Volume 96 — Pennsylvania State Reports

<p>1. The saving clause in the 4th section of the Act of March 13th 1815, relative to the sale of unseated lands, provides that minors and insane persons, whose lands have been sold, are entitled to two years after removal of their disability wherein to redeem the same : Held, that this clause does not extend to cases of sales made under the 5th section of said act to the county commissioners, and to the redemption therefrom as provided in the 6th section.</p> <p>2. J. was born in 1851 and her title to certain land accrued in 1854. In 1862 said land was sold for arrearages of taxes', in accordance with the provisions of the Act of March 13th 1815, to the county commissioners and by them sold in 1868 to H. Two years after coming of age, in 1874, J. paid to the treasurer of the county the amount necessary to redeem her land and brought ejectment against H. to recover the same: Held, that the redemption of J. was too late and would not divest the title of defendant.</p> <p>3. Per Sharswood, C. J. — Limitations of remedies are purely statutory. While it may well be doubted whether the legislature could enact an immediate bar to any existing right, yet it is clearly settled that to prescribe the period within which any right may be enforced is within their power. They may or may not except disabilities, according to their pleasure. If they omit to say anything upon the subject, there is no power in the courts to supply what may have been an accidental or intentional omission.</p>

<p>1. Where an act incorporating a borough confers upon the authorities all powers necessary “ for the well ordering and better government of said borough,” the power conferred is sufficiently comprehensive to cover every regulation necessary for the government of the borough and protection of its citizens, and the only limitation of this power is that it must be exercised in a reasonable, lawful and constitutional manner. If these limitations are not transgressed courts cannot interfere with the ordinances of such a municipality, for the burgess and council will be left to a reasonable discretion, and, for the proper and wholesome exercise thereof they are accountable, not to the courts, but to the people they represent.</p> <p>2. An ordinance of said borough requiring people to buy and sell coal by weights and measures is reasonable, lawful and constitutional.</p> <p>3. An ordinance of said borough requiring the payment of five cents per load for weighing coal bought and sold and the use of the borough scales, is notin the nature of a tax and is within the charter powers of the borough.</p> <p>4. Fisher v. Harrisburg, 2 Grant 291, followed.</p>

<p>1. It seems that in a suit against plaintiffs in an execution for seizing and selling property they must show the judgment on which the execution issued to justify the taking.</p> <p>2. '1'he rule is held differently, however, where the suit is against a sheriff or constable, who are ministerial officers. When an execution, regular in form, and having nothing on its face indicating a want of jurisdiction, is directed to a constable and placed in his hands, it is sufficient to protect him in duly executing it according to its commands.</p> <p>3. The apparent regularity and presumed jurisdiction, as evidenced by the execution, not only protect such officer in its due execution, but make it his duty to proceed to execute the writ.</p> <p>4. Whether a debtor assigned his property with intent to defraud his creditors is for the jury.</p> <p>5. When it is for the jury to say whether the sale of personal property and the delivery and possession taken thereafter were such as would make the sale valid as against subsequent judgment creditors.</p>

<p>Error to the Court of Common Pleas of Indiana county: Of October and November Term 1879, No. 205.</p> <p>Assumpsit by George Swan, assignee of George H. Warren, against the Watertown Fire Insurance Company, on a policy of insurance.</p> <p>The defendant is a foreign insurance company, organized under the laws of New York. It obtained a license to do insurance business in this state under the provisions of the Act of 4th of April 1873, Pamph. L. 26. The company named Samuel G. W. Brown as an agent, to whom the insurance commissioner issued a certificate under the provisions of said act, which authorized him “•to transact business as the agent of said -company, so far as he might be empowered by said company.” The company afterwards empowered him “ to take applications, make surveys, and underwrite, deliver and consent to the transfers and assignments of policies of insurance, signed by the president or vice-president and attested by the secretary of said company, in the counties of Armstrong, Indiana, Butler, Jelferson and Clarion.” In pursuance of this authority Brown established his principal office in Kittanning, Armstrong county, and opened branch offices at Indiana, Brook-ville, Butler and Clarion. He also employed persons at fixed salaries to take charge of these offices and aid him in the prosecution of his work. The persons so employed were authorized by Brown to solicit risks, make surveys, take applications, countersign them as agents, .and forward them to him at Kittanning. Upon receiving these Brown transmitted them to the company and delivered policies to the parties insured. To take charge of the branch^qffiee at Indiana he employed II. S. Smullen. Among others Smullen solicited Warren to insure his property in the company. The amount of insurance agreed upon was $1500. Of this $1000 were tcr-be placed on the dwelling-house, and $500 on the personal property in the house.' The cash premium required, $16, was paid. Smullen had blank applications with him. He produced one partially filled, and Warren, at Smullen’s instance, signed it. The parties then proceeded to Warren’s residence to examine the property and finish the application. It was late in the evening when they reached the house. They made a partial examination of the property. Among the household goods there was a sewing-machine. Smullen wanted to insure it. Warren informed him that it was property owned by him and his brother, and declined to insure it. It then being late, in the evening, and Smullen having an engagement for that night, the work was suspended, with the understanding that Smullen would return the next morning and the parties would then complete the application. No inquiries had been made up to this time as to encumbrances, and the questions in the application as to title, encumbrance and value of the land were not asked by Smullen nor answered by Warren. Smullen did not return the next morning, according to arrangement, hut went to Indiana. Sometime during that week, after returning to Indiana, he filled up the balance of the application by inserting the sewing-machine, and the answers to the three interrogatories in relation to title, encumbrances and value of land. This was done in the absence of Warren, and without his authority, knowledge or consent. When the application was thus filled up by Smullen he countersigned it as agent, and forwarded it by mail to Brown, the agent at Kittanning. Brown transmitted it to the company. Sometime afterwards a large envelope, supposed to contain the policy of insurance, addressed to Warren, reached his place by mail. Warren was absent when it came, and it vtas laid in the clock on the mantel unopened. On the 15th day of October 1875, about two months afterwards, a fire occurred in the absence of Warren and his family, whereby his house with all its contents -was destroyed, including the envelope which was supposed to contain his policy. The loss was total. Notice of the fire and loss of the policy was given. The company refused to pay, and this suit was brought. The company filed a copy of the policy, wherein it appeared that the sewing-machine was included as one of the items insured. It appeared in evidence that a judgment of $119 existed against the assured and Augustus H. Warren, his brother, which was a lien against the property at the time it was insured; that this judgment had been confessed by direction of Augustus,, his co-defendant, and that the assured was not aware of its existence at the time the insurance was taken.</p> <p>One of the provisions of the policy was that “ all statements and representations contained in any written or verbal application, survey, plan or description of the property herein insured shall be taken and deemed to be warranties on the part of the insured, and if the insured in any such written or verbal application, survey, plan or description, shall make erroneous representations or omit to make known any fact material to the risk, or if the interest of the insured in the property be any other than the entire unconditional and sole ownership of the property, for the use and benefit of the insured, or if the same or any part thereof shall be encumbered by mortgage, judgment or otherwise, and be not so stated to the company, and so expressed in the written portion of the policy, then, in every such case, and in either of said events, this policy shall be null and void.”</p> <p>At the trial before Blair, P. J., of the Fortieth Judicial District, holding special court, the plaintiff offered in evidence the copy of the policy furnished by the company. The defendant objected to its admission unless accompanied by the application which by the terms of the policy was made part thereof. The company having retained possession of the application, produced it. This was the first knowledge the assured had of its being filled up by Smullen in the manner stated. The company objected, that the policy made the statements contained in the application warranties of the truth thereof, that the assured had broken these by false representations as to his ownership of the sewing-machine, and by false answers to the interrogatory as to encumbrances. The plaintiff replied by proof of the fraudulent making and altering of the application by Smulleu, who acted in the premises as agent of the company, and alleged this made the application void as against the plaintiff; and requested the court to instruct the jury as follows :</p> <p>1. That if the jury find from the evidence that the company appointed Brown its agent in the counties of Armstrong, Indiana, Jefferson, Clarion and Butler, to solicit insurance, agree upon rates, receive premiums, make suveys, take applications, fill up policies signed in blank by the proper officers of the company, and deliver the same to the insured; that in pursuance of said appointment he established his principal office at Kittanning, and opened branch offices at Indiana, Broolcville, Clarion and other places in the counties aforesaid, and employed clerks and others to aid him in the business aforesaid, with the knowledge of the company, then in such case the acts of his employees in the premises are his acts, and, as such, are binding upon the company.</p> <p>2. That if the jury further find that Brown, in pursuance of his aforesaid agency, employed Smullen to aid and assist him in the aforesaid insurance business, in the county of Indiana, that in pursuance of his employment Smullen solicited the plaintiff for the risk in suit, and procured the application in evidence to he signed by the plaintiff, with that part embracing the interrogations in blank, without reading or otherwise making known to him the purport thereof; and that he afterwards filled in the sewing-machine and the answers to the interrogatories in plaintiff’s absence, and without his authority, knowledge or consent, then, and in such case, the application is void, and is not binding upon the plaintiff.</p> <p>The court refused to so instruct the jury and, inter alia, charged:</p> <p>“ That when Warren accepted the policy, he adopted Smullen’s work. * * * He must be taken as assenting or acquiescing in what Smullen did. The evidence, we think, is insufficient to reform the contract or to make a contract different from that expressed in the papers. Your verdict should therefore be for the defendant.”</p> <p>Yerdict accordingly, when plaintiff took this writ and alleged that the court erred in refusing to charge as requested above and in the portion of the charge quoted.</p>

<p>1. A justice of the peace has no jurisdiction of an action brought by a distributee in the Orphans’ Court to recover from an executor his distributive share. Nor can consent give jurisdiction so as to prevent objection thereto being made- in a future trial of the cause.</p> <p>2. Where, however, such a suit is instituted and by agreement of the defendant the case is tried before a justice of the peace and results in a judgment for plaintiff, and defendant takes an appeal to the Common Pleas, and afterwards the plaintiff in accordance with a rule of court files a sworn copy of his account and takes a judgment for want of an affidavit of defence, the defendant is estopped from objecting to the jurisdiction of the justice in order to destroy the validity of the judgment.</p> <p>3. A rule of court provided that before judgment was entered for want of an affidavit of defence the plaintiff should “ file, on or before the return day of the writ, with his declaration or statement when necessary, or, in cases of appeal, on or before the first day of the term to which the appeal is entered, an affidavit stating the amount he verily believes to be due from defendant, together with a copy of the book entries or instrument upon which the suit is brought; or where the claim is not evidenced by writing, a brief setting forth a full and detailed statement of the same, verified as aforesaid.” The plaintiff in the above case, in due time, filed a sworn calculation of the amount due him “ per auditor’s report” in the Orphans’ Court. Held, that this was a sufficient compliance with the rule, and in default of defendant filing an affidavit of defence within the stipulated time the plaintiff was entitled to judgment.</p>

<p>1. Testimony when not perpetuated by depositions or preserved in notes of trial, may be proved by witnesses wlio were present at the trial and remember what was then testified to by the party since deceased or rendered' incompetent by the death of his adversary.</p> <p>2. This rule applies as well to testimony before arbitrators as in court, and it was error therefore to reject the testimony of arbitrators who testified in regard to a claim which came before them as arbitrators during the lifetime of a decedent who was then a defendant.</p>

<p>Appeal from the Court of Common Pleas of Indiana county: Of October and November Term 1880, No. 265. In Equity.</p> <p>Bill in equity filed by John Kinter and others against John Truby, treasurer of Indiana county, to restrain the collection of a certain tax.</p> <p>The bill set forth that the complainants were stockholders of the Indiana County Deposit Bank. The commissioners of Indiana county, at or about the time they assessed the rates and levies for county purposes for the current year, rated and assessed the stock owned by the plaintiffs in the bank aforesaid to pay five mills on the par value thereof for county purposes, and a special tax of three mills thereon for the current year. These taxes were assessed in pursuance of the Act of March 31st 1870, Purd. Dig. 143, pi. 96, of which the following are the material sections:</p> <p>“ Sect. 3. All the shares of national banks, located within this state, and of banks and savings institutions incorporated by this state, shall be taxable for state purposes at the rate of three mills per annum upon the assessed value thereof; and for county, school and local purposes, at the same rate as now is or may hereafter be assessed and imposed upon other monied capital in the hands of individual citizens of the state.”</p> <p>“Sect. 4. In case any bank or savings institution aforesaid 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 sayings 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 taxes above mentioned remaining unpaid, the commissioners, on May 1st 1879 placed them in the hands of the defendant for collection, which he was authorized to do by virtue of the Act of April 4th 1872, Pamph. L. 954, and its supplements. The complainants- contended that he should not do so because on the 7th of June 1879 an Act of Assembly was passed, providing, inter alia, “ that * * * all shares of stock in any bank, banking or savings institution or company, now or hereafter incorporated by or in pursuance of any law of this Commonwealth * * * shall be and are hereby made taxable for state purposes at the rate of four mills on every dollar of the value thereof annually; provided that * * * in case any bank or savings institution incorporated by this state, or any national bank, elect to collect annually from the shareholders thereof a tax of six-tenths 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 June of every year, the shares, capital and profits of such bank shall be exempt from all other taxation under the laws of this Commonwealth;” and that in pursuance of .this law the cashier of said bank collected from the shareholders thereof six-tenths of one per centu-m on the par value of all the stock owned therein and paid the same into the state treasury on the 19th day of June 1879, by reason of which payment appellees claim they are not liable for the payment of the tax complained of on the duplicates in the possession of appellant.</p> <p>The bill further alleged that the defendant nevertheless was, under the authority conferred by the Act of April 4th 1872, about to issue a warrant to constables to levy and collect by distress and sale of complainants’ goods said taxes imposed by the commissioners upon the complainants’ shares of stock for the year 1879, which proceedings would subject complainants to expense, inconvenience and irremediable injury. The bill then prayed for an injunction preliminary until hearing, and perpetual thereafter, to restrain defendant from resorting to any process to collect said taxes. The court, Hunter, P. J., granted a preliminary injunction, and subsequently continued the same until an answer or demurrer should be filed and a further hearing had. From this decree this appeal was taken by defendant, who assigned for error the granting, and continuing of the preliminary injunction.</p>

370. Indictment of Edward H. Wilson, Barnabas Douglass and others.

251. Case by John O. Eox against Levi Fox for malicious prosecution. The trial resulted in a verdict for plaintiff, when defendant took this writ, his assignments of error being as follows : 1. The court erred in not. saying to the jury whether there was probable cause or not for the arrest and prosecution against the plaintiff below. 2.

250. David Evans died seised of a tract of about 200 acres of land and leaving a widow and eight children. One of these children, Lazarus, died intestate, leaving a widow, Mary Evans, but no issue.

232. Case by the Sulphur Spring Independent School District of Sewickley township, Westmoreland county, against the Baltimore and Ohio Railroad Company, lessee of the Pittsburgh and Connellsville Railroad Company. It appeared that the portion of the defendant's road which passed through Sewickley township was constructed in 1855.

2, of Allegheny county: Of October and November Term 1880, No. 110. Debt by the Commonwealth for the use of Samuel ftícGaugh, guardian of Adelia, Thomas, Lafayette and William Gracey, minor children of John Gracey, deceased, against Robert Gracey and his sureties, on the bond of said Robert Gracey, as the guardian of the above children of John Gracey, deceased.

280. Appeal of the School District of Aleppo from, the decree of the court in the matter of the division of the school property of Kilbuck township. The material facts as set forth in the report of the master, L. P. Stone, Esq., will be found stated in the opinion of this court.

<p>Error to the Court of Common Pleas, No. 1, of Allegheny eaunty: Of October and November Term 1880, No. 221.</p> <p>. This was an action upon a promissory note by George T. McCord against D. P. Williams, to recover the amount of said note which was given by defendant in part payment for Curry Institute, a normal school in the city of Pittsburgh.</p> <p>In bis affidavit of defence, Williams admitted the execution of the note, but alleged, inter alia, that as an inducement to the purchase of the school McCord agreed to sell the “ good will” thereof, and “ to use his personal influence to bring and procure the attendance of pupils to said institute, and to lend the influence of his name for the benefit and advantage of said institute,” and further alleged that plaintiff had failed to do so, whereby defendant had suffered damage, &c. Previous to the sale to D. P. Williams, McCord had sold the school to T. M. Williams and J. D. Kelley for $1200. Before possession was delivered Kelley sold his interest to one Fee. Williams refused to enter into a partnership with Fee, and the contract was then cancelled. McCord then.sold the school to defendant for $1800, in part payment for which the note in suit for $600 was given, and said note not being paid this suit was bi’ought thereon.</p> <p>At the trial, before Collier, P. J., the defendant offered in evidence a copy of Educational Voice, containing an advertisement of the Riverview Institute, an institution at that time under the charge of Messrs. Kelley & Fleck, and owned by them, wherein it appeared that McCord was advertised as one of the faculty. Plaintiff objected thereto for the reason that it does not appear that McCord ever knew that he was advertised as one of the faculty of said institute, and the advertisement was made at the time when he was actually engaged in the Curry Institute, and that the evidence is incompetent and irrelevant.</p> <p>“ Objections overruled.” (Third assignment of error.)</p> <p>Also, another circular of Riverview Institute. Plaintiff objected because the name of McOord does not appear in it, or in any way connected with it; and even if it did, it does not appear from any evidence in the case that McCord had anything'to do with getting up said circular.</p> <p>“ Objections overruled.” (Fourth assignment.)</p> <p>Also, the articles of agreement between McCord and T. M. Williams and Kelley, which the court admitted under objection. (Fifth assignment.)</p> <p>Also, a circular of the McCord Institute, which the court admitted under objection. (Sixth assignment.)</p> <p>In the general charge the court, inter alia, said:</p> <p>[“ Williams defends on the ground that he made a written agreement with McCord, which has been given in evidence to you, wherein the latter agreed ‘ to use his personal influence to bring and procure the attendance of. pupils to said institute, and to lend the influence of his name for the benefit and advantage of said institute,’ which he failed to do, but on the contrary allowed his name to be used in connection with another institute, thereby damaging him (the defendant) in a sum equal to the amount of the note.] This agreement you of course understand is a separate one from the agreement for the sale of the Curry Normal Institute by McCord to Williams. The two agreements should have been embodied in one, but it is not absolutely necessary that they should have been, and if Mr. Williams has satisfied you, because the burden of proof is on him, that McCord made that agreement and then-allowed his name to be published in connection with another institute, went to his father’s institute to teach, and that that injured or damaged him (Williams), whatever you find that damage was you may set off against the note. [The testimony on behalf of Williams, if believed, would make out a defence.] On the other hand, if the testimony of McCord and his witnesses is believed, the defence would not amount to anything, because it is perfectly consistent with the bargain.</p> <p>“ Remember, as I said before, that the burden of proof is on the •defendant. He must satisfy you of his defence by the weight of the evidence, and if he has failed to do that your verdict should be for the plaintiff.”</p> <p>The portions of the above charge in brackets constituted the first and second assignments of error respectively.</p> <p>Verdict for defendant, and after judgment plaintiff took this writ and alleged that the court erred as set forth in the above assignments of error.</p>

, Error to Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 171. Assumpsit by William H. Braden against the Girard Fire and Marine Insurance Company on a policy of fire insurance.

<p>1. While in many oases the mere fact of injury to a passenger on a railway car raises the presumption of a want of care, as where the injury results from defective track, cars, machinery or motive power, yet where a passenger in a railway car is injured by the act of a third party, over whom the railway company has no control, the burden of 'proof is upon the passenger to show not only that he was not guilty-of contributory negligence but that the company was guilty of negligence and that thereby the injury was caused.</p> <p>2. A passenger on the street car of a railway company was struck and injured by a passing load of hay i Held, that to make the company liable the passenger must prove not only that he was without fault but 'that the company was negligent.</p> <p>3. AVhere a point is certified by the record and it appears thereby that it was offered and a bill sealed, although it was afterwards withdrawn, it may be reviewed by the Supreme Court.</p>

<p>Error to the Court of Common Pleas No. 1, of Allegheny county: Of October and November Term 1880, No. 262.</p> <p>Scire facias sur mortgage issued by the Germania Savings Bank of Pittsburgh against W. A. Lewis, impleaded with James I. and William Robinson. Lewis filed an affidavit of defence which set forth that he has a just and legal defence to the whole of plaintiff’s claim, except as to the part of the principal debt unpaid, which, with interest amounts to the sum of $2468.23, which defence consists of the following facts : Jas. I. Robinson was and is the principal debtor to the plaintiff for the moneys now demanded in this suit, and the mortgage sued on originally required the payment of $8000 and interest to pay and satisfy the same, which whole amount was the debt of’ said James I. Robinson, and so known to the plaintiff when the debt was contracted. This mortgage originally covered the lands of James I. Robinson in Butler county, which were released as hereinafter stated and the lands of William Robinson, the other defendant (who was security for this and other debts of James I. in Allegheny county) of the probable value of $12,000 or $13,000 substituted to enable James I. to borrow the money, and this fact was well known to plaintiff: that afterwards the plaintiff was paid by James I. Robinson $3500 of the principal debt, and the plaintiff released his lands in Butler county from said mortgage ; and about the same time James I. Robinson gave William Robinson a judgment bond in the penal sum of $18,000 in trust to pay his numerous creditors for whose claim William was security in some form, and among others the said plaintiff, for a part of the balance of said mortgage then remaining unpaid, to wit, $3500 ; that afterwards, on the 12th of April 1879, the said lands of William Robinson, in Allegheny county, included in said mortgage as aforesaid for the benefit of James were sold by the sheriff upon proper writs and were purchased by affiant for $5000, subject to the plaintiff’s mortgage; that in the distribution of the said $5000 purchase-money, the judgments owned by the affiant at the time, and sought thereout to be paid, were not reached to an amount above $6000, as the records show; that afterwards, at September Term 1879, the property of. James ®L Robinson, in said Butler county, was sold, sur judgment entered upon the bond given to William in trust, as aforesaid, and a fund of about $6000 raised to apply to the claims of the cestui que trustent therein named, which fund, upon due proceedings, was distributed by the auditor, and the sum of $2279.77 awarded to plaintiff in payment pro tanto of said mortgage debt, which distribution of said sum to plaintiff was demanded by plaintiff through its proper officer, who appeared before the auditor and made due proof of the right of the plaintiff to participate in said fund, and to receive thereout the proper proportion due from said fund, if any, on account of the said mortgage debt; that afterward said auditor filed his report in the Court of Common Pleas of Butler county, distributing, inter alia, the sum of $2279.77 to the said plaintiff, pro tanto, of said mortgage debt, but suspending the payment thereof until the plaintiff had exhausted the security (to wit, the William Robinson mortgage), or shown the same to be worthless ; to which report, before filing, the said plaintiff, by its proper officer and corporate seal duly attached, and upon the advice, after consultation of J. L. Koethen, Esq., made exceptions in writing, now or late on file in said court, and which being overruled by the auditor, were duly renewed in court; and afterwards to wit., on the 15th of July, 1880, the court (Bredin, J., presiding) overruled the exceptions and confirmed the auditor’s report, whose decision is here attached by copy; that after receiving notice'by copy, on or about July 17th, that such decision and decree had been made, affiant called upon J. L. Koethen, Esq., the attorney of plaintiff, and under whose instructions all previous actions by the bank in this matter had been taken, and told him that an appeal to the Supreme Court should be taken; that the authority cited for the decision did not apply, and. that the bank for its protection should take the appeal, which being arranged after full discussion with.the secretary and treasurer and the bank’s attorney, the affiant agreed, verbally, at the time, to bear all expenses and outlays, and because of change of attorneys, this was not by plaintiff carried out; that Chas. M. Seibert, the secretary and treasurer of said bank, and the officer who seemed and talked as though he managed the affairs of the bank, agreed to go himself to Butler county, or have the vice president go; that on July 30th, having previously discovered that the bank itself would not bring or take an appeal and certiorari, or give authority to this affiant, or any one else, to bring or take the same, affiant served notice upon the plaintiff, which notice embodies the agreement and arrangement made with Mr. Seibert, Mr. Koethen and myself, previous thereto, say two or three days before; that this appeal has not been taken by plaintiff, and neither affiant nor any one else authorized to take the same so far as affiant knows ; and affiant further says that the judgment entered in this case should not be for attorney’s commissions, $225, or for costs, and for a defence thereto he says: that previously to June 4th last past, affiant called upon plaintiff and offered to pay the interest falling due on said June 4th, and the principal debt, the interest being from December 4th 1879, at 8 per cent, on $4500; that affiant then and there offered to pay the said principal, debt and interest, and was ready, able and willing to pay the same, but the proper officer of said plaintiff said that they did not need said moneys, and to let it stand until the Butler county matter was disposed of; that they had plenty of money, &e.; that no request nor demand was made by said plaintiff before bringing this suit, for the payment of either interest or principal, and the matter was not talked of prior to this suit, but if demand had at any time been made for such payment this affiant was ready, able and willing to make such payments ; wherefore, affiant says, that neither he nor his property is in any default of payment, and until the same was demanded, and default made thereafter, no penalty attaches to him or his property; the said attorneys’ commissions being a penalty put upon the mortgagor by his own act, for a compensation in case of default by the terms of the mortgage, but in this case the bank waived default, and this at its own request, suggestion and arrangement, and because said plaintiff was inquired of whether affiant should pay interest and principal prior to June 4th ult., at which time the semi-annual interest would fall due, and the principal was then overdue, this affiant says the costs and commissions were not necessary to make claim for by suit, and plaintiff waived the same without some demand after said waiver which was not made in any way.</p> <p>Affiant says further: 1. That judgment for $2468.23 should be entered without costs in favor of the plaintiff. 2. That as affiant is advised and believes the foregoing stated facts show a payment to the plaintiff of $2279.77 by the principal debtor, which payment although not actually in moneys, the plaintiff .is entitled to, and being so entitled the plaintiff by lawful proceedings has recovered and is entitled to the said moneys in law ; and' affiant says that he believes the foregoing facts as stated to be true, &c.</p> <p>Lewis also filed a supplemental affidavit of defence wherein he averred that he desires to say in further justification of the position taken by him in his affidavit of defence above, that at the meeting of this affiant with the proper officer of said plaintiff (which proper officer was Charles Seibert) in the month of June last past and prior to the 4th day thereof, in addition to the statement contained in above affidavit, it was mutually arranged by and between this affiant and said Seibert that, upon the receipt of the fund distributed by the Court of Common Pleas of Butler oounty, the plaintiff after deducting the interest up to the time would credit the principal debt with the balance of said moneys, and carry the balance of the mortgage debt for affiant at the stipulated interest until plaintiff wanted the same paid, and then and there gave the reason therefor as set forth in the affidavit filed as aforesaid, to which arrangement and agreement proposed this affiant assented ; that affiant has at no time or in no way made default in payment of said mortgage debt except and in the way set forth in this and the previous affidavit, which default the plaintiff waived and asked affiant in effect to continue said mortgage until the moneys secured thereby were wanted by the plaintiff; that affiant is advised and believes that he is indebted to the plaintiff as terre-tenant in the sum mentioned heretofore in his affidavit, without costs and without attorney’s commissions.</p> <p>The plaintiff took a rule to show'cause why judgment should not be entered for want of a sufficient affidavit of defence, which the court made absolute. Lewis then took this writ and assigned this action of the court for error.</p>

<p>Where a judgment is entered on the same day but after the death of the defendant debtor the legal fiction of a relation of judgments does not apply, and it is not entitled to priority of payment out of the proceeds of the sale of real estate over the claims of general creditors.</p>

1, of Allegheny county: Of October and November Term 1880, No. 249. Held: discharged the surety. Ans. “ Refused.” 8. That under the assignment of Negley to McKinney, through whom the plaintiffs claim, the legal title is not a security therefor. Ans. “ Refused.” 9. That the finding of the court should be in favor of the defendants.

<p>1. A. and B., who were the patentees and owners of a patent assigned their interest to a firm of which B. was a member, and in consideration therefor the'firm agreed to pay to A. a royalty on the articles manufactured under the patent. The patent had been recently obtained and had not been fully tested. There was no warranty as to its utility: Held, that as no fraud was alleged the firm assumed the risk of the success of the patent, and while perhaps they were not bound to persevere in its use to their own detriment, it was very clear that if they employed the patented process or any part thereof, they were bound to account according to the terms of the agreement.</p> <p>2. The contract was entire and indivisible, and the firm having availed themselves of at least a part of the patented process should account and pay as provided in the contract.</p>

<p>1. The general rule is that the father is entitled to the custody of his infant children but it is a mistake to suppose that the father has an absolute natural right to the custody of the infant.</p> <p>2. When a court is asked to appoint a guardian of the person of a child, it will investigate the circumstances and act according to a sound discretion, the primary object being the good of the child.</p> <p>3. Under the Act of May 4th 1855 the Orphans’ Court may appoint a guardian for a child, its mother being dead, whose father shall for any cause neglect or refuse to provide for it. Where the petition therefor is substantially within the words of the statute, it is enough to bring it within the jurisdiction of the court.</p> <p>4. It appeared that a father neglected to provide medical treatment for his wife and throe children, all of whom died: Held, that the court properly appointed a guardian for the two remaining minor children.</p>

<p>1. Where a business complained of is a dangerous nuisance and the injury is continuous and cumulative and the mischief irreparable, a court of equity will enjoin the prosecution of such business.</p> <p>2. Where it appears that works for smelting lead are of such a character injury inflicted of such nature a court of equity will restrain their</p>

<p>1. When an ante-nuptial agreement does not contain express words, bringing subsequently acquired property of either party within its operation, the widow has no life estate in such property of which the husband died seised.</p> <p>2. To create estates in land in this mode, the implication must be very clear, plain and necessary to effectuate the manifest intent of the parties.</p> <p>3. Undecided whether in searching a title it is necessary to look for ante-nuptial contracts which are recorded.</p>

<p>■ Error to the Court of Common Pleas, No. 1, of .Allegheny county : Of October and November Term 1880, No. 47.</p> <p>Case by the Allegheny National Bank against James McPherson.</p> <p>The following was the plaintiff’s affidavit of claim :</p> <p>“Personally came Wilson McCandless, who being duly sworn deposes and says, that he is the cashier of the Allegheny -National Bank, the above named plaintiff, and that James McPherson, the defendant, is justly and legally indebted to the said plaintiff in the sum of $165, with interest from the 19th day of August 1878, and $1.50 protest fees; which indebtedness arises from a certain promissory note duly made and delivered by Samuel Sarver, in the words and figures following :</p> <p>‘$165. Pittsburgh, April 16, 1878.</p> <p>Four months after date I promise to pay to the order of James McPherson, one hundred sixty-five dollars, at Allegheny Nat. Bk. Without defalcation. Value received. Samuel Sarver.</p> <p>James McPherson,</p> <p>Samuel Neely.’</p> <p>“And said note was duly endorsed by defendant, and came for value in the usual course of business into plaintiff’s possession, and plaintiff is the holder thereof. And the said note was not paid at maturity, although presented for payment at the place therein appointed. Whereupon the same was protested, of all’of which defendant had due notice. And the whole amount of said note is still due and unpaid.”</p> <p>The defendant filed the following affidavit of defence :</p> <p>“ That he has a legal defence to said note, to wit: Said affiant had no notice of protest, nor notice of any kind whatever until the present notice from the sheriff; so that said affiant had no notice of protest from the bank or anybody else, although said note purports to be due the 18th day of August 1878, and was of the opinion that the note was paid by Samuel Sarver, the party who signed the note and the one to pay the note.- For this reason, having no notice of protest from any person, said affiant verily believes he is not indebted to the plaintiff on the said note, and which affiant is 'prepared to show when the trial comes on in this case. The notice served by the sheriff was on Monday the 2d day of December 1878.”</p> <p>And subsequently defendant filed the following supplemental affidavit of defence :</p> <p>“ That he is informed and believes and expects to be able to prove on the trial of the case, that he has a just and legal defence to the whole of plaintiff’s claim, in this, to wit: that no presentment was made to the maker of said note, by any person whatever, that -no personal demand was made upon the maker by any person whatever ; that plaintiff as holder of said note did not use due diligence to ascertain the residence of the maker and endorser, and to give such information to the notary; that due notice of non-payment was not given to affiant or the maker ; that affiant did not receive any notice whatever, either verbal or in writing, actual or constructive, until writ or summons received from sheriff of suit pending on said note, and that was the first and only notice received by afliant in regard to said note, as affiant believed that the said note had been long since paid; that the writ in the above case was served on affiant on the 2d day of December 1878, one hundred and five days after said note is purported to be due; that the said note was dated Pittsburgh, while the maker and affiant lived in Sewickley township, Allegheny county, some seventeen miles from said city of Pittsburgh; affiant calls upon the plaintiff to produce original ■note, and prove the same, and also to prove protest of said note together with the actual notice to said maker or endorser thereon, and the presentment and personal demand upon the parties on said note.”</p> <p>A rule was taken for judgment for want of a sufficient affidavit of defence, which the court made absolute, when the defendant took this writ and alleged that the court erred in their action. .</p>

<p>1. A railroad property and franchises were bought at judicial sale by H. and others, who subsequently, under the provisions of the Act of April 8th 1861, organized a railway company: Held, that the company was not liable for the operation of the road, during the time intervening between the purchase and the organization of the company, unless the possession of the company. was affirmatively shown.</p> <p>2. The presumption was that H. and not the company was in possession of the road between the date of the sale and the time of filing the certificate of organization.</p>

2, of Allegheny county: Of October and November Term 1880, No. 285. Attachment sur judgment of J. B. D. Meeds, administrator of Peter A. Madeira, deceased, against George Gamble, and served upon Peebles & Cahoon, as garnishees. Prior to August 19th 1879, George K. Gamble was the proprietor of the St. Charles Hotel,-Pittsburgh, owning the furniture and having a lease of the building.

<p>1. Pending a lease certain repairs became necessary and a written agreement was entered into between the landlord and the tenant, by which the landlord was to be permitted to enter and make the repairs necessary to render the building safe, and a stated reduction of rent was allowed to compensate the tenant for the loss from the inconvenience and damages ensuing from the repairs. In an action for the rent, Held, that evidence on the part of the defendant tending to show loss and damages arising from the unexpected length of time occupied in making the repairs was improperly admitted. The defendant could not set up the inconvenience and loss to his business resulting from the repairs to the property unless the completion thereof had been unreasonably delayed.</p> <p>2. An affidavit made by the agent of the landlord in a suit against the latter by the contractor, that the work was unreasonably delayed, was properly admitted on behalf of defendant as an admission by the landlord of a delay in making the repairs.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 135.</p> <p>Debt by John Smiley and Elizabeth, his wife, in right of said wife, against A. T. Rowand, A. H. Rowand, Jr., and William F. Hope, on an insolvent bond given by A. T, Rowand, with the other two defendants as sureties. The bond was conditioned “ that if the said A. T. Rowand shall within thirty days apply by petition to the Court of Common Pleas of Allegheny county, or to a judge thereof, if the court shall not within that time be in session, for the benefit of the insolvent laws of this Commonwealth; and if he will comply with all the requirements of the said law, and abide all orders of the said court in that behalf, or in default thereof, and if he fail in obtaining his discharge as an insolvent debtor, that he shall on the day of his so failing surrender himself to the jail of the said county, then this obligation to be void, otherwise to he and remain in full force and virtue.”</p> <p>On February 26th 1877 A. T. Rowand presented his petition for a discharge as an insolvent debtor, under the Acts of Assembly of July 12th 1842, Pamph. L. 339, Purd. Dig. 777, and June 16th 1836, Pamph. L. 731, Purd. Dig. 777, and the terms of his bond ; and the court directed the same to be filed, and fixed a day for a hearing of the said application, and directed that “fifteen days’ notice of the said hearing be given by the said petitioner to his creditors personally of the time and place of said hearing.”</p> <p>Exceptions were filed to this discharge, which, after a hearing, were sustained on June 30th 1877, when Rowand surrendered himself and was lodged in jail. He afterwards filed a new petition under which he was regularly discharged.</p> <p>The court instructed the jury as follows: “ The question now arises, which is really the only question in the case, whether such a surrender relieves him and his sureties from liability on the bond. In order that the matter may be thoroughly tested by a consideration of the whole question by the court in banc, as has been suggested to the counsel in your hearing, we instruct you for the purposes of this case that the surrender did not operate to the discharge of the condition of the bond; we will, therefore, take what is called a special verdict in this case, to wit, that you find for the plaintiffs in the sum of $15,000, the penalty of the bond, to be released upon the payment to the plaintiffs of $9773.33, being the amount of the judgment with interest, in No. 271, July term 1877, subject to the opinion of the court as to the effect of the surrender of A. T. Rowand to the warden of the county jail, and his imprisonment on the 30th day of June 1877, which we found to be the fact. And if the court should be of the opinion that the said surrender should operate as a legal bar to recovery on the part of plaintiffs, then judgment should be entered for defendant non obstante veredicto.''</p> <p>The jury found accordingly, and the court entered judgment on the verdict for the plaintiffs, when defendants took this writ, and alleged that the court erred in this entry of judgment; in framing the foregoing verdict and instructing the jury to find the same, and in entering judgment thereon, 1. Because if the finding of the jury was intended to be a special verdict then it did not find all the facts from which the court could intelligently arrive at a conclusion; and 2. If it was intended to be the reservation of a point of law then also the facts upon which the point was reserved are not found or stated upon the record.</p>

<p>1. In a suit by a widow and her minor children to recover damages for the death of her husband, who, while in the employ of a railroad company, was killed in West Virginia, the court, in the language of plaintiffs’ point, instructed the jury that the action could be maintained if the statute in force in West Virginia, relating to cases of death caused by negligence was similar to or substantially the same as the statute on the same subject in Pennsylvania, and at the close of the charge said, “ The question of law as to the effect of the statute of West Virginia we will reserve for future consideration.” The jury found for plaintiffs “ subject to the opinion of the court on a question of law reserved. Subsequently in an opinion the court stated two questions of law as reserved. 1. “Can the plaintiffs recover under the West Virginia statute?” and 2. “Is there sufficient evidence of negligence to justify a verdict against the defendant?” and on these questions so stated as reserved judgment was entered for defendant: Held, that if it was material to determine whether the statutes were substantially alike it was for the court; that there was no reservation of either the fact or the question of law set forth in the point; that every reservation of a question should place distinctly upon the record what the point is which is reserved and state the facts out of which it arises.</p> <p>2. After verdict and before judgment the plaintiffs moved to amend the record by adding the name of the legal plaintiff, which was refused: Held, to have been error. Under the Act of 1852, the courts have power in any stage of the proceedings to change or add the names of parties so as to make the record conform to the issue that was tried, and no verdict ought to be set aside when there has been a full trial upon the merits, and the formal addition of a party will cure the defect in the record.</p> <p>3. Ferguson v. Wright, 11 P. F. Smith 258, and Wilde v. Trainor, 9 Id. 439, followed.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 125.</p> <p>Case by Abner M. Bedell against the National Tube Works Company, to recover damages for injuries alleged to have been caused by the negligence of the defendant.</p> <p>The facts will be found stated in the opinion of this court.</p> <p>The verdict was for the plaintiff for $3500. The company took this writ and alleged that the court, Kirkpatrick, A. L. J., erred, inter alia, as follows :—</p> <p>1. The court erred in their answer to the third point submitted by plaintiff: If the jury find from the evidence that the chain, the breaking of which caused the injury to plaintiff, was not of sufficient strength and unfit for the purpose for which it was used, that the selection and use of such a chain would be negligence, on the part of the defendant, and the verdict should be for the plaintiff.</p> <p>Ans. “Affirmed, if the jury further find that in putting it to the use they did, the defendants, in the selection, &c., did not use ordinary care and caution ; for if they did, i. e., use ordinary care and caution in the selection, use, &c., the facts suggested by the point, even if they should all be found by the jury, do not constitute negligence in law, and the point must be considered by the jury as disaffirmed. The facts are for the jury, reviewing and carefully considering'all the evidence in the ease.”</p> <p>2. In their answer to defendant’s first point: Under all the pleadings and evidence in the case, your verdict should be for the defendant.</p> <p>Ans. “ Refused.”</p> <p>3. In their- answer to defendant’s point numbered 1J-, as follows: There is no evidence of want of care in the selection by defendant of George Eardly, and no evidence that he was a vice-principal, and your verdict should be for'the defendant.</p> <p>Ans. “Refused. We leave this to the jury from all the evidence — saying, however, that we recall no testimony in the case showing want of care upon the part of defendant in the selection of George Eardly to perform the duties imposed upon him. All of this, however, is for the jury, who will not be controlled or influenced by our recollections as to the evidence submitted upon either side.”</p> <p>5. The court erred in the following portion of the general charge included in brackets :—</p> <p>“We say to you, that as is charged [a defective hook is all that is claimed, but whilst this is all that is claimed or suggested by the declaration and by the evidence in the case, it will be borne in mind by you, as it was argued by counsel, that Eardly was alleged to have been guilty of negligence in not remaining, and himself giving the order to stop the winding; and the ground for this argument, if I understood the counsel, was that on account of the great danger and liability to accident, he was guilty of negligence in leaving the work, even for a single instant, at that crisis in its consummation. We, therefore, affirm the proposition as put by the learned counsel for the plaintiff], and say to you that you will say, under all the evidence, considering the character and kind of machinery in use, the circumstances under which the machinery was put into use, the dangers incident to its use, and the circumstances concerning the whole operation of the placing of the timbers in place, whether or not Eardly was guilty of negligence.”</p>

<p>1. A husband lived with his wife hut neglected or refused to provide for her, and was idle, profligate and worthless. The wife carried on business on her own account, and personally purchased goods for said business, which were charged to her. Meld, that she could be sued for the price thereof as a feme sole trader, under the Act of May 4th 1885, and that a decree declaring her to be such a trader was not necessary before suit could be brought.</p> <p>2. Elsey v. McDaniel, 14 Norris 472, followed.</p>

<p>1. The declaration of a landlord that his tenant had given up his lease, accompanied by an unsuccessful attempt to lease to another, is not conclusive evidence'that the relation has ceased. There must be an agreement to rescind or the lease continues in force.</p> <p>2. Mere removal of a tenant with an unaccepted offer to deliver the key is not evidence of the termination of the lease.</p> <p>3. Taking care of the key and cleaning the windows of a house after the tenant had left, are not conclusive evidence of the landlord’s acceptance of a surrender.</p> <p>4. If the relation of landlord and tenant has not ended by contract the landlord is not bound to rent to another during the lease, for the benefit of his tenant.</p> <p>5. If a tenant rents by the month he has the right to terminate the lease at the expiration of any month, but he is bound to pay the rent for that month, unless there was a surrender. The tender of a half month’s rent is not sufficient, although the premises have not been Qccupied for that portion of the month.</p>

<p>1. The Act of February 24th 1871 was passed for the protection of municipal claims. They are a charge against the property alone, and the proceedings on them are not personal but in rein.</p> <p>2. The Act of 1871 is a valuable one and should be enforced according to its intent and purpose. By it ample provision is made whereby the property owner may protect himself, and if he neglects to do so it is at his own peril.</p> <p>3. Emriek v. Dicken, 11 Norris 78, followed.</p>

<p>1. It is only on the ground of fraud, accident or mistake, in the procurement of a written instrument, or fraudulent use of it afterwards, that a chancellor will lend his aid to 'a party who seeks to avoid the legitimate operation of such an instrument; and while parol evidence is admissible to prove the alleged fraud, accident or mistake, the evidence should always be clear, nrecise and indisputable.</p> <p>2. Under our peculiar system of administering equitable principles in common-law actions the judge presiding at the trial performs the functions of a chancellor, and if his conscience is not moved to grant the equitable relief sought, it is his duty to interpose, either by withdrawing the case from the jury, or by refusing to receive or enter judgment on a verdict that is contrary to equity and good conscience.</p> <p>3. Per Sterrett, J. — If upon a review of the testimony, we are satisfied that the evidence is insufficient, and that the case should not have been submitted to the jury, or that the instructions of the court below were inadequate, we should reverse.</p>

<p>Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 208. In Equity.</p> <p>Appeal of John Francies from the decree of the court refusing an injunction to remove certain obstructions from an alley-way and watercourse.</p> <p>Francies, in his bill in equity against William Shannon, in brief, complained:—</p> <p>1. That seventeen years prior to the time of filing his bill, Charles Stafford owned the land now belonging to plaintiff and defendant, at the corner of Grantham street and River avenue, in the city of Allegheny, leaving an open yard, in the rear of these houses paved with brick, for the common use of each and all, and for light and air, and with an alley-way between two of the houses to Grant-ham street, and an alley-way in the rear of said houses to River avenue, for the use of all the said houses and their tenants, and with a permanent drain and watercourse from the plaintiff’s houses into and through said alley-way, running to said Grantham street, and with a hydrant opposite said alley in said yard, for the common use of all said houses, and that the same had existed, and continued to exist, and were in use for the necessary convenience and use of said houses until that time. 2. That complainant bought and obtained a deed for part of said lot, including two houses, March 24th 1874, which deed conveyed also all improvements, ways, watercourses, privileges, appurtenances, &c. 3. That defendant held a •mortgage for $6700 on the whole property at the time of plaintiff’s purchase, and plaintiff paid him $2300 of the purchase-money for a release of said mortgage. 4. That in 1875 the defendant purchased, at sheriff’s sale, on his mortgage, the balance of said property. 5. That, until recently, the defendant had respected the plaintiff’s rights in said alley-ways, watercourse, &c., but had then proceeded to build over and obstruct and entirely destroying the same, entirely shutting in the plaintiff’s property from all access to said alley-ways or hydrant, and stopping off all flow of water by ■ said watercourse and confining it to plaintiff’s yard, and, although notified not to do so, continued to put up such obstructions. 6. The complainant sets out his irreparable damage. 7. He prays for an injunction, the removal of the obstruction, &e.</p> <p>Defendant’s answer, in substance: 1. Denies the watercourse as extending beyond defendant’s houses, and denies correctness of plaintiff’s plan as to that and the alley-way to River avenue. Avers the alley-way to Grantham street is covered. Denies the yard was left open for the common use of the house, and that the hydrant was for their common use.</p> <p>Denies that the yard was so paved as to have a regular,permanent surface drain by the alley to Grantham street, or that the way or watercourse were open, manifest, visible and permanent. 2. Admits plaintiff’s alleged purchase and deed, but denies its effect to give any easement over his property. 3. Admits receiving $2000 of plaintiff’s purchase-money, but denies that it was paid otherwise than as a payment by Stafford on the mortgage debt. 4. Admits plaintiff’s fourth paragraph. -5. Denies that he ever recognised or respected any claim such as made by plaintiff, and asserts that the plaintiff is not by his obstructions shut off from his premises; and asserts that they do not prevenfthe flow of .water from the rear of his houses, and that he could, at small expense, obtain other drainage. 6. Denies the sixth paragraph of plaintiff’s bill, and the plaintiff’s right to have relief.</p> <p>[The plan on following page will show the situation of the several lots, the brick work and the watercourse in question.] .</p> <p>The case was referred to a master, Christopher Magee, Esq., who made the following report:—</p> <p>“ That Charles Stafford, in 1860, purchased and held the property on the corner of River avenue and Grantham street, in the Fourth ward of the city of Allegheny, and now owned as two distinct properties by the parties to this proceeding. That at the time of the purchase and for some time thereafter, the. buildings on the property consisted of one frame house fronting on Grantham street, near the corner of River avenue, and two other connected frame houses on Grantham street a few feet from the northern line of the lot. That between the frame near the corner and the other two houses, there was an open space used as a yard, about twenty-eight to thirty feet in front. In this open space, Stafford built two brick houses with a three feet covered alley-way between them ; having just moved the two connected frames to the northern line of his lot and forward to the street line. In the rear of all the nouses, there was a yard about thirteen feet in width extending from the’northern line of the lot to River avenue. Stafford, as the owner of the entire property, did not separate the yards to the houses by fences, nor did he provide hydrants and separate drainage and al'ley-ways for the use of each house. He occupied one of the houses himself and rented the others, and he and his tenants used in common one hydrant which stood near the back line of the property, and opposite the alley-way between the two bricks, and in addition used at their pleasure and convenience the alley-way between the bricks and the foot-path to River avenue as a means of access to the back yards. Two privies or vaults stood on the ground, one in the rear of the two upper frame houses for their use, and the other in the rear of the lower brick house for the use of the corner frame and the two brick houses.</p> <p> </p> <p>“ The yard in the rear of all the houses except the corner frame, was paved with bricks so as to carry the water by the alley-way between the brick houses to Grantham street; a gutter extending from the lower line of the upper frame house, commencing at the foot of the conductor close to the house and running to a point about two feet distant from the rear line of the upper brick, house and thence across the lot in the rear of the upper one to the alleyway between the brick house, and thence by the same to Grantham street. This gutter was a shallow depression in the pavement, an inch or two in depth, such as is usually constructed in pavements to carry away the water falling upon the roofs of houses, when no sewerage is provided. It was not prominent nor marked in its character, but was visible to any one examining the property, and answered the purpose for which it was used.</p> <p>“This was the condition of the property in 1872 when Charles Stafford mortgaged the entire property to William T. Shannon, the present respondent, to secure the payment of $6700. On the 24th of March 1874, about one year and seven months after the making of the mortgage, Stafford made a deed, which was acknowledged on the 31st of same month and recorded on the 9th of April following, whereby he conveyed to John Francies,. the complainant, a portion of his land and houses in words following, viz.: “ All that certain lot or piece of ground situated in the Fourth ward of the city of Allegheny, &e., bounded, &c. Beginning on Grantham street, on the west side thereof eighty-four feet north of River avenue at the line of property now or formerly of Margaret Boy'd, thence by said last-mentioned line forty-five feet to the line of property now or formerly of Margaret Force, thence by the line of said property of Margaret Force thirty-one feet, thence eastwardly parallel with the said line of the property of Margaret Boyd, forty-five feet more or less to Grantham street, thence northwardly,by Grantham street and parallel with the line of the said property of Margaret Force to the place of beginning; being part of the same property conveyed by F. II. Donlan et al., to the said Charles Stafford by deed dated October 25th 1860. The privy or vault on the above described property to be removed by said grantee at his option, and the same t,o be clear and exempt from any right, easement or servitude by reason of the said privy or vault or usage thereof in favor of the said Stafford and wife -or appurtenant to the adjoining property owned by them or either of them, together with all and singular the buildings, improvements, ways, waters, watercourses, right, privileges, hereditaments and appurtenances, whosoever thereunto belonging or in any wise appertaining.’ The consideration paid by Francies was $2800, of which $2000 came to the hands of W. T. Shannon, and was entered as a credit on his mortgage.</p> <p>“ On the 7th of April 1874, W. T. Shannon, the holder of the mortgage, entered on the record .the following release of the lien of his mortgaged premises, to wit: ‘ For value received I hereby release from the lien of this mortgage all that portion of the property described therein, as follows: Beginning on Grantham street eighty-four feet north of River avenue and extending along said street toward River avenue thirty-one feet, and extending back from Grantham street of that same width forty-five feet, being the same lot which C. Stafford conveyed to John Francies, by deed dated March 24th 1874.’</p> <p>“ On the 1st day of March 1878 the said William T. Shannon, at a sheriff’s sale, on and by virtue of his said mortgage, bought the premises described in the mortgage (forty-five feet by eighty-four feet) ‘ excepting so much of the northern portion of said ground and property fronting thirty-one feet on Grantham street, by forty-five feet deep, as was conveyed by Charles Stafford and wife to John Francies, by deed dated March 24th 1874, and recorded in deed book vol. 826, page 420.’</p> <p>“ The rights and privileges conferred upon the parties, by their respective deeds, give rise to the questions in dispute in this proceeding.</p> <p>“ The complainant, in support of his claim, offered a plot made by Sarah Kephart, a witness to show in connection with her testimony, the condition of and manner in which the property was owned, prior’ to and after the purchase by Stafford. The plot, although very roughly-drawn, shows, with the testimony of the witness, the early condition of the property, and the fact that the property now presents a very different appearance. In some particulars, perhaps, after the improvements made, the same things may continue as before : it may, or it may not be that the drainage happens, from the upper frame house, to be on, or nearly on, the same ground; but the changes in the condition of the property are so radical that the master does not attach, much importance to the shape or use of the. property prior to its present shape and condition.,</p> <p>“The complainant also offered in evidence a notice dated April 30th 1877, served on the respondent, notifying him not to obstruct the use of the hydrant in the yard, as complainant claims the same to be an easement to his property. This notice was not regarded by the respondent, but the end was that the complainant put a hydrant on his own premises, for his own use, and, by permission of the respondent, connected the pipes thereof with the water pipes on respondent’s property. The master deems this course to have been an amicable adjustment of the. dispute so far as the same relates to the common use of the hydrant in the yard.</p> <p>“ The complainant proved that the privy or vault on his lot could not be cleaned, except by carrying the contents through the house, if deprived of the use of the alley-way between the two brick houses, and the outlet to River avenue by the path: and that the mode of cleaning through the house was very objectionable and inconvenient.</p> <p>“ The respondent offered in support of his denial of the claimant’s demands a receipt by Kitchen and Carson, plumbers, dated November 22, 1875, given to Wm. T. Shannon, the respondent, for t'.e cost of a new hydrant in place of the old one in dispute. The evidence connected with the bill was that Mr. Francies endeavored to pay the one-half thereof, but that Mr, Shannon, who had ordered the work, refused to have any participation by others in its payment. The bill and evidence connected therewith show that at a very early date in their ownership, the parties were in dispute as to their rights; that the least objectional of the easements claimed by the complainant, was denied by the respondent.</p> <p>“ Also, a copy of hand bill and advertisement purporting to be for the sale of ‘ two brick dwellings and one frame dwelling of six rooms, hall, kitchen and cellar.’ The master considers this paper immaterial, as it has no reference to a sale of the houses now owned by Francies ; the sale is not advertised for a time within six months of the date of Mr. Francies’s deed ; and no sale took place of the property advertised, as it is the same property afterwards purchased by Mr. Shannon, at the sheriff’s sale on his mortgage; and if any statements by the auctioneer were made relating to the common use of the alley way, it would be assumed to apply to the use by the houses between which it lay, and not to distant property not for sale, without express mention.</p> <p>“ The hand bill and advertisement by the owner of the whole estate for sale of a part, may, however, have some weight as indicating no intention in the arrangement of the parts or in their separation, to create an easement or servitude, or that any permanent disposition of the property had been made for common use: they also tend to rebut the idea of notice to Shannon thereby of any easement or claim thereof in his property.</p> <p>“ The respondent further offered in evidence a plan made by competent parties from measurements on the ground, which shows accurately the size and condition of the property and its surroundings as they are to be found at the present time. The plan shows the obstruction complained of by the erection of the brick kitchen begun about the time of the commencement of this proceeding, and completed shortly afterwards, upon the court’s refusal to grant a preliminary injunction to restrain. Prior to the building of the present kitchen, the brick houses and the frames, as indicated by the plan, were all of the same depth.</p> <p>“ The respondent also offered a plan made in the city engineer’s office of Allegheny city, from measurements made on the ground. It shows'the comparative height of the yard and the street in front of the house of Mr. Erancies, and with the oral testimony establishes the fact that a reasonable and not unusual mode of drainage for city lots can be secured over the complainant’s own lot at a cost not exceeding $261 The fall from the yard to the gutter in the street will permit the use of a drain pipe from six to twelve inches in diameter, a pipe large enough for ample drainage and to be readily kept open.</p> <p>“ The respondent proved that the contents of the privy on complainant’s lot could be removed through his house. That such mode of removal was not adopted except in case of necessity, but if needful it could be and had been done in that way.</p> <p>“ It is also reported as a fact that the respondent has not since the date of this mortgage given any recognition of the claims set up by the complainant in his bill, but on the contrary, since his purchase at sheriff’s sale, has constantly denied and refused, as matter of right, any claimed privileges on or over his property, and on one occasion prior to or about the time of the purchase by Mr. Erancies, refused him any use of the alley-wav, a privilege at that time requested for his present property.</p> <p>“ On these facts the complainant asserts in his bill the right to the following easements in the property of the respondent, and that they have been unlawfully obstructed. They are separately stated by the master as follows, to wit:—</p> <p>“ 1. That the back yard of the four upper houses from' River avenue was paved with brick, and was always kept open for the common use of each and all, and for light and air necessary therefor.</p> <p>“ 2. That opposite the alley between the second and third houses of the respondent, was placed and has ever since remained, a hydrant supplying water for the general and common use of the tenants of all said houses.</p> <p>“ 3. That the said yard was so paved, and has ever since the building of said houses to this time, been so kept that the third, fourth and fifth houses from said River avenue had a regular and permanent surface drain and watercourse and right of way and footpath open, visible and permanent in the plain sight of each and all persons coming to the premises, close in the rear of said houses down to, into and over said alley-way and watercourse between said second and third houses out into Grantham street, the right to which, and to have and maintain the same for the convenience and as necessary to said houses has at all times existed and still exists in full force as to all the owners and tenants thereof.</p> <p>“ 4. That a right of way from said upper houses, along in the rear of all said houses, and parallel with Grantham street, down to River avenue, as'the only outlet direct into said avenue, has, at all times, existed and been maintained for the use of said houses ever since their erection, until the present time.</p> <p>“ The law governing easements, applied to the facts in this case, must determine the rights of the parties, unless the bill be dismissed, as urged by the respondent, for the reason that the rights asserted have not been first adjudicated at law, a question which will be referred to hereafter.</p> <p>“ The doctrine of easements and servitudes seems to be well settled in the following particulars, viz.:—</p> <p>1. “ That all easements are interests in land, and depend for their creation on a grant or on prescription, which presumes a grant; and that a parol license is insufficient for the purpose of their creation. That grants are either express or implied.</p> <p>“ 2. That easements are of two classes, viz.: continuous, those of which the enjoyment is or may be continual, without the interference of man, as a running stream, a water spout, or the right to light and air, and discontinuous, such as can only be had by the interference of man, as rights of way, or a right to draw water. _</p> <p>3. That, as a general rule, continuous easements pass, as implied grants by construction of law, and discontinuous easements do not.</p> <p>“ 4. That all easements, of whatever class, which pass by implication or construction of law, must be necessary, apparent and permanent in their' character : that a temporary provision or arrangement made for the convenience of the entire estate, will not constitute the degree of necessity and permanency required to burden the property with a continuance of the same when divided or separated by conveyance to different parties.</p> <p>5. “ That no easements in one piece of land can be said to be appurtenant to another by reason of any use made of the two so long as they both belong to the same person. But privileges have been held to pass as incident to the same, and a correspondent burden imposed upon the other from the nature of the estate, the management of the parts of the estate, and the degree of necessity •there is of giving such a construction to the conveyance, in order to give it a reasonable effect.</p> <p>“It will be observed that all the easements claimed by the complainant and heretofore stated, with the exception of the “ permanent surface drain and watei'course,” and right to “light and air,” belong to the class designated as discontinuous easements, and are not incident or appurtenant to a grant, by implication or construction of law, unless there is necessity from the nature of the estate, and the management of its parts, that such a construction to ■ the conveyance should be given in order to give it a reasonable effect.</p> <p>“ It will be observed also in this case there is no express grant, no right by prescription, and no ‘ way of necessity’ claimed; whatever easements the complainant may have are acquired from the conveyance of Stafford and wife as incident thereto by implication or construction of law, he takes only such right and privileges as the law in the absence of express grant will confer.</p> <p>“ The alleged facts upon which the complainant bases his right to the easements claimed are, that the yard in the rear of the four upper houses was paved with brick, and left open for the common use of all the houses; that one hydrant supplied water for the general and common use of the tenants of all the houses; that the said yard has been so kept that the complainant’s houses had a regular and permanent surface drain and watercourse, and right of way between the brick- houses to Grantham street; that a right of way to River avenue has at all times existed and been maintained for the use of said houses.-</p> <p>“ Leaving out of consideration the allegation of the existence of a ‘permanent drain’ and admitting all the other allegations to be true of the manner in which the owner of the entire property and his tenants used the same, no easements or servitudes are thereby created. The creation of easements or servitude by the owner of the whole estate, which attach as implied grants to the parts when separated, depends not upon common use by the owner and his tenants, but upon the arrangements made of the parts whereby the easements and servitudes become necessary to give reasonable effect to the different conveyances.</p> <p>“ The broad principle upon which such easements are created or pass by implication is that the grant of a thing carries all things as included, without which the thing granted cannot be enjoyed, things incident and directly necessary to the thing granted.</p> <p>“ The easement must be necessary, and the degree of the necessity aS indicated by the authorities must be greater than is shown by provisions and arrangements made for the convenient enjoyment of the property as a whole.</p> <p>“ The decision of the courts referred to by counsel wherein discontinuous easements have been held to pass as appurtenant with out express grant are such as have no doubt of the owner’s intention in the arrangement and use of the parts to create a permanent easement and common use for the enjoyment of the several parts of the property into whomsoever’s ownership they may come, such as alley-ways 'between or abutting on the several parts or where houses in their construction require necessary support from each other; but the cases do not seem to extend the doctrine beyond easements or servitudes of this character. The master has found no cases.where the doctrine has been extended beyond such manifest and intended common use and where the benefits and burdens consequent appear to be clearly mutual.</p> <p>“ In the opinion of the master, the use by the owner and his tenant of the yard in the rear of his four or five houses, paved and open for all; the common use of one hydrant on the premises, with city water-mains within a few feet of each house for separate connection; the common use of one alley-way to Grantham street between the two brick houses and a foot-path to River avenue, neither of which abutted immediately on the property of the complainant, nor were essential for the enjoyment of the property as ‘ ways of necessity’ cannot be taken to be an apparent necessity and permanent dedication to a common use in such manner as to subject the property to a continuance of the same condition in the hands of separate owners; the use in the way shown is such as would reasonably be adopted by one owner as matter of convenience, but not such as would be reasonably made with a view to separate ownership and where more than one person had control.</p> <p>“ It is contended by the complainant that it is necessary that the-' alley-way should pass as an implied easement, because of the great disadvantage resulting to his property from its loss as a means of access to the yard for the purpose of cleaning, the vault or privy on his premises. The only way by which this work can be done without the use of the alley-way or foot-path, is to pass through the-house on his own ground, or perhaps to sink the vault to the gravel. These difficulties or disadvantages, however great, ought to be provided for by express grant, if the owner of the vault or privy expects or intends to use other ground than his own to surmount the difficulties. There is, however, a stronger argument to-show that it was not intended as a burden on adjoining property, to be found in the deed itself; the deed provided for a separation of the properties so far as the vault or privy is concerned ; and the difficulties of the care of such vault and its cleaning cannot legitimately be made as a reason for the creation of a servitude upon the respondent’s property. It is a fact in' evidence that the vault can be cleaned through the complainant’s own property, not a preferable mode where other means can be had, but still a way in the event of necessity and such as sometimes has to be adopted; it is an inconvenient way it is true, but to the other property the use of the alley for the purpose is also objectionable and inconvenient, the ■ only difference is in the degree; and under the general rule that each property must take care of itself, it.seems but right that the complainant’s property should bear this inconvenience.</p> <p>“ What has been said has been more particularly suggested in the consideration of the discontinuous easements, although applicable as well to continuous easements. We come now to consider the right of the complainant to the continuous easements claimed. They are 1, the right to ‘ light and air,’ and 2, thé right to ‘a regular and permanent -surface drain and watercourse ’ over the respondent’s lot and by the alley-way between the brick houses to Grantham street.</p> <p>“ The first claim, that of light and air, has not been shown to have been effected further than is the case when any building has been erected on the line of the property, without interference in any respect with windows: it cannot be said to be an interference with light and air improperly made, unless any improvement whatever of a vacant lot can be said thereby to unlawfully interfere with light and air; in this case it does not become needful to determine how far the doctrine with reference to “ light and air ” in this state has been extended, or whether applicable at all. Under any view of the facts, it could not be said here that any unlawful interference has occurred.</p> <p>“The second claim, that of ‘ a regular and permanent surface drain and watercourse,’ is an easement which has been held to pass by implication. The evidence in this case shows the claim to be a surface drain, and not for what is termed and known as a regular, watercourse, which implies a constantly running stream of water.</p> <p>“ The character of this regular and permanent surface drain ‘ has been given;’ it- was a shallow gutter in the pavement, the least and most inexpensive provision that could be made to carry off the water : it answered the purpose for which it was used, and may be said to have been visible to any one examining the property.</p> <p>“ The easement, however, to pass as an impliéd grant, must possess the additional qualities of necessity and permanency.</p> <p>“If it was not necessary, it would not pass as incident to the conveyance. The fact that it is a more convenient means of drainage than can be had over the complainant’s own property, cannot be said to constitute the degree of necessity required, the mode of drainage adopted over the'surface by a gutter, involving the adjoining property, ought not to be considered as a necessity when the same end can he attained by the complainant through his own lots at a trifling expense, and in a way not at all unusual in city property . It is preferable, and the law so considers it, that the ownership should be full and complete and untrammelled with implied burdens, and only when imperative necessity demands otherwise is a different doctrine permitted to prevail. Here the relative height of the yard and the gutter in Grantham streets admits of drainage by a pipe from six to twelve inches in diameter, at a cost of from $20 to $25. Witnesses differ in their opinion as to which is the best mode for drainage, on or under the surface ; but the.fact seems to be established, from the measurements taken, that a drain through the cellar, with reasonable fall, can be constructed on the complainant’s own premises. On the ground of necessity, the master does not deem the claim sustained.</p> <p>“ Let us then see whether it can be sustained on the plea of permanency. As the owner of the entire property, Charles Stafford could not well have made any provision for taking away the water and do less than was done; it certainly was the least expensive mode he could adopt, and if it had been his proposed object to make a temporary arrangement and not a permanent one, he could scarcely have done otherwise than he did do. If he had constructed under drainage, and by connecting pipes with the several houses, thereby manifested an intention to arrange for all the houses in a way not temporary merely, such drainage under the decisions might be deemed to be permanent in its character and pass with the land. But the manner of drainage used here was a. perfectly natural one for the owner of the entire property to make a temporary provision, and for his own convenience, but not very likely to be adopted as a permanent arrangement for a divided estate.</p> <p>“ There are some general reasons why the easements claimed should not pass, for instance: The deed to Mr. Francies provides for an entire separation of his property from common use by Stafford, and it seems but reasonable that, without reservation, an entire separation of the two properties was intended. It is not likely that, when the question of easements and servitudes was being provided for in the deed, entire silence would have occurred with reference to the complainant’s claims, if they had been contemplated and intended as part of the grant.</p> <p>“Again, the mortgage to Mr. Shannon antedates the deed to Mr. Francies several years, and the sale by the sheriff would pass the title held at the date of the mortgage, and the mortgaged premises could not be encumbered or burdened in any way to the mortgagee's disadvantage unless by his consent, and that he has neither done by the terms of his release nor by parol agreement: but on the contrary he asserts that if any such claim had been intended or asserted as a right he would have refused to release at all. The money paid and credited on the mortgage at the time of the release cannot be said to be more than a fair proportion of the mortgage-debt for the portion of ground released, and the payment furnishes no evidence that it was the intention to make better one portion of the ground at the cost of the other, for a consideration paid therefor.</p> <p>“ Again, the easements claimed are too many and affect too seriously the use and improvement of the property of the respondent, and are too important to the complainant to have been intended to be conferred by mere implication, or such as a vendee would be willing to purchase and pay for without their express mention in the deed.</p> <p>“ The view of the law taken by the master does not, in his opinion, conflict with the authorities cited by counsel.</p> <p>“ The authorities relied upon by the complainant are: Kieffer v. Imhoff, 2 Casey 488; Cannon v. Boyd, 23 P. P. Smith 179; Worne v. Marsh, 6 Phila. 33 ; The Church v. Yoneida, 6 Id. 557; Fidelity Building Association v. Getty, 33 Leg. Int. 238; Phillips v. Phillips, 12 Wright 178; Lampman v. Milks, 21 N Y. 505. Without entering into a discussion of all these cases, one tha-t of Kieffer v. Imhoff may be considered as substantially giving the rulings in the other cases ; the facts in each case may differ somewhat, but they all refer to controversies in reference to the use of the alleyway between or abutting on the separated houses or lots, or some other such manifest and permanent arrangement of the property.</p> <p>“Kieffer v. Imhoff was a dispute by adjoining lot-holders in reference to the common use of an alley-way between two adjoining houses erected on these lots. In the opinion of the court, it is said that, ‘ upon a severance of the estate by alienation of part of it, the alienee becomes entitled to all continuous and apparent easements which have been used by the owner during the unity of the estate, and without which the enjoyment of the property could not be fully had. * * * It is true that mere casual acts, * * * which are neither manifest to the eye nor designed to be permanent, do not fix the quality of any portion of his estate, but it is otherwise where the arrangements and dispositions are permanent and manifest. * * * The buildings on each side had been manifestly arranged with reference to the privileges enjoyed in reference to the alley.’</p> <p>“ The court refers to a fact which would seem in the case reasonably to indicate the intention to confer the easement as a designed and permanent arrangement in that it is sai-d ‘ that the right of way was expressly annexed to the Imhoff lot by deed in 1803, and afterwards recognised in 1878.’</p> <p>“ The case seems to establish the doctrine that easements, to pass by implication, must be ‘ continuous and apparent easements,’ ‘designed to be permanent,’ ‘without which the enjoyment of the several parts could not be fully had ;’ ‘ that the arrangements and dispositions must be permanent and manifest,’ and holding that an alley-way between buildings is manifestly for common use by the two houses between which it is located; but I do not know that the doctrine has been applied to any less manifest or unquestioned design in arrangement.</p> <p>“The authorities presented by the respondent, so far as they relate to the matter determined in those already cited, do not show any conflict in principle.</p> <p>“ Such, for instance, the case of Howell v. McCoy, 3 Rawle 256, to the effect that what is necessary passes, what is convenient does not; such the master understands to be the doctrine of all the cases that conveniences of use will not create easements. The other cases cited b,y the respondent, viz.: Collam v. Honker, 1 Rawle 108: Stuyvesant v. Woodruff, 1 Zabriskie 133; Johnston v. Jordon, 2 Metcalf 237, 238; Fetters v. Humphreys, 3 C. E.' Gr. 260 ; Same v. Same, 4 Id. 472; Maynard v.' Esher, 5 Harris 222, have reference to matters not questioned and need no special mention.</p> <p>“ The case of Adams’s Appeal, 7 W. N. C. 86, cited by respondent, is the last case on the subject decided by the Supreme Court. By reference to the case it will be seen that while Kieffer v. Imhoff and Connor v. Boyd are mentioned and sustained, it was held ‘ that the easement claimed by the plaintiff as a permanent easement was evidently a mere temporary arrangement for the accommodation of tenants.’ The facts show apparent necessity, design and arrangement of the parts, with a fenced way leading from a door in the house, and yet the court say under the cases recited this easement does not pass, and the bill of plaintiff was properly dismissed. This case indicates a disposition on the part of the Supreme Court not to extend the doctrine of Kieffer v. Imhoff, and similar cases,' beyond the facts exhibited in that case, and to confine implied grants to instances of absolute necessity -and unmistakable design in the arrangements of the parts as a permanent condition for the property, either as a whole or in divided, parts.</p> <p>“ The respondent asks, as the master has intimated heretofore, that the bill be dismissed, ‘because such a bill cannot be maintained until the rights asserted have been adjudicated at law,’ and cites in support of the demand Rhea v. Forsyth, 1 Wright 503; King v. McCully, 2 Id. 76; Howell v. McCoy, 3 Rawle 256; Bentz v. Armstrong, 8 W. & S. 40; Scott i>. Allender, 23 Pitts. Leg. Jour. 74. The doctrine established by these cases is, that ‘ the right should be clear to warrant a decree to be followed by injunction. * * * If doubtful this of itself would be sufficient reason to induce a chancellor to pause until the right be ascertained at law.’ But in the present instance, the view taken by the master is that the material facts upon which the complainant bases his claims are not denied or controverted. The evidence showing that the dispute is not so much upon the facts as upon the conclusions of law therefrom.</p> <p>“ The master has therefore determined the case upon the facts not in doubt in his view, and accordingly in conformity with the order of his appointment herewith reports the form of a decree to be made by the court in the premises.”</p> <p>Exceptions were filed to this report, which the court overruled, and dismissed the bill, from which decree this appeal was taken.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 147.</p> <p>In the court below, this was a petition by J. M Faas, presented to the court and setting forth that the late Harry Woods, while sheriff of Allegheny county, contracted with your petitioner to furnish bread for the prisoners in the jail of said county, and that under said contract Woods, at the time of his death, was indebted to petitioner in the sum of $1507, bread having been furnished to that amount. That petitioner received from the estate of the said Woods- the sum of $651.52, leaving a balance of $855.48 due for bread furnished as aforesaid, which balance the estate of the said Woods is insufficient to pay. Your petitioner further represents that in view of said insufficiency of the estate of Harry Woods, by an Act of Assembly, approved the 30th day of March 1870, the controller of said county was authorized and required to examine the claim of petitioner against the estate of the late Harry Woods and ascertain the balance due him, with interest, after receiving his proper dividend from said estate, and to certify the balance so found to the commissioners of said county, whose duty it shall be to direct the same to be paid as other claims against the county are paid. That said controller has refused and does still refuse to examine said claim and certify the same as provided for in said Act of Assembly, although said controller has been requested so to do.</p> <p>Your petitioner therefore prays that a writ of mandamus may issue to said controller, directing him to examine the claim of your petitioner and certify the same to the commissioners of said Allegheny county according to the provisions of the Act of Assembly aforesaid.</p> <p>Henry Warner, the controller, filed an answer to said petition, which averred that the county of Allegheny did not contract the debt mentioned in the petition, and was not liable for the payment of the same; that Woods, who contracted the debt, was the sheriff of the county, and that about the 27th of November 1861, the 'commissioners of the county entered into a contract with him by which he agreed to board all court prisoners then imprisoned or who might thereafter be imprisoned (during his term of office) in the jail of the county at so much each per’day; that said board included bread as well as other food to be furnished prisoners, and that in pursuance of said contract the said county paid the said Woods in his lifetime and his administrator after his death, in full for boarding said prisoners from the 27th of November 1861 to the 14th of August 1873, the day of Woods’s decease; that the said county never was legally liable (to the plaintiff) for the debt mentioned in said petition, and further that the said county paid for all the bread (the consideration of said debt) long before the Act of Assembly mentioned in .said petition, and she .was therefore under no legal nor moral obligation to pay again for the same, either at, before or since the passage of said act; and respondent, for himself and the county aforesaid, therefore denies the right and power of the legislature to pass the said act, and believes the same under the foregoing state of facts, to be unconstitutional and void, and he therefore refuses to obey the mandates of the same, and further that said claim of plaintiffs was barred by the Statute of Limitations, before the passage of said Act of Assembly mentioned in said petition, and the county interposes said Statute of Limitations as a further objection to the payment of said claim.</p> <p>By agreement of counsel, the petition was treated as a writ of alternative mandamus, and the answer to the petition as an answer to this writ. The petitioner demurred to the answer, and the court, after argument, and without filing an opinion, refused the mandamus, which action was assigned for error by Eaas, who took this writ.</p>

<p>Certiorari to the Court of Quarter Sessions of Allegheny county.: Of October and November Term 1880, No. 254.</p> <p>In the court below this was an appeal by Robert Peet from the decision of the mayor of the city of Pittsburgh.</p> <p>Robert Peet was a member of a committee appointed by a literary association to which he belonged, for the purpose of making necessary arrangements for the delivery of a lecture by B.F. Underwood, Esq., at Library Hall, Pittsburgh, on the evening of May 11th 1879, at 7.30 p. M. The title of the lecture was, “ If Not Christianity, What ?” An admission fee of twenty-five cents was charged. No license was obtained from the mayor for the right of delivering such lecture, although an application -was made for a license, but refused by the mayor.</p> <p>On May 12th 1879, information was made against Peet before the mayor of Pittsburgh, and a warrant issued for his arrest, the charge being “for unlawfully exhibiting an entertainment and lecture by one B. F. Underwood, at Library Hall, in said city, on the evening of May 11th 1879, without first having received a license or permit from said mayor, contrary to a city ordinance passed in pursuance of an Act of Assembly of the legislature of Pennsylvania.” After a hearing the defendant was “ duly convicted,” the mayor being of the opinion “ that the lecture, delivered on May 11th 1879, by B. F. Underwood, at Library Hall, "was an exhibition,” &c., &c., and imposed on the defendant a fine of “ twenty-five dollars and costs, or in default of payment thereof, to be committed to the Allegheny county workhouse for a period of twenty days.” The defendant paid the fine. He then applied to and obtained from the Court of Quarter Sessions of Allegheny county the right to file in said court an appeal from the summary conviction of said mayor.</p> <p>On March 17th 1880, the court below, White, A. L. J., filed the following opinion:</p> <p>“ The Act of April 6th 1867 gave the city ‘power to regulate, license or prohibit all theatrical exhibitions and public shows, and all exhibitions,' of whatever name or nature, for which money or any other reward is in any manner demanded or received. Provided, that lectures on historic, literary or scientific subjects shall not come within the provisions of this section.’</p> <p>“The ordinance of the city prohibited all such exhibitions without a license first had from the mayor, and for a violation of the ordinance imposed a fine not exceeding $50.</p> <p>“ The appellant, on the 15th May 1879, was fined by the mayor $25 and costs, $3.40, for a violation of the ordinance. The alleged violation was an exhibition or entertainment by B; F. Underwood, on Sabbath evening, May 11th 1879, in Library Hall, under the auspices of the appellant and the Liberal League of Pittsburgh, at which admission tickets were sold.</p> <p>“ It is claimed by the appellant that the entertainment was simply a lecture of a scientific, literary or historic character, for which no license was required under the proviso of the act.</p> <p>“ This is a question of fact to be determined by the evidence. The mayor, at the hearing before him, heard the evidence and the argument of counsel, and decided it was not such a lecture, but was of such character as required a license under the Act of Assembly and the ordinance of the city. We have no evidence on the subject except what is set forth in the mayor’s transcript. Whether it contains all the evidence heard by the mayor we are not informed. He is not bound to set forth and return to court all the evidence. In the absence of evidence to the contrary it is to be presumed he had sufficient evidence to justify the finding of the fact.</p> <p>“ In the transcript it appears that J. C. Kramer was sworn for defendant, and testified that he was the president of the League, and heard the lecture. He says : ‘The subject was to teach and enlighten the people as to the character of Christianity and as to what materialists had to offer in its stead and to show the superiority of the materialistic doctrine: If not Christianity, what ? In the course of the lecture there was a discussion of the doctrine of evolution as taught by modern scientists.’</p> <p>“ That may be all true, and yet the lecture may have been an ‘ exhibition’ in the meaning of the act. The leading object may have been to make money and give amusement, like all theatrical exhibitions, by a display or exhibition of acting or oratory.</p> <p>“ This view of the case is confirmed by the admissions before the mayor as set forth in the transcript, ‘it is admitted the defendant was one of the committee of arrangements in procuring the attendance, and carrying out the lecture delivered by B.'F. Underwood,’ as set forth in the hand-bill: ‘Library Hall. B. F. Underwood will deliver his famous lecture, entitled If not Christianity, What ? under the auspices of the Pittsburgh Liberal League, Sunday evening, May 11th 1879, at 7| o’clock. Admission 25 cents; no extra charge for reserved seats. Box open at hall Saturday and Sunday.’ It is also set forth as a conceded fact, ‘that application was made to the mayor for license or permit for such entertainment, to be exhibited on Sunday evening, May 11th 1879, and the issue of which was refused for said Sunday evening.’</p> <p>“ The fact of such application, and the terms in which it was made, ‘ for such entertainment to be exhibited,’ are strong evidence that the parties applying considered it came within the class of entertainments or exhibitions requiring a license.</p> <p>“Upon the evidence before us we cannot say the fine was improperly imposed. The appeal is therefore dismissed at cost of appellant.”</p> <p>Peet then took this writ and alleged that the court erred, 1. In not disposing of the appeal de novo. There having been no testimony offered by the prosecutor, as is evident from the record, the court should have reversed the judgment of the mayor, as the prosecutor was bound to establish his case de novo, and the court in an appeal could not pass on the merits of the case on the faith of the testimony set forth on the mayor’s transcript, even though such transcript contained all the evidence submitted, which it did not. 2. The decision of the court should have been in the form of an original judgment, and should have specified that the offence committed was not within the exception of the city ordinance, under which the conviction was had, to wit, was not a “ lecture on a historic, literary or scientific subject.” 3. The act of defendant set out on the record was not contrary to law. 4. The judgment entered was not original.</p>

Appeal, from the decree of the Court of Quarter Sessions of Philadelphia county: Of January Term 1878, No. 185. Appeal of S. P. Milligan from the decree of the court setting aside the return of said Milligan as councilman from the Thirty-first ward of the city of Philadelphia, and adjudging that one S. A Miller was the duly elected candidate.

<p>1. Where officers for the same office are to be chosen for different terms, the ballots must specify the term for each person for whom they are cast.</p> <p>2. In an election in which four school directors were to be elected in a ward, two for the term of three years, one for two years and one for one year, the “stickers” on certain tickets did not specify the term for which the candidate was voted for, nor did they by their position on the ticket designate the same. Held, that they could not be counted.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 172.</p> <p>Covenant by Howard Morton against George Reiter, Jr., executor.</p> <p>The following was the affidavit of claim: That on the 18th of August 1877, affiant and said defendant entered into a copartnership, under the firm name of Reiter & Morton, and at the same time executed articles of copartnership under their respective seals, bearing the same date; that the business of the firm was the manufacture of chain and cable and-miscellaneous articles in iron. Said partnership was to continue during the term of the patents under which they were to manufacture, and being for a term of not less than fifteen years from the above-mentioned date, viz., 18th of August 1877. That said firm engaged in business from said date last mentioned, and continued in business as a firm until the 14th of October 1878, when said defendant, without any just cause or reason, and without _ any breach of duty on part of plaintiff to justify the same, wrongfully dissolved said partnership, contrary to his covenants contained in the aforesaid articles of partnership; that plaintiff had given defendant no cause for such action on his part, but had in every way conducted himself in a proper manner, and had complied with the said articles of partnership and his covenants therein contained; that the business of said partnership was a valuable and increasing one ; that by reason of the premises the said plaintiff has sustained great loss and damage on that account, in the sum of $50,000, which he says is, to the best of his knowledge and belief, a fair estimate of the damages so sustained by him, as aforesaid, all of which he deposes to the best of his knowledge and belief.</p> <p>The first count of the declaration alleged: “And although the said plaintiff hath well and truly performed and fulfilled all and singular the covenants and agreements in said article mentioned on his part to be done and performed, yet protesting that the said defendant hath not performed or fulfilled anything in the said articles of agreement mentioned on his part and behalf to be done and performed, the said plaintiff, in fact, says that after the making of the 'said articles, and whilst the said plaintiff and the said defendant were carrying on the business of the manufacture of chain, cable and miscellaneous articles in iron, the said defendant heretofore, to wit, on the 4th day of October, A. D. 1878, at Pittsburgh, to wit, at the county aforesaid, dissolved the said partnership and refused,” &c.</p> <p>And in the second count: “And protesting that the said defendant hath not performed or fulfilled anything in the said articles of agreement mentioned on his part and behalf to be done and performed, while the said plaintiff hath well and truly performed all and singular the covenants and agreements in said article mentioned on his part to be done and performed, the said plaintiff in fact says that,” &c.</p> <p>The defendant pleaded covenants performed, covenants performed absque hoe, payment with leave.</p> <p>Reiter filed the following affidavit of defence: “ I have a just and legal defence to the whole of the plaintiff’s claim. I did enter into partnership with the plaintiff, under the firm name of Reiter & Morton, and I faithfully performed all my covenants contained in said agreement and my partnership duties, but the plaintiff violated his covenants as contained in said agreement and failed in his partnership duties, inter alia, in this, that notwithstanding the needs of the business required the plaintiff to pay up his share of the capital, viz., $4000, and he was called upon so to do, yet he paid in of his capital $2000 only, and he diminished the same by drawing out $202.36 ; so that the entire capital paid in by him amounted to on the 14th October 1878 $1797.64 only, and prior to and up to said date the plaintiff neglected and refused to pay in the balanee of his capital. That on or about the 21st August 1878, the plaintiff, in violation of his duties to the firm and in bad faith to the firm, delivered to Wilson, Walker & Co. manufactured chain belonging to the firm of the value of at least $1394.77, and agreed that said parties might take the same at $818.67, and I charge that in said transaction the plaintiff acted in violation of his copartnership duties.</p> <p>“ The plaintiff, in violation of article 7 of the co-partnership agreement, intermeddled with the financial business of the firm to its detriment, in one instance at least, to wit, in the case of an account owing the firm from Lindsay & Sterrett, the plaintiff made a collection for the firm of which he made no return, and in other cases he collected accounts due the firm, which, under the articles of copartnership, he had no right to collect, and appropriated the same in part to his private use. Prior to the 14th of October 1878 irreconcilable differences had arisen and existed between plaintiff and myself, which rendered it impossible to carry on the business of the firm.</p> <p>“ On the 14th October 1878 I caused to be served on the plaintiff a notice, of which the following is a copy:</p> <p>“ To Howard Morton :</p> <p>“You are hereby notified that on account of your neglect and refusal to pay in your share of the capital stock, in accordance with our articles of copartnership, and other breaches by you of your partnership duties, I decline any further to continue the copartnership heretofore existing between you and myself under the firm name of Reiter & Morton ; and said partnership is hereby declared to be dissolved. ■ George Reiter.</p> <p>“Pittsburgh, Pa., October 12, 1878.</p> <p>“I aver that the statements contained in the said notice are true, and that I have good cause for so dissolving said firm. I expect to show upon the trial of this case all and singular the facts herein-before set forth. I deny that said partnership business was a' valuable one, and I also deny that the plaintiff sustained great loss and damage, or any loss and damage, by reason of my dissolving the firm as hereinbefore set forth.”</p> <p>Reiter followed the notice contained in the above affidavit of defence by filing a bill in equity praying for a dissolution of the partnership and the appointment of a receiver. After answer upon hearing the court decreed a dissolution, and appointed a receiver under whose direction the affairs of the firm were finally adjusted. Morton then brought this action of covenant to recover damages for the wrongful dissolution of the co-partnership before the time limited in the articles and recovered a judgment for $2000. To this judgment this writ of error was taken, and the various questions raised will be found set forth in the following assignments of error.</p> <p>1. The court below, Bailey, A. L. J., erred in their answer to the fourth- point of defendant as follows :</p> <p>That' the burden of proof is upon the plaintiff to satisfy the jury by the weight of the evidence, 1st. That he has faithfully kept and performed all the covenants on his part to be kept and performed ; and 2d. That the defendant has, without cause therefor on the plaintiff’s part, neglected to keep and perform his covenants before he can recover in this case; and that if the plaintiff has not satisfied the jury of both these facts their verdict must be for the defendant.</p> <p>Ans. “ It is not necessary in the first instance that the plaintiff shall have satisfied you that he has faithfully kept and performed all the covenants of the agreement on his part to be kept and performed ; and second, it is not necessary that the plaintiff shall have satisfied you that the defendant has, without cause therefor on the plaintiff’s part, neglected to keep and perform his covenants before he can recover in this case. But it is necessary that the defendant show you that, without cause on his part, the plaintiff neglected to keep his covenants of the agreement.”</p> <p>2. In their answer to the fourth point submitted by the plaintiff as follows: ■</p> <p>If the jury believe that the defendant dissolved the partnership without justifiable cause — and the burden of proof is on the defendant to justify — then their verdict may be for the plaintiff.</p> <p>Ans. “Affirmed.”</p> <p>3. The court erred in their answer to the second point presented by the defendant, which point and answer are as follows :</p> <p>If the jury believe from the evidence that the plaintiff, Morton, did not contribute to the capital stock of the partnership of Reiter & Morton his proportionate share, as he agreed to in the partnership article in evidence, ‘ as the needs of the business ’ of said firm required, that was cause sufficient to authorize the defendant, Reiter, to dissolve the partnership, and the plaintiff cannot recover in this action.</p> <p>Ans. “ Aflirmed : if you find that plaintiff’s neglect measurably defeated the ends of the partnership.”</p> <p>4. The court erred in admitting the offer of the plaintiff of a certain portion of the affidavit of- claim, and in overruling the objections of defendant below thereto, and in permitting to be read to the jury a portion of a sentence from said affidavit. The said action of the court below will appear from the following, viz.:</p> <p>“ Plaintiff’s counsel offer in evidence the allegation in the affidavit of claim, and admitted by the affidavit of defence that this partnership was dissolved by the act of George Reiter, the defendant, on October 14th 1878, viz.: When said defendant, without any just-cause or reason, and without any breach of duty on the part of plaintiff to justify the same, wrongfully dissolved said partnership contrary to his covenants contained in the aforesaid articles of partnership.”</p> <p>Objected to, first, because there is no such independent allegation in the affidavit of claim, nor is the inference, as offered from the affidavit, to be found therein in such shape that it may be submitted to the jury as an independent instrument of evidence, and secondly as incompetent.</p> <p>Objections overruled.</p> <p>5. The court erred in its answer to the first point submitted by the defendant as follows:</p> <p>That the partnership agreement in evidence is, under the facts in evidence, not only the best, but the sole evidence of the contract between the plaintiff and the defendant; and the evidence of Howard Morton as to an agreement made a week before the said contract of partnership is incompetent to vary the terms thereof, and must be disregarded by the jury altogether.</p> <p>Ans. “ In the view I take of the case these two propositions are not inseparable, and I affirm the first clause of the point and refuse the remainder.”</p> <p>. 6. The court below erred in its ruling upon the admission of evidence offered by the plaintiff, as appears by the offer, ruling, and evidence as follows:</p> <p>“ Howard Morton, the plaintiff, recalled.</p> <p>“ Q. The article of agreement between you gentlemen has already been shown you, wherein you agreed to pay $4000 into the capital stock and Mr. Reiter agreed to pay $8000 in. Now, state whether before and at the time that agreement was made anything was said or agreed upon between yourself and Mr. Reiter with reference to where you were to receive the money to pay into the capital stock. And whether or not it was understood and agreed between you that your money for the capital stock was to come out of the money which Reiter was to pay you for the interest you conveyed to him in these patents ?</p> <p>“ Objected to.</p> <p>“Mr. Watson. — The purpose of the question in connection with other testimony to be offered is to show that the contingency upon which this witness was to contribute a certain amount for the capital stock did not arise, and for the further purpose of showing, in connection with other evidence to be offered, a prevention of the performance of the agreement by the defendant.</p> <p>“Objected to. First, because the offer does not tend to prove the purpose for which it is alleged to b.e offered. Secondly, because it is incompetent and irrelevant. And, thirdly, because, if competent or relevant at all, it belongs to the plaintiff’s case in chief and not in rebuttal. Objections overruled.”</p> <p>7. The court below erred in its answer to the second point presented by the plaintiff, which point and answer are as follows:</p> <p>If the jury believe that, by agreement between Morton k Reiter, Morton was not to pay in after the payment of $2000 the balance of his contribution to the capital stock until after Reiter had paid his, then the failure of Morton to raise enough money to pay the Wilson, Walker k Co. note would not constitute a cause to justify the dissolution.</p> <p>Ans. “ That point is affirmed. If that was the agreement between the parties, then the mere failure on the part of Morton to raise money to pay the note to Wilson, Walker k Co. would not be enough to justify a dissolution of the firm.”</p> <p>8. The court erred in its answer to the third point submitted by the defendant, which point and answer are as follows :</p> <p>If the jury believe from the evidence that Morton surreptitiously and without the knowledge and consent of his co-partner, Reiter, turned over to Wilson, Walker & Co. chain belonging to the firm at prices far below the market rates which at the market rates was more than sufficient to pay any claim Wilson, Walker & Co. had against Reiter & Morton, and turned over at the same time checks which said Morton had no authority to sign, and received for his own use in return from said Wilson, Walker & Co. money belonging to the firm, such conduct on his part was a fraud on his co-partner, Reiter, which justified him in dissolving said firm, and bars the plaintiff’s right to recover in this action.</p> <p>Ans. “ We come now to the other question in the case which is covered by the third point of the defendant and the first point of the plaintiff.</p> <p>(The court here read the third point of defendant and first point of plaintiff.)</p> <p>“You have in these two propositions the antagonistic positions assumed by the respective parties on that question. On the one hand it is maintained that Morton surreptitiously, meaning thereby something more than without the knowledge and consent of his co-partner, made this transfer; that it was made at a price below the market rates; that the excessive amount of chain was taken ; that checks were turned over to Wilson, Walker & Co. which Morton had no authority to sign (which is not a very material matter as far as Wilson, Walker & Co. are concerned), and received for his own use in return from Wilson, Walker k Co. money belonging to the firm ; that such conduct on his part was a fraud on his co-partner, Reiter, which justified him (Reiter) in dissolving the said firm.</p> <p>“ If you believe that this was a fraudulent act on the part of Mr. Morton, without any cause or excuse, but coming from his own disposition to misconduct himself in his relations with his partner (which ought to have been relations of confidence and trust), and ■with intent to take an unjust and unfair advantage of Ms partner, Mr. Reiter, by compelling him to advance money when he ought not to have done so ; and there was generally misconduct on his part -without any sufficient cause or occasion, taken in connection with his failure to pay in the money which he ought to have paid on his partnership accounts ; and if you find that ‘ necessities of the business required it,’ and that that fact was known to him, then I would say Mr. Reiter was justified in dissolving this co-partnership ; that is, if the relations of the partners were such that a court in equity ought to have decreed a dissolution.</p> <p>“ But you must find these facts in order to meet the necessities of the case as I have suggested them to you.</p> <p>“ If, on the other hand, you think that Mr. Morton had reason to and did believe, and the facts warranted him in believing that Mr. Reiter was refusing to conduct the business fairly, was desirous that this note to Wilson, Walker & Co. should go to protest for ulterior purposes of his own, that he meant to default upon his note to Morton for $3000 for such a purpose; that his design and intent was to force Morton out of the firm, and that Morton in self defence, or to meet the action of Mr. Reiter, determined by this means, even at noon-time, surreptitiously to a certain extent, without the knowledge of Mr. Reiter or of his sons, to take this property, carry it away, making the best bargain he honestly could for the firm with Wilson, Walker & Co., in order to have that note lifted; then Mr. Reiter cannot complain, and he would not be justified in dissolving the co-partnership; in other words, you must determine what is the truth in regard to the matter of the transfer of that chain to Wilson, Walker & Co., it is a question whether those are the facts. It is just as vehemently claimed on the part of the defendant that there were no such designs, and that there were other reasons, to wit, that, under the advice of counsel, Reiter defaulted upon his $3000 note to Morton, and also that there was no reasonable ability on the part of the firm of Reiter & Morton, at that time, to meet the note to Wilson, Walker & Go. out of the assets of the firm.</p> <p>“ If there were assets of the firm of Reiter & Morton, Mr. Reiter was not justified in refusing to pay the note of the firm. It was bad faith to the firm if he refused to apply the partnership assets to its payment, if there were such assets, which is another fact you will have to ascertain from the evidence.”</p> <p>9. In its answer to the first point submitted by the plaintiff as follows:</p> <p>If the jury believe that the defendant, knowing the plaintiff had no other means of obtaining money to pay in his balance of the capital stock than out of the notes of defendant given plaintiff on account of the patent,'' and defendant in bad faith to his partner and for the purpose of driving the plaintiff from the firm of Reiter & Morton, notified the plaintiff, on August 17th 1878, that he (Reiter) would not pay his (Reiter’s) note falling due about August 21st 1878, but would let it go to protest, and the defendant also refused to pay or appropriate the firm assets to the payment of the note of Wilson, Walker & Co., then if the plaintiff, in good faith and for the purpose of preventing the firm of Reiter & Morton from being sued, applied the assets of the firm of Reiter & Morton to the payment of the debt of the firm as narrated by Morton and Walker and Wilson such application would not constitute a cause justifying the defendant in dissolving the firm of Reiter & Morton.</p> <p>Ans. “ Same as to third point of defendant below. See eighth assignment of error.”</p> <p>10. In admitting the'offer of evidence submitted by the plaintiff and in overruling the objections thereto of defendant, which offer and objections are as follows :</p> <p>“Plaintiff’s counsel proposes to prove by Howard Morton, the witness on the stand, to be followed by other testimony on the same subject and of the same effect, that on October 14th 1878, the day George Reiter, the defendant, dissolved the partnership of Reiter & Morton, for which 'dissolution this action was brought, that said firm were then engaged in the manufacturing and sale of chain and cable and miscellaneous articles in iron. That their works were in Pittsburgh, Pennsylvania, and had a capacity for turning out from one to two tons per day of chains. To show the actual cost of the manufacture of said chain, and to show its market value, and further to show that it was a staple article in the market, and that the said chain could be and was readily sold in the market. To further show that the said firm were then engaged in building new furnaces and erecting new machinery for the more extensive prosecution of their business. To show what the business of the said firm of Reiter & Morton was and that it was increasing. This as bearing upon the question of damages, and to give the jury the items connected with the business of Reiter & Morton from which they can determine what damages plaintiff has suffered by reason of said dissolution.</p> <p>“Defendant’s counsel object to all that portion of the offer following the words ‘Pittsburgh, Pennsylvania.’ 1st. Because the true nature of damages cannot be arrived at as proposed to be shown in the offer. 2d. Because said offer is incompetent and irrelevant; and 3d. Because in any event the offer is premature, the ground work to justify such proof not yet having been laid by any evidence in the case. Objections overruled.”</p> <p>11. The court erred in the answer to the third point submitted by the plaintiff as follows :</p> <p>The measure of damages in this case is the immediate loss plaintiff suffered by reason of the dissolution-of the firm, and in determining what this loss was they may take into consideration the business in which the firm of Reiter & Morton was engaged, the capacity of their works, the length of time the firm was to continue, the cost of the manufacture of the-articles in which the firm dealt at the- market price at which said articles sold, and whether the manufactured articles were a saleable commodity or otherwise.</p> <p>Ans. “ The measure of damages in this case is, as the Supreme Court’ has said, compensation for the contract broken according to its value; the difficulty is in the application of that measure, under the facts, in order to ascertain what the damages are. It is a very difficult matter to ascertain what the value of a contract such as this was because of the various contingencies in business and the unavoidable and unanticipated accidents which pertain to every business. It is difficult to determine how much a business will be worth next year or the year following, and so on indefinitely, as far as the necessities of the case may require, but it is your duty to try to ascertain, if you come to the conclusion, under the charge of the court and the evidence, that the plaintiff is entitled to a verdict or to more than nominal damages, how much he has been damaged. One mode by which you can ascertain the value of this business is indicated in the point, that is, you have a right to consider (in estimating the value of it, if it had any value,) the nature of the business,. the character of the works, their capacity and fitness for the manufacture of chain, the length of time the firm was to continue, and then take into consideration, if it has been established to your satisfaction, what it would cost to manufacture chain, and the price at which it could be sold, and determine whether the business could be conducted at a profit or a loss. The patents under which the chain was to be manufactured were measurably untried, and needed amendment and alteration in order to make them as practicable as was the intent of the person who invented them. Take into account those expenses and every other expense as well as the mere cost of the labor, and endeavor to determine, as far as you can (if you conclude the plaintiff is entitled to damages for the loss of this business), whether it would have been profitable or unprofitable, and if profitable, to what extent, and what would be the loss to the plaintiff. By way of caution I may sáy that those profits, which are to be taken into account, are such as the testimony has satisfactorily shown, were gained, or to be gained in this business, not prospective, not possible profits, but what, from the evidence, as reasonable men you -would draw as the probable result of the conduct of the business as you have heard it- detailed here.”</p> <p>13. The court erred in its ruling upon defendant’s offer of evidence as follows: Defendant being on the stand his counsel propounds the following:</p> <p>“ Q. State whether not since Mr. Morton’s retirement from the firm you have been able to make any profit out of the chain business conducted at the same place.”</p> <p>Objected to as irrelevant and incompetent.</p> <p>Objection sustained.</p>

<p>Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1880, No. 289.</p> <p>Appeal of Phineas T. Gray from the decree of the court refusing his .petition to make choice of a new guardian.</p> <p>On thq 29th of November 1873, the appellant by his next friend W. M. Gray, presented a petition to the Orphans’ Court setting forth that he was the minor child of Phineas T. Gray, deceased, under the age of fourteen years and had no guardian; that he was entitled to real estate of no annual value, and to personal estate amounting to $2000, and praying the court to appoint some fit person guardian of his person and estate; and thereupon said court appointed Joseph H. Gray guardian of said minor, who gave bondi and entered upon the discharge of his duties as guardian of said minor.</p> <p>On the l8th of September 1880, the said Phineas T. Gray presented his petition to said Orphans’ Court, setting forth the foregoing facts, and that he was over the age of fourteen years, to wit, of the age of fifteen years on the 10th of March 1880, and praying the court to allow him to make choice of some fit person as guardian of his person and estate, instead of the said Joseph H. Gray, heretofore appointed by said court.</p> <p>No cause was assigned as a reason for the proposed change of guardian. The court awarded a citation to Joseph PI. Gray, .the guardian, to show cause why the prayer of the petitioner should not be granted, and the guardian filed answer, wherein the court was asked to refuse the application of the petitioner on the ground that he had been unduly influenced by his relatives. A general replication having been filed, the 2d of October 1880, was fixed for a hearing in the case before the court. The parties appeared, and the counsel for respondent called the respondent to prove facts alleged in his answer when he was stopped by the court; the court ruling that the burden of proof was upon the petitioner to show cause for a change of guardian. Whereupon the petitioner having refused to show cause (not having alleged any in his petition), the court, Hawkins, P. J., made a final decree refusing the application, and delivering the following opinion:</p> <p>“When the legislature gave the ‘ Orphans’ Court of each county * * * the care of the persons of minors resident within such county, and of'their estates, and * * * power to admit such minors when and as often as there shall be occasion to make choice of guardians,’ it gave in plain terms discretionary power to that court in the appointment of guardians: McCann’s Appeal, 13 Wright 304. The law presupposed the immaturity of minors and the consequent necessity of ‘ care ’ over their persons and estates. Is there ‘ occasion ’ in the present case to admit the petitioner to make choice of a new guardian in place of the old ?</p> <p>“ He already' has an unexceptionable guardian. A change of guardian will involve the filing and auditing the account of the old guardian, and the expense and cost incidental thereto, which must be borne by the minor’s estate. It may, and probably will, become necessary to call in the present investment, and a change of policy will follow in the administration of the trust; this will cause delay and consequent loss to the minor’s estate. These are some obvious objections to change. On the other hand no special advantages are adduced* for making it. The application is based entirely on an asserted ‘naked right of choice.’ If such right exists why come into the Orphans’ Court at all ? If petitioner is competent to make choice without the supervision of this court then he does not need its ‘ care,’ he is competent to transact his own business, and there is no occasion for a guardian ; but if; as the legislature has asserted, he needs its ‘ care,’ he needs its supervision in the selection of a guardian. There can be no ‘ occasion ’ to malte choice of another guardian, where no advantages can be attained. It follows that the circumstances of this case do not justify a change of guardians, and the application tobe admitted to ‘make choice' must be refused.”</p> <p>From this decree this appeal was taken.</p>

<p>1. To constitute fellow servants the employees need not at the same time be engaged in the same particular work. It is sufficient if they are in the employment of the same master, engaged in the same common work and performing duties and services for the same general purpose. The rule is the same, although the one injured may be inferior in grade, and is subject to the direction and control of the superior whose act caused the injury, provided they are both co-operating to effect the same common object.</p> <p>2. If a gang-boss has no general power of control, but acts as foreman of workmen engaged and furnished to him by the superintendent of a company, whose orders he is bound to obey, he is not such a representative of the company as that it would be liable for his acts of negligence.</p> <p>3. Where there is no evidence of the knowledge of the company of the want of capacity in such a gang-boss, in an action by a servant against the company, it is error to submit the question of negligence to the jury.</p> <p>4. Lehigh Valley Coal Co. v. Jones, 5 Norris 432, and Delaware and Hudson Canal Co. v. Carroll', 8 Id. 374, followed.</p>

<p>Appeal from the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 217. In Equity.</p> <p>Bill in equity filed by Madison Bailey, trustee of the Central Bank of Pittsburgh, against Andrew Lyons and Jared M. Brush and the Citizens’ Oil Refining Company.</p> <p>The material averments of the bill will, be found in the opinion of this eourt. The defendants demurred to the bill, and the court entered judgment on the demurrer for defendants. Plaintiff then took this appeal.</p>

<p>1. The Act of-April 4th 1868 provides, “ That when any person shall sustain personal injury or loss of life while lawfully engaged or employed on, or the roads, works, depots and premises of a railroad company, or in or any train or car therein or thereon, of which company such person is an employee, the right of action in all such cases against the company shall be only such as would exist if such person were an employee, provided this section shall not'apply to passengers.” Held, that a route or mail agent in the employ of the United States Post Office Department, while travelling on a railroad in the performance of his duties, is not a passenger within the meaning of the act.</p> <p>2. A passenger, in the legal sense of the word, is one who travels in some public conveyance by virtue of a contract, express or implied, with the carrier, as the payment of fare or that which is accepted as an equivalent therefor.</p> <p>3. A mere trespasser, a person who steals a ride upon a train, or who is employed thereon, is not a passenger within the meaning of the Act o’f 1868, nor entitled, as such, to protection.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November'Term 1880, No. 264.</p> <p>This was a petition in the court below by the Commonwealth, at the relation of the Washington School District, for a mandamus to compel Thomas W. Shaw and others, officers and members of the Central Board of Education, to appropriate to the petitioner the sum of $12,000 for permanent improvements and certify the same to the city councils.</p> <p>The petition of the school district sets forth:</p> <p>1. That by an Act of the General Assembly, entitled “ An Act consolidating the wards of the city of Pittsburgh for educational purposes,” approved February 12th 1869, the city of Pittsburgh was constituted an independent school district, and each ward of said city was constituted a sub-school district.</p> <p>2. That by an Act of the General Assembly entitled “A supplement to the several acts incorporating the city of Pittsburgh, enlarging its boundaries,” &c., approved the 2d day of April 1872, the borough of Mt. Washington (with others) was annexed to said city and made part thereof as the Thirty-second ward.</p> <p>3. That by virtue of the aforesaid acts, approved February 12th 1869, and April 2d 1872, respectively, and by an act entitled “A further supplement to an act consolidating the wards of the city of Pittsburgh for educational purposes, approved the twelfth day of February, one thousand eight hundred and sixty-nine,” approved March 20th 1873, the several boroughs, including the borough of Mt. Washington aforesaid, which were annexed to the city of Pittsburgh for municipal purposes, by the Act approved April 2d 1872, aforesaid, became and were consolidated for educational purposes, and the jurisdiction of the Central Board of Education and school laws.of the said city extended thereover; and thereby the school district, formerly embraced within the said borough of Mt. Washington, became a sub-school district of said city of Pittsburgh, under the name of Mt. Washington.</p> <p>4. That by the laws of the state of Pennsylvania relating to public schools, it is made the duty of the school directors in each district to establish a sufficient number of schools for the education of every child above the age of six years within the district, who may legally apply for admission and instruction, which laws, so far as they relate to said duty, are in full force and effect within said city of Pittsburgh.</p> <p>5. That by the fifty-second section of the Act, approved February 12th 1869, aforesaid, it is provided “ that the bo^rd of directors of every sub-district shall have power and authority to purchase and hold such real estate and personal property as may be necessary for the establishment and support of the sub-district schools within their respective districts,” and by the fifty-fifth -section of said act it is provided “ that the sub-district school directors shall cause suitable lots of ground to be purchased or rented, and suitable buildings to be erected, purchased or rented for school houses, and shall supply the proper conveniences and fuel.”</p> <p>6. That the school building heretofore erected in said sub-district has for a long time been insufficient for the accommodation of all the children of said sub-district who have applied for and are legally entitled to admission and instruction, every part of which building that can be made available, even at great disadvantage, including the vestibule, being occupied by the schools of said sub-district, and in addition thereto the said school directors have for some time past conducted two of their schools in a neighboring building, which is wholly unsuited for school purposes.</p> <p>7. That, owing to a constant and now rapid increase of population, still further school accommodations are urgently required in said sub-school district, which cannot be procured in any other way than by the erection of a new building or of an addition to the present school house.</p> <p>8. That the board of directors of said sub-school district have fully and conscientiously considered the matter and determined, as the least expensive method, to erect a suitable addition to the present building, and upon consultation and advice with competent persons have ascertained that the sum of twelve thousand dollars will be required to defray the cost of such improvement.</p> <p>9. That your petitioner has no funds or property with which to pay for said improvement, and is advised and believes, and so charges, that it has no direct power to raise money for such purpose but that the same must be appropriated by the councils of the city of Pittsburgh upon an estimate to be ascertained, determined and certified by the Central Board of Education of said city in the manner provided by the general laws of the Commonwealth relating to cities of the second class, to which class the said city belongs.</p> <p>10. That by an Act of Assembly of the state of Pennsylvania entitled, “.An Act in relation to cities of the second class, providing for the levy, collection and disbursements of taxes and water rents,” approved the 22d day of March 1877, it is made the duty of councils of such cities to make an annual appropriation of such money as “ will be required to defray all the various expenses necessary for conducting the various departments, whether legislative, executive or administrative (including schools, or boards of education, or poor boards), of the city government,” and “ to cause a tax sufficient for all purposes to be levied and collected of the estates, real and personal, subject to taxation, within such cities.”</p> <p>11. That by an Act of Assembly of said state entitled, “ A supplement to an act entitled, ‘ An Act relating to cities of the second class, providing for the levy, collection and disbursement of taxes and water rents,’ approved the 22d day of March 1877, providing the manner of making appropriations for school and poor purposes, and issuing warrants on such appropriations and defining certain powers of the educational and poor departments in said cities,” approved June 12th 1878, it is made the duty of the Central Board of Education to ascertain and determine the amount of money necessary for conducting the schools of said cities, and to certify the same to the councils on or before the second Monday of January in each year, and the councils are thereupon required to add the amount so certified to the aggregate of taxes required for said cities, and shall appropriate the same for school purposes. ■</p> <p>12. That, in accordance with the standing rules of the Central Board of Education of the city of Pittsburgh, adopted in pursuance of the provisions of the act last aforesaid, your petitioner did on or before the first day of December 1879, forward to the secretary of said board an estimate of the amount of money necessary for conducting the schools in said sub-school district for the fiscal year beginning on the first day of February 1880, in which estimate was entered and included the sum of twelve thousand dollars for permanent improvements, being for the purpose of paying for the necessary addition to the school building in said sub-district, as aforesaid.</p> <p>13. That at a meeting of the said Central Board of Education, held on the 13th day of January 1880, the said board agreed upon an amount to be certified to the city councils as the basis of an appropriation for school purposes for the fiscal year beginning the first day of February 1880, and which your petitioner is advised and believes, and so charges, has been certified by said board to said councils, but' in which amount no provision has been made for the twelve thousand dollars required by your petitioner for the purpose aforesaid. The said Central Board has wholly neglected and utterly refused to make any provision therefor or for any part thereof, without any just or lawful reason, and in open violation of, and disregard for, the law as expounded by learned and competent counsel employed by the finance committee for that purpose.</p> <p>14. That, by the laws relating to the city of Pittsburgh, it is the duty of the councils to make provision, by the passage of a proper ordinance, before the first day of February in each year, for the money for conducting the various departments of the city government for the next fiscal year, and unless the said Central Board of Education shall, prior to the passage of such ordinance, include in the sum certified to councils for conducting the schools of said city the sum of twelve thousand dollars, so as aforesaid demanded by your petitioner, the school interests of your petitioner will be greatly hindered impeded, and injured, and your petitioner will be unable to supply suitable school facilities for all the children of said sub-school district as required by law.</p> <p>15. That, in addition to the foregoing statement as to the necessity of the case, your petitioner further represents that in utilizing the school building of said sub-district it has been necessary to make use of a corridor as an office and recitation room, thereby destroying one of the modes of ingress and egress to and from the building, and thereby diminishing the means of escape from said building in case of danger.</p> <p>16. That your petitioner is without any specific legal remedy.</p> <p>17. That the said Central Board of Education is composed as follows : [the names of the members here followed.]</p> <p>Your petitioner therefore prays that a mandamus may be issued to the said board to grant and appropriate to your petitioner the sum of twelve thousand dollars for permanent improvement, and to add the same to the amount already ascertained by them to be necessary for conducting the schools of the said city for the next fiscal year, and certify the same to city councils as required by law, and it will ever pray, &c.</p> <p>The court granted a rule upon the officers and members of the board to show cause why the writ should not issue against them. The case was heard on this petition, and the rule was discharged, the court delivering the following opinion:</p> <p>“ The Act of 12th February 1869 created a Central Board of Education, and made the city of Pittsburgh an independent school district. The board was thereby empowered to' rent or purchase and hold such real estate as might be necessary for the establishment and support of a high school and schools for colored children, as required by the act. It was to assess and apportion taxes for certain school purposes and levy same, which were to be collected by city treasurer. It was also authorized to erect buildings for high schools and schools for colored children, and also furniture, books, apparatus and other personal property for same. To appoint all teachers for said schools, and teachers of music and of all special branches in ward schools; to determine what branches of learning should be taught in sub^district schools, high schools and schools for colored children; to decide what school books should he used, and the number of teachers in all schools, and fix pay for their service.</p> <p>“ The board of directors of the several sub-school districts were empowered to purchase' and hold real estate, and purchase property necessary for schools, the title of such property to be in such sub-district, and they were required to supply their school-houses with fuel and proper conveniences, and to have the appointment of teachers of the sub-district schools. They were also to levy special tax for purchasing or paying for ground and buildings, and repairs and furniture, apparatus and all necessary books and stationery and fuel therefor and janitors, levied and assessed as follows: The several boards of sub-school districts were on or before the last Monday of May of said year to notify the Central Board of the rate of taxation respectively levied by them, and thereupon the Central Board was immediately to cause the amount thereof to be added in a separate column opposite the name of each person in the duplicate for said ward of taxes levied by said Central Board. The taxes levied by the Central Board to be placed in one column, headed ‘ City School Tax,’ and those levied by the sub-school board to be placed in another column headed ‘Ward School Tax,’ and the taxes to be collected by the city treasurer. The sub-school-district was also authorized to borrow money for ground and buildings for school purposes.</p> <p>“The Act of 22d March 1877 provided that the annual levy of taxes of the city should be based upon statements of all the departments of the city government, including education and school boards, giving names, dates, amounts and objects of expenditures to the finance committee of councils, and said committee, ‘in lieu of any existing authority in relation thereto,’ were directed to make and agree upon an estimate of the various sums of money required to defray all the various expenses necessary for conducting the various departments of city government, including schools or boards of education, which estimates were to be founded upon reports obtained from said departments, and which amount, when established by said finance committee, was to be certified by it to the city councils, to be by them accepted or modified as the aggregate expenses of the city, and then a tax was to be levied by councils.</p> <p>“ The Act 15th March 1878 provides that councils shall in each district where indebtedness existed before the Act 22d March 1877, levy a sufficient tax to pay interest thereon, and the principal in thirty years, to be levied specially on the property of such district.</p> <p>“ Then comes last of all the Act 12th June 1878, providing that the Central Board shall ascertain and determine the amount of money necessary for conducting the schools of the city, and shall certify the same to councils on or before the second Monday of January of each year, and finally that councils shall add the amount to the aggregate taxes required for the city, and shall appropriate the same for the purposes aforesaid, to wit, conducting the schools of the city. The third section of this is as follows: ‘ That it is hereby declared to be the true intent and meaning of the act of which this is a supplement (22d March 1877), that none of the powers theretofore belonging to the Central Board of Education, and the various school boards in said city, prior to the passage of said act, shall be impaired or affected in any manner, except in relation to the levy and collection of taxes.’</p> <p>“ It will be seen that under the Act of 1869, sect. 17, the Central Board were to determine the amount of school taxes to be levied upon the school district (city) for each year (with money from state and other sources) to be sufficient and necessary ‘ for the purchase of ground and the erection of buildings necessary for the high schools and schools for colored children,’ to keep such schools in operation, and also for the payment of the teachers of all the sub-district schools, and the several sub-school boards were to levy and assess a special tax for purchasing and paying for around and buildings, and for repairs and furniture, apparatus and necessary books, stationery and fuel, and for pay of janitors, of wliich they were to notify the Central Board, and which amount it was the duty of the Central Board to add to its assessment in the manner specified in the act, and which it was also the duty of the city treasurer to collect from the inhabitants of the proper ward. The assessment of the Central Board was a charge upon the whole city (school district), and that of the sub-school district only a charge upon the respective wards.</p> <p>“The Act 22d March 1877 ‘impaired or affected’ (see third section), none of the powers vested in the respective school boards (Central and sub-school) except in relation to the levy and collection of taxes, but it vested the power of levy in the city councils, giving them entire control and discretion over the subject, and made it the duty of all the departments of thei city government, in terms including education and school boards, to make a statement of their several demands or requirements to the finance committee of councils, and said finance committee were directed in lieu of any existing authority, that is, in the place of and to the exclusion of existing authority, to make and agree, &c., and thereupon to certify its estimates to city councils who were to accept or modify them as their judgment dictated. Now, under this provision it is clear to my mind that the finance committee first, and the city councils ultimately, were clothed with absolute discretion as to what amount of money should be raised for the school department and to what purposes the several amounts should be applied.</p> <p>“ Then the Act 12th June 1878 took away this authority of councils over the school department, and provided that the Central Board of Education should ascertain and determine the amount of money necessary for conducting the schools of the city, and certify the same to councils, whereupon they were bound to add such sum to the aggregate city taxes and appropriate the amount so raised for the purpose specified by the Central Board. The language of this act, ex vi termini, involves necessarily the idea of exercising judgment'and deciding according to its sense of propriety and fitness, on the part of the Central Board. It is not only to ascertain but also to determine what amount is necessary for conducting the schools of the city.</p> <p>“ So that even assuming (what may admit of grave doubt) that the Central Board could by its requisition impose upon the city at large the expense of buying ground and erecting school houses in the several sub-school districts at their discretion, I have no hesitation in coming to the conclusion that under the facts alleged in this petition for mandamus the plaintiff has no right to the relief prayed for, and, therefore, the prayer thereof is refused, and this rule to show cause why an alternative mandamus should not be awarded is discharged.</p> <p>The school district took this writ and alleged that the court erred in discharging the rule.</p>

<p>M. devised his mansion house to his wife for life, and bequeathed to her also an annuity of §2000 for the same period. He then provided: “ And upon her decease, I will and bequeath said house, as also the rest of my worldly estate, to my children in equal shares; and in default of children or lineal heirs of my body, at the time of my decease, I will and bequeath all my worldly estate to my brothers and sisters in equal shares.” The widow and two children of the testator survived him. After his death ther.e were large accumulations arising from the rents, issues and profits which exceeded the original estate and the necessities of the trust. One of the children, when he reached his majority, petitioned the Orphans' Court for one-half of the rents, issues and profits of the estate since he had arrived at age; for one-half of the accumulations since the death of his father, and “ the custody and possession of the property bequeathed to him in and by said will,” alleging that he was entitled thereto under the Act of May 17th 1871 : Held, that the estate created was a vested remainder; that the petitioner was entitled to one-half of the accumulations, but that he was not entitled to one-half of the corpus of the estate. ,</p>

<p>Certiorari to the Court of Quarter Sessions of Butler county: Of October and November Term 1878, No. 334.</p> <p>Appeal of L. G. Linn from the taxation of costs in the case of the Commonwealth against said Linn.</p> <p>The material facts will he found stated in the opinion of this court.</p> <p>The following were among the assignments of error:—</p> <p>I. The court, McJunkin, P. J., erred in refusing to quash the indictment for the reason that the oath taken by the defendant, and on account of which the crime is charged w'as not necessary, and hence not material and was extrajudicial.</p> <p>5. The oath must not only have been made wilfully, falsely, but absolutely. There is nothing of an absolute character about the oath, it concluding as follows: “ To the best of his knowledge, information and belief.”</p> <p>6. The court erred in overruling the motions and reasons assigned to quash before trial and after trial, instructing the jury that the charges assigned in the indictment did not constitute legal perjury; that they could (or might) have quashed the indictment, but that they wanted to give the case the light of day; that there was probable cause, and that the jury would be warranted in placing the costs on the defendant, and in not quashing the indictment before trial. Eor this reason the verdict should be set aside, and the defendant should not pay any portion of the Commonwealth’s bill of costs.</p> <p>10. The court erred in allowing the Commonwealth’s bill of costs when the testimony taken by the prosecutor on appeal from the taxation of costs shows that the large number of witnesses included in the bill who were not called or examined on part of the Commonwealth, were subpoenaed by John Smith, the prosecutor, to sustain his own private character for truth and veracity if attacked, which was not a part of the res gestee, and the witnesses were therefore not material and necessary and the costs should be disallowed.</p> <p>II. The court erred in allowing the Commonwealth any costs for witnesses, after motions made and reasons assigned to quash.</p>

<p>1. In assumpsit by a purchaser to recover back the purchase-money for the deficiency in a tract of land which the vendor represented contained a greater number of acres than it actually did contain, the scienter of the vendor at the time he made the representation is the vital question in the action.</p> <p>2. The 17th Rule of the Supreme Court specifying what the paper book of the plaintiff in error shall contain requires an appendix containing the evidence: Held, this does not mean the evidence of either the plaintiff or defendant alone nor such exeei’pts therefrom as he may choose to present.</p> <p>3. Per Sterrett, J. — The relevancy of testimony often depends on the oireumstances under which it is offered — the state of the evidence then before the court and jury ; and hence it is in such cases that we should be furnished with the testimony, so that we may be able to properly understand the bearing of that which is alleged to have been improperly rejected or received, as the ease may be.</p>

317. Appeal by Eli Cope and D. Kaine from the decree of the Court of Common Pleas of Fayette county, overruling the exceptions of the appellants, and confirming the auditor’s report distributing the proceeds of the sheriff’s sale of the real estate of A. E. Meason.

<p>Appeal from the Court of Common Pleas of Beaver county: Of October and November Term 1879, No. 367. In Equity.</p> <p>Bill in equity filed by Susannah Powell, by her next friend, John Harris, against the Duquesne Savings Bank.</p> <p>The following opinion of Hice, P. J., sufiiciently states the casé:</p> <p>“ From the bill, answer and evidence in this case, we find the facts to be:</p> <p>“1. That Susannah Powell, the plaintiff, was intermarried with one Peter Powell some twenty-eight to thirty years since, and had issue by her said husband eight children, six of whom are minors, the youngest of these being now about seven and the eldest about eighteen years of age.</p> <p>“ 2. That Peter, the husband, was the owner of a tract of land, situate in North Sewickley township, Beaver county, containing about 133 acres, on which he resided with his family up till the fall of 1869, when he left them, and was absent for about seven months, returning again and living with them as before for about one year, or until the 14th day of April 1871, when he again left them, and has never since returned to his family, nor done nor contributed anything whatever for their support and maintenance.</p> <p>“ 3. That there was considerable bickering and domestic difficulty between the husband and wife for a considerable time before the desertion of the wife and family by the husband, and charges of unfaithfulness to her marriage vows were made by the husband against his wife; yet, so far as the evidence discloses, there was no ground for the charges, nor any reasonable cause on the part of the wife for his abandoning his family ; but his act in this respect was a wilful and deliberate desertion of them, without any intention on his part of returning again, or discharging the duties of a husband and father.</p> <p>“4. That since his desertion of his wife and children he has been living in Meigs county, Ohio, with another woman, and claiming to be married to her, but without anything to show that he had obtained a divorce from the present plaintiff, or had any grounds whatever for obtaining one.</p> <p>“ 5. That previous to his desertion of his wife and family said Peter entered into negotiations for a loan of money from one A. A. McCarty, to be secured by a mortgage upon the tract of land above mentioned, which was finally consummated by his executing the mortgage and receiving the money at Pittsburgh, Allegheny county, on the 22d day of April 1871, eight days after his desertion as aforesaid. The amount of money actually received by him on this mortgage is not clearly disclosed by the evidence, but would seem to have been $4500, but might have been more. The amount named in the mortgage, and secured thereby, was $6380. The mortgage itself was duly recorded in the office for recording deeds in and for said county of Beaver; and afterwards, on the 8th day of August 1871, said A. A. McCarty, the mortgagee, by his attorney in fact, assigned the mortgage to the Duquesne Savings Bank, the defendant in this suit, who, having thus become the owner thereof, afterwards, to No. 153 of November Term 1873, issued a scire facias thereon, to which the sheriff made return that on the 4th day of November 1872, he served the same ‘on the defendant by making contents known, and leaving a true copy with his wife, in his absence.’ There being no appearance by Peter Powell or any one else, and no defence of any kind being taken, judgment was entered on the scire facias against said Peter for $7321. A writ of levari facias issued thereon, and on the 15th'day of March 1873, the land was sold by the sheriff, the defendant in this case becoming the purchaser thereof, and receiving a sheriff’s deed therefor; and although it does not directly appear in the evidence for what price the land sold, yet it seems to be admitted, and may be taken as a fact, that the price at which it was bid off was less than the amount of the' mortgage debt.</p> <p>“6. That at the time the husband deserted his wife and children, he left them in possession of the tract of land mortgaged as aforesaid, and also left with them on said farm certain horses, cattle, farming utensils, household goods, &c., all of which, however (except the household goods, which were of small value), were subsequently levied upon and sold by the sheriff for the payment of his (the husband’s) debts.</p> <p>“ 7. That the husband made no provision of any kind for the maintenance of his wife and children at the time he mortgaged the farm, nor at any time since, it being his intention, as theretofore declared by him, and as his subsequent acts show, to bring about a sale and alienation of the farm from his wife and children by this means, four of said children being of tender years and dependent upon the mother’s exertions for their support.</p> <p>“ 8. That so far as the present defendant is concerned, it had no notice or knowledge, in any way, at the time the- mortgage was assigned, nor does the evidence show that at any time since, until about the date of the filing of the plaintiff’s bill in this case, had it notice that said Peter Powell, the mortgagor, had deserted his wife and children prior to the date of his execution of said mortgage, or that the loan was negotiated and the mortgage executed by him for the purpose of procuring thereby a sale of the farm, and alienating the same from his wife and children; nor is there anything to show that McCarty, the mortgagee,. had any notice or knowledge of such desertion or intended desertion, or intention to alienate the land, at the time the loan was negotiated and the mortgage given. Mr. Fetterman, who, it appears, was acting as the attorney of McCarty, the mortgagee, and who, it seems, really did all the business for him, it is claimed, had notice of the acts and intention of the husband, and such notice and knowledge as should and would affect his client; but a careful examination of all the evidence fails to furnish anything showing that he had any knowledge on the subject. The facts proven, when properly considered, do not warrant such an inference.</p> <p>“ 9. That the negotiation for the loan on the mortgage had been going on between Peter, the husband, and Mr. Fetterman (but without the wife’s knowledge) for some time before Peter left, which was on the 14th of April; and the wife, the plaintiff in this case, testifies that she had knowledge of the giving of the mortgage eight or nine days after he left. The mortgage was executed on the 22d of April, so that she had knowledge of the mortgage almost immediately after the same was given. The scire facias issued on the mortgage was served by making contents known and giving a true copy thereof to the wife, the plaintiff here, on the 4th November 1872. No defence was taken by her, nor anything done to notify the defendants that she objected to the mortgage, or would contest the same. Subsequently a levari facias issued, the land was levied upon and sold after being duly advertised, of all which proceedings she had notice before the day of sale, which was on the 15th March 1873. No notice of her alleged right was given, nor any objection to the sale or to the acknowledgment of the sheriff’s deed was made.</p> <p>“ 10. That after having purchased the land, the defendant, on the 19th of June 1875, gave notice, under the Act of Assembly, for the purpose of obtaining possession, and it was not till subsequent to this, or about the date of filing the bill, August 2d 1875, so far as the evidence shows, that defendant had any notice of the claim of plaintiff that the mortgage was void, and that she claimed on this ground to hold the land, of which she is still in possession. It is true, however, that the plaintiff sought legal advice after the mortgage was given and before the sale, but was advised that nothing could be done — that the mortgage would have to be paid; and subsequently, when the land was about to be sold, it seems she employed an attorney, directing him to give notice of her claim at the sale; but no notice, so far as the evidence shows, was given, and after this no further steps were taken by her in the matter until after notice served upon her to give possession of the land.</p> <p>“ 11. That said plaintiff has no estate of her own, or in her own right, nor any means of support for herself and minor children, the children of said mortgagor, except as derived from the tract of land aforesaid.</p> <p>“ The facts being as thus stated, it is claimed on behalf of the plaintiff that the mortgage was void, under the provisions of the Act of Assembly of the 4th of May 1855, sect. 2,. extending the provisions of the Act of February 22d 1718, relating to feme sole traders, to the case where “ any husband, from drunkenness, profligacy, or other cause, shall neglect or refuse to provide for his wife, or shall desert her,” the second section of which last mentioned act declares that if the husbands of any wives, declared by the first action thereof to be feme sole traders, being the owners of lands, tenements, or other estate within the province, have aliened or thereafter shall give, grant, mortgage, or alienate from his wife and children any of said lands and tenements or estates, without making an equivalent provision for their maintenance in lieu thereof, every such gift, grant, mortgage, or alienation shall be deemed, adjudged, and taken to be null and void. Peter Powell, the husband, had, at the date of the execution of the mortgage, withdrawn himself from his wife and family; there w'as yet upon the farm, and which might be used by them, certain property that furnished them the means of support for the time being (but which was soon swept away by the sheriff’s sale to satisfy the debts of the husband), but his desertion of his home and family was .complete. It would seem evident, therefore, that his acts toward his wife and family were such as clearly brought the wife within the provisions of the Act of 1855, and entitled her to whatever benefits were secured thereby. These benefits were that she should have all the rights and privileges secured to wives declared feme sole traders under the Act of 1718. One of these rights and privileges secured to a wife declared a feme sole trader by 'that act, as shown by the second section, was that she and his children should have the use of the husband’s real estate within the province, for their maintenance, and that any gift, grant, mortgage, or alienation thereof by the husband that deprived them of this, without an equivalent provision for their maintenance, should be deemed, adjudged, and taken to be void. The negotiations for the loan were begun before he left his family, but his desertion was complete for some time before the same were consummated, and the mortgage executed. The case seems to fall fully within the provisions of the Act of 1718, as extended by the Act of 1855. There does not seem to be any reported case giving judicial construction to this portion of these statutes, yet if they are to be effectual in promoting the purpose that seems to have prompted their enactment, the protection of wives and children from the recklessness, profligacy, or maliciousness of those whose duty it is to protect and' maintain them, it seems to us they must be construed to embrace such cases as the present one, and that this mortgage must be held to be avoided thereby. It is urged that, although it be held that this mortgage falls within the statute, and is therefore declared void, yet as judgment was obtained and a sale effected, of all which the plaintiff had notice, but to which she did not object, it is now too late to urge any objection, and she is estopped from asserting the invalidity of the mortgage, or the title of the defendant. If, however, the statute avoids the mortgage, we do not see how any proceedings thereon, even with her knowledge, unless they were promoted or in some way furthered or encouraged by her, should stop her. She was not a party in any way to the proceedings; she merely remained silent — did nothing — but in this there was no fraud on her part. So long as she was not actually disturbed in possession of the land, we do not perceive any duty on her part to take any measures to have the mortgage declared void. It undoubtedly is a hardship to defendant to lose what was supposed to be an ample security for its money, especially as there seems to have been no bad faith on its part, no knowledge of the desertion by the husband, the mortgagor, nor of his intention by this means to alienate the land from his wife and family, leaving them without the means of' maintenance, but we do not see how it is possible to avoid this, and at the same time secure to the wife and children that protection which it was the design of the statutes to afford. So far as the present defendant is concerned, an inquiry at the date of the assignment would no doubt have led to a knowledge of the desertion; and the same may be said of the mortgagee. An inquiry at the date of the mortgage, properly directed, would have revealed the same facts, which it is now claimed render the mortgage void. We conclude, therefore, that the defendant cannot legally disturb the plaintiff in her possession of the land, and that the mortgage should be held as void.</p> <p>“ Let a decree be prepared accordingly.”</p> <p>The following was the decree:</p> <p>1. That the mortgage from Peter Powell to A. A. McCarty, more particularly described in the plaintiff’s bill, be and hereby is declared utterly null and void.</p> <p>2. That the said defendants be and hereby are perpetually enjoined from setting up any title to the land described in said mortgage, under and by virtue of said mortgage, or the proceedings at. law and the sheriff’s deed mentioned in said plaintiff’s bill; and are also perpetually enjoined from interfering (under and by virtue of any title derived or claimed from, by, or under said mortgage, proceedings and deed), with the possession, use, and enjoyment of said land by the plaintiff and her children.</p> <p>From this decree this appeal was taken.</p>

<p>Error to the Court of Common Pleas of Butler county: Of October and November Term 1879, No. 132.</p> <p>Ejectment by A. M. Munroe against M. K. Armstrong, William Storey and A. B. Clark.</p> <p>This action was brought to recover the possession of ten acres of land, a paid of the Eli Beep farm, situate in. Eairview township, Butler county, Pa., both parties claiming title through Beep. On the 31st of July 1877, Eli Beep, the owner of a large tract of land, executed a lease of ten acres thereof to A. B. Clark and Boss Lilly, for oil purposes, for the term of twenty years,'reserving as a royalty or rent, one-eighth of all oil produced therefrom. Said lease also provided that the lessees should “ commence operations within ten days, and' continue to prosecute the work with due diligence until success or abandonment.” Also, “ the party of the second part, if they fail to get oil in paying quantities, or subsist (cease) to work for thirty days at any time, this article to be forfeited and to be null and void.” The lessees entered into possession of the premises and made preparation to drill a well within the ten days required, and completed it during the latter part of October, the same year. The well proved to be dry, or, as expressed'in oil parlance, “was a duster.” The lessees, Clark & Lilly, within a few days after the completion of the well, pulled the casing and removed it, with the tools and greater part of the machinery, from the lease and vicinity, and either sold or used them elsewhere. Matters remained in this condition upon the lease from about November 1st 1877, nothing whatever being done thereon until the month of February 1878, when Beep called upon Lilly, one of the lessees, and asked him if he and Clark intended drilling another well upon the lease. Lilly said they did not; that he would not do anything more unless he (Beep) would give them a new lease of seventy-five acres, which'Reep said he would not do. Reep said to Lilly that he would lease to other parties, as their lease was forfeited. Lilly replied if I were in your place I would. Reep called upon him a second time with like result. Reep afterward, on the 21st day of March 1878, made and delivered to the plaintiff, Munroe, a lease for oil purposes, of seventeen acres, containing or embracing the ten acres in dispute, and which had been leased to Clark & Lilly. Munroe was to commence operations within ninety days from date of lease, but by a subsequent arrangement, the time was extended by the parties. Munroe, at the time of taking this lease, was sinking an oil well on the same farm, but upon another lease, and about July 1st 1878, was successful in obtaining oil in large quantities, Soon after this M. K. Armstrong, one of the defendants, importuned Reep to lease to him the ten acres in dispute, when Reep informed him that he had leased it with other land to Munroe. Armstrong then went in search of Clark & Lilly and purchased from them -whatever interest they had in the premises, taking an assignment upon the old lease. Armstrong, in July 1878, went upon the ground and ■ commenced operating for oil. Munroe immediately notified him that the premises belonged to him and that he must desist. He still persisted in operating, and this suit was brought. The well was completed about December 1st 1878, and had since been producing oil in large quantities. Prior to the bringing of this suit, Armstrong had sold an interest in'the lease to William Story, his co-defendant.</p> <p>The court held that there was no forfeiture under the lease made by Reep to Clark & Lilly and assigned to the defendants, and instructed the jury that they must return a verdict for the defendants, which was done. After judgment thereon, the plaintiff took this writ and alleged that the court erred in thus instructing the >ry-</p>

<p>1. Where a defendant has been convicted upon two separate trials this eourt-is bound to presume, that upon the merits of the case, his guilt was clearly established, but judgment will be reversed where the indictment on which the defendant was convicted was utterly inadequate.</p> <p>2. This court will not reverse for defects of grammar or rhetoric in an indictment if a definite statement of a positive offence can be eliminated therefrom.</p> <p>3. A conviction for perjury cannot be sustained-where it is founded on an-indictment which does not contain a solitary averment, intimation or innuendo that any fact set forth in the answer to a bill in equity was false or untrue.</p>

325. Scire facias sur mortgage issued by Charles L. McCutcheon, for the use Of David Gregg, against Robert Allen.

368. Appeal of John S. Detwiler, assignee for th? benefit of creditors of Samuel Detwiler, from the decree of the court confirming the report of the auditor appointed to pass upon the exceptions to the account of said assignee. On April 22d 1876, Samuel Detwiler executed a voluntary-assignment of his real and personal estate to John S. Detwiler, in trust to sell, &c., for the benefit of the creditors of the assignor.

295. Debt by Isaac F. Overholt against the Monongahela National Bank of Brownsville. The defendant is a national bank. On March 11th 1876, it discounted a note for the plaintiff payable four months after date, for the sum of $2400, and charged him a discount at the rate of nine per cent, per annum. This note was renewed from time to time at the same rate of interest, up to November 26th 1877, when it went to protest.

307. This was a petition filed November 4th 1878, by the United Presbyterian Church of New Brighton, praying for the appointment of viewers to assess damages sustained by said church to their property abutting on Apple street, in the borough of New Brighton, by reason of the change of the grade of said street by the proper authorities of said borough.

153. Assumpsit by the National Bank of Eavette county against Joshua M. Dushane and A. O. D. Tinstman, administrators of the estate of Martin 0. Tinstman, deceased, to recover the balance alleged to be due by the estate of Tinstman on a note made by said Tinstman October 19th 1872, for $5000, payable four months after date to the order of A. Overholt & Co., at said bank and endorsed by said payees.

<p>Error to the Oyer and Terminer of Payette county: Of October and November Term 1880, No. 209.</p> <p>On the 10th of August 1875, a store-house and out-houses belonging to Messrs. Sturgis and Burchinal, and a groceiy and dwelling-house belonging to E. T. Brownfield, situate in Smithfield, Eayette county, Pa., were, destroyed by fire. On the 18th of January 1879, information was made by Messrs. Sturgis and Burchinal charging the defendants, Benjamin Campbell, Patrick Mona-hon and Hananiah L. Worthington, with felonious arson in setting fire to those houses. On the 8th of March 1879, the defendants were convicted of this offence, and on the 27th of the same month they were sentenced to a confinement of eight years in the peniten ti ary.</p> <p>Several exceptions to the admission and rejection of evidence were taken by the defendants during the trial in the court below. These exceptions were submitted to this court immediately after sentence, in order to obtain a stay of execution until they could be more fully presented, but the stay was refused. The defendants regarding this action of the court as conclusive upon the exceptions taken upon the trial, do not now ui'ge these points, but rest their case upon the single question of the legality of the court by which they have been committed to prison. •</p> <p>Alpheus E. Willson, President Judge of the Courts of Fayette county, and David W. C. Dumbauld and Griffith Roberts, claiming to be Associate Judges not learned in the law, of the same courts, tried and sentenced the defendants.</p> <p>No exception or protest was taken or made to the oi’ganization of the court, but this court has, at the suggestion of the attorney-general of Pennsylvania, issued a writ of quo warranto to’ Judges Dumbauld and Roberts, to test their right to their seats. This writ is still pending. The defendants believing that these judges had no right to sit in the court that tried them, maintained that their conviction and sentence were without authority of law and void, and took this writ, assigning for error the participation of David W. C. Dumbauld and Griffith Roberts as judges in the proceedings of the Court of Oyer and Terminer of Fayette county, Pennsylvania, at March Term 1879, on the 5th, 6th, 7th and 8th days of March 1879.</p>

<p>Appeal ■ from the Court of Common Pleas of Washington county: Of October and November Term 1880,- No. 142.</p> <p>Appeal of the Brownsville Deposit and Discount Bank and the Washington Savings Bank from the decree of the Court of Common Pleas of Washington county distributing the assigned estate of Azariah Crow.</p> <p>Azariah Crow made an assignment for the benefit of his creditors, his estate consisting of nine several tracts and lots of land and some personal property. The latter being insufficient for the payment of his debts, his assignee made application to sell the land divested of liens under the provisions of the Act of February 17th 1876, Pamph. L. 4. The court granted an order of sale on the usual terms, to wit, one-third of the purchase-money payable on confirmation of sale ; one-third thereof with interest from the date of confirmation, in six months thereafter, and the remaining one-third thereof, with interest from date of confirmation, in twelve months thereafter. In pursuance of said order seven of the said tracts and lots were sold on the prescribed terms. The assignees made report of the sales, which were confirmed by the court August 26th 1878. The assignees then filed their account, charging themselves with the proceeds of sales, taking credit for deferred payments, which was confirmed. Auditors were then appointed to determine claims and prepare schedules of distribution. The total amount of sales of realty, collected and uncollected, less the proper expenses, was $17,992.57, which the auditors were allowed to distribute. This sum embraced only the principal, no interest on the deferred payments being included. This sum was applied by the auditors to the various judgments in their order, including the several judgments of the Washington Savings Bank and a portion of the judgment of the Brownsville Deposit and Discount Bank, with interest to date of confirmation of sale. The latter judgment amounted, with interest, on the day of confirmation of sale, to $4911.68. The real estate fund above stated paid off this amount, $4121.74, leaving a balance to be paid by sale of the remaining real estate. No interest on the purchase-money was included in this distribution. This report was confirmed, without exceptions, May 19th 1879.</p> <p>Subsequently the remaining real estate was sold by order of the court for cash. An account was settled and confirmed. In this account the assignees charged themselves with the interest- accruing on the deferred payments of purchase-money, together with royalty on coal mined and rents, amounting to $1151.13, which was made up as follows: Interest on purchase-money, $676.07; rent, $50 ; royalty on coal mined, $425.06. On the confirmation of this second account another distribution was made by the auditors. The following are the material portions of the report of the auditors, Boyd Crumrine and L. R. Smith, Esqs.:</p> <p>“ The account (to which no exceptions were filed) now before us embraces a balance of the assigned estate not included in a former account by the same assignees, filed and confirmed on October 14th 1878. The fund embraced in the said former account was distributed by us, as auditors, by a report filed and confirmed nisi May 19th 1879, which is the report hereinafter occasionally referred to.</p> <p>“1. The point was made in behalf of certain judgment-creditors whose-liens had received out of former distribution payment in full of debt and interest up to the confirmation of the sale of the real estate which produces the fund, that such creditors were entitled to receive out of the present real estate fund interest upon the principal of the debt after the date of confirmation until they actually received payment. This claim was made especially by I. Y. Hamilton, Esq., representing judgments of James W. Kuntz, in trust.</p> <p>“ In our former report the point was decided that the lien-creditors could receive interest only to the date of confirmation of sale, which was August 26th 1878. The distribution was not made, however, until May 19th 1879, while we find as a fact that payment was not actually made to the distributees until on or about July 10th 1879. As a matter of fact, then, the lien-creditors participating in that distribution lost the interest upon their money for almost one year, which was quite an item on some of the judgments.</p> <p>“ The decision of your auditors as to this point was not excepted to, and was soon afterwards shown to be correct by three cases decided by the Supreme Court, published for the first time on July 10th 1879, and hereafter referred to.</p> <p>“ The land of Azariah Crow, from which the fund at present for distribution was realized, had not been sold at the date of .the former report — was not sold and the sale confirmed until August 21st 1879, as appears from the returns of sale. And the claim is pressed upon us with much force that the lien-creditors who did not receive their money out of the last distribution until say July 10th 1879, and lost the interest thereon from August 26th 1878 to the date of payment, should now receive interest for that period out of the fund now distributed, on the ground that though the sale of the land from which the former fund was realized discharged their liens from that land, yet the liens remained undischarged from the remaining lands of the same debtor subsequently sold, and so remaining, protect the lien-creditors' at least to the extent of the interest lost.</p> <p>“ The point undoubtedly is of great weight. For it would seem to be correct that the liens of the judgments were discharged on August 26th 1879, only from the lands of the debtor at that date sold, and not' from the lands remaining unsold. And the lien-creditors, such as participated, having received principal and interest to August 26th 1878, but by payment actually made nearly a year-thereafter, it would seem necessarily to follow that out of the lands against which the liens still remained they should be made whole by receiving the interest for the intermediate period.</p> <p>“But if we give to Carver’s Appeal, 8 Norris 276, Tomlinson’s Appeal, 9 Id. 254, and Ilerbst and Buehler’s Appeal, Id. 253, this legitimate effect under a fair construction, is it correct to hold that the 'lien-crcditor who received principal and interest to date of confirmation out of former 'distribution had a lien continuing against the tract then unsold ? We think not, and hold that under those decisions the lien of a judgment must-be considered as discharged from all the debtor’s lands — satisfied—by a sale of the trust lands to the extent it may have received of principal and interest, and that the loss of interest incurred by a lien-creditor is consoled by the thought that it is caused by the law, which is pleasantly supposed to injure no one. And observe, it is distinctly said in Tomlinson’s Appeal, supra, and as a ratio decidendi, that the court has no power to order a sale against the objection of lien-creditors on time, so as unduly to postpone them if stay of execution is ordered. In that case Mercür, J., delivering the opinion, said : ‘ The act requires notice to the lien-creditors, and an opportunity for them to be heard before the sale is ordered. If it is so ordered as to postpone the payment of liens and deprives the owners of interest thereon for a time longer than may be reasonably required to make distribution of the fund, it cannot well be said that the sale is for the ‘ manifest interest’ of such creditors; it is not necessary for the purpose of discharging the lien or of giving an undoubted title to the purchaser. It would therefore be unwarranted by the statute. The payment of so much of the purchase-money as will be sufficient to satisfy the liens divested by the sale should be acquired at the time of confirmation or soon thereafter. ’</p> <p>“ From this it follows that, as warranted by the law, the court should order a cash sale only, or at least a sale equivalent thereto, with payments to be made as soon as distribution can be reported; and if a lien-creditor expressly or by his silence assents to a sale on postponed payments, he has himself to blame, for it is the law which appropriates, pays and pro tanto satisfies the judgment-creditor as of the date of confirmation.</p> <p>“These considerations force upon us the conclusion that on a sale of one parcel of the realty of a trust estate, the lien of a judgment seeking payment out of it is discharged to the extent of the sum appropriated to the principal, with interest to-the date of confirmation ; to that extent is the judgment paid and satisfied and extinguished, and that in the present case the lien-creditor who has received the principal and interest on former distribution, to the date of confirmation of the sale of the lands which produced the fund against which he claimed, no matter when he actually was paid his money, is presumed to have received it on the day when the law made the appropriation, to wit, August 26th 1878.</p> <p>“ As was well suggested by counsel for a late lien-creditor : Suppose there are judgment-liens against A., owing Whiteacre and Blackacre, and that on a sheriff’s sale Whiteacre is sold and the proceeds paid into court for distribution; that a contest arises which is not finally, determined until the Supreme Court has closed the gate, when a lien-creditor will receive his principal, with interest to date of sale only; could the lien- creditor issue execution and sell Blackacre.to recover interest he lost pending the contest over the Whiteacre fund ?</p> <p>“ We therefore hold that the claim for interest out of this fund upon judgments which received principal and interest in full to date of confirmation out of the other fund must necessarily be disallowed.</p> <p>“ 2. The next question raised relates to the distribution of the fund, $1151.13, made up of interest, rent and royalty on coal. At the time of the former distribution the assignees were chargeable with interest which they were entitled to receive upon,the purchase-money realized from the sales of real estate which had then been made by them and with rents and royalty. The amount was then before us' to be distributed. The fund now before us is made up to a large extent of interest heretofore received upon the deferred payment distributed by the former report. The items constituting the fund have been separated so as, to afford opportunity for exception to our ruling upon the point made, which is :</p> <p>“ How is this accrued interest upon purchase-money to be distributed ?</p> <p>“It is not disputed, and we think cannot be, that the fund with the exception probably of the items of rent and royalty, being produced by the proceeds of real estate, accretions to that fund should belong to it and be distributed with it to the lien and not to the unsecured creditors. But as to the method of application to the liens these different positions were taken, according with the different interests of the claimants :</p> <p>“ 1. The early lien creditors contended that it should be applied to liens at the time of the assignment in the order of their priority until they should have been made whole of the interest lost between the date of confirmation of first sales and the date of actual payment.</p> <p>“ 2. The later lien creditors claimed that it should be applied to all the liens participating in the former fund pro rata their several amounts on date of confirmation, on the ground that it should be treated as a fund produced by an investment made by order of court,- and that in such case it would be applied to the pro rata benefit of all lien creditors participating in the principal fund.</p> <p>“ 3. The latest lien creditors insisted that it should go to the liens not paid in full by the former distribution, on the ground that those liens which had received principal and interest in full to.date of confirmation of sale were then wholly satisfied, and those which, had received only part payment were satisfied only pro tanto.</p> <p>“ Now, if we are correct in our ruling upon the question first discussed, that is as to whether the first lien creditors should receive out of the present fund interest which they had lost out of the former, then we must disallow the claims made upon the present question by the first and latter lien creditors. Because, if in law the lien creditors who received principal and interest in full by an appropriation as of date of confirmation were then satisfied, although' they had lost interest upon their .liens for a period, then undoubtedly they receive nothing further from the estate, either by preference or pro rata. The ruling upon the first question decides points 1 and 2 made on this.</p> <p>“ We determine, therefore, that this fund should be added to the real estate fund proper, and be distributed with it to the liens unpaid by former distribution in the order of their priority.</p> <p>“.Both of these questions are new to us, and do not seem to have been authoritatively settled by the Supreme Court, unless it be by the principles of the cases hereinbefore referred to. We would be pleased, therefore, to have our rulings reviewed* by exceptions and corrected if erroneous.”</p> <p>* Exceptions were filed -to the report of the auditors, and it was alleged they erred in determi*ing that “the interest fund should be added to the real estate fund and be distributed with it to the liens unpaid by the former distribution.” The exceptants claimed that the interest fund should be applied pro rata to all those judgments, or to such part of any judgment as would be entitled to payment out of the fund upon which such interest accrued.</p> <p>The court, Hart, P. J., in passing upon the exceptions, filed the following opinion:</p> <p>“ The argument of the learned counsel for the exceptants is one of great force, and I might be inclined to yield to it, and decree accordingly, if this were^a case of first impression. It is contended that as to interest on the real estate fund not accounted for at the date of the first distribution, but which accrued and was paid to the assignees after such distribution, it is to be regarded in equity as an accretion, not to the assigned estate in general, but to the principal fund distributed ; and therefore that the law having appropriated the principal fund, and distributed it, eo instanti, that the sale was confirmed — the business of the court, after such confirmation, being, in strictness, not to make, but to ascertain, the legal distribution — any accretions of interest to that fund must belong _ to the lien creditors to whom the law had distributed the principal in the ratio of the amounts so distributed, respectively, to the whole amount of the principal fund.</p> <p>“ But I am of opinion, with the auditors, that the question has been -authoritatively settled against the exceptants in the three recent cases cited by the auditors — but more especially in Tomlinson’s Appeal, supra. In that case the sale was confirmed on the 24th December 1877, the terms of sale being ten per cent, of the purchase-money to be paid in cash, and the remainder on the 1st April 1878. The auditor allowed Ilarple, a lien creditor, interest on his judgment to April 1st 1878. The court below confirmed the report; and on appeal to the Supreme Court the decree of confirmation was reversed on this single point — the court holding that interest on liens should be computed to the time of confirmation only, and not to the date of the payment of the purchase-money. Mercur, J., says: “ The precise question was ruled in Carver’s, Appeal, 'decided at the present term, supra. It was there held that the interest should be computed to the time of final confirmation only. * * * We held it was the confirmation of the sale, and not the payment of the purchase-money, which determines the time when interest- shall cease on liens paid out of the proceeds.” To the same effect is Herbst’s Appeal, supra.</p> <p>“ As already said, I concur with the auditors as to the bearing of these cases upon the question before us. I understand the construction put by the Supreme Court upon the Act of 1876 to be, in effect, that where a judgment creditor has received from the proceeds of sale of real estate the full amount of his claim, with interest to the date of confirmation, he is to be regarded as paid out — his lien gone — his judgment satisfied — and he has no further claim either against the assigned estate or against the assignor himself. The debt is as fully discharged as though the assignee, had, on the very day of confirmation, paid him the debt, interest and costs in full, and taken his receipt in satisfaction of the judgment. The truth seems to be, in the light of these authorities, and particularly of Tomlinson’s Appeal, that the vice of this proceeding was in the original order to sell on time instead of for cash. And it does not help the matter to say that it was so ordered by general consent of the lien creditors. In this court, hereafter, such time sales will not be allowed, unless it be under very special circumstances and upon very short credit.</p> <p>“ It follows frorri what has been said that the exception to the report of the auditors must be overruled and the report confirmed) finally; and it will be decreed accordingly.”</p> <p>From this decree this appeal was taken.</p>

Appeals from the Court of Common Pleas of Washington county: Of October and November Term 1880, Nos. 271, 273 and 299. These were the several appeals of Brit Hart et ah, Hazlett Bell and James Hopkins et ah, from the decree of the court distributing the proceeds of the sheriff’s sale of the property and franchises of the Pittsburgh Southern Railway Company.

199. Ejectment by Jacob L. Moyer against Joseph Braithwait and Henry Garrett for 298 acres of land. On the 10th of September 1877, Jacob L. Moyer agreed by written articles to sell his farm in Springfield township, Fayette county, containing about 300 acres, to Henry Garrett and Joseph Braithwait for the sum of $6000.

<p>1. In ejectment plaintiff showed title to the pr6mise« in dispute in her husband, who died seised thereof, and devised the same to plaintiff. The defendant, who was the testator’s son, claimed title by adverse possession during his father’s lifetime and was permitted to testily in his own behalf, and on cross-examination also testified as to the circumstances of an alleged parol gift by his father to him; Held, to have been error; that defendant was within the proviso of the Act of April 15th 1869, and was therefore clearly incompetent to prove the facts and circumstances to which he testified as having occurred during the lifetime of his father, and that the testator must be regarded as the assignor of the plaintiff within the fair intendment and meaning of said act.</p> <p>2. While the legislative purpose to establish a new rule of evidence by the Act of 1869, which declares .that “no interest nor policy of law shall exclude a party or person from being a witness in any civil proceeding,” is clearly expressed, the intention to exclude from its operation certain persons, disqualified on grounds of public policy, and cases in which inequality and consequent undue advantage would otherwise result, is equally manifest.</p> <p>3. In general, where parties have dealt together or have sustained relations to each other out of which rights and obligations have sprung, each may be supposed to have an equal knowledge of the transaction or of the relations existing between them, and both, if living and of sound mind, are permitted to testify ; but if death or insanity has precluded one of them from testifying the other is not entitled to the undue advantage of being a witness in his own case.</p> <p>4. Hess v. Gourley, 8 Norris 195, followed.</p>

<p>Error to the Court of Common Pleas of Grreene county: Of October and November Term 1879, No. 61.</p> <p>Ejectment by Daniel W. Braden against Benjamin E. Campbell to- recover a house and lot in Waynesburg, Greene county, being one-half of lot N0..M6, in the original plan of said town. The defendant pleaded- not guilty. Both parties claimed title under Benjamin Campbell, deceased, the father of defendant. At the trial, before Willson, P. J., the plaintiff showed title by his purchase of the premises in question at an Orphans’ Court sale, for the payment of debts, which was duly confirmed by the court, and'a deed to plaintiff from the executors of decedent in pursuance thereof.</p> <p>The defendant set up a parol gift from his father in 1853, by virtue of which defendant had .entered into possession in 1854, and had by himself or through his tenants remained in uninterrupted possession thereafter. The brother of defendant and other witnesses in effect testified that Benjamin Campbell, the father, had purchased the entire lot, No. 146, on the town plan, in 1848, with the intention of giving it to his two sons, both of whom had been recently married, and with a view to building a house for each of them thereon. The house on the lot in dispute was built partly at the expense of the father and partly of defendant. At that time the father was worth about $20,000 or $30,000, but in 1876 became embarrassed, and died in August of that year leaving the indebtedness for which the Orphans’ Court sale was made. "No deed was executed by the father to either of the sons at the time of the gift, and the other brother, R. K. Campbell, testified that the arrangement was that the father would make the deeds when they were wanted, and that witness had subsequently sold his lot and received the purchase-money his father and mother executing a deed to the purchaser. The property was assessed to the father down to 1852, and to defendant after that date. The taxes w-ere generally paid by defendant or by the father and charged to defendant.</p> <p>The following point was presented by plaintiff, which the court affirmed. Taking into consideration the whole of the evidence introduced by defendant, and the proper inference deducible from it, the defendant has failed to establish such a gift as takes his case out of the Statute of Frauds and Perjuries.</p> <p>Verdict for plaintiff, and after judgment thereon defendant took this writ and alleged that the court erred in affirming the above point.</p>

<p>(r. was active in soliciting subscriptions for the building of a railroad. He took a book from the agent of the company, subscribed therein himself and persuaded others to subscribe, and kept the book about six months. Because of some difference with the agent of the company about the payment for his services he cut his name out of the book and returned it to the company. In a suit by the latter for the amount of his subscription, Held, that he had perfected a contract with the company and he was just as much bound as if he had left his name in the book.</p>

279. Scire facias by Joseph R. Marshall, administrator of Robert F. Fuller, deceased, against William H. Hope, administrator of E. G. Roddy, deceased; Lydia J. Roddy, widow of said E. G. Roddy, and Mary E., Ewing B., Josephine S., Lydia G. and Martha G. Roddy, children of E. G. Roddy, deceased. Edward G. Roddy died on the 12th of June 1867, leaving surviving him the defendants, widow and children, and indebted to Robert F. Fuller, in about the sum of $500.

<p>Error to the Court of Common Pleas of Crawford county: Of October and November Term 1879, No. 107.</p> <p>Assumpsit by William Dennis and others against the supervisors of Sadsbury township to recover certain moneys alleged to have been paid out on account of the township as bounties to volunteers.</p> <p>The material facts will be found stated in the opinion of this court.</p>

<p>Error to * the Court of Common Pleas of Washington county: Of October and November Term 1880, No. 300.</p> <p>Feigned issue, wherein E. T. Graham was plaintiff and James Sampson, in trust for the Peoples’ Savings Bank, was defendant, to try the title to a stove pattern 'seized by the sheriff as the property of A. Y. Graham.</p> <p>At the trial, before Hart, P. J., it appeared that in 1873, George A. Keller, who owned a foundry property and dwelling attached in Monongahela city, sold the same to A. V. Graham, who was the father of the plaintiff. A. Y. Graham carried on business in the foundry until the fall of 1877, when he took his son and Henry Rohrer into partnership with him. That partnership continued until the following October 1878, when the firm was dissolved by E. T. Graham buying out the interests of his father and ..Henry Rohrer in the concern. The stock, fixtures, &c., in the foundry were then valued by the parties at about $1100, making the interest of each party about $369.</p> <p>At this time, there were two liens against this real estate: 1. A mortgage for $1000, being a balance of the purchase-money and a judgment for $2000. Both of these liens were held by the Peoples’ Savings Bank of Monongahela city, the defendant. About the time of the dissolution of the partnership and purchase by the son, or shortly after, E. T. Graham purchased from his father certain property about the foundry, which belonged to the father and not to the firm. The purpose of this arrangement, as testified by the father and the son, and by one Alexander, was to Secure Alexander & Co.’s debt of that amount, which the father owed them, the son binding himself to assume and pay said debt in consideration of the transfer of these goods to him by the father. The bill of sale to E. T. Graham was in evidence, and was dated the 14th of November 1878. According to the testimony of the father and son, this arrangement was brought about by the suggestion of Alexander in the first instance, made about the time of the dissolution of the firm. It was agreed upon at that time, and a bill of sale was drawn up and executed, transferring this property, the pattern in dispute and individual property of the father about the foundry, and certain furniture to the son, E. T. Graham.</p> <p>At the time that the son purchased the interests of his father and Rohrer in the partnership, he rented from his father the foundry building, and went into possession, and in about a month after-wards he resumed business in his own name, retaining his father as a hired hand, the latter being a practical moulder by trade. The. father, when he was managing man of the firm, occupied the office, but after the son commenced running the business, he took his place as a moulder in the foundry proper. In the meantime, the pattern in suit had been deposited with Henry Rohrer as security for the note which E. T. Graham had given for the three hundred and sixty-nine dollars and some cents, which was Rohrer’s interest in the foundry, and was removed at that time by Rohrer to his own residence, about a mile distant from the foundry.</p> <p>The next spring, E. T. Graham, the plaintiff, testified that after the purchases of the real estate by the bank, he having become the tenant of the bank, and paying rent to it, he borrowed this pattern from Rohrer for a short time to make a few stoves. After he had used it for that purpose, he testified he returned it to Rohrer, and it remained in Rohrer’s possession until after E. T. Graham had put up a new foundry, when he got the pattern again, and it was in this new foundry at the time the sheriff made the levy upon it, on the 28th of December 1878, when the bank issued an execution upon its $2000 judgment. On that execution the real estate was sold by the sheriff on the 13th of January 1879.</p> <p>On “the -28th of December 1878, the personal property, then being in the house and in the foundry, were levied upon under the same writ. That did not include this pattern, for it was not then in the foundry. E. T. Graham then gave notice to the sheriff that the furniture, and what had been the individual property of his father in the foundry, belonged to him by virtue of this purchase from his father under the arrangement with Alexander. An issue was raised upon that claim, and was tried and disposed of. After this the. sheriff seized, as the property of A. Y. Graham, the pattern of the stove which went by the name “ Try Me, No. 8,” and which is the subject of this controversy. He was notified by E. T. Graham, the plaintiff, that he claimed to be the owner of the pattern. A rule was obtained by the sheriff from the Court of Common Pleas upon E. T. Graham and the execution-creditor, the bank, to maintain or relinquish their respective claims, and under that rule this issue was framed to determine the right.</p> <p>In their charge, the court, inter alia, said:</p> <p>“Now, what is the question for the jury to determine? It is simply whether at the date of the sheriff’s levy the property or ownership of the pattern was in E. T. Graham or not. It is contended by the counsel for the defendant that this pattern was a fixture, and that as such it was part of the real estate of the foundry, and was covered by the liens against the real estate, and, therefore, that the severance and sale of it by the father was a nullity, and, moreover, it constituted what is called a fraud in law. [I cannot, however, adopt this view of the law. Patterns, fallow-boards, flasks, and such things in a foundry, in my judgment, are mere furniture and,not fixtures, and the jury is now instructed, as matter of law, that this stove pattern was not a fixture but a mere chattel.] The question then for you to determine, is whether there was any fraud in fact; whether the sale of the property in the foundry to the son by the father was intended to protect or cover up the goods from levy and sale by the creditors of the father ? If so, it was a fraud against the creditors.”</p> <p>Yerdiet for plaintiff, and after judgment defendant took this writ and alleged that the court erred in the foregoing portion of the charge included in brackets.</p>

<p>1. After the acknowledgment of a sheriff’s deed the sheriff’s sale will not be set aside for mere inadequacy of price.</p> <p>2. There must he a point of time when irregularities are cured and the law fixes the acknowledgment of the sheriff’s deed as that time. Were this rule to be relaxed titles might be imperiled.</p>

<p>Error to the Court of Common Pleas of Crawford county: Of October and November Term 1879, No. 232.</p> <p>Assumpsit by John R. Clark against Ruel D. Fletcher, surviving partner of William T. Neill, copartners, lately doing business as the Titusville Savings Bank.</p> <p>In the fall of 1868 several persons formed a partnership by agreement in writing to carry on the business of banking at Titus-ville, under the firm name and style of “ Titusville Savings Bank.” Th'e association continued to transact a general banking business until September 1873, when it failed. The defendant was a member of the partnership until some time in 1870, and was advertised as a director of the bank in.the“ Titusville Herald,” until the 5th of September 1870. The plaintiff knew that the defendant was a member of the firm, had seen his name advertised as one of its directors, and had received no notice of his withdrawal therefrom. The plaintiff deposited various sums of money in the bank between the 7th of January 1871, and the 1st of July 1872. This action was brought to recover a deposit. Another action was brought against other members of the firm but no money was collected. The plaintiff offered to prove the amount of money deposited by'him in the bank, which offer the court rejected.</p> <p>Tn the general charge the court, Church, P. J., said :</p> <p>“We have rejected the evidence of the debt of the Titusville Savings Bank to John Clark. We have forbidden the plaintiff to prove the allegation that the savings bank owed a debt to John Clark, because Clark did not begin doing business with the bank Until January 1871, and Fletcher actually went out of the co-partnership in February 1870, according to the plaintiff’s own evidence.</p> <p>[“ So far as the public, who had never done business with the bank, were concerned, by the dropping of his name as an advertised director and stockholder in this bank, he ceased to be such director and stockholder as to such public, provided, of course, he actually ceased to be interested in the bank. ]</p> <p>[“ Inasmuch as plaintiff’s offer was to prove that the inception of the bank’s indebtedness to the plaintiff was in January 1871, and he does not offer to prove that the defendant actually was a stockholder at ’that time, or that he, the plaintiff, ever therefore heard that such was the case, the plaintiff never was actually deceived, and cannot, under the law of partnership, hold the defendant for this debt.]</p> <p>“ Your verdict will therefore be for the defendant.”</p> <p>Verdict for defendant, when plaintiff took this writ alleging that the court erred (first assignment) in rejecting the plaintiff’s offer, and (third and fourth assignments) in the portions of the charge in brackets.</p>

<p>j. ¿eoree 0f the Orphans’ Court making an order of sale of the real estate-of a decedent for the payment of debts is not a definitive decree, and an appeal does not lie therefrom.</p> <p>Ness’s Appeal, 1 Watts 255, overruled, and Gesell’s Appeal, 3 Norris 238; followed.</p>

<p>1. The Act of June 12th 1879, entitled “ An act to pi-ovide for the holding of courts in certain cities of this Commonwealth,” provides that in all counties containing a population of not less than 60,000 inhabitants, and in which there is now or may hereafter be, any incorporated city of the fifth class, it shall be the duty of the president judge, upon the application of'the mayor and councils of such incorporated city, to make an order for the holding of one week of court or more, if necessai-y, in said city : Held, that said act is in conflict with sect. 7, art. 3, of the Constitution, and is void.</p> <p>2. The fourth section of said act makes it the duty of the prothonotary and other county officers to attend the sessions of said court, in said city, and to bring with them papers and documents, &e.: Held, that said section is in with scot. 4, art. 14, of the Constitution, which provides that pro-shall keep their offices in the county town of the counties of they shall respectively be the officers. The plain meaning of these words is that the officers referred to shall keep the records and papers pertaining thereto at the county seat.</p> <p>3. Per Paxsojj, J. — This act is an attempt to evade the Constitution. It is special legislation under the attempted disguise of a general law. Of all ^orms sPeo^ legislation this is the most vicious.</p>

<p>1. Attached to a recorded mortgage was the following certificate: “ Crawford county, ss. Subscribed and acknowledged before me this 8th day of July 1872. A. M. Smith. Recorder.’-’ Held, that the certificate did not contain the necessary ingredients of a valid acknowledgment and the mortgage should not have been recorded.</p> <p>2. In order that a deed or mortgage may become efficacious it must be acknowledged- by the grantor, before a competent officer, who must certify such acknowledgment “'with the day and year, when the same was made, and by whom.”</p>

<p>Error to the Court of Common Pleas, of Qrawford county: Of October and November Term 1880, No. 105.</p> <p>Scire facias sur mortgage issued by D. H. Mitchell, president, in trust for the Producers’ and Manufacturers’ Bank against’Nelson Coombs and E. A. L. Roberts and W. B. Roberts, partners as Roberts & Co., terre-tenants.</p> <p>On the 30th of June 1869, Nelson Coombs, the defendant, executed a judgment bond and the mortgage upon which the scire facias issued in this case, to E. W. Ames, president, in trust for the Titus-ville Savings Bank. This bond and mortgage were given for the sum of $1000, payable in two months from the 29th of June 1869, and the mortgage was recorded on the 5th of July 1869, and became the first lien on the property therein mentioned.</p> <p>On the 10th of February 1871, Coombs being still indebted to the Savings Bank, and the bank not willing to wait longer on him, an arrangement was made between, the plaintiff representing the Producers’ and Manufacturers’ Bank, and C. C. Duffield, cashier, who represented the Titusville Savings Bank, the mortgagee, by which the plaintiff advanced the mone3 to pay the Savings Bank and took an assignment of the bond and mortgage. The plaintiff was induced to do this'through the representations of the defendant that it was a first lien, and that there was no defence or set-off against it. And the defendant, Coombs, was instrumental in having this arrangement made so that he could have further indulgence.</p> <p>The terre-tenants, W. B. & E. A. L. Roberts doing business as Roberts & Co., took a mortgage from the defendant, Coombs, dated June 13th 1871. This mortgage covered the land included in plaintiff’s mortgage and was recorded June 19th 1871.</p> <p>The assignment to plaintiff of the mortgage of Coombs to the Savings Bank was not recorded until October 17th 1873. And upon the same day this scire facias on the mortgage in the name of the plaintiff was issued.</p> <p>Under the mortgage to Roberts & Co. there was a foreclosure and sale on a levari facias at August Term 1874, and the property bid in by E. A. L. & W. B. Roberts, and deeds were acknowledged and delivered to them.</p> <p>On the 30th of June 1879, while this suit was still pending, E. A. L. & W. B. Roberts presented their petition to the court setting forth the above facts in relation to the execution of their mortgage, and the sheriff’s sale thereunder, and alleged that the defendant, Nelson Coombs, had paid the plaintiff the amount due on said mortgage and asked leave to be made defendants, which was granted.</p> <p>At the trial before McDermitt, P. J. (of the Thirty-fifth Judicial District), the plaintiff presented the following points, to which are appended the answers of the court.</p> <p>2. The record of the mortgage was notice to the world of its existence as alien, and the assignment thereof having been recorded October 17th 1873, was notice to the terre-tenants who purchased at sheriff’s sale in August 1874 of its continuance in the hands of plaintiff, and the purchase by them would be-subject to the lien of this mortgage.</p> <p>Ans. “ The purchaser at'the sheriff’s sale took a good title provided the sale was made on a lien prior to the recording ot the assignment of the mortgage to the plaintiff. Thus explained the point is refused.”</p> <p>3. No notice of any alleged payment of- the mortgage having been given at the time of the sheriff’s sale, the Messrs. Roberts are presumed to have purchased the property for a sum less by the amount of the mortgage than they otherwise would have paid.</p> <p>Ans. “It is wholly immaterial whether the defendants, Roberts, purchased the land for $1000 less than they would have paid had it not been for the mortgage. The point is refused.”</p> <p>4. The terre-tenants (Roberts) by their purchase at sheriff’s sale acquired no greater right than Coombs, the mortgagor, had to the land embraced in the mortgage at the time their lien attached.</p> <p>Ans. “ As explained in the general charge, this point is answered in the negative.”</p> <p>The following were among the points of the defendant with the answers of the court thereto :</p> <p>1. That the bond and mortgage in question were for the payment of $1000 on the 29th of August 1869, absolutely and without any stipulation that the same was security for future discounts, and if the jury believe that the mortgage was paid by Coombs to the mortgagee in October 1869, the lien of the mortgage is discharged, especially as to subsequent purchasers at sheriff’s sale of the premises in question, and the verdict should be for defendants.</p> <p>Ans. “Affirmed.”</p> <p>2. That under the evidence in this case, Mitchell, president, did not purchase the mortgage from the Titusville Savings Bank,'nor pay this bank anything for the assignment thereof, and it is not to be treated as a bona fide purchaser of the same, and the same should not prejudice bona fide purchasers of the premises at judicial sale.</p> <p>Ans. “ The law is correctly stated in this point, but the facts assumed in it you must find from the evidence.”</p> <p>3. That if the jury believe from the evidence the negotiation whereby an assignment of the mortgage in suit was taken as collateral, for the payment of the note was entirely between Coombs and Mitchell, it can have no greater effect than the creation of a parol mortgage and will not make a valid lien against the premises in hands of defendants, Roberts, purchasers of the premises at judicial sale without notice.</p> <p>Ans. “So far as the defendants, Roberts, are concerned this point is affirmed, but refused as to Coombs.”</p> <p>4. That the alleged assignment of the mortgage in question was not recorded until October 17th 1873, and that the lien of the mortgage upon same premises, dated June 13th 1871, of Coombs to Roberts, and the judgments of Guthrie against Coombs entered January 18th 1870 and January 16tbi 1871, under which' Roberts became the owners of the premises in question, were liens long prior to the recording of this assignment, and therefore defendants, Roberts, held the premises discharged of any lien of the alleged mortgage.</p> <p>Ans. “If the-facts are as assumed in this point it is affirmed.”</p> <p>In the general charge the court, inter alia, said: “ According to the evidence of the defendant, Coombs, and of D. H. Mitchell, the plaintiff in trust, this mortgage was on the 10th of February 1871, assigned by Coombs to the plaintiff as security for a loan of $1000.</p> <p>* * * If this case was between the defendant, Coombs, alone, and the plaintiff, the mortgage would, under the evidence, be valid; but when the rights of subsequent lien-creditors or purchasers at a judicial sale are involved and become so prior to the recording of the assignment to the plaintiff, the law as to them is different. * * * If you are reasonably satisfied, from the evidence, that Coombs paid this mortgage in full to the mortgagee prior to the assignment to the plaintiff, your verdict must be in favor of the defendants, Roberts, terre-tenants.”</p> <p>The jury found for the plaintiff against Nelson Coombs in the sum of $1347, but judgment not to be a lien on the land described in the mortgage.</p> <p>After judgment thereon Mitchell took this writ and alleged that the court erred in the answers to the above points and in the foregoing portions of the general charge.</p>

<p>Error to tbe Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 116.</p> <p>Case by William B. Stewartson and Harriet N. Stewartson, bis wife, in right of said wife, against tbe Monongahela Water Company, to recover damages for injuries received by Mrs. Stewartson through falling into an excavation.</p> <p>Tbe defendant is a company incorporated under statutes of Pennsylvania for the purpose of supplying water to that part of tbe city of Pittsburgh on the south side of the Monongahela river. The pipes of the company extend along the streets of what was Birmingham, East Birmingham, Monongahela ’borough, Temperanceville, and other suburbs of the old city. In the summer of 1876, the company, at the request of the citizens on the heights of Allentown, were laying pipes in the comparatively unsettled portions of the city. For that purpose they employed William Dickson, who had sole and exclusive control of the excavation for pipe laying. On the 14th. of June 1876, an excavation was made in what is on the map as Plain avenue, an unpaved street. The plaintiff, Mrs. Stewartson, saw the men at work at the excavation during the 14th. On that evening she alleged that she was proceeding down an alley leading into Plain avenue and fell into the excavation and sustained the injuries complained of. ■</p> <p>The trial was before Kirkpatrick, A. L. J.</p> <p>The verdict was for plaintiffs, and after judgment thereon defendant took this writ alleging that the court erred as follows:—</p> <p>1. In excluding the testimony sought to be elicited from plaintiff by the following question :—</p> <p>“ Q. Didn’t you arrange (through Daniel Wenke) with the officers of the company, that if they would not charge you with any water, you would not find any fault with them about the matter?”</p> <p>2. In excluding the question proposed by defendant’s counsel to plaintiff, as follows:</p> <p>To ask witness whether she did not say to Stengle (superintendent of defendant company) that she had been only a little scratched ?</p> <p>3. In admitting the following offer: Plaintiff’s counsel propose to ask the witness whether or not immediately prior to the putting up of the barricade, he notified the party in charge of the work of ■ the dangerous character of the place, and that a barricade was necessary, for the purpose of showing an admission of negligence upon the part of the defendant company, by the erection of a barricade after the accident, and also to show that there was no such barricade before.</p> <p>4. In admitting the question of plaintiff’s counsel to the servant girl, Miss Fern: “ From your knowledge of the woman before and after the accident,- could you tell us what effect it had upon her health ?”</p> <p>5. In admitting the question of plaintiff’s counsel to Dr. Case: “ From your professional knowledge of Mrs. SteAvartson’s condition, will she ever be a healthy woman ?”</p>

<p>. 1. The transferees of stock in an incorporated company is not liable for an unpaid subscription.</p> <p>2. The capital stock of a corporation is a trust fund for the protection and benefit of creditors, and this extends to the entire stock subscribed, and not merely to the percentage paid in, and a subscriber cannot cast off his liability by a transfer of his stock to another party.</p>

204. Appeal of Peter Berger from the decree of the court confirming the report of the auditor appointed to pass upon the exceptions to the special return of the sheriff of the sale of tire real estate of W. R. Hoig. . The facts are set forth in the following report of the auditor, D. C. McCoy, Esq.: “ In February 1876, W. R. Hoig was the owner of several pieces of real estate, and at the same time a number of judgments existed against him, liens upon the same.

303. Indictment of John Garbracht for selling liquor without a license. H. V. Claus, a resident of the city of Erie, was a wholesale' dealer in liquors and groceries, and duly licensed to keep a wholesale liquor store in said city. This license was granted by the Board of Licensers of the city of Erie under the Act of Assembly approved May 10th 1871, Pampb.

<p>Error to the Court of Common Pleas of Butler county: Of October and November Term 1880, No. 820.</p> <p>Replevin by S. N. Callender and P. A. Laffer, trading as Cal-lender & Co., late partners with John E. Denny, under the firm name of John E. Denny, against Thomas Robinson.</p> <p>S. N. Callender and P. A. Laffer, partners as Callender & Co., engaged in the wholesale drug business in the city of Meadville, Crawford county, Pa., on the 5th of November 1872, entered into an agreement in writing with John E. Denny, under which Denny was to carry on the retail drug business in Oil City, Yenango county, Pa., under the firm name of John E. Denny.</p> <p>The agreement was as follows:—</p> <p>• “ Article of agreement made and entered into this 5th day of November 1872, between Callender & Co., of Meadville, Pa., of tbe first part, and John F. Denny, of Oil City, of the second part, for the purpose of carrying on the retail drug business in Oil City, Pa.</p> <p>The party of the first part agree to furnish the necessary stock of drugs, patent medicines, sundries and appliances for the said business at prices reasonable to the trade, charging no interest on the partnership account herein represented.</p> <p>The party of the second part agrees to conduct the said business to the best of his ability and fidelity, procuring his supplies from the parties of the first part.</p> <p>It is mutually agreed that the business in Oil City shall be conducted under the style and firm name of “John F. Denny,” that the charges for rent, fuel, insurance, extra help, freight, &c., shall be first paid out of the receipts of the business, that only such debts shall be contracted in the name of this partnership as are necessary to the proper accomplishment of the intention thereof as herein expressed.</p> <p>It is also agreed that one-half of the net profits of this partnership, after deducting necessary expenses, shall be the property of the said party of the second part for services rendered, and the other half of the net profits shall belong to the said party of the first-part in full for their investment in said partnership.</p> <p>It is also agreed that at the close of this partnership, the stock furnished therefor shall revert to and become the property of the said party of the first part.</p> <p>It is also agreed that there shall be no removal of stock or change of place of business, or manner of business, without the consent thereon written of both parties to this agreement.</p> <p>It is further agreed that this partnership shall expire one year from this date, viz.: on the 5th day of November 1873.</p> <p>Witness: Callender & Co., first part.</p> <p>H. N. Arnold. John F. Denny, seeond part.</p> <p>By mutual agreement, the place of business above specified was changed to Butler, Pa., May 1st 1873, and the stock 'of goods removed from Oil City to Butler, other parts of this agreement remaining the same.</p> <p>Witness : Callender- & Co</p> <p>Wm. Goodwin. John F. Denny.”</p> <p>When the stock was removed and the store opened in Butler, the lease, sign, advertisements, drug license, &c., were all in the name of John F. Denny.</p> <p>On July 22d 1873, John Berg & Co., bankers, entered a judgment on a note for $350 against John F. Denny and D. Denny & Co., and on same day issued fi. fa. No. 173, October Term 1873. On July 23d 1873, the sheriff levied on “all the right, title, interest and claim of John F. Denny ” in the drug store. This note was given to Berg & Co. to renew a note which Denny had discounted at Berg & Co.’s bank in October or November .1872, and before he was in business with Callender & Co. in Oil City. On the 24th of June 1873, Thomas Robinson became endorser for Denny on a note for $300, due in sixty days (August 24th 1873) at the Producers’ Bank.</p> <p>On July 24th 1873, after the writ of Berg & Oo. had been issued, Robinson obtained from Denny a judgment note for $300, and on July 25th entered judgment on the same and issued execution, and the sheriff marked the same levy as had been made on the Berg & Co. writ and dated it the same.</p> <p>On August 2d 1873, the goods levied on were sold to Robinson at the sheriff’s sale for $493.10, after due notice as to the title thereto in Callender & Co. under the article of agreement. Robinson took possession of the store and contents, and this action of replevin was brought on August 5th 1873, to recover the possession of the property.</p> <p>At the trial, the defendant’s' fifth point with the answers of the court thereto were as follows:—</p> <p>5. That Callender & Co., the plaintiffs, having put Denny in a position which enabled him to obtain credit on the strength of the apparent ownership of the store or the strength of his business, they could not, when the goods were levied on by the creditors of John F. Denny, come in and set up or claim that they were partners, and that only Denny’s interest in the establishment could be sold; that they would be estopped therefrom, and they cannot recover.</p> <p>“ Ans. This depends on how the credit was obtained by Denny. If for the purpose of the business, then plaintiffs, having kept their interests in the firm secret, could not prevent a sale of the goods as the property of John F. Denny, that being the firm name. That is, if the debts were for money to be used in the business, then we think John F. Denny, under the powers in this agreement, and the fact that the partnership was kept secret, could give an obligation under which the whole title to the goods could be sold and would pass to the purchaser.”</p> <p>In the general charge, the court, inter alia, said:—</p> <p>“ What makes this question somewhat difficult, somewhat complicated, is the fact that this partnership was in the individual name of John F. Denny. The fact of Callender & Co. being partners was kept a secret. They did not make that known to any one. No one in Butler seemed to know that there was any other person interested in this store but John F. Den-ny alone. We have received evidence, under objection, of John F. Denny’s declarations from time to time to persons dealing with him, that no other person was interested in the store, and that he owned it himself. We have also received evidence that at the time Denny obtained Robinson’s endorsement on the note for which this note was after-wards given, that he stated that he was obtaining that money for use in his business. There is a difference in law between where parties carry on business in the individual name of one of the members of the firm, keeping their interests secret, and where it is made known. Where the interest is kept secret, the power of the partner carrying on the business is greater than where all persons having interests are known to parties dealing, or can be easily ascertained by parties dealing.with the firm. In this case, from the evidence, there was no means by which Robinson or any one dealing with Denny could have obtained information as to there being other parties interested in the firm* except Denny, and when they applied to Denny for that information, he stated that there were no other parties interested in the store. Therefore, from the fact that Callender & Co. put Denny in that position, and there was no other person from whom to obtain that information except Denny, and if the jury believe he did not give the information when demanded, that there were other persons interested, but claimed to own the store himself individually, then we think the law gives to third parties dealing with him whatever rights they would be entitled to if the fact that other parties were interested could have been known, or with reasonable diligence and inquiry ascertained by parties dealing with him. * * *</p> <p>“ There is a principle laid down which we think sustains our position here in a measure in Parsons on Partnership, section 360, chapter 10: But a distinction seems to be taken in this respect between the case of a dormant (that is, secret) partner and a known partner. Thus if a man in business have a dormant partner, and a creditor of the first sue him and attach his goods, this attachment shall not be postponed to a later attachment by another creditor who discovers this unknown partner and makes him defendant.’ That seems to us, in a measure, to sustain our position.</p> <p>“If Robinson had a judgment against John F. Denny, on a claim that the money raised by that endorsement was for use in his business, and not knowing any other partner there, that judgment could not be set aside in favor of a man who knew there were other partners and had obtained judgment against them. The same principle, if carried out, covers a sale of the goods as against a sale of the individual interest of the partner. We think, too, that there is a difference, and we might as well mention that a different principle applies between a writ against the goods alone and a suit against the-partner. Now, if Mr. Daniel Denny had sued this firm, and Robinson had sued the firm — sued Oallender & Co. and John F. Denny — they would be bound to show, in order to hold Callender & Co., that they were partners, and they would be bound to show that this debt was a partnership debt; but where there is a sale of the goods only of the partnership, then, we think, a writ against one partner alone — the ostensible partner— the parther known to the world, might, in certain cases, pass title to these goods, although it would not hold other members of the firm. But if suit had been brought against the individual, they would have been compelled to make out a different kind of ease from that where the party merely claims to levy on the goods of the firm.</p> <p>“ We think, under this agreement, where it is contemplated that two of the persons should be secret partners, these secret partners should not be given the title, where important authority was given to Denny to contract debts in the name of the firm, which was also the individual name of John E. Denny, that they would have if the other partners were known. It is true they tried to restrict the contracting of debts to only those necessary to carry on the business, but they could not restrict him from contracting debts individually, and, having placed him in that position, he has greater power, having put him in possession of the goods, and if he desflt with the public as though he was sole owner of the store, therefore, his powers were greater than if the other partners had been known.”</p> <p>The verdict was for defendant, when plaintiff took this writ and alleged that the court erred, inter alia, in the answer to the above point and the foregoing portion of the general charge.</p>

<p>Error to the Court of Common Pleas of Crawford county: Of October and November Term 1877, No.</p> <p>Appeal of the Second National Bank of Titusville • from the decree of the court making distribution of the proceeds of the sheriff’s sale of the real estate of Zephaniah Waid.</p> <p>The material facts will be found stated in the opinion of the court.</p>

269. This action was originally covenant brought June 13th 1870, by J M. Tyrrill, administrator of R. S. Tyrrill, deceased, and E.' Simmons, to tbe use of P. Crossman, against Alfred Lamb and John Lamb.

2, of Allegheny county: Of October and November Term 1880, No. 100.

<p>1. A release of a property mortgaged from the lien of a judgment cannot be set up against one who in good faith purchased the judgment without notice, actual or constructive, to put him on inquiry as to the release.</p> <p>2. A judgment was revived by an amicable scire facias. No note of the revival was made on the record of the original judgment. The amicable scire facias was, however, accompanied by a confession of judgment, which judgment confessed was at once entered upon the judgment-docket: Held, that this was constructive notice to all lien-creditors of the existence of such judgment and cured the omission to note the amicable scire facias in its proper place.</p>

<p>1. In January 1872, S. sold and conveyed to F. eighty acres of land, and as security for the'pavment of the purchase-money, §2750, took from F. and his wife their joint mortgage of the land so conveyed, together with a small tract called the “ Homestead,” which belonged to Mrs. F. in her own right. The mortgage payable in six instalments, with interest, contained this clause: “ Provided that as soon as the said first party shall pay to the second party the sum of §1000, of the purchase-money aforesaid, then the last-mentioned and described tract (Homestead) shall be released from said mortgage.” After making payments aggregating §983.75, and tendering the further sum of §61, the mortgagor demanded a release of the Homestead tract under the terms of the agreement. S. contended that the payments should be first applied to the accrued interest on the whole mortgage debt, and then on account of the principal, and claiming that the mortgagees were in default, issued a scire facias to collect the residue of the §2750, by sale of both tracts of land. F. then filed a bill in equity, praying for a decree requiring the mortgagee to release the Homestead tract: Held, that the court had jurisdiction: Held, further, that the release was properly ordered to be granted.</p> <p>2. The court imposed the costs upon S.: Held, that this was error.</p>

77. The facts of the ease will be found stated in the opinion of this court, which opinion was delivered by Paxson, J., sur rule to show cause why the order of November 22d 1879, affirming the judgment in the case of D. Brown & Sons, to the use of John Landsrath, against W. 0. Black and John Landsrath, should not be rescinded and the court below reversed;

162. Attachment execution by M. B,. Barr, to the use of Jacob Berst, against Wilson King and W. H. Miller, defendants, and the State Mutual Aid Association, garnishee. Charles Miller, in his lifetime, resided in Erie, Pa. He had two sons, James S. and W. H. Miller. Charles Miller became a member of the State Mutual Aid Association of Columbus Ohio. His certificate of membership provided that at his death his said two sons should receive from said association the sum of $3000.

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 279.</p> <p>Ejectment by John IT. Kirchner against Alexander Berryhill, for a lot of ground in the Fourth ward of the city of Allegheny.</p> <p>On the 8th of May 1866, Alexander Berryhill, Sr.-, was the owner of a lot of ground in Allegheny city, of which the premises in dispute formed a part. At that time he executed and delivered to Eliza Rector (now Eliza Barndollar), a deed for said lot. No consideration passed for said deed, and it remained unrecorded until the 4th of January 1868. It was claimed by defendant that on the 29th of June 1868, Mrs. Rector reconveyed said lot of ground to Berryhill, by deed recorded December 4th 1876. Berry-hill was in possession of the property when he made the deed to Mrs. Barndollar, and never left the possession, but continued there until his death, which occurred in September 1871. At the time of Berryhill’s death, his deed from Mrs. Rector was not recorded. On the 20th of May 1876, Mrs. Barndollar (formerly Rector), with her husband, executed a mortgage on said premises for $1350 in favor of A. L. McGeary, areal estate broker. No money passed on this mortgage until December 29th 1876, when it was sold and assigned to IT. S. McGeary. At this time the deed of Mrs. Rector to Berryhill had been recorded twenty-five days. Of the proceeds of this mortgage, $300 or $400 was given by Mrs. Barndoliar to Mrs. Elizabeth Hibler, wife of the guardian of the Berryhill heirs. Mrs. Barndoliar retained $150. A portion was applied to payment of some small liens against the property, and the costs of negotiating the mortgage. What became of the balance did not appear.</p> <p>The mortgage was foreclosed in default of payment of interest, and the premises sold by the sheriff to John H. Kirchner. At the sale, notice was given that the title to the premises was not in the mortgagors, but in the Berryhill heirs. At the time the mortgage was negotiated, some of the Berryhill heirs were in actual visible and notorious possession of the premises with their guardian, Samuel Hibler, and so continued until after the sheriff’s sale. Mrs. Barndoliar denied that she ever executed the deed of June 29th 1868. She acknowledged the signatures to the mortgage in evidence, and to her deposition.</p> <p>Defendant then offered to prove by WV T. Lindsay, an expert, that the signature to the deed of June 29th 1868, was made by the same person who signed the mortgage and deposition. This offer was objected to by plaintiff, and objection sustained by the court. (First assignment of error.)</p> <p>The plaintiff presented the following point, to which is appended the answer of the court:—</p> <p>That the plaintiff's title dates back to the date of the recording of the mortgage on which the property was sold, viz.; to May 21st 1876.</p> <p>Ans. “ That, as a general proposition, is affirmed, and the plaintiff has made out a good prima facie case to you, and unless the defendant satisfies you that this deed is genuine, and that notice was given and_lhat he was in possession as alleged, he cannot recover. If he/does satisfy you erf that, and you believe the money was put into/this very property for the benefit of the heirs, and they got the benefit of it, then your duty would be to find for the plaintiff.” (Fifth assignment.)</p> <p>The defendant submitted the following points, all of which the court refused</p> <p>4. If Kirchner knew, at the time he purchased, of the unrecorded deed of the defendant, the deed will take precedence. (Second assignment.)</p> <p>5. That if Kirchner purchased with knowledge of defendant’s unrecorded title, he became trustee of defendant. (Third assignment.)-</p> <p>7. If the holder of an earlier deed have it recorded before the sale to a vendee from one who had a recorded title of a subsequent date to deed unrecorded, the recording of the deed operates as notice. (Fourth assignment,)</p> <p>In the general charge, the court, Collier, A. L. J., inter alia, said:—</p> <p>“ It is claimed Mrs. Barndollar raised the money on this mortgage and applied it honestly to the payment of liens, and that she gave $300 or $400 to the wife of the guardian, who had these little children to take care of, and that the amount was not more than it was worth. I think if' that was honestly done, it would give a right in equity to the purchaser of this mortgage who paid his money, to whatever amount was honestly put into this very property for the benefit of these heirs and children. * * * (Sixth assignment.)</p> <p>“ If you find that the deed from Mrs. Rector to Berryhill was a genuine deed, and it was put upon record before McCreary purchased the mortgage, if he was the first purchaser of it, if it was given first to a broker and then transferred, and the deed was put on record before he purchased, and the defendant was in possession, old man Berryhill to the time of his death and his children afterward, then your verdict should be for the defendant, unless you believe that this money was put into the property and was reasonably expended on behalf of the property and the heirs. In that event, the plaintiff would be entitled to recover.” (Seventh assignment.)</p> <p>Verdict for plaintiff, and after judgment defendant took this writ and alleged that the court erred as set forth in the above assignments of error.</p>

<p>1. Where a man exercises the citizen’s right to denounce the action of a public officer, it is unlawful for him to make a false and malicious charge of crime or misdemeanor in office.</p> <p>2. There is no obligation upon a citizen, when discussing the conduct of public servants in their official capacity and who speaks the truth, as he designs to be understood, and as he is understood by his hearers, to employ any prescribed form of expression or language. So long as he speaks the truth, in words meaning nothing else, he is not liable in damages, whether his language be chaste or vulgar, refined or scurrilous. The style of speech seems to be governed by the taste of the speaker and not by the civil law.</p>

' Error to the Court of Quarter Sessions of Venango county: Of October and November Term 1879, No. 306. Indictment of William A. Nicholson for the seduction of Hessie Thorn. The defendant was indicted for seduction under the provisions of the Act of .March 31st 1860, sect. 41, Pamph. L. 385, and also for fornication and bastardy under the provisions of the 37 th section of said act.

255. Indictment of J. 0. Duffy for forgery. In the month of September 1875 the defendant was in the employ of the Howe Machine Company, as its agent, for the sale of its sewing machines.. He was then residing in the county of Armstrong, Pennsylvania, and was employed by the said company to sell machines in that vicinity.

<p>Error to the Court of Common Pleas of Clarion county: Of October and November Term 1879, No". 117.</p> <p>This was an action of replevin brought by Thomas Dougherty against James Haggerty on the 14th of April 1877, for 120,000 feet of hemlock lumber. About 80,000 feet worth from $8 to $10 per 1000, of the property was replevined at the mouth of the Clarion river, and retained by the defendant, Haggerty, upon giving property bond.</p> <p>In the year 1874, James A. McClelland, Samuel T. Reynolds and S. T. Dougherty, became the owners, by purchase and conveyance, from L. F. Flowers and wife, of the undivided three-fourths of 439 acres of land, being part of Holland warrant 2.775, in Spring Creek township, Elk county, Pennsylvania. It appeared from an article of agreement between S. T. Reynolds and S. T. Dougherty, dated the 16th of January 1875, given in evidence on trial, that said Dougherty and Reynolds had been engaged as copartners, under the name and style of Dougherty & Reynolds, in manufacturing lumber. On that date, S. T. Reynolds sold and transferred by said articles of agreement, to S. T. Dougherty, all his interest in the partnership assets; also his interest in the 439-acre tract. And also a one-fourth interest in a 14-acre tract, on which was erected a saw-mill and other buildings, purchased March Sd 1874, by article of agreement from L. E. and E. M. Powers. On the 1st of August 1876, an agreement was made between S. T. Dougherty and his father, the plaintiff in error, as follows : “ An article of agreement made by and between S. T. Dougherty, of 'Elk county, Pa., and Thomas Dougherty, of Clarion county, Pa., witnesseth, that the said S. T. Dougherty sells and delivers to the said Thomas Dougherty, one hundred thousand (100,000) feet, more or less, of hemlock lumber,- board measure, at the rate of fifty cents per 1000 feet, board measure. The said hemlock is to be taken off a lot of land lying in Spring Creek township, Elk county, Pa., and bought of L. Powers by S. T. Dougherty and James McClelland. And the said lumber is to be cut and removed just as soon as it can be ; and in consideration and connection with the above, S. T. Dougherty agrees to out, haul, saw, raft and run to market the hemlock timber at the rate of $5 per 1000, to be paid as the work progresses, and said lumber to be run to any point on the Allegheny to Pittsburgh, Pa.”</p> <p>Endorsed on this contract were receipts by S. T. Dougherty for $50, on the 1st of August 1876, and of $400, on the 14th of October 1876.</p> <p>The owners of the tract containing this 439 acres alluded to in the above contract as that from which the lumber was to be taken, were S. T. Dougherty, who owned one undivided half, James McClelland one-fourth, and O. 0. Earies and the heirs of one Graphies jointly the other fourth. S. T. Dougherty was the owner of at least one-fourth of the mill and fourteen-acre tract. S. T. Dougherty, under his contract in the fall of 1876, went on and cut logs on the 439-acre tract, and run them to the saw-mill on the fourteen-acre tract, where they were manufactured by a sawyer in his employ to whom he furnished the sizes. After the lumber was manufactured it was piled up at the mill. After they had been thus sawed and piled ready to raft an execution was issued on a judgment of Powers v. S. T. Dougherty, S. T. Reynolds and James McClelland, and the boards were levied on and sold to James Haggerty, defendant, who employed hands, rafted in and run them to the mouth of the Clarion river, where they were replevined by the plaintiff.</p> <p>Verdict for defendant, and after judgment plaintiff took this writ, and alleged that the court erred as follows:</p> <p>1. In the answer to the plaintiff’s fourth point: If J. A. McClelland gave S. T. Dougherty a license to cut timber off their joint lands to reimburse himself for money paid by Dougherty for Mc-Clelland, and the lumber in dispute was cut in accordance, with such license, the defendant would acquire no right of property to the lumber in dispute through J. A. McClelland.</p> <p>Ans. “We do not see the applicability of this point and there-ford decline to answer it.”</p> <p>2. In their answer to plaintiff’s fifth point: If S. T. Dougherty and. J. A. McClelland had exclusive possession of the land and S. T. Dougherty cut the timber from the stump, hauled and manufactured it as a jobber for T. Dougherty in good faith under contract of 1st August 1876, and the same was stamped and marked with the mark of T. Dougherty, and the defendant at sheriff’s sale had notice that the lumber belonged to T. Dougherty, if the jury should find the facts as stated in plaintiff’s third point, their verdict should be for the plaintiff</p> <p>The third .point referred to in this point is as follows : That if McClelland, Dougherty and Reynolds used the land or timber on warrant No. 2775 as partnership property, and so treated it, and the same was paid or to be paid for' out of partnership funds, as between them the standing timber would be as to their interest therein, subject to sale by any of the partners for the payment of partnership obligations or partnership debts.</p> <p>Ans. “ Refused.”</p> <p>3. In their answer to the defendant’s third point: If S. T. Dougherty contracted with the plaintiff, his father, to cut, manufacture and deliver the lumber in controversy from land owned by himself and another or others, the marking the logs or lumber while he was still engaged in performance of his contract and in control of lumber before the same had reached place of delivery, would not vest title in plaintiff so as to prevent execution-creditors levying on the same and under such facts plaintiff could not recover.</p> <p>Ans. “Affirmed.”</p> <p>4. In their answer to defendant’s sixth point: That under all the evidence in this case plaintiff cannot recover.</p> <p>Ans. “Affirmed.”</p> <p>5. In instructing the jury to find a verdict for the defendant.</p>

<p>1. One of the objects of the Act of Assembly requiring soliciting agents or surveyors of insurance companies, doing business in this state, to have a certificate of authority to act from the insurance commissioner, is the protection of the, people against worthless foreign insurance companies, and as the insured is not required to see that the laws have been observed, before making a contract of insurance, there is no reason founded on public policy that will enable a company which fas violated our laws in making a contract and received its consideration from an innocent citizen, to escape liability for non-performance, by setting up its own turpitude.</p> <p>2. An insurance contract is fair and reasonable when it expresses that representations affecting the risk are warranted, and if its meaning is doubtful, a court will not construe the language so as to avoid the policy for trifling and immaterial matters which neither party probably considered at the making of the contract.</p> <p>3. If the insured is the absolute owner of the property destroyed a dry trust of the legal title in another will not prevent a recovery.</p>

278. In the court below this was the petition of John Smith and H. C. McCoy, overseers of the poor of the poor district of Cherry township, Butler county, for an appeal nunc pro tunc, and for an order upon two justices who issued an order of removal of a pauper to return a certified transcript of the proceedings had before 'them.

164. Assumpsit by Seth Spier against L. H. Mizner, founded on a contract of guaranty or surety. At the trial, before Taylor, P. J., it appeared that Spier, on August 19th 1872, took from M. R. Kerney, Hugh Montgomery and William Corll three judgment notes for $266.66 each, due at three, six and nine months, making them fall due on November 19th 1872, February 19th 1873 and May 19th 1873, respectively.