Volume 93 — Pennsylvania State Reports

<p>1. The frontage rule of valuation, as applied to rural property, is unequal, unjust and unconstitutional.</p> <p>2. In a scire facias on a claim, for paving, to rebut the defendant’s evidence of the bad character of the paving, there were offered in evidence samples of the stone taken from the quarry, the same as that used in the paving: Held, that those samples should have been admitted ; and that it was error to charge the jury that a failure to produce samples of the very material used, raised an inference that such samples, if produced, would have told against them. Held, further, that these errors were harmless when it appeared that the property sought to be charged was rural property, to which a per foot front assessment would not apply.</p>

3, of Philadelphia county: Of January Term 1880, No. 45. Case by The Popular Loan and Building Association of the city of Philadelphia against Michael Smith, upon a promissory note drawn by George C. Shelmerdine to his own order and endorsed by defendant.

<p>Appeal from the Court of Common Pleas, No. 2, of Philadelphia. county: Of January Term 1879, No. 119. In Equity.</p> <p>Bill in equity filed by Henry Moore against William H. Taylor, William II. Wright, sheriff, and William J. Moore.</p> <p>The bill alleged that in May 1877, William J. Moore made a contract with H. H. Corbin to lay the bricks in the erection of certain houses, for which he was to be paid partly in cash and partly with one of the houses to be erected. On May 22d 1877, II. II. Corbin assigned all his interest as builder to 13. R. Corbin, who thereupon assumed the liabilities of H. H. Corbin under the aforesaid contract with Moore. That on January 29th 1878, W. J. Moore having completed his contract, demanded from I). R. Corbin a conveyance of the house and lot agreed to be conveyed to him, and that the conveyance should be made to Henry Moore, to whom William J. Moore had transferred his interest for a valuable consideration. That on the 29th of January 1878, a deed was executed by D. R. Corbin to Henry Moore, but inasmuch as there was a dispute about an item alleged to be still due under the contract, the deed was delivered to a third party to he held in escrow until said dispute was settled. That before said settlement, and while said deed was still held in escrow, one William H. Taylor recovered a judgment in Court of Common Pleas, No. 2, of Philadelphia county, against said 13. R. Corbin, and that in pursuance thereof a vend. ex. had issued at the suit of said Taylor, and the lot of ground was advertised to be sold by the sheriff on tlie first Monday of October 1878, as the property of said D. R. Corbin. That upon the settlement of the disputed item on the 14th of August 1878, the deed was released from escrow and delivered to Henry Moore, and that on the succeeding day it was duly recorded. That the said deed of Donald R. Corbin vested in complainant a good title, in fee simple, free and clear of all debts of said Donald R. Corbin, not then (to wit, on January 29th 1878), of record; for the reason that the equitable title to said premises was vested in said William J. Moore, from the time of his selection of the said real estate, to wit: at and from the date of his said contract with said Corbin, in May 1877, and also for the further reason, that the full consideration for said premises had been fully paid by said William J. Moore, prior to the said 29th day of January 1878, by work done by him under his said contract. That great and irremediable injury will result to, and be inflicted upon complainant, and the title to his property become clouded and unmarketable, if Taylor is permitted to proceed, and said sheriff is allowed to sell said real estate, as he advertises he will do. That the said defendant Taylor, well knowing of complainant’s title, as hereinabove set forth, and that the said Donald R. Corbin has had no interest whatever in or to said property since the 29th day of January 1878, has caused said real estate to be levied upon and condemned, and to be exposed for sale as aforesaid, with the express intention and purpose of compelling complainant to pay him, said Taylor, the judgment-debt of $110.36 due to him by said Donald R. Corbin, to avoid litigation, and save the title to complainant’s said property from becoming clouded and unmarketable.</p> <p>The bill prayed for an injunction, special until hearing and perpetual thereafter, to restrain the sheriff and Taylor from proceeding further against the estate of complainant, and from selling the same.</p> <p>In support of the bill complainant filed two affidavits to the effect that Taylor was fully cognisant of the facts set forth in the bill, and that he had said his purpose in proceeding against the real estate was to force a settlement of Corbin’s indebtedness to him; that it would be cheaper to pay his claim than to be involved in litigation and expense and have a cloud thrown upon the title.</p> <p>In his answer to the bill, William H. Taylor averred, that shortly before the judgment was obtained, D. R. Corbin had fraudulently transferred and conveyed a large number of properties, so that the judgment might not be a lien thereon; that Corbin obtained credit on said property; that he still had an interest in the property in dispute when the judgment was obtained. He also denied that he knew anything about the title of the complainant as set forth in the bill, and averred that the alleged statements imputed to him in the affidavits were false.</p> <p>The court awarded an injunction in accordance with the prayers of the bill, when Taylor took this appeal, and assigned for error this action of the court.</p>

<p>Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1879, No. 9.</p> <p>Seire facias sur claim for registered taxes issued by the City of Philadelphia against Freeman Scott, owner or reputed owner.</p> <p>The claim was for taxes against the whole of Scott’s property at Fifteenth and Montgomery Avenue, containing about ten acres of land, for the years 1866-9. The claim was for $4043.51. It was filed March 16th 1871. On November 1st 1871, a writ of scire facias sur tax claim issued, but was returned nihil habet. An alias scire facias was then issued on November 17th 1871, returnable to the first Monday of December 1871, and was served by posting and publication. The usual pleas were filed, the cause put at issue, and tried January 11th 1877, when a special verdict was rendered for the plaintiff for $2132.78, against the whole lot above mentioned, except that part which had been released previously. On the trial defendant’s counsel asked the court to charge the jury, that as more than five years had elapsed from the issuing and return of both scire lacias and alias, the plaintiff could not recover, hut was barred by the statute in relation to tax liens. The court refused so to charge the jury, but said the proper proceeding was after verdict to move in arrest of judgment.</p> <p>The special judgment was accordingly rendered, and defendant moved in arrest of judgment and filed the reason above set forth. Prior to and on the day before the original writ of scire facias expired, to wit: on the 31st day of October 1876, the plaintiffs issued a writ called “ a writ of scire facias to revive and continue lienthis was served on Scott, but nothing more was done therein and the case was tried on the pleadings in the original and alias scire facias.</p> <p>On the argument on the motion in arrest of judgment the plaintiff argued that, as the last-mentioned scire facias issued before the original and alias had expired, the lien still continued and was revived thereby, and that the case was still a lis pendens.</p> <p>The defendant argued that the lien of the tax claim, and of the scire facias thereon, expired on the 1st of November 1876, five years after the issuing of the oi’iginal scire facias, or, if not then, certainly by the first Monday of December 1876, the return-day of the alias scire facias.</p> <p>The court arrested judgment, and Briggs, J., delivered the following opinion:</p> <p>“ The verdict in this case was obtained on the 11th of January 1877, upon an alias scire facias issued upon a claim for taxes registered on the 16th of March 1871, against a lot of ground at Fifteenth and Montgomery Avenue, being five years, one month and twenty-five days after the writ of alias scire facias was issued.</p> <p>“ The first section of the Act of the 11th of March 1846, Bright. Dig. 1086, provides that, ‘ All registered taxes as aforesaid, shall cease to be a lien after the expiration of five years from the first day of January in the year succeeding that in which they became due, unless suit be brought to recover the same, as it now is or may be provided by law for the recovery of the same, and duly proceeded m to judgment.’ The second section of said act gives a remedy upon such claims by writ of scire facias, as in the case of mechanics’ claims. And by the Act of June 16th 1836, Bright. Dig. 1036, for remedy upon mechanics’ claims it is provided that: ‘ The lien of every such debt for which a claim has been filed as aforesaid, shall expire at the end of five years from the day on which such claim shall have been filed, unless the same shall be revived by scire facias in the manner provided by law in the case of judgments.’</p> <p>“ It follows from these Acts of Assembly, that the same time is given the plaintiff to obtain judgment upon his writ of alias scire facias, as is given to prosecute to judgment a like writ to continue the lien of a judgment, and this by the very terms of the Act of the 26th of March 1827, Bright. Dig. 820, and the adjudications thereupon is limited to five years from the time of issuing the scire facias: In re Fulton’s Estate, 1 P. F. Smith 204; Meason’s Estate, 4 Watts 344; Silverthorn v. Townsend, 1 Wright 263 ; Ward v. Patterson, 10 Id. 372; Hershey v. Shenk, 8 P. F. Smith 384; Hunter v. Lanning, 26 Id. 26.</p> <p>“ It therefore follows that the plaintiff’s scire facias has not, in the language of the Act of the 11th of March 1846, been ‘ duly proceeded in to judgment.’ And this, notwithstanding, the plaintiff caused a scire facias to revive the lien to he issued October 31st 1876. It is not pretended that this writ was a pluries. Indeed, it could not be, for, as the alias was duly served, there was no legal requirement in the case which a pluries could answer, llegarding it then as an independent writ, as it was held under like circumstances, in Meason’s Estate, supra, it was an abandonment of the scire facias previously issued, and in this view there was no lien to revive, as the lien had already expired on the 16th of March preceding. Viewed in either aspect, the presentment is alike fatal to the plaintiff’s case. We, therefore, order that the rule for a new trial be discharged, and that judgment on tho verdict be arrested.”</p> <p>The plaintiff then took this writ.</p>

<p>Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1878, No. 248.</p> <p>Scire facias sur mortgage by the Mutual Assurance Company, assignee of the Pennsylvania Company for Insurance of Lives and Granting Annuities against John Power, owner, and John Palmer, terre-tenant. The pleas were payment with leave, &c., and specially that the amount claimed was not a just proportion of what ought to be levied of the premises. The replication to the first pleas was non solvit and issue, and to the special plea a common traverse. J. G. Mcllvain, assignee for the benefit of creditors of John A. Palmer, was subsequently substituted as defendant.</p> <p>The mortgage upon which the scire facias issued, was given on the_15th of July 1874 by Power to the Pennsylvania Company, to secure the sum of $10,000, with interest, &c., upon premises southwest comer of Thirty-ninth and Locust streets, one hundred feet front on Thirty-ninth street, by one hundred-and twenty feet in depth.</p> <p>In the spring of 1875, the said Palmer entered into a written contract with Power, to erect a stone dwelling upon the lot thirty feet front on Thirty-ninth street by one hundred and twenty fee in depth. Palmer made inquiry, and found the above-mentioned mortgage of §10,000 upon the lot in the name of the Pennsylvania Company, and was advised by his conveyancer that the mortgage covered the entire one hundred feet front on Thirty-ninth street, and that he was safe. On the 20th of May 1875, Palmer took possession of said thirty feet front on Thirty-ninth street and commenced work under his contract.</p> <p>On or about the 10th of November 1875, the Mutual Assurance Company, plaintiffs, sent their representative to examine said premises, who went through the house, which was then in an unfinished condition, only having the rough coat of plaster on, and made his report to said company. The company then agreed to purchase said mortgage and release seventy feet front on said Thirty-ninth street, in two lots of thirty and forty feet respectively.</p> <p>The plaintiffs, on the 9th of November 1875, under the above mentioned agreement, took an assignment of said mortgage from the Pennsylvania Company and recorded the same on the 12th of November 1875; and on the same day, released thirty feet front of said large lot by one hundred and twenty feet in depth from the lien of said mortgage.</p> <p>Palmer, upon hearing that the Mutual Assurance Company had taken an assignment of said mortgage and released a portion of the mortgaged premises, notified the plaintiffs, in February 1876, of his position and requested them not to release. The fact that such notice was given was denied by the company.</p> <p>On the 17th of April 1876, the company, plaintiffs, executed a second release for forty feet front of said lot by one hundred and twenty feet in depth, leaving but thirty feet front of said lot subject to the lien of said mortgage.</p> <p>Palmer subsequently filed his lien for building said house as per contract, had the premises sold by the sheriff in July 1876, and for Ms own protection, purchased the property. On the 25th of November 1876, the plaintiffs brought this suit on the mortgage.</p> <p>Among the points presented at the trial by the plaintiffs, were the following, all of which the court affirmed:—</p> <p>2. That unless Palmer, before the plaintiffs released any portion of the mortgaged premises from the lien of their mortgage, gave them distinct notice of his lien as contractor for the erection of the house at the corner of Thirty-ninth and Locust streets, and cautioned them against such release, he has no defence to this action, and the plaintiffs are entitled to recover the full amount of the mortgage with arrears of interest and collection fee.</p> <p>8." That there is no evidence that Palmer gave to tho plaintiffs such notice, prior to their releasing the lot containing thirty feet front on Thirty-ninth street, sold to Walker. If the jury, in weighing the testimony, come to the conclusion that Palmer did, before the release to Power of the forty feet on Thirty-ninth street, dated April 22d 1876, give the plaintiffs notice of his lien and request them not to release, then, in that case, the defendant is entitled to a deduction from the full amount of the mortgage only of the proportionate amount which the said forty feet lot ought to bear of the whole amount of this mortgage ; in other words, the plaintiffs are entitled to recover the full amount of the mortgage debt with interest and collection fees, less the proportionate amount, which the said lot ought to bear.</p> <p>4. That the occupation of the lot at the corner of Thirty-ninth and Locust streets by Palmer, as contractor for the erection of the building thereon, and his being employed in such erection, was not such notice as required by law, and the plaintiffs are entitled to recover the full amount of the mortgage with interest and collection fee, notwithstanding such occupation and employment. They did not impose on the plaintiffs the duty of inquiry as to the existence of a lien in favor of Palmer.</p> <p>5. That there is no evidence that the plaintiffs, by their action, deprived Palmer of an opportunity to give them further notice than his possession and the erection of a building.</p> <p>In the general charge, the court submitted a calculation made by the plaintiffs as to the proportionate amount due, if the jury should find that the plaintiffs had notice not to release the forty foot front lot. This calculation simply deducted the proportionate value to the whole lot of forty feet front on the same from the whole amount of the mortgage debt. And after submitting this calculation, the court charged: “ If you find notice was given, you must find for plaintiffs the amount as per their calculation.”</p> <p>The verdict was for the amount as thus ascertained by this calculation, and after judgment thereon, the defendant took this writ and alleged that the court erred in afiirming the plaintiff’s points and in the foregoing portion of the charge.</p>

Appeal of Emma Tholey from the decree of the court sustaining the appeal of Mary Geiger from the decision of the register of wills in the matter of the estate of Philip J. Tholey, deceased. The decedent died January 7th 1879, and letters of administration were granted by the register two days subsequently unte Mary Geiger, a cousin of decedent.

<p>A factor who retains money of his principal is not a fiduciary debtor, within the meaning of the Bankrupt Act, and such a debt is discharged under the act.</p>

<p>Error to the Court of 'Common Pleas, No. 1, of Philadelphia comity: Of July Term 1878, No. 1.</p> <p>Assumpsit by Andrew Mayer against William H. Taylor, to recover $165.64 and interest, being the difference which certain premises realized at a sheriff’s sale of the same under a second mortgage for $500, and the amount of said second mortgage and interest. The ground of the claim was a clause in the deed of conveyance of the said premises by Thomas S. Shoemaker and wife to William H. Taylor, dated December 9th 1875, stating that the said conveyance was made subject to the payment of the said mortgage. The narr. contained the common counts only. In the bill of particulars the claim above stated was set forth. The pleas were non assumpsit, payment and set off, with leave, &c.</p> <p>The plaintiff on the trial offered in evidence the mortgage and various assignments of the same, the last being by Lewis Shronk to Andrew Mayer, on May 31st 1876. Also, deed of Shoemaker and wife to Taylor, dated December 9th 1875, for the mortgaged premises. This deed recited that the conveyance was " under and subject” to the mortgage in question.</p> <p>The plaintiff also offered a certificate of no set off, signed by William H. Taylor, which set forth that he had notice of the intended assignment to Andrew Mayer, and “ now, therefore, at the request of the said Andrew Mayer, I do hereby certify, acknowledge and declare, that I have no defence, set-off or claim whatever, in law or equity, to make against the said bond or mortgage, so to be assigned as aforesaid, but that the whole of the principal sum thereby secured, with the interest thereof, from the 5th day of February 1876, is justly payable, according to the provisions of the said bond and mortgage, and I do further declare that I am now seised in foe simple of and in the premises described and granted in and by the said indenture of mortgage.”</p> <p>Also, the sheriff’s docket, showing the settlement with the sheriff, and the deficiency of $165 claimed.</p> <p>The plaintiff’s first point, which the court affirmed, was as follows: “ That if the jury believe that the defendant, Taylor, accepted a conveyance of the premises in question, which expressly stated that it was made under and subject to the mortgage-debt, which was secured by the mortgage in question, and also gave to the plaintiff, Mayer, a certificate in which he declared that he had no defence or set off to make to the bond or mortgage aforesaid, and that he was then seised in fee simple of and in the premises described, and granted in and by the said indenture of mortgage, their verdict must be for the plaintiff.”</p> <p>The verdict was for plaintiff, and after judgment the defendant took this writ, and, inter alia, alleged that the court erred in affirming the above point.</p>

<p>Appeal from the Court of Common Pleas, No. 2, of Philadelphia county : Of January Term 1879, No. 211.</p> <p>Case stated for the opinion of the court, in the same manner and to the same effect, as if the facts therein stated were found by the report of an auditor; and thereupon the court shall direct distribution of the assets and securities and money as ought to bo done according to law.</p> <p>Elizabeth M. Ebbs, being a widow, with five children, then living, in contemplation of the marriage of her daughter, Florence, executed and delivered a deed, together with the securities therein mentioned, to Richard Cowan and Arthur Ebbs, the trustees therein mentioned, which deed bears date October 7th 1866. The deed is as follows :—</p> <p>“ This indenture, made the seventeenth day of October, in the year of our Lord, one thousand eight hundred and sixty-six (1866), between Elizabeth Ebbs, of West Chester, county of Chester, state of Pennsylvania, of the first part, and Richard Cowan, of the city of Pittsburgh, in the state aforesaid, and Arthur Ebbs, of the said borough of West Chester, of the second part: Witnesseth, that the said party of the first part, for and in consideration of natural love and affection to Florence Ebbs, a daughter of the party of the first part, who is about intermarrying with Duncan Clinch Phillips, of the city of Pittsburgh, and of the sum of one dollar paid by the parties of the second part, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, released and confirmed, and by these presents doth grant, bargain, sell, release and confirm unto the said parties of the second part, their executors, administrators and assigns, the sum of fifty thousand dollars; twenty thousand dollars of which is owing and payable by the Connecting Railroad Company, in the county of Philadelphia, and sécured by their bonds for that amount, bearing interest; arid the sum of fifteen thousand dollars is owing and payable by the Junction Raih'oad Company, in the'said county, and secured by their bonds for that amount, bearing interest; and the like sum of fifteen thousand dollars is owing and payable by the Philadelphia & Erie Railroad Company, and secured by their bonds to that amount, bearing interest. All of which bonds are respectively secured by a mortgage on the property of the respective railroad companies. To have and to hold the above-mentioned sum of fifty thousand dollars unto the said parties of the second part, their executors, administrators and assigns for ever, in trust for the sole and separate use of the said Florence Ebbs, and to suffer and permit the said Florence Ebbs to receive the income and annual profit from the said bonds for fifty thousand dollars, or other securities in which the same shall be invested, or, in their discretion, to receive the same and pay over the said income into her proper hands for her sole and separate use during the term of her natural life; and from and after the termination of the said estate of her, the said Florence Ebbs, in trust, to hold the said property and securities in trust for such child or children of her, the said Florence Ebbs, as shall be living at the time of her death, and the issue of such as shall then be deceased bearing issue, such issue taking a parent’s share, to be conveyed to them as they or the survivor, or survivors, of them shall respectively attain twenty-one years of age, in equal shares as tenants in common; and in default of any of such children or issue attaining twenty-one years of age, then in trust for such person or persons as would have been entitled to the said property and securities, had the party of the first part died possessed thereof after the death of the said Florence Ebbs without issue, her surviving.”</p> <p>The marriage of Florence Ebbs to Duncan Clinch Phillips immediately followed. Arthur Ebbs, one of said trustees, died in 1873. By deed, duly executed, the Philadelphia Trust, Safe Deposit and Insurance Company was, in 1873, substituted as trustee in the place of the said Richard Cowan, resigned.</p> <p>Mrs. Florence Ebbs Phillips died on the 4th day of February 1870. She left surviving her one child, Florence Ebbs Phillips, who died on the 17th day of September 1878, at the age of nine years and upwards. Her father, Duncan Clinch Phillips, survived her, and is still living, and is the next of kin of said child.</p> <p>Mrs. Elizabeth M. Ebbs died on the 14th day of August 1878, leaving a will, dated the 2d day of December 1873, disposing of all her estate, and of this will John S. Newbold is the executor.</p> <p>If the property mentioned in the account passed by this will, the proper person to receive it is the said executor, in trust for the uses of the will.</p> <p>There were three children of Mrs. Elizabeth M. Ebbs, who survived her, viz., two daughters, Alice, intermarried with Joseph B. Dillingham, and Bessie, and a son, Walter, all of full age; and there were no other children, or issue of deceased children, living at her death, other than these three children, and the daughter of Mrs. Phillips, who died September 17th 1878, as above stated.</p> <p>The said Elizabeth M. Ebbs also had one other child, named Arthur, who died in the year 1873, of full age, without issue, his widow, Mary, surviving him and still living.</p> <p>As to the corpus of the estate, the question is, who of these persons is entitled to the same upon the death of Florence Ebbs Phillips, under the age of twenty one years, intestate, without issue and unmarried ?</p> <p>The court made a decree that “the residue of the funds in the hands of the accountants shall be paid or assigned to the three children .of Mrs. Elizabeth M. Ebbs, as her next of kin, and entitled as such under the deed of settlement; that is to say, to Walter Ebbs, Bessie Ebbs and Alice Dillingham, in equal shares.”</p> <p>From this decree Phillips took this appeal.</p>

<p>Appeal from the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1879, No. 126. In Equity.</p> <p>Bill in equity filed by Conrad S. Grove against A. Charles Barclay and John K. Barclay.</p> <p>Tbe bill in substance avers that defendant A. Charles Barclay and wife, by deed of June 20th 1873, conveyed to plaintiff property No. 136 North Delaware avenue, running through to Water street, and being No. 129 Water street; that at the time of that conveyance there was and still remained in said building a large quantity of heavy and other machinery, belonging to defendants, or one of them; that on December 17th 1873, plaintiff notified defendants to remove the machinery by December 29th, or he would sell it at public sale; that on December 19th 1873, in answer thereto, he received a letter from the attorney for defendant John K. Barclay, alleging that he, plaintiff, knew of certain complications, not therein stated, between the two defendants, and threatening to hold him responsible for John K. Barclay’s interest in the real estate and machinery; that plaintiff is a bona fide purchaser; that said John K. Barclay had. no legal nor equitable title to the real estate; that complainant had reason to fear, from the tenor of the letter, that he might at some future time become involved in litigation in respect to the same, when witnesses should have died; that the defendants continue to permit the machinery to remain on the plaintiff’s premises; that the machinery is very cumbersome and requires spacious room for storage ; that the plaintiff has no certain knowledge of the respective interests of the defendants in the machinery, and it is unjust that it should cumber his property, or that he should be put to the trouble and expense of an action for damages for removing it, and the removal and storage would be expensive; and that by reason of there not being a contract respecting the time the machinery should remain or as to compensation for storage, plaintiff has no adequate remedy at law. The bill prays 1. That defendant John K. Barclay may be decreed to make all his claim against the plaintiff as to the realty in this suit. 2. That it may be decreed that plaintiff has a good and valid title. 3. That defendants shall remove the machinery, and in default thereof, that it may be sold. 4. Reasonable compensation for storage. 5. General relief.</p> <p>An “ amendment by way of addition to original hill” was filed. It was in the nature of a bill of revivor, and set forth the proceedings in the cause to that time, averring that the plaintiff died intestate, on September 28th 1874, and substituting as plaintiffs both his administrator and also his heirs at law.</p> <p>The defendant A. Charles Barclay allowed the bill to be taken pro confesso.</p> <p>Defendant John K. Barclay filed a demurrer and answer, by which he (1) demurred for want of equity in the bill, and (2) not waving the demurrer, admitting the most of the material allegations of fact in the bill, except that plaintiff is a bona fide purchaser, and that defendant was in any respect in default, avers that he is the owner of store 127 North Water street (adjoining the plaintiff’s), containing a large quantity of costly machinery connected with that in No. 129, and dependent on it for its motive power; that the machinery in the two stores was erected while they were both owned by Andrew C. Barclay, father of the two defendants, who at the same time sold No. 129 to A. Charles, and 127 to John K., and the machinery in 129 to the two jointly, for which they gave their joint bond for $1.6,000 ; that a suit in equity had been brought by A. Charles against John K., and was then pending before a master, which would determine the ownership, &c., of the machinery; that Conrad S. Grove, the original plaintiff, was one of the witnesses for A. Charles before his purchase, and bought with full notice and knowledge of the complications, and his rights are no greater than those of A. Charles ; that this suit is brought in the interest of A. Charles, and to embarrass that suit; that defendant has repeatedly offered to buy or sell at prime cost, and now offers to sell, if he has any ownership; and that No. 129 is a complete linseed-oil mill, machinery, smokestack, &c., being very expensive, and the machinery in No. 127 can only be used as an adjunct thereto.</p> <p>The master, Simon Gratz, Esq., reported the facts and the following decree, which was adopted by the court:</p> <p>1. That the plaintiff, Conrad S. Grove, was a bona fide purchaser for value, of the real estate and premises No. 129 North Water street, described in his (said plaintiff’s) bill, without notice of the existence of any easement, license, or state of facts, by or under which the defendants, John K. Barclay and A. Charles Barclay, or either of them, or any owner of the premises No. 127 North Water street, might or could claim any right or interest in said premises No. 129 North Water street; and that said premises No. 129 North Water street are not subject to any such easement or license.</p> <p>2. That the defendants have not, nor has either of them, any right, title or interest, in or to the said real estate and premises No. 129 North Water street.</p> <p>3. That the defendants shall, within days from the date of this decree, remove, or cause to be removed, from said premises No. 129 North Water street, the following named items of machinery, now therein, belonging to said defendants, or one of them, viz.: the engine, fly-wheel, boilers, shafting, oil-pipes, heaters, tubes, crushers, presses, iron tanks, rolls and pulleys, hoisting apparatus connected with the elevator, in No. 127 North Water street, and pumps. And that, failing to remove, or to cause the removal of, said items of machinery within said time, the plaintiffs may cause the same to be sold at public auction, and the proceeds of such sale, after deducting all charges and expenses incident thereto, shall be paid over to the defendants, or either of them.</p> <p>4. That the defendants shall pay to the plaintiffs, as compensation for the use of said premises for the storage of said machinery the sum of $5666.75. 5. That the said John K. Barclay shall pay the costs of the proceedings.</p> <p>The latter then took this appeal alleging that the court erred in making this decree.</p>

<p>Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1878, No. 84.</p> <p>Case stated for the opinion of the court wherein Samuel Gustine Thompson was plaintiff and Bushrod Adams and others, members of the Philadelphia Stock Exchange, late Philadelphia Board of Brokers, were defendants.</p> <p>The following facts have been agreed upon as a case stated, as if found, by a special verdict of a jury, with liberty to the court below, and the court above to draw the same inferences of fact as a jury might draw, and with leave to either party to sue out a writ of error, the judgment entered to be in the nature of a judgment on a special verdict.</p> <p>The Philadelphia Stock Exchange (late Board of Brokers) is an unincorporated association, governed by a constitution and by-laws, reference to the material parts of which is hereby made a part of this case stated.</p> <p>Originally a seat in the board of brokers (i. e. the collective privileges of a full member of the board) was valuable only during the life or membership of its owner; subsequently, by the said constitution, members were allowed, under certain conditions, to transfer their seats for value, and subsequently to that a clause was added to the constitution giving value upon certain conditions to a member’s seat after his death.</p> <p>Section 12 of the constitution is as follows :</p> <p>“ * * any member shall have the right to sell his membership under the following provisions :</p> <p>“ When any member wishes to sell his membership, the name of the proposed purchaser shall be submitted to the standing committee of the board, and on the approval of two-thirds of said committee the transfer may be made, provided the member selling has no unsettled contracts or claims against him for stock differences or borrowed money. But any member may demand a vote on such admission, and the applicant shall then be received, provided not more than fifteen black-balls be cast against him, and that not less than fifty balls be cast.</p> <p>“ When a member dies his seat may be sold by the secretary, and after satisfying the claims of the members of the board, the balance shall be paid to his legal representatives.”</p> <p>Sect. 11 of the by-laws is as follows:</p> <p>“ Any member who fails to comply with his contracts, or who becomes insolvent, shall immediately inform the president of the board of the fact, whose duty it shall be to give notice forthwith, from the chair, of the failure of such member, and in case of the refusal or neglect of such delinquent to make such report to the president it shall be the duty of any member having the knowledge of the fact to report the same forthwith to the standing committee or the president, who shall thereupon appoint a committee of three members, to inquire into the fact and report thereon without delay; and if said committee report the charge to be true, and the board confirm the report, said member shall be suspended; and it shall furthermore he the duty of the standing committee upon receiving information thereof, or having, directly or indirectly, any knowledge of such failure on the part of any member to comply with his engagements, as above stated, to report the same without delay to the president, and ask for the appointment of a committee, as before provided. And in case of the insolvency of any member he shall, within three days, make good to the full amount thereof all friendly loans of cash or stock from members or any overdraft on any bank. But seven days shall he allowed him in which to settle stock contracts.</p> <p>“ On application for re-admission, a suspended member may he restored to his seat by ballot, provided not less than fifty votes are cast, and not more than fifteen black-balls appear against him; but such application shall first be referred to the standing committee, whose duty it shall be to ascertain that the applicant has settled and arranged his affairs to the satisfaction of his creditors, and that his present situation affords a reasonable security in future transactions.</p> <p>“It is expected from the applicant that he will give the committee full explanations on any disputed or unsatisfactory transactions, and at their request free access to his books and papers for that purpose.</p> <p>“A suspended member shall, if reinstated, pay all fines due at the time of his suspension.</p> <p>“ A suspended member presenting a certificate of discharge in full of his debts under the United States Bankrupt Law, becomes eligible under the rules reinstating suspended members.</p> <p>“ If any suspended member fails to settle with his creditors within one year from the time of his suspension from the hoard, his seat shall be sold by the secretary, and the proceeds shall be paid pro rata to his creditors in the board.</p> <p>“ Ño expulsion or suspension of a member shall affect the rights of creditors as provided for in the constitution and by-laws.”</p> <p>Section 9 of the constitution is as follows:</p> <p>“ On the first Monday of January of each year there shall be elected a standing arbitration committee, to consist of seven members, whose duty it shall ho to investigate and decide all claims and matters of difference arising between members of the hoard, and also to adjudicate such claims as may be preferred against members by non-members when such non-members agree in writing to abide by its decision. The decision of this committee shall be final, except in cases involving a difference of five hundred dollars, or over, when either may appeal within three days to the board for final adjudication; provided further, that upon the application of three members of the committee, any decision shall he referred to the hoard for final action.”</p> <p>Subsequently to the passage of the foregoing sections of the constitution and by-laws, on the day of 187 , 'Samuel A. Richards became a member of the board of brokers, a seat having been duly transferred to him by a then member of the board of brokers upon the payment to the latter of a valuable consideration for the same.</p> <p>The said Richards remained a member of the board until his death, which occurred on the day of May 1876. Shortly prior thereto and at the time of his death, he was indebted to various members of the board of brokers, in the sum of $5377.17.</p> <p>The seat of said Samuel A. Richards was duly sold the day of 187 , to , for the sum of . Upon the request of Mr. John Moss, Jr., member of the board of brokers, and a creditor of said Richards, a meeting of the standing arbitration committee was held on the 1st day of June 1876, pursuant to notice, at the Philadelphia Exchange Building, notice having been duly given to Mr. Richards's personal representatives, and to Mr. Samuel Gustine Thompson, the plaintiff, who was present and represented himself. Business was transacted at the said meeting as follows, as appears by the following copy of the minutes of the said meeting:</p> <p>“In the matter of the seat of Samuel A. Richards, deceased, sur claim of creditors.</p> <p>“ June 1st 1876.</p> <p>“ The committee met at the request of John Moss, Jr., Esq., a creditor of said Richards, deceased, at 3 o’clock p. m., notice having been duly given to Samuel G. Thompson, who was present for himself, and to the personal representatives of Mr. Richards. Mr. A. Sydney Biddle was present as the attorney of the Philadelphia Stock Exchange (late Board of Brokers).</p> <p>“ Mr. Biddle stated that Mr. Richards had recently died, owing to various members of the Stock Exchange (late Board of Brokers), $3190.88, which was the balance due his creditors in the board, after deducting from the sum $5377.17, the whole amount owing by him to them — the sum of $2186.29, which latter sum had been placed in his (Moss’s) hands, as treasurer of the creditors of Mr. Richards.</p> <p>“ Mr. Samuel G. Thompson then stated that the money with which the seat of Mr. Richards had been purchased, had been furnished by him — Mr. S. G. Thompson’s brother being a partner of Mr. Richards. When the firm of Richards & Thompson was dissolved, Mr. Richards was given permission by him, Mr. S. G. Thompson, to use the seat for one year, and at the end of that time this permission was renewed, Mr. Richards at the dissolution of the partnership having given a bill of sale of the seat, and a power of attorney to transfer to Mr. S. G. Thompson, which the latter still held. The seat had until Mr. Richards’s death, always been in Mr. Richards’s name, and no notice that the seat did not belong to said Richards, or claim that it belonged to any one else, or that it had been paid for with the money of another, had ever been brought to the attention of any of the officers or members of the board, or was known to any member or officer of the society except to the said Richards. Mr. Thompson desired that the committee should not take jurisdiction of the case, but that it might be settled in court, before it bad been settled by the standing arbitration committee.</p> <p>“The committee decided, however, to hoar the claim of the creditors of S. A. Richards, and to allow Mr. Thompson to make any claim before them if he desired to do so. Mr. Moss, on behalf of the creditors of Mr. Richards, submitted a detailed statement showing in an itemized form the sums due by Mr. Richards at his death to his various creditors in the Board, amounting in all to $5377.18, to the liquidation of which said Richards ’had paid $2186.29, leaving a balance due by him to his creditors of $8190.88. On motion of Mr. Baekman, the committee unanimously decided that the claims, so as aforesaid presented by Mr. Moss against Mr. Richards’s seat were correct, separately and in the aggregate, and decided that the said Samuel A. Richards, at his decease owed these sums respectively, to the various creditors mentioned in the statement, subject to the aforesaid ci edits, amounting to $2186.29, paid by him as aforesaid, making a total indebtedness, by him at his death to members of the board, of $3190.88. On motion of Mr. Stevenson, a member of said committee, it was</p> <p>“ ‘ Resolved, that committee has passed upon these claims with the full knowledge that Mr. S. O. Thompson claims to be the equitable owner of the seat of Mr. S. A. Richards, deceased.</p> <p>“ A copy of the statement of the debts and credits presented as aforesaid by Mr. Moss to the committee is hereunto annexed, and forms part of minutes of this meeting. John S. Capp,</p> <p>Secretary.’ ”</p> <p>“ In reality Mr. Samuel Gustine Thompson, the plaintiff, had advanced to Mr. Richards the sum, to wit, $1000, with which tho latter’s seat in the board was purchased, and the seat had been allowed to continue in the name of Mr. Richards without notifying any officer or member of the board of brokers, that he, Thompson, was the owner of said seat, or that Mr. Richards had not paid therefor out of his own money. In fact no member or officer of the board of brokers except Mr. Richards, knew, or supposed or had any ground to suppose, that the said Richards was not, in every respect, the owner of said seat, or that he had not paid for the same wholly out of his own money.</p> <p>“In July 1873, upon the dissolution of the firm, consisting of the said Richards and William E. Thompson, brother of said Samuel Gustine Thompson, a power of attorney authorizing a transfér of, and a bill of sale of said seat were handed by said Richards to the said plaintiff, dated July 3d 1873. No notice of this transfer of these documents, or any allusion thereto, was ever made by the said plaintiff, or by any one else to any member or officer of the board of brokers, until after the death of the said Richards, at which time the aforesaid debts.found to be due by the arbitration committee had fully accrued, nor until that time was the fact known to or suspected by any member of the board of brokers.</p> <p>“ The administratrix of said Richards has duly received notice of all the facts herein contained, and waives any right to interfere in this proceeding, and hereby by her attorney expressly agrees and assents, that the said seat or the proceeds arising from the-sale thereof may go to and become the property of said Samuel Gustine Thompson, if this court shall be of opinion that he is entitled to the said seat or to the proceeds thereof, as against Richards’s aforesaid creditors in the board of brokers.</p> <p>“ The question for the decision of the court is, whether or not upon the above facts the said plaintiff is entitled to the proceeds or any part thereof, of the said seat either in full or pari passu with the other creditors of said Richards, who, at his decease, were members of the board of brokers, or whether the latter’s claims are paramount to, and until satisfied, exclusive of any claim of said plaintiff.</p> <p>“ If the court shall be of opinion that the plaintiff is entitled to any portion of the said proceeds of the said seat, then judgment shall be entered in his favor for that amount with interest from June 1st 1876. But if the court be of contrary opinion, the judgment shall be entered for the defendants. The costs of the case including the price of printing the case stated, and paper-books, if a writ of error be taken, to be paid for by the unsuccessful party.”</p> <p>The court entered judgment for the defendants, Elcock, J., delivering the following opinion :</p> <p>“The case shows that plaintiff, about 1873, gave to Samuel A. Richards, who was a partner with William E. Thompson in the business of stock brokers, the sum of $1000 to purchase a seat in the board of brokers. The seat was purchased by Richards, and he continued to hold it by plaintiff’s permission, without knowledge on part of the board of any other ownership or title, until his death in May 1876. At that time he was indebted to various members of the board in the sum of $5477.17.</p> <p>“ Under sect. 12 of the constitution of the board, ‘ when a member dies his seat may be sold by the secretary; and, after satisfying the claims of the members of tbe board, the balance shall be paid to the legal representatives.’</p> <p>“ The seat was accordingly sold by the secretary, and the question raised is, whether or not plaintiff is entitled to the proceeds, or any part thereof, either in full or pari passu with the other creditors of said Richards, who, at his decease, were members of the board of brokers, or whether the latt-er’s claim is paramount to, and, until satisfied, exclusive of any claim of said plaintiff.</p> <p>“ lias plaintiff such an equitable title to said seat as would save it from the duties and liabilities attaching by the constitution and by-laws of the board to the legal holder of the title and the acting member of tlie board ?</p> <p>“ The defendants are an unincorporated association, governed by a constitution and by-law's for the mutual advantage of buying and selling stocks in an open exchange or market, and for their mutual protection and advantage in securing settlements or paying for tlie same.</p> <p>“ By sect. 12 of the constitution, a member shall have the right to sell his membership under the provisions that the name of the proposed purchaser shall he submitted to the standing committee of the board, and on the approval of two-thirds of said committee, the transfer may be made, provided the member selling has no unsettled claims against him for stock differences or borrowed money.</p> <p>“ Under this Richards purchased tbe seat of a former member, and was accepted by the standing committee.</p> <p>“ By tbe 11th by-law it is provided, upon tbe failure or insolvency of a member, that he shall be suspended, and shall, within three days, make good to the full amount all friendly loans of stock from members, or any over-draft on any bank, and in seven days settle all stock contracts. If a suspended member fails to settle with his creditors within one year from the time of his suspension, his seat shall be sold by the secretary, and the proceeds shall be paid pro rata to his creditors in the board.</p> <p>“ By sect. 9 of tbe constitution, a standing arbitration committee of seven members is provided, whose duty it is to investigate and decido all claims and matters of difference arising between members of the board, and also to adjudicate such claims as may be preferred by non-members, when such non-members agree, in writing, to abide by its decision, and where tbe differences exceed §5500, provides for an appeal to the board for final adjudication.</p> <p>“ The ownership of a seat or membership by a person other than the occupier thereof, or the actor in the business, is not contemplated either from the nature of the business or the constitution and by-laws of the board. If the association was to permit such a holding, one of its great objects would be gone, and tbe mutual protection given to the claims of members in case of failure, insolvency or death of a co-member, would be defeated.</p> <p>“Membership can only be constituted in accordance with the constitution of the board. Richards was, therefore, the member holding the legal title to the seat, and by reason of such legal membership, subject to all the duties and liabilities attaching thereto.</p> <p>“ A seat in the board is a species of property, encumbered with conditions. It is not a matter of absolute purchase, for it never was freed from the conditions and duties of the constitution and by-laws.</p> <p>“ The plaintiff’s title can be but an equitable one, and, as between himself and the board of brokers, his title would be subject to all claims against it created by the laws’ of the association by reason of Richards’s legal membership. His equitable title cannot rise above the legal, or be freed of the duties or liabilities imposed upon it.</p> <p>“ It would have been impossible for plaintiff to have had a transfer either by agreement or by legal enforcement, except under the terms of art. 12 of the constitution, which provides that the sale shall receive the assent of two-thirds of the committee, and that all contracts or claims against Richards for stock differences or borrowed money should be settled.</p> <p>“A secret holding could not affect the rights of the board, with- ' out whose authority the seat or membership could not be held or transferred.</p> <p>“ It is ingeniously argued by plaintiff’s counsel that, under rule 9, the arbitration committee can investigate and decide only upon ‘differences arising between members of the board,’ that this cannot relate to cases where members have died, thus leaving no authority to determine the claims of' the co-members. This might have some weight were it not for the portion of sect. 12 of the constitution, which provides: ‘ Where a member dies, his seat may be sold by the secretary, and after satisfying the claims of the members of the board, the balance shall be paid to his legal representatives.’</p> <p>“ In Singerly v. Johnson, 3 W. N. C. 541, Allison, P. J., decided in a case somewhat similar that the decision of the arbitration committee was final as to the existence, validity and amount of the creditor’s claim.</p> <p>• “ The jurisdiction of the courts cannot be ousted by contract, but any person may covenant or agree that no right of action shall accrue until a thrid person has decided on any difference that may arise between himself and the other party to the covenant. The leading case upon this subject, and followed in Pennsylvania, is Scott v. Avery, 5 H. of L. C. 811.</p> <p>“ This doctrine is particularly applicable to membership in associations; and whore a by-law provides for a disposition of the seats on the death of a member by action of a committee, or of the whole association, it becomes the law controlling the estate or interest passing to the legal representatives.</p> <p>“ The power to make sale of the seat is in the board, and even a judicial sale of the seat could not divest the claims of the board upon the proceeds, for their claim is a condition attached to the property and membership. The legal representatives have no claim upon any proceeds until the full duties of .membership have been complied with in the payment of all debts due members.</p> <p>“ It is argued that the power of the secretary to make sale of the seat is limited to the assent of the legal representatives of the deceased member. The word may in the section of the constitution should, doubtless, be read must, because the settlement of the debts by the sale is compulsory. This right, of course, is subject to all the legal requisites of a fair sale.</p> <p>“ The power of the Orphans’ Court is restricted by the laws of the association over the balance remaining after payment of the debts due members of the board, the legal representatives being only entitled to that, and having no right to active membership, or to make sale of the seat, except in the manner pointed out by the constitution. The debts are not regarded as liens upon the seat, but their payment in a condition under which the membership was sanctioned or granted.</p> <p>“ In Evans v. Wister, 32 Leg. Int. 354, the Supreme Court held that an attachment would not lie against the board of brokers for the proceeds of the sale of a seat of a member, he being indebted to the amount of the proceeds.</p> <p>“ This was an affirmance of Leech v. Leech, reported in 31 Leg. Int. 212.</p> <p>“ And in Singerly v. Johnson, supra, it was held that the death of the member did not revoke any of the rules applied to membership.</p> <p>“ In Hyde v. Woods, 4 Otto 523, s. c. 15 Nat. Bank Reg. 518, the Supreme Court of the United States determined that a provision in the constitution of the California Stock Exchange Board (similar to the one in question), that in sales of seats of delinquent members the proceeds should be applied to the benefit of the members of the board, exclusive of outside creditors, was valid, and that such claim was not a lien, but a condition of membership.</p> <p>“ The plaintiff invested his money, trusting to the integrity of Richards. He permitted him to exorcise the rights of membership, and thus to become liable to its penalties.</p> <p>“ The indebtedness of Richards exceeding the proceeds of the sale of the seat, judgment must be entered in favor of the defendants on the case stated.”</p> <p>The plaintiff took this writ, alleging that the eourt erred in ■ entering judgment for defendants.</p>

1, of Philadelphia county: Of July Term 1878, No. 82. Attachment-execution by S. Pancoast against Henry Gowen and others, trading as The Philadelphia Stock Exchange, garnishees. Upon a judgment obtained by Pancoast against Joseph L. Houston, an attachment execution was issued and served upon Gowen and others, trading as The Philadelphia Stock Exchange, as garnishees.

<p>_1. To a scire facias on a municipal claim, the defendant pleaded that the highway department had contracted with the claimant without complying with the provisions of the ordinance under the provisions of which the contract was made. The claimant replied that under a subsequent ordinance all such contracts were ratified and approved. The defendant demurred on the ground that the contract having been invalid it could not be thus ratified as against defendant: Held, that judgment should have been entered for claimant on the demurrer.</p> <p>2. Although the agent of the city exceeded his authority, as the contract was one which the city might have authorized, it could waive the irregularity and adopt the contract after it was made. The question of adoption is one exclusively for the city, and with which the citizen has nothing to do.</p> <p>3. McKnight et al. v. City of Pittsburgh, 10 Norris 273, followed; City of Philadelphia v. Phila. & Reading Railroad Co., 7 Norris 314, distinguished.</p>

1, of Philadelphia county: Of July Term 1878, No. 107. Assumpsit by Walter Heyl against Peter Eritz, on a promissory note, made by the defendant to the order of J. R. Casselberry, by whom the same was endorsed. After the cause was at issue, a rule was granted to show cause why the record should not bo amended so that it would read, “ Walter Heyl, to the use of A. L. Bonaffon v. Peter Fritz,” which rule was by consent made absolute.

<p>Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1880, No. 19.</p> <p>Feigned issue, wherein John M. Bisbing was plaintiff and the Third National Bank defendant.</p> <p>On October 5th 1876, Bisbing purchased at sheriff’s sale, made by virtue of an execution issued by him on his own judgment, against the firm of James E. Packer & Sons, certain goods for $211. His judgment was for some five hundred and odd dollars, cash loaned. After the sale he did not remove the property, which consisted of machinery in a small machine shop, but allowed the Packers the use of it, so they might earn money to pay him back. Sometime after the present defendants, the Third National Bank, levied upon the same goods, upon which Bisbing claimed them, a sheriff’s interpleader was framed, and James Miller became surety upon the claimant, Bisbing’s bond. Subsequently, difficulties again arising in Packers’ business, Bisbing sold these goods at auction for $800, and the money was placed in Miller’s hands to indemnify him on his bond. Miller, however, paid over to Bisbing $430, and he relinquished his claim to the remaining $370 in favor of the Packers.</p> <p>At the trial, before Hare, P. J., the plaintiff offered in evidence the record of the judgment of Bisbing v. Packer & Sons, and called Bisbing, who testified, “ I am the plaintiff in this case; I owned these goods ; I purchased them at sheriff’s sale of Packer & Sons for $211, and received a bill of sale from the sheriff. The note on which the sale was had was given in 1874 for $500. I entered up the judgment because I saw the Packers were going down hill. I issued execution and sold them out to protect myself. I left the goods there for them to use, the understanding being that they might buy them back if they could, that is, if they could pay me what was actually due me on the note, but they were unable to do so. There was due me on the note a little over $400 and some interest. Packer & Sons had paid me $100 on the note before I entered judgment. The goods, subsequently to this inter-pleader, were sold at auction on my account. They brought $800, which was paid to Miller, my surety in this interpleader.' Miller paid me the balance due me on my note, $430 in full. I have no claim on the $870 remaining in his hands ; it is the Packers’. If this case goes in my favor, it is to go back to the Packers as their money. All the goods purchased by me were not sold at the auction; some of them had been previously sold at private sale. I cannot tell how much was realized for them. Packer & Sons got the money.”</p> <p>The court charged the jury as follows: “ If the arrangement under which the sale took place was that the property should remain in the hands of Packer & Sons, with a right on their part to pay it back, on payment of balance due to plaintiff, that would be a right of property or ownership which they might enforce against the plaintiff, and which might also be enforced by their other creditors. And the jury should render a verdict for the defendants.”</p> <p>After consultation, the court instructed the jury, who had proposed to render a verdict for $370, that “ the jury shall proceed to render a verdict under the instructions already given.”</p> <p>The verdict was for defendant, when plaintiff took this writ and alleged that the court erred in the above charge to the jury, and in not directing a verdict for plaintiff.</p>

<p>A testator died February 18th 1875, leaving a will dated October 18th. 1873, wherein he directed, inter alia, as follows: “ I have loaned sundry amounts of money to my children, as hereinafter set forth, which loans I wish to be considered as advances, and to be taken as money due from them to me, and in the distribution of my estate amongst them to be deducted from his, her or their share thereof. To this time I have loaned to my * * * son, John O. Wright, $7200. * * * Should I make any further advances to them, or any of them, I will charge the same in my memorandum or account book as heretofore.” No such memorandum book was ever found. When the will was made the testator held the bond of his son, John G. Wright, for $3500, dated January 23d 1869, payable in three years. The executors of testator in their account included John’s bond as assets of the estate, and contended that he should be charged with the amount of the bond as well as the sum charged in the will, which contention the court sustained. Held, that this was error; that it was the purpose of the testator to make the charge for advances substantially equal to the debt John owed him ; that the word “ loaned” and the word “ advanced” were used interchangeably ; that the bond should be treated as an advancement, and that the charge against John for advancements should be limited to $7200.</p>

<p>1. In an action on a book-account for work and materials in the repair of a locomotive the claim was attacked as excessive. Held, that the true question for the jury was what was the ordinary price for such work and materials charged by other persons in the same business.</p> <p>2. In said action the court charged the jury : “ It is not your province to say how much profit ought to be charged by the plaintiffs.” Held, that this was error; that the court should have contented itself with saying: “ You are not to set yourselves up as judges of what locomotive engine builders ought to charge as profits, but simply whether the charges in the plaintiff’s bill are the usual charges in the trade.”</p> <p>3. Per Shakswood, O. J. — “ It will always be well for the learned judges of the courts below to see to it that so much of their charges at least are set out as may be necessary to explain the particular points excepted to.”</p>

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, No. 118.</p> <p>Case by Yfilliam S. Boyd and Charles S. Boyd, trading as William S. Boyd & Co., against Luther Dock.</p> <p>E. G. Miller, doing business as E. G. Miller & Co., owed the plaintiffs $1428.11, partly on book account and partly on a note for $1000 maturing Hovember 29th 1875. The plaintiffs drew on Miller & Co. for $428.11, the excess of their claim over the note, and the draft came back protested, whereupon the plaintiffs wrote to them, threatening legal proceedings. E. G. Miller & Co. sent the plaintiffs’ letter to the defendant Dock, who was .a joint owner with E. G. Miller, one of the firm of Miller & Co., and one Mitchell, of certain lumber lands on Lick Run, on which they carried on the lumber business in partnership. Dock, -with plaintiffs’ letter in his hands, went to their store, and, as they testified, though he in his evidence denied it, said that Miller had sent him the letter; that he, Dock, had come to intercede for them ; that they were “ in tight papers,” and he did not want them pushed ; that he had money or other property of theirs in his hands, and he would sell it and pay the plaintiffs; that he would not give his own note, but his word was as good as his bond; that he would not fix a time for payment, which might be next week, or not for thirty or sixty days; that there was no danger of the property being taken out of his hands by other creditors, for he had it so fixed that that could not be done; that the plaintiffs wore secure, and he would see them paid. Upon this, as the plaintiffs testified, they agreed not to push Miller without notifying Dock, and made a memorandum to that effect on the protested draft. Dock sent Miller $1000 to take up his note for that amount to the plaintiffs, which matured on the 29th of November 1875, and Miller received it, but did not pay plaintiffs’ note, and absconded. Plaintiffs subsequently sued Miller & Co. on their claims and got judgments.</p> <p>It also appeared that Miller was largely indebted to Dock, but that Dock had in his hands lumber in which Miller was interested, which was taken from the above-mentioned tract of lumber land.</p> <p>The third and fourth points of the defendant were as follows :</p> <p>3. “ The jury must upon the evidence find for the defendant, there being no sufficient evidence to show that defendant ever had in his hands property of Miller’s, -which, as between him and said Miller, he was bound to apply to the payment of his debt to the plaintiffs.”</p> <p>4. “ If the jury find that, as between the plaintiffs and Miller, the liability of the latter was never given up or abandoned, but still remains existing and unaffected, the agreement of the defendant, as alleged by plaintiffs, was collateral to said liability of Miller, the Statute of Frauds requiring a writing applies, and the jury must find for defendant.”</p> <p>In answer to these points, the court said: “ If you believe Boyd & Co., although they did not abandon their claim, had been induced to give time to Mr. Miller through Mr. Dock’s promise, it would be enough.”</p> <p>In the general charge, the court, inter alia, said: “ If Mr. Dock agreed to apply the means in his hands to the payment of Miller’s debt, with Miller’s acquiescence, he is bound by that agreement, and it is not necessary it should be in writing.”</p> <p>.The verdict was for plaintiffs for $1270.G6, and after, judgment thereon the defendant took this writ, and alleged that the court erred in the answer to the points, and in the foregoing portion of the charge.</p>

<p>1. The legislature has the power to require a creditor of an embarrassed corporation or individual to indicate his dissent from measures deemed essential to the common welfare of creditors and debtors, or else suffer the penalty of being held to an assent.</p> <p>2. The Act of April 10th 1862, relating to the Union Canal Company, provided a scheme to relieve the company from its financial embarrassments. The act directed the calling of a public meeting of the stockholders and bondholders, whereat said stockholders and bondholders, voting separately, might enter into an agreement to carry out the provisions of the act. The act also contained the further provision that every bondholder who “ shall fail to file with the president of said corporation, his or her refusal in writing, to concur in the said agreement, within three months from the date thereof, such bondholder shall bo taken to have agreed to the same.” The court below held that this provision was unconstitutional, in that it impaired the obligation of the contract between the company and the bondholder. Held, reversing the court below, that the act was constitutional.</p>

<p>H. and his wife each purchased a policy of life insurance in favor of the other and payable to his or her respective executors, administrators or assigns. II. died first, whereby the policy on his life became payable to the wife. She afterwards died and the money secured by the policy on her life was paid to the executors of her deceased husband. H. by his will devised and bequeathed to his wife “ all my estate both real and personal, of whatsoever kind and wheresoever the same may be at the time of my decease, for and during the time of her natural life, with full power and authority to appropriate to her own use such of the personal property as to her shall seem meet.” He further provided, “ after the death of my said wife, I give, devise and bequeath all the rest, residue or remainder of my estate, both real and personal, to my son John, his heirs and assigns for ever,” and in the case of the death of John before the death of his wife, without leaving issue, then to testator’s daughter Esther. John died before the wife. On a distribution of the funds in the hands of the executors of II., the executors of the wife claimed the amount of the policy secured on her life for the benefit of the legatees of the wife, alleging that they were entitled thereto under the provisions of II.’s will. The court below held that the wife had only a life estate, and no power of appointment to dispose of the proceeds of the policy of insurance, and rejected the claim. Held, that this was not error.</p>

<p>Error to the Court of Common Pleas, No. 4, of Philadelphia, county: Of January Term 1877, No. 77.</p> <p>Scire facias by the city of Philadelphia to the use of Francis S. Adams against George N. Watson and B. S. Hunt, executors of John H. Jones, deceased, and William H. Kern, owners, on a municipal claim on the front of defendants’ corner property on Market street, Philadelphia. The defendants pleaded no lien, nil debet, payment with leave, set-off, &c.</p> <p>The lien filed set forth merely the names of plaintiff and defendant; description of the property, number of square yards of paving and the price. An amendment was afterwards filed, alleging that due notice had been given to the owners to pave, their neglect so to do, and that the work, had been done in accordance with the Acts of Assembly and ordinances. At the trial of the case the plaintiff’s counsel read in evidence the ordinance of May 1872 (Ordinances of 1872, pp. 201-2), authorizing the cart-way of Markoe street to be paved ; the ordinance of May Sd 1855, sect. 3 (Ordinances of 1855, pp. 141 — 2), prescribing that where the cartway of a street has been ordered to be paved it shall be lawful for the chief commissioner of highways to notify the owners of property to pave the sidewalk, and if within twenty days that is not done the city can then proceed to pave, and further prescribing that in streets over forty feet wide, and in front of unimproved property, the sidewalk should be paved at least eight feet wide. The plaintiff then closed, and the defendants moved for a nonsuit on the ground that plaintiff had proven neither the notice to pave nor the fact that the pavement was eight feet wide. The court refused the motion. Defendants then showed that neither of them had ever received the notice to pave this lot; that the pavement was not eight feet wide, averaging but seven feet four inches The plaintiff, in rebuttal, called a clerk in the highway depart ment, who testified that the book in which were the certificates of notice to pave had been lost; that he had made diligent search for it but could not find it.</p> <p>Plaintiff then offered to prove that the said book contained a certificate that notice had been served on the owners of the property, and that said certificate in said book was signed with the name of P. C. McGinley, who was, at the date of the certificate, the supervisor, but was then deceased. Defendants objected, but the court overruled the objection.</p> <p>The defendants submitted, inter alia, the following points, both of which the court refused :</p> <p>“ 3. If the jury believe that the street was over forty feet in width, and that the sidewalk was not paved at least eight feet wide, there can be no recovery, and the verdict must be for the defendants.”</p> <p>“ 5. There has been no proof that notice was given to the owners of the property, and the verdict must be for defendants.”</p> <p>In the general charge, the court, Thayer, P. J., inter alia, said:</p> <p>“ If there was no notice served upon the owner or owners of the property, and they could be found by the supervisor, Mr. McGiriley, then the plaintiff cannot recover. * * * In answer to the defendant’s third point, I can only repeat what I have said in my charge, that there must be a substantial compliance with the ordinance as to width of pavement or the plaintiff cannot recover. They must comply with the requirements of the law. If they should put down a pavement only three or four feet wide, of course that would plainly not be a compliance. If there has been an immaterial variance, and the city has accepted the work, the plaintiff can recover. There were, according to the evidence, some small variations. In some places the pavement seems to have been a little more than eight feet wide, and at some points a little loss— a few inches. The city solicitor, an officer of the city, has passed judgment upon this, and by joining in filing the lien has accepted the work. If there has been an immaterial variation, and the work has been accepted by the city, the plaintiff can recover. I refuse to affirm defendants’ last (5th) point.”</p> <p>The verdict was for plaintiff, and after judgment thereon, defendants took this writ, and alleged that the court erred in refusing to enter a nonsuit and in the answer to defendants’ points.</p>

<p>Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1880, No. 61.</p> <p>In the court below this was a rule to show cause why Samuel Davies, a member of the bar, should not be stricken from the list of attorneys. The facts as disclosed by the testimony and exhibits and as stated by the court below were as follows:</p> <p>Some time in the month of March 1878, the respondent obtained a bond from the Guarantee Trust Company for Cornelia Curtiss, who had employed him professionally for that purpose. It should have been delivered to her forthwith, but instead of performing his duty in this regard Davies pledged the bond to one Humphreys as a security for money lent, and when Mrs. Curtiss and her son-in-law, John N. Spencer, called for the bond, they were put off with evasive promises. Davies did not state what he had done with that instrument, but said on each occasion that it should be forthcoming at the next. A correspondence ensued with Spencer, in the course of which Davies made various promises that were not kept, and he then gave Mrs. Curtiss a written assurance on the 1st of April that if he did not return the bond “ on or before Saturday,” he would pay her what it was worth. This note was followed on the 6th of the same month, by another, in which he promised to call on Monday or Tuesday evening “without fail,” and bring the bond. This promise having been broken like the rest, Mrs. Curtiss made an affidavit before Magistrate List, on the 18th of April, in which she charged Davies with the embezzlement of the bond, and a warrant was issued for his arrest, which took place on the 11th of May, when he was held to bail to appear at the ensuing term of the Court of Quarter Sessions. Mrs. Curtiss had in the meantime made a similar charge under oath before the Board of Censors of the Law Association, and Mr. E. Spencer Miller at their instance obtained a rule on Davies to show cause why his name should not be stricken from the list of attorneys. Before this rule was taken, but after the application to the Board of Censors and his arrest, Davies called on Mrs. Curtiss and induced her to agree to settle the case and discontinue proceedings against him in consideration of the payment of $100, and she subsequently, at his request, made oath to a statement that she was entirely satisfied with the settlement; that the rule was obtained without her knowledge, and that she would willingly have lent the bond to him if he had asked for it.</p> <p>Witnesses having been examined on either side before a Commissioner, the cause was argued before Hare, P. J., and Mitchell and Fell, JJ., on behalf of the Board of Censors and for the respondent, and the court made the rule absolute. Hare, P. J., after stating the facts above set forth, delivered the following opinion:</p> <p>“ Two grounds were principally relied on for the defence, one that the public had no further concern in a matter which had been settled between the attorney and client; the other, that Mrs. Curtiss had authorized the respondent to pledge the bond. If the latter point were established by the evidence, it would be a sufficient answer to the rule; but it is, unfortunately, at variance with all the testimony in the cause except that given by Davies in his own behalf. Mrs. Curtiss, indeed, says, that when Davies asked her consent to a settlement, she told him that she would have lent him the bond if he had requested it, but this was said reproachfully, and implied that he had not obtained her leave. Still we might have given the respondent the benefit of the doubt, were it not inconceivable that he should have listened to the reproaches that were heaped on him for th.e detention of the instrument, without mentioning a point so vital to his defence, and that he should have made no allusion to it in his correspondence with John N. Spencer and Mrs. Curtiss, or at the hearing before Magistrate List. Nothing could have been easier or more conclusive than to have said that Mrs. Curtiss had lent him the bond, that he had used it in the only way in which it could be made available, and that she must wait until he could find means to satisfy his creditor and redeem the pledge. Such an answer might not have been altogether satisfactory as between attorney and client, but it would have been a refutation of the criminal charge which was hanging over him.</p> <p>“ The remaining inquiry, did the settlement with Mrs. Curtiss purge the offence? admits of but one reply. When the property of a client is misappropriated, and she is compelled to set the civil and criminal law in motion as a means of redress, a wound is inflicted on the reputation of the bar that can only be healed by the removal of the guilty party from an office which he has shown himself unworthy to fill. The practice of the law requires that confidence should be reposed by the client and sacredly accepted as a trust by the attorney; and the observance of this obligation is so essential to the dignity and usefulness of the profession, that a judge should not hesitate to enforce the duty, or to visit a breach of it with the appropriate penalty. The rule was not taken by Mrs. Curtiss, but on behalf of a body whose task it is to vindicate the honor and maintain the purity of the bar, and we are not at liberty to withhold the judgment which they demand. We arrived at this conclusion with much regret, some weeks since, and a careful reconsideration of the evidence has satisfied us that no other sentence can be pronounced consistently with the requirements of the law, and the protection due to the community at large. The rule is made absolute, and the prothonotary is directed to transmit a copy of it, and of the judgment of the court, to the other Courts of Common Pleas, to the Orphans’ Court, and to the Court of Quarter Sessions. Rule absolute.”</p> <p>The respondent then took this writ, alleging that the court erred in making the rule absolute.</p>

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1877, No. 51.</p> <p>Assumpsit by August Cohen against Solomon Teller, on a promissory note, drawn by M’. Kuhn & Brother, to tbe order of the defendant and endorsed by him. The defendant alleged that the endorsement was a forgery. Moses Kuhn, one of the partners of Kuhn & Brother, was the son-in-law of defendant. Teller Brothers were in the habit of loaning money to Kuhn & Brother and Solomon Teller, who was the senior member of the firm of Teller Brothers, was on most of the paper of Kuhn & Brother as accommodation endorser. Kuhn & Brother failed in December 1874, and left the city, and a large amount of their paper was on the market with Solomon Teller’s endorsement. Some of these endorsements, although they were declared to be forgeries by Teller, were nevertheless paid by him. The testimony was conflicting in regard to the genuineness of the note in suit which the plaintiff had bought from David Kohn, a note-broker, who had received it from Kuhn & Brother. On behalf of the plaintiff, one Cansler testified as follows : “ David Kohn handed me this note. In consequence of what he told me, I took this one and a second note to defendant, Teller Brothers. I asked to see defendant. He came out. I handed him these two notes. I asked him to discount them. We were near each other. He said he had no funds at present, but might at a future time take them. I then retired. I returned to David Kohn. I handed him hack the notes. I repeated to David Kohn what defendant had told me. Defendant stood when I handed him this and the other note first outside of his inner office, in part of the store. I handed them both to him. He had them in his hand. He looked at them, and then said what I have stated. Defendant looked at his handwriting to the best of my knowledge.”</p> <p>Defendant moved to strike out of the answer of the witness that he “repeated to David Kohn what defendant told him.” The court struck out the evidence. (First assignment of error.)</p> <p>The plaintiff recalled David Kohn, and offered to show that after Cansler returned, the latter stated to witness what had passed between defendant and Cansler, as just testified to by Cansler, and that in consequence of this report from Cansler, the witness told plaintiff, before plaintiff bought the note, that there was no doubt about the genuineness of the endorsement. Objected to by defendant. Overruled. (Second assignment of error.)</p> <p>Also, to prove by the same witness, that Cansler returned with the notes, and reported the conversation to the witness which he had with the defendant, as testified to by Cansler, and that two or three days afterwards the witness offered the note sued on to plaintiff to purchase it. The plaintiff asked whether it was an accommodation or merchandise note, as plaintiff did not like accommodation paper, and preferred merchandise paper. That the witness told plaintiff it was an accommodation note, but was perfectly safe, as defendant had told a friend of the witness, who went up and showed defendant the endorsement (meaning Cansler), that he, the defendant, said he would buy it, but had no money just then. To be followed by proof that the plaintiff, on the faith of that, bought the note. Defendant objected. Offer overruled. (Third assignment of error.)</p> <p>The plaintiff then proposed to ask this same witness, “ Had you, or not, any conversation with defendant in the summer of 1874, as to his endorsement?” Objected to. Objection overruled. (Fourth assignment of error.)</p> <p>The defendant offered in evidence, as test signatures, three letter-press copies of letters signed by defendant, dated July 2d 1874, August 10th 1874, and September 5th 1874. Objected to, and objection overruled and evidence admitted, (Fourteenth assignment of error.)</p> <p>In the general charge, the court, Peirce, J., inter alia, said: “ Urged by duty to himself, to society, and to the law, on one hand, and, on the other hand, urged by considerations of family interest, and the protection of those who are dearer to him than his own life, defendant may have committed acts of embarrassment, he may have halted and hesitated, and may, in consequence, have assumed responsibilities and become liable to others. We must look at these matters tenderly and mercifully, and not with too sharp a judgment.</p> <p>“ A forgery is a dreadful crime; it is a blow struck at the very well-being of society; it, and its kindred crime of perjury, are alike infamous in their character; they are blows struck, sometimes at the life of men, sometimes at their good name and character, and sometimes at their estates and fortunes, and in the presence of these foul crimes no man is safe, either in life, reputation or estate; therefore, before you give validity to a document which is alleged to have been forged, you should carefully deliberate, and substantially and well satisfy your minds that it is a genuine endorsement; for, if you find this endorsement a forgery, and Solomon Teller is not estopped from showing that it is a forgery, every man in the community has an interest in your saying that it is a forgery, for it is to the interest of every community that no forgery should prevail. If encouragement be given to perpetrators and circulators of forgeries, no man’s estate would be safe, nor would his life be without jeopardy, nor his good name worth preserving.”</p> <p>These two portions of the charge constituted the fortieth and forty-first assignments of error.</p> <p>The verdict was for defendant, and after judgment thereon the plaintiff took this writ, alleging, inter alia, that the court erred as set forth in the above assignments of error.</p>

<p>The charter of a cemetery company contained the following clause : “ That no street, lane or road shall hereafter be opened through the said tract occupied as a cemetery without the consent of a majority of the lot-holders ; and the samo, when used as a place of sepulchre, shall be exempt from taxation, excepting for state purposes.” A sewer was constructed on a street along the line of which were a number of these burial lots, and an assessment was charged against said lots to defray, in part, the cost of the sewer. In a suit to recover this assessment, held, that the assessment was a species of local taxation and within the exemption clause of the charter, and that tlie lot-holders were not liable.</p>

<p>Appeal from the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1880, No. 131.</p> <p>Libel in divorce, a vinculo matrimonii, filed by Robert S. Ralston against his wife, Mary N. Ralston. The libel charged the respondent with desertion. The subpoena, libel, interrogatories and notice of the meeting before the examiner were all served personally on the respondent, who entered no appearance, filed no answer, and did not attend before the examiner. The evidence showed that after the marriage, which took place in Wilmington, Delaware, in 1865, the respondent had continued to reside in Wilmington with her mother. Libellant, who was an officer in the U. S. Revenue Marine Service, and necessarily absent on shipboard the greater portion of the time, resided with her whenever he was on shore. In 1870, libellant was mustered out of the revenue service, and was for some two years without any permanent employment. He then entered the employ of the Philadelphia & Reading Railroad Co., and is still in their employ. When first employed by the railroad company, his duties permitted him frequently to visit his wife in Wilmington, and he consequently spent most if not every Saturday and Sunday with her. Subsequently his duties became such as to prevent him from absenting himself from his office excepting at rare intervals. The respondent, when spoken to by him on the subject, frequently expressed her determination of never coming to Philadelphia to live. During this time the libellant made his-home in Philadelphia with his mother. In March 1876, libellant’s mother died, and on the occasion of her funeral he informed respondent that he wanted her to come to Philadelphia to reside, stating that he would take a house for her and go to house-keeping, or would take board if she preferred it. To this arrangement respondent then consented, but when some two or three weeks afterwards, libellant visited her in Wilmington, she positively refused to either leave her mother or to remove her mother to Philadelphia with her. Since that refusal there has been no further intercourse between the parties, except that libellant has regularly remitted an allowance of $40 a month to the respondent for her support.</p> <p>After the examiner’s report was filed, a rule was taken to show cause why a divorce should not be decreed. This rule and a copy of the examiner’s report were also duly served upon the respondent. Of these no notice was taken by her, and an ex parte argument on the rule was held before the court, Biddle, J., after which the court below discharged the rule, in an opinion, saying:</p> <p>“ That the domicile of the husband is not by implication that of the wife when the purpose is to, destroy her maritial rights was decided in Bishop v. Bishop, 6 Casey 416; Colvin v. Reed, 5 P. F. Smith 375; Reel v. Elder, 12 Id. 308. And that although the law of the place of the actual bona fide domicile of the parties gives jurisdiction to the proper courts to decree a divorce, it means the domicile of both parties. And that nothing but the possession of the person of the wife before or at the time of the proceeding can warrant another state to subject her to its jurisdiction. The injured party must seek redress in the forum of the defendant, unless the defendant has removed from what was before the common domicile of both.</p> <p>“ The case here is almost identical with that of Colvin v. Reed. The husband and wife residing in Wilmington, Delaware; he gets employment in Philadelphia, and finds his return to his home irksome and inconvenient. He asks his wife to accompany him to Philadelphia to live, and she replies that she cannot leave her mother. At the end of two years, without further communication, he asks to be divorced here, on the ground of wilful and malicious desertion on her part. As ho had never previously provided a home for his wife, hut had lived with her at her mother’s, he had placed his wife under obligations to her mother, in addition to those which a child naturally owes to a parent. It certainly was natural, therefore, that she should at least hesitate to obey his first summons. His first summons, however, appears to have been his last, for he does not pretend that he ever repeated the request. It is rather stretching a point therefore, we think, to hold that this was persisting in her desertion for two years, even if we brought ourselves to the belief that it was wilful and malicious in its inception. The complainant by his own oath makes out a technical demand and refusal, with two years’ absence, sending funds to his wife in the meanwhile, and then in a jurisdiction foreign to their only joint domicile, which he has left, applies for a divorce from his wife. In questions of divorce a case technically made out is not one which recommends itself to our favorable consideration. Husbands who are too willing to have their iniquities made manifest, and wives who acquiesce with such cheerfulness in their misfortunes as to supply all the necessary evidence to establish them, generally fail to convince us that, in the words of the Act of 1815, ‘ the application is not made out of levity, or collusion, or from the mere purpose of being separated from each other.’ If the husband was wilfully and maliciously deserted here, he certainly has borne it with wonderful philosophy and patience. We think, therefore, that even if we had jurisdiction over the person of the wife, the evidence here presented would fail to satisfy us of her wilful, malicious desertion, without adequate cause, for the space of two years from her husband. But as the wife has never resided within our jurisdiction, we think, in conformity to the cases we have cited, the motion should be discharged.”</p> <p>The libellant took this appeal, and alleged that the court erred in this action.</p>

<p>Error to the Court of Common Pleas, No. 3, of Philadelphia county : Of .January Term 1878, No. 212.</p> <p>Assumpsit by Henry A. Aeehternacht against George C. Potts to recover commissions for the sale of a colliery. The defendant pleaded the general issue. (The case originated in the old Supreme Court at Nisi Prius, and was transferred to Common Pleas, No. 3.)</p> <p>The defendant owned a colliery in Schuylkill county, which was for sale. The plaintiff met him in the streets of Pottsville in October 1868, and Aeehternacht alleged then employed him to sell the colliery. No arrangement was made as to compensation. Aeehternacht was then employed in the coal commission business in New York, and was selling coal for R. B. Wigton. Plaintiff alleged that by the management of one Wadleigh, another broker, who acted at the suggestion of plaintiff, the property was sold to R. H. Powell and R. B. Wigton, for $65,000, which was after-wards reduced to $45,000. Powell paid Wadleigh $666.66 as commission. Plaintiff disclaimed of record “ any claim for compensation effecting the sale other than the ordinary commissions for the sale of a colliery.”</p> <p>William L. Williams, called for the plaintiff, testified that he was a dealer in coal, and had been a coal operator. Was familiar with sales of collieries. “ Commissions generally were from twelve to twenty-five per cent., sometimes ten per cent.” On cross-examination he testified: “ I never knew twenty-five per cent, commissions to be paid of my own knowledge, Have heard of sales at fifteen per cent. Sold one of my own through an agent and paid him sixteen per cent, commission. Am selling one now at a commission of ten per cent.”</p> <p>J. M. Wadleigh also testified for plaintiff: “ Five per cent, was a low commission at that time. As business was transacted at that time ten per cent, was an ordinary commission. I am familiar with the sales of that kind of property in Schuylkill county.”</p> <p>Lewis H. Redner, called by defendant, testified : “ Have been a real estate broker and conveyancer for over twenty years. Have conducted sales. I am familiar with customary commissions on large sales of real estate in 1868 — 9.”</p> <p>And being cross-examined by plaintiff, further testified: “ I have had no experience in the sale of collieries, but have had in loaning moneys on collieries. Know of no sales or commissions paid on sales of collieries.”</p> <p>Defendant then offered to ask the witness the following question : “ What was the customary commission upon the sales of real estate in the years 1868 and 1869, involving the sum of $65,000 or thereabouts?”</p> <p>To which plaintiff objected, and the court sustained the objection and rejected the evidence.</p> <p>Defendant then offered to ask the witness the following question : “ What would be a suitable compensation for the sale of real estate involving the sum of $65,000 or thereabouts, in the years 1868 or 1869 ?”</p> <p>To which plaintiff objected, and cross-examined the witness, who testified: “ I had no experience in 1868 or 1869 in the sale of coal lands or collieries in Schuylkill county. I had charge of a colliery in Centre county in 1868.” Objection sustained.</p> <p>Among the points submitted by defendant was the following, with the answer of the court thereto:</p> <p>6. As no definite rate of commission is alleged to have been promised, and there is no evidence of any fixed rate of commission for the sale of collieries, in no event can the plaintiff recover more than just compensation for the services rendered (if any) by him to the defendant.</p> <p>Ans. “Refused, in view of Mr. Wadleigh’s testimony that ten per cent, was the ordinary rate of commission in 1868.”</p> <p>Verdict for plaintiff for $2565.23 ; and after judgment thereon, defendant took this writ, and alleged that the court erred in rejecting the evidence of Mr. Redner, and in the answer to the sixth point.</p>

<p>Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1878, No. 234.</p> <p>Appeal of Anastatia Rhymer, late Anastatia Power, and Charles G. Stewart, guardian of John and Mary Power, from the decree of the court sustaining the exceptions to the report of the auditing judge in the estate of Martin Power, deceased.</p> <p>Martin Power died July 23d 1874, leaving a will, dated July 9th 1874. In this will he made a number of specific bequests, among which were several to Catholic institutions, and the residue of his estate he disposed of as follows:</p> <p>“ Item. All the rest, residue and remainder of my estate I give and bequeath to St. Mary’s Catholic Church, to be expended in masses for the benefit and repose of my soul.”</p> <p>The account of the executors of the decedent was audited by Hanna, P. J., who held that the residuary bequest was for a “charitable” and “religious” use, and was void by virtue of the Act of April 26th 1855, and that the amount thereof should be awarded to the appellants, the heirs of testator. Exceptions were filed to this ruling on behalf of St. Mary’s Church, which the court sustained, Ashman, J., delivering the following opinion: “The testator, after making provision for all the members of his family, devised the residue of his estate to St. Mary’s Catholic Church, to be expended in masses for the benefit and repose of his soul. He died within thirty days after the execution of his will. The residue of his. estate amounted to <$649.79.</p> <p>“ The question is, was this a devise to a charitable or religious use within the meaning of the Act of 26th April 1855 ?</p> <p>“ There can be no doubt, that in England it would be regarded as a superstitious use, and therefore void. The making of a gift to procure the saying of masses for the soul of a devisor, was one of the superstitious uses prohibited by the statute of 1 Edw. D. 6, c. 14. But a superstitious use can hardly be said to exist in this country, where in the absence of any state religion there can be no standard of orthodoxy: Methodist Churches v. Remington, 1 Watts 224. It was said in McLean v. Wade, 5 Wheat. 266, that ‘ a religious purpose is a charitable purpose.’ Sir. Thomas Plumer defines a charitable use in these words: ‘ Where the donor appropriates a gift, either to charity or some public purpose, such as the repair of bridges, ports and havens, not operating in any manner to the benefit of himself:’ Melick v. The Asylum, 1 Jac. C. C. 180. But the best definition of what constitutes a charitable purpose is that of Binney, adopted by the court in Price v. Maxwell, 4 Casey 23, and in other cases.</p> <p>“ ‘ Whatever is given for the love of God, or for the love of our neighbor, in the catholic and universal sense, given from these motives and to these ends, free from the stain of everything that is personal, private or selfish, is a gift for charitable uses.’</p> <p>“ A religious use may be said to be such a charity with the infusion of a religious element. It is difficult to see how the present devise can be brought within the terms of this definition; so far from being free from everything of a personal, private oi selfish nature, it had its origin in a motive which was in the highest degree personal and selfish.</p> <p>“ The fact that the church might remotely profit by the money the' testator chose to pay for its mediation, in no sense elevated the gift to the rank of a gift for the advancement of religion ; the object of the testator was as purely private and selfish as if he had bequeathed a fund to the church for the erection of a monument to himself, or the purchase and maintenance of a pew for his family, both of which gifts have been held not to be charities: Roper on Legacies, vol. 2, p. 138.</p> <p>“It may be said that the practical effect of this construction would be to .evade the statute; we do not believe that any such intention was in the mind of the testator; but even if the fact be admitted the remedy is with the legisiature, and not the court. In Schultz’s Appeal, 30 P. F. Smith 396, which arose under this act, the court expressly admitted that the evident intention of the testator was to avoid the statute, but it nevertheless gave effect to his gift.</p> <p>“ It is not pretended that the question is free from embarrassment. The Act of 1855 was meant to save men from the force of solicitation addressed to them under the sanction of religion in the near view of death; but as that act is in derogation of the absolute right of all men to control the disposition- of their own property, it should be strictly construed. It has been the practice to award a moderate sum in payment of the services of mass in- cases when the decedent is of the Catholic faith, as a part of the funeral expenses, if the testator’s belief in the continued efficacy of these prayers leads him to devote the property to securing them after death. One should be careful that under cover of the statutes intended to protect him from imposition, we do not hinder him in the exercise of what he may regard as a religious duty. It is easy to imagine cases in which the testator might leave the bulk of a large estate to the church in payment of masses for the repose of his soul. But it must be remembered that the fund can never be divested for the benefit of the church from its original purpose, and that, on the first attempt at diversion, equity will intervene and raise another trustee to administer it according to the intention of the donor: Schnorr’s Appeal, 17 P. F. Smith 138. The exceptions to the adjudication are sustained, and the accountant is ordered to pay to St. Mary’s Catholic Church the sum of $649.79, for the purpose and in accordance with the will of the decedent.”</p>

<p>Error to the Court of Common Pleas, No. 2, of Philadelphia, county: Of January Term 1878, No. 165.</p> <p>Case stated wherein W. M. Mathews was plaintiff and the city of Philadelphia defendant.</p> <p>The case as stated was as follows: The appropriation made to the Board of Guardians of the Poor for the year 1877 became exhausted, as to the items to which the subject-matter of this case stated refers.</p> <p>In the judgment of said board it became necessary to provide for the maintenance of paupers (who had been rightfully admitted to the almshouse) for the balance of the year, and they awarded contracts to the lowest responsible bidders, after advertising therefor, for the supplies needed in their judgment to attain said result.</p> <p>Under the said contracts, goods were received at the almshouse, and the said plaintiff is the assignee of the debts arising from said contracts of sale. The councils of said city adjourned on the 25th day of June, and did not again assemble until the 2d day of October 1877. It is agreed that “ An act for the consolidation and amendment of the laws as far as they respect the poor of the city of Philadelphia, the district of Southwark and the township of the Northern Liberties,” passed March 29th 1808, 4 Sni. Laws 51, and all other acts, public and private, shall be considered as though here inserted, more especially the Act of April 21st 1858, which provides that no debt or contract hereafter incurred or made shall be binding upon the city of Philadelphia unless authorized by law or ordinance, and an appropriation sufficient to pay the same be previously made by councils.</p> <p>If the court shall be of opinion that the debts contracted by said Board of Guardians of the Poor, for the necessary maintenance of the poor, are binding on the defendant, although no appropriation at the date of said contracts existed, then judgment for the plaintiff, the damages to be assessed by the prothonotary, otherwise for defendant.</p> <p>The court entered judgment for defendant, when the plaintiff took this writ and alleged that this action of the court was error.</p>

4. In Equity. Appeal of the Pennsylvania Railroad Company from the decree of the court ordering them to remove the tracks laid by them on Dock street, in the city of Philadelphia, and to relay and restore the tracks of the Lombard and South Street Railway Company. Bill in equity filed by the Lombard and South Street Railway Company against the Pennsylvania Railroad Company.

<p>Appeal from tbe Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1878, No. 7. In Equity.</p> <p>Robert Manners filed this bill in equity against Henry J. Williams and “ The Philadelphia Library Company,” contesting the validity of certain alleged trusts and alleged devises in papers, called tbe will and codicils of Hr. James Rush, deceased.</p> <p>Tbe bill was filed by an heir-at-law and next of kin of .Dr. James Rush, deceased, and asked that tbe title to the estate of tbe said James Rush be decreed to be in the complainant, as to bis share under tbe intestate laws; because, 1. The rule was uncertain and impossible of execution, and if possible, immoral and illegal. 2. Because tbe purchase of a certain lot for tbe library company, was void under the Act of 1855. 3. Because the codicil of 1867 was a</p> <p>revocation of the will and codicils of 1860 and 1866. There were some other reasons which are not deemed material. Copies of the testamentary papers were annexed to tbe bill.</p> <p>By his will dated in 1866, Dr. Rush devised the whole of his estate, after payment of debts, annuities and legacies to H. J. Williams, in trust, to select and purchase a lot and erect thereon a building, according to directions to be given by the testator; and upon its completion, to convey the same to the Library Company of Philadelphia, for tbe uses of their library. Proviso, that before conveyance, the library company should bind themselves to certain conditions not important to be here stated. And also, in trust, to assign the residue of the assets to the company, upon certain trusts as to administration, the surplus income to be applied to the increase and extension of the library.</p> <p>By the first codicil of 1866, he directed that certain rules for administration should be inserted in the Act of Assembly, which would be required to carry out the provisions, of the will. He then added a clause, which is set out in the judgment of the court, on which the charge of immorality turns. And also a clause, directing the devisee, on the refusal of the library company to accept or their failure to comply with the preliminary stipulations, to found and endow a library, with the estate devised to him; and added, that the annuities as they fall in, will be amply sufficient for the legitimate purposes of a library.</p> <p>He remarked, that he was compelled to make his will by separate instruments, lest by his declaration a month after a formal and harmonious testamentary disposition, it should be avoided.</p> <p>By a codicil of 1867, he directed, that the whole of his residuary estate should be expended on the purchase of the lot and erection of the building, leaving the library company only a sufficient income to defray ordinary and strictly appropriate expenses. He then directed that every ten years or oftener, editions of his works should be published exactly as he left them. And then declared the library company a trustee for the objects and purposes of his will; and gave certain visitorial powers to a commercial institution in this city and to all citizens.</p> <p>All these documents were admitted to probate in May 1869. The bill was filed in March 1878. It was on behalf of all the heirs-at-law of Dr. James Rush who would unite. It charged, that the execution of the trusts of the will would be contrary to sound morals and religion, and opposed to the policy of the law._ That the library company had declined to accept the trusts, and had no power to do so, and were incompetent. That the direction to found a library in the event of a refusal of the library company to accept, was impossible of execution, as there would be no income, as the whole estate was to be spent in the purchase of the lot and erection of the building; that this direction was a personal trust, and yet required perpetual discretion in management. That the clause (set out in the judgment) compelled the admission of books inculcating rebellion, treason, deism and polygamy (a long catalogue of improprieties), which would be subversive of religion.</p> <p>The bill then charged, that the codicil of 1867 was a revocation of the will of 1860, and of the codicil of 1866 ; and no disposition was made of the estate, on the failure of the library company to accept the same. It then charged a purchase by Doctor Rush( within a calendar month of his death, of a lot of ground, which was conveyed upon the charitable uses set forth in the alleged will and codicils. By amendments of the bill it was averred, that the surplus in the hands of the executor, H. J. Williams, after providing for the annuities and building, exceeded $100,000, and was undisposed of by the codicil of 1867.</p> <p>And there was a further amendment after the cause had been argued in the court below, averring that the works directed by Dr. Rush to be published every ten years contain infidel and atheistic sentiments, teachings and arguments, and deny the truths of the Christian religion and the existence of God, and- that the execution of said trust would be the propagation of infidel and atheistic doctrines and contrary to morals and law. Therefore the residue has become the property of the heirs-at-law.</p> <p>There was no averment that a building had been erected or a tender of conveyance made to the library, or anything from which it would be inferred that the time had arrived when the corporation could be compelled to elect whether to accept or reject the gift.</p> <p>Among the grounds of demurrer by the Library Company were these: 1. That by the Act of 1855 (cy pres clause), no right remained to the heirs. 2. The bill itself shows there is a fund which the testator says is sufficient to maintain the substituted library. 8. The clause, contrary to morality, is directory only and cannot be construed as compelling the purchase of an illegal publication, and no others can be objected to. 4. If parts of the scheme are impracticable or illegal, the rest will be executed as near to the instruction as possible. 5. The purchase within thirty days by the statute enures to the residuary devisee. 6. The codicil did not revoke the residuary devise to the library, and the omission of the trustee to expend the money cannot deprive the devisee of the benefit. 7. It does not appear that the time for the company to accept or reject has yet arrived. 8. The person on whom all discretionary power rests is still living.</p> <p>The executor also demurred because it was not shown how the Library Company had debarred themselves from accepting the devise, and if so, how the persons authorized to found a library in the event of a refusal to accept were barred from doing so, and because the Act of April 25th 1855, preserved the property for charitable uses if the devises are void.</p> <p>(The second amendment was made long after the argument in the court below, and is therefore unnoticed in the demurrer.)</p> <p>The court below sustained the demurrer.</p>

<p>Appeals from the Orphans’ Court of Philadelphia county: Of January Term 1878, Nos. 199 and 200.</p> <p>Appeal of William E. Littleton, guardian of Walter and Herbert Oox, minors, and of R. R. Neill and Mary C. his wife, in right of said wife, from the decree of the court dismissing exceptions to and confirming tho adjudication of the account of Charles Ilewson, executor of the estate of Mary R. Cox, deceased.</p> <p>Appeal of R. R. Neill and Mary C. his wife, in right of said wife, and of William E. Littleton, guardian of Walter and Herbert Oox, minors, from the decree of the court dismissing the petition for a bill of review of the proceedings in the estate of Mary R. Cox, deceased.</p> <p>It appeared that Mary R. Cox, the widow of Hewson Cox, died October 16th 1859. She had a separate estate derived solely from the estate .of her father in which she had only a life interest. She owned certain other property derived from her aunt Mrs. Ricketts. This property consisted of both real and personal estate. She left surviving her three minor children. James Markoe was appointed their guardian. He survived until the summer of 1876, when he died; whereupon William E. Little-ton was appointed guardian of the estate of two of the minors, Walter and Herbert Cox, their sister Mary, now Mrs. Neill, having attained her majority.</p> <p>On the 15th day of October 1859, the day previous to 'her death, decedent executed her last will and testament, with a codicil attached bearing the same date. Both were duly proved, and letters testamentary were granted to the executor, the present accountant, on November 7th 1859.</p> <p>By her will the decedent left certain legacies and annuities, and provided “ the annuities in all instances to cease at the death of the annuitants, and to revert to my estate and be equally divided between my children, the issue,” &c. The will appointed Charles Hewson her executor and trustee, and a codicil provided “in case my above-named executor and trustee, Charles Hewson, shall find that the sum left me by Mrs. Ricketts shall not be sufficient to cover the annuities and legacies above named, then shall a deduction be made, pro rata, in all the sums mentioned, with the exception of those left to Mrs. Emlen, Rosalie, and Medora Cox, - to Mrs. Chapman, and to Dr. Addinell Hewson.”</p> <p>On October 25th 1863, Charles Hewson, as “ executor and trustee” under the will of Mary R. Cox, presented his petition to the Orphans’ Court, alleging that the personal property of the decedent’s estate was insufficient to pay the legacies and annuities; that said legacies and annuities were claimed to be a charge on the real estate thereof and praying that citations might issue. A number of parties interested filed answers, but it did not appear that any was filed on behalf of the minor children of Mrs. Cox, although the docket entries which were put in evidence at the audit showed the. following entry on the margin: “Gr. M. Wharton, attorney for James Markoe, guardian of Cox’s minors et al.” The proceeding appeared to have been amicable, although there was evidence that the question had been argued adversely on behalf of the minors by the same counsel who represented some of the legatees and annuitants. The matter was proceeded in to final decree on October 31st 1863, whereby the legacies and annuities were adjudged to be payable out of and chargeable upon the above estate, real and personal, and Mr. Markoe, the guardian of the minor children, was directed to pay over to Mr. Hewson, the executor, all the real and personal property of Mrs. Cox, the decedent, in his possession or control. No one took an appeal from this decree, and it was carried into effect, and Charles Hewson then assumed control of all the property of the decedent and her control therein. He paid the legacies and annuities in full, paid the taxes, including the income tax, and all the expenses, and accumulated a surplus. Upon Mrs. Neill attaining her majority he filed his first account, and at the audit thereof the children of Mrs. Cox objected to all credits for expenses in the Orphans’ Court in 1863, and for counsel fees in the proceedings therein; to commissions charged on the real estate or its income; to the payment of legacies or annuities out of the real estate or its income, and to all payments of income tax.</p> <p>Th'e exceptions to the adjudication were dismissed and the adjudication confirmed, when this appeal was taken by Littleton, guardian, alleging that the court erred in their action.</p> <p>On the 30th of December 1876, a petition was filed by R. R. Neill and his wife, in right of said wife, and by Littleton, guardian of the minor children of Mrs. Cox, praying for a hill of review of the proceedings in said estate, and that the court would make a decree that said legacies and annuities were not a charge upon the real estate. Citations issued, pleas were filed and demurrers, and the court sustained the latter and dismissed the petition on the ground that it was too late. From this decree the second appeal was taken.</p>

<p>1, In 1786 Peter Grubb conveyed to Robert Coleman, Sr., an undivided one-sixth part of the Cornwall ore banks. The deed contained the following reservation: ‘‘ saving and reserving unto the said Peter Grubb, the grantor, his heirs and assigns for ever, the right, liberty and privilege at all times hereafter of entering upon the premises hereby granted and released with his and their horses, carts, carriages and servants, and of digging, raising and hauling away a sufficient quantity of iron ore for the supply of any one furnace at the election of the said Peter Grubb, his heirs or assigns, at all times hereafter.” It was claimed that under this reservation the grantor or his assignees were only entitled to a sufficient quantity of ore to supply a furnace such as was known in Pennsylvania at the time the deed was executed, and a bill in equity was filed for an account of the ore taken in excess of that quantity. Held, that a court of equity had jurisdiction of the bill and could grant relief. Held, further, that this reservation carried with it the right to enough ore to supply a furnace with all the modern improvements to be selected by the grantor or his assignees, and that the right to select was not exhausted by its exercise in a single instance.</p> <p>2. The measure of the quantity of the ore was so much ore and no more, that a given furnace would use in the course of a year, taking into consideration tlie wear and tear, and the necessity of its going out of blast for repairs at stated intervals.</p> <p>3. The ore when taken from the mine was the absolute property of the defendants, and they had the right to use or sell it, provided the quantity thus used or sold did not exceed the quantity measured by the capacity of one furnace.</p> <p>4. If defendants omitted to take the ore to which they were entitled in any one year they could not take the quantity thus omitted in any succeeding year.</p> <p>5. Interest was chargeable on the ore taken or sold in excess of that needed for one furnace.</p> <p>6. It was too late for executors to set up the Statute of Limitations who neither made suggestion thereof when they were made parties to a bill in equity, six years after tlieir testator’s death, nor six years thereafter when they filed an amended bill.</p> <p>7. Grubb’s Appeal, 9 Norris 228, distinguished.</p>

<p>1. Where by the terms of a will a dry trust is created for the benefit of a woman who is neither married nor in contemplation of marriage, the mere fact that on a certain contingency, which might never happen, the trustee was directed to execute a conveyance, after the death of the woman, to her devisees, does not change the dry character of the trust and make it active.</p> <p>2. An estate was given to H. for life, and the remainder expressly limited to the heirs of her body lawfully begotten. There were no other words in the will which changed or qualified the import of this language. Held, that an estate tail was thereby created ; that the words used were the proper and technical words to create an estate tail, and that they must have their legal effect whatever the testator may have intended.</p>

3, of Philadelphia county: Of January Term 1879, No. 19. In Equity. Appeal of El wood Burton from a decree of the court in a certain proceeding in equity.

6. Certiorari by the city of Philadelphia to the decision of the court in the matter of the appeal of A. R. Govett and the Insurance Company of Pennsylvania from the decree of the Board of Surveyors, made February 4th 1878, confirming plan No. 166.

<p>1. Where the proceedings under the provisions of a statute are designed to divest the title of the owner of property, every essential requirement of the statute should he observed. The necessity is the same whether the object be to sell for the non-paymamt of taxes or for a municipal claim.</p> <p>2. A scire facias sur municipal claim for taxes was made returnable to tho first Monday of February. The return of the sheriff was “ made known January 28th 1878, by posting a true and attested copy of the within writ on a conspicuous part of the premises herein described, and by advertising * * * agreeably to the Act of Assembly in such case made and provided.’ Held, that this return was radically defective, as it was apparent therefrom that the copy of the writ could not have been posted on the premises for two weeks, as required by thc'30th section of the Act of March 11th 1846.</p> <p>3. Land cannot be taken from the owner under said act without an observance of all its substantial requirements, and this service was clearly insufficient.</p>

3, of Philadelphia county: Of January Term 1879, No. 82. Assumpsit by Dougherty Bros. & Co., against the Central National Bank of Philadelphia. The declaration contained the common counts only — money lent, money paid .for the use of defendants, money had and received, account stated and interest.

4, of Philadelphia county: Of January Term 1879, No. 88. Case by Pusey Anthony Peer against Louisa Drew. The summons issued December 2d 1876.

<p>Appeal from the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1879, No. 141.</p> <p>Appeal by the Fidelity Insurance, Trust and Safe Deposit Company from a decree setting aside a decree of divorce in a proceeding wherein James V. Peterson was the libellant and Sarah Peterson the respondent.</p> <p>On the 9th of February 1878, Sarah Peterson filed a petition in the Court of Common Pleas which set forth that the petitioner is the widow of James V. Peterson, who recently committed suicide by jumping from a steamboat; that she was married on the 22d of September 1849, at Flemington, New Jersey, and immediately accompanied her husband to his homo in Trenton, New Jersey, where she resided with him about one year. Thereafter she resided with him at Knoxville, Tennessee, Cincinnati, Harrisburg, and at Philadelphia, coming to Philadelphia in the latter part of the year 1851, or early part of the year 1852, whore she continued to reside with the libellant as his wife, and left the city of Philadelphia, by her said husband’s consent and express direction, on the fourth day of November 1858, to reside with her mother at Flemington, New Jersey, until such time as her said husband should request her to return to his homo ; that petitioner continued to reside at her mother's residence, with the full concurrence of her said husband, until October 24th 1865, when she returned to her said husband’s home at his special request, and continued to live with him as his wife until the month of February 1867, when she loft at his request on account of the unsound condition of his mind and his expressed fear of doing her bodily harm; that during the time she resided away from her husband’s home, she received visits from him at her home in Flemington, New Jersey, and that her husband, the said libellant, contributed to her support during all the time she resided away from his home, until February 1867, when he gave her some money to go to her mother’s homo ; that your petitioner during her absence from her husband’s home received from him a number of letters in which she was recognised by him as his wife, and by reason of which at his request she went to Philadelphia to sign the deeds for properties he had sold after the date of the decree of divorce, several of said letters bearing date subsequent to the date of the decree of divorce, made by the old Court of Common Pleas of said county; that the decree of divorce was made on the 24th of June 1865, and that she did not receive any notice or have knowledge of a divorce, having been applied for or obtained until the month of November 1877, which was after the date of her husband’s death, which occurred on the 10th of November 1877 ; that petitioner utterly denies any desertion on her part, and charges that her husband intended the divorce when he requested her absence. That he did not disclose such purpose to your petitioner, who was left uninformed and unadvised of such proceedings to prevent her just resistance and defence thereto. The petitioner then prayed that the decree of divorce might be vacated.</p> <p>A rule to show cause was granted, and depositions taken on both sides. The facts will be found in the following opinion of Yerkes, J., in the court below.</p> <p>“ In June 1863, James V. Peterson filed his libel in divorce, alleging desertion on part of his wife, Sarah Peterson. May 25th 1865, an examiner was appointed, and in Juno of the same a divorce was decreed.</p> <p>“ This decree she now seeks to have vacated, on the ground that, although she had notice of the institution of proceedings, she was led to believe that they had been discontinued, and she and her husband had resumed the marital relation before the decree, and continued in it for about two years after decree, and that there was no wilful and malicious desertion within the meaning of the Act of Assembly.</p> <p>“Much of the testimony introduced is that of the wife. We think that in this matter she should not be heard. Her husband being dead she is certainly within the spirit of the exceptions of the Act of 1869, and again, as at that time she was not a competent witness, she cannot be heard now to impeach the propriety of a divorce granted when her evidence would not have been received. We look therefore at the record, the evidence of other witnesses of the letters of the libellant and those of the respondent produced on call.</p> <p>“ The record shows she was not served, and that no steps were taken beyond filing the libel for almost two years. The letters show that a separation took place in 1858, but that a correspondence, more or less intimate, was kept up between the parties. The letters in evidence refer to others not produced, but we have enough to show the relation of the parties, and to show the various changes in their disposition and intentions. We have nineteen letters of Mr. Peterson written to Mrs. Peterson between May 1863, and November 1865, and six written by Mrs. Peterson. This correspondence also shows frequent interviews.</p> <p>“ The letters of the parties between May 25th and September 7th 1863, show that the parties after the long separation of five years were mutually of the opinion that they should be legally separated. It also appears that in this Mrs. Peterson was the more urgent. In the letter of September 7th it appears that Mr. Peterson had declared that he would take no further trouble in the matter of a separation.</p> <p>“On May 27th, Mr. Peterson, referring to his wife’s note of May 25th 1863, writes to her that he desires to converse with her upon the matter mentioned in her note. On June 9th 1863, she writes to him that his letter of the 2d is received, and that she is willing to allow him to commence proceedings as soon as possible. The letter of the wife of September 7th 1863, is the most important of any of the letters of this period. It is quoted entirely :</p> <p>“ Elemington, September 7th 1863.</p> <p>“ James, yours of the 2d is received. I first wrote you on 25th of May, stating that I thought it best for us to sever this matrimonial tie which has become so irksome to each of us.</p> <p>“ You requested me to come to the city, as you wished to converse with me on the subject. I could not make it convenient then to come, and wrote you to that effect. You then assured me in your letter of the 2d of June that you had no opposition to offer to the request made by me in my note of the 25th, but would have my wish carried into effect as early as possible, as you were of the opinion that you could manage the matter better than 1 could, and by so doing could save me much time, trouble and expense. I then gave the matter over to you, supposing you would do what was right. Now, at the expiration of nearly four months, you write that if I am determined to have my own way in the matter you will give your„self no further trouble. I was not aware that I manifested any wilfulness whatever. I merely wished to know whether it was actually necessary for me to go to the city, and if so I would come. I am willing to do all in my power to facilitate the matter; but if you have given the matter over, as you say, why I shall be obliged to have it carried into effect myself, and that without anv further delay.</p> <p>Yours, in friendship,</p> <p>Sarah Peterson.</p> <p>“ It does not seem that thus far there is any evidence that she knew that proceedings had been actually commenced. It is evident that in some letter not in evidence she had inquired if there was an actual necessity for hor to come to the city. When he, in consequence thereof, expressed his determination to give himself no further trouble, had she not a right to think ho was doing nothing, and does not the expression of her determination to act show that she believed that he was not acting ?</p> <p>“ Her letter of September 27th 1863, shows a most loving spirit towards her husband. It also shows that an interview had taken place, in which the subject of a reconciliation had been discussed. Her desire for a reunion is very apparent, and there is an entire change from the desire for a separation shown in the letter of September 7th. Upon October 17th, he writes to her requesting hor to come down to join in a deed, and expresses his intention, if her father and mother are willing, to accompany her to hor home in Elemington, N. J. On December 14th, he writes her, acknowledging the receipt of a letter dated the 8th, which said that she expected him to spend Christmas with hor at her home in Flemingfon. He answers that he cannot promise, but that he will be glad to do so. It is clear from these letters that a reconciliation had taken place, but they do not show an actual reunion, although it is clear that the woman who wrote the letter of September 27th 1863, would have followed him to the end of the world if he had wished it. Why she did not do it we cannot exactly see, until his letter of February 18th 1864, is read. In it he acknowledges the receipt of hers of the 13th, and says: ‘As to our domestic difficulties I have nothing new to say, excepting, perhaps, that I do not think I can in justice ask you to leave your father and mother again for me. I am sorry to say so, but I cannot help it.’ Upon the argument much was made of her letter of February 24th, which was in answer to this. The wonder is that she did not say more. All that she did say was justified by what he had said. She truly says, that if he earnestly desired a reunion, as he said, he would not let father nor mother nor anything else on earth stand in the way. From this time forth it cannot be said that there was wilful and malicious desertion on the part of this wife.</p> <p>“ There are but two more letters of the wife in evidence. They are relied on as showing that she knew that a suit in divorce had been begun. From them alone it is hard to say whether the divorce case alluded to was ‘ in esse’ or ‘ in fieri.’ At all events she did not seem to know that anything was being done. In her letter of September 18th 1864, she wants to know if it remained the same as when she was down, or had further steps been taken. Then comes the following letter of November 31st 1864.</p> <p>“Flemington, Nov. 31st 1864.</p> <p>Monday Evening.</p> <p>“Dear James: — Yours of the 17th was duly received. You say that you are sorry that I cannot properly appreciate your motives and feelings in saying that you cannot ask me to leave home again. I do understand you perfectly well. You do not wish to destroy the peace and happiness of my father and mother for the sake of promoting your own.</p> <p>“James, as my parents are so strongly opposed to a reunion, I am compelled to say that you will be obliged to have the divorce carried out.</p> <p>“James, the blessed hope which will sustain me through the remainder of my lonely life will be-that we shall meet again; though it may be never in this life, there is a world of bliss beyond this vale of tears, where sorrow and grief are unknown.</p> <p>“ I was glad my picture was a good one. How I should like to have one like it, so that we could each have one alike. Please think of me sometimes as</p> <p>Your unhappy wife,</p> <p>Sarah Peterson.</p> <p>“ He takes no step in the divorce suit, but as her letter of September 7th 1863, brought about the reconciliation disclosed in her letter of September 27th, it seems that this letter of similar tone had the same result. It appears that when she tired of her anomalous condition, expressed her intention of ending it, then he wanted to be reconciled and reunited, but when she was willing he was not. The meagre evidence in the case does not disclose all the steps leading to the reconciliation taking place subsequent to her letter of November 31st 1864, but it is clear that it took place speedily, and that there was no break or hitch until she finally left his home in 1867.</p> <p>“ In his letter of January 14th 1865, he speaks of a recent visit to her at Flemington. Upon February 24th 1865, he writes that he had expected to have been in Flemington before he wrote, but that on account of the draft he was unable to do. He writes again March 16th. In this letter there is nothing material, other than it shows the continuity of the amicable relation. Several witnesses testify as to a vist ho made to his wife at Flemington in April. It was of several days duration, and is fixed as occurring just after the death of Mr. Lincoln. It may as well be noticed here that a visit was also made by him late in the summer of 1865. Mrs. Forker, the mother of the respondent,.and with whom she lived, in her deposition says, that Mr. Peterson made several visits to his wife in I860, that the visits lasted generally from Saturday to Monday, and that they occupied the same room.</p> <p>“We have no letters of either party during the months of May, June and July 1865, and no testimony as to the relation of these parties during that period. The record shows the appointment of an examine'’ upon May 25th 1865, and a decree June 24th I860.</p> <p>“ Upon August 8th 1865, he again writes to her, and in the next ten weeks he writes her seven letters, all of which are addressed to Mrs. Sarah Peterson. In that of August 8th, he speaks of the prospective visit of his nephew Charles to her at Flemington. Charles lived with them before they separated, is spoken of frequently in this correspondence, and seems to have been almost like an adopted child of Mr. Peterson. In his letter of August 28th, he acknowledges the receipt of her letter of the day before, and says that ho is glad to hear that Charley is contented, and wishes a good place could be obtained for him there. Upon August 28th, he again speaks of Charley’s visit, his wish that he could find a place for him there, and of his own expectation to visit Flemington on the succeeding Saturday. Upon September 6th, he writes to her of the liklihood of his selling a house, and asks her to come to the city to acknowledge the deed.</p> <p>“ His letters to her dated October 6th, 11th and 19th 1865, arc remarkable, coming from a divorced man to his divorced wife, and cannot be reconciled with her knowledge of the divorce, and seem totally inconsistent with his knowledge of it. The letter of October 11th does not in its heading indicate the year distinctly, but its substance shows it to bo subsequent to that of October 6th, and that it is one of this series of letters. In that of October 6th, he says that he went to Flemington on Monday to see if she would come to him, that she did not seem able to make up her mind, that her father had said that if she left, he and his wife would break up and board, that he did not want this done, and had concluded, as soon as he could, to sell out in Philadelphia, to go to Flomington, buy her father’s house, so that all could live together. After much more, he closes thus: ‘You must be your own judge whether you come on Monday or not; the number is 1245 North Eleventh street.’ He adds, in a postscript, that the reason he speaks of going to Flemington and buying her father’s house, is that she suggested it on Tuesday night. In the letter of October 11th he addresses her as ‘ My dear wife,’ in all others as ‘ My dear Sarah,’ or ‘ Dear Sarah.’ He speaks of his disappointment in having received a letter from her instead of seeing her. Then says that he has never been so miserable and unhappy since their separation, as he has been since her father said if she left, he and her mother would break up and board. This fixes the letter as having been written in 1865, subsequent to the conversation detailed in his letter of October 6th. The rest of this long letter is full of consideration of her duty to her aged parents, and seems to concede that her prior duty is to them ; but its unhappy tone would bring a true woman to her husband if she loved him at all. Upon October 19th, he writes that he has told his servant that he will keep house no longer with her. He also says that he will not give the person who wishes his house a decided answer, for in his own words, ‘ I would like to know if you are still of the opinion that you would be willing to come and give it a trial of being alone in the house during the day before you bring all your goods.’</p> <p>“ The next we know is that they are living together at the house mentioned in the letter of October 6th. Mrs. Forker’s testimony clearly established that they were so living in 1866. The evidence of several witnesses also establish the fact that Mr. Peterson always spoke’of the petitioner as his wife, and that this continued up to his death. They separated in 1867, and met but once afterward. On November 4th 1865, he made a deed in which she joined as his wife.</p> <p>“ The conduct of Mr. Peterson is entirely inexplicable. Twice, when he and his wife seemed to have reconciled their difficulties and wei'e upon the point of re-uniting, he prevents a re-union by referring to her duty to remain with her parents.</p> <p>“ Again her duty to her parents is put in a strong light just before the final re-union. There is nothing in the correspondence to show that he was not acting in good faith. His anxiety for their welfare seems entirely sincere. He obtained, however, divorce, and must have known it; he certainly remembered it, since after the final separation he passed titles without her joining. Before the divorce, whilst they were separated, he had her to join in his deeds. We hardly think that he intended to perpetrate the great outrage that was done to his wife. We think it the result of mental rather than moral obliquity.</p> <p>“ Can this decree be vacated ? The case is clear of certain ole-merits which have embarassed the consideration, of others. Here there was no subsequent marriage, and the offer of the petitioner, made in open court, to release her interest in all properties conveyed by her husband without her joining, relieves it of all solicitude for purchasers, whether for value or not. The case of Smith v. Smith, 3 Phila. R. 489, also reported as Boyd’s Appeal, 2 Wright 241, is authority here. The grounds of divorce there were desertion. The depositions taken on behalf of the petitioner showed, as they do hero, that there was no wilful and malicious desertion. Here in addition, we have the resumption of the marital relation. It was argued here, that in that case the year for an appeal had not elapsed, but that does not appear to have been considered material by the Supreme Court in that case, nor in the earlier case of Allen v. McClellan, 2 Jones 328. Ordinarily control of a judgment expires with the current term, but this rule does not hold where a judgment has been obtained surreptitiously or fraudulently. Nor does there seem to be any reason why it should where there is no one interested except the parties to it and their heirs.</p> <p>“ Is there anything to conclude her. Ordinarily knowledge or notice of any kind, ought to conclude parties after decree. But even if it is granted that she had actual knowledge, we think there was enough in this case to convince her that the proceedings had been abandoned. From his letters we find he made her several visits in 1865, and at least two other visits in that year are established by oral testimony. Both before and after the divorce his visits were those of a man to his wife. How complete their reconciliation was at this time, before the divorce, is shown in that soon afterwards she left her parents to go to him, notwithstanding his recognition of their groat need of her, and his almost persuasion of her to remain with them. What else could she think but that all their difficulties were at an end. There is no evidence or pretence that she knew more of the divorce than is contained in the correspondence. In the light of his intercourse with her, his frequent visits, their reunion and living together as man and wife, we must say that we believe that he led her to believe that the divorce suit, if she over knew of it, had been utterly abandoned, and that the decree obtained was a fraud upon her.</p> <p>“ Upon filing in this court an agreement to release all grantees of property conveyed by her husband during coverture, and after said decree, without her joining from all claim of dower, and recording such a release in general terms as to such grantees in this county, the decree will be vacated.</p> <p>“The above condition is made because of the offer of petitioner.”</p> <p>A decree was entered accordingly, when the appellant, the administrator of James V. Peterson, deceased, took this appeal.</p>

<p>1. Where one alleges that a contract should he avoided on the ground that it was made to compound a felony, it must be shown that there was an agreement not to prosecute, and it must appear by a preponderance of evidence that a crime was actually committed.</p> <p>2. Threats of prosecution, unless a certain security was given, will not justify an inference that if the security was given the agreement was that no prosecution would follow.</p>

3, of jPhiladelphia county: Of January Term 1880, No. 103. This was a certiorari to bring up the record from a magistrate in a proceeding by- John Maxwell, under the Act of April 3d 1830, Purd. Dig. 884, pl. 25, against Ellen R. Perkins, to recover possession of premises for non-payment of rent.

1, of Philadelphia county: Of January Term 1879, No. 173. Scire facias by the Economy Building Association, to the use of Denis Smyth, against Frederick Hungerbuehler, on a mortgage executed by defendant to plaintiff, to secure the payment o'f $2200 one year from date with interest payable monthly, with a proviso that if there should he any default in the payment of interest for the space of six months that then the whole debt should become payable immediately.

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1880, No. 138.</p> <p>This was a proceeding by mandamus brought by the Commonwealth at the relation of George Harrison against the Hibernia Fire Engine Company.</p> <p>Upon the presentation of the petition of the relator, a writ of alternative mandamus issued, and the defendants filed a return thereto, to which a replication was filed and issue joined. At the trial, it appeared that the engine company was instituted February 20th 1752, and was incorporated by the Court of Common Pleas of Philadelphia, September 20th 1841. The relator joined the company as an active member in July 1864, and remained upon the active roll until May 1867, when, at his request, bis name was placed upon the absent roll, and he went to the state of Missouri. In the autumn of 1866, the company adopted, among others, Section 16, of By-Law 17, providing, “That if any member shall neglect or refuse to pay his indebtedness, exceeding three dollars, after receiving notice in writing from the assistant secretary, the president shall erase his name from the roll unless a satisfactory reason be given to that officer for such neglect.” The relator left the city in the spring of 1867, and made no payment to the company until June 80th 1871, when he forwarded to the secretary the sum of $8.35, the amount-of his indebtedness from April 1866, until April 1871. On December 29th 1870, the councils of the city of Philadelphia passed an ordinance to create a Paid Fire Department, which substituted such fire department for the voluntary organizations theretofore existing, and after March 1871, the Hibernia Fire Engine Company ceased running to fires. At the stated meeting of May 26th 1871, an amendment to the bylaw, fixing the rate of dues was proposed, and at the stated meeting of August 25th 1871, vras adopted by a vote of 84 in favor of it, to 6 against, in accordance with by-law 32, authorizing amendments to be made by a vote of two-thirds of the members present. This amendment fixed the rate of dues at $2 per month, instead of 12J cents, as they had previously been. In the course of the year 1871, the company converted its personal effects into cash, and leased its engine-house to the city for $1000 per annum.</p> <p>In the fall of 1871, the assistant secretary sent through the mail to the relator’s address, at St. Joseph, Missouri, a notice of indebtedness amounting to $4.50, to which no answer was received. In January or February 1872, another notification of his indebtedness, in the same amount, was mailed to him, containing the warning that unless it was paid by the next stated meeting his name would be dealt with in accordance with section 16 of by-law 17. To this an answer was received from the relator by the secretary, refusing to pay the amount and asserting that he was being unfairly dealt with. The secretary wrote in reply, assuring him that no wrong was being done, and informing him of the amount of property in the hands of the company and the number of members entitled to participate in its distribution. At the next stated meeting, February 23d 1872, the roll of delinquents was called; the secretary and assistant secretary reported to the meeting that notifications had been sent to the relator, his letter refusing to pay his indebtedness was read, and no one appearing to answer for him, the president erased his name from the roll. Some weeks afterwards, a former assistant secretary of the company received from the relator a post-office money order for $4.50, dated St. Joseph, Missouri, March 20th 1872, which he retained in his possession until the relator’s return to Philadelphia, when ho drew the money from the post-office and handed it to relator. In May 1872, he came back to Philadelphia, and sometime afterwards sent a letter to the company, requesting to be restored to the roll, which was read in open meeting and laid on the table.</p> <p>In pursuance of the Act of Assembly of 28th May 1872, the company, on the 27th of February 1874, passed a resolution to dissolve and surrender its charter, and a committee was appointed to carry the resolution into effect. March 27th 1874, ten members declared their intention to accept the provisions of the Act of 1872, and continue the existence of the corporation as a loan association, under section 1, of said act. December 11th 1874, the last meeting of the company was held, and a report of a committee received, stating the assets to be $42,946.15, and the number of members on the roll entitled to share in the distribution to be 54. In the meantime, various membei’s resigned from the company, receiving different sums of money, regulated by the date of their resignations. This suit was brought by the relator September 23d 1873.</p> <p>The third and fourth points of the defendant, both of which the court refused, were as follows:—</p> <p>3. That if the relator was indebted to the company in a sum exceeding three dollars, on the 23d of February 1872, and was notified in writing of that fact by the secretary, and refused or neglected to pay his indebtedness after such notification, the verdict must be for the defendant.</p> <p>4. That the relator, by his absence from this state for five years, lost an essential qualification for active membership of the company, and hence the verdict must be for the defendant.</p> <p>In the general charge the court, Pierce, J., said: “If you find there was no necessity for this increase of dues, the amended bylaw authorizing it was unreasonable and void. If it was made for the purpose of turning out members, then it was oppressive and unreasonable,- and they had no power to make it. The validity of the by-law depends upon the intent with which it is adopted. A by-law endeavoring to get rid^of a member is invalid.</p> <p>“ But I rest this case upon the fact that there was no legal trial of the relator. He had no day of hearing before the company. He had no intimation of the increase of. dues until the bill for them was sent to him. If he had been given an opportunity to be heard, he might have contended that the by-law was passed in his absence, and he did not know the reason-of it; that he reasonably hesitated about payment, and that he had come and tendered payment, and that the erasure be stricken off. That might have induced the company not to erase him. I therefore instruct you that the company had no cause to strike him from the roll. They could not disfranchise him or destroy his membership, if that is erasure, without an invitation or summons to appear before the company. The verdict should be for him.</p> <p>“ The only remaining question is that of damages, which you must determine. Some of the members got $780, and some over §800. There appears to have been about §48,000 to be distributed, and fifty-four members on the list. The relator’s membership entitled him to an equal share in the distribution.”</p> <p>The verdict was for plaintiff for §780.10. After judgment, defendant took this writ, and alleged that the court erred in the refusal of defendant’s points and in the portion of the charge noted above.</p>

<p>Certiorari to the Court of Quarter Sessions of Philadelphia county: Of January Term 1879, No. 15.</p> <p>This was a proceeding in the court below to compel Frank J. Dierkes to provide for the support of his mother. Caroline A. Cropley, the daughter of Rosanna Dierkes, made application to the solicitor representing the Guardians of the Poor for a citation, stating that she was unable to alone provide for the support of her mother, who was poor, old and unable to work. The citation was issued, based upon the affidavit, served upon Frank J. Dierkes, the appellant, who, on the 8th of September 1877, appeared in the Court of-Quarter Sessions before Briggs, J., when, after the case was heard, an order was made upon the said Dierkes to pay the sum of §3 per week for the support of his mother, Rosanna Dierkes, and to give security in the sum of §300, pay the costs and stand committed until the order should be complied with. Subsequently, a rule was granted to show cause why the amount should not be reduced, and, after a hearing was had, the court reduced it to §1.50 per week. The said Dierkes, however, not complying with the order of the court, the said Caroline A. Cropley again appeared before the solicitor, and made affidavit to the fact of non-compliance, and upon this affidavit the court ordered the issuance of an attachment for his arrest. Dierkes then took this writ of certiorari, alleging that the court erred in their order and in the issuing of the attachment.</p>

4, of Philadelphia county: Of January Term 1880, Nos. 144 and 145.

<p>Error to the Court of Common Pleas, No. 2, of Philadelphia county : Of January Term 1880, No. 146.</p> <p>Case stated for the opinion of the court wherein Blanche R. MacDowell, guardian of Caroline G. MacDowell was plaintiff, and Shreve Ackley and others, officers and members of the Philadelphia Stock Exchange, were defendants.</p> <p>The case as stated in the nature of a special verdict, with power to the court to draw the same inferences of fact as a jury might draw, was in substance as follows:</p> <p>James J. MacDowell, the deceased, father of Caroline G. MacDowell, purchased a seat in The Philadelphia Stock Exchange, and was duly elected to membership therein on the 28th of August 1865. In December 1875, sect. 17, of the constitution, relating to gratuity fund, excepting the portion thereof hereinafter set forth, was passed.</p> <p>The following are the material portions of said section :</p> <p>1. Every full member of the Philadelphia Stock Exchange, in addition to all other payments which ho is required under those by-laws to make, shall, at the time of his admission to the Philadelphia Stock Exchange, pay into the hands of the trustees thereof the sum of fifteen dollars, and the further sum of fifteen dollars, annually, upon the first day of December of each year. Upon the death of any full member of the stock exchange, he shall in addition, pay a farther assessment, or sum, of ten dollars, to said trustees.</p> <p>2. The trustees aforesaid, shall keep the fund arising from the payments and assessments made under this section of the by-laws, separate and distinct from all other funds of the Philadelphia Stock Exchange; said fund shall be styled “The Gratuity Fund,” and shall be used solely for the purposes hereinafter mentioned.</p> <p>3. All payments and assessments becoming due under this sec-. tion of the by-laws shall be charged against the membership of each member of the Philadelphia Stock Exchange, and shall be collected in the same manner, and have the same priority as all other fines, assessments and dues, due from the members of the Philadelphia Stock Exchange to the Exchange.</p> <p>5. The trustees of the Philadelphia Stock Exchange shall, within thirty days after the death of any full member thereof, pay out of the gratuity fund herein mentioned two thousand dollars to the person or persons especially designated by said deceased member to receive the same. * * * In case he has not so designated any person to receive it, then, in the discretion of said trustees, ,either to his widow or to his child or children, as they may think best; and in case no widow, or child or children, survive him, and he has not designated any person to receive said sum in the manner above specified, then to his legal representatives. The said sum of money shall, in all cases, be a gratuity only, and shall be paid at the death of such member, clear and free of any and all assessments or claims of any kind whatsoever. * * *</p> <p>6. * * * A full member for the purposes of this section shall be construed to mean a member owning a seat in the stock exchange, whether suspended or otherwise.</p> <p>After the passage of this gratuity fund clause MacDowell paid a number of assessments made under its provisions, in fact all dues and assessments so .made, except such as" fell due as hereinafter stated.</p> <p>On the 17th of November 1877 the following addition to section 17 of the constitution was duly made by the defendants. “ That any suspended member, who shall have failed for three months to pay in full all gratuity dues and assessments, shall forthwith cease to be a full member for the purposes of this section; such member 'may be restored to such full membership by a favorable report of the standing committee, upon paying in full all arrears of gratuity dues and assessments.”</p> <p>There is no evidence that MacDowell was present or voted at the meeting or meetings at which said amendment was adopted, or that he in any way assented or agreed thereto, unless assent compulsory or acquiescent is to be inferred from the fact of membership as stated herein, from the constitution of defendants, and from the fact that he never dissented upon any occasion. He could have been present at meetings and assented if he desired to do so, hav ing the same privileges as the other members of the exchange. MacDowell’s dues began to be in arrear in 1877, after which time he continued indebted to the said stock exchange until his death. During this time his attention was frequently called to the fact of this indebtedness by the secretary and treasurer of the exchange.</p> <p>On August 6th MacDovrell was duly suspended for non-payment of dues to the stock exchange, aud upon the same day a letter stating the fact was mailed to his address.</p> <p>Upon both occasions a printed copy of the addition to section 17, adopted November 17th 1877 was enclosed to him.</p> <p>On April 28th 1878 ■ MacDowell was duly confined, on certificates of two physicians, in the Pennsylvania hospital for the insane. At the time of his confinement in the hospital he was without mental power sufficient to comprehend business of any kind, and remained in that condition without lucid intervals, and without being permitted to leave said hospital until the date of his death.</p> <p>He died on the 26th of November 1878, intestate, leaving the said Caroline G. MacDowell. his only child, a minor about four years of age, his sole heir. He left no letter designating the person to whom the gratuity should be paid. At and prior to his death he was insolvent, owing to members of the Philadelphia stock exchange a larger sum than the proceeds of his seat. The proceeds of his seat have not been distributed, but are held by the treasurer of the stock exchange.</p> <p>His indebtedness to the Philadelphia Stock Exchange at the time of his death (said indebtedness being the same then as at the time of his suspension), amounted to $61.15, and was as follows: March 81st 1877 to August 6th 1878, annual dues, $16.15. Assessment due by him on death of members, $80. Annual dues, gratuity fund, $15. The said stock exchange has, since his death, in accordance with the provisions of its constitution, sold his seat or membership for the sum of §1500, and have applied §61.15 of the said sum to the payment of the dues and assessments above stated.</p> <p>All of these duos wore debts due by him prior to his suspension. During the period of his suspension, that is, between August 6th 1878 and November 26th 1878, several gratuity assessments and one regular quarterly subscription to the stock exchange, became due and payable by all non-suspended members, to the exchange. These sums would have been due and payable by MacDowell, hut for the fact of his suspension, as aforesaid; but on that account, he was not charged with nor did he pay any of them, nor has any deduction for any portion of said sum been made from the proceeds of his seat.</p> <p>If the court be of the opinion, that the plaintiff is entitled to the above-mentioned gratuity, then judgment for the plaintiff in the sum of $2000, together with whatever interest the court may hold to be due thereon. If not, then judgment to be entered for the defendant.</p> <p>The case was referred to a referee, under the provisions of this Act of May 14th 1874, who found—</p> <p>“1. That J. MacDowell, the father of the plaintiff, Caroline G. MacDowell, was, as a member of the Philadelphia stock exchange, subject to the provisions of section 17, paragraph 6, of the constitution thereof, as amended on November 17th 1877.</p> <p>“ 2. That being so subject, the said MacDowell, having been suspended from the Philadelphia stock exchange on August 6th 1878, and not having paid in full his assessments and dues to the gratuity fund for three months thereafter, ceased, ipso facto, at the expiration of that period, to be a full member of the exchange, qua this gratuity fund.</p> <p>“ 3. That the defendants, after the death of the said MacDowell, and the sale of his seat therein, deducted from the proceeds of the latter, the amount of the dues and assessments owing by MacDowell to- the gratuity fund, at the time of his suspension from the exchange, namely, $61.15, does not in the opinion of the referee, alter or affect his decision upon the question of the right of the said MaoDowell’s representatives to the benefits of the gratuity fund.</p> <p>“ The retention of these dues and assessments by the exchange, after the insolvency and death of MacDowell, from the proceeds of the sale of his seat, was 'not in the opinion of the referee a waiver, by the exchange of the provisions of its constitution above referred to; and by virtue of which, the referee has decided, that the said MacDowell ceased to be a full member for the purposes of this gratuity fund.</p> <p>“ The referee is of opinion, therefore, that judgment should be entered upon the case stated for the defendants, and enters judgment accordingly.”</p> <p>Exceptions were filed to this report, which the referee overruled, and the plaintiff took this writ and alleged, that the referee erred in entering judgment for the defendants.</p>

<p>Error to the Court of Oyer and Terminer of Philadelphia county: Of January Term 1880, No. 78.</p> <p>Indictment of Daniel F. Sullivan for the murder of Josephine Irwin.</p> <p>It appeared at the trial, before Elcock, J., that the defendant Sullivan and the deceased, Josephine Irwin, had been living in illicit intercourse for about four weeks prior to the date of the murder, and occupied the back third-story room of No. 218 South Eighth street, Philadelphia, which room Josephine had rented.</p> <p>On the night of the murder the prisoner had returned from his work about 5 P. m., and had eaten the supper which the deceased had prepared for him. They remained together in their room during the entire evening, with the exception of two visits paid by the deceased to the kitchen in the back building, occupied by two colored women, Ellen Freeman and Nellie Brown. At the last of these visits the deceased was noticed to be crying, and requested Ellen Freeman not to leave the house that evening as she had previously indicated an intention to do.</p> <p>Between 9.30 and 10 P. M. two reports of a pistol were heard, accompanied with the cries of “murder” and “Frank, you’ll shoot me,” in a female voice, proceeding from the back third-story room of 218 South Eighth street, followed by the ringing of a bell in the kitchen from the third-story back room, and shortly after by a knock at the door of the room in the back building occupied by Ellen Freeman and Nellie Brown. Upon this door being opened, which led to the main staircase, the prisoner was found on the stairs partly dressed. He requested Ellen Freeman to go for a doctor and a priest, and said, “ Josie has shot herself.” The deceased, who was then at the top of the stairs, made answer, “ Ellen, I didn’t — I didn’t — Frank Sullivan shot me.” The wounded woman was carried in and laid upon her bed, and the colored woman at once left the house for the purpose of procuring a physician and an officer, leaving the deceased and the prisoner in the third-story back room. The prisoner dressed himself hastily, putting his necktie and collar in his pocket and also the pistol with which the deceased had been wounded. He was on his way down the staircase when he was arrested by the police, and brought back into the room where Josephine Irwin lay. When asked by the officer who shot her, she replied, “ Frank Sullivan; that’s the man that shot me,” pointing to the prisoner. Sullivan said nothing in reply. In the presence of Officer Keegan and the prisoner, she said to the prisoner, “ Frank, you have done this; you have shot me twice.” She repeated this two or three times, the prisoner giving no denial and making no answer. In reply to inquiries by Lieut. Henderson, she said, “That’s the man that shot me twice,” pointing to the prisoner. Physicians were called, and upon examining the person of the deceased, a wound or scratch was found on the side of the head above the left ear, extending upwards and backwards, and a gunshot wound which penetrated the abdomen and the anterior wall of the stomach, and extended obliquely inwards and upwards, the latter wound being the one which caused her death. A recent bullet mark was found upon the ceiling and south wall of the room, in a line with the position occupied by the deceased, as alleged by the Commonwealth, at the time the first shot was fired, which grazed the left side of the head. From the dying declarations of the deceased, it appeared that the deceased and the prisoner had quarrelled about money, and that upon the prisoner retiring to bed he put out the light, which was usually left burning; that the deceased got up and lit the gas, which the prisoner again put out and returned to bed. The deceased got up a second time and was about to relight the gas, when the prisoner fired from the bed where he lay and shot her on the side of the head. She then turned to run towards the door, and in doing so had to pass the foot of the bed, when the prisoner leaned upon his knees across the footboard of the bed, and fired the second shot at her stomach. The pistol found upon his person showed two barrels recently discharged, and was so constructed that it required two ■movements of the hand to cock and'fire it.</p> <p>One or both of the physicians in attendance remained with the wounded woman until her death, which occurred between 9 and 10 A. m. of the next day. The only medicine administered was a few teaspoonsful of a solution of one grain of sulphate of morphia dissolved in three ounces of whiskey and one ounce of sugar and water, administered at intervals, and some champagne given early in the night to settle her stomach. Very little medicine was administered to her, the physicians relying mainly upon the application of wet cloths to the patient’s, abdomen. From the first she had a fixed belief that the injury would terminate fatally, and expressed the belief that “ nobody gets well that’s shot in the .stomach,” and asked Officer Henderson to send for a priest, that she was “going to die.” During the night she was engaged in prayer, and in the morning early directed Ellen'Freeman to bring her a box which lay on the bureau, and gave instructions how to dispose of its contents after her death. She was in great pain during the night, and in the morning, shortly before her death, made the dying declarations with reference to the shooting, which were admitted in evidence on the trial.</p> <p>The defence set up was two-fold. First, that the deceased was accidentally shot by the prisoner ; and second, that she committed suicide. It was not pretended that the shot was fired by any third person, or that any third person could have had access to the room where the shooting occurred, as it was clearly shown that the only persons in' the dwelling portion of the house, at the time of the shooting, besides the prisoner and the deceased, were the two colored women who were in the back building, and that all the doors communicating with the. outside of the house were either bolted or permanently fastened. The theory of accidental shooting was rebutted by the circumstances of the case; and to rebut the allegation of suicide, the Commonwealth showed (as was shown in Quigley’s case, 3 Norris 18) that there were no such marks of powder, burning or tattooing upon the person or clothing of the deceased as would necessarily have appeared in case the pistol had been discharged close to the person.</p> <p>From the character of the weapon, the repetition of the shots, the shifting by the prisoner of his position in order to make the second shot effectual, from the fact that both shots were aimed at vital parts of the body, and from the dying statement of the deceased as to the motive and manner of the shooting, corroborated by the position of the bullet marks on the wall and the testimony of the witnesses residing in the adjoining house, the Commonwealth claimed that the shooting was wilful, deliberate and premediated.</p> <p>At the trial the Commonwealth called Ellen Freeman to show that the deceased was conscious of her impending dissolution, for the purpose of laying the ground to admit her dying declaration as to the killing. Defendant objected, and objection overruled. (First assignment of error.)</p> <p>The Commonwealth then proposed to show witness the gown and chemise of the deceased. The defendant objected to any article being shown witness until after examination as to a description of the article. Objection overruled. (Second assignment.)</p> <p>Dr. Pennington testified, inter alia, as follows, as to the dying declarations of deceased :</p> <p>“ On night of 5th of May I was called on about twenty minutes past ten; I found Josie Irwin in the third story, lying in bed; turned down bed-clothes ; discovered wounds to right of middle line and above umbilicus ; when I first went into the room, she was throwing herself around on the bed, and breathing very heavily; pulse between 100 to 130 ; she was very much excited ; considerable blood on clothing and bed, but little external hemorrhage; during the night she became easier, pulse ranged from 98 to 140 ; in the morning much easier; perfectly conscious; pulse 98 to 100 ; respiration about 20 to a minute, during the night; from the first, she contended she was murdered; she said she knew she had been murdered, and was going to die; that anybody wounded in the stomach never recovered; she was praying frequently during the night, and in the morning, too.”</p> <p>Q. During the night, or in the morning, did she make any statement to you as to how the shooting occurred ?</p> <p>Objected to. Objection overruled.</p> <p>Ans. “ She said she was used to sleeping in the light, and that prisoner wanted the gas turned out, while she wanted it lit, and as fast as one turned it out the other lit it; I believe that’s all.” (Third assignment.)</p> <p>Ellen Freeman, as to dying declarations of deceased, was asked: When you were on the stand the other day, you said it was in the morning Josie told you how the shooting occurred. What did she say ?</p> <p>Objected to. Objection overruled.</p> <p>Ans. “I said, Josie, how did the shooting occur? she said it started about money; she said he said he gave me $25, and he only gave mo $10; we contended over it for just a few moments, when she said she got up and went to bed; after so long a time he read, and then he got ready and went to bed and put out the light, and the light always burned at night, a dim light; she said she watched until he got fixed in the bed, and then she got up and lit it again; and then he leaned over and looked to see if she was asleep, a considerable time after she got in bed; then he got up and put the light out again; she got up to light it, and he shot her in the head; then she said she turned to run toward the door, and he leaned upon his knees across the foot-board, and shot her in the stomach ; that’s all.” (Fourth assignment.)</p> <p>Dr. Butcher testified, inter alia, as follows :</p> <p>“ I am a physician in the county prison; have been there for about twelve years; was assistant surgeon in the army for three years; am familiar with gun-shot wounds; I made experiments with the revolver and cartridges in evidence in this case; I took a piece of muslin and put it on a pillow so as to bold it up, and put it on the wall about four and a half feet high ; fired at it with the revolver brought me by Officer Yanzant, and cartridges out of the box he brought me.”</p> <p>Witness here exhibited a white muslin cloth, showing bullet holes and marks numbered respectively from 1 to 11, inclusive, and says :</p> <p>‘ ‘ No. 1 shows a glance shot fired at' the distance of seven feet between the muzzle and the material; it shows only the black mark where the bullet struck, and no marks of powder burning and tatooing ; No. 2 was fired at the distance of six inches, and shows blacking at the bullet-hole and tatooing ; No. 8 was fired at seven inches, pretty well blackened and tatooing; No. 4 was fired at seven feet, left black around the hole, and no tatooing or powder-mark ; No. 5 was fired at five feet, same result as No. 4; Nos. 6 and 7 were fired at seven inches, made black around the hole, tatooing and powder marking; No. 8 was folded; fired at ten feet, made black mark around the holes; No. 9 fired at nine inches, made blacking around hole, tatooing and powder marking; No. 10 was fired at ten inches, made black around the hole, tatooing and powder marking; No. 11 was fired at ten feet, making blacking around the hole. Was surgeon of 99th Pennsylvania regiment; part of the time in field, and part in hospital; was at second Bull Run, Fredericksburg, and • other affairs; was surgeon in the hospital; have had gun-shot wounds in my practice, and many of them in prison.”</p> <p>The defendant submitted, inter alia, the following points, to which are appended the answers of the court.</p> <p>1. Where murder has been committed, and the killing has been done with malice, and not in the perpetration or attempt to perpetrate, any of the crimes enumerated in the Act of Assembly of March 1860, to constitute murder in the first degree, there must have been a deliberate, settled purpose; a disposition of mind leading its victim into murder, aware of its wicked pursuit and intent, upon tho result; and this purpose must he proved according to law, beyond the probability of a doubt; otherwise, the killing is deemed to be murder in the second degree.</p> <p>Ans. " Affirmed. But the purpose to kill may be inferred from the character of the weapon, the nature and number of the wounds, and from all the circumstances in the case. It is not necessary that the defendant should have avowed a purpose to kill. The law does not require positive proof of an intent. Such intent may be inferred from the act.” (Seventh assignment.)</p> <p>3. If the jury believe the killing was done without malice aforethought, either expressed or implied, upon sudden heat or quarrel, or in any angry altercation, or in consequence of reasonable provocation ; or grew out of an assult under circumstances which do not, nor would excuse on the grounds of self-defence, the offence would be manslaughter.</p> <p>Ans. “ Affirmed. But sudden heat or quarrel alone, angry altercation alone, provocation merely, or an assault merely, not excusable on the ground of self-defence, is not sufficient to reduce the offence to manslaughter. To reduce to manslaughter the passion which prompted the killing, must have been aroused by a sudden quarrel upon sufficient provocation, and the parties must contend upon equal terms. No mere words are a sufficient provocation to reduce the offence to manslaughter. There is no evidence in the case of any assault by the deceased upon the prisoner, prior to the shooting.” (Eighth assignment.)</p> <p>6. If the jury believe that the crime was committed by the prisoner without premeditation and deliberation, then he would be guilty of murder in the second degree.</p> <p>Ans. “ Affirmed. But, as I have before stated, the law requires no particular length of time as necessary to form the intention to kill, but leaves the existence of a fully-formed intent, and the consciousness thereof, as a fact for your determination, from all the facts and circumstances of the case.” (Ninth assignment.)</p> <p>7. Whenever death ensues from wounds inflicted in sudden transport of passion or heat of blood; or if, upon reasonable provocation, and without malice, or upon sudden combat, the killing would bo manslaughter.</p> <p>Ans. “Affirmed. There must be not only sudden passion and hot blood, but also sufficient provocation, which must be more than mere words, to reduce the offence, and the parties must contend on something like equal terms.” (Tenth assignment.)</p> <p>8. Under the Pennsylvania statute, a killing with malice, express or implied, the law implies murder in the second degree only; the Commonwealth must show enough malice and wilful deliberation and premeditation, to raise the grade of offence; a failure on the part of the Commonwealth to establish any of these points, reduces the offence to murder in the second degree or voluntary manslaughter. (Eleventh assignment.)</p> <p>Ans. “ I have already defined this. The Commonwealth must show a wilful, deliberate and premeditated killing, to convict of murder in the first degree, and this may be proved by circumstantial evidence.”</p> <p>10. The true distinction in all cases like this is, that if death was evidently occasioned by gross, erroneous medical treatment, the original author would not be answerable beyond a verdict of manslaughter.</p> <p>Ans. “ Affirmed. But there is no evidence of gross erroneous medical treatment, and to relieve a defendant on such grounds, the death must be due to that alone. If the alleged shot in any degree contributed to her decease, the defendant is responsible.” (Twelfth assignment.)</p> <p>11. If the jury entertain a reasonable doubt as to the prisoner’s guilt, such doubt ought to produce a verdict of not guilty or an acquittal; and this principle is applicable to the different grades of homicide.</p> <p>Ans. “ Affirmed. But it must be a doubt created by the evidence. not one created to avoid responsibility or for fear or favor.” (Thirteenth assignment.)</p> <p>12. If the jury believe that death was the result of an accident, to which the deceased contributed through no fault of the prisoner, then their verdict should be not guilty.</p> <p>Ans. “ That is so, but you must say, if from the evidence in the case, she could have shot herself.” (Fourteenth assignment.)</p> <p>13. If the jury believe that death was the result of an accident through the gross carelessness of the prisoner, then their verdict should be involuntary manslaughter.</p> <p>Ans. “ That is so if there was no intention to shoot; but if the prisoner, knowing the pistol to be loaded, fired two shots at the deceased, the law will, presume malice, and the offence would be murder at common law.” (Fifteenth assignment.)</p> <p>None of these assignments were properly made. The points were set forth in one portion of the paper-book, and the answers of the court in another, instead of the answers following the points, as prescribed by this court.</p> <p>In the general charge the court, Elcock, J., said:</p> <p>“ The prisoner at the bar — so young, yet he, too, so unfortunate — stands indicted for murdering his companion, Josie Irvin, on the night of May 5th last. The Commonwealth’s theory briefly is, that these two people, in the evening, had a dispute about a sum of money, and that after going to bed he extinguished the light, when she wished it to burn; that he again extinguished it, and upon arising a second or third time to relight it, he shot her in the head, and as she attempted to escape, or get out of the room, he loaned over the foot-bo.ard of the bed and shot her in the stomach; that after firing the fatal shot he threw her roughly four times upon the bed, and attempted to escape.</p> <p>“ From this state of facts the Commonwealth’s officers ask you to say that there was an intention to take life, and therefore wilful, and that there was a consciousness on the part of the prisoner of the nature and character of the injury inflicted, and of the purpose and design intended, which amounts to deliberation, and as there was sufficient time to enable the mind fully to frame the design to kill, and select the instrument to carry the design into execution, it is premeditation, and murder in the first degree.</p> <p>“ At common law murder is described to be when a person of sound memory and discretion unlawfully kills any reasonable creature in being, and under the peace of the Commonwealth, with malice aforethought, expressed or implied.</p> <p>“ The statute defines murder in the first degree to be any wilful, deliberate and premeditated killing of any human being. And all other murders are murders in the second degree. As these offences have been defined by high authority, there is no use of framing new sentences or language to explain them. Chief Justice Agmw, who gave the clearest and most conciso definition of these crimes, says : ‘ Murder in the second degree includes all unlawful killing under circumstances of depravity of heart, and a disposition of mind regardless of social duty; hut where no intention to kill exists, or can be reasonably and fully inferred. Therefore, in all cases of murder, if no intention to kill can be inferred or collected from the circumstances, the verdict must ho murder in the second degree.’</p> <p>“ Manslaughter is defined to he the unlawful killing of another, without malice expressed or implied, which may be voluntary in a sudden heat, or involuntary, but in the commission of an unlawful act. Voluntary manslaughter often so nearly approaches murder, it is necessary to distinguish it clearly. The difference is this: Manslaughter is never attended by legal malice or depravity of heart — that condition or frame of mind exhibiting wickedness of disposition, recklessness of consequences or cruelty. Being sometimes a wilful act (as the term voluntary denotes), it is necessary that the circumstances should take away every evidence of cool depravity of heart, or wanton cruelty.</p> <p>“ Therefore to reduce an intentional blow, stroke or wounding, resulting in death, to voluntary manslaughter, there must be sufficient cause or provocation, and a state of rage or passion without time to cool, placing the prisoner beyond the control of his reason, and suddenly impelling him to the deed. If any of these he wanting, if there be provocation without passion, or passion without a sufficient cause of provocation, or there be time to cool, and reason has resumed its sway, the killing will be murder.</p> <p>“ Therefore, if an intention to take life exists, it is wilful. If this intention be accompanied by such circumstances as evidence a mind fully conscious of its own purpose and design, it is deliberate, and if sufficient time be afforded to enable the mind fully to frame the design to kill and select the instrument, or frame the plan to carry the design into execution, it is premeditated, and is thus murder in the first degree. All unlawful killing, under circumstances of depravity of heart, and a disposition of mind regardless of social duty, but where no intention to kill exists, or can be reasonably and fully inferred, is murder in the second degree.</p> <p>“ Connected with these definitions I may also state that malice, which is one of the essentials of murder, is not a particular ill will, or spite or grudge, but it is a legal term, which comprehends every case where there is wickedness of disposition, badness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty.</p> <p>“ The law fixes upon no length of time as necessary to form the intention to kill, but leaves the existence of a fully-formed intent as a fact to be determined by you from all the facts and circumstances in evidence.</p> <p>“ It is true that such is the swiftness of human thought, that no time is so short in which a wicked man may not form a design to kill, and frame the means of executing his purpose; yet this suddenness is opposed to premeditation, and you roust be well convinced upon the evidence that there was time to deliberate and premeditate. The law regards, and the jury must find, the actual intent; that is to say, the fully-formed purpose to kill, with so much time for deliberation and premeditation as to convince them that the purpose is not the immediate offspring of rashness and impetuous temper, and that the mind has been fully conscious of its own design. If there be time to frame in the mind, fully and consciously, the intention to kill, and to select the weapon or means of death, and to think and know beforehand, though the time be short, the use to be made of it, there is time to deliberate and to premeditate.</p> <p>“ The burden of proof necessary to constitute murder in the first degree, lies on the Commonwealth. But the proof need not be express or positive. It may be inferred from the circumstances, or by circumstantial evidence.</p> <p>“ It may be also stated as a general rule that homicide is presumed to be malicious; that is, murder of some degree, until the contrary appears in evidence. Therefore, the burden of reducing the crime from murder to manslaughter, where it is proved that the person committed the deed, lies on him. He must show all the circumstances of alleviation or excuse upon which he relies to reduce his offence from murder to a milder kind of homicide, unless, indeed, where the facts already in evidence show it. But though the homicide, without the circumstances of alleviation or excuse, is presumed to be murder, it is not presumed to be murder in the first degree. The presumption against him rises no higher than murder in the second degree. It therefore lies upon the Commonwealth to satisfy the jury of those facts and circumstances which indicate the deliberate intention to kill, and the cool depravity of heart and conscious purpose which constitute, as before stated, murder in the first degree. When death ensues from the use of a deadly weapon in a quarrel or affray, the jury must scan closely the conduct of both parties, their relation, and behavior, and the current of events, the character of the weapon, the manner of its use, and the circumstances attending it; and by a careful survey of the evidence endeavor to arrive at the true motive and cause which prompted the fatal shot.</p> <p>“ Was there provocation, or a cause of provocation ? Insulting words are not sufficient cause of provocation, nor are actual indignities to the person of a slight and trivial kind, nor disputes about money or about turning out the light.</p> <p>“ To these definitions of the law you must apply the evidence.</p> <p>“ 1. Was the mortal wound inflicted by the pistol in the hands of the prisoner ? If it was not, that ends the case, and the prisoner should be acquitted.</p> <p>“ 2. If it was, under which of the classifications I have just stated does the evidence constitute the offence; murder in the first or second degree, or manslaughter ?</p> <p>“ Now, as to the evidence. No human being saw the shot fired save the poor unfortunate creature who suffered its wound, and the evidence on this point, therefore, is her dying declaration, her declarations in the presence of the prisoner, charging him with her murder, undisputed and unanswered by him at the time.</p> <p>“ The declarations of a person dying from injuries received are admissible in evidence against the prisoner charged with inflicting the injuries, to identify the prisoner and establish the circumstances of the alleged shooting. The law permits this as a necessity, and because, where a person is conscious of impending immediate death, all temptation to falsehood, either of interest, hope or fear, will be removed, and the awful nature of the situation will be presumed to impress as strongly with the necessity of a strict adherence to truth as the most solemn obligation of an oath administered in a court of justice.</p> <p>“ This dying declaration is, therefore, if properly stated, or repeated by the witnesses on the stand, solemn evidence. It is, of-course, subject to the same rules of criticism or analysis as other evidence.</p> <p>“ The dying declaration is testified to by Ellen Freeman, as follows: [The court hero set forth the evidence of said witness included in the 4th assignment of error.]</p> <p>“ This is the offence; is it proved to your satisfaction ?</p> <p>“ Ellen Freeman, it is said, is corroborated by Dr. Pennington, and that the theory is also corroborated by the cry heard by Mr. Hughes and his son, next door, and the scenes witnessed by Mrs. Belisle and Miss Ricourd and Nellie Brown.</p> <p>“ Remember, you are the sole judges of the evidence, its truth or falsity, its weight and connection, and whether it satisfies you of the correctness of the alleged theory as to the cause of death, as well as to all the circumstances of the case, is for you.</p> <p>“ Circumstantial evidence, under which head this evidence is comprised, is, if the links or incidents going to make a complete chain of circumstances be coupled or connected with accuracy, as strong as other evidence, if not stronger. All that the law requires in evidence is, the conviction of the mind as to the existence of a certain state of facts. The only difference between positive and circumstantial evidence is, that the former is more immediate and has fewer links in the chain of connection between the premises and conclusion. One is as liable to perjury as the other. Therefore, if you believe the evidence, and if the chain of circumstances points to a certain conclusion, you have a right to presume the existence of a fact therefrom, as if the circumstances point with unerring accuracy to the conclusion that the prisoner fired the fatal shot you have a right to so presume.</p> <p>“ The prisoner’s counsel ask you to infer two theories :</p> <p>“ 1. That the deceased woman caused her own death, either by accident or design. Well, if that is so, of course, there is no murder; but can you say so, and if so, which theory do you adopt ? Is there any evidence from which you can fairly infer such a state of facts ?</p> <p>“ 2. That the woman died from the effects of maltreatment by the medical attendants. If the shot was fired by the prisoner, and was fatal, it makes no difference as to the treatment. To establish such a defence, the evidence should disclose a state of facts showing the wound was not fatal, but that the treatment alone killed her. But is there any evidence to show that there was maltreatment ? I do not see it.</p> <p>“ In circumstantial evidence, as indeed in positive, the prisoner’s guilt must be made out by evidence sufficiently eon-elusive to exclude any reasonable supposition of his innocence.</p> <p>“ The importance of your duty in determining this evidence cannot be too highly estimated. For the life which has been taken the •law requires vindication. If the person be guilty, say so, but if you have a reasonable doubt upon the testimony, an honest, manly one, which appeals to your conscience, not created by fear or favor, the prisoner is entitled to the benefit of it.</p> <p>“ Give the evidence a fair and calm consideration, and let your verdict be such as will satisfy your conscience and the law.”</p> <p>The whole of the above charge was assigned for error, and constituted the sixth assignment.</p> <p>The verdict was murder in the first degree. A motion for a new trial was, after argument, overruled and defendant sentenced to be hanged. He then 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, of Bradford county: Of January Term 1878, No. 216.</p> <p>Feigned - issue, wherein J. Wood and others were plaintiffs, and M. W. Wheelock, defendant, to try the validity of a revived judgment for §3700, entered in favor of said Wheelock against G. P. Cash and H. L. Scott, the assignee of said Cash.</p> <p>Certain real estate of Cash having been sold, an auditor was appointed to distribute the proceeds, before whom the above revived judgment was presented for payment. Wood and others, who were judgment-creditors, objected on the ground, that said judgment contained usurious interest, but the auditor ordered it to be paid. Wood et ah, then filed an affidavit which set forth, that on the 6th of August 1870, M. W. Wheelock loaned to Cash, the defendant, §3000, and took the latter’s note therefor, which was entered up August 9th 1870 ; that Cash made payments to Whee-lock on said judgment up to August 6th 1873; that on the 10th of May 1875, Cash and H. L. Scott (who was a creditor and trustee of said Cash’s estate under a voluntary assignment for benefit of creditors) entered into an amicable revival of the above judgment with Wheelock for the sum of §3700, without any notice to petitioners ; the said note was not paid, but the amount of it was included in the above revived judgment. And petitioners aver, that on the said 10th of May 1875, there was but §2881.15 legally due upon said judgment; and that the same was revived for the sum of §818.85, more than it ought to have been; and that said revival is a fraud upon the rights of your petitioners, and that said revived judgment is void as to them. That at the time said Cash and Wheelock revived said judgment, they both well knew that the said Cash was insolvent; and that the revival of said judgment for more than was due, would hinder, delay and prevent your petitioners from the collection of their judgment against said Cash. That petitioners were purchasers of the real estate which raised the fund for distribution, and claim, that said fund should be distributed to the payment of their several judgments, in preference to that of Wheelock; and, therefore, prayed that an issue should be directed to try the disputed facts.</p> <p>The issue was granted. When Cash gave tlie note, it appeared he was undoubtedly solvent, but became embarrassed in 1874. In a deposition, Wheelock testified, that he believed Cash solvent at the time the judgment was revived.</p> <p>The plaintiff presented, inter alia, the following point, to which is appended the answer of the court:</p> <p>1. A judgment tainted with fraud in whole or in part, is absolutely void, and cannot be used for any purpose where it would come into conflict with the rights of other creditors.</p> <p>Ans. “ The first point as a general proposition is correct, but as to this case, we are unwilling to say that because Wheeloek’s judgment contains usurious interest that the whole judgment is void or postponed, even if it comes in conflict with the rights of these plaintiffs.”</p> <p>The second point of the defendant with the answer of the court were as follows:</p> <p>“ To enable the plaintiff to recover in this case the jury must believe that there was collusion between Cash and the defendant in the revival of the Wheelock judgment to defraud subsequent lien creditors, or that Wheelock had such a knowledge of Cash’s indebtedness and the value of his property that he knew that subsequent lien creditors would be injured thereby.</p> <p>Ans. ’‘Affirmed, provided the jury find, in addition to what is here stated, that Wheelock had not such knowledge of Cash’s circumstances as that he could reasonably presume that his act in taking the agreement to revive his judgment would defraud Cash’s creditors.</p> <p>In the general charge the court, Morrow, P. J., inter alia, said:</p> <p>“ If you believe the usurious contract to revive Wheelock’s judgment was intended to defraud Cash’s creditors, or if you find Cash’s circumstances were known to Wheelock to be such that it could be reasonably presumed that this would be the natural effect of it, then these plaintiffs can postpone Wheelock’s judgment as to the excess of interest, and your verdict should be for the plaintiff’ for the amount of such excess. * * * At the time the judgment was revived Cash had the right to retain or deduct the amount of usury already paid from the debt. In refusing to do that it was as much a fraud on his creditors as to include usury accruing after their rights had attached.”</p> <p>Verdict for plaintiff for $818.85. After judgment thereon defendant took this writ, and alleged that the court erred (7th assignment) in the answer to defendant’s point, and (4th and 5th assignments) in the portions of the charge noted.</p> <p>The plaintiff also alleged that the court erred in the answer to his point, which assignment will be found passed upon in the second opinion of this court in Wood v. Wheelock, post, page 301.</p>

<p>1. "Where a property has been sold under a judgment upon a mortgage, and an auditor appointed to make distribution of the purchase-money, a second mortgage-creditor, where there has been no fraud, cannot defeat distribution to so much of the judgment obtained on the prior judgment as might have been prevented against the mortgagor, had he set np a defence of usury in the consideration.</p> <p>2. In the absence of proof that a fraud was intended upon him, a second mortgagee cannot thus collaterally attack the first mortgage for usury.</p> <p>3. The mere fact that a debtor has paid or agreed to pay in good faith, and in the usual course of business, more than six per cent, interest, is not enough to establish a fraud upon creditors, and the mere refusal of a debtor to contest the claim against him does not of itself amount to such fraud. It is only where an usurious contract is entered into collusivoly as a scheme to hinder and delay creditors, that the latter have any standing to contest a judgment entered upon such usurious contract.</p> <p>4. Greene v. Tyler & Co., 3 Wright 361, distinguished.</p>

<p>1. The will of L., consisting of an original paper dated December 5th 1877, ¡ executed in the presence of two subscribing witnesses and of four codicils signed by her, but not dated or witnessed, was admitted to probate September 26th 1878. Some time after its execution the testatrix made several alterations in her will by drawing a pen transversely across the words creating some of the legacies, and one bequest in the seventh clause she altered by drawing her pen across the word “ five,” and writing over it the word “ three,” and also placing the numeral “ 3” both above and beneath the erased word. Afterwards she signed what appeared to be her first codicil. Other codicils followed in their order, without date or subscribing witnesses. The probate exhibited the erasures, and all the alterations were distinctly legible. The court below held that in the absence of proof of re-execution of the will after the alteration in the seventh clause was made, the substitution could not be sustained. Held (reversing the court below), that while the erasures in the other clauses of the will were evidently intended to operate as a cancellation of her will as to those bequests, no such intention could be inferred from the erasure and interlineation in the seventh clause, and that they were clearly not intended to revoke the legacy.</p> <p>2. Per Sterrett, J. The probate of the will, as we now find it, was an adjudication of its due execution, including by necessary implication, the republieation of the instrument, after the alteration in question was made. This established, prima facie at least, the validity of the legacy, and certainly in the absence of proof that the alteration was made after the last codicil, the legacy should have been permitted to participate in the distribution.</p>

<p>1. While a sheriff's sale on a mortgage divests its lien on the land covered thereby, and a purchase at such sale by the holder of a prior mortgage may operate to extinguish the lien of his prior mortgage on the land sold, and may prevent any further proceedings on the mortgage, yet it does not necessarily operate as a payment or extinguishment of the debt or bond which the mortgage was given to secure. Its effect depends on the agreement and intention of the parties.</p> <p>2. Y. held twenty-five shares in a building association from which he secured three loans, one of $2000 in 1875, one of $1000 in 1876 and another of $2000 in 1877. To secure the payment thereof he gave a bond and executed a mortgage for each loan, all the mortgages being on the same lands. He also transferred as collateral security his stock in said association, ten, five and ten shares on each loan respectively. While he stood in this relation to the society, N. obtained a judgment against V., and issued an attachment-execution thereon. Y. becoming in arrears to the association, it issued a scire facias on the third mortgage and sold the land subject to the first two mortgages, the association becoming the purchaser. It was contended by the attaching creditor that all the bonds and mortgages which the association held were thereby extinguished and satisfied, and the stock should revert to V. Meld, reversing the court below, that as it wan manifestly not the intention of the parties that the stock should revert to V. before the loan was actually paid, the purchase by the association did not have that effect.</p>

<p>The firm of B. & Co. was composed of B. and L. The firm dissolved October 1st 1872, by the withdrawal of L. B. continued the business under the old name of B. So Co. At the dissolution, B. executed his bond to L. in the sum of $20,000 in full consideration of L.’s interest in the firm assets. Five thousand dollars of this sum were afterwards paid. It was further agreed that B. So Co. should, from time to time, make and deliver to L. accommodation notes and renewals thereof, L. binding himself to protect the same as they matured. At this time L. was carrying on a separate business of his own under the name of L. So W. In 1874 L. associated with him as partners T. So M., and this new firm continued the name of L. So IV. As the accommodation notes matured, they were renewed by B. & Co. in favor of L. So IV., and were discounted by various banks to the credit of L. So IV. B. So Co. made an assignment for the benefit of creditors September 1st 1876. In December 1875, L. So W. were adjudged bankrupts. Notes to the amount of $22,000 against B. & Co. were proved. From the evidence before the auditor of the account of the assignee of B. So Co., it appeared that B. & Co. had received no consideration for furnishing said notes, and that the banks were bona fide holders for value. These notes, the auditor reported, were but duplications of the $15,000 due on the bond. The banks proved the notes when M. of the firm of L. So IV., and who was the vendee of the assignee in bankruptcy of L. So IV., offered to prove before the auditor a claim for $2743.78 for merchandise of L. & IV against B. & Co. The banks objected, as the debt claimed on was represented by the notes. It appeared that M. knew of the accommodation notes, and that four of the notes discounted had been endorsed by himself. The auditor held that inasmuch as notes for more than $22,000 had been proved against B. & Co. for the accommodation, without consideration of L. & IV., the claim of L. & IV. held by Mj must be disallowed, which ruling the court sustained. Held, that this was error, that as the paper was issued originally for the benefit of L., and was afterwards, from time to time, renewed by B. So Co., and discounted on the endorsements of L. & W. for the sole purpose of lifting the originals or preceding notes, L. So IV. did not owe B. & Co. anything, and the claim of M. should have been allowed.</p>

<p>Error to the Court of Common Pleas, of Lehigh county: Of January Term 1880, No. 67.</p> <p>Scire facias sur municipal claim by the City of Allentown against Harrison Hower for water-frontage tax.</p> <p>The City of Allentown was incorporated under a special act of Assembly, approved March 12th 1867. On September 8th 1874, the city surrendered its charter, and accepted the provisions of the act entitled “An Act dividing the cities of this State into three classes,” he., approved May 23d 1874. In the year 1875, the Avater commissioners of the city passed a resolution providing for the extension of the water-pipes of AllentoAvn. In pursuance of said resolution, during the year 1875, the water-pipes were laid along Walnut street in front of the premises of the defendant, and the number of feet of main pipe laid through said street was filed in the department. At the same time the clerk of the said department made out a list of the OAvners of all the houses, lots and buildings on each side of said street, and charged each of said owners such rate per foot as had been fixed by ordinance. The tax was then placed in the hands of the city treasurer for collection, and the names of such persons as had not paid the tax within six months were handed over by the city treasurer to the city solicitor, who, in January 1876, had said amount of taxes registered against the parties who had refused to pay. On March 8th 1876 a scire facias was issued by the city solicitor, upon which scire facias judgment was entered May 6th 1876. On April 29th 1876, the court granted a rule on plaintiff to show cause why the writ of scire facias, sur lien No. 1011, should not be quashed. On July 3d 1876, the court (Judge Longaker then presiding) quashed all the proceedings had upon said scire facias. On the 13th of January 1879, a rule was granted upon the plaintiff to show cause why the lien for the tax should not be stricken off; and July 8th 1879, a rule was taken by the present city solicitor to show cause why lien should not be amended as per petition filed. The rule to amend and the rule to strike off the lien were argued together, on October 10th 1879. On the 24th of October 1879, the court, Albright, P. J., made the rule to strike off the lien absolute, and discharged the rule, in an opinion, inter alia, saying:</p> <p>“ It is well known, that lots in an incorporated city are liable to various charges. It would have been equally convenient to have provided, that the books in the proper office of the city government, should furnish the information as to whether or not certain charges had been paid. It is hardly necessary to multiply arguments on this point. The claim filed in the prothonotary’s office, is enforcible by an action of debt or by scire facias, as in the case of a mechanic’s lien. If the proceeding is by sci. fa. it is a proceeding in rem. But so far as the record of this claim is concerned, where is the thing which is proceeded against ? Nothing can be included in a scire facias except what the record shows; that is, the matters contained in the claim filed. The levari facias must follow the sci. fa., or it must command the levying of the debt from the land or a portion thereof, which the record shows is subject to the said debt.</p> <p>“ These claims should contain a.11 the matters essential to constitute a valid claim under the mechanic’s lien laws ; dates, amounts, names of owners, description of ground charged, &c. It has been said often, that where an extraordinary remedy is given by statute, which is in derogation of the right of the parties at common law, such as claims for work or materials, for wages, &c., the statutory provisions must be strictly pursued.</p> <p>“ The form of claim which the city solicitor seeks to substitute for the one first filed, seems to be such as the law contemplates. But there is nothing to amend by. The very substance of a valid claim is wanting, i. e., the thing to which it is to attach.</p> <p>“ It has been intimated, that even if the claim filed is insufficient to support a sci. fa., that it might stand as a foundation for an action for debt. This position is not tenable. The purpose of the statute is, that the claim shall be such as will support a proceeding in either form.”</p> <p>The city took this writ and alleged, that the court erred in striking off the lien as asked for by the defendant; and, in not allowing the amendment prayed for by the plaintiff.</p>

<p>Error to the Court of Common Pleas of Westmoreland county : Of October and November Term 1878, No. 264. (Western District.)</p> <p>Case by John Jennings against the Pennsylvania Railroad Company, to recover damages for the loss of bay in the meadows of plaintiff, alleged to have been set on fire by sparks from one of the locomotives of defendant.</p> <p>The facts are sufficiently stated in the following opinion of the court below : “ The material portions of the testimony on the part of the plaintifi’, in relation to this question of negligence, are that his premises, on the 4th and 9th of July — at least on the 4th— were fired in several spots. There is no evidence that the fire extended any great distance along the route of the road; nor does the evidence, as we recollect it, show that there was an unusual or extraordinary number of sparks emitted from the engine. But there is evidence showing that the field was fired at several places, and that the grass and hay, according to the quantity as testified to by the several witnesses in the case, wore burned by reason of these sparks. That is one item of the evidence upon which the plaintiff may rely to show the existence of negligence, namely, the fact that the field was fired apparently by the same engine at different points. The plaintiff also relies upon the steepness of the grade, and insists that there is evidence tending to show that the engine was overworked, or worked to its utmost capacity, and that from the circumstances" the jury would he authorized in inferring the existence of negligence. On the part of the defendant it is shown that the best approved spark-arresters were used and attached to the smoke stack ; and the evidence shows that the devices or apparatus employed by tho company for the suppression of fires and the avoidance of danger from that element were of an efficient character, were of the quality used by other railroads, and adapted to the purposes for which they were intended. The evidence of the fitness and adaptation of the apparatus for the preventing of fire is uncontradicted; and there is no specific testimony, as we recollect in the case, to show that there was any want of care, or vigilance, or skill in the management of the locomotive. These are the positions of fact presented hy the evidence, and the question is one which it is the duty of the court to determine whether under all the circumstances the case is of such a character as ought to go to the jury; in other words, whether or not it is the duty of the court to give or withhold the evidence of negligence from the consideration of the jury. Some points have been presented by the counsel for the plaintiff, the answers to which will indicate the opinion of the court upon this question.</p> <p>“ 1. We have been asked to instruct you that if the jury believe that the cause of the fire in this case was sparks and pieces of ignited coals thrown out of the chimneys of the defendant’s locomotives, and that the reason that the engines threw the sparks and coals out at this point — Jennings’s farm — was the heavy grade of the road and the necessity of working the engines to their utmost capacity, then the defendant was guilty of negligence in overloading the engines, or not putting on more of them so as to prevent fires — then the plaintiff is entitled to recover damages for the injury done him.</p> <p>“ In this point the plaintiff rests his case upon the assumption that the defendant was guilty of negligence in overloading the engine, or in not putting on more engines before passing his fields where there was a heavy grade. We think there is not sufficient evidence in the case to satisfy the' jury that the capacity of the engines was too severely tried. There is no direct evidence that we recall as to.the length of the trains or their weight. There is no direct evidence tending to show that the trains were moving at an unusual rate of speed, or of want of skill in the management of the engines That they were subjected to a test too severe is rather an inference sought to be drawn from the fact that the hay lying on the ground and the grass were set on fire. The evidence, however, is uncontradicted that the best spark-arresters were attached to the engines; and when this is the case, and there is no sufficient evidence of a want of care and vigilance in the running of the engines, and therefore no sufficient evidence of negligence beyond the mere fact that the hay and . grass were burned, the loss suffered by the plaintiff is a misfortune for which the defendant is not responsible. It is not easy to tell -when the evidence of negligence is such as to justify the court in submitting it to the jury. In Pennsylvania Railroad Company v. Hope, 30 P. F. Smith 373, a recovery was allowed; but in that case the company had piled up dry grass with other rubbish on its roadway from which the fire was communicated to the plaintiff’s fields. In Philadelphia & Reading Railroad Company v. Hendrickson, Id. 182, the thing burned, subject of complaint, was a barn, and there was evidence that the train was running at a very high rate of speed, and that an extraordinary quantity of sparks were thrown from the engine— a perfect streak of fire, as one of the witnesses expressed it, and this extended all along the line of the road for a distance of three miles, burning the grass and the fences all along, as well as the plaintiff’s barn. It was said in that case, which was affirmed by the Supreme Court, that the burning of grass along the line of a railroad in the ordinary use of the road is not unusual, and is not of itself an act of negligence; nor does it establish by inference negligence in respect to the burning of the barn. In Philadelphia & Reading Railroad Co. v. Yerger, 23 P. F. Smith 121, houses were burned at a distance of sixty feet from the line of the road. There was evidence that sparks were thrown from the engine even beyond the houses, and that it was making extraordinary noise indicating distress in consequence of the heaviness of the load, and that the wheels went around without moving. But the coxxrt below was reversed for not granting a nonsuit. The engine in this case being provided with the best approved spark-arresters, it was held by the Supreme Court error to submit the question to the jury on the mere surmise that there may have been negligence on. the part of the defendant. There must he evidence upon which the jury may reasonably and properly conclude that there was negligence, and when the evidence is not of sxxch character it is the duty of the court to withdraw it. We have some hesitation a.s to what we should do in the present instance, but guided by the spirit and leaning of these decisions we are inclined to think that the evidence of negligence is insufficient. For this reason, and in view of the cause of action as sot forth in the plaintiff’s declaration, this point is refused.</p> <p>“ 2. That if the jury believe that the spark-arresters on the defendant’s engines on the 4th and 9th days of July 1874 were broken, .worn out or burned out, and thus failed to arrest the sparks, then they were guilty of negligence, and the plaintiff is entitled to recover his damages.</p> <p>“ Aside from the fact that the grass and hay were burned by the sparks there is no sufficient evidence that the spark-arresters were inadequate or in bad condition. So far as we have evidence on the subject, it is the other way. If there was sufficient evidence of the fact stated in the point, and the fact alleged was believed, notwithstanding the countervailing proof, it would entitle the plaintiff to recover compensation for the injury sustained.</p> <p>“We have been asked on the part of the defendant substantially to instruct you that the evidence in the case is insufficient. That point, in our answer to the points on the part of the plaintiff, yoxt will obsei’vo, is substantially affirmed. We are of the opinion on the whole that the evidence in the case is not of such a character as would properly, and should properly and reasonably satisfy the jury of the existence of negligence; and for the reasons stated in the answers to the points and in the general charge we instruct you that your verdict should be in favor of the defendant.”</p> <p>The plaintiff took this writ, and alleged that the court erred in this action.</p>

<p>1. It is a rule of law that if reasonable precautions are taken in providing locomotives with those appliances which are deemed best for the prevention of damage by fire, the company or persons using them cannot be made liable though they fire every rod of the country through which they run.</p> <p>2. In an action against a railroad company for damages by fire, alleged to have been caused by sparks emitted from a locomotive, the company gave evidence that the locomotive was furnished with an approved spark-arrester. In rebuttal the court allowed the plaintiff to give evidence that numerous fires had been ignited by sparks from this same engine. Held, that the question of negligence was properly submitted to the j ury.</p> <p>3. It is not contributory negligence for the owner of land along the line of a railroad to allow the accumulation of leaves, brushwood and other rubbish on his property. Such an owner of property must run the risk of fires necessarily following the lawful and proper use of the railroad company’s locomotives; but that he must guard in any way or by any means against the improper or unlawful use of the locomotives is a proposition that cannot be sustained.</p>

<p>1. The question of the validity of a mechanic’s lien is to he taken advantage of by demurrer or motion to strike off the lien. It is not put in issue by the pleas of non assumpsit, payment with leave, &c., and advantage cannot be thus taken of its invalidity in the trial of issues of fact before a jury.</p> <p>2. A bill of particulars was made part of a mechanic’s claim consisting of forty-six items, commencing with “ January I7th 1876,” and continuing regularly in chronological order, the last item being under date “October 27th,” without specifying the year. Held, that this was a sufficient compliance with the law.</p>

<p>1. The Statute of Limitations does not begin to run until a right of action is complete. A cause of action does not exist, unless there be a person in existence capable of suing or being sued.</p> <p>2. The rule is, that the statute begins to run at the date suit may be commenced, and once begun it is not stayed by a party’s death. If no action accrued prior to the death, none accrues until grant of administration and the statute runs from such grant.</p> <p>3. In an action on a simple contract, it is not required that the amount of the debt should be stated in the praecipe or the summons. The verdict may be for a sum not exceeding that named in the declaration.</p> <p>• 4. In such an action, any writing that contains evidence pertinent to the issue, whether will_ or mortgage, is admissible, although not set forth in the narr., as the claim is not grounded on a writing.</p>

<p>1. A sub-contractor brought an action against the contractor who employed him, for certain expenditures which he alleged his employer had authorized him to make beyond the contract price. He testified as to the amount paid his laborers, and also the amount of his store and board bills. He then offered the pay-roll on which these items appeared. Some of the entries were made by the plaintiff and some by his assistant. The roll, under objection, was admitted in evidence. Held, that while the roll was not competent as a book of original entries, and did not charge the defendant and was res inter alios acta, it was sufficient to entitle it to go to the jury as corroborative of the plaintiff’s testimony and his statement of the amount expended.</p> <p>2. The defendant claimed that there was only a certain amount due plaintiff when he completed his contract, which the plaintiff denied and claimed a larger sum. Held, that it was competent for the defendant to show, that in a prior judicial proceeding the plaintiff had only claimed the amount named by defendant, and that he had called witnesses to prove it.</p> <p>3. Per Paxson, J. — “ It would greatly abridge the labors of this court in many cases, if assignments of error to the exclusion or admission of evidence would set forth the name of the witness. When the testimony is voluminous, it is no small labor sometimes to find the proper reference in the bill of exceptions.”</p>

<p>]. "Whore under the provisions of the Act April 20th 1846, a purchaser, at an Orphans’ Court sale, seeks to apply as a part of the purchase-money the amount of a judgment originally entered in another county, and which was transferred to the county where the sale was made by an exemplified copy, and it is alleged that the consideration for such judgment has failed, the issue to determine that fact can only be tried in the county having jurisdiction of the sale.</p> <p>2. Where in a feigned issue no exception was taken, nor error assigned to the jurisdiction of the court which tried the issue, the fact that the Supreme Court affirmed the judgment in said issue does not imply that it thereby affirmed the jurisdiction of the court, and does not, for said reason, estop an application in the county that had jurisdiction.</p>

<p>A widow contracted with, a lessor for the rent of a house for a certain term. Before the expiration of that term she married, but remained living in the house, having frequent visits from her husband who, however, lived at another place in the same village. The lessor brought an action against the husband for use and occupation, and the court below held that he was liable on account of his legal obligation to support and maintain his wife : Held, that this was error; that the husband was a stranger to the contract and was not liable.</p>

<p>Appeal from the Orphans’ Court of Berks county : Of January Term 1880, No. 168.</p> <p>Appeal of John H. Clark, administrator of William Clark, deceased, from the decree of the court in the matter of the auditor’s report on the account of said administrator, distributing to Hiram Y. Kaufman, Esq., attorney-at-law, a certain sum for attorney’s fees in conducting certain proceedings in partition. Mr. Kaufman filed an exception to the administrator’s account, on the ground that the administrator refused to pay him $40 for professional services rendered in certain partition proceedings. On filing this exception, the court appointed an auditor “to audit, restate, resettle the said account, and make distribution of the balance.” Before the auditor Mr. Kaufman made his claim for his fees under the Act of April 27th 1864. The counsel for the administrator objected to the auditor allowing this claim, first, because the administrator had no right to pay the same before said fees had been taxed by the court, and before he had an order from court to pay the same; and second, because Catharine A. Esterly, the petitioner, to whom said Act of Assembly makes the allowance, objected to the administrator paying the same.</p> <p>From the facts, as found by the auditor, it appeared that the decedent, William Clark, died April 23d 1877, seised of two tracts of land in Berks county, and that he left a widow and six children. That nearly a year after the death of decedent, Catharine A. Esterly, one of the daughters of the decedent, employed Kaufman, the exceptant, to draw up a petition to have an inquisition and partition according to law, of said real estate among the heirs, which petition was presented April 1st 1878, by the ex-ceptant. The same day the court awarded an inquest to make partition of the property set forth in said petition, returnable May 25th 1878, at eleven o’clock A. M. The jury met, according to law, on April 30th 1878, and on May 25th 1878, returned that they had valued and appraised purpart Ho. 1, at $2800, and purpart Ho. 2, at $328.91. A rule was granted on all the heirs and legal representatives of said William Clark, deceased, to appear at an Orphans’ Court held at Reading, on June 22d 1878, at eleven o’clock a. M., to accept or refuse the said property, or show cause why the same should not be sold. On said day all the heirs appeared in open court, and were severally called before court by the exceptant, whereupon all the heirs refused to accept the properties or real estate, and desired that the same might be sold, and an order of sale was accordingly granted to John H. Clark, the administrator and accountant. That on August 10th 1878, the said real estate was sold by the accountant by virtue of said order. That the proceedings in partition were conducted by the exceptant, until said proceedings were fully determined and ended, and an order of sale issued to the administrator. And for these services the exceptant asked to be paid out of the estate, which the accountant refused.</p> <p>The auditor allowed the exceptant his fees, and also charged the accountant with the costs of the audit. Exceptions were filed by the administrator, which tho court, Sassaman, J., dismissed, and confirmed the report. This appeal was then taken, the administrator alleging that the court erred in allowing the fees to except-ant, and in not deciding that ho should pay the costs of the audit.</p>

<p>Error to the Court of Common Pleas, of Berks county: Of January Term 1880, No. 100.</p> <p>Assumpsit by E. A. W. Hunter and W. E. Drennen, trading as Hunter & Drennen, against John Henninger, on a promissory note drawn by defendant to his own order, and endorsed by him. The note was in the usual form.</p> <p>At the trial, before Hagenman, P. J., Drennen, one of the plaintiffs, testified that he bought the note, before maturity, for sixty-six cents on the dollar, from James M. Hunter, who was a brother of his partner, but had no connection with the firm ; that the firm were dealers in flour ; did not deal in grindstones, but did in notes. Did not know Henninger when the note was bought, or where he lived, and at that time knew nothing of his circumstances. The firm furnished the money to discount the note ; knew the note was taken for machinery; knew of no fraud in the taking of the note, nor that there was any defence. »</p> <p>The defendant offered to show that the note was obtained from him by Hunter, Son & Co., without any consideration, through fraud and misrepresentation ; that he gave the note in suit for certain patented articles, called the Eureka Grinder, including the exclusive right and privilege of vending the same within the township of Bethel, in which the defendant lives, which said patent articles were represented to be of great practical utility and value, but which proved to he valuless and of no account whatever. The note as aforesaid was given upon the express condition and with the positive understanding that the defendant was to pay it off as he sold machines, and that when he sold a machine he was to send the money to the holders, Hunter, Son & Co., and they were to credit the amount upon the back of the note; and if he (the defendant) should not succeed in disposing of sufficient to pay the note, it was to be given up to him with whatever credits were entered upon it, hut that no suit should then be brought upon it, nor should it ever be placed in the hands of any hank or third parties.</p> <p>Plaintiffs objected, hut the court admitted the offer.</p> <p>The fourth point of the plaintiff and the answer of the court thereto were as follows :</p> <p>4. The plaintiffs in this case have shown by uncontradicted testimony that they are bona fide purchasers for value, and before recovery can be defeated, the defendant must prove by clear evidence that the plaintiffs had notice of fraud' (if there was fraud), and of such notice there is no evidence.</p> <p>Ans. “ It is for the jury to say whether the evidence shows that the plaintiffs are bona fide purchasers for value. If so, they are entitled to recover. If the plaintiffs are holders for value, before a recovery can be defeated on the ground of fraud, the defendant must show by clear evidence that the plaintiffs had knowledge of the fraud before they purchased the note. The court cannot say there is no evidence of such notice in the case.”</p> <p>In the general charge, the court, inter alia, said :</p> <p>“ Erom this evidence it is for the jury to determine whether or not Drennen had notice of the fraud practiced on Henninger at the time he purchased this note from James M. Hunter; if he had, plaintiffs cannot recover.”</p> <p>Verdict for defendant, when plaintiffs took this writ, and alleged, inter alia, that the court erred in admitting the above offer of evidence, in the answer to the point, and in the portions of the charge noted.</p>

188. Assumpsit by Alfred P. Steckel and others, partners, trading as the Columbia Slate Company, against the First National Bank of Allentown, to recover a balance of money deposited with said bank. The material facts will be found stated in the opinion of this court. At the trial before Watson, P. J., the plaintiffs presented the following points, to which are appended the answers of the court. 2.

14. Appeal of Richard H. Russell, executor of the will of Harriet A. Hough, deceased, from the decree of the court refusing to open a judgment. The case arose on a confessed judgment, entered on a warrant of attorney, contained in a note for $3000, dated October 16th 1878, payable in thirty days, executed by Harriet A. Hough, the defendant below, to order of James S. Mann, plaintiff below. Judgment was entered the same day, but no execution was ever issued.

<p>1. Where evidence is offered to prove matters growing out of the dealings of the parties, and which was part of the res gestee, it is admissible under the plea of non assumpsit without notice of special matter.</p> <p>2. A. was authorized by B. to sell mowers and reapers at a certain point. Sales at that point proving unsuccessful, B. directed A. to reship the machines to other points. In an action on a book-account by B. against A., to recover a balance due, A., under the plea of non-assumpsit, and without having given notice of special matter, offered to prove that all machines not accounted for had been reshipped under orders from B., and that a proper statement of the account would show a balance in favor of A. : Held, reversing the court below, that the evidence was admissible.</p>

<p>The cashier is the executive officer of a bank, and authorized by the very nature of his office to receive money on deposit, and after receiving it, no trick nor fraud on his part, by means of which the money was passed over to a firm in which the bank officers were largely interested, can absolve the bank from its liability.</p>

231. Assumpsit by the First National Bank of Allentown against William Resh. At the trial, before Albright, P. J., the plaintiff put in evidence a note drawn by the defendant for $500, to the order of himself and endorsed by him in blank. The defendant then made the following offers : 1.

<p>1. By the Act of April 14th 1853, applying to the “ Reading Water Company,” it was provided that where the corporation permanently appropriated to its use such springs or streams as it might select for water purposes, compensation should be made to the owners for damages sustained. Held, that this act applied not only to the owners of natural channels, but to those who owned artificial watercourses which had been used from time immemorial.</p> <p>2. In 1769 L. owned certain lands, through which flowed a stream and upon which land was an existing ditch which the stream fed with water for the purpose of irrigating the land. He divided the lands and devised them, allowing to each portion the use of tile water from the ditch at stated intervals. A. derived title through L. to one of these portions. In 1874 the city of Reading, which is situated on one of the tributaries of the stream from which the. ditch is supplied, diverted the water from this tributary for the use of the city. In an action by A. for damages, Held, that the action would lie under the Act of April 14th 1853. Held, further, that section 8, article 16, of the new constitution protects such an owner, as that section provides for the making of compensation not only for the taking of private property for public use, as was the case theretofore, but also for its injury or destruction.</p> <p>3. The doctrine that an action for consequential damages against a corporation possessed of the right of eminent domain cannot be sustained is reversed by the new constitution, which has provided a different rule.</p>

<p>Appeal from the Court of Common Pleas, of Berhs county: Of January Term 1880, No. 241.</p> <p>Appeal of Reuben M. Fox and Benneville Fenstenmacher, two of the depositors in the Kutztown Savings Bank, from the decree of the court confirming the report of the auditor to distribute the assets of said bank in the hands of its assignee for the benefit of creditors.</p> <p>The facts as found by the auditor, F. R. Schell, Esq., were as follows:</p> <p>“ The Kutztown Savings Bank, located in the borough of Kutztown, Berks county, Pennsylvania, was incorporated by the General Assembly of the Commonwealth, March 12th 1869, Pamph. L. 1869, p. 865. The business of the corporation as specified in the charter was, to receive upon deposit, from time to time, such sums of money, not less than ten cents, as may be offered by tradesmen, clerks, mechanics, laborers, servants, minors, married women and others. For the security of these depositors it was made by sect. 6th of this charter, the duty of the first trustees of the bank, previous to the grant of the letters patent, ‘ to raise and form a capital of not less than §5 nor more than §50,000, in shares of §20 each,’ which capital was at all times to be liable to the depositors. The capital stock of this bank was divided into twelve thousand shares of the par value of §20 per share, payable in four'equal instalments.</p> <p>“ On the 2-0th of March 1869, the commissioners named in the charter met for the first time, the subscription list was opened and all but ten shares of the capital stock was subscribed. On the same day a permanent organization was effected by the election of a president, vice-president, secretary, cashier and a board of trustees.</p> <p>“ On April 13th 1869, the first instalment due upon each share of stock subscribed was called in by resolution of the board of directors, and on the same day the bank was opened for business. The bank then continued business, although in the meantime many and serious losses had been sustained, with more or less embarrassment, until the year 1873, when to meet drafts upon deposits, certain officers of the bank gave their individual notes as an accommodation, which notes were discounted and the proceeds placed to the credit of the Kutztown Savings Bank. In the minute book of this bank on page 45, is found the following entry, to wit : 'Approved December 6th 1873, by the board. On motion resolved, that the notes signed by L. Wesley for §2500, R. J. Knerr for §1500, M. S. Richards for §100, Daniel Clader for §3300, John H. Fogel for §2200, are to be paid by the Kutztown Savings Bank. Adopted December 6th 1873. Milton S. Richards, secretary.’ Also in the same book on page 56, is found the following entry, to wit: ‘Kutztown, Pennsylvania, November 10th 1876. On motion resolved, that the notes amounting to $7000, that have been discounted by the Union National Bank of the city of New York, on October 31st 1876, last, signed by Daniel Zimmerman, president, and attested by W. C. Dietrich, cashier, and endorsed by R. J. Knerr, John H. Fogel, Daniel Dietrich and A. J. Fogel, be and (are) hereby ratified by the board of trustees, and to be paid by the Kutztown Savings Bank, when due. Said notes of $3000 and $4000 ($7000) were credited to the National Bank of Kutztown, by the Union National Bank of the city of New York, less the discount. On motion, adjourned. A. J. Fogel, secretary.’</p> <p>“On November 20th 1876, the cashier of this bank committed suicide. It was then discovered, that the institution was hopelessly insolvent, and it was determined to wind.it up as speedily as possible. On the 15th day of December 1876, at a meeting of the board of directors, a resolution was offered and unanimously adopted, “ That the president of the board of directors be instructed to execute and deliver, under the corporate seal of said bank, an assignment of all its effects and property, claims and demands, to James H. Marx, Esq., in trust for the benefit of the creditors of said corporation.’ At a meeting of the stockholders of the bank held subsequently the same day, a resolution was offered and unanimously adopted, ‘ That the president of the board of directors be directed to execute and deliver, under the corporate seal of said bank, an assignment of all its effects and property, claims and demands, to James H. Marx, Esq., in trust for the benefit of the creditors of said corporation.’ In pursuance of these resolutions, an assignment ih due form of law was made on the 19th of December 1876, by the Kutztown Savings Bank to said James II. Marx, in trust for the benefit of its creditors. At the date of the assignment, although the four instalments due upon the capital stock had been regularly called in, but a little more than the amount of the first instalment of $5 per share had been paid. This amount was exhausted soon after the inception of the institution.</p> <p>Upon these facts the auditor reported, inter alia, as follows':—</p> <p>“We now come to the question of distribution. It was claimed before the auditor that the depositors were entitled to the entire fund for distribution, to the exclusion of all other creditors; because,</p> <p>“ 1. The charter of the Kutztown Savings Bank was subject to the provisions of the G-eneral Banking Act of the state, approved April 16th 1850, Pamph. L. 1850, 447, in which act certain preferences are created by law.</p> <p>“2. That even if the charter of this bank were not subject to the provisions of that act, yet the depositors were entitled to a preferenoe in the distribution of the fund, by virtue of the sixth section of tho charter of the bank.</p> <p>“ A careful examination of the charter of the Kutztown Savings Bank will show that the first point made in behalf of the depositors cannot' be sustained. To arrive at a satisfactory conclusion on this point, the general banking laws of the state, as well as tho charters of many savings banks, have been examined with great care by the auditor. The 89th section of the Act of 16th April 1850, which specifies the order in which the assignees shall pay the debts and liabilities out of the assets of a bank in case of an assignment, is a transcript of the 9th section of the Act of April 27th 1844, entitled ‘An act to extend the charter of the Commercial Bank of Pennsylvania,’ Pamph. L. 1844, pl. 420. Both the Acts of 1844 and 1850 contemplated a bank of issue or circulation, as contradistinguished from a bank of discount or deposit. Every section of the Act of 1850 shows clearly that a bank of issue was in the legislative mind at tho time of the adoption of the act. So we see that the main purpose of the 9th section of the Act of 1844 and of the 89th section of the Act of 1850 was to secure the noteholders of any bank of issue against loss, for it has always been the policy of the law to protect this class of creditors. Their interests have always been zealously guarded by the legislature. It is also clear that tho words, ‘every banking corporation,’ and ‘ the said bank,’ as used in the Act of 1850, refer simply to a bank of issue. Now observe the peculiar language of the second proviso of the first section of the Kutztown Savings Bank charter. It reads, ‘ That nothing in this act contained shall be so construed as to confer upon the said corporation banking privileges.’ Such a corporation as this — a corporation clothed simply with the power of receiving deposits, but by the express terms of its charter denied banking privileges — cannot, in any just sense, be said to be within the proviso of the Act of 1850. ‘ It may well be doubted whether raising money on deposit is exclusively a banking privilege,’ said Judge Shakswood, in Building Association v. Seemiller, 11 Casey 227 n. Attention may here be called to some of the points in which the charter differs radically from the Act of 1850. In the latter, the par value of the shares is fixed at $50; in the charter at $20 per share ; in the latter letters patent are to issue after acceptance filed; the charter does not require this to be done; by the latter all charters expire in fifteen years from date; the charter is not to expire until twenty years after its enactment; by the act real estate may be owned to an amount not exceeding the whole capital stock; by the charter only such as is necessary for the business or such as may be necessary to secure debts can be held ; by the act, thirteen directors are to be chosen annually; the charter provides for nine trustees who hold their offices until death, resignation or removal; by the act elections are provided for annually ; by the charter only when vacancies occur; by the act dividends are to be made twice a year; by the charter when the trustees ‘ deem it properby the act bills of credit are to be issued; by the charter such bills aré prohibited ; by the act demand must be made in gold and silver and payment refused; by the charter only $25 can be demanded on any one day unless written notice be given ten judicial days before ; by the act the stockholders are individually liable to pay certain creditors ; by the charter there is no individual liability imposed; by the act the-officers are to report to the auditor-general ; by the charter the trustees report to the legislature; by the act the directors give no security; by the charter the trustees are required to give it. Again, if the Act of 1850 was meant to apply to a corporation of this kind, then the Act of April 22d 1854 sect. 4, Pamph. L. 468, which declared that ' all general laws relative to cashiers of banks shall be deemed and held applicable to the cashiers or treasurers of savings institutions,’ was unnecessary and absurd. Equally useless also then was the first section of the Act of 1856, Pamph. L. 468, extending the third section of the Act of April 16th 1850, ‘ to all incorporated banking, saving fund, trust and insurance companies.’ Reference may also be made here to the charter of the ' Coopersburg Savings Institution,’ Pamph. L. 1867, pl. 1194, of which the charter of the Kutztown Savings Bank granted two years subsequently is almost a literal transcript. An additional, though wholly immaterial section (the tenth) so far as this question goes, was added to the charter of the Kutztown Savings Bank. With this slight difference the two charters are precisely alike, with the exception of the second proviso in- the first section of the Kutztown Savings Bank charter. That proviso, which declares that nothing contained in the charter ' shall be so construed as to confer upon the said corporation banking privileges,’ does not appear in the charter of the ' Coopersburg Savings Institution.’ The insertion, therefore, of that proviso in the charter of the Kutztown Savings Bank shows clearly that it was the intention of the legislature to incorporate an institution somewhat exceptional in its character. Again, section eighth of our charter says: ' The said corporation shall be subject to the supervision and control of the Court of Common Pleas of Berks county and the Supreme Court of Pennsylvania, according to the provisions of the Constitution of this Commonwealth conferring equity jurisdiction upon the said courts.’ It will be observed that this section is silent as to the Act of 1850 and all other general laws relating to banks. Not so, however, with the charters of some other banks which have been examined. Thus the Farmers’ and Mechanics’ Bank of Shippensburg, was incorporated as a bank of discount and deposit by the Act of April 11th 1862, Pamph. L. 1863, p. 661. In section eighth of that charter it is provided, ' that the said bank shall be subject to the provisions and restrictions of the several acts regulating banks as far as they are applicable thereto.’ The construction of this section of that charter came before the Supreme Court in Means’s Appeal, 4 Norris 75. In that case Mr. Justice Mercur, after stating that the Act of 15th April 1850, prescribes a general system for the creation, government and liquidation of banks, says óf the eighth section just cited: ‘ Thus it appears the special act did not profess to furnish by itself a complete system for the bank thereby created. It provided for the organization, but when established it declared the corporation subject to previous legislation relating to banks. This special act was thus blended with the general acts. They became a part of its charter. They are in pari materia with the special act.’ May we not argue from this case that a similar provision to the eighth section should have been inserted in our charter to make it subject to the General Act of 1850 ?</p> <p>“ The second point advanced by the depositors may next be considered. As stated before, at the date of the assignment, an amount exceeding $5000 had been paid in on account of the stock subscribed. Since the assignment the assignee has received from stock subscriptions (exclusive of the Knerr instalments, paid by certificates on deposit), the sum of $1152. From the other assets of the bank, such as notes, he has received some $4000, which with the Knerr certificate excluded, would make in all some $5200. After deducting all expenses, including the cost of holding the audit, a balance of $4000.38 remains in the hands of the assignee for distribution among creditors who shall be found to be legally entitled to the same. This entire balance was claimed by the depositors, to the exclusion of all other creditors, by virtue of the sixth section of the charter of this bank. Objection was made to such claim by other creditors, who contended that the fund should be distributed pro rata among all the creditors. And that, if this last point were considered unsound, the most the auditor could do would be to report two schedules of distribution, to wit: the one giving the $1152 (less share of costs) to the depositors only, and the other distributing the balance pro rata among all the creditors. The question thus raised may be examined by discussing</p> <p>“ First. The deed of assignment.</p> <p>“ Second. The charter of the bank.</p> <p>“ 1. The deed of assignment consists of two principal points: A transfer to the assignee which vests in him the property, and an express trust which directs how to dispose of it: Burrell on Assignments 156, sect. 127. The clause in the deed defining the trust is as follows : ‘ In trust, however, and to the intent and purpose that the said James H. Marx shall and do, as soon as convenient sell and dispose of the goods and chattels of it, the Kutztown Savings Bank, and collect and recover all the outstanding claims and debts, instalments and assessments to it, the said Kutztown Savings Bank due, and with the moneys arising therefrom after deducting the reasonable costs and charges of him, the said James H. Marx, shall and do pay the creditors of the Kutztown Savings Bank their respective just demands in full; if there shall be sufficient the whole, and if there shall not be sufficient assets to satisfy the whole of the just demands of the creditors in full, then to pay the same according to the law in such case made and provided.’ This assignment divests the bank of its entire interest and estate in the property assigned, and at once creates the relation of trustee and cestui que trustent between the assignee and the creditors. In this state an assignment duly recorded is regarded as a transfer by law of the property assigned. The Act of 1836 gives to the creditors the right to have the trust expressed in the deed executed for their benefit. Every part of the assignment must be considered in construing it, and the intent of the parties as found expressed in its terms must be carried out by the courts, unless such intent is inconsistent with recognised rules of law: Darling v. Rogers, 22 Wend. 483-488.</p> <p>“ The deed of assignment contains no clause giving a preference to any particular creditor or class of creditors. And had such a clause been inserted it would have been a nullity, for the Act of 17th April 1843, Pamph. L. 273, declares that ‘all assignments of property in trust hereafter made to prefer one or more creditors shall be held and construed to enure to the benefit of all the creditors in proportion to their respective demands.’ Under this act, which virtually becomes part of every assignment, it has been held that the deed containing preferences is not void but is construed according to the provisions of the act: Law v. Mills, 6 Harris 185; Wiener v. Davis, Id. 331. Did the trustees, then, of this bank exceed their powers in making this deed of assignment, or did they comply strictly with the law in declaring this trust ? A citation of a few authorities will show clearly that they acted within the scope of the power vested in them. In Burton’s Appeal, 7 P. F. Smith 218, it is said: ‘ The right of alienation is an incident of ownership and belongs to a corporation as well as to an individual when no restraint is imposed in the charter. This right is not restrained by any state policy. On the other hand, free and unrestrained commerce in property, real and personal, has always been regarded as a favorite doctrine.’ Again, in Ardesco Oil Co. v. North American Oil and Mining Co., 16 P. F. Smith 375, Judge Shakswood says: ‘ Corporations, unless expressly restrained by the act which establishes them or some other Act of Assembly, have and always have had an unlimited power over their respective properties, and may alienate and dispose of the same as fully as any individual may do in respect to his own property. Hence an insolvent corporation may make a general assignment for the benefit of its creditors, and this power may be exercised by the directors unless special provision to the contrary is made in the charter.’ A corporation like an individual has power to assign its effects in trust to pay its debts. This is a common-law right: Dana v. United States Bank, 5 W. & S. 223. The trustees of the Kutztown Savings Bank have exercised a common-law right in alienating the property of the corporation in trust for all its creditors without preference. It has exercised that right in strict compliance with the Act of 17th April 1843. There is no other act bearing on the construction to be given to deeds of assignment.</p> <p>“No act can be found providing that deeds of general assignment shall be construed ‘ to enure to the benefit ’ of any particular class of creditors of a corporation such as this. This deed of assignment is, therefore, good and valid, and its terms must be observed in distributing the fund in the hands of the assignee, unless some limitation or restriction upon the power of alienation is contained in the charter. This brings us to the second point, the consideration of the charter itself.</p> <p>“ 2. Does the charter of the Kutztown Savings Bank impose any limitation or restriction upon the right of the trustees to alienate its property in trust for the benefit of all its creditors ? Does that charter anywhere expressly declare that in the event of a voluntary assignment the depositors shall be preferred in the distribution of the assets ? The section of the charter upon which the claim of the depositors was based is the 6th section, which reads as follows: ‘ That for the security of the depositors of the said institution, it shall be the duty of the persons named in the 1st section, and such others as may become members of the institution previous to the granting letters of incorporation, to raise and form a capital of not less than $5 nor more than $50,000, in shares of $20 each, which capital shall at all times bo Hable to the depositors for the amount of their deposit and the interest accruing thereon, the shares to be transferable on the books of the institution in such manner as may be designated by the bylaws of the institution.’ There is nothing in that section expressly imposing any limitation upon the right of the trustees to alienate the corporate property in trust for the benefit of all the creditors. Neither is there anything which expressly declares that in the event of such alienation in trust depositors shall be first paid to tbo exclusion of other creditors. It is true the soGtion says that this capital shall be raised for the security of the depositors and shall at all times be liable to them. It does not say, however, that it shall be liable to no other creditors. It is at best an additional but not exclusive security for depositors. Preferences are not favored in the case of voluntary assignments, and any one claiming such preference must show clearly that he falls within some exception to the general rule. In this case the claim of the depositors rests solely upon an implication.</p> <p>“ That is not sufficient, for where a statute confers exclusive privileges upon any class of persons, it is in derogation of common right, and should receive a strict construction. In the light of a strict construction, the claim of the depositors could not stand for a single moment. Had it been the intention of the legislature to place this class of creditors before all others, some such provision as that found in the 39th section of the Act of 1850 would have been inserted in this charter, for it cannot be doubted that in the legislative mind an express provision was required to effect that result. This is shown by the 9th section of the Act of 1850. The law-making powers in granting this charter were presumed to know that it did not come within the purview of the Act of 16th April 1850. They were also presumed to be familiar with all general laws relating to voluntary assignments. With such knowledge upon their part, the absence from this charter of a provision which had been previously inserted in all general laws creating preferences in favor of depositors, is a fact of some significance.</p> <p>“Again, it cannot be urged that this assignment was inequitable. It has been well said by Chief Justice Buchanan in the case of State of Maryland v. Bank of Maryland, 6 Gill & Johns. 216, ‘Equality is equity; and when a debtor makes a transfer of his property for the purpose of equal distribution among his creditors, he does an honest act and discharges a moral duty which none can reasonably complain of.’ ”</p> <p>The auditor then made distribution among all the creditors pro rata.</p> <p>Exceptions were filed to this report, which the court dismissed in a brief opinion by Sassaman, A. L. J., adopting the reasons of the auditor.</p> <p>• From this decree this appeal was taken, the appellants alleging that the court erred in not distributing the entire fund to the depositors of the bank, to the exclusion of the other creditors who are not depositors, and in not distributing to the depositors exclusively that,portion of the fund raised from‘sales of the stock of the bank.</p>

<p>Error to the Court of Quarter Sessions of Lehigh county: Of January Term 1880, No. 233. ,</p> <p>Indictment of Frederick P. Krause for larceny as bailee.</p> <p>The facts will be found stated in the opinion of this court.</p> <p>The first point of defendant, with the answer of the court, Albright, P. J., were as follows:</p> <p>1. There can be no conviction in this case because the defendant is no bailee of the property in controversy within the meaning of section 108 of the Criminal Code of March 31st 1860, and upon which the count in the bill of indictment upon which he is being tried is found.</p> <p>Ans. “ Refused. Whether defendant was a bailee is one of the questions which must be determined by the jury. If you find that defendant was no bailee, of course there can be n'o conviction.”</p> <p>The verdict was “guilty,” and after judgment thereon the defendant took this writ, and alleged that the court erred in refusing to instruct the jury that under the evidence there could be no conviction of larceny by bailee.</p>

<p>Appeal from the Court of Common Pleas of Berks county: Of January Term 1880, No. 201.</p> <p>Appeal of Charles G. Kline from the decree of the court in the distribution of the proceeds of the sheriff’s sale of the property of John T. Noble.</p> <p>Noble was the owner of two acres and sixty perches of land situate in the village of Lyons, which was laid out in ten building lots, fronting on a street to .be opened and to be called Hunter or Noble street, and so described in the several liens filed. The lots are .30 feet front, and running back 140 feet to an alley to be opened 18 feet wide. On these ten lots ten houses were built, two houses adjoining each other, 16 feet front by 28 feet deep, thus making, as it were, five blocks, each house having a side yard of 14 feet or 28 feet between each block of two houses. Between houses 4 and 5, or blocks 2 and 3 with their side lots, an additional space or piece of ground of 60 feet was left, intended for a street, at right angles to and leading from and into the proposed Hunter or Noble street, as appears by the draft attached to the commissioner’s report. These ten houses, or five blocks, are in one row, were built at one time, and all are fronting on the proposed Hunter or Noble street.</p> <p>A number of mechanics’ liens were filed against said houses for work done and materials furnished, some of which were apportioned on each of the ten houses, others were apportioned on each house of several blocks, and others were apportioned upon blocks. The houses in question were sold at sheriff’s sale some time in February 1877, under a judgment of Charles G. Kline, bearing date the 19th of October 1875.</p> <p>A reference was made to an auditor to report distribution of the fund arising from the sale. Before the auditor Kline contended that the mechanics’ liens of Herzog and others, who had filed apportioned liens against the ten houses, were not properly apportioned on the blocks separated by the 60 feet space, and that these claimants were not therefore entitled to share in the proceeds. The' auditor, B. Frank Dettra, Esq., however, allowed their claims, and the court, Hagenman, P. J., afterwards dismissed the exceptions to his report, and confirmed the same in an opinion, inter alia, saying:</p> <p>“ It is insisted by the exceptants that these liens having been apportioned among the ten houses are not such as fall under the class of apportioned liens, and are therefore defective, and cannot participate in the distribution. The objection consists in the fact that between houses 4 and 5, or blocks 2 and 3, there is a space of ground of 60 feet which was intended for a street. This forms the only ground of objection. That apportioned liens could have been filed against houses 1, 2, 3 and 4, composing blocks 1 and 2, and against houses 5, 6, 7, 8, 9 and 10, composing blocks 3, 4 and 5, cannot be successfully questioned. Is the objection sufficient to invalidate these lions ?</p> <p>“ The commissioner finds in his report that these several houses were erected at one time on one tract of land, forming a legal whole or unit, of which the intervening space is a part and parcel, and the materials were furnished and the work was done upon their joint credit. The evidence fully supports this finding. At the time the tract or piece of land was laid out the 60 feet were intended for a street, but when the buildings were begun, and up to the time when they were finished and liens filed, no street was laid out and opened, and none has been to this day.</p> <p>“ The 4th section of the Act of 30th May 1831 gave to the material-man the right to file an apportioned lien when the materials were furnished for two or more adjoining houses. The Acts of 1836 and of 1850, referred to in a former part of this opinion, in which the right to file apportioned liens is given against two or more buildings owned by the same person, the word adjoining is omitted. The purpose of these acts is manifest. When a contractor is erecting two or more houses under a joint contract, it is impossible for the material-man to specify in his claim filed the particular house or building for which the several items were furnished, especially so in this age of improved machinery, when the lumber and materials generally are taken to the mill and prepared before taken to the buildings. The same reason applies to the mechanic and laboring man. The work is mainly done in the mill and shop. The flooring, frames, doors, shutters, sash, &e., are prepared promiscuously for all the houses; and it is utterly impossible to tell how many days’ work was expended on any particular part that was put into any one of the buildings.</p> <p>“ Numerous supplements have been passed to the Act of 1836, all with the obvious intent of securing to the mechanic and material-man a lien for the work and materials furnished. Two were passed in 1879. The one of 11th June authorizes and requires the court to permit amendments in any stage of the proceedings, conducive to-justice and a fair trial upon the merits, including the changing, adding and striking out the names of claimants, and by adding the names of owners and contractors respectively ; and the one of 28th June extends the provisions of the Act of 1836 for work done and materials furnished for or about the repair, alteration or addition to any house or other building, with other important provisions and extensions, all with the like intent.</p> <p>“ Mechanics’ liens have become an important part of our system of jurisprudence. The Supreme Court has moulded the law from time to time, and has given it such a construction as to perfect the system and carry out the object and intention of the legislature. The Acts of 1836 and 1850, which gave, the right to file an apportioned lien against two or more buildings owned by the same person, were held to include adjoining houses belonging to different owners, when the lien filed was against the same contractor, although not being within the words was considered as being within the spirit and object of the act. So, too, an apportioned claim was held good where two houses belonging to different owners, were erected under a joint contract on opposite sides of a private alley, the use of which belonged to both properties. The contract is the main ground upon which the right to claim is founded. In Taylor v. Montgomery, 8 Harris 443, Montgomery was the owner of a- lot between Broad and Thirteenth streets, in the city of Philadelphia, fronting on Wood street and Bloom alley. Sixteen houses were erected on Wood street in one block, and sixteen on Bloom alley in one block. Taylor filed one lien, and .apportioned his claim against the thirty-two houses. The court below held the lien bad, on the authority of Chambers, v. Yarnall, 3 Harris 268, where the circumstances and situation of the premises-were precisely the same. The Supreme Court reversed the judgment. Judge Lowrie, in ruling the case, says, ‘ The mechanics’ lien laws recognise the filing one lien against several houses, and the apportionment of the amount among them, but they do not define the cases in which such joint lien is proper. In order to obtain such a definition we must resort to the analogy of other cases; and the case of joint contracts requiring joint remedies is an obvious one.’ Hero all the buildings were put up by the owner at one time and on one lot, and the materials were furnished for them all jointly, and it was entirely proper to make them the subject of one apportioned lien. The case of Fitzpatrick v. Allen, 30 P. F. Smith 294, is a further step in advance. Leslie being the owner of the whole ground, from the south side of Christian street to the north side of Montrose street, between Twenty-third and Twenty-fourth streets, in the city of Philadelphia, conveyed it by two deeds — one describing a lot on Montrose street running to a three-feet ten-inch wide alley, leading from Twenty-third to Twenty-fourth streets, with the free and common use, &c., of said alley ; the other deed for a lot on south side of Christian street running back to the said alley, with the same privileges. Fitzpatrick, the owner of" these two lots, erected ten houses in one block on the south side of Christian street, and ton houses in one block on the north side of Montrose street. Allen did the roofing on the whole twenty houses, under a verbal contract at a certain price per foot, and filed one lien and apportioned his claim among the twenty houses.</p> <p>“ Fitzpatrick said in his examination that he did not own the alley between these two properties. The court below sustained the lien and this judgment was affirmed in the Supremo Court. Chief Justice Agnew, in a Per Curiam opinion, referring to the several Acts of Assembly and a number of decisions in regard to apportioned liens, says : ‘ It is evident from the current of legislation and judicial decisions that the chief criterion, in these casos of apportioned liens, is the contract under which the claim arises, while the characteristic of the adjoinder of the buildings is not so prominent.’ Indeed, its omission both in the Act of 1886 and I860 shows a decided want of attention to it in the legislative mind. Yet we do not hold that this characteristic is absolutely repealed; but under the spirit of legislation and decision we may hold with perfect confidence, that when two blocks of houses built under the same contract aro not divided by a public street or alley, but merely by a private way, the right of which belongs to both blocks, there is not such a severance as will prevent an apportionment of the claim among the several houses.</p> <p>“ On the authority of these cases, and the great reluctance on the part of the court to set aside mechanics’ liens on technical grounds, the liens of Gr. Herzog & Co. should be sustained. The ten houses were erected at one time, on one lot of ground, and the work and materials were furnished for them all jointly. The lot was cut out of a field of farm land with no public roads leading to or from it. Noble street, when opened, was only a private way running in from these houses. The supervisor was not obliged to open and make it, or keep it in repair. Had the sixty feet between houses four and five, been opened, it would be a private way for the common use of the several lot owners to pass from Noble street to the alley, which runs along the rear of these lots. It began at Noble street and ended in the alley. In no way is the objection to these liens,- a parallel case to Goepp v. Gartiser, 11 Casey 132. * * * The exceptions are dismissed and the report is confirmed.”</p> <p>From this decree this appeal was taken.</p>

<p>Error to the Court of Common Pleas of Sucks county: Of July Term 1878, No. 67.</p> <p>Case by Anthony Bock against the Pennsylvania Bailroad Company to recover damages for the death of his son and also for the loss of a horse, killed at the same time, by one of defendant’s trains.</p> <p>At the trial, it was agreed that the action should be tried with the same effect as if the plaintiff’s wife had been a party plaintiff', and that she should be concluded by the verdict.</p> <p>It appeared from the evidence that on the morning of the 81st of May 1875, the plaintiff was hauling manure from a stable in the town of Bristol, Bucks county. His team consisted of a hay wagon, two mules and a horse on the lead. In going to the stable, he had to cross the track of the defendant’s railroad, which at this point runs through a well-built up portion of the town. He had crossed the track along this road driving the two mules, and bad sent his son with the horse by another road which passes under the railroad track, but which at that time was impassable for wagons. The son was a strong and very intelligent lad about seven years old, and who was accustomed to assist his father in various ways. While the plaintiff was loading the manure at the stable, the lad brought the horse up and geared him to the wagon, and when his father was ready to start, he jumped on the horse’s back and the team started off. There was no line attached to the horse, the boy on his back controlling him by the bridle, while the father walked by the side of the near mule, and taking him by the bridle thus directed the movements of the team. There is an incline on either side of the railroad track at the point of the crossing, and at the foot of this, about sixty feet from the track, the plaintiff stopped the team. Erom this point the track is only visible a few feet in a westerly direction, the view being obstructed by the houses, but at about ten to twelve feet from the track the view in the same direction is unobstructed for about four hundred and sixty-eight foot, and from the middle of the track the view is clear for 1500 feet. The crossing is made of planks laid down between the rails and making an even surface. When plaintiff stopped his team, he proceeded alone to the middle of the track, and stood there looking in both directions and listening for about a half minute, and not seeing or hearing a train, he called to the boy to come on, and plaintiff • walked back to his usual place and took the near mule by the bridle.» At the moment when the horse reached the first rail of the track, the plaintiff heard a train approaching. He shouted and jerked the mule back, but the horse had gotten on the track, was struck by the east-bound train, and instantly killed. The boy was thrown on the truck of' the engine in front of the boiler, and died a few hours after the accident from his injuries. There was a conflict of evidence as to the speed of the train. One witness testified that both he and the plaintiff shouted, but that within three seconds from the time the train was in sight the accident occurred. It was alleged on the part of the plaintiff, that the speed of the train was in excess of that allowed by the ordinance of the borough. The evidence as to the rate of speed varied from eight to twenty-five miles an hour. The testimony was equally conflicting as to whether the whistle of the engine was blown or its bell rung.</p> <p>The fifth point of the defendants, with the answer of the court, Watson, P. J., were as follows:</p> <p>5. That the plaintiff being about to drive a team, with two mules and a horse on the lead, across a railroad track with a loaded wagon, where trains were running propelled by steam, having placed his son, seven years of age, on the lead horse, over which he, the father, had no control, was guilty of negligence in placing his son in such a dangerous position, and cannot recover for the loss of the life of his son or his horse, killed by the passing train.</p> <p>Ans. “ This point assumes a fact, the existence or non-existence of which, is a question for your determination, to wit: That the plaintiff placed his son on a horse over which he had no control. This is for you and we cannot assume it. If it were true, it would be strong evidence of negligence. It is for you to find under all the evidence in -the case, whether there was negligence either on the part of the plaintiff or of his son, who was killed, which contributed to the production of the accident. If there was such contributing negligence, the plaintiff cannot recover.”</p> <p>The verdict was in favor of plaintiff for the sum of $2176 for horse and funeral expenses included, and six cents costs.</p> <p>The defendant moved, in arrest of judgment, for the following reasons : 1. The action was brought for damages to the plaintiff and wife, for the loss of their son, and the declaration joined a claim for a large sum, to wit: $500 in and about the taking care of the body of said Anthony Bock, Jr., and in and about his funeral expenses, which claims were not in the same right, and could not be joined in the same suit and averred in the same declaration. 2. The declaration in the action, sets forth as the cause of action, an injury causing death, the result of negligence by the defendant; that the person killed was a minor child of plaintiff, and at the. commencement of the trial, it was agreed, “ that this action shall be tried in the same manner and with the same effect, as if Linda Bock, wife of plaintiff, had been a party plaintiff thereto ; and that the recovery, if any is had, shall include all her demands against the defendant, and that she shall be concluded by the verdict should it be in favor of the defendant,” stating a cause of action in favor of the parents for the loss of the life of si child under the statute; and in the same declaration, a claim for taking care of the body of said child, and in and about his funeral expenses; and a separate count for the loss of a horse caused by the negligence of the defendant, which said funeral expenses and the damages for the loss of the horse, belonged to the said Anthony Bock; and the damages for the injury Causing the death of the child, belonged to the husband and wife jointly, and could not be joined in the same action; and the verdict is for a gross sum for plaintiff for horse and funeral expenses included, which claims cannot be joined. 3. The declaration joins a claim for damages under the statute for an injury causing death, the damages for which belong to two persons, with a cause of action at common law, for the loss of a horse and funeral expenses of a child belonging to one person ; and the verdict is for a gross sum, and is expressly found by the jury to be for “$2176, for horse and funeral expenses included,” without designating the proportions for each, upon which no judgment can be entered. 4. There is a misjoinder of parties and causes of action, and a verdict for a gross sum upon which no judgment can be-entered. 5. There is a judgment for a gross sum for causes of action, which as stated in the declaration, belong to different parties, without designating which part belongs to each, upon which no judgment can be entered.</p> <p>The court overruled the motion in an opinion, saying:</p> <p>. “ It is almost unnecessary to say we can arrest the judgment only for error apparent on the face of the record. Is there such error here ? The wrong complained of in the narr. is negligence resulting in, 1. The killing of the plaintiff’s minor son, whereby he lost his services and was put to expense in taking care of and burying his body ; 2. The killing of his horse. When the jury was about to be empanelled it was agreed by the parties ‘ that this action shall.be tried in the same manner and with the same effect as if Linda Bock, wife of plaintiff, had been a party plaintiff thereto, and that the recovery, if any is had, shall include all her demands against the defendant, and that she shall be concluded by the verdiet should it be in favor of the defendant.’ We do not regard this as making the wife a party to the suit. We look upon it rather as an agreement that the entire damages should be determined and recovered in the suit by the husband, and that in consideration thereof the defendant should not thereafter be molested by any claim by or for the wife. But suppose we consider the agreement as placing her as a party plaintiff on the record? How does this render an error apparent on its face ? The effect would be to j oin her as a plaintiff on every count and upon every statement of ownership or claim. Instead of a separate cause of action in the husband for separate injuries to him, we should have a statement of a joint cause of action for injury to joint property in the horse, joint expenses in the burial of the son, and joint loss by reason of his death. The declaration would still be a consistent whole. There would be nothing there to show the several items if the demand were in different rights. The error, if any, in this respect, would be on the trial and not on the face of the record. We see nr reason why the common-law claim for the loss of the horse, and the statutory claim for the loss of the son, may not be joined in the same declaration. They are of the same nature, admit of the same pleas and are followed by the same judgment: 1 Ch. Pl. 197 ; Martin v. Stille, 3 Whart. 337. These views apply to all the reasons in support of the motion for arrest of judgment.”</p> <p>Judgment was then entered on the verdict, when defendant took this writ, and alleged that the court erred, inter alia, in the answer to defendant’s fifth point, in overruling the motion in arrest of judgment, and in entering judgment on the verdict.</p>

<p>Appeal from the Court of Common Pleas of Lehigh county: Of January Term 1877, No. 174J. In Equity.</p> <p>Bill in equity filed by Benjamin Guth and others, heirs and administrators of Daniel A. Guth, deceased, against John Koch, Sr., Lewis B. Balliet, executor of Stephen Balliet, deceased, and Edward . H. Balliet and others, heirs o'f said Stephen Balliet, deceased.</p> <p>The bill was filed March 3d 1873, and alleged, in substance:</p> <p>1. That on August 23d 1842, Daniel A. Giith, since deceased, entered into an agreement with Christian Pretz and others, as follows: “ For the consideration hereinafter mentioned, the said party of the first part hereby covenants, grants and agrees, to and with the said parties of the second part, that he, the said party of the first part, will, and does hereby grant, permit and allow the said parties of the second part, their heirs, executors, administrators and assigns, the exclusive right and privilege to open pits, sink shafts, mine and make all necessary work for mining and for mining purposes, in or upon all or any part of all that tract or parcel of land owned by said party of the first part, situate in the township of South Whitehall aforesaid, for the purpose of digging and mining iron ore, and all other kinds of minerals and ores, and to mine, dig, take away from said land, soil, use and dispose of iron ore, and all other kinds of minerals and ores. The said parties of the second part, their workmen and laborers, to do as little damage to the land, wood growing thereon and premises, as the nature and proper prosecution of the proposed undertakings will permit. In consideration whereof, the said parties of the second part, promise and agree to give and to deliver to. the said party of the first part, or to his heirs, executors,' administrators or assigns, the one-sixth part of all the iron ore, and of all other ores and minerals, which they, the said parties of the second part, their heirs, executors, administrators or assigns, may move, dig or cause to be moved or dug from, in or upon tlio said land, the one-sixth part to be delivered at the mouth or mouths of the pit or pits, free and clear of all expenses' to him, the said party of the first part, his heirs and assigns. The remaining five-sixths parts of all the aforesaid ores and minerals to belong to and be the property of the said parties _ of the second part, their heirs, executors, administrators and assigns. And the said party of the first part further agrees, that the parties of the second part may, if they deem necessary, erect one or more buildings for the accommodation of those employed in the mines upon said land, provided, that if at any time the said parties of the second part, their executors, administrators or assigns shall finally abandon the working of said mines, the said party of the first part shall have the first chance to purchase such buildings, and if a price cannot be agreed upon, then said building or buildings sliall, at the expense of the said parties of the second part, their executors, administrators or assigns, be removed from said lands. And, it is further agreed, that if limestone shall be mined or quarried upon said lands by the said parties of the second part, their executors, administrators or assigns, they may sell the same, paying one-sixth part of the proceeds of sale to said party of the first part, his heirs or assigns.”</p> <p>2. That on the 5th of December 1851, the parties of the second part in the above agreement, assigned and transferred to John Koch, Sr., and to Stephen Balliet, now deceased, all their rights and privileges under said contract.</p> <p>3. That under and in pursuance of the aforesaid contract, and in carrying out its object — the mining and raising of iron ore and other ores and minerals — John Koch, Sr., and Stephen Balliet, and his legal representatives, built, erected and maintained extensive machinery and improvements, and sunk pits and shafts for mining purposes, and for thirty years or more, dug, mined, raised and disposed of large quantities of iron ore, paying to the persons entitled thereto the one-sixth part of said ores, averaging about $3500 annually.</p> <p>4. That about the 1st of'April 1872, the respondents, without any cause, and in violation of the terms of the aforesaid contract, entirely oeased and abandoned the digging, mining and raising of iron ore, and other ores and minerals, upon the said premises, and the delivery of any portion thereof to complainants, and have persistently and without cause, ever since said date, continued their abandonment, by reason whereof your orators are deprived of all income and rental from said lands.</p> <p>5. That although repeated offers have been made by responsible parties to the respondents to work and operate the said mines on terms as favorable to the respondents as can reasonably be had, all such offers have been refused; and notwithstanding complainants have often requested and notified the respondents to resume said mining operations, or surrender or rescind the aforesaid contract, they have refused, and still refuse, to comply. And your orators aver that they are informed, and believe, that respondents do not intend to carry out the purposes and intentions of the said contract.</p> <p>6. And further, that there is on said described tract of. land a large and valuable bed of iron ore, which can be profitably worked.</p> <p>In consideration whereof, and as complainants can have no adequate remedy at law, they pray that the court may decree and direct “ that the aforesaid respondents, within as reasonable time as to the court may seem meet and proper, shall proceed to dig, mine and raise iron and other minerals upon said land, and deliver the one-sixth part thereof to complainants, according to the spirit and intent of the said contract or agreement; or, in default thereof, to cancel, rescind and deliver up the aforesaid contract or agreement.”</p> <p>The respondents demurred to the bill on the ground that the complainants had an adequate remedy at law.</p> <p>The court overruled the demurrer, when respondents filed an answer, which (1) admitted the first and second paragraphs of the bill to be substantially true, but averred that on the 2d of March 1848 there was executed a supplemental agreement between Daniel A. Guth and C. Pretz, as agent and partner of the Guth Mining Company, wherein it was stipulated that as the mining company had built certain buildings on the lands, it was agreed that Guth should pay one-half the taxes; that the company should pay Guth rent for the land on which the buildings were erected, and the gardens attached thereto ; that if tho ores should become exhausted, or the company at any time should see fit to surrender its lease, and the parties should fail to agree upon tho price at which Guth should take said houses, that they should resort to a method of appraisement which was set forth in the agreement. And the answer averred that this supplemental agreement was included in the transfer alluded to in the second paragraph of the bill.</p> <p>2. The answer admitted the mining and raising of iron ore by respondents’ sub-tenants and lessees, mentioned in paragraph third of plaintiff’s bill, but they denied that they worked said mine thirty years, and denied the sum of $3500 averaged annually.</p> <p>3. It denied the matters alleged in paragraph four, and averred that respondents never abandoned the said mines, but leased the same to tho Crane Iron Company in the year 1852, and the said company operated and worked the mines until 1872 ; that long before tho expiration of the said lease, the respondents tried all means of an extension of said lease, and to lease to other parties, as is sot forth in the answer.</p> <p>4. It denied generally the matters set forth in the fifth and sixth paragraphs of the plaintiff’s bill.</p> <p>5 and 6. It denied the right of the plaintiffs to maintain their bill, and asked that it might be dismissed.</p> <p>A general replication was filed, and the court referred the case to T. B. Metzger, Esq., as master, who took a large amount of testimony in support and denial of the allegations of the bill and answer, and then reported a decree dismissing the bill, on the ground that the complainants had an adequate remedy at law. Exceptions were filed by complainants, and after argument tho court again referred the case to the master, “with instructions to entertain tho complainants’ bill, to consider and marshal the testimony, and report the findings of fact, as required by the rules of equity practice, to determine and assess the damages, and to report a form of decree.”</p> <p>The master filed a second report, wherein he found as follows :</p> <p>“ The facts proven in this case are these :</p> <p>“ 1. Tho original writing between Daniel A. Guth and Christian Pretz, ot al.</p> <p>“2. The assignment of this writing to Koch, Sr., and Stephen Balliet, now deceased, by Christian Pretz et al.</p> <p>“ 3. Tho working of the Guth mines, in connection with the Koch and Balliet mines, by the Crane Iron Company, up to April 1872, under lease from Balliet and Koch for a term of twenty years.</p> <p>“ 4. That the income of the Guth heirs was nearly, if not quite, $3500 a year; and that the yield of ore from their mines was on an average six thousand tons per year, of which the complainants, were entitled to the sixth ton of merchantable ore, delivered at the pit or pits, under the original writing between D. A. Gruth and C. L. Pretz, George Probst et al.</p> <p>“ That the complainants have proved a refusal on the part of the respondents to extend this same lease, viz.: the lease of Crane Iron Company with Koch, Sr., and Balliet, now deceased, sometime before the original lease expired; but they have not proven the fact, that the respondents neglected, refused or were indifferent to a leasing of these same premises to parties other than the Crane Iron Company. On the contrary, it is established by indisputable testimony, that the respondents made diligent endeavor to lease these premises to others, immediately after the expiration of the six months, which the Crane Iron Company had for the removal of their machinery.</p> <p>“ The measure of damages would be the price of ore per ton from November 1872, to the time of final decree.</p> <p>“ The testimony is, that the yield of ore would have continued the same. This being so, the Guth heirs would have been entitled, and would, in case this present finding of facts is not sustained, be entitled to one thousand tons per year, at the prevailing prices which were to be from $3.50 to $4.00 per ton. I cannot fix this rate more accurately, because no more accurate standard is fixed by the testimony. This disposes, I believe, of all questions, and complies fully with the directions of your honorable court.</p> <p>“ In view of these findings, I again respectfully submit the decree reported by me heretofore.”</p> <p>Both complainants and respondents filed exceptions to this report. The court, Longaker, P. J., filed an opinion and made a decree : “ That within thirty days from this date, the defendants pay unto the plaintiffs the sum of $8615.10, with interest from January 1st 1877 ; and that within the same period, they proceed, with diligence and in a reasonable and proper manner, to prosecute the work of digging, mining and raising iron ore upon and from the premises, in such quantities as the capacity of the mines and the quantity of ore upon the premises will warrant; and that they deliver to the complainants, at the pits’ mouths, the one-sixth part of the ore so mined, free and clear of all expenses to the complainants. And that in case of the failure or default, on the part of the respondents, to comply with and perform the directions of the foregoing decree in every particular; then, that within five days after the expiration of the aforesaid thirty days, the respondents rescind, cancel and deliver upon to the complainants, the contract or agreement.”</p> <p>From this decree the defendants took this appeal, alleging that the court erred in overruling the demurrer and in entering the above decre</p>

<p>1. In a proper ease the rights of parties under a parol contract for sale of land may be settled in assumpsit; bnt the plaintiff must show that his right of action had accrued before its commencement.</p> <p>2. In such an action the plaintiff is not entitled to a conditional verdict, to enforce specific performance of the verbal contract to convey land, until he clearly shows that he has strictly complied with all the terms of the agreement.</p> <p>3. Assumpsit will not lie to recover the value of improvements upon the defendant’s land where the plaintiff remains in uninterrupted enjoyment of the improvements, and the land appurtenant thereto.</p>

<p>Error to the Court of Common Pleas of Berks county: Of July Term 1879, No. 16.</p> <p>Caso by John Latshaw against the Reading and Columbia Railroad Company, for burning his grass, fences and woods, which he alleged was caused by sparks emitted from, a locomotive of defendant.</p> <p>An appeal was taken from the award of a board of arbitrators, and the case came on for trial on September 6th 1875.</p> <p>The evidence disclosed the following facts r On April 5th 1872, a freight train passed the plaintiff ’s' field drawn by the locomotive “ Oshkosh.” The field was on the line of the road, and about a quarter of an hour after the train passed a fire was discovered therein. The fire first started in a stubble field about fifteen paces from the railroad, whence it spread to the adjoining woods and fences. It burned in the fields of three owners and extended on both sides of the railroad. Shortly after the train passed the smoke from the fire appeared, and was soon seen along the road from one hundred to five hundred yards. No- one saw how the fire originated. There was some wind blowing at the time. On the part of the defendant the general manager of the railroad, who was assistant-superintendent in 1872, testified that he was a practical machinist and had given much attention to the question of spark-arresters, and had experimented therewith; that the one in use on this locomotive, at the time of the fire, was the best in use in the year 1872. The chief-engineer of the railroad, the engineer of machinery and the superintendent, all testified to the effect that the spark-arrester on the Oshkosh was the most approved in use at that time; that it was made the duty of the engineer to see that the spark-arresters were daily examined; that the wear or any break therein could be easily detected; that a neglect to have them inspected daily by the employee charged with that duty would cause his removal. The engineer who was in charge of the locomotive also testified that, on the day of the fire he had personally examined the arrester and found it in good order.</p> <p>The following were among the points of the defendant, with the answers of the court thereto:</p> <p>1. That as the only evidence offered by plaintiffi was, that shortly after the freight train passed, on the morning of the 5th of April 1872, the grass was seen to be on fire, there is no evidence of negligence in the case, because the burning of the grass along the line of the road is not negligence, nor evidence thereof, and therefore the verdict must be for defendant: Railroad Co. v. Hendrickson, 30 P. F. Smith 190.</p> <p>2. That as the uncontradicted testimony of the case shows, that the spark-arrester on the locomotive was of the most efficient kind and in good condition, and there is no evidence of mismanagement or carelessness in the running of the train, the defendants are not guilty of negligence, and the verdict must be for the defendants : Railroad Co. v. Yerger, 23 P. F. Smith 121.</p> <p>Ans. “ The mere fact of grass burning along the line of the road is not of itself evidence of negligence; and if the jury find that the spark-arrester was of the most efficient kind and in good condition, and the train was carefully run, the verdict must be for the defendants. But the jury may consider the evidence, as testified to by plaintiff’s witness of fire on both sides of the road, in Zinn’s, Fisher’s and Latshaw’s fields, from ten to fifteen steps from the railroad, and of the smoke above and below, from one hundred to five hundred yards, in determining whether negligence existed or not, and whether or not the spark-arrester was in good condition and the train carefully run.”</p> <p>4. That under the evidence, the verdict must be for the defendants.</p> <p>Ans. “ The court cannot charge as requested on this point.”</p> <p>In the general charge the court, Hagenman, P. J., inter alia, said:</p> <p>“ The locomotive named Oshkosh drew the train; and it is alleged by plaintiff, that the spark-arrester was defective and at fault; and as the engine travelled, an unusual quantity of sparks was thrown out, setting fire to the dried grass and fences on both sides of the road, and caused the burning complained of. The evidence of plaintiff, of Abraham Fisher, Isaac Fisher and James Beard, is submitted, and is relied upon to sustain this action. * * * The plaintiff’s evidence showed, that after the train passed, the grass began to burn on both sides of the railroad, burnt in Zinn’s field, Fisher’s field, and two places in Latshaw’s field, ten to fifteen steps from the railroad, and that it smoked along the road above and below, from one hundred to five hundred yards. This testimony tended to contradict that of defendants, however strong. It therefore becomes a question for the jury, and one which must be submitted for their decision. If the jury find that there was negligence on the part of the company in the running of the engine, whereby an unusual and extraordinary amount of fire was thrown out, firing the grass and fences and burning plaintiff’s woods, the verdict should be for plaintiff for such damages as the jury find from the evidence he has sustained.”</p> <p>Verdict for plaintiff for $190.95, and after judgment thereon, defendant took this writ and, inter alia, alleged, that the court erred in the above answers to the points, and in the portion of the charge noted.</p>

<p>1. The right of amendment maybe liberally allowed, but not to such an extent as to substantially change the cause of action.</p> <p>2. In trespass vi et armis against a constable for an excessive distress, the declaration averred that the plaintiff held the premises as the tenant of B., that a certain amount of rent was due, and that the distress made was excessive. The court allowed the plaintiff to amend so as to change the averments which admitted the tenancy. Held, that this was a substantial change of the cause of action and should not have been allowed.</p> <p>3. Where in such a case the tiarr. does not declare, under the Act of May 10th 1871, allowing double damages for distress where no rent is due, there can be no recovery under its provisions.</p> <p>4. When assignments of error merely state the names of witnesses, whose testimony was received or rejected without specifying the particular evidence as required by the rules of this court, they will be disregarded by the Supreme Court.</p>

<p>Error to the Court of Quarter Sessions, of Luzerne county : Of -January Term 1878, No. 274.</p> <p>Indictment of Daniel Reynolds for violating the game laws.</p> <p>The defendant was indicted under section 20, of the Act of Assembly to amend and consolidate the several acts relating to game and game fish, approved May 5th 1876; the section being as follows, to wit:</p> <p>“ Any person trespassing on any lands for the purpose of taking fish from any private pond, stream or spring, after public notice on the part of the owner or occupant thereof, such notice being posted adjacent to such pond, stream or spring, shall be deemed guilty of trespass, and-in addition to damages recoverable by law, shall be liable to the owner, lessee or occupant in a penalty of $ 100 for every such offence; provided, however, this section shall apply only to such ponds, streams or springs as shall be used or improved by the owners or lessees for the propagation of fish or game fish.”</p> <p>By a subsequent section, a defendant, upon conviction, is liable to imprisonment for a period of not less than one day for each dollar of penalty.</p> <p>Finn’s pond is a large pond in the upper part of Luzerne county, covering about one hundred and twenty acres of ground. It was formerly the property of William Finn, -who also owned the land surrounding it. He sold off parts of the land adjoining the pond, so that there came to be different shore owners about the pond. For a period of between thirty and forty years, the various shore owners claimed and exercised the right to fish in the pond, to boat on it, to drive saw logs and lumber on it, to use it generally as their common property.</p> <p>In 1849, William Baylor, the prosecutor in this action, became the shore owner of “Lot No. 22,” at the lower end of the pond, where there was a saw-mill. Twenty years afterwards, in 1869, he obtained a quit claim deed to the pond. He stocked the pond in the spring of 1876, with white-fish, California salmon and suckers. He also placed printed notices about the pond, stating that he was the owner, and forbidding fishing therein. On the 20th of January 1877, defendant cut holes in the ice on the pond and was found fishing, having caught two pickerel when ho was arrested.</p> <p>The following were among the points of defendant :</p> <p>1. That penal statutes must be construed strictly, and, therefore, it is necessary for the Commonwealth to prove that the pond in question is the private pond of William Baylor, the prosecutor, and also, that it was used or improved by him for the propagation of fish, or game fish, and that he gave previous public notice that it •was such a pond, kept for such a purpose; and if the jury find that the Commonwealth has failed in any particular of this proof, they must find for the defendant.</p> <p>Ans. “ This point we affirm, but instruct you that the prosecutor need not show title to the whole of the land covered by the water of this pond; to sustain this prosecution, he need only show title to the land covered by the water of this pond where the defendant was found fishing at the time; in other words, over lot No. 22.”</p> <p>2. If the jury find that this pond was openly, notoriously and continuously used by the various shore owners, as their common property, for a period of twenty-one years previous to the setting up of an exclusive claim by the prosecutor, then the pond is not his private pond.</p> <p>Ans. “ This point we affirm, but instruct you that the pond in question, is a private pond, so far as the public are concerned; in other words, to all the people of this Commonwealth, except the shore owners, this is a private pond within the meaning of the law.”</p> <p>5. That the Commonwealth has failed to show a properly connected paper title to the pond in question in the prosecutor.</p> <p>Ans. “ This point we affirm, but instruct you that the prosecutor has shown sufficient title to lot No. 22, upon which, it is alleged, this defendant trespassed, to sustain this action, provided you believe the evidence of the Commonwealth.”</p> <p>In the general charge, the court, Handley, A. L. J., inter alia, said:</p> <p>“It is sufficient when I say to you that the Commonwealth has shown proper title to lot No. 22, where, it is alleged, this defendant fished. Hence, if you find from the evidence, that the defendant, Mr. Beynolds, did enter upon the lands of Baylor covered by the water of this pond, and took fish therefrom, as charged in the indictment, then you may return a verdict of guilty in manner and form as he stands indicted.”</p> <p>The verdict was “guilty.” After sentence defendant took this writ, and alleged that the court erred in the answers to his points, and in the above portion of the charge.</p>

<p>1. In 1859, B. was indebted to S. and C., which debts were liens on a certain farm of B., and executions were out to enforce them. On the 12th of July 1859, S. made an agreement with B. in pursuance of which B. conveyed the land to S. by a deed absolute on its face. S. on his part was to pay the judgment of C., and to apply the rents, issues and profits of the farm upon the indebtedness of B. to him, and when it was paid to reoonvey the farm to him. This agreement of S. was by parol. In 3 867, B. conveyed the property to W. who brought ejectment against S., who claimed that the deed of 1859 was an absolute conveyance, and contended that the alleged parol agreement was clearly within the provisions of tho Act of April 22d 1856, and that evidence of such agreement was inadmissible. Held, that the evidence establishing the fact that there was fraud on the part of the defendant in obtaining the title there was a resulting trust in favor of the plaintiff which was within the exceptions contained in the proviso to the Act of 1856 : Barnett v. Dougherty, 8 Casey 372, followed.</p> <p>2. The court instructed the jury that if they found the deed from B. to S. was a mortgage, and that S. was indebted to B. on account for any of the rents, issues and profits, at the time the ejectment was brought, the jury could also take into consideration and charge defendant with the rents, issues and profits of said farm since the suit was brought, for the purpose of ascertaining whether the defendant had been fully reimbursed under the agreement. Held, that this was not error.</p> <p>3. In 1862, S., the defendant in the above suit, mortgaged the farm in dispute to H. When the above ease was called for trial, II. applied to he made a Co-defendant, which the court refused. Held, that this was not error. Held, further, that S. could not set up an outstanding title in H., as such title was the offspring of his own fraud.</p>

<p>Error to the Court of Common Pleas of Luzerne county: Of July Term 1878, No. 18.</p> <p>Assumpsit by F. Leuckel against W. B. Maffet and W. T. Bhoads, late partners as Maffet & Bhoads, for a sum alleged to be due to plaintiff by the firm.</p> <p>The case was referred to a referee, G. B. Bedford, Esq., who reported the facts as follows: “ That the defendants, during the year 1866, were partners engaged in building a section of the Lehigh and Susquehanna Railroad; that upon the 27th day of November 1866, W. T. Rhoads, one of the defendant firm, applied to the plaintiff for §200, representing that he wished the same for the purpose of paying the men in the defendants’ employ, and thereupon the said amount was advanced by the plaintiff, and the sum was used by Rhoads for the purpose mentioned, he giving the plaintiff a note, of which the following is a copy:</p> <p>‘ §200. Mauch Chunk, Pa., Nov. 27th 1866.</p> <p>‘ One day after date, I promise to pay to the order of F. Leuckel, at the First National Bank of Mauch Chunk, §200, without defalcation, for value received. W. T. Rhoads.’ ”</p> <p>The referee in his report, inter alia, said: “ That a note given by one partner for a debt of the firm is not an extinguishment of the original debt, unless so agreed when the note was given, is too well settled to admit of argument. The burden of proof is upon the defendant to show that the note was taken in payment and satisfaction, and not as collateral security. See Mason v. Wickersham, 4 W. & S. 100; Tams v. Hitner, 9 Barr 441 — 8.</p> <p>“As the referee conceives, it makes no difference, in principle, whether the debt is an antecedent one or one that is created at the time the security is given. It is true that it has been held that if a partner borrow money and give his own security for it, it does not become a partnership debt by being applied to partnership purposes. It is treated as the discount of a note, and not the loan, and hence is not affected by the subsequent use to which the money is applied. See Graeff v. Hitchman, 5 Watts 454. But the presumption of the advance on the credit of the individual partner may be rebutted; and where, as in this case, at the time of obtaining the money, the reason for the loan and the uses to which it was to be applied were distinctly stated, and were understood by both the lender and the borrower, and the money was in fact so used, the inference is a fair one that the advance was on the credit of the partnership.”</p> <p>The referee was therefore of opinion : “ That, though the defendant firm are not liable on the note as such, yet they are responsible under the money counts, and hence that the plaintiff is entitled to recover in this action the amount mentioned in said note, with interest from the 27th day of November 1866.”</p> <p>Exceptions were filed to the report of the referee, which the court dismissed, and confirmed the report, when the defendants took this writ.</p>

<p>Appeal from the Court of Common Pleas of Luzerne county: Of January Term 1878, No. 178. In Equity. Certified from the Eastern District and argued at Harrisburg, in the Middle District.</p> <p>Bill in equity filed by Joseph Fellows and others, heirs-at-law of Joseph Fellows, deceased, against John Heermans, trustee, and others. The facts are stated in the opinion of this court.</p> <p>The case was hoard on bill and answer, the court, Handley, A. L. J., delivering an exhaustive opinion, in which he, inter alia, said: “ When parties make just such instruments as they intended to make, and without fraud, surprise, undue influence or mistake of their rights, but labor under error as to the legal effect, that alone will not authorize a correction by the court: Storrs v. Barber, 6 Johns. Ch. Rep. 166 ; Chapin v. Laytin, 18 Wend. 412; Hunt v. Rausmanier, 8 Wheat. 174. The grantor, Mr. Fellows, when in full life, was noted as one of the most expert conveyancers. lie was trained in the law long before many of the well-known rules of the common law were changed by statute. That he intended to create an active trust by his deeds there can be no doubt. When he directed his trustee to sell the lands in this county by retail, ha fully comprehended about what period of time it would take to sell his land in that manner, it having been laid out in building lots, streets and avenues long before he executed those deeds. From our knowledge of the land to be sold, it will take at least twenty-five years to dispose of it by retail, if it can be done within that period of time. The deeds of Mr. Fellows are not purely testamentary. The trusts created are not solely for the benefit of the grantor. Several relatives have a beneficial interest since the making of these deeds, and this interest took effect during the lifetime of Fellows ; they are not postponed until after his death, and hence the rule laid down in Frederick’s Appeal does not apply in this case.</p> <p>“We, therefore, order and direct plaintiffs’ bill dismissed, with costs.”</p> <p>From this decree Fellows and others took this appeal.</p>

<p>‘1. A lad about thirteen years old was employed as a slate-picker in a coal breaker. Another lad who was attending the machinery called to him to bring to him the oil-can, and he left his post, and in taking the can fell into a pair of rollers breaking coal where he was severely injured. It appeared that the rollers were covered with a box upon the top of which was an opening covered by a plank which was displaced at the time of the accident, and was so often before with the knowledge of the injured boy. Held, that the provision in the Act of March 3d 1870, that all machinery where boys work shall be properly “ fenced off” was intended to mean properly protected, and that in providing this cover for the rollers the employer did his whole duty under the act. Held, further, that if the cover was unnecessarily removed without the fault or knowledge of the employer, through the negligence of one of the employees, there could be no recovery according to well-settled principles. Held, further, that the conduct of the boy presented a case of contributory negligence.</p> <p>2. Pee Cueiam.' — It was not the intention of the act to change these just and reasonable rules.</p>

<p>B. and others filed a hill in equity against II. and others, alleging that they were the duly elected officers of an unincorporated society, and that defendants had possession of certain assets of said society which they proposed to sell or transfer, and prayed for injunction to restrain them. The defendants in their answer denied that they had any knowledge of any such incorporated society, but averred that defendants were the duly constituted officers of an incorporated society with which plaintiffs had been associated as members up to a certain time, when they refused to attend its meetings. It appeared from the report of the master, to whom the ease was referred, that in 1866, an unincorporated society had been formed in which both plaintiffs and defendants were members, and that in 1872, said society had been duly incorporated by a decree of the Court of Common Pleas. No minute of the adoption of this charter appeared in the books of the company, but there was a minute of a reference of it back to the attorney who obtained it, for corrections. It appeared also that-this charter was handed down with the other papers of the society by one president to another as they were successi vely installed. The master also found that, in 1875, a new constitution was prepared and declared carried, although not approved by three-fourths of the members present, as required by the constitution of the unincorporated society, and that said new constitution materially changed the objects of the society. It was under this new constitution the plaintiffs made their claim as set forth in the bill. Held, that there was sufficient evidence of the adoption of the charter without a formal minute thereof, and that therefore the bill must fail. Held, further, that even if the charter had not been adopted, the new constitution not having been adopted in accordance with the provisions of the existing constitution of the society, was illegal and of no effect.</p>

<p>While the general rule undoubtedly is that the presumption of payment of a claim founded on a decree would not arise until twenty years have elapsed, it is well settled that a shorter period than that, aided by circumstances which contribute to strengthen such presumption, may furnish sufficient grounds for inferring the fact of payment.</p>

<p>1. As a general rule a claim for exemption must be made with such promptness as to occasion no delay to the plaintiff, and not cause him to incur costs that otherwise might be avoided.</p> <p>2, An attachment execution under the Act of March 17th 1869, issued, August 1st 1877, and was served on a garnishee on August 2d 1877. On August 13th 1877, a rule was obtained by the defendant to dissolve the attachment, and on May 6th 1878, the rule was discharged. Pending the rule, plaintiffs incurred costs and expense in taking depositions in a distant state. After its discharge plaintiffs proceeded to have the case arbitrated, and obtained an award in their favor on June 27th 1878. On July 10th 1878, the defendant claimed his §300 exemption, which the court allowed. Held, that this was error, as the claim was not presented in time.</p> <p>3. It seems that the Act of April 9fch 1849, does not create an absolute, unconditional exemption of which the creditor must take notice at his peril, but-leaves to the option of the debtor whether he will claim it or not. If he does not elect to claim the exemption, the property may legally he sold.</p>

<p>Error to the Court of Common Pleas of Bradford county: Of January Term 1877, No. 55.</p> <p>Trespass on the case by Patrick H. Kiely, by his next friend, John Kiely, against James H. Drake and George Drake, for an injury alleged to have been suffered by the plaintiff by reason of the unlawful acts of the defendants.</p> <p>James H. Drake, one of the defendants, was the conductor of a freight train, with a caboose car attached for passengers, on the Northern Central Eailway, on the 24th of August 1872, at the time of the alleged cause of action, and had acted in that capacity for the period of twenty-two years; the other defendant, George Drake, was a son of J. H. Drake, and acted as brakesman at the time of the alleged cause of action, and was at that time about eighteen years of age. The plaintiff, when injured, was about ten years of age, and resided in his father’s family near the depot. The train, on the 24th day of August, arrived at the depot, in Troy, a little after 4 o’clock p. M., and was about two hours late. The conductor immediately went to transact the necessary business into the office of the agent, whose office was located on the west side of the depot building, the railway track being on the east side. The brakesmen were engaged in the transfer of freight at one of the freight cars standing near the north end of the depot platform; the work at the station was completed, with the exception of loading a piano or melodeon. Henry Hebe, one of the employees of the train, went to the caboose, which stood near the water-tank, at the south end of the depot, to get an iron bar, and saw the plaintiff, with two or three of his brothers and some other boys, in the caboose taking peaches from a crate, which they had broken. He immediately stepped back and informed George Drake of the fact. As George came up the plaintiff came from the car, and had stepped on to the depot platform, when George took him in his arms, carried him into the caboose and put him in the closet on the east side, locked the door, and immediately went back and assisted to load the instrument, which was done in three or four minutes. About the time the work was completed James H. Drake came from the office, and the train immediately started. He alleged he knew nothing of what had happened between his son and the plaintiff, and had no knowledge that the plaintiff was in the car or the closet until the train was in full motion, running at about the rate of fifteen miles an hour on a dowm grade, and was near the plaster-switch, a distance of between a quarter and a half mile from the depot. It was then concluded, upon consultation of the defendants, in plaintiff’s presence, that they would take him on to Columbia X Roads, a distance of some five miles, when he could return with Joseph Williams on the express train coming south, which would bring him back to Troy, his home, in the early part of the evening. He was taken to the Columbia x Roads, got out of the caboose, went home on foot, running or trotting most of the way, as he alleged. He arrived at his home between 5 and 6 o’clock, went to his father’s house, and the same evening bis mother sent him down town. He was seen coming towards town the same evening, and on the Monday following he was seen around the depot. He was taken sick after his return from the X Roads, and remained, it was alleged, in an unconscious state for a long time. No doctor was called until some ten or eleven days after his return from the X Roads. From this sickness he never recovered. He is a cripple in both legs, and will remain so in all probability for life. He brought suit against defendants for damages alleged to have resulted from the sickness caused by his trip to the X Roads.</p> <p>At the trial, before Morrow, P. J., defendants proposed to ask the witness, Dr. Axtell, on cross-examination, " If at this first visit Mrs. Kiely stated in the presence of the plaintiff that his (plaintiff’s) sickness was caused by his having been in swimming?” Objected to as not a cross-examination. Objection sustained, question rejected. (First assignment of error.)</p> <p>Also to ask witness, Cornelius Sayles, whether, in conversation, Kiely told him how the boy (plaintiff) got hurt, whether he did not say he got hurt playing weak horse. Objected to, because, first, any conversation had with John Kiely will not affect the plaintiff; and, second, defendants were bound by John Kiely’s answers when interrogated in relation to the alleged conversation. Objection sustained. (Second assignment.)</p> <p>The second and fourth points of the plaintiff, which the court affirmed, were as follows :</p> <p>2. That if J. H. Drake aided, abetted or directed George Drake in taking the plaintiff on board the car, or if the act of George Drake was in the presence of J. II. Drake, he being the conductor in charge and control of the train, and George Drake a brakesman under him, then the act was this act of J. H. Drake, and the plaintiff is entitled to recover. (Seventh assignment.)</p> <p>4. That the plaintiff, being a child of tender years, a different rule of responsibility and contributory negligence prevails from that as to adults, and that what might be a bar to the recovery of consequential damages by an adult might not be a bar in the case of a child of tender years. (8th assignment.)</p> <p>In the general charge, the court, inter alia, said:</p> <p>“The undisputed evidence shows-that the plaintiff was forcibly put onboard the.car and carried against his will to Columbia Cross Roads, a distance of nearly five miles; also, that he returned home on foot, running a part if not all the way. George Drake testifies that he put him on the car and locked him in the closet, and kept him there until after the train was under motion. This was an act of trespass on his part, [and if James H. Drake was present, directing or consenting to the act of George in putting him on the car, they were joint trespassers, and the plaintiff is entitled to recover against both] such damages as the jury find, under the evidence, he sustained at their hands. If his sickness was the direct result of their acts, that is, if their acts, in connection with the plaintiff's fright, excitement and exertion in returning home, were the immediate cause of his sickness, [he is entitled to recover damages, as well from the injuries resulting from his sickness as by being put on the car and carried away.]</p> <p>“ But he cannot recover for injuries resulting from his sickness, if his own conduct and acts constituted negligence on his part, which contributed' in any degree to such sickness. [What would be negligence in an adult might not be negligence in a boy ten years of age, and hence, the jury in passing on the question of negligence, must have regard to the age and intelligence of the plaintiff at the time the alleged injuries were received.] If his sickness was not the direct result of the acts of the defendants, was the result of other causes, or if his negligence contributed to his sickness in any degree, then he could recover only such damages as he sustained by reason of having been forcibly put on the car and taken away; that is to say, all damages he suffered prior to, and independent of his sickness, and these, instructions will govern your verdict, whether under our subsequent instructions you find against George Drake only or against both defendants.</p> <p>“ This leads us to remark, and we call your attention particularly to the fact, that [there can be no recovery in the case against James H. Drake if he had no knowledge of the acts of his son George in putting the plaintiff on the car, knew nothing about the matter until the train had gone from the station a quarter or half a mile,] and was going at the rate of fifteen miles, or thereabouts, an hour.</p> <p>“ He did not make himself a joint tresspasser in refusing to stop the train and allow the boy to get off, although by this refusal the injury the plaintiff sustained was produced in part by the acts of both defendants, if there was no concert between them. Where two or more commit separate trespasses tending to produce an injury to another, there is no joint liability and can be no joint recovery. This, however, will not prevent a recovery against George Drake under the instructions already given, but there must be no recovery against James II. Drake, unless the jury find from the evidence he was a joint trespasser.”</p> <p>Verdict for plaintiff for $1658, and after judgment, defendant took this writ, and alleged that the court erred as set forth in the above assignments, and in the portion of the charge included in brackets.</p>

<p>A. agreed with B., the owner of a hotel, to furnish the same with water by and through the same pipes then used for said purpose, B. afterwards leased the hotel to C., and covenanted that the house should he supplied with spring water in the same manner as then supplied under the agreement with A. B. was to keep certain pipes in repair and C. others, and B. was to see that the covenants made by A. should be kept. In a suit by G. against B. for breach of covenant, the court instructed the jury that B. was bound to supply water, whether the spring from which it was drawn kept up or not. Held, that this was error; that although the water of the spring had always been the source of supply of the house, yet if it failed from drought or other natural cause, it was no breach of any covenant express or implied for its supply.</p>

<p>A lessee of coal mines agreed that he should mine a certain quantity of coal each year at a royalty of so much per ton, and, if in any one year he failed to mine said quantity, the royalty on said quantity was to be calculated, the amount paid for the cin-rent year deducted, and interest allowed upon the balance, such interest to be continued until the deficiency upon which the interest was based should have been mined. Held, that the sum thus due by the lessee was due on an “ article of agreement and account bearing interest” within the letter and spirit of the Act of April 29th 1844, and liable to taxation.</p>

<p>1. Writs of scire facias to revive the liens of judgments were issued to December Term 1877, within about ten days of five years from their entry. The writs were served on the assignee of one of the defendants a.s terretenant, and there was a return of nihil habet as to the other defendants. On the 7th of January 1879, alias writs of scire facias were issued, and service made upon other terre-tenants. The court below held that as to the terretenants the alias writs were too late. Held, that this was error, and that the service was in time to continue the lien as to them.</p> <p>2. The Acts of 1798, and of March 26th 1827, are statutes of limitation ; if the process issues a single day within the time it saves the bar ; with this process the terro-lenant, though not named in it, may be connected by an alias, and the reasonable lime within which this may be done is the statutory period of five years.</p> <p>3. Lichty v. Hochstetler, 10 Norris 444, followed.</p>

<p>In 1846, A. by articles of agreement purchased Iand“of B., paying a part of the purchase-money. A. died intestate in 1851, leaving a wile and nine children, 'file widow continued to live with her unmarried children on the land until i 872, meantime supporting the children, clearing and farming the land, building a house thereon, and paying the taxes. In 1853, she paid B. the balance of the purchase-money, and took a deed for the land to herself which she placed of record. It did not appear that she had ever made any positive denial of her children’s title until in 1873 or 1874. In 1876, the widow conveyed the land under articles of agreement to C., who took possession. In 1874, one of the children of A. brought ejectment against the widow and 0., the ease being tried in 1879, to recover an undivided ninth-part of the land. Held, that no question arose here under the 6th section of the Act of April 22d 1856 ; nor was there sufficient evidence to warrant the submission to the jury to find whether the widow had acquired title under the Statute of Limitations. Held, further, that in view of the circumstances of the ease a conditional verdict was proper requiring plaintiff to pay to the widow the portion of the purchase-money paid by her.</p>

<p>Error to the Court of Common Pleas, of Luzerne county: Of January Term 1880, No. 244.</p> <p>Feigned issue under the Sheriff’s Interpleader Act, wherein G. M. Miller was plaintiff and Mary Housenick defendant. At the trial it appeared that Yost and Borden were pai’tners in the clothing business in Wilkesbarre, and that in April 1877 they dissolved partnership, Borden going out of the business and Yost continuing the same. Mary Housenick held certain notes of Yost, and having brought suit thereon, obtained a judgment, and through her counsel, J. G. Miller, issued a fieri facias, which was returnable to the return-day in January 1878. Certain other creditors of Yost obtained a rule to show cause why the judgment should not be opened, and, pending the rule, the execution was stayed.</p> <p>At the instance of Borden, his father-in-law, G. M. Miller, the plaintiff, had various conferences with Yost and these other creditors on the subject of settling their claims. They amounted to some $5500, and for this sum in the aggregate G. M. Miller endorsed to the other creditors certain notes of Yost, and of Yost & Borden, at three, six, nine and twelve months. At the same time, December 14th 1877, G. M. Miller and William C. Yost entered into an agreement in writing, as follows:</p> <p>“ Whereas, William O. Yost has this day sold and delivered to G. M. Miller his stock of goods, clothing, material, &c., in his store on east side of Public Square, Wilkesbarre, and has also assigned certain accounts due Wm. C. Yost, and the late firm of Yost & Borden; and whereas, G. M. Miller has this day endorsed the notes of said Yost, and of Yost & Borden, for about $5500, payable in three, six, nine and twelve months. Now it is agreed that an inventory of said goods shall be forthwith taken; that said Miller shall employ said Yost, at reasonable compensation, to can-time at said place of business, and sell and dispose of said stock ; any new stock to be paid for in cash only, upon written direction of said Miller. The proceeds of all such sales shall bo applied to the payment of the notes aforesaid, either directly or through said Miller. Upon the payment of said notes at maturity, or sooner, together with all costs, expenses, rents, &c., for which Miller may become liable, said stock of goods, uncollected accounts, &c., shall be assigned and sold and delivered to Mrs. Mary Housenick or her assigns. All moneys collected by said Miller out of the books and accounts assigned to be applied to the payment of said notes, and any goods sold by Miller to be likewise so applied. In case said Tost fails or refuses to conduct said business in a proper manner, and not satisfactory to said Miller, his employment by said Miller may be terminated. In case of a failure to pay said notes out of the proceeds of said business, and in case said Miller is compelled to wind up said concern, all property, goods, accounts and moneys remaining in hands of said Miller, after payment of notes, costs, expenses, rents, &c., said Miller agrees to deliver and pay over to the said Mary Housenick for her use and benefit.</p> <p>“ Witness our hands this 14th of December, a. d. 1877.</p> <p>“ Wm. C. Yost.</p> <p>“ G. M. Miller.”</p> <p>The rule to open the judgment was afterwards discharged, when Mrs. Housenick employed other counsel, and levied upon and sold some of the goods in the clothing store. Miller claimed the goods, when this feigned issue was framed.</p> <p>At the trial, before Harding, P. J., the plaintiff, G. M. Miller, testified: “ Borden was my son-in-law. * * * Borden really sold out to Yost; Yost kept the stock and was to pay the debts. The creditors began to push, and the Philadelphia creditors came up and went to Borden, and he came to me. After two or three days dickering, the contract (above set forth) was drawn up by my attorney, Governor Hoyt. * * * I refused to sign it until the execution of Mrs. Housenick was withdrawn. Was in J. G. Miller’s office when I signed it; it was in his office, the counsel of Mrs. Housenick. * * * I told the employees in the store they were working for me; that I would keep them on at the same rate of wages they were receiving. * * * The business was conducted in the name of Yost as agent; goods were purchased in my name or in Yost’s as agent. * * * The sign was not altered. * * * This arrangement lasted until about, I should think, in the latter part of September 1878 ; it is about the time of the date of that last execution; I don’t just recollect the date. On the 17th of September, one of these series of notes became due, and I had no money from the concern to pay it, and I told Mr. Yost that I thought we had better take an inventory and see where we stood; I wanted to know how we were getting along ; and we were taking this inventory, and this execution came out about that time — this second execution of Mrs. Housenick’s ; I gave bond here, and got that stopped for the time being; and the landlord came on with a landlord’s warrant about that time, and cleaned us all out. Then I purchased the goods of the landlord after he bought them; he bought them ; I purchased them again.”</p> <p>The defendant, Mrs. Housenick, testified : “ They spoke to me about the sale of goods to Miller, but I said I would agree to anything, provided it did not interfere with my claim, so that that was not interfered with; I would agree to anything, so that it would not impair my claim ; so that that was safe. * * * I was willing to wait on Tost, providing my claim would be safe — if it would not impair my claim ; * * * that is all I know about it; they never consulted me about anything.”</p> <p>J. G. Miller, who had been counsel for Mrs. Housenick in the first execution, testified: “ I was opposed to this compromise; I thought Mr. Yost could not carry it out; that he was paying more, as the times were, than he could accomplish — agreeing to pay more to the creditors than he was able to pay — the compromise referred to in that paper; I think he agreed to pay about sixty-eight per cent., and I thought he was not able to pay any such amount; and I proposed, in order to protect Mrs. Housenick’s interests — our execution had been stayed — to have Mr. Lewis, who was the landlord and friend of mine, issue a landlord’s warrant and sell the property out, and have it bought in by Lewis for Mrs. Housenick’s benefit. But Yost thought he would be able to carry the agreement through; and I refused to consent to it, without somebody would be there to see that Mrs. Housenick would be satisfied with it. * * * I met Mrs. Housenick some time "after that down in Yost’s store one day, and we talked over the matter how it had been arranged ; this was in this same store ; I told her I was afraid may be Mr. Yost could not make it go, and he thought he could; and she said she hoped he could, and if he could, it was the best thing that could have been done; that everybody would be fixed then. I told her I was in hopes he would be able to carry it through; that was shortly after this thing occurred — shortly after the contract was made. * * * I don’t know that we went into it fully, but it was spoken of being a compromise made, and that Mr. Yost was going to try to pay off all his creditors. ' It was talked over, and Mrs. Housenick seemed to understand it.”</p> <p>In the general charge, the court, inter alia, said :—</p> <p>[“ It seemed to be, if the witnesses are to be believed, the desire of Mr. Yost — in which he was joined by Mrs. Housenick — to have some sort of compromise made between his creditors and himself,. whereby he would be able to extricate himself from difficulty.] * *■ * G. M. Miller, the plaintiff here, was not to realize one dollar. The goods were transferred to him until the endorsements should he paid, and then they wore to go to the unfortunate creditor, Mrs. Mary Housenick.</p> <p>“ Mr. Yost was left there in possession. [Now, I may say to you, that an innocent creditor in New York, or Philadelphia, or elsewhere, selling goods to Mr. Yost, notwithstanding this transfer has been made, might have pursued him, levied upon his goods, and collected his debt out of him, because, as between the debtor and the innocent creditor, the transfer would have been a fraud in law. But if Gf. M Miller tells the truth, Mrs. Housenick never availed herself of it as a fraud in law. Her agent and counsel entered into it. Before Mr. Miller himself would enter into it, if his testimony is to he believed, that execution of Mrs. Housenick had to be removed out of the way. No matter then, though this business had been conducted for one year, or five years, if the testimony of Jerome Miller, and that of Mr. Miller, the plaintiff, is to be believed, it never could become a fraud in law, so far as Mrs. House-nick was concerned ; because it was the work of her counsel.</p> <p>“ The agency of counsel is about as high an agency as wo know of. The counsel of Mrs. Housenick was present when the paper was drawn up — at least when it was executed. The son, if he is to be believed, was present when the understanding was had. The counsel himself says he gave the old lady subsequent knowledge of all that had been done, and she said she hoped it would be for the best.</p> <p>“ Now, as between Gf. M. Miller and Mary Housenick, the allegation of a fraud in law could never he legally interposed in behalf of Mrs. Housenick, or her claim. It might he a fraud in law as against innocent creditors, seeing Mr. Yost doing business as he had done before; hut never as to Mrs. Housenick.] Mr. Gr. M. Miller had stipulated that before he endorsed the notes, that execution should be removed out of the way. The counsel of Mrs. Housenick, a man of character and standing at the bar, had entered into the arrangement. Mr. Miller had endorsed the notes. He had taken — and so far as the law was concerned, had a right to fake — into his possession all the goods in the store, and he had stipulated that when the sixty-five cents on the dollar had been paid to the city creditors, the balance of the property should be delivered to Mrs. Mary Housenick. [How any counsel, who was conversant with this transaction, as it has been shown here by the witnesses, could have issued a second execution and raised the claim now put forth here, passes my comprehension. Because, as between Mrs. Housenick and Mr. Miller, a fraud in law could not be alleged. It may have been unfortunate; we have nothing to say about that. If there had been any fraud in this transaction, it was the province of the counsel to have prevented it.] * * * [If you find from any of the testimony fraud connected with this matter, then the verdict should be in favor of the defendant. But if you find the transaction to be as stated by Mr. Jerome Miller, by the production of the papers, and by the whole circumstances, in connection with the case, then your verdict should he in favor of the plaintiff.”]</p> <p>The verdict was for plaintiff, and after judgment defendant took this writ alleging that the court erred in the portions of above charge included in brackets.</p>

<p>Error to the Court of Common Pleas of Luzerne county: Of January Term 1880, No. 205.</p> <p>Feigned issue, wherein Perry Monroe, to use of J. S. Koons, was plaintiff and Henderson Monroe defendant, to try the validity of a judgment-note.</p> <p>The note was to stand as a declaration. The defendant pleaded payment with leave, &c.</p> <p>It appeared that, on March 2d 1863, Henderson Monroe signed a note for $501.75, payable to Perry Monroe or bearer, with confession of judgment and waiver of inquisition and exemption. Two days thereafter judgment was entered thereon in the name of Perry Monroe, to the use of J. S. Koons. On February 29th 1868 and February 20th 1873, the defendant signed an amicable scire facias to revivo, with confessions of judgment thereon. On the 20th of February 1878, a scire facias to revive the judgment issued, and was served on defendant, when he obtained a rule to show cause why the original judgment should not be opened; which rule was made absolute, and this issue was then framed.</p> <p>At the trial, before Harding, P. J., the defendant testified, in substance, as follows: That Koons, the father of the equitable plaintiff, kept a country store, where defendant was in the habit of selling the produce of his farm and making purchases. At the time the note was signed, said Koons sent for defendant for the purpose of making a settlement; that the note was prepared and waiting his signature; that defendant asked how much his indebtedness was, and Koons replied, $501.75; that defendant replied, he thought that was a big bill, and he would like to look over Koons’s books; that the latter said he would go up stairs and find them, but returned, saying he could not find them, and insisted on defendant signing the note. Defendant still urged him to hunt up the books, and Koons went to look for them a second, and even a third, time, and that each time said, he could not find the books; that finally he said to defendant that if he would put his name to the note he would hunt up the books, and, as quick as he found them, ho would let him know, and he would look the account over, and if it was not right he would make it right; that defendant thought the balance largely in excess of what he owed Koons; but, being an ignorant man, and not able to read, and merely able to scratch his name, he had no written memorandum with which to show that Koons was in error; that Koons read over the note to defendant, but only read .the upper portion of it, which made it read like a simple promissory note; that Koons remarked to him, “ I will not ask you to sign a tight note, or one of those cut-throat notes, as they call them: it is nothing but a common note;” that defendant then signed the note, and heard nothing further in regard to it until the amicable scire facias to revive was brought to him, and that ho signed it without the least knowledge of its contents, and upon the renewed assurance that the books of Koons were to be examined and a settlement made, and that he signed the second scire facias under like circumstances; that he was never informed, and never knew, that there was a judgment against him until the third scire facias was served on him. The wife of the defendant corroborated him with respect to the revivals. When Koons’s son came to get the revival, she had protested that the transaction was dishonest, but her husband assured her it was the only way to procure a settlement, and that if he refused to sign it would make Koons mad, and he would never get a settlement.</p> <p>Koons’s testimony was in direct conflict with defendant’s. He testified that when the note was given, the books were on the table in front of them, and that they looked over them, ascertained the balance, and made the note accordingly. That the note was read to Monroe in full as it was written, and that he fully comprehended its import. Several witnesses testified that Koons’s reputation for truth was bad.</p> <p>The plaintiff submitted the following points, to which are appended the answers of the court.</p> <p>1. That if the jury believe that the note was read over to Henderson Monroe before he signed it, there was no fraud in the transaction, and the verdict should be for the plaintiff.</p> <p>Ans. Affirmed.</p> <p>2. That a contract originally fraudulent may be ratified without any additional consideration; that therefore, if Henderson Monroe signed the renewals as revivals of this judgment, without fraud practiced upon him at the time of signing such revivals, and negligently or carelessly omitted to have the same read to him, he would be estopped from denying the validity of the original judgment.</p> <p>Ans. Affirmed.</p> <p>3. That if the jury believe that at the time of signing the original note, or at the time of signing either of the renewals of the same, the defendant was aware of their contents, the verdict must be for the plaintiff.</p> <p>Ans. Affirmed.</p> <p>4. That there is no evidence in the case to show any fraud practiced upon Henderson Monroe at the time of the second renewal; that it was therefore an affirmance and ratification of the original contract.</p> <p>Ans. Affirmed, if the jury find the facts to be as stated.</p> <p>The defendant submitted the following points, both of which the court affirmed.</p> <p>1. That if the jury believe defendant was unable to read the note in evidence, and the plaintiff read it for him, leaving out the confession of judgment in his reading, thereby causing the defendant to sign a note, in ignorance of its true contents, the plaintiff cannot recover in this case, no matter what may be the state of their accounts.</p> <p>2. If the jury believe that defendant was induced to sign this note, or confession of judgment, under a mistaken idea of its contents, believing it to be a common promissory note, when in fact it was a judgment note, with waiver, caused by the fraud of William Koons, the party in interest, in reading to him a part only of the note as the whole, defendant would not be prevented from making defence to the note by reason of his signing the revivals, unless he was first made acquainted with the true contents of the original note.</p> <p>In the general charge the court, inter alia, said : “ The points which were read in your presence, and which were presented to me by the respective counsel, were affirmed, modified or negatived, as you remember. * * * [This, you will seo, is purely a question of credibility between William Koons, on the one side, and Henderson Monroe on the other; and it is the exclusive province of the jury, not of the court, to pass upon this important feature of the case.] You heard the defendant testify; under the law he is a competent witness ; his credibility is for you ; to some extent liis testimony was corroborated by that of his wife — certainly, as to the amount of the indebtedness existing between them. Again, if after the judgment had been thus given, it laid for five years, as is alleged on tho part of the defendant, and then a renewal was taken by Mr. Koons, or by some one for him, to Henderson Monroe, and the latter signed it, as he said ho did, upon the distinct understanding that the books were to be examined, and the basis of the actual indebtedness ascertained, then tho revival could not have given additional validity to the original debt. You must take these men as they are. You are intelligent, and know the relations and surroundings of people in tho country, situated as these two were. [If, at tho time the second revival was taken, Mr. Monroe was induced to sign it, as he says, that ho might get a statement out of Mr. Koons, the fact that he executed that second revival, gives no additional validity to the original judgment.] The credibility of the witnesses is for you. It is alleged that William Koons was impeached; six or seven witnesses swore upon the stand that liis reputation for truth and veracity was bad; you remember the other questions that were asked them by the counsel representing Mr. Koons. This is one of the methods known to the law of contradicting a witness. Now, is tho credibility of William Koons, as connected with this case, affected by the testimony? That question is entirely for you ; it is not for tho court, even to hint, in relation to it.”</p> <p>Verdict for defendant and after judgment thereon, plaintiff took this writ and alleged, that the court erred (fourth and fifth assignments of error) in the portions of the above charge included in brackets. His other three assignments of error were set forth as follows:</p> <p>1. That the court erred in not directing the jury that their verdict should be for tho plaintiff.</p> <p>2. The court erred in not answering plaintiff’s second point to the jury, either specifically by reading the same, or in the general charge.</p> <p>3. That the court erred in not answering plaintiff’s third point, either specifically by reading the same to the jury as a part of the charge, or substantially in the general charge.</p>

263. Scire facias sur mechanics’ lien, issued by E. T. Long against John M. Caffrey. The defendant pleaded “Nil debet.” The plaintiff entered into a written agreement to .build a house for defendant, the price to be paid in instalments as' the house progressed. The agreement also contained the following stipulations: “And it is further agreed that no mechanic’s or other lien shall be entered against said building by the said Long or the material contractor or workmen.