Volume 98 — Pennsylvania State Reports

<p>1. A clause in a deed conveying in fee a portion of a tract of land belonging to the grantor, to the effect that “the said A. B., grantor, doth reserve a .road ten feet wide along the line of O. Di, to be shut at each end by a bar or gate,” will be construed to constitute a reservation to the grantor of a right of way, and not an exception from the conveyance of a ten-foot-wide strip of land;</p> <p>2. A. B. having conveyed a portion of a tract of land belonging to him by a deed containing the above reservation, one E., by various mesne conveyances, became seised thereof. A. B. afterwards conveyed to his son P. another portion of said tract, by deed, which made no mention, however, of the reservation. Afterwards A. B. died. E. subsequently fenced in the land over which, the right of way had been reserved, butP., entering, broke down the fences and passed over the same. In an action of trespass brought by E. against P. .• Held, that the plaintiff was entitled to recover.'</p>

<p>1. The plaintiff cannot testify in a suit against an administrator as to facts which occurred during the life-time of defendant’s decedent.</p> <p>2. A mechanic’s lien was filed against two persons as owners. Subsequently one of them died and his administrator was substituted. On the triiil the jury was sworn as to both defendants. The plaintiff ottered himself as a witness with reference to the terms of the original contract, contending that lie was not disabled from testifying by reason of the fact that the action was against an administrator, because said administrator was not a necessary party to the suit, his decedent having been merely the agent of the co-defendants in contracting for the building. This fact he also proposed to testify to. Held, that tbe name of the administrator not having been stricken off tbe record, and the jury having been sworn to try the case as against him, the plaintiff was incompetent to testify as to either of the points above stated. '</p> <p>3. Where a contract to erect a building has been entered into with the owner through an agent, it is not necessary upon subsequently filing a mechanic’s lien against said building, to specify tbe kind of work done or materials furnished, as in the case of a contract entered into with a contractor.</p>

May 3d 1881. Before Sharswood, O. J., Merour, Gordon, Paxson, Teunkey, Sterrett and Green, JJ. • . Appeal from a decree of the Orphans’ Court of Lancaster county, distributing the proceeds of the real estate of John McGrann, deceased. Of May Term 1881, No. 14. The material facts were as follows : — John McGrann died intestate, unmarried and without issue, leaving as one of his heirs-at-law a niece, Eleanor J. McGettrick.

<p>May 4th, 1881. Before Siiarswood, C. X, Mercur, Gordon, Paxson, Trunkey, Stebrett and Green, JJ.</p> <p>Error to the Court of Common Pleas of York county. Of May Term 1881, No. 122.</p> <p>Assumpsit, by Conrad Moul against Andrew Hunter, to recover a balance due on a book account for goods sold. The action was commenced by foreign attachment, and service having been made on the garnishees, the defendant appeared and pleaded non-assumpsit, payment, and payment with leave, &.e. The cause was referred to a referee under the provisions of the Act of April 9th 1868, Pamph. L. 7.S0, who found in favor of the plaintiff. His findings of fact and conclusions of law are fulty set forth in the opinion of this Coui't.</p> <p>Exceptions filed by defendant to the referee’s report were overruled by the Court, and the report confirmed, whereupon the defendant took this writ, assigning for error this action of the Court.</p>

<p>A. filed a petition for a mandamus to require B. to deliver up certain moneys and books to the relator, who claimed to be treasurer and receiver of taxes of L. city. The petition set forth that the respondent had been duly elected and qualified for that office, and liad assumed possession of the money and books in controversy in right thereof, but that subsequently he had been suspended by joint resolution of City Councils, anti that the relator had been duly appointed and qualified in his place. The petition failed to set out the cause of the suspension or any other facts in relation thereto. The respondent, in his answer, averred that he had always conducted himself honestly and faithfully in his office, and that he had given, no just cause for suspension, and further denied the validity of the joint resolution of City Councils suspending him, and of the appointment of the relator to his office. To this answer the relator demurred : Reid, that since it appeared from the pleadings that there was no just cause for defendant’s suspension, he was entitled to judgment.</p>

May 4th 1881. Before Sharswood, O. J., Mercub, Gordon, Paxson, Trunket, Sterrett and Green, JJ. Appeal from the Orphans’ Court of Lcmoaster coimty. Of May Term 1881, No. 75. Appeal by Elizabeth Brubaker, administratrix of the estate of Jacob Shaeffer, deceased, from a decree of the said Court, directing the Register of Wills to issue separate letters of administration upon said estate to the appellant’s sister, Mrs. Lavina Wolf.

<p>May 4th 1881. Before Sharswood, O. J., Mercub, Gordon, Paxson, Trunket, Sterrett and Green, JJ.</p> <p>Appeal from the Orphans’ Court of York county. Of May Term 1881, No. 148.</p> <p>This was an appeal by Adam Lebr, a legatee under the will of Philip Lehr, deceased, from a decree of said Court, dismissing his exceptions to, and eoniirining the amended report of an auditor appointed to distribute the balance on the account of the executors of said Philip Lehr, deceased, of whom the said Adam Lehr is one.</p> <p>Philip Lehr, by bis will, dated May 15th 1860, proved August 7th 1865, disposed of bis estate and appointed Adam Lelir and Daniel Ileckert his executors. They filed their account July 27th 1866, which was confirmed by the Orphans’ Court, and an auditor was appointed to report distribution of the balance. The auditor filed his report November 22d 1866, which, not being excepted to, was confirmed seo. reg. The executors afterwards, oil December 29th 1866, paid to the legatees .of the testator the amounts so awarded to them, and took releases therefor.</p> <p>On May 30th 1867, John Lehr, one of the legatees, filed his petition for a review, averring that the auditor had erred in the construction of the will of Philip Lehr, whereby a less sum had been awarded to him than he was entitled to; ‘‘that he was dissuaded by his brother Adam, one of said executors, from inquiring into the matter while the said distribution was in process of being made, he being then resident about thirty miles above Harrisburg, and was assured by him that all would be right, and that in consequence the decree of confirmation went against him by defaultand he prayed the Court to open the decree of confirmation of the auditor’s report, and re-commit it to the auditor for a review, &c.</p> <p>The answers of the executors denied that Adam Lehr had dissuaded the petitioner from examining into the matter, and set forth that they had paid over the balance according to die distribution reported by the auditor and confirmed by the Court.</p> <p>After argument, the Court, on July 7th 1868, in an opinion by Fisher, P. J.,lield as follows : “ As regards the construction given by the auditor to the devise to John Lehr, in the will of Philip Lelir, we think he was in error.</p> <p>“ The difficulty about this matter is not in the construction of the will, but arises from the fact that the executors have paid out the funds in their hands, according to the decree of distribution reported by the auditor, and confirmed by the Court. Should this Court not be able for this reason to correct the report of the auditor, in our opinion great injustice will be done to petitioner. If any way can be devised that will do justice between the parties and not prejudice the executors, it ought to be adopted. We have, therefore, come to the conclusion tore-commit the report of the auditor, with directions to report a distribution according to the views of the Court expressed in this opinion.</p> <p>“ To the end that all persons interested may be made parties to the proceedings, we will also direct that the auditor issue his citation, commanding all parties interested in this matter to appear before liim at a certain, time and place to be fixed by him, and to become parties to this proceeding if they think proper, and when and whore he will re-hear this distribution. After the report is made, we will allow any persons interested to file exceptions to the same. If confirmed, we will award restitution by the executors of the part improperly awarded to them, and will direct that restitution be made by each of the other legatees of the amounts improperly awarded to them, and if not refunded will issue attachment or executions to enforce the decree. By this method we think justice may be done to John Lehr, the petitioner, without doing injury to the executors.”</p> <p>The auditor, after a re-liearing, filed an amended report December 9th 1868, in accordance with the above opinion, to which Adam Lehr filed, inter alia, the following exception :</p> <p>1. That the Court had no jurisdiction to make the order and decree dated July 7th 1868, and to order the said auditor to rehear his former report of distribution, and report a distribution in conformity to the opinion and instructions contained in said decree.</p> <p>The Court, on March 23d 1881, entered a decree dismissing the exceptions and confirming the report. No opinion was filed. Adam Lehr took this appeal, assigning for error the decree.</p>

<p>May 5th 1881. Before Sharswood, O. J., Mercur, Gordon, Paxson, Tbunicey, Stebrett and Green, JJ.</p> <p>Appeal from the Orphans’ Court of Lcmcaster Gowrvby: Of May term, 1881, No. 98.</p> <p>This was au appeal by Louis B. Harberger, from a decree of the said court directing the register of wills only to issue letters testamentary to said Louis B. Harberger, under tlie will of liis mother, Elizabeth B. S. Harberger, upon bis filing an approved bond in the sum of $25,000.</p> <p>Mrs. Elizabeth B. tí. Harberger died May 10th 1879, having by her will, dated May 12th 1873, proved July 8th 1880, appointed her sons, Alexander J. Harberger and Louis B. ilarberger to be her executors, with power to sell her real estate without liability on the part of purchasers to see to the application of the purchase-money. Objection was made before the register to the issuing of letters testamentary to Louis B. Harberger, but he decided to grant letters jointly to the two executors named in the will. Prom this decision H. W. Harberger and Alexander J. Harberger took an appeal to the Orphans’ Court, on August 2Uth 1880, and oil the same day the court made an interlocutory order, directing the register to withhold the issuing of letters testamentary to Louis B. Harberger until the determination of the appeal; and it appearing that by some misunderstanding letters had been granted to him, the court granted a rule to show cause why the same should not be revoked, orbe be ordered to give bond with security for the faithful performance of his duty'as executor. On the same day the r-gister issued letters testamentai-y to the other executor, Alex mder J. Ilarherger, from which action Louis B. liarberger entered an appeal to the Orphans’ Court.</p> <p>The testimony showed that Mrs. Harberger, a widow, resided In Philadelphia at the time of making her will, where Louis B. Harberger also resided. She afterwards removed to Lancaster, where her son Alexander J. resided, Louis remaining a resident of Philadelphia. Much evidence was given with the view of showing that Louis B. Harberger was of weak mind, untrustworthy'-, insolvent, on had terms with the members of his family, and generally unlit to act as executor.</p> <p>After argument the court (Livingston, P. J.) filed an opinion, saying, inter alia: “We have found nothing in the testimony which requires us to reverse the decision of the register, so far as the residence, or capacity of mind, or habits of the applicant is concerned. But, inasmuch as he is a non-resident, the estate apparently large, and the will does not require the purchaser to see to the proper application of the pnrehase-mouey, but expressly relieves him from so doing, we think, as he is a man of no estate, he should give security for the performance of his duty as executor, and the proper accounting for and payment over ou distribution of all moneys which may come to his hands and possession as executor.....</p> <p>“ L. B. Harberger ¡presents here a prima faeie right to letters ; he has been appointed as such by the testatrix ; lie was as near to her as the heirs or legatees named in her will, or as the other executor, her son. Her choice should be respected and held valid by the court unless there is satisfactory proof of incompetency or unfitness on Ills part, mentally or physically. This has not been presented.</p> <p>“ Since the passage of the Act of May 1st 1861, Purd. Dig. 454, pi. 242, the removal of an executor, or other personal representative of a decedent, is a question resting in the sound discretion of the court, and it was held in Kellberg’s Appeal, 5 Nor. 129, that where it is clear that the relations between an executor and the heirs are not harmonious, and it is manifest that the interest of the executor is adverse to those of the heirs, nothing but some controlling necessity will justify his retention as executor.</p> <p>“ It is the duty of these two executors to make an honest effort, laying aside any animosity they may harbor against each other, to execute the trust committed to them — the dying request of their mother; if either, upon letters being granted to them, should refuse so to do, it will then be time enough for the court to interfere and dismiss either of them who may refuse to properly execute the duties devolving upon them as executors.”</p> <p>The court entered the following decree : “ We, therefore, order and direct the Register of Wills of Lancaster county, from whose decision this appeal was taken, to issue letters testamentary to Louis B. Ilarberger upon the estate and under the will of E. B. Stowers Ilarberger, deceased, upon the presentation of a bond by said L. B. Ilarberger, approved by this court, in the sum of twenty-iive thousand dollars. The appeal of L. B. Harberger is dismissed.”</p> <p>Louis .B. Ilarberger thereupon took this appeal, assigning for error the said decree.</p>

<p>1. Any person interested to contest the validity of a will of realty is a person interested to contest the probate thereof, within the meaning of the Act of April 22d 1850, P. L. 533. .</p> <p>2. Such person has, under the provisions of said act, five years from the time of probate to contest the validity thereof, and may, therefore, up to the expiration of that, time, appeal from the decision of the register admitting the will to probate.</p> <p>3. Wilson v. Gaston, 11 Norris 207, followed.</p>

<p>May 5th 1881. Before Siiarswood, C. J., Mercue, Gordon, Paxson, Tbunkey, Sterrett and Green, JJ.</p> <p>Error to the Court of Common Pleas of Lancaster county: Of May Term 1881, No. UL</p> <p>Trespass viet cwm.is, quare clausum fregit, by Jacob Markley against M. J. Burkholder, for entering on the plaintiff’s land and tearing down a fence. 'Blea not guilty, and liberum tenem,entum.</p> <p>On the trial, before Livingston, P. J., the following fads appeared : The plaintiff and the defendant' were owners of adjoining tracts of land, the location of the division line between which was the subject of this dispute. Both claimed title by mesne conveyances from Samuel Moyer. The descriptions in all the deeds, under which both parties claimed, contained, inter alia, the following courses and distances: u Thence by other hmd of said Samuel Moyer, north, seventy-five degrees west, three perches and four-tenths, to a post, thence by the same north nineteen degrees east, twenty-three perehes cmd fioe-tenihs, to a stone in said road,” etc. The part in italics is the division line in dispute. This was a straight line, upon or near to which a feuce was erected prior to the time of the conveyances from Moyer, and which had remained standing until a portion of it was torn down by the defendant. It was not, however, alleged in the nar-r. to be a line fence.</p> <p>Upon a recent survey of the Burkholder tract, it was found that the line as described in the deeds runs through the corner of a shed annexed to a hotel building on the land of Burk-holder, both of which buildings had been erected by Moyer.</p> <p>The defendant offered to prove by Isaac Gingrich, ids predecessor in title and the immediate grantee from Moyer of the defendant’s tracf, that by the agreement of purchase between himself and Moyer the hotel and shed were wholly upon the tract purchased by him, and the boundary 1-ine in question was fixed upon 1 lie ground by Moyer and himself from twelve to eighteen inches outside the said shed, so that the water falling from the roof of the shed would fall upon Gingrich’s (now dei'endant’s) land; that the end of the said line, as then run by the surveyor on the ground, was marked by a -stake and not a stone; and that the line, as subsequently described in the deeds, differs from that line as so fixed and marked on the ground. Objected to; objection sustained and offer rejected ; exception.</p> <p>The defendant also offered in evidence the deposition of Samuel Moyer, and the court, upon objection, ruled out the portions of it which corroborated the facts stated in the above offer.</p> <p>Yerdict, guilty; damages assessed at $25, and judgment thereon. The defendant took this writ of error, assigning for error the rejection of said offer, and of the portions of the deposition.'</p>

<p>May 6th 1881. Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJT.</p> <p>Error to tiie Court of Common Pleas of Lancaster county: Of Muy Term 1881., No. 80.</p> <p>Debt, by F. Huntzinger to use, etc., against tbe Commonwealth Mutual Fire Insurance Company, upon a policy of insurance for $1,200 issued by the defendant, insuring from üre a stock of goods in a frame’store in Tremont, Schuylkill county. The goods were totally destroyed by tíre during the life of the policy.</p> <p>„ On the trial, before Patterson, J., the plaintiff put in evidence the application and policy. The former contained the following: “ This application shall form part of this policy</p> <p>of insurance, cmd all the statements herein made shcill constitute warranties on the part of the insured. . . . Q. What amount is there insured on the property, in what company and in whose name? A us. $1500, Pennsylvania Mutual, of Columbia, Pa. — Applicant’s.”</p> <p>The policy contained the following: “Reference being had to the application of the .insured for a particular description and which shall form part of this policy. . . . And provided further, that in case the insured shall have already any other insurance against loss by fire on the property hereby insured, not notified to this company in writing, then this insurance will be void and of no effect.”</p> <p>In point of fact the answer to the above question in the application was untrue, the prior insurance in the Pennsylvania Mutual Company being $2,000, instead of $1,500, as stated. The plaintiff proved, under objection, by the agent of the (i'ompany defendant, who effected tiie insurance, that in preparing the application the plaintiff, in reply to the said question answered, Either $1,500 or $2,000, in the Pennyslvania Mutual, he wasn’t sure which, but was under the impression that it was $1,500.” The agent said, ‘‘ We ought to know for sure,” but put it down $1,500. The testimony on this subject is' more fully recited in the opinion of this court.</p> <p>The defendant presented a point, which, with the answer thereto, was as follows: — ■</p> <p>“ The plaintiff’s answer, ‘-$1,500, Pennsylvania Mutual, of Columbia, Pa.,’ ” to the question, ‘ What amount is t-hei’e insured on the property, in what company, and in whose name?’ in the application signed by the plaintiff, making all the statements in said application warranties on the part of the insured, when in' f ict the insurance in said Pennsylvania Mutual, of Columbia, Pa., was $2,000, prevents the plaintiff from recovering on the policy sued on, and the verdict must be for the defendant.”</p> <p>Answer. “ The' court answers this point by sayiug, that the law of the point is determined .by the finding of the fact or, facts by the jury. Mr. liuntzinger’s testimony, as stated in this point, does not exactly accord with the testimony as given —the plaintiff having made the application to and with the defendant’s agent, acting within the scope of his authority, and therefore binding his principal — the evidence as to such agent’s authority, showing no limitation of authority, and with the knowledge by the plaintiff, that the same agent was also the agent of the Pennsylvania Mutual, of Lancaster county, who hud insured the' applicant to the sum of $2,000, and not-$1,500. If the answer of plaintiff to the question put by the said agent was made in good faith, and the agent replied, ‘ We will put it down $1,500, because I think it was thatif there was no collusion between plaintiff and the agent to defraud the Commonwealth Mutual Eire Insurance Company in the procurement of the policy; and if, as the uncontradicted testimony shows, this company — defendant—as late as Nov. 4ih 18SÓ, have, by its board of directors, actually assessed the premium note of Huntzinger, given on this policy, here sued upon ; and as the condition of this policy, or one of them, was that the applicant must reveal any and all prior insurance; if you believe the evidence of Jas. W. Ziebach, the agent, and believe that he and Huntzinger at the time of the application, had honestly, and bond fide, entirely forgotten the fact, as to the exact amount insured prior in the Pennsylvania Mutual Company, then the mistake was mutual — both dealt- under a mutual mistake in respect to that matter of fact — it will not vitiate in itself, this policy, in the absence of all fraud ; and the defendant has nó defense in this suit, but the proof of fraud, and we decline to affirm this point of defendant. The testimony of the whole case must go to the jury.”</p> <p>Verdict for the plaintiff for $1,350, and judgment thereon. The defendant took this writ of error, assigning for error,inter alia, the answer to the point above given.</p>

<p>1. The annual tax imposed by the Act of January 7th 1879, § 10 (P. L. 118), upon certain classes of corporations therein named, is not laid upon the money and receipts of such corporations, but upon their franchises, the amount of the net earnings or income being resorted tc simply as a just measure of the tax that should be paid for the enjoyment of those franchises.</p> <p>2. All corporations coming within the provisions of the above act are therefore bound to pay annually to the Commonwealth the fixed per centum rate upon all their income, even though part thereof may be derived from loans of the United States, or from loans of this Commonwealth, which by the acts authorizing their issue are expressly made payable free of State taxes.</p> <p>I 3. Such corporations are not entitled to deduct from the amount of income upon which taxation is payable by them, the difference between the amount expended several years before in the purchase of a security, and the par value at which such security has within the current year been redeemed. This cannot properly be regarded as a loss;'even it be so, the capital only is decreased thereby, aud this does not necessarily diminish the annual net earnings which have alone been adopted as the measure of the tax imposed.</p>

<p>May 16th 1881. Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, J J.</p> <p>Error to the Court of Common Pleas of Dcwjylvm county : Of May Term 1881, No. 151.</p> <p>This was, in the court below, an appeal from the settlement of the Auditor General and State Treasurer against the above named Building Association for tax on capital stock, under the provisions of the Act of June 7th 1879 (P. L. 112), for the year ending the first Monday of November 1879.</p> <p>The following case stated was agreed on, viz.:</p> <p>The company is a building association incorporated in 1878, under the Act of 29th April 1874, with a nominal capital of $1,000,000, divided into shares of $200 each. At the time of its incorporation, no' capital had been paid in. 1615 shares have been subscribed, payable one dollar per month ou each share. Up to the first Monday of November 1879, $50,113.45 had been paid in. This money is loaned out to' members on mortgage security. ■ _.</p> <p>By the Act of Assembly approved April 10th 1879, building associations are exempted from the tax claimed under the settlement made in this case.. The Act was- formally accepted by appellants, and thereupon new letters' patent were issued thereunder.</p> <p>The Commonwealth demands the tax in cpiestion under the provisions of the general Revenue Act of June 7th 1879.</p> <p>The following questions are submitted to the court:</p> <p>First. — Are the provisions of the Act of April 10th .1879, exempting the appellants from taxation, repealed by the general Revenue Act of June 7th 1879?</p> <p>Second. — If repealed, does the Act of-June 7th 1879 impose a tax upon the capital stock of building associations ?</p> <p>If the Court find both these propositions against the appellants, the judgment is to be entered-for the Commonwealth for $73.03; otherwise judgment to be entered for the Bourguignon Building Association.</p> <p>After argument the court below filed the following opinion, April 13 th 1881:</p> <p>“ The facts are agreed upon and appear in the case stated. Upon these, two questions are submitted to the court:</p> <p>‘‘ First. — Are the provisions of the Act of April 10th 1879,' exempting the appellants from taxation, repealed by the general Revenue Act of June 7th 1879 ?</p> <p>“ This association brought itself within the protection of the Act of April 10th 1879 by filing the certificate of acceptance required by the ninth section of said act. This released it from taxation under existing laws. Wo do not, however, see anything in the letter or the spirit of this Act to indicate a legislative intent to exempt these associations from any burden or taxation imposed by subsequent legislation,'and certainly it has no contract feature which good faith is called upon to enforce and protect against the Commonwealth’s right to tax. It does not strike me that the liability of the defendant to the Tax Act of June 7th 1879 depends upon the-question of a repeal of a former Act. 'The Act of April 10th 1879 may have served its purpose. It ended litigation. It took these associations out of the grasp of the Act of 1868, and any other act then in force. But it did not cast its shadow into the future. We .cannot entertain the argument that because of the eighth section of the Act of April 10th 1879, these associations are not subject to a tax imposed by a subsequent general tax law. There is no attempt to exempt them from future taxation, or from any special tax that might be imposed. The language of the section is peculiar: ‘The bonus or tax due to the Common wealth upon the capital stock of corporations, as provided for by Act of 1st of May 1868, or by any other act, shall not apply to or be due from mutual savings fund or building and loan associations,’ and therefore the necessity of a repeal of this Act, either by implication or express words, in order to make effectual the subsequent tax, if there is one imposed in general terms, by a general, tax law, is not apparent. This doctrine is not in conflict with Egypt Street, 2 Grant, 455, and other kindred cases, including Kilgore v. Commonwealth, 9 W. N. C. 184, relied upon by the defendants to show that implied repeals are not favored. The right to tax the capital of mutual savings fund or building and loan associations, was not relinquished by the sovereign power of the legislature, and hence there is no right to be restored, or law repealed, before effect is given to a general tax law. There is no principle better established, and it requires no long array of cases to prove it, that no surrender of the general power of taxation by any legislative act can be implied. It must be expressed: Erie Railway Co. v. Commonwealth, 16 P. F. S. 84.</p> <p>“We come now to consider, Second. — If repealed, does the Act of Juno 7th 1879 impose,a tax upon building associations?</p> <p>“The title of the Act is “To Provide Revenue by Taxation,’ and if we turn to the fourth section, under which the tax is imposed against the defendants, we find no appearance of an intention on the part of the law-making power to limit the scope of its grasp by any words of special or limited designation. Hence it is we read, ‘ That every company or association whatever, now or hereafter incorporated by or under any law of this Commonwealth, or now or hereafter incorporated by any other state or territory of the United States, or foreign government, doing business in this Commonwealth, . . . except foreign insurance •companies, banks and savings institutions,’ shall be subject to a tax. There is no escape for the defendants from the sweep of this section, unless it falls within the exception.</p> <p>“ The. ingenuity of the argument that ‘ Building Associations,’ because ‘the monthly deposit is made up of the members’ savings,’ because ‘ they may afford to the indigent an opportunity to save and profitably invest their savings,’ and because of the designation of other companies in connection with them in legislation as ‘ savings fund and loan associations ’ belonging to the excepted class of ‘ banks and savings institutions,’ falls upon the imagination, and. does not convince the understanding. The same ingenuity is taxed to demonstrate that building associations are not to be taxed as ‘ banks and savings institutions,’ under the seventeenth section of the act.</p> <p>“ ‘ Banks and savings institutions ’ are a class of corporations having banking privileges, ahd have been long known to the law-making power, and the use of these terms is not misunderstood, and should not be misconstrued. They were in use and the subject of legislation and taxation, long before‘building associations’ demanded special exemptions. Building associations have heretofore been exempt from the operation of tax impositions, but always by their technical names.</p> <p>“ Again, ‘ banks and savings institutions ’ were exempt from the operation of the fourth section of the Act of May 1st 1808, and in the proviso of the same section we find ‘ building associations ’ exempt from liability ‘ for any tax to the Commonwealth, when such companies make or declare no dividends.’ And further on, in the General Tax Act of April 21th 1871, in section 5, both classes are included in the exemption, as follows, to wit: ‘ excepting also banks a/ncl savings institutions, building associations and foreign insurance companies.’ And also in the third section of the Act of March 20th 1877, entitled ‘ An Act to equalize taxation of corporations and companies,’ the same designation of corporations is used to save them from the tax imposed, ‘ except building associations, banks, smi/ngs institutions and foreign insurance companies.’ We cannot, therefore, arrive at any other conclusion than that ‘ banks and savings institutions’ have been uniformly applied to a different class of corporations than ‘ buildmg associations,’ and hence that the latter are not, by any legislative understanding, within the exception of the fourth section of the Act of June 7th 1879.</p> <p>“ We are of the opinion that the defendant is liable for the tax assessed under the law as it now stands, and therefore find in favor of the plaintiff for the sum of seventy-three and 3-100 dollars ($73.03), and against the defendant, the Bourgnignon Building Association.”</p> <p>The following exceptions were filed by the Bourguignon Building Association to the above judgment and finding of the Court:</p> <p>(1) Because the leaimed court erred in deciding that the General Revenue Act of June 7th 1879, repealed the provisions of the Act of April 10th 1879, exempting defendants from State taxation.</p> <p>(2) Because the learned court erred in deciding that the defendants were taxable upon the capital stock under the General Revenue Act of June 7th 1879.</p> <p>(3) Because the learned court erred in entering judgment for the Commonwealth on the case stated.</p> <p>[Bourguignon Building Association O. Commonwealth.]</p> <p>The Court dismissed the exceptions, whereupon the building association took this writ of error, assigning for error, the dismissal of the exceptions and the entering of judgment in favor of the Commonwealth.</p>

<p>1. Slate courts have jurisdiction in actions brought against national banks, under the provisions of section 5197 of the Revised Statutes of the _ United States, to recover back the penalty imposed by section 5198" of said statutes upon suck banks for taking usurious interest.</p> <p>2. Bletz v. Columbia National Bank, 6 Norris 87, followed.</p> <p>3. The Act of Congress of February 18th 1875, whereby this jurisdiction is expressly conferred, being purely remedial in its character, may be construed to apply where the right of action accrued before its passage, as well as after.</p> <p>4. There are no banks of issue in Pennsylvania authorized to receive interest at a higher rate than six per cent.</p> <p>5. The Act of May 28d 1878 (P. L. 109), expressly subjecting all banks of issue to the provisions of the Usury Law of May 28llll858 (P. L. 622), was not intended as a recognition of the fact that prior to that date such banks bad not been subject to the provisions of that law, but simply to remove any ground for fictitious claims to the effect that they were not so subject.</p> <p>6. Although, by the provisions of the Usury Law of May 28th 1858 (P.L. 622), no penalty is imposed for taking a greater rate of interest than srx per cent., yet no greater rate than that is “ lawful,” within the meaning of section 5197 of the Revised Statutes of the United States.</p> <p>7. A national bank situate in Pennsylvania cannot lawfully take more than six per cent, interest; if it does so, it. becomes liable for the penalty imposed upon it by the provisions of section 5198 of the Revised Statutes of the United States.</p> <p>8. Suit may be brought for this penalty by the person paying the usurious interest, at .any time after the said payment, even though the indebtedness on which the usurious interest was paid has not been discharged.</p> <p>9. In such suit the plaintiff is entitled to recover twice the entire amount of interest paid, not twice only the amount of the excess above the legal rate.</p> <p>10. In such suit the defendant cannot set off a judgment held by it against the plaintiff.</p> <p>It. Semble, moreover, that after recovery of judgment by the plaintiff, the court will not exercise its equitable power to set off one judgment against the other.</p> <p>12. Where a declaration clearly sets forth the cause of action and the matters claimed, mere defects in form will not now avail as formerly.</p> <p>13. Necessary form and allegations of a declaration, in a suit against a national bank, to recover the penalty for taking usurious interest, discussed and passed upon.</p>

<p>A. held the equitable title to a tract of land. B. held two judgments against A., constituting respectively the first aud third liens on said tract. An intervening judgment against A. was held by A’s wife. B., not knowing in whom the title to tire tract was vested, but supposing it to be in A.’s wife, proposed to A. that a mortgage of the tract should be given to him by A. and his wife, equal in amount to the two judgments held by him, and undertook thereupon to satisfy the first of said judgments and to assign the other to A.’s wife. The proposal was accepted by A. and carried into effect, A.’s wife saying nothing as to the true ownership of the tract. The- tract, being subsequently sold under the mortgage, was bought in by A.’s wife for an amount less than the amount of her judgment. In distributing the proceeds of said sale, the court held that B. was deceived as to the title of the tract, and that A.’s wife should not have remained silent in relation thereto. The satisfaction of B.’s first judgment was accordingly stricken off, and a portion of the fund awarded to B on account thereof, as a first lien upon the tract. On appeal from this decree, by A.’s wife: Held, that the same was erroneous. There being no evidence that A.’s wife knew by what motives B. was prompted m making the arrangement in question, it was not her duty to disclose to him the true ownership of the tract. Besides non constat that she would have purchased the tract at the sale had she known she was not entitled to have her bid applied upon her judgment as a first lien. Held, therefore, that she was entitled to have it so applied.</p>

<p>1. Where an action is brought to recover a debt for which collateral security-has been given, it is incumbent on the plaintiff either to produce and restore the collateral security, or to account satisfactorily for its non-production.</p> <p>2. The plaintiff cannot escape this duty by showing that the collateral security subsequent to its deposit has bpcome worthless, since non oonslat, but that he may have disposed of it to advantage while it still was £>f value.</p> <p>3. A. borrowed a sum of money from B., depositing certain coupon bonds as collateral security. B. afterwards becoming insolvent made an assignment for the benefit of creditors, leaving his affairs in great confusion. His assignees failed to find among his assets the identical bonds deposited by A., but discovered many other bonds of the same kind. Said bonds, although, at the time of their deposit, of considerable value, had, in the meantime, become worthless. A. tendered to the assignees the full amount of his debt, demanding from them the bonds deposited by him. These they declared themselves unable to restore, but tendered instead a like number of the similar bonds found by them among B.’s assets. This tender A. refused to accept. In an action by the assignees against A. to recover the ampunt of money loaned to him by B.: Hold, that there whs evidence to go to the jury of a conversion of the bonds by B., and that if the jury found that there had been such conversion, plaintiffs were not entitled to recover without accounting to defendant for tire proceeds of said bonds. Held further, that the burden was upon the plain tiffs'to rebut the prima facie presumption that such a conversion had taken place, by either producing the bonds or satisfactorily accounting for their non-production, and that in case they failed to do this they were not entitled to recover. Held further, that the tender by the plaintiffs of the other bonds found among B.’s assets, of the same kind as those deposited by A., was not good, for the reason that there was no proof that those bonds had been continuouslyin B.’s possession from the time of the loan by him to A., and might have been purchased by him after they became utierly worthless.</p> <p>4. Semble, that if said bonds had been in B.’s possession from the time of the loan by him to A., the tender of them by the plaintiffs would have been good, and A. wo,uld have been bound to accept them.</p>

<p>May 19th 1881. Before Sharswood, O. J., Mercur, Gordon, B anson, Trunkey, Sterrett, and Green, JJ.</p> <p>Error to the Court of Common Pleas of Dauplwn coxmty: Of May Term 1881, No. 129.</p> <p>This was an action of assumpsit by Charles E. Konmforfc against the Workingmeu’s Building and Loan Association, to recover the amount of a certain withdrawal order, drawn by the treasurer of the said association in favor of the plaintiff. Defendant pleaded non assumpsit, payment with leave, &c. After issue joined, the suit was marked to the use of George Eaerster and William Hamer. Subsequently a protest was filed of record by said Eaerster and Hamer against having the suit marked to their use.</p> <p>On the trial of the cause, before Henderson, J., the facts of the case aj>peared to be as follows : Plaintiff, being a member of the association defendant, gave notice of withdrawal therefrom on January 28th 1878. The President and Secretary thereupon drew, on'February 5th 1878, an order in plaintiff’s favor, upon Luerssen, treasurer of the association, for the amount to which plaintiff was entitled on withdrawing, viz. : $727.50. There not being sufficient funds then in the treasury to cash the order, the same was retained by the secretary. By February 27th a sufficient sum had been collected, and the order was accordingly on that day handed by the secretary to the plaintiff, who at once presented it to Luerssen. Luerssen, however, declined to pay the order, but being pressed by plaintiff, at length, on March 16th 1878, gave to him a check for the amount, postdated by four days. This check was on the Mechanics’ Bank of Harrisburg, and was drawn by Luerssen • as treasurer of the association. Plaintiff presented the check at the bank on March 20th 1878, but was told that the association was not in funds. He then went again to Luerssen and demanded his money. On April 4th 1878, he at length received Lnerssen’s individual note for the amount, payable thirty days from date, drawn to the order of George Faerster and William Hamer, and by them indorsed. On maturity the note was taken up by the indorsers, the plaintiff receiving from them the full amount thereof. On October 31st 1878, plaintiff instituted the present suit, to recover from the association defendant the full amount of his withdrawal order.</p> <p>The plaintiff called William Hamer as a witness, and offered to show by said witness that he never was the bail to the defendant for Luerssen, treasurer, and that he was informed by plaintiff that he and George Faerster were his (the treasurer’s) sureties, and responsible for his non-payment of the order of February 5, 1878, and finally, believing that he and Faerster were bail, they gave their own or indorsed the note of Luerssen for the a,mount due Roumfort by defendant in the spring of 1878; and that, at maturity thereof, still believing they were sureties for Luerssen, they paid the note, and that they, Faerster and Hamer, have since, and before this suit commenced, brought suit and have recovered an award of arbitrators against Roumfort for the amount paid, with interest.</p> <p>Objected to by defendant.</p> <p>The Court. — It having been alleged and offered to be proved by the defendants that this order in question, as well as the check given for it, were subsequently paid by a note of Luerssen, indorsed, &c., this testimony is now admitted as explanatory of the entire transaction. So much of the offer, however, as relates to a suit and award of arbitrators in same by Faerster and Hamer against Roumfort is rejected. Exception. (First assignment of error.)</p> <p>Tlie plaintiff requested the court to charge inter alia: “ If the jury find that William Hamer and George Faerster paid O. E. Roumfort by mistake, then, in law, a payment by a stranger is prima faeie a purchase of the claim, not an extinguishment of it, and on a verdict for the plaintiff the court can make a proper appropriation of the fund.” Answer : “ We do not see the force of the proposition. This suit is marked for the use of George Faerster and William Hamer, the equitable plaintiffs, and tlie court can protect their interests in it in case of recovery.” Exception. (Sixth assignment of error).</p> <p>The court charged inter alia, as follows: “ It is contended by the defendant that the order and check were fully paid and satisfied by the acceptance of the individual note of Luerssen at thirty days; that it was payment to the plaintiff, and as such accepted by him. This is a question entirely for the jury. And it will be observed that the note was drawn by Luerssen in his individual capacity, and not as treasurer; also, that additional time was given, the note being made payable at thirty days, to the order of George Faester and William J/I- Hamer, substantially, in appearance at least, a new and distinct transaction. On the face the sureties appear as accommodation indorsers, and the payment of the note by them would not extinguish it. [But it is urged that they indorsed the note under a mistake of fact, believing at the time, as represented to them, that they were the sureties on the treasurer’s bail bond, and that Roumfort was liable to be called upon to repay the money to them; that a suit has been brought to recover it.' The question of Roumfort’s liability to repay to the indorsers is not involved here, and whether he is, or is not, does not affect the liability of this defendant.] They, as accommodation indorsers, have all the rights of Roumfort against Luerssen. [The question for you to determine is whether or not this note was accepted in payment of the claim and in release of the association. If it was accepted in payment and satisfaction of the claim the plaintiff cannot recover. If, however, it was only taken as additional or collateral, for it does not appear that the check was given up, it does not extinguish the claim against the association. It is true,_ however, if the order is still unpaid, if it was not paid by Luerssen, it lias not been paid by the association, and it is not in the mouth of the association to set up a payment by a volunteer under a mistake of fact.]” The portions of the above charge included within brackets were excepted to by defendant, and constituted respectively the tenth and eleventh assignments of error.</p> <p>Verdict and judgment for the plaintiff in the sum of $143.12. Defendant thereirpon took this writ, assigning for error, inter alia, the admission of plaintiff’s offer of evidence, the answer to'plaintiff’s point above cited, and the portions of-the charge of the court above set forth included within brackets.</p>

<p>1. A company incorporated by an Act of Congress is not a foreign corporation within the meaning of the Revenue Act of June 7th 1879, § 16 (Pamph. Laws 130), and although it does business in this Commonwealth is not, therefore, obliged to take out the license and to pay the tax provided for by said section.</p> <p>2. The proviso in the said section, that if a majority of the stock of a foreign corporation doing business in this Commonwealth be owned or controlled by a corporation of this Commonwealth, said foreign corporation shall not be obliged to take out said license and pay said tax, is to be construed as referring to a majority of the stock actually issued by such foreign corporation, and not to a majority of the total amount of stock which it is by the terms of its charter authorized to issue.</p>

<p>1. The rights of creditors of an insolvent corporation become fixed by a decree of the court ordering the dissolution thereof. No rights can be subsequently acquired by a creditor which will entitle him to a larger participation in the assets of such insolvent corporation.</p> <p>2. A. insured certain property in a fire insurance company, his policy' providing that the insurance might at any time be terminated by the company on refunding a ratable proportion of unearned premium. The company afterwards became insolvent. A decree of court was entered ordering its dissolution, and a receiver was appointed to wind up its affairs. The receiver sent notice to A. to forward his policy, in order that it might be canceled and the amount of return premium fixed, but to this notice A. paid no attention. Subsequently the property insured by A. was injured by fire to the full amount of the policy. On the receiver’s account being filed and referred to an auditor, A. claimed from the assets of the company, a dividend upon the entire amount of hispolicy._ IXelcl, that A. was not entitled to such a dividend, but only to a return of’ a ratable proportion of his unearned premium.</p>

• May 20th 1881. Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Held: and the stockholders resided, in the state of New Jersey. The steam ferry-boats were all registered there under the laws of the United States; lay there at all times except when engaged in navigation; the company had its wharf there, as also its business office, and there its officers and men resided.

<p>May 20th 1881. Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey, Sterrett, and Green, Jj.</p> <p>" Error to the Court of Common Pleas of JDatvpMn county : Two cases. Of May term 1881, Nos. 170, 171.</p> <p>These were appeals by the Erie Railway Company, a corporation of the state of New York, from the settlements of the auditor-general and state treasurer against the said company, for a tax on capital stock for the years ending the first Monday of November 1876, and the first Monday of November 1877. There was no dispute as to the facts, and by agreement, the cases were tried by the court without the intervention of a jury.</p> <p>The material facts were as follows: The Erie Railway Company passes through the counties of Susquehanna and Pike, in the state of Pennsylvania. It obtained the right of way through Susquehanna county by the Act of February 16th 1841 (Pamph. L. 28). There is no mention made of taxation in this statute. The right of way through the county of Pike was secured to it by the Act of March 26th 1846 (Pamph. L. 179). Section 5 of this-act makes it the duty of the officers of said company, as soon as the railroad shall have been completed through Susquehanna and Pike counties, to file with the auditor-general a sworn statement of the cost of that portion of the said road within the state; and after the completion of the railroad to its western connections, to pay into the state treasury annually, in the month of January, $10,000. In pursuance of the above direction, the cost of that part of the Erie Railroad in Pennsylvania, was appraised and reported at the sum of $2,170,501.89.</p> <p>Section 6 of the said Act of 1846 is as follows: “ That the stock of said company, toan amount equal to the cost of the construction of that part of their road situated in Pennsylvania, shall be subject to taxation by this Commonwealth in the same manner, at the same rate as.othe^ similar property is or may be subject; and it shall be the duty of the said company to cause their treasurer to pay into the treasury of this state any tax to which said proportion of stock is liable, and the said company shall annually, in the month of January, make a statement to the legislature, under oath or affirmation of the president thereof, of its affairs, and the business done upon said road during the previous year; said statement to contain a full and accurate account of the number of passengers, amount and weight of produce, merchandise, timber, coal, and mineral transported on said road east of Dunkirk and west of Piennont.”</p> <p>The General Revenue Act of April 24th 1874, section 4 (Paraph. L. 68), enacted that every railroad company, incorporated under any law of this Commonwealth, or incorporated in any other state and doing business in this Co mmonwealth, shall pay a tax into the state treasury annually at the rate of nine-tenths of one mill upon its capital stock for each one per cent, of dividend declared, and in case of no dividend being declared, then six mills upon a true valuation of the capital stock.</p> <p>The accounting officers were of the opinion that the act of 1874 repealed the method of taxing the capital stock of this company, mentioned in the Act of 1846, and rendered it liable to tax in the same manuer as the stock of other railroad companies is taxed, according to the ratio sustained by the portion of the road in this state to its entire length. They therefore, in order to make a settlement of the tax, procured from the company a report and appraisement, by which it appeared that the company declared no dividends during the years ending November 1876 and November 1877; that the actual value of the capital stock was appraised for the year ending November 1876, at $13,980,-801, and for the year ending the first Monday of November 1877, at $8,465,578.</p> <p>The accounting officers therefore settled the tax for the year 1876 on the proportion of the capital stock represented by of road, being tbe proportion in Pennsylvania, with interest and penalty amounting to $9,745.02.</p> <p>A similar settlement was made for the year ending November 1877, upon the appraised value of the eajfital stock for that year, viz.: $8,465,578, except that for the portion of the year after March 20th 1877, the tax was at the rate of three mills, as fixed by the act of March 20th 1877 (Pamph. L. 6). The tax for the latter year, with interest on the said proportion of the road in Pennsylvania, was $3,333.70.</p> <p>The company appealed from these settlements on the ground inter cilia that the tax should have been levied according to the provisions of sections 5 and 6 of said Act of March 26th 1846, which constituted a contract between the state of Pennsylvania and said railway company, and because the settlement of tax under the said acts of 1874 and 1877 impairs the obligation of said contract, and said last mentioned acts, so far as they may apply to the Erie Railway Company, are unconstitutional and void.</p> <p>The court sustained the exceptions, and entered judgment in favor of the Erie Railway Company, Pearson, P. J., filing the following opinion:</p> <p>“ The defendant company showed the grant of a franchise from Pennsylvania for this company to lay a track of its road through two counties of this state for about forty-two miles, for which it was to pay $10,000 per annum. It was by a later statute required to have the cost of the road in Pennsylvania appraised and a report made of the cost thereof, in this State, to the auditor-general’s office, which was done, and the cost thereof was appraised at $2,170,501.89. We find these to be the undis-. puted facts in the case.</p> <p>“ The question presented is, how is the tax to be assessed ? The Commonwealth claims that it should be done under the 4th section of the Act of the 24th of April 1874, by apportioning it to the number of miles within this state. The defendant, that it must be taxed under the 5th and 6th sections of the Act of March 26th 1846, according to which it was appraised. If computed by that data, then a question arises as to whether it should be taken at its face, or by estimating the value of the. stock ? The 5th section directs the appraisement; the 6th'‘that the amount equal to the cost of construction in this state shall be subject to taxation by the Commonwealth in the same manner, at the same rate, as other similar property is or may be subject.’ IIow is the stock taxed? The answer is obvious. If it will make a dividend of six per cent', or over, at a rate fixed by the statutes from time to time; if under that rate then at a valuation, generally to be made under oath by the company officers. The expense of construction, or cost of that part of the road in Pennsylvania is valued, and thenceforth well known, and the computation by the mile is seldom resorted to when this better and more certain method exists. In fact, it has been held by several decisions of the Supreme Court, that when a valuation or account of the expense of constructing a portion of the road has been ordered by statute, made and returned to the auditor-general’s office, there could be no change in the valuation. This was first decided by myself in 1849 in the case of £ The Delaware and Hudson Canal Co. v. The Commonwealth,’ and was affirmed in the Supreme Court the same summer (not 1859, as stated in 7 Wright 230), but brought up a second time in 1862, between the same parties, when I had decided that for new and extensive improvements, additional taxes might be laid on the new part, for which the judgment was reversed; the judge delivering the opinion declaring that there could be no increase of this valuation, but this state, being the owner, could only take its share in dividends. This, of course, was in lieu of taxes. I am inclined to doubt the soundness of that part of the opinion which makes the state a partner in this road, but believe the road within this state must be taxed by the proportion fixed against other roads in the state by its valuation, and not by its length. The first of the cases cited was best considered, but has never been reported. I do not deny the power of the legislature to impose additional tax on this company when the wants of the state require it, but it must be imposed by express direc-, tion. There is no presumption that the legislature intended to depart from a valuation, and adopta new system, unless expressly required. There is no doubt but that the 4th section of the Act of 1874 most carefully, and in clear language, imposed taxes on this, as on all other railroads within this Commonwealth, but in what way was it to be imposed % If to be computed by the mile, it would be much greater than if on the value of the stock as returned. There is nothing in the words of the Act of 1874 which should cause a change in the method of assessing the faxes in this case, which has been pursued invariably from 1846.</p> <p>“ On examination, it is found that on the principles laid down in the foregoing opinion, and the production of the receipt of the state treasurer, there is nothing due to the Commonwealth. We, therefore, find in favor of the defendant.”</p> <p>Exceptions filed to the above decision were overruled by the court; whereupon the Commonwealth took this writ of error, and filed the following specifications of error:</p> <p>1. The court erred in deciding as follows: “ There is nothing in the words of the Act of 1874, which should cause a change in the method of assessing the taxes in this case, which had been pursued invariably from 1846.”</p> <p>2. The court erred in entering judgment against the Commonwealth and in favor of the Erie Eailway Company.</p>

<p>May 23d 1881. Before Mercur, Gordon, Paxson, Trunket, Sterrett, and Green, JJ. -Sharswood, O. J., absent.</p> <p>Error to tbe Court of Common Pleas of Huntingdon country: Of May Term 1880, No. 147.</p> <p>Trespass quare clausum fregit, et de bonis asportatis, by David Walker, against George L. Smith and others. Plea, not guilty.</p> <p>On the trial, before ■ Dean, P. J., the following facts appeared : The alleged trespass was committed on a tract of</p> <p>mountain land on which the defendants entered and cut and carried away timber. The plaintiff claimed title and the right to possession under articles of agreement of sale from one George W. Steever. He showed title out of the Commonwealth, and to his vendor, as follows : — •</p> <p>1794, April 10th. "Warrant to Robert Miller for “400 acres of land adjoining land this day granted to John Miller, in the county of Bedford.”</p> <p>1849, September 28tk. Survey returned, in which it is certified, “ Re-surveyed the 23d day of September 1849, in pursuance of a warrant granted to Robert Miller 10th April 1794.” Indorsed “ Accepted.”</p> <p>• The plaintiff showed, by the “ Old Purchase Blotter,” that on September 17th 1794, John Hall, on behalf of “Ingersoll, &c.,” (sic) paid purchase-money in specie, £2890, and fees, £144 10s., on 289 warrants of 400 A. each, including the Robert Miller.</p> <p>He then offered in evidence the will of Jared Ingersoll, dated October 17th 1822, proved December 30th 1822, whereby he devised his real estate to his wife Elizabeth. Objected to, because there is nothing to show that Jared, Ingersoll was the Ingersoll who paid the purchase-money. Objection overruled. . Exception (1st assignment of error).</p> <p>Plaintiff then offered will of Alexander James Dallas, dated August 10th 1804, proved January 23d 1817, whereby he devised his real estate to his wife, to be followed by deed for the Bobert Miller tract from the widows of Ingersoll and Dallas to Abraham Kerns. Objected to as irrelevant, nothing having been shown to connect Dallas with the title. Objection overruled. Exception.</p> <p>Deed, February 26th 1833, Elizabeth Ingersoll and Arabella Maria Dallas to Abraham Kerns, for, inter alia, the Bobert Miller tract. Becorded June 18th 1833, in Bedford county.'</p> <p>Deed, August 19th 1834, Abraham Kerns and wife to Samuel Barclay, for the undivided one-half part of the lands surveyed on 259 warrants, dated April 10th 1794, the warrantee names and locations particularly described' in deed from Elizabeth Ingersoll and Maria Dallas to said Kerns. Objected to, as the Bobert Miller warrant is not specifically named in the deed. Objection overruled. Exception.</p> <p>The plaintiff then gave in evidence mesne conveyances from Samuel Barclay and the devisees of Abraham Kerns to George W. Steever, for said tract; Patent to Steever, et al., January 2d 1874, and the articles of agreement from Steever to the ■plaintiff, dated March 6th 1874.</p> <p>The evidence of surveyors, and documentary evidence, showed the following facts: The Bobert Miller warrant was a ‘£ shifted ” warrant, and really called for the survey of land thirty miles south of where the survey was made; nevertheless, the survey was l£ accepted ” and the purchase-money paid, except for an excess of thirty-eight acres, for which the purchase-money was paid January 2d 1874, when the patent issued.</p> <p>On the survey on file is also ■ the following indorsement: ££ April oth 1852. Bejected. See minutes of Board of Property.” These minutes show that at a meeting of the Board of Property, in the matter of a suit between Bobert Miller and one Mierly, the following- entry was made: — •“ A warrant issued to Bobert Miller for four hundred acres of land in Bed-ford county, dated 10th day of April, 1794, adjoining lands granted to John Miller, same day. The 'defendant claims on a warrant in his own name, dated the 29th day of January, 1850. The warrant to Bobert Miller being a descriptive warrant, and located more than ten miles from the John Miller warrant, for which it calls as the only adjoiner, and located in direct violation of the general instructions given to every deputy and county surveyor. The return of survey on the warrant to Robert Miller calls for John Miller as an adjoiner,but it appears that John Miller was settled on adjoining lands and had no warrant, but was calculated to mislead the officers of the Land Office, and was the cause of the .acceptance of the survey.</p> <p>“ In view of the above facts the board reject the survey of Robert Miller, it being a settled and established practice not to accept surveys located different from the original call in the warrant.”</p> <p>Subsequent minutes of the Board of Property show that, on petition of George W. Steever and others, presented at a meeting held December 17th 1873, asking “that the Robert Miller survey (inter alia) may be reinstated am'ong the accepted surveys on file in the Land Office, to enable them to procure a patent therefor,” the board made the following order: — -“And now, to wit: Dec. 17th 1873, after consideration of the petition and certifícales thereto attached, the surveys made and returned in pursuance of warrants in the names of Robert and William Miller, Nos. 646 and 647 Bedford, are hereby restored to the regular liles, and patents directed to issue to the owners on payment of any arrearages and the fees.”</p> <p>The patent was thereupon issued to Steever.</p> <p>The defendants claimed, under the following title, a tract of iand which it was admitted interferes with the Robert Miller, tract as claimed by plaintiff:</p> <p>1852, April 20th. Warrant to John Crotsley 300 A. of unimproved land in Cass township, Huntingdon county.</p> <p>1852, May 4th and 5th. Survey, 302 A. 108 p. and allowance. June 17th 1852. Excess paid, and survey accepted.</p> <p>1873. Patent to John Crotsley for said tract.</p> <p>Title from Crotsley to defendants for the locus in quo.</p> <p>The defendants presented, inter alia, the following points:—</p> <p>1. That the plaintiff’s claim being founded on a warrant dated in 1794, in the name of Robert Miller, and no conveyance or assurance from Robert Miller or any other person who paid the purchase-money having been made to the plaintiff or any other person, predecessors in his alleged title, so far as the evidence shows, the plaintiff has not title and cannot recover. Answer. This point is denied.</p> <p>2. That there being no proof that “ Ingersoll,” named in the old purchase voucher, as having paid the purchase-money on 258 warrants, of which the Robert Miller is one, was Jared Ingersoll, the plaintiff has failed to show that he is the owner of any part of the land surveyed on the Robert Miller warrant or the land surveyed on the same, and he cannot recover. Answer. This point is denied.</p> <p>3. That the warrant in the name of Robert Miller being a descriptive warrant and calling “ for land this day granted to John Miller,” and the survey thereon in 1849 having been shifted from its true location, and not calling for any land granted to John Miller, and the said survey having been on April 5th 1852, rejected by the “ Board of Property,” the warrant issued on April 20th 1S52, to John Crotsley, followed by a survey made on April 26th 1852, and a patent issued to him on August 26th 1873, whilst the Robert Miller survey was lying in the rejected files of the Land Office, vested in John Crotsley a good title as against the Robert Miller, and the plaintiff canuofc recover. Answer. Our answer to this point is reserved, with the right to enter judgment on verdict non obstante veredicto, should there be a verdict for plaintiff.</p> <p>4. That as against the John Crotsley title, perfected, while the Robert Miller survey laid in the Land Office a rejected survey, the Robert Miller title cannot prevail. Answer. Our answer to 3d point is our answer to this point.</p> <p>7. That the evidence does not show any such possession in the plaintiff, actual or constructive, as to entitle him to recover in trespass. Answer. This point is denied.</p> <p>The court, in the general charge, said, inter alia: “We instruct you that the facts shown from the Old Purchase Blotter, and the fact that the devisees of Ingersoll and Dallas, as early as 1833, openly and notoriously treated the warrants as theirs by conveying them, are sufficient, after this lapse of time, to warrant you in presuming that Ingersoll- and Dallas were the owners of these warrants. They are sufficient to warrant you in inferring that Jared Ingersoll and Alexander M. Dallas were meant by ‘ Ingersoll,’ in so far as the records of the Land Office showAn whose behalf the purchase-money was paid.”</p> <p>"V erdiet for the plaintiff for $130, subject to the opinion of the court on the points reserved (defendant’s 3d and 4th points, supra). The court subsequently entered judgment on the verdict, Dean, P. J., filing the following opinion on the points reserved:</p> <p>“ I am of the opinion that the action of the Board of Property, after the acceptance of the survey, in having it marked rejected, was without authority of law, and therefore void, in so far as it is sought to affect the title of the owner of the survey thereby: Cassiday v. Conway, 1 Casey, 240; Chew v. Morton, 10 Watts, 321, and other authorities to the same point. When the Commonwealth undertook to grant the same land to John Orotsley by accepting the survey to him of 17th June 1852, it attempted to vest in him a title which she did not own, except for the purposes of alien to enforce payment of the purchase-money on the original granttherefore, defendants’ 3d and 4th points should have been denied, which is now accordingly done, and it is, ordered that judgment be entered on the verdict for plaintiff, March 15th 1880.”</p> <p>The defendants thereupon took this writ of error, assigning for ei-ror, inter alia, the admission of the evidence objected to, as above recited, and the answers to their points.</p>

<p>May 24th 1881. Before Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, J J. Sharswood, O. J., absent.</p> <p>Error to the Court of Common Pleas of JBlavr cownty: Of May Term 1881,-No. 141.</p> <p>Case, by Samuel I. Pries, trading as the Union Hardware Company, against the Pennsylvania Nailroad Company, to recover damages for certain hardware nmd personal property lost or destroyed while in transit in the cars of the defendant company. The defendant pleaded specially that the plaintiff had brought a former suit for the same cause of action in the Court of Common Pleas of Blair county, to October Term 1875, No. 191, wherein the plaintiff recovered a verdict and judgment for $1836.46; that the defendants sued out a writ of error to the Supreme Court, whereupon the said judgment was reversed and the said Supreme Court subsequently discharged a rule to show cause why a venire facias de novo should not be awarded (see Peuna. N. N. Co. v. Fries, 6 Norris 234). The plaintiff demurred to the said plea, and the Court of Common Fleas entered judgment for the -defendant on the demurrer.</p> <p>The plaintiff took this writ of error, assigning for error the entering of judgment for the defendant on the demurrer.</p>

<p>1. The Act of April 9th 1844 (P. L. 280), as amended by the Act of March 15th 1848 (P. L. 163), relative to the laying out and altering of roads in Warren and other counties, does not require the road commissioners, in case they refuse an application to lay out a road, to make re" turn of that fact to the Court of Quarter Sessions.</p> <p>2. A refusal on the part of the road commissioners to lay out the road is final, and even if they do make a return to that effect to the Court of Quarter Sessions, no jurisdiction of the proceeding vests therein.</p> <p>3. If said court, after the making of said return, grant a re-view, and subsequently a report favorable to tbs laying out of the road is made by the reviewers, which the court confirms, the proceedings will, on certiorari, be set aside for irregularity.</p>

<p>May 24th 1881. Before Merour, Gordon, Paxson, Trunkey, Sterrbtt aitd Green, JJ. Siiarswood, C. J., absent.</p> <p>Appeal from a decree of the Court of Common Pleas of Mifflin Coimty: Of May Term 1881, No. 160.</p> <p>This was an appeal by the Mifflin. County National Bank from a decree of the said court making distribution of tlie fund in court arising from the sale of the personal property of the Screw, Mower and Reaper Company under several writs of execution.</p> <p>Before the auditor, to whom the matter was referred for distribution, the fund was claimed, on the one band, by John M. Weldon, as assignee of Andrew J. Farrand of a judgment for $5,000 confessed to Farrand by tbe Lewistown Engine and Brass Company, and, on the other hand, by the Mifflin County National Bank, on the ground that the said judgment was confessed to Farrand to secure or indemnify him as surety on certain notes given by the Lewistown Engine and Brass Company to the bank, amounting to $5,000, for money loaned to said company by the bank. The bank claimed that Weldon took his assignment of the judgment subject to the equity of the bank to have its fruits applied to the payment of the Lewistown Company’s notes, held by the bank.</p> <p>The material facts found by the auditor were as follows: The Lewistown Engine and Brass Company was a firm com-' posed of several partners or associates, of whom the “ Screw, Mower and Reaper Company” was one, and Adam R. Reese was another. There were several other partners. All the partners signed the confession of judgment to Farrand, and it was not denied that this judgment was given to indemnify him against his liability as surety on the said notes. This judgment was entered August 24th 1876. On the next day the Lewis-town Engine and Brass Company executed an assignment for the benefit of its creditors.</p> <p>On January 1st 1877, Farrand assigned this judgment to "Weldon for a inll and valuable consideration. At the time the negotiations for the purchase of the judgment were had between Farrand and W eldon, there were present John W. Dean, secretary of the Screw, Mower and Reaper Company, and all the other obligors, members of the firm of the Lewistown Engine and Brass Company, except Adam R. Reese. He was absent. Weldon and his counsel inquired of all the obligors present whether the judgment was all right. They were assured by Dean and Farrand, in the hearing of all present, that it was, that the Screw, Mower and Reaper Company and A. R. Reese were each abundantly good, and that the money could be made of them. No inquiry was made, however, as to what was the consideration of the judgment. No one present said or in any way intimated any thing about the judgment having been given to Farrand to secure him on account of bis liability to the Mifflin County National Bank. Upon the faith of these inquiries and declarations Weldon parted with his money and purchased the judgment.</p> <p>The Mifflin County National Bank contended before the Auditor that Dean, the secretary of the Screw, Mower and Reaper Company, had no power to bind that company by his declarations; and further that, as Adam R. Reese was not present, and was not inquired of by Weldon, the latter could not claim to hold the judgment as a bona fide assignee for value not subject to the equity of the bank to have its fruits applied to the purpose for which the judgment was given, namely to secure payment of the notes held by the bank.</p> <p>The auditor adopted this view, and awarded the fund to the bank. Upon exceptions to his report, the court overruled his distribution, holding, in an opinion filed by Bucher, P. J., that, as the judgment was a partnership judgment, an inquiry by a proposed assignee of any one or more of the partners was sufficient to bind the partnership ; and that the failure of Weldon to inquire of a single one out of five partners could not ■operate to affect him with notice of the secret equity of the bank. Further, that if he had bought the judgment without any inquiry at all, while he would have taken it subject to any existing equities of the obligors, yet he would not be affected by any collateral equities of third parties or strangers, of which he was ignorant. ,</p> <p>The court therefore entered a decree awai’ding the fund to Weldon as assignee of the Farrand judgment. The Mifflin County National Bank thereupon took this appeal, assigning for error the said decree.</p>

<p>1. A claim for speculative damages for a tort in a case which presents no fixed standard by which those damages can be liquidated is not liable to attachment execution.</p> <p>2. A railroad company entered upon and took part of the land of A. for railroad purposes without making compensation or giving bond according to law. Subsequently, B., having a judgment against A., issued an attachment execution thereon for the amount of A.’s claim against the railroad company for damages, summoning the company as garnishee. A. subsequently instituted proceedings against the company to recover those damages,, assigning his claim at the same time to O. Said proceedings resulted in an award to C. of a certain sum, which the company paid into court. A. feigned issue having been awarded between C. and B. to try whether said sum was subject to be B.’s attachment,- — Held, that the claim of A. against the railroad company, while still unliquidated, was of such a character as was not liable to attachment,. Held, further, that the assignment to O. prevented the attachment binding the damages when they'were liquidated by the award. Held, therefore, that the fund in court was not bound by the attachment.</p>

May 24th 1881. Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, O. J., absent. Error to the Court of Common Pleas of Mifflm county: Of May Term 1881, No. 154.

May 25th 1881. Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, oJ. Sharswood, C. J., absent. Error to tbe Court of Quarter Sessions of Warren county: Of May Term 1881, No. 67. This was an indictment against Perry and Daniel Root for obstructing a highway. On the trial before Wetmore, P. J., the following facts appeared in evidence : In 1812 one Benjamin Tome was tlie owner of a tract of land on tbe eastern shore of the Allegheny river.

May 25th 1881. Before Mercub, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, O. J., absent. Error to the Court of Common Pleas of Juniata county : Of May Term 1881, No. 33. Replevin, by W. P. Ford, et al. against William O. Yanormer for one bay liorse, etc. The writ issued July 20th 1878, “ returnable next term, first Monday in September next,” viz., Sepl ember 8th 1878. The summons was served July 22d 1878.

May 30th 1881. Before Sitarswood, C. J., Gordon, Trunkey and Sterrett, JJ. Mercur, Paxson and Green, JJ., absent. Error to the Court of Common Pleas of JElh county: Of May Term 1881, No. 84. This was an appeal from a judgment of. a justice of the peace entered in favor of Frank X. Gerber to the use of Joseph Gerber against Joshua Sykes, in an action brought by Gerber against Sykes to recover compensation for work and labor done.

<p>May 30th 1881. Before Sharswood, O. J., Gordon, Trunkey and SterrettJ JJ. Mercur, Paxson and Green, JJ., absent.</p> <p>Error to the Court of Common Pleas of I/ycomvng coimty: Of May Term 1881, No. 40.</p> <p>Attachment execution, by William IT. Hays, indorsee of the Eighth Avenue Railroad Company, against The Lycoming Fire Insurance Company, defendant, and S. N. Williams and others, garnishees.</p> <p>The judgment under which this attachment execution issued was obtained by the said plaintiff against the said defendant in an action of assumpsit on an order drawn by tbe president of tbe defendant corporation, by order of tbe board of directors, on the treasurer of the company, dated June 9th 1880, for $3505.14:. to the order of the Eighth Avenue Railroad Company, payable September 9th 1880, accepted in writing by said treasurer, and indorsed by the payee to the order of the plaintiff Hays, and by him indorsed. The order was protested for nonpayment at maturity. This order had been given for the amount of adjusted loss found due by the defendant to the Eighth Avenue Railroad Company, for the destruction by fire of certain premises, insured by the company defendant under a policy issued on the “ all cash plan.”</p> <p>To the attachment execution the defendant filed a special plea that “ under its charter and the supplements thereto and by reason of the facts and legal conclusions connected therewith, specifically set out in the affidavit of William A. Krouse, assistant secretary, and filed herewith, the company is not subject to the writ of execution attachment.”</p> <p>The affidavit of Krouse, referred to in the plea, was as follows :</p> <p>“ 1. That said corporation is a mutual insurance company, incorporated by act of Assembly approved March 20, 1840, and that said charter has been altered and amended by several subsequent acts of the General Assembly of the State of Pennsylvania, viz.: An act approved July 26, 1842; also, an act approved May 29, 1854; also, an act approved May 1, 1861.</p> <p>2. That prior to the passage of the act of May 1, 1861, said company had no authority to issue policies or effect insurances on the cash or stock plan, but by the terms of said supplement it was authorized “ to make insurances on property of every class or description already included in this act of incorporation, according to their discretion, for which cash premiums only shall be received,” &c.</p> <p>u 3. That the order of acceptance on which the original suit is brought and judgment obtained, was issued by said company or its officers in settlement of a claim for loss by fire of the Eighth Avenue Railroad Company under a policy heid by them, which policy was issued on the cash plan in pursuance of the supplement of May 1,1861, and that the face of said order or acceptance indicates that it was given in settlement of a claim for loss by fire.</p> <p>“ 4. That said company have no authority, under its charter or the several supplements thereto, to execute negotiable paper of any kind in payment of any loss or for any purpose whatever; but orders or acceptances have been issued for losses and expenses for the convenience of the insured and the company upon the ascertaining of the amount the company is liable to pay in case of loss or losses by fire. '</p> <p>' “ 5. That section of nine of the charter of the company provides as follows: ‘ The directors shall, after receiving notice of any loss or damage by fire sustained on property insured by said corporation, and ascertaining the same, or after the rendition of any judgment as aforesaid against said company for loss or damage, settle and determine the sums to be paid by the several members thereof as their respective proportion of such loss, &c.’</p> <p>“ 6. That in accordance with the terms of the charter the directors of said company, on the 28th day of May, A. D. 1880, levied an assessment on all notes in force on the 15th day of-April, 1880, intending to provide for the payment o'f all losses and expenses up to that date; and the claim on which the original suit was brought in this case was included- in said assessment.</p> <p>“ 7. That on the same day, viz.: May 28th 1830, the directors of said company levied another assesment on all notes in force on the 14th day of May, A. 1). 1880, to pay losses and expenses between April 15th and May 14th 1880, inclusive, the losses between said last mentioned dates having been very large the aggregate losses in the Milton fire alone being about $100,000.</p> <p>“ 8. That said assessments have been placed in the hands of receivers or cohectors, and collections have been made thereon as fast as possible, and applied to the payment of the liabilities of' the company, but owing to the large amount of liabilities it has been found impossible to pay them off as they come due, consequently the company have paid to those entitled to receive the same a proportionate part of their claims from time to time, and have paid up to this time thirty per cent., and have distributed that amount on the claim of the plaintiff, which he has refused to receive under the plan of distribution adopted by the company.</p> <p>“ 9. Said deponent is informed by counsel learned in the law that claims against said company cannot be enforced by execution attachment for the following reasons: Because the corporation under its charter is not subject to the writ. Because mutual members of said company cannot be made garnishees or have assessments on their notes, levied to pay particular* losses, attached. Because when an assessment is made by a mutual company to pay losses up to the date of the assessment, persons or corporations whose claims or losses are included in said assessment have a vested interest therein, and prior assessments cannot be attached to pay subsequent losses, nor can subsequent assessments,, made for the purpose of paying subsequent losses, be attached. Because moneys in the hands of receivers or collectors are virtually in the hands of the company itself. Because the proceeds of any assessment virtually belong to those creditors of the cpmpany for whose benefit said assessment was levied according to the terms of the charter. Because a special method is set forth in the charter of the company for the payment of losses, and creditors of the company cannot collect their claims by execution attachment.”</p> <p>The garnishees made no defense, but in response to interrogatories certain of them answered that as members of the company defendant, insured therein on the mutual plan, they had given premium notes on which certain assessments had been levied which remained unpaid, due and owing by them to the defendant company. H. Yv. Watson, one of the garnishees, answered that as agent of the company, appointed to collect assessments levied on the premium notes of members, he held certain funds. The total liability acknowledged by the garnishees was $1435.87. It -was admitted that the assets of the company, consisting largely of premium notes, were more than sufficient to pay its debts due for losses by fire.</p> <p>The parties having agreed to dispense with a jury trial, the case was tried before Cummin, P. J., whose opinion, after stating the facts, was as follows:</p> <p>“ The only question for solution in this case is, whether or not unpaid assessments duo on the premium notes of policyholders and members of the Lycoming Fire Insurance Company are liable to execution attachment on a judgment recovered on a claim against the, company for a loss by fire covered by a cash policy.</p> <p>“ The charter gives no preference to cash policies in payment of losses, and provides no different method of paying them than that prescribed for all its policies. That the cash policies and premium note policies stand on the same basis is no longer an open question in this state: Hummel’s Appeal, 28 P. F. S. 320 ;• Schimpf & Son v. Lehigh Valley Mutual Insurance Company, 5 Norris 373.</p> <p>" I am of opinion that the plea of the defendant in this case is good. First, because the debt sought to be attached is not such a debt due to the defendant as is contemplated by the Act of Assembly authorizing the writ of execution attachment to issue. The charter of the Lycoming Fire Insurance Company is a part of every contract of insurance it enters into. By its charter this company cannot levy and collect assessments from its members for the purpose of increasing its cash balance, nor for any other purpose than that therein prescribed, viz.: to pay losses and incidental expenses. The company, as a corporation, cannot do as they please with the fruits of such assessments ; they are mere trustees, whose duties it is to ascertain from time to time the amounts of money to be raised, to ratably assess the same on its members, and, when collected, appropriate the money to the persons and purposes for which it was raised. They can only make such assessments for certain purposes, and, when collected, they cannot use the money for any other purpose. The assessments due from these garnishees are, therefore, not due to the defendant in its own right, although, collectible in its name, but belong to those policy-holders who have suffered the losses for which it was laid. As has been said by our Supreme Court, they have an immediate vested interest in them: Rhinehart v. Allegheny County Mutual Insurance Company, 1 Barr 359 ; Coston v. Same, Id. 322.</p> <p>“But another reason why this writ will not lie in this case is, because a remedy for the payment of this debt is provided by the charter of the company and it must be pursued. The charter provides that debts of this kind shall be paid by assessments to be levied on the premium notes of those persons who are members of the company at the time of the happening of such loss. In all cases where a remedy is provided or duty enjoined or anything directed to be done by any act or acts of Assembly of this Commonwealth the said act shall be strictly pursued,” &c.: Act of March 21st 1806, Purdon’s Digest, p. 58, pi. 5. That such remedy is exclusive is held in Koch v. Williams-port Water Company, 15 P. F. S. 288, and many other eases.</p> <p>“ If this company should neglect or refuse to make and collect assessments to meet its losses, it could be compelled by mandamus to do its duty in this regard. If it should attempt to use such funds when collected for any other than the purposes for which they were raised, it could be enjoined from so doing at the suit of any one interested. Thus we find the remedy provided is ample; and that it is appropriate and should be strictly pursued becomes apparent when we consider the rights of all the parties in the premises. In the People’s Fire Insurance Company v. Iiartsliorne & Co., 9 Norris 470, Mr. Justice Sterrett, in delivering the opinion of the court, says: “ The essential principle on which mutual insurance companies are oi’ganized, is that each member will pay his proportionate share of expenses incurred and losses which happen during the period of his membership.” From this it follows that members of such companies are not liable for losses which occurred before they became members, nor after they ceased to be such. They ought not to be compelled by any process of law to pay any portion of a loss for which they are not liable as a member.</p> <p>“If an execution attachment be issued as in this case, members may be compelled to pay for losses which otherwise they ought not to pay. If these assessments can be appropriated to the payment of the debt of any one who may attach them, they may be so reduced that they will not pay the debts for which they were assessed. These assessments are laid for a sufficient sum to pay the debts for which certain members are liable; if they are diverted to the payment of other debts for which those members are not liable, how is this deficiency to be made up ? What authority of law is there to compel these members to pay more than their proportionate share of losses and expenses incurred during their membership ?</p> <p>“ Unless the remedy provided by the charter is pursued in the payment of such debts as the one now before us, some members of the company will be compelled to pay claims they ought not to pay, whilst others will be released from the payment of such as they should pay.</p> <p>“ What I have said as to those garnishees who are members of the company, applies with equal force to the garnishee Henry ■ W. Watson, Esq.; and besides, as to him it may well be said that the funds in his hands are in the hands of the company. If these assessments are not subject to the writ of execution attachment in this case for either of the reasons assigned, it is of no importance that one of them was laid to cover losses including the one on which the plaintiffs judgment is founded.</p> <p>“ 1 am of opinion that the plea of the defendant is sustained by the law and facts in this case, and it is now ordered that judgment be entered thereon in favor of the defendant.”</p> <p>The plaintiff took this writ of error, assigning for error the sustaining of the defendant’s plea, and the entering of judgment thereon in favor of the defendant.</p>

May 31st 1881. Before Siiarswood, C. J\, Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Error to the Court of Oyer and Terminer of Lyeonvmg county: Of May Term 1881, No. 96. Charles Hill was arraigned at March sessions 1879, of the said Court of Oyer and Terminer upon a charge of arson. Plea, not guilty. The indictment contained three counts.

<p>May 31st 1881. Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.</p> <p>Error to the Common Pleas of Lycoming County : Of May Term 1881, No. 121.</p> <p>This was an appeal from the judgment of the City Recorder of Williamsport, entered in favor of G. W. Youngman and S. L. Youngman, against Adam D. Miller in the sum of $148.75. Defendant pleaded non assumpsit, payment, payment with leave, and set off.</p> <p>On the trial, before Cummin, P. J. the facts of the case appeared as follows : On August 21st 1876, a circus company under the management of W. W. Cole was passing through the streets of Williamsport. Among the vehicles belonging to the company was one bearing a steam piano, upon which an employé of the company was playing. The noise frightened a horse passing along the street, who shied and ran upon the pavement, knocking down and bruising one Henry Miller, a minor son of the defendant. Defendant at once called upon plaintiffs, who were attorneys, at their office near by, and represented that he was a poor man who had no money to spend in litigation with Cole, but desired plaintiffs to institute proceedings to recover damages for the injury done to his son. Plaintiffs were not certain that they could recover anything, but on receipt of a retainer of from $5 to $10 agreed to make the attempt, defendant undertaking to give to them one-half of whatever amount might be recovered.</p> <p>The evidence was conflicting as to whether plaintiffs undertook to bring two suits, one in the name of the son and one in the name of the father, or whether they only undertook to bring the first. Plaintiffs testified that defendant had told them that he didn’t care for damages for himself. Defendant, being called as a witness, testified that he never made such a statement. He admitted, however, that he had subsequently settled his claim with Cole on receipt of $10.</p> <p>Plaintiffs instituted but one suit, which was brought in the name of Henry Miller, by his next friend, the defendant, against Cole, and which resulted on the trial in a verdict and judgment for plaintiff in the sum of $287.50. One-half of the amount of this judgment, viz.: $148.75, defendant assigned to the plaintiffs. Afterwards the whole 'amount of the judgment was collected on a testatum fi. fa. to Huntington county and paid into court, whereupon defendant, having been duly appointed guardian of his son, drew out the same, receipting to the prothonotary therefor. Plaintiffs thereupon brought this suit. It appeared in evidence that the sum sued for by plaintiffs was a fair compensation for their professional services.</p> <p>The court charged the jury, inter alia, as follows:</p> <p>“ It was the duty of the counsel to explain to the defendant the aspects of the case, and how he was entitled to recover and for what; because they undertook to recover the damages consequent upon the injury. And although they said nothing about being expert lawyers, the law implies that they would do their work in a workmanlike manner. Just as when you take a piece of cloth to the tailor; he lias a sign out and you need not ask him whether he is a good or bad workman. The presumption of the law is that when he undertakes to make you a coat he will make it in a good and workmanlike manner, and that same rule applies to the lawyer.....In the absence of any arrangement between them about bringing one suit or two suits, they were bound under the circumstances of the case to have brought two suits. That was their plain duty-otherwise they could not recover all the damages that they were entitled to for this injury. But if Mr. Miller understood this and consented that they should only bring one, then that is the agreement, and he is bound by that just the same as any other person is bound. And we say he will be bound it if he understood it. The two could not be combined in the one suit. That, then, was the duty of the attorneys at the time this contract was entered into.</p> <p>“ Now, if they have performed their contract — done their duty in this behalf — then the other party is bound to perform his, and then it will be your duty to inquire in what relation this defendant agreed that he would pay — did he agree that he should be personally bound for this money ? or was it to come out of the proceeds of the judgment of whatever they collected \ For instance, if a suit for the son alone, then of course the father was acting for the son, and this suit is against Adam Miller alone. It is not against Henry Miller, by his next friend Adam Miller. The only suit that was brought was one in the name of the son. There was no suit brought in the name of the father. The damages that were paid, $287.50, were for pain and suffering of the boy, and for any damages there might be for the injury beyond ids minority. This $287.50 did not include anything for medicine or medical attendance or nursing or loss of time of the child. All that was expressly excluded out of the suit. Now, in what relation did Adam Miller agree to make payment for service rendered % If the suit had been brought in the name of the father alone, and he had recovered the $287, it would be plain here that that was what he agreed to pay, because the money would go to him directly. N ow, Adam Miller has no money as the result of any damages in this suit. There was $287150 recovered in that action, but that was recovered for the boy, and belongs to the boy, imd not to Adam Miller. . . . Then there is some evidence here that there was an understanding that a suit was to be afterwards brought in the name of the father. But he did not feel like going into the expense of two suits to commence with. Mr. Miller swears that no such talk was had until the other suit was ended, and it will be your duty to notice that the defendant is the proprietor of a circus company traveling all over the United States, and service could be had upon him when he was in the county — when he was out of the county you would have to follow him and bring suit in a different court, and that is to be noticed in considering the duty of the attorneys under the circumstances. Now, it is claimed by the plaintiffs here that the understanding was that they would bring but the one suit, and if they recovered in this they.would afterwards bring the other suit. If you should find that that is the true state of the case, then it would follow that these attorneys have not yet performed all their duties. There is another suit yet to be brought, and more damages to be recovered. And then this suit would have been brought too soon, because the work is not all done yet. Then in reply to that the plaintiffs say that that is the true state of the case, but since that time the defendant has gone and settled the case. Now, is that the fact ? Has he settled with Cole for any claim he might have ? If he -has, there is no further suit to be brought. These are all matters for your consideration, and it will be your duty to consider them all, and if the attorneys here have performed their duties in a workmanlike manner, and done what was reasonable to do under all the circumstances in this case, then they ought to be paid according to their contract. If they have performed their part of the contract the other party must perform his. If they have not performed their part they have no right to ask the other party to perform his. It will be your duty to settle these questions. There is no question of law here which will enable me to settle the case .for you.”</p> <p>Yerdict and judgment for defendant, whereupon plaintiffs took this writ, assigning for error the portions of the charge above cited.</p>

<p>1. Where several tracts of hind have been surveyed in a block and returned to the land-office, the lines and corners marked upon the ground in any part of the block are to be considered as belonging to each and-every tract of which said block is composed. If sufficient lines and corners thus marked cun be found, they determine the location of the whole block and of every tract in it without regard to the calls for adjoiners or for waters, if such calls conflict with the lines actually run upon the ground and returned.</p> <p>2. The calls in a survey for waters, such as springs, ponds and streams, must be considered in determining its Vocation. But if the surveyor has made a mere chamber survey, the calls for such waters constitute but slight evidence of their existence.</p> <p>3. The location of a survey duly returned to the land-office must be determined by its own marks on the ground, not by marks found upon the ground which were made prior to such survey, or by the calls of subsequent surveys.</p> <p>4. In ejectment for a tract of land, the location of which is disputed, the testimony of surveyors who went upon the ground many years prior to the inception of a party’s title and there found the lines and corners of a block, whereof said tract is a part, actually marked upon the ground, is clearly admissible, and is moreover of great weight.</p>

June 1st 1881. Before Sharswood, C. J./Mebcur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Error to the Court of Common Pleas of lycomvng county : Of May Term 1881, No. 6. Case, by M. P. Stack against William O’Hara.

<p>June 2d 1881. Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.</p> <p>Error to the Court of Common Pleas of Lyeommg county : Of May Term 1881, No. 128.</p> <p>Sci. fa. sur mortgage, by William G. Louden, administrator of Euphemia C. Louden, deceased, formerly. Euphemia O. Sweeny, against Thomas Waddle and R. W. Sweeny, administrators of Charles W. Sweeny, deceased. J. G. Calvert, guardian of William Sweeny, minor child of the said Charles W. Sweeny, deceased, was afterwards permitted to become a party defendant. Pleas, payment, payment with leave, &c., and set oá.</p> <p>On the trial, the following facts appeared : Charles W. Sweeny died intestate in Qctober 1869, leaving to survive him a widow, Euphemia C. Sweeny, and a minor son, William, of whom J. G. Calvert was appointed guardian after this suit was brought. His personal property proving insufficient to pay his debts, his administrators duly obtained an order of the Orphans’ Court authorizing them to mortgage, for the payment of debts, certain real estate of which he died seized, consisting of a lot of ground with two dwelling-houses, barn and out-buildings thereon, in the occupancy and possession of his widow, Euphemia C. Sweeny. His administrators thereupon borrowed from his widow the sum of $2,613.93, for which amount they executed to her a mortgage on the said premises, dated June 3d 1872, duly recorded, payable in one year, with interest, being the mortgage in suit. No part of the principal or interest thereof was ever paid.-</p> <p>In 1874 Mrs. Euphemia C. Sweeny married William G. Louden;</p> <p>In. 1874 Mrs. Euphemia C. Sweeney married William GL Louden.</p> <p>On August 14th 1876, Mrs. Euphemia C. Louden procured a policy of insurance in the HCtna Insurance Company, to be issued to her in her name (but without specifying her estate or insurable interest) on the above described premises, insuring the same from lire in the sum of $4,360, apportioned among the several buildings, in consideration of a premium of $26.16, paid by her.</p> <p>On April 26th 1877, the buildings insured were destroyed by fire, and after some negotiation or dispute as to the amount for which the insurance company was liable, the company on May 19th 1877, paid Mrs. Louden in full “compromise settlement” the sum of $3,737.58, less a discount of $56.53.</p> <p>At the time the policy was issued there was due on the mortgage about $3,250, debt and interest; at the time of settlement tor the loss, there was due on the mortgage about $3,400; so the amount received by Mrs. Louden from the insurance company exceeded the amount due on the mortgage.</p> <p>Soon afterwards Mrs. Louden erected upon the lot a brick building, the cost of which was variously estimated by the witnesses from $1,600 to $3,400.</p> <p>Mrs. Louden died in 1880, when the guardian of the minor child took possession of the premises. Her husband, William GL Louden, having taken out letters of administration on her estate, brought tins action on the mortgage August 20th 1880.</p> <p>The defendants claimed that the insurable interest of Mrs. Louden, covered by her policy, was her moHgage debt, and that, as she received more than that amount from the insurance company, the debt was paid and the mortgage satisfied.</p> <p>The plaintiff presented the following point, viz.: “ That under all the evidence in this case the verdict should be for the plaintiffs, for the whole amount of the debt and interest, of the mortgage for which the scire facias was issued.” Refused.</p> <p>The court charged the jury, inter aliabas, follows: “ Under the facts of this case, it seems to me that to determine the rights of the parties here is more a question of law than it is one of fact; it is more the duty of the court, therefor’e, to dispose of it than it will be your duty. The law applicable to this case is not settled beyond doubt by the authorities that have been cited here. The law relating to the rights of mortgagors and mortgagees in cases like this seems to be in considerable confusion, from the law cited before us; and, as I understand the eases cited in this State, the law in Pennsylvania differs from that in other States, notably in Maine and Massachusetts. But as wo are administering the law in Pennsylvania we must respect the decisions of our own courts, and must endeavor to decide our cases so that we may be within the line of the judicial thought of this State.</p> <p>“ Before coming, however, to the question of the law as to mortgagors and mortgagees, 1 shall dispose of this question of rebuilding this property upon the. lot. It is clear that Mrs. Lou-den put a house back on this property voluntarily. • There was nothing that would require her to build a house there. There was neither law nor equity that could be called upon to compel her to do any such thing, and we think that the value of this house that has been built is immaterial in this issue, for several reasons. First, if Mrs. Louden, or those who represent her, is entitled to all this insurance money and all this mortgage money, she does not claim anything for the property that has been built. If, on the other hand, she held that money — received that money from the insurance company in trust for her son — or if in law she was bound to apply it to the mortgage, and the surplus was to be held in trust for the estate of Charles W. Sweeny, why then, if trust funds, she had no authority to use them for building the house without due authority of law, and none is shown. And hence it is of no importance in this case, as we look at it, what the value of the buildings are that have been put upon this lot.</p> <p>“ When this policy of insurance was issued Mrs. Louden was the mortgagee of this estate to the extent, of her mortgage, $2,613 and some cents, and as the widow of Mr. Sweeny she was entitled, he having died intestate, to one-third of the rents, issues and profits of that real estate during her life. Now, in some States — Maine and Massachusetts — it is competent for the person who has a mortgage against real estate to take out a policy of insurance, and if the property burns down, the party holding the mortgage can recover all their insurance money, and then proceed with the mortgage and recover all the mortgage. In this State we think that the law is different, a'nd I believe that the case„s cited here — the case of Smith against the Insurance Company, 5th Harris 253, to the Insurance Company against Updegraff, 9th Harris 513, indicate a different view as the law in this State.</p> <p>“ In this State I believe the law to be that where the mortgagee insures the property covered by his mortgage, if it is insured .for the mortgage interest only, then he can recover the amount of money, but it must be applied to the satisfaction of the mortgage debt, hie may also insure the whole value of the property, and if he does he must ajaply so much of it as will pay the mortgage debt, and must account to the owner of the property for the surplus. That I believe to be the law in this State; so that, applying it to this case, Mrs. Louden could insure the whole of this property, and if she did insure the whole of it by this policy, then, if there was a loss, and she received a sum of money sufficient to satisfy this mortgage, and to compensate her for any loss-she might sustaiu on her other insurable interests, she was bound to satisfy the mortgage to the extent of the funds. She could have insured her interest alone — she could have recited that fact — and in that event she would not have had to account for anything to the owner of the real estate. If the sum was sufficient when she received it she would be bound to apply it. . . . She received $3,681.52, between $200 and $300 more than the amount of the mortgage due at the time she so got the money; so that, in our view, whether this insurance was on the whole property or whether it was on her mortgage and dower interest is no1- of much importance, as the loss was amicably adjusted by a compromise for a sum sufficient to cover the mortgage interest and a sum equivalent to a fair valuation of her dower interest.</p> <p>“ I am therefore of the opinion that the point submitted by the plaintiff must be negatived, and I direct you to find a verdict for the defendants in this case.”</p> <p>Verdict, accordingly, for the defendants, and judgment thereon. The plaintiff took this writ, assigning for error the refusal of their point, and the instruction to the jury to find for the defendants.</p>

June 2d 1881. Before Sharswood, O. J., Mercur, Gordon,Paxson, Trunkey, Sterrett and Green, JJ. Error to the Court of Common Pleas of Jjyeomvng cownty : Of May Term 1881, No. 137. Held: as this one is, as collateral security, it would be the duty of the defense to show that the note was held as collateral security, and second that the debt for which it was talcen as collateral was paid.

June 3d 1881. Before Sharswood, C. J., Meeoue, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Error to the Court of Common Pleas of Lehigh coimty / Of Jaunary Term 1881. No. 168. Assumpsit, by A. M. Kern in trust for Mary Ann Kern against Welcome B. Powell, assignee for tbe benefit of the creditors of William Kern.

<p>1. Where articles of agreement are entered into for the sale of land, the purchase-money to be secured and the deed to be executed and delivered within a fixed time, the vendees are not entitled, after having allowed more than the fixed period to elapse, to make such tender and demand, and, on the vendor’s failing to execute and deliver the deed at ■once, to rescind the contract. The vendees must in such case give the vendors full notice of their intention, and cannot rescind uutil after the expiration of a reasonable time for performance. .</p> <p>2. Where tenants in common execute a deed of land, the consideration for which is fully paid by the vendee, the delivery of said deed after the death of one of the tenants in common, by the other, or by some other person in whose hands it has been placed for that purpose, is a good and lawful delivery.</p> <p>3. Where real estate is conveyed to persons who are partners, the face of the conveyance determines as to judgment creditors the nature of the title. When, therefore, real estate is conveyed by articles of agreement to partners, as tenants in common, judgments entered against the individual partners will take effect as a lien on their interest in the land. No parol testimony to the effect that the property was bought for the firm, with firm assets, and actually used by the firm, will alter this result.</p> <p>4. The fact that one of the partners did not sign the articles of agreement will not be effectual to raise a resulting trust in the remaining partners for the firm, and so take the case out of the rule above laid down, where it appears that such non-signing partner was distinctly named as a vendee in the .artioles.of agreement, and that he ratified and approved the act of ills associates in entering into such articles.</p> <p>5. Where a decree for .specific performance is entered of a contract by said partners for the sale of said land, provision should be made for the payment .of the judgments which have been entered against the individual partners subsequent t© the date of their acquiring the equitable title, and prior to the date of their contract to sell the same.</p> <p>O. Where A. .agrees by .articles of agreement to execute to B. a good and sufficient deed for real estate, and thenB. agrees with O. to convey all his right, title .and interest in the land to him, C. is entitled to demand of B. conveyances which will vest as good, perfect and sufficient a title as A. agreed to confer upon B.</p> <p>7. Where a tract of land was originally surveyed in a block with other tracts, and from fixed monuments upon the ground, and other circumstances, it appears probable that there is a serious interference between the various tracts, the title will not be deemed good’and marketable so as to entitle a vendor thereof to a decree for specific performance of a contract to sell the same.</p> <p>8. Calls for adjacent surveys and the notation of waters are not the best evidence of a survey, but they are, nevertheless, corroborative, and may help to settle a doubt as to the true location of a tract of land.</p>

<p>1. Where two personal actions are instituted between the same parties for the same cause of action, a recovery of judgment in one extinguishes the right to recover judgment in the other.</p> <p>2. Where a suit is instituted by an attachment under the Act of March 17, 1869 (P. L. 8), and the defendant appears, makes defence and gives bond for the property attached, which is thereupon restored to him, the proceeding becomes thereafter a mere personal action.</p> <p>8. A. instituted a personal action against B., C. & Co., in which he recovered judgment. On the same day lie instituted proceedings by attachment under the Act of March 17,1869 (P. L. 8), against the same parties for the sime cause of action. B., O. & Co. appeared and defended in the latter suit, giving bond for the value of the attached property which was returned to them. Held, that the recovery of judgment against B., C. & Co. in the original personal action, constituted a bar to recovery against them in the proceedings instituted by attachment.</p>

<p>June 7th 1881. Before Sharswood, C. J., Meecur, Gordon, Paxson, Trunket, Sterrett and Green, JJ.</p> <p>Error to the Court of Common Pleas of Clinton county: Of May Term 1881, No. 167.</p> <p>Debt, by Thomas Davis, against the Home Insurance Co. of the City of New York, on a policy of fire insurance.</p> <p>On the trial, before Orvis, A. L. J., the following facts appeared : — On July 31st 1877, Thomas Davis obtained, through Chapman & O’Connor, local agents of the insurance company defendant, a policy of insurance of $1,000 upon his dwelling-house and contents, situated in Lockhaven, Pennsylvania.</p> <p>The policy contained, inter alia, the following clause:</p> <p>“ 9. Persons sustaining loss or damage by fire shall forthwith give notice of said loss in writing, to the company, and, as soon thereafter as possible, render a particular account of such loss, signed and sworn to by them.”</p> <p>On the night of duly 7th 1878, the house and its contents were totally destroyed by fire. Immediately after the fire, Davis had a conversation with Chapman, the local agent, in which the latter stated that he would send the company notice of the fire, and such a notice was in fact -sent by Chapman & O’Connor, the local agents.</p> <p>On October 4th 1878, a sworn statement and proof of loss was forwarded by Davis to the home office of the company, to which the special agent of the conrpany replied that it was not made out in due form and could not be accepted. He enclosed blanks to be filled up and returned, stating that upon receipt thereof, the same would have due attention. On December 12th 1878, amended proofs of loss were forwarded to and received by the company, to which the general adjuster replied that the same had been forwarded to the special agent, who had the matter in charge, and if he should require any further information touching the loss, he would call for it in due time. No further communication was received by Davis from’ the company or its agents. "The defendant objected to the admission in evidence of the above proofs of loss, on the ground that they were not made in time. Objection overruled; exception.</p> <p>Prior to the furnishing by Davis of the first proofs of loss, viz., on August 15th 1878, the company by its agent, Chapman, caused Davis to be arrested on the charge of burning his house, witli intent to defraud the insurance company, on which charge he was tried in the Quarter Sessions and found not guilty.</p> <p>Upon the tri'al of this cause, the company defendant introduced evidence, which they claimed tended to show that Davis set fire to the property.</p> <p>The court submitted to the jury the questions whether the proofs of loss were made as soon after the fire as .possible under all the circumstances of the case; and whether the property was fraudulently destroyed.</p> <p>Verdict and judgment for the plaintiff for $819.83. The defendant company took this writ of error, assigning for error the'admission in evidence of the proofs of loss, and the submission to the jury of the question whether they were made in time.</p>

<p>1. Where an attachment is issued under the provisions of the Act of March 17th 1869, Pampb. L. 8, the sheriff is not thereby authorized to attach tbe goods of any person other than the defendant. He may not seize the goods of a garnishee named therein, and if he does so he will be liable in trespass, no matter what the event of the suit may be between the plaintiff and tbe defendant.</p> <p>3. The bond required by section 1 of said act to be filed by the plaintiff prior to the issuing of the attachment enures as a security only to the defendant in the attachment and not to the garnishee. Hence the filing thereof does not justify the sheriff in seizing the goods of the garnishee.</p> <p>3. Where, in such case, the plaintiff directs the seizure of goods claimed by some person other than the defendant, the proper course for the sheriff to pursue is either to demand a bond of indemnity or to have an order made by’virtue of the provisions of the Act of January 30th 1871, Pamph. L. 13, upon the plaintiff and the claimant of the goods for an interpleader.</p> <p>4. A. lived with his sister B., in a dwelling and store belonging to B. He kept shop in the store, and from time to time B. loaned him money for which lie gave her judgment notes which were duly entered up. Subsequently, to secure his indebtedness to B., A. executed a bill of sale of the whole stock of the store to her, an inventory and appraisement being attached. The sign was changed from A.’s name to B.’s and all bills were made out in the name of B. A., however, continued to attend to the store, assisted by B. Certain creditors of A. having issued an attachment against him under the provision of the Act of March 17th 18C9, Pamph. L. 8, the stock of the store was seized upon by the sheriff and sold, whereupon B. brought trespass against him. Held, that the question was properly submitted to the jury whether or not there had been sufficient transfer of possession from A. to' B. to pass the title to B. as against the creditors of A.</p>

<p>1. Although any material parol alteration or modification of acontract under seal constitutes the specially part of a new verbal agreement which must be enforced by an action of assumpsit and not by an action of covenant, such is not the effect of a more waiver of a stipulation in said contract. In the latter case títere is no such alteration of the specialty as will constitute a new parol contract; hence, the proper remedy is an action of covenant.</p> <p>2. A. agreed by writing under seal to do certain work for B. & C. who by the same instrument agreed to pay him a sum certain therefor. D. was, by the terms of said instrument, to be judge whether the work was done according to contract. A. did the work, and B. on inspecting it, pronouncedifc satisfactory, with the exception of a few defects which he desired A. to remedy. B. then further promised A. that if those defects were remedied he should be paid. A. did remedy the defects, and not receiving his money from B. went to O. who told him he thought that B. would pay, but that he (0.) had sold out his interest in the matter. A. having after-wards brought an action of covenant against B. & C., Held, that defendants had, by promising to pay A. upon his remedying the specified defects, waived the stipulation in theconiract requiring Disapproval of the work, and that therefore plaintiff was entitled to recover without proof of such approval. Held, further, that the action was properly brought iu covenant and not in assumpsit.</p> <p>3. What was sufficient evidence to submit to the jury from which such a waiver as has been above described might be inferred, considered and commented on.</p> <p>4. A contract under seal to build dams upon a certain creek provided that the dams should be constructed “in a good and substantial manner, as flood dams should be built in such streams, cribbed, sparred, &c.” Held, that parol evidence was admissible to explain the understanding of the parties at the time of the execution of said contract as to how the dams were to be built.</p>

<p>1. In an ejectment to test the validity of a title acquired at sheriff’s sale, which is attacked on the ground, of fraud at the sale on. the part of the purchaser, evidence is inadmissible to show what occurred at a subsequent sheriff’s sale of the same defendant’s property in another county.</p> <p>2. A., being the purchaser at sheriff’s sale of a leasehold sold as the property of X., brought ejectment therefor against B., O., and D., partners, who claimed under a previous sheriff’s sale of the said leasehold as the property of the same defendant. After suit brought, A. died, and his administrators were thereupon made parties. B. also died, and his executors were brought in by scire lacias, but did not plead nor take any part in the suit. On the trial plaintiffs attacked the validity of the defendant’s title on the ground that said defendants had perpetrated a fraud at the sale. One of the defendants, 0., being offered as a witness to contradict the allegations of fraud by testifying as to what took place at the sale and subsequently prior to the death of either A. or B., — Held, that neither the death of A. and the devolution of his title upon his administrators, nor the death of B. and the devolution of his title upon his surviving partners, rendered C. incompetent to testify under that clause of the Act of 1809 which excepts from the operation of said act, cases where the assignor of a chose in action is dead. Held further, that the fact of B.’s executors being made parties to the record did not render O. incompetent to testify under that clause of the said Act which excepts from the operation thereof cases where executors or administrators are parties, because B.’s executors were unnecessarily made parlies and should not properly have appeared upon the record. But held, that under the provisions of the last mentioned clause of the said Act the substitution of A.’s administrators as parties to the record did render C. incompetent as a witness, and that therefore his evidence was properly rejected.</p> <p>3. In ejectment against partners it is improper and unnecessary if one partner die pending the suit to make his executors parties thereto. The title devolves upon the survivors, and the ejectment should be prosecuted against them alone. <</p> <p>4. Neither party to a suit can by causing improper parties to be placed upon the record take from his opponent the right to be examined as a witness, if otherwise entitled thereto.</p> <p>5. Semble, that administrators in bringing ejectment for a leasehold, alleged by them to be the property of their intestate, are not bound to set forth their representative character on the record, but it is perfectly proper for them to do so.</p> <p>6. The purchase of a judgment by another judgment creditor at a judicial sale, with an understanding or agreement that the vendor shall not bid, does not render a sale of the property to the vendee of the judgment absolutely void, without regard to whether a fraud was contemplated or committed by him. It is for the jury to say from all the circumstances whether a fraud was contemplated or committed. If it was, the sale is void.</p> <p>7. The same doctrine applies where it appears that the purchaser at a judicial sale has represented to those present that he proposes to buy for the defendant, and so prevents competition, or where he produces a like result by promising to pay claims against defendant. Such action on the part of the purchaser does not amount to fraud per se. It is for the jury to say whether the statement and promises made by him were false or true. Only in case they were false was his conduct fraudulent and the sale void.</p> <p>8. Where a judgment creditor at a judicial sale prevents others from bidding by representing that he purposes to buy the property in, reimburse himself from the profits thereof, and then hand it over to the defendant, the fact that two months after the purchase by him he fails, on application of said defendant, to hand over the property, he not having yet realized therefrom his claim against defendant or had tender made him by defendant of the full amount of said claim, is not sufficient evidence to submit to a jury from which they may infer that the representations made at the sale were fraudulent and untrue, and that therefore said judgment creditor’s title is void.</p> <p>9. Semble, that where the administrators of the plaintiff in an action have been substituted on the record they should properly on the trial of the cause produce their letters of administration. But if the defendant desires to take advantage of their failure so to do, he should present to the judge a point requesting him to charge that plaintiffs are not entitled to recover on account of that omission. If he present a point to the effect simply that plaintiffs cannot recover, without assigning a reason, which the judge refuses, the supreme court will not reverse on error.</p>

<p>June 10th 1881. Before-Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ., Green, J., absent.</p> <p>Error to the Court of Common Pleas of Northumberland, county: Of May Term 1881, No. 22.</p> <p>Case, by Isaac Albert and Franklin Lahr, against the Northern Central Railway Company, to recover the value of a sawmill and lumber, destroyed by lire alleged to have been caused by the defendants’ negligence.</p> <p>On. the trial, before Rockefeller, P. J., the following facts appeared : — The plaintiffs’ mill was situated so that its nearest point was at the distance of 109 feet from the railroad. On the night of June 11th 1874, it was destroyed by fire. The plaintiffs alleged that the tire was caused by sparks of an unusually lai’ge size thrown out by a locomotive of the defendant company. There was no direct evidence that the fire was caused in this manner; but the testimony on both sides indicated that if the fire was so caused, the sparks came from either one or the other of two locomotives (Nos. 21 and 126) which drew the first and the second sections of the “ Anchor freight train ” on the night in question. The sections were running about a mile and a half apart. Several witnesses testified that these two engines attracted their attention, about the time and place in question, because of the unusual quantity of fire and sparks thrown from their stacks. There was a strong wind blowing from the direction of the railroad towards the mill. Soon after the second section passed the mill, the fire was discovered.</p> <p>The saw-mill had been working, driven by a stationary engine, up to the usual time of quitting work on the evening in question. Two brakemen on the second section testified that they saw a light in the engine-house or boiler-room of the mill when they passed it. Other witnesses testified that they had passed the mill a short time before the fire and saw no light or lire. The defendant proved that the two engines in question were provided with spark-arresters of the most approved construction, which were examined at the shops of the company both before and after the run of June 11th 1874, and were found to be in perfect condition; Their employes also testified that there was not any unusual or improper emission of sparks from either of the said engines on the night in question.</p> <p>The plaintiffs in several offers proposed to prove that on the next morning after the fire, cinders of the size of a hickory nut and larger were found on the ground between the railroad and the mill, which had been thrown from the defendant’s locomotives ; that within a month previous to June 11th large sparks and live coals were thrown from locomotives, passing the plaintiffs’ mill about the same hour in the night, of such size as would not pass through any approved spark-arrester, some of them being over one inch in diameter, and thrown from one hundred to two hundred and fifty feet from the railroad ; that one of these was thrown a distance of ninety feet over the plaintiff’s dwelling house and set fire to his premises, and others set fire to buildings, woods, fences, grain and grass for a long distance in the neighborhood of the plaintiff’s mill. Objected to, because the offers are not confined to the night in question, nor to the two locomotives, one or the other of which the plaintiffs claim caused the fire. Objection sustained; exception. (Assignments of error 1 to 5.)</p> <p>The defendants, for the purpose of contradicting the testimony of a witness for the plaintiff, who had testified that he saw the fire from a particular point of view, offered to show that, owing to an intervening embankment of the railroad, it would have been difficult if not impossible for him to h'ave seen it from that point. Objected to. Objection overruled. Exception. (Sixth assignment of error.)</p> <p>The defendants, for the purpose of showing that the title to the mill property was not in Albert and Lahr, at1 the time of the fire, but that it belonged to the plaintiff Albert, and one Bower, trading as Albert & Bower, offered in evidence the record of a judgment in a case of Albert and Bower v. The Columbia Insurance Company, in the court of Common Pleas of Northumberland county. Objected to. Objection overruled. Exception. (Seventh assignment of error.)</p> <p>In answer to several points submitted by the defendants, the court instructed the jury, substantially, that the mere fact that sparks were thrown from the engines, was not evidence of negligence; that even if the- mill was burned by sparks from an engine passing upon the railroad in the regular course of the business of the company, such fact would form no ground for an inference or presumption by a jury that such burning was caused by negligence, nor is such burning any evidence of negligence on the part of the railroad company or its servants ; that if the defendant’s engines were provided with the best approved furnaces, smoke-stacks and spark-arresters, which were in good order, and if the engines were properly run and managed, the defendant company would not be liable for the loss, even though the saw-mill was burned by fire accidentally issuing from such engine or engines ; that, in such case, the owner of property near a railroad must run all the risks from a proper and careful use of the road; and if a loss accidentally occurs, he has no remedy against the railroad company.</p> <p>The court submitted to the jury the question of the defendant’s negligence, and in the general charge said, inter alia : “ If the plaintiffs have satisfied you from the evidence in this case that their mill was set on fire and burned by the defendant’s locomotives, still they must go further and prove the existence of the fault or negligence alleged, and that it resulted in the damage</p> <p>to them of which they complain......As I have already</p> <p>stated, even if you do decide that this mill and other property was destroyed by fire emitted from either of these locomotives, still there is another question to be determined by you before you can find a verdict in favor of the plaintiffs, for it makes no difference whether this -mill was burned down by the defendant’s locomotives or not, if there was no negligence, no mismanagement, no carelessness on the part of the railroad company, or its employés, in running these locomotives.</p> <p>“ If the plaintiffs allege that the defendant, the railroad company, had not sufficient spark-arresters or appliances to prevent, an unusual and unnecessary quantity of sparks from being emitted from their locomotives, the law requires, as I stated, that they should prove it, but they are not bound to prove it by positive or direct testimony. That fact may be inferred like any other fact. We think we are bound to submit that question, to be determined by you from all the evidence in the case, and the only evidence that I now recollect of, is merely the testimony as to an unusual quantity of sparks and fire thrown by these locomotives on the occasion of the burning of the saw-mill and other property. If you can reasonably and fairly infer from this evidence that the defendant’s spark arresters were not in order, or that they had not spark arresters on, or, if they had, that they were out of order, and not sufficient to prevent the emission of sparks, you have the right to so find. Whether I am right in submitting this question to you to be determined from this evidence alone, I am not clear, but I say to you at this time that I do submit that question to you to be determined by you from this evidence. In the case of Hendrickson v. The Reading Railroad Company, there was evidence that the locomotives were run at an unusual speed, and that they set fire to grass and fences, as well as the plaintiff’s property along the line; and all this was submitted by the court as evidence of carelessness and improper running on the part of the employés of the railroad company. But we have no such evidence in this case, you only have, the evidence as to these locomotives having emitted an unusual amount of fire and sparks, as testified to by tbe plaintiffs witnesses.”</p> <p>Yerdict and judgment for the defendant. The plaintiffs took this writ of error, assigning for error the several rulings on the admission of evidence, the answers to defendant’s points and the charge of the court, as above set forth.</p>

June 13th 1881. Before Mercur, Gordon, Trunkey, Stek- • rett and Green, JJ. Sharswood, O. J., and Paxson, J., absent. Error to the Court of Oyer and Terminer of Clearfield, coimty: Of May Term, 1881, No. 68. Indictment of John A. Nevling for the murder of Samuel Pennington.

<p>June 13th 1881. Before Sharswood, C. J., Mercur, Gurdon, Panson, Trunkey, Sterrett and Green, J J.</p> <p>Writs or error to the Court of Oyer and Terminer and General Jail Delivery of Snyder county: Of May Term-1881, Nos. 92, 93, 94.</p> <p>Emanuel Ettinger, Jonathan Moyer, Israel Erb, Uriah Moyer and Ellen Moyer were indicted for the murder of Gretchen Efintzler. Uriah Moyer and Ellen Moyer were not arrested. Separate trials were granted to eaeli of the prisoners,</p> <p>all of whom pleaded not guilty. Each of the prisoners was found guilty of murder in the first degree, and they severally and respectively removed the records to this court by writ of error. The only specifications of error in each case were to the rulings of the court below upon the admissibility of certain evidence offered by the Commonwealth and objected to by counsel for the prisoners. The voluminous testimony in each case, as reported by the stenographer, was brought up with tile records, but was not printed in full in the paper books. Portions of the testimony in the Ettinger case were printed, but in such a confused and erroneous manner as to prove untrustworthy and practically useless. In view of the gravity of the cases, the original testimony attached to the record was examined and considered by the court, but as it has beSn returned with the records to the court below, it is not available to the reporter. The separate opinions of this- court (infra) recite the material portions of the testimony, the admission of which was assigned for error in each case; and the following condensed statement of the general facts proved in the cases, collated from the paper books on both sides, is deemed sufficient for an intelligent understanding of the points decided.</p> <p>John Kintzler and Gretchen, his wife, were German people, who owned and lived in a one-and-a-half-story log house and a few acres of mountain land in a wild and secluded location in-Adams township, Snyder county, Pennsylvania. They lived almost entirely to themselves, made no friends, and repelled social intercourse. They guarded their premises, which they scarcely ever left, by watch-dogs and firearms. They gained the reputation of possessing and hoarding money, which they kept in a box buried in the ground under where the bed stood, covered by a trap-door in the floor.</p> <p>On Saturday night, December 8th 1877, their house was burned, which fact was first discovered between four and five o’clock on the following morning by Jacob Schraeder, their nearest neighbor on the east, who with members of his family immediately went to the spot. They found the house almost burned to the ground and saw part of the remains of two human beings lying in the fire. The remains of one were removed from the flames and recognized as the body of John Kintzler. The remairis of the other could not be identified. The bones were collected and buried with the remains of the body of John Kintzler in a box. Certain indications negatived the theory that the fire was accidental and suspicion attached to Israel Erb, who was Kintzler’s nearest neighbor on the west, and who was known to have had' a grudge against Kintzler. Ettinger, Uriah Moyer, and one Bickliart were also suspected of complicity in the crime with Erb, and were arrested, but were discharged on .habeas corpus for want of sufficient evidence against them.</p> <p>About six months afterwards, in June 1878, Mary Hartley, a girl of about eighteen years of age, a native of that locality, well known to Ettinger, Erb and the Moyers, went to J. G-. Moyer, a respectable storekeeper, and told him that she had something to tell him in private; that her mind was so disturbed that she could not rest until she told it; she then gave in detail the following statement, — which she subsequently testified to on the trials :</p> <p>On the night of the 8th of December 1877, about nine o’clock, she started from the house of Jonathan Moyer, about three miles from Kintzler’s,'in company with Jonathan Moyer and his wife Ellen to go to the house of Israel Erb for the purpose of having Ellen Moyer measured for a pair of shoes ; on the way, they met Uriah Moyer, who joined them. The party soon afterwards met Israel Erb in the woods near the Kintzler premises, who stated he was out coon hunting. After proceeding a short distance, they reached the fence of Kintzler’s property. The men crossed the fence, telling the two women to remain at the fence, as Kintzler had cross dogs, and he might shoot. One of the men tied up one of the dogs, then kindled a fire on a flat stone in front of the door, and with an axe cut a hole in the door, reached in and unfastened it and went into the house. The witness and Ellen Moyer then crossed the fence and went to the house. Mary Hartley testified that she saw John Kintzler lying on the floor near the stove, and that she saw Ettinger strike old Mrs. Kintzler on the head with a club and she fell over on her back. Ettinger, Erb, and Jonathan Moyer then secured the money-box from the hole under the floor, carried it out of the house, and by the light of burning pine divided the money. Ettinger and Jonathan Moyer then went to a small shanty used by the Kintzlers as a stable, carried leaves from the stable to the house, scraped up some of the blood from the floor into a piece of crock, and poured on the ground in the yard; then washed the crock and threw it into the woods. They then fired the house and the whole, party left. They reached Jonathan Moyer’s about three o’clock on the morning of December 9, where they went to bed.</p> <p>In order to corroborate the testimony of Mary Hartley, the Commonwealth caused to be exhumed and produced on the trial some of the bones, which had been buried, and called several physicians, who testified that one of them at least was that of a human being, which corresponded in size with the stature of Gretchen Kintzler, and that, from its ossified condition, it belonged to a person well advanced in years. It was in evidence that Gretchen Kintzler was a small woman, weighing about one hundred pounds, and was about sixty-eight years of age.</p> <p>The Commonwealth also produced several witnesses, one of them a detective, and the others, fellow-prisoners of Ettinger, in the penitentiary, who testified that Ettinger made voluntary confession to them of the part which he took in the murder, and stated that Mary Hartley had previously sworn to the truth in all the details.</p> <p>The particular testimony in each case, the admission of which forms the separate specifications of error, is fully referred to in the separate opinions of this court.</p> <p>The three cases were argued together.</p>

<p>June 14th 1881. Before Merque, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.</p> <p>Appeal from the decree of the Orphans’ Court of Franld in county : Of May Term, 1881, No. 131.</p> <p>This was an appeal from the decree of the said court, directing that the account of John J. Butterbaugh (the appellant) as trustee under the will of Jacob Butterbaugh, deceased, be so stated that certain expenses and charges, paid by the trustee, should be charged to the corpus of the trust fund and not to the annual income.</p> <p>Jacob" Butterbaugh, the testator, by his will, proved April 11th 1871, directed as follows: “ It is my will, and I do hereby so direct, that the shares of my daughters, Mary Hollinger and Susan Stroek, in my estate, shall be put to interest, and the same paid to the said Mary and Susan, annually. But it is my will, that if their husbands should die before them, then, and in that case, their respective shares shall be subject to their immediate use and control. But in case of the decease of the said Mary Hollinger or Susan Stroek, before their husbands, then, and in that event, it is my will, that their respective shares in my estate shall go to their children on their attaining the age of twenty-one years.”</p> <p>The testator appointed no executor or trustee and John J. Butterbaugh was appointed administrator, c. t. a. and the (Orphans’ Court also appointed him trustee under the will. In his account, filed as trustee as to the share of Mary Hollinger, he claimed credit, inter alia, for the following items: Counsel fee, register and clerk, $20.35 ; taxes paid on money at interest, $46.01; allowance to accountant, $24; one third costs of audit, $12.77; tolalj $103.13. The account was referred to an auditor and upon exceptions to his report, the court, in an opinion by Rowe, P. J., decided, inter alia, as follows:</p> <p>“The account ought to be so stated that the expenses and charges will come out of the fund, and not out of the annual interest, for Mrs. Mary Hollinger is the primary object of the testator’s bounty. It is in the hands of a trustee only to protect it from the husband. It is intended that she shall have all possible benefit from the fund, consistent with its being in the hands of a trustee. She is to have the interest annually without deductions, for the principal is not to be preserved for some one else.”</p> <p>■ The said items, amounting to $103.13, were accordingly charged against the principal of the trust estate. The said trustee thereupon took this appeal, assigning for error the decree that the said sum of $103.13, should be paid out of the principal instead of out of the income.</p>

<p>June 14th 1881. Before Mercur, Gordon, Paxson, Trunket, Sterrett and Green, JJ. IBiiarswood, C. J., absent.</p> <p>Error to the Oourt of Common Fleas of Olearfield coimty : Of May Term 1880, No. 186.</p> <p>This was an action of trespass, brought March 24th 1873, by George Goodlander against George Kramer, "William E. Beil and others, to recover double and treble damages for cutting and converting timber trees on land claimed by the plaintiff.</p> <p>In liis declaration, filed December 3Íst 1878, the plaintiff averred that the trespass was committed upon a portion of a tract of land, being warrant and survey No. 1434, June 4th 1793, in the name of David Kennedy, Esq., to which tract the plaintiff showed title in himself.</p> <p>The defendants admitted that if the location of the David Kennedy tract, No. 1434, as claimed by the plaintiff, were the true one, the timber bad been cut within its lines. But they claimed that the true location of the David Kennedy tract was one tract to the eastward from where the plaintiff claimed. They further claimed that even if the plaintiff’s location were correct, }7et they were not liable to treble damages, because the plaintiff had always, until after suit brought, recognized the location of the David Kenned}7 tract as claimed by defendants, and had by bis acts invited or acquiesced in and consented to the defendants’ cutting timber on all but a very small portion of the land whose location is now disputed. The principal question in the cause, was as to the true location of the David Kennedy tract.</p> <p> </p> <p>On the trial, before Cummin, P. J., the evidence developed the following facts:</p> <p>Tract No. 1434, in the name of David Kennedy, Esq., was a survey made June 4th 1793, in the form of a parallelogram. It calls for the Ann Kennedy, No. 305, on the north. The official draft of the survey indicated that the east line of the Ann Kennedy, No. 305, continued to the south was the east line of the David Kennedy, 1434. This survey called for vacant land on .the other three sides. It called for a beech on the southwestern corner and for posts on the other corners.</p> <p>No. 5862, Jonathan B. Smith, was a rectangular survey made December 8th 1808. Its northern portion calls for the David Kennedy, 1434, on the east, and for another David Kennedy, No. 386, a survey of 1785, on the west, thereby filling up the intervening space. Its other calls for older surveys on its north and south, were as shown in the accompanying plan. In the angle formed by its northern and western lines, a serviceberry is called for, which was found and identified. A birch called for at its south-west comer was also identified.</p> <p>Between 1793 and 1873, several surveys of adjoining or neighboring tracts recognized the location of the David Kennedy tract, No. 1434, to be south of the east portion of the Ann Kennedy, 305, the east boundary of the two tracts being in the same line. The location of the Ann Kennedy, No. 305, and-of the other David Kennedy tract, 386, is not disputed. In 1854 and 1855, Frederick Zeigler obtained warrants and surveys for the land bounded on the north by the Ann Kennedy, No. 305, on the east by the David Kennedy, 1434, on the south by the Johnathan B. Smith, 5862, and on the west by the Dr. "William Smith, an old survey of 1785.</p> <p>The defendants, Kramer and Bell, obtained title to the eastern and northern portion of the Jonathan B. Smith tract, by deed dated July 27, 1859.</p> <p>The plaintiff’s (Goodlander’s) title to the David Kennedy, No. 1434, was under a tax sale of said tract as unseated land, made for taxes of the years 1862 and 1863, on June 14th 1864.</p> <p>Goodlander subsequently discovered that the Jonathan B. Smith survey, in extending across from David Kennedy, 386, to David Kennedy, 1434, had an actual excess of about 134 perches over its official width (the official distance being 192 perches, and the actual distance about 326 perches). If limited to its official width, the result would be to leave a piece of vacant land between the east-line of the Jonathan B. Smith and the. west line of the David Kennedy, 1434. On this theory, the plaintiff, Goodlander, obtained a warrant and survey in 1870 for this tract as vacant land, being 130 perches wide from east to west, and 445 perches long from north to south. Its calls were, on the east for the David Kennedy, 1434, and the Josiah W. Smith, on the south for the Henry Beck, 5618, on the west for the Jonathan B. Smith, 5862, and on the north for the Frederick Zeigler. In making this survey a new line was marked by the surveyor as its western boundary, forming the division line between it and the Jonathan B. Smith. This new line, which Goodlander regarded as his western boundary, was at the distance of forty perches east of an old line of 1793, which was at that time unknown to any of the parties to this suit, but which was subsequently discovered as hereinafter mentioned.</p> <p>■In the fall and winter of 1872, Kramer'and Bell had cut all the timber on the eastern portion of the Jonathan B. Smith tract, owned by them up to Goodlander’s new western line. They directed their jobber, one Pentz, to continue cutting west of that line. To this he objected, having heard (as he testified on the trial) that Goodlander claimed up to that line under a recent warrant. Kramer and Bell, however, claiming that the Jonathan B. Smith tract extended to the David Kennedy, 1434, on the east, directed him to-disregard the Goodlander survey of 1870, which they claimed was laid on their land, and he accordingly crossed the line and began to cut timber on the Good-lander survey.</p> <p>The plaintiff thereupon brought this suit, claiming three-fold damages. The defendants were arrested and held to bail. In the affidavit for a capias, filed March 24th 1873, the plaintiff alleged the trespass to have been committed, “ on tract surveyed in name of George B. Goodlander, situate in Brady Township, adjoining No. 1434,” etc. No declaration was filed until December 31st 1878.</p> <p>In the meantime, a careful examination of the country was made, and in August 1873, Thomas W. Moore, a surveyor, found a north and south line of 1793, about forty perches west of the Goodlander line of 1870, and about 173 perches west of the recognized location of the western boundary of the David Kennedy, No. 1434. This line of 1793 extended for several miles. Moore at once claimed this line to be the western boundary of the David Kennedy, No. 1434. The effect of this was to move that tract 173 perches west of its accepted location and to leave the land it had been supposed to cover unoccupied. For this land, Moore immediately took out a warrant, on which survey was made and returned.</p> <p>Immediately after this, the plaintiff, Goodlander, adopted Moore’s theory, and claimed the line of 1793 as the western boundary of the David Kennedy, 1434. The effect of this was to make that tract cover, not only all the northern portion of the Goodlander survey of 1870, but also to extend it between forty and fifty perches further to the wrest, thereby covering a strip of land which had theretofore been recognized by Goodlander as a part of the Jonathan B. Smith tract, on which strip the defendants had, without objection, cut some three hundred thousand feet of timber. This strip is shaded in the plan.</p> <p>The plaintiff afterwards, on December 31st 1878, filed his narr. declaring against the defendants for cutting timber upon a certain tract of land, “ bounded on the north by lands occupied by Zeigler, et. al., on the east by lands claimed by Thomas W. Moore, on the south by other lands of the plaintiff and B. M. IToover, and on the west by a survey in the name of Jonathan B. Smith, the said tract containing four hundred and thirty acres, more or less, and being warrant and survey 1434, in the name of David Kennedy, Esq., said tract being owned by said plaintiff.”</p> <p>It further appeared, at the trial, that Jacob Kuntz became the owner of the Jonathan B. Smith survey in 1849; that the owners of that survey always claimed that it extended from No. 386 to No. 1434, giving No. 1434 its recognized location; that upon this location of No. 1434, at the southwest corner where a beech -was called for, there was still standing in 1849, a dead tree, marked as a corner, which Kuntz thought was a beech, and a pitch-pine marked as a witness ; that there also was a line running from this corner north; that Kuntz bought the Smith survey as reaching to that boundary, and so claimed and held it. Kuntz also owned the tract No. 386. He put together and used as one body of land a portion of the eastern end of No. 386, and the eastern part of the Jonathan B. Smith survey. This body included all that part of the Smith survey intervening between the two Kennedy surveys. On it was a saw-mill, a house and several acres of cleared land. These improvements were kept up by successive owners as one property. The body of land appeared to have been claimed continuously and used by the successive owners as one property.</p> <p>In 1859, Kramer purchased said property ; he went around the land and saw its boundaries as claimed by the defendants in this suit. He purchased to those boundaries; but it does not appear that the distances were mentioned or the quantity calculated from actual measurement. The amount mentioned in the deeds and tax-books was seven hundred and thirty-five acres. This body of land was assessed on the seated list for 1862-1863,. as seven hundred and thirty-five acres and saw-mill, and the taxes were paid in the seated lists of those years. The land was on the unseated list prior to 1860, but in that year Kramer put put it on the seated list. In 1870, Kramer sold to Bell; a survey was then .made and the tract found to contain one thousand and twenty-t.wo acres net measure, which wmuld be nine hundred and sixty acres with the usual allowance. After this, the assessment was changed to nine hundred and sixty acres. Before this, the parties did not know the number of acres. In 187l, Bell conveyed back to Kramer an undivided half. After this, Kramer and Bell continued to hold together.</p> <p>The defendant presented, inter alia, the following points :</p> <p>“ 2. The plaintiff’s warrant, survey and patent, in his own name, in 1870, taking up the excess of the J. B. Smith at the east end, as vacant land, and calling for the D. Kennedy, No. 1434, on the east, and for the J. B. Smith survey on the west, together with his claim under his said survey and patent, was inconsistent with the claim he now makes to the land lying west of the said Goodlander survey, on what was represented on that survey as the J. B. Smith tract. This, with the record and the other evidence in the case, constitutes such a recognition of the J. B. Smith title, as to debar the plaintiff from recovering of double or treble damages, under the act of 1824, for the timber cut west of the Goodlander warrant. It is not such a cutting without the consent of the owner as is contemplated by the act of 1824.”</p> <p>2 3. Especially is this true, when it further appears in evidence that the defendants claimed and held under color.of the J. B. Smith title, the land immediately west of the Goodlander warrant, in connection with another smaller piece of an adjoining survey, as one property ; on which they, at and before the time the said Goodlander survey was made, as well as up to the bringing of this suit, had various buildings, and from six to twenty acres of cleared land, and a tenant residing there ; a part of which improvements were on the said J. B. Smith survey.”</p> <p>Answer. “ These two- points are connected very closely together, and we answer them together. We decline to charge you, as requested in those points. The Act of Assembly declares that persons cutting timber without the consent of the owner, shall be liable to pay double and treble damages, as we have before read to you, and it is for you to say whether this cutting was done with or without the consent of the owner. It is a question of fact for you.” (Second and third assignments of error.)</p> <p>lt 4. Under the facts in evidence of the character referred to in the last two preceding points, the plaintiff cannot maintain this action for the timber cut by the defendants, or under their order, before this suit was brought, west of the line of the G. B. Goodlander survey.” Answer. “ We decline to charge you as requested in this point; the plaintiff claims to be the owner of the tract in the name of David Kennedy, No. 1434, and that the timber was cut upon that tract. If you find this claim to be true, then the lines- of the G. B. Goodlander survey cannot qualify the survey [against your finding’.] It is of no importance where the lines of the Goodlander survey are, if you find the facts as stated.” (Fourth assignment.)</p> <p>“6. If the location of the David Kennedy survey, as claimed by the defendants, has been recognized as the proper one, up to and about the time this suit was brought — by surveyors and others, whose business or interests had led them to look for it — ■ this constitutes evidence bearing on the location of the survey, especially after the lapse of so great a time, as to render it difficult to prove the existence of the original landmarks.”</p> <p>Answer. “ We decline to charge you as requested in this point. The question of this location of this tract of land is for you. In determining it, you must take all the evidence in the cause, and all the circumstances surrounding it; everything that has been brought before you here is for your consideration. You must give it such weight as you deem proper.” (Fifth assignment.)</p> <p>“ 7. If, as testified by George Kramer, in 1862 and 1863, the land in dispute, on which this timber was cut, was within defined boundaries of a body of land on the seated list, held by George Kramer, one of the defendants, upon which body of land there were improvements, and the taxes were paid for those years ; then this land was discharged from taxes, and George B. 'Good-lander got no title by the treasurer’s sale of 186é, and cannot recover in this suit.” Refxised. (Sixth assignment.)</p> <p>The court in the charge said to the jury, inter alia:</p> <p>“ A man who cuts timber is bound to know that he is cutting on his own laird, or that he has the right or liberty from the owner to cut — otherwise he cuts the timber at his peril. He is bound to know the provisions of this Act of Assembly. It makes no difference whether he thought he was on his own land or not, or cutting his own timber or not; he is bound to know whether he is cutting his own or not. This is the provision of the Act of Assembly, and it is binding upon you as it is upon me.”</p> <p>Verdict and judgment for the plaintiff for $6,963.18. The defendants took this writ of error, assigning for error the answers to their points and the portion of the charge, as above given.</p>

<p>1. Where the location of a traot of land is in dispute, declarations of a deceased surveyor, made by him when on the ground and at the time of examining the lines of the tract, are admissible in evidence. The more careful and thorough such surveyor’s examination was, the greater the weight which should be attached to his declarations.</p> <p>3. In determining whether or not certain land is included within a seated traot, upon which taxes have been paid, not only will the quantity of acres included in the assessment betaken into account, but also all the other evidence in the case, under proper instructions from the court.</p> <p>3. A tax sale of land as unseated will transfer qo title to the vendee, when, as a matter of fact, the land sold constitutes part of a seated tract, upon which the taxes have been paid.</p>

<p>June 15th 1881. Before Sharswood, C. J., Mercur, Gordon, Paxson, Trünkey, Sterrett and Green, JJ.</p> <p>Error to the Court of Common Pleas of Olearfield county : Of May Term 1881, No. 78.</p> <p>This was an action of ejectment brought July 24th 1877, by Jonathan Boynton against Thomas Parks and the Olearfield Fire Brick Company for a tract of land containing about ten acres, represented by the shaded strip on the plan on next page.</p> <p>On the trial before Mayer, P. J., the following facts appeared : The Charles Stewart, John Vaughn and’William Lewis tracts were surveyed as one block on June 17th 1793. Its northern, southern and western boundaries were established by the corners and lines ofjtóder surveys of 1792, tlie location of which is undisputed. TTie Stewart, Vaughn and Lewis tracts* called for each other, but their interior division lines were not • run or marked on the ground. The total official distance of the three surveys along the western line is 625 perches. The distance by actual measurement is 637-|~ perches, thus leaving a surplus of 12£ perches. The eastern boundary of the John Vaughn and William Lewis was, in part, the Jane Campbell, surveyed in 1785, as shown in the plan, the location of which is not disputed. The Vaughn called for the northwest corner of the Campbell, and the Lewis called for its southwest corner, and both called for a portion of its west line. The official distance of the west line of the Campbell is 222 perches; the distance by actual measurement is 233.7 perches.</p> <p>The plaintiff showed title to a tract of land, being the southwestern part of the John Vaughn tract, “ Beginning at a post on the southwest corner of the [John Vauglm] tract and the northwest corner of survey in the name of William "Lewis, thence along the dividing line of the William Lewis and John Vaughn surveys 195 perches to a post, thence along and by Jane Campbell survey north,” &c.</p> <p> </p> <p>The defendants showed title to a tract, being the northwestern part of the William Lewis tract, adjoining the John Vaughn survey on the north. The defendants and their predecessors in title, had occupied, cut timber, and removed fire clay from the strip in question for a long time prior to the bringing of this action.</p> <p>The plaintiff claimed, that in the absence of any marks on the ground showing that the interior division line had been run between the John Vaughn and the William Lewis at the time of the survey, and in the absence of evidence of an agreement between the owners of said two adjoining tracts fixing the division line, the surplus of 12-J perches, in excess of the official call for the western line of the Stewart, Vaughn and Lewis block, should be apportioned equally between the three tracts; whereby •the division line between the Vaughn and Lewis tracts would be the southern line of the tract in dispute (marked in plan b b). The plaintiff further claimed that it was within the province of the court to determine the location of the said division line, by apportioning the said surplus equally between the said tracts.</p> <p>The defendant Parks showed that he entered into possession of his tract in 184.-6; that in 1849, he caused a survey to be made by one Cuttle, who ran the division line between the Vaughn and Lewis tracts along the northern line of the tract now in dispute (being the line marked on the plan a a). This line was marked on the grpund, and its location is undisputed. While there was no evidence to show that the then owners of the Vaughn tract knew of the running of this line in 1849, yet the defendant proved that he and his assignees of timber rights thereafter cut timber up to that line and used the land as farmer’s usually use their woodland, for fire-wood and fencing, without molestation or complaint from the then owners of the adjoining part of the Vaughn survey, nor until the plaintiff derived title by a sheriff’s sale in 1876. The defendants contended that by such acquiescence, the line of 1849 became established as a “ consentable line,” although the predecessors in title of the plaintiff did not directly join in making it.</p> <p>It further appeared in evidence, that if the southwestern corner of the Jaue Campbell tract were adopted as the starting point, from which to locate a division line between the Vaughn and Lewis, that line would be where the plaintiff claimed, viz., the southern line of the tract in dispute; but that if the northwestern corner of the Jane Campbell tract be taken as the starting point, the division line between the Vaughn and Lpwis would be located north of the.liue of 1849, which the defendants claimed.</p> <p>The court, at the request of plaintiff’s counsel, instructed the jury that there was no sufficient evidence to establish a consentable division line, and that the verdict must be for the planitiif. Yerdict accordingly for the plaintiff.</p> <p>The plaintiff subsequently took a rule to show cause why an amended description of the tract in controversy should not be filed, which rule the court, after argument, made absolute, saying, in an order filed: “It appearing to the court that this</p> <p>amended description conforms to what was tried by the jury and found by the verdict, this amendment is, therefore, allowed and ordered to be filed.”</p> <p>Judgment having been entered on the verdict the defendants took this writ of error, assigning for error, inter alia, the action of the court in directing a verdict for the plaintiff and in allowing the amendment of the description after verdict.</p>

<p>1. A. conveyed to B. property of considerable value by a deed in fee simple, in the body of which the consideration of the conveyance was expressed to be ‘'valuable and sufficient.” Annexed was a receipt signed by the grantor for the sum of one hundred dollars. Said deed was regularly signed, sealed, acknowledged, delivered and recorded. Held, that the mere fact that the sum receipted for was inconsiderable as compared with the true value of the land conveyed, was not of itself sufficient to puta subsequent bona fide purchaser for value from B. upon notice of the fact that there was a secret trust for the benefit of A.</p> <p>2. In order to show by parol that a deed absolute upon its face is a mortgage, the proof must be clear, explicit, and unequivocal.</p> <p>3. Where a bill in equity is filed, whereby it is sought to have a deed absolute on its face decreed a mortgage, and the complainant and respondent directly contradict each other in their testimony as to what was the true intention of the parties, the court will not, in the absence of other evidence', enter the decree prayed for.</p> <p>4. The mere fact that the consideration expressed in such a deed is somewhat greater that was actually paid by the grantee is of no weight as supporting the theory'that the instrument was intended to be a mortgage, where it appears that such instrument was made and the consideration thereof inserted under the direction and superintendence of the grantor without the grantee’s knowledge or assent.</p>

<p>-p policy of insurance was issued containing clauses which provided n0 suit should be maintainable thereon, unless brought within six months after a, loss had occurred, and also that the company’should not be deemed to have waived any condition of the policy unless such waiver was in writing signed by the president and secretary. A loss occurred and suit was- instituted therefor, more than six months thereafter. Held, that the company was not estopped from setting up the breach of the condition ofothe policy by reason of the fact that the insured liad been induced to postpone bringing suit through verbal representations of the general agent made to him to the effect that it was unnecessary to sue, that the company, through embarrassed, had made', or were about to make, an assessment upon its premium notes, and that it would pray without suit.</p> <p>2. The representations made by the general agent were at any rate not the assertion of any fact past or present, but only a promise as to the future. The insured had no right to repose any confidence in such a promise, because there was, by the terms of the policy, an express exclusion of any authority on the part of the general agent to make it.</p> <p>3. Semble, that even if the general agent had possessed sufficient authority to bind the company, his declarations in the present case would not have been sufficient to constitute an estoppel. In their essential features they related only to the future action of the company. -As to what was said with regard to there being no necessity to bring suit, that was only an expression of the agent’s personal opinion and not the assertion of a fact.</p>

<p>An agreement to subscribe for the erection of a church edifice is a work of charity within the meaning of the Act of April 33d 1794 (8 Sm. L. 177), and may therefore be enforced though made on Sunday.</p>

<p>1. The Act of June 14th, 1836. § 3, Pamph. Laws 631, confers no jurisdiction upon the courts of common pleas of this Commonwealth to issue writs of quo warranto to persons holding positions in private corporations, except in questions concerning the exercise of strictly corporate offices. No authority is given to issue the writ against a mere servant, employé or agent of such corporations.</p> <p>2. By the Act incorporating the University at Lewisburg, approved February 5th 1846, Pamph. Laws 82,it was provided, that the trustees named therein, and their successors, should constitute a body politic, that they should have power to transact all the business of the university, to elect a chairman, secretary, and other officers to manage its affairs, to enact proper ordinances for its government, to appoint the necessary professors and other instructors, and to remove them, or any of them, on sufficient cause being shown. The powers and duties of the professors thus appointed, were, by the terms of the said act, defined, and they were empowered, inter alia, to grant diplomas upon certain specified terms. Reid, that a professorship in said university was not a corporate office in a private corporation within the meaning of the act of June 14th 1836, § 2, Pamph. Laws 621, and that therefore a writ of quo warranto could not be issued under the provisions of the said Act to any person to show cause why he acted in the capacity of professor in said university.</p>

<p>1. A release executed by a married woman, of a legacy charged upon, land cannot, under the provisions of the Act of April 26th 1850 (P. L. 581), be recorded unless it be separately acknowledged by her in accordance with the provisions of the Act of February 24th 1770 (1 Sm. L. 307).</p> <p>2. A married woman may, at her husband’s request, execute to him a valid and effectual release of a legacy charged upon land whereof he is seised, without his joinder and without a separate acknowledgment.</p> <p>'3. Where there is no consideration for such a release, and the.married woman does not intend the same as a gift, it is invalid as to her husband, and as to such of his judgmeut creditors as stand on his footing.</p> <p>4. As to such of her husband’s creditors as have advanced their money, subsequent to the execution of the release, with knowledge thereof, aud on the faith of the same, the married woman will be estopped from denying its validity.</p> <p>5. As to such of- those creditors, however, as do not appear to have loaned their money with knowledge and on the faith of the release, the married woman is not estopped from denying its validity.</p> <p>6. A recorded paper, defectively acknowledged, is constructive notice to no one.</p> <p>7. Circumstances under which a married woman who has executed a release, such as above described, is not entitled to claim interest ou her legacy as against her husband’s creditors, considered.</p>

<p>June 16th and 17th 1881. Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, J J.</p> <p>Error to the Court of Common Pleas of Franklin county : Of May Term 1881, No. 185.</p> <p>■ Scire facias to revive judgment, brought by Margaret Snyder against John E. Crawford, administrator of Martin B. Wingert, deceased, with notice to Isaac Burkholder, Christian "Wingert, Adam Small and Henry Small, terre-tenants.</p> <p>The judgment sought to be revived was upon a judgment note for $3,000 given by Martin B. Wingert to his daughter, Margaret Snyder, the plaintiff, and entered in the Common Pleas of Franklin county, December 19th 1874. This scire facias issued December 13th 1879. The terre-tenants, Burk-holder and Christian Wingert, pleaded payment, payment with leave, &c.</p> <p>On the trial, before Rowe, P. J., the following facts appeared: "When the plaintiff’s judgment was entered, Martin B. Wingert was the owner of three tracts of land in Franklin county. There were several judgments against him prior to that of the plaintiff. By power of attorney, dated December 8th 1874, Martin B. Wingert appointed Martin lieintzelman and Frederick Byers his attorneys-in-fact, with authority to sell and convey his real estate, by virtue of which power the said attorneys-in-fact, on April 2d 1875, sold and conveyed one of the tracts to Isaac Burkholder for $10,700 in cash; this deed was recorded May 17th 1875; and on September 1st 1875, said attorneys-in-fact conveyed another of said tracts of land to Christian Wingert for $2,900, the bulk of which was paid in cash and the balance secured by judgment. This deed was not recorded. Neither of these deeds was made expressly subject to any liens of judgments existing against the grantor.</p> <p>On September 28th 1875, said attorneys-in-fact, being about to sell the remaining tract to Adam and Henry Small, procured from the plaintiff, through their counsel .Judge ELimmell, the following release from the lien of her judgment:—</p> <p>“Margaret Snyder v. Martin B. Wingert, No. 35 February Term, 1875.</p> <p>“ I have a judgment in the Court of Common Pleas of Franklin county, against defendant, and I hereby agree that the agents shall sell the land’clear of the lien of my judgment, provided that lieintzelman and Byers apply the money to the payment of my judgment according to its priority of lien. Witness my hand and seal, 28th September, A. D. 1875.</p> <p>“ Test: Mak&aret Snyder, [seal.]</p> <p>“ F. M. Kimmell.”</p> <p>On October 2d 1875, four days after this paper was executed, said attorneys-in-fact conveyed the remaining lands of Martin B. Wingert to Adam Small and Henry Small for $20,000, all of which was subsequently paid. The proceeds of this last sale proved insufficient to pay all the judgments against Wingert prior to that of the plaintiff, by reason whereof nothing was paid on the latter.</p> <p>The plaintiff claimed that the above release was signed upon the faith of representations made to her by Judge ELimmell, counsel for said attorneys-in-fact, that the proceeds of the sale of the real estate would be sufficient to pay all liens upon the property, including her judgment, and would leave a surplus.</p> <p>Judge ELimmell’s testimony on this point was as follows :</p> <p>“ The sale of the land to the Smalls was spoken of to Mrs. Snyder.</p> <p>“ Q. Was this release prepared by you, and executed by her, with reference to the sale of the lands to the Smalls ?</p> <p>“A. Yes sir, for that was the last sale of the property.</p> <p>“ Q. Did you explain to her the effect of this release?</p> <p>“ A. Yes sir ; . . . The impression left on tny mind by Mr. Heintzelman was that the lands would more than pay the debts, and have money besides for the old man. Under this impression the whole thing proceeded from first to last. This lady spoke to me, and said she would not like to have anything done which would impair her rights ; and I said I would do nothing that would impair her rights at all; that this was intended to operate so as to give the Smalls a title divested of the liens : and I added at the time that I thought it would not only pay the liens, but have something over and above for the old man. I said that to her.</p> <p>“ Q. That the effect of her signing it would he to release the lien of her judgment from that property ?</p> <p>“ A. Yes; and from what I learned from the agents, it would pay the judgments, and leave a surplus for the old gentleman in liis life-time. I remember that very distinctly, because she demurred at first about it; and as I had been a particular friend of Snyder’s, I did not mean to do anything wrong to his wife under any circumstances.</p> <p>“ Q. Did you tell her it was necessary for her to sign, in order that the agents could give a clear title? ‘</p> <p>“ A. Yes, that it was intended to enable the agents to give a clear title.</p> <p>“ Q. And you said she said she did not want to do anything to impair her rights ?</p> <p>“ A. She called my attention to that distinctly.</p> <p>“ Q. And you told her it would not do so, and that the money would bo applied according to its priority, and there would be enough to have a sui’plus left ?</p> <p>“ A. I told her would be applied according to the priority of the liens and judgments, and that she need have no fears about that; it would pay her judgment also, and I thought it would leave something for the old gentleman.” .</p> <p>There was no direct evidence to show that the Smalls knew of the release at the time they bought the land, but there was some testimony that it was spoken of in their presence. It appeared that they obtained from the attorneys-in-fact a personal covenant for a good and unincumbered title.</p> <p>There was no evidence to show that the plaintiff had any actual notice or knowledge, at the time of giving the release, of the prior conveyances to Burkholder and Christian Wingert.</p> <p>The plaintiff took the following positions: (1) That by reason of the misrepresentations made to her by Judge Kimmell, counsel for the attorneys-in-fact, at the time she signed the release, as between her and the judgment debtor, it was void. (2) That in the absence of evidence that the Smalls knew of the release, and acted upon the faith of its integrity, she was not estopped by it. (3) That she was not precluded from asserting her judgment against Isaac Burkholder and Christian Wingert, the first purchasers of the land, in the absence of proof that she had knowledge of the sales to them at the time she signed the release.</p> <p>The plaintiff presented a number of points substantially to to the above effect, all of which were refused by the court, who charged the jury, inter alia, as follows:</p> <p>“ This release must be construed in the light of the evidence. Mrs. Snyder says that it was in view of the sale of the mansion farm to the Smalls that this release was executed; that it was a release of the land about to be sold to the Smalls only, and it was upon condition that the lien of Mrs. Snyder’s judgment should be paid according to its priority upon the record. But the record shows that her judgment could not be reached by any appropriation of the moneys derived from the Small lands ; so that if the application by the attorneys-in-fact was not according to priority of liens, still she was not injured thereby. The Small land sold for $20,000, and the judgments prior to hers amounted to $42,000. If she signed the release under the circumstances testified to by Judge Uimmell, the Smalls would not be affected by anything said or done by Judge Kimmell, who was not their agent, but the agent of Heintzleman and Byers. No fraud, no mistake, or misleading can be attributed to the Smalls. Under these circumstances, if she signed the paper, which is not disputed, the Smalls were released.</p> <p>“ Then, if the Smalls were released, the prior purchasers, Burkholder and Christian Wingert, must necessarily be released, because they had an equity or a right in equity to demand that the last purchased lands should be first applied to the liens; and if the judgment creditor released the last purchased lands, she also released these parties, too.</p> <p>‘‘ [In the view of the law which we have given in the general charge and answers to the points there is really nothing in dispute as to the facts. Yon will have no difficulty in finding a verdict for the defendants.]”</p> <p>Verdict accordingly for the defendants, and judgment thereon. The plaintiff took this writ of error, assigning for error the refusal of her points and the portion of the charge enclosed in brackets.</p>

June 17th 1881. Before Sharswood; C. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Error to the Court of Common Pleas of Frcmhlin county: Of May Term 1881, No. 187. Tiiis was an action of debt, brought February 2d 1880, by Susanna Etter and Nicholas Snyder and Eliza, his wife, in her right, against Henry Greenawalt.

<p>June 17th 1881. Before Stiarswood, O. J\, Mekour, Gordon, Paxson, Trunkey, Btkrrett and Green, JJ.</p> <p>Error to the Oonrt of Common Pleas of Centre county: Of May Term 1881, No. 56. '</p> <p>Debt, by R. E. Clow to the use of Ynocertcio Casanova against The Derby Coal Company of Pennsylvania, Antonio M. Soteldo, John Anderson, Andrew G. Curtin and William A. Wallace, upon a joint and several bond given by defendants to plaintiff, conditioned for the payment to plaintiff of the debt, interest and costs in the suit of E. F. Clow v. The Derby Coal Company upon failure of said company to prosecute successfully a writ of error to the Supreme Court of the United States taken by it from a judgment obtained against it in the said suit.</p> <p>On the trial, before Mayer, P. J., the following facts appeared : On October 1st 1872, the Derby Coal Company executed to Ynocencio Casanova a mortgage for $250,000 upon certain lands owned by it in Centre and Clearfield counties. This mortgage was not recorded until March 17th 1873. Immediately after said recording, the interest being unpaid, Casanova instituted proceedings in Clearfield county upon said mortgage, and on November 21st 1874, recovered a judgment against the company thereon for $285,822.12.</p> <p>On December 4th 1872, E. E. Clow recovered a judgment for the sum of $29,961.03 against the said company in the Circuit Court of the United States for the Western District of Pennsylvania. On February 10th 1873, a writ of error was taken to this judgment by the company to the Supreme Court of the United States, the bond in suit being at the same time filed in compliance with the provisions of the Kevised Statutes of the United States. On October 13th 1874, the Supreme Court of the United States, having heard argument in the cause, dismissed the writ of error. On December 5th 1874, the judgment in the cause was purchased by Casanova and was marked assigned to his use. On December 8th 1874, an assignment of $8,600 of said judgment by Clow to one A. C. Finney, bearing date December 4th 1872, was filed in the cause.</p> <p>On January 15th 1875, CasanoYa caused a writ of levari facias to be issued upon his judgment in Clearfield county on the mortgage of October 1st 1872, by virtue of which all the mortgaged premises in Centre and Clearfield counties were sold on March 15th 1875, at a judicial sale. Casanova, became himself the purchaser for the price or sum of $85,000. The sheriff made a special return to the effect that Casanova as holder of the judgment upon the mortgage of October 1st 1872, was entitled to the whole proceeds of the sale, and that receipts had accordingly been exchanged with him for the whole of said proceeds. A sheriff’s deed to Casanova was also presented for acknowledgment. Exceptions were filed by A. C. Finney both to the special return and to the acknowledgment, delivery and recording of the deed on the grounds: (1) That the Clow judgment was a prior lien to Casanova’s mortgage upon the properties sold. (2) That therefore the sheriff, had, to the extent of that judgment, no right to make the special return; and, (3) That the sheriff had notice that he would be ruled to bring into court enough of the proceeds of said sale to satisfy that portion of said judgment owned by A. C. Finney. The exceptions to the acknowledgment, delivery and recording of the sheriff’s deed to Casanova were dismissed, and said deed was the same day acknowledged, delivered and recorded. Casanova was, however, ordered to pay the sum of $11,000 into court, and said sum having been placed at interest an issue was awarded between Finney as plaintiff and Casanova as defendant to try: (1) "Whether Finney was entitled to any part of the Clow judgment. (2) Whether said judgment was a prior lien to Casanova's mortgage of October 1st 1872 ; and, (3) Whether said judgment was entitled to any of the proceeds of the sale under said mortgage.</p> <p>Meantime certain proceedings had been instituted by Finney in the Circuit Court of tbe United States to ñx bis rights in the judgment of Clow v. Derby Coal Company. These culminated in the following decree, which was entered in said suit on January 15 th 1876.</p> <p>“ It is adjudged and decreed that "the assignment by R. F. Clow to A. O. íinney, dated December 4th 1872, of $8,600 of the judgment obtained by him against the Derby Coal Company — being prior in date to the assignment to Y. Casanova, dated December 5th 1874 — is also prior in equity; that any money paid or applicable to said judgment be appropriated to the satisfaction of the amount so assigned to said Finney, according to the tenor of his assignment, before any part thereof is applied to tbe interest of said Casanova therein as aforesaid; and that a copy of this decree be entered on the record of said judgment.”</p> <p>Casanova thereupon purchased from Finney all bis rights in said judgment and took an assignment thereof from him. On the trial of the issue in Clearfield county between Finney and Casanova a verdict was rendered for defendant, and on May 30th 1876, the $11,000 deposited by Casanova was by order of court repaid to him.</p> <p>The present suit was instituted on August 25th 1875.</p> <p>Plaintiff made tbe following offer of evidence: “ A certified copy of a mortgage dated the 15th day of October 1869 of the Derby Coal Com pany of Pennsylvania to Allen 1Toy, in tbe sum of $150,000. To be followed by proof that that mortgage was entered of record on or about the 15th day of October 1869, and was afterwards carried into and made part of the mortgage of the 5th day of October 1872, of two hundred and fifty thousand dollars, already offered in evidence; to be followed also with proof that at the time John Anderson and some of the other defendants were stockholders of the Derby Coal Company of Pennsylvania, and that the defendants subsequently accepted the proposition of Mr. Casanova to furnish the money to pay off all the Allen Hoy mortgage and floating indebtedness of the Derby Coal Company, for which he was to receive the mortgage of the 5th of October 1872; that that proposition was accepted by the Derby Coal Company — Mr. Anderson and Mr. Soteldo being stockholders thereof; that a scire facias had issued out of the Common Pleas of Clearfield county, to No. 326, January Term 1873, in the name of Allen Hoy, Esq., Trustee, &c., against the Derby Coal Company of Pennsylvania; and that an action of “debt” was commenced in the same court, to No. 325, January Term 1873, in the name of Tnocencio Casanova as the holder and the- owner of the bonds, and the Allen Hoy mortgage as his security, and that the same continued and remained of record pvior to the time that Clow obtained his judgment, and up until after the filing of the bond upon which this suit was brought, and that Mr. Casanova -was advised by the same defendants that lie could, with safety, permit satisfaction to be entered on the Allen Hoy mortgage and bonds, and that he did so, upon being assured by the defendants that he was fully protected by the giviug of the bond upon which this suit was brought; to be followed with other evidence to show that John Anderson, A. M. Soteldo, A. Gf. Curtin and William A. Wallace have recognized the rights of Mr. Casanova as the owner and holder of the Allen Hoy bonds and mortgage; that Anderson and Soteldo, as stockholders of the Derby Coal Company, agreed and accepted the proposition in writing from Mr. Casanova, to give him the fullest protection possible, for the payment of the two hundred and fifty thousand dollar mortgage, bond and interest, and that Clow was a stockholder of the'Derby Coal Company, and had notice of the mortgage of the 1st of October 1872. This offer is made for the purpose of showing that the distribution made in Clear-field county was rightfully made, and for any other purpose for which it may be evidence, as to showing the equities and rights of the parties in court to the fund as distributed in Clearfield county.</p> <p>Objected to by defendants as incompetent and irrelevant, and also because said mortgage to Allen Hoy was marked satisfied of-record on March 18th 1873, by the plaintiff, and thenceforth ceased to be a lien. Objection sustained and evidence rejected. Exception. (Third assignment of error.)</p> <p>The court directed a verdict for defendants. Yerdict and judgment accordingly, whereupon plaintiff took this writ, assigning for error the rejection of his offer of evidence and the instruction of the court to the jury to find for defendants.</p>

<p>A., having obtained a .judgment before a justice of the peace against B., of the firm of B. & 0., issued an attachment execution thereon against D., who was indebted to the firm. Judgment was entered in favor of A. for half the amount of D.’s indebtedness, that sum being fixed by the justice as the amount belonging to B. This amount was then paid by D. to A. O. had no notic^of these proceedings and gave no assent thereto, but did not deny that he had knowiedge'thereof. The firm B. & O. after-wards incurred indebtedness to E., who, having reduced his claim to judgment, also issued an attachment execution against D. D. paid onchalf his indebtedness to the firm of B. & C. to E., but defended as to the residue on the ground that he had already paid the sum to A. Held, conceding the irregularity of the attachment procedings by A. against D. as garnishee before the justice of the peace, that nevertheless said justice lnid jurisdiction of the case, that a judgment having been entered therein by him which was not objected to by B., C. or D., the same was conclusive as to B., and that therefore the firm of B. & C. was in the present proceedings entitled to judgment.</p>

<p>June 20th 1881. Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.</p> <p>Error to the Court of Common Pleas of Potter county: Of May Term 1881, No. 126.</p> <p>This was, in the court below, an appeal from the judgment of an alderman in favor of Mary A. McDonald against the Genesee Township Independent School District, for $66, for wages as a school teacher under a contract with Henry Roache and others, acting as the board of school directors of said school district.</p> <p>On the trial, before Wilson, A. L. J., the school district defended on the ground that the said Roache and others were not the lawful board of school directors of said district and had no power to bind the same by said contract.</p> <p>The following facts appeared: — In September 1879, the regularly qualified and acting board of school directors of said school district consisted of the following persons: James LI. Leach, President; Henry Roache, Secretary; Thomas Maxwell, Thomas T. O’Donnell, Thomas M. O’Donnell and John M. Moran. On September 2nd 1879, a meeting was held, at- which John M. Moran, Thomas'T. O’Donnell, Thomas M. O’Donnell and Henry Roache, being a quorum, were present. All the said members of the board had held a meeting on June 2d 1879, for the purpose of organization. The minutes of this meeting, as printed in the evidence, did not show that the board then adjourned to meet at any time certain, nor did it appear Avhether any meeting was held between June 2d and September 2d, 1879, nor that any standing regulations existed for periodical stated meetings. The meeting of September 2d adjourned to meet on Tuesday evening, September 15th at School House No. 1, at which time and place no one appeared except Roache, who adjourned the board “until Thursday evening at six o’clock in m. at No. 1 School House.” On the following Thursday evening, September 18th, Roache appeared alone and again adjourned till Tuesday evening September 23rd at six o’clock at the same place. It did not appear that the other directors had any notice of these adjournments, although they were regularly entered on the minutes. On the last named evening, Roache was the only one that appeared, when he proceeded to fill vacancies by declaring Thomas Maxwell’s seat vacant, he having been absent from more than' two preceding meetings, and appointed Laurence Moran in his place. Roache and Moran then appointed Thomas Burns to fill the vacancy caused by the resignation of James Leach (who had resigned and moved from the district); they then adjourned to Wednesday evening, the 24th, at 7 p. m., ail of which proceedings were entered on the minute book. The old board having no notice of this meeting, Burns, L. Moran and Roache met and declared the seats of Thomas M. O’Donnell, Thomas T. O’Donnell and John M. Moran, vacant, for absence from four regular meetings, and appointed Michael McNulty, Patrick O’Donnell and Francis Luddon in their places. Ón {September 26th, the new board — so called — met and transacted some business, and again, on October 4th following, Lawrence Moran, Thomas Burns, Iieury Roache and John M. Moran met, pursuant to adjournment, and with them Thomas T. O’Donnell and Thomas M. O’Donnell, of the old board, when the resolution of September 24th was rescinded by vote, and Thomas T. O’Donnell and Thomas M. O’Donnell by vote reinstated, which proceeding was afterward “ cancelled by order of the board.” From that time until June 1st 1880, both boards of school directors claimed each to be the acting board, and each held their meetings and kept their separate records.</p> <p>On May 4th 1880, a special meeting was called by'the board composed of Thomas Burns, President, Henry Roache, Secretary, and others, for the purpose of settling with the treasurer they had appointed ; after effecting such settlement, a resolution was unanimously passed employing Mary A. McDonald, the plaintiff, to teach a three months’ school, at 016 per month. She accepted the engagement, and taught until the duly elected board, which organized the first Monday of June 1880, locked the school house against her, and put in another teacher.</p> <p>Miss McDonald notified the board that she was ready to complete her contract, and after the expiration of the three months, brought this suit.</p> <p>The defendants offered to prove by witnesses and records that the old board of school directors, composed of Thomas T. O’Donnell, Thomas' M. Maxwell and others, were the duly elected and acting school directors during the entire period in which the so-called board, appointed as above mentioned, assumed to act; and that the old board notified Miss McDonald before she commenced to teach, that the persons who employed her had no authority so to do. Objected to on the ground that the title to school directors cannot be tried collaterally in this action, and because the offers do not tend to rebut the evidence that the board which employed the plaintiff was a de facto board. Objection sustained and offers rejected. Exception.</p> <p>The court instructed the jury to find for the plaintiff. Verdict accordingly for the plaintiff for $49.68. The defendants took this writ of error, assigning for error, inter alia, the exclusion of their offers of testimony as above.</p>

<p>1. Where a loss occurs under a policy of insurance against fire, and suit is brought on the policy, the valuation in the policy is not the controlling proof of actual value, but the jury must find from the evidence yvhat the actual value of the building was, and that must not be what it would cost to rebuild, but what is shown to be its money value under all the circumstances of its situation and surroundings at time of the fire.</p> <p>2. Where the plaintiff presents a point, embodying th above principles as a rule for adjusting the loss, it is error for the court o answer it by charging that the jury are at liberty to adjust the loss upon the proofs before them.</p>

' June 20th 1881. Before Sharswood O. J., Mercur, Gordon, Pazson, Trunkey, Sterkett and Green, JJ. Error to tbe Common Pleas of Potter county: Of May Term 1881, No. 55. This was an action of assumpsit by Titus Yeomans against William C. Sherwood on a book account.

October 3d 1881. Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Error to the Court of Common Pleas No. 1, of Allegheny county: Of October and November Term 1881, No. 172. Appeal from the judgment of a justice of the peace. Assumpsit.

<p>1. In the case of a contested election of a member of the house of representatives from a legislative district which comprises only certain wards of a city, the court, may, by virtue of the provisions of the act of Mny 19th 1874, § 9, Pampli. L. 210. if it shall deem that the contest has not been without reasonable cause, impose the costs upon the county wherein said legislative district is situate.</p> <p>2. It was not the intention of the legislature that the costs should in sucli ease be imposed upon the particular wards constituting the legislative district for which the member has been elected.</p> <p>3. Semble, in case of contested election of a judge or senator whose judicial or senatorial district comprises more than one county, that by virtue of the provision of the said section of the Act of 1874, and also by virtue of the provisions of the Act of May 8th 1876, § 1, Pamph. L. 148, the power to impose costs is coextensive with the district..</p>

<p>1. Where a contract of subscription in writing is entered into by several parties, the construction of such contract is for the court and not for the jury.</p> <p>2. A., B., aud several others signed a contract of subscription, whereby each agreed to advance a certain sum of money to a corporation to promote an industrial enterprise. The corporation contracted to repay the various advances as soon as possible, and undertook to pay to the various subscribers its entire income for the ensuing three years. A. paid the amount of his subscription. B. failed to do so. Subsequently the corporation passed a resolution abrogating the terms of the subscription, and in a few months failed. A. then brought an action against the corporation to recover the amount of his subscription, and obtained judgment. Subsequently he caused a writ of attachment execution to be issued upon said judgment, wherein B. was summoned as garnishee, but said writ was not issued until more than three years after the execution of the original contract of subscription. Reid, that B.’s contract was merely to loan money to the corporation upon the terms stipulated in the contract of subscription, that those terms being abrogated, the corporation having failed, and the time within which it was implied that he was to loan the money having passed, the company had no semblance of right to force him U> loan the money. Held, further, that A., standing in the shoes of the company, had no further or other rights than were possessed by it, and that the garnishee was therefore entitled to judgment.</p> <p>3. Where in a contract of subscription by several there is no agreement between the various subscribers to pay or to guarantee the payment of each other’s loans, and afterwards one subscriber fails to advance the amount which he has agreed to loan, another subscriber who has paid Ids subscription cannot, upon obtaining judgment against the borrower therefor, compel the delinquent promisor as garnishee in an attachment execution to pay .what he has promised to loan.</p> <p>4. Where on the trial of a cause a party has raised an insufficient objection to an offer of evidence, which is overruled, the evidence being admitted, lie cannot subsequently object to the testimony on other and valid grounds.</p>

October 4th 1881. Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent. Error to the Court of Common Pleas No. 2 of Allegheny county: Of October and November Term 1881, No. 19. This was an action on the caso, between the above named parties, for injuries done to the plaintiff’s land by the defendant’s mining the underlying coal. The case was referred to arbitrators and an award was filed in favor of defendant, with costs.

<p>October 4th 1881. Before Meecue, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, Oh. J., absent.</p> <p>• Error to the Court of Common Pleas, No. 1 of Allegheny county: Of October and November Term 1881, No. 171.</p> <p>Scire facias sur mortgage, by J. Harvey Robb, administrator of Benjamin Morrow, for use of A. S. Bell, now for use of Pittsburgh Bank for Savings, against Adam Reineman.</p> <p>On the trial, before Collier, P. J., there was no dispute as to the facts, which were as follows:</p> <p>The mortgage in suit was given October 20th 1866, by Adam Reineman to J. H. Robb, administrator of Benjamin Morrow, for $2,705.98, payable within one year from interest, being the balance of purchase money due by said mortgagor upon the mortgaged premises, consisting of a tract of coal, underlying the farm of the said Benjamin Morrow, deceased, which coal had been sold by Robb, as administrator, by order of the Orphans’ Court, and purchased by Reineman. Reineman paid one-half of the purchase money in cash.</p> <p>On December 14th 1866, Reineman agreed to sell to John M. Tiernan and A. S. Bell, one undivided half of the said coal, in consideration of Bell and Tiernan assuming payment of the said mortgage; whereupon the following agreement was executed under seal by Reineman, Tiernan and Bell:</p> <p>“It is agreed hereby between the undersigned, that they jointly own the coal underlying the farm of the late Benjamin Morrow, in Scott township, Allegheny county, Pennsylvania, sold to Adam Reineman by J. Harvey Robb, administrator of said Benjamin Morrow, at Orphans’ Court sale, upon the 6th day of last October. The aforesaid coal is fifty-four acres and nineteen perches (54 a., 19 p.) and is to be owned one-half by Adam Reineman, and the other half by John M. Tiernan and A. S. Bell; but the deed for it is to Adam Reineman.</p> <p>“ Adam Reineman has paid the one-half of the purchase money, amounting to twenty-seven hundred and five 98-100 dollars, and given his bond and mortgage for the balance, payable in one year; said bond and mortgage are dated the 20th day of October, A. D. 1866.</p> <p>“ John M. Tiernan and A. S. Bell are to pay said bond and mortgage when it becomes due ; and .they.hereby agree to pay the same promptly when due.</p> <p>“ The coal aforesaid is to be held by the parties hereto, and to be sold for joint benefit, when they think it advisable to sell it and can be done with profit to the undersigned.”</p> <p>“ We do hereby agree to the above for ourselves, our heirs, executors, administrators and assigns. Witness our hands and seals this fourteenth day of December, 1866.”</p> <p>This agreement was not recorded.</p> <p>After the mortgage fell due, A. S. Bell, on November 16th 1867, paid off the mortgage to Robb, administrator, but instead of having the same satisfied of record, took an assignment thereof to himself, which was, on December 9th 1867, duly entered on the margin of the recorded mortgage.</p> <p>On December 9th 1867, A. S. Bell, assigned of record the said mortgage to the Pittsburgh Bank for Savings for a valuable consideration, Bell being at that time one of the directors of said bank. No inquiry was made by the Bank of Reineman at the time of their purchase of the mortgage and no certificate of no defence was demanded by the bank. Bell paid the interest on the mortgage, until December 1873 (the mortgage having been extended on the books of the bank), after which time a director of the bank said to Mr. Reineman it was strange that a man of his financial standing should have a mortgage of that amount running so long. The bank then learned for the first time of the agreement between Reineman and Bell and Tiernan. Reineman then first discovered that the mortgage had been kept alive and assigned to the bank.</p> <p>By agreement of counsel, the court instructed the jury to find a verdict for the plaintiff subject to the opinion of the court on on the question of law reserved, to wit, “ whether under all the evidence, which is undisputed, the plaintiff is entitled to recover.”</p> <p>The court, after argument, entered judgment on the reserved point and on the verdict for plaintiff, Collier, P. J., filing the following opinion:</p> <p>“ The agreement between Reineman and Bell and Tiernan, set up as a defence, not having been recorded, did not lie in the chain of title under which the bank claimed as a purchaser, under the recording acts; and therefore it could not be charged with constructive notice. Nor do we think that the fact that A. S. Bell was a director at the time the bank purchased the mortgage, and was present thereat, is sufficient to charge the bank with notice : Custer v. Bank, 9 Barr 27.</p> <p>“ But it is contended that the bank was, bound to make inquiry of Reineman, whether he had any defence to the mortgage. It is true that the bank, by not making inquiry, took the risk of equities, failure of consideration, and set-off, between the mortgagor and mortgagee : Downey v. Tharp, 13 Smith 322 ; Taylor v. Gitt, 10 Barr 431.</p> <p>“ But we think it clear by the authorities that the bank was not bound to make inquiry as to equities between Reinfeman and Bell, fclie first assignee: Blair v. Mathiott, 10 Wright 263 ; Downey v. Tharp, 13 Smith 322.</p> <p>“ But it is further contended that the agreement between Reineman and Bell and Tiernan, was a payment of the mortgage by Reineman. We do not so regard it. We think, at most, it was a covenant by Bell and Tiernan to pay the mortgage, and then they to become absolute owners of the land.</p> <p>“We are therefore of the opinion that the bank, having given value for the mortgage, is entitled to recover.....Let judgment be entered for the plaintiff on the verdict.”</p> <p>The defendant took this writ of error, assigning for error the entry of judgment on the reserved question for the plaintiff.</p>

<p>A testator devised property to his nephew A. B., and died, leaving two nephews of that name — -one legitimate, the other illegitimate. Held, that parol evidence was inadmissible to show that testator intended his illegitimate and not his legitimate nephew to be the object of his bounty.</p>

<p>October 6th 1881. Before Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, O. J., absent.</p> <p>Error to the Court of Common Pleas No. 1. of Allegheny county: Of October and November Term 1881, No. 128.</p> <p>Assumpsit, by John Ii. liare, sheriff of Allegheny county for use of Joel Bedell, for use of Margaret J. Bedell, against Á. W.. Bedell, to recover the difference between the price for which certain land was sold to the defendant at sheriff’s sale, the terms of which he did not comply with, and the amount which the said land brought at a subsequent sheriff’s sale.</p> <p>On the trial, before Stowe, P. J., the following facts appeared by the records produced: On September 25th 1874, W. and II. Caughey obtained a judgment with waiver of inquisition, condemnation, &c., against Joel Bedell, which became a lien on the premises in question, then owned by the said defendant. On November 19th 1874, Joel Bedell, by deed of that date, recorded November 30th 1874, conveyed thesaid premises to bis wife, Margaret J. Bedell. Under á li. fa. issued to October Term 1875, No. 539, on-the said Caughey judgment, the said premises were exposed to sheriff’s sale, October 9th 1875, and were knocked down to A. W. Bedell for $5,050. In December following, the sheriff filed his return, indorsed on said li. fa., that Bedell having failed to comply with the terms of sale, the premises remained unsold.</p> <p>On December 16th 1874, one.Whigham obtained a judgment with waiver of inquisition, &c., against the said' Joel Bedell, and under a fi. fa., issued upon said judgment to July Term 1876, No. 205, the same premises were exposed to sheriff’s sale and sold to one William Bedell for $4,500.</p> <p>A pluries fi. fa. had previously been issued on the aforesaid Caughey judgment, to July Term 1876, No. 206, which, at the time of the last mentioned sheriff's sale, remained in the sheriff’s hands for execution. After said sale the sheriff returned this pluries wi it with the following indorsement: “ For return of this writ see fi. fa. No. 205, July Term 1876.” The special return indorsed on the Whigham fi. fa. (No. 205 July Term 1876) certified “ that by virtue of this writ to me directed,” the premises were sold to William Bedell for $4,500. The sheriff’s deed to William Bedell recited the Whigham judgment, execution and sale, omitting any reference to the Oaughey judgment and execution.</p> <p>The plaintiff offered to prove by the parol evidence of E. H. Fife, the sheriff who executed and returned the said writs, that the land was in fact sold at the second sale under both wi-its, viz., the pluries fi. fa. on the Oaughey judgment and the fi. fa. on the Whigham judgment. Objected to, the record being the best evidence ; objection sustained ; exception.</p> <p>The defendant presented, inter alia, the following points :</p> <p>2. That the first sale under the Oaughey judgment, if completed, would have extinguished the title of Margaret J. Bedell, which she acquired subsequent to the date of said Oaughey judgment, as well as the lien of all judgments against Joel Bedell prior to her deed. That the second sale under the Whigham judgment, entered subsequently to Mr. Bedell’s acquisition of title, would only pass to the purchaser a right to contest her title on the ground of fraud, and would not discharge the lien of any judgments against Joel Bedell prior to the date of her deed.</p> <p>. . . . Affirmed.</p> <p>3. The second sale being of a different and less valuable title than that which the defendant bid for at the first sale, he cannot be charged with the difference between his bid at the</p> <p>first sale, and the price realized at the second sale.....</p> <p> Affirmed. </p> <p>The court directed (he jury to find a verdict for the defendant. Yerdict and judgment accordingly. The plaintiff took this writ of error, assigning for error the exclusion of the plaintiff’s offer to prove that the second sale was made under both writs, the affirmance of defendant’s points, and the instruction to find for the defendant.</p>

<p>October 7th 1881. Before Shabswood, O. J., Mercur, Paxson, Trunkey, Sterrett, and Green, JJ. Gordon, J., absent.</p> <p>Certiorari to and appeal from the Court of Common Pleas No. 1, of Allegheny county: Of October and November Term 1881, No. 1S3.</p> <p>Appeal by Wilson McCandless et al., executors of Robert W. Mackey, deceased, from a decree of said court dismissing their exceptions to the report of an auditor distributing the proceeds of a sheriff’s sale, and confirming the report.</p> <p>The facts material to this case were as follows: — John Adams died December 3d 1872, having by his will dated January 25th 1870, devised his real estate to his widow for life, and lie directed his executors to sell the same upon her death and divide the proceeds equally among his seven children, all of whom survived him, subject as to the share of his daughter Ann Eliza Mackey, to certain deductions. Mrs. Adams, the testator’s widow, released her life estate in the land, and the seven children, being of full age, elected in writing to take their interest as land instead of the proceeds thereof.</p> <p>By mortgage dated October 8th 1875, the said Ann Eliza Mackey (her husband, William H. Mackey, joining) mortgaged her undivided interest in the whole tract of which her father died seised, to Bobert W. Mackey, for $2,000.</p> <p>Subsequently proceedings in partition were had, wherein the interest of Mrs. Ann Eliza Mackey was fixed at $5,923.05. Equal partition being impracticable, the land was divided into seven purparts of unequal value; purpart No. 6, valued at $9,480, was allotted to Ann Eliza Mackey, charged with $3,556.95 for owelty of partition. _</p> <p>Subsequently, in 1880, the mortgage of Ann Eliza Mackey and her husband to Bobert W. Mackey for $2,000, was foreclosed by scire facias, and the property and estate bound thereby was sold at sheriff’s sale for $1,600. The sheriff made a special return, awarding the entire fund, after payment of the costs, to Bobert W. Mackey, on account of his mortgage. Exceptions being filed to the return by one of the parties entitled to owelty of partition, the matter was referred to an auditor (James C. Doty, Esq.), who reported distribution of the fund to the several parties entitled to owelty of partition, pro rata, on the ground that the lien of such owelty on the purpart acquired by Ann Eliza Mackey was prior to the lien of her said mortgage of her undivided interest. The said mortgage was not reached in the distribution.</p> <p>To this report Bobert W. Mackey’s executors filed exceptions', which were dismissed by the court, whereupon they took this appeal, assigning for error, inter alia, the dismissal of their exceptions and the confirmation of the report.</p>

<p>October 7th 1881. Before Shaeswood, O. J., Merour, Paxson, Trunicey, Sterrett and Green, <JJ. Gordon, J., absent. '</p> <p>Error to the Court of Common Pleas No. 2, of Allegheny county: Of October and November Term 1881, No. 218.</p> <p>Case, by Terence Murphy against J. McDonald Crossan, to recover damages for injuries suffered by the plaintiff, caused, as alleged, by the defendant’s negligence.. Plea, not guilty.</p> <p>On the trial, before White, J., the plaintiff’s evidence was to the following effect: — The plaintiff was a porter in the employ of the defendant, who is the proprietor of the Monongahela House in the city of Pittsburgh. As such it was his duty to take baggage up and down in a baggage elevator, the carriage of which was raised and lowered by steam power, by means of a wire rope 165 feet long, attached to the carriage and to a revolving drum in the cellar connected with the engine. This rope was concealed from view. On April 25th 1877, the plaintiff placed upon the elevator, at an upper story, two trunks, each weighing about 350 pounds, and some small baggage, and, with an attendant, started the elevator downwards. This was not an unusually heavy load. When about 37 feet from the ground floor the rope broke, precipitating the elevator with its contents into the cellar. The plaintiff was injured, having his jaw bone broken, and suffered other injuries. He was confined to bed for about two weeks, and resumed his work at the elevator in about a month. The defendant paid all expenses incidental to the plaintiff’s illness. After remaining in the same employment for about a year, the plaintiff left and brought this suit.</p> <p>The engineer in charge of the elevator testified that it had been customary to renew the rope at intervals of about a year; that the rope in question had been in use only nine or ten months, but that it had been spliced and he did not consider it very safe; that about six or eight weeks prior to the accident he reported its condition at the office ; “ said that the rope was getting bad, and we would have to get a new one; ” that again, eight or ten days prior to the accident-, he told the defendant that “ he would have to get a new rope, for that one was worn out, and Mr. Crossan told me that he had seen it, and that he had ordered a new one.” The new rope was delivered at the hotel on the same day or the day after the accident happened.</p> <p>At the close of the plaintiff’s case the defendant moved for a nonsuit, on the ground that there was no sufficient evidence of the defendant’s negligence, and because the plaintiff had better opportunity of knowing the condition of the elevator and the rope than the defendant.</p> <p>The. court granted the nonsuit, and subsequently refused a motion to take it off, whereupon the plaintiff took this writ of error, assigning for error the refusal of the court to take off the nonsuit.</p>

<p>October 7th 1881. Before Sharswood, O. J., Mercur, Paxson, Trunket, Sterrett and Green, JJ. Gordon, J., absent.</p> <p>Error to tlie Court of Common Pleas No. 2, of Allegheny county: Of October and November Term 1881, No. 180.</p> <p>Case, by John H. Cauley, a minor, by his father and next friend John Cauley, against the Pittsburgh, Cincinnati and St. Louis Railway Company, to recover damages for an injury to plaintiff, alleged to have been caused by the negligence of the defendant company’s servants.</p> <p>The plaintiff’s father brought an action at the same time against the same defendant, to recover damages for the loss of his son’s services, &c. Both cases resulted in judgments for the defendant.</p> <p>One writ of error was taken to the supreme court in both cases, which was quashed, on the ground that a separate writ should have been taken in each case. The facts of the case, the rulings of the court below, the arguments of counsel and the opinion delivered by Mr. Justice Paxson, quashing the writ of error but expressing an opinion on the merits of the cases, will be found reported in 14 Norris 398. The record in both cases was remitted to the court of Common Pleas. Subsequently the plaintiff took the present writ, assigning the same errors as upon the first writ of error.</p>

October 7th 1881. Before Sharswood, C. J., Merour, Paxson, Tbunkey, Sterrett and Green, JJ. Gordon, J., absent. Appeal from the Orphans’ Court of Allegheny cownty: Of October and November Term 1881, No. 121.

October 8th and 10th 1881. Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunket, Sterrett and Green, JJ. Held: in substance, that those of the defendants who had assigned their stock before the filing of the bill were not liable to contribute, but that those who held stock when the bill was filed, were liable to contribute their pro rata share of the amount which the plaintiffs (the members of the syndicate) had actually paid for or on…

<p>October 10th 1881. Before Sharswood, O. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.</p> <p>Error to the Court of Common Pleas. No. 2, of Allegheny county: Of October and November Term 1881, No. 87.</p> <p>Scire facias sur mortgage, issued November 30th 1877, by C. IT. Love, for use of W. C. Comingo, against John Huckenstein, on a mortgage executed by defendant to the legal plaintiff for $8,000. The defendant filed an affidavit of defence setting up usury, and subsequently pleaded usury, and payment with leave; and the cause was put at issue December 13th 1877. On January 10th 1880, the plaintiff presented a petition setting forth that in March 1879, the mortgaged premises, or a portion thereof, were sold at sheriff’s sale to one Thomas McKee, to whom a deed was delivered June 18th 1879, and praying to amend by making said McKee a party defendant. The court granted the prayer of the petition, and directed process to issue to bring in McKee, whereupon a scire facias issued to him which was returned nihil; an alias sci. fa. was also returned nihil; whereupon judgment was entered against McKee in default, sec. reg., for $4,563.87. The plaintiff’s attorney, by leave of the court, directed this judgment to be stricken off, but afterwards obtained an interlocutory unliquidated judgment against him in default, sec. reg., “without prejudice to the rights of plaintiff to have final judgment against said Thomas McKee and his co-defendant, J ohn Huckenstein.”</p> <p>When the case was called for trial, January 15th 1881, McKee, who had been subpoenaed as a witness for the plaintiff, learned for the first time that he had been made a party defendant, whereupon he moved the court to strike off his name as a co-defendant, on the ground that his alleged title did not accrue until after suit brought, and that judgment had been taken against him by default on two returns of nihil, without service or notice to him. The court thereupon made the following order:</p> <p>“ And now, January 17th 1881, the above motion is refused, but if Mr. McKee desires to defend in this action, he being now in court and his counsel also present, if he will make a motion to open or set aside the judgment against him, so as to let him into a defence, such motion will be sustained and he will be allowed to defend. His counsel declining to make such motion, it is ordered that the jury be sworn against John Huckenstein, with notice to' Thomas McKee, terre-tenant, and to assess as against him the balance due on the mortgage.”</p> <p>The plaintiff offered to show devolution, of title to McKee. Objected to, on the ground that McKee’s alleged title accrued after suit brought, and because it covers only a portion of the mortgaged promises. Objection overruled; exception.</p> <p>The defendants, under their plea of usury, offered to prove that Love, the mortgagee, had no interest in the mortgage, and that the money was advanced directly by Mrs. Comingo, at a heavy discount. Objected to, on the ground that McKee is the real defendant, and cannot set up the defence of usury to the mortgage, to which he bought subject. Objection sustained; exception.</p> <p>The defendants then offered to show, that McKee acted for Huckenstein in purchasing at the said sheriff’s sale a portion of the mortgaged premises, that Huckenstein paid the amount of the bid, and that McKee claimed no beneficial interest ortitle in the premises. Objected to, objection sustained; exception. (Fifth assignment of error.)</p> <p>The jury, in pursuance of the direction of the court, found a verdict for the plaintiff for $4,697.98 “ and find the balance due on the mortgage against Thomas McKee in the same amount.” Judgment on the verdict. The defendants took this writ of error, assigning for error the action of the court in making McKee'a party defendant and in refusing to strike off the judgment entered against him on two returns of nihil; and the rulings on evidence as above set forth.</p>

<p>1. Under the provisions of Article XVT. section 8 of the Constitution of Pennsylvania corporations vested with the right of eminent domain are made liable to all consequential damages resulting to private property from the construction, use or alteration of their works, ways or other improvements.</p> <p>2. Where a municipality causes its streets to be opened it is bound to give compensation, not only to those whose property is actually taken for the construction of the streets but also to those whose property is injured or destroyed by the opening thereof.</p> <p>3. Where a property owner through whose land a street has been run is injured, both by reason of the taking of part of his land for the construction of the street-and also by reason of the cutting and grading thereof, he must, in. proceedings to recover damages, submit his whole claim to the viewers and the court. If he neglects to submit any part thereof he will be deemed to have waived his right to recover that part, and no second process can be had for its recovery.</p> <p>4. Seinble, that where the grading occurs as a separate act of the public authorities and so long after the opening of the street that the assessment of the damages at the time of the appropriation cannot include those resulting from the grading, the latter may by ascertained by a second view.</p> <p>5. The Supreme Court will not, on error to a judgment in an appeal under the Act of June 13th 1874 (Pamph. L. 283), from the report of viewers appointed to assess damages resulting- from the opening and grading of a street, take notice of the fact that such grading was done subsequently to the filing of the report appealed from, where nothing to that effect appears on the record.</p>

<p>October 12th 1881. Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, Jj.</p> <p>Error to the Court of Common Pleas No. 2, of Allegheny cov/nty: Of October and. November Term 1881, No. 193.</p> <p>Assumpsit, by Charles B. Fendriek and Peter Young against F. Kaiser, on a promissory note for $135, signed “ Miller, Fendriek <& Co.” to the order of F. Kaiser and by him indorsed. The plaintiffs filed an affidavit of claim, wherein they averred that said note was given by John Miller, a' copartner with plaintiffs, in the firm of Miller, Fendriek & Co., without their knowledge or consent, for an antecedent debt of said Miller and others, formerly copartners, trading as Bardoe, Fried & Miller; that the note in suit was given by said Miller not on account of the business of the firm of Miller, Fendriek & Co., but for and in place of a note previously given by Bardoe, Fried & Miller, for the price of a horse sold by said Kaiser to Bardoe, Fried & Miller, for which neither the firm of Miller, Fendriek & Co. nor the said plaintiffs, members thereof, were liable; that Kaiser indorsed the note in suit for value before maturity to one Enrick, who, on nonpayment thereof at maturity, brought, suit thereon, whereupon the plaintiffs, by reason of the wrongful acts of the defendant, were compelled to and did pay the amount ■thereof to said Enrick who delivered the same to the plaintiffs.</p> <p>The defendant, in his affidavit of defence, averred, inter alia, “that for said note a full and valuable consideration was given by said defendant to said makers, which consideration was received by said firm of Miller, Fendriek & Co., and became assets of said firm.” A rule for judgment for want of a sufficient affidavit of defence was discharged by the court.</p> <p>On the trial, before Kirkpatrick, J., the plaintiff’s counsel proposed to read, as admitted under the rule of the court, the material portions of the jfiaintiffs’ affidavit of claim. Objected to, because “all of the material averments in the affidavit of claim are denied in defendant’s affidavit of defence.” Objection overruled, and evidence admitted; exception. (1st assignment of error.)</p> <p>The court admitted in evidence, under objection by defendant, the note sued on. (2d assignment.)</p> <p>Defendant’s counsel proposed to show “ that Mr. Kaiser sold to the firm of Bardoe, Fried & Miller, a horse for $135, and that he received from said firm of Bardoe, Fried & Miller, a promissory note therefor; that before maturity of said note, the firm of Bardoe, Fried & Miller was dissolved, Mr. Miller forming a copartnership with the plaintiffs in this case; that by agreement between Miller and Mr. Kaiser, the firm of Miller, Fendriek & Company were to assume the indebtedness originally contracted by Bardoe, Fried & Miller, and -this, as Mr. Kaiser was informed by Mr. Miller, by the consent of the firm of Miller, Fendrick & Company. Further, that the horse mentioned was taken by the firm of Miller, Fendrick & Company and used by them in their business ; that he received this note upon which suit is brought from Mr. Miller, without knowledge that any objection was raised thereto by the remaining members of the partnership of Miller, Fendrick & Company, and that he indorsed the same without such knowledge for value.” Objected to ; objection sustained. (3d assignment.)</p> <p>Defendant’s counsel then proposed to prove “ that the defendant sold to Miller, Fendrick & Company a horse, and that he received the firm note of Miller, Fendrick & Company in payment for it; that he indorsed the note so received before maturity and without knowledge that the same was not given in the course of partnership business.” Objected to; objection sustained. (éth assignment.)</p> <p>The defendant requested the court to charge “that under the pleadings and evidence the plaintiff is not entitled to recover.” The court refused the point, and instructed the jury, “if you believe the testimony of the plaintiff, which is uncontradicted, you must render a verdict for the plaintiffs.”</p> <p>Verdict for the plaintiffs for $139.95, and judgment thereon. The defendant took this writ, assigning for error the rulings on evidence and the instruction of the court as above.</p>

October 13th 1881. Before Sharswood, C: J., Merour, Gordon, Paxson, Trunket, and Sterrett JJ. Green, J., absent. Appeal ‘ of James Fuller from a decree of the Orphans’ Court of Allegheny comity, sustaining exceptions to his account as guardian oi Richard A. and Mary C. Beatty, minor children of Robley D. Beatty, deceased: Of October and November Term 1881, No. 93.

<p>1. Where one person deposits money with another for investment faith' the understanding that the recipient is to pay interest on the amount until invested, the relation established between the parties is that of debtor ,and creditor, not that of trustee and cestui que trust.</p> <p>2. A. sent $1,300 to B. for investment with the understanding that B. was to pay interest thereon until invested. B. deposited the amount in-bank, and afterwards becoming insolvent, absconded'. A. demanded pay»-, ment from the bank of the. $1,300, which was refused, and on the same day, the money was paid by the bank to the sheritf by virtue of a writ of i sequestration directed against B. In a suit by A. against the bank to re; cover the amount of the deposit, Meld, that the agreement to pay interest on the fund until invested, constituted B. the debtor of A., and not his trustee, that hence the sumdeposited in bank was the money of 13., not of A.; and that, therefore, the plaintiff was not entitled to recover.</p> <p>3. Where the court below negatives a point of law presented by counsel in which the facts are stated hypothetically, the Supreme Court will, on error, assume that the jury would have found the facts as stated in the. point.</p>

<p>October 13th 1881. Before Sharswood, C. J., Mergur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.</p> <p>Error to the Court of Common Pleas No. 1, of Allegheny cotmiy: Of October and November Term 1881, No. 105.</p> <p>Assumpsit, by Zuck & Henry against G. T. Rafferty et al., trading as McClure & C.o. The action was brought November 2üth’1879, the writ served andmarr. filed the same day, to recover $1,500 due plaintiffs for coke delivered to the defendants during tlie month of October, 1879, under a written contract. The fact of delivery and the price was not disputed.</p> <p>On' the trial, before Collier, J., the defendants claimed to set off damages sustained by them by reason of the failure of the plaintiffs to" comply with a subsequent contract for the delivery of coke from and after December 1st 1879, at a stipulated price. The last mentioned contract was consummated by correspondence November 11th 1879, performance to begin December 1st 1879. The plaintiff objected to the admission of any evidence relating to the second contract, upon the ground that the time of its performance did not commence until after the. bringing of this action, and that consequently damages arising from any breach thereof could not be set off in this action. The court, however, admitted the evidence, which showed the existence of said second contract, and notice given on November 19th 1879, by plaintiffs to the defendants that they could not comply with the same, to which notice the defendants replied in the following letter:</p> <p>Pittsburgh, December 4th 1879.</p> <p>Messrs. Zuck & Henry, Conriellsville, Pa.</p> <p>Gents: — We beg to draw your attention to contract between us by which you agree to furnish us the product of the Eldorado Coke Works [forty ovens); also, product of ovens that may be built during the continuance of the contract from December 1st 1879, to May 31st 1880, inclusive, and to advise you that we have been and are now prepared to receive the coke'under said contract. If shipments on our account are not at once commenced we will go into the market and buy an equal amount of coke which you fail to deliver us, and will hold you responsible for any difference in price which we may have to pay, and will retain the balance which we now have in our hands to secure us against any loss or damage which we may sustain from your failure to comply with contract.</p> <p>Tours most respectfully,</p> <p>McClure & Co.</p> <p>, The defendants then proved, under objection, the failure of the plaintiffs to deliver coke under the second contract, and the purchase by the defendants of coke in the market atan advanced price, whereby they suffered damages largely exceeding in amount the plaintiffs’ claim, for which they asked a verdict and certifícate in their favor against the plaintiffs.</p> <p>The plaintiffs presented, inter alia, the following point:</p> <p>“ 8. A notice oE an intended breach of contract will operate as a breach only if accepted and acted upon by the other party, who may, if he pleases, disregard the notice and insist upon performance according to the contract, and if he does so insist upon performance he cannot afterwards rely upon such notice as a breach.</p> <p>“ The defendants’ letter of December 4th 1879 (Exhibit 12), shows that defendants did insist upon performance by plaintiffs according to the contract. No cause of action therefore accrued to the defendants until after the suit was brought, and the defendants are not entitled to set off the damage in the action for that reason.</p> <p>Answer. — As a whole, this point is refused.”</p> <p>The court charged the jury, in substance, that the defendants were entitled to set off damages sustained by reason of the plaintiff’s breach of the second contract, and that the damages were to be measured by the difference between the price at which the plaintiffs agreed to deliver the coke and the market price during the period 'of the contract.</p> <p>The jury found a verdict for the defendants and certified a balance in their favor of $36,150.12, and judgment was entered thereon. The plaintiff thereupon took this writ of error, assigning for error the refusal of the above point.</p>

October 14th 1881. Before Shakswood, C. J., Mercue, Gordon, Paxson, Trbnkey and Steerett, JJ. Geeen, J., alisen t. Certroraei to and ajipeal from the Court of Common Pleas No. 1, of Allegheny eomvty: Of October and November Term 1881, No. 187. This was an appeal by Thomas H. Phelps from an order of the said court directing the sheriff to sell certain lands, taken in execution under a writ of levari facias, in separate lots and in a specified order.

<p>1. The penalty provided by section 26 of the Fee Bill Act of March 28 th 1814, P. L. 364, upon any officer taking greater or other fees than those hud down by the Act, cannot be imposed upon officers who have no right to charge fees of any kind.</p> <p>2. A collector of delinquent taxes in Allegheny county, appointed by virtue of the provisions of the act of May 1st 1861. Pamph. L. 455, is not subject to the penalty prescribed by the said Act of 1814 for taking illegal fees.</p> <p>3. Semble, that by virtue of the provisions of the act of April 8th 1864, Píimph. L. 316, such collector of delinquent taxes is entitled to collect as his full compensation ten per cent, over and above the amount of the tax only. Any additional charge of any kind is illegal and void.</p> <p>4. Semble, moreover, that said collector has no right to issue a warrant to a constable to collect delinquent taxes. Such a warrant is ultra vires and the constable has no power to execute it.</p>

<p>October 14th 1881. Before Sharswood, O. J., Mercur, 'Gordon, Paxson, Trunket and Sterrett, JJ. Green, J., absent.</p> <p>Error to the Common Pleas No. 2, of Allegheny eowni/y: Of October and November Term 1881, No. 226-J-.</p> <p>This was an action of ejectment by Frederick Werner against Frederick Becker apd Anna Maria Becker his wife, and Louis Schafer, for a certain tract of land with the buildings and improvements thereon erected, situate on East street in the city of Allegheny.</p> <p>On the trial, before White, J., the following facts appeared: On March 30th 1877, Edward Schenley and wife executed to Frederick' Becker a lease of the premises in question for a period of twenty years at an annual rental of $400. The lessee in said lease covenanted to pay said rent and also all taxes or assessments in the nature thereof that might be charged against the premises during his term. Said lease also contained, inter alia, the following provisions: “ In case . of violating these cove-1 nants, or any of them, or of transferring this lease without the written sanction of said lessors, said lessee and his assigns shall forfeit said lease and improvements, and lessors may, either with or without any writ, or legal process, at their option, re-enter and hold said premises and the improvements, buildings, &c., from which time all claims, by defaulting lessee, shall wholly cease. Improvements by said lessee erected, may be removed from said premises at the termination of this lease; provided said covenants have been kept and all arrearages, taxes, assessments, &c., for full term of lease as aforesaid, have been fully paid. But it is herein expressly understood and agreed, that said buildings, improvements and other property on said premises, are subject and held liable to distraint and sale under warrant, in like manner as personal property, for said rent, taxes, assessments and charges ; and at any time, in case of failure to pay the same, said taxes, assessments, charges, rents, &c., aforesaid, and at such time due, may be included in, as part of, and do really make, the amount of rent due, and may, at the option of the lessors, be included in and distrained for, on the premises; . . . . arid further, it is herein expressly stipulated that no receipt or distraint for simple ground rent is to be considered or claimed as a waiver of right to distrain for, or otherwise enforce payment of, any balance of taxes or other arrears, as aforesaid ; also, that other remedies are not waived by lessors.”</p> <p>Becker entered into possession of said premises in pursuance of the above lease. A number of small houses thereon erected he sub-let to various tenants. Other improvements he himself used and occupied.</p> <p>In February 1878, Becker and wife executed a mortgage of certain other premises belonging to Mrs. Becker, and also of all their right, title and interest in the leased premises. This mortgage was duly recorded, but was not accompanied by a copy of the above lease.</p> <p>On July 1st 1879, $500 rent being in arrears upon the lease, Torrance, who was the agent of the lessors, directed T. H. B. Patterson, Esq., counsel for the estate, to issue a landlord’s warrant for that amount. Patterson accordingly drew up such a warrant, which was placed in the . hands of one Irwin, a constable. At the time of the issuing of the said warrant, certain taxes assessed upon said premises were due and unpaid, the amount thereof not being, however, included in the warrant. Irwin, by virtue of said warrant, proceeded to levy upon and sell at constable’s sale, on July 18th 1879, certain of the improvements on said premises, consisting of two houses, a large stable and other outbuildings, occupied by Becker. From this sale sufficient was realized to discharge all the arrears of rent due. The purchaser was one Louis Schafer, who bought in the interest of and in trust for Mrs. Becker, with nioney advanced from her separate estate. A bill of sale for said improvements was after-wards duly delivered to him.</p> <p>On July 23d, five days after the date of said sale, Patterson, acting under the instructions of Torrance, proceeded to declare the leasehold forfeited for non-compliance by the lessee with his covenants. "With regard to his action in this matter he testified as follows: “ Mr. Torrance had told me that the rent was not paid, and directed me to forfeit it. I drew up a notice in writing and went over on to the premises, took possession of the leasehold, served notice on the sub-tenants there in the houses, notified them that the estate took possession of the property, and notified Mr. Becker.”</p> <p>After this date Becker remained in possession of the premises as theretofore, Schafer paying the rent, which he testified was furnished to him out of Mrs. Becker’s separate estate.</p> <p>The interest being in arrear upon the mortgage executed by Becker and wife, the mortgagee, on July 29th 1879, issued a scire facias thereon, and having obtained judgment caused a levari facias to be issued, directed against “ all the right, title and interest ” of Becker and wife in the premises in dispute. At the sale under said last-named writ, Frederick Werner became the purchaser, and a sheriff’s deed being afterwards executed to him, lie then brought the present suit.</p> <p>The court charged, inter alia, as follows : “ The defendant contends that the mortgage, not having that lease accompanying it, or recorded with it, is invalid, and hence the sale under it is worth nothing. The plaintiff replies that the Beckers, being the mortgagors, cannot take advantage of that. 1 have great doubts myself whether the mortgage is really a valid mortgage, but that is a question I will reserve to be considered by the court hereafter, and for the present instruct you it is a good and valid mortgage. . Your verdict is for the plaintiff, to be subject to the consideration of the court in banc of that question, which is presented in the second point of the plaintiff’s counsel. ,</p> <p>“ The defendants contend further that the sale by the constable on the landlord’s warrant divested the mortgage. . . . 1 answer that by saying, that the constable’s sale does not divest the mortgage.</p> <p>“ Third. Another ground of defence is that this lease to Becker was. forfeited by Mr. Patterson as attorney for the Schenleys. . . . The evidence is uncontradicted that Mr. Torrance, as the agent of the Schenleys, issued his landlord’s warrant and placed it in the hands of a constable, who made a levy, and on the 18th day of July made a sale for an amount sufficient to cover all the arrears of rent then due. [For Mr. Patterson, therefore, to go on the premises on the 23d of July and claim that he had forfeited the lease by so notifying the tenants, is a manifest and palpable absurdity.] If the "Schenleys had the right to forfeit the lease for the nonpayment of rent, they could have pursued that course; but they did' not do so; they issued a landlord’s warrant, made a sale for an amount sufficient to pay the rent in arrear, and according to Mr. Patterson’s testimony, on the 23d of July, had collected it. [I say, to attempt to forfeit the lease of Becker without notice to him, and under such circumstances, was a manifest and palpable absurdity.]</p> <p>“Still another question is presented by defendants’ counsel; that there were some taxes on the premises at that time unpaid. . . . . [Mr. Torrance might, at the time he issued his landlord’s warrant in July, 1879, have included all the arrears of taxes at that time, but he did not;' he issued his landlord’s warrant simply for his rent due, leaving the taxes unpaid ; he could not then forfeit the lease simply because there were arrears of taxes unpaid. I don’t remember that there was a particle of evidence in, this case to the effect that Mr. Patterson or any person ever notified Mr. Becker that they would forfeit the lease.] ”</p> <p>Yerdict for plaintiff accordingly. Subsequently the court, in an opinion by White, J., entered judgment for plaintiff on the point reserved, holding that the mortgage of the lease was authorized by the act of April 27th 1855, § 8 (P. L. 369), and further, that Mrs. Becker, having executed the same, and suffered judgment 1o be entered against her thereon, and a sale to take place thereunder without making any defence, was estopped from setting up the invalidity of said mortgage because of the failure to record the lease therewith.</p> <p>Plaintiff thereupon took this writ, assigning for error, inter alia, the portions of the charge above cited in brackets, and the entry of judgment for plaintiff on the point reserved.</p>

<p>1. Where a married woman gives a mortgage upon her separate estate she may, in a subsequent suit thqreon, set up as a defence the fact that she was induced to execute the mortgage by reason of fraudulent representations made to her with reference to the nature of the consideration thereof, even though snch representations were not made by the mortgagee nor with his knowledge and consent.</p> <p>2. It is the duty of all persons taking from a married woman a mortgage of her separate estate, to ascertain affirmatively that she has not been deceived by any false representations of her husband as to the consideration of said mortgage.</p> <p>3. The. mere fact that a paper has been read in the presence of a husband constitutes no evidence that the contents of such- paper are known to his wife.</p>

<p>October 17th 1881. Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunket, Sterrett and Green, JJ.</p> <p>Error to the Court of Common Pleas of Lawrence oonnty: Of October and November Term 1880, No. 201.</p> <p>Debt, by John L. Warnock, for use of John Esson, against William E. Dean and O. P. Stoughton, surviving obligors of TIenry Emery, deceased. The plaintiff filed as his narr. an affidavit of claim showing the cause of action to be a lost joint promissory note under seal, signed by William E. Dean, O. P. Stoughton and one Henry Emery, now deceased, dated August 16th 1869, payable eighteen months after date, for $130, on which there was a credit indorsed of $43.91, paid by Emery. Emery died before the commencement of this suit.</p> <p>The defendant pleaded non est factum, payment with leave, &c.</p> <p>After filing of the pleadings and before the trial, which was had before Bredin, J., the note was found. When offered in evidence, it was apparent on the face of the note, that the date had been changed by erasing the date “ September 7th” and writing above it “ August 16th,” and also by erasing the words “ fifteen months after date ” and inserting the words “ eighteen months after date.”</p> <p>The plaintiff’s counsel, to explain the alteration, called the legal plaintiff, John L. Warnock, whose testimony and the objection thereto, as shown by the printed bill of exceptions, was as follows: — ■</p> <p>“ The note is the same as when I accepted it. I can’t remember who brought it. My best recollection is that I got it from some of the parties.</p> <p>“ Oross-examined: — This note I think I received in New Castle. Was never up at Dean’s 1 but the time we put up the machine.</p> <p>“ Defendants object to competency of John L. Warnock, the suit being against defendants as surviving obligors. Objection overruled and exception noted and sealed.</p> <p>“It might have been changed in New Castle. The time wasn’t so long when I sold the machine. I don’t know when the alteration was made — whether before or after the note was signed, or who by.</p> <p>“ Re-direct:- — -I never made any alteration.”</p> <p>The court charged the jury that the note being offered with an alteration apparent on its face, the burden was on the plnizitiff to explain to the satisfaction of the juz-y that the alteration was made before deliveiy, and that, if so explained, the verdict should be for the plaintiff.</p> <p>Verdict for the plaintiff for $186.10, and judgment thereon. The defendazits took this writ of error, assigning for error the admission of John L. Warnock, legal plaintiff, as a witness,- the suit being against defendants as surviving obligors of Henry Emery, deceased, who was a joint maker in the note.</p>

<p>1. A county is not liable to an official stenographer appointed by virtue of the provisions of the act of May 8tli 1876 (Paraph. L. 140), for transcripts of his notes furnished by him, unless said transcripts be made by order of court or to be filed in performance of the stenographer’s general duty.</p> <p>2. A county is not liable to such stenographer for a transcript furnished by him at the request of counsel, although the same be filed in the cause and constitute part of the record thereof.</p>

October 18th 1881. Before Shabswood, O. J., Mebcur, Gordon, Paxson, Teunket, Steeeett and Green, JJ. Eeeoe to the Court of Common Pleas of Erie county: Of October and November Term 1881, No. 265. Feigned issue. On October 6th 1879, judgment was entered on a judgment note with warrant of attorney, dated October 1st 1879, payable October 2d 1879, in favor of Agnes C. Walker against William M. Caughey, Thomas M. Walker and C. J. Caughey.

October 17th 1881. Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.' Error to the Court of Common Pleas of Ola/i'ion cownty : Of October and November Term 1881, Nos. 249 and 250. Two actions of ejectment by W. R. and E. M. Reck against E. E. Clapp, to recover tlie undivided one-fourth of two tracts of land in Clarion county.

October 18th 1881. Before Sharswood, O. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Error to the Court of Common Pleas of Forest county: Of October and November Term 1881, No. 292.

<p>October 18th 1881. Before Sharswood, O, J., Mecrur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.</p> <p>Error to the Court of Common Pleas of Erie comity: Of October and November Term 1881, No. 141.</p> <p>Assumpsit by the Erie Dime Savings and Loan Company, against Frank F. Steinei’, administrator of Jolin G. Braun, deceased, upon two promissory notes given by one Henry Stalil as principal, and the said J. G. Braun as surety. The defendant pleaded non assumpsit, and payment with leave to give special matter in evidence. When the case was called for trial, before Brown, P. J., defendant’s counsel moved to withdraw the said pleas and enter the simple plea of “ payment.” This was allowed without objection.</p> <p>The plaintiff, having put in evidence the notes sued upon, rested. The defendant offered in evidence the deposition of Iienry Stalil, deceased, which had been taken under a rule to take depositions. Objected to, on the ground that Stabl, being the principal in the said notes, was interested in the result of the suit, and, the action being against an administrator, the act of 1869 was not operative to render bis testimony competent. Objection sustained; exception.</p> <p>The defendant then offered in evidence Heny Stabl’s bankbook, showing deposits made by him in the corporation plaintiff, after the notes in suit became due, of moneys largely iu excess of the amount of said notes. Objected to, as the offer does not show that any of the money deposited was appropriated to the payment of the notes, and because irrelevant under the plea of payment. Objection sustained ; exception.</p> <p>The court instructed the jury under the pleadings and evidence to find a verdict for the plaintiff. As to the amount of the verdict the court said:—</p> <p>“ The counsel have made a computation of the amount due, on the basis of ten per cent, interest, and five per cent, attorney’s fees, and under the evidence we say to you that under the special law having reference to the Dime Savings Bank, it may be unjust, but as to that we have nothing to do; the law gives them the right to charge ten per cent., and we instruct you that that, should be the measure of interest, together with the five per cent, added.”</p> <p>Verdict for the plaintiff for the full amount claimed ($2,416.74) and judgment thereon. The defendant took this writ of error, assigning for error the rejection of his offers of evidence, the direction to find a verdict for the plaintiff, and the portion of the charge relating to the assessment of damages above quoted.</p>

<p>1. Where the evidence in a case is all one way, and is so satisfactory that a court would not sustain a verdict that should find against it, the Supreme Court will not reverse the judgment because the court below declared the true effect of the evidence instead of submitting it to a jury.</p> <p>2. Eister v. Paul, 4 P. F. Smith, 196, followed.</p> <p>3. Where the licensee of a patent invalid by reason of a prior outstanding patent for the same invention, can show that the owner of the prior patent is asserting his exclusive right thereto, by supplying the market willr the patented article, and forbidding all interference on the part of others, whereby said licensee is deprived of the enjoyment of the monopoly for which he contracted, he may defend in an aetiou for royalties on the patented articles, on the ground of actual failure of consideration.</p> <p>4. Semite, however, that while the patent is apparently valid and the licensee is enjoying the benefit of the supposed validity, lie is bouud to pay the stipulated royalty, and cannot set up as a defence the actual invalidity of the patent.</p>

<p>October 18th 1881. Before Sharswood, O. J., Mercub, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.</p> <p>Error to the Court of Common Pleas of Erie comity: Of October and November Term 1881, No. 85.</p> <p>Case, by Frederick C. J. Fuess, by his next friend Joseph Fuess, against the School District of the City of Erie, to recover damages for personal injury caused by the alleged negligence of the defendant.</p> <p>On the trial before Galbraith, P. J., the following facts appeared :</p> <p>The plaintiff, a boy of about fifteen years of age, was a pupil in Public School No. 7, in the city of Erie. On May 13th 1875, the School Board, having determined to make some improvements to the building, entered into a contract with one John Hendry, a builder, the material provisions of which were as follows:</p> <p>“ 1. Party of the first part accepts the tender made by party of the second part, for the extraordinary repairs ordered upon public school building No. 7, at the sum of $7,460.</p> <p>“ 2. Second party agrees to furnish all the materials and perform all the work required for said public school building No. 7 in strict compliance with the plans and specifications prepared by Henry Sheuk, under the superintendence of said Henry Shenk or such other person as said first party may designate, for said sum of $7,460.</p> <p>“ 3. First party will deliver possession of said building to second party on the 3d day of July 1875, and said work must be fully completed, and the premises ready to be re-delivered to first party, on or before the 1st day of September 1875. First party may be able to deliver possession of premises to second party at an earlier date than July 3d 1875, but is not bound to do so.</p> <p>“i. Payments for said work will be made upon monthly estimates of the superintendent, and twenty per centum of all such estimates will be retained by first party until the final completion and acceptance of the work.”</p> <p>On the same day, the board entered into an agreement with Henry Slienk, whereby the said Sliink agreed “ to superintend the work proposed to be done under the contract this day signed between first party and John Hendry for extraordinary repairs to public school building No. 7,” and “to devote all the time to said work necessary to a careful and complete superintendence of the same.” Slienk was the architect, who had drawn the plans and specifications for said improvements. Both these contracts were formally approved by resolution of the Board of School Directors on May 15th 1875. Meetings of the school board were bold on the 3d and lltli days of June following, but no further action was taken concerning the giving of possession to the contractor at an earlier date than tliat named in the contract, viz.: July 3d. .</p> <p>About the 21st of June 1875, before the school bad adjourned for the summer vocation, Hepdry, with his workmen, commenced excavating tlie earth from under the building and around tlie pillars which supported the floor, to the depth of from two and a half to three feet, leaving mounds of gravel under the pillars. This work was begun by tlie direction or permission of Slienk. Slienk testified, liowever, that on the afternoon of the 22d of June he ordered tlie work stopped, because the men had taken out as much earth as it was safe to take from around the piers; that he went to the building on the next day about 11 a. m., and discovered tliat the men were still at work. He testified : “ I demanded to know why they were there at work ; I felt cross about it, and spoke crossly to them wlien I went in; I found that they had done that which was agreed they should not do; they had removed the pillars under two of the beams, and sliored them up with timbers, and were waiting for school to adjourn to dig out and remove the others; they said Hendry had been there that morning helping them to do it; this was contrary to my instructions, not that 1 had any authority to stop them, but did it as a matter of precaution ; I found fault about it, and said this work was to be stopped yesterday, and you were to do no work here to-day; they laughed at it, and said Hendry had been there, and they wore not going to kill anybody; I said a good deal to them about it; they said they would wait till school was oat, and then remove the other pier or piers ; I then went back to Mr. Wilkins’s house,. where Mr. Burton was waiting for me.” ....</p> <p>There was some evidence that two members of the school board visited the premises after the work had commenced and that they did not interfere or direct it to be stopped.</p> <p>Between 11 and 12 o’clock on the same day (June 23d), one. of the pillars in the basement, which had been undermined, sunk, thus taking away the support from an iron column supporting the floor of the second story, and causing the column to fall among the children in 'the school room on the first floor, whereby the plaintiff was seriously injured.</p> <p>The defendant presented, inter alia, the following points:</p> <p>3. The time for beginning the work of repairing school No. 7, having been fixed by the written contract with Hendry as July 3d 1875, no member or members of the school board had the power to change that contract so as to permit him to begin at an earlier daté, and having begun at an earlier date, he became a trespasser, and the school district cannot be h ¡Id liable for the damages arising from his unauthorized act, and therefore the plaintiff is not entitled to recover. Answer. No member of the school board had the power to change the terms of the written contract, but if the contractor, with the knowledge and assent of the superintendent appointed by the board, began the work before the time fixed in the agreement, and was permitted by him to carry on the work with the presence and knowledge of some of the members of the board, and the jury believe from the evidence that the plan and design of the work was in itself such as involved danger to the building, then the liability for injury resulting is not upon the contractor exclusively, but upon the school district. (Third assignment of error.)</p> <p>4. The time for beginning the repairs was a part of the contract with Hendry, and no authority from the defendant having been proven to change the time, and Shenk, the superintendent, having no authority to make any such change, the evidence that Shenk told him to begin work is not sufficient to relieve Hen-dry, or to charge and hold defendant answerable in this case. Answer. This point is refused for the reasons already fully given and explained. (Fourth assignment of error.)</p> <p>Yerdict for the plaintiff for $1,291.66 and judgment thereon. The defendant took this writ of error, assigning for error, inter alia, the answers to the above points.</p>

<p>1. A., a police constable of a municipality, commissioned for a period of one year, was dismissed during Iiis term of office by the mayor of the city for unfaithful performance of hi3 duties. He thereupon presented a petition fora writ of quo warranto directed to said mayor to show cause why he occupied his office, alleging that though respondent had taken toe oath of office customary in the municipalty he had failed to take that prescribed by Article VII. of the Constitution. Held, that the petitioner, having no claim to or interest in the office of mayor, and no absolute title to be restored to his position in the event of the ouster of the respondent, was not entitled to the writ by virtue of the provisions of tile Act of June 14fch 1836, section 2, Pamph. L. 623.</p> <p>2. A writ of quo warranto is not a writ of right and the courts are not bound to issue it except in the exercise of a sound discretion.</p> <p>3. The facts of the present case made it perfectly manifest that a mere spirit of personal revenge was the animating cause of the application for the writ. Hence, on this account alone, such application should have have been refused.</p> <p>4. Article VII. of the Constitution does not require municipal officers to take the oath of office prescribed thereby. The Act of April 18ih, 1S74, sect. 1, Pamph. L. 64, does require them to take such oath. It does not, however, impose any penalty of forfeiture of office for a violation of its provisions, but, on the contrary, imposes a specific penalty of fine and imprisonment. Hence, semble, that the respondent having taken the oath customary in the municipality, it was extremely doubtful wheLher there was any merit whatever in the application.</p>

<p>October 19th 1881. Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, J J.</p> <p>Error to the Court of Common Pleas of Clarion county: Of October and November Term 1881, No. 143.</p> <p>Assumpsit, by McKinley & Bonnet against Keck & Brenemau.</p> <p>The evidence and facts in this case are fully set forth in the opinion of the court. The defendants below requested the court to direct a verdict in their favor. The court declined so to do, and submitted the case to the jury on the evidence. Verdict and judgment for the plaintiffs, whereupon the defendants took this writ of error. The principal assignment of error was the submission of the evidence to the jury.</p>

<p>October 20th 1881. Before Sharswood, C. J"., Mercuh, Gordon, Paxson, Sterrett and Green, JJ. Trunkey, J., absent.</p> <p>Error to the Court of Common Pleas of Vena/ngo county : Of October and November Term 1881/ No. 226.</p> <p>Trover, by A. D. McDonald, Henry Stewart and A. D. McDowell, “surviving partners of E. G..Pluiner, in the Stewart & Plumer Oil Well, situate,” &e., against S. Simcox, H. O. Zeigler and Porter Phipps, to recover the value of certain machinery and oil-well fixtures.</p> <p>On the trial, before Taylor, P. J., the plaintiffs proved the title of the firm of Stewart & Co., to the goods prior to December, 1878. The defendants claimed under one Wm. King, and offered in evidence the transcript of a justice of the peace of said county, showing a suit by William King against Henry Stewart & Go., wherein the plaintiff’s affidavit showing-that the defendant was absent from the county, and the plaintiff filing bond, a writ of attachment was issued by the Justice October 31st 1878, returnable November 4th 1878; returned on that day, goods attached (as per schedule); whereupon, on the same day, defendants not appearing, summons issued, returnable November 7th 1878; November 5th, returned “defendants not</p> <p>found in the county”; November 7th. Judgment for plaintiff for $135.90. December 9th. Execution issued to constable; returned December 17th, “Levied and sold to ffm. King the above described property, for $50.”</p> <p>Objected to, on the ground that the transcript shows on ■. its face that the judgment was void, the summons not having * been made returnable “not more than eight nor less than five days from date,” as required by the Act of 1810, Purd. Dig. 850, pi. 40. Objection overruled; exception.</p> <p>The defendants presented the following point:</p> <p>“ That this action having been brought by A. McDonald & Co., as partners, and it appearing that H. Stewart is named as one of the firm, but has no interest in the partnership, all his interest having been sold prior to the bringing of this suit, the plaintiffs cannot recover.” Affirmed.</p> <p>The court charged the jury as follows;</p> <p>“It appearing in evidence by a record of the judgment before the justice of the peace, showing a judgment against Henry Stewart & Co., and a sale of the property in dispute under that judgment, as alleged, and the purchase of the property by the defendants’ vendor; we instruct you that judgment was a valid judgment against Henry Stewart, and that the sale by the constable (if you believe such sale to have taken place) divested all his interest in the copartnership property That being so, and the plaintiff declining to amend his pleadings and drop the name of Stewart, as we suggested, or mark for use of the other plaintiff in the action, Stewart has no right to recover in this action, as his interest was divested by the constable’s sale; but not the interest of the other copartners; therefore plaintiffs cannot recover in this action, if you believe there was a sale of this interest there; and that these defendants purchased from the constable’s vendee at that sale; . Stewart’s name is here as ' one of the plaintiffs, and he has no right to recover, for all his interest was divested by that sale; but the plaintiff declines to amend by dropping him, placing it on the grounds that that judgment was not a legal one as against Stewart. Mr. Stewart’s name is still in the papers, and it is not controverted that he is one of the parties now claiming, and as there is no controversy upon the facts, your verdict will be for the defendants.”</p> <p>Verdict, accordingly, for the defendants, and judgment thereon. The plaintiffs took this writ of error, assigning for error, the affirmance of the defendant’s point, and the charge of the court.</p>

<p>October 20th 1881. Before Sharswood, O. J., Meroor, Gordon, Paxson, Sterrett,' and Green, JJ. Trunket, J., absent.</p> <p>Error to the Court of Common Pleas of Erie county : Of October and November Term 1881, No. 221.</p> <p>Alias sci. fa. to revive judgment, by C. A. Hitchcock to use etc., against Philo Huntley, with notice to Sarah Porter, terre-tenant.</p> <p>From the records of the court and from the affidavit of defence filed by Sarah Porter, the following facts appeared:— On October 6th 1875, Philo Huntley, being the owner of a certain house and lot, gave a judgment note to C. A. Hitchcock for $400, on which judgment was entered on October 8th 1875. On March 14th 1876, Sarah Porter purchased from Huntley the said premises for a valuable consideration by deed recorded March 17th 1876, when she took possession of the premises, which she has since continued to occupy. She had no knowledge in fact of the existence of said judgment, but relied on the warranty in the deed against incumbrances! On November 23d 1877, Hitchcock issued a scire facias against Huntley alone to revive the judgment. The writ was served on him, without notice to Sarah Porter. On March 7th 1881 — within five years from the issuing of the sci. fa. against Huntley, and more than five years after Mrs. Porter’s purchase of the premises — the plaintiff Hitchcock issued an alias sci. fa. to revive judgment. against “ Philo Huntley, defendant, with notice to Sarah Porter and all other terre-tenants.” This writ was served on Sarah Porter April 9th 1881. In her affidavit of defence, she claimed that the alias sci. fa. not having been issued or served upon her until more than five years after the date of her purchase it was inoperative to continue the lien of the judgment as against her title to the said premises.</p> <p>The court (Galbraith, P. J.) made absolute a rule to show-cause why judgment should not be entered for want of a suffi»cient affidavit of defence, whereupon Sarah Porter took this writ of error, assigning for error the entry of said judgment.</p>

<p>October 21st 1881. Before Sharswood, O. J., Merour, Gordon, Paxson, Sterrett and Green. JJ. Trunkey, J., absent.</p> <p>Error to the Court of Common Pleas of Clarion county: Of October and November Term 1881, No. 104.</p> <p>This was an action of covenant by John Plynn and G. S. Hamm, trading as Flynn & Hamm, against the Ben Franklin Insurance Co., of Allegheny,• Pa., upon two policies of fire insurance issued by said company to the plaintiffs, upon a stock, of general merchandise in the plaintiffs’ store in Turkey city, Clarion county. The policies were dated May 3rd 1878, and July 1st 1878, respectively, the-former for $750, the latter for $1000. The policies were alike in form, and contained, inter alia, the following condition :</p> <p>“ 9. Persons sustaining loss or damage by fire shall forthwith give notice of said loss to the company ; and as soon thereafter as possible, render a particular account of such loss, signed and sworn to by them, stating any and what other insurance has been made on the same property, giving copies of the written portion of all policies thereon, also the actual cash value of the property and their interest therein, for what purpose and by whom the building insured, or containing the property insured, and the several parts thereof, -were used at the time of their loss, when and how the fire originated ; and shall also produce a certificate under the hand and seal of a magistrate or notary public (nearest to the place of the fire, not concerned in the loss as a creditor or otherwise, nor related .to the assured), stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has without fraud sustained loss on the property insured to the amount which such magistrate or notary public shall certify.”</p> <p>Flynn & Hamm had at the same time additional insurance on the same stock of goods in nine other companies, to the amount of §11,250.</p> <p>Their store and stock of goods were destroyed by fire July 15th 1878. They “ forthwith ” gave notice of the fire and loss to the insurance company defendant, in accordance with the first clause of the above recited condition.</p> <p>On August-12th 1878, the plaintiffs forwarded to the company defendant formal proofs of loss, sworn to by the plaintiff, Hamm, before a notary public of Edenburg, Pa., — distant five to six miles from the place of the fire, — containing, inter alia, a schedule showing the actual cash value of the property insured, immediately preceding its destruction; also a schedule of the several companies in which the plaintiffs held additional insurance, the amounts of the policies, &c. These proofs of loss contained the following: “ The written portion of which policies are substantially the same as the Ben Franklin policy, aforementioned, as per schedule attached.” The defendant company received the proofs of loss on August 14th 1878.</p> <p>On the trial, before Jenks, P. J., the defendants claimed that the proofs of loss failed to comply with the requirements of the 9th condition of the policies, and were insufficient for the following reasons: because not rendered “ as soon as possi-, ble ” after the fire; because not sworn to before a magistrate or notary public, residing nearest the place of the fire, it being in evidence that a duly qualified magistrate resided at Turkey City; because the written portion of all policies in force were not copied at length in said proofs; and because of general want of particularity in detail. The plaintiffs, while not admitting that the proofs of loss were insufficient, offered the following evidence to show that the company had waived all proofs of loss, viz.: that in pursuance of notice to all the companies, a meeting was held in Emlenton on July 25 th 1878, for the purpose of adjusting the losses payable by the several companies, at which an adjustment of the loss was made; that one Simon Drum, an agent of the defendant company, visited the scene of the fire and came to • Etnlenton on the day of the meeting; that he was invited to attend said meeting, and promised to do so, but did not; but after the meeting he asked for and obtained a copy of the adjustment, which had been made; that in the early part of October 1878, the plaintiffs dre\v a draft on the defendant company in favor of Joseph Horn & Co. for $1339.18, being the proportion of the amount of loss due by the defendant company according to the adjustment made with the other companies ; that this draft was presented to the company by the book-keeper of Horn & Co., and acceptance was refused by the secretary on the ground “that the loss was not due and would not be for a month, and that there was some hitch in the adjustment of the loss,” but that no objection was then made to the proofs of loss ; that the plaintiffs thereupon, on October 10th 1878, drew other drafts on the company defendant in favor of Gr. W. Dilworth, who presented the same to the secretary of the company for acceptance or payment, which "was refused on the same ground as the former draft had been refused; but that on the second visit by Dilworth to Riddle, the secretary of the company defendant, the latter agreed to pay the loss upon the same basis as that for which other companies had compromised, which would reduce the claim to $1050; that this proposition was accepted by the plaintiffs, and then Dilworth called a third time with the policies and Riddle again declined payment, saying there was error in the proofs.</p> <p>This evidence was objected to principally on the ground of variance, the offers being to show a general waiver, while the declaration averred a special waiver in the following terms:</p> <p>‘‘ And plaintiffs further say, that notice of loss, preliminary proofs, and all conditions in said policy to be performed and kept by plaintiffs, were waived, by defendant, to wit: On the seventeenth day of July, a. d. one thousand eight hundred and seventy-eight, said defendant denying all liability for said loss, and pretending said policy and risk had been cancelled and terminated previous to said loss, when in truth and in fact the same had not been cancelled or terminated, but was still in full force and obligatory on defendant.”</p> <p>Objection overruled; exception.</p> <p>The defendant put in evidence the following letter sent by the secretary of defendant company to the plaintiffs on or about the day of its date : — ■ i</p> <p>“ Allegheny, October 18th 1878.</p> <p>“ Messrs. Flynn <& Hamm,-, Pa. :</p> <p>“Dear Sirs: — Enclosed we hand you two blank proofs of loss, on which you will please send us corrected proofs of your loss at Turkey city, the same as furnished the other companies, and oblige,</p> <p>“Yours respectfully, G. D. Piddle, Sect.”</p> <p>The defendants presented, inter alia, the following points:</p> <p>3. The preliminary proofs or particular account of the loss as required by condition No. 9 of these policies to be furnished by the plaintiffs,.are conditions precedent to their right of recovery, and the determination of their sufficiency is for the court; and unless found by the court to be sufficient in this case, or their sufficiency expressly or impliedly waived by defendant, plaintiff cannot recover. Answer. We do not think the proofs of loss sufficiently specific, unless the jury find under the evidence, that the destruction of books, and bills, and goods was so great that the plaintiffs could not reasonably furnish one more full; but proof of loss.or the sufficiency thereof may be waived by the company. For further answer refer to plaintiffs' third, fourth and fifth points (repeated infra.).</p> <p>4. That the paper purporting to be a statement of their loss claimed in this case, dated August 12th 1878, is not such particular account of sucli loss, signed and sworn to by them, as is required by condition No. 9 attached to and made part of such policies. Answer. For answer to this point we refer to our answer to defendant’s third point, which reads as follows: “We do not think the proofs of loss sufficiently specific, unless the jury find under the evidence, that the destruction of books, and bills and goods was so great that plaintiffs could not reasonably furnish one more fulland for further answer refer to third and fourth of plaintiffs’ points (repeated infra).</p> <p>5. That to constitute a waiver of sufficiency of preliminary proofs, or the particular account of the loss.under condition No. 9, plaintiff must show some official act or declaration by the company prior to the expiration of the time within which such account is required to be furnished, dispensing with it — something from which the plaintiffs might reasonably infer that defendant did not mean to insist upon it; that such waiver never occurs unless intended by the company, or unless the act relied on ought in equity to estop company from denying it; mere silence is not enough; that after the expiration of the time for furnishing such account of loss under said condition, or after the actual furnishing of some account in this case, which if found to be insufficient, nothing but the express agreement of the company could revive or revivify the contract.</p> <p>Answer. We cannot affirm this point as stated, and for answer refer to plaintiffs’ third, fourth and fifth points, which we now re-read and affirm, as follows:</p> <p>(3) “ If the defendant received notice as mentioned in second point, and the scene of the fire was visited by Simon Drum, a general agent of the company defendant, who was afterwards requested by one of the plaintiffs to meet with the adjusters and examine books and papers of plaintiffs, and after promising so to do, but did not; and furthermore, that defendant received proofs of loss and retained same until by the terms of the loss became payable, and in the meantime negotiated with the plaintiffs or their agents for a settlement, and afterwards demanded corrected proofs without stating wherein same were to be corrected, verbally demanding simply a reduction of the amount called for in said proofs, such facts are evidence to the jury from which they may find a waiver on part of the defendant of any part or portion of the preliminary proofs.”</p> <p>(4) “ If the jury find the facts as stated in the last point, such facts are evidence from which they may find a waiver of the requirement in the policy regarding the magistrate or notary public from whom a certificate should be obtained, and any defect therein, and also because of the absence of any objections to such preliminary proofs at the time of their reception, or within a reasonable time afterwards.”</p> <p>(5) “ If the jury find from the evidence that the defendant company, by its secretary or other executive officer, waived any portion or part of the requirements' of the policies regarding preliminary proofs or particular account, it would have the effect to strike the same out of the contract, and officers of the insurance company could not thereafter rightfully demand or require the plaintiffs to make new or additional proofs of loss supplying the requirement waived.”</p> <p>9. The interviews and conversations between Riddle, secretary of the company, and Dilworth and Thorn, third parties with no privity of interest, and occurring long after the expiration of that reasonable time within which plaintiffs were required to furnish complete proofs of loss under condition No. 9 of the policies, constitute no waiver, nor do they furnish evidence from which a waiver may be inferred by the jury, of the said conditions by the company. Answer — The conversations referred to in this point, are evidence which we think proper for the consideration of the jury; they must determine under all the evidence and the instructions given, whether there was or was not a waiver. .</p> <p>11. That plaintiffs have proved no express waiver, and have offered no sufficient evidence of an implied waiver by the company, of the sufficiency of the preliminary proof under the 9th condition of tlie policies, and therefore they cannot sustain this action.</p> <p>Answer. We decline to answer this point as requested. We refer the question to bo determined by the jury under all the evidence and the instructions we have given.</p> <p>Yerdict for the plaintiffs for $1875.42 and' judgment thereon. The defendant company took this writ of error, assigning for error, inter alia, the admission of the evidence objected to, the answers to defendant’s points, as above given, and the submission of the question of waiver to the jury.</p>

<p>- October 21st 1881. Before Sharswood C. J., Mekcur, Gordon, Paxson, Sterrett and Green, JJ. Trunkey, J., absent.</p> <p>Error to the Court of Quarter Sessions of Jefferson county: Of October and November Term 1881, No. 228.</p> <p>This writ of error was taken to a judgment of the said court, affirming an order made by two justices of the peace for the removal of Christina Herrick, a pauper, from the Poor District of Rose to that of Beaver township. The' facts of the case, and the questions presented by the assignments of error, are stated in the opinion of the court.</p>