Volume 97 — Pennsylvania State Reports

<p>Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1880, No. 138.</p> <p>Assumpsit, by the Girard Life Insurance, Annuity and Trust Company of Philadelphia, administrators of Edward Magarge, deceased, to the use of Sarah R. Magarge, against the Mutual Life Insurance Company of New York, upon a policy of life insurance issued by the company defendant upon the life of the said Edward Magarge, deceased, for $10,000.</p> <p>Pleas, non assumpsit, payment, and set off, with leave, he. Replication, non solvit, no set off, and issue.</p> <p>The defendant company had issued another policy upon the life of the said Edward Magarge for $5000, which was paid by the company shortly after the death of Magarge.</p> <p>The policy in suit was dated April 14th 1873, No. 28,375, and stipulated for quarterly premiums of $51 each, to be paid on or before the fourteenth days of January, April, July and October. Among other conditions contained in the body of the policy was the following: “ Second, If the said premiums shall not be paid on or before the days above-mentioned for the payment thereof, at the office of the company, in the city of New York (unless otherwise expressly agreed in writing), or to agents when they produce receipts signed by the president or secretary, then, in every such case, the company shall not be liable for the payment of the sum assured, or any part thereof, and this policy shall cease and determine.”</p> <p>“ it is also agreed, that in every case when this policy shall cease and determine, or become, or be null and void, all payments thereon shall be forfeited to this company.” The body of the policy was printed, written and signed, in the usual manner, on the first page of a full sheet of paper. Upon the two inside pages was a blank form, ruled in columns, intended for entries of the receipt of premiums (but which was not so used). At the head of this form, and running across the top of both inside pages, was printed in small type, occupying two lines, the following: “ Receipts heretofore by the company, of premiums after the day on which they fell due, were by the assured and the company considered acts of grace or courtesy, and as forming no precedent in regard to future payments of premiums on the policy; and all future receipts by the company considered acts of grace or courtesy, and as forming no precedent in regard to future payments of premiums on the policy, and all future receipts by the company of premiums after due are received and understood by the parties in interest as acts of courtesy of the company, and in no case to be considered a precedent or a waiver of the forfeiture of the policy according to the condition expressed therein, if any future payment of premium be omitted on the day it falls due.”</p> <p>On October 20th 1864, Edw'ard Magarge assigned the said policy to his wife, Sarah R. Magarge.</p> <p>Magarge paid the quarterly premiums on said policy from its date to October 14th 1870. The receipts given by the company contained the following:—</p> <p>“ NOTICE TO POLICY HOLDERS.”</p> <p>“ The agreement is mutual (see application and policy), that unless the premium is paid on or before the day it becomes due the policy is forfeited and void. Agents are not authorized to make, alter or discharge contracts, or waive forfeitures. Payments of premiums to agents are not valid unless receipts be given, signed by the president, secretary, cashier or actuary. When receipts are sent to agents for delivery, such agents shall countersign the same, as evidence of payment to them. All premiums are due and payable at the office in New York. For the convenience of the assured, they may be made to an agent, but only upon the production of the receipt above specified.”</p> <p>Magarge omitted to pay the quarterly premium duo January 14th 1871, on that day (Saturday). He tendered the amount on the following Monday, January 16th, but the company refused to receive it, and declared the policy cancelled and forfeited. He, thereupon, filed a bill in equity to enjoin the company from forfeiting the policy, and pending a reference of that cause to a master, Magarge died, of heart disease, February 21st 1872. After his death this suit was brought.</p> <p>The case was originally tried September 20th 1875, when the court granted a nonsuit, which the court in banc refused to take off. Upon writ of error to this court, the judgment was reversed and a procedendo awarded. (See 5 Norris 236.)</p> <p>The case was again tried, October 30th 1878, and a verdict was rendered for the plaintiff for $14,358.50. The court below granted a new trial, on the ground of error in the admission of testimony, and the case was again tried, November 25th 1879, before Finletter, J.</p> <p>The plaintiff, after giving the policy in evidence, called upon the defendant, in pursuance of a notice and a subpoena duces tecum, to produce the proofs of death which had been filed with the company soon after Mr. Magarge’s death. These proofs had been made but upon forms furnished by the company, under the oaths of the physician, a friend of the deceased, and the undertaker, and had been accepted by the company as sufficient at the time of the payment of the $5000 policy above mentioned. Defendant’s counsel replied, “ There are no proofs of death under the policy in suit.” Plaintiff thereupon offered to prove that the proofs of death theretofore filed with the defendant company were in accordance with the requirements of the policy now in suit; that these proofs of death were intended for this policy, as well as for the other, and that they are in the possession or control of defendants; the plaintiff also offered in evidence copies of said proofs of death. Objected to; objection sustained and offers overruled, “ unless it be shown that the proofs were furnished under the special policy in suit,” and “because the copy offered itself shows that it referred to anothér policy.” Exception. (Assignments of error, 1 to 6 and 17 to 19, inclusive.)</p> <p>The plaintiff called Henry E. Rees, who had been Magarge’s bookkeeper, and made the following offers of testimony, viz.: That it had been the custom of the company to send notices of the falling due of premiums, which the witness always opened and took charge of, but that he received no notice of the falling due of the premium due January 14th 1871. Objected to; objection sustained. Exception. (10th assignment of error.) That the premium due January 14th was tendered January 16th, and declined. That upon previous occasions in 1867 and in 1870, the premiums had been tendered and accepted a few days after they fell due. Objected to; objection sustained. Exception. (7th and 8th assignments.)</p> <p>Plaintiff offered to prove that it was the custom among life insurance companies doing business in Philadelphia to receive premiums within a reasonable time after they fall due, under policies similar to the one in suit, if the assured be in good health, notwithstanding the policies contain a clause of forfeiture for nonpayment on the very day. Objected to; objection sustained, unless it be shown that the offer applies to all companies doing business under the particular form of the policy in suit. The witness having answered that the policy is similar in general form and sense to other policies containing forfeiture clauses, with the exception of the two lines printed at the head of the inside pages, and that he did not know any other company having a policy exactly like the one in suit, the plaintiff's offer was overruled. (Assignments 11 to 16.)</p> <p>The plaintiff further offered to prove, by William N. Lambert, of the firm of Vanuxem, Bates & Lambert, the general agents for the defendant company in the State of Pennsylvania, “ that upon January 1st 1871, the surplus for defendant company for the year 1870 was divided among the policy-holders of the company, and that this policy now in suit was then entitled to the sum of $67.72, ■which appears by the books produced by the witness to the credit of that policy; and that the previous divisions of surplus or annual dividends due to this policy were more than the quarterly premiums due in January of each year; also to show how Magarge was in the habit of using those dividends in the payment of his premiums; also to show that $67.72 dividend appears upon the company’s books upon this policy, and has never been paid to Edward Magarge, or to his administrators, or to any one for them.”</p> <p>Objected to; objection sustained. Exception. (20th assignment of error.)</p> <p>The plaintiffs offered in evidence a book issued and published by defendant company, produced by their agent, William N. Lambert, called “ Mutual Life Rates,” for the purpose of showing, that the surplus belonging to defendant company is to be equally distributed each year among the different policies of said company, and that the same can be used in payment of premiums.</p> <p>Objected to; objection sustained. Exception. (22d assignment of error.)</p> <p>The plaintiff further offered to show, that at the time of the refusal of the premium of January 14th 1871, on January 16th, and previously thereto, Magarge was in good health; that Judge Elcock (witness) was his then counsel and in daily communication with him; and as counsel, applied to court for an injunction to restrain the company from forfeiting this policy; and that while the case was being argued before a master, Magarge died in February 1872.</p> <p>Offer overruled, unless it be shown that the condition of Magarge’s health was made known to the company.</p> <p>At the close of the plaintiff’s case, the court, on motion of the defendant, granted a nonsuit, which the'court in banc subsequently refused to take off. The plaintiff took this writ of error, assigning for error, the overruling of the plaintiff’s offers of testimony, the entry of judgment of nonsuit, and the refusal to take it off.</p> <p>The case was argued February 24th 1880, and the court ordered a re-argument, which was now had, January 4th 1881.</p>

<p>Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1880, No. 93.</p> <p>Appeal of Jane McConnell, administratrix of the estate of John Hamill, deceased, from a decree awarding to Eliza Fletcher certain sums claimed by her to bo due as wages from the said estate.</p> <p>On the adjudication of the account of Jane McConnell as administratrix, before Penrose, J., evidence to the following effect was adduced: John Hamill was a tavern-keeper, very intemperate in his habits and subject to frequent attacks of mania apotu. While suffering from these attacks he required careful and constant nursing. His wife, being in delicate health, was unable to nurse her husband and at the same time discharge the household duties. In the autumn of 1870, Hamill agreed with liis wife’s sister, Eliza Fletcher, that she should assist in nursing him, in doing the work of the house and in attending bar, promising to pay her $4 a week for her services. Eliza Fletcher had before this time resided near by with her brother, in a house where she received and nursed patients suffering from certain complicated and dangerous diseases, from which occupation she was able to earn from $15 to $25 a week. How far she gave up this business when she agreed to do work for Hamill did not distinctly appear. Some of the witnesses testified ¿hat she lived almost altogther in her brother-in-law’s house; others, that she still sometimes could be found at her former residence. That she did perform the duties for which Hamill had hired her clearly appeared. These she continued to perform until the summer of 1875. Mrs. Hamill then died. Two weeks after that event, Eliza Fletcher quarrelled with Hamill and left his house, returning to her brother’s, where she resumed her business of nursing. Hamill died on June 19th 1877. Eliza Fletcher then claimed certain furniture in his house as belonging to her, and got some but not all she asked for. She admitted that her wages for the first year she lived with Hamill ■ had been paid, but presented this claim for the amount for her services during the remaining four years.</p> <p>There was no evidence of any demand having been made by her upon Hamill for this amount prior to his death.</p> <p>The auditing judge found the facts substantially as above, and allowed the amount of the claim, but found that owing to the payment of legal costs and certain preferred claims other than Eliza Fletcher’s, the account showed a balance in favor of the accountant.</p> <p>Exceptions were filed by the accountant to the allowance of Eliza Fletcher’s claim, and sus[ained by the court pro forma. Eliza Fletcher then obtained leave to file exceptions nunc pro tunc to the allowance of certain credits to the accountant, the disallowance of which she claimed would result in a balance applicable to her debt. Exceptions were accordingly filed by her, and after argument sustained, the exceptions of accountant being dismissed.</p> <p>The account being recommitted to the auditing judge, he surcharged the accountant with $336.94, and ordered that from said sum one year’s wages should be paid Eliza Fletcher as a preferred claim, and a dividend pro rata with the other creditors on the rest of her claim. From this decree Jane McConnell, administratrix, took this appeal, assigning for error, inter alia, the allowance of Eliza Fletcher’s claim.</p>

1, of Philadelphia county: Of January Term 1881, No. 28. In Equity. Held: that a trust which contains no power of revocation, if not in prejudice of creditors, and created with intention and knowledge of the act, is irrevocable in law and in equity; nor is the mere omission of counsel to advise the insertion in the deed of a power of revocation of itself ground to set aside a voluntary conveyance.

2, of Philadelphia county: Of January Term 1880, No. 330. Case stated, in the nature of a special verdict, filed by agreement of the parties, wherein Israel C. Caldwell was plaintiff and Thomas C. Jones defendant, setting forth the following facts:— Michael Andress, late of the city of Philadelphia, died June 28th 1865, seised in fee simple of, inter alia, a house and lot of ground situate on the south side of Noble street, No. 139, in the city of Philadelphia.

3, of Philadelphia county: Of January Term 1880, No. 356. Held: that the official responsibility of the officer rests ‘ not simply upon the evidence the certificate affords, but the duty it involves.’ And again, ‘the officer who makes the search stands, in reference to its correctness, in the attitude of an insurer, and his fee represents the premium.’ “As the recorder is a public official, he is…

2, of Philadelphia county: Of January Term 1880, No. 336. Case, by Jane R. Walling and Joshua Clendennon, guardian of Grace M. Walling, against the Germantown Passenger Railway Company, to recover damages for the death of Bernard Walling, 'the husband and father of the plaintiffs, which they alleged to have been caused by the negligence of the defendants’ servants.

1, of Philadelphia county: Of January Term 1880, No. 250. Assumpsit, brought March 6th 1875, by Edmond V. Verrier against Victor Guillou, executor of Florencio J. Verrier, deceased, upon the following instrument (the original of which was in Spanish): “This is to certify that Don Florencio J. Verrier and Edmond of the same surname, have agreed upon the following : That according to an instrument of writing legally executed this day, the former binds himself to pay to the…

3, of Philadelphia county: Of January Term 1880, No. 360. This was an action on the case by the widow and minor children of John Eehr, deceased, against John W. Baker, Jr., to recover damages for the death of the said John Fehr, caused by the alleged negligence ' of one óf defendant’s servants, the driver of an ice-wagon, in running over the said Fehr in a public street of the city of Philadelphia.

118. This was an appeal from a decree of the said court discharging Ellen Taney as guardian of the person of William Rice, a minor, between three and four years of age, and discharging the Eidelity Insurance, Trust and Safe Deposit Company as guardian of his estate. The decree was entered upon the petition of one Mary Rogers, guardian of the said minor, appointed by the Probate Court at Jackson, Michigan, to which Ellen Taney filed an answer.

3, of Philadelphia county: Of January Term 1881, No. 132. This was an action of replevin by Charles Maynes, who was tenant under Elizabeth L. Devine, against William Rutherford, treasurer of the Greenwich Island Meadow Company and James J. Keating, for certain goods and chattels distrained upon by the Greenwich Island Meadow Company for assessments levied upon the land of the said Elizabeth L. Devine, which were overdue and unpaid.

Appeal of Amanda Martin, executrix and legatee of the estate of Edward D. Martin, deceased, and claimant as mortgage lien-creditor, from the decree of the Court of Common Pleas, No. 2, of Philadelphia county, confirming the report of an auditor appointed to distribute the proceeds of a sheriff's sale of a house and lot of ground No. 839 North Broad street. Of January Term 1879, No. 179.

4, of Philadelphia county: Of July Term 1878, No. 35. This case was first argued February 12th and 13th 1880. Sharswood, C. J., and Green, J., having been absent, a re-argument was ordered before a full bench. At the first argument the court permitted the counsel for the plaintiff in error to file two additional assignments of error, hereinafter referred to.

1, of Philadelphia county: Of January Term 1880, No. 130. This was an action on the case by John Bresmer against the Green and Coates Street Philadelphia Passenger Railway Company, to recover damages for injuries suffered by the plaintiff, on the 9th December 1878, from the kick of a vicious mare, while being groomed by the plaintiff, who was an hostler in the employ of the defendant company.

2, of Allegheny county: Of October and November Term 1880, No. 260. Assumpsit, by Andrew Hartupee against the City of Pittsburgh.

<p>1. Where a lessee is evicted during his term by the holder of a paramount title, without fraud on the part of the lessor, his measure of damages against the lessor, under the implied covenant for quiet enjoyment arising from the words “ demise and let," is the consideration paid by him. If he has paid only the rent, during the time of his possession, he is entitled to only nominal damages.</p> <p>2. In such ease, the lessee is not entitled to recover the value of improvements for the prosecution of the business, some of which were erected in pursuance of a covenant made by him to that effect in the lease, and all of which he had, by the terms of the lease, the right to take down and remove at the end of the term.</p> <p>3. In such case, the fact that the lessor, in an action against him by the paramount owner for mesne profits, had set off and received credit for the value of the improvements affixed to the freehold, is immaterial.</p> <p>4. K. leased to L., for fifteen years, in consideration of a royalty, certain ore lands, L. covenanting to erect forthwith good and approved machinery to take out the .ore, and K. covenanting that the lessee should have full privilege to erect all buildings necessary to working the ore, and that at the end of the term, he should have the right to take down and remove all buildings put up by him. The lease contained the usual words, “demise and let,” hut no express covenant for title or quiet enjoyment. L. was subsequently evicted in an ejectment suit against K., founded on a paramount title. In an action by L. against It. to recover damages for the eviction: Held (affirming the judgment of the court below), that the measure of damages was the consideration paid, and that the damages in this case, therefore, could only be nominal.</p> <p>5. The plaintiff offered to show the value of machinery erected by him and standing at the time of eviction, as a portion of the damages he was entitled to; and in order to fix the value thereof, offered to show that, in an action for mesne profits brought against the defendant, he had fixed the value of said improvements at $9600, and reduced the verdict by that amount. Held (affirming the ruling of the court below), that the evidence was inadmissible.</p>

<p>Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1881, No. 62.</p> <p>/ This was an action of ejectment by 'Benjamin J. Wynkoop, H. P. Garibedian and Hannah Matilda, his wife, in her right, and Joseph P. Wynkoop and Kate S. Wynkoop, minor children of George H. Wynkoop, deceased, by their next friend Benjamin J. .Wynkoop, against Sarah A. Hoffner and Isaac Farrell, to recover one undivided fifth part of a certain house and tract of land in that part of the city of Philadelphia known as the Neck. Plea, not guilty.</p> <p>On the trial, before Elcock, J., both parties claimed title under Abraham Wynkoop. The plaintiffs claimed as heirs-at-law, being children and grandchildren of Joseph P. Wynkoop, a son of Abraham Wynkoop, as hereinafter mentioned, and the defendants claimed by virtue of an agreement of lease, with alleged contract of sale, executed by the .said Abraham Wynkoop in his lifetime, arid subsequently carried into effect by his executors, under a decree of the Orphans’ Court. The plaintiffs denied that they were bound by the said proceedings in the Orphans' Court and deed, and objected to their admission in evidence, because they were minors at the time, and were not made parties to said proceedings nor notified thereof. The court overruled the objection, admitted the deed and proceedings in evidence, and directed the jury to find a verdict for the plaintiffs, reserving the question of law, whether the plaintiffs were concluded by the proceedings in the Orphans’ Court.</p> <p>The facts, in detail, were as follows: In 1849, Abraham Wynkoop and his sister Ann Wynkoop, being the owners in fee of the farm in question, leased it to William llorner, with the right to purchase the same during the term at the rate of $160 per acre. Ann Wynkoop soon afterwards died intestate, unmarried and without issue, whereby her title to the said premises became vested m her brother, the said Abraham Wynkoop, who died January 30th 1852, having by his will directed as follows: “To my wife Hannah Wynkoop, I leave and bequeath all my Real Estate and Personal Estate to have and hold during her natural life (if she remains my Widow), she may sell the dwelling-house No. 137 North Eleventh Street, if she think it for the best and the comfort of herself and her children. My proportion of the farm in the Neck may be sold if all can and do agree. My wife, sister Ann, Benjamin my son and Alfred my son, my daughter Almira Ann, Francis A. my son. As I have not much to leave, I do in Remembrance leave to my son, Benjamin Norman Wynkoop, 20 dollars, ditto to my son Alfred Washington Wynkoop 10 ditto. To my dear daughter Almira Ann Wynkoop, my silver watch, my desk and all that is in it, half of my silver spoons, &c. And I hope that her Deare Mother will be kind and affectionate to her and give hor such Bed and Bedding and Clothing as will make our daughter Comfortable and happy. To my son Francis A. Wynkoop Ten Dollars, and now may the Blessing of our own Heavenly Father rest upon you all, Amen.</p> <p>“I leave my son Benjamin N. Wynkoop my Executor, and my wife Hannah Wynkoop my Executrix.”</p> <p>Abraham Wynkoop had five children, to wit: Joseph P., who died during his father’s lifetime, and Benjamin N., Almira Ann, Alfred and Francis A., who survived their father; the said Joseph P. Wynkoop left surviving him four children, to wit: George IL, Benjamin J., Thomas P., and Hannah M., who married H. P. Garibedian; the said George II. Wynkoop died in 1876, leaving three children, to wit, Joseph, George arid Kate S.; Thomas P. Wynkoop died in 1864, intestate, unmarried and without issue.</p> <p>Hannah Wynkoop, widow of Abraham Wynkoop, survived him, and died in December 1878, intestate.</p> <p>In 1852, William Horner assigned all his right, title and interest, in said lease, to George Iloffner, who, in January 1853, presented his petition to the Orphans’ Court, praying for a decree of specific performance of the contract of sale contained in the lease. The court issued a citation to Hannah Wynkoop and Benjamin Wynkoop, executors of Abraham Wynkoop, deceased, and to Benjamin N., Almira A., Alfred W., and Francis A. Wynkoop, the children of Abraham Wynkoop named in his will. They joined in a return desiring that the contract might be carried into effect, whereupon the court entered a decree directing the executors, on payment of the purchase-money, to execute a deed to George Hoffner for the premises, which was done January -26th 1853. George Hoffner subsequently died in Juné 1871, having by his will, dated October 28th 1853, devised all his estate to his wife, the defendant Sarah Hoffner, under whom the defendant Isaac Farrell was in possession as tenant.</p> <p>The plaintiffs brought this action of ejectment to December Term 1879, and a verdict for plaintiffs having been rendered in accordance with the direction of the court, subject to the point of law reserved, as above set forth, the court, after argument on a motion for a new trial and to enter judgment for defendants non obstante veredicto, dismissed the motion and entered judgment for the plaintiffs upon the point of law reserved.</p> <p>The defendants thereupon took this writ of error, assigning for error the entry of judgment for plaintiffs.</p>

<p>I ]. The question of excessive distress is irrelevant in an action of replevin for the goods -distrained. If, in fact, the distress be excessive, the proper remedy is by an action on the case.</p> <p>2. A sub-lessee whose immediate landlord holds under a lease prohibiting sub-letting, and who has not been recognised in his tenancy by the paramount landlord, no matter whether his rent to his immediate landlord be in arrear or not, has no right in case of distraint by the paramount landlord upon the chattels on the demised premises for rent due him, to demand that the goods of his immediate landlord be first distrained upon and sold, and that resort be had to his goods only in case the proceeds of the former sale prove insufficient.</p> <p>3. When in such case the goods of both the sub-lessee and his immediate landlord are distrained upon, and the sub-lessee institutes replevin for his property and gives the usual bond, and afterwards the paramount landlord, relying upon the security of that bond, stays proceedings against the other goods distrained : Held, that by said last-named act the paramount landlord had not precluded himself from proceeding further against the goods which had been replevied.</p>

<p>L The Act of March 24th 1849, Pamph. L. 675, authorizing mechanics and material-men to file in certain cases lumping charges in mechanics’ liens within the counties of Chester and Philadelphia,’ confers such a right only upon contractors with the owner or owners of the premises against which the lien is filed, and not upon sub-contractors. The latter are still bound in all cases to itemize their liens.</p> <p>2. Where a sub-contractor files a lien containing such a lumping item, it will not be sufficient to validate it, as against the owner, that the date of beginning and ending the work or furnishing the materials included in such item are thereto appended.</p>

<p>Certiorari to the Court of Common Pleas, No. 3, of Philadelphia county, of January Term 1880, No. 162.</p> <p>This was an action of assumpsit on a book-account between Charles J. Horstman, Otto Von Hein, and Gustavus Walter, trading as Horstman, Von Hein & Co., against Charles Kaufman, in which judgment for want of an affidavit of defence was obtained September 20th 1879, for $268.83. A fi. fa. issued on said judgment was returned nulla bona on the 21st of October 1879.</p> <p>The plaintiff moved for the appointment, of a commissioner under the act of June 11th 1879, Pamph. L. 129, to take the testimony of the defendant and other witnesses, and filed the following affidavit:</p> <p>“ Gustavus Walter, being duly sworn according to law, deposes and says that he is a judgment-creditor of Charles Kaufman, the defendant in the above cause, and that he is a member of the firm of Horstman, Von Hein & Co., the plaintiffs therein, and that he has reason to believe that the said defendant has property, rights in action, stocks, moneys or evidences of debt which the said defendant fraudulently conceals and refuses to apply to the payment of his debts. GKjstavus Walter.</p> <p>Sworn to and subscribed before me this 10th day of November, a. x>. 1879.</p> <p>A. H. Nones, Notary Public, 486 Broadway, N. Y.</p> <p>On November 18th 1879 the court granted a rule to show cause why a commissioner should not be appointed under the said act, and after argument the court discharged the rule, Einlbtter, J., delivering the following opinion :</p> <p>“ The very able argument of counsel for defendant has left scarcely a doubt on our minds as to the unconstitutionality of the act. We are not, however, called upon to decide this question, inasmuch as'we are compelled to refuse the rule on other grounds. The act must be construed in conformity with the construction given to the act to which it is a supplement. The affidavit should therefore set out the facts which warrant the belief that the defendant has property, &c., and also the facts which warrant the averment of fraudulent concealment.”</p> <p>The plaintiff thereupon took this writ of certiorari, assigning for error the action of the court in discharging the' said rule.</p>

<p>Appeals from the decree of the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1880, Nos. 33 and 88½. These two appeals were from the same decree,'and were argued together.</p> <p>This was a bill in equity, filed May 6th 1877, by Charles E. Morris, assignee for the benefit of creditors of Henry G. Morris, against John J. Dovey and William J. Moodie and others, trading as Moodie, Gross & Co. John J. Dovey died after suit brought, and his executors were substituted. The plaintiff, Charles E. Morris, also died, and the Philadelphia Trust, Safe-Deposit and Insurance Company were appointed assignee, and substituted of record in Ms place.</p> <p>The bill was filed to recover part of the proceeds of a judgment recovered by Dovey in the United States Court against the Seventh National Bank of Philadelphia for refusing to permit Mm to transfer 75 shares of stock in said bank, of which he held a certificate and power of attorney. The plaintiff admitted that Dovey was entitled to $3700 thereof, but asserted that the residue, $2262.25, belonged to the plaintiff. After answers filed, the cause was referred to a master, who found the facts substantially as follows :</p> <p>In January 1874, Henry G. Morris was the owner of a certificate for 75 shares of the stock of the Seventh National Bank of Philadelphia. In that month he pledged it to the Provident Life and Trust Company as collateral security for a loan, and a new certificate was issued in their name, dated January 23d 1874. Upon the payment of the loan, on March 24th 1874, the trust company executed an assignment in blank upon the back of the certificate, with a blank power of attorney to transfer and deliver the same to one Alexander Ervin, then the confidential agent and financial manager of Henry G. Morris.</p> <p>On April 29th 1875, Henry Gr. Morris and wife made an assignment for the benefit of creditors to Charles E. Morris, and on the same day Ervin ceased to be in the employ of Henry G. Morris.</p> <p>On June 7th 1875, the said Ervin — who had retained possession of the said certificate and power — fraudulently sold and delivered the same to Moodie, Gross & Co., and received therefor from them the sum of $37 00 in cash, an overdue check of his for $2500, and a receipted bill for coal previously sold him for $250.83, making a total of -$6450.83.</p> <p>The assignee of Henry G. Morris notified the bank soon after-wards not to transfer the stock, as it belonged to his assigned estate; and when Moodie, Gross & Co., on September 27th 1875, presented the certificate to the bank for a transfer, their demand was refused. Thereupon Moodie, Gross & Co., on October 14th 1875, filed a bill in equity in the Court of Common Pleas, No. 4, against the bank and Charles E. Morris, assignee of Henry G. Morris, to compel a transfer, and praying, inter alia, for a decree that said Charles E. Morris, assignee, should be debarred and precluded from .recovering the said stock, or its value, from the bank. The answer of Charles E. Morris set forth all the above facts, and averred that Moodie, Gross & Co. did not purchase the said stock, but received the same from Ervin as a pledge for a private debt of his, contracted' before that date, under circumstances which would have placed any prudent business man on inquiry had the transaction been bona fide. No cross-bill was filed by Morris in this suit, and the cause was referred to a master.</p> <p>Pending this litigation, on May 24th 1876, Moodie, Gross & Co. borrowed $5000 from John J. Dovey, and delivered to him, as collateral security for said loan, the said certificate and blank power of attorney. This transaction was made without the knowledge of- Morris, assignee, or the bank; and Dovey then had no notice or knowledge of the pending of said suit in equity.</p> <p>The master in the- above cause of Moodie v. The Bank and Morris, reported that Moodie, Gross & Co., were bona fide purchasers of the said stock from Ervin for the full consideration of $6450.83; and he recommended a decree that the bank be required to transfer the said certificate, as prayed in the bill, unless Charles E. Morris, assignee, should within fifteen days pay to the plaintiif the whole of the said consideration of $6450.83, with interest, in which case the plaintiif should be required to deliver the certificate to said assignee, and the bank should then transfer the same to him.</p> <p>Upon exceptions filed by Charles E. Morris, assignee, the court, in an opinion by Briggs, J., held, that Moodie, Gross & Co., were purchasers for value only to the extent of the $3700 paid in cash; and reversed so much of the master’s finding as decided that the plaintiffs were also purchasers for value as to the check for $2500, and coal bill for $250.83. The court thereupon entered the following decree November 4th 1876 : “ That the said plaintiffs, Moodie, Gross & Co., deliver to the said Charles E. Morris, assignee of Henry G. Morris, the said certificate, No. 476, for seventy-five shares of the capital stock of the Seventh National Bank of Philadelphia, upon the said Charles E. Morris paying to the said plaintiffs $3700, with interest thereon from June 7th 1875, on or before the thirtieth day of November instant \ and that the said bank shall thereupon, upon the surrender of the said certificate by the said Charles E. Morris, transfer the same to him on the hooks of the said bank.”</p> <p>In August 1876, Dovey, without the knowledge of Morris, assignee, had presented the certificate to the bank for transfer, which was refused because of the notice received from Morris in 1875, and on November 22d 1876, Dovey brought a suit at law in the United States Court against the bank, founded on such refusal. On April 17th 1877, he recovered judgment for $5962.25, and on that day received that amount in money and surrendered the certificate to the bank. Dovey’s right to $3700 (as the assignee of Moodie, Gross & Co.’s bona fide interest), not being disputed, he retained that sum, and the balance of the money so recovered on the judgment, after deducting costs, viz., $1818.60, was by agreement left in the hands of Dovey’s counsel (R. C. McMurtrie, Esq.) to await the issue of this suit, and was by him deposited in the Pennsylvania company at interest.</p> <p>On April 28th 1877, the foregoing facts (viz., Dovey’s loan of $5000 to Moodie, Gross & Co., on the security of the certificate, and his suit and recovery against the hank) haying been brought to the notice of the Court of Common Pleas in the equity suit of Moodie, Gross & Co. against the hank and Morris, assignee, and it being suggested by counsel that a decree against the plaintiffs for the transfer of the stock to a defendant who had filed no cross-bill against the plaintiffs was irregular, the court were of the same opinion. The court thereupon (without filing a further opinion) made the following order:</p> <p>“We are satisfied that this decree has been erroneously entered against the plaintiffs, as there was no cross-hill filed to support it; and we do now order that the said decree of November 4th 1876, be and is hereby vacated.</p> <p>“ And now, April 28th 1877, it is ordered that the plaintiff’s bill be dismissed, at the plaintiffs’ costs.”</p> <p>An appeal taken by the plaintiffs from said decree to the Supreme Court was nonprossed when reached, in January 1879, at the request of the appellant’s counsel.</p> <p>This bill, filed by Morris May 16th 1877, prayed (1) That it be decreed that the defendant Dovey holds the balance of the sum, $5962.25, recovered by him in his suit at law against the bank, after deducting the sum of $3700, with interest and costs, in trust for the complainant as assignee, and that he account for and pay over the same; (2) That the defendants Moodie, Gross & Co. be restrained from claiming the same, or any part thereof, either from the said Dovey or the complainant.</p> <p>The master to whom this cause was referred reported, as matter of law, that Moodie, Gross & Co., when they borrowed the $5000 from Dovey on May 24th 1876, had no right to part with the certificate in question, by reason of the pendency of their suit in equity against the bank and Morris, assignee; that Dovey was affected with notice of Moodie, Gross & Co.’s disability, on the doctrine of lis pendens; that he therefore took the stock subject to all its equities, including the rights of Morris, assignee, therein ; and that therefore the plaintiff was entitled to the fund for distribution. In this decision the master held that the case “ came strictly within the rulings of the Supreme Court in Diamond v. Lawrence County, 1 Wright 353.” He therefore awarded the fund to the Philadelphia Trust Company, substituted assignee of. Henry G. Morris.</p> <p>Upon separate exceptions to the master’s report, filed by Dovey and by Moodie, Gross & Co., the court, in an opinion by Thayek, P. J., held that Dovey was affected by the doctrine of Us pendens, not, however, on the ground stated by the master, that Us pen-dens was notice to a purchaser, but because of the general rule of policy, deducible from the more modern authorities, that, “pending a litigation, neither party can be permitted to alienate the contested property so as to affect the rights of the other;” that “this doctrine is not confined to transfers by defendants, but is equally applicable to plaintiffs,” and that the alienee of either party is bound by the rule. The court further held as follows: That the meaning and effect of the final decree of April 28th 1877, in the equity-suit.of Moodie, Gross & Co. against the bank and Morris, assignee, vacating the prior decree and dismissing the plaintiffs’ bill, were — that the plaintiffs had been shown to have no title to the stock, but that it belonged to the assignee of Henry G. Morris, subject to the plaintiffs’ lien for the $3700 cash actually advanced; and therefore the relief prayed for by the plaintiffs, viz., a transfer of the whole stock was denied, and their bill dismissed. It is the substance of the decree, and not its form, which binds all who come in pendente lite: Style v. Martin, 1 Cas. in Ch. 152. “ By that determination the present defendant is bound, because he came in pendente lite and purchased a title which was then in litigation, and which in the course of that litigation was determined to extend to only a portion of the property which was the subject of the dispute. That portion the defendant has already received. To allow him now to claim the whole would enable him to deprive the present plaintiff of the fruit of his former litigation, and, in effect, to subvert the decision of the court.”</p> <p>The court thereupon dismissed all the exceptions and entered the decree reported by the master, as the decree of the court, to wit: “And now, October 4th 1879, the above cause coming on to be heard on the master’s report, and the exceptions thereto, and the same having been fully argued by counsel, and considered by this court, it is ordered, adjudged and decreed that the report of the master be confirmed, and that the exceptions thereto be dismissed; and it is further ordered and decreed that the sum of $251.87 bo paid by R. O. McMurtrie, Esq., the holder of the fund at issue, to the master and examiner, for the costs and expenses of the reference, and that the sum of $1566.73, the balance on hand, with all accrued interest thereon due by the Pennsylvania Company for Insurance on Lives and Granting Annuities, be paid to the Philadelphia Trust and Safe Deposit and Insurance Company, the present assignee for the benefit of the creditors of Henry G. Morris.”</p> <p>From this decree, Dovey and Moodie, Gross & Co. took these separate appeals, assigning for error substantially the dismissal of their exceptions and the entering of the decree.</p>

Appeals from a decree of the Orphans’ Court of Philadelphia county; Of January Term 1880, No. 228.

<p>1. United States bonds deposited by a citizen of another state, in Pennsylvania for safe-keeping, upon a special certificate of deposit, transferable by endorsement with the approval of the company, and upon the surrender of which the bonds are to be returned to the depositor, do not constitute, upon the depositor’s death, a part of his estate within this Commonweath.</p> <p>2. If, in such case, an executor of a deceased depositor duly qualifies in the foreign domicile of said depositor, the person with whom the bonds are deposited is justified upon the surrender of the receipt, in giving them up to such executor, notwithstanding the provisions of the Act of March 15th 1832, (1 6, Pamph. L. 136.</p>

97. This was an appeal by Lydia Ann Orcutt, executrix of the estate of Wesley Grindle, deceased, under letters testamentary, granted in New Jersey, from the decree of the said Orphans’ Court, dismissing her exceptions to the adjudication on the account of the Fidelity Insurance, Trust and Safe-Deposit Company, administrators c. t. a. of the said decedent in Pennsylvania, and confirming the said adjudication.

<p>1. In the distribution of a decedent’s estate where there is a deficiency after the payment of debts, expenses and specific legacies, the loss is to be borne entirely and proportionally by those pecuniary legacies which are in their nature general. An annuity charged on the personal estate is for this purpose to be esteemed a general legacy.</p> <p>2. Where there is any valuable consideration for a testamentary gift or the relinquishment of any right or interest, such legacy will be entitled to preference of payment over other general legacies which are mere bounties.</p> <p>3. A general legacy to a volunteer will not be entitled to any exemption from abatement on the ground of its being applied to any particular object or purpose, as where the bequest is to a wife or child or to a charity.</p> <p>4. Although a testator may by special provision in his will exempt one or more legacies from abatement at the expense of others, yet the presumption of intended equality so far exists and governs that it can only be overcome by unequivocal evidence of intent to the contrary.</p> <p>5. A testator may by the terms of his will prevent a legacy lapsing by the death of the beneficiary occurring before the testator’s death ; but to effect this object ho must declare, either expressly or in terms from which it can be collected with sufficient clearness, what person or persons he intended to substitute.</p> <p>O. A testator provided, inter alia, as follows: “I give and bequeath $7500 unto A. B., daughter of O. D.; but it is my will that whatsoever amount her son E. F. shall owe me, principal and interest, shall betaken to have been so much paid on account of said legacy, and his notes shall be handed over to her or her representatives.” Unlike the other clauses in testator's will this clause was combined with one bequeathing a legacy to a grandchild of C. D. Held, that the terms of the will did not prevent a lapse of A. B.’s legacy, she having died before the testator.</p>

<p>1. When a person enters into stock-gambling transactions through the medium of a broker, he will be deemed to be dealing with such broker as a principal, not as an agent.</p> <p>2. Where a minor of limited means embarks in stock transactions to a large amount by way of margins, the court will, even in the absence of direct evidence that he did not intend to receive- or deliver the stock bought or sold on his behalf, infer that such was not his intent, and will therefore stamp the contract as a wagering contract merely, contrary to the policy of the law, and void ab initio.</p> <p>3. When the whole amount deposited by the minor as margins is lost in such transactions, he is at liberty to recover back at any time, from the brokers employed by him, the amount so deposited.</p> <p>4. Per Gordon, J. The doctrine that where an infant has executed a contract and has enjoyed the benefit of it, and afterwards, on coming of age, seeks to avoid it, he must first restore the consideration which he has received, that he.cannot have the benefit of the one side without restoring the equivalent on the other, may and certainly does apply in certain cases, but as a general rule is unsound. It certainly has no application to the present base.</p>

<p>Habeas corpus issued by the Supreme Court, on the petition of Theodore J. McGurk, commanding the superintendent of the Philadelphia county prison to produce the body of the relator, &c.</p> <p>The prisoner was indicted and tried in the Oyer and Terminer of Philadelphia county at the January Term 1880, and convicted of murder in the first degree. A rule for a new trial was made absolute by the court May 1st 1880, the last day of the April Term. Four monthly terms having elapsed at which courts of Oyer and Terminer had been held, viz., in May, June, September and October 1880, without the second trial taking place, and without any continuance having been granted or applied for at the prisoner’s request, the Court of Quarter Sessions, on petition of the prisoner, awarded a writ of habeas corpus, on the hearing of which, on October 29th 1880, it was contended that the prisoner was entitled to his discharge under the provisions of the Act of 1785, sect. 3, Purd. Dig. 755, 756, pi. 4. This act provides as follows: Sect. 3. “ If any person shall be committed for treason or felony * * * and if such prisoner shall not be indicted and tried the second term, sessions or court, after his or her commitment, unless delay happen on the application, or with the assent of the defendant, or upon trial shall be acquitted, he or she shall be discharged from imprisonment.”</p> <p>Sect. 1, of the Act of March 13th 1867, Purd. Dig. 1201, provides that sessions of the Quarter Sessions and Oyer and Terminer shall commence on the first Monday of each month, instead of on the days theretofore fixed by law for holding the same; but sect. 4, of the same act, provides that nothing therein contained shall affect the Act of 1785, except that untried prisoners should be discharged upon the expiration of the fourth term instead of the second as theretofore.</p> <p>The court, on January 21st 1881, dismissed the writ of habeas corpus, and the relator was remanded to the county prison. Mitchell, J., delivered the following opinion:</p> <p>“ The object of the Act of 1785 was to prevent oppression of a prisoner in confinement by undue delay in bringing him to trial. Notwithstanding the general language of the act, it has been held that the provision for a discharge at the end of the second term does not apply where the trial ha.s been prevented by any circumstances of moral, physical, or legal necessity. Most of the exceptional cases which had then arisen (1875) are referred to in Commonwealth v. Brown, 32 Leg. Int. 430, and in Commonwealth v. Hale, 36 Id. 285. It was further held that where the prisoner had been a fugitive and had surrendered, he had put himself outside of the protection of the act, and could not now complain if the Commonwealth chose its own time to try him.</p> <p>“ The present case is new, but is strongly analogous to Commonwealth v. Hale. The Commonwealth did its whole duty in trying the prisoner at the proper time. The result was his conviction, and now that a new trial has been granted to him upon his own motion, and as matter of grace, it would be unreasonable to allow him to dictate when the Commonwealth shall be ready to try him the second time. Having aslced and received the favor of the court he must take it cum onere.</p> <p>“ It is not necessary to decide what would be the effect of a new trial granted by the same court for error in law, or a reversal of judgment by ihe Supreme Court, for the same reason. I have read carefully the opinion of Judge Elcock, and think it sets forth clearly that the new trial is granted solely as matter of grace and out of tenderness for the prisoner in a ease involving his life. The motion must be refused.”</p> <p>Thereupon the prisoner filed his petition in the Supreme Court for a writ of habeas corpus which was awarded. On the hearing, February 12th 1881, the Chief Justice stated that the court could not act unless the record of the Oyer and Terminer be brought up by certiorari, or unless the district attorney would admit all the facts stated in the prisoner’s petition. A certiorari was thereupon specially allowed, and the case continued.</p> <p>The record having been brought up, and it appearing thereby that the facts averred in the petition were true, the cause was argued February 19th 1881.</p>

<p>1. If one deliver money or personal property to another, under the promise of the latter to deliver it over to a third person who has a beneficial interest therein, or to convert it into money and pay him the proceeds, the third person can maintain an action therefor against the promissor.</p> <p>2. A fortiori is this the case where the person receiving the money or personalty subsequently promises the third party to deliver it to him.</p> <p>3. Where one firm receives the assets of another, agreeing-to pay the amount of the purchase-money, not into the hands of the vendors, but into the hands of their various creditors, according to the amount owing to each, this is not to be deemed an undertaking to pay the debt of another within the meaning of the Act for the Prevention of Frauds and Perjuries of April 26th 1855, sect. 1, Pamph. L. 308.</p> <p>4. If, in such case, the firm receiving the assets undertook to pay the debts of the old firm only to the extent of the proceeds of such assets, and not to pay a debt due from the old firm to themselves until all the other creditors were satisfied out of said proceeds, and then, having realized certain proceeds, applied part to their own use, some presumption would be raised which should be submitted to a jury that they had previously realized out of the assets a sum sufficient to pay all the other creditors.</p>

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1881, No. 58.</p> <p>Scire facias stir mortgage, by Lydia Ann Woods against Edward White. The mortgage was executed by defendant to plaintiff for $5000, dated April 1st 1876, recorded April 6th 1876. Judgment was entered-for want of an appearance, which was subsequently opened by the court on motion of Jamison Lott, terre-tenant, and the said Lott let into a defence. Lott thereupon pleaded payment with leave, &c-., and a special plea averring the following facts : Prior to the execution of the mortgage in suit by Edward White, the mortgaged premises belonged to Isaac White, father of Edward" White, who by his will, proved November 29th 1865, devised the same to the said Edward White, subject to a legacy of $1000 to one William Powell, a grandson of testator, subject to which charge the mortgage in suit was given. On January 25th 1877, after the date of the mortgage in suit, one Lewis Shallcross obtained a judgment in the Common Pleas, No. 4, of Philadelphia county against Edward White for $700, and under writs of fi. fa and vend. exp. issued thereon, the premises, in question were on January 6th 1879, sold at sheriff’s sale to the said Jamison Lott for $800, and a sheriff’s deed to him therefor was acknowledged • January 11th 1879, and duly recorded. The special plea averred that hy reason thereof the lien of the said mortgage was discharged from the land, and the title of Edward White became vested in the said Lott, free and clear from the lien of said mortgage.</p> <p>After replication and issue joined on these pleas, the said Lott filed, by leave of the court, a plea puis darrein continuance averring, in substance, that since the last pleading it was so proceeded in the Common Pleas, No. 4, in the said suit of Shallcross v. Edward White, that the fund produced by the sheriff's sale under that judgment was referred to an auditor to report distribution thereof, before whom the plaintiff, Lydia Ann Woods, appeared by her counsel and “ presented the same identical mortgage above sued upon, and claimed the said fund on account thereof; and thereupon the same identical cause of action now presented by the above pleadings arose and was duly contested between the same parties;” and that afterwards the auditor, after due notice to the plaintiff filed his report, which was duly confirmed by the court; by reason of which proceedings and judgment the lien of the said mortgage was divested from the promises, “ as by the record remaining in the Court of Common Pleas, No. 4, more fully and at large appears, and this the said defendant is ready to verify by the said record, wherefore he prays judgment,” &c.</p> <p>The plaintiff replied to said plea puis darrein continuance, “ that there is no such record of a claim by plaintiff of the fund before the auditor for distribution in the said suit of Shallcross v. White on account of the said mortgage, and there is no record that the same identical cause of action now presented by the above pleadings arose and was contested between the same parties and was adjudicated and determined in said suit, as by said defendant pleaded. Wherefore she prays that the said record may be seen and inspected by the court here, and for judgment in her behalf.”</p> <p>On the trial of the issue thus raised, before Allison, P. J., the terre-tenant, Jamison Lott, produced in evidence the exemplification of the record in the Common Pleas, No. 4, in the said suit of Shallcross v. White. The report of the auditor ’(part of said record) contained the following :</p> <p>“Francis E. Brewster, Esq., represented Mrs. Lydia Ann "Woods, who held a mortgage upon the premises in question, given by the said defendant, dated April 1st 1876, for $5000, and recorded April 6th 1876. Mr. Brewster stated that ho appeared before your auditor for the purpose of calling attention to said mortgage (claiming it to be a first lien against said premises) and to proceedings pending in Court of Common Pleas No. 1, for the county of Philadelphia, of December Term 1878, No. 1470, ’wherein it was claimed that said mortgage had been discharged by the sheriff’s sale in question. He also claimed, in case it shall be decided that said mortgage had been discharged, that the fund before your auditor for distribution should be awarded to his client, and desired your auditor to suspend the distribution of said fund until the said proceedings in Common Pleas Ho. 1, should be determined.”</p> <p>The auditor reported, inter alia, the following facts : The testator, Isaac White, devised the premises in question to his son, Edward White, subject to the legacy of $1000 to William Powell, and appointed the said Edward White his executor. Edward White and wife, by indenture dated March 20th 1873, duly recorded, granted and conveyed the premises ■ in question to Rosa Anna Coyne, in fee simple, under and subject to the payment of the said legacy. The said grantee, her husband joining, gave a.purchase-money mortgage of the same premises, of even date with the deed, to Edward White, duly recorded. A scire facias was issued upon this mortgage in Common Pleas, Ho. 2, to December Term 1874, judgment obtained and execution issued, under which the mortgaged premises were sold at sheriff’s sale and purchased by the said Edward White for $150, to "whom a sheriff’s deed was acknowledged February 19th 1876, and duly recorded.</p> <p>On April 1st 1876, Edward White executed the mortgage in suit to Lydia Ann Woods. On January 25th 1877, Lewis Shalleross, obtained in Common Pleas Ho. 4, the judgment against Edward White above mentioned, under which the premises were sold at sheriff’s sale to said Lott, and a deed acknowledged January 11th 1879, under ■which sale the fund for distribution was produced.</p> <p>The auditor reported as matter of law, 1. That the legacy to William Powell was a charge on the land under the will of Isaac White ; 2. That the sheriff’s sale of the premises by the executor, Edward White, on his own mortgage against Rosa Anna Coyne, did not disturb the lien of said legacy, “ as Edward White could not profit by his own wrong 3. That the legacy was discharged by the sheriff’s sale of the premises under the judgment of Lewis Shallcross against Edward White, and being the first lien upon the real estate so sold, is entitled to the fund in court.</p> <p>The auditor, therefore, awarded the fund to the legatee, William Powell. Hotice of the filing of the report was accepted in writing by the several counsel who had appeared before the auditor, including the attorney for Lydia Ann Woods. Ho exception being filed to the report, the same was confirmed. Jamison Lott did not appear before the auditor.</p> <p>The court, AllisoH", P. J., after argument, entered the following judgment: “And now, October 12th 1880, this cause coming on for trial, it is considered by the coui-t that the plea puis darrein continuance filed April 13th 1880, by Jamison Lott, terretenant in the above case, is a waiver of all the former pleas on the record filed by said terre-tenant, and the court enters judgment in favor of the said terre-tenant on the whole record upon the plaintiff’s replication of nul tiel record to said plea puis darrein continuance.”</p> <p>The plaintiff thereupon took this writ of error, assigning for error the entering of judgment for the terre-tenant.</p>

<p>1. The certificate of a notary of the acknowledgment of a deed or mortgage, like that of a judge or justice of the peace, is a judicial, not a ministerial, act.</p> <p>2. Where an action is brought against a notary for a false certificate of acknowledgment, the presumption is that the defendant, acting in his judicial capacity, did so .on reasonable information, and discharged his full duty.The burden of proof is on the plaintiff to prove a clear and intentional dereliction of duty.</p> <p>3. A. forged B.’s name to a mortgage given to 0., and, appearing before a notary, personated B., and acknowledged the instrument. The notary appended the usual certificate of acknowledgment, and C. thereupon paid over to A. the amount for which the pretended mortgage from B. was given. Subsequently, on discovering the fraud, O. sued the notary for having issued a false certificate of acknowledgment. On the trial C. showed that A. had personated B., and then called the defendant, who testified: “ I do not know B. The paper was undoubtedly signed before me. I don’t remember that I did or did not take any precaution to identify the person making the acknowledgment, but I know I must have been satisfied at the time.” Held, that, under those circumstances, a nonsuit was rightly awarded.</p>

<p>A., being in fair credit but actually insolvent, induced B., who was ignorant of his insolvency, to exchange checks with him. B. on depositing A.’s check found that A. had no funds, and called on him to make his check good. A. then induced O. to exchange checks with him to a like amount, C. being also ignorant of his insolvency, and handed C.’s check to B., receiving back his own check to B.’s order. B. then drew the amount of C.’s check. C. on depositing A.’s check also found that the latter was without funds. In an action by C. against B. to recover the amount drawn by B. on C.’s check, Held, that the plaintiff was not entitled to recover.</p>

<p>1. A policy of insurance should not be admitted in evidence without proof of its execution,</p> <p>2. Where one desires to avail himself of-the acts of an alleged suh-agent as against the principal, he must prove both the appointment of such suhagent by an agent, and the authority of the agent to appoint the sub-agent.</p> <p>3. Where an agent testifies that he has acted for a principal in pursuance of a certain witnessed agreement not under seal, said instrument can only be admitted in evidence upon due proof of its execution, or by admission of the parties executing it.</p> <p>4. Where a plaintiff has failed to make out his case, it is error to instruct the jury that they are entitled to take into account in deciding^whether plaintiff’s case is made out, the fact, that the defendant, although in court, has not been called to deny the plaintiff’s allegations.</p> <p>5. A policy of insurance, by whose terms the application is made part thereof, is not admissible in evidence without the application. _ But if the plaintiff call upon the company defendant to produce the application after notice, and they refuse to do so, this is all that will be required to make the policy admissible without it. '</p>

<p>1. Where property is taken for public use, the damage is to be estimated as of the date when the injury was complete and the landowner was entitled to compensation, the property to be valued without reference to the person of the owner or the actual state of his business, the true measure of damages being the difference between the market value of the land as affected by the taking of part for public use and such value as unaffected thereby. Any fact which affects the value of the land at the time of the injury is admissible.</p> <p>2. Where the owner of premises on the south side of Chestnut street, Philadelphia, in making alterations, was compelled, by virtue of the provisions of the Act of April 28th 1870, to recede five feet from the former building-line, and was thus forced to rebuild in a recess between two unaltered adjacent buildings extending to said old line: Held, that the fact that said owner voluntarily began his alterations did not preclude him from recovering damages for the amount of land taken for public use. Held, further, that the inconvenience to occupants of the property caused by the recession of the front, and the consequent difficulty of procuring tenants, were both to be estimated as elements of damage. Held, further, that in determining the market value of the property after the recession, the possibility that-the adjoining houses would be set back at some future period was to be considered as an element of the present value.</p> <p>3. Newville Road Case, 8 Watts 172, followed. Pitts., V. & C. Railroad Co. v. Rose, 24 P. F. Smith 362; Watson v. P. & C. Railroad Co., 1 Wright 469, distinguished.</p> <p>4. The Courts of Common Pleas have no jurisdiction to hear and pass upon exceptions filed to the reports of referees appointed under the Act of May 14th 1874, Pamph. L. 166. Such reports can only be reviewed upon error to the Supreme Court.</p> <p>5. The findings of a referee appointed by the parties under the Act of May 14th 1874, on a question of fact, are as conclusive as those of a jury.</p>

<p>Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1881, No. 171.</p> <p>The following facts were agreed upon by the parties as a case stated for the opinion of the court, with the same effect as if they had been found by a jury in a special verdict, the court to have authority to draw any inferences from the facts which a jury might draw, and to exercise as full equitable powers as if a bill in equity had been filed for specific performance of a contract of sale.</p> <p>On December 2d 1879, the plaintiff, Mary Amanda Mitchell, wife of Joseph Eastburn Mitchell, being the owner in fee of a ground-rent of $100 per annum, reserved by deed dated July 12th 1874, issuing out ®f a lot of ground and dwelling-house thereon erected, situate at the northwest corner of Thirty-third and Hamilton streets, in the city of Philadelphia, acting with the approval of her husband, caused the same to be exposed at public sale and sold on that day, by M. Thomas & Sons, auctioneers, to the defendant, Jacob Steinmetz, for the sum of $1600. The terms of sale wore cash on the execution of the deed, within fifteen days from sale. Within that time a deed in the usual form, duly executed by the plaintiffs, was tendered to the defendant, who refused to accept the same on the ground that there existed at the time of sale, and at the time of the tender of the deed, certain municipal claims against the lot out of which the rent issued, for unpaid taxes, from 1869 to 1879 inclusive, and for paving, and culvert, &c., amounting in the aggregate to $1684.79, together with interest and costs. Judgments had been entered on some of the claims, and a levy had been made for the taxes of 1878. All the said claims duly appeared on and before December 2d 1879, as existing ■and unsatisfied demands against the said real estate upon the locality index established by the Acts of March 31st 1864, and February 16th 1866 (Purd. Dig. 1091, pi. 40, 41), and the' unpaid taxes also appeared upon the records of the tax office, but no notice of any of said claims was given at the sale. The property out of which the rent in question issued was assessed for taxation at $3300, which was then about the value of the land, if unencumbered.</p> <p>The defendant did not discover the existence of the said liens until searches had been taken out by his conveyancer after the sale; and he rested his refusal to accept the deed and pay the purchase-money, upon the ground that the title to the ground-rent sold was not marketable at the time of the sale, and the absence of notice of the existence of said liens at the time of the sale. It was admitted that the title to the ground-rent itself was good and marketable in all other respects, and that the deed tendered was in proper form.</p> <p>The questions of law to be determined by the court are:—</p> <p>1. Is the defendant relieved from his contract to purchase the ground-rent executed by him on the 2d of December 1879, by reason of the existence at the date of the purchase of the aforesaid encumbrances upon the real estate, out of which the ground-rent purchased issues ? If yes, judgment is to be entered for the defendant.</p> <p>2. Are the plaintiffs entitled to recover from the defendant the loss sustained by Mrs. Mitchell by reason of the non-fulfilment by the defendant of his agreement to purchase the ground-rent of the 2d of December 1879 ? If yes, judgment is to be entered in favor of the plaintiff for the sum of fifty dollars ($50).</p> <p>The court, after argument, entered judgment on the case stated for the defendant. The plaintiff took this writ of error, assigning for error the entry of the judgment.</p>

<p>Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1881, No. 169.</p> <p>This was an action of assumpsit by William Hogg, Jr., against John Longstreth, to recover the amount of certain taxes paid by the plaintiff on premises of which the plaintiff was mortgagee and the defendant was terre-tenant.</p> <p>Upon the trial the following facts appeared : On May 31st 1872, Henry Meyers, being the owner of three separate houses and lots, in the city of Philadelphia, executed to the plaintiff a mortgage upon each of the said lots to secure the payment of $1775 in six years. By mesne conveyances from Myers the defendant Longstreth became seised in fee of the said premises on February 6th 1874, subject to the said mortgages. Longstreth remained in possession from 1874 to 1879, paying the interest on the mortgages, but not paying the taxes on the premises. In April 1879, the plaintiff issued writs of scire facias on said mortgages against Henry Myers, defendant, and John Longstreth, terre-tenant. Under judgments obtained in these suits the said three lots were sold at sheriff sale and purchased by the plaintiff, one for $150, the other two for $50 each. (The plaintiff then discovered that taxes had been assessed against all three properties in the name of John Longstreth, registered owner, for the years 1874, 1875,1876, 1877 and 1878, and remained unpaid. Claims had been filed by the city and judgment recovered against Longstreth for the taxes of 1874, 1875 and 1876, and on June 20th 1879, writs of alias •levari facias were issued on the judgments and placed in the sheriff’s hands, whereupon the defendant, in order to prevent a sale of the properties, paid the amount of said judgments, $746,' to the sheriff. In June 1879, the plaintiff received notice from the collector of delinquent taxes that the taxes for 3877 and 1878 on the three properties, were due and unpaid, and that unless the same were paid within thirty daj's the collector would distrain on plaintiff’s personal property therefor. In consequence of this notice the plaintiff paid to the collector of delinquent taxes the taxes of 1877 and 1878, amounting to $345.47. The plaintiff thereupon brought this suit to recover from the defendant the amount so paid by the plaintiff for the taxes from 1874 to 1878.</p> <p>The plaintiff submitted the following points :—</p> <p>1. The unpaid taxes of 1874, 1875, 1876, 1877 and 1878, on the three houses and lots, Nos. 213, 228 and 225 York street, were a personal liability of the defendant, and the payment by plaintiff of the judgment for the taxes of 1874, 1875, 1876, to the sheriff after an execution was in his hands, and the payment of the taxes for 1877 and 1878 to the collector of delinquent taxes, after the service of the notice of distraint, made defendant liable to plaintiff for the amount so paid. Refused.</p> <p>2. It was the duty of the defendant, as owner of the premises Nos. 213, 223 and 225 York street, subject to the mortgage, to pay the taxes on said premises due during his ownership, so that the same should not become a lien on said premises prior to the mortgages, and thus depreciate the value of said mortgaged premises. For a neglect of his duty, defendant is liable to plaintiff for the amount of the taxes paid by the latter. Refused.</p> <p>3. Defendant is liable to plaintiff for the amount paid by him to the sheriff for the judgment for taxes of 1874, 1875, 1876, and the amounts paid by him to collector of delinquent taxes, for taxes of 1877 and 1878. Refused.</p> <p>The court charged the jury as follows : “ Under the evidence in the case, I instruct you to find for the defendant.”</p> <p>Verdict and judgment accordingly for the defendant. The plaintiff took this writ of error, assigning for error the refusal of his points, as above, and the instruction to find for the defendant.</p>

<p>1. Hoad cases in the Court of Quarter Sessions are reviewable only by writ of certiorari, which brings up the record only and not the opinion of the court below or the testimony there adduced. The Supreme Court is therefore confined to an examination of and a passing upon the regularity of the proceedings as disclosed by the record, and cannot look into the evidence, though incorporated in the opinion of the court below.</p> <p>2. Where the- record shows that the Court of Quarter Sessions, in a road ease, has, after the lapse of a term, opened its own judgment, set aside a writ of mandamus execution issued in pursuance thereof, and avfarded a writ of restitution for the amount paid in accordance with said mandamus, in which case it is contended that the action of the court was prompted by fraud practiced upon it in obtaining the judgment, the Supreme Court will not affirm the proceedings unless the record distinctly discloses that th.e court acted on this ground.</p> <p>3. Where, in proceedings under the Act of March 24th 1869, Pamph. L. 525, to relieve a turnpike road from toll and throw the same open to the .public, a report of appraisers is filed assessing damages against the city, and judgment is entered accordingly, and after the lapse of a term the city presents a petition averring that the award is grossly excessive, that the stockholders of the turnpike company owning the road claimed a much less sum, that most of them had been settled with for their stock on the basis of the value of the road being such less sum, that some of them had been informed that the city was paying for the road at that rate, and that the fact that the stockholders were willing to and had settled at that price had been studiously concealed from the jury and the court; and afterwards exceptions are filed by the city to the award, not on the ground of fraud, but for other reasons, in pursuance of which proceedings the judgment is opened: Held, on certiorari to tiie Supreme Court, that the facts sot forth in the petition did not constitute an allegation of fraud. Held, further, that it must be presumed that the judgment was opened on the ground of the exceptions filed, and not on the ground of fraud, and that the exceptions, being insufficient to warrant such opening, the record disclosed a manifest irregularity which demanded reversal.</p> <p>4. In proceedings under the Act of May 3d 1869, Pamph. L. 1247, the courts of Quarter Sessions cannot set aside the reports of road juries for matters dehors the record.</p> <p>5. Where proceedings are instituted under said act to relieve a turnpike road from toll and to throw it open to the public, and the report of the appraisers is confirmed by the court upon the filing by the counsel of the turnpike company to which the road belongs of a remittitur of part of the award, the city is not entitled, on certiorari, to object to the legality and validity of such confirmation on the ground that such remittitur was not authorized by the turnpike company, because (1) this raises a question of fact outside the record, upon which the Supreme Court has no right to pass, and (2) the question is one in which the oily has no concern, the turnpike company being the only party capable of raising the objection.</p> <p>6. Where in such proceedings the report of the appraisers was filed, and exceptions were filed thereto by the city against whom the award has been made, at the same term as that in which the report has been filed, and then by agreement of all parties the exceptions were dismissed and the report confirmed at the same term: Held, that these proceedings were binding upon the city, and that it was not entitled to file new exceptions at the ensuing term of the court, on the ground that all parties have by law until the expiration of the next term after that in which the report of the appraisers has been made to file their exceptions thereto.</p> <p>7. The Coui't of Quarter Sessions has a right to issue a writ of mandamus execution against the city for the amount of an award made against it in a road case, which award has been confirmed by the court.</p> <p>8. In re Sedgeley Avenue, 7 Norris 509, followed.</p> <p>9. In proceedings instituted under the Act of March 24th 1869, Pamph. L. 525, to open a turnpike road to the public, the market value of the stock of the company owning such road, and the actual productiveness of such road to such company, are not to be taken into account in estimating the damages to which such company is entitled.</p>

<p>Error to the Court of Common Pleas No. 4, of Philadelphia county: Of January Term 1881, No. 108.</p> <p>.Assumpsit, by John J. Thomas against John B. Dickson, to recover the amount alleged by plaintiff to have been laid out by him in a certain transaction in stocks entered into by defendant’s order. The first trial of the cause resulted in a verdict for plaintiff, but a new trial was granted, the parties agreeing, in view of defendant’s approaching death-, that plaintiff should be permitted to testify on the new trial, and that defendant’s deposition should be read. Subsequently defendant died, and his administrator was substituted in his place.</p> <p>On the second trial, before Briggs, J., plaintiff was first called to the stand. He testified that he was a member of the Philadelphia Board of Brokers, and a personal friend of the defendant Dickson; that on June 17th 1874, he received from defendant, in the reading room of the Philadelphia Club, a verbal order to sell short on his account five hundred shares of stock in the Pennsylvania Railroad Company. That he did accordingly, in pursuance of this order, sell, at the Board of Brokers the next day, June 18th 1874, four hundred shares of the stock at $48|, and one hundred shares at $49, seller’s option, fifteen days. That at the expiration of fifteen days he delivered the stock and received the money for it; that in order to effect this delivery he had borrowed the certificates from another party. That the price rising, he had, on November 6th 1874, in order to make good the borrowed shares bought at the board on defendant’s order five hundred shares of the stock at $52-f. That in addition to the difference between the amount paid for these and the amount received from the sale of the former shares to which extent he was out of pocket, he had been obliged to pay to the lender of the shares delivered $1250, being the amount of a dividend declared in the meantime upon them; and further, that while this transaction was running he had had frequent conversations with defendant, asking him sometimes for margins, which defendant, however, failed to deposit. On cross-examination plaintiff explained that he had not given and received checks for the shares of stock bought and sold by him, but that he had paid and received the purchase-money through his clearinghouse sheet. The cross-examination then proceeded, inter alia, as follows:</p> <p>Q. Did Mr. Dickson give you a certificate of stock to sell ?</p> <p>A. No, sir.</p> <p>Q. Do you not know that he had no such certificate ?</p> <p>A. Well, I do not know whether he had or not.</p> <p>Q. At the time you sold that stock, had you five hundred shares of that stock to sell, in your own hands, and a certificate for it ?</p> <p>A. No, sir.</p> <p>Q. When you sold it, did you deliver five hundred shares of it to anybody?</p> <p>A. Yes, sir</p> <p>Q. How?</p> <p>A. When the fifteen days were up, I delivered the five hundred shares on the clearing-house sheet.</p> <p>Q. Through the clearing-house ?</p> <p>A. Yes, sir.</p> <p>Q. And not actually yourself?</p> <p>A. That is delivery.</p> <p>Q. But that is not what I mean. I mean your personal delivery. You did not take a certificate for five hundred shares of Pennsylvania Railroad stock and hand it to anybody, did you ?</p> <p>A. No.</p> <p>Q. Did you not, on the former trial, swear “ I delivered these shares of stock through the clearing-house sheet?”</p> <p>A. Yes, sir.</p> <p>Q. “ Which we have in the board ?”</p> <p>A. Yes, sir.</p> <p>Q. Did not you also swear that “ the clearing-house sheet is the way we have of delivering stock in the board?”</p> <p>A. Yes, sir.</p> <p>Q. Did not you say that you pay in your difference, or receive it, each day, according to your account, as standing ?</p> <p>A. Yes, sir.</p> <p>Q. Did not you also say, “ we only pay the differences, or receive the difference ?”</p> <p>A. Yes, sir.</p> <p>Q. And “I did not actually deliver the stock ?”</p> <p>A. I do not think I said that.</p> <p>Q. “ We do not actually deliver the stock ;” did not you say that?</p> <p>A. I do not remember whether I did or not.</p> <p>Q. Did not you also say, in point of fact, that there was no actual delivery of the five hundred shares in June 1874?</p> <p>A. No, sir ; I do not think I did.</p> <p>Q. Did not you say, “ I had no certificate, and the only delivery was the settlement for the difference ?”</p> <p>A. I had to have the certificates; I had to borrow them from other people.</p> <p>Q. Did not you say, upon the former trial, that “ I had no certificate, and the only delivery is a settlement for the differences ?” A. I do not remember that I did.</p> <p>Q. When the stock was loaned to you, the five hundred shai’es, did the person Avho loaned you those shares actually hand you a certificate for five hundred shares ?</p> <p>A. No, sir; it came in on the clearing-house sheet.</p> <p>Q. He did not deliver it to you, but it came through the clearing-house sheet ?</p> <p>A. Yes, sir.</p> <p>Q. And there was no actual delivery to you ?</p> <p>A. No actual delivery to me.</p> <p>Q. And you could not tell where it went, could you; or to whom it went ?</p> <p>A. No, sir; not at the end of the day, through the clearinghouse.</p> <p>Q. You say that you never saw, or actually delivered any cer tificate yourself ?</p> <p>A. Yes, sir; I did actually deliver it, because I delivered it on the clearing-house sheet.</p> <p>Q. No, no; I mean you never delivered it yourself, personally ?</p> <p>A. Do you mean that I took five hundred shares and delivered it to a man myself, personally ?</p> <p>Q. Yes, sir; that is what I mean to say.</p> <p>A. No, sir.</p> <p>Q. Did not you, upon a former trial in this case, say, and have not you said it twice, “ We only pay the difference or receive the difference; we do not actually deliver the stock ?”</p> <p>A. That is, for our clearing-house certificate balances: we only pay the difference, or receive the difference. If we have something coming in on one side, that is going out on the other, of course, we merely pay the difference.</p> <p>Q. Did you act as a broker for Mr. Dickson in that sense ?</p> <p>A. Did I act as a broker? Yes, sir.</p> <p>Q. When you and the defendant, Mr. Dickson, had this understanding, as you have explained it, was it not understood by you and the defendant that there would bo no actual delivery of the stock by you to him, or by him to you, but that he was to receive the difference from you in case the price of stock went down, or was to pay the difference to you in case the price went up ?</p> <p>A. Yes, sir.</p> <p>Q. That is, if there was any loss he was to pay ?</p> <p>A. Yes, sir.</p> <p>Q. And if there was any profit, you were to hand it over to him ?</p> <p>A. Yes, sir.</p> <p>On re-examination the plaintiff testified, inter alia, as follows:—</p> <p>Q. Mr. Brewster asked you just now, whether at the time you made your contract with Mr. Dickson, there was an agreement between you and him that there would be no delivery of stock, but he was to be responsible to you for the loss, and you were to be responsible to him for the gain. That is what I want to understand.</p> <p>A. There was nothing of that kind said.</p> <p>On re-cross-examination plaintiff testified, inter alia, as follows :—</p> <p>Q. You have said that there was nothing of that kind at all. Ha-ve not you testified that at the time Mr. Dickson directed you to sell the stock, it was understood between you and him that there was to be no actual delivery of the stock by you to him, or by him to you, but that he was to protect you from loss if the stock went up, and that he was to receive the difference from you in final settlement if the stock went down; did you not say that ?</p> <p>A. That certainly was the understanding.</p> <p>Plaintiff then identified bv his clerk his purchase and sales book, such as stock orders usually keep in which were contained entries of the foregoing transactions. The correctness of these entries was testified to by the clerk, and the book was then offered in evidence. Objected to by defendant because not a book of original entry. Objection overruled. Evidence admitted for the purpose of showing the sale, but not delivery. Exception. Plaintiff then closed.</p> <p>Defendant then read the deposition of John B. Dickson, deceased, denying that he had authorized plaintiff to buy or sell any stock on his account.</p> <p>Defendant requested the court to instruct the jury as follows :—</p> <p>1. “ The evidence of the plaintiff, showing as it does, that he acted as the agent of the defendant in the transaction sued on, and that the understanding between them was that there was to be no delivery of the stock sold, but merely a settlement of differences, there can be no recovery in this suit, and your verdict must be for the defendant.” Refused.</p> <p>2. “ Under the evidence, your verdict must be for the defendant.” Refused.</p> <p>The court charged, inter alia, as follows: “ The book may be given in evidence for the purpose of showing the time of sale, but the time of delivery cannot be shown by the book; Mr. Thomas testifying about the time when the stock was delivered, and the manner of its delivery. He settled according to the sheets rendered by the clearing-house, which is an institution established by the board of brokers for their own convenience. If the settlement was made and ratified; I say ratified [if it was ratified by the plaintiff by practical performance in accordance with the rules and regulations established by the clearing-house, of which he was a member, then the delivery is just as effectual as though the stock had been delivered in bulk, or the certificates h.ad been received, and they handed over]. Where there are open accounts between the parties, to strike the difference, and to settle according as that difference may be one way or the other, is a legal settlement to all intents and purposes, as effectually as if one party would pay a given sum, accordingly as the account would be found on one side, and then the other party would pay as the account appears on the other side; instead of going through all this circuity the parties may take the results, and strike a balance in figures, and settle accordingly.</p> <p>[“ Therefore, if you find in this case, that this sale was made in good faith, and the delivery made by the plaintiff in accordance with clearing-house regulations, you may assume that the deliveries were according to law. Mr. Thomas has laid before you his book, containing this entry. You may look at it, to discover whether it appears in its regular place, according to fair journalizing, as it appears upon the book; whether it is sandwiched or interlined: whether it appears on that day with other transactions; whether the date corresponds; whether it bears the impress of fairness and regularity. * * * Here are the books of original entries, and here are the various statements made by him. Are they true or are they false ?] * * *</p> <p>“ The case is open fairly and squarely for you to determine according to the evidence. If you believe Mr. Dickson that is an end of the case, and Mr. Thomas has no case whatever, and the verdict should be for the defendant. If you believe Mr. Thomas, then, unless the transaction is what the law calls a Wagering or gambling transaction, Mr. Thomas would be entitled to recover, for the defendant has placed his defence upon two grounds through his counsel; first, the contract was never made, and, second, if you should find from the evidence that it was made, it was made illegally, and was a gambling transaction.</p> <p>“ Now, unless you pass the first point of the defendant, namely, that Mr. Dickson never entered into the contract, and if you believe he never did, you need not inquire further, and indeed you should stop there and render a verdict for the defendant. If, however, you pass that point by believing that a contract was entered into, then you will inquire whether the contract was a wager, or one of a gambling nature, and if you do find that it was such, then you will render a verdict for the defendant, for the law does not open the doors of its tribunals to aid gamblers. Whatever form, whatever guise, the transaction may assume is of no consequence. If it is a gambling transaction, then the parties must settle all such transactions outside of the tribunals of justice, because those transactions are opposed to the law of the land, and we do not open these tribunals to hear litigation, or give attention to parties whose contentions and disputations are based on illegalities. The courts of justice are only opened to legal questions.</p> <p>“With reference to the latter point, I say that a sale of stock on time, made in good faith, with intent to deliver it whether the seller has the stock in his possession or not is a legal sale. Understand me. I repeat: A sale of stock or merchandise of any kind, on time, whether the seller has it on hand or not, if made in good faith, and with the intention of delivery, is a legal transaction, and may be enforced in a court of justice.</p> <p>[“ Therefore, in considering this latter point of defence set up, if you find that Mr. Dickson authorized Mr. Thomas to sell this stock for his account, seller’s option, fifteen, without informing him that it was to be settled for in differences, and without informing him that it was merely a matter of gambling speculation, the plaintiff may recover. If, however, he communicated to him at the time, or it was known to him at the time, and if the evidence satisfies you that Mr. Thomas knew it was a stock-gambling operation, that no stock was to be delivered to him, but the whole transaction at the end of the time, or whenever it was closed was to be settled in differences, it not being indicated at the time that any stock was to be delivered byhim, or any stock was to be delivered by the broker, who made this short sale, then it is what the law stamps as a gambling transaction, and the defendant would be entitled to your verdict.]</p> <p>“ This is the law of this case. There was a distinction supposed by my brother, Judge Thayer, the president of this court, that where the party was simply the agent or broker, and even if he knew that the transaction was one of a gambling character or nature, yet, if he advanced the money for the principal, he might, notwithstanding, recover. [That was his view at the time; and I am not sure that, after all, it will not be declared to be the law, for the case that went to the Supreme Court was very obscure.] It was the thought of the profession up to that time; and it is still the law of England from which we draw the purest law that is administered in this country. They study the analogies, and they study the propositions of law; and they are so learned, and so able, that we do honor to ourselves by taking their precedents, because they are so well considered that it would create a wonderful vacuum if we would reject the adjudication of tribunals as high and as learned as those. When we refer to them as the English law, we refer simply to the source from which we can safely draw our precedents. They take our own, and they have taken, in one respect, the entire Pennsylvania code; and they have done us that honor with regard to the reforms that have been established with reference to equity proceedings.</p> <p>“ I say, at the time that this case was tried before, the learned president of the court was under the impression that there might be a recovery, if Mr. Thomas was acting in the capacity of agent, and advanced his money for the account of the principal; but soon after that time, and before Judge Thayer had disposed of a motion for a new trial — I refer to this because the learned counsel have repeated it in your presence to you over and over again, and because you have been told that this is the fourth time that this case has been before this court, and, therefore, I refer to this fact conceded by the respective counsel, who have addressed you — and while the motion for a new trial was still pending, the Supreme Court passed upon a case of a similar nature and made this decision. And, gentlemen, we are always bound to take the decisions of the Supreme Court. I take its decision personally and judicially, and swallow it without a grimace or question. I do not pretend to say that that tribunal is wrong, as some judges seem to think. I believe they are not wrong; and I have no fault to find with them. There must be a point where all contentions and controversies shall be settled and determined, for public peace and public policy demand it; and that is the place for such determination. However, I take their decisions whether right or wrong, although the presumption is that they are right; and in this ease to which I have referred, and which they decided while a motion for a new trial was pending in this particular issue, they laid down this doctrine: that where, perhaps, one man loans money to another to go into a gambling operation, if he hands the money over to the receiver or operator, and does nothing more, he may recover the money back, because he is not an agent in the transaction ; but where the man becomes an active party in executing the illegal transaction, as, for instance, if ho advances the money, and plays with it for the account of the lender, and loses it, there he becomes so identified and mixed up with the transaction that he cannot then call upon the party to pay, because he executes the gambling contract. Now, the analogies between that aspect of that case and this are, that Mr. Thomas must have known that this was a gambling venture, because, first, he not only lost his money, but, second, he was the very party to carry into effect this transaction, and he himself was the very party who executed it. Therefore, according to this very decision of the Supreme Court, you must, if you believe this a gambling transaction, find a verdict for the defendant, because Mr. Thomas is directly within its range, and principle, and decision, because he was the man that absolutely executed the alleged gambling transaction, or contract, or venture.”</p> <p>Verdict and judgment for the plaintiff, for the full amount claimed; whereupon defendant took this writ, assigning for error, inter alia, the admission of plaintiff’s purchase and sales book in evidence, the refusal of defendant’s points, the portions of the charge above cited in brackets, and the tendency of the whole charge to leave an impression on the minds of the jurors that the decisions of the Supreme Court in former cases were doubtful law, and to favor the claim of the plaintiff as a legal contract satisfactorily proved.</p>

<p>Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1881. No. 125.</p> <p>This was an 'appeal from a decree directing William Henry Lex, executor of the estate of E. H. Bonsall, deceased, to pay to John Fallon a sum of money awarded to him on the audit of the account of said Lex as executor.</p> <p>Edward H. Bonsall died in April 1879, having by his will, dated April 15th 1876, duly proved, bequeathed to his son, Jeremiah Bonsall, a legacy of $1000. The executor filed his account in May 1880; and upon the audit, before Ashman, J., John Fallon presented a claim to the said legacy, founded upon an assignment of it to him by Jeremiah Bonsall, the legatee, dated April 22d 1879. It further appeared by the evidence that on May 13th 1879, an attachment-execution, at the suit of T. B. P. Dixey, executor, &c., issued out of the Common Pleas No. 3, of Philadelphia county, on a judgment in the old District Court of June Term 1865, No. 267, against Jeremiah Bonsall, defendant, and William Henry Lex, executor, garnishee; that interrogatories and answers had been filed, and the cause was then awaiting trial. The plaintiff in said suit did not appear at the audit, although he had notice of it. The auditing judge allowed Mr. Fallon’s claim, and awarded to him the legacy of $1000, with interest. In his adjudication, he said, inter alia, “Under the decision in'Hammett’s Appeal, 3 W. N. C. 416, and the authorities there cited, the auditing judge must allow this claim. The jurisdiction of the Orphans’ Court in the subject-matter is undoubted; and it was not pretended that the attaching-creditor had no notice of the audit. No demand was made for time in which to disprove the claim of Mr. Fallon or to establish that laid in the attachment.”</p> <p>Exceptions filed to the adjudication were dismissed by the court, and the adjudication confirmed; whereupon the court, on November 27th 1880, granted a peremptory order on W. II. Lex, executor, directing him to pay the amount awarded to Mr. Fallon. To this order, Lex filed an answer, setting forth that the plaintiff in the attachment suit denies the jurisdiction of the Orphans’ Court, and is proceeding in said attachment suit in the Common Pleas; that he has notified the respondent that in the event of his obtaining •judgment in said suit he will hold the respondent liable for the amount of said legacy. The respondent, fearing that by such conflict of jurisdiction he may be called upon to pay the same amount twice, prayed that the order granted on him might be suspended until the determination of the attachment suit, and further asked the protection of the court in the premises.</p> <p>On December 20th 1880, the court entered the following decree: “ The petition or answer of W. H. Lex, executor, having been argued by counsel, the court dismiss the same, and make absolute their order of November 27th 1880.” Whereupon, W. H. Lex, executor, took this appeal, assigning for error the said decree and the refusal of the court to mould its decree so as to protect the rights of the appellant whilst the said attachment is pending and undetermined.</p>

In the Supreme Court of Pennsylvania: Of October and November Term 1880, No. 308. Quo warranto, issued by the Supreme Court at the relation of Henry W. Palmer, attorney-general, commanding the sheriff of Fayette county to summon David W. C. Dumbauld and Griffith Roberts to appear and show by what authority they, or either of them, claim to exercise the office of associate judge in and for the county of Fayette.

<p>Error to the Court of Common Pleas of Berks county: Of January Term 1879, No. 220.</p> <p>This was an action of assumpsit, originally brought by Pollock & Medlar, for the use of the William Penn Coal Company, against Conrad Frame, to recover §120.30, the price of certain coal shipped from the company’s mines in Schuylkill county to the defendants at Heading. Before the trial, the record was amended by striking out the names of Pollock & Medlar, leaving the William Penn Coal Company to stand as sole plaintiff.</p> <p>On the trial, before Sassamax, A. L. J., the defendant did not deny the receipt of the coal, nor dispute the quantity or price, but claimed that be bad purchased the same from Pollock & Medlar, against whom be had a set-off, and not from the William Penn Coal Company. The plaintiffs proved that Pollock & Medlar were their agents at Pottsville for the sale of coal; that the plaintiffs shipped the coal in question to the defendant at Reading through Pollock & Medlar, accompanied by a printed ticket and bill of lading showing whose coal it was; that the bill for the coal was sent to the defendant by Pollock & Medlar; that plaintiffs’ mode of doing business was to enter the coal on their books to the purchaser it was sent to, and make out bills to their agents, Pollock & Medlar, and charge them with the coal shipped; that the agents then made out bills to the purchaser in their own names; that the company held the agents in the first instance for the collections, and if they w'ere unable to collect, the company proceeded to do so.</p> <p>The superintendent of the company was asked on cross-examination : Q. “ If the bills of coal sold by agents are afterwards not collectable by the company, are the agents liable to the company for the amount?” Objected to, and ruled out, as not properly cross-examination, and as irrelevant to the issue. (First assignment of error.)</p> <p>The defendant’s counsel offered to prove that the defendant did not know that Pollock & Medlar were acting as agents in the selling of the coal in question, but that he dealt with them as principals, and that he did not know the William Penn Coal Company in the transaction.</p> <p>In' support of this offer, he asked the defendant, on the witness st^nd :• Q. “ State what knowledge you had that Pollock & Medlar were dealing in these sales of coal, as principals or agents ?” Objected to, because knowledge of the witness would be an inference and not a fact. Whether he was dealing with Pollock & Medlar as agents or as principals is an inference to be made by the jury from the facts proved. The question is not what the defendant actually knew, but what he was bound to know from the circumstances.</p> <p>The Court: Facts and circumstances should be proven to show the manner in which Pollock & Medlar dealt, and it should be for the jury to conclude whether the facts and ostensible circumstances of the manner and dealing would induce knowledge of principal-ship or agency in the mind of a man of average intelligence. This form of putting the question is rejected. (Second assignment of error.)</p> <p>The defendant’s counsel further offered to prove delay by Pollock & Medlar in the fulfilment of another contract of purchase of coal by the defendant, whereby the defendant sustained damages to the amount of $140, which he claimed to set off against the plaintiffs’ demand. In support of this offer, he offered in evidence three letters from Pollock & Medlar to the defendant, explaining the cause of such delay. Objected to, because defendant’s previous letter to Pollock & Medlar, to which one of the letters offered was a reply, had not been given in evidence, and because irrelevant. Objection sustained, and letters excluded; exception. (Third assignment of error.)</p> <p>Verdict and judgment for the plaintiff for $142.22. The defendant took this writ of error, assigning for error the rejection of evidence as above set forth.</p>

305. In Equity. Bill in equity, filed December 29th 1873, by Samuel Meek against Catharine Meek, widow and administratrix of Isaiah Meek, deceased, and Henry Meek et al., children of said Isaiah Meek, deceased. The plaintiff died pending the suit, and his executors, Samuel Meek and Charles Meek were substituted of record.

<p>Appeal from the Court of Common Pleas of Lehigh county: Of July Term 1880, No. 45.</p> <p>The facts of this case were as follows: Lewis M. Frey made a general assignment for the benefit of creditors of real and personal estate, to W. J. Craig, on February 12th 1876. In April 1877, the court, on petition of the assignee, made an order authorizing him to sell at public salo a certain house and lot, part of the assigned estate, in accordance with the Act of February 17th 1876, Pamph. L. 4. On June 7th 1877, the assignee returned that he had sold the premises in question to R. Clay Hamersly for §5210. The return was confirmed by the court, and on September 13th 1877, the assignee conveyed the premises to IJamersly, who, by deed dated the same day, reconveyed the same to the said William J. Craig (the assignee) in his own right. No money changed hands.</p> <p>At the time of assignment and sale the said real estate was encumbered by mortgages and judgments in the following order: Three mortgages aggregating §4392; William J. Craig, judgment, §1400 ; other judgment-creditors, aggregating §3182.75, including a judgment held by George Sheffy for §820.39. The mortgages were accompanied with bonds, which mortgage-debts the assignee paid in full. The assignee also sold other real estate of the assignor, situate in Northampton county, without an order of court, for the nominal price of §1, subject to mortgages for §1293.50, which were paid by the purchaser. The assignee in his account, filed June 3d 1878, charged himself with the purchase-money, $5210, and claimed credit for the amount of the mortgages, $4392, and also claimed credit for $818, the balance of the purchase-money, as having been paid to him on account of his judgment of $1400.</p> <p>The account was referred to an auditor, before whom the subsequent judgment-creditors objected to the said credits. The auditor declined to disallow the said credits, and in the distribution of the personal, property subrogated William J. Craig to the rights of the mortgagees, and awarded him a pro rata dividend on $5685.50, the amount of all the said mortgages (including those on the Northumberland county land), and also on the amount of his judgment. The result of this distribution was that Craig would receive $818, proceeds of the real estate, and the further sum of $495.99 out of the personal fund, amounting together to $1313.99, or nearly the full amount of his judgment, while the other judgment-creditors would only receive a pro rata dividend of seven per cent. The subsequent judgment-creditors filed exceptions to this report,'pending which, on September 6th 1879, Craig and Hamersly presented their petition to the court, setting forth that by inadvertence a mistake had been made in the return of the assignee to the order of sale in 1877, and in the assignee’s account, in stating the purchase-money as $5210, whereas it should have been $818, which was the true amount for which the premises sold subject to the mortgages. It was admitted that the mortgages were not discharged by the sale, — the express terms of the Act of 1876 preserving their lien, and it having been announced at the sale that the property would be sold subject to the mortgages. The mistake arose by including in the bid, in addition to the actual purchase-money, the amount of the mortgages, on the understanding that the purchaser would receive credit for them. A rule to show' cause was granted, and testimony taken which established the facts alleged in the petition, and, after argument, the court, on November 10th 1879, granted an order to amend the return so as to read: “ That the price bid, $5210, includes the amount of mortgages undivested by said sale, amounting to $4392, and that said real estate was sold for $818.” On the same day, the court dismissed the exceptions filed to the account, except the one filed to the allowance of the credits of the mortgages, as to which the report was referred back to the auditor to take further testimony and report thereon.</p> <p>On December 15th 1879, the auditor filed a supplementary report awarding to William J. Craig a dividend upon the sum of $5685.50 (being the amount of all the said mortgages, including that on the Northampton county lands), amounting to $502.50; also a pro rata dividend upon his judgment of $1400, amounting to $123.20 ; and to the remaining creditors a dividend of less than nine per cent.</p> <p>George Sheffy filed, inter alia, the following exceptions to the supplementary report, viz.: 1. To the allowance to the accountant of credit for the mortgages amounting to $4392, which were not discharged by the sale, and allowing credit for the $1293 mortgage on other lands. 2. To awarding the assignee a dividend upon the amount of the mortgages by subrogation as well as upon his judgment.</p> <p>These exceptions were dismissed by the court, and the report confirmed; whereupon George Sheffy took this appeal, assigning for error, inter alia, the order of November 10th 1879, permitting the amendment of the return of sale, and the dismissal of the exceptions and confirmation of the report.</p>

<p>Error to the Court of Common Pleas, of Berks county: Of January Term 1881, No. 72.</p> <p>Assumpsit, brought May 2d, 1879, by Willoughby Wesner against Moses Stein and Amos Greenawalt, upon the following promissory note.</p> <p>§500. Albany, April 1st 1870.</p> <p>One year after date, I promise to pay to the order of Willoughby Wesner Five hundred dollars, with interest, without defalcation, for value received.</p> <p>Moses Stein,</p> <p>Amos Greenawalt.</p> <p>On the back of the note were the following endorsements :</p> <p>Pait the interest on this note in ful from April 1870 til April 1871. §30.</p> <p>Pait the interest on this note in ful from April 1872 in ful. §30.00.</p> <p>Pait the interest on this note in full from April 1st 1873 in full §30.</p> <p>April 1, 1874, pait the interest in full for one year §30.00.</p> <p>April 1, 1875, pait the interest for one year in full. §30.00.</p> <p>April 1, 1876, pait the interest April 1876 in full. §30.00.</p> <p>April 2, 1876, pait the interest April 1877 in full. §30.00.</p> <p>April 2, 1878, pait the interest §30.</p> <p>April 2, 1879, pait the interest fife mont in full.</p> <p>It was admitted that Greenawalt signed the note as surety. He pleaded the Statute of Limitations, and upon that issue the case went to the jury. . No judgment was asked against Stein. Greenawalt having died, his administrators were substituted on the record.</p> <p>On the trial it was shown that the several payments of interest endorsed on the note, with the exception of the last (dated April 2d 1879) were made by Stein. This last payment was made by Mrs. Greenawalt, wife of Amos Greenawalt, to David Wesner, agent for plaintiff, but the defendants alleged and produced evidence to show that it was Stein’s money which had been left at Greenawalt’s house for the purpose of this payment under the following circumstances: Greenawalt lived midway between Stein and Wesner, and in April 1879, Mrs. Stein, having been to Wesner’s with the money to pay the interest, and finding him absent from home, left word that she would leave the money as matter of convenience with Mrs. Greenawalt, her sister-in-law, where he could get it. David Wesner, at the request of the plaintiff, called the same day at Greenawalt’s house, when five months’ interest was paid to him by Mrs. Greenawalt in the presence of her husband, who, however, was suffering from paralysis. The amount was not sufficient to pay the interest due in full, hut Mrs. Greenawalt said ■that that was all the money that Mrs. Stein had left there. Wesner took the money, and endorsed the receipt for five months’ interest.</p> <p>In November 1878, Moses Stein, being in failing circumstances, called a meeting of some of his creditors with a view to confessing judgments for their claims. Amos Greenawalt being confined to ■ the house by illness, directed his son, Amos Greenawalt, Jr., to attend the meeting, arid to ask for a judgment on his claim, and also' to secure him in case he should have to pay the notes on which he was security; and a judgment was then confessed by Stéin to Amos Greenawalt, Sr., for $1511.10, which included the amount of the note in suit. It was stated at the meeting by Amos Greenawalt, Jr., that the only object of including in the judgment the notes on which his father was surety was in case his father should become liable upon them.</p> <p>The court submitted to the jury the question o.f face, whether the payment of interest on April 2d 1879, was made by Stein by the hand of Mrs. Greenawalt, or whether it was made by Greenawalt or by his direction. As to the effect of taking the judgment in favor of Greenawalt, to include the amount of the note in suit, the court charged, inter alia, as follows :</p> <p>“ The claim on this note is sought to be recovered against Mr. Greenawalt upon a promise that he should have to pay this debt, and that is the very point of this whole case; for, unless there has been a promise made by Greehawalt to pay this note, there can be no recovery against Greenawalt, and such a promise must be clear and explicit. Its terms must be unequivocal and determinate. This is the law, and unless the jury can find that such a promise has been made by Greenawalt himself, there can be no recovery against him in this suit. What is the evidence upon which it is relied .that, there was a promise made'? Without the promise there is no liability. * * * The taking of the judgment alone, if there was nothing else in it than the simple taking of the judgment' alone, would be considered as having been taken to secure himself against any contingent liability that may be had against him by the Wesners. If nothing more was said than that, the simple taking of it, at this meeting of the creditors, from Stein, would not amount to a promise to pay that note and to take it out of the Statute of Limitations.- What authority, first of all, had Amos S. Greenawalt when he went there ? Had he authority to bind his father to any new promise to pay this note ? Is there any evidence in the cause that he had authority to bind his father to the payment of this note? From all the facts and circumstances in this case can'the jury find that he had authority to bind his father to the payment of this note ? * * * If there was no authority, and the jury can find no authority from all the facts and circumstances of this case, which authorized the party to make a promise to pay this note, which was barred by the Statute of Limitations, there can be no recovery. On the other hand, if the jury should find that there was authority to do that thing, was it done ? is the next inquiry. Was there such a promise made by Amos Greenawalt to bind his father to the payment of this note ? * * * First of all, you will inquire whether there was any authority upon the part of Amos S. Greenawalt, the son, to make any obligation of his father to pay this note; whether he was authorized to hind his father to the payment of this note. If he was not, that is the end of this suit. If he was, then what took place there before the Squire at his office ? Did he obligate himself? Did he expressly say, when ho took that judgment, that he would pay those notes ? that his father would pay them ? that ho would give another note for those notes ? This is for the jury to find. The evidence is, so far as my recollection goes, and so far as I have read the testimony, that the judgment was taken before anything was said about it. Does all this amount to a promise to pay ? If it does, the plaintiff would be entitled to a verdict; but if it does not, there is no case for the plaintiff.”</p> <p>Verdict and judgment for the defendants. The plaintiff took this writ of error, assigning for error, inter alia, the charge of the court as above quoted.</p>

114. This was a writ of error to a judgment of the said court, awarding a writ of peremptory mandamus in favor of the Commonwealth, ex rel. John H. Keppelman against William A. Runkle, city controller of the city of Reading, commanding him to countersign certain warrants drawn upon the city treasurer in favor of said Keppelman, for salary as city clerk, and as secretary of the water board of the city of Reading.

65. Quo warranto by the Commonwealth of Pennsylvania-, ex rel. J. H. Keppelman against Edward A. Howell, commanding him to show by what authority he exercises the office of clerk of select council and ex officio city clerk of the city of Reading.

<p>Error to the Court of Quarter Sessions of B^erks county: Of January Term 1880, No. 108.</p> <p>This was an indictment against Jacob Huntzinger and J. Albert Huntzinger, in the Court of Quarter Sessions of Schuylkill county,' for conspiracy to cheat and defraud, founded upon the oath of Thomas F. Kerns, prosecutor, who was a clerk of the said court. The venue was subsequently changed to Berks county.</p> <p>'• The indictment contained two counts. The first charged that the defendants being respectively president and cashier of the Miners’ Trust Company Bank of Pottsville, a corporation, “ did falsely and maliciously combine, conspire, confederate and agree together to cheat and defraud Thomas F. Kerns of a large sum of money, to wit, the sum of twenty-four thousand dollars, by means of falsely and fraudulently representing to the said Thomas F. Kerns that the said The Miners’ Trust Company Bank of Potts-ville was solvent and able to pay all its liabilities, and thereby inducing him to deposit in the said The Miners’ Trust Company Bank of Pottsville, the said sum of twenty-four thousand dollars, whereas .in truth and in fact the said Jacob Huntzinger, president, as aforesaid, and the said J. Albert Iluntzinger, cashier, as aforesaid, well knew, at the time that the representations, as aforesaid, were made, that the said corporation was wholly insolvent and unable to pay its liabilities, to the great prejudice of the said Thomas F. Kerns, contrary to the form of the Act of the General Assembly, in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.”</p> <p>The second count charged that the defendants “ did falsely and maliciously combine, conspire, confederate and agree together to cheat and defraud Thomas E. Kerns of a large sum of money, to wit, the sum of $24,000, to the great prejudice of the said Thomas F. Kerns, contrary to the form of the act.”</p> <p>On the trial, before Hagesmax, P. J., the defendants presented the following point: “ That part of the sentence, in case of conviction under this indictment, must be that the defendants make restitution to the prosecutor. That it is the policy of the law to discourage criminal prosecutions to enforce redress for private injuries, but the true policy of the law is to require parties to seek redress in the civil courts for private wrongs.” The record failed to show whether this point was affirmed or not.</p> <p>The court charged the jury, inter alia, as follows :—</p> <p>“ This indictment contains two counts. The first alleges not only that the defendants conspired to cheat and defraud the prosecutor, but that they fully executed the conspiracy by the false representations and pretences therein specially mentioned. * * * But the Commonwealth ask for a conviction upon the first count of the indictment with a view to a judgment of restitution, if the defendants are found guilty. In order therefore to find the defendants guilty under this count, the jury must not only find that the defendants conspired to cheat and defraud Thomas F. Kerns, the prosecutor, but they must also find that the conspiracy thus formed was fully carried out, and that Kerns was actually defrauded of the moneys charged in the indictment.”</p> <p>Verdict guilty in manner and form as indicted. The following judgment and sentence was subsequently entered:</p> <p>“And now, to wit: January 22d 1878, the sentence of the court is, that you, Jacob Iluntzinger and J. Albert Iluntzinger, pay a fine of five hundred dollars ($500) to the Commonwealth for the use of the county of Berks; that you restore and pay to the prosecutor, Thomas F. Kerns, the property of which he was defrauded, to wit, the sum of twenty-four thousand dollars ($24,000), unless you have already done so; that you undergo imprisonment in the Berks county jail by separate and solitary confinement at labor for the period of two years, to be computed from this day; that you pay the costs, and stand committed until this sentence is complied with.”</p> <p>Immediately after the sentence was pronounced counsel for the defendants made application to this court for a special allocatur which, on January 28th 1878, was refused, the court filing the following order:</p> <p>“ This petition and the accompanying documents having been fully considered by the court, it is thought that no sufficient and substantial error appears to order an allowance of a writ of error.</p> <p>“ Allocatur therefore refused.</p> <p>“Per Curiam.”</p> <p>Subsequently, in vacation, another application for an allocatur was made to Paxson, J., who allowed the same. The defendants thereupon took this writ of error, assigning for error that part of the judgment and sentence which required the defendants to “ restore and pay to the prosecutor, Thomas E. Kerns, the property of which he was defrauded, to wit: The sum of twenty-four thousand dollars, unless you have already done so,” * * * “and stand committed until this sentence is complied with.”</p>

<p>1. In this state the words “first mortgage” have a fixed, definite meaning and imply that the lien of the mortgage is prior that of any other claim.</p> <p>2. When any person sells a bond, setting out on its face that it is secured by a first mortgage, or induces another to guarantee it as such, he will, in the absence of any further qualification, be estopped from subsequently setting up a lien as against the guarantor and holders of the bonds.</p>

Of January Term 1879, No. 151. In Equity. Appeal of I. V. Lynch, J. O. Miles and John W. Miller from a decree of the said court, confirming a master’s report and directing that certain articles of agreement under seal between the appellants and Victor Koch be rescinded.

Two writs of error: Of July Term 1879, No. 116, and July Term 1880, No. 54. Held: that the setting aside of the former service on Bartlett did not end the suit, and that having been rightly brought in the name of Storrs, assignee, his subsequent assignment to Means did not operate as an abatement.

42. Assumpsit, by Edward Overton against John Conmey, on a promissory note given by defendant to plaintiff for $450. The plaintiff died before trial, and his administrator, James Macfarlane, was substituted. On the trial, before Morrow, P. J., the plaintiff put the note in evidence and rested.

<p>Error to the Court of Common Pleas of Bradford county: Of January Term 1881, No. 132.</p> <p>This was au attachment-execution, issued April 19th 1878, by N. N. Betts, plaintiff, against Chauncey S. Bussell, defendant, and George Bussell, Lewis S. Bussell and the Towanda Gas and Water Company, garnishees, on a judgment obtained January 8th 1877, by the said N. N. Betts, against Chauncey S. Bussell, for $3055.75. The attachment issued in the usual form., but without the filing of an affidavit and recognisance, as required by the 82d section of the Act of June 16th 1836, Purd. Dig. 639, pi. 29, where stock is held in another name than that of the defendant.</p> <p>The Towanda Gas Company, in reply to interrogatories, answered that at the time of the service of the attachment, two shares of the stock of the respondent company were standing on the books in the name of Chauncey S. Bussell; that three hundred shares of stock stood in the name of Lewis S. Bussell, and the company had no other knowledge as to the ownership thereof than was afforded by the books; that on the day the attachment was served, Chauncey S. Bussell stated to the president of said company that he owned one hundred and eighty shares of the stock in addition to the two shares standing in his name on the books. Lewis S. Bussell answered that at the time of the service of the attachment on him, he did not hold in his name any shares of the said stock, in trust or otherwise, for the said Chauncey S. Bussell.</p> <p>On May 5th 1879, the Towanda Gas and Water Company pleaded specially that since the filing of the company’s answers to the interrogatories, the defendant Ohauncey S. Russell, has acknowledged and stated to said company that he was the owner of 180 shares of the capital stock of said company, standing on the books of said company in the name of Lewis S. Russell by exhibiting to the president of said company the certificates therefor duly assigned in blank. * * * And the last aforesaid shares, together with the two shares of said stock standing in the name of Ohauncey S. Russell, therefore make 182 shares of said stock owned by the said Ohauncey S. Russell in the said company. And therefore the said company pleads nulla bona, except as to the aforesaid 182 shares of said stock so owned and held as aforesaid by the said defendant, Ohauncey S. Russell.</p> <p>Whereupon, on motion of plaintiff, the court on the same day entered judgment upon the above plea in favor of the plaintiff, against the Towanda Gas and Water Company for 182 shares of its stock.</p> <p>On Api'il 22d 1878,” a petition in bankruptcy was filed against Ohauncey S. Russell, who was, on May 7th 1878, adjudicated a bankrupt, and on August 9th 1879, ITenry Streeter was elected assignee in bankruptcy. Mr. Streeter was also president of the Towanda Gas and Water Company.</p> <p>On September 11th 1880, the plaintiff Betts issued a fi. fa. on his judgment, and by endorsement directed the sheriff to levy upon and sell 182 shares of the Towanda Gas and Water Company.</p> <p>On September 27th 1880, upon petition of Henry Streeter, assignee in bankruptcy of Ohauncey S. Russell, the court granted a rule to show cause why the said judgment should not be opened-as to 180 shares of stock held by Ohauncey S. Russell in the name of Lewis S. Russell, and judgment corrected so that it shall stand for two shares only, which Ohauncey S. Russell held in his own name.</p> <p>The court, Morrow, P. J., made this rulé absolute, on the ground that the attachment, having been issued without affidavit and recognisance, was void as to the 180 shares standing in the name of Lewis S. Russell. The court further held, that as the assignee in bankruptcy was not appointed until after judgment had been entered on the plea of the garnishee, without rule or argument, the assignee was not barred by lapse of time from the right to have the judgment opened as to him.</p> <p>The plaintiff took this writ of error, assigning for error the making absolute of the said rule.</p>

16. This was an appeal by John Henry Dampf and Fanny P. Dampf, his wife, in right of said wife, from a decree of said court, dismissing her exceptions to the account of the administrators of Daniel E. Pomeroy, deceased, on the ground that she had no interest or standing in court, and confirming the said account. Daniel E. Pomeroy died in April 1872, intestate, leaving to survive him a widow and two children, of whom the appellant, Fanny P. Dampf, is one.

41. Trespass quare clausum fregit by E. A. Packer et al. against The Schrader Mining & Manufacturing Company et al. for timber felled and converted in 1867, 1868 and 1869, upon part of a tract of unseated land in the warrantee name of George Moore. The defendants pleaded not guilty and liberum tenementum.

<p>1. A supplemental bill in aid of a final decree in equity, whose object is to compel the carrying out of the decree, and give full and complete effect to it, will be entertained.</p> <p>2. Where a court of equity has once obtained jurisdiction of a subject, it has power to enforce its own decree in reference thereto, without being obliged to have recourse to the assistance of a court of law.</p> <p>3. Where a complainant in equity, who has filed a bill praying that certain conveyances of real estate may be declared to amount to a mortgage, obtains a decree in his favor, by the terms of which he is declared to be entitled to a conveyance of said real estate on the payment of certain sums of money by him to defendant, and afterwards said complainant fails to pay said sums, although said conveyances are executed and tendered by defendant, it is competent for the court, on the filing by defendant of a petition in the nature of a supplementary bill to enforce the decree, to order the amount of rent in the hands of the lessee of said real estate to be paid by him to defendant, to apply on the original decree.</p> <p>4. Although a court of equity has no right to decree a sale of mortgaged premises at the instance of a mortgagee, in a distinct and independent proceeding. it is nevertheless justified, under the circumstances mentioned above, in ordering a sale of the real estate in question, if, within a specified time, the amount due by complainant to defendant be not paid, the purchase-money to be applied on account of the amount so due.</p>

<p>1. Offences against the purity and fairness of public elections are crimes at common law andsindictable as such.</p> <p>2. The making of false and fraudulent entries in the book of voters at an election, the depositing of false and fraudulent ballots on a like occasion, and the assuming and undertaking to count the ballots cast at an election, in a false and fraudulent manner, are acts which, if not performed by election officers, are not specified as indictable offences, either by the Act of July 2d 1839, Pamph. L. 519, or any other Act of Assembly. They are nevertheless, offences at common law, and as such indictable, under the terms of the Act of March 31st I860, sect. 178, Patnph. L. 425.</p> <p>3. An indictment set forth a conspiracy to commit certain offences against the’ election laws, some if not all of which were expressly made indictable by the provisions of the Act of July 2d 1839, Pamph. L. 519, and further set/forth divers overt acts, constituting the offences above named, alleged to have been performed in pursuance of said conspiracy. Held, that the gist of the offence charged lay in the combination, that the overt acts alleged were no part of the offence, hut merely evidence of it, and that, therefore there being no provision in said Act of Assembly, making a conspiracy to perform the acts nominated as offences therein indictable, the indictment could not be sustained under the terms of said act. Held, further, nevertheless, that said conspiracy, though not particularly nominated as an indictable offence by any other statute, was an offence at common law, and as such indictable under the terms of the Act of March 31st 1860. sect. 178, Pamph. L. 425.</p> <p>4. Offences against the election laws, not made indictable by the Act of July 2d 1839, Pamph. L. 519, are governed, as regards the limitation of the time within which prosecution may be instituted, by the terms of the Act of March 31st 1860, sect. 77, Pamph. L. 450, whereby it is provided that such prosecutions may be instituted within two years next after the offence has been committed, and not by the terms of the Act of July 2d 1839, sect. 128, Pamph. L. 457, whereby said time is limited to one year.</p> <p>5. Whether the latter provision is repealed by the former, not decided.</p> <p>6. The Act of March 12th 1866, sect. 1, Pamph. L. 85, enabling the court to appoint a special district attorney for the conduct of a case, was not avoided by the passage of the new Constitution of 1874, making the district attorney a constitutional officer. The legislature cannot abolish the office, but can control the officer, and if he refuse, or if it be improper for him to act, may alibi'd a remedy.</p> <p>7. An indictment was brought against certain persons, for alleged offences against the fairness and purity of an election, which were said to have resulted in the election of the district attorney in office when the indictments were drawn. Said district attorney disagreeing with the private counsel for the prosecutor, as to the method of proceeding, refused to sign the indictments. ■ The court being informed of these facts, by the prosecutor’s counsel, appointed the latter special district attorney to conduct the case, under the provisions of the Act of March 12th 1865, sect. 1, Parnph. L. 85. Held, that said course of action was legal and proper, and that indictments signed by said private counsel, as special district attorney, and by him presented to the grand jury, were valid and sufficient to support a conviction.</p>

No. 161. Assumpsit, by Francis A. Mortimer, administrator of Hannah Guldin, deceased, against Benjamin H. Guldin and John S. Rick, administrators of William C. Guldin, deceased. The narr. was in the common counts. On the trial, before Walker A. L. J., the following material facts appeared: Hannah Guldin, a widow, died intestate, leaving to survive'her three children, William O. Guldin, Benjamin H. Guldin and Catherine S. Conrad.

87. Covenant, by Leonard Rought, Jr., against the Lycoming County Mutual Insurance Company, upon a policy of fire insurance.

<p>1. Although any material alterations in a promissory note, after its endorsement, will invalidate it as to the endorser, yet if it be without date when endorsed, the law will imply that the endorser authorizes the filling in of the date. And such filling in, therefore, by the, maker, will not relieve the endorser from liability.</p> <p>2. Where a witness is called to testify to a previous examination of a deceased witness, he may, where he cannot recollect the very words of the deceased witness, state in his own language the facts detailed by that witness as they were impressed on his mind at the time.</p> <p>3. Such witness, in order to be competent, must have a reasonably clear recollection of the testimony of the deceased witness, both on the examination in chief and on cross-examination. And if he has the same general recollection of one as of the other, without special verbal recollection of either, this is sufficient.</p> <p>4. Cornell v. Green, 10 S. & R. 14, and Wolf v. Wyeth, 11 Id. 150, followed.</p>

<p>Error to the Court of Common Pleas of Wyoming county: Of January Term 1881, No. 192.</p> <p>Covenant, by S. Judson Stark etal., liquidating trustees of the Tunkhannock Toy Company (Limited), against the Susquehanna Mutual Fire Insurance Company of Harrisburg, Pa., on a policy of fire insurance, dated May 8th 1877, for $1500, issued by the company defendant, on a factory and machinery belonging to the Tunkhannock Toy Company (Limited).</p> <p>On the trial, the plaintiff put the policy in evidence, and proved that the insured premises were totally destroyed by fire on December 16th 1877. Plaintiff’s counsel offered to prove, by the secretary of the company plaintiff, that, on December 19th 1877, he (the witness) deposited in the post-office at Tunkhannock, Pa., a preliminary notice of the fire, addressed to the company defendant at Harrisburg, Pa., the place of their principal office. Objected to; admitted; exception. A copy of this notice, proved by the same witness, was admitted under objection and exception. Formal proofs of loss were delivered to the insurance company on December 29th 1877, and being produced on'call, were read in evidence.</p> <p>On behalf of the defendant, it was shown that the Susquehanna Mutual Fire Insurance Company was incorporated April 28th 1878, under the Act of April 2d 1856, and its several supplements. That the by-laws, adopted Juno 6th 1876, provided as follows:</p> <p>“ Sect. 3. Thirteen persons shall constitute a full board of directors, all of whom shall be male members of the company, above the age of twenty-one years, who shall manage the affairs of the company; five of whom shall constitute a quorum, and be fully competent to transact business at any of its meetings, which shall be binding upon the members, as if a full board had been in session. They shall determine the rates and terms of insurance, and limit the amount to be insured. * * *</p> <p>“ Sect. 26. If any assessment, that may hereafter be levied on a premium note, be and remain unpaid on the day fixed by the secretary for the payment of the same, shall render absolutely void all policies on which the assessment may remain unpaid as above, and be a full bar against such defaulting member for all losses that may occur during the time the assessment may so remain unpaid, and the directors shall retain such premium note or notes, and collect thereon all such sum or sums as may be due or become due thereon during the term for wffiich it has originally been given.</p> <p>“Sect. 35. Persons sustaining loss or damage by fire, shall forthwith give notice of said loss to the secretary of the company, and within thirty days after said loss shall deliver to the secretary a particular account of such loss, signed and sworn to by them.” The policy in suit expressly provided that it was made and accepted with reference to the by-laws and the conditions endorsed, which were made part of the policy, which conditions provided, inter alia, as follows :</p> <p>“ 5. No insurance shall be considered as binding until the actual cash payment of the premium; and should the annual interest, or any assessment that may be levied on the premium note given for this insurance, be in arrears and unpaid for the space of thirty days after notice and demand, then, and in every such case, this policy shall cease.”</p> <p>The defendant gave in evidence the premium note signed by the assured, for $536.25, in the usual form, and then offered in evidence a certificate signed by the president and secretary, with the seal of the company attached, dated January 17th 1881, certifying that a certain “ assessment, No. 1 extra,” was made July 13th 1877, and the sum of $48.75 was levied on the premium note of the plaintiff, which amount remains unpaid. Objected to, on the ground, inter alia, that the certificate is dated subsequently to suit-brought. Objection sustained; exception. Defendant offered in evidence the following minutes of a special meeting of the board of directors, held July 13th 1877 :—</p> <p>“ Special meeting of the board, President Steever presiding. Directors present: Robinson, Garman, Bolender and Huntzinger. 1. The minutes of the last meeting were read and adopted. 2. The object of this meeting having been stated, the board considered the propriety of borrowing money, or so making an extra assessment upon the members’ notes to meet existing losses, whereupon it was on motion Resolved, that the secretary be empowered and he hereby is authorized and directed to levy an assessment, extra No. 1, upon all the members’ notes of the company, realizing an amount sufficient to cover all existing claims against the company, six per cent, pro rata, as per basis of assessment, as fixed by or under the company’s tariff of rates, rules and by-laws, and to attach the penalty of suspension of any and all policies upon which the assessment is not paid on or before the day fixed for the payment of the same. * * *</p> <p>“ Whereupon, the business for which the special meeting was called having been disposed of, the board adjourned.”</p> <p>Objected to on the ground, inter alia, that there were only five directors present at the meeting. Objection sustained. (Third assignment of error.)</p> <p>The defendant presented, inter alia, the following points :</p> <p>2. That if the jury believe a notice was deposited in the post-office, addressed to the company, it tvould not be a compliance with the terms of the policy. Ans. “ To this wrn answer that there is a presumption that a letter containing a notice of a loss by fire, directed to the home office of an insurance company, and duly mailed, is received by the company, and the jury may infer actual notice therefrom.”</p> <p>3. That the law does not presume a notice mailed to the secretary of the company, addressed to him at the place where he usually receives his letters and. transacts his business, was received by him. Ans. “A letter addressed to the secretary of an insurance company at the home office is the samo as if directed to the company ; if directed to him at any other place, it is not notice to the company.”</p> <p>Verdict and judgment for the plaintiff for §51633.74. The defendant took this writ of error, assigning for error (1, 4, 5) the answers to the above points and the admission in evidence of a copy of the preliminary notice of loss; (2), the rejection of the certificate of “assessment No. 1 extra,” and (3), the rejection of the minutes of the special meeting of the board of directors on July 13th 1877.</p>

<p>Error to the Court of Common Pleas of Schuyllcill county: Of July Term 1880. No. 65.</p> <p>This was a scire facias sur recognizance of bail for stay of execution, brought by E. B. Bomberger against Stephen Jones. Pleas, Nul tiel record, nil debet, payment with leave, &c.</p> <p>On the trial, before Pershing, P. J., the plaintiff gave in evidence, under objection, the record of a judgment obtained by him against Barbara Wadlinger, in an action of assumpsit upon three checks signed “B. Wadlinger per John Wadlinger, atty.” Judgment against Mrs. Wadlinger was entered July 3d 1876, by default for want of an affidavit of defence, and damages assessed at $441.71.</p> <p>On July 8th 1876, Stephen Jones was approved as bail for stay of execution, and executed the following recognizance, viz :</p> <p>“ I do hereby acknowledge to owe and to be indebted to the plaintiff above named in the sum of eight hundred and eighty-four dollars ($884), to be levied of my goods and chattels, lands and tenements, conditioned for the above judgment debt, with interest and costs, to obtain a stay of execution for the defendant according to law.”</p> <p>After the expiration of the stay of execution, to wit, on July 2d 1877, Barbara Wadlinger presented her petition and affidavit to the court, setting forth that at the time the cause of action accrued, and at the time suit was brought and judgment obtained, she was a married woman living with her husband John Wadlinger, and that the checks upon which suit vras brought were not given for necessaries furnished for the support of herself and family, nor for other consideration for which she as a married woman could be held liable. That she was not a feme sole trader, under the Act of May 4th 1855, but she had filed her petition to have the control of her own earnings under the Act of April 3d 1872. She therefore prayed that the judgment against her and all proceedings thereunder be stricken from the record. The court granted a rule to show cause, and after hearing made the rule absolute on August 20th 1877, and set aside the judgment.</p> <p>The defendant, in several points, requested the court to charge substantially as follows : that the judgment against Mrs. Wadlinger was void ab initio, and having been set aside as such by the court, was a nullity, that the recognizance of bail for stay of execution was unauthorized and void; that even if the recognizance were originally valid it was conditioned for the payment of the “judgment debt, interest and costs ” in a void judgment, and the setting aside of the judgment barred the plaintiff’s right of recovery in this action with like effect as if the original judgment had been paid ; that there being now no “judgment debt ” in existence the condition of the recognizance is satisfied and the verdict should be for the defendant.</p> <p>The court declined to affirm the defendant’s points (except that the judgment against Barbara Wadlinger was void and had been set aside by the court), and instructed the jury to find for the plaintiff.</p> <p>Verdict accordingly for the plaintiff for $540.35, and judgment thereon.</p> <p>The defendant took this w'rit of error, assigning for error the admission in evidence of the record of the judgment against Barbara Wadlinger, the refusal of his points and the instruction to find for the plaintiff.</p>

<p>1. A person who has become bonnd by recognisance for stay of execution, in a judgment against husband and wife, cannot, after the stay has fully expired, relievo himself from liability, by showing that the judgment has been improperly taken against the wife.</p> <p>2. A. sued ‘‘ B. and C., his wife, in right of said wife, doing business as a feme sole trader,” for goods furnished (J., and recovered judgment against both B. and C. J). entered bail for stay of execution in the usual form. At the expiration of the stay, the judgment being unpaid, A. issued a scire facias sur recognizance against I). I). filed an affidavit of defence, averring that the judgment of A. against B. and G. was absolutely void, and that proceedings were being taken by defendant therein to have it set aside. B. also filed a supplemental affidavit to the same effect, averring in addition the coverture of Ü. as the reason for the invalidity of the judgment. Held, that the averment that the judgment was absolutely void amounted merely to the expression of an opinion, and constituted therefore no defence. Held, farther, that even if the judgment were void as against the wife, it would remain in full force against her husband, and that, therefore, the plaintiff was entitled to judgment.</p> <p>3. The filing of a copy of a recognizance for stay of execution without a copy of the whole record of the judgment to which it has reference, is sufficient under the law, and rules of court of Schuylkill county, to entitle the plaintiff to judgment, under the Affidavit of Defence Law.</p>

<p>1. Where a building is insured under a valued policy of insurance, by the terms of which the insurers undertake to pay the amount of the policy within three months after notice of loss, and a total loss of the building occurs, preliminary notice whereby the company is informed of such loss is sufficient without giving the more formal proofs.</p> <p>2. Where in such case the contents of a barn were insured by the same policy as the barn itself, and the directors of the company insuring upon receiving preliminary notice of tho loss of such contents, proceeded to pass a resolution denying the liability of the company on other grounds than tho want of notice: Held, that tho question was properly submitted to the jury whether by this action the directors had not waived the necessity of presenting formal proofs of loss.</p> <p>3. The by-laws of an insurance company prohibited the insuring of any building “ situated within fifty yards of a railroad on which steam-power is employed, or of any forges, foundries, furnaces, rolling-mills, powder-mills, paper and oil-mills, cotton-mills, or in general, any mills, factories or machineries driven by steam-power,” and provided that if the owner of any insured building ‘‘should convert it to some other purpose, or should carry on therein any of the trades” therein before set forth, tho policy on his premises should be deemed of no foree or effect. Held, that the use of a portable steam-engine near a barn, for the purpose of threshing grain within the structure, was no such violation of the by-laws of the company as would vitiate a policy of insurance upon the barn aforesaid.</p> <p>4. In an action brought upon such policy for a loss occasioned by the burning of the barn in consequence of the explosion of the steam-engine, the court left it to the jury, to say whether the insured had materially increased the risk of fire by using the engine, instructing them that if they were of opinion that he had, they should find for the company defendant. Held, that this instruction was as favorable as the defendant could ask.</p>

<p>1. Where in an action against a railway company for injuries or death alleged to have been caused by the negligence of the defendant’s agents or servants, there is no evidence of such negligence, or at most a scintilla, it is the duty of the court to withdraw the case from the jury, and to give binding instructions in favor of the defendant.</p> <p>2. A., a brakeman on a railroad train, was engaged on a dark night in coupling and uncoupling oars, in order to couple a certain freight oar to an engine, it became his duty to remain on the steps of the engine tank, where he was already standing, while the engine backed to the car. He jumped off, however, from the step of the tank and crossed the track, an act which there was on necessity that he should perform; shortly afterwards the engine was backed, when A. was heard to cry out, and seen to spring back from the tank, the wheels of which almost immediately passed over his body and killed him. No one saw how or why A. fell. There was some evidence that the steps of the tank were defective in number and construction, but A., who had been employed about the engine in question for a long time, was not directly proved to have ever asked for their alteration, although the company was in the habit of making such changes on application of their employees-; it also appeared that the road-bed was rough by reason of recent repairs. In an action bv tbe widow and children of A. against the railroad company to recover damages for his death, alleged by them to have occurred while he was endeavoring to climb upon the tank, by reason of tbe failure of the company to provide proper steps and a smooth road-bed: Held, that there was no evidence of negligence to submit to a jury, and that tho court should have given binding instructions to find for the defendant.</p> <p>3. Per Paxson, J. — There is no duty on the part of a railway company to ballast its tracks for the safety of its employes, and except perhaps at a crossing, no such duty to the public.</p>

<p>1. County commissioners, when collecting claims due the county, have a right to employ counsel and to agree with them for reasonable compensation. But they have no power to bind the county by a contract to pay said counsel an unreasonably large contingent fee.</p> <p>2. Whether such an agreement is champertous or not, or whether the English statutes against champerty are in force in this state, not decided.</p> <p>3. A contract between attorney and client for a contingent fee, is not necessarily invalid. All that the law will do in such case is to scrutinize the transaction and see that it is fair, and that no unfair advantage has been taken either of the necessities or the ignorance of the client.</p>

<p>1. In an action for breach of promise of marriage, evidence of such conduct and behavior as are customary between persons under contract of marriage, is admissible to prove the existence of such contract.</p> <p>2. A contract to marry without specification of time, is a contract to marry within a reasonable time. In determining what is a reasonable time, the age of the parties, their pecuniary ability and in general the circumstances of the particular case are to be taken into account.</p> <p>3. A refusal to fulfil a promise of marriage may be inferred from a wilful and persistent neglect of the person with whom the contract has been entered into, or from any other conduct calculated publicly to indicate an abandonment of all intimate relations with her.</p> <p>4. Where the defendant’s conduct is such as has just been described, it is not incumbent upon the plaintiff to tender performance of her part of the contract before bringing suit.</p> <p>5. Acts on the part of plaintiff, in an action for breach of promise of marriage, which did not amount to a waiver of the right of action, narrated and commented upon.</p>

<p>1. A resulting trust in lands must arise, if at all, at the inception of title, either through fraud in the acquisition of that title, or through the payment of the purchase-money by which it is obtained.</p> <p>2. The mere fact that the owner of land uses trust funds in the improvement thereof, will not raise for the beneficiaries of such funds a resulting trust in the land, so as to entitle them to tho proceeds thereof to the exclusion of judgment creditors subsequent to the making of the improvements.</p> <p>3. Such beneficiaries are not entitled to any equitable lien against the real estate. Such a lien is unknown to Pennsylvania jurisprudence.</p>

<p>Error to the Court of Common Pleas of Chester county: Of January Term 1881. No. 252.</p> <p>Amicable action by the county of Chester against the Coatesville Gas Company. The following case stated was submitted for the judgment of the court:</p> <p>“ It is hereby agreed that an amicable action be entered with like effect as if the defendant had appeared to a summons, that the ease he deemed to be at issue as if a declaration bad been filed, averring that the property hereinafter described was a legal subject of taxation, and the defendant had filed a plea denying this.</p> <p>“ It is further agreed that the following facts' be submitted to the court as a case stated, with like effect as if found by the special verdict of a jury:</p> <p>“ The defendant is a corporation chartered by special Act of Assembly in 1868, ‘with the right and authority to supply the borough of Coatesville and its vicinity with gas light.’ By its charter, which is agreed to be a part of this case stated, it is declaied to be managed, subject and entitled under the general Act of Assembly of 1857, relating to gas companies, and its supplements.</p> <p>“ Among other property, the defendant owns a lot of land .in the borough of Coatesville, on which are erected a brick building, containing its furnaces, retorts and machinery for manufacturing gas, and its reservoir for retaining and distributing the gas through pipes along the streets through the borough of Coatesville.</p> <p>“ It is agreed that this lot and improvements are used only for the manufacturing and supplying of gas according to the defendant’s corporate powers, and that they are necessary and indispensable therefor.</p> <p>“ It is further agreed that the defendant is a stock company, whose revenues exceeds its expenses, declaring dividends to its stockholders; and that the lot aforesaid with the improvements thereon are a part of the capital stock of the corporation defendant, and are wholly included in the same, and as such pay the usual state tax to the Commonwealth. The stock of the corporation defendant is owned by a considerable number of individuals who are liable to and pay tax thereon to the state, and to the county plaintiif.</p> <p>“ It is also agreed that the private statute of April 8th 1859, Pamph. L. 426, in regard to the West Chester Gas Co., be considered as a part of this case stated.</p> <p>“The lot of ground with the improvements thereon have been assessed as the real estate of the defendant, and a county tax of $19.20 levied on the same, which the defendant refuses to pay.</p> <p>“ If the court shall be of the opinion that the property so assessed is legally subject to such tax, then judgment to be entered for the plaintiff for said sum of $19.20; otherwise, judgment to be entered for the defendant, with full costs in either case, and reserving the right to either party to have review of said judgment in the Supreme Court.”</p> <p>After argument the court entered judgment for the plaintiff on the case stated, Futhey, P. J., delivering the following opinion:</p> <p>“ Under the decision of the Supreme Court in the case of the West Chester Gas Co. v. The County of Chester, 6 Casey 232, the real estate in question would not be taxable.</p> <p>“ The question presents itself, however, whether it is not made taxable by the provisions of the 1st and 2d sections of the 9th article of the Constitution of 1874, and the Act of Assembly of the 14th of May 1.874, passed to carry out these provisions. The first section referred to provides that all taxes shall he uniform upon the same class of subjects within the territorial limits of the authority levying the same, and shall be levied and collected under general laws, and then declares what property the General Assembly may, by general laws, exempt from taxation ; and the 2d section declares that all laws exempting property from taxation other than that thus enumerated shall be void. The Act of Assembly enumerates what property shall be exempt, and then provides ‘ that all property, whether real or personal, other than that which is in actual use and occupation for the purposes aforesaid, and from which any income or reyenue is derived shall be subject to taxation, except when exempted by law for state purposes, and nothing herein contained shall exempt the same therefrom.’</p> <p>“ The property in question is not embraced in either of the classes specified as exempt, and without more appearing is, under the terms of the proviso, subject to taxation.</p> <p>“ It is argued, however, that the principle settled in the series of cases commencing with the Lehigh Coal & Navigation Co. v. Northampton County, 8 W. & S. 334, on the subject of taxation of such property, still governs, notwithstanding the provisions of the Constitution and Act of 1874, and is not affected thereby ; and, further, that inasmuch as the stock of the defendant is taxable, this real estate, which forms part of the stock, is not taxable.</p> <p>“ An examination of the line of authorities referred to, shows that the lands and property belonging to corporations held to be exempt from the payment of taxes, was not because they were purchased with its capital stock on which taxes were assessable. In every case there was something in the nature of the corporation, or the character of its business, which entered into the decision. In some of the cases certain property was declared exempt from, and other property subject to, taxation, although both were purchased with the capital stock. The principle seems to have been, that property, necessary for the enjoyment of the franchise, was declared not taxable, and that not necessary but simply convenient, taxable. Thus in the Lackawanna Iron & Coal Co. v. The County of Luzerne, 6 Wright 424, it was held that the public works of a corporation used as such, with their necessary appurtenances, were exempt from taxationbut that houses, lands and other property held for its private purposes, even although purchased with its capital stock, were .not exempt. See also Railroad v. Berks County, 6 Barr 70; Wayne County v. The Canal Co., 3 Harris 351; Carbon Iron Co. v. Carbon County, 3 Wright 251.</p> <p>■ “ The reason of the decisions was that the legislature did not intend to tax the works necessary to carry on the operations of the corporations — that they were not subject to, or embraced within, the operation of the tax laws; and not because they formed part of the capital stock, for that, as is apparent, would have rendered all the real estate, in which they invested their capital, exempt; and the decisions, as we have seen, draw a distinction between that necessary and that simply convenient, holding the latter subject to taxation and the former not. The property in question is not, therefore, under the decisions, exempt because it was purchased, and the improvements thereon made, with a portion of the stock of the company.</p> <p>“ The question then recurs, what is the effect of the Act of Assembly of 1874, passed to carry out the provisions of the Constitution ? We are of the opinion that thereby all property, not specifically enumerated as exempt, and from which any income or revenue is derived, is made taxable for county purposes and embraced within the operations of the tax laws. It required no additional legislation to make it so. If not taxable, therefore, the act removed the barrier, and placed it in the same category as other property, and taxable under the general laws in operation. Such appears to us to be the plain and obvious intent of the act.</p> <p>“ If the effect of this is to subject certain property to double taxation because of the different shapes in which it is presented to the assessor, it is no more than has been upheld by the decisions referred to, with regard to real estate forming part of the capital stock of corporations, and yet declared taxable because not necessary to the operations of the corporation, while the stock thus invested was liable to taxation also. If this result should seem to be inequitable, the legislative power must correct the evil.</p> <p>“We cannot say that this real estate, because purchased and improved with the stock of the company, should not be taxed, any more than we can say the stock itself should not bo taxed because invested in this real estate.</p> <p>“ The question raised in this case is discussed in one of its aspects by the Supreme Court in the case of Chadwick v. Magines, 8 W. N. C. 451, and we simply carry to its legitimate conclusion the principles of that decision.</p> <p>“Let judgment be entered for the plaintiff on the case stated for $19.20 with costs.”</p> <p>The defendant thereupon took this writ of error, assigning for error the entering judgment for the plaintiff on the case stated.</p>

No. 235. This was an appeal by Henry Bainbridge from the decree of the said court making distribution of the estate of William M. Bainbridge, deceased.

<p>1. A purchaser of land at sheriff’s sale upon receipt of his deed, is vested with the right of possession as well as the right of property, and he may lawfully enter immediately, provided he does so peaceably.</p> <p>2. The Act of June 16th 1836, which provides for a three months’ notice and a summary proceeding before two justices, does not abridge but is in addition to the right of the purchaser to take peaceable possession, or to bring ejectment.</p> <p>3. A purchaser at sheriff’s sale who gave three months’ notice under the Act of 1836, and afterwards, within the three months, entered against the consent of the former owner who remained in possession, but without violence, is not liable as a trespasser in an action brought by the former owner.</p> <p>4. Timber which had fallen at the date of the delivery of the sheriff’s deed, but had not been converted into saw-logs, rails, etc., passes to the purchaser as part of the realty.</p> <p>5. What was once pare of the realty remains so on being detached, until the owner of the freehold by his act or election gives it a different character.</p>

<p>Error to the Court of Common Pleas of Chester county: Of January Term 1880, No. 337.</p> <p>Assumpsit, by William H. Guie to the use of J. Alfred McOaughey, against Phineas A. Ash, Horace A. Beale, James Mullen, executor of James C. Roberts, deceased, and over one hundred others, “lately trading as Williamson Lodge, No. 309, A. Y. M.” The plaintiff filed the following statement:</p> <p>“ The plaintiff’s demand in the above case is founded on a claim for money loaned to the defendants, which was received by them, and used by them in the business in which they were then engaged, for which the defendants issued to the plaintiff a certificate of indebtedness, of which the following is a copy:</p> <p>“Ho. This is to certify. $100</p> <p>That Williamson Lodge Ho. 309, A. Y. M., of Downingtown, Chester county, Pennsylvania, acknowledges itself indebted to William H. Guie, in the sum of one hundred dollars, payable in two years from Hovember 11, 1870, with lawful interest for the same, payable annually.</p> <p>• “In testimony whereof the Worshipful Master and Wardens have hereunto set their hands, and caused the seal of said Lodge to be affixed, at Downingtown, this 11th day of Hovember, a. d. •1869.</p> <p> </p> <p>“Attest: R. D. Wells, Secretary.</p> <p>“ Which certificate was afterwards assigned by the plaintiff to the equitable plaintiff, by an assignment endorsed thereon.”</p> <p>The sheriff returned the writ served as to a large number of the defendants, and nihil habet as to others. Judgment was entered for want of an appearance against a number of the defendants after the return-day, and more than ten days after service, but before the actual return of the writ. After the writ had been returned judgment was also entered for want of an appearance against a number of other defendants. By order of plaintiff’s attorney filed, but without application to the court, these judgments by default were “ stricken off, as having been improvidently entered, and as being null and void and of no effect.” On the same day judgment was taken by default, in open court, against the same defendants. This judgment was, on motion of plaintiff, stricken off before trial.</p> <p>A number of the defendants filed affidavits of defence and rules to show cause why judgment should not be entered for want of sufficient affidavits were discharged by the court. The defendants then pleaded non assumpsit, non assumpsit infra sex annos, payment, payment with leave, &c. One of the defendants, Charles E. Elston, set up in his affidavit of defence (which was subsequently treated as a plea) a former recovery of judgment by the plaintiff’ in a suit against “ The Williamson Lodge No. 309, A. Y. M.,” for the same cause of action. The record of that suit did not show that Elston had been served or that he appeared therein; it showed that a fi. fa. had issued under which real estate of the' defendant had been levied upon and condemned, but that no further proceedings had been taken therein.</p> <p>The defendants suggested of record the death of ten of their number.</p> <p>When the case was called for trial, before Futiiky, P. J., the plaintiff asked that the jury be sworn to try the case against tho survivors of the defendants. The defendants objected, on the ground that the action being brought against partners, trading as Williamson Lodge, &c., the trial could not proceed without bringing in the representatives of the deceased defendants. Objection overruled; exception. The jury was thereupon sworn as to the survivors.</p> <p>The evidence showed the following facts: The Williamson Lodge of Ancient York Masons, No. 309, was an unincorporated association for charitable, benevolent and social purposes, tho officers of which were a Worshipful Master, Senior Warden, Junior Warden, Treasurer, Secretary and a Board of three Trustees. The trustees had charge of the property of the lodge, took the title to land, collected the income and extra funds of the lodge, &c. The lodge had a seal, which was used for authenticating certificates of membership, communications by the secretary with other lodges, and for similar purposes. About the year 1867 the lodge desired to erect a building for lodge purposes. The master, at a meeting of the lodge on September 13th 1867 (without any prior resolution authorizing him so to do, so far as appeared in evidence), appointed a committee of five, consisting of the three trustees and two other members, to select a lot, procure plans for a new building, &c. The temple or building was erected under the direction of this committee of five. They appointed their own treasurer, collected funds and issued certificates therefor, of which that in suit is one, signed by the worshipful master, the senior and junior wardens, attested by the secretary and authenticated by the seal of the lodge. The committee was not specially authorized to give said certificates, but it was the custom of the lodge to issue like instruments whenever it borrowed moneys. Prior to the use of the seal on these certificates, it had never been attached to any pecuniary-obligation. The committee reported io the lodge from time to time, and its action was approved by the lodge. The building was 65 feet by 50 feet and three stories in height, with a basement. The lodge occupied the rooms on the third floor; the other rooms were rented out for general- purposes, as opportunity offered.</p> <p>The plaintiff, Guie, was called to testify in his own behalf. Objected to, on the ground that some of the original defendants having died, the plaintiff is not a competent witness. Objection overruled. Exception.</p> <p>The plaintiff also called R. D. Wells, Joseph Doan and J. A. McOaughoy, defendants, as on cross-examination. Objected to, “ because plaintiff must make out his ease by affirmative proof, and not cross-examination; because said persons are interested parties, and some of the defendants have died since the suit was brought.” Objection overruled. Exception.</p> <p>The defendants presented the following- points:—</p> <p>1. The defendants’ association "was not such a partnership as is chargeable for the acts of any members of the association, and no person who was not present at the time that any of the actions bearing upon this matter were presented to the lodge can be held responsible in this suit.</p> <p>2. The defendants cannot be held liable as partners for the debt in suit, there being no proof that they held themselves out to the world as partners, and no evidence that they agreed among themselves to be pártners.</p> <p>3. The instrument in suit they allege is under the seal of the defendants. The proof shows that it is not the seal for transacting such business. It is a seal that was never used, and is not authorized by the lodge to be used, for such purpose. It does not bind the parties defendant, therefore there can be no recovery thereon against them.</p> <p>4. The former recovery pleaded by Charles E. Elston, one of the defendants, is a bar to recovery in this action.</p> <p>5. Upon the whole evidence the plaintiff is not entitled to recover.</p> <p>The court charged the jury as follows: “ The questions involved in this case are questions of law. The points will be reserved by the court for future consideration. We direct you to render a verdiet for the plaintiff for the amount of his claim, and the questions raised during the trial will be more fully considered hereafter.”</p> <p>Verdict accordingly for the plaintiff for $160. The court subsequently entered judgment for the plaintiff on the reserved points. The defendant took this writ of error, assigning for error, inter alia, the striking off of the judgments entered by default, on the order of plaintiff’s counsel, without an order of court, or the application or consent of any of the defendants ; the swearing of the jury against the survivors of joint contractors, without substituting the representatives of deceased defendants whose deaths had been suggested; the admission of plaintiff, and of some of the defendants, to testify ; and the entry of judgment on the reserved points.</p>

295. Chester B. Eulmer was indicted in the said Court of Quarter Sessions to September sessions 1879, for larceny and for receiving stolen goods with knowledge that they were stolon.

<p>Error to the Court of Common Pleas, of Lackawanna county: Of January Term 1881, No. 163.</p> <p>Feigned issue, wherein Wilson and others were plaintiffs and Catherine Silkman was defendant, to determino the validity of a judgment for $11,755.12, confessed by Daniel Silkman to William Shoemaker, in trust- for Catherine Silkman, his wife.</p> <p>Upon the trial, before Hand, A. L. J., the plaintiffs proved the following facts-:</p> <p>On June 4th 1878, Daniel Silkman confessed a judgment for $1000 to Almira and Sarah A. Silkman, which was the first lien upon his property. This judgment was originally entered in Luzerne county; it was transferred to Lackawanna county, and under an execution issued in the latter county, the fund in dispute was produced by a sale of his real estate. On June 10th 1878, Daniel Silkman executed a judgment note for $11,548.50 to William Shoemaker, in trust for Catherine Silkman, his wife, on which note judgment wras entered in Lackawanna county, November 23st 1878, in favor of Shoemaker, in trust for Catharine Silkman, for $11,755.12. Subsequently, in 1878 and 1879, Wilson and others obtained judgments against Daniel Silkman for debts which existed on and prior to June 10th 1878. The evidence showed that in June 1878, the firm of Silkman, Winton & Co., of which Daniel Silkman was a member, was indebted to the verge of insolvency, though their credit was at that time fair, and they suspended in the following September. On December 12th 1879, execution was issued on the said judgment of $1000, m favor of Almira and Sarah A. Silkman, under which certain real estate of Daniel Silkman was sold at sheriff’s sale, February 10th 1880, and purchased by Mrs. Catherine Silkman, wife of Daniel Silkman, for $10,150. Mrs. Catherine Silkman received, the same day, an assignment of the Almira and Sarah A. Silkman judgment, under which the execution issued, and at her request the sheriff’ made a special return, that he had taken “the receipt of Catherine Silkman for $9990, being the amount of bids on the within described real estate, less $160 costs, it appearing that the said Catherine is a lien-creditor of the said defendant, and as such, she is entitled to receive said amount as the proceeds of such sale, as by reference to certified list of liens hereunto 'attached, will more fully appear.”</p> <p>Wilson and others filed exceptions to this return; the matter was referred to an auditor, and, pending the reference, the court, on the petition of Wilson et ah, awarded this issue, which was framed in two counts, the first involving the question whether Silkman was at the time of giving the confession of judgment, justly indebted to his wife in the sum for which it was confessed, the other, whether the judgment was given with intent to encumber his real estate and hinder, delay and defraud his creditors.</p> <p>The defendant offered no evidence.</p> <p>The plaintiff presented the following points :</p> <p>1. That when a judgment is taken in the name of a trustee for a wife against her husband, it is necessary' for the wife, in a contest with creditors of the husband (as in this case), to establish that the judgment was taken bona fide, to secure a debt to the wife from the husband from moneys of the separate estate of the wife. In the absence of such proof the judgment must be regarded as fraudulent and void as against such creditors. Answered in the negative.</p> <p>2. That under all the evidence in this case the verdict of the jury must be in favor of the plaintiff.</p> <p>Ans. “Refused.”</p> <p>The defendant presented, inter alia, the following points:</p> <p>1. That there is no evidence to warrant the jury in finding that tne said Daniel Silkman was not, at the time of the making and delivery of the judgment note in question, justly indebted to said Catherine Silkman in the sum mentioned therein, and was so indebted at the time his real estate was sold.</p> <p>Ans. “Affirmed.”</p> <p>3. That there is no evidence to sustain the allegation upon which the issue in this case was granted.</p> <p>Ans. “Affirmed.”</p> <p>The court charged the jury, inter alia, as follows:</p> <p>“ We have been requested on the part of the plaintiffs in this case to give you binding instructions that your verdict must be in favor of plaintiffs. * * * We decline to charge you as they request us to charge for the following reasons : Because the issue as framed in this case puts the burden of proof upon the plaintiffs to show fraud either directly, or such a chain of circumstances as will raise a question of fraud for you, and upon the examination of the testimony we are satisfied that there is nothing in the testimony showing any fraudulent transactions. * * * But notwithstanding the relation of these parties, after a full examination of the evidence, we find nothing either by positive or negative testimony from which fraud can be inferred so far as thfe case is concerned. There is no evidence here at all with reference to the poverty of this defendant; there is no evidence here at all of any attempt at collusion; there is no evidence, as we can discover in this whole case of any transaction which of itself the court can put its hands on and say it is a badge of fraud, or is sufficient to leave it as a question of fact to you. We have, therefore, taken this case away from the jury, and given binding instructions that, the verdict must be in favor of the defendant. * * * Therefore we say to you when the court lay down the law to the jury, they are bound to take it from the court and follow their instructions. Your verdict in this case will be for the defendant.”</p> <p>Verdict accordingly for the defendant, and judgment thereon.</p> <p>The plaintiff took this w'rit of error, assigning for error the answers to points and charge of the court as above given.</p>

No. 95. Feigned issue, wherein The Workingmens’ Building and Loan Association of Hyde Park, was plaintiff and Tilomas T. Watkins was defendant, to determine the amount due upon a judgment entered in favor of the plaintiff upon a judgment-note given by the defendant for $800, waiving inquisition, &c., which judgment was opened by the court and the defendant let into a defence.

219. This was an appeal by Sarah Milligan, executrix of the estate of Euphemia Dawes, deceased, from the final decree of the said Orphans’ Court, dismissing her exceptions to the report of the auditor of her account as executrix, and confirming the said report.

<p>1. Suit may be instituted against a foreign corporation by the service of process upon an agent of said corporation within this Commonwealth in the mode prescribed by the Act of Maxell 21st 1849, sect. 3, Pamph. L. 216, notwithstanding the fact that said corporation has failed to establish an office in this Commonwealth and to report tho name of its agent, in compliance with the provisions of art. XVI., sect. 5, of tho Constitution and of the Act of April 22d 1874, Pamph. L. 108, passed in pursuance thereof.</p> <p>2. Although the transaction of business by said corporation without compliance with said last-named provisions is undoubtedly illegal, the corporation can not take advantage of this illegality to escape service of process.</p> <p>3. Liblong v. Kansas Fire Insurance Company, 1 Norris 413, distinguished.</p> <p>4. A return of service under the said Act of March 21st 1849, sect. 3, PamphL. 216, which omits to set forth the character of the agent served, is prima facie evidence of a good service. But this presumption may he rebutted by proof to the contrary.</p> <p>5. Where the foreign corporation sued was a slate company owning real estate in this Commonwealth, which real estate was leased to others for the quarrying of slate on payment of a royalty : Held, that an agent of that company not appointed by regular resolution of its board of directors hut requested by the president to attend to its affairs, who did business near the quarry, who looked after shipments of slate made to the company by agreement with the lessees until within a year of the service of process, who received the royalty due from thorn, who leased houses on the premises and gave his receipt as agent, who sent statements to tho company from time to time, who accounted to it for the money he received and generally attended to its interests both before and after the service of process, and who appeared moreover to he the only agent of the company within the Commonwealth, was such an agent as was contemplated by tho Act of March 21st 1849, sect. 3, Pamph. L. 216, and that suit could be instituted against said company by the service of process on said agent.</p>

321. Assumpsit. Case stated, showing the following facts: By an ordinance passed by the councils of the city of Scranton on November 17th 1877, the president of the select council was authorized to execute a contract for supplying certain wards of the said city with gas-lights for the term of two years. This ordinance was presented to the mayor for approval on November 20th 1877.

<p>1. An accommodation endorser of a promissory note, who receives no benefit therefrom either to himself or his estate, may defend against a bona fide holder on the ground that he was non compos mentis at the time of the endorsement ; and this though the holder had at the time of the transfer to him no knowledge of the endorser’s lunacy.</p> <p>2. iraud is not to be inferred from the mere fact of a person, weak both in body and mind, indorsing for accommodation.</p> <p>3. The fact that a person drawn as a juror is the second cousin of the husband of a daughter and legatee of the defendant’s decedent constitutes good cause for principal challenge by the plaintiff'. But if the plaintiff challenge said juror to the favor and by agreement of the parties triors be dispensed with and the question be submitted to the court, its decision rests upon the court’s conscience and discretion and is not reviewable.</p> <p>4. ' Kind of evidence the admission or rejection of which is most properly left to the discretion of the court below, commented on.</p>

<p>Error to the Court of Common Pleas of Northampton county: Of January Term 1881, Nos. 65, 287.</p> <p>Upon the petition of the corporation of the borough of Easton, and Joseph M. Hackett, president of town council, relator, plaintiff, against the Lehigh Water Company, the court awarded a writ of alternative mandamus, requiring the defendant company to erect a certain number of fire-plugs at specified places in said borough of Easton, for the purpose of furnishing a sufficient quantity of water for the extinguishment of fires at the points named. The respondents filed an answer, and, upon issue joined and application for a writ of peremptory mandamus, it was agreed by the parties that an auditor should be appointed to report the law and facts to the court. The auditor (Hon. William Mutcliler), made a report, finding certain facts, which are fully set forth in the opinion of this court, and recommended that the mandamus issue to compel the Lehigh Water Company to erect the additional fire-plugs at the said points and places in said borough west of Eighth street.</p> <p>Exceptions filed by both parties to the auditor’s report, were dismissed by the court, the report confirmed, and a decree entered that a writ of mandamus issue as recommended by the auditor. Both parties sued out writs of error, assigning for error respectively, the dismissal of their exceptions. The eighth assignment of the borough of Easton was as follows: “ The court erred in ordering and decreeing that a writ of mandamus issue to compel the Lehigh Water Company to erect the additional fire-plugs at points and places in that portion only of the borough of Easton lying west of Eighth street, designated in the relator’s petition. The order and the judgment of the court should have been that the mandamus issue to compel the Lehigh Water Company to erect the additional fire-plugs prayed for, not only at the said points and places in the said borough of Éaston. west of Eighth street, but also at the points and places designated in the said relator’s petition lying east of said Eighth street.”</p> <p>The second assignment of the Lehigh Water Company was as follows : “ The court erred in awarding a writ of peremptory mandamus to compel the Lehigh Water Company to erect the additional fire-plugs at points and places in that portion of the borough west of Eighth street, designated in the relator’s petition.”</p> <p>Both writs of error were argued together.</p>