Volume 94 — Pennsylvania State Reports

<p>1. Where one grants the surface of land and reserves the mines beneath, the implied right of support to the surface, which passes with said grant, may, by apt words in a deed of conveyance he excepted from said grant, and where such exception has been made, the grantor or those who claim through him may mine all the coal, even though by said mining the surface should fall in.</p> <p>2. Jones v. Wagner, 16 P. P. Smith 429: Horner v. Watson, 29 Id. 242; and Coleman v. Chadwick, 30 Id., distinguished.</p>

172. This was an action by Driesbach & Co. against Morris & Walsh, before an alderman of the city of Wilkesbarre. On the 1st of February, 1876, judgment was entered against defendants for $89.25. On the 12th of February 1876, the justice made the following entry on his docket: “ Defendants tender a judgment of $80.00.” On the 14th of February 1876, defendants appealed. The case was tried before a jury, and verdict rendered for plaintiffs for $81.12.

<p>1. Where a chattel has been sold by a firm the surviving partner, when released from all liability on his implied warrantee of title by the vendee, is a competent witness for said vendee.</p> <p>2. It is not irrelevant to show the intimate relations of parties to show the motive for reposing confidence.</p> <p>3. In an action of replevin it is proper for the jury to find for the plaintiff some of the goods, and as to the rest for the defendant, and judgment may be entered on such a verdict.</p>

43. Attachment-execution by Norman White and D. K. Morss, assignee of said Norman White, against M. J. Decker and Andrew Halstead, defendants, and Silas Hartley, garnishee. Service was had on Halstead, one of defendants, and Hartley.

<p>A judgment was entered upon a wan-ant of attorney in a judgment-note. In order to stay execution upon the judgment, the defendant gave plaintiff new judgment notes for the original debt, and upon these notes judgments were entered. Upon a rule to open these judgments, the court decided against the defendaht upon the merits. Afterwards defendant applied for a rule to open the original judgment; Held, that the effect of the above decision of the court was the same as though a rule to open the first judgment had been taken and discharged. Held, further, that any defence to the first judgment, on the ground of fraud, could not be taken advantage of by defendant, as he was estopped from setting up such fraud by the subsequent delivery of othe.r notes.</p>

<p>Error to the Court of Common Pleas of Wyoming county ; Of January Term 1880, No. 20|-.</p> <p>Ejectment by the Pennsylvania and New York Canal and Railroad Company against Draper Billings for a piece of land in the borough of Tunkhannock.</p> <p>Plaintiffs are the owners of the North Branch of. the Pennsylvania Canal, which was constructed by the state of Pennsylvania in 1851. The canal with its embankment covered the land in dispute until the year 187 2, when, by the Act of Assembly of April 2d of that year, the plaintiffs were released from all obligation to keep the canal in repair. At the time the canal was built, the land in controversy was owned by P. M. Osterhout and Willard Jackson, under whom the defendant claimed title.</p> <p>The plaintiffs offered in evidence the Act of Assembly authorizing the construction of the canal; the Act of April 21st 1858, providing for a sale of the canal to the Sunbury and Erie Railroad Company, and'the proclamation, by the governor of said sale in pursuance of said.act; the Act of 1859, providing for the assessment and recovery of damages on the North Branch Canal, and the record entries of a suit for damages by Peter M. Osterhout and Willard Jackson against said North Branch Canal Company ; a judgment therein for plaintiffs, marked satisfied, plaintiffs receipting therefor in full; also Act of 1865, authorizing the North Branch Canal Company to change its name to the name of the plaintiffs.</p> <p>The defendant then offered in evidence various deeds tracing the title of Osterhout and Jackson back to 1807, when title was obtained from the Commonwealth; deed dated October 29th 1863, from Osterhout and wife, and John Jackson, executor of Willard Jaqkson, deceased, to M. C. Mercur, and deed from the latter, dated July 1874, to Billings the defendant.</p> <p>This deed was objected to for the reason that the previous mentioned deed purporting to give title to M. C. Mercur, reciting that the land is covered by the North Branch Canal under the public law of the state, shows that it conveyed no title to M. C. Mercur, and that other title must be shown in M. C. Mercur to enable this deed to Draper Billings to be given in evidence. Objection overruled.</p> <p>Defendant then offered to prove by the testimony of Osterhout that the canal, as originally staked out and surveyed, was to cut the northern portion of the land in dispute, but that .the owners, asked the engineers to- make a basin for their benefit, and to run a bank near the northern ling of the lot, and that it was the understanding that the basin as constructed was on the property of these said owners. , Objected to because the fact should be shown by written authority from the ofiicers of the Canal Navigation Company. Objection overruled.</p> <p>Also, to show by the same witness that there was a dispute between him and Mr. Mercur as to just what the company should pay for eanal damages, so that the parties finally agreed that Messrs. Osterhout and Jackson should give Mr, Mercur a deed for the whole of this land; that there was no consideration between Mr. Osterhout and Mr. Mercur for the damages ; that Mr. Osterhout sold to Mr. Mercnr the whole of this land, and that the receipt was placed upon the records after the deed was given, as the inducement held out to Messrs. Osterhout and Jackson for the purpose of getting them to sign this receipt and execute this deed; also, that the time for adjusting had expired. Objected to as being entirely irrelevant. Objection overruled.</p> <p>The following points were submitted by plaintiff, to which are appended the answers of the court, Ingham, P. J.:—</p> <p>1. Under the evidence in the case, if you are satisfied that the state of Pennsylvania constructed a portion of the north branch of the Pennsylvania Canal its canal basin or embankment on the land in controversy in this case, your verdict must be for the plaintiff for all the land in dispute that was so taken by the state.</p> <p>Ans. “ We affirm this point, adding the words ‘ for permanent use and operated as a canal,’ so that it will read, ‘ its canal basin or embankment for permanent use and operated as a canal on the land in controversy in this case, &c.’ ”</p> <p>2. If the laud described in the deed offered in evidence in this case by defendant from P. M. Osterhout and wife, and John Jackson, executor of Willard Jackson, deceased, to Mablon O. Mercur, dated October 29th 1863, was for a part of the North Branch Canal, it conveyed no title to him.</p> <p>Ans. “ This we affirm as being the law."</p> <p>' 3. P. M. Osterhout and Willard Jackson having filed their claim against the North Branch Canal Company for damages for land, including this in controversy in this case, under the Act of 12th April, A. d. 1859, providing for the assessment and recovery of damages upon the North Branch Canal, and obtained judgment thereon, and that judgment was paid, they and all claiming under them are estopped from claiming title for this land against the North Branch Canal Company, and those claiming under them, unless they claim under a different title from that held by P. M. Osterhout and Willard Jackson at the time they filed said claim.</p> <p>Ans. “The object for which the claim of P. M.,Osterhout and Willard Jackson was filed we regard as a matter of evidence, and we will submit the question to the jury under the evidence, there being no record in the present suit of the nature of the claim changing the point to this form : ‘ If P. M. Osterhout and Willard Jackson have filed their claim against the North Branch Canal Company for damages for land, including this in controversy in this case,’ the only evidence of ivliat that claim contained is parol evidence, and is properly within the province of the jury to determine.”</p> <p>The court also charged: “ If you believe that the canal basin was constructed at the instance of Osterhout and Jackson for their benefit, and was not taken for permanent use for canal purposes by the state, then the Commonwealth could not take an estate in perpetuity.by the overflow of water on the land of Osterhout and Jackson described in the writ.”</p> <p>The verdict was for defendant; and, after judgment thereon, plaintiff took this writ, and alleged that the court erred in admitting the above evidence ; in the answers to the first and third points of plaintiff, and the portion of the charge above noted.</p>

<p>1. A. and B., in dissolving pai’tnership, agreed that A. should accept certain lumber piled upon the ground of a third person as his share of the partnership property, for which A. took a bill of sale. The land was subsequently sold by the sheriff, on a judgment against B. and another. A. gave notice at the sale that he owned the property. In trespass by A. against the sheriff and execution creditor, Held, that it was properly- submitted to the jury to determine whether the evidence of assumption of control by plaintiff , was bona fide or merely colorable, and whether it was enough to give notice to the world.</p> <p>2. McKibbin v. Martin, 14 P. F. Smith 352, followed.</p>

<p>1. A grantor in a deed may avoid his conveyance by proof that he was non compos mentis at the time of its execution, where there is no evidence of ratification after restoration to reason.</p> <p>2. To avoid his deed, it is not necessary that an insane man should put the grantee in statu quo, for one of the obvious grounds on which the deed of an insane man is held voidable is not merely the incapacity to make a valid sale, but the incapacity prudently to manage and dispose of the proceeds, Hence to avoid his conveyance no previous offer of restitution is necessary.</p> <p>3. A committee cannot be appointed to bring suit for a sane man, because at one time he was a lunatic. He must bring suit himself to recover his rights, and may prove insanity to avoid a deed set up against’ him on the same terms as if he were defendant in the action, and the plaintiff were supporting his case with the same deed.</p>

<p>In ejectment, the plaintiff showed title in C. The defendants set up title by possession, commencing with D. In rebuttal, plaintiff proposed to show that D.’s possession was not adverse to plaintiff’s title; that said possession was obtained by virtue of a contract with C.; that O. subsequently brought ejectment against D. and recovered; that to avoid being ousted, D. leased the land from C., and had executed a writing agreeing to deliver up possession at a certain time: Held, that this evidence was competent in rebuttal. Held, further, that under such circumstances it might be left to the jury to infer whether there was not a mistake in such contracts, leases, &c.</p>

<p>Certiorari to the Court of Common Pleas of Schuylkill county: Of January Term 1880, No. 75.</p> <p>In the matter of the exceptions to the report of B. S. Patterson and others, special auditors, appointed to re-audit the accounts of the public officers of the borough of Frackville.</p> <p>The borough of Frackville Avas incorporated under the general borough laws of Pennsylvania on the 10th of April 1876. In the year 1877, Daniel Frack and H. H. Price AA’ere appointed by the town council- of said borough treasurer and tax collector, respectively, for said borough for the year 1877. These appointments they accepted and filed their official bonds in pursuance of section 1 of the Act of February 17th 1859. Their accounts for the year ending March .31st 1878 were audited by the borough auditors, who reported that there was a balance of $303.32 due the borough on account of Frack, and a balance of $373.33 on account of Price. This report of the auditors was duly filed in the Court of Quarter Sessions. No appeal was taken by either accountant. On the 12th of February 1879, a petition was presented to the Court of Common Pleas by the accountants and certain taxpayers asking for the appointment of special auditors to revise, re-state and re-settle said accounts as directed by the third section of the Act of February 17th 1859, entitled, “ An act to secure a stricter accountability of certain public officers in Schuylkill county,” which makes the following provision :—</p> <p>“ That upon the petition of ten or more taxpayers of any town ship or school district, in said county of Schuylkill, verified by the oath or affirmation of two or more of said petitioners, setting out reasons therefor, the Court of Common Pleas of the said county of Schuylkill shall, in their discretion, upon the sufficiency of the reasons set out in said petition, appoint three or more special auditors to revise, re-state and re-settle any of the accounts filed in the office of the Clerk of Quarter Sessions according to the provisions of the second section of this act; the report of said board of special auditors, when approved by the court, to be final and conclusive ; and if any balance shall appear by said report to be due to such township ór school district from the. accounting officer, the said court shall order the enforcement of the payment of such balance with interest, by judgment upon the official bond of such officer and execution thereupon, which bond shall be removed into the office of the prothonotary of the Court of Common Pleas for the purposes of such judgment and execution.”</p> <p>The court, Walker, A. L. J., granted the petition, and appointed Messrs. Patterson, Guldin and Wilson special auditors. On May 19th 1879, they filed their report, finding that Frack and Price were not indebted to the borough.</p> <p>To this report the borough officers and certain taxpayers filed exceptions, the first being as follows: “ There was no authority for the appointment of the special auditors, under the Act of 1859, as that act, in the section authorizing the appointment of special auditors, refers only to townships a-nd school districts.”</p> <p>The court, Bechtel, A. L. J., dismissed the exceptions and confirmed the report, when the exceptants took this writ, and assigned this action for error.</p>

<p>Error to the Court of Common Pleas of Susquehanna county: Of July Term 1879, No. 73.</p> <p>Debt by Louisa Rohkopp against the Odd Fellows Mutual Life Insurance Company, to recover the amount of a policy of insurance upon the life of Ernest Rohkopp, husband of the plaintiff, and the amount of which policy was payable to her.</p> <p>The policy was dated September 16th 1872, and contained the following clause: “ It is further agreed and understood, that if he (the assured) shall become so far intemperate as to seriously or permanently impair his health, or induce delirium tremens, then this company shall not be liable.”</p> <p>Plaintiff put in evidence the policy, and proved the death of her husband, and closed.</p> <p>The defendant then made the following offers:—</p> <p>1. To show by the witness that Ernest Rohkopp was an habitual drunkard for a number of years up to 1872; that he had created an appetite which had become fixed upon him, but that it had not seriously injured his health at that dare; to be followed by the testimony of experts that the amount he had drank before and the amount he drank afterwards was sufficient to seriously impair a man’s health.</p> <p>■ 2. To show that from 1872 down to the time of his death, the deceased grew fleshy, his face and nose became red, that he was bloated, and that he had all the appearance of a drinking man; to be followed by the evidence of an expert that such are the symptoms of hard drinking.</p> <p>3. To prove that the witness had a conversation with Ernest Rohkopp in 1874 respecting his drinking, and what Rohkopp said in reply.</p> <p>The plaintiff objected to these offers as incompetent, irrelevant and immaterial, and the court sustained the objections.</p> <p>The court, Waller, P. J., alluded to the above condition of the policy, and charged: “You have heard the evidence upon these points, and we propose to submit this question to you as the only one in the case. If the evidence satisfies you that Ernest Rohkopp, after the issuing of this policy and the making of this contract, became so far intemperate as to seriously or permanently impair his health, then the plaintiff -would not be entitled to recover in this action.”</p> <p>Verdict for plaintiff for $2066.40, and after judgment thereon, defendant took this writ, alleging that the court erred in rejecting the above offers.</p>

267. Appeal of Harriet Horton from the decree of the court in the matter of the guardianship account of Henry W. Wheaton. Wheaton was the guardian of the appellant, and filed his final account February 26th 1874. Among the exceptions of the Avard was ohe to an item of credit for $825 claimed by Wheaton for the hoard of his Avard for two hundred and sixty weeks.

<p>Error to the Court of Common Pleas of Susquehanna county : Of July Term 1879, No. 118J.</p> <p>This was an issue framed upon a judgment which had been opened, wherein J. S. Little and II. P. Little, executors of Mary Little, were plaintiffs, and W. W. Winton, president of the- Second' National Bank of Scranton, defendant.</p> <p>At the .trial, before Waller, P. J., it appeared that on the 2d of December 1872, J. S. Little being indebted to- the Second National Bank of Scranton in the sum of $2955.17, applied to W. W. Winton, president, at the- Bank, for a loan of $4000, to pay this and other indebtedness-. The president agreed to loan the amount for one year at 10 per cent, interest, if' Little would get his brother, H. P. Little, and his mother, Mary Little, to sign a judgment note for the amount. The same- day the note in question was signed by these parties for $4400, at one year, the interest being included in the note. When the note was received at the bank, on the 3d, the amount of $4000 was passed to the credit of J. S. Little. Judgment was- entered on this note December 4th 1872, in Susquehanna county, where H. P. Little- and Mary Little resided, and an exemplification of the record filed' in Wyoming county, where J. S. Little resided; the lands which-the judgment bound being situated in those counties.</p> <p>The note not being paid at matui’ity, a writ of fieri facias was-issued March 3d 1876, and levied on the lands, whereupon H. P. Little and Mary Little made affidavit that they were sureties for J. S. Little, and that plaintiff had released land from- the lien- of</p> <p>the judgment without their consent, of sufficient value to pay the judgment. The sheriff was thereupon enjoined from selling; and a rule to open the judgment granted November 21st 1876. An additional affidavit was filed by leave of court, which set forth that there was some $800 in the hands of the assignee in bankruptcy' of J. S. Little, which should be applied in payment of this judgment; that Little had other real estate of the value of $3000; that he had paid $640 on the judgment for which no credit had been given, and that he had, without the knowledge or consent of the defendants in the judgment, made an agreement with the principal debtor, upon consideration, to extend the time of payment for one year.</p> <p>In January J877, the rule to open the judgment was made absolute, and on November 17th 1877, the death of Mary Little was suggested, and II. P. Little, her executor, substituted.</p> <p>On April 27th 1878, a new affidavit was filed, setting forth that defendant had permitted the lien of the judgment to expire against land of J. S. Little, and that the United States- District Court had authorized the sale of J. S. Little’s property,- discharged of the lien of this judgment, but bound by the lien of other and subsequent judgments, and leave was granted to enlarge the issue made by the other affidavits, if the court, on the trial, should be of opinion that the facts set forth constituted a defence.</p> <p>The issue came on for trial at April Term 1879, when the filing of this supplemental affidavit enlarging the issue was objected to, on the grounds: 1. That the facts set forth constituted no defence to the action. 2. That a new cause of action could not be set up after the death of one of the parties, which had changed the rules of evidence and would jeopardize the rights of plaintiffs.</p> <p>The objections were overruled. (First assignment of error.)</p> <p>The plaintiffs proposed to 'prove that an arrangement was made between Mr. Winton, acting for the bank, and Mr. J. S. Little, to release certain real estate owned by the latter from the lien of the judgment, and that in pursuance of that arrangement a written release was secured of certain property, and was filed and is of record in this case.</p> <p>'T'hey also stated that they did not propose to show that the directors passed a written resolution authorizing this release, but that upon the faith of the release a portion of the property was sold, and that it was procured for the purpose of enabling said Little to sell, and that he did sell and used this release for the purpose of showing that there was no judgment upon the property; that it ivas put upon the records of this court and stood there for five years; that no act was done in any manner by the directors affecting or repudiating it.</p> <p>The release was signed “W. W. Winton, president.” There was nothing in the offer to show that the bank or any of its officers knew of the release, nor was there any note of it made on the judgment docket.</p> <p>Objected to; especially that it does not purport to be a release by the Second National Bank of Scranton; that it purports to be a sealed release and is not sealed by the corporation; that there is no authority shown, or proposed to be shown, from the directors to W. W. Winton to sign or seal this paper release, or any other release ; or to give any release to J. S. Little releasing the lien of the judgment. Objections overruled. (Second assignment.)</p> <p>The plaintiffs then proposed to réad depositions of Mary Little and H. P. Little taken before a justice of the peace upon rule and notice during the lifetime of Mary .Little. Objected to on the ground that there is no proper certificate; it does not recite that they were reduced to writing by the justice, nor that they were subscribed to in his presence by the parties. Objection overruled, because they were taken in the presence of both parties and have been on file. (Third assignment.)</p> <p>The plaintifls presented the following points, to which are appended the answers of the court :</p> <p>1. If the jury believe that the judgment in this case was given to secure future advances to be made to the principal debtor, J. S. Little, by the Second National Bank of Scranton, the judgment was absolutely void, and the plaintiff therein cannot recover.</p> <p>2. If the judgment in this case was given in part to secure future advances to be made to J. S. Little, and in part to secure the payment of a debt already due the bank by J. S. Little, the judgment is void as to the part given to secure such future advances, and as to that part the plaintiff therein cannot recover.</p> <p>Ans. “You will perceive that this presents questions of fact which we have already submitted to you, and we have virtually answered these two points in our general charge. We now, however, affirm these propositions, with the qualification that it is for you to ascertain from the evidence whether these facts are established.” (Ninth and tenth assignments.)</p> <p>The following were among the points of defendant, with the answers of the court thereto :</p> <p>5. That the sureties having shown no authority in W. W. Win-ton to execute the release of the lien of this judgment, the same is not valid and binding upon the plaintiff in the judgment and does not operate to release' the sureties unless the act was. ratified by the plaintiff subsequently.</p> <p>Ans. “We decline this proposition, and leave it- with such suggestions and instructions as we have already given you upon that point.” (Eleventh assignment.)</p> <p>6. That there can be no ratification of an act of an agent of which the principal has no knowledge, and the mere fact of filing a paper purporting to be a release in the Common Pleas docket of a county distant from the place of business of a bank, is no evidence of notice to the bank.</p> <p>Ans. “ This proposition we cannot affirm. The bank is the plaintiff in the judgment, and is bound to understand the situation of its own record and its own claims. It would be a natural presumption that bankers are pretty sharp ordinarily in attending to their business, and would hardly allow a record to stand with a release of land which would be subject to the lien of the judgment for a period of four or five years filed in the case in which they had their judgment. Besides that, we have the evidence of the fact that the release was executed at the bank by Mr. Winton, and was done in the same manner and between the same persons that the original loan was negotiated, and the note given was signed in the same manner and made payable to W. W. Winton, president, or ‘pres’t,’ which signified president, and that the lease was filed as executed by the parties under these circumstances.” (Twelfth assignment.)</p> <p>8. That the release in evidence is not the release of the defendants in the issue, and they are not bound by it.</p> <p>Ans. “ We will have to decline that proposition. We have left it to you as a question of fact under the evidence whether it is the act of the defendants or ratified or approved by them.”' (Thirteenth assignment.)</p> <p>9. That the failure of a creditor to revive a judgment does not discharge a surety unless there has been an express agreement at the time of signing the note or giving the judgment that the same should be kept revived for the benefit of such surety, and there is no evidence of such agreement on the part of the defendants in the issue with the sureties or either of them, and upon this point the verdict must be for the defendants in the issue.</p> <p>Ans. “We decline that proposition, with the qualification that a creditor could not release property that was bound by the judgment without releasing the sureties. If he could not do it by a direct act, he certainly could not do it by so negligently looking after the security of the principal as to let his property slip out from the lien of the judgment and then look to the security for it.” (Fourteenth assignment.)</p> <p>11. That upon the whole evidence the defendants in this issue are entitled to recover-the amount of the judgment, less the two payments of $400 each and the sum of $869.60 received from W. T. Moxley, assignee.</p> <p>Ans. “We cannot, of course, affirm that proposition under the instructions which we have given in the general charge.” (Fifteenth assignment.)</p> <p>In the general charge, the court, inter alia, said: “ But it is alleged that this judgment wa3 given to a national bank for the security of money to be advanced. We propose to submit to you as a question of fact whether it was given as security for advances to be made. When, if you find that it was a national bank (and we shall have to take the party itself as it stands upon the record, and put itself into this court, claiming to be such), and if you further find that this judgment was given as security for money to be advanced or loaned in the future to J. S. Little, then the judgment would be void as against the sureties,' and there would be no recovery in this case in favor of the plaintiff in the judgment. If, however, it was given part for debt accrued and due from Little to the bank, and in part for loans to be advanced to him afterwards, then you will ascertain how much was due from Little to the bank at the time the judgment-note was given, to wit: the 2d of December 1872, because that part which was - actually due from Little to the bank at that time was a proper subject-matter to be secured by a mortgage or judgment-note, under the laws of the United States authorizing the organization and management of national banks, under the law which is particularly known as the National Bank Law. The law makes a difference between debts accrued and debts to be created, or loans to be effected afterwards. That distinction is attempted to be made here as between a mortgage and a judgment. A judgment, it is said, might have accrued and not been entered up. But Ave will leave to you as a question of fact, under all the evidence, whether it was in contemplation of the parties at the time to give that judgment for money already loaned and for money to be loaned, or for the security that the judgment would afford the bank by reason of the lien it Avould have upon the real estate. If that Avas the ground or basis of the contract, and the foundation of that transaction, then it was taking security upon real estate for loans to be made afterwards; that is, if you find the fact to be that Little did not owe them the actual amount of $4000: and the law does not permit the taking of security upon real estate by a national bank as regards advanees to be made subsequently. If you arrive at the conclusion that this note Avas given in part for money due and in part for money to be loaned afterwards, it will be necessary for you to determine the amount that Avas actually due to the bank when that note Avas given, and take that part and compute the interest on it up to the time these various payments were made, deduct the payments from the-amount of the principal Avith interest added, and ascertain Avhether there is any balance due, and if so, how much to the plaintiff in the judgment.” * * * (Fourth and fifth assignments.)</p> <p>“You have heard the evidence in regard to the release which has been referred to, and we propose to submit to you as a question of fact Avhether that release was executed properly. That is, whether it was made properly by W. W. Winton, as president of the bank, with the approval of or subsequent ratification by the bank itself.” * * * (Sixth assignment.)</p> <p>“ You will consider them all, and ascertain whether there is in the evidence sufficient to warrant you in the conclusion that W. W. Winton acted as the president of that bank by the authority or appi’oval or consent of the bank in that matter, and in connection with that you will take into consideration -the fact that they had a judgment upon the records of this court, placed there by themselves, and they could be reasonably expected in law to know the condition of their own judgment as it showed upon the record.” * * * (Seventh assignment.)</p> <p>“If you find that this release was made by Winton with proper authority, or proper approval, then you will deduct from this judgment the value of so much land as was released, as established by the evidence.” (Eighth assignment.)</p> <p>“ We have instructed you that you will ascertain whether the ■ judgment was valid under the Act of Congress, and whether it was in whole or in part a security for loans to be effected thereafter ; and to the extent that it was given for debts of J. S. Little to the bank, existing at the time, it was a good and valid judgment up to the time the release was executed; and at that time you will ascertain the value of the property released and deduct it from the amount of the judgment and interest up to that time, deducting the payments that ar.e specified here — two $400 payments and one of $869.60 — and so make your computation in regard to the amount.” (Sixteenth assignment.)</p> <p>Verdict for the plaintiffs in the issue; when Winton, the defendant in the issue, took this writ, and alleged that the court erred as set forth in the above assignments of error.</p>

<p>Appeal from the Court of Common Pleas of Schuylkill county: Of January Term 1880, No. 327.</p> <p>Libel in divorce by Sophia Kepner, by her next friend, Levi Huber, against S. K. M. Kepner.</p> <p>On the 25th of January 1869, Sophia Kepner filed her libel in the Court of Common Pleas of Schuylkill county, upon which the court awarded a subpoena, which was returned non est inventus, and thereupon, on the 1st of March 1869, the court, upon motion, awarded an alias subpoena to June Term 1869. This alias subpoena was also returned non est inventus by the sheriff, and publication was made for four weeks in July 1869,' notifying the respondent to appear at September Term 1869. On the 7th of June 1869, the court appointed an examiner to take depositions ex parte libellant and report the same to the court to September Term 1869. On the 30th of June 1869, depositions of the petitioner were taken, which were filed in court on the 6th of September 1869, and on the same day the court decreed that libellant be divorced.</p> <p>On the 5th of May 1879, the respondent presented his petition, praying for a rule on the libellant to appear and show cause why the decree should not be revoked. The court took the papers, and on the 19th of May 1879, filed-them, together with an order refusing the rule, with the verbal announcement that the respondent had waited too long to make his application. On the 25th of August 1879, the respondent presented an additional petition alleging the time of his first knowledge of the decree of divorce to he September 1878; and on the 16th of February 1880, the court again refused a rule, and the petitioner excepted to the order of the court. When these petitions were presented and the rule prayed for, the counsel for the respondent claimed that the decree of divorce was void for want of jurisdiction; that it was not justified by the depositions ex parte libellant, she not having proved that she was a citizen of Pennsylvania or had resided therein for one year previous to filing her libel.</p> <p>The court refused the rule, when the respondent took this AVrit, alleging that the court erred in refusing to grant the rule; in the appointment of the examiner and decreeing a divorce upon the depositions ex parte libellant; in the decree of divorce before notice of publication had been returned, and in not dismissing the libel for Avant of jurisdiction.</p> <p>When the case came on for argument in the Supreme Court, the appellee’s counsel moved to quash the writ on the ground that the refusal of the court to grant a rule to show cause why the decree should not be revoked was a discretionary act, and Avas not the subject of review.</p>

<p>Appeal from the Court of Common Pleas of Schuylkill county. Of January Term 1880, No. 331. In Equity.</p> <p>Bill in equity filed by Margaret Dando, by her next friend, Harrison A. Kerr, against George Batten.</p> <p>The bill alleged that Margaret Dando is a married woman, and has been for the last twenty years living with her husband in charge of his family, and as such was well known to the defendant. That she was seised in her own right, and not acquired from or in any way by or under her husband, of twenty shares of the capital stock of The First National Bank of Minersville, and the certificate was issued to her and was held by her. That on or about the 4th of May 1874, she, with her husband, made a joint and several promissory note in form what is generally called a collateral security note, and was (as near as she is able to say, having applied to the defendant for a copy of the same, which was refused), as follows:—</p> <p>“Minersville, May 4th 1874.</p> <p>“$1035.00.</p> <p>“ Six months after date we or either of us promise to pay to the order of George Batten, one thousand and thirty-five dollars, for value received, without defalcation. Along with the foregoing obligation we have delivered to said George Batten certificate No. 65, for twenty shares of the capital stock of The First National Bank of Minersville, as collateral security for the payment of the same on the day it becomes due, which -collaterals we hereby authorize and empower the holder of this promissory note (provided the same be not paid at maturity) to sell and transfer at public or private sale, without further reference or notice to us, and to apply the proceeds in payment thereof, together with interest and charges incurred thereon ; thereafter should any deficiency remain unpaid, we further promise and agree to pay the same to the holder hereof on demand.</p> <p>Stephen Dando.</p> <p>No. Due. Margaret Dando.”</p> <p>That with said note said certificate of stock was deposited with George Batten, the defendant. That no part of the proceeds of said note was paid to her, nor were they used by her for necessaries for her family, nor for the improvement of her real estate, and believing said transaction was illegal and void, she notified the said bank not to transfer said shares of stock to said Batten, nor to allow the same to be done upon the books of the bank, and said Batten was also duly notified that she claimed said shares of stock, and she demanded of him to return the certificate to her, but he neglected and refused to return the same to her. That said Batten disregarded her rights, refused to return to her the certificate, and had advertised the same to be sold at public sale on the 5th day of April 1879.</p> <p>The bill prayed that the defendant be enjoined from selling said stock, and that he be directed to deliver said stock to the complainant.</p> <p>The answer admitted that the complainant was a married woman. That she had in her own name twenty shares of the capital stock of said bank, and that the certificate was issued to her therefor, but averred that of the mode of her acquiring it defendant had no knowledge. The answer then set forth a copy of .the original paper similar to that contained in the bill, with the exception that the words “Along with the foregoing obligation we have delivered twenty shares of the stock of” were substituted for the words “Along with the foregoing obligation we have delivered to said George Batten cer-' 'tsficate No. 65, for twenty shares of the capital stock of.” The answer further averred that at the time said note was executed, and the certificate for- twenty shares of stock and the note were delivered to defendant, he advanced and paid upon said securities the sum of $1000, the sum of $35 being for interest thereon until maturity of the note. That both the said Margaret and her husband were present at the time the money was paid by the defendant — as to whether the said sum of money was received by and ■for the sole use of the said Margaret, or for the separate and sole use of the said Stephen, or for their joint use, the defendant was not informed; but that said sum was paid to them at the time for and in consideration of the said shares of stock being so transferred and delivered as the security for the re-payment of said sum of money. That the note was not paid at maturity nor since (except $180 interest), but that the full amount of the note, with interest since maturity, is due and unpaid and owned by the defendant. That he has no knowledge whether the money was used for complainant’s benefit or not, and admits the notice to the bank not to transfer, &c., and to himself the claim of ownership, the demand of the return of the certificate of stock, and that he had advertised and was about to sell the same at public sale.</p> <p>An amendment of the bill -was allowed, setting out that the bank was organized under the Acts of Congress, and was not a corporation created under or by the laws of Pennsylvania, with a copy of the certificate of stock, which showed that the certificate was only transferrible on the books of the bank by complainant or her attorney on return of this certificate.</p> <p>The case was heard on bill .and answer, and the court refused the injunction and dismissed the hill, in an opinion, inter alia, saying:</p> <p>“ In so far as the writing, thus signed, promises to pay to the defendant the sum of $1035, it is, as against her, worthless. But this instrument contains much more than a promise to pay money. It is her written authority to the defendant, or the holder thereof, to sell or transfer at public or private sale her twenty shares of stock, and it is accompanied with the actual delivery of the certificate of stock itself. The property in question is’ personalty, and the method of its transfer is not prescribed by the Act of 1848. In Hinney v. Phillips, 14 Wright 382, Justice Agnbw said, ‘before the passage of the Act of 1848, securing the separate estate of married women, it was well settled that a wife might dispose of such estate (personally) by gift or loan. * * * Since the passage of that act, her power over her own estate is not less, in this respect, than it was" before.’ The provision that her estate shall' not he sold, conveyed, mortgaged or encumbered by her husband without her written consent, given in the mode provided by the act, is not a restriction upon her own power of disposing of her money or other property capable of transfer by delivery, but was intended to protect her from his unauthorized acts.. Ruling of like character is found in Haffey v. Carey, 23 P. F. Smith 431, and Bond v. Bunting, 28 Id. 210, in the latter of which, her assignment of a portion of a life insurance policy upon the life of her husband, for the benefit of his children by a former marriage, without transfer of the possession of the policy to the transferees, without consideration and without acknowledgment, was held good as against her after the death of her husband, he having joined in the transfer or assignment thereof. There is no allegation of fraud or coercion in obtaining her signature to the writing in question. It is true 'she did not acknowledge this instrument ‘separate and apart from her husband’ though he joined her in its execution. But that a married woman may assign or transfer property like that in question, without an acknowledgment, was decided in Bond v. Bunting, supra, and other cases there cited. In addition to these authorities, we find recent legislation upon this subject. By the Acts of April 1st 1874, Pamph. L. 49, and May 14th 1874, Pamph. L. 158, additional powers seem to have been conferred upon her. And for the purpose of selling and transferring much of her personal property she is enabled to act as though she were unmarried. The certificate of stock was delivered to the defendant at the time of the delivery of the writing and the receipt of the money. The property in question was capable of no other delivery. The writing contains the power to transfer, the money remains unpaid, and the transaction assumes the character of an executed contract, no act of hers being required to its completion. Under the ruling in Fryer v. Rishell, 3 Norris 521, we think her right to equitable relief is, to say the least, doubtful, and to doubt the legal right of an applicant to an injunction is to refuse it.”</p> <p>The court subsequently said: “After final hearing and a reexamination of the entire case, we fail to find any reason for changing the conclusion at wdiich we arrived upon the hearing for a preliminary injunction. Our conclusions were then reduced to writing, and filed of record. The authorities therein referred to, we think, determine the questions before us, hence we .can but dismiss the-bill.”</p> <p>The complainant took this writ, and alleged that the court erred in refusing the injunction and dismissing the bill.</p>

Appeal to the Court of Common Pleas of Schuylkill county: Of January Term 1880, No. 314. Amicable action in debt and confession of judgment, wherein H. P. Stichler, trustee, was plaintiff, and Peter G. Mailey defendant. Mailey was the owner of a leasehold estate with the right to mine coal and erect a breaker.

<p>Error to the Court of Quarter Sessions of Schuylkill county: Of January Term 1880, No. 278.</p> <p>Two indictments against Charles E. Luberg. The first, No. 268, May term 1878, charged him as receiving teller of the First National Bank of Mahony City, with receiving the moneys, &c., therein named, and unlawfully, maliciously, wilfully and fraudulently embezzling, abstracting and misapplying the same, with intent to injure and defraud, in the first count, the bank, and in the second count, the individual stockholders.</p> <p>The second indictment, No. 269, May term 1878, charged him with having, as the receiving teller of the said bank, unlawfully, maliciously, wilfully and fraudulently made false entries in the books, reports and statements of said bank, with intent thereby to injure and defraud said bank.</p> <p>The bank was incorporated as a national bank under the laws of the United States.</p> <p>Defendant pleaded “ Not Guilty,” and was found guilty under both indictments. On the first he was sentenced to an imprisonment of one year, and on the second to another year’s imprisonment, to take effect immediately on the expiration of the first. Defendant took this writ, and alleged for error that the court had no jurisdiction over the offence charged in either indictment.</p>

<p>Error to the Court of Common Pleas of Schuylkill county: Of January Term 1879, No. 237.</p> <p>Ejectment, brought in 1863, by Nelson Brandon and Henry Snyder against Andrew Fritz, Henry Fermier et al., to recover a tract of land in Union township, Schuylkill county, containing two 'hundred acres, or thereabouts, bounded by land surveyed to James Smith, Christian Immel, John Klinger, and others. Plea, not guilty. Edward S. Sillyman and James B. Boylan were subsequently added as plaintiffs.</p> <p>The case came before the Supreme Court on a previous writ of error. See Fritz v. Brandon, 28 P. F. Smith 342; s. C., 2 W. N. C. 164.</p> <p>The case was tried 20th January 1879, before Pershing, P. J. The plaintiffs asserted their title to the land in controversy by an •application of John Bitler, dated March 16th 1827, for one hundred acres of.land; a warrant dated 21st March 1827, to John Bitler, for one hundred acres of land, “being unimproved, adjoining land surveyed for James Smith on the east, and on the south, west and north vacant,” situate in the township of Union, in the county of Schuylkill; and a survey made under this warrant by George Beber, deputy surveyor, dated 22d June 1829,- for one hundred and ninety-nine acres sixty-three and a half perches, and allowance for roads; and the return, endorsed “Accepted the 17th October 1829.” * * * They then introduced, under objection and exception, parol evidence that John Bitler took up this land in trust for his two daughters, Hannah and Elizabeth, and that they furnished him with the money with which to. pay for the survey and the fees of the land office; also that John Bitler executed a deed of conveyance of the same to Hannah and Elizabeth in 1829 or 1830, and that this deed is lost; that Hannah Bitler sold her interest in the John Bitler tract to her sister, Elizabeth Bitler. Also, under objection and exception, parol evidence that 'Elizabeth Bitler paid the taxes upon this tract from the year 1829 to 1841; and tax receipts of the supervisor of Union township to Hannah and Elizabeth Bitler for thirty-eight cents for road tax in 1834, and for four and a half cents for the year 1840, dated Union township, 1839. * * * They then gave in evidence, under objection and exception, the transcript-book of triennial assessments for Union township, with assessments to Hannah and Elizabeth Bitler, as follows: For the years 1832, 1833 and 1834, “ one hundred acres mountain land, fifty acres do.;” for 1835, 1836 and 1837, “ sixty acres unseated land ;” for 1838 and 1839, “ Bitler, Elizabeth, one hundred and three acres land; Bitler, Elizabeth and Hannah, thirty acres land on the Green Mountain,” and for 1840, “ Bitler, Elizabeth and Hannah, thirty acres land on the Green Mountain;” for. 1841, “thirty acres unseated land;” for 1842, “three hundred acres land unseated;” for 1843, “Bitler, Elizabeth, one hundred and three acres of land; Bitler, Elizabeth and Hannah, three hundred acres unseated land.” The plaintiffs alleged that these assessments to Hannah and Elizabeth Bitler refer to the land in controversy; also that this land was assessed as seated land until the year 1841, after which date it was transferred to the unseated list without notice to Hannah and Elizabeth Bitler, the owners. They introduced under objection and exception, the testimony of a clerk in the office of the county commissioners, to prove that the list of assessments given in evidence was a seated list; it appeared, however, upon cross-examination, that the list was a “ mixed list,” in which there were assessments both of seated and of unseated land.</p> <p>They then gave in evidence, under objection and exception, a deed dated 18th December 1858, Elizabeth Bitler to Nelson Brandon, for “ all her right, title and interest of, in, and to any and all real estate in the county of Schuylkill to which she may be entitled;” a deed dated 16th April 1860, Elizabeth Bitler to Henry Snyder, for “ the undivided one-half part of a certain tract in Union township, Schuylkill county, containing one hundred and ninety-nine acres sixty-three and a half perches, and a release dated 17th April 1860, Nelson Brandon to Henry Snyder, for the same. Then also two deeds, conveying respectively undivided interests in this tract, the one dated 16th January 1872, from Henry Snyder to James B. Boylan, and the other dated 23d December 1872, from Nelson Brandon to Edward S. Sillyman.. They introduced, under objection and exception, the testimony of witnesses to prove that Nelson Brandon had exercised acts of ownership upon the John Bitler tract; that he had built a log house upon it, and had shafted for coal there. They then gave in evidence the receipt of Henry S. Magraw, state treasurer, dated 9th August 1856, to Nelson Brandon, for $73.40, purchase-money and interest due to the Commonwealth upon one hundred and ninety-nine acres sixty-three and a half perches, surveyed in the name of John Bitler, and $10 for patent fees. Also transcript of Union township, from 1854 to 1860, with divers assessments of seated and unseated lands, to John Bitler, deceased, Nelson Brandon and Hannah and Elizabeth Bitler, and, under objection and exception, treasurer’s extract book, to show payment of taxes upon the John Bitler tract from 1854 to 1857, inclusive. The plaintiffs then rested.</p> <p>The defendants gave in evidence an application of James Silly-man, in his own name and in the names of others, dated 1st July 1793, for eighteen tracts of land, of four hundred acres each; eighteen warrants, dated 1st July 1793, each for four hundred acres of land, “ on the north side of Mahanoy Mountain, supposed to be in Berks county,” in the warrantee names.of James Silly-man, Susannah Sillyman, Casper Thiel, Mary Thiel, Henry Thiel, Christian Immel, George Rose, Catharine Rose, Jacob Kelchner, Maria Kelchner, Ann Maria Shomo, John Shomo, Christian Troxel, John Klinger, John Witman, Mary Witman, Jacob Yeager and William Witman; and surveys made in October 1793, by William Gray, deputy surveyor of Northumberland county, under fourteen of these eighteen warrants; among them those in the warrantee names of Christian Troxel, Christian Immel, Casper Thiel and John Klinger. Upon each survey was the endorsement, “ Another return on this same warrant made by Henry Vanderslice, D. S., of Berks county, located in another place.” They gave in evidence the old purchase-money voucher and a copy of the purchase-money blotter, “ J. Sillyman, &c., July 1, 1793, 18 w’ts of 400 each; 7200 acres, paid in specie 180i. Fees 91,” and an official connected draft of these fourteen surveys; also a certified copy of the entry of the commission of William Gray, dated 22d April 1785, to be deputy surveyor of all that part of Northumberland county lying east of the river Susquehanna. They proved, by a certified list of returns, that these fourteen surveys were returned to the land office in a block by William Gray, on the 15th March 1794.</p> <p>They gave in evidence patents to John Meyer, dated 10th December 1806, for each of the tracts respectively, as surveyed by Gray in the warrantee names of James Sillyman, Susannah Sillyman, Henry Thiel, Mary Thiel and George Rose; patents dated 13th January 1808, to John Meyer, for the Catharine Rose and the Jacob Kelchner tracts respectively, as surveyed by Gray; and a patent dated 25th January 1813, to Jacob Trout, for the Casper Thiel tract, also conforming to the survey of William Gray; these, as tending tc show the completion of title to the Gray block of surveys and the acceptance of them by the land office. They then proved assessments for Union township, Schuylkill county, for the years 1841-3, in the names of Christian Troxel, Christian Immel and John Klinger respectively, “four hundred aires unseated land;” a sale by the county treasurer to the county commissioners of the Troxel, Immel and Klinger tracts, for non-payment of taxes, on the 10th June 1844, and gave in evidence a deed for each of them, dated respectively 13th July 1844, from the treasurer to the commissioners. They proved a sale of the said three tracts by the commissioners, on the 16th July 1849, to John W. Roseberry, B. Nehff and II. Krebs, and gave in evidence deeds for the same from the commissioners to Roseberry, Nehff and Krebs, dated, respectively 13th August 1849. The plaintiffs objected to the commissioners’ deeds that they do not show that jhe pre-requisites of the Acts' of Assembly relative to the sale of unseated lands had been complied with, and also that the deed of the Klinger tract was irrelevant, as not referring to land in dispute. The court admitted the deeds in evidence, and sealed a bill of exceptions for the plaintiffs. The defendants further gave in evidence assessments of Union township for 1832 and 1833, in the name of Casper Thiel, “ four hundred acres unseated lands,” a treasurer’s sale of the Thiel tract to the commissioners, for nonpayment of taxes, 9 th June 1834, and a deed for the .same, dated 17th June 1834, from the treasurer to the commissioners; a sale of the Thiel tract on the 13th February 1843, by the commissioners, to Benjamin F. Taylor and John Clayton, and a deed for the same from the commissioners to Taylor and Clayton dated 15th March 1843. The plaintiffs objected to this deed of the commissioners, as to those previously offered. The court admitted it and sealed a bill of exceptions. The defendants then proved that the title of Roseberry, Nehff and Krebs to the Immel and the Troxel tracts and the northern half of the Klinger tract, and the title of Taylor and Clayton to the Thiel tract, have vested, by sundry mesne conveyances of the same, in John II. Brown. They then gave in evidence, under objection and exception, a sale of the Casper Thiel tract by the sheriff of Northumberland county, and deed poll 'from him dated 22d August 1806, for the same to John Meyer, and showed that the title of J ohn Meyer to the said tract has become vested, by mesne conveyances, through Jacob Trout and others, in John H. Brown; also a lease dated 13th April 1863, John H. Brown to IIenry Fermier for the Christian Toxel', Christian Immel and Casper Thiel tracts, and the northern half of the J ohn Klinger tract, under the Gray survey, with renewals of this lease every year, the last renewal from 13th April 1878, to 13th April 1879. They then proved assessments and payments of taxes upon the Casper Thiel, Christian Immel, Christian Troxel, and John Klinger tracts, from the date of the commissioners’ sale of the same respectively to the year 1860; albo a treasurer’s sale for non-payment of taxes for 1860 and 1861, of the Thiel, Immel, Troxel and Klinger tracts to Lewis Reeser, on the 9th June 1862, and gave in evidence deeds for the said four tracts, dated respectively 1st September 1862, from the treasurer to Lewis Reeser; also patents for the Immel, Troxel, and the northern half of the Klinger tracts to Lewis Reeser, dated respectively 28th-January 1865.' The plaintiffs objected to these patents that they were executed after suit brought. The court admitted them, and sealed a bill of exceptions. The defendants then showed that the title of Lewis Reeser in the Immel, Troxel, and the northern half of the Klinger 'tracts has vested in John H. Brown; this to show the claim of title in the. defendants to the land in controversy, and that the title held by the patentee tq these tracts is not an outstanding title. They then proved assessments to Hannah and Elizabeth Bitler in 1841, 1842, and 1843, upon three hundred acres of unseated land in Union Township, alleged by the plaintiffs to refer to the land in controversy, also a sale of the same for non-payment of taxes by the treasurer to the commissioners on the 10th June 1844, and a sale thereof by the commissioners on the 16th July 1849, to C. M. Straub. They proved that Straub did not pay the purchase-money and take his deed until 1854, five years subsequent to the payment of the purchase-money to the county by Roseberry, Nehff, and Krebs for the Christian Troxel tract. They proved that this tract was conveyed by Straub to Elizabeth Bitlér, “ as tending to show that she claimed the land in controversy under a worthless tax title to Straub, and that it was this title that she subsequently conveyed to Brandon and Snyder in 1858 and 1860.” They introduced the testimony of surveyors that the lines of the block of Gray surveys are clearly defined by marks still existing upon the ground, which conform to t'he calls of the original returns made by Gray, as also to the official location of eleven older surveys adjoining the Gray block, of which the defendants gave in evidence a certified connected draft. The surveyors testified that the John Bitler tract interferes with the Christian Troxel, the Christian Immel, the Casper Thiel, and the John Shomo tracts as located by Gray. It appeared from the testimony of surveyors that the lines had been skilfully shortened in the official return of the John Bitler survey, so as to conform to the quantity of land returned, one hundred and ninety-nine acres sixty-three and a half perches, though that tract, as actually located, embraces two hundred and ninety-nine acres sixty-three and a half perches of land. It also appeared that the territory upon which the surveys of Yanderslice and those of Gray were made was ascertained to have been in Northumberland county by the line run for the purpose of defining the limit of that county in accordance with the Act of 1795, and that this territory became a part of Schuylkill county in 1818. Defendants rested.</p> <p>In rebuttal, the plaintiffs offered certified copies of eighteen surveys, made in July 1793, by Henry Yanderslice, deputy surveyor of Berks county, and returned by him 16th July 1793, under the same warrants issued upon the application of James Siilyman, dated 1st July 1793, given in evidence by the defendants. To be followed by evidence of the location of these surveys, of their return into the land office, and of their having been filed without objection. To be. followed by evidence that the Commonwealth granted patents upon the John Shomo survey, as made by Yanderslice, and rejected the John Shomo, Ann Maria Shomo, 'and the Casper Thiel surveys, as made by Gray, but subsequently adopted the Gray Casper Thiel, pursuant to a -warrant of acceptance issued by the surveyor-general in 1813, before the patent granted thereon to Jacob Trout; that such patent was only in pursuance of such warrant of acceptance and upon payment of the whole purchase-money, as if no original warrant had been issued; that, in 1812, the board of property declared the Gray Casper Thiel survey void, because made upon a warrant exhausted by reason of the Vanderslice survey of the same.; that neither Christian Immel, Christian Troxel, Casper Thiel, John Klinger, John Shorno, or James Sillyman ever asserted any claim of title to the surveys made by Gray in their names respectively as. warrantees, or ever paid taxes thereon. To be followed by evidence from the land office that the board of property never granted any authority either to make, or to accept, the Gray surveys; that the land office does not show a list of accepted surveys applicable to those of Gray; there is no express evidence that it ever adopted the Gray surveys except as to the tracts patented in 1806 and 1808; and that it has treated them,-ever since, as void against those of Vanderslice. To be followed by evidence that the Christian Troxel tract was first assessed in 1818, was sold to the county in 1822 for non-payment of taxes, and that in 1827 or 1828 the county entered upon its records that there was no land to satisfy the assessment of the Christian Troxel tract.</p> <p>The defendants objected to this offer, which after argument, the court rejected, and sealed a bill of exceptions for the plaintiffs. But subsequently, upon suggestion by the defendants that they were “ willing the evidence should go upon record, and the legal effect of the testimony be pronounced by the court at the conclusion of the case,” the court allowed the plaintiffs to introduce the evidence as set forth in their offer. The plaintiffs then introduced the testimony of a clerk in the department of the interior to prove, from the record, that the certificate shown by the defendants is not a certificate of accepted surveys. It appeared, however, upon cross-examination, that it was not the practice in the land office, before the year 1800 or 1801, to make a note of acceptance upon the survey itself. I.t further appeared that these two sets of surveys have been kept together, upon the files, a Gray survey inside a Vanderslice survey, or vice versa. The plaintiffs followed this testimony by certified copies of the returns made by Vanderslice, in July 1793, upon the eighteen warrants issued on 1st July 1793, to James Sillyman, as contained in their offer, and a certified connected draft of these eighteen tracts of land, “ situate on the branches of the Catawissa, on the north side of Mahanoy mountain, county of Berks.” Eleven of these surveys bear the endorsement, “ See another return on the same warrant, by William Gray, D. S. of Northumberland county,” and .similar endorsements are upon the others, except the John Witman, Jacob Yeager, William Wit-' man and Mary Witman, which were located and returned by William Wheeler, D. S., in 1837. They then gave in evidence a patent, dated 11th December 1833, for the John Shorno tract, as surveyed by Vanderslice, and a patent dated 19th April 1870, for the Ann Maria Shorno tract as surveyed by Vanderslice. It appeared, however, from the testimony of the patentees of the Ann Maria Shomo tract that they claimed this tract as surveyed by Gray, and lived upon it, and that the patent they obtained from the Commonwealth was not what they wanted, but related to land they never claimed. The plaintiffs then gave in evidence a certified copy of the proceedings of the board of property, dated 13th November 1812, which recites that there was “an irregularity” in the second return (i. e., the Gray return) of the Casper Thiel survey, and directs the secretary of'the land office to issue a warrant to the surveyor-general to accept the said survey, made the 23d October 1793, “ inasmuch as the said Casper Thiel, and those claiming under him, have held the land from that date to the.present time ; and that a patent issue thereon to Jacob Trout, he paying the purchase-money and interest due from the 1st July 1793.” They gave also a certified copy of the order from*the secretary of the land ofiice to Andrew Porter, surveyor-general, directing him to accept the Gray survey of the Casper Thiel tract, this to show that the board of property treated the Gray survey as void, and for the purpose of rebutting the defendants’ general offer of patents as tending to show acceptance of the Gray surveys prior to the date of such patents. They gave further the Gray returns of the surveys made by him upon the warrants to Ann Maria Shomo and John Shomo respectively, with endorsement upon the former : “ This return rejected by the board of property as not lying in the same county called for by the warrant;” and upon the latter: “This return rejected by the board of property, there being another return on the same warrant for lands in the county of Berks.” They then gave in evidence a warrant to John Bitler, dated 9th April 1811, and a survey upon the same, dated 11th May 1811, to John Bitler, for two hundred and forty-three acres twenty-five perches, 'and allowance. The survey calls for John Bitler, in the right of George More, of John Klinger, of Mary Thiel, of George Rose, of Catharine Rose, and of Maria Kelcher. Plaintiffs allege that this tract, called, “the long John Bitler tract,” interferes with the Gray surveys of the Christian Immel and the Maria Kelchner tracts. Several surveyors testified, however, that the interference alleged arises from a local tion of this tract with reference to a line called “ Meyer’s line,” of “ the line of 1806,” which locates the southern boundary of the Gray block of surveys eighty perches north of the lines of older surveys adjoining the Gray block, which are called for in the original returns made by Gray, and in the patents granted to John Meyer. It also appeared that “ the line of 1806” is not an official line, and that “the long John Bitler tract” will not interfere, as alleged, if located by its calls in connection with the official lines as run and marked by Gray. The plaintiffs then gave in evidence, under objection, the court reserving the legal effect of the offer for future discussion, assessments of Union township to show that the Christian Immel tract was not assessed from 1811 until 1841; also, that the Christian Troxel tract was first assessed in 1819, and a sale of the Troxel tract by the treasurer to the commissioners in 1822 for non-payment of taxes, and a sale by them to John Wickersham in 1831, with'a deed dated 23d'March 1831, from the commissioners to Wickersham for the Christian Troxel tract. The deed was acknowledged, but never delivered; this to show that the assessments of 1841, 1842 and 1843 were void, and the sale thereunder by the treasurer to the commissioners- passed no title. They also showed that the Christian Troxel tract was not assessed from 1827 until 1841.</p> <p>In sur-robuttal the defendants gave in, evidence, under objection and exception, a caveat dated 18th July 1793, filed by John Kunckel and Aaron Bowen, against granting patents for lands situate in Catawissa Yallev, Northumberland or Benks county, granted by eighteen warrants dated 1st July 1793, in the warrantee names of James Sillyman, Susannah Sillyman, &c.: “ The said ICunckel and Bowen alleging that they have warrants dated 19th May 1792, in the names of Charles Shoemaker, George Raver, &c., for a part of the same land;” offered, under objection and exception, as a caveat filed against issuing patents upon the surveys made by Vanderslice. The defendants also gave in evidence files of newspapers published under date of June 7th and 8th 1849, as also for five consecutive weeks following those dates respectively, to show affirmatively, by the advertisements contained in them, that the commissioners’ sale of the Bitler, Immel, Troxel and Klinger tracts, held July 16th 1849, was a public sale, and was duly advertised.</p> <p>This was followed, upon the part of the plaintiffs, under objection and exception, by a certificate from the office of .the surveyor-general, dated 26th November 1873, that there is no record .of any citation ever having been 'issued upon the caveat given in evidence by the defendants, or of any proceedings upon the same by the board of property.</p> <p>The court below, Pershing, P. J., charged, inter alia: “You have the evidence in regard to the location of these fourteen Gray surveys. Mr. Hawley, a surveyor, says : I have not a particle of doubt the Gray surveys were located where claimed. The east line' is well marked, extraordinarily so, after this 'lapse of time.’ This is the testimony of Mr. Hawley, a very intelligent witness, produced upon the part of the plaintiffs, and it is the testimony of all the surveyors, with the exception of Stauffer, who did not examine it. There does not appear to be any controversy as to the location of these fourteen Gray surveys. The effect of the confirmatory act of the Commonwealth in granting patents on part of these Gray surveys, extends to the whole block, and is not confined to those only for which the patents were issued: Fritz v. Brandon, 28 P. F. Smith 351. One effect of a patent is to merge all previous proceedings, and to waive, upon the part of the Commonwealth, whatever informalities may have occurred, so that, upon the granting of it, the title of the patentee as against the Commonwealth becomes complete both in equity and in law. They (the plaintiffs) have offered in evidence the same warrants offered by the defendants, with returns upon them made by Henry Vanderslice, in July 1793, about three months before the surveys were made by Gray, with evidence of the return of these surveys into the land office some eight months prior to the time that Gray made his return. Here arises what is, perhaps, the main controversy in this case. Which of these surveys, those made by Gray or those made by Vanderslice, are the valid surveys ? They cover to some extent the same ground. When this question was before the court the last time, we ruled, as a question of law, that the Vanderslice surveys were the valid surveys, for the reasons, that they were the first made and returned into the land office; that tbe rule of law was that, a survey having once been made upon a warrant and returned, the warrant was exhausted, and the second survey upon the same was simply void. We, therefore, instructed the jury squarely, that the Gray surveys were void and that the Vanderslice surveys were valid. The Supreme Court has, just as squarely, decided that we were in error in that instruction, and that the Gray surveys were valid and that the Vanderslice surveys were abandoned. It has been pressed very strongly upon the court what our duty is under the circumstances of this trial. It has been urged that the validity of the Gray and the Vanderslice surveys is a question that should be submitted to the jury upon the facts as they now stand. It is claimed that new facts have been presented, the effect of which should be to change the decision'of the Supreme Court, rendered, it is said, under a misapprehension of the facts as they actually existed. It has been repeatedly ■ said in your hearing, that the chief justice not only misapprehended the facts of the case, but stated, in his opinion, matters which the evidence showed were not fact's at all, and that, therefore, the decision of the Supreme Court should not bind us in this cáse. It strikes us that there has been very little new evidence introduced into this trial upon this particular, question. Stress has been laid upon the fact that, in the paper-book of the defendants presented to the Supreme Court, their reference to the certificate of the land office as to the Gray surveys, contained in it the words ‘accepted surveys.’ It has been argued that the Supreme Court was misled by this wrnrd accepted. The fact is that both the Gray and the Vanderslice certificates are alike in their language. Tbe plaintiffs, however, directed the attention of the Supreme Court to the fact that the word accepted did not appear in the certificate, and also that the surveys made by Vanderslice were first returned, and' that the evidence of their acceptance was precisely that which the defendants offered of the acceptance of the Gray surveys. The patent to Trout, of the Thiel tract, and the proceedings preliminary to granting it, were before the Supreme Court. So also, the fact that two of the Gray surveys were rejected. The John Shomo and Ann Maria Shomo surveys -were rejected, and the reasons for their rejection wire printed in the paper-book of the defendants. The caveat was also before the Supreme Court, and was printed just as it was read here. It is alleged that it was a mistake to assert that the Vanderslice surveys interfered with any of the lands mentioned by the caveator, and that the Supreme Court was misled by the allegations of this caveat. It does, however, appear in evidence that the Vaderslice surveys interfered with older warrants in the names of Martin Rutherford and others, warrants which were located upon the ground prior to the making of the Vanderslice surveys. We do not think that the Supreme Court were misled by the caveat when they disposed of this case on the writ of error taken to the former judgment of this court. Our error was not the taking of this question from the jury, but it consisted in ruling that the Gray surveys were invalid. ‘ This the Supreme Court corrected, by ruling that the Vanderslice, and not the Gray, were the invalid surveys. This is repeated so often, and with such emphasis, throughout the opinion of Chief Justice Agnew, that it is impossible for me to come to the conclusion that I should, in the discharge of my duty, under the evidence as it is now presented, submit to you, as a question of fact, whether the Gray or the Vanderslice surveys were the valid surveys.</p> <p>“Following the evidence of the defendants, we come to the question of the tax-sales. The requisites of a tax-sale are: That the land must be unseated at the time of the assessment; that a tax appears to have been, and in fact was, assessed by the proper officer; that it was due for one whole year and remained unpaid. Unseated lands assessed are the debtor for the taxes; it is immaterial in w'hat name they are assessed, if it is the same land that is taxed and sold, and was at the time unseated. The sale in the name of a younger warrantee will pass the title, it not being assessed at all in the name of the first warrantee. Upon this subject, as bearing upon some of the questions introduced, it has been held by the Supreme Court that, ‘ the constructive possession of land, not actually occupied, follows the legal title;’ that is, in contemplation of law, every man is in possession of the land he owns, until ousted by an intruder, and abandonment of title is not presumed from non-entry nor from neglect to pay taxes. ' The law does not limit a man’s title to the possessio pedis. Inchoate rights may be abandoned, but abandonment is scarcely predicable of perfect titles. And though it is an owner’s duty to pay taxes, what if he does not ? The law, instead of presuming his "title abandoned, seizes it and sells it to the highest bidder: Mayor of Philadelphia v. Riddle, 1 Casey 263.</p> <p>“ It appears that, in 1841, 1842 and 1843, the Christian Troxel, Christian Immel and John Klinger tracts were assessed with the road, state and county taxes, and that, by the treasurer’s sale of the 10th June 1844, these tracts were sold to the county, and deeds delivered in pursuance of the Act of Assembly. It further appears that the commissioners held them for five years, as required by the Act of Assembly, and that, upon the 16th of July 1849, they were sold by the commissioners of the county to John W. Roseberry, Benjamin Nehff and Henry Krebs, who paid their purchase-money and received their deeds upon the 1st of September 1849. A question has been raised as to the validity of this sale. It appears from the evidence, that there was a sale of the Christian Troxel tract, in 1822, to the county, and it is claimed that it could not be assessed for taxes during the time it was the property of the county, only to the extent of the five years limited by the Act of Assembly, during which time the county held the land for redemption. The subsequent assessment, no doubt, was an irregularity, which possibly may be explained as a similar transaction, to some extent, is explained in Groodman'u. Sanger, 4 Norris 42. Russel v. Werntz, 12 Harris 347, is a case where the county taxed land held by itself. If was there held that ‘whilst the title was in the county, it could not be prejudiced by the payment of - taxes other than those for which it had been- sold. If the county taxed lands the title of which was in itself, and parties paid the taxes in ignorance of the fact, they may, perhaps, have an equitable right to reclaim their money; but they cannot invalidate that title in the hands of a bona-fide purchaser from the county.’ It is claimed upon the part of the plaintiffs, that they have a right to recover for that portion of the John Bitler survey which interferes with the Casper Thiel, amounting to about thirty-six acres. They claim for that portion of the Bitler, included within the Thiel survey, that the taxes were paid by Hannah and Elizabeth Bitler, in 1831 and 1832, and that, therefore, the sale to the county in 1834, and afterwards by the county to Taylor and Clayton, conveyed no title to that portion of the land on the Thiel survey included within the lines of the Bitler survey. The rule upon this subject appears to be this: ‘Proof of the actual payment of the tax avoids the sale:’ Hunter v. Cochran, 3 Barr 105; Reading v. Finney, 23 P. F. Smith 472. They, the plaintiffs, claimed that the sale of the Thiel was invalid, because the Act of Assembly was not complied with. In the case of Lee v. Jeddo Coal Co., 3 Norris 74, the Supreme Court held that ‘the recitals in the deeds of county commissioners made in pursuance of a sale of land for taxes, prima facie raise a presumption that the commissioners did their duty and made the sale according to law:’ McCoy v. Michew, 7 W. & S. 386. I am inclined to think, from the evidence, it is a fair presumption after the lapse of thirty years or more, that these public officers did their duty. In Lee v. Jeddo Coal Co., supra, the question as to the conclusiveness of such a presumption is left open. Here, in the absence of evidence to overthrow' it, we think the maxim omnia prcesumuntur has proper application. With regard to the assessments, the question has been raised and argued, that the sale of the Troxel tract as unseated, was void because it was upon the seated list. From the books in evidence and the testimony of Mr. Aregood, it would seem that it was upon what was called ‘the mixed list;’ a list which contained both seated and unseated lands. It was assessed upon this list as unseated. We say to you, that if this land was entered on what is called the ‘mixed list,’ if there found assessed as unseated and sold as unseated, the taxes not having been previously paid, it would convey a good title. The court cited in this connection: Laird v. Hi ester, 12 Harris 452; Thompson v. Chase, 2 Grant 367, and Russel v. Werntz, 12 Harris 337. That the taxes for 1841, 1842 and 1843,-were not paid, is not disputed.</p> <p>“ There is another question of importance in this case which was not raised at the former trial: What have the plaintiffs sued for? What land is embraced in their prsecipe and writ? The land described in the prsecipe is ‘ a tract of land situate in Union_ township, containing two hundred acres or thereabouts, bounded by land surveyed to James Smith, Christian Immel, John Klinger, and others.’ In the survey the call is for the Casper Thiel on the north. In the prsecipe, reference is made to the deed from Elizabeth Bitler to Snyder, which, it is claimed, is also a part of the description. The adjoiners called for by the prsecipe, including the deed, are James Smith, Casper Thiel, Christian Immel, and John Klinger, all older surveys, and all located upon the ground by the .testimony of the surveyors. It is claimed, upon the part of the plaintiffs, that they have a right to run beyond the Immel. The land they claim cuts into the Thiel and runs beyond the line of the Immel some on to the Shomo. It is claimed that the survey upon the ground is the true survey without regard to the calls for adjoiners. The official distance for the east and west line between the Thiel and the Troxel is three hundred and twenty perches, and the distance as given on the Bitler is three hundred and ten. Commencing at the Smith and running three hundred and ten perches towards the Immel will not reach the Immel tract. But plaintiffs claim the right to run three hundred and fifty perches, and thus run upon the Immel and the Shomo tracts and include two hundred and ninety-nine acres. It is argued that, these being the lines upon the ground of the John Bitler survey, they must control the calls for the adjoiners, and that the adjoinei’s cannot control the lines upon the ground.</p> <p>“ It is to bo remembered that the James Smith is. an older survey and its place is well established. The Casper Thiel is an old survey, patented in 1813; while the survey of the Bitler was only made in 1829 and calls for the Thiel. The fact that the Thiel was patented in 1813, was .notice to Bitler where the lines of the Thiel survey were -located, and, of course, he would have no right, to run upon any portion of the Thiel in making his survey. The line of 1806, known as ‘ the Meyer line,’ was introduced in this , connection. This line, under the testimony of the surveyors makes great changes in the location of many tracts, and interferes with a large body of surveys. It is only a matter of conjecture for what purpose the line was run, but we think it has nothing to do with, and could not change the location of these surveys as originally returned to the land office. The position taken by the plaintiffs in this case, in reference to ‘ the Meyer line’, of 1806, is like that taken by the plaintiffs in Wagner v. Wagner, 18 P. F. Smith 392. Whatever was the purpose in running this line," it is not claimed it was done by any official authority. We instruct you, therefore, that it can have no weight in deciding the present litigation. . But, as bearing directly upon this question of what is included in the plaintiff’s description, we have a decision of the Supreme Court where it is distinctly held that: ‘It is a principle of construction that, where land is described by courses and distances and also by calls for adjoiners, the latter, where there is a discrepance, invariably govern; and it is applicable to conveyance as well as to official surveys: Cox v. Couch, 8 Barr 154. This has been followed in other cases: Petts v. Gaw, 3 Harris 222. If our construction is correct this controversy is narrowed to the interference -of the John Bitler with the Christian Troxel survey. For, following the description contained in the plaintiffs’ praecipe and deed, and beginning at the James Smith and running along the Casper Thiel to the Immel and then, by courses and distances, back to the Smith, would not interfere with the Thiel, the Immel or the John Shomo. We are constrained to say to you that, upon the whole evidence in this case, the defendants have a right to a verdict at your hands. In saying this, we negative the points of the plaintiffs.”</p> <p>Exception taken by plaintiffs and bill sealed.</p> <p>Verdict for the defendants as directed by the court, and judgment thereon. The plaintiffs took this writ, and filed twenty-six assignments of error, among which were the following:</p> <p>5. The court erred in negativing the plaintiffs’ third point, which was : That if the jury believe that the assessment to Hannah and Elizabeth Bitler from 1832 to 1840 inclusive, embraced the John Bitler survey of 1829, and that the said assessment was in the seated list and claimed by Elizabeth Bitler to be so assessed, then the assessment of the same land by any name in the unseated list without notice to her-, the then owner, was void and the treasurer’s sale of 1844, based on such changed assessment, was void as to her and passed no title to the purchasers at the commissioners’ sale of 1849.</p> <p>12. The court erred in negativing the plaintiffs’ twelfth point, which was: That the defendants have shown no title to the Casper Thiel at the time they entered upon the land in suit, and when this suit was brought, that the alleged sale and conveyance by the commissioners to Taylor and Clayton, by the deed, dated 15th March 1843, pursuant to sale made 13th February 1843, does not recite any advertisement or notice of the sale, or that the sale was a public one, or made according to law, nor has any evidence been given to show any such advertisement or notice, or that the sale was not a private sale; and that a sale so made would not divest any title of the owners of the John Bitler warrant and survey in suit so far as it interferes with the Casper Thiel.</p> <p>13. .The court erred in negativing the plaintiffs’ thirteenth point, which was: That the defendants have given in evidence the assessments, in the names of Hannah and Elizabeth Bitler, and a treasurer’s sale, in 1844, by the county treasurer to the county of Schuylkill, and a sale, in 1849, by the county to O. M. Straub; then, if the court hold the sale of 1849 valid against the county, such deed vested in C. M. Straub so much of the Casper Thiel as the defendants admit to have been interfered with by the John Bitler survey in suit, and the title having been vested in the plaintiffs before suit brought they are entitled to recover that part of the land in suit which the defendants admit to be interfered with by the Gray location of the Casper Thiel.</p>

<p>1. J. agreed to farm the land of B., for which he was to have one-half the proceeds, each party furnishing one-half the seed, stock, poultry, hogs, &c. J. was to find all the farming implements and the working stock, and all the requisite labor, and pay the road tax and one-half of all other taxes. He was also to submit a statement every three months, and make settlement: Held, that this agreement was a lease of the farm on shares, and not a partnership.</p> <p>2. J.’s interest in a portion of the proceeds of the farm was sold at sheriff’s sale, on a judgment against him, and B. claimed that he was entitled to a partriership account, and that the sheriff's vendee only took title to the balance due J. after said account: Held, that no such claim could be sustained.</p> <p>3. B. neither exercised his right to distrain nor gave the sheriff notice of his claim for rent: Held, that the interest of J. was divested by the sheriff’s-sale as well as the right of B. to distrain.</p>

<p>Error to the Court of Common Pleas of Delaware county; Of January Term 1879, No. 87.</p> <p>Amicable action of debt, brought by David Maginnes, collector of taxes for the county of Delaware, of the South ward in the city of Chester, against Robert Chadwick and others, councilmen of the South ward of the city of Chester.</p> <p>The case was submitted as follows: “ It is hereby agreed that an amicable action be entered, and that the said action shall be deemed to be depending in like manner as if the defendants had appeared to a summons issued against them by the plaintiff, and said action being founded on a county tax of $60, assessed and levied on real estate and property of the defendants in the county of Delaware for the year 1876, which the defendants have, and still do refuse to pay to the plaintiff. It is agreed that the action be deemed at issue as if the plaintiff had filed a declaration averring that the property upon which said tax was so assessed and levied, was a legal subject of taxation, and as if the defendants had filed a plea, denying that the said property was a legal subject of taxation. And it is further agreed that a trial by jury be dispensed with, and the decision of the case be submitted to the said court to hear and determine the same under the provisions of the Act of Assembly of April 22d 1874.”</p> <p>The court, Clayton, P. J., found the facts as follows:</p> <p>“ The defendants are a quasi-municipal corporation, the object of which is to supply the South ward, of the city of Chester, and surrounding neighborhood with water at certain rents, to be fixed by the corporation. The taxpayers of the said South ward, are the equitable owners of all the property, estate and franchises of the corporation; the profits after the payment of expenses, interest and cost of the works, are to be paid into the city treasury, and are to be held on account of municipal taxes against the said South ward.</p> <p>“ No profits, beyond the costs of the works, interest on loan, and expenses of managing the works, have yet been paid into the city treasury for the benefit of the taxpayers of said South ward.</p> <p>“ The real estate upon which the works are erected, and against which the tax has been levied (except one hundred and twenty feet on Front street), is indispensable to the enjoyment of the franchises of the corporation, and is absolutely necessary for its corporate purposes.</p> <p>“ The corporation is not a stock company, and pays no tax in any form to the state, under the general corporation tax law’s of the Commonwealth.</p> <p>“ The corporation owns a lot of ground, being a part of the real estate against which the tax claimed by the county has been levied, which has not been actually used and occupied by said corporation for the purposes of their charter, and which is not indispensable to the enjoyment of its corporate franchises. Said lot contains one hundred and twenty feet on Front street, and is one hundred and fifty feet deep, and adjoins the lands upon which said works are erected. A right of way over twenty feet of this lot is necessary to the proper enjoyment of the privileges of the corporation for the purposes of its charter.</p> <p>“As to the real estate indispensable to the enjoyment of the franchises of the corporation, it may be somewhat doubtful whether it is subject to taxation. Adopting, however, the usual rule, which requires an enlarged and liberal construction of all tax laws in favor of the government, I incline to the opinion that it is a proper subject of taxation for county purposes.”</p> <p>The court entered judgment for plaintiff for the full amount of .the tax, when defendants took this writ, and assigned this action for error.</p>

<p>1. N. was injured, while crossing a street in a borough, by the firing of a cannon by a crowd of citizens. In an action against the borough to recover damages for the injury, the jury, in a special verdict, found that the cannon had been fired at short intervals, for several hours, at various points in the borough; that it was not fired at any public or authorized celebration ; that a policeman was standing by and made no effort to stop the firing. A special Act of Assembly authorized the borough to appoint policemen, remove nuisances, &c.: Held, that the borough was not liable.</p> <p>2. Admitting that such an assemblage was a nuisance, and that of the worst kind, it is one that a municipal corporation cannot abate by the use of ordinary appliances, such as suffice for the removal of natural or material obstructions in or near a highway, and resort therefor must be had to the police, but for the doings or misdoings of those who compose this force, the municipality is not liable.</p> <p>3. Cities, borough and townships have been held responsible for neglect in the maintenance of highways, sewers, wharves, &c., because they belong to their immediate jurisdiction, and over them they alone have jurisdiction. But the conservation of the peace is a public duty put by the Commonwealth into the hands of various public officers.</p> <p>4. Police officers cannot be regarded as servants or agents of the city or borough. Their duties are of a public nature and their appointment is devolved on cities and towns by the legislature as a convenient mode of exercising a public function, but this does not render them liable for their unlawful or negligent acts.</p>

72. A petition was presented to the court for the appointment of a jury to view and lay out a road in Whitemarsh and Upper Dublin townships, Montgomery county, over lands, inter alia, then of Henry Bissinger, now of Joseph Nash. This was followed by the appointment of jurors and a report in favor of the road. Before this jury, Henry Bissinger, as landowner, released his claim to damages.

<p>1. A., by his agent B., made a contract for grading with 0., who employed a number of men on the work and failed to pay them! On August 26th 1878, B. agreed to pay the men all the money due to 0., and all to become due under his contract, if they would continue the work. A. paid the laborers for their work after October 1st 1878. On the 7th of October 1878, the laborers signed a receipt, wherein they agreed “ that all work done before October 1st was performed for 0., contractor, who alone is liable for the same to us.” One of these laborers Brought an action against B. to recover the balance due him for wages, on the contract prior to October 1st, alleging that he did said work for B., on his agreement to pay for it. The court below instructed the jury that B., the agent of A., was liable to the laborers for all the money due to C., on the contract with him: Held, that this was error; that in view of the agreement contained in the receipt it could not be permitted on an alleged prior oral contract to hold A.’s agent liable.</p> <p>2. The court further instructed the jury that the burden was on B. to show that there -was not sufficient money in his hands, due to C., to pay all the laborers: Held, that this was error; that it was incumbent upon the plaintiff to make out his case with reasonable certainty.</p>

<p>L H. gave a check to a county agricultural society to pay the entrance fee to enable him to enter his horse at an exhibition given by the society. The object was to enable him to have his horse entered to compete for the premiums offered by the society for trials of speeed: Held, that the check was given for an illegal purpose and no recovery could be had thereon.</p> <p>2. Unger v. Boas, 1 Harris 601, followed.</p>

<p>1. In an action upon a book-account for goods sold from time to time, where general payments had been made on account, the defendant claimed deductions for bad workmanship and materials, embracing the earlier as well as the later items of the account, especially the earlier, but the court excluded the claim as to the earlier items, so far as they were covered by payments made and applied under the general rule of law governing appropriation of payments, and instructed the jury that there could be no such deductions upon any of the items thus paid for: Held, that this was error; that the ordinary rule as to the appropriation of payments had no application in such a case.</p> <p>2. The defendant was not precluded by reason of the general payments from showing bad workmanship and defective materials as to any of the items of the account, and claiming reasonable deductions therefor.</p>

806. Appeal of Frank Fitzwater from the decree of the court making distribution in the estate of Jacob Fitzwater, deceased: Jacob Fitzwater died in April 1876, leaving a will, which contained the following provisions: “ All the rest, residue and remainder of my estate which may remain at the death of my said wife', after the payment of the before mentioned legacies, I give and bequeath as follows, to wit: “ The one-fifth part thereof I give and bequeath to my nephew, George…

71. In Equity. Bill in equity filed by William Rennyson against Isaac Rozell to restrain the erection of a house which closed two windows in plaintiff’s house.

<p>Error to the Court of Common Pleas of Delaware county: Of January Term 1879, No. 228.</p> <p>Feigned issue under the Sheriffs’ Interpleader Act, wherein Frank Pearson was plaintiff, and Paul B. Carter, defendant.</p> <p>The facts were these: Carter having a judgment against the Tinicum Fishing Company, levied upon the following personal property which he found on the farm of the company, viz.:</p> <p>* Sorrel horse, Brown horse, Black horse.</p> <p>Three horses, $90. $50. $40. $180.00</p> <p>*One cart, ....... 40.00</p> <p>*One dearborn, pole and shafts, 80.00</p> <p>One light carriage, ...... 85.00</p> <p>One lot of harness, ...... 25.00</p> <p>One sleigh, . . . ' . 40.00</p> <p>*One wheelbairrow, ....... 4.00</p> <p>*One grindstone, ...... . 3.00</p> <p>*Two ploughs, $7 and $3, . . . ... 10.00</p> <p>One cow, ........ 40.00</p> <p>Two pigs,......! 12.00</p> <p>Lot of chickens, 12.00</p> <p>Lot of ducks, . 4.00</p> <p>Lot of ice in ice house, 25.00</p> <p>Lot of shovels, forks, &c., 2.00</p> <p>$562.00</p> <p>When the levy was made Pearson claimed that the above property belonged to him.</p> <p>At the trial he testified that he lived on the farm of the company to take care of the house and grounds; that the company paid him $400 per year, and gave him the use of the farm ; that his duties were to keep the club house and the lawn clean ; to go to the railroad station for the members when they visited the club house, and to wash the table-linen and dishes at the club house, and wait upon the members. He further testified that in 1877 he purchased all the articles in the above list marked with an asterisk from the treasurer of the company, paying cash therefor, and for which the witness produced receipts. The remaining articles he testified had been purchased from other persons at different times, and had never belonged to the company.</p> <p>The plaintiff submitted, inter alia, the following points, to which are appended the answers of the court:</p> <p>1. If the jury believe there was a bona fide sale of the sorrel horse, dearborn, pole and shafts, and the cart, and such a delivery of possession or other overt change of ownership, as the nature of the property and the circumstances of the case admitted of, their verdict must be for the plaintiff for these articles.</p> <p>Ans. “ There must have been some visible change of possession. The purchaser being a servant of the vendor could not acquire a lawful title as against a creditor without a change of possession.”</p> <p>2. The fishing company had the right to sell and deliver possession of their personal property at any time before actual levy by the sheriff, if not done to defraud creditors.</p> <p>Ans. “ They had such a right in the usual course of business, but they could not sell to a servant without an open change of possession as against a creditor.”</p> <p>In the general charge the court, Clayton, P. J., inter alia, said:</p> <p>“The poliey of'the law does not permit a person in embarrassed circumstances to sell his goods to his servant and then continue to employ the servant just as before the sale, without such a change of possession as to give full notice to creditors. If the claimant, however, bought the goods to make himself safe in his title to them, he should have removed them from the company’s grounds and completely from their control. [There is not sufficient evidence of a change of possession as to one horse, one cart, one dearborn, one wheelbarrow, grindstone and two ploughs. For these articles the verdict ought to he for the defendant.] As to the other "articles the verdict ought, in the opinion of the court, under the weight of the evidence, to be for the plaintiff. But the question of actual fraud is left with the jury. If you are satisfied there was no such fraud you should find for the plaintiff for the articles purchased from other persons than the company or its agents.</p> <p>Verdict for defendant for the articles marked with an asterisk, and for plaintiff for the rest. After judgment thereon plaintiff took this writ, alleging, inter alia, that the court erred in the answers to the above points and the portion of the charge included in brackets:</p>

<p>1. The assignment of the stock of a corporation to itself, as collateral security for a loan, divests the title of the assignor so far as to prevent a sale of it under a fieri facias against him. In such case execution must be by attachment, under the Act of 1836.</p> <p>2. Before an attachment of stock, standing in the name of another, can be made under the provisions of the 32d section of the Act of 1836, it is necessary that the affidavit and recognisance required by the act should be previously filed, and if these conditions are not complied with, the writ is void.</p> <p>3. An attachment issued against stock of a building association, standing in the name of the defendant, but which had been assigned to the association as collateral security. No affidavit nor recognisance were filed, as required by the Act of 1836. A third party intervened and claimed the stock, but he likewise did not file the affidavit and recognisance. At his instance, the writ was quashed : Held, that the writ had been improperly issued: Held, further, that while the claim of the intervening party was not made in conformity with the requirements of the act, yet the attachment being improper, the court below must be affirmed.</p> <p>4. Where neither party has any standing in this court, the court below will be affirmed.</p>

<p>An instituteof science whose object is the “ promotion and diffusion of general and scientific knowledge among the community at large, and the establishment and maintenance of a library and museum,” but the benefits of which are restricted to members, except upon conditions prescribed by a board of managers, is not a “ purely public charity,” within the meaning of the Constitution, and is not, therefore, as such, exempt from taxation.</p>

<p>Appeal from the Court of Common Pleas of Chester county: Of July Term 1878, No. 81.</p> <p>Appeal of John É. Leonard from the decree of the court confirming the report of the auditor in the matter of the petition of Lewis Davis.</p> <p>The proceedings in the court below and the facts are set forth in the following portions of the report of the auditor —</p> <p>“John R. Stapleton and wife, on the 12th of August 1869, executed and delivered to Lewis Davis a deed of voluntary assignment in trust for the benefit of creditors. Lewis Davis accepted the trust, and on the 13th day of August filed his petition for the appointment of appraisers, and on the 9th of September 1869, an inventory of the assigned estate. On the 15th day of November 1870, a. second bond (the first one being defective in form), in which Robert Neeley and Alexander Martin were sureties, was filed and approved by the court. On the 20th day of May 1871, the assignee filed an account to which, on the 13th day of June, exceptions were filed by W. B. Maitland, and other exceptions by John R. Stapleton, and on the same day a petition was presented to the court for an auditor to distribute the balance standing on the account. George M. Rupert, Esq., was appointed auditor upon the exceptions, and also to make distribution. The report of the auditor was filed on the 18th day of December 1871, and the same day the court made an order that the assignee pay in accordance with said report. The claims upon the fund were presented to the auditor on the 21st 'day of October 1871. The claims were handed in by Rees Davis, Esq., who was acting as principal counsel for the assignee, and among them was the following, viz.: “ Judgment in favor of John E. Leonard entered November 19th 1868, in judgment docket E, page 453 :—</p> <p>For.........$3000.00</p> <p>Int. from September 9th 1869, to December 1st 1871, 401.00</p> <p>Total claim, ....... $3401.00</p> <p>“ On this claim the auditor awarded to John E. Leonard as follows, viz.:—</p> <p>From personal property, .....$ 299.16</p> <p>From real estate, ....... 2457.60</p> <p>Total award, ...... $2756.76”</p> <p>“ On the 19th day of June 1873, an action of debt was brought in the Court of Common Pleas of Chester county, on the official bond of Lewis Davis, assignee of John R. Stapleton, the case being as follows, viz.:—</p> <p>The Commonwealth of Pennsylvania, ^ at the suggestion of John E. Leonard, v. Lewis Davis, Robert Neely and Alexander Martin.</p> <p>In the Common Pleas of Chester county, No. 85 to August Term 1873.</p> <p>Summons Debt.</p> <p>“The plaintiff’s statement, filed at the time of issuing the praecipe, exhibited a copy of the said bond, and also of the distribution reported by the auditor as above stated, and demanded the said sum of $2756.76, with interest thereon from the 18th day of December 1871. The sheriff returned that he had summoned Lewis Davis personally, and the other two defendants by leaving a copy of the writ at tbeir respective homes on the 27th of June 1873. On the 3d day of July 1873, Lewis Davis filed an affidavit of defence, alleging payment on or about the 10th of April 1871, of the judgment above mentioned, a copy whereof accompanied this report. On the ninth day of August 1873, the plaintiff filed a narr., and on the same day entered a rule to plead. The defendant on the 18th and 29th days of August filed their plea of nil debet, whereby the case was put at issue. At this stage of the proceedings, the defendant, Lewis Davis, on the 11th of September 1873, presented his petition to the court asking for relief, by having the report of auditor referred back to him for correction, and the court so referred it for hearing upon the matter alleged in the affidavit.</p> <p>“ Mr. Davis alleges that about the 1st day of April 1871, Mr. Leonard demanded payment of the judgment in question, and took steps to enforce his demand by legal processthat thereupon he raised the money and paid off the debt, and took up the hill single, which represented it; that subsequently he handed this bill single to his attorney, Rees Davis, to be presented to the auditor in Stapleton’s estate, under the belief that that was the proper course to be pursued, and that the money awarded thereon belongs rightfully to him, and not to Mr. Leonard. On the other hand, Mr. Leonard alleges that, although about the 1st of April 1871, lie demanded payment of the judgment, and sought to enforce it, yet that Mr- Davis at first resisted payment, and afterwards entered into an arrangement whereby it was postponed for the time being; that he, Leonard, on or about the 8th day of April 1871, sold and transferred the obligation to Rees Davis, and about the 16th day of June following, repurchased it from him; and that ever since he has been the owner of it, and is justly entitled to the money awarded to him by the auditor as aforesaid. * * *</p> <p>“ We find the following facts: That John E. Leonard, being the holder of the Stapleton note for $3000, gave notice to Lewis Davis, the assignee, through Rees Davis, Esq., his attorney, sometime in March 1871, that he would require payment of the same at the 1st of April following. That Lewis Davis, in consequence of that demand, on the'27th day of March 1871, sent to Rees Davis the sum of $1549,88, and on the 3d of April, the further sum of $1110, and about the 10th of April, the additional sum of $590.60, an aggregate of $3250.48, which moneys were directed by him, and were received by Rees Davis, to be applied to the payment of the note in question. That, on the 3d day of April 1871, Mr. Leonard, not having received, any moneys in response to his demand for payment, issued a pluries fi. fa. on the judgment entered upon this note. * * * That on the 5th or 6th of April 1871, Rees Davis paid over to Mr. Leonard, on account of the Stapleton note, a check of $600, andón the 7th of April, in cash, $1000; and on the 8th of April, a check for $800, and in cash, $175. He also gave to Mr. Leonard, on the 8th of April, his own judgment-note for $75, payable in two days, $25 of which was to be applied towards the payment of the Stapleton note, and the balance was intended to cover the costs of the execution above mentioned.</p> <p>“ He further gave to Mr. Leonard, at the same time, his own judgment-note for either $400 or $500, payable in two months (for which he transferred the Whiteside bond as collateral), making a total of $3000 or $3100, which Mr. Leonard then accepted in full payment, satisfaction and discharge of the Stapleton note, and thereupon delivered the same over to him, which he, on the next day, the 9th of April, carried up to his father and delivered over to him. On the 10th of April, Rees paid to Mr. Leonard the $25 balance on the Stapleton note and the costs of execution, and took up the $75 note which he had given two days before; that on the 8th of April Mr. Leonard executed a blank assignment of the Stapleton note and judgment, which he delivered over to Rees, along with the note itself, but whether this assignment passed into the hands of Lewis Davis, along with the note, does not satisfactorily appear. That during the first half of the month of June 1871, Rees Davis got the Stapleton note from his father, upon the pretext that it was necessary he should have it to lay before the auditor, who had been, or was about to be, appointed to report distribution in the assigned estate of Stapleton. That Lewis' Davis parted with its possession upon this representation and for that purpose, and without any knowledge or understanding on his part, that it was to be used for any other purpose whatever; and he -was, in fact, not aware that any other use had been made of it until so informed by Mr. Leonard, in the spring of 1873. That on the 16th of June 1871, Rees being unprepared to pay off the note which he had given on the 8th of April, at two months, gave in lieu thereof, his note for .$500, payable on the 1st day of April 1872, and at the same time he gave Mr. Leonard another note for $1500, also payable on the 1st of April 1872, and received from Mr. Leonard, in consideration thereof, a check for $1120, the difference of $380 being discount on the two notes, at the rate of two per cent, a month, retained for the use of the money. At the same time, and as a part of thé same transaction, papers were made and delivered, and Mr. Davis then passed over to Mr. Leonard the Stapleton note, together with the blank assignment which the latter had executed on the 8 th of April previously; but whether the words, ‘ collateral for Stapleton and Whiteside bonds,’ were put on the notes at that time, or not until afterwards, the auditor is unable to determine, as the two witnesses who alone have knowledge on the subject stand diametrically opposed to each other.</p> <p>“ That Lewis Davis was not privy to this transaction of the 16th of June, and did not become fully cognisant of the facts until they were developed in the course of the present investigation. * * * That when the audit for distribution in the Stapleton estate was held in the fall of 1871, the judgment entered on the note in question participated therein, being awarded $299.16 out of the personal property, and $2457.60 out of the proceeds of real estate — the latter sum being the balance of such proceeds, after paying prior liens in full; and it appears that this judgment was presented along with the other claims against the assigned estate by Rees Davis, as attorney for the assignee, and the dividend was awarded to Mr. Leonard, because the judgment stood upon the record in his name. That Mr. Leonard made no demand upon the assignee for payment of the dividend so awarded to him, until the month of April 1873, at which time Rees Davis had disappeared from West Chester, and his whereabouts W'ere unknown.</p> <p>“ There was a collateral issue raised during the investigation respecting the genuineness of the signatures of a paper purporting to be an acknowledgment of no set-off to the Stapleton note by the assignee. This paper purports to have been signed by Lewis Davis, as maker, and by Rees Davis as a witness. * * * There is no presumption, legal or otherwise, in favor of the genuineness of these signatures, and the burden is upon Mr. Leonard, who offered them in evidence, to establish their verity. This, we think, in view of all the evidence, he has failed to do. It must not be understood, however, that we pronounce them to be forgeries. That is not the issue. We simply find that they have not been proved to be genuine. We might, perhaps, find upon the same evidence that they had not been proved forgeries; but as that is not the issue, we are not called upon to record our opinion.”</p> <p>The auditor then proceeded :</p> <p>“ Now, was the taking up of this obligation a payment or a purchase on the part of Lewis Davis? We have already seen that payment was what Mr. Leonard demanded and sought to enforce ; and we have also observed that the money was forwarded by Mr. Davis, accompanied by a stipulation that it was to be used in making payment of the obligation. But it is said this purpose which both parties had in view was not carried into effect, and that a transaction, essentially different in its consequences was substituted in its place. Why should this intention of the parties be so changed ? And would it not be a fraud upon' Lewis Davis to so act ? And could anyone privy to the transaction reap any advantage from it subsequently ?</p> <p>“ It is clear, so far as Lewis Davis is concerned, payment was what he intended should be made, and payment was what after-wards had been made. And it is also clear he believed at that time he had enough trust funds in his hands to pay 'off the obligation in full; and he actually had enough, and more than enough, before taking out his commissions as assignee. There was no motive or inducement to purchase which did not exist also to pay, or was superior in the former to the latter case. The moneys employed to take up the obligation were the trust funds belonging to Stapleton’s estate, and we are persuaded Mr. Leonard had knowledge of that fact' at the time the transaction was consummated ; at least the probabilities are in consonance with this opinion. * * * There was no consideration whatever for this contract for sale, and the delivery of the note in contract for sale, and the delivery of the note in question, and the blank assignment of the judgment, except what, if any, is to be found in the $1120 which Mr. Davis received from Mr. Leonard on the $1500 note. The design and real purpose was that these judgments should be pledged as collateral for the $1500 note; and the words on the note, “ collateral for the Stapleton and Whiteside bonds,” are a perversion of the truth, the fact being precisely the reverse of the statement therein contained. We are conscious that this finding in the face of the writing itself, may seem strange, but an acquaintance with all the facts makes the conclusion inevitable.</p> <p>Recurring now to the transaction in April, we are of opinion, from a careful consideration of all the facts and evidence in the case, that it should be regarded as a payment of the obligation, and not as a purchase thereof.. Indeed, it might well be doubted, as before intimated, whether the assignee could huy up the obligations of the assignor, and thus put himself in a more hostile attitude towards the estate or' its creditor, than he had previously occupied. He certainly could not do so with the trust funds, and it is very questionable whether he could do so with his own funds, unless some equity was to be enforced by reason of the proceedings. * * * Being a payment, the effect was an extinguishment of the debt — an absolute wiping it out of existence. And it was thenceforth incapable of being used for any purpose whatever. It follows, of course, that any attempt thereafter to sell or assign or pledge the security, would be invalid and fruitless. No title can be acquired to a dead security. But it may be contended that whilst payment with the trust funds would at law be an extinguishment of the debt, and the judgment could not afterwards be kept on foot without the consent of persons interested, yet in equity, the judgment would still exist, to enable the payor to indemnify himself in the marshalling of the assets or to obtain an order in his favor in the distribution, and that if he chose to assign or to allow an agent or attorney to assign to another, whatever sum he might be entitled to in distribution, there is no principle of law or equity will interfere to prevent it. * * * But Mr.- Leonard could not obtain title through this fraudulent proceeding; even if he were an innocent purchaser for value he would acquire no title. The fraudulent vendor having no title, he could not invest his vendee with any. * * * But we do not think Mr. Leonard is to be regarded in exactly the light of an innocent purchaser for value. There was enough in the case and in the manipulation of this particular security to have put him on inquiry. He was entirely acquainted with the transaction of 1871, and he knew or ought to have known that the bond had been taken up by Lewis Davis with trust funds. Whilst we do not imagine that he was cognisant of the fraud that was being perpetrated, or was lending a willing and knowing assistance thereto, we nevertheless think that he did not exercise that caution and make that inquiry which his knowledge of the circumstances and of the relation of the parties made it incumbent upon him to exercise. In other words, he was in default in accepting this transfer without first endeavoring to ascertain Bees Davis’s status in connection with the obligation. This is not to his discredit, but it is unfortunate for his claim.” * * * •</p> <p>The auditor then reported that the sum of $2756.76 was improperly paid to Mr. Leonard, in the distribution of the Stapleton estate, and that the said sum should have been awarded to Lewis Davis.</p> <p>Exceptions were filed to the report of the auditor, which the court dismissed, whence this appeal.</p>

<p>Error to the Court of Common Pleas of Montgomery county : Of July Term 1879, No. 62.</p> <p>Assumpsit by George D. Heist against Edwin G. Booth.</p> <p>This suit was brought to recover the money due for lumber delivered for the erection of buildings at Chestnut Hill. When applied to for this lumber, in May 1875, by Samuel Meredith, the contractor or builder, and after a small quantity had been furnished and charged to the defendant, the plaintiff called upon the defendant and informed him that he was furnishing lumber for the- construction of these buildings, and charging the same to, him, and he‘ was asked if this was right, saying, “ If it is not all right I want, you to say so.” Defendant then replied that it was right, provided he got a certain deed for property there — one of the properties that had been built. Plaintiff then left defendant and called upon Mr.. Meredith.</p> <p>After proving these facts on the trial, witness was then asked, “Did you communicate to Meredith what Booth said?” To this, defendant objected, but the court overruled the objection. This forms the first exception. Witness then answered, “ I did.”.</p> <p>Meredith was then called as a witness, and testified that the deed to which defendant referred in his interview with the plaintiff was by him delivered to the defendant. He further testified that he had left money in defendant’s hands to pay the bills charged to him.</p> <p>On cross-examination, this witness was asked by defendant’s counsel, “ What conversation did you have with Heist (the plaintiff) when you first went to him about the lumber?” Objection was made to this question as not being cross-examination, and sustained. This formed the second exception.</p> <p>Plaintiff’s books containing the original entries against defendant were then received in evidence without objection.</p> <p>Defendant then offered a building agreement made between himself and Meredith, by which it appeared that he was to advance $2200 on each house as it was erected, and by which it also appeared that defendant, at the time the lu'mber was furnished beside the money left by Meredith in his hands to pay bills charged to him as above mentioned, had a sum of money in his hands payable to Meredith from which he was to pay plaintiff.</p> <p>The defendant presented the following point:</p> <p>“ That there is no such clear and explicit evidence of a promise by the defendant to pay the debt as entitles the plaintiff to recover, and their verdict should be for the defendant.”</p> <p>The court, in answer to this point, said: “ I decline to charge as requested,” and further said: “If you believe the evidence of the plaintiff, the plaintiff is entitled to recover, and the verdict should be in his favor.”</p> <p>Verdict for plaintiff for $559.51, and after judgment defendant took this writ and alleged that the court erred in their rulings on the above evidence and in the answer to the foregoing point.</p>

<p>An award was filed in favor of E, on the 8th of June 1875, and at the expiration of twenty days thereafter the judgment became absolute, and execution was issued thereon. In September following, the court granted a rule to show cause why the award should not be stricken off, and on the 6th of November, the rule was made absolute. On the 19th of the same month, the court reconsidered its action and reinstated the rule. It afterwards discharged the rule; but in pursuance of agreement of counsel, allowed an appeal from the award. On the final trial E. recovered judgment. L., as administrator, recovered a judgment against the same defendant on the 28th of June 1875, and one in his own right on the 9th of November, following. Held, that the lien of E.’s judgment was not postponed to that of the two judgments in favor of L., by the action of the court.</p>

<p>1. Where on its face a writ of attachment embraces nothing but the defendant’s interest, or his- distributive share in the personal assets in an administrator’s hands, and the return of service shows no attachment of lands or interest therein, and it was admitted the administrator was not in possession of the land, the writ and service do not bind the defendant’s interest in the real estate of the decedent..</p> <p>2. Per Teunkey, J. — “The Statutes of June 13th 1836, June 16th 1836, April 13th 1843 and April 10th 1849, have not confounded legacies and ■ devises, nor the respective interests of one in the realty and personalty of an intestate, but have made each and all liable to attachment upon execution in satisfaction of a judgment. . ‘Legacies given’ and ‘lands devised’ are artistic phrases meaning different things, and neither includes the other. And so an interest in the goods and chattels of an intestate is quite different from an interest in his lands.”</p> <p>3. Stradley’s Appeal, 7 Wright 89, and Neely v. Grantham, 8 P. P. Smith 433, reviewed.</p>

<p>1. The 11th section of the Act of April 17th 1878, known as tho“New County Act” provides that, “ the governor shall immediately appoint and commission for the new county the necessary county officers as provided hy law, who shall perform the duties, have the power and be subject to the like qualifications as have county officers of this Commonwealth, and shall continue in offiee until the next general election and until their successors shall be duly elected and qualified.” Sect. 7, art. 14, of the Constitution pi-ovides that, “three county commissioners and three county auditors shall be elected in each county where such officers are chosen in the year 1875, and every third year thereafter.” On August 21st 1878 the new county of Lackawanna was erected under the provisions of the above act. On the 22d of August 1878, the governor commissioned respondent as commissioner of said county. At the general election, on the first Tuesday of November in 1878 and 1879 the relator was elected and re-elected to said office: Held, that the time for filling the ofiices of county commissioners had not arrived at either of said elections, and the relator was not duly elected, and that the proper time for electing was in 1881, being the same year when the other counties of the state were to elect the same officei's.</p> <p>2. The proper time for an election was at the second triennial period, from 1875, when, as here, the first general election was within three months of a vacancy.</p>

<p>Error to the Court of Common Pleas of Lackawanna county: Of July Term 1879, No. 57.</p> <p>Case by John M. Catterson against the city of Scranton, to recover damages for injuries received from the alleged negligence of the city in allowing an obstruction on one of its streets.</p> <p>From the testimony on behalf of the plaintiff, it appeared that in December 1877,. he was driving a wagon with two horses on a slow trot up Penn avenue, in the city of Scranton, and in turning into Mulberry street the left front wheel of the wagon struck the head of an iron water-plug, which projected about six inches from the ground, and which plaintiff did not see,.and that by reason thereof he was thrown from the wagon and injured. The plug was about the middle of the street, and had been placed there by the Scranton Gas and Water Company before the incorporation of the city. It had originally only projected about two inches from the ground, but some few months before this occurrence the city had lowered the level of the street, and it was thus made to project several inches more. The plaintiff gave in evidence the Act of Assembly incorporating the city of Scranton in 1867, wherein it was authorized to open streets, and the duty imposed upon it of regulating them.</p> <p>Several witnesses for the defence testified that they knew of the plug, that wagons had gone over it without accident, but that knowing its whereabouts they avoided it. The street commissioner, on cross-examination, testified that lie lived near the point of the accident; that he had frequently observed the plug; that when he saw it he thought it projected about five inches from the ground.</p> <p>The defendant offered in evidence the charter of the Scranton Gas and Water Company: Pamph. L. 1856, p. 599. Offered for the purpose of showing that the legislature authorized the Scranton Gas and Water Company to put the plug in at the point of the accident; that the city has no control over it; that the said company is not the servant or agent of the city in this matter, and is not responsible to the city, but to the state. Objected to and objection sustained. (1st assignment of error.)</p> <p>The following is one section of the charter:</p> <p>“ The said company shall have power to provide, erect, and maintain all works, machinery, fixtures, or engines necessary or proper for making, raising, and introducing into the village of Scranton, Luzerne county, a sufficient supply of gas and pure •water; and for that purpose may provide, erect, and maintain all proper buildings, cisterns, and reservoirs for the reception of the gas and water to be introduced, and for this purpose they are authorized and empowered by themselves, their agents, engineers and -workmen, to take water from any stream, and with their tools, carts, -wagons and horses, to enter upon lands and enclosures, streets, lanes and alleys, roads, highways and bridges, as may be necessary to occupy or to obtain necessary materials for the construction of the said works, and to occupy, ditch and lay pipes, and from time to time to repair the same; and if any injury be done to private property, the said company shall make- compensatiqn therefor in the manner hereinafter provided.”</p> <p>.The defendant, inter alia, submitted the following points to which are appended the answers- of the court, Handley, P. J.</p> <p>2. Plaintiff was bound to use ordinary care and caution, and if he could by such care have avoided the accident he cannot recover. The least contributory negligence will prevent a recovery.</p> <p>Ans. “ This point we affirm; but, as we said to you in our general charge, if you find that there was the least contributory negligence on the part of the plaintiff, and there was also negligence on the part of the city, it is not for you to balance the scales of justice and say -which one of these parties is to blame. The law casts the responsibility upon this plaintiff of using ordinary care in passing over the public highways; if he failed to use that care he must suffer the consequences and cannot recover.”</p> <p>3. If the jury believe that the obstruction in the street was placed there under .authority of the state, and independent of the city authority, then the action should be against the authority guilty of the obstruction.</p> <p>Ans. “ This point we cannot affirm.” (2d assignment.)</p> <p>4. A person driving over a road with which he is unacquainted should carefully examine the way ahead, especially when turning corners, and a non-compliance with this is negligence.</p> <p>Ans. “ This point as presented we cannot affirm.” (3d assignment.)</p> <p>6. The city of Scranton is not liable for injuries resulting from obstructions placed in the street by the Scranton Gas and Water Company, in the pursuance of its lawful 'business under the authority given by its charter from the state.</p> <p>Ans. “This point we cannot affirm. We have no hesitation in saying to you that the Scranton Gas and Water Company no doubt had the right to construct such works as the law-making power of this state authorized her to do; but neither the Scranton Gas and Water Company nor any other company can put a structural obstruction in the public highways. If the Gas and Water Company did put this obstruction there, and the attention of the city was called to it, and she failed to compel the company to remove it, and it remains there, and an injury of this kind occurs, without any contributing negligence on the part of the defendant, it is the city that must first answer, although the Gas and Water Company may afterwards have to answer. (4th assignment.)</p> <p>Verdict for plaintiff, and after judgment thereon defendant took this writ and alleged that the court erred in rejecting the testimony and in the answers to the points as set forth in the above assignments of error.</p>

<p>1. In a petition under the Act of June ilth 1879, to procure the satisfaction of a mortgage, the terre-tenant alleged that when the property was conveyed by the mortgagor to him, he had paid the mortgage debt to the mortgagee. In his answer, the mortgagee denied the payment, and the assignee of the mortgage alleged that she was the assignee for value without notice. The court directed an issue to try the question of payment, and the petitioner, who was plaintiff in the issue, testified that the mortgagee had undertaken to procure a conveyance of the property to him clear of encumbrances for a certain consideration; that plaintiff had accepted the conveyance on these terms, and the consideration was paid, but the mortgages were not satisfied. It was admitted that the mortgages were subsequently assigned for value to one of the respondents, the defendants in the issue. The court below directed a verdict for the defendants on the ground that there was no evidence of payment by the mortgagor to the mortgagee: Held, that this was error ; that the testimony of the plaintiff should have been submitted to the jury, as in the absence of any evidence on the part of the defendants, the plaintiff was entitled to the full benefit of his testimony, and any inferences of fact.which the jury might be justified in drawing therefrom, and that they might have found such a payment.</p> <p>2. Where a terre-tenant has procured the payment of a mortgage, although he has neither obtained possession of the mortgage nor had it satisfied, his equity is superior to that of an assignee of the mortgage who, at the time of the assignment, made no inquiry of the mortgagor who had sold the property to the terre-tenant in a deed that contained no reference to the mortgage.</p> <p>3. Jeffers v. Gill, 20 Norris 290, distinguished.</p>

235. Feigned issue, wherein the National Building Association was plaintiff, and David L. James and David T. Jones, defendants, to determine the’liability of the latter as surety on a promissory note given by James to the association. On the 16th of May 1870, James borrowed of the National Building Association, then an unincorporated association, $680, and gave as security for the same to said association his judgment note for $1000.

173. Feigned issue wherein Catherine Leonard, administratrix of Elizabeth Murtaugh, deceased, was plaintiff, and John O. Duffin and Mary Duffin defendants, to inquire into the consideration of a judgment for $1065, entered on a judgment-note with a warrant to confess judgment, which judgment the court opened and let the defendants into a defence. At the trial it appeared that in 1866, Samuel Duffin borrowed of Mrs. Elizabeth Murtaugh $300.

<p>Error to the Court of Common Pleas of Lackawanna county: Of January Term 1880, No. 240.</p> <p>The following case was stated for the opinion of the court in the nature of a special verdict.</p> <p>On the 19th day of January 1879, the First National Bank of Scranton, Pennsylvania (which is a banking association under the National Bank Act), paid into the state treasury a tax of one per centum upon the par value of all the shares of said bank,' having elected to collect the same from the shareholders of said bank, as provided in the Act of Assembly of 31st March 1870, paragraph 4.</p> <p>Part of its capital and profits is invested in its bank building, situated on Lackawanna avenue, in the city of Scranton, Lackawanna county. The said building is occupied as follows: The main or first floor by the bank as its banking-room ; in the rear of banking-room are two small offices for rent. The second floor is divided into five (5) offices, which are rented by the bank. The third floor is used as a Masonic hall. The basement of the same is occupied by the watchman of the bank and his family, except a small room in the front part of the basement, which is occupied,, under lease from the bank, as a shoe shop. The rents from the said offices and hall amount to eléven hundred dollars ($1100) per annum. The assessed valuation of the bank building is eight thousand ($8000) dollars. The county tax against the bank building for the year 1879 is forty-eight ($48) dollars.</p> <p>If the court shall be of opinion that the said building is liable to taxation for county purposes, then judgment for the plaintiff for forty-eight ($48) dollars, with costs; if not, then judgment for defendant, with costs. Either party to be at liberty to take out a writ of error.</p> <p>“If the court shall be of opinion that the part of the bank building rented is subject to the county tax, then judgment for the county of Lackawanna for twenty dollars, with costs.”</p> <p>The 4th section of the Act of 1870, Purd. Dig. 142, Pamph. L. 97, provides that, “ In case any bank or savings institution as aforesaid (the previous section having stated that ‘ all the shares of national banks located within this state, and of banks and savings institutions incorporated by this state shall be taxable ’) shall elect to collect annually from the shareholders thereof a tax of one per centum upon the par value of all the shares of said bank or savings institution, and pay the same into the state treasury on or before the 20th day of January in every year, the said shares, capital and profits shall be exempt from all other taxation under the laws of this Commonwealth.”</p> <p>The court, Handley, P. J., was of opinion “ that the property named is exempt under the law from the payment of any other tax than that already paid,” and entered judgment for the defendant, with costs.</p> <p>The plaintiff took this writ and assigned this action for error.</p>

<p>1. An execution had issued against K., and his personal property was about to be sold at sheriff’s sale. Being about to leave home, K. and his brother, W., entered into an agreement that the latter should bid off the property and return it to K., on being paid the amount he should bid for it, and for his trouble. W. bid off most of the property sold, but afterwards, for his own use and benefit, sold and disposed of the same, denied the agreement and refused to account. K. brought an action of assumpsit to recover damages to the extent of the value of the property bid in by W. The declaration contained the common counts and also a special count “ for the value and price of property which the defendant bid in at sheriffs sale as the property of plaintiff, for the use and benefit of plaintiff', the same under an arrangement and agreement with plaintiff, being held for the plaintiff, but which the defendant sold and appropriated to his own use, contrary to the understanding and agreement between the parties Held, that although the count was inartifieially drawn as it was not demurred to, nor any objection made to the admission of evidence thereunder, if the evidence showed a sufficient consideration to support the agreement of W., the omission to state it specifically in the declaration was not fatal to the right of K. to recover.</p> <p>2. W. having disposed of part of the property for which he rendered no account, he was presumed to have received a sum of money equal to its value, and an action for money had and received would lie therefor.</p> <p>3. The defendant requested the court to charge that there could not be a recovery on the special count, unless the property was bid in by W., under an. express agreement to do so, and if he did so agree, yet if K. furnished no money for that purpose, and W. bought with his own money, the agreement was nudum pactum and void, and that the count could not be sustained or helped, by evidence that W. dissuaded persons from bidding at the sheriff’s sale. The court substantially so charged, with the qualification unless the jury also found that W. made use of artifice in dissuading persons present from bidding at the sale, on the ground of his agreement, and purchased the property much below its value, and then refused to return the property to K. when so requested. Held, that this was not error.</p>

<p>Appeal from the Orphans’ Court of Northampton comity: Of January Term 1880, No. 83.</p> <p>Appeal of Henry Williamson from the decree of the court dismissing the exceptions filed by the said Williamson to the report of P. C. Evans, Esq., auditor upon the account of Jacob H. Beck, administrator de bonis non, &c., of Stephen Remaly, deceased.</p> <p>From the testimony taken by the auditor he reported the following facts:</p> <p>“ That Stephen Remaly died prior to April 1st 1873; that at the time of his death there was a dower charged on his estate of more than $700 in favor of Mary Knecht; that about April 1st 1873, Mary Knecht died, and the dower became due; that Sarah Remaly had taken, out letters of administration on the estate of her deceased husband, and, being desirous of remaining in possession of the estate and thereby to keep her family together, undertook the paying off of the dower; that to do this she borrowed $600 of Henry Williamson, and gave therefor her individual judgment-note. Williamson appeared before the auditor, and asked to have distributed to him tire amount borrowed by Mrs. Remaly for the payment of the dower.”</p> <p>The auditor found that the money borrowed by Mrs. Remaly from Williamson went towards paying off the Knecht dower ; that when Mrs. Remaly borrowed the money she promised to repay it when she should sell the decedent’s real estate; that the administrator de bonis non included Williamson’s claim in his schedule of debts of the decedent when he petitioned the Orphans’ Court for an order of sale, but reported that Williamson had no standing as a claimant in the distribution of the fund derived from the sale of Stephen Remaly’s real estate under an order of the Orphans’ Court.</p> <p>Exceptions were filed to this report, which the court, Meyers, P. J., dismissed, in an opinion, inter alia, saying:</p> <p>“ The exceptions practically raise but two questions — 1. Is Henry Williamson a creditor of the estate of Stephen Remaly, deceased? 2. Is Henry Williamson entitled to be subrogated to the rights of Sarah Remaly, adminstratrix, by reason of her payment of the Knecht dower ?</p> <p>“ 1. It is not pretended that there was any contract relation between Williamson and the decedent in his lifetime. The loan was made after the death of the decedent to his administratrix on her personal obligation. It no doubt is true that the greater part, and probably the entire $600, was applied by the administratrix to the payment of a debt for which the estate was liable, and that Sarah Remaly, in her capacity as administratrix, induced Williamson to loan her the money upon the promise that it would be repaid out of the decedent’s real estate when sold. But these circumstances do not make the estate liable, even though the judgment-note had been executed by her as administratrix.</p> <p>“A declaration alleging that the defendant, as executor, was indebted to the plaintiff for so much money lent by the plaintiff to the defendant, as executor, and for money had and received by the defendant as executor, for the use of the plaintiff, and that in consideration thereof the defendant, as executor, promised to pay, charged him personally, and the only possible judgment is de bonis propriis: Rose v. Bowler, 1 H. Black. 108; Powell v. Graham, 7 Taunt. 223; Ashby v. Ashby, 7 B. & C. 444. And in this state it has been held that in all cases of promise, express or implied, made by an executor or administrator after the death of the testator or intestate, an action lies only against him personally: Grier v. Huston, 8 S. & R. 402; Beeson v. McNabb, 2 Barr 4221 Solliday v. Bissey, 2 Jones 347; Seip v. Drach, 2 Harris 352; Bogle v. Kreitzer, 10 Wright 465. In Seip v. Drach, supra, it was held that nothing is better settled than that an executor or administrator is answerable in his official character for no cause of action that was not created by the act of the decedent himself. In actions against the personal representative on his own contracts or engagements, though made for the benefit of the estate, the judgment is de bonis propriis, and he is, by every principle of legal analogy, to answer it with his personal property.</p> <p>“ The doctrine sanctioned in Collins v. Weiser, 12 S. & R. 97, is not applicable. There the declaration set forth an implied promise by an administratrix, as such, for money paid, laid out and expended by the plaintiff for her use as administratrix in consequence of the payment after, the death of the intestate of a debt for which he and the plaintiff were jointly liable in his lifetime, which was held good, and that a judgment de bonis testatoris founded upon it may be supported. In support of it, Gibson, J., says, ‘that an implied promise arises out of and follows the nature of the consideration, which in this case was the actual payment of money to the use of the administratrix, as such; and there is therefore no great technical absurdity in implying a promise by her in the character in relation to which the money was paid to her use. * * * While the debt did not arise until after his (the intestate’s) death, the liability which produced the payment, which is the consideration of the promise, existed in his lifetime.’ It is quite manifest that this case is an exception to the general rule, growing out of the fact that the plaintiff and the intestate were in the lifetime of the latter jointly liable for the debts paid by the plaintiff.</p> <p>u The farthest that the courts have gone in this state is that where a settlement of an account against an estate is made by executors, an obligation by them, under their hands and seals, to pay the balance out of the assets of the estate creates no personal responsibility on their part beyond the assets which came to their hands : Allen v. Griffin, 8 Wright 397. So, also, where a warrant of attorney to confess a judgment is given directly to a creditor of the estate by an administrator, who signed it as such, it does not impose any personal liability upon him: Dickey v. Trainer, 7 Wright 509.</p> <p>“ The only authority that an administrator has to encumber real estate of a decedent for the payment of debts is by the Act of March 29th 1882, and that only extends to mortgaging the same under an order of the Orphans’ Court. It was therefore held, in Barger v. Cassidy, 4 Phila. 324, by Judge Sharswood, of the District Court, that an order authorizing an administratrix to borrow money upon real estate was an authority to mortgage the estate and not to confess a general judgment. The administratrix borrowed the money on a judgment confessed by her as such, and in a collateral proceeding it was held that it did not bind the real estate of the decedent.</p> <p>“ The fact that in this case the claim of Williamson was included in the schedule of debts of decedent in the petition of the administrator de bonis non, &c., for an order of sale of the real estate, does not make the estate liable to Williamson when there was in fact no legal liability. Nor does the further fact that the parties to the judgment-note intended it to be only a collateral security to the parol promise made by the administratrix, as such, that the money loaned to her should be paid out of the estate have the effect of making the estate liable. It was not a promise to a creditor of the estate, but to a third party, the consideration. of which had its inception after the death of the intestate. For these reasons, he must look to Sarah Remaly for payment, who is the only person liable on her judgment-note.</p> <p>“2. It is unquestionably the law that when an executor, administrator or assignee for the benefit of creditors advances money to pay a lien on the trust estate he is subrogated to the rights of the creditor whose claim he has paid: McCurdy’s Appeal, 5 W. & S. 397; Wallace’s Appeal, 5 Barr 103; Robb’s Appeal, 5 Wright 46.</p> <p>“ This right of subrogation cannot, however, extend beyond the trustee who has paid the money. A third person who advances the money to the trustee to pay the same has no such equity. Even a payment by a third person' to the creditor would give the former no rights either legal or equitable against the estate of the debtor, on the ground that he is a mere volunteer, unless he took an assignment of the debt. Whatever may be the rights of Sarah Remaly as administratrix to be subrogated to the rights of the heirs of Leonard Knecht,. deceased, she makes no claim in that respect, and I know of no rule in equity that entitles her debtor, Williamson, to do so.</p> <p>“ We think the auditor was right in rejecting the claim on both grounds. Exceptions dismissed and report of the auditor confirmed absolutely.”</p> <p>From this decree this appeal was taken.</p>

<p>Error to tbe Court of Common Pleas of Monroe county: Of January Term 1880, No. 66.</p> <p>Covenant by Lafayette Rowland against Pike county to recover interest on several bonds issued by said county.</p> <p>The defendant pleaded non est factum; non infregit conventionem, and want of consideration, with leave, &c., and also filed the following special pleas:</p> <p>1. That on the 5th day of November 1875, when it is alleged the covenants set forth in the declaration were made, no meeting of the commissioners of the county of Pike was held at which said covenants could be lawfully made.</p> <p>2. That on said 5th day of November 1875, while one of said commissioners was by reason of intoxication entirely incapacitated for transacting business, he was induced with another of the commissioners to enter the commissioners’ office in the evening and cause the record of the adjournment of the board of commissioners to be falsely and fraudulently altered, and then and there, unlawfully and fraudulently if ever, said covenants were made by said two commissioners.</p> <p>3. That all the above stated matters were well known to the plaintiff, and that the intoxication of said commissioner and alteration of the minutes were procured by the plaintiff for the purpose of unlawfully and fraudulently obtaining said covenants.</p> <p>4. That on said 5th day of November 1875, the indebtedness of Pike county exceeded two per cent, of the last assessed valuation of taxable property in said county; and the assent of the electors of said county had not been obtained to the increase of said indebtedness.</p> <p>The special plea was subsequently amended to aver that two of the commissioners met during the day of the 5th of November 1815, and adjourned to the 9th of November, and that the meeting on the evening of the 5th of November, when it is alleged said bonds were issued, was not in pursuance of any adjournment, and without notice to Geyer, one of the commissioners.</p> <p>A change of venue was made to the county of Monroe.</p> <p>At the trial it appeared that by the Act of April 5th 1862, Pamph. L. of 1863, 652, George H. Rowland and others were incorporated under the name of the Lackawaxen Bridge Company •for the purpose of constructing a bridge across the Lackawaxen river in Pike county. The bridge was completed in 1863. In the winter of 1864, an act was passed authorizing the bridge company to sell the bridge to Pike county, and the county commissioners to purchase it and issue county bonds therefor. The act, provided, however, that before said sale could be made, the assent in writing of a majority in number of the stockholders should be given. From the testimony on behalf of plaintiff it appeared that a majority of the stockholders signed the assent to the sale, and that the approval of the court was then obtained. Rowland then had some bonds printed, and went to the commissioners to have them executed, but then ascertained that two of the commissioners, Drake and Geyer, were opposed to the purchase. Shortly thereafter, at the general election, on the 5th of November, new commissioners opposed to the purchase of the bridge were elected. It appeared that on the day of the election, Drake, who wms defeated at the election for re-election, met Rowland and told him that he had a notion to go in for buying the bridge. On the 4th of November Geyer, Drake and Rosecrans, the then old commissioners, were in regular session, and during its session Geyer asked when the next meeting would be held, and was told on the 9th, but that they would adjourn over to the 5th to finish business. Geyer then left before the close of the meeting. Rosecrans and Drake met on the 5th and Rowland went before them, and the two commissioners determined to purchase the bridge. The meeting adjourned until the evening to enable the counsel of the commissioners to prepare the necessary papers, when, the bonds were executed and issued. On the part of the defendant it was shown that A. Hanners, one of the assenting stockholders, claimed to be a stockholder by reason of the following facts: His father had recently died owning some of the stock. He took out letters of administration on his father’s estate, filed an inventory and appraisement of the personal property, including this stock, and in the evening of the same day agreed with his mother and three sisters (two of whom were minors without guardians) to take all the personal property at its appraised value. The stock was never transferred to him on the books of the company, and at the time of signing this assent, and of the subsequent action of the commissioners based upon it, he had filed no account as administrator nor in any public manner charged himself with the stock. He did not sign the assent as administrator but as an individual claiming personally to own the stock.</p> <p>'Geyer testified that when he left the meeting on November 4th, the understanding was that no further business was to be transacted except the appointment of an assessor, that this was to be done at the meeting of the 5th, and that the meeting of the 4th was to be adjourned to the 9th.</p> <p>The commissioners’ record showed 'that Rosecrans and Drake did meet on the 5th and transacted the particular business agreed upon, and that an adjournment to the 9th instant was then entered. The commissioners’ clerk testified, “ They adjourned to the 9th instant. The record of the adjournment to Tuesday, the 9th instant, was made at that time.”</p> <p>Drake was seen with Rowland several times during the afternoon and evening of the 5th — Drake being in a state of intoxication. He was then heard to declare that he w’as disposed to favor the purchase of the bridge. Later in the evening he, with Rosecrans, the other commissioner, went into the commissioners’ office, caused the record to be altered to show an adjournment to that evening instead of the 9th instant, adopted a resolution to purchase the bridge, executed and delivered $2100 county bonds therefor and adjourned. Geyer, as commissioner, filed his protest at once, and the new board of commissioners refused to recognise the transaction, when this suit was brought by Lafayette Rowland (who still held the bonds, having never distributed them to the stockholders of the bridge company) to recover two years’ interest.</p> <p>The defendant proposed to ask Thrall, one of the defendant’s witnesses:</p> <p>Had -you any conversation with Sol. Drake, one of the county commissioners, prior to night of November 5th 1875, during the day of the 5th, with reference to his (Drake’s) views as to the purchase of the Lackawaxen bridge, what he intended to do, and as to any inducements that had been held out to him by George Rowland or Lafayette Rowland ?</p> <p>“ Objected to and objection sustained.” (1st assignment of error.)</p> <p>Also, to prove by witness that on Friday, November 5th 1875, Sol. Drake said to the witness that he was offered by the plaintiff $500, and a trip to Niagara Falls ánd expenses paid, if he would assent as commissioner to the purchase of the bridge.</p> <p>“ Objected to and objection sustained.” (2d assignment.)</p> <p>The defendant also objected to the admission in evidence of the bonds, on the ground that plaintiff had not shown the assent in writing of a majority of the stockholders of the bridge company.</p> <p>“Objection overruled.” (3d assignment.)</p> <p>The defendant submitted the following points, all of which the court refused, constituting respectively, the 4th, 8th and 9th assignments of error:</p> <p>1. That if the jury believe from the evidence that, during the forenoon or afternoon of the 5th day of November 1875, the commissioners adjourned to meet on Tuesday, the 9th instant, and that the subsequent meeting on the evening of said 5th day of November, was without notice to Greorge Greyer, one of the commissioners, and without his knowledge, then under the law the commissioners, Rosecrans and Drake, had no power at such meeting to purchase the Lackawaxen bridge and issue bonds therefor, and that the county of Pike is not bound by said action.</p> <p>2. It appearing from the evidence that the indebtedness of Pike county, on the 5th day of November 1872, exceeded two per centum upon the assessed valuation of the taxable property therein, the commissioners were, by the Constitution and laws of this Commonwealth, at that time prohibited from incurring the additional indebtedness of $2100, and such attempted action of two of said commissioners, and the bonds alleged to have been issued by them could not and did not bind the county of Pike.</p> <p>3. Lafayette Rowland, the plaintiff, having been treasurer of the county of Pike on the 5th day of November 1875, and during the year 1875, is charged with knowledge of the fact that the indebtedness of the county exceeded two per centum upon the assessed valuation of taxable property in said county at that time, and he cannot recover upon the bonds upon which the suit is founded.</p> <p>The plain tiff ..submitted the following points:</p> <p>1. That the net amount of indebtedness of Pike county existing at the time of the adoption of the new Constitution and the issuing of the bonds in question, being less than three per centum on the assessed valuation of taxable property, and the n.ew indebtedness created by the purchase of the bridge not exceeding two per centum on such valuation, the issuing of said bonds is not in contravention of the 8th section of the 9th article of the Constitution, or of the Act of 20th April 1874.</p> <p>2. That the Act of 23d March 1865, providing for the sale of the Lackawaxen bridge, is not repealed by the 8th section of the 9th article of the Constitution, nor by the Act of the 20th of April 1874, nor is the right to carry out the provisions of said act suspended or controlled by the Constitution or the Act of April 20th 1874.</p> <p>4. That under the Act of March 20th 1874, the commissioners of Pike county had a right to increase the then existing debt, or create a new debt, not exceeding two per centum of the valuation.</p> <p>The court affirmed these points, pro forma (6th, 7th and 13th assignments), and reserved the questions involved therein.</p> <p>In the general charge, the court, inter alia, said: “We charge you that it was not necessary to notify Geyer, the other commissioner, of the meeting on the evening of the 5th, when the bonds were issued, if the other two commissioners were there according to adjournment, or in pursuance of notice to themselves without a previous adjournment.” (5th assignment.)</p> <p>May 31st 1879, verdict for the plaintiff in the sum of $252, subject to the opinion of the court, whether under the following facts, which they find, to wit: That at the time of the adoption of the .present Constitution of this state, and at the time of the purchase of the bridge by the commissioners of Pike county, and for the purchase-money of which the bonds described in the plaintiff’s declaration were given, the indebtedness of said county exceeded two per centum, but did not exceed three per centum upon the assessed valuation of taxable property therein, that the purchase or consideration-money for said bridge did not exceed 2J mills on the dollar of the assessed value of' such taxable property, and ■the commissioners of said county purchased said bridge and issued said bonds on the 5th day of November 1875, under the authority conferred upon them by the Act of Assembly, approved March 23d 1865, entitled “An act for a free bridge over the Lackawaxen river at Lock No. 10, on the Delaware and Hudson Canal,” the plaintiff is entitled to recover.</p> <p>If the court shall be of opinion that under these facts the plaintiff cannot recover, that then they find for the defendant, and judgment to be entered in their favor.</p> <p>The court, Dreher, P. J., entered judgment for the plaintiff on the special verdict (12th assignment), delivering the following opinion:—</p> <p>“ The questions raised upon the special verdict are:—</p> <p>“1. Whether, the indebtedness of a county, the debt of which at the adoption of the present Constitution, exceeded two per centum (but was less than three per centum) upon the assessed value of the taxable property therein, may be increased (the increase being less than two per centum upon such assessed valuation of property) -without the assent of the electors of the county ascertained by a public election.</p> <p>“ 2. Whether the 8th section of article 9, of the new Constitution, and the Act of the 20th of April 1874, Pamph. L. 65, repealed the special Act of Assembly of the 23d of March 1865, Pamph. L. 650, entitled, ‘ An act providing for a free bridge over the Lackawaxen river at Lock No. 10 on the Delaware & Hudson Canal.’</p> <p>“ The first section of that act authorizes the Lackawaxen Bridge Company to make a conveyance of all their right, title and interest in the bridge, with the contiguous land and all appurtenances and franchises held by them, to the county of Pike. The second section authorizes the commissioners of the county of Pike, with the written approval of the associate judges of the county, to purchase said bridge for cash, or bands bearing interest at the rate of six per centum to be paid annually.</p> <p>“ The 8th section of article 9 of the Constitution is as follows: ‘ The debt of any county, city, borough, township, school district or other municipality or incorporated district, except as herein provided, shall never exceed seven per centum upon the assessed value of the taxable property therein ; nor shall any such municipality or district incur any new debt or increase its indebtedness to an amount exceeding two per centum upon such assessed valuation of the property, without the assent of the electors thereof at a public election, in such manner as shall be provided by law ; but any city, the debt of which now exceeds seven per centum of such assessed valuation, may be authorized by law to increase the same three per centum in the aggregate at any one time upon such valuation.’</p> <p>“ It is contended by the defendant that the term ‘ new debt ’ has reference to counties not indebted, and that such counties may incur a debt amounting to two per centum upon the assessed valuation, without a vote of the electors assenting thereto, and that the phrase ‘ increase its indebtedness,’ has reference to counties having an existing indebtedness, and that such counties cannot make any increase of such indebtedness if the proposed increased and old indebtedness together exceed two per centum of the assessed valuation, without first obtaining the assent of the electors at an election held for that purpose.'</p> <p>“ I cannot see any such distinction between the- expressions ‘incur any new debt’ and ‘increase its indebtedness.” An existing indebtedness is certainly increased by contracting or incurring a new debt, and a new debt may be incurred by a county or an individual already in debt. Suppose a county with an indebtedness of ten thousand dollars should find it necessary to borrow ten thousand dollars to put up a public building and issue bonds therefor; this borrowed ten thousand dollars would certainly be a new debt. It is no part of the old debt. It might be said that the county had increased its indebtedness to the amount of ten thousand dollars, but certainly it would not be said she had increased her debt to the amount of twenty thousand dollars.</p> <p>“The second clause of the 8th section reads: ‘Nor shall any such municipality or district incur any new debt or increase its indebtedness to an amount exceeding two per centum upon such assessed valuation of property without the assent of the electors thereof at a public election in such manner as shall be provided by law.’</p> <p>“ Now, according to the argument of the defendant, this clause provides for two classes of counties:—</p> <p>“ 1st. Such as have no debt; and they may incur a debt not exceeding two per centum upon the assessed valuation, without a vote of the electors.</p> <p>“ 2d. Such counties as are in debt; and they may increase such ■ indebtedness if the existing debt with the increase does not exceed two per centum of such assessed valuation, without a vote of the electors.</p> <p>[“ According to the defendant’s theory, there is no place in the second clause of the 8th section for that class of counties having an indebtedness exceeding two per centum of the assessed value of property therein. It would be incorrect to say that a county having an indebtedness equal to or in excess of two per centum may increase that indebtedness, but the indebtedness when increased shall not exceed two per centum. We might as well say that a quantity equal to A. may be increased, but such a quantity when increased must not exceed A. It is not a sufficient answer to this to say that as the maximum limit fixed by the first clause is seven per centum, therefore any county not having reached that limit may increase its indebtedness by a vote of the people. The second clause provides for the vote of the taxpayers to be taken in the cases therein mentioned — that is to say, according to defendant’s argument, where a county has no debt, and .where there is a debt less than two per centum, and it is proposed to increase it so that the debt and the increase will exceed two per centum.] Tenth assignment.</p> <p>[“ I think the county of Pike had the power to purchase the bridge, and issue bonds in payment therefor notwithstanding her indebtedness was in excess of two per centum of the assessed value of taxable property therein, at the time these bonds were issued. Whether these bonds are viewed in the light of a ‘new debt,’ or an increase of an existing indebtedness, I think they are binding upon the county, and judgment is therefore entered upon the special verdict in favor of the plaintiff.] Eleventh assignment.</p> <p>“ In this opinion I have not referred to the Act of 20th April 1874, thinking it unnecessary to do so, as that act is certainly not more restrictive upon the power of a county to contract indebtedness than the Constitution.</p> <p>[If the defendant’s interpretation of the Constitution is correct, I think it very doubtful w'hether the power of the county commissioners to purchase the bridge and issue the bonds under the special act of 23d March 1865, was abrogated by the adoption of the new Constitution.”] Fourteenth assignment.</p> <p>The defendant took this writ and alleged that the court erred as set forth in the above assignments of error.</p>

<p>1. If parties seek to have all the advantages of a partnership, and yet limit their liability to creditors, they must comply strictly with the Act" of June 2d 1874.</p> <p>2. The object of the Act of May 1st 1876, requiring a schedule of property contributed to such limited partnership, was to enable creditors to ascertain precisely of what the property consisted and to judge of its value.</p> <p>3. Where property has not been contributed, scheduled and valued, as the Act of 1876 directs, there is no payment of the capital. A general description of the extent of the property, or a lumping valuation is not such a schedule as the act requires.</p>

<p>Error to the Court of Common Pleas of Wayne county: Of January Term 1880, No. 292.</p> <p>Scire facias sur recognisance of bail in error by Peter Keliam against Martin B. Allen.</p> <p>Allen filed the following affidavit of defence :—</p> <p>“ That at the time of giving the recognisance upon which the above action is brought, the deponent did so with the assurance upon the part of the defendant in the suit in which the recognisance was given, that deponent should be indemnified against loss by reason of signing such recognisance. That such indemnity was not furnished to deponent. p That the deponent was the only surety in said recognisance. That after said recognisance was filed, and pending the writ of error, the plaintiff in the said suit caused execution to issue against the property of the defendant, William T. Keliam, and treated the said recognisance as a nullity. That plaintiff in said suit in which the recognisance was given lost nothing by reason of the writ of error being taken, having treated the recognisance as a nullity, and proceeded with the execution. That there was an entire failure of consideration for which the said recognisance was given.”</p> <p>The court entered judgment for want of a sufficient affidavit of defence, when defendant took this writ and assigned this action for error.</p>

<p>Error to the Court of Common Pleas of Lehigh eounty; Of January Term 1880, No. 237.</p> <p>Scire facias sur mortgage by Charles Eckert, administrator de bonis non of John Eckert, deceased, against David Daubert and Herriena Daubert, his wife.</p> <p>The following affidavit of defence was filed:</p> <p>That this defendant, Herriena Daubert, is the wife of David Daubert, the other defendant, and was a married woman at the time of executing said mortgage, dated August 1st 1873, recorded in the recorder’s office at Allentown, on which said suit is brought, that said money named in said mortgage was loaned to her by John Eckert for the improvement of her separate estate, that said money was paid to her husband, who used it for the improvement of his estate, and no part of said money went for the necessary improvement of her separate estate, nor for purchase-money of her separate real estate, nor was it used for necessaries in her family, all of which she expects to prove on the day of the trial of this cause.</p> <p>A rule for judgment for want of a sufficient affidavit of defence was made absolute by the court, Albright, P. J., delivering the following opinion:</p> <p>“ It is not alleged that the mortgage upon which suit is brought was not executed and acknowledged in the manner and form requisite to bind the wife’s separate real estate.</p> <p>“ It is averred in the affidavit of defence that the money for which the mortgage was given was loaned by the mortgagee to the wife for the improvement of her separate real estate; that the money was paid to the husband, who used it for the improvement of his estate.</p> <p>“ It is not stated that the payment of the money to the husband was without the consent of the wife, or that she did not agree that her estate should be encumbered for the debt of her husband. The substance of what is alleged seems to be that the original intention or negotiation was for a loan to improve her estate, but when the transaction came to be consummated she permitted her husband to receive the money for which the mortgage was given. It is not said that any fraud was practised on the wife in the execution or delivery of the mortgage.</p> <p>“ A husband and wife may execute a valid mortgage of her separate real estate to secure the husband’s debt. The power to do this existed before the passage of the Act of 1848, and this was not changed by said act: Jamison v. Jamison, 3 Whart. 457; Black v. Galway, 12 Harris 19; Miner v. Graham, Id. 491; Lytle’s Appeal, 12 Casey 131; Haffey v. Carey, 23 P. F. Smith 431. This is what was done in the case before us. The affidavit discloses no facts constituting a defence to the mortgage.”</p> <p>The defendants took this writ, and alleged that the court erred in entering judgment for the plaintiff.</p>

<p>Error to the Court of Oyer and Terminer of Cumberland county: Of May Term 1880, No. 88. Certified from the Middle District.</p> <p>Indictment of Catherine Zell for the murder of Mrs. Mary Kiehl, by poison.</p> <p>The facts are sufficiently stated in the following summary of the evidence as made by the court below, Herman, P. J., in the charge to the jury.</p> <p>From the evidence on the part of the Commonwealth, it appears that Mrs. Mary Kiehl, an aged widow lady who resided near the fair ground in Carlisle, died on the night of Friday, the 30th of May 1879. At the time of her death she was 81 years old. She was buried on Sunday afternoon, the 1st of June.</p> <p>“ Some suspicions having been aroused as to the cause of her death, the coroner, on the 6th of June, had her body exhumed, and held an inquest upon it. At the inquest, Dr. Kieffer was called upon to make a post-mortem examination of the body, which he did. He has been examined as a witness before you, and has detailed in your hearing the manner in which this postmortem examination was made, and has given, in minute detail, a description of the post-mortem appearances of the body as he found them. He says that, on account of the condition in which he found the stomach and bowels, he could not but feel that this condition was unnatural, and could not have been caused by any disease of which he had any knowledge; that, therefore, in his judgment, it must have been the result of violence, that the subject had certainly taken, he thought, poison in some form; that his own impression was that it was some inorganic poison. He also says that he tied the stomach at both ends so as to preserve its contents, and removed it from the body ; he also removed two sections from the small intestines, one about two yards from the stomach, and one lower down, of about nine inches each, and also one section from the colon, about five inches long. He also removed three different sections of the liver, which would have constituted about one-fifth of the entire organ. .The portions of the stomach and the intestines which he removed were placed in a clean jar by themselves, and the three sections-of the liver into another clean jar by themselves.</p> <p>“ These jars, with their contents, the coroner says, he subsequently placed in the hands of W. F. Horn, a druggist and chemist of this place, for the purpose of making a chemical analysis of the contents. Mr. Horn says he made a chemical analysis of the contents found in the two jars and found arsenic.</p> <p>“ Mrs. Rebecca Reed testifies, that on Tuesday evening, the 27th of May 1879, she came in to see Mrs. Keihl, to cure her of the wild-fire, and that Mrs. Keihl complained of not being so well, saying she had fallen down the cellar stairs and hurt herself; that she, Mrs. Reed, remained a short time after giving her a cure for the wild-fire, then came in to attend the evening market, and after market returned to Mrs. Keihl’s house ; that when returning, and she came near to the house, she met Mrs. Zell, the prisoner, coming away from the house with a little tin cup in her hands, and that Mi’s. Zell said she had just been up to Mrs. Keihl’s, and had taken her some beef and coffee and crackers, and that Mrs. Zell should go along back and show her how she had cleaned Mrs. KeihTs house ; that they went back, and Mrs. Zell showed how she had cleaned Mrs. Keihl’s house; that both went back to the dining-room; and she showed Mrs. KeihTs front room; and that after some conversation about Wynkoop, Mrs. Zell went home. Mrs. Reed says she went homeland on Wednesday, the 28th day of May, at 4 o’clock, she came in town to attend the morning market, and after market, returned to Mrs. Keihl’s house between 8 and 9 o’clock ; that when she got back to the house, a pot of coffee, which is before you, was standing on the stove, and breakfast was partially prepared ; that, at Mrs. Keihl’s request, she continued the preparation of the breakfast, and both sat down to eat it; that they partook of coffee, and both got very sick and vomited violently. Then the witness went on to say Mrs. Keihl felt dreadfully, and said she believed they were poisoned. ‘ I asked her who she thought could do such a thing as that; she did' not say. She said she felt so sick that she would lie down on the floor; all appeared black before my eyes; I felt sick; I said I wished I had a doctor. She said she believed we would get better again. She then sat up on the floor and laid on a chair, then I went down and she went down. I said then, I will go home. I was to sweep and black the stove, and that,’ she said, ‘ I was not able to do. I started home, then she said, when I left, ‘ if I get such another good coffee and get sick, she would let me know and come in again, and see what was in it that made her so sick.’ I started for home then, and she was sitting on the chair; she was looking at some seeds, and I went out of the gate. Then she came to the door, and stood under the door and said good-bye, I saw Mrs. Beals when I went out. * * * In going home I fell down a couple of times with weakness. I felt so bad.’</p> <p>“ On Friday, the 30th of May, Mrs. Keihl died, about half-past 9 o’clock.</p> <p>“Mrs. Reed further testifies, that the next time she saw Mrs. Zell was on Tuesday evening, after her death. That she then told Mrs. Zell that she was so shocked to hear that Mrs.'Keihl was dead. That Mrs. Keihl had asked her to come if she got worse, and that she and Mrs. Kiehl had both got sick of that good coffee Mrs. Zell had made. Mrs. Zell said she did not know Mrs. Keihl had thrown up so, but only that Mrs. Reed had thrown up; and that Mrs. Zell admitted she had drawn the coffee, and took it home, what was left of it, and used it in the morning; and that it did not make them sick. That Mrs. Keihl had thrown up so she did not know what to do. That she (Mrs. Zell) had waited on her (Mrs. Keihl). That then she (Mrs. Reed) asked Mrs. Zell why she, did not send for a doctor. That Mrs. Zell replied, God Almighty was her doctor, and she did not want any other.</p> <p>“ It seems that the house in which Mrs. Keihl resided was closed up after her death, and remained unoccupied for some time, Joseph Kutz, the son-in-law, having the keys, and ’Squire Wynkoop after-wards coming into possession.</p> <p>“ Frederick Hayes testifies that he went to the house on the 28th of July after Mrs. Keihl’s death, and got from the kitchen two tin coffee pots, which he took directly to Horn, the chemist, and gave them to him ; and it appears, by the testimony .of other witnesses, that after Wynkoop got possession, a package, labeled ‘ arsenic, poison,’ was taken from a bandbox found under the bed in the up-stairs front room by Mrs. Wynkoop, and that this was subsequently placed in the hands of Horn.</p> <p>“ Mr. Horn testifies he afterwards made a chemical analysis of the substances found in the coffee pot, and that he found arsenic. He also testified that he examined the substance contained in the package labeled ‘arsenic, poison,’ and believes it to be arsenic.</p> <p>“ Mrs. Anna Minnich testifies- that on the Wednesday morning before Mrs. Keihl’s death, between 7 and 8 o’clock, as near as she can remember, she saw Mrs. Zell with a bowl and plate going from her own house in the direction of Mrs. Keihl’s house, and that Mrs. Zell said that she was taking Mrs. Keihl some coffee and something to eat; and Levi Barrick, another witness, testifies that between 7 and 8 on the Wednesday morning before Mrs. Keihl died, he came to the house with a load of wood to sell, and that Mrs. Zell was there when he came, and told him Mrs. Kiehl had hurt herself pretty badly, that she had fallen down stairs, that Mrs. Zell, at Mrs. Keihl’s request came out-, looked at the wood, and reported to Mrs. Keihl, and that Mrs. Keihl bought the wood and he unloaded it.</p> <p>“ S. M. Leidich, Esq., another witness, testifies that he was present at the coroner’s inquest and heard Mrs. Zell examined as a witness before the inquest, and that she said then that she had not been at Mrs. Keihl’s house at all on the Wednesday before her death, but that she had been there on Thursday, and took to her some sage tea and toast, and that all Mrs. Keihl got on Thursday she herself gave to her.</p> <p>“As to the finding of the package labeled ‘arsenic, poison,’ Benjamin Long testifies that sometime after Mrs. Keihl’s death, and after Wynkoop got possession of the house, he, witness, went through the house, and that Mrs. Wynkoop and Mrs. Zell were there, and that Mrs. Wynkoop found the package in a bandbox under a bed, in the front room, that contained notions, scraps ; that Mrs. Wynkoop and Mrs. Zell looked at it; and handed it to the witness, and that ’Squire Wynkoop came, and, according to the testimony of Mrs. Wynkoop, this package was given to Mr. Horn.</p> <p>“ The two Kutzes testify to a careful examination having been made Of the bandbox under the bed in the front room, up stairs, at the time Mrs. Kiehl was lying a corpse in the house, and that there was nothing in the box but ribbons and some loose paper, and that they saw nothing that looked like this package.</p> <p>“ Evidence has also been produced for the purpose of showing that the prisoner had the opportunity of administering poison to the deceased; that she was the person who attended and waited on the deceased during Thursday and Friday and up to the time of her death on Friday night; that no near relatives were called in during the sickness; and that she also was in to market and in her usual health on Saturday. The Commonwealth’s counsel contend that the evidence sufficiently proves that the death of Mrs. Kiehl was caused by arsenical poisoning, an-d that the prisoner wilfully and with the intention to kill her, administered to her the poison which caused her death.</p> <p>“ On behalf of the prisoner it is contended:</p> <p>“ 1st. That the evidence does not sufficiently prove that the death of the deceased was caused by poisoning.</p> <p>“ 2d. That if the death of the deceased was caused by poison, that she took the poison of her own volition, and not through the criminal act of another; in other words, that it was an act of suicide.</p> <p>“ 3d. That if the death of the deceased was caused by poison wilfully administered by another, with the intention of killing her, the prisoner is not the guilty person, and that the evidence does not justify her conviction.</p> <p>“ The chemical analysis made by Mr. Horn is attacked on the ground that it was not made with sufficient care and accuracy to justify the conclusion that there was any arsenic at all in the substances submitted to him for analysis. And Drs. Heims and Hedden, both analytical chemists, have been called as experts, and they say the statements made by Horn, as to the manner in which he purified his re-agents used in his analysis, does not show that they were so purified as to preclude the possibility of the arsenic which he discovered being produced from the re-agents themselves ; that, from his statement, they are not satisfied that his re-agents are free from arsenic; and that therefore they doubt the conclusions at which he arrived, and cannot say that the result of his analysis shows sufficiently that there was arsenic in the substances analyzed. You will remember the testimony of these gentlemen, and in considering it you will remember also the testimony of Mr. Horn. Mr. Horn testifies, most unequivocally, that he purified and tested the purity of his re-agents with the greatest care, and satisfied himself that they were absolutely free from arsenic.</p> <p>“ In support of the theory that if Mrs. Keihl died from the effects of poison that she poisoned herself of her own volition, and not through the criminal act of another — that it was an act of suicide, several witnesses have been called. William Sheaffer testifies that, in the latter part of 1875, Mrs. Keihl came to live with his daughter, and lived with her some three months; that during that time she seemed to be in great trouble, and sometimes sat down and cried, and said that no one should wonder if she put herself out of the way.</p> <p>“ Sarah Nickey testified that during last winter and spring she met Mrs. Keihl at Mrs. Zell’s house often, and conversed with her; that she seemed to be in trouble all the time, and said if things did not go better she should put herself out of the way, and that Mrs. Zell said she should not talk so.</p> <p>“Joseph Ebright said that three or four weeks before Mrs. Keihl died she was talking to him in the garden, and said it would be no wonder if she would destroy her life, that she had such trouble.</p> <p>“ But again, the prisoner’s counsel contend that if indeed it be true that the death of Mrs. Keihl was caused by arsenic wilfully administered to her by some person with the intention to kill, that the prisoner is not the guilty person who thus administered the fatal poison; that she had no apparent motive to take the life of Mrs. Keihl; that Mrs. Keihl was her friend, and that her presence at her house during the last hours of her life was not for the purpose of taking her life, but to administer to her wants, as an act of neighborly kindness.</p> <p>“An effort has been made to break down the testimony of Mrs. Rebecca Reed, one of the principal witnesses on the part of the Commonwealth, by impeaching her character for truth and veracity, and by charging that she made other statements inconsistent with the truth of what she has testified to on the witness-stand, and also to contradict her testimony.</p> <p>“Abram Nisley and Franklin Wolf testify that on the 28th of last May, Wednesday preceding Mrs. Keihl’s death, when Mrs. Reed said she got so sick from coffee, they were at work on the roadside out at North Middleton; that Mrs. Reed came that way home, and that Nisley made the remark, she was late; that she replied she was in at Mrs. Keihl’s cleaning house; that Franklin Wolf went down to get a set of harness; that she asked what .she had said about being down at Mrs. Keihl’s; that he said she had stated she was down cleaning Mrs. Keihl’s house; that she replied she had not said that, but that she said she was to stay and clean and black the stove, but was sick and could not.</p> <p>“ Mrs. Catherine Beales testifies that on the Wednesday Mrs. Reed was at Mrs. Keihl’s house she heard from her own house a rubbing on the stove as though some one were blacking it; but in rebuttal, Mrs. Anna Kutz, Miss Ella Kutz and Joseph Kutz all testify that on the day of the funeral of Mrs. Keihl the kitchen stove was red on the top and dusty on the top, and the sides looked as though it had not been blackened for a long time.</p> <p>“I should say right here in regard to Susan Beales, another witness, who, from sickness, was unable to be here to testify, that it is admitted on the part of the Commonwealth that she would testify that she saw Mrs. Reed black Mrs. Keihl’s stove on Wednesday morning, the 28th May 1879, in the morning, and this statement is to be considered the same as if it had been testified to by the witness on the stand.</p> <p>“ Polly Hanson, a colored girl, says she was at Mrs. Kiehl’s on a Wednesday, that Mrs. Reed was there, and that Mrs.' Reed gave her a cup of coffee, that she drank it and she did not get sick.</p> <p>“ The testimony of Susan Hunter, Sarah Nickey and others for the prisoner is relied on to show that Mrs. Zell could not have been at Mrs. Keihl’s house on the Wednesday before her death. Mrs. Catherine Beales testifies she saw Mrs. Keihl in the morning in her kitchen getting breakfast; saw her at breakfast at 8 o’clock, and that between 2 and 3 o’clock Friday afternoon she heard Mrs. Keihl groaning; that she went down to Mrs. Zell; that Mrs. Zell went up to her house that evening; she went in to see Mrs. Keihl and helped to lift her up ; and that she was then dying.</p> <p>“ The testimony of Mrs. Hunter, Joseph Ebright, Catharine Beales, Mrs. Charlotte Fought and others is relied upon to show that no wood was brought to Mrs. Keihl’s house on the Wednesday before her death, as testified to by Levi Barrick. But it must be remembered that these witnesses say that they did not see any wood brought there, or heard any thrown off at her door; whilst Levi Barrick most positively says that he did bring it there on that day. Mrs. Hunter says that she saw Levi Barrick bring the load of wood on the Wednesday prior to the week that Mrs. Keihl took sick. You will remember that Levi Barrick is the man that says he brought the load of wood to Mrs. Keihl’s house on the Wednesday preceding her death, and that Mrs. Zell was present at the house.</p> <p>“ Nancy Campbell and Mrs. Hunter testify that between Mrs. Keihl and Mrs. Zell there existed most friendly relations; that she visited her and no one else; and that Mrs. Keihl said several times, she wanted- her to come and work for her; that Mrs. Zell was very kind to her; pumped her water, and carried it home for her.</p> <p>“ Mrs. Amanda Wynkoop testifies she found a package labeled £ arsenic’ in the bandbox up stairs in the front room; that there -were patches and scraps of silk in the box, no ribbons, and that she found the package which was. found, and found the name written on it which is now written on it. In reference to this, Mrs. Amanda Kutz and Ella Kutz testify that when they examined the bandbox on the day of the funeral these scraps and patches were wrapped together in little bundles, each of a kind or color, and that they were in a basket, and not in a bandbox.”</p> <p>When the case was called for trial, William McAllister, the first juror, was passed without challenge by the Commonwealth’s counsel, oyer to the prisoner, and the prisoner accepted him. He was then, at the request of the district attorney, ordered to stand aside, and was not again called until the whole panel had been gone through with, when he was challenged peremptorily by the • Commonwealth, and the challenge sustained against the objection of the prisoner’s counsel.</p> <p>In overruling a motion for a new trial, among the reasons assigned for the same was the above action.</p> <p>The court said, in reference thereto : “ This, I think, was clearly right. It became manifest to the court, that the Commonwealth’s counsel, from want of knowledge of the intimate friendly relations existing between this juror and the prisoner, had made a mistake, in the first instance, in passing him, and that no unfair advantage was intended. None of the jurors had as yet been sworn, and the Commonwealth’s peremptory challenges were not exhausted. The right to challenge peremptorily is as absolute as the right to challenge for cause, and I can discover no sensible reason for making any distinction in the manner of exercising either. I hold that the Commonwealth as well as the accused may exercise their right of challenge at any time before the jurors are sworn. A fair and just administration of the criminal law will admit of no other safe rule.”</p> <p>Several jurors under objection were challenged by the Commonwealth for cause, without having been first sworn on their voire dire to make true answers. This action of the court was also assigned as a reason for a new trial, and in refusing the motion the court said:</p> <p>“ The examination of the jurors, as they were called, without being first sworn on their voire dire, was not objected to — not a word was said about it at the time by either side, and I am well convinced that no injustice was done to the prisoner in this respect. If the prisoner and her counsel did not acquiesce in it, why was the’ objection reserved until after the rendition of the verdict ?</p> <p>“As to the swearing of the jury, the law does not require that each juror shall be sworn as soon as he is chosen. I never knew it to have b.een done in this court, and I think it is much the better practice not to swear any until all have been chosen.”</p> <p>At the trial, Mrs. Reed, a witness for the Commonwealth, testified, inter alia, as follows : She (Mrs. Keihl) sat in the kitchen when I came, and she asked me to finish breakfast. She said that Mrs. Zell had started breakfast, and that she had come in a big hurry out of the room—</p> <p>Q. By Mr. Heplmirn. — No matter about that. If there was anything that she said about Mrs. Zell that you did not afterwards tell to Mrs. Zell, do not repeat it, but tell only what occurred between you and Mrs. Keihl about Mrs. Zell that you afterwards told to Mrs. Zell ?</p> <p>A. Well, Mrs. Keihl said then that their coffee was on.</p> <p>The Court. — The admission of' this testimony is restricted to what she afterwards communicated to Mrs. Zell and which Mrs. Zell admitted—</p> <p>Mr. T. Cornman. — To be true.</p> <p>The Court. — Yes, sir.</p> <p>Witness. — Well, she said that Mrs. Zell had brought the coffee up. She had made it at her house. She said she had made it while she was getting breakfast, and she said that Mrs. Zell said it was such good coffee. I finished breakfast.</p> <p>Q. By Mr. Shearer. — Mrs. Keihl said that Mrs. Zell had brought the coffee up and made it at her house, at Mrs. Zell’s house ?</p> <p>A. Yes, sir.</p> <p>Q. By Mr. Hepburn. — Go on and state whether you then drank, both of you, all that coffee ?</p> <p>A. Yes, sir; we got the coffee; I then got sick. We had to throw up so, and Mrs. Keihl was very sick and had to throw up too.</p> <p>Q. State how long you were sick and how it affected you. State, then, all that you did there that morning before you left, and how you went home ?</p> <p>A. Well, after I had drank a couple of swallows of coffee I said that I was so sick that I said I believed I would walk out. I did. I felt so dreadful when I came, I told Mrs. Keihl I had been so sick, had to throw up so, and she said she felt bad too, had to throw up. She took her chair back from the table, and had to throw up at the stove, she said she felt dreadful. While we were throwing up she said she believed we were poisoned. I asked her who she thought could do such a thing as that. She didn’t say, just, after wards throwed up again. I said I was so sick I believed ' I would lie down on the floor of the room. She said I should go up stairs. When I got up stairs I fell on the floor. All appeared black before my eyes, I felt so sick; I said I wished I had a doctor. She said we would get better again. She laid down, then sat up on the floor and laid down on the chair. Then I went down, and she went down. She said that she must shut the front door (Mrs. Zell had laid it open). She came up again; went down awhile. I went down and she went down too. I said then that I would go home. I was to sweep and blacken the stove, and that, I said, I was not able to do. I started home then, and she said when I left, if she gets such another good coffee and gets sick, she would let me know, and come in again and see what was in it that made her so sick. I started for home then and she was sitting on the chair. She was looking at some seeds, and I went out of the gate, then she came to the door, and she was standing under the door, and she said good-bye. I saw Mrs. Beales when I went out. She was washing. I told her I was so sick all the morning, I did not know how I could get home. I started home then, was very sick going home, fell down a couple of times with weakness ; I felt so bad I stopped at Ernst’s.</p> <p>When the court was about to charge the jury, they said: “Before proceeding to the general charge of the court, I will withdraw some testimony from your consideration, at the request of the prisoner’s counsel. At the time the prayer was presented I substantially said what I now will instruct you upon. The prisoner’s counsel request us to instruct you>that it is your duty to discard all the testimony of Mrs. Reed as to what she alleges Mrs. Keihl said about Mrs. Zell, from, ‘ She said that Mrs Zell had started breakfast,’ to and including ‘ Mrs. Zell had laid the front door open.’ ”</p> <p>Per, Curiam. — “ The only declarations of Mrs. Keihl relating to Mrs. Zell, that were intended to be admitted in e'vidence, were such only as Mrs. Reed afterwards communicated to Mrs. Zell, and that Mrs. Zell admitted to be true. The only declaration that Mrs. Reed says Mrs. Keihl made relating to Mrs. Zell, that she says she afterwards communicated to Mrs. Zell, that Mrs. Zell admitted to be true, is that Mrs. Zell made the coffee. And even as to this declaration the jury must give no effect to it unless they find that Mrs. Zell admitted it to be true. All other declarations which Mrs. Reed says Mrs. Keihl made about Mrs. Zell, are withdrawn from the consideration of the jury. The jury must reject and discard all such declarations the same as though Mrs. Reed did not testify to them at all.”</p> <p>The defendant offered evidence to show that Mrs. Reed, on Wednesday, the 28th of May, on her way home from Mrs. Keihl’s, had met two persons, Nisley and Wolf, and had told them that she had been in at Mrs. Keihl’s cleaning her house; for the purpose of showing that she could not have been sick, because she said nothing about it at that time. Other evidence had been offered of the same tenor.</p> <p>The Commonwealth then offered to prove that on the same Wednesday, also, on her way home, but before she met Nisley and Wolf, she stopped at the house of Miss Ernst, asked for a drink of water, and said that she was in at Mrs. Kiehl’s, had .taken breakfast there, and was make sick by coffee, for no othek, purpose than to show that the story was not fabricated after the inquest.</p> <p>The court admitted it thus:</p> <p>Per Curiam. — “ The proposed testimony of the witness is admitted for the purpose only of showing that Rebecca Reed’s statement is not a fabrication of recent date, and it is not admitted for any other purpose, and cannot be used for the purpose of showing that her statement is true.”</p> <p>Testimony of a Mr. Leidich, of a like character, was also admitted under the same offer.</p> <p>The defendant submitted the following points, to which are appended the answers of the court:</p> <p>1st. That to justify a conviction in any event, the corpus delicti must be established by overwhelming evidence, and that, if it is not so established or proved, they should acquit the defendant without inquiring further.</p> <p>Ans. “ To establish the corpus delicti the evidence is sufficient when it fully satisfies the jury of the fact beyond all reasonable doubt.”</p> <p>2d. That the evidence in the case must be such as to exclude any reasonable hypothesis consistent with the innocence of the defendant; otherwise, the jury must acquit.</p> <p>Ans. “ This point is answered in the affirmative, and we instruct you that the evidence in the case must be such as to exclude any reasonable hypothesis consistent with the innocence of the defendant; otherwise, the jury must acquit.”</p> <p>The prisoner was found guilty, and after sentence took this writ, among her assignments of error being the following:</p> <p>'1st. The court erred in allowing the Commopwealth, against the prisoner’s protest, to stand William McAllister, a juror, aside until the panel should be exhausted, after the Commonwealth had declined to challenge him, and declared they did not challenge him, and after the prisoner had elected and accepted him as a juror.</p> <p>2d. In allowing the Commonwealth to challenge peremptorily the said McAllister, after they had accepted him, and after the prisoner had elected him, and when the prisoner asked to have him sworn as a juror.</p> <p>3d. In allowing the Commonwealth to challenge the sixth, the sixteenth, the twenty-fourth, the thirty-third, the fortieth and the forty-second jurors called, for cause, on account of the respective answers made by those jurors, without any of them having been first sworn on their voire dire to make true answers, and because of the insufficiency of those ansAvers.</p> <p>6th. In admitting the testimony of Rebecca Reed as to Avhat she alleged Mrs. Keihl had told her about Mrs. Zell; and that this was not cured by the instruction which the court gave the j ury as to the part of the testimony of Rebecca Reed they should receive. The court should have expressly withdrawn all that counsel for prisoner asked to have Avithdrawn when it Avas asked, and before counsel for prosecution addressed the jury.</p> <p>7th. In overruling the prisoner’s objection to Anna Ernst’s testimony about what she said Mrs. Reed told her on her Avay home on the 28th day of May 1879, and in admitting her testimony, no recent fabrication having been alleged.</p> <p>8th. In overruling the prisoner’s objection to Mr. Leidich’s testimony as to what Mrs. Reed told him, and in admitting anything that he said Mrs. Reed told him.</p> <p>15th. In refusing the first point of defendant.</p> <p>18th. In not instructing the jury that the absence of all motive, whether of avarice .or revenge, affords a strong presumption of innocence.</p> <p>■ 19th. In not instructing the jury that this being a case of circumstantial evidence only, the jury, in order to convict, must find the circumstances clearly proved as facts, and must also find that these facts clearly and unequivocally imply the guilt of the prisoner, and that they cannot reasonably be reconciled with any hypothesis of her innocence.</p> <p>20th. This being a ease of purely circumstantial evidence, the court err.ed in failing to instruct the jury that not only must all the circumstances concur to show that the prisoner committed the crime, but also that they all are inconsistent with any other rational conclusion.</p> <p>21st. That the refusal of the court to grant a new trial for any and all the reasons presented therefor, was such a mistaken comprehension and exercise of the discretionary power of the court as resulted in injustice to the prisoner, and justifies her in asking, and the Supreme Court in granting, her prayer for a reversal and a new trial.</p> <p>22d. The ingredients necessary to constitute murder in the first degree were not proven to have existed in this case, and the court erred in not so instructing the jury.</p>

<p>1. Whatever the form of an agreement for the change of possession of goods, if its purpose is to cover up a sale, and preserve a lien in the vendor for the price of the goods, as by a pretended consignment, it is void as respects creditors, whether the credit was given before or after the delivery of the goods. A consignment for such object is no better than any other device. ”</p> <p>2. Rose v. Story, 1 Barr 190, followed.</p>

<p>1. In a contested election case, in order to make a county liable for fees and costs, there must have been an election held at a time and place authorized by law, a contest between opposing claimants, and a decision by the court that the contest was founded on probable cause;</p> <p>2. Where the court below refuses an order to pay costs or fees in such a contest, the proper writ upon which to bring the subject to this court for. review is a certiorari and not a writ of error.</p>

27. Indictment of Charles Acker for robbery. The following was the indictment: “ In the Court of Oyer and Terminer and General Jail Delivery and Quarter Sessions of the Peace for the county of Lehigh : April Sessions 1879.

<p>1. So far as real estate purchased by a married woman is concerned she may bind it for the purchase-money in any manner that she might were she sole. .</p> <p>2. As a personal obligation, the bond of a married woman is voi'd, but whore given to secure the purchase-money of land sold to her, it may be enforced against such land. It does not matter what the character of her purchase-money obligation may be, whether mortgage, bond or note, or whether judgment be obtained thereon by confession or suit, the land alone is charged and not the person of the feme covert.</p>

<p>1. Under the forty-fourth section of the Criminal Procedure Act one who is an accessory before the fact may be charged as a principal in an indictment for murder: Campbell v. The Commonwealth, 3 Norris 187, followed.</p> <p>2. Where several men are indicted for murder, and they waive a demand for a separate trial, it is competent for the Commonwealth to introduce any evidence that tends to prove the guilt of any one of the defendants, although it might incidentally prejudice the others on trial.</p> <p>3. Several men wore indicted for murder. It was alleged by the Commonwealth that two of these men murdered the deceased in furtherance of a nefarious speculation in human life; that while two had committed the murder, the others had procured policies of insurance on the life of the deceased, and hired the two to commit the deed in order to procure the insurance money. They all elected to be tried together. Held, that it was competent for the Commonwealth to introduce any testimony that tended to prove the guilt of either of the parties on trial.</p> <p>4. The ingredients of murder in the first degree proved in this case.</p>

<p>1. A coal mining company pumped from its mines water which found its way into and polluted a previously pure stream. In an action against the company for damages, by a riparian owner on the stream, Held, that the fact that coal mining is an important industry would not relieve the defendant from liability, and that it could not justify its action on the ground that the customary mode of disposing of water pumped from mines in the coal regions was to'allow it to flow into the adjacent natural watercourses, as such usage lacked the necessary age to establish a general custom, and such a custom would not only be unreasonable, but unlawful.</p> <p>2. Sanderson v. Pennsylvania Coal Co., 5 Norris 401, followed.</p>

<p>Appeal from the Court of Common Pleas of Yorh county: Of May Term 1880, No. 79.</p> <p>Appeal of the Shrewsbury Savings Institution from the decree of the court distributing the proceeds of the sheriff’s sale of the real estate of Henry Seitz. The fund arising from the sale was referred to an auditor, John W. Bittinger, Esq., who reported the facts substantially as follows: That on the 19th of June 1875, Henry Seitz was indebted to the Shrewsbury Savings Institution in an amount which was represented by notes and indorsements; that on the same day he executed a judgment-note to said institution for the sum of $6000, payable one day after date, “ as collateral security for sundry notes given or drawn by the said Henry Seitz & Co., and held by the aforesaid Shrewsbury Savings Institution,” and that on the same day judgment was entered on said note: that the notes which the judgment was given to secure were for the most part renewed from time to time by the giving of new notes and the surrender of the old. In the final renewal a consolidated note for $700 was given in place of two notes previously given.</p> <p>The cashier of the savings institution testified that the renewals of the notes were taken by him, as cashier, on the credit of the collateral judgment held by the institution. He did not recollect' of any action taken by the board of directors on this subject. There was no evidence of any agreement with Henry Seitz, the defendant in the execution, that the collateral judgment should be security for the renewed notes.</p> <p>The savings institution claimed to be awarded the amount of the debt as evidenced by one of the original notes, which they still held; and by the renewal and consolidated note for $700. Barnhardt and others, who were subsequent judgment-creditors, also claimed the fund. The auditor awarded it to the latter in his report, saying:</p> <p>“ If the collateral judgment had been to secure the indebtedness of Seitz to the savings institution on June 19th 1875, the auditor is of the opinion that it would cover the $700 note, that being the proper evidence of that much of the indebtedness which the judgment would have been given to secure; but the terms of the collateral judgment is to secure notes held by the institution at the date of the execution of the judgment. The auditor decides that the renewal of $450 and $350 notes and the consolidated note, and the surrender of the old notes at the time of the renewals, were an extinguishment of, the old notes by novation; and that the-$700 note claimed upon is not covered by the collateral judgment in evidence, in the absence of an agreement to that effect.”</p> <p>Exceptions were filed, which the court dismissed, and confirmed the report, which action was assigned for error by the savings institution, which took this appeal.</p>

<p>1. It is essential to the validity of a mechanic’s lien against the separate estate of a married woman that the claim should set forth that the work was done and the materials were furnished with her authority and consent. Her husband cannot bind her separate estate, even for necessary repairs, unless by her authority.</p> <p>2. All the facts necessary to create a valid lien must be set forth in the claim.</p> <p>3. Where suit is properly brought against a married woman on a claim for which, upon its face, she or her separate estate is prima facie liable, the plaintiff is entitled to judgment for non-compliance with the rules of court, as though she were a feme sole.</p> <p>4. Where the material averment in a mechanic’s claim, that the debt was contracted by the wife, is traversed by the joint affidavit of the husband and wife, this allegation constitutes on its face a good defence and the case should be sent to a j ury.</p>

<p>Error to the Court of Common Pleas of York county: Of May Term 1880, No. 95.</p> <p>Ejectment by O. F. Reehling, assignee for the benefit of creditors of Isaac Taylor, against William R. Byers, tenant, and the widow and heirs of Joel Brinton, deceased, for two tracts of land in York county.</p> <p>The material facts were as follows : On the 23d of June 1876, W. H. Taylor conveyed the property in dispute to his father, Isaac Taylor, for a consideration of $1350. On the 1st of April 1873, W. H. Taylor became surety for one Kurtz, in a note to Joel Brinton, for $1000. Several years thereafter Kurtz absconded, leaving his debts unpaid. On the 10th of April 1876, Brinton brought suit on his note, and obtained judgment by arbitration' against W. H. Taylor on the 27th of June 1876, for $1134.50. An appeal having been taken, judgment was obtained after trial in court on the 26th of February 1879, for $1174 and costs. On the 5th of March 1877, a fi. fa. issued on said judgment, and the property conveyed as aforesaid by W. H. Taylor to Isaac Taylor was levied upon and condemned. On the 2d of June 1877, the property was sold as the property of W. H. Taylor to the plaintiff in the execution, Joel Brinton, for the sum of $722. After proceedings were had before two justices, W. H. Taylor, as tenant of Isaac Taylor, was ejected by the sheriff, and W. R. Byers, as tenant of Joel Brinton, was put into possession of the premises. On the 28th of December 1877, Isaac Taylor made an assignment for the benefit of creditors to the plaintiff, Reehling, who brought this action on the 25th of January 1878.</p> <p>It was contended by the defendants that the deed from W. II. Taylor to his father was fraudulent and void as to Joel Brinton.</p> <p>In relation to this deed the following facts were disclosed by the evidence: On the 12th of April 1868, W. II. Taylor being in need of money in. his business, borrowed from his father $1420, for which he gave him his note. By sundry payments this note was reduced on April 1st 1874, to $550, for which he gave his father a new note. On the 1st of April 1873, W. II. Taylor was also indebted to- his sister in the sum of $589.64, for which he also gave her a note of that date. In January 1876, she notified her brother that she needed this money, and at that time his father also demanded additional security for his note. To meet these demands, W. H. Taylor offered to sell the property in dispute to his father for $1350, which was its full value, the purchase-money less the amount of the father’s note, to be paid in cash. In pursuance of this arrangement, on the 23d of June, the conveyance was made. Isaac Taylor’s note amounting with interest to $591.25 was deducted from the purchase-money, and the balance of the purchase-money $758.75 was paid by him, partly in cash, and partly in United States bonds. In order to raise the money he borrowed from Sarah Meredith $219.25, for which he gave to her his note. Out of said balance of $758.75, W. H. Taylor, on that day, paid the note of Sarah Meredith, amounting with interest, to $704.75, and with the $54, which then remained, he paid other debts.</p> <p>The defendants offered to prove by a witness on the stand “ that he met Taylor at Crull’s store, in Newberry, about haymaking (am sure it was before harvest; the weather was warm) .in 1876. He said, “You go to Joel Brinton and tell him that I am willing to pay half the amount of that note, so that I can get my property back, if he will settle.” He said, “I wouldn’t have sold it, only to get out of paying the bail money to Brinton. I would like to have it settled, so that I can get my property back, as I had it before, for this way I can do no business; the way my affairs dow are.” I said I would go and talk to Joel Brinton, and I went and talked with him a few days afterwards; and after that I came back to Newberry. My best recollection is that I went to his house and told him Joel Brinton said he would have either the whole or none. He appeared sorry that it couldn’t be settled.”</p> <p>For the purpose of showing, in connection with the evidence already in evidence on behalf of the defendants, that the object, intent and purpose of the said W. H. Taylor was to hinder and delay Joel Brinton in the collection of his debt; to be followed by evidence of fraudulent collusion between W. H. Taylor and Isaac Taylor, the plaintiff’s grantor.</p> <p>Objected to and evidence admitted. No evidence as to fraudulent collusion was thereafter offered. There was no evidence that W. H. Taylor, at the time of the execution of the deed, had any other indebtedness than that due to his father, sister and Brinton.</p> <p>When the defendants rested, the plaintiff asked the court to instruct the jury that there was no evidence of fraud to be submitted to them, and they must render a verdict for plaintiff, which the court refused.</p> <p>The plaintiff, inter alia, presented the following points, which the court refused:</p> <p>1. That under all the evidence in the case, the verdict should be for the plaintiff.</p> <p>6. That there is no sufficient evidence in the cause either to implicate Isaac Taylor, the plaintiff’s assignor, in any purpose or design, collusion or conspiracy, by purchase of the real estate claimed in this suit from William H. Taylor, to delay, hinder or defraud Joel Brinton, or any other creditor or creditors of said William II. Taylor, or with notice or knowledge of such purpose or design, to authorize the jury to find a verdict for the defendants, and that the verdict of the jury must be for the plaintiff.</p> <p>The defendants presented the following points, to which are appended the answers of the court:</p> <p>1. That if the jury believe, from the evidence, that W. II. Taylor sold and conveyed the premises in dispute in this suit, for the purpose of hindering, delaying and defeating Joel Brinton in the recovery of his debt, and that Isaac Taylor knew' of such purpose, then the deed of William H. Taylor to Isaac Taylor is fraudulent and void as against Joel Brinton, and those claiming under him, and their verdict must be for the defendants.</p> <p>Ans. “ The principle of law is correctly stated. For its application to this case the jury is referred to the general charge, and to our answer to defendants’ second point.”</p> <p>2. If the jury believe, from the evidence, that W. H. Taylor sold and conveyed the premises in dispute in this suit to Isaac Taylor, his father, for the purpose of hindering, delaying or defeating Joel Brinton in the recovery of his debt, and that Isaac Taylor had any manner of knowledge or notice of such purpose and intent of his son, W. H. Taylor, then the deed of W. H. Taylor to Isaac Taylor is fraudulent and void as to Joel Brinton, even though Isaac Taylor had actually paid a full price for the property, and these defendants claiming through Joel Brinton are entitled to their verdict.</p> <p>Ans. “ In the purchase of property from an insolvent debtor, a volunteer stands upon a different footing from a creditor. A volunteer who purchases with notice that the sale is made to hinder, delay or defraud the creditors of the vendor, is a participator in the fraud, and the conveyance is void under the statute of 13 Eliz. But a creditor has a right to secure his debt although he knows that some other creditors must lose in consequence, and that the object and purpose of the debtor is to secure and prefer him. Such knowledge would not render the conveyance void under the statute. But it is for the jury to say whether Isaac Taylor was a bona fide creditor of his son W. H. Taylor to the extent of the note he held, and whether the balance of the purchase-money was honestly paid.”</p> <p>In the general charge, the court, Wickes, A. L. J., inter alia, said: “It will not do that you believe one of the parties, W. H. Taylor, guilty of the fraud, unless you further believe the father, Isaac Taylor, was also a participator in it. It is the corrupt combination between the two which renders the conveyance void as to W. H. Taylor’s creditors.</p> <p>“ Fraud, as I have said, is alleged, and it must be proved. It is familiar law, that it cannot be presumed — the burden of proving it is upon the party who asserts its existence — and this alleged fraud must be established either by direct proof, or by facts which warrant a presumption of its existence, clearly and conclusively proved: Battles v. Laudenslager, 3 Norris 446. In other words, in the cast you are now trying, [you must find in the evidence direct proof of the fraudulent purpose of W. H. Taylor and his father to hinder, delay or defraud. Joel Brinton, a creditor; or you must find such facts clearly and conclusively proven, as will justify you in presuming the existence of fraud on the part of the grantee and grantor in the deed of June 23d 1876.] * * * In transactions of this character, the courts have placed creditors and volunteers upon different footings. A volunteer who buys with notice of the intended fraud cannot hold the property against the creditor whose debt has been delayed or hindered, even although he may have paid its full value. .But when a creditor takes the property to secure his debt, the transaction is not void, although he may have full notice that the debtor prefers him to his other creditors, and that other creditors must lose in consequence of such preference. [Indeed, where the property conveyed is not worth more than the existing indebtedness, it would be difficult to conceive a case in which fraud under the statute of 13 Eliz. could be established. But when, as in the case before us, a note is held by the vendee and applied only in part payment for the property, and cash is pdid for what is due in excess of the note, and .the jury is of opinion that the cash payment is not bona fide, but made only to deceive and cover up a fraud upon the creditors of the vendor, what is the effect ? I instruct you that it would render the whole transaction void, because fraud vitiates everything it touches, and although you may be of opinion that the note was honestly held, yet, if you shall further believe from the evidence that the money was not honestly paid, then the purchase would be fraudulent and void against the creditors of W. H. Taylor.”]</p> <p>Verdict for defendants. A motion for a new trial was refused and judgment entered on the verdict. The plaintiff took this writ, and, inter alia, assigned for error the admission of’the evidence in regard to the declarations of W. H. Taylor, the answers to the above points, and the portions of the foregoing charge included in brackets.</p>

<p>Error to the Court of Common Pleas of Lancaster county: Of May Term 1880, No. 118.</p> <p>Assumpsit by the Hanover Junction and Susquehanna Railroad Company against Michael Moore, to recover on a subscription to the stock of said company. Defendant pleaded non-assumpsit.</p> <p>By an act approved March 28th 1872, the Hanover Junction and Susquehanna Railroad Company was created a corporation, and it was so decided in Railroad Co. v. Haldeman, 1 Norris 36. It was authorized to build a railroad from “ a point at or near Hanover Junction, in York county, extending to the west hank of the Susquehanna river, in York county.” It was also authorized “ to build a bridge across the Susquehanna river at the most convenient point, to enable them to connect with any other railroad constructed, or that may hereafter be constructed, on the east side thereof, and to extend their railroad on the west side of said river to said bridge, and across on the same to the points of annexion with such other railroads as aforesaid.”</p> <p>The company has not built any railroad on the west side of the river, nor any bridge across the river, hut it took subscriptions towards what it commonly calls “ The eastern extension of the Hanover Junction and Susquehanna Railroad,” which subscriptions contained the following conditions :</p> <p>“ And it is further agreed, that we, the citizens of Marietta and vicinity, do subscribe the amount opposite our respective names, on the following conditions, viz :</p> <p>“That the amount hereby subscribed shall be devoted to the building and equipping of the extension of the Hanover Junction and Susquehanna Railroad, according to the survey made by the Philadelphia and Reading Railroad Company, the same having been adopted at the last meeting of the Hanover Junction and Susquehanna Railroad Company, and it is further agreed, that there shall be a first-class station erected in Marietta by said company.</p> <p>“ Further, the said subscription shall only be paid when the sum of |100,000 shall have been subscribed for this purpose,'by the citizens residing at or near the line of said above extension in Lancaster county.”</p> <p>This route, commonly called the Reading survey, was well known; it passed through the land of M. II. Moore, defendant, and about five hundred feet from his flour-mill, and, at the time he subscribed in 1873, was staked out through his land, and he was assured that it was under contract and would be built. After he subscribed, and after the road was under contract for grading, the company changed the route, abandoned the route of the “ Reading survey, ” and adopted and graded another line twelve hundred feet farther away from Moore’s mill, and entirely off his land,-and changed the terminus at the Reading and Columbia Railroad nearly a mile, and the change Moore alleged was injurious to him. This was done without any consultation with or consent of Moore, and without any waiver by him of the conditions in the subscription.</p> <p>At the trial, before Livingston, P. J., the defendant offered to show that if the road had been built, as staked out through his property at the time he subscribed, it would have been an advantage to his mill property and his milling operations, and that as it is, graded outside of his land and further away from his mill, it is of no advantage.</p> <p>Plaintiff objected and the court rejected the offer. (Eighth assignment of error.)</p> <p>Also, to show that at the time he made the subscription he would not have made it, if the road was to be built on any other route than the one staked out through his property, and that this road as staked out through his property was the inducement for him to make the subscription.</p> <p>Objected to and objection sustained. (Ninth assignment.)</p> <p>Also, to ask a witness the following question, which the court disallowed: “Would you have subscribed at the time you did, if you had been informed or had known that the road would be graded or built where it now is, and not on the liiie that was then staked out?” (Seventh assignment.)</p> <p>The first point of the plaintiff, which the court affirmed, was as follows: If the jury believe that the railroad was to be built between some point on the Susquehanna river and the Reading and Columbia railroad, in accordance with the terms of the charter of the corporation plaintiff the defendant having failed to show that the modifications of the original survey were not in accordance with what was the understanding of the subscribers as to the real object to be effected, and having failed to show that they were not useful to the public and were prejudicial to the company, the verdict must be for the plaintiff. (First assignment.)</p> <p>The court directed the jury to find for the plaintiff. (Sixth assignment of error.) '</p> <p>. The first point of the defendant, which the court refused, was as follows: The condition in the subscription signed by the defendant, that the amount thereby subscribed shall be devoted to the building and equipping of the extension of the Hanover Junction and Susquehanna Railroad, according to the survey made by the Philadelphia and Reading Railroad Company, if said location was the inducement to the defendant’s subscription, is valid and binding on the plaintiff, and any change made by the plaintiff of such location or line injurious and disadvantageous to the defendant would release the defendant from his subscription. (Third assignment.)</p> <p>Verdict accordingly, when defendant took this writ and alleged that the court erred, inter alia, as set forth in the foregoing assignments of error.</p>

107. Trespass on the case, by Samuel B. Bernar against Stephen H. Dunlap, for malicious prosecution. Bernar was arrested, on the complaint of Dunlap, for the larceny of a pair of gloves. Dunlap did not appear, and the case was dismissed by the alderman. At the trial of the present case, before Livingston, P. J., the plaintiff gave his own testimony, and called various witnesses to prove his good character.

<p>Appeal from the Orphans’ Court of Lancaster county: Of May Term 1880, No. 179.</p> <p>Appeal of Mary O. Porter, from the decree of the court, dismissing the exceptions to, and confirming the report of the auditor, in the distribution of the estate of Henry Eberle, deceased. Henry Eberle died in February 1876, leaving five children, and a will dated October 15th 1875, which contained the following clause: “ The note of $4000 dated August 6th 1861, bearing interest at the rate of five per cent, per annum, which I hold against my daughter Mary; and the one of $3000, bearing date the same day, at same rate of interest, which I hold against my son Benjamin F. Eberle, are deemed by me as advancements to the respective drawers thereof, and I order1 and direct that they be valued and appraised at their full amounts as assets of my estate in the hands of my executors, and to be respectively paid and accounted for, by the respective drawers thereof, at the first distribution of the residue of my estate put of their respective shares therein.”</p> <p>The note of his daughter Mary, who was intermarried with George W. Porter, was as follows:</p> <p>u One year after date I promise to pay to Henry Eberle, Sr., or order, Four Thousand Dollars, without defalcation, for value received, with interest at five per cent, per annum until paid. Witness my hand and seal this sixth day of August, One Thousand Eight Hundred and Sixty-one.</p> <p>“ Witness :</p> <p>“A. M. Hershey. Mary C. Porter, [seal.]”</p> <p>By the terms of his will, the executors of the testator, John H. Zeller, and testator’s son Benjamin F. Eberle, were directed to sell his real and personal property, and the proceeds of his residuary estate were to be divided in equal shares among his five children. When they filed their inventory the executors included therein the two notes of Mary C. Porter and Benjamin F. Eberle, with interest charged thereon to date of filing said inventory. Benjamin F. Eberle accounted for the amount of his note $3000, with the interest $2347.91, and the executors charged themselves with $5347.91. Mrs. Porter claimed that while the principal of her note was to be deducted ■ from her share, under her father’s will, she was not to be charged with interest thereon; that by the terms of said will, said principal was converted into an advancement, and that it did not carry interest.</p> <p>The executors’ account was referred to an auditor, A. Slay-maker, Esq., before whom it appeared that when Mary C. Porter gave her note .to her -father, she was a married woman; that she gave said note to her father at his request to secure certain endorsements made by him to her husband, George W. Porter, who died in 1863. The testator subsequently learned that the note was void because of Mrs. Porter’s coverture. Parol evidence was offered of declarations made by the testator in his lifetime, to the effecLthat Porter had gotten the money, and that it went through his hands, and that Mary had no benefit therefrom, and that he thought therefore it was not right to charge her with interest on the money; that he had a notion to try to fix it, and give her a receipt for the interest; that he had come to the conclusion, that to give satisfaction, he must charge Mary with the $4000, but no interest thereon. This evidence was taken, but was afterwards excluded by the auditor as inadmissible.</p> <p>The auditor, inter alia, reported:</p> <p>“ The testator’s plan for the distribution of his property was manifestly to convert it all — personalty as well as realty — into money, and the fund so produced to distribute equally among his children (except Simon, as to whom it was uncertain whether he was yet living), in the shares of two of them, Mrs. Porter and Benjamin F. Eberle, to be reckoned, however, certain claims which he held against them respectively on notes under seal, both of date August 6th 1861, and alike bearing interest at the rate of five per cent, per annum, of which that of Mrs. Porter was for $4000 and that of B. E. Eberle was for $3000.</p> <p>“ The note of the former, having been executed during the lifetime of her husband, was void, and being therefore entirely valueless as an asset of the estate, there was no mode in which the payment of the debt for which it was given could be secured, but by providing in the will for its deduction from her share of his estate. The testator has provided for such a deduction, but has he done so in such terms as to make it inclusive of interest upon the principal ?</p> <p>“ The provision on that subject constitutes the fourth item of the will which has already been recited, and need not now be repeated. After describing the notes, it states that ‘they are deemed by me (the testator) as advancements to the respective drawers thereof,’ and if this were all that was said upon the subject, there could unquestionably be no charge of interest upon them. The item, however, does not so end, but proceeds further to provide ‘ that they (the notes) shall be valued and appraised at their full amounts, as assets of my estate in the hands of my executors, and to be respectively paid and accounted for by the respective drawers thereof at the first distribution of the residue of my estate out of their respective shares therein.’</p> <p>“ Now, an advancement being an irrevocable gift of the money or property which is its subject, that money or property ceases definitively thereafter to belong to the donor, and of course upon his death is neither to be included in the inventory of his estate, nor appraised as a portion of its assets. It is evident, therefore, that the testator has here used the term without any distinct perception of its technical meaning; and that his intention in the provision is to be determined, not from its use alone, but from the general scope and effect of the phraseology employed to express that intention.</p> <p>“ Whatever the testator chose to call these notes, he had unquestionably a right so to dispose of his estate, that the presumptive shares therein of the respective drawers of the notes should be diminished by the amounts for which they were severally given. That he so intended as to the principal is certain ; and, observing the particularity with which, in the final clause of the item under consideration, he has directed the notes to ‘ be valued and appraised at their full amounts as assets of his estate, in the hands of his executors, and (so appraised) to be respectively paid and accounted for by the respective drawers thereof,’ it has seemed to the auditor impossible to escape the conclusion that the diminution -of the shares of the drawers of the notes was intended to include interest as well as principal.</p> <p>“ In this distribution, therefore, the share of Mrs. Mary Porter will be merely her fifth part of the residue of this estate, after deducting therefrom the principal of her note of August 6th 1861, with interest therefrom from that date to the time of the filing of this report,” * * *</p> <p>Exceptions filed to this report were dismissed, and the report confirmed, the court, Livingston, P. J., saying:</p> <p>“ We have examined the authorities cited, the will of the decedent, the able report of the learned auditor and minutes of audit, and have felt obliged (though reluctlantly) to arrive at the same conclusions presented to the court by the auditor.”</p> <p>Patterson, A. L. J., dissented, holding that the $4000 to the daughter, Mrs. Porter, was an advancement, and did not carry interest.</p> <p>From the above decreé this appeal was taken.</p>

<p>1. Where land is sold at sheriff’s sale only those creditors whose claims were liens on the land at the time of the sale, and the owner of the land, can participate in the distribution of the proceeds.</p> <p>2. Land of H. was sold as the property of K., who was the vendor of H. The proceeds were awarded to a judgment-creditor of II. and the balance to H. as owner. R., a judgment-creditor of K., whose judgment had not been revived, as against LI., claimed the fund on the ground that II. had made a prior promise to K. to pay R.’s judgment, and that he had by a parol contract with K. assumed the debt and.promised to pay it. Held, that R. had no standing to participate in the distribution.</p>

<p>1. Where a condition of a policy of insurance requires suit to be brought ■ within six months, and it is a part of the contract as contemplated by both parties at the time the risk was assumed, the insured eannot be released from this condition by a mistake in the policy as to the time when the risk commenced.</p> <p>2. While the refusal of the company to recognise its liability may operate as a waiver of its right to insist on preliminary proof of loss, &c., it does not relieve the insured who claims the contract was in full force, when the fire occurred, from bringing suit within the six months. His failure to do so is a bar to any claim he may have against the company, and the result cannot be avoided by setting up the receipt given for the premium by the agent of the company and ignoring the terms and condition of the contract as it was contained in the policy of insurance.</p>

<p>1. Where, for a consideration, a railroad company undertakes to transport a passenger from one point of its line to another, there arises an implied contract on the part of the company that it has, for that purpose, provided a safe and sufficient road, and that its cars are safe and trustworthy.</p> <p>2. Where a passenger is injured by an accident arising from a collision, or a defect in the machinery or roadway, he is required, in the first place, to prove no more than the fact of the accident and the extent of the injury; a prima facie case is thus made out, and the onus is cast upon the carrier to disprove negligence.</p> <p>3. This prima facie presumption may be overthrown by proof, to the satisfaction of the jury, that the injury complained of resulted from inevitable accident, or from something against which no human prudence or foresight could provide.</p> <p>4. Where an accident occurs by reason of the washing away of an embankment of a railroad because of insufficient drainage, the company will not be relieved of liability by the fact that the road was constructed under the supervision of a competent engineer, and that the drainage, at the point of the accident, was provided for in a manner directed and approved by him.</p> <p>5. The fact that the defendant is the lessee of the road does not relieve it from the consequences of its own negligence, and it was bound to see that the road, whether owned or leased, was safe and sufficient between the points named on the passenger’s ticket.</p> <p>6. Where questions should not have been allowed, but the answers thereto are unexceptionable, this court will not reverse therefor.</p> <p>7. Laing. v. Colder, 8 Barr 479 ; Sullivan v. Railroad Co., 6 Casey 234; Meier v. Railroad Co., 14 P. 1?. Smith 225 ; Railroad Co. v. Napheys, 9 Norris 135, followed; and Mansfield Coal Co. v. MoEnery, 10 Id. 185, distinguished.</p>

<p>A married woman loaned money to her husband out of her personal estate, and as security therefor took a judgment in the name of a trustee. To enable her husband to obtain a new loan she certified in writing, with the assent of her husband, that the judgment to secure this new loan should take precedence of her judgment. This certificate was entered on the record and attested by her husband, and the loan was then made and the judgment given. The husband’s real estate was sold at sheriff's sale, and in distributing the proceeds, Held, that this certificate was an executed contract, and operated as an immediate and unconditional release of her prior right of lien to the amount of the new judgment, and she could not repudiate it on the ground that she was a feme covert.</p>

<p>The distributive shares of the four minor children of a decedent were paid to their guardian D., who loaned three of these shares to F. on judgment bonds, payable respectively as each minor became of age, with interest annually. The account of D. was settled and confirmed in March 1872, and on his own petition he was discharged on “ paying to his successor all moneys in his hands, with accrued interest thereon, belonging to the estate of said minors,” and on the same day G., who was appointed his successor as guardian, tools from D., as cash, an assignment of the three judgments against F. Two of the judgments were paid as they matured in 1873 and 1876 respectively. In 1877, F. made an assignment for the benefit of creditors, and her real estate proving to be insufficient to pay prior liens the third judgment was lost. The auditor found that the guardian had acted in good faith, under the advice of counsel, and was not- guilty of negligence in the management of the trust; that at the time he accepted the assignment of the judgments the security was such as careful and prudent men would have regarded as good, and that the loss was caused by the extraordinary depreciation of real estate in 1873. Held, that the guardian was not guilty of such negligence as should oast upon him the burden of the loss.</p>

<p>Errgr to the Court of Common Pleas of Bedford county: Of May Term 1880, No. 14.</p> <p>The facts were these: Susanna Imler purchased from her son, Thomas Imler, his interest in a farm, and gave him therefor her note for $2600, payable in three annual instalments, commencing April 1st 1875. The note contained a warrant of attorney to confess judgment, “with attorney’s fees fbr collection,” and was entered of record. The first two instalments were paid, and all of the third except $192.56. Thomas Imler claimed this balance and interest, amounting in the aggregate to $216.36. Susanna Imler alleged that she had paid this balance, by having paid a judgment-note of John B. Smith against Thomas Imler for $192.56, which was a lien on the land. Thomas did not deny that she had paid the Smith judgment, but alleged that she ought not to have paid it, because his name to the note on which said judgment was entered was a forgery. Execution was issued on the judgment of Thomas Imler against Susanna Imler for the balance alleged to be due, and including a commission of $103, which was the fee for collection, as calculated on $2600, according to a fee bill adopted by the members of the bar of Bedford county. Susanna applied to the court to have the judgment opened, on the ground alleged above, that she had paid the whole debt, and her petition prayed the court to strike off the $103 commission, for the reason that the money had been paid promptly, and no execution had been issued until the whole amount had been paid or tendered. The plaintiff, in his answer, averred tha-t the Smith judgment was a forgery, and should not have been paid by Susanna Imler. The court, Hall, P. J., opened the judgment, and the case was tried by a jury, on the petition and answer, under the following instructions from the court:</p> <p>“ The only question of fact in dispute is whether Thomas Imler signed the Smith note — is his signature genuine ? The burden of proving this is for the defendant, Susanna Imler. Dubois, who attests the signature as witness, has not been called. John Imler testifies that Thomas admitted to him that the note was genuine, and also, that he knows his writing, and the signature is genuine. Imler swears he never signed it. The real dispute is the sum of $192.56, with interest from 2d April 1877. If Thomas Imler signed the note of E. Y. Imler to Smith, as surety, Susanna Imler had a right to pay the $192.56, and to have credit for it on this judgment.</p> <p>“As to the commissions of 'the attorney, the defendant does not deny that the money was all collected by the attorneys, and that by the terms of the contract the sum of $103, is due, unless the court should be of opinion, as a matter of law, that the money must have been collected by execution. This point we reserve, to be determined on a proper motion.”</p> <p>Verdict for plaintiff for $319.36, “subject to opinion of court on attorney’s commission.” A motion for a new trial was refused, and the court entered judgment for the plaintiff on the point reserved, when defendant took this writ, and alleged that the court erred in the instruction to the jury that the burden of proving that Thomas Imler signed the Smith note was upon Susanna Imler, and in allowing the attorney’s commission when the debt had not been collected by execution.</p>

<p>1. Where a conveyance is made with intent to defraud existing creditors, and other parties thereafter, on the faith of the representations of both grantor and grantee that said existing indebtedness was paid, and the grantor still retained his interest in the property conveyed, advanced money to said grantor, said parties may, as to said grantee, avoid the conveyance as a fraud upon them.</p> <p>2. In 1871, D. loaned money to J., the grantor of certain real estate, on the faith of the representations made to him by both J. the grantor, and M. the grantee, that the deed was intended to defraud the grantor’s existing creditors, which indebtedness was paid in 1869, and that -J. still retained his interest in the land. In 1873, the grantee assigned the land for the benefit of certain creditors. Afterwards in 1877, on the faith of similar declarar tions, S. loaned money to J. the grantor. The assignee for creditors sold the land for more than sufficient to pay all the debts for which it was assigned. The surplus was referred to an auditor for distribution, when M., the assignor, claimed it by virtue of his conveyance from J., and it was also claimed by D. and S. Held, that M. was estopped by his representations from claiming as against D. and S., and that, under the circumstances, they were entitled to be paid out of the fund.</p>

<p>Appeal from the Orphans’ Court of Bedford county: Of May Term 1880, No. 158.</p> <p>Appeal of Catharine Himes from the decree of the court confirming the appraisement setting aside $300 worth of property of Susan Anderson, deceased, for the use of the minor child of decedent. Susan Anderson died on the 13th of November 1877, intestate, leaving to survive her one child, Francis Anderson, a minor. Her husband had deserted her, and had not been heard of for more than seven years previous to her death. At the time of her death, she owned and possessed personal property and a tract of land comprising about twenty-six acres. The whole of this property was appraised at less than $300, and set apart for the surviving child of deceased, under Act of 14th April 1851. The deceased owed a number of debts, among them a debt of $75 to the appellant, Catharine Himes, who nursed and waited on her during her last illness.</p> <p>The appraisement of the property, valuing it at less than $300, was presented to the court for approval and confirmation, when the exceptions of Catharine Himes were filed, and the question of allowing the $300 under the act was referred to an auditor, John H. Jordan, Esq.</p> <p>The auditor, inter alia, reported: “ Up until the decision in King’s Appeal, 3 Norris 345, the opinions of the courts giving constructions to the statutes were with reference to the claims of the widow and children upon the estates of deceased husbands. The decedent recognised in the acts was the husband, and in King’s Appeal, supra, the question was first presented to the Supreme Court, whether the word decedent, used in the act, did not embrace the mother, and whether, in case of her death, $300 worth of her property did not pass to her children in like manner as property is set apart in case of the death of the husband. ' The court held that ‘ the main purpose of the act is to provide for the widow. Its meaning and spirit limit its operations to the property left by the husband or father. It was not intended to apply to the property of a wife. This view is in harmony with all our decisions giving construction to the statute.’ It is, therefore, evident to the auditor that the proceedings by appraisement to. set apart the property of the deceased mother, so as to vest title to the same in her child, have been irregular, and that under the decisions above cited, the child is not entitled to have the property so appraised and set apart for her use. The appraisement made, and the proceedings had thereon, should be dismissed.”</p> <p>Exceptions were filed to this report, which the court, Hall, P. J., sustained, in an opinion, inter alia, saying: “If the husband dies leaving no widow, but minor children, they are the family within the meaning of the act, and entitled to the benefit of the act. Why should not the children of a widow be entitled to the same privilege in her estate ? They need the benefits of the act as much as any others. They are left without father or mother, and have no one legally responsible for their maintenance. They come within the spirit of the act, and there are no words excluding them. King’s Appeal, 3 Norris 345, is not this case. That was the estate of a wife leaving a husband. In the latter part of Judge Mércur’s opinion, he says the act is limited to the estate -of a husband oT father, and does not apply to the estate of a wife. The former part of the expression may be considered as an obiter dictum, for that was not the question before the court. The latter part was the direct question involved in the case. The statute does not apply to the estate of a wife. But it does not follow that it may not apply to the estate of a widow, leaving a minor child, or minor children wholly dependant upon her. The mischief intended to be provided against by the statute, stripping a dependant family of all means of support, and the plain and manifest spirit of the act seem to require that its beneficent provisions be extended to the minor children of a widow. Holding this to be the true construction of the statute, the appraisement is approved.”</p> <p>Catharine Himes took this appeal, and alleged that the court erred in setting apart the property to the minor child; that it being the separate property of the mother, the minor is not entitled to it under the act, in preference to the creditors of deceased.</p>

<p>Error to the Court of Common Pleas, of Bedford county: Of May Term 1880, No. 82.</p> <p>Ejectment by Esther Smith, for the use of Samuel McClain, against Samuel Kensinger and Nancy Kensinger, his wife, to recover two tracts of land in Bedford county.</p> <p>Jacob K. Smith died seised of the land in controversy. By order of the Orphans’ Court for the payment of debts, his administrator sold this real estate, and by deed, dated December 30th 1872, conveyed the same to Esther Smith, the widow, the purchaser, for the consideration of $2216.69. At the time of the sale there was paid by Nancy Kensinger, the mother of Esther Smith, the sum of $1400, of which she borrowed from Samuel McClain $350. The deed to Esther Smith from the administrator was never delivered till payment of the balance of the purchase-money, November 12th 1873. On the 30th of October 1873, Esther Smith, by articles of agreement, agreed to sell and convey to the said Nancy Kensinger the land in controversy, she to pay to the said Esther Smith “ the sum of $2214, in manner following, to wit: $1515 in cash, and the balance the said Nancy Kensinger to pay to the administrator of Jacob Smith; to get the deed which is made to the said Esther Smith by the administrator of Jacob Smith, deceased, when the said Esther Smith will make the same over to the said Nancy Kensinger.” The same day Esther Smith receipted for $1515 to Nancy Kensinger.</p> <p>On November 12th 1873, Nancy Kensinger borrowed from Samuel McClain the further sum of $773.41, and, with $100 she had herself, paid off the balance of the purchase-money due from Esther Smith to Jacob K. Smith’s administrator, when the said administrator delivered the deed to Esther Smith. On the same day, Esther Smith executed a conveyance for the same land to Nancy Kensinger, in pursuance of the agreement before mentioned. A statement ór settlement of the transactions between Samuel McClain and Nancy Kensinger was then drawn up, and for borrowed money to make payments on this land, for two years’ interest in advance, for four per cent, excess in interest, and for the expenses and trouble of the said McClain, it appeared there was due him $1378.09, for which he took her individual judgment-note, and the same day had judgment thereon entered against her. The consideration mentioned in the last deed from Esther Smith to Nancy Kensinger was $1108.35. This deed was in the usual form, and, after the description of the land, contained this clause: “The said real estate is conveyed subject to the payment of the sum of one thousand three hundred and seventy-eight dollars and nine cents, being the balance of purchase-money due, from which a judgment has been entered in the name of Samuel McClain. * * * Habendum, etc., * ‡ * subject, nevertheless, to the payment of the sum of one thousand three hundred and seventy-eight dollars and nine cents, as aforesaid.”</p> <p>After the bringing of this action, on the first day of December 1879, the said Esther Smith filed her petition in the Court of Common Pleas, praying for a rule on Samuel McClain, for whose use and at whose instance the action of ejectment was brought, to show cause why the use of her name as legal plaintiff' should not be prohibited and the same stricken from the record, she alleging that Samuel McClain was not a party in any particular to the deed of conveyance from her to Nancy Kensinger, that the purchase-money was all paid to her, and all claims she ever had against the grantee were fully satisfied. This application was decided in the trial of the case.</p> <p>At the trial, before Hall, P. J., the defendant presented the following points, all of which the court refused :</p> <p>1. That the action of ejectment, in its present form, cannot under all the evidence in this case be sustained.</p> <p>2. That no action of ejectment by Samuel McClain, for his use, can, against the consent of Esther Smith, the legal plaintiff, be maintained under the evidence in this cause.</p> <p>3. That Esther Smith, the grantor, having parted with all her right, title and interest in this land, by conveyance to Nancy Kensinger, the grantee, and all of the purchase-money due her or her predecessors in title having been paid, the said Samuel McClain is a stranger to the deed and to the title, and therefore has no such title or right at law as would enable him to recover in this form of action.</p> <p>4. That the undisputed evidence in this case being that the purchase-money due Esther Smith and her predecessors in title was all paid when ’the conveyance was made to Nancy Kensinger, she stood in no other relation to him than a debtor for the amount advanced by McClain to satisfy the purchase-money owing by Nancy Kensinger on the conveyance to her, and upon a breach of the conditions in said deed to Nancy Kensinger, Samuel McClain has no right of entry for condition broken, nor right to enforce the performance of the condition by this action of ejectment.</p> <p>The court then directed the jury, under all the evidence in the case, to render a verdict for the plaintiff for the land in dispute, to be released on payment of $1573.30. Verdict accordingly, and after judgment thereon, defendant took this writ, and alleged that the court erred in the refusal of the defendant’s points, and in the above direction to the jury..</p>

<p>1. The special Act of April 8th 1867, which provides that all persons residing on certain lands therein named, situate in the township of Napier, are attached to the borough of Sehellsburg for school purposes and shall pay their school taxes, and be entitled to all school privileges, including the right to vote for and serve as school directors in said borough, was not in violation of the Constitution of 1838, nor is it of art. 3, sect. "8, of the Constitution of 1874, which provides that electors shall reside in the election district in which they vote.</p> <p>2. The general Act of April 13th 1867, provides, that when the land of a resident of a township or borough shall be .annexed under the provisions of said act to another township or borough, the applicant shall pay his school taxes and be included within the school district to which it is so annexed for educational purposes and remain connected with the district or township of his residence for all other purposes. Held, that said act manifestly uses the more comprehensive words “ for educational purposes” with the view of expressing in fewer words the same rights and obligations imposed by the Act of April 8th 1867.</p> <p>3. A school district is not strictly a municipal corporation.</p>

<p>Error to the Court of Common Pleas of Bedford county: Of May Term 1880, No. 105.</p> <p>These were three actions of debt brought by J. C. Akers, receiver of the Union Plorse Insurance Company, of Blair county, against Albert Hite, Joseph Brunner and John Dicken, for the recovery of two assessments on premium notes, made for the purpose of paying off the indebtedness of the company. One assessment of three per cent, on premium notes in the hands of the company was made by the directors January 1st 1878, and one of fifteen per cent, was made by the receiver of said company March 29th 1878. The company was chartered June 17th 1872,. by the Court of Common Pleas of Blair county,' under the Act of Assembly of March 26th 1867, and conducted its business on the mutual plan. The value of each animal insured was considered capital stock, and was, in case of loss, subject to assessment.</p> <p>On the 5th of November 1874, John Dicken insured four horses for the period of five years, to the value of $525, and deposited his note with the company, whereby he agreed to pay within ten days next, after notice to the said company, or order, all taxes which may be assessed on the above-named, insured horses, for making good, and to satisfy all losses which may occur between the 5th November 1874, and the 5th November 1879. Joseph M. Brunner insured two horses to the amount of $275 for five years, from the 6th October 1874, and Albert Hite insured two horses to the amount of $200 for five years, from the 6th October 1874. Both gave the same kind of deposit notes as Dicken. In 1876 and 1877 the company, from numerous and severe losses, became heavily involved, and judgments to a large amount were entered against it. A great many members became dissatisfied with the management of the company, and the directors, on the 20th of October 1876, passed a resolution “ to allow all dissatisfied me.mbers to withdraw from the company after paying all assessments or dues if their policies are handed to the directors.” And again on April 3d 1877, passed another resolution : “ In accordance with the resolution passed on the ‘20th of October 1876,’ that the officers of the company shall cancel all policies of persons who have paid all their just dues to the company, or shall pay them within thirty days after due notice has been given to them, provided such persons wish to withdraw from the company, in all cases when a'policy is cancelled, the secretary shall return the application on which the policy was granted, with as little delay as possible, to the person who made the application.” Numerous parties availed themselves of this opportunity, surrendered their policies to the company, and had them cancelled. These three defendants, Hite, Dicken and Brunner, handed their policies to Samuel Whip, one -of the directors, with the request to have them returned to the company. Whip -gave them to the secretary of the company, J. Z. Smith, who accepted them and told Whip if everything was right he would lay them before the board, and, if cancelled, would send defendants their premium notes. On investigation, the secretary discovered that, on previous assessments made, Hite was owing to the company $1.50, Dicken $4.58; and these three policies were not cancelled by the company, but treated in the books of the company as still in force ; and, in January 1878, when the secretary made out the assessment lists he assessed these three parties and charged them with the amount of their assessment. Meanwhile the company became more and more involved, judgment-creditors issued execution, and, after due process of law, J. C. Akers was appointed receiver of the company, the officers of the company surrendering to him on request all goods and chattels and all the assets consisting of premium notes. Not having any cash assets wherewith to pay the debts, and not being able to ascertain the indebtedness of the company or the amount of premium notes which were still in force and uncancelled, the receiver, by direction-of the Court of Common Pleas of Blair county, laid an assessment of fifteen per cent, on all premium notes in his possession and was directed to collect this amount, and also an assessment of three per cent., laid by the directors January 1878, but still uncollected.</p> <p>The indebtedness of the company was, in April 1877, so large that it would have required an assessment on all premium notes of 12 per cent, to cancel all liabilities. These three cases, by direction of the Court of Common Pleas of Bedford county, being of a like character, were directed to be tried together, and the jury found a special verdict, which set forth, substantially, the above facts, and concluded as follows:</p> <p>“ That the jury are ignorant, in point of law, upon which side they might, upon these facts, find the 'issue. That if, upon the whole matter, the court shall be of opinion that the issue is found for the plaintiffs, they find for the plaintiffs accordingly, and assess the damages in favor of the plaintiffs against the defendants. Albert Hite, $24; J. M. Brunner, $33; John Dicken, $69. But if the court is of a contrary opinion, then they find vice versa.”</p> <p>After argument, the court entered judgment for the defendants on the special verdict, when the receiver took this writ and assigned this action for error.</p>

<p>1. Ejectment in Pennsylvania is an equitable action, and when brought to enforce the execution of an agreement to convey is a substitute for a bill in equity.</p> <p>2. Where a party seeks to enforce specific performance of such a contract he must show that he himself has been ready, prompt and desirous of performance on his part. If he has been guilty of gross laches and unreasonable delay with regard to his rights, and by conduct long persisted in, conveyed the idea he has abandoned them, he cannot after there has been a-material change of circumstances affecting the rights, interests and obligation of the parties move a court of equity to decree specific performance.</p> <p>3. While the rule is not held so strictly against one who is in possession defending, yet it is generally by reason of his equities, and where these are so weak as to present no substantial grounds for protection they must yield to the general rule.</p>

<p>1. A. and B. confessed a judgment to C. to secure his own debt and those of certain other creditors. An execution issued thereon, and C. purchased the personal property of the debtors. C. afterwards agreed with A. and B. to leave the property in their possession, in order to sell the same, and pay the proceeds to the creditors. Subsequently another creditor seized the property as the property of A. and B. under a judgment against them. In a feigned issue to try the title, Held, that the sheriff’s sale passed a good title to the property to 0., and that it was equally clear that he had a right to leave it with the defendants in the execution; that C. was á trustee as to the other creditors, and that the agreement with A. and B. was a bailment and not a sale.</p> <p>' 2. The defendants in the execution became the agents of O. as trustee, and no interest passed to them under the agreement which could be affected by a subsequent execution against them.</p>

<p>1. Under the charter of a bank the directors were authorized to manage its affairs and appoint its cashier. The bank was in the habit of receiving deposits of bonds for safe keeping for the convenience of its depositors and others, but without any compensation. The cashier of the bank solicited the plaintiff to deposit his bonds in the bank, and he took from the cashier a receipt which stipulated that the bonds should be at the owner’s risk. The cashier had no authority to solicit deposits, or make any representations as to their safe keeping, nor was it shown that the hank authorities had any knowledge of this particular deposit. In a suit for the bonds which were lost or stolen, Reid, that parol evidence of the declarations of the cashier, made when soliciting the deposit, that the bank would as securely keep the plaintiff’s bonds as it would its own, and that they were safe, except in case of fire or burglary, was not sufficient to change the effect of the written receipt so as to affect the bank.</p> <p>2. The bank was in the habit of detaching the coupons and collecting the interest for depositors of these bonds. It sent these coupons to city banks, and the proceeds were there placed to the credit of the bank, and upon the fund thus accumulated it would draw drafts and charge a small commission therefor. The interest paid by the city -banks was inconsiderable, and the amount realized therefrom and the commissions on drafts did not compensate for the trouble of forwarding the coupons and paying out the interest. Reid, that these facts did not constitute the bank a bailee for hire.</p> <p>3. The bonds thus deposited were placed in a fire-proof safe where the bank kept its ¡own valuable securities, and no one but the cashier and the authorities of the bank had access thereto. The cashier was a man who was highly respected by the community, and had the entire confidence of the directors. Reid, that there was no evidence of such negligence on the part of the bank as to make it liable for .a loss through the dishonesty of the cashier.</p>

<p>Error to the Court of Common Pleas of Cumberland county : Of May Term 1880, No. 89.</p> <p>Ejectment by James K. Boreman against Benjamin Hosier and others, for a tract of four acres of land in the borough of Carlisle.</p> <p>On October 25th 1870, Robert Given conveyed to Mary S. Sawtelle, wife of Nathaniel H. Sawtelle, a tract of land, embracing about five acres, within the borough of Carlisle. Mrs. Sawtelle continued seised of this tract until 4th June 1871, when she died intestate, her husband, and an only child, Eva Amelia, wife of James B. Richards, surviving her.</p> <p>On the 19th June 1871, Mrs. Eva Amelia Richards executed a power of attorney to her father, which, after reciting the late death of her mother, proceeds :</p> <p>“ I, the said Eva Amelia Richards, being of full age * * * do hereby constitute and appoint the said Nathaniel H. Sawtelle,' my father, my true and lawful attorney in fact for me, and in my name to collect all the assets of the estate of said decedent; to sell and convey any real or personal estate belonging thereto, and to receive, receipt for and release the purchase-money thereof, and to do any and every act which may be necessary, or which he, my said attorney in fact, may consider proper and prudent in order to dispose of said real estate. * * *</p> <p>■ (Signed) Mrs. Eva A. Richards, [l. s.]”</p> <p>It was thus acknowledged:</p> <p>“Personally appeared before me, a justice of the peace in and for said county, the above-named Mrs. Eva A. Richards, who, being duly sworn, did acknowledge the foregoing power of attorney to be her act and deed, and desired the same to be recordéd as such.</p> <p>(Signed) David Smith, J. P. [seal.]”</p> <p>It did not appear, from anything in the power or in the certificate of acknowledgment, that Mrs. Richards was a feme covert.</p> <p>On the 27th of May 1872, Nathaniel H. Sawtelle executed a deed for the land which had belonged to his wife, Mary S. (with certain reservations unimportant in this controversy), to Eva A. Richards, his daughter. The parties are described in that deed as “ Nathaniel H. Sawtelle and Eva Amelia Richards, of the borough of Carlisle, Cumberland county, of the first part, and Eva Amelia Richards of the same place, party of the other part.”</p> <p>The indenture is made to witness that the said Nathaniel H. Sawtelle and Eva Amelia Richards, for and in consideration of the sum of $500, * * * hath bargained, granted, sold, released, * * * and by these presents do bargain, grant, * * * unto the said Eva Amelia Richards, her heirs and assigns, certain land.</p> <p>“ In witness whereof, the said parties to these presents have interchangeably set their hands and seals.</p> <p>(Signed) Nathaniel H. Sawtelle, [seal/</p> <p>Eva Amelia Richards. [seal/</p> <p>By her attorney in fact: Nathaniel H. Sawtelle.”</p> <p>This deed was acknowledged by Nathaniel H. Sawtelle alone, but “for himself and as attorney in fact for Eva Amelia Richards.’</p> <p>The plaintiffs contended at the trial, 1st. That this deed, executed by N. II. Sawtelle in a double capacity, for himself and as attorney in fact for Eva Amelia Richards, though it contains no other express reference to a power of attorney, must be taken as an execution of it.</p> <p>2d. That, in any event, it conveyed to Eva Amelia Richards the life estate which her father had, as tenant by the curtesy, an estate undetermined by his death.</p> <p>On the 19th March 1872, on the petition of Eva Amelia Richards, in which she alleged desertion by her husband, the Court óf Common Pleas of Cumberland county decreed that she should have the status of a feme sole trader, in so far as such status could be acquired under the Acts of 22d February 1718, and 4th May 1855 : (Purdon, Feme Sole Traders.)</p> <p>A ceremony of marriage was shortly thereafter undergone, by which Mrs. Richards supposed herself to become the wife of J. J. Cart, whose name she assumed, with whom she lived as wife, and as whose wife she became known in the community.</p> <p>On the 80th September 1874, this woman, then for a long time known as Mrs. Cart, executed a mortgage which purported to be “ between Jacob Cart and Eva Amelia Cart, his wife, of the borough of Carlisle, of the one part, and L. T. Greenfield, of the same place, of the other part,” and to be made to secure a bond of $416.58, conditioned for the payment of $208.29. This mortgage was signed thus:</p> <p>J. J. Cart, [l. s.]</p> <p>Eva Amelia Cart. [l. s.J</p> <p>The certificate of separate acknowledgment reads: “ The said Eva Amelia Cart, being of full age, and by me privately examined and apart from her said husband, declared that she did voluntarily seal and deliver the same without any coercion or compulsion of her said husband.”</p> <p>Having ascertained that no valid divorce from Mr. Richards had been obtained, Mrs. Richards petitioned for a divorce to the Court of Common Pleas of Cumberland county, and on the 22d April 1878, a decree divorcing her was made.</p> <p>A sci. fa. issued on the said mortgage to No. 185, August Term 1876, and judgment was recovered against the mortgagors, September 1st 1876, for $213.24. On an alias levari facias, the mortgaged property was sold to James K. Foreman, the present plaintiff, for $250.75.</p> <p>The defence ivas, as to all the defendants, that Foreman had failed to show a prima facie title, because the mortgage to Greenfield, under which he. claimed, was made by one styling herself Eva A. Cart, the wife of J. J. Cart, whereas she was in fact not lawfully married to him.</p> <p>John H. Boyd, and those claiming under him, defended for his part of the land in default, under a deed to him from N. H. Sawtelle, executed in his own name and in that of Eva A. Richards, as her attorney in fact, September 2d 1872. Plaintiff insisted that the deed of 27th May 1872, had executed and exhausted the power of attorney. He also insisted that the power of attorney embraced only the real estate which Mrs. Richards possessed at its execution, and that since this deed conveyed to her her father’s life-interest, he could not again convey it to John H. Boyd four months afterwards.</p> <p>Others defended under deeds executed by Sawtelle, for himself and as attorney in fact, after the deed from Sawtelle to Mrs. Richards. While others defended under parol contracts of sale made before the deed to Mrs. Richards.</p> <p>Benjamin Hosier, John Neff, II. G. Carr, defended under deeds executed by N. H. Sawtelle, for himself and as attorney in fact, after the deed from Sawtelle to Mrs. Richards.</p> <p>The case was submitted to the court, McClean, P. J. of the Forty-second judicial district, under the Act of April 22d 1874, who filed the following decision:</p> <p>“ The controversy in this case relates to the title to certain parts of a tract of land in the borough of Carlisle, which had been conveyed by Robert Given and wife, by deed dated 25th October 1870, to Mary S. Sawtelle, the wife of Nathaniel H. Sawtelle.</p> <p>“ This land was laid off in lots, and contracts for the sale of those claimed by John Neff, James Tait, two of the defendants, and also of George Lane and Emma Bridget, for which defence is now made in the name of Benjamin Hosier, were entered into before the 4th day of June 1871, at which date Mrs. Sawtelle died intestate. She left surviving her Nathaniel H. Sawtelle, her husband, and one child, Eva Amelia Richards, who was married to James B. Richards on the 27th day of November 1867.</p> <p>“ It is in evidence that Richards had deserted his wife before the death of Mrs. Sawtelle, and that consequently Mrs. Richards had all the rights and privileges secured to a feme sole trader under the Act of the 22d of February 1718, and her property, real and personal, acquired upon the death of her mother intestate, was subject to her free and absolute disposal without any liability to be interfered with or obtained by her husband. Thus, as if he were previously dead, Mrs. Richards, on the 19th day of June 1871, about a fortnight after the death of her mother, being of full age and under the circumstances sui jxiris, constituted and appointed in writing, under seal, her father, Nathaniel H. Sawtelle, her true and lawful attorney in fact, for her and in her, name to collect all the assets of the estate of her deceased mother, to sell and convey any real estate, &c., belonging thereto, and to receive, receipt for and release the purchase-money thereof, and to do any and every act which may be necessary or which her said attorney in fact may consider proper and prudent in order to dispose of said real estate, and to collect the proceeds of any sale made by him, and in general to do any act relating to the sale, disposal or improvement of said real estate of said decedent as she herself could do._ One of the objects of the power of attorney as expressed therein being to save the expense and delay of making the sale of the said real estate under proceedings in the Orphans’ Court, the said decedent having no debts, &c. This express, full and plain letter of attorney was acknowledged under oath, and on the day following recorded in the recorder’s office at Carlisle.</p> <p>“ On the 19th of March 1872, the Court of Common Pleas of this county finds the fact of desertion of Mrs. Richards by her husband, covering and relating back to the date of the letter of attorney nine months previously, and made a decree, and granted her a certificate under the Feme Sole Trader Act.</p> <p>“We have then next on the 27th day of May 1872, a conveyance, as given in evidence by the plaintiff, of the land described in the writ, with certain reservations by N. H. Sawtelle and Eva Amelia Richards, by her attorney in fact, N. H. Sawtelle, to Eva Amelia Richards:</p> <p>“ This was offered by the plaintiff for the purpose of showing a conveyance of the life estate of the grantor to the grantee, and also to show an intention on the part, of the grantor to convey the fee under the power of attorney and exhaust the power of attorney. This deed was recorded the same day. The plaintiff then next, in further claim of the passage of title,.gives in evidence a mortgage not in the name of Mrs. Richards, the feme sole trader, but by J. J. Cart and Eva Amelia Cart, his wife, to L. T, Greenfield, dated and recorded 30th September 1874, upon same property described in the Given deed, with certain exceptions; - and it is proven and admitted that this Eva Amelia Cart is identical in person with Eva Amelia Richards. Scire facias was issued upon this mortgage against J. J. Cart and Eva A. Cart, and judgment entered 1st September 1876 for $213.24. Levari facias was issued against same defendants to No. 2, November 7th 1876, and returned stayed by endorsement of plaintiff’s attorney November 28th 1876. A levari facias issued to No. 62, January 7th 1878, and sheriff returns 14th January 1878 premises sold 11th January 1878. Second described property (being the Given tract) sold to James K. Foreman for $250.75, which is followed by the sheriff’s deed of 21st January 1878 to the purchaser.</p> <p>“ Then we have it established that there is no presumption of the death of James B. Richards, and that on the 22d^of April 1878, and not until that day, Mrs. Eva A. Richards, not Cart, obtained from this court a decree of divorce from her husband, James B. Richards. Now how can it be seriously contended that the title of Mrs. Richards passed by and under the mortgage of 30th September 1874 of J. J. Cart and Eva Amelia Cart, his wife? The mortgage-creditor does not contract with the feme sole trader, Eva Amelia Richards, not with her as the deserted wife of Richards, but distinctly and expressly with her as the wife of J. J. Cart, who unites with her in the execution of he mortgage. It is lie estate of Mr. and Mrs. Cart, if any passed by the mortgage, which is levied on and sold to the plaintiff.</p> <p>“ How can he invoke the aid of the feme sole trader acts when their provisions were never exerted in the indenture of mortgage ? Can he pretend to elaim to have the estate of a married woman, whose husband was living, and who did not join with her in the mortgage ? He has not this woman’s title in either of these two ways, either as a feme sole trader or as a married woman uniting . with her husband in executing a valid mortgage on her separate property, for Cart was not her husband, but Richards was, even after the time of bringing this ejectment. The plaintiff has shown no title to the real estate of Eva Amelia Richards.</p> <p>“ The mortgage-creditor obtained a lien on such estate, and only on such estate as Mr. and Mrs. Cart, as such, could create. The court cannot add to or strengthen it, the subject of the mortgage. Me nihilo nihil fit. It is too weak to stand alone. The parties making defence prove that they held under N. H. Sawtelle and Eva A. Richards. They were all in possession at the time of the execution of the mortgage, 30th September 1874, and at the time of the issuing and service of the writ in December 1877, and at the time of the sheriff’s sale to the plaintiff on the 11th January 1878, except H. G. Carr, whose lot was unimproved and unoccupied, but whose deed was recorded 24th December 1872. He shows, however, a better title to it than does the plaintiff, the purchaser of the real estate in controversy, who has been substituted as the plaintiff on record under the Act of 26th April 1850.</p> <p>“ The purchaser prosecutes the action. His claim is distinctly rested upon the mortgage and the proceedings thereupon. He w.as substituted as plaintiff, Mrs. Eva A. Cart, by writing endorsed upon the motion, agreeing to the substitution. The plaintiff on the trial expressly objected to the admission of any evidence which might affect Mrs. Richards alone, such as the evidence in the proceedings resulting in the decree of Mrs. Richards as a feme sole trader (although offered by the plaintiff himself), and that might therefore prejudice the present plaintiff. It appeared upon the trial that the purchaser has found abundant fruits of the sale in portions of the Given tract which are not in dispute, which had not been contracted for under the power given by Mrs. Richards by her letter of attorney of June 19th 1871, with third parties, yet the purchaser continues to cry give! give! against poor people defending who have contracted and paid purchase-money and built themselves houses on this tract. The claim on his part is utterly destitute of actual or legal merit. It is not at all necessary to attack the judgment on the scire facias sur mortgage. That was against Mr. and Mrs. Cart alone. The parties defending in this suit had no notice of that proceeding, and they are not to be affected by it. Their titles are all prior in time to the mortgage, and none of the 'questions arising in this case were considered or adjudicated upon the scire facias.</p> <p>“ The defendants are not intruders or trespassers. They all hold deeds from and by N. H. Sawtelle for himself, and as attorney in fact for Mrs. Richards, except James Tait, who, however, is entitled to a deed, having contracted in Mrs. Sawtelle’s lifetime, and paid all the purchase-money to Sawtelle, w.ho was administrator of the estate of Mrs. Sawtelle as well as attorney in fact of Mrs. Richards, and who signed receipts for some of the Tait purchase-money sometimes as administrator, and once, at least, as agent.</p> <p>“ Let judgment be entered for the defendants agreeably to the provisions of sect. 2 of Act 22d of April 1874.”</p> <p>Foreman filed a number of exceptions, which the court overruled. He then took this writ, and alleged that the court erred, inter alia, as follows:</p> <p>1. In not “stating distinctly and separately the facts found and the conclusions of law.” 2. -In declaring the mortgage under which the plaintiff claims inadequate to convey -to him by purchase at sheriff’s sale upon a levari facias thereunder, all the right, title and interest of the person who styled herself therein Eva Amelia Cart.</p>

<p>1. Where a charter has been granted to certain parties to act as a corporation, and they are actually in the possession and enjoyment of the corporate rights granted, such possession and enjoyment are valid against any one who deals with them in their corporate character, and he cannot be permitted, in a collateral proceeding, to prove that a condition precedent to its full corporate existence has not been complied with.</p> <p>2. The Farmers’ Bank was chartered in 1868, and did business under the provisions of the Free Banking Act of 1861. In 1871 its officers obtained a new charter by a special act of the legislature which conferred other corporate powers. When the act was passed, the bank ceased to do business under the old charter, and began to act under the new charter in the name of the “ Farmers’ Bank, Carlisle.” The stock and assets of the old bank were treated as belonging to the new, and the business continued, with the old officers, without interruption. Renewal notes were taken for portions of notes which were unpaid during the existence of the old bank, and which had been discounted by the old bank at usurious rates, and new notes and renewals were also made by the new bank at usurious rates. In a suit by the new bank against-the endorser of the series of notes and renewals, Held, that the defendant in said suit could not set up the validity of the change made by the corporation, or question its powers in this transaction. •</p>

<p>An appeal from the refusal to grant a special or preliminary injunction may be certified by the prothonotary of the Supreme Court to any district where said court is in session, or will hold its next session, and the appeal may be ordered down for argument and will be heArd when reached in its order.</p>

189. This was an appeal to the Court of Common Pleas of Dauphin county hy the Big Black Creek Improvement Company, from the-settlement of an account against them by the accounting officers of the Commonwealth. The appeal was filed July 7th 1879. The Big Black Creek Improvement Company was incorporated on the 12th of April 1855.

90. Assumpsit by George I. Schriver against Elijah Eckenrode to recover the value of the difference between the represented and the actual value of certain land sold by the assignee of defendant to the plaintiff.

116. Appeal of James A. Elder, a creditor of Joseph P. McDivit, deceased, from the decree of the court allowing interest on certain claims made in the distribution of the estate of said decedent. James McDivit died in 1858 leaving a will wherein he directed his property, real and personal, to he sold by his executor, and .appointed his son, Joseph P. McDivit, his sole executor.

<p>Error to the Court of Common Pleas of Lebanon county: Of May Term 1880, No. 181.</p> <p>Assumpsit by Andrew Zeller against Frederick W. Steiner.</p> <p>After the case was at issue the death of Zeller was suggested and the name of his administrator, L. M. Leibig, substituted.</p> <p>The material facts will be found stated in the opinion of the court below and that of this court.</p> <p>At the trial, before Henderson, A. L. J., the defendant offered to prove that he had a conversation with Andrew Zeller before he moved to the farm of defendant, and that he told the witness that he was sickly and could not work any more; that he was going to move to the place of his father-in-law; that he had a good chance and could do well there; that he was to live there rent free, could keep two cows, get the feed for one horse or more, get his fire wood and potato land, half the proceeds of chickens and butter, and all that he would have to do was to feed their own stock and defendant’s and work around the yard. This evidence to be followed by proof of other declarations of a similar character, made subsequent to the alleged contract, as testified to by Miss Zeller.</p> <p>Objected to, because this is an action on a special contract entered into in the spring of 1874, and the testimony is irrelevant, and the declarations of the plaintiff had reference to a contract entirely different from the one sued upon. Evidence admitted.</p> <p>The court charged as follows: “ It is your duty to examine carefully the evidence — to consider the credibility of witnesses; to see. the circumstances under which they testify; to look at their testimony through the bias that may surround them ; whether it is the effect of prejudice, passion or feeling. It is also your duty to reconcile, if possible, discrepancies in the evidence; but above all it is your duty to reach the-truth through the evidence, and that alone. You understand that this is an action brought by Andrew Zeller in his lifetime against Frederick F. Steiner, his father-in-law, to recover on a contract for services rendered by himself and his wife. You have been sworn to try the suit between his administrator and the defendant, simply because since the bringing of this suit Andrew Zeller died, and his administrator has been substituted.</p> <p>“ Now you certainly have observed, in the progress of the trial and the discussion of the counsel, that if the plaintiff has any claim at all it is based on the testimony of Kate Zeller, this young girl who testified as to a contract made sometime in 1874 between Steiner and Zeller. Zeller and his wife went to live with Steiner sometime in the spring of 1878. This conversation took place, according to Kate’s testimony, sometime in the spring of 1874. She was then, as it appears, a child between the age of eleven and twelve years.</p> <p>“ Her story is straightforward and to the point. That is, she testifies that Mr. Zeller said that he was tired staying there and was going to leave; that Steiner, the father-in-law, objected, and then said he would give him and his wife each $150 a year if they would remain. Just what they were to do — what their work was to be — is not so clearly set out by her, because it appears that, all through, the farm was in possession of a tenant, was farmed by a tenant, Zeller at the time living in a house on the premises in the same yard as the father-in-law. Take this story by itself alone ; does it carry conviction to your mind ? Does it satisfy you of the truth so as to establish the facts making up this contract ? It is not necessary that you should assume or that you should jump to the conclusion that the young girl perjured herself. There may be many reasons given as a foundation for the story that would probably fix upon her young mind a statement that she might carry with her, and give to it a shape that she gives here, if it was not entirely as she told it. Then you must examine the story in in the light of its probabilities.</p> <p>“ Is this story true ? Does it satisfy you that Mr. Steiner made a contract of this character with Zeller under the circumstances testified to by this girl ? If he was to pay him and his wife $150 a year each so long as they were to remain there, for what was he to pay it ? Simply for the attendance, such as some of the witnesses spoke of; and, as Kate says, was rendered by Zeller and his wife to Mr. Steiner, the father-in-law. Was it simply for attending to the cows and keeping the yard in order, and the stable clean, and matters of that kind around the yard, for there is nothing said on her part that went beyond that? Is it probable that the amount would be paid, and paid in the manner in which she says it was to be paid, $150 to each ? If you will think a moment, $150 to each in addition to. what they were getting, .you will find it was probably a very large compensation to either the woman'or the man; but under any circumstances a large compensation to a woman living in a separate house in the same yard with her father — whether her father or not: Especially, you might consider the large compensation of the daughter living at home on the place with her father. But the alleged contract was made with the husband. If the contract is established to your satisfaction, it matters not whether it was much or little. It is only with a view that you examine closely the testimony of this girl to see whether or not it satisfies you that such a contract as she testifies to was made between this plaintiff and the defendant. It is the duty of the plaintiff to satisfy you that such was the contract — that a contract was made for this money for which he comes into court to recover.</p> <p>“Now, we say that it was not necessary to call this testimony of the witness perjury, if you should not believe it; or if it should not satisfy you of a contract having existed between these parties. When you consider the manner in which she says it was stated by old man Steiner, you may at once find in the surrounding circumstances something upon which to base her story, and out of which it may have grown; if not sufficiently clear to justify you in concluding that it stated a fixed contract between the plaintiff and the defendant. For instance, these parties were living there, as they say — as many of the other witnesses say — and Andrew Zeller and his wife well satisfied with their condition at this place; not there grudgingly, by the testimony of the other witnesses; for one of the witnesses testifies he said he could not get along on his own farm, but he went away cheerfully because he could do better, and because his wife wanted to go home to her father. That is the testimony of Binkley, I think, one of the witnesses who was called and testified as to the inducement for going there, and under which they went there at that time. Now, going there, we say, under these circumstances, with the advantage that was given him by his father-in-law, and .the relation that existed between the father-in-law and the son-in-law and the daughter, at the time this conversation or contract was made, you can see that something might have been said that a child of eleven or twelve years would pick up and mould and give form to five, six or seven years after-wards, from whi'ch a contract might be inferred, or possibly tortured, when it would not be listened to, possibly, at the time. If a little girl of eleven or twelve years of age should come to any one of us and tell us that a contract had been made between two farmers of such and such a character, we would hesitate, probably, in determining in our minds that that story carried the exact features of a contract, or was such as to justify us in giving effect to it as a contract between these parties. But these parties, we see, were living there in the relationship that existed between them ; and when Mr. Zeller said to the old man that he was going back to his own farm, he was probably prompted in so doing because he was too feeble to do his own work. As some’of the witnesses testified in a subsequent part of the case, if he was complaining that he could not get along as well as he wished in doing the work of the old man — when he said he was going back home, the old man Steiner may have -urged them to remain, and may have made it appear that the contract was worth $300 ; something or other might have been said to justify this child, now grown, to tell what she has told here, without the slightest imputation against her character for truth and fairness. What did occur we do not know further than she tells it — further than the evidence we have here.</p> <p>“ Now I submit to you whether all the evidence of this case satisfies you that a contract was made at that time to give these parties $300 a year in addition to what they were getting; or, if that was the only evidence in this case, would that justify you in coming to the conclusion that such was the contract ? It is for you to determine. This is evidence — competent evidence;' and if believed, just in the manner in which it was told (and under the circumstances, the child could tell what did occur exactly), it would be competent to establish, and would establish, the contract.</p> <p>“Now you come to the other side of the question, and examine it in the light of all the evidence, and there is a different disposition between these parties. You have the fact established by some of these witnesses just referred to that this man went there willingly, not grudgingly. Old man Binkley testified that he could go there rent free; and I think that Mr. Wagner testifies substantially that he told him what the contract was; that he could not do as well on his own farm in Lancaster; could not raise as much, and that his wife wanted him to go back to her father, rent free, and to get other things mentioned; and, under the circumstances, he went.</p> <p>“ Then, you have the testimony of the other witnesses — subsequent to the story, as told by this little girl — subsequently to that conversation where the contract or the version of the manner in which Zeller and his wife were living with Frederick Steiner is given of them by several different persons, both of them being present; and you recollect clearly the version — that they were there substantially on shares, rent free. If they were there living in that way, as they said, is it at all probable that the contract of 1874, as testified to by the girl, was made at all, particularly as the fact repeatedly appears in the evidence that the old man was enfeebled; that he was sick much of the time, and his wife a short time, and not able to do much ? Is it at all probable that the contract was as told by this little girl, where so much detail was gone into by Zeller and his wife, how well they were doing, that they would not have mentioned the further fact that they got this $150 a year each in addition to what they had been telling: for you will recollect that, at one time, Zeller was rather complaining that he could not do what he ought to do, but he would let his wife attend to the dairy, &c., and they would get along well in that way.</p> <p>“ Then you go along one step further, and you have the testimony of William Steiner, who testifies .clearly and positively to the fact that his sister was anxious that there should be something done to relieve and prevent the claim of rent being made against them in case of the father’s death, or in case they left. Is it not altogether probable that if that was troubling them they would have looked to the other matter — they would have looked to the compensation that was to be given them — for it does not appear that any demand was made at any time while they were there — no evidence of any demand of payment or a claim made, until the bringing of the suit some time after Zeller had left the place, his wife having died in the meantime.</p> <p>“All these are mere circumstances for you to consider in weighing this case. Consider it now in the light of good common sense; for, after all, it is a question of appeal to the common sense of the jury.</p> <p>“ See from the whole of the evidence whether the contract, as set up by the plaintiff, is made out, so you can conscientiously render a verdict for the amount claimed under it. If it is, it is your duty to give that verdict; otherwise it is your duty to give a verdict in favor of the defendant.” '</p> <p>The plaintiff took this writ, his first assignment of error being the admission of the plaintiff’s evidence above, and the remaining assignments the foregoing charge of the court.</p>

<p>Error to the Court of Common Pleas of Dauphin county: Of May Term 1880, No. 193.</p> <p>In the court below, this was an appeal from the settlement made by the accounting officers of the Commonwealth for tax on capital stock of the Pennsylvania Railroad Company, for the financial year ending the first Monday of November 1879. The defendant was chartered under the laws of Pennsylvania, and. at the time of the settlement of this account, had capital stock of the par value of $68,870,200. On May 2d 1879, it made a dividend of two per cent;, and on November 1st 1879, another dividend of two and one-half per cent.</p> <p>The Act of June 7th 1879, Pamph. L. 112, makes the following provisions :—</p> <p>Sect. 2. That hereafter, except in the case of banks, savings institutions and foreign insurance companies, it shall be the duty of the president or treasurer of every company now or hereafter incorporated by or under any law of this Commonwealth, and of every company now or hereafter incorporated by any other state or territory of the United States, or foreign government, and doing business in this Commonwealth, or having capital employed in this Commonwealth in the name of any other company or corporation, association or associations, person or persons, or in any other manner, to make report in writing to the auditor-general annually, in the month of November, stating specifically the total authorized capital stock of the company, the whole number of shares of stock, the number of shares of stock issued, the par value of each share, the amount paid into the treasury of the company on each share, the amount of capital paid in, the date, amount and rate per centum of each and every dividend made or declared by their respective corporations during the year ending with the first Monday in said month; and in all cases where any such company shall fail to make or declare any dividend upon either its common or preferred stock during the year ending as aforesaid, or in case the dividend or dividends made or declared on either its common or preferred stock during the year ending as aforesaid shall amount to less than six per centum upon the par value of the said common or preferred stock, the treasurer and secretary thereof, after being duly sworn or affirmed to do and perform the same with fidelity, according to the best of their knowledge and belief, shall, between the first and fifteenth days of November of each year in which no dividend has been made or declared as aforesaid, or in which the dividend Or dividends made or declared upon either its common or preferred stock amounted to less than six per centum upon the par value of said common or preferred stock, estimate and appraise the capital stock of such company upon which no dividend has been made or declared or upon the par value of which the dividend or dividends made or declared amounted to less than six per centum, at its actual value in cash, not less, however, than the average price which said stock sold for during said year, and not less than the price or value as indicated or measured by the amount of the dividends made or declared; and when the same shall have been so truly estimated and appraised, they shall forthwith forward to the auditor-general a certificate thereof, accompanied by a copy of their said oath or affirmation, by them signed, and attested by the magistrate or other person qualified to administer the same: Provided, that if the auditor-general or state treasurer, or either of them, is not satisfied with the valuation so made and returned, they are hereby authorized and empowered to make a valuation thereof, and to settle • an account on the valuation so by them made for the taxes, penalties and interest due the Commonwealth thereon; and any corporation or company dissatisfied with such settlement may appeal therefrom, in the manner now provided by law for appeals from settlement of accounts by. the auditor-general and state treasurer.</p> <p>Sect. 4. That every company or association whatever, now or hereafter incorporated by or under any law of this Commonwealth, or now or hereafter incorporated by any other state or territory of the United States, or foreign government, and doing business in this Commonwealth, or having capital employed in this Commonwealth in the name of any other company or corporation, association or associations, person or persons, or in any other manner, except foreign insurance companies, banks and'savings institutions, shall be subject to and pay into the treasury of the Commonwealth annually, a tax to be computed as follows, namely : If the dividend or dividends made or declared by such company or association as aforesaid, during any year ending with the first Monday of November, amount to six or more than six per centum upon the par value of its capital stock, then the tax to be at the rate of one half mill upon the capital stock for each one per centum of dividend so made or declared; if no dividend be made or declared, or if the dividend or dividends made or declared do not amount to six per centum upon the par value of said capital stock, then the tax to be at the rate of, three mills upon each dollar of a valuation of the said capital stock made in accordance with the provisions of the second section of this act; and in case any such company or association shall have more than one kind of capital stock, as, for instance, common and preferred stock, and upon one of said stocks a dividend or dividends amounting to six or more than six per centum upon the par value thereof has been made or declared, and upon the other no dividend has been made or declared, or the dividend or dividends made or' declared thereon amount to less than six per centum upon the par value thereof, then the tax shall be at the rate of one half mill for each one per c.entum of dividend made or declared upon the capital stock, upon the par value of which the dividend or dividends made or declared amount to six or more than six per centum, and in addition thereto, tax shall be charged at the rate of three mills upon each dollar of a valuation, made also in accordance with the provisions of the second section of this act, of the capital stock upon which no dividend was made or declared, or upon the par value of which the dividend or dividends made or declared did not amount to six per centum ; and it shall be the duty of 'the treasurer or other officer having charge of any company or association upon which a tax is imposed by this section of this act, to transmit the amount of said tax to the treasury of the Commonwealth, within fifteen days from thirty-first day of December, in each and every year: Provided, that whenever such corporation or company shall make any profit and add the same to its sinking fund, without a division thereof amongst its stockholders, the amount of the profit thus added to its sinking fund shall be included in the report required by the second section of this act to be made, and for the purpose of this act the same shall be treated as having been divided amongst the stockholders, and shall subject the capital stock to taxation as a dividend: Provided, however, that said money or any part thereof shall be expressly set apart for the payment of debts.</p> <p>The dividends of the company in 1879 having been less than six per centum, an appraisement of the value of the capital stock was made by the secretary and treasurer of the company, based upon the' average value of the stock during the year from the first Monday in November 1878 to the first Monday of November 1879, as shown by the sales at the Philadelphia Stock Exchange. This appraisement was made in accordance with the provisions of the second section of the above act. Upon the basis thus taken, the valuation amounted to $51,652,650. The'tax on this amount was $154,957.95, which sum was paid on January 15th 1880. The accounting officers of the state were not satisfied wdth this appraisement, and they made a valuation' of the capital stock based upon its actual value in cash, as ascertained by its selling price in public market during the period extending from the 1st to the 15th day of November 1879. This calculation resulted in a valuation of $66,804,094, on which the tax was $200,412.27, or $45,454.32 over the amount already paid by the company, and this amount said officers settled against the company as the balance due to the Commonwealth. The company appealed from this settlement to the Court of Common Pleas of Dauphin county, and after the case was at issue upon a plea of nil debet, an agreement was filed, wherein it was, inter alia, stipulated :—</p> <p>3. That the valuation of stock on which the settlement in this ease was made, was based upon the actual value of the stock in cash, as ascertained by its selling price in public market during the period extending from the first to the fifteenth days of November 1879.</p> <p>4. That this case shall be tried by the Court of Common Pleas of Dauphin county, without the intervention of a jury, under the provisions of the Act of Assembly of 22d April 1874, Pamph. L. 1874, p. 109, and the company shall have the right to take an appeal from the settlement made against it by the accounting officers, and to take a w'rit of error to the Supreme Court without the entry of security.</p> <p>The court, Henderson, A. L. J., found the foregoing facts, and decided in favor of the Commonwealth for $47,727.03. Exceptions were filed which the court overruled, and judgment was entered on the court’s decision. The defendant then took this writ, and alleged that the court erred in not holding that the true measure for fixing the value of the stock for taxation under the Act oí 1879, for the year, ending the first Monday in November 1879, is the average market value during the said year, when not less than the amount indicated by dividends, and not the average value between the- first and the fifteenth of November 1879.</p>

<p>Error to the Court of Common Pleas of Dauphin county; Of May Term 1880, No. 204.</p> <p>This was an appeal of the National Mutual Aid Association of Columbus, Ohio, from the settlement of the insurance commissioner and state treasurer, to the Court of Common Pleas of Dauphin county.</p> <p>’The insurance commissioner of this Commonwealth settled an account, which was approved by the state treasurer, for penalty of $1000, incurred by the National Mutual Aid Association of Columbus, Ohio, which did business as an insurance company, as the Commonwealth claimed, without having received authority for that purpose from the commissioner.</p> <p>The Commonwealth sought to impose upon the association a penalty of $500 for transacting said business in December 1879. The business complained of was the admission of Louis N. Kramer of Scranton, Pa., to membership in said association.</p> <p>Proceedings were also instituted against S. A. Hollister, agent, to recover a like penalty of $500 for forwarding to the association the application of Kramer for membership.</p> <p>The appeal and specifications of- objections .by the association were as follow’s:</p> <p>1. The settlement is erroneous and illegal because the said association did not, during the months of December 1879, and January 1880, or either of them, transact any business within the state of Pennsylvania for which any authority from the insurance commissioner, under the Act of April 4th 1873, was requisite, and it is, therefore, not liable for the whole, or any part, of the penalty in said settlement charged.</p> <p>2. The association is not an insurance company, and is, therefore, not subject to the provisions of the Act of April 4th 1873, nor to any of the penalties prescribed by the said act, and the said settlement hereby appealed from is erroneous and illegal, because it charges the said association with such a penalty.</p> <p>3. The association is excepted out of the operations of the Act of April 4th 1873 by the terms of the supplement to said act, approved May 1st 1876, particularly by the fifty-fourth section thereof, in which it is enacted that “ this act, and the act to which this is a supplement, shall not apply to the beneficial associations that provide aid for the family or heirs of a deceased member, whether issuing policies containing a guaranteed sum of insurance or not, nor to associations issuing policies not containing a guaranteed sum of insurance.” The transaction of business for the said association requires no authority from'the insurance commissioner under the Act of April 4th 1873, and the said settlement hereby appealed from, because it charges said association with a penalty for transacting business without such authority is erroneous and illegal.</p> <p>4. The association had complied with the requirements of the Act of April 22d 1874, and was in the months of December 1879, and January 1880, and still is, duly authorized to do business in the state of Pennsylvania, and the said settlement, hereby appealed from, is erroneous and illegal, because therein a penalty is charged for the transaction of business duly authorized by law.</p> <p>5. The said settlement is erroneous and illegal, because the insurance commissioner, not having previously notified the association or any officer or agent thereof to pay the said penalty, he was not authorized by law to settle any account whatever, or commence any proceeding against the said association.</p> <p>6. The said settlement is erroneous and illegal, because there is no authority of law for the charge of $1000 therein made, and the association is not'bound to pay the same, or any part thereof.</p> <p>The insurance commissioner of the Commonwealth of Pennsylvania is authorized by the Act of Assembly of 4th April 1873, Pamph. L. 1873, p. 20, to settle and collect penalties against insurance companies and insurance agents for transacting business within this state without authority of law.</p> <p>The sections which confer upon him this power are the 14th and 15th sections, and they contain this language, viz.:</p> <p>Sect. 14. That any person or persons, or corporation, receiving premiums, or forwarding applications, or in any other way transacting business for any insurance company or association not of this state, without having received authority agreeably to the provisions of this act, shall forfeit and pay to the Commonwealth the sum of $500 for each month, or fraction thereof, during which such illegal business was transacted, and any company not of this state doing business without authority, shall forfeit a like sum for every month, or fraction thereof, and be prohibited from doing business in this state until such fines are fully paid.</p> <p>Sect. 15. The taxes, fines and penalties provided in this act shall, in case of non-payment, after notice from the commissioner, be collected as taxes upon corporations or individuals are now collected by law, and for this purpose the insurance commissioner shall have all the powers now conferred by law upon the auditor-general in the settlement of accounts, subject, however, to the approval of the state treasurer, and to the right of appeal as in other cases.</p> <p>Under the authority of these sections the insurance commissioner upon the 4th of February 1880 settled the account against the association for the sum of $1000, for “transacting business during the month of December 1879, in the state of Pennsylvania for an insurance company not of this state, entitled the ‘ National Mutual Aid Association,’ of Columbus, Ohio, without having received authority agreeably to the provisions of said act.”</p> <p>This account was, on the same day, approved by the state treasurer.</p> <p>The narr. and plea were in debt. The case was tried by the Court of Common Pleas, without a jury, under the provisions of the Act of April'22d 1874.</p> <p>The court, Pearson, P. J., found the facts as follows:—</p> <p>“ This proceeding was commenced by a settlement or decree made by the insurance commissioner and state treasurer againt S. A. Hollister and ‘ The National Mutual Aid Association of Columbus, Ohio,’ for penalties.on account of alleged violation of the laws regulating insurance in Pennsylvania, all of which sufficiently appears in the narr. and other papers on file. We find the penalties are both incurred for doing the same act; if a recovery can be had against the one party, it can against the other also. In investigating the law and facts of this case, we shall' treat of the complaint against the corporation alone.</p> <p>“ We find from the facts proved, that ‘ The National Mutual Aid Association of Columbus, Ohio,’ is a corporation created by the laws of that state for the purposes and with the. powers mentioned in its charter. That it .has no fixed or permanent capital, is not bound to pay any certain sum for the benefit of the heirs, widow or devisees of a member on his death, but to act as agents in collecting one dollar from each member then living, so far as the same can be obtained, and to pay over eighty-five per cent, of each sum thus collected. That the initiatory fee of ten dollars is not in the nature of a premium exacted to pay losses, but to cover expenses of all kinds, such as office rent, counsel fees, clerk hire, for agents, &c. ; that said corporation was created under the Act of April 20th 1872, as amended by the Act of April 3d 3875 (Pamphlet Law's of Ohio), and that there is another general law of that state regulating life insurance on wholly different principles, requiring a large and fixed capital, well secured, enacted on the 27th of April 1872.</p> <p>f‘ffe further find that under the laws of Pennsylvania, this would be considered a beneficial association to provide aid for the family and heirs of a deceased member, and is not an association issuing policies containing a guaranteed sum of insurance, and that the policy issued to Louis N. Kramer, on account of which this suit was instituted, is in the nature of one by a mere beneficial association, and is not for a fixed and definite sum of money in case of death.</p> <p>“ We find that this corporation of Ohio is in the nature of a mere aid society ; that there is no fixed sum for insurance, but the amount which may be collected and paid over is entirely uncertain, and that it has no fixed capital, and received no certificate or license from the insurance commissioner to transact business in this state.</p> <p>“ But we further find that on the 14th day of November 1879, it gave notice in due form to the secretary of the Commonwealth, showing its title and object, the location of its office, and names of it's authorized agents, and obtained the certificate of the secretary under the seal of the Commonwealth of the filing of such statement.</p> <p>“We find that neither the insurance commissioner or state treasurer gave any notice to ‘ The National Mutual Aid Association of Columbus, Ohio,’ or to S. A. Hollister, of the time and place when the penalties would be collected from them, or either of them, but the same was settled and adjudged against them without any previous notice whatever, but some time after this was done, they were both duly served by mail with notice that the same had been settled against them, in time for each to take an appeal, which was done. The foregoing we find to be the facts proved, the evidence of which is to be found in the notes of testimony, the various documents given in evidence, and the Pamphlet Laws of the state of Ohio.”</p> <p>The conclusions of law, of the court, were as follows: “ The facts, if correctly found in the present case, go far in determining the law which must govern it. We have found that the company sued is not technically a mutual life insurance company, hut is no , more than 4 a mutual aid association,’ of which we have hundreds in Pennsylvania, generally on a smaller scale than the defendant, but of the same general character. We have beneficial associations all over the manufacturing or mining portions of the state, generally incorporated, and long in existence. One, at least, in our vicinity starting with a thousand members, each agreeing to pay one dollar on the death of a member towards relieving his fajnily, kindred or legatees. No one thought of their being insurance companies, or coming under the jurisdiction of our insurance commissioner. It is obvious that the same is the case in the state of Ohio. They are there created by different laws, passed within a few days of each other, yet entirely different in their provisions and structure. That state, like our own, has an insurance commissioner, with laws similar to ours, yet their Supreme Court has decided that companies incorporated, as the one under consideration, for ‘ mutual protection’ is not an insurance company. True, that would not be binding in our state if the company came within our laws, yet, in our opinion, it does not.</p> <p>“ The company has no capital, it is not bound to pay any fixed sum on the death of a member, but only so much as is voluntarily paid by those surviving, from whom there is no means of collecting by law, and of the sums thus paid fifteen per cent, is to be retained to cover expenses. The company considers itself merely the agent to collect and receive the money from living-members for the use of the deceased. In the State of Ohio v. The Mutual Protective Society, the Supreme Court of that state decided, in 26 Ohio Rep. 19, that a company precisely like this was not a mutual insurance company. This brings the company within the 54th section of the Act of May 1st 1876, which entirely takes away the jurisdiction of our insurance commissioner from all control over ‘beneficial associations,’ of which we deem this to be one. Therefore the action of that officer was coram non judice.</p> <p>“ It is urged, however, that this section applies to domestic companies alone, not to foreign. It is very general in its expressions, covers all, and we can see no reason for so limiting it. We are told that this section was not in the original bill as presented, but was inserted by the legislature on its passage. If so, it showed that the law-making power considered the bill too general, and required restriction, therefore the section should receive the more extended construction, so as to effect the intention.</p> <p>“ It is obvious from the whole evidence that this company did not designedly violate our laws. It had, as a corporation, reported itself to the secretary of the Commonwealth, and obtained his certificate. It could find nothing in our laws which would establish it an insurance company, even of the mutual character. It was clearly no more than a ‘mutual aid association,’ by the laws of Ohio, and was not obliged to obtain the certificate of the insurance' commissioner by the laws of Pennsylvania. It was therefore, to say the least of it, harsh to inflict the penalty on the company and its agent. It was unlawful.</p> <p>“ There is another point which must be settled eventually, and may as well be done in this case. The insurance commissioner claims the power to make a decree ex parte, which he calls a settlement, against both the company and the individual that they shall pay the amount of the penalty imposed by law for transacting business in this state without- his license; this without any previous notice or claim. We do not believe that the legislature ever so intended. It is so claimed because it is said that the auditor general has such power under the Act of 1811. On carefully reading that law it might well be doubted whether it was so intended in regard to anything but the settlement of taxes and the failure to make reports. The discretionary power is clearly given to that department to so settle accounts for taxes, when from the smallness of the claim or other causes it is deemed expedient, from which the practice has grown up so to do in all cases, and it is now clearly settled that the right exists, and that the settlement is conclusive unless appealed from within thirty days after notice. But we are not at present aware of any case where this has been applied to the recovery of a bare naked penalty. On reading the act we find great pains taken to enable the auditor general to compel the attendance of parties, production of books and papers, &c., and although power to impose penalties is conferred in some cases, yet they contemplate notice.</p> <p>“ The insurance commissioner and state treasurer, perhaps, have the same power under the fifteenth section of the Act of April 4th 1873, as the auditor general, yet that section declares that fines arid penalties provided for in this act shall, in case of non-payment after notice from the commissioner, be collected as taxes upon corporations or individuals. Yet the ground on which companies and officers are bound to ex parte settlements without notice and held liable, as decided in several cases, is, that they take their charters and commissions with notice that the power is so conferred; yet 'that can scarcely apply to those created by the laws of other states or to private individuals. It may be well questioned whether, under the Constitution of this state, such power can be conferred. It is not proceeding by due course of law. We cannot help doubting whether the legislature ever intended to authorize the recovery of these large penalties without notice, hearing or trial, and in the present case we think that notice was expressly required. For this reason, as well as those already given, we are of the opinion that the state is not entitled to recover either of the penalties claimed, and shall give judgment against the state in both cases.”</p> <p>The Commonwealth excepted to the findings of fact and the conclusions of law, the exceptions reciting portions of the foregoing findings of facts and law. Argument being waived on the exceptions the court overruled them, and ordered judgment to be entered according to the decision filed. The Commonwealth then took this writ, and assigned this action of the court for error.</p>

<p>Appeal from the Court of Common Pleas of Dauphin county: Of May Term 1879, No. 157.</p> <p>Appeal of Frederick D. Hamer from the decree of the court distributing the proceeds of the sheriff’s sale of the real estate of Tobias Bickel. Before the auditor, John H. Weiss, Esq., the fund arising from the sale was claimed by the holders of two judgments, one' in favor of the Lykens Valley Bank for $9000, on bond and warrant entered March 12th 1873, and one in favor of Ilarner, the appellant, for $3000, on bond and warrant entered August 80th 1875. The auditor found that the judgment of the bank was given to secure existing and proposed discounts. On May 1st 1875, the Lykens Valley Bank was succeeded by the First National Bank of Millersburg, and the unpaid notes of the former bank were transferred to the national bank, and at maturity these notes were replaced by others and the old notes surrendered.</p> <p>Doubts arose as to whether the bond given by Bickel to the Lykens Valley Bank was of any validity as a security for the payment of the notes held by the national bank against Bickel. After several conferences, it was arranged between the board of directors of the national bank and Bickel that the latter should give a new bond to the national bank in the sum of $9000, and should be credited on his indebtedness with seventeen shares of the capital stock of the said national bank at the price he paid for it, viz., $115 per share.</p> <p>This new bond was entered of record, but not until September 11th 1875.</p> <p>On the 22d of September 1875, Harner obtained a bond with warrant of attorney to confess judgment against Tobias Bickel for the sum of $3000, which bore interest from September 22d 1874, which matured one year thereafter, and upon "which judgment was entered August 30th 1875, to No. 51, Nov. Term 1875. Bickel was previously indebted to Harner in the sum o-f $560, for which the latter held the former’s note. Bickel desired to borrow more money from Harner, but the latter declined the loan of any further sum, because of the judgment which the Lykens Valley Bank held against him. Bickel there told him that this judgment would be satisfied. On the day of the date of the judgment, Harner gave Bickel his note in the sum of $2240, which, with the sum of $560 already due from Bickel to him, made up the sum of $3000, the amount of the judgment. He agreed to advance the balance of the money as soon as the bank judgment should be satisfied. He advanced no money to Bickel until he ascertained from the prothonotary that the judgment of the Lykens Valley Bank was satisfied, and, finally, did advance and pay the amount of his note $2240, with interest, when he learned satisfaction was entered. Harner made no inquiry of the bank as to whether the judgment would be satisfied, nor by what authority it was satisfied. He-knew it was not satisfied when he took, nor when he entered of record his own judgment. He did not see (for he made no search), that the First National Bank had entered their judgment against Bickel, and he said that if he had noticed this judgment, he would not have given any money, unless he had previously asked the officers of the bank. He did not acquaint the officers of the national bank at any time with the fact that he had not given any money to Bickel at the time he obtained the judgment against him. He said that his judgment was the first, and, therefore, began to advance the money to Bickel.</p> <p>The judgment given by Bickel to the Lykens Valley Banking Company was marked satisfied by the prothonotary, on September 30th 1875, in pursuance of an authority to him directed by G. M. Brubaker, who was president of said bank, and who continued to act in that capacity during its existence, and of the chartered Lykens Valley Bank until January 1874; and by the direction of S. P. Auchmuty, the attorney for the bank at that time, who suggested the entry of satisfaction as per authority of Brubaker on the back of the certificates.</p> <p>On the 20th of June 1876, a rule to show cause why the entry of satisfaction should not be stricken off was granted. On the 14th of September 1876, the satisfaction entered was stricken off by the court, but without prejudice to the rights of intervening creditors, and with leave for the defendant, Bickel, to move to vacate the order.</p> <p>On the 14th of December 1876, the defendant filed a motion to vacate and to reinstate the entry of satisfaction. On December 29th 1876, the court refused the motion, and directed, in an opinion filed the same day, that the' order rescinding the satisfaction should stand good, and that the judgment be reinstated, but to be without prejudice to the rights of F. D. Harner or other creditors whose claims can be shown to intervene between the time of entering satisfaction and the application to have the judgment satisfied, and the decision neither to prejudice nor benefit his or their claims, and with leave to the plaintiff to issue execution. Thus the judgment given by Bickel to the First Lykens Valley Bank for $9000 on the 22d of August 1871, and kept in their safe until March 12th 1873, and then entered of record, was satisfied September 30th 1875. The judgment given by Bickel to the First National Bank in the same sum, dated September 1st 1875, was entered of record in Dauphin county, as above mentioned, September 11th 1875.</p> <p>The auditor, inter alia, reported :</p> <p>“ The bank held a judgment in this large amount unsatisfied, and knowing this, Earner obligated himself to advance the money upon his own judgment when the former should bo satisfied. It was the least possible hardship to require of him the exercise of ordinary diligence, both as to search and inquiry, before he made advances, in order to be protected against an unauthorized satisfaction. In order, therefore, to enable Harner to claim any superior right, it was incumbent upon him to ascertain by what authority the judgment of the Lykens Valley Bank was satisfied, and failing in this, he has no standing as a prior claimant upon the fund. Equity will not permit a claim to be predicated upon laches.”</p> <p>The auditor then awarded the fund to the First National Bank upon the old judgment. Harner filed exceptions, when the court, Pearson, P. J., made the following decree:</p> <p>“And now, to wit, July 13th 1878, it is ordered, by the court that, upon the filing of a recognisance in favor of the Commonwealth for use of F. D. Harner, in the sum of $5000, with two recognisors to be approved by the prothonotary and taken by him, conditioned for the payment to said Harner of such sum as may finally be decreed and adjudged to him after the determination of his appeal to the Supreme Court in this case, upon his judgment No. 51, November Term 1875, entered August 20th 1875, for $3000, the money to be paid out to the distributee, viz.: The First National Bank of Millersburg, Pa., in accordance with the foregoing report.”</p> <p>Harner then took this appeal, and alleged that the court erred in making the above decree and in striking off the entry of 'satisfaction from the record of the Lykens Yalley Bank judgment.</p>

<p>1. The Act of April 3d 1872 provided that tavern licenses in Allegheny county should be issued by the treasurer of said county. Certain fees were named in the act, and a subsequent section provided that “ one-fourth of all such sums received by the treasurer as aforementioned” should be paid, to the state, and the other three-fourths to the use of the county. By the Act of April 12th 1875, it was provided “ that licenses for sales of liquors, when not otherwise provided for by special law, may be granted by the Court of Quarter Sessions of the proper county.” This act also fixed the fees, which were all made payable to the Commonwealth, and the rates were less than those contained in the Act of 1872. The Act of 1875 repealed no act specifically, except the Act of March 27th 1872, which was known as the “ Local Option Law.” During the years 1875 and 1876, the treasurer of Allegheny county issued the tavern licenses as under the Act of 1872, but collected the fees at the rates fixed by the Act of 1875. In the settlement of his accounts, the accounting officers of the Commonwealth charged him with all the fees received during these years. On an appeal therefrom, Held, that the Act of April 3d 1872 was not in any respect repealed by the Act of 1875. Held, further, that the fees having been collected in pursuance of the rates fixed by the Act of 1875, the provisions of the Act of 1872 that three-fourths of the fees should go to the county of Allegheny, did not apply, and that they were all payable to the Commonwealth.</p> <p>2. The Court of Common Pleas of Allegheny county, at the instance of the county of Allegheny, issued an injunction enjoining the county treasurer not to pay, and restraining the state treasurer from collecting said fees : Held, that the court had no jurisdiction, and that these proceedings were no bar to the action of the state officers in this case.</p>

<p>• Error to the Court of Common Pleas of Dauphin county: Of May Term 1879, Nos. 205 and 206.</p> <p>These were actions of assumpsit brought by the Pennsylvania Central Insurance Company against James Freeland, to recover assessments upon notes, alleged to be premium notes, given by defendant upon his application for insurance of his real property against loss by fire.</p> <p>The Act of May 5th 1854, Pamph. L. 563, incorporated the Lykens Valley Mutual Fire Insurance Company, and granted it powers as á fire insurance company. The Act of March 27th 1869, Pamph. L. 570, enlarged these powers of the Company, for the purpose of insuring live stock.</p> <p>On November 27th 1869, the court of Schuylkill county incorporated the Pennsylvania Cattle Insurance Company, located at Pottsville, enabling said company to insure live stock. The Act of May 10th 1871, Pamph. L. 670, granted to the Pennsylvania Cattle Insurance Company'the same rights, powers, &c., as the Lykens Valley Mutual Fire Insurance Company, under the above Acts of May 5th 1854, and March 27th 1869.</p> <p>On July 17th 1871, a petition was presented to the court of Schuylkill county to amend the charter and change the name of the Pennsylvania Cattle Insurance Company to the Pennsylvania Central Insurance Company, and on September 4th 1871, a decree was entered of record changing the name.</p> <p>On October 27th 1871, the auditor general was notified of the change in name as required by the Act of April 20th 1869, Pamph. L. 82, Purd. Dig. 285.</p> <p>On December 27th 1871, an Act of Assembly was approved (Pamph. L. 1872, p. 1385), entitled “An Act to incorporate the Pennsylvania Cattle Insurance Company.” The first section provides that the company of that name, incorporated by the Schuylkill Court of Common Pleas, November 27th 1869, “shall possess all the powers and privileges, and be subject to all the restrictions and limitations which are hereby granted to and imposed upon it.” The second section then provides that the corporators named, and their associates, “ shall be a corporate body by the name of ‘ The Pennsylvania Cattle Insurance Company.’” .Twelve succeeding sections regulate the management of the company in the exercise of the only power thus far conferred, viz.: of “ making contracts of insurance against loss or damage by death, theft or accident.” The fifteenth section then provides “ the said company shall have the power to connect an additional branch of insurance, with the privileges hereinafter specified, which shall he called by the name, style and title of ‘ The Fire Insurance Branch of the Pennsylvania Cattle Insurance Company,’ and by that name have perpetual succession, sue and be sued, &c.”</p> <p>The sixteenth section empowers “ The Fire Insurance Branch of the Pennsylvania Cattle Insurance Company,” to insure against fire on all kinds of merchandise, buildings or property. In pursuance of this legislation a general fire insurance business was transacted upon the mutual plan. The applications and policies were made generally in the name of “ The Pennsylvania Central Insurance Company.”</p> <p>About April 1st 1873, the agent of the company, one Berkheimer, solicited the defendant to insure his houses and buildings in said company. Freeland testified that Berkheimer, when he solicited the insurance, said : “I have a good, sound, solvent company at Pottsville. I replied I wont insure in any mutual company ; I will insure in a cash company. He then road to me different grades of insurance from a book out of his pocket, and he says, ‘ Go into a mutual.’ I said I would rather go into a cash company. But through his persuasion I said, ‘ If you will agree that the company is sound and solvent, and that I shall not be called upon for an assessment, then you may .insure me.’ He said, ‘ I will guarantee that the company has $30,000 to $40,000 in advance of all liabilities that may be necessary for five years.’ He also said that the company was going into bank [rig, and would loan money. By these representations he got my application. I thought I was signing an application for insurance, and not premium notes.”</p> <p>These statements were contradicted by Berkheimer.</p> <p>The three notes given by Freeland, one for $48, one for $680, and another for $800, were in the following form:</p> <p>$800 Pottsville, April 1st 1873.</p> <p>One day after date I promise to pay to the order of the Pennsylvania Central Insurance Company of Pottsville, Pa., such amount of money as I may from time to time be called on to pay, to increase the capital stock or cash assets of said company, not, however, exceeding the amount of $800, for value received, with release of errors.</p> <p>James Freeland.</p> <p>On January 12th 1874, and February 26th 1874, the company made assessments upon these notes, aggregating about thirty-three per cent., to pay alleged losses. These suits were to recover these assessments. At the trial, before Pearson, P. J., the plaintiff gave in evidence the decree of the court of Schuylkill county and the Act o'f Assembly above referred to for the purpose of showing its corporate existence, name, and power to insure against loss by fire. It also proved the signing of the notes and the making of the assessments thereon. The defendant then moved for a compulsory nonsuit upon the ground, inter alia, that the company had- no power to make a valid contract of indemnity against loss by fire, and notes given therefor were without consideration and could not be collected.</p> <p>Testimony was then offered showing the representations made by the agent as above set forth, and that defendant was induced thereby to sign the notes in suit, and that at that time there was no money in the company’s treasury, and it was, in fact, indebted to the treasurer.</p> <p>Defendant contended that, by reason of these false statements, his applications and notes were fraudulently procured; that neither were of'any validity as against him; that he had, therefore, never become a member of the company; that, independently of this, the company had no authority to make a valid contract of insurance against loss by fire, and his notes were, therefore, without any consideration ; and that fhere never was any such corporation as The Pennsylvania Central Insurance Company capable to contract or bring suit.</p> <p>The material questions raised will be found in the assignments of error set forth hereafter. The verdicts were for plaintiff, and after judgments thereon defendant took this writ and alleged that the court erred:</p> <p>I. In its answer to defendant’s first and second points as follows:</p> <p>1. The Act of December 27th 1871, Pamph. L. 1872, p. 1385, creates two distinct corporations, with distinct names and powers, and is, therefore, unconstitutional and void.</p> <p>2. The Act of December 27th 1871 is entitled “An act to incorporate the Pennsylvania Cattle Insurance Company,” and there being no reference in the title to any other subject, the provisions of the act relating to the insurance of buildings and other property against loss by fire are unconstitutional, and the company never thereby acquired any right to insure buildings, &c., against loss by fire.</p> <p>Ans. “ It is urged that this is creating two corporations in one act, and even if it is not, it embraces more than one subject, which' is not clearly expressed in the title. If left to my own judgment I would say that this law in substance, if not in form, creates two distinct corporations, within the prohibition of the Constitution, and also that it is very clear that the most important branch of this forked corporation is not alluded to in the title, yet it is quite as much so as the Forest County Capital case, in 3 P. F. Smith 391. But that, as also a good many more decisions, on the construction of that- branch of the Constitution, has been almost uniformly condemned by the legal profession. On the 26th of February 1872, by a proceeding in the court of Schuylkill county, the name, and many of the powers of this corporation, were changed more than a year before the defendant became a member, which was the 1st of April 1873. The invalidity of a charter cannot be inquired into collaterally, and least of all by a member who has enjoyed the benefit of its privileges: Dyer v. Walker, 4 Wright 157. * *•* The title of an act need not be an index to the whole statute: Commonwealth v. Green, 8 P. F. Smith 226; Yeager v. Weaver, 14 Id. 425; Allegheny County Home’s Case, 27 Id. 78. It matters little in the present case whether the original charter was valid, regular or otherwise, one was granted by the court of Schuylkill ■ county, which, even if irregular, was not void, and could not be avoided collaterally.”</p> <p>II. The court erred in its answer to defendant’s third point as follows:</p> <p>3. The evidence submitted as to the change of the name to “The Pennsylvania Central Insurance Company” shows that'the alleged change was never legally made.; therefore the “Pennsylvania Central Insurance Company” never had any legal existence, and there can be no recovery upon the contracts on which these suits are based.</p> <p>Ans. “We do not.consider that the defendant is in a situation to raise the question. If it is a misnomer, it should have been pleaded in abatement; and if the company has no legal existence, it should have been pleaded in bar. Neither one nor the other has been taken advantage of at the right time.</p> <p>III. The court erred in rejecting the evidence offered by defendant, the offer and ruling thereon being as follows:</p> <p>It is now offered to give the record in evidence to show that after the company changed its name by the decree it failed to file a copy of the same in the auditor general’s office, and therefore cannot use the name — is prohibited — under the Act of 1869, to use the name; consequently cannot sue in that name until the law is complied with.”</p> <p>(This objected to.)</p> <p>Per Curiam. — This case is on trial on the general issue. A .matter of this kind must be pleaded in abatement, or in bar, and cannot be done after the general issue. It is not a plea that goes to the merits, or tends to promote justice, and therefore no amendment should be allowed, as it is more than probable that the failure to comply with this act is very general. But that is unimportant. It cannot be taken advantage of in this way. Therefore, the record is rejected, and bill sealed at defendant’s request.</p> <p>IV. The court erred in its answer to defendant’s sixth point as follows:</p> <p>5. The Act of Assembly relied upon by plaintiff, for its existence and corporate powers, having provided a statutory remedy for the collection of assessments to pay losses, viz., by issuing a warrant to its collector, who is clothed with all the powers of a duly qualified collector of county taxes ; the plaintiff cannot maintain a common-law action for- such assessments, and cannot recover in these cases.</p> <p>Ans. “ The eighteenth section of the charter law provides, ‘ that when an assessment is made by either branch of the company, the board of directors shall issue their warrant for the collection of the same, to the collector, with the same power and privileges as county taxes are collected.’ ”</p> <p>“ A prior section had provided that members should be bound to pay in. proportion to the losses on their deposit notes, and suits at law may be maintained by the corporation against its members, on their deposit notes, according to the assessment thereon.</p> <p>“ The tenth section also contemplates an action at law in such cases, and makes the amount of the assessment prima facie evidence of the sum' to be collected in court.</p> <p>“ The whole charter law, like very many of our statutes, is incongruous and extremely contradictory, and the court must so construe them as to do the least injustice. Two remedies are here given, one by resort to an action in a court of'law, after the damages or sum to be collected is assessed in proportion to the losses; the other bv the action of the company alone through its own collector. We cannot help thinking that justice is more likely to be done by the courts than by making the plaintiff both judge and executioner in its own case. The defendant would certainly have better ground of complaint if its first notice of the claim was the amount of the collection than when it has a regular proceeding at law, with full right to be heard at every step. Our construction of the statute is that both remedies are given, and the company may pursue with either, and the one elected is most for the advantage of the defend ant and best insures fair dealing.”</p> <p>■ V. The court erred in its answer to defendant’s ninth point, as follows:</p> <p>9. If from the evidence the jury believe that defendant was induced to sign the notes held by plaintiff, by representations of the plaintiff’s agent that the company had a fund of from $30,000 to $40,000 on hand with which to meet its liabilities, and that such representations were incorrect, the notes are not binding upon defendant, and the verdict should be in his favor.</p> <p>Ans. “ The law would be so if there was nothing else in the case; but the jury must decide on the whole law and facts of the case as stated in the general charge. You know the general charge referred to the manner and to the declarations; also as to other persons joining, and the policies not being returned.”</p> <p>VI. The court erred in instructing the jury as follows, viz.:</p> <p>“ Mr. Berkheimer said there was nothing said about $30,000 or $40,000 for losses, but to make loans. He did not go into this plan of insurance at all, and consequently we have nothing to say about issuing a policy of that kind. We are not trying that. We have to try one case at a time. If this had come up, the question might arise as to whether this company had the right to make this kind of insurance at all; but the question here is now upon this mutual insurance, not given on the basis of cash rates, but given on the mutual rates in the ordinary form of the mutual insurance company. If nothing was said in regard to the money being applicable to the mutual rates, I think it has very little to do in the present case, because the insurance was not taken bn that money. He may have taken it in that way. He may have thought this money was available; but the agent says he did not say so — that the $30,000 or $40,000 were for loans on the loan plan. I think, therefore, it has much less weight than given it by counsel in the argument. However, that is for the jury to consider. We have to take the evidence as sworn to. Does it satisfy you that in this mutual insurance this money entered into the contract with Mr. Freeland ? If it did not, he cannot avail himself of it. If there for the purpose of making loans, it has no effect upon his insurance at all, for it was not to come to him in any event. * * *</p> <p>“A man might naturally suppose that a company strong enough to loan-out thirty or forty thousand dollars would be a strong company otherwise. But when you draw that inference, and we would all draw that inference likely, that does not protect or help to make safe an insurance in the mutual company, with this money in'the loan company.”</p> <p>VII. The court erred in instructing the jury, as follows, viz.:</p> <p>“ There is one other matter connected directly with this, and that is this showing from the books the character of the persons who were insured; and Mr. Freeland’s name was there during the year though the company was wound up before he returned his policies. It was wound up to pay off its debts, although it did not do that; but wound up so far as regards doing any businesss. * * *</p> <p>“ It is said that many other persons .became members in the meantime; and you will have to consider how far Mr. Freeland, being a member of the company, might influence others to sign; for if a man of prominence and a man of property like him signs into a company of this kind, it would have considerable weight with his neighbors. But there is no direct proof that by Mr. Freeland’s signing others were induced to sign. * *' *</p> <p>“ But there is another matter. A man wanting to insure might look over the books, and although he could not see the policies' the defendant had, he could see from the books of the company that his name was among those of A., B. or 0., and he would naturally say, £ I will go in on the strength of his subscription. That tends to secure the company, and tends to secure my property.’ For that reason, if a man is going to return his policies at all, he should”do it promptly, and at once, and make it known to the company that he did not consider himself a member, by thus throwing up his insurance. Otherwise men are misled into the company. You ought to take into consideration, then, the influence to induce others to become members. * * *</p> <p>“Were people misled by his not returning, and his having omitted to make his opinions known; and were they induced to insure themselves, and not with reference to his insurance ? Men should be careful how they put their names to papers, or how they induce others to join the same companies. If you find on account of this that Mr. Freeland ought to be held liable on his subscription, then the question is, how much is he liable for ?”</p> <p>VIII. The court erred in its answers to defendant’s 7th and 8th points, as follows :</p> <p>7. The plaintiff had no authority to issue policies of insurance against loss by fire upon the stock or cash plan; and the policies issued upon said plan, were invalid, and the plaintiff had no right to make an assessment against other policy holders for the payment of their losses.</p> <p>This point is answered in the negative.</p> <p>8. The only losses shown to have occurred after the date of defendant’s applications, being losses occurring under -policies issued upon the cash plan, the defendant in this case is not bound to contribute to the payment of said losses; his notes are not liable to assessment therefor, and there can be no recovery of the assessments in these cases.</p> <p>Ans. “The court declines to so decide. We think he is liable on the notes.”</p>

215. This was an appeal to the Court of Common Pleas of Dauphin county by the Pottsville Water Company for a settlement made by the auditor general and state… Held: and, in short, all of the duties of a new corporation, and in that law is inserted the provision that the stock shall be exempt from taxation. Under that statute $200,000 was subscribed, $127,975 paid in, the work extended six miles up Mill creek, the towns all supplied, and the waterworks carried on ever since.

<p>. Appeal from the Court of Common Pleas of Mifflin county: Of May Term 1880, No. 195.</p> <p>■ Appeal of Margaret Burkholder, administratrix, and Thompson G. Sigler, administrator of Joseph Burkholder, deceased, from the decree of the court, confirming the report o'f the auditor to distribute the funds in the hands of George Bates, assignee of John Taylor.</p> <p>On September 29th 1876, John Taylor made an assignment for the benefit of creditors to George Bates. At the next term of court he procured an order of the court to sell the real estate of the assignee, consisting, of a valuable farm. It was sold on December 23d, the day it was advertised to be sold, without any adjournment, to Dr. Hale, whose lien came second after appellants’ judgments. The sale was confirmed January 8th 1877. The purchase-money was $17,011.74, one-third cash and balance in two equal annual payments with interest. On December - 13th 1878, the assignee filed his account to January Term 1879, charging himself with $17,01T.74, principal of sale, and $1441.74, interest on same, and claiming credit for $807.57 interest on payments made to various creditors, and also a credit for $850, for his commission on selling the farm. Exceptions were filed by Dr. Hale and appellants to the payments to the different judgment-creditors, and to the assignee’s compensation. The court at first reduced the compensation of the assignee to $500, and referred the amount in assignee’s hands to Joseph W. Parker, Esq., for distribution. The auditor reported to April 7th 1879, giving the assignee $500 for his services, and making distribution on the basis that interest on claims ceased on the day of sale, and the amount of sale, after deducting costs, was distributed as far as it would go to the judgment-creditors in the order of priority, and the interest on the deferred payments, together with the interest on the different payments made to the different creditors, up to the filing of the account of the assignee, was distributed 'pro rata to the judgments reached. Exceptions were filed to this mode of distribution, and to the reduction of assignee’s compensation. The court referred the matter back to the auditor, who reported, allowing the assignee $850 for his compensation, and making distribution on the principle of allowing interest on the different judgments up to the confirmation of the assignee’s account; also submitting another schedule of distribution, allowing interest on the different judgments up to confirmation of sale, and appropriating the interest on the deferred payments pro rata to the judgments reached. The appellants filed exceptions to this report: 1st. That interest should have ceased on the day of sale, and the accrued interest should have been distributed pro rata to all the claims reached. 2d. That the compensation allowed assignee was excessive. The court overruled the exceptions and confirmed the report.</p> <p>The appellants, whose judgments were not reached, took this appeal, and alleged that the court erred as follows:</p> <p>1. In confirming the report of the auditor.</p> <p>2. In overruling the 3d exception to auditor’s report, to wit: The auditor adopted the wrong plan of distribution, the interest should cease on the claims on the day of sale, or at furthest at confirmation of sale, and the accrued interest on the fund should have been distributed pro rata to all the claims reached.</p> <p>3. In overruling the 4th exception to auditor’s report, to wit: The auditor allowed too much compensation to the assignee and accountant, and erred in overruling the exceptions thereto.</p>

<p>Error to the Court of Common Pleas of Juniata county: Of May Term 1880, No. 200.</p> <p>Scire facias sur mortgage issued by Ezra D. Parker, executor of John Wright, deceased, against David P. Sulouff, with notice to Jacob Sulouff, Keziah Sulouff, his wife, and Turner Sulouff, terre-tenants. The defendants pleaded “payment.”</p> <p>At the trial, before Junkin, P. J., it appeared that on August 26th 1869, the plaintiff’s testator, Wright, conveyed to David P. Sulouff seven tracts of land, and as security for the purchase-money took from him four mortgages, accompanied by bonds, upon four of the tracts of land thus conveyed. The mortgage in suit was one of these four, and was for $3175.30, payable on April 1st 1873, and covered a farm containing '332 acres. On all these mortgages the interest was at the rate of eight per cent, per annum.</p> <p>On the 25th of January 1872, David P. Sulouff and wife conveyed by deed the land bound by the mortgage sued on to Keziah Sulouff, and this deed recited that it is given “ in consideration of the sum of $1000, and the payment of the mortgage to John Wright by David P. Sulouff,” and further recited, that the conveyance was made “subject to the payment of the lien of mortgage of John Wright by David P. Sulouff.”</p> <p>Defendants offered to show that, in 1869, David P. Sulouff, the defendant., was indebted to John Wright, the plaintiff’s testator, in the sum of $12,441.41, or thereabouts, and to secure the payment thereof, he took from the defendant four several mortgages, on as many separate tracts of land, and payable in different sums and at different times, to wit: On the 1st of April 1870, and annually thereafter till 1st April 1875, inclusive; that interest on the several payments as aforesaid, was counted from the date of the mortgage till .the maturity of each payment, at the rate of eight per cent, per annum ; that three of the mortgages have been paid and satisfied, including more than $1000 of usurious interest. These facts to be proved by agreements in writing between the parties and other proper writings, and for the purpose of claiming such excessive interest as a credit on the mortgage in suit; and further, to show that the said four mortgages were given for parts of one and the same debt, and that they constituted one transaction.</p> <p>Objected to. Objection overruled, and evidence admitted.</p> <p>In the general charge, the court, inter alia, said:</p> <p>“ The next question is, can David P. resist the payment of the mortgage on grounds of. usury, after having conveyed the property bound by it to Keziah Sulouff, the terre-tenant ? The case of The Miners Trust Co. v. Rosenberry, 31 P. F. Smith 309, is relied on as teaching that a purchaser who has assumed the payment of a lien as part of his purchase-money, into which usurious interest has entered, cannot set up that as a defence to its payment. This is clear enough, when the original debtor, as in the case cited, openly appears and expresses his wish that the debt be paid notwithstanding the usury. But it is too clear for argument, that where the original debtor is made a party defendant, though doing so was unavoidable, and even though the proceeding is in rem, as in this case, and although no personal liability may spring out of a judgment against him, he is entitled to set up all the defences (not having estopped himself), which would have been available, had he continued the owner of the land bound by the original obligation. This proposition is so manifest that the mere statement of the principle becomes the axiom of sufficient proof.</p> <p>[“ The last question is, can David P. Sulouff recoup the usurious interest paid by him on the satisfied mortgages, against this proceeding to recover the balance due on the fourth mortgage ? The answer to this depends upon how we view the mortgages. Were they segregated securities for an aggregated debt ? or, in other words, did David P. Sulouff owe to John Wright a debt of $13,441.43, as an entirety for seven parcels of land, and four tracts were mortgaged for the whole, in such manner that each should secure a portion according to its value ? We think that there was but one original debt as purchase-money of seven parcels of land, sold by Wright to David P. Sulouff, and that the senaration of the whole into fragments, to adapt the charge to the ability of the four parcels of land to pay the whole, had not the effect of rendering each fragment an independent, individuated liability, so as to prevent the recoupment of excessive interest paid upon three, available in a sci. fa. issued on the fourth. This conclusion cannot be avoided under the reasoning in Heath v. Page, 13 P. F. Smith 108 ; Campbell v. Sloan, 12 Id. 481; Rheem v. Rosier, 22 Id. 54 ; Overholt v. Bank of Mt. Pleasant, 1 Norris 490; where it is held that neither renewals, nor splitting up a debt, nor any device that ingenuity can invent, will enable the lender to evade the statute. The provision in the Interest Act of 1858, which provides, ‘ that it shall, be lawful for such borrower, or debtor, at his option, to retain and deduct such excess from the amount of any such debt,’ instead of suing to recover back such excess, is based upon the well-known dominion 'which the lender exercises over his borrower and' how reluctant he is to give umbrage to his creditor while he continues in his power, and hence the statute permits him to defer recoupment until final payment would release him. With this clear purpose expressed' in. the statute, it would ill accord with the spirit of the act, to hold that when an entire liability was divided into fragments, each would run its course as an independent, separate obligation, compelling the debtor to raise a controversy with his creditor at the final payment of each branch of the indebtedness, thus exposing him to the mercy of his creditor.</p> <p>“ This view of the case allows David P. Sulouff a credit, on the mortgage sued upon, for all excessive interest paid by him on the other three satisfied mortgages. Thus :</p> <p>Balance due on mortgage, 23d February 1878, . $2139 64</p> <p>Interest from 23d February 1878, to 23d February 1879,........ 123 37</p> <p>Amount due,.......$2263 01</p> <p>Credit.or deduct the illegal interest and its interest, 1463 01</p> <p>Plaintiff should have a verdict for, . . . $800 00”]</p> <p>Verdict and judgment accordingly, when plaintiff took this writ, alleging that the court erred in admitting the above evidence, and in the portion of the charge included in brackets.</p>

<p>Error to the Court of Common Pleas of Mifflin county: Of May Term 1880, No. 6.</p> <p>Assumpsit by Gibboney & Nelson against the township of Union, to recover the ainount of certain orders for merchandise and other supplies, issued on the credit of the township by one of the supervisors thereof, to laborers employed by him to work on the roads of said township.</p> <p>It appeared at the trial, before Bucher, P. J., that William E. Stroup and J. N. Yoder were supervisors of Union township for the years 1874 and 1875. For their convenience it was agreed between them that each one should take particular charge of the repair of the roads in the end of the township where they respectively resided. Stroup proceeded to repair the roads in his end, but there being no funds at hand from the receipt of road taxes, he arranged with the plaintiffs, who were storekeepers, to furnish materials and supplies to the men employed, upon orders issued by Stroup upon the credit of the township. The book account of the plaintiffs showed that lumber and other materials necessary for the repair of the roads to the amount of $36.76, were furnished, but payment of this account was not resisted. They also claimed that they accepted orders under the above-mentioned arrangement in favor of workmen employed in the repair of the roads, for provisions and other personal supplies, to the amount of $920, upon which $475.11 had been paid, leaving a balance due of $444.89. To recover this balance and the above sum of $36.76, with interest on both amounts, this suit was brought.</p> <p>The plaintiffs offered in evidence the orders thus received, which were in form as follows:</p> <p>“ Belleville, June 12fch 1874.</p> <p>Gibboney & Nelson: Let Charles Bennett have goods to</p> <p>amount of two dollars, and charge to Union township.</p> <p>$2. W. F. Stroup, Supt.”</p> <p>The defendant, inter alia, objected that one supervisor had no power to make such a contract. Objection overruled and evidence admitted.</p> <p>The defendant, under objection and exception, gave evidence showing that the township auditors had a settlement with the supervisors, wherein the latter were allowed credit for the work done on the roads, covered by certain orders mentioned in the settlement, and that it was understood at the time of said settlement that there were outstanding orders which were not paid.</p> <p>In the general charge, the court, inter alia, said:—</p> <p>“ The defendant insists that these orders are not binding upon the township for want of authority in the supervisors to draw them. For the present, we instruct you that these, orders are valid and binding upon the township, and you ought to find for the plaintiffs, unless indeed the defendant has shown that they have been paid. We permitted the defendant to give evidence that the township authorities had a settlement with the supervisors, and that they were allowed a credit for the work done on the roads covered by the orders in the settlement. It is also in proof that at' the time this settlement was made, it was proven to the township auditors that there were outstanding orders unpaid. Now we instruct you that this settlement, which was made in the absence of the plaintiffs and without notice to them, cannot defeat a recovery.”</p> <p>Verdict for plaintiffs, and after judgment thereon, defendant took this writ and alleged that the court erred in admitting the orders in evidence and in the above portion of the charge.</p>