of said jail, and praying for a writ of habeas corpus, &c.</p> <p>On the 10th of December 1879, His Honor, Justice Paxson, of the Supreme Court, specially allowed said writ, returnable forthwith before him.</p> <p>Ketner, the warden of - the jail, returned that said Torrey was in his custody, but alleged in said return “ that the said William Torrey is so restrained lawfully by virtue of a surrender by his bail upon a bail-piece, and also by virtue of a warrant issued out of the Quarter Sessions of the Peace of the said county of Schuylkill, and the charge mentioned in said warrant and bail-piece is shown by the copy of the record of said court, hereunto annexed, against said William Torrey.”</p> <p>By this record it appeared that Torrey had been arrested by state process and a prosecution begun before a justice of the peace, which was returned to the Quarter Sessions of Schuylkill county, where a true bill was found, the indictment consisting of three counts, each of which charged the petitioner, as cashier of the National Bank of Ashland, with having misappropriated funds of said bank, contrary to the form of the Act of Assembly in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania. The prisoner, on arraignment, pleaded “not guilty,” and the cause being called to trial, the jury disagreed and were discharged, when the court directed the prisoner to renew his recognisance. He was then surrendered by his bail and again arrested, whence his petition.</p> <p>Upon the petition and return, Paxson, J., on December 12th 1879, made the following order: “ The hearing in this case is continued to the first Monday of January next at eleven o’clock,</p> <p>A. M., before the court in banc, the relator to enter bail in the sum of $6000, conditioned for his appearance on the day aforesaid, and to remain and abide the order of the eourt in the premises, and in default of bail as aforesaid, the relator to be remanded.”</p> <p>On the first Monday of January 1880, the case was argued in this court.</p>

<p>1. When a contract of sale has been executed by a deed, the vendee, in order to defend against a security for the purchase-money, must show a title bad.</p> <p>2. In a suit upon a mortgage given for purchase-money, the affidavit of defence alleged that in the deed of conveyance the plaintiff covenanted with defendant for the free use of a certain alley, and that defendant had never had the use of said-alley, and claimed to set-off damages for the loss of said use against the amount of the mortgage. Held, that as the affidavit did not allege that at the time of the conveyance the plaintiff had not a good title to the alley-way it was insufficient.</p>

<p>1. One who has conferred upon another, by a written transfer, all the indicia of ownership of property, is estopped to assert title to it as against a third person who has in good faith purchased it for value from the apparent owner.</p> <p>2. A certificate of stock accompanied by an irrevocable power of attorney, either filled up or in blank, is in the hands of a third party presumptive evidence of ownership in the holder.</p> <p>3. One of four executors placed in the hands of his brokers certain certificates of stock which belonged to the estate of his testator. These certificates were pledged as collateral security for the personal indebtedness of this individual executor, and were accompanied by a blank hill of sale and a power of attorney signed by him as acting executor. The brokers in turn pledged the stock to one who advanced money to them in the belief that the brokers were the real owners of the stock. The remaining executors filed a bill in equity to recover the stock. Held, that the same principle which prevails in the case of an absolute owner applies in the case of an executor who invests the holder of certificates of stocks with apparent ownership, and that there could he no recovery of the stock until the advances made thereon were paid.</p> <p>4. The fact that the legal title to the stock was known to have previously been in the executor, and that the title of the holder appeared on its face to have been derived from him in his representative capacity, does not raise a suspicion or put a purchaser on inquiry, for the reason that it is the executor’s primary duty to dispose of the assets and settle the estate.</p> <p>5. The law casts no duty upon a purchaser to ascertain if the trusted executor of a decedent’s will is mismanaging the estate in fraud of creditors or legatees.</p>

<p>Error to the District Court of Philadelphia county: Of January Term 1877, No. 178.</p> <p>Assumpsit by the First National Bank of Lancaster against Henry Rahter. Defendant pleaded non-assumpsit, set-off, Sc.</p> <p>At the trial, it appeared that in 1872 David G. Swartz had a quantity of whiskey, the product of his distillery, which, together with his distillery, he sold to Rahter. In payment therefor he received from Rahter a certain amount of cash, a house in Baltimore, and the note in suit. A draft, also in suit, was given by Rahter to pay arrears of ground-rent and taxes on the Baltimore property. The note was drawn payable in one year after date. Before it came due Rahter failed, and the note was not paid. Six days before the note came due, Swartz, who was a director in the First National Bank of Lancaster, had it discounted by the hank, who brought this suit upon it. It appeared that the note had been, in effect, paid to the bank, it having charged the same up to Swartz, and there being sufficient funds to his crpdit to pay it. Swartz also admitted that at the time of this transaction he had no United States license as a dealer in whiskey, nor a license under the laws of Pennsylvania; that the barrels were not branded with the words “containing no deleterious drugs or added poison,” and that he did not certify these facts to the purchaser.</p> <p>The Act of July 20th 1868 (15 Statutes at Large) provides: “ Sect. 44. That any person who shall carry on the business of a distiller, rectifier, compounder of liquors, wholesale liquor dealer, retail liquor dealer, or manufacturer of stills, without having paid the special tax as required by law, or who shall carry on the business of a distiller without having given bond as required by law, or who shall engage in or carry on the business of a distiller with intent to defraud the United States of the tax on the spirits distilled by him, or any part thereof, shall, for every such offence, he fined not less than $1000 nor more than $5000, and imprisoned not less than six months nor more than two years.”</p> <p>The Act of 14th April 1863, sect. 2, is as follows: “ It shall be the duty of any person or persons engaged in the manufacture and sale of intoxicating malt or alcoholic liquors, or in rectifying or preparing the same in any way, to brand on each barrel, cask, or other vessel containing the same, the name or names of the person or persons manufacturing, rectifying, or preparing the same, and also these words, ‘containing no deleterious drugs or added poison,’ and shall also certify the fact or facts to the purchaser over his, her, or their owrn proper signature.”</p> <p>“ Sect. 5. Any person offending against any of the provisions of this act shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be sentenced to pay a fine not exceeding $500, and to undergo an imprisonment not exceeding twelve months, or both or either, in the discretion of the court.”</p> <p>The defendant submitted, inter alia, the following points: 3. “If the jury find that the note and draft sued upon, or either of them, were given in a transaction of the sale of whiskey by David G. Swartz, in April or May 1872, and that the whole, oi any part of the consideration of them, or either of them, was the price of the whiskey, unless the said David G. Swartz had paid a special tax, under the Act of Congress, as a dealer in distilled liquors, arid had received a receipt therefor, under which he would have been entitled to make the sale, the consideration was illegal, and he or any one standing in his place, and possessing, only his rights, cannot recover on them, or any of them, whose consideration is affected by this illegal consideration.”</p> <p>5. “If the jury find that the note and draft sued upon, or either of them, were given in a transaction of the sale of whiskey by David G. Swartz, in April or May 1872, and that the whole or any part of the consideration of them, or either of them, was the price of the whiskey, unless the barrels containing the whiskey were branded with the words, ‘ containing no deleterious drugs or added poison,’ and unless he certified the same fact to the defendant over his own proper signature, the consideration was illegal, and he or any one standing in his place, and possessing only his rights, cannot recover on them, or either of them, whose consideration is affected by his transaction.”</p> <p>The court, Briggs, J., directed a verdict for the plaintiff, reserving the questions of law submitted by the points. He subsequently entered judgment for the plaintiff on the points reserved, which was assigned for error by defendant, who took this writ.</p>

<p>1. The powers and duties of the officers of an insolvent bank cease when it makes an assignment for the benefit of creditors. After its dissolution said officers are neither the agents nor trustees of the bank, and they may lawfully buy up outstanding claims against it, if in so doing they act fairly and with an honest intent. Hill o. Frazier, 10 Harris 320, distinguished.</p> <p>2. Where stockholders of a bank are liable, under an act of incorporation, for an amount equal to the stock subscriptions, their liability is not that of sureties, but is special and sub modo only. It is limited to an amount equal to their subscriptions, and it accrues only where the assets of the bank have been exhausted; neither can it be enforced except by a judicial decree first obtained. Means’s Appeal, 4 Norris 75, followed.</p> <p>3. The liability of stockholders being no more than a ratable share of the debts of the bank, proportional to the amount of their stock, an auditor of an account of the bank’s assignee cannot compel an advance contribution from them by disallowing their claims against said estate.</p> <p>4. The contributory share of the stockholders is to be ascertained, apportioned and enforced either by process analogous to that prescribed for the benefit of note holders in the 32d and 33d sections of the Banking Act of 1850, or by bill in equity. But an auditor has no such power. The authority to estimate the value of the property of the bank and apportion the deficit among the stockholders is committed by law to the assignee.</p>

<p>Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1878, No. 133.</p> <p>Case stated wherein Joseph Parker was plaintiff and the city of Philadelphia defendant. The case, as stated, was as follows : “ Plaintiff did the work set forth in the exhibit hereto attached, at the times and for the amounts therein specified. The sums paid into the treasury of the defendants and the amount returned to the solicitor of the defendants that claims might be filed according to law, are accurate.</p> <p>“ At the time that plaintiff contracted to do said work, there was appropriated for the removal of nuisances a sufficient sum to pay for the sum due him, but not enough to pay for like debts due others.</p> <p>“ If the court shall be of opinion that defendants are liable to pay for the whole sum due by said exhibit, or any part thereof, then judgment to be entered for the plaintiff, the prothonotary to assess the damages in accordance with said judgment, but if the court shall be of opinion that defendants are in nowise liable, then judgment for them.”</p> <p>The exhibit referred to therein set forth a number of properties from which the plaintiff had removed nuisances, the assessments on the properties therefor, the amounts paid into the city treasury on this account, and the amounts which still remained as liens on the properties. The health officer of the city certified that the work was properly performed, and that the charges were correct. The court entered judgment for defendant, when plaintiff took this writ and assigned this action for error.</p>

<p>Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1879, No. 37.</p> <p>Scire facias sur claim for curbing, filed by the city of Philadelphia, to the use of Joseph Johnson and others, against a lot of ground on the east side of Broad street, above Race street, and Richard Wistar, owner. The claim was for work done and materials furnished in laying one hundred and twenty-one feet of curbstone in front of said lot.</p> <p>The defendant, in brief, pleaded, 1. Nil debet. 2. Payment with leave. 3. That the work was done without authority of law. 4. That before the work was done by claimants, the sidewalk in front of defendant’s lot had been well and properly paved and curbed in accordance with the city ordinances; that the curb laid-by claimants cost three times as much as that in general use throughout the city; that the work done by claimants was part of a scheme by which it was intended to make Broad street a great public and ornamental thoroughfare and public drive, and was therefore without authority. 5. That at the time the work was done, the front of the lot was paved and curbed as required by the city ordinances, and that the repavement was without authority. 6. That the ordinance under which the work was done was repealed on May 9th 1873, and the lien was not filed until some time thereafter.</p> <p>The plaintiffs joined issue on the first and second pleas, demurred to the third, fourth and sixth, and to the fifth pleaded specially “that the defendant had not, before the filing of said claim, set curbstones. on the line of Broad street in front of the property described in said claim, as the said line was duly established at the time claimants did said work.’'’ The defendant demurred to this replication on the ground that it did not traverse, confess or avoid the allegations in the plea, and that it was argumentative. The court gave judgment for plaintiffs on their demurrer to third and sixth pleas, and judgment for defendant on demurrer to fourth plea, and on his demurrer to replication to fifth plea.</p> <p>Subsequently the court made absolute a rule to enter judgment for the defendant on the whole record, when the plaintiff took this writ, and alleged that the court erred, 1. In entering judgment for the defendant on the demurrer to • the fourth plea; 2. In' entering judgment for the defendant on his demurrer to the replication to the fifth plea; 3. In entering judgment on the whole record.</p>

<p>1. A testator devised his estate to trustees, to be subject to payments as follows: “ First. To so much of the proceeds of said property as my dearly beloved wife may deem necessary for the maintenance of herself and my dear niece ; they living in such style as my said wife may think best to promote their happiness and comfort during her lifetime. If my niece should survive my wife, then I direct that there shall be paid to her, as long as she may live, the sum of two thousand dollars per annum. To my wife I give absolutely all my household furniture, books and ornaments.” By a codicil he directed: “ I desire my dear niece, L. F., but to whom I cherish the feelings of a father, to be so treated and regarded in the law as if she were really my child, receiving during her lifetime such income from my estate as if she were really my child, and I postpone the operations of the trusts of my will, so as fully to effect this result, until her decease; upon which event they are forthwith to take full effect, as expressed in the will.” And by a second codicil directed : “ The codicil which I added to my will the other night, May 24th, means that I wish my niece, C. F. F., to be considered as my daughter, and to take, out of the income of my estate, all that she requires to render her more than comfortable in her housekeeping during her lifetime. I do not desire to postpone by it the operations of the trusts of my will, except so far as may be necessary to secure the above object.” Held, that by the word “ proceeds” the testator meant income. Held, further, that the trustees could not limit the claim of the widow to what they might consider judicious ; that the widow and niece were entitled to the whole income if, in their discretion, they required it.</p> <p>2. T. and A. were joint owners of real estate, T. holding the title. He made sale of the lands, and mingled the money received therefor with his own. Held, that upon a settlement of his account with his co-tenant he was chargable with interest on the amounts received, and also with interest upon said interest. Money thus received is trust money, and the rules which forbid the allowance of interest upon interest between debtor and creditor do not apply.</p> <p>3. P. purchased certain lands and paid cash therefor. T. agreed to purchase one-fourth of these lands and pay cash therefor. P. gave T. a receipt in full as for cash, which receipt was duly witnessed, and set forth that one-fourth of the purchase-money had been furnished by T. Instead of cash P. took from T. a due-bill, payable at once. Held, that the receipt was a sufficient declaration of trust and might be recorded as such. Held, further, that T. could not make defence to the due-bill on the ground that P.’s representatives could not make an unencumbered title. Boland v. Tiernan, 8 W. & S. 193, followed.</p> <p>4. Decedent was a member of an unincorporated association organized to build, equip and operate a certain railroad. Some of the partners contracted to purchase the entire stock of a competing road. Held, that said contract was not within the scope 'of the authority of those making it and not binding upon decedent’s estate.</p> <p>5. It was alleged that an unauthorized contract of some of his copartners had been ratified by decedent. Held, that to make him liable his assent to the precise provisions of the contract must be shown.</p> <p>6. In the settlement of an account of trustees various claims were presented, but in the disposition of them the Orphans’ Court made but one decree. The accountants took a separate appeal for each claim. Held, that this was improper and there should have been but one appeal therefrom.</p>

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, No. 62.</p> <p>Assumpsit by Frank Leslie against P. F. Keough and Mary C. Keough, his wife, trading, &c.</p> <p>The plaintiff filed a copy of a contract, whereby in consideration of the purchase from Leslie, by the defendants, of $300 worth of “paper patterns,” the defendants were appointed agents for the sale of Frank Leslie’s “ Cut Paper Patterns,” for the term of one year. During the continuance of the agéncy, defendants were to keep a full assortment of the patterns, to sell the same at retail prices, and settle their accounts monthly. Leslie was to take back patterns unsold during the year, and to give others in exchange. Accompanying this contract was the copy of a book account of §269, for patterns furnished under the contract. In an affidavit of defence, the defendant averred:</p> <p>“About the 20th day of December 1875, an agent of Frank Leslie’s called on us (P. F. & M. C. Keough), the above-named defendants, to introduce the paper pattern business, or in other words, to establish an agency for the said Frank Leslie. I said: ‘Leave this matter over until to-morrow, and I will see about it.’ His reply was: ‘ I must leave the city on the first train in the morning, and therefore cannot wait. There is no risk in this business,’ (meaning the agency), ‘as you don’t have to pay only for what you sell, and the §45,’ (meaning the first instalment mentioned in the contract, or agreement), ‘is to protect us’ (the plaintiff) ‘so that you won’t throw the printed matter on our hands; and at the end of the year, if the thing is not a success, we ’ (meaning the plaintiff) ‘ will take the patterns off your hands, and you will be at at no loss.’ When the patterns were received with these assurances from the plaintiff’s authorized agent, we, the said defendants, did the best we could to dispose of and introduce them among the public ; and in accordance with said contract or agreement, both written and verbal, made with said agent, expressly on the conditions above stated; and with the explicit understanding, that we, the said defendants, were in no event to be liable for any goods or any amount, except for such portions of said consignments of paper patterns as were actually disposed of by us, the said defendants, for the account of the said plaintiff. After a fair trial, and finding no sale for said paper patterns in the neighborhood to which we were necessarily restricted, and having made reasonable effort, we, the said defendants, addressed the said plaintiff, and stating that no sale had taken place of said patterns, with the exceptions of those therein referred and specified, being a portion of the said first (and only) consignment of the paper patterns, informed him, the said plaintiff, that the balance of said consignment undisposed of was at the disposal of him, the said plaintiff, and subject to his orders, in pursuance of said agreement, and said notice was so given in writing; and therein was given notice of the desire of said defendant to be relieved from said agency, as provided for in and by said contract or agreement, before the expiration of said year, as therein provided. The deponent further answering, saith, that the said defendants and neither of them is, or are, indebted to the said Frank Leslie in the said sum of §269, or in any other sum whatever; and that said paper patterns are and have been always at the disposal of said plaintiff, prior to the commencement of this action. That this deponent and his co-defendants, and either of them, never agreed to be responsible for any of such goods, beyond the amount actually disposed of; and said defendants have more than paid in cash money to said plaintiff, through his authorized agent, for such portions of said goods disposed of, as such, agents at the time said contract was signed. All of which this deponent and co-defendants believe, and expect to he able to prove on the trial of said cause.”</p> <p>A rule for judgment for want of a sufficient affidavit of defence was made absolute, when defendants took this writ, and assigned this action of the court for error.</p>

<p>Appeal from the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1879, No. 27.</p> <p>Appeal of Solomon A. Kneedler, from the decree of the court discharging a rule to show cause why a judgment .entered upon his bond and warrant of attorney should not be opened on the ground that the defendant was a lunatic when he executed said warrant. It appeared that Kneedler owned certain premises on the west side of Second street above Susquehanna avenue, in the city of Philadelphia, which were subject to a mortgage of $3000. He also owned property on the east side of said street which was subject to certain liens. In order to pay off the charges on the latter he was advised by his counsel to place a mortgage of $5000 on the property on the west side, and with the money thus obtained to pay off these liens. His counsel applied to Mr. Weigand, and through the latter a loan of $5000 was obtained from the Philadelphia Trust Company, for which Kneedler gave his bond and warrant of attorney secured by a mortgage on the west side property. These papers were duly executed on August 18th 1876. On default made a scire facias issued on the mortgage to which an affidavit of defence alleging that defendant was insane was filed, which the Court of Common Pleas held to be sufficient. After-wards the plaintiff entered judgment on the bond in Court of Common Pleas, No. 2, and a rule to show cause why the. same should not be opened was granted by said court</p> <p>The defendant in support of his rule produced the exemplification of the record of the Court of Common Pleas, No. 4, of Philadelphia county, in lunacy proceedings against Solomon A. Kneedler, to December Term 1876, No. 1055, showing an inquisition taken February 12th 1877, finding:</p> <p>“That the aforesaid Solomon Kneedler is, at the time of taking this inquisition, aged fifty-three years, and is, by reason of lunacy, incapable of managing his estate, and is wasting and destroying the same, and that he hath been in said state of incapacity by reason of said lunacy for the space of six months last past and upwards; and does not enjoy lucid intervals.”</p> <p>Which said inquisition was confirmed on March 2d 1877, and Holstein De Haven appointed committee.</p> <p>The record also showed a petition to supersede the commission, filed October 25th 1877, an examiner’s report thereon filed November 8d 1877, and the decree of the court confirming said report, and superseding and determining the commission in lunacy; the inquisition taken thereon, and the appointment of the committee, and all proceedings relating thereto.</p> <p>From the deposition of Weigand, the real estate broker, who negotiated the loan, of the counsel of defendant and of De Haven, 'the committee, taken on behalf of plaintiff, it appeared that the defendant fully understood the transaction, discussed the matter of the various liens, showed Mr. Weigand over the property, and seemed perfectly competent to do business. Neither of these witnesses knew of his insanity or believed him insane.</p> <p>It appeared also that $3000 of the $5000 loan was applied to the mortgage on the property v and that the balance, less one per cent, commissions and the conveyancing charges, was paid to Kneedler, with which he paid off the amount of the liens on the east side of the street. The court discharged the rule, when defendant took this writ, and alleged that the court erred in this action.</p>

<p>1. Where a fact is established in a cause by evidence, tne jury may properly be allowed to draw therefrom such inferences as are logically deducible from it. Thus if it be shown that the driver of a car was asleep or intoxicated at the time of an accident, a presumption of negligence would properly arise. But the fact from which such inference is to be drawn must first be established. It will not do to presume that he was in that condition from some remote fact, in no way connected with the case, and upon this presumption base the additional presumption of his negligence.' A presumption should always be based upon a fact, and should» be a reasonable and natural deduction from that fact.</p> <p>2. A child of tender years was injured by a passenger railway car. The court permitted plaintiffs to ask a witness how many hours the drivers and conductors on the railway were employed each day, for the purpose of showing that the driver of the car which injured the child was physically unable to discharge his duty at the time of the accident. Held, that this was error.</p> <p>3. The court charged that if the driver saw the child in the street approaching the car, and in such close proximity that it might reach the track before the car passed, it was negligence on his part not to stop. Held, that this was error ; that the standard of duty in such a case was a shifting one and for the j ury.</p>

<p>1. "When in the opinion of the court the uncontradicted evidence does not warrant the jury in inferring negligence by the defendant as the proximate cause of an injury, the court should direct a verdict for him.</p> <p>2. Where the only fact in dispute is an immaterial one, and would not have warranted an inference of his negligence, whichever way decided, and the remaining evidence is uncontradicted and would not warrant an inference of his negligence, the court should direct a verdict for defendant.</p> <p>3. Plaintiff was engaged in trying to start a balky horse in a street passenger car. There were two tracks on the street. Defendant was driving on the clear track, and when passing the balky horse the latter suddenly started, and the plaintiff, in stepping back to avoid injury, was struck by defendant's wagon and injured. The only question in dispute was the speed of the wagon. Held, that there was no evidence of negligence by defendant, and the case should not have been submitted to the jury. Held, further, that the speed of the wagon was not a factor in the case, as the action of plaintiff would have resulted in injury had the wagon been going at less speed.</p>

<p>1. A., who was indebted to B., verbally agreed to give him a lot and to furnish a deed therefor. B. entered upon the lot, made improvements, and lived thereon for many years, but A. never gave him the deed. In a second action of ejectment for the lot: Held, that evidence of the above facts set up.an equitable, not a legal title, and that a verdict and judgment upon the same evidence in the former action of ejectment were conclusive.</p> <p>2. An action of ejectment upon an equitable title is a substitute for and equivalent to a bill in equitv, and the verdict and judgment thereon have all the conclusive effects of a decree in equity.</p> <p>3. Taylor v. Abbott, 5 Wright 352, criticised, and Treftz v. Pitts, 24 P. F. Smith 343, followed.</p>

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, No. 208.</p> <p>Covenant upon a lease by Joseph Penn, landlord, against John Auer, the surety for the payment of rent by Jacob Brown, tenant.</p> <p>The lease was dated October 15th 1875, and was for a term of five years from date, the rent being payable monthly. The plaintiff filed a copy of the lease and a statement of claim, in which latter was one item for “difference between rent agreed to be paid and rent obtained.”</p> <p>The defendant, who was surety for the tenant, filed an affidavit of defence, in which he averred that Brown occupied said premises for about the space of one year; and that he then went to plaintiff and delivered to him the possession of said premises, which plaintiff agreed to take, and did take, and released Brown and deponent as security.</p> <p>A supplemental affidavit was filed, in which the defendant averred that Brown, “ on or about the 15th of October 1876, and previous to the falling due of the amounts claimed in this case, did surrender to the plaintiff the term of years of him, the said Jacob Brown, then to come and unexpired, of and in the demised premises under said lease, which surrender the said plaintiff there and then accepted, and the said plaintiff thereby released the defendant from all further liability under said lease, and that the surrender and release stated in the previous affidavit filed, were made before the claim for rent in this case fell due, and before the commencement of the time for which the said rent is claimed.”</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defence, w'hen defendant took this writ, and assigned this action for error.</p>

<p>Error 'to the Court of Common. Pleas, No. 2, of Philadelphia county: Of January Term 1879, No. 149.</p> <p>Assumpsit by George H. Vandike and Theophilus G. Vandike, trading as George II. Vandike & Co., against John A. Shisler, as endorser of a promissory note, dated July 2d 1875, at four months, I for $1500, drawn by Catharine Shisler to the order of George A. Shisler, and endorsed by George A. Shisler, Charles Shisler and John A. Shisler.</p> <p>At the trial it appeared, both by the evidence of plaintiffs and of George A. Shisler, who was called for the defendant, that the note in suit was given by George A. Shisler to pay an indebtedness of said George to plaintiffs. The latter testified that they had sent for John A. Shisler and showed him the note, and that he denied that it was his endorsement, but said that he had authorized his brother to endorse for him, and that he considered himself liable under that name, and declared that his name was not John A., but John V. Shisler. A salesman of Vandike & Co. testified that he was present at this interview, and heard one of the Shissler brothers say that they did not sign the note, but authorized their signatures to be put thereon. The defendant testified that he did not endorse the note nor authorize any one to do so for him, and that he had never admitted that he had authorized George to endorse for him. George Shisler, called for the defendant, testir fied: “I brought my two brothers to Mr. Vandike’s to get the note; they both knew of this note before this interview ; I did not endorse the names on the back of the note; never told Vandike that I was authorized to endorse the note; I thought they were genuine signatures. At the interview in Vandike’s store, heard my brother John distinctly state to George Vandike that he authorized the signature to that note.”</p> <p>The defendant, inter alia, submitted the following point: “ If you believe that the name of John V. Shisler was endorsed by another person without his authority, and that he subsequently, without any new consideration, ratified or confirmed it, your verdict must be for the defendant.”</p> <p>The court declined to affirm this point, and in the general charge, inter alia, said, “ that the theory of the plaintiffs was that George signed the note as his brother’s agent, either with his previous authority or a subsequent ratification, and if the jury believe that view of the evidence, the act was capable of ratification.”</p> <p>The court also charged; “ I instruct you that you may disregard the matter of consideration, the evidence being that the plaintiffs took the note in satisfaction of the debt.”</p> <p>The verdict was for plaintiffs. After judgment, defendant took this writ, and alleged that the court erred in the answer to the above point, and in the portion of the charge noted.</p>

<p>Error to the' Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, No. 264.</p> <p>Case by Elizabeth J. Smith against The Hestonville, Mantua and Fairmount Passenger Railway Company, to recover damages for the death of her son, alleged to have been caused by the negligence of defendant.</p> <p>Mrs. Smith was a widow, and was employed in cleaning the cars of the Pennsylvania Railroad Company, which necessarily took her from home during the day. Her son Willie, a lad about seven years of age, was in the habit, with other boys of the neighborhood, of getting water at a pump in the vicinity, and of supplying the conductors and drivers with water to drink, who encouraged them to do so by giving them pennies. In order to thus furnish them with water they would mount the platforms of the ears, and there was no evidence that they were ever warned away from the cars by policemen or the drivers or conductors. Plaintiff knew that her son was in the habit of thus carrying water to the cars, and she allowed him to take a cup and pitcher from her house for that purpose. She also saw the money the child made, and cautioned him to be careful in getting on and off the cars. On the afternoon of August 6th 1876, Willie, with two other boys, somewhat older than himself, went to the corner of Thirty-third and Spring Garden streets with a view of thus serving water, as they had done several times before at this point. A car of defendant came slowly up Spring Garden street, and Willie Smith jumped on the front platform, which had no fender, and gave the driver a drink. Two or three minutes thereafter the child was seen on the street between the front and hind wheels of the car, the first wheel having run over him. Two days thereafter he died in the hospital from the injuries thus received.</p> <p>The defendant asked for a nonsuit, on the ground that the plaintiff had contributed to the accident by permitting the boy to be thus employed at his tender age. The court, Allison, J., in granting the nonsuit, said:</p> <p>“ If this case went to the jury, I should certainly say that it was contributory negligence on the part of the mother to send or permit her child, of seven years of age, to take upon himself the risks of a business of this kind; that is, that no child of seven years of age has discretion enough to be trusted under such circumstances with its own protection, and going with the permission is equivalent to going with the direction of the parent. The parent knew it; furnished it with her own pitcher in which to carry the water; sent it, and sent it even with a caution to be careful, but sent it with these risks upon itself. I cannot, as at present impressed, regard under any circumstances the fact that a parent takes upon itself to permit or to direct her child to go and carry on such a business as that, otherwise than that it is per se negligence, on the part of the parent, to subject a child of seven years of age to all the risks incident to such a business. I will grant the motion.”</p> <p>The court in banc subsequently refused to take off the nonsuit, when plaintiff took this writ, and alleged that the court erred in this action</p>

<p>Error to the Court of Common Pleas, No. 3, of Philadelphia, county: Of July Term 1879, No. 115.</p> <p>Ejectment by Walter R. Kern against Samuel Simons for a messuage and tract of land on the northeast corner of Thirty-second and Pearl streets, in the city of Philadelphia.</p> <p>At the trial the plaintiff offered in evidence the record of a suit in the Court of Common Pleas, No. 1, by the City of Philadelphia to the use of Joseph W. Maull against Samuel Simons on a claim for work done on a culvert in front of the premises in dispute. A prsecipe for a seir.e facias issued on the lien filed, and was accompanied by the affidavit of Maull, which set forth that Simons was the owner of the lot in question, and had a known residence in the city, and that defendant had served notice on said owner by giving to him personally notice of the claim, and making known the contents to him. That a scire facias issued against Simons, to which the sheriff made return :</p> <p>“ Made known by posting a true and attested copy of the within writ on the premises within described, September 11th ’75, and by advertising twice a week, for two weeks, in the ‘ Evening Bulletin,’ a daily paper published in this city, agreeably to the Act of Assembly in such case made and provided. Ñihil habet as to Samuel Simons.”</p> <p>Judgment was entered for want of affidavit of defence. A levari facias issued, and the property was sold to the plaintiff, to whom the sheriff executed a deed. This deed duly acknowledged and recorded was also offered in evidence.</p> <p>Defendants offered in evidence:</p> <p>1. The deed from John Shedwick and wife to Samuel Simons and his heirs, dated June 8th 1870, and duly recorded for the premises in question. 2. The certificate of the Survey Bureau of the Department of Surveys of the city of Philadelphia, endorsed upon said deed: “ Registry Bureau, Survey Department, June 21st 1870. Entered.” 3. A certificate of search from the survey bureau aforesaid, showing that the premises in suit stood, on the 1st of July 1870, registered as the property of “ Samuel Simons, present owner.”</p> <p>The defendants requested the court to charge as follows: “That the Court of Common Pleas, No. 1, had no jurisdiction over the cause of the city to the use of Maull v. Samuel Simons, December Term 1874, No. 49, under the execution in which Walter R. Kern, plaintiff in the present cause, claims title to the real estate here in dispute, subsequently to the return to the sci. fa. sur municipal claim therein, and that the judgment and execution in the said cause of the city to the use of Maull v. Simons were and are null and void, and that the said Walter R. Kern took no title thereunder; all by reason of the operation of the Act of Assembly approved March 14th 1865, sect. 9, Pamph. L. 32, entitled, an act to promote the more certain and equal assessment of taxes in Philadelphia, as amended by the Act of March 29th 1867, sect. 1, Pamph. L. 600, Purd. Dig. 1379, pi. 137.”</p> <p>The court, Finletter, J., refused so to charge, and instructed the jury to find a verdict for the plaintiff, subject to the said point of law reserved for the consideration of the court in banc. Verdict for plaintiff, and afterwards judgment for plaintiff on the point of law reserved, when defendant took this writ, and alleged that the court erred in thus entering judgment.</p>

<p>A property which was subject to two successive ground-rents was sold under a subsequent mortgage. Held, that the arrears on the first ground-rent due at the time of the sheriff’s sale were not discharged thereby, the intervening estate of the second ground-rent preventing such a result.</p>

1, of Philadelphia county: Of January Term 1880, Nos. 48 and 49. These were attachments under the Act of March 17th 1869, Pamph. L. 8, the one issued by Sharpless & Sons against George W. Ziegler, and the other by Good & Wilson against same defendant.

<p>Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1879, No. 142.</p> <p>Assumpsit by William Campbell against W. W. Laird, on a promissory note drawn by defendant, for $253.13, dated July 2d 1877, to the order of Campbell, and payable five months after date, and upon a book account with entries from September 24th 1877, to October 5th 1877, aggregating $147.</p> <p>The copy of the note and book account were filed when defendant filed an affidavit of defence, setting forth that Laird, about November 26th 1867, finding himself financially embarrassed, called a meeting of his creditors, and agreed with the majority as follows:</p> <p>“We, the undersigned, creditors of William W. Laird, hereby agree with him and with each other, that whereas he has become financially embarrassed, and is not able to pay all of his debts in full, and whereas, both he and we are desirous that he should continue to carry on business in the city of Philadelphia, with a view to paying as great a percentage as possible on the debts now due from him to us; and whereas, we recognise the fact that if he should now turn his available assets into cash in order to pay the said debt, we would each and all of us receive less upon our respective claims, and thereby suffer damages, now we, the creditors as aforesaid, do hereby agree with him and with each other, to accept from said Laird, in full of said claims, respectively thirty per centum of the same respectively, namely, as the amounts are hereinafter set forth opposite are names, and to release said Laird upon the payment of the said thirty per centum, from all further liability on said claims: said thirty per centum to be paid to us in the manner hereinafter set forth, namely, ten per cent., without interest, to be paid within six months from the date hereof; ten per cent, in one year from the date hereof, and ten per cent, in eighteen months from the date hereof, the same to be secured by delivering to uS the promissory notes of said Laird, endorsed by a satisfactory endorser for the amounts and the terms hereinbefore expressed.</p> <p>“ Witness our hands and seals this twenty-sixth day of November, A. D. one thousand eight hundred and seventy-seven (1877).”</p> <p>This agreement was signed by twenty-four creditors, the ninth in the order of signing being Campbell.</p> <p>One creditor failed to sign, but promised Laird publicly, with the knowledge of the other creditors, that he would not pursue him for his debt, and said that he did not care if he did not receive the same for forty years. The notes were executed according to the agreement, and were accepted by all those who signed, except Campbell, who, when they were tendered to Rim, according to the terms of the. agreement, refused them without remark.</p> <p>Campbell took a rule for judgment for want of a sufficient affidavit of defence, and the .court after argument ordered a supplemental affidavit to be filed as to whether all the creditors had released or not, and subsequently, in response to a further order of the court that “ deponent should state upon oath whether all the creditors signed the agreement,” a second supplemental affidavit of defence was filed, wherein defendant stated that one of his creditors had refused to sign, alluding to the one who had made the above-mentioned public promise. The court made the rule absolute, when defendant took this writ, and alleged that the court erred:</p> <p>1. In ordering that a supplemental affidavit be filed as to whether all the creditors had released or not. 2. In making absolute the rule for judgment for want of a sufficient affidavit of defence. 3. In entering judgment for want of a sufficient affidavit of defence. 4. In entering judgment for plaintiff.</p>

<p>Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1879, No. 115.</p> <p>Case by Alexander Boudrou against the Thirteenth and Fifteenth Street Passenger Railway Company, to recover damages for injuries caused by the alleged negligence of defendant.</p> <p>It appeared at the trial, that plaintiff, about ten o’clock on the night of April 18th 1871, got on a car of the defendant on Fifteenth street, at a point between Walnut and Chestnut streets. The plaintiff lived at Fifteenth street and Columbia avenue. The car was crowded, and plaintiff and several others were obliged to stand upon the rear platform. The plaintiff had been drinking, but was not in such a condition that he could not take care of himself. After he got on the car it stopped at Chestnut street, and there other pei’sons got on, two of whom were ladies, who entered the body of the car. Upon the way up to Mount Vernon street, a distance of a few squares, the car, No. 13, stopped several times to let off and take on passengers. As the car approached Mount Vernon street, there were four other gentlemen and plaintiff on the rear platform. When the car reached that street, it stopped again to leave off passengers. At this moment, the pole of car No. 14, which was following rapidly up Fifteenth street, struck Boudrou a violent blow on the back, propelling him forward with great force and throwing him on his face on the floor in the aisle of the car. The cause of the collision was the breaking of the brake-chain. Plaintiff was leaning with, his back against the dasher when struck. Two of his ribs were broken, and his lung and spinal column injured. He remained, for a time unconscious in the car, until he reached his home, when he was carried into his house. He was confined to his bed for six weeks, and to the house three months, suffering greatly; and was so much injured mentally and physically, as to almost unfit him for business. He was at the time of the accident about fifty-one years of age, was robust and active, and an energetic and industrious man, engaged in the real estate business and several other enterprises.</p> <p>The following points were submitted, all of which the court, Finletter, J., refused:</p> <p>1. That if the jury believe from the evidence that the plaintiff voluntarily put himself in a place of exposure and that in consequence of it the injury to him happened, he cannot recover, although he may be able to show negligence by the defendant: Mayo v. Boston and Maine Railroad Co., 104 Mass. 137.</p> <p>2. That if the jury believe from the evidence that the plaintiff voluntarily got upon the platform of the car, knowing the car to be so crowded with passengers that he could not enter the car, but would be obliged to stand on the platform ; that he did so stand on the platform and in consequence of being in that place on the car he received the injury, then he was guilty of negligence, and the verdict must be for the defendant.</p> <p>3. That there being no evidence that the defendant actually did the injury complained of or commanded it to be done, the defendant company is only liable as employer of those whose alleged negligence caused the injury, and therefore the Act of Assembly of April 4th 1868 (Br. Purd. p. 1094), is constitutional and of binding force as regards this defendant, and the jury can in no event find greater damages than the sum of $8000.</p> <p>4. That the platforms of a passenger railway car are intended for the ingress to and egress from the car, and it is negligence in a passenger to use them for any other purpose. That if the jury find from the evidence that the plaintiff occupied the hack platform of the car .on which he received his injury for the purpose of being carried as a passenger, he was guilty of contributory negligence, and the verdict must be for the defendant.</p> <p>In the general charge the court, inter alia, said:</p> <p>“ Standing upon the rear platform was not negligence, even if there was no room in the body of the car, unless plaintiff was specially warned of danger and recklessly persisted in staying, and unless it appears that the injury was one which fell on him because he was in that particular place or position.</p> <p>“ But a passenger upon the back platform has no right to suppose that he may be run down by a following car. In this respect he is as much under the care of the driver of the coming car as he is under the care of'the driver and conductor of his own car.</p> <p>“It is not one of the dangers which makes the rear platform dangerous. The danger of falling off, of being knocked off by means not connected with the road, he doubtless takes upon himself ; but to be driven into by the car following is not and ought not to be considered one of the incidents of riding upon the rear platform of a passenger car.</p> <p>“ If, therefore, you should find that the plaintiff was negligent in standing upon the rear platform and yet find that the collision could not have happened but for the negligence of the driver of car 14, plaintiff’s negligence is not a bar to his recovery. In this event his negligence is to be considered a remote negligence and not a cause of the injury.”</p> <p>Verdict for plaintiff for $10,000. After judgment thereon defendant took this writ and alleged that the court erred sixth assignment in the above charge, seventh, eighth, ninth and tenth assignments in the answer to the points respectively.</p>

<p>Appeal from the Orphans’ Court of Philadelphia conniy: Of January Term 1880, No. 39.</p> <p>Appeal of John Hanbest and others, from the decree of the court dismissing the exceptions to the report of the auditor to audit the account of the executor of Thomas Passmore Hanbest, deceased. Thomas Passmore Hanbest died on the 7th of August 1873, leaving a will dated July 30th 1873, wherein he appointed Isaac Norris his executor. By a codicil he appointed his brother, Philip M. Hanbest, co-executor. The latter died intestate in August 1875. The account of Mr. Norris as executor was filed and referred to an auditor, before whom it appeared that at the time of decedent’s death on August 7th 1873, there was a balance to his credit with Jay Cooke&Co., bankers, amounting to $46,623.44. This balance was transferred to Norris, as the acting executor, on August 21st 1873. The ordinary rate of interest allowed by Jay Cooke & Co. was three per cent., but in consideration of the larger balances kept by the decedent, they allowed him five per cent. When the account was transferred to Norris, no arrangement was made in regard to the rate of interest, but they continued to allow him five per cent. On September o 18th 1873, Jay Cooke & Co. failed, at which time there was a balance to the credit of the executor of $42,542.37. The auditor was asked by the residuary legatees to surcharge the executor with the amount of the deposit. The auditor was of opinion that there was no negligence upon the part of the executors, they having acted in good faith, and for the best interests of the estate, as they supposed; and this not being an investment made by them, but merely a continuation of a former deposit made by the testator in his lifetime, this credit should be allowed.</p> <p>Exceptions were filed to this report, which the court dismissed, and confirmed the report, from which decree this appeal was taken.</p>

<p>1. In an action against an attorney-at-law for neglecting to prosecute a claim until it was barred by the Statute of Limitations, where there was no fraud or concealment on the part of the attorney, the plea of the bar of the statute is a good defence.</p> <p>2. Where the declaration, in such a case, alleges a breach of duty, and a special consequential damage, the breach of the duty, and not the consequential damage is the cause of the action, and the statute runs from the time of the former and not from the time the special damage is revealed or becomes definite.</p> <p>3. The fact that plaintiffs retain the defendant as their attorney after he had violated his implied contract with them, does not suspend the operation of the statute.</p>

<p>_ 1. The devisee of land, acquired by a testator subject to a subsisting encumbrance created by a former owner, takes it charged with the encumbrance, without any claim for its satisfaction out of the personal estate, unless the will clearly indicates an intention to charge such encumbrance on the personal assets, or the testator has so dealt with the encumbrance as to make it his proper debt.</p> <p>2. H. purchased a house, in the deed for which the consideration was stated to be $25,.000. The habendum recited that the conveyance was u under and subject” to a mortgage of $12,000. The receipt at the bottom of the deed was for $25,000, “ being the full consideration.” The actual sum paid by H. was $14,000. H. devised the house to his wife, who was his executrix, and in her account she took credit for payments of interest on the mortgage.</p> <p>The court below, on the ground that the personal estate of II. was not liable for the mortgage-debt, disallowed this credit. Held, that this ruling was correct.</p> <p>2. It seems, that under some circumstances a revoked will may be offered in evidence to aid in the interpretation of the last will o'f a testator.</p>

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1879, No. 95.</p> <p>Scire facias to revive a judgment and quare executionem non, issued by Alice Hubert against Sarah Lewis and Lewis R. Seymour and Joseph P. B. Eddy, executors of Sarah Tingle, deceased.</p> <p>The judgment was entered on a judgment note given by Sarah Tingle and Sarah Lewis to Alice Hubert. It was for $125, and dated December 17th 1873. Sarah Tingle died in 1874. The scire facias to revive was returnable on the first Monday of February 1875. The defendants obtained a rule to set aside the scire facias, open the judgment and let them into a defence. This rule was discharged, and the court gave defendants five days within which to file affidavits of defence. Sarah Lewis and one of the executors filed affidavits of defence, alleging the coverture and minority of Sarah Lewis, and that the whole of the judgment had been paid by usurious interest. These affidavits the court thought were insufficient, and entered judgment for plaintiff. The defend^ ants took a writ of error, and the court reversed the court below, on the ground, that the judgment was improperly entered against the executors, for want of a sufficient affidavit of defence. The plaintiff then took a remittitur and ruled defendants to plead. The executors pleaded non est factum, coverture and payment, and Sarah Lewis non est factum, coverture, payment and infancy. The plaintiff replied coverture, non solvit and of age, and thereupon issue was joined.</p> <p>• Before the jury were called, the defendants asked leave to file an additional plea, that at the entry of the action the plaintiff was married, and the suit should have been brought by her husband. The plaintiff objected, and the court sustained the objection. (Fourth assignment of eri-or.)</p> <p>The plaintiff gave in evidence the record of the judgment and rested. The defendants then offered to prove that Sarah Lewis was a married woman, and was so at the time of the execution of the note and the entry of judgment thereon. Objected to and objection sustained. (First assignment of error.)</p> <p>Also to prove, that Sarah Tingle, the decedent, was a married woman and so continued until her death. Objected to and objection sustained. (Second assignment.)</p> <p>In charging the jury, the court said: “ When suit is brought to revive a judgment, you cannot show any defence except subsequent matter such as payment, unless the record shows that the judgment was improper.”</p> <p>The verdict was for plaintiff, and after judgment, defendants took this writ and alleged, that the court erred as set forth in the above assignments of error.</p>

<p>Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1879, No. 95.</p> <p>Assumpsit by the Columbia Insurance Company against John Buckley and others, trading as Buckley & Co., to recover assessments made upon a premium note of defendants given by them for $1350. A narr. was filed, with special counts, to recover assessments made January 9th 1875, of 8, 20 and 10 per cent., total 38 per cent., and assessment made same date for 25 per cent, of said note — altogether for the sum of $850.50.</p> <p>The defendants, pleaded “ non assumpserunt payment' with leave,” &c.</p> <p>The plaintiff is a mutual insurance company, incorporated by the Act of February 25th 1860, Pamph. L. 81. It was provided in said act that the members of the company should be liable for the expenses and losses of the company' in proportion to the amount of their deposit notes; and that when an assessment had been mkde on a premium note given for a policy of insurance, and an action brought for the recovery of the assessment, the.certificate of the secretary of the company should be prima facie evidence of the assessment and the amount due. In September 1871, the defendants took out a policy for $3000, for which they paid a cash premium of $67.50, and gave a premium note for $1350, the policy to run for five years. On the 9th of September 1872, they again paid $67.50 cash premium.</p> <p>In 1872, the company called for another assessment of 7 per cent., and in 1873, one of 6 per cent., and in 1874, one for a like amount. These assessments were respectively entitled 14, 15 and 16. By the certificate of the secretary of the company, it appeared that on the 9th of January 1875, the company called for assessment No. 17 of 25 per cent, and on the same day one for 38 per cent, to cover liabilities which previous assessments had failed to meet. “This last was designated the deficiency assessment.” Suit was brought to recover this last assessment and No. 17, and the plaintiff recovered, but this court reversed the court below on the ground that they had failed to instruct the jury that it was necessary for the company to prove notice of the assessments (see report of case, 2 Norris 298). At the second trial, the plaintiff proved the above facts and that notice had been given to defendants. The latter then gave evidence to show that the assessments had been excessive, amounting to $119,500, while the total liabilities of the company were only $51,129.83. It appeared, however, from th.e testimony of defendant’s own witnesses and on cross-examination, that the amount received from the various assessments did not exceed $35,000, because a number of the makers of the premium notes were insolvent, and others had contested the company’s claims.</p> <p>In charging the jury, the court, Yerkcs, J., inter alia, said:—</p> <p>“ That by law’, directors are vested with authority to make assessments to meet losses, and that a reasonable discretion must be allowed, and it is not a defence unless the directors fraudulently or wantonly abused their power to make the assessment too large.”</p> <p>The verdict was for the plaintiffs, and after judgment thereon, the defendants took this writ and made a number of assignments of error, the thirteenth being the above assignment.</p>

30. , Appeals of Charles J. Snyder and others from the decree of the court in the distribution of the balance in the hands of the executors and trustees under the will of George Hughes, deceased.

4, of Philadelphia county: Of July Term 1879, No. 18. On an appeal from a magistrate. Assumpsit hy Rody McVey against the St. Patrick’s Male Beneficial Society. The society defendant was incorporated by the Court of Common Pleas of Philadelphia county on the 5th of May 1866. Among the articles of the constitution of the society were the following: Art. 2.

<p>1. If a bequest be made to a person absolute in the first instance, and it is provided that in the event of death or death without issue, another legatee or legatees shall be substituted to the share or legacy there given, it shall be construed to mean death or death without issue before the testator. The first taker is always the first object of the testator’s bounty, and his absolute estate is not to be cut down to an estate for life without clear evidence of such intent.</p> <p>2. M. bequeathed one-sixth of his estate to his son “ J., M., or his heirs,’’ and a like proportion in the same language to two other sons, and the remaining three-sixths in trust for each of his three daughters. He also directed “ if either of my sons should die without leaving issue living at the time of his death, the share given to such son shall pass to and be divided among such of my children as may be then living, and to the issue of such as may be dead.” Held, that each son had an absolute indefeasible interest in the share bequeathed to him.</p>

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1878, No. 226.</p> <p>Replevin by the Peoples’ Bank of Philadelphia, against Andrew T. Gayley for eight hundred tons of iron.</p> <p>At the trial it appeared that in October 1874 there was stored on the Callowhill street wharf eight hundred tons of iron. Defendant was in charge of this wharf, but there was no sign about it to indicate who was its owner. The iron belonged to the firm of Malin Bros., and,on the above day Alexander Ervin, a confidential agent and attorney of Henry G. Morris, an iron manufacturer, went to the defendant at the wharf with an order from the Malin Bros, to deliver to said Morris three hundred tons of this iron. The order was in an envelope with a printed address in these words: “A. T. Gayley, Esq., Callowhill street wharf, Delaware avenue, city.” Ervin told Gayley he wanted to borrow money on the iron from plaintiffs, and that he had negotiated a loan on it for Morris, and that he desired from defendant a warehouse receipt to use for that purpose.</p> <p>Gayley wrote the following receipt:</p> <p>“ Philadelphia, October 15th 1874.</p> <p>' Received from Malin Bros, three hundred' tons (300) * 1 Nth Penn, pig iron on storage, subject to the order of Henry G. Morris.</p> <p>And. T. Gayley.”</p> <p>Ervin turned this document, and in G;ayley’s presence Ervin wrote on the back the following words:</p> <p>A. T. Gayley, Esq.,</p> <p>Please deliver enclosed pig iron to W. H, Taber, Esq., Cash or order.</p> <p>Henry G. Morris,</p> <p>p p Alex. Ervin,</p> <p>Atty.</p> <p>October 20th 1874, Gayley issued a second' receipt in these words:</p> <p>Philadelphia, October 20th 1874.</p> <p>Received from Malin Bros.:</p> <p>250 tons, * 1 Nth Penn, pig iron.</p> <p>250 “ * 2 x Robbins “</p> <p>Held subject to the order of Henry G. Morris.</p> <p>And. T. Gayley.</p> <p>And in the same manner Ervin endorsed said receipt in Gayley’s presence thus:</p> <p>Please deliver enclosed pig iron to W. H. Taber, or order.</p> <p>Henry G. Morris,</p> <p>p p Alex. Ervin,</p> <p>October 20, 1874. Atty.</p> <p>William H. Taber was the cashier of the plaintiffs. Both the receipts thus endorsed were taken to the Peoples’ Bank with the printed envelope above mentioned, and $18,500 was loaned upon this iron. This was October 15th and 20th 1874.</p> <p>The original note given by Morris to the bank was renewed, the . same iron continuing as collateral until May 1875, when Morris failed. The loan not being paid, the plaintiff laid claim to the iron included in these receipts. They offered to pay the storage and demanded the iron, but Gayley gave them no satisfaction, and referred them to one Etting as the owner of the wharf. The bank then issued this writ of replevin for the eight hundred tons of iron. The return of the sheriff showed six hundred and fifty-three tons replevied, and one hundred and forty-seven tons eloigned by Gayley. It was not denied that Ervin had authority to act for Morris.</p> <p>The defence was that after the pledge of the iron to the plaintiffs, February 27th 1875, Ervin, as Morris’s agent, gave George M. Troutman a bill of sale for the iron, and that the receipts of Gayley were merely memoranda given by him as the weighmaster of Etting. The evidence' in this direction comprised the following offers to prove, 1. That defendant was the clerk or assistant of E. J. Etting; 2. That Etting was a warehouseman; 3. That the wharf was Etting’s wharf, held under a lease, on which he received goods for storage and warehousing; 4. That warehouse receipts for goods stored on that wharf were issued by Etting or his partner only; 5. That defendant had no authority to issue warehouse receipts; 6. That he had never done so to his knowledge or intention ; 7. That the papers produced by plaintiff were obtained from him by Ervin to enable him to have a written memorandum of the fact that the iron bought from Malin by Morris was actually on that wharf; 8. That at the time of giving those receipts defendant told Ervin that he could not give him a warehouse receipt, and if he wanted one he must go to Mr. Etting, who alone could give that; 9. That it was untrue that Ervin told witness, defendant, that he intended to pledge the iron to plaintiffs ; 10. That it was untrue that Ervin made the endorsements on tbe receipts in his presence or to his knowledge; 11. That defendant never heard of the pledge to the plaintiffs until June 1875, or thereabouts; 12. That in the meantime the iron was sold by Morris to Troutman in February for value paid, and was delivered to him; 13. That before the writ issued, or there was notice of the title of the plaintiffs by either Etting, Gayley or Troutman, Etting, the warehouseman, agreed to hold the iron for Troutman, and issue to him a warehouse receipt; 15. That it was the practice, when application was made to Mr. Etting for a warehouse receipt, for Mr. Etting to ascertain what amount of the iron was there, and having issued a warehouse receipt, he notified Mr. Gayley, in order that he might know the iron could no longer be delivered on the order of the depositor.</p> <p>All of these offers were severally objected to, and the objections overruled.</p> <p>It was then proved by defendant, Etting, Morris and others, that Morris, at various times had kept iron stored on the wharf, and that Ervin was familiar with the method of issuing warehouse receipts for it. Morris also testified, “ I knew Gayley as a weigh-master; did not know him as a warehouseman.”</p> <p>After Ervin had obtained the above receipts on November 18th 1874, he applied to Etting & Groome for another receipt for the same iron. They knew nothing of the receipts previously issued, and upon this application they issued their usual warehouse receipt as follows:—</p> <p>“ Storehouse, Callowhill street wharf, Delaware Avenue,</p> <p>Philadelphia, November 18th 1877.</p> <p>Received from Henry G. Morris, the merchandise described below, to be held by me on monthly storage, from November 18th 1874, and to be delivered on the order of The Philadelphia Ware-</p> <p>house Company, only on the return of this certificate and payment of the charges. ,</p> <p>Marks, &c. Description of Merchandise.</p> <p>670 tons. Six hundred and seventy tons No. 1 Pig iron,</p> <p>340 “ Three hundred and forty tons No.' 2 x pig iron,</p> <p>140 “ One hundred and forty tons No. 2 common pig iron.</p> <p>1150 tons. Delivered to Henry G. Morris, on payment of charges.</p> <p>Charges: W. H. Jackson,</p> <p>Storage per month, 10 cents. for Company.</p> <p>Labor,</p> <p>(Endorsed).</p> <p>Warehouse receipt. H. G. Morris; date- 1874. Merchandise. Philadelphia warehouse; cancelled receipt; order to deliver. Please deliver the within merchandise upon payment of all charges.”</p> <p>On the back of this receipt were printed “ obligations of ware-housemen and storekeepers,” and underneath the full text of the Act of September 24th 1866, Purd. Dig. 114, relating to goods, wares and merchandise in store, &c.</p> <p>The same firm issued a similar receipt for 120 tons on November 25th 1874. Both these receipts .were delivered to the Philadelphia Warehouse Company as collateral fora previous loan made by that company to Morris. In February 1875, one Troutman purchased this iron from Morris under an agreement to pay off the loans for which it was held as collateral. This he did, and thereupon he received a bill of sale from Ervin, and obtained from Etting & Groome a warehouse receipt in his own name for the iron.</p> <p>Defendant offered in evidence the two receipts above-mentioned, dated November 18th and November 25th, respectively, from Etting to the Philadelphia Warehouse Company, and also a letter from Efcting to defendant, dated November 23d 1874; giving notice of the issue of the certificate for the iron. Objected to and objection overruled.</p> <p>The plaintiffs submitted the following points, to which are appended the answers of the court:—</p> <p>First. That the papers in evidence, signed A. T. Gayley, and dated October 15th and 20th 1874, vested in plaintiffs on delivery, the title to the property therein described.”</p> <p>Ans. “Well, that is so.”</p> <p>Second. Said papers are receipts within the meaning and purview of the Act of Assembly, entitled, &c., being the Warehouse Act.</p> <p>Ans. “ That, I think, is not the case. I say that they are not receipts within the meaning and purview of that law.”</p> <p>Third. Said papers are negotiable under said act.</p> <p>Ans. “ I do not think that they are.”</p> <p>4th. Said papers, whether negotiable or otherwise, vested in plaintiffs a valid title to said property against Gayley and Morris.</p> <p>Ans. “Well, that would be so.”</p> <p>5th. The title of the plaintiffs being good against Gayley and Morris, it continued, and continues good against all persons whomsoever, unless divested, “apart from legal process,” as a consequence of some illegal act of plaintiffs, or by reason of some unlawful act of commission or omission of plaintiffs.</p> <p>Ans. “ I do not think, as I have said to you, that that is so, if subsequently to that they failed to give notice of their having this pledge to this property, and if it was in good faith transferred to another by a warehouse receipt, that would divest their property.”</p> <p>6th. The issue of a warehouse receipt by Etting cannot, per se, divest the title of plaintiffs, or give title to any one against plaintiffs.</p> <p>Ans. “ If the warehouse receipt was issued in good faith, it would have that effect.”</p> <p>7th. Under the evidence in the cause, the issue of a warehouse receipt to Troutman, or any other person, could not divest the title of plaintiffs.</p> <p>Ans. “ I say that it could.”</p> <p>9th. The alleged title of Troutman, given in evidence, is no defence under the pleas of non cepit, non detinet, and no property in plaintiffs.</p> <p>Ans. “I think that it is.”</p> <p>The defendants presented the following points, to which are appended the answers of the court:</p> <p>2d. The documents in question are not warehouse receipts.</p> <p>Ans. “In my opinion they are not.”</p> <p>3d. The plaintiffs, to entitle them to claim under those papers as warehouse receipts, must prove that Gayley was a warehousman, and as such intrusted with the iron. Not having done this, they cannot assert title to the iron by the endorsement and delivery of the receipts.</p> <p>Ans. “ That, as a matter of law, I instruct you to be so.”</p> <p>6th. Unless the plaintiffs had under its title as pledgee a right to the possession of the iron, at the date of his writ, June 18th 1875, he is not entitled to recover in this suit, which is a replevin for these goods.</p> <p>Ans. “ That is so.”</p> <p>7th. If Mr. Morris, the owner of the iron, subsequent to the pledge of the plaintiffs, sold the iron to Troutman, and Etting agreed to hold the iron for Troutman, that was a delivery to Trout-man, equivalent to an actual delivery and removal of the same by him.</p> <p>Ans. “ That is so.”</p> <p>8th. If the wharf on which the iron was, and is still stored, was the wharf of Etting, and the defendant, Gayley, was merely his servant, and the iron was subsequently sold by Morris to Trout-man, and Etting issued to him a warehouse receipt, and Troutman was a bona fide purchaser for value without notice of the prior pledge by Morris to the bank, then the title of the bank was divested by that sale and delivery to Troutman, and the plaintiff cannot recover.</p> <p>Ans. “ That I think to be so.”</p> <p>9th. If the jury should find that Gayley had notice of the pledge to the bank, the plaintiffs cannot recover in this action, if Trout-man bought the iron after that pledge, and without notice of the pledge paid for it. For the plaintiffs’ right depends on title, and that was divested by the sale to Troutman bona fide, and for value without notice.</p> <p>Ans. “ I affirm this point.”</p> <p>In the general charge the court, Biddle, J., inter alia, said: “ The bank alleges they hold what is called a warehouse or storage receipt, issued by Mr. Gayley to Mr. Morris, and that under our Act of Assembly this receipt is negotiable, and having come to them by assignment, the title of the property of Mr. Morris is in them.</p> <p>“Well, then, if these are warehouse receipts that is undoubtedly true; but are these warehouse receipts ? [Before any one can issue warehouse receipts, he must be in possession of the property, that is, not simply in charge of the property.] If this were not the law, we could carry on no business with any safety, unless we could perform all the duties connected with it ourselves. The porter of your store, before you got down there in the morning, the watchman of the bank, the servants of your house, could give a valid title to all your property. [In the case I put, and which I do not think the danger of has been explained away, coal is sent to you by your coal merchant, whoever he is, the receipts are given by anybody, any member of your family who happens to be there, for one or two, or ten tons of coal; your servant, or your cook, or your wife, writes the name to that. Well, can it be possible, that when that goes back to your coal merchant, that he can assign that, as if you had admitted that you had had that much coal of his in your cellar, and that the man then could sue you or your cook, and when your cook came in, say for you, why I have acknowledged you have got this coal.]</p> <p>“Her answer would be, probably, “I am cook of this house; the man came to the house, and he put this coal down in the cellar, and he says, ‘ Now I want you to give me a memorandum that I have left that here to show when I get home,’ and the cook then hands him this memorandum ; and then if the coal merchant transfers it to somebody else, why then the cook’s lawyer would come here, and would say, ‘Why you don’t mean to say that you want to hold this woman responsible; this is not a warehouse receipt that is negotiable, for you cannot assign this; admitting that this act was done, and the coal was put down in the cellar, this is not a warehouse receipt under the law, and is not assignable;’ and that, in fact, is exactly what is stated here in the present case. * * * [As my opinion is, this man had no such possession of this wharf, under the evidence, as would justify him to give what the law declares to be a warehouse receipt.”]</p> <p>The verdict was for defendant, and after judgment thereon, plaintiffs took this writ, and alleged that the court erred in the admission of the testimony under the above offers, in the answers to points, and in the portions of the charge included in brackets.</p>