Volume 99 — Pennsylvania State Reports

<p>A municipality in constructing a sewer in one of its streets disturbed and broke the pipe of a gas company, laid some three or four feet distant, from which pipe gas had leaked both prior to and during the construction of the sewer. Complaints had been made to the gas company, but the leaks had not been stopped. The city engineer, under whose supervision the sewer was being constructed, knowing of its condition and of the leakage from the adjacent pipe, entered with a light. An explosion of gas which had penetrated thereto occurred, and the engineer was seriously injured. In an action by him against the gas company to recover damages for his injuries : Held, that the negligence of the company in failing to repair the leaks was the proximate, not the remote cause of the accident, and that the fact, that the city contractor in building the sewer had disturbed and broken the pipe had no effect to shift the cause. Held, further, that the defendant was responsible for whatever consequences might in the nature of things occur from its neglect, although those consequences were such as could not by any ordinary prudence have been, anticipated; that the accident occurring in this case was one of such consequences, and hence that defendant was responsible therefor. Held, however, that if the plaintiff by his own negligence had occasioned the defect in the gas pipe, his suit might thereby be defeated on the ground of contributory negligence. Held, further, that the plaintiff was bound to a knowledge of the probable consequences of the facts of which he was cognizant, and to exercise that ordinary prudence which the circumstances required. Hence, if it was probable that the gas escaping from the leak would find its way into the sower in quantities sufficient to cause an explosion, the plaintiff, being a civil engineer, and knowing what he did, of the condition of the sewer and leakage of the adjacent pipe, ought to have anticipated the result of his act in entering the sewer with a light, and was guilty of such contributory negligence as to preclude his recovery.</p>

<p>1. The Act of Assembly of May 35th 1878 (P. L. 147), providing that all outstanding orders drawn by the military boards prior to the, passage of the Act of April 15th 1873 (P. L. 74), shall be paid by the respective counties out of the general county funds, is a valid and constitutional exercise of legislative power.</p> <p>3. The Act. of April 7th 1870 (P. L. 63), provided for .the imposition of a militia tax in each county, to be laid per capita on such persons as were liable to military duty, but who failed to perform it. Out of the fnnd thus raised each county treasurer was authorized to pay the orders drawn by the county military board. The Act of April 15th 1873 (P. L. 74), repealed the clause imposing the per capita tax, but without making provision for the payment of orders outstanding at that time. The Act of May 25lli 1878 (P. L. 147), provided that said orders should be paid by tlie respective counties out of the general county funds. Held, that said last named act was valid and constitutional.</p>

<p>Certiorari to the Court of Common Pleas of Somerset county: Of October and November Term 1881, No. 21.</p> <p>The material facts of this case, together with the matters assigned for error, are fully set forth in the opinion of the court.</p>

<p>1. Where, id pursuance of the terms of a policy of insurance, the amount of a loss under the policy is submitted to arbitrators agreed upon by the insured and the company, the legal presumption is that such arbitrators have, in making their award, done their duty. This presumption can only be rebutted by clear evidence of fraud, misconduct or mistake.</p> <p>2. The facts of this particular case held not to disclose any evidence of fraud or misconduct on the part of the arbitrators.</p> <p>8. An award of arbitrators will not be set aside on the ground of mistake where it is doubtful whether a mistake has been committed, and where, even if it lias, the mistake is of so insignificant a character as to bo unworthy of attention.</p>

<p>1. Where a juror in a criminal case entertains a fixed and deliberate opinion, no matter how formed, of the prisoner’s guilt, he is incompetent ; and his belief that he can try the prisoner impartially will not remove the disqualification. If, however, his opinion be not fixed and deliberate he is competent to serve.</p> <p>3. A juror in a criminal case being sworn upon his voir dire, replied, in answer to leading questions by the defendant’s counsel, that lie had formed a deliberate conviction from what ho had read as to the prisoner’s guilt. He then proceeded to say that it would require evidence to remove that conviction from his mind, and that to this extent, his judgment as a juror would be affected. On cross-examination, however, ho testified that he had no other deliberate fixed opinion than that which proceeded from what he had read; that he had nothing more than an impression, which would yield to the evidence in the case, and that ho would act impartially and render a verdict according to said evidence. Held, that though the examination in chief apparently showed that the juror had formed a fixed opinion, and thus prima facie rendered him incompetent, the cross examination showed that such was not actually the case, and that therefore the juror vras competent.</p> <p>3i Where a juror in a criminal case has formed an opinion from hearing or reading the evidence upon a former trial, he is incompetent even if the opinion thus formed does not come up to the standard of a fixed opinion.</p> <p>4. A mere opinion or impression which is not fixed, and which is not based upon the evidence of a former trial, but upon the evidence taken on some preliminary examination, does not disqualify, provided the juror can act impartially, and render a verdict upon the evidence and upon that alone, uninfluenced by such previously formed opinion or impression.</p> <p>5. A person mortally wounded was informed by his physicians that there was no hope, and that he must die. He said he knew it, and told all with whom he conversed upon the subject that he would die from his injuries. He then made certain declarations as to his murderer, and immediately after directed his will to be prepared. Upon the will being brought to him he inquired whether if he got well the will would amount to anything. Being told that it would not, he executed it, and afterwards died. Held, that his inquiry as to the efficacy of the will in the event of his recovery did not, of itself, in the face of the evidence, disclose any expectation of recovery on his part, and that therefore his declarations as to his murderer were admissible in evidence as dying declarations.</p> <p>6. The fact that dying declarations have been committed to writing by a bystander, which writing has not been signed by deceased or read over to him, does not exclude parol evidence of such dying declarations.</p>

<p>Error to the Court of Common Pleas of Armstrong cov/nty: Of October and November Term 1881. No. 215.</p> <p>Assumpsit, brought June 29th 1880, by William F. Rumberger and Mary, his wife, in her right, against Edward S. Golden, upon the following due-bill:—</p> <p>“ Borrowed of Mrs. Mary Ann Rumberger thirty-five hundred dollars, payable in one year, with interest from date, June 1st 1877.</p> <p>$3500. E. S. Golden.”</p> <p>The plaintiff’s affidavit of claim, filed with the copy, claimed the amount of the due-bill, with interest, less the sums of $1,000 and $1,200 “ paid on order to E. F. Rumberger,” and two payments of interest of $75 each, which were admitted^as credits, leaving the balance claimed, $1,787.50.</p> <p>Tire defendant filed an affidavit and supplemental affidavit of defence, averring (1.) That he borrowed the money, and gave the note at the express request of Mrs. Mary A. Rumberger, in her husband’s presence, she stating that her husband would thereafter act as her agent. (2.) That soon after the note became due defendant saw Wm. E. Rumberger, the husband, and asked him to bring the note to him that he might pay it; he replied he would see his wife and let defendant know if she wanted the money. A short time afterwards he met defendant and told him that11 Mrs. Rumberger did not want the money; that the bank and the commissioners would not pay six per cent, interest; that he and liis wife wanted defendant to keep the money, and that if he (defendant) would pay six per cent, interest he should ha,ve the money for ten years from the date of the original loan, and upon those terms alone defendant agreed to retain the money, and it is not, therefore, due and payable.” The defendant denied that he liad paid, or allowed any application of payments, on account of the said note, and averred that the payments of $1,000 and $1,200 credited by the plaintiff were not paid on the note in suit, but upon another account.</p> <p>The plaintiff took a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence, which rule the court discharged, whereupon the plaintiffs took this writ of error, assigning for error the order of the court discharging the said rule.</p> <p>There was no consideration for the alleged agreement of extension; it was, therefore, nudum pactum: Partridge v. Partridge, 2 Wright 78; Campbell v. Daly, 25 Leg. Lit. 124; .Blackburn v. Ormsby, o Wright 97; Hartman v. Danner, 24 P. F. Smith 36 ; Shaffer v. Clark, 9 Norris, 94.</p> <p>The advantage to Mrs. Rumberger that the defendant would pay the full legal rate of interest, which was above the market rate, and more than she could get from any one else, was a sufficient consideration to support the new contract to extend the time of payment. A very slight advantage to one party, or a trifling inconvenience to the other, is sufficient consideration to support a contract. The case is not ruled by Partridge v. Partridge, as contended. There the rate of interest was fixed by the mortgage, and it was not shown that the market rate was less, nor that the debtor had offered to pay the debt. In Hartman <o. Danner, cited on the other side, Sharswoot>, J., says: “ It may be, that when there is a contract to pay interest for a specified period on a debt already due, so that the debtor, without the consent of the creditor, is thereby precluded from paying the debt and interest until the term expires, there is an appreciable benefit to the creditor as well as an injury to the debtor.” Such agreement enabled each party to accomplish what each may be assumed to have desired, viz.: a further investment for a definite period at an advantageous rate of interest for the creditor, and an extension of credit for the same time for the debtor. The consideration was mutual and sufficient, and the legal effect of the agreement was to disable the creditor from enforcing collection, and the debtor from making payment, until the expiration of the period stipulated : Chute v. Pattee, 37 Maine 102; Smith v. House, 22 Pittsburgh Leg. Jour. 65 ; Manufacturers & Mechanics Bank v. Bank of Penna., 7 W. & S. 335 ; Harlan v. Harlan, 8 Harris 303 ; Carrier and Baum v. Dilworth, 9 P. E. Smith 406 ; Wilgus v. Whitehead, 8 Norris 133 ; McNish v. Reynolds, 10 W. N. C. 26.</p>

<p>Error to the Court of Common Pleas of Armstrong county : Of October and November Term 1881, No. 181.</p> <p>This was an equitable ejectment, brought in August, 1860, by Thomas Williams against Hugh Donaldson, Jonathan Grinder and Mrs. Joseph Jarvis, to enforce payment of the purchase money of four lots and a building in the borough of Freeport, under articles of agreement dated July 12th 1841, whereby the said Thomas Williams agreed to sell said premises to one Joseph Wilson, in consideration of $2,200, of which amount $200 was paid on the execution of the agreement, and the balance was to be paid in-five annual instalments of $400, with interest. Wilson took immediate possession, and for a number of years occupied the premises as a tannery. He afterwards rented the premises to the defendants, Hugh Donaldson and Joseph Grinder, who sublet a part to Mrs. Jarvis. He then moved out of the county, and died sometime prior to 1849.</p> <p>The writ in this case was served August 18th 1860, on the defendants Donaldson et ah, and on March 18th 1861, judgment was entered for want of an appearance.</p> <p>In 1866, one P. S. Weaver brought an ejectment against Donaldson et ah, recovered judgment and obtained possession of said premises under a claim of title (as stated by defendant’s counsel) paramount to that of Williams. On August 10th 1868, Weaver obtained a quit-claim deed from the heirs of Joseph Wilson, for the consideration of $500. This deed was recorded March 18th 1869. Weaver put one Miller McRae in possession as his tenant.</p> <p>On December 13th 1869, counsel for the plaintiff in this case moved to strike off the judgment entered by default, in 1861, against Donaldson et al. This motion was dismissed in 1872, but was afterwards, in 1876, reinstated, and on March 6th 1876, the court entered an order striking off the said judgment. In May, 1876, the death of the plaintiff, Thomas Williams, was suggested, and his administrators, Sarah D. Williams and Thomas Williams, Jr., were substituted as plaintiffs.</p> <p>In June 1876, the plaintiffs issued an alias summons in ejectment, and caused it to be served on P. S. Weaver and his tenant Miller McRae, and ruled- them to plead. Weaver, protesting that he was not in possession at the time the suit was brouglrt and the writ served, and that he should not be a party to this suit, pleaded not guilty, and that Donaldson and the other defendants (except McRae) are not in possession, having been ousted by him in the above mentioned ejectment, before the striking off of the judgment in this case. McRae pleaded not guilty, under the like protest. Subsequently the deaths of all the defendants, except Weaver and McRae, were suggested, and Weaver having been declared a bankrupt, his assignee in bankruptcy, Isaac Irwin, was substituted as sole defendant.</p> <p>The case was called for trial February 9th 1880, before Bra-din, P. J., and the jury was sworn as to Thomas Williams, administrator of Thomas Williams, deceased, plaintiff, and Miller McRae and Isaac Irwin, assignee in bankruptcy of P. S. Weaver, defendants. The plaintiff put in evidence the articles of agreement of 1841, between Thomas Williams, Sr., and Joseph Wilson, and claimed that Weaver’s title was derived from Wilson. In support of this claim, they offered in evidence the deed of August 10th 1868, from the heirs of Joseph Wilson to P. S. Weaver. Objected to as irrelevant, being dated after the commencement of this suit. By the Court. — “We cannot receive this testimony for that purpose; it not being proposed to follow it by any admission on the part of P. S. Weaver that he proposed to pay the purchase money to Williams.” Objection sustained. Exception.</p> <p>The plaintiff put in evidence, under objection as irrelevant, the record of a judgment, No. 131, December term 1837, Thomas Williams v. Simon Snyder, followed by an execution under which the premises in question were sold at sheriff’s sale to Thomas Williams (the plaintiff), and a sheriff’s deed acknowledged to him therefor. Title was not shown, however, in Snyder.</p> <p>The court entered a compulsory nonsuit, filing the following order</p> <p>“1880, February 10th. After hearing, the court, being of the opinion that the alias summons in ejectment (served on Peter Weaver sixteen years after the original summons was issued and served on original defendants) was irregular.</p> <p>“ And that if the original action by Thomas Williams against Hugh Donaldson, Jonathan Grinder and Mrs. Joseph Jarvis, in which judgment wras taken by default in March 1861, and stricken off in March 1876, on motion of plaintiff, was intended, as is claimed to be, an action to enforce payment of purchase money, the same cannot be sustained' as such for the reason that the heirs and legal representatives of the vendee, Wilson (who was dead before suit was brought), were not made parties thereto.</p> <p>“ And if the said action is to be sustained as a possessory action at common law, then the proper parties have not been substituted as plaintiffs, and the striking off the judgment by default was unnecessary and irregular.</p> <p>“We direct a compulsory nonsuit to be entered against the plaintiffs as the case now stands on the record, and in which the jury was sworn, Thomas Williams, administrator v. Peter S. Weaver’s assignee; and entertain a motion to take off non-suit.”</p> <p>Subsequently the court entered the following order:—</p> <p>1880, May 22d, case called. Mr. Gilpin declines to argue case for plaintiff, Mr. Barclay does not appear, and the court being of the opinion that the court had no power to open a judgment by‘default in ejectment, on motion of plaintiff, after the lapse of eight years, at which time the motion was first made, or after fifteen years when the order opening the judgment was actually made, and that said order and subsequent proceedings were irregular and unauthorized by law, do refuse the motion, and exception noted by the court.</p> <p>The plaintiff thereupon took this writ of errdr, assigning for error the action of the court in entering the nonsuit and in refusing to take it off.</p> <p>In bringing the action, and taking judgment by default, the plaintiff’s attorney believed that Donaldson and the other defendants in possession represented Wilson’s title. In this he was mistaken in fact, they being only tenants under Wilson. When he discovered that Weaver had purchased Wilson’s title from his heirs he rightly moved to strike off the judgment against Donaldson et al., and the court rightly .granted the motion. Weaver, as terre-tenant, was entitled to have the judgment opened, and he suffered no injury by the plaintiff’s action. Where a plaintiff has been injured by the entry of a judgment in his favor by mistake, he may move to strike it off. Equity will relieve in such a case: Gross v. Leber, 11 Wr. 520; Reigel v. Wilson, 10 P. F. Smith 394. Even a third person, not a party to the suit, whose interests are affected by a judgment, may have it opened: Brown v. Simpson, 2 Watts 239. The Supreme Court will, for cause shown, reverse a judgment in favor of plaintiff below on a writ of error taken by him : O’Donnell v. Allegheny Yalley R. R. Co., 14 Wr. 490. The judgment, when stricken off, ceased to have any existence. Tlie action of the court was res adjudicata, and the court could not reverse its former action in this collateral action. Weaver was properly made a defendant in the alias summons, and as he represented Wilson’s title, under his deed from Wilson’s heirs, he was bound to pay the residue of the purchase money under the articles of agreement with Wilson, or give up the land. He mild not escape from the position in which his deed placed him, and if he set up any equitable defence he must show affirmatively such a state of facts as would authorize a chancellor to interfere by injunction : Wain v. Smith, 1 Phila. 362. Lapse of time for more than twenty-one years will not enable a vendee, under articles of agreement, or those claiming under him, to resist payment of the purchase money: Congregation v. Miles, 4 Watts 146.</p>

<p>1. The rules of court and local statutes throughout this Commonwealth authorizing the entry of judgment for want of an affidavit of defence in actions upon recognizances, judgments, mortgages, bonds, etc., have always been limited in their application to cases where actions are brought upon obligations or contracts for the payment of a sum certain. They are not held to apply in actions for torts, nor in actions upon contracts for the payment of an uncertain sum, or where there is no standard by which to liquidate the judgment.</p> <p>3. The rule of court of Westmoreland county, which provides, inter alia, that in actions on recognizances the plaintiff shall, in case of the defendant’s default in filing an affidavit of defence, be entitled to judgment, has no application in the case of an action upon the official recognizance of a sheriff for a breach of his official duty.</p> <p>3. Whether the courts have power to make rules which would apply in such case, not decided.</p>

<p>Error to the Court of Common Pleas of Armstrong coimty: Of October and November Term 1881. No. 177.</p> <p>Ejectment, by Peter S. Weaver against John Morton and Nancy Morton, his wife, for two lots of ground in the borough of - Freeport.</p> <p>On the trial, before Bradin, P. J., both parties claimed under Helen Johnston, wife of John Johnston, who died in 1859, seised of the premises in question.</p> <p>The plaintiff claimed as purchaser at sheriff’s sale, and offered in evidence the record of a judgment obtained by him against Mrs. Johnston’s administrator, followed by a scire facias to bring in her heirs and surviving husband, which was duly served on said parties, with the exception of one of the heirs, Hess Johnston, whose interest was one undivided fourth. Judgment was duly obtained against said heirs, an execution issued, the premises sold at sheriff’s sale to the plaintiff, and a sheriff’s deed executed to him therefor. Objected to, on the ground that the original judgment was void, having been obtained against the administrator of a married woman, on a claim for alleged necessaries procured by her in her lifetime, her husband not being joined as a co-defendant; that the record showed a large portion of the claim was not for necessaries, and being void, the judgment subsequently obtained on the scire facias was also invalid. Objection overruled; exception.</p> <p>Defendant’s counsel offered to prove by the defendant, Mrs. Nancy Morton (formerly Nancy Johnston, a daughter-in-law of Mrs. Helen Johnston, deceased, and mother of the said Hess Johnston), that in 1855, Mrs. Helen Johnston, being indebted to the plaintiff, Weaver, placed the said property in his possession to rent, as her agent, and to x’eceive tlxe rents xuxtil they should satisfy her indebtedness, and that the plaintiff did, in fact, rent it, in her name, and received a large sum for rents, being more than the amount of said indebtedness. Objected to, on the ground that the witness, being a party to the record, is incompetent to prove anything that occurx’ed in the lifetime of Mrs. Helen Jolmston, under whom both parties claim. Objection sustained; exception.</p> <p>The defendant recpiested the court to charge, in substance, that the plaintiff had not made out such a title as would entitle him to recover. The court declined the points presented, and charged, inter alia: “ We instruct you that the plaintiff has made out title to three-fourths of the premises ; but as the defendant has shown that she is the mother of Hess Jolmston (deceased), as to whose title in the property the plaintiff has shown no claim, we instruct you that your verdict should be for the plaintiff for the undivided three-fourths of the premises in dispute. The other one-fourth the defendant, Mrs. Morton, is entitled to.”</p> <p>Verdict, accordingly, for the plaintiff, as to the undivided three-fourths of the premises, and for the defendant, Nancy Morton, as to one undivided fourth, and judgment thereon. The defendants took this writ of error, assigning for error the admission in evidence of the record of the judgment of Weaver against Helen Johnston, and the scire facias thereon, and the sheriff’s deed to the plaintiff; the exclusion of the defendant’s offer of evidence; the refusal of their points, and the portion of the charge above cited.</p> <p>The record of the suit, by Weaver, against the administrator of Mrs. Helen Johnston, showed on its face that the judgment was void : its validity was therefore a legitimate subject of investigation. We also showed that it was procured by fraudulent collusion with Mrs. Johnston’s administrator, who was appointed at the instance of the plaintiff, Weavei*, and who, acting under the instructions of Weaver’s counsel, made no defence, and allowed' judgment to be taken by default. While a judgment, apparently regular, may not be attacked in a collateral proceeding, the rule does not apply where fraud is alleged, or the judgment is void on the record. And a judgment obtained on a scire facias, founded on a void judgment, is also void, having nothing to support it: Dorrance v. Scott, 3 Whart. 313 ; Caldwell v. Walters, 6 Har. 19, 83; Hoffer v. Wightman, 5 Watts 205. The evidence showing that Weaver was Mrs. Johnston’s agent, and as such rented the property and retained the rents, should have been admitted, to show bad faith on his part in bringing the action. The heirs can defend in ejectment on the ground of fraud : Shields v. Miltenberger, 2 liar. 18; St. Bartholomew’s Church v. Wood, 11 P. F. Smith 103 ; McOasky v. Groff, 11 Har. 326 ; Sharp v. Long, 4 Cas. 433 ; Brotherline v. Swires, 12 Wr. 68; Levick v. Brotherline, 24 P. I1. Smith, 149. Mrs. Morton was a competent witness to prove the offer of agency. Mrs. Johnston was, in no sense, “the assignoi’ of the thing or contract in action.” Weaver’s claim arose solely out of his own act, not under a sale or legal devolution of title from her. Both parties here were living, and on an equality: Waltman v. Ilerdic, 9 Norris 459.</p> <p>The judgment against the administrator of Mrs. Johnston was legal and regular. The surviving husband was not a necessary party: Davidson v. McCandlish, 19 P. E. Smith 172. Because the claim showed that some articles were included that were not necessaries does not impair the validity of the judgment. If there was a single necessary it would justify the judgment, as a foundation for a scire facias against the heirs, which differs from a scire facias to revive. The heirs who were served had full opportunity for defence, and are concluded hy the judgment on the scire facias: Chase’s Ex’r v. Burkholder, 6 rlar. 48 ; Atherton v. Atherton, 2 Barr 112; Murphy’s Appeal, 8 W. & S. 165; Benner v. Phillips, 9 W. & S. 16; Buehler v. Buffington, 7 Wr. 293; Nace v. Hollenback, 1 S. & R. 540.</p>

<p>1. Where, by the express terms of a lease for one year, provision is made for the extension of said lease beyond said term, if the lessor should consent thereto, and after the lapse of the year the lessee remains in possession without any dissent on the part of the lessor, the assent of the lessor to such occupancy will be presumed.</p> <p>3. Kent may issue not only from lands and tenements corporeal, but also from the personal property necessary for their proper enjoyment.</p> <p>3. Mickle *. Miles, 7 Casey 20, followed.</p> <p>4. A. leased a certain planing mill, together with the machinery and fixtures therein, to B. Subsequently B.’s creditors issued execution against all the personal property in said mill, including the machinery and fixtures. A. claimed the whole of said personalty as his property, whereupon the sheriff demanded and took from B.’s creditors a bond of indemnity and then sold the property. The proceeds of sale being paid into court, A. claimed the whole amount, as landlord of B., for rent of the planing mill in arrear. Held, that A. was entitled to the proceeds of the chattels which belonged to B., but that his conduct in setting up a title adverse to B., as to the machinery and fixtures, estopped him from any right to participate in the proceeds thereof, his only remedy in respect thereof being an actiori. of trespass against B.’s creditors and the sheriff.</p>

<p>Error to the Court of Common Pleas No. 1, of Allegheny county : Of October and November Term 1881, No. 76.</p> <p>Assumpsit, by S. Boedelheim, S. Bing and II. Schloss, partners trading as Boedelheim. Bing & Co., against Michael Clohessy to recover the sum of $4-78.95, being the price of certain liquors furnished by plaintiffs to the defendant.</p> <p>On the trial, before Coi.lier, A. J., the following facts appeared : The defendant Clohessy was in 1874 the proprietor of a small hotel at Irwin, Westmoreland county, in which county the local option law was then in force. During the spring and summer of that year, defendant at various times purchased of plaintiffs, who carried on business in the city of Pittsburgh, Allegheny county, the various liquors to recover the price of which the present suit was brought.</p> <p>As to the place where, and the manner in which, those liquors were purchased the evidence of the plaintiffs and defendant was wholly contradictory. Plaintiffs testified that the defendant came to their store at Pittsburgh, examined and chose the liquors which he wanted, and that they were then and there set apart for him, being subsequently forwarded, at his request, to the railroad station at Irwin, Westmoreland county. Defendant on the contrary testified that one of the plaintiffs had called on him at his hotel in Irwin and that lie had then and there ordered the liquors, plaintiffs agreeing and undertaking to forward them from their store in Pittsburgh to Irwin.</p> <p>The fact was undisputed that the goods were at defendant’s request forwarded to him marked “ B. & B.,” and labelled “ Glassware.” Defendant paid the freight upon them, receiving them at Irwin by virtue of sundry written orders sent to him at his request by plaintiffs in tlie following form :</p> <p>“ Freight Agent, Irwin Station, Pa.</p> <p>“ Dear Sir: — Please deliver unto bearer 1 bbl. and 1 box glassware, marked It. & B., at your station, and oblige</p> <p>“ Yours,</p> <p>“ Boedelheim, Bing & Co.”</p> <p>Defendant testified that he liad adopted this plan of having the goods sent to him, so that he might escape appearing to be the consignee thereof.</p> <p>Defendant also gave evidence tending to show that the liquors in question, or at least some of them, were not pure, but were adulterated.</p> <p>Defendant requested the court to charge, inter alia,</p> <p>2. That any impurity, vitiation or adulteration, to the least extent, would fall within the meaning of the law which prohibits a recovery for such liquors; therefore, if the jury find from the evidence that there was the least impurity, vitiation or adulteration, their verdict should he for the defendant.</p> <p>Ans. “If tbe jury believe, that there was any impurity, vitiation or adulteration, which impaired the quality or value of any of the liquors in suit to the least extent, the • plaintiffs cannot recover for the liquors so impaired.” Exception. (First assignment of error.)</p> <p>3. That the term impure means the introduction of any substance foreign to and not essential in the manufacture of pure liquors. Therefore, if the jury find that the liquors sued for contained any impurity, the plaintiffs cannot recover.</p> <p>Ans. “Refused.” Exception. (Second assignment of error.)</p> <p>4. That if the jury find that the contract of sale and purchase was made in the county of Westmoreland, while the-local option law, which prohibited the sale of intoxicating liquors in that county, was in force, and in violation thereof, the plaintiffs cannot recover.</p> <p>Ans. “ Refused.” Exception. (Third assignment of error.)</p> <p>7. That if the jury believe the testimony of the plaintiffs themselves, that the liquors were shipped in their own names to Larimer or any other point in the county of Westmoreland, and that the goods were then delivered to the defendant in violation of the local option then in force, the plaintiffs cannot recover.</p> <p>Ans. “ Refused. The plaintiffs expressly deny that they delivered the goods to the defendant in Westmoreland county.” Exception. (Fourth assignment of error.)</p> <p>8. That if the jury find from the facts as stated by the plaintiffs, that the liquors were shipped to any point within the county of Westmoreland, in the plaintiffs’ names, and that the plaintiffs authorized the delivery to defendant in the county of Westmoreland, at the request of defendant, to knowingly aid him to evade the prohibitory law then in force in that county, then and in such case the plaintiffs cannot recover.</p> <p>Ans. “ Refused.” Exception. (Fifth assignment of error.)</p> <p>9. That if the jury find from the evidence that the plaintiffs, in the salo and delivery of the liquors sued for, knowingly aided and abetted the defendant in any way to evade or violate the liquor law then in force in the county of Westmoreland, then, and in such case, the plaintiffs cannot recover.</p> <p>Ans. “ Refused.” Exception. (Sixth assignment of error.)</p> <p>The Court charged, inter alia, as follows :</p> <p>The defendant alleges that the goods he bought were liquors; that at the time he purchased them the local option law, as it is commonly called, was in force in Westmoreland county, and that because of that law no one could sell liquors without a license, and a license could not be had. He also alleges that he contracted for these goods in Westmoreland county, and that the plaintiffs agreed to deliver them to him there, and he contends, if you believe that, it makes a defence to the whole of plaintiffs’ claim.</p> <p>It is my duty to say to you that although this defendant got the plaintiffs’ liquors, and has not accounted for them, if they contracted to sell him the liquors, and agreed to deliver them to him in IV estmoreland county, they cannot recover. . . .</p> <p>But, on the other hand, if the goods were selected in Pittsburgh, or, on the'question of delivery, if Clohessy himself asked that they be delivered in this way, because he did not want them to appear in his name, and requested that they be shipped in the plaintiffs’ name, and he be given a card by which he could got them from the railroad company, and that card was given or mailed to him as each article was shipped, ho to pay the freight, then it was a delivery in Pittsburgh, and not in Westmoreland county, and the act would not apply.....</p> <p>The defendant, as he has a right to do, interposes, as a defence, the Act of 1860. He claims he ought not to pay for these liquors, because there is an act which says, that whenever impure, vitiated or adulterated liquors are sold, lie need not pay for them. That is correct. The question arises whether these liquors, or any of them, were impaired, impure, vitiated or adulterated. If they were to the least extent, so as to impair their quality or value, that is enough, under the law .... you determine whether any of the liquors were impure, vitiated or adulterated in the least degree so as to impair their quality or value. If they were, the plaintiffs cannot recover for the liquors in that condition.</p> <p>Verdict and judgment for the plaintiffs in the sum of $272, whereupon defendant took this writ of error, assigning for error, inter alia, the answers of the court to the defendant’s points above cited.</p> <p>The Act of March 29th 1860 (P. L. 346), provides that “in all actions for the sale of spirituous, vinous or malt liquors, or any admixture thereof, it shall be competent for the defendant in every such case to prove that such liquors or admixtures thereof were impure, vitiated or adulterated, and the proof thereof being made it shall amount to a good and legal defence to the whole of plaintiffs’ demand.” Under this act the sole question for the jury is whether the liquors are impure, vitiated or adulterated. It can make no difference whether the quality or value of the liquor is or is not impaired. The evidence clearly shows that plaintiffs combined with defendant to evade and violate the local option law. This precludes them from recovering: Bank of U. S. «. Owens, 2 Peters 538; Coppell «. Hall, 7 Wall 558; Bank «. Lanier, 11 Wall. 369.</p> <p>“ Tbe principle of public policy is that no court will lend its aid to a man who grounds his action upon an immoral or illegal act”: Mitchell «. Smith, 1 Binney 110; Siedenbender «. Charles’ administrator, 4 S. & R. 151; Biddis «. James, 6 Binney 329 ; Maybin «. Coulon, 4 Dallas 298; Duncanson «. McLure, 4 Ibid. 308; Badgley «. Beale, 3 Watts 263; Kepner «. Keefer, 6 Ibid. 231; Wagonseller «. Snyder, 7'Ibid. 343 ; Clippinger v. Hepbaugh, 5 W..& S. 315; Filson «. Himes, 5 Barr 452; Columbia Bank and Bridge Co. «. Haldeman, 7 W. & S. 233; App «. Coryell, 3 P. & W. 494; Edgell «. McLaughlin, 6 Wh. 176; Brua’s Appeal, 5 P. F. Smith 295; Fowler «. Scully, 22 Ibid 456; Stephens «. Monongahela National Bank, 7 Norris 157.</p> <p>The true object of the Act of Assembly, invoked by plaintiff in error, was not to prevent admixture of liquors, for, by the terms of the act, “ admixtures ” thereof were recognized, but that such admixtures should not be impure, vitiated or adulterated.</p> <p>The spirit of the whole charge of the court is in strict accordance with the meaning of the Act of Assembly cited. There are no judicial interpretations of it of record, but surely the act never designed more than to prevent such admixtures which, as the learned judge says, “ impair the quality or vaT/ue ” of the liquor “ in the least degree.” In any event the qualifying words, “ so as to impair their value in the least degree,” as used by the court below in connection with the terms “impure, vitiated or adulterated,” were intended to work out simple justice by instructing the jury that every admixture did pot necessarily render the mixture impure, vitiated or adulterated.</p> <p>There was no evidence to show that plaintiffs had conspired with defendant to evade or violate the local option law. The place of delivery of the goods was the place of sale: Shriver & Co. «. Pittsburgh, 16 P. F. S. 446 ; Garbracht«. Commonwealth, 11 Pitts. Leg. Journ. (N. S.) 220 ; Finch «. Mansfield, 97'Mass. 89. Here the question of the place of delivery and of sale was fairly submitted to the jury, and found not to be within the limits of Westmoreland county. There was therefore nothing illegal in the contract.</p>

<p>1. In an action of trespass against the mayor and police officers of a city for an unlawful arrest and imprisonment, the burden of proof is upon the defendants to show that the arrest and imprisonment were by authority of law.</p> <p>2. A, peace officer who arrests and imprisons one upon reasonable suspicion of felony, will be excused from liability even though it appear afterwards that in fact no felony has been committed.</p> <p>3. The gist of an action for false imprisonment is the unlawful detention, and the general rule is that malice will be inferred in such cases from the want of probable cause, so far at least as to sustain the action.</p> <p>4. If a peace officer wantonly arrests and imprisons an innocent man, he ought to be held liable in quite as heavy punitive damages as a private person would be fora causeless and malicious prosecution; but if without malice, and in the honest endeavor to arrest and bring a felon to justice, he arrests and imprisons an innocent person who is unjustly suspected, he will not be held liable therefor.</p> <p>5. If the mayor of a groat city, together with certain of his police officers, be sued for false imprisonment made in an effort to suppress riot and arrest a murderer, the evidence on the part of the defendants showing their good faith and the existence of probable cause, need not be very strong to shift the burden upon the plaintiff to establish want of reasonable cause and malice.</p> <p>6. Where a mayor or justice of the peace maliciously and without reasonable cause orders the arrest and imprisonment of a person for an alleged felony or breach of the peace, he will be held liable to the person thus arrested not only for compensatory damages but also for exemplary damages, proportioned to the wantonness and oppressiveness of Ms conduct.</p> <p>7. As a general rule all the defendants in an action of trespass are alike guilty ; each is liable for the damages sustained, without regard to the different degrees or shades of guilt. Hence the damages are not divisible, and the verdict should usually be against all the defendants for such sum as the most culpable ought to pay.</p> <p>8. However, in an action of trespass where intent must be considered, as against the mayor and police officers of a city for false imprisonment, if some of the defendants acted in good faith and others maliciously, and hence some are liable to exemplary damages and others not, the damages should be only compensatory to the plaintiff.</p> <p>9. Where in such an action the defendants are all liable for exemplary damages, but in different amounts, the jury should be instructed as regards such exemplary damages to assess them according to the acts of the most innocent of the defendants.</p>

<p>1. Where an erroneous decree has been entered by the Orphans’ Court and nothing has been done in pursuance thereof, said court lias discretionary power either under the act of October 13th 1840, § 1, Pamph. L. 1, or independently of that act subsequently to correct the error in its original decree.</p> <p>2. The fact that a decree of the Orphans’ Court has been affirmed on appeal by the Supreme Court, does not preclude said first named court from subsequently reviewing and vacating the decree.</p> <p>3. A testator, by his will, devised and bequeathed his whole estate to his three executors, A., B. and C., upon certain trusts. Said executors after-wards filed a joint account, showing a cash balance in their hands. As a matter of fact A. never had any of the assets in his hands, the sole charge of the estate being undertaken by B. Pour years after the filing of the account A, died intestate. At the time of his death B. was entirely solvent, and trusted and respected in the community. There was no reason to suppose that he had committed a devastavit, nor did A. nor any of the testator’s beneficiaries suppose that such was the case. B. continued to carry on the affairs of the estate for more than six years after A.’s death, with the knowledge of the testator’s beneficiaries, and without objection on their part. He then absconded, taking with him the assets of the estate. Three years afterwards A.’s administrator was cited to file an account, and it was sought to charge A.’s estate with the cash balance appearing from the joint account of the executors to be in their hands. Held, that under the circumstances of the case A.’s estate should not be so charged.</p>

<p>1. At a coroner’s inquest upon a murdered person the evidence of a witness was taken down by a bystander, the report being expressed to be “for whom it may concern.” The evidence was not taken down under the direction of the coroner, nor was it certified and returned by him with the inquisition. Subsequently, on the trial of the alleged murderer, the witness was unable, through temporary illness, to appear in court. The report of his evidence before the coroner was offered in evidence on behalf of the defendant. Held, that it was rightly rejected.</p> <p>3. On a trial for murder there was but a single witness for the Commonwealth who testified to having seen the crime committed. • There was, however, much evidence tending to corroborate him. The defendant introduced considerable evidence to discredit the single witness. The court laid due stress upon all the discrediting evidence, but instructed the jury that it was not essential that the single witness should be corroborated. Held, that this instruction did not constitute error.</p> <p>8. On a trial for murder, the fact of the murder being established, inability to discover the motive does not disprove the crime.</p> <p>4. Where a murder of great atrocity was committed without discoverable motive on the part of the accused, the court in its charge, after dwelling at length upon the evidence as to the good character of the accused and impressing the jury with the weight of such evidence, said: “ Where it is a question of great and atrocious criminality, the commission of the act is so unusual, so out of the ordinary course of things and beyond common experience, it is so manifest that the offence if perpetrated must have been influenced by motives not frequently operating on the human mind, that evidence of character and of a man’s habitual conduct under common circumstances must be considered far inferior to what it is in the instance of an accusation of low'er grade.” The court then added that evidence of reputation might of itself create in the minds of the jury a reasonable doubt of the existence or truthfulness of the criminating circumstances, and thus induce them to acquit the defendant. Held, that this instruction as qualified did not constitute error.</p> <p>5. Semble, that the court approve the doctrine of Shaw, C. J., in the above quotation from the charge in Prof. Webster’s case.</p> <p>6. On a trial for murder the testimony tended to show that the crime had been committed with a certain shovel which had stains upon it. These were subjected to chemical analysis and microscopic examination by different experts, some of whom asserted that the stains were caused by human blood, while others failed thus to identify them. Certain unlearned observers testified that in their opinion the stains were caused by human blood. The court, remarking that if scientific research gave no aid in such an investigation it was deplorable, instructed the jury that they might convict upon the testimony of the unlearned observers if they were satisfied of its truth. Held, that this was not error.</p> <p>7. Whore the court in charging the jury in a criminal case sufficiently bring the evidence on both sides to the attention of the jury and comment fairly upon tlio facts, it is not error to present some of the facts in the form of questions. Such a course is sometimes well calculated to present for consideration the exact points in controversy.</p> <p>8. The charge of the court in the present case pronounced clear, full, impartial and satisfactory.</p>

2 of Allegheny county: Of October and November Term 1881, No. 80. Scire facias sur decree, by Hugh Woods and John McBroom to use, etc. against the Pittsburgh and Steubenville Railroad Company, with notice to Tbe Pittsburgh Cincinnati and St. Louis Railway Company, terre tenants. The scire facias was brought by virtue of the provisions of tlie Act of April 4th 1862, § 1, Pamph. L. 235.

2 of Allegheny county: Of October and November Term 1881, No. 146. This was an action by D. F. Phelps by his next friend Susan Phelps, against the Pittsburgh, Cincinnati and St. Louis Kailway Company, to recover damages for the breach of an alleged contract of apprenticeship.

<p>Error to the Court of Common Pleas No. 1, of Allegheny co'unty: Of October and November Term 1881, No. 274.</p> <p>Scire facias sur mortgage, by James W. Hall, for use of D. MacFerron, trustee of the Franklin Savings Bank, an unincorporated partnership association, against George B. Biddle and Mary A. Biddle, his wife. The mortgage in suit was given by the said defendants on real estate of the wife, to secure the husband’s bond. Plea, payment with leave, etc.</p> <p>On the trial, before Bailey, J., the defendant, Mary A. Biddle, alleged that the mortgage was procured from her by undue influence and duress per minas, exercised by the plaintiff, Hall, and others, composing a committee of the said Franklin Savings Bank, the use plaintiff; further, that the mortgage was invalid because given solely for the illegal consideration of suppressing a criminal prosecution then pending against her son, and a similar prosecution threatened against her husband, for embezzlement and misuse of the funds of said Savings Bank, of which her husband was president and her son cashier. The facts, as developed on the trial, are recited in the foregoing syllabus, and more fully in the opinion of the court.</p> <p>The defendants presented the following points:</p> <p>1. If the jury believe from the evidence that the defendant, Mrs. Biddle, refused to execute the mortgage in suit unless a then pending prosecution against her son, James II. Biddle, for embezzlement, were withdrawn, and a threatened prosecution of her husband for the same, or a like offence, avoided; that she so stated to James W. Hall, the plaintiff, and Hr. Mowry, her intimate friends and a committee? from plaintiff partnership to get a mortgage from her, and was then assured by them that it was their belief that if she executed said mortgage all said prosecutions pending and threatened would be avoided ; that, relying on that statement, she executed said mortgage for the purpose of avoiding said prosecutions; and if the jury, furthermore, believe the defendant’s evidence, that she was frightened by the statement made to her by Mr. Hall at the same time (if he did make it), that “ if she refused to execute said mortgage it would be the worst thing that she had ever done in her life,” or something to the same effect, then their verdict should be for the defendant. Refused. (Second assignment of error.)</p> <p>2. The evidence in the case being uncontradicted, that the purpose for which the plaintiff secured the mortgage in suit was to pay creditors of the plaintiff partnership, and there being no evidence that any creditors of said partnership remain unpaid, the plaintiff cannot recover. Refused. (Third assignment.)</p> <p>3. If the jury believe from the evidence that Mrs. Biddle executed the mortgage in suit under moral constraint, and influenced thereto by fright, resulting from language used to her by the committee of plaintiff partnership, who came to her to secure from her said mortgage, then she is not bound by said act, and the verdict should be for the defendants. Refused. (Fourth assignment.)</p> <p>The plaintiff presented this point:</p> <p>Under all the evidence in the case the verdict must be for the plaintiff, for full amount of the debt unpaid, to wit, $5,300, with interest 'thereon from June 3d 1819, to date. Affirmed. (Fifth assignment.)</p> <p>The court charged the jury as follows : “Without occupying your time to tell you what my views are as to this case, except the conclusion which I have reached, I will say that I refuse the three points presented, as drawn, of the defendants, and affirm the point of the plaintiff, ‘that under all'the evidence in the case the verdict must be for the plaintiff for the full amount of the debt remaining unpaid, to wit, $5,300, with interest thereon from June 3d 1819, to date.’” (Sixth assignment.)</p> <p>Yerdict, accordingly, for the plaintiff for $5,901.20, and judgment thereon. The defendants took this writ of error, assigning for error, inter alia, the answers to the above points and the charge of the court.</p> <p>There was ample evidence to be submitted the jury (1) that the mortgage was executed by Mrs. Piddle, under- duress per minas, and (2) that its only consideration was to suppress the criminal prosecutions. In either case it was avoided, and the court erred in directing the jury to find for the plaintiff: National Bank v. Kirk, 9 Norris 49; Chitty on Contracts 188; Olubb v. Ilutson, 18 O. B., N. S. 414, and note; Porter v. Havens, 37 Barb. 343 ; Kimbrough v. Lane, 15 Am. L. Peg. 289 ; Partridge v. Hood, 120 Mass. 403; Atwood v. Fisk, 10Í Mass. 363. Even conceding that the understanding between Mrs. Piddle and the plaintiff, Hall, and those who acted with him, fell short of an actual contract to suppress the criminal proceedings, her impression and belief, derived from them, that such would be the result if she executed the mortgage, would warrant the jury in finding for the defendants. The vice of the transaction lies in the corrupt intent, not in its successful accomplishment: Prevail v. Fitch, 5 Wharton 331; Porter v. Havens, supra. Less than actual duress will avoid the mortgage of a married woman : 2 Groonleaf on Ev. § 301, n ; Schrader v. Decker, 9 Barr 14; Michener v. Cavender, 2 Wriglit 337; Louden v. Blythe, 3 Casey 22; McCandless v. Engle, 1 P. F. Smith 309 ; Griffith v. Sitgreaves, 9 Norris 161.</p> <p>The authorities relied on by plaintiff in error are not disputed, but they only decide that the illegality which will vitiate a contract must, by agreement, be the consideration. In the present case no agreement to stifle the prosecution was proved. While Messrs. Hall and Mowry told Mrs. Piddle that they were almost certain the bank officers would not prosecute her son and her husband if she executed the mortgage, they were careful to say that they had no authority to make any agreement, and that they had no control over the prosecution, which was by the Commonwealth, and could not guarantee that the prosecutions would not be pressed. They were her personal friends and advisers, although also acting as a committee for the hank. In order to avoid a contract, on the ground that it was made to compound a crime, the defendant must show, first, the actual commission of the crime, and, secondly, an agreement by the plaintiff to refrain from prosecution : Swope v. Jefferson Insxirance Co., 8 W. N. C. 481. The real consideration of the mortgage was the securing of the prior subscription, which was valid and bona fide, and made before the happening of the alleged representations, fear and oppression. There was no evidence of fear or duress sufficient to rehut the presumption arising from the notarial certificate of acknowledgment by Mrs. Piddle that the execution of the mortgage was her free and voluntary act: Ileeter v. Glasgow, 29 P. F. Smith 83. The court, therefore, rightly withdrew the evidence from the jury and directed a verdict: Hyatt v. Johnston, 10 Horns Í96; Ryder v. Wombwell, Law Rep., 4 Exch. 39.</p>

<p>Appeals from the Orphans’ Court of Allegheny county: Of October and November Term 1881, Nos. 164 and 255.</p> <p>These were appeals of Louise Jones, administratrix of the estate of Samuel Jones, deceased, from two decrees of the Orphans’ Court of Allegheny county, one opening and setting aside the appellant’s account as administratrix, the other surcharging her with the sum of $22,567.70.</p> <p>The facts of the case were as follows: — On October 30th 1852, Samuel Jones became surety upon an official bond filed by H. B. Wilkins and £L Hepburn as guardians of the estate of Mary C. Livingstone and Eugene Livingstone in the sum of $20,000. On September 24th 1862 said Jones died intestate leaving a widow Louise and five minor children, viz., Beverly, Stella, Howard, Carrie and Jesse. Letters of administration upon the estate of said Jones were duly granted to his widow. On Decetnber 5th 1870 Mrs. Jones filed her final account as administratrix, which was confirmed nisi, and on December 16th 1870 confirmed absolutely.</p> <p>That account showed some $56,550 of personal property in the hands of the accountant, out of which she had paid debts and liabilities of the estate some $33,982.30, and showed a distribution of the remaining $22,567.70 among the widow and children according to the provisions of the intestate law. The shares of two of the children, Beverly and Stella, who had come of age between the death of their father and the filing of the account, had been paid in full to them, and the shares of the other children had been paid to their guardian. Mrs. Jones took no refunding bonds for the amounts thus distributed.</p> <p>Eugene Livingstone had died intestate in 1862, leaving to survive him his sister the said Mary O. Livingstone and his father Eugene Livingstone. His said father released all his interest in his son’s estate unto the said Mary, whereby the said Mary became solely entitled to said estate. Said Mary after-wards intermarried with Maturin L. Delafield.</p> <p>On April 28th 1876 LI. B. Wilkins, as surviving guardian of the said Mary C. Delafield, filed his final account. Exceptions were filed to said account, and by decree of the Orphans’ Court entered September 7th 1878 said Wilkins was found to have in his hands the sum of $115,905.87 belonging to liis ward, which he was ordered and directed to pay over to her. Said Wilkins failing to pay said sum, and being insolvent, suit was instituted upon his official bond whereon Jones was surety. This was the first notice or knowledge that Mrs. Jones had of the existence of such bond.</p> <p>This action was so proceeded in, that a final judgment for the amount of the penalty of said bond, $20,000, was on November 1st 1879, obtained against Mrs. Jones, as administratrix of the estate of ¡S. J ones, deceased.</p> <p>Subsequently, on March 20th 1880, in the Orphans’ Court, Delafield and wife filed their petition, setting forth the recovery of the foregoing judgment, that Mrs. Jones as administratrix declined to pay the same, and asking a citation against her and the heirs of S. Jones. Their prayers for relief were: (1st) That Mrs. Jones as administratrix should be ordered to pay the amount of said judgment. (2d) Or that Mrs. Jones, Beverly Jones, Stella Jones, Howard Jones, Carrie Jones, and Jesse Jones be ordered to refund and pay to the administratrix $20,000 with interest, and that the administratrix be ordered thereupon to file an account in the Orphans’ Court for the purpose of having the amount so paid to her distributed to the parties entitled thereto, and that said widow and heirs be restrained and enjoined from parting with or incumbering any real estate that had descended to them from S. Jones, their father.</p> <p>To this petition and citation Mrs. Jones answered that she had not in her hands, as administratrix, any moneys or personal property of the estate of S. J ones, deceased, that she had filed her final account of said estate nine years before, which account and distribution shown thereby, had been duly confirmed by the court, on December 16th 1870; that the moneys and personal property, in accordance with said account, had been long since paid over to and distributed among the widow and heirs of said Jones. She also set up in her answer the laches and long delay of the petitioners in making known their claim; that Mrs. Delafield had been of full age several years before said final account and distribution of the Jones estate had been made, and had neither excepted thereto, nor given any notice of the existence of said bond, or of any supposed liability thereunder. The heirs filed answers containing similar averments.</p> <p>After the filing of these answers the petitioners obtained leave of court to amend their petition by praying that Mrs. Jones’s account as administratrix be opened and set aside, and that the account be reaudited and that petitioners be permitted to prove their claims.</p> <p>Upon the hearing, the Orphans’ Court decreed that the decree of confirmation of the account of Mrs. Jones, administratrix of S. Jones, deceased, as to the moneys and property divided among the widow and children, should be opened and set aside, and that the clerk should have due advertisement made according to law, of said account, and that the same should be reaudited.</p> <p>From this decree Mrs. Jones took the first of the present appeals, assigning the decree for error.</p> <p>On August 24th 1881 Delafield and wife filed exceptions in the Orphans’ Court to the account of Mrs. Jones, administratrix, which continued to stand just as when filed and approved in 1870. Under these exceptions testimony was adduced by both parties, showing the same state of facts substantially as above set forth, and on August 25th 1881 the court, in' an opinion by Hawkins, P. J., entered a decree surcharging Mrs. Jones, administratrix of S. Jones, deceased, with the sum of $22,567.70, and awarding the sum of $22,000 to the said judgment of Delafield and wife.</p> <p>Mrs. Jones thereupon took the second of the present appeals, assigning for error the decree of the court.</p> <p>An administrator’s distribution account confirmed by a decree of the Orphans’ Court can only be disturbed by a bill of review within five years: Hendrickson’s Estate, 2 Pitts. Rep. 360 ; Commonwealth v. Severn, 3 W. N. C. 303; Kline’s Appeal, 5 Norris 367; Charlton’s Appeal, 7 Norris 476.</p> <p>In the present case, the decree of the Orphans’ Court, confirming the account filed by the administratrix of S. Jones, deceased, which account exhibited a distribution of the personal property of the decedent, among his widow and children, was a final decree of distribution within the scope and meaning of the authorities. The fact that the decree was confirmatory of a distribution already made does not deprive it of its character as a, definitive and final decree. Ratification by a court of an act which the court would, on application, have approved or directed, is of the same legal efficacy as if it had preceded the act.</p> <p>Assuming, then, that this was a decree that protected Mrs. Jones, and that the appellees could not have been heard to impeach the decree except by a bill of review, there were four reasons why the court below erred in entertaining the bill of review.</p> <p>1st. More than five years had elapsed from the decree of confirmation of Mrs. Jones’s account; and hence the court had no power to open it. Hendrickson’s Appeal, supra.</p> <p>2d. It distinctly appears, that the balance, with which it is now sought to surcharge Mrs. Jones, had been actually paid and discharged by her years before the filing of the petition or bill of review. Russell’s Appeal, 1Ó Casey, 258 ; Cramp’s Appeal, 2 W. N. C. 391; Stewart’s Appeal, 5 Norris 149.</p> <p>3d. Even if the application had been made in time, and even if it appeared that the original decree had not been executed by the payment of the balance before the bill of review was filed, yet the' court should have refused the application to open the decree, because made too late and not for ecpiitable reasons.</p> <p>(a.) The petition does not disclose that there is any error apparent on the face of the decree. It is true that the combination of an administrator’s account and a distribution account has been censured by thq Supreme Court, but until very lately it has been the universal practice to make such combinations where the estates are solvent. It is, at any rate, merely bad practice, and not such an error in law as affords ground for a bill of review.</p> <p>(A) The allegation of after-discovered evidence or facts is not sustained. To say that the discovery of the dereliction of Wilkins is an after-discovered fact is a begging of the question. What is meant by after-discovery of a material fact is discovery, after entry of the decree, of a pre-existing-fact, which, if known to the court, would have affected the decree. But nobody ever heard it suggested that the subsequent taking place of a fact would authorize a court to set aside a previous final decree— particularly when such previous decree had been executed by the payment of moneys to those thereby declared to be entitled to them.</p> <p>(<?.) But, at all events, the court will not disturb a decree of such long standing unless constrained to do so by strong equities. And in the present case, the equities are with the widow and children of the decedent. He was merely a surety. The default of his principal did not take place during his life, nor till years afterward.</p> <p>The distribution and decree relied upon were not made till years after the death of the surety, and when the existence of the bond, and of any liability on account of it were not dreamed of. The laches was that of the exceptants, and not that of the accountant.</p> <p>Lastly, there was neither error of law apparent on the face of the decree, nor after-discovered evidence; and hence there was error in opening this decree.</p> <p>The appellant did not take refunding bonds as she should have done, and was therefore guilty of a devastavit. Musser v. Oliver, 9 Harris 362; Swearingen v. Pendleton, 4 S. & R. 394. The decree of the court confirming her account as administratrix cannot be construed to authorize a distribution without taking refunding bonds: Tams v. Lewis, 6 Wright, 410; Lewis and Nelson’s Appeal, 17 P. F.' S. 165 ; Pry’s Appeal, 8 Watts 254; Sergeant’s Heirs v. Ewing, 12 Casey 163; Whelen’s Appeal, 20 P. E. S. 428; Keech v. Rhinehart, 10 Barr 242; Thomas v. Riegel, 5 Rawle 266. Appellant is personally responsible for the amount of her devastavit. It was error to combine the administration and distribution accounts, and the decree of the court thereupon must be considered as referring only to and being only confirmatory of the administration account : Rittenhouse v. Levering, 6 W. & S. 200; Keech v. Rhinehart, 10 Barr 242; Elory v. Becker, 2 Barr 470; Yundt’s Estate, 6 Barr 36; Ake’s Appeal, 9 Harris 320; App v. Dreisbach, 2 Rawle 287; McLenachan v. Commonwealth to use, 1 Rawle 360; Hendrickson’s Estate, 2 Pittsburgh Rep. 360; Commonwealth ex rel. v. Severn, 3 W. N. C. 303; Whelen’s Appeal, 20 P. E. S. 428; Stewart’s Appeal, 5 Norris 150; Charlton’s Appeal, 7 Norris 476. ' The decrees of the court were therefore clearly right.</p>

1, oí Allegheny comity: Inequity: Of October and November Term 1881, No. 294. This was an appeal by Clarissa McCutcheon from a decree overruling her exceptions to the report of a master and confirming the same.

2, of Allegheny county: Of October and November Term 1881, No. 288. This was an appeal by Mary Ann McAleer, trustee, from a decree of the said court, dismissing her exceptions to, and confirming the report of an auditor in the distribution of the proceeds of a sheriff’s sale of real estate.

<p>Error to tlio Court of Common Pleas No. 2, of Allegheny county: Of October and November Term 1881, No. 295.</p> <p>Ejectment, by Mary Adair, John Irwin, Jr., and others, heirs of John Irwin, deceased, against William Coleman, and others, heirs of Eobert W. Mackey, deceased, for a tract or parcel of land situate in Allegheny city, lying between South Avenue, School street and the Allegheny river.</p> <p>On the trial, before White, J., the plaintiffs, having put in evidence their abstract of title, which was undisputed, except as to the division line between the plaintiffs’ and the defendants’ land, offered in evidence, for the purpose of establishing said boundary line, the record in an ejectment suit between J. Iv. Moorhead, Eobert W. Mackey and others, plaintiffs, and the City of Allegheny and the heirs of John Irwin, deceased (the plaintiffs in this case), defendants, in the Court of Common Pleas No. 2, of Allegheny county to November Term 1874, No. 350, for a tract of land, known as Kilbuck Island. It thereby appeared, inter alia, that the controversy in that ease, as between the plaintiffs and the heirs of John Irwin, was only one of boundary, and the defences of the Irwin heirs and the City of Allegheny were antagonistic; and further, that on the trial of said ejectment, the several counsel engaged therein, representing the said parties plaintiffs, and the heirs of Irwin defendants, entered into a compromise agreement for the settlement of said disputed boundary, as between themselves, whereupon the trial proceeded against the City of Allegheny, the principal defendant. The case resulted in a verdict and judgment for the plaintiffs for part of their claim, which judgment was affirmed on writ of error. (See Allegheny City v. Moorhead, 30 P. E. Smith 118.)</p> <p>The defendants objected to the admission of said record, as irrelevant, and because it did not show any verdict or judgment in favor of the Irwin heirs. Objection overruled; exception.</p> <p>The plaintiffs then offered the above mentioned agreement, which was as follows :</p> <p>“ Moorhead et al. j versus I Common Pleas No. 2, The City of Allegheny, " No. 350, November T. 1874. John Irwin et al. J</p> <p>“ It is agreed between the plaintiffs in this case and the heirs of John Irwin, defendants, in order to compromise the question between them, that a verdict shall be entered in favor of the said heirs of John Irwin, and against said plaintiffs, for all the land described in said writ lying east of a line commencing at a point on Bank lane, now South avenue, 136 feet eastwardly from the eastern line of Borland alley, and running thence on a line parallel with School street, to the Allegheny river.</p> <p>“ And in case said plaintiffs shall succeed in establishing a title to the land described in said writ, not included in the claim of said Irwin’s heirs, or to any part thereof adjacent thereto, the said Irwin’s heirs shall release or otherwise assure to said plaintiffs, all their interest in all land described in said writ west of said line. And said plaintiffs shall -release or otherwise assure to said Irwin’s heirs, all their interest in all land described in said writ east of said line. The intention of this agreement being to ñx a division line between said parties, in case said plaintiffs shall establish a title to any part of the same adjoining said Irwin’s claim, and in case of failure so to establish tlieir title, not to conclude Irwin’s heirs as to their title, or the extent of their claim against any other parties.</p> <p>“ Hampton & Dalzell, Attorneys for Plaintiffs.</p> <p>S. H. Cteyee, Attorney for Plaintiffs.</p> <p>S. Schoyee, Attorney for Plaintiffs.</p> <p>B. S. Woods, Plaintiffs’ Attorney.</p> <p>David W. Bell, and Slagle & Wiley,</p> <p>Attorneys for Irwin’s heirs.”</p> <p>Objected to, as incompetent, and “ because it was not within the power of the attorney for B. W. Mackey to make such a compromise.” Objection overruled ; exception.</p> <p>The testimony of F. M. Magee, Esq., who was of counsel for plaintiffs in said suit was, substantially, that, although he did not sign the said agreement, he assisted in drawing it and was a party to it on behalf of his clients, and he was still willing to abide by it; that he supposed, at the time of entering into the agreement (as did all the other counsel in the case), that he represented Bobert W. Mackey, one of the plaintiffs in said ejectment, although Mr. Mackey, who resided in Philadelphia, was not present at the trial; but that, when he told Mr. Mackey of it after the trial, “ he repudiated it, said that he hadn’t any attorney in the case, that he wouldn’t pay any attorneys, and wouldn’t live up to the compromise — that he had his patent and was going to look out for his interest in it.”</p> <p>The court charged the jury as follows:</p> <p>“ If the compromiso agreement in evidence was made during the progress of the trial of the case of Moorhead et al. v. Allegheny City et ah, No. 350, November Term 1874, by the counsel representing all the plaintiffs in that action, and was authorized and sanctioned by the plaintiffs present in court conducting said action for themselves and the other plaintiffs, it is binding upon Mr. Mackey’s heirs, although he may not have been actually present or known of the agreement at the time, and may, after the trial, have said he repudiated said agreement.”</p> <p>Verdict for the plaintiffs for the laud claimed, up to the boundary line fixed by the said compromise agreement, and judgment thereon. The defendants thereupon took this writ of error, assigning for error the admission in evidence of the record of the said ejectment suit, and of the said compromise agreement made therein.</p> <p>As-summing that Mr. Mackey was represented by counsel, and that his counsel was a party to the compromise agreement, can that agreement be enforced in an action of ejectment ? An attorney at law is authorized to do those things only which pertain to the conducting of the suit; he has no power to compromise his client’s cause, without the client’s sanction or authority. Stokely v. Robinson, 10 Casey 315 ; Housenick v. Miller, 8 W. N. C. 346 ; Holker v. Parker, 7'Cranch 452. He has no power to make a compromise by which land is to be taken instead of money. Huston v. Mitchell, 14 S. & R. 307; Stack-house et al. v. O’Hara’s Exrs., 2 Harris 88. This being so, how can he agree, as in this case, that his client “ shall release or otherwise assure,” to any. one, a portion of the land which his client employs him to recover ? If such an agreement be good for six acres, why not for sixty, or the whole claim ? The court erred in admitting the agreement in evidence, and in charging that Mr. Mackey was bound by it notwithstanding he • never authorized it, was not present when it was made, and promptly repudiated it when he learned of its existence.</p> <p>The agreement was made during the trial, in the conduct of the suit, and under these circumstances was clearly within the scope of an attorney’s power. Wilson v. Young, 9 Barr 102; Babb v. Stromb'erg, 2 Harris 397; Evars v. Eiamphaus, 9 P. E. Smith 379 ; Coxe v. Nichols, 2 Yeates 547. The cases cited by the plaintiffs in error are distinguishable. In Stokely v. Robinson, the attorneys were not attorneys of record; there was no cause pending, and they acted as arbitrators without any submission. Housenick v. Miller was an agreement after judgment. In Holker v. Parker, the agreement of counsel was set aside as being unconscionable, though it amounted to a confession of judgment, which an. attorney undoubtedly has the right to make. In Huston v. Mitchell, the attorney Burnside was not attorney of record, and undertook to accept land instead of money.</p> <p>The agreement in fact resulted favorably for the plaintiffs in the suit in which it was made, for they thereby obtained more land than the jury awarded. The numerous co-tenants of Mi\ Mackey, plaintiffs in that suit, have never objected to the action of their counsel in making the agreement, and Mr. Mackey and his heirs, having participated in the advantage thereby gained in the former ejectment, are estopped from denying in this suit that they are bound by it.</p>

<p>Appeal from the Court of Common Pleas No. 1, of Allegheny county: Of October and November Term 1881, No. 182.</p> <p>This was an appeal by the Allegheny National Bank of Pittsburgh, from the same decree mentioned in the case of McOandless’s Appeal, 2 Out. 489.</p> <p>The facts material to this case, were as follows: — John Adams died September 3d 1872, having, by his will, dated January 25th 1870, devised his real estate to his widow for life, directing that, after her death, the same should be sold, and the proceeds divided equally amongst his seven children, all of whom survived him; and, he further directed, “ that in the payment of the distributive share of my daughter, Ann Eliza, $1,000 shall be deducted, for the lot already conveyed to her, and also any amount of money, that I may pay on account of indorsement, or otherwise, or that my executors may have to pay after my decease.”</p> <p>At the time of his death, John Adams was an indorser upon a promissory note of W. H. Mackey, the husband of said Ann Eliza, for $1,000, held by the Allegheny National Bank.</p> <p>Mrs. Adams, the testator’s widow, released her life estate in the real estate, and the seven children, being of full age, elected in writing to take their interest as land, instead of the proceeds thereof.</p> <p>On October 8th 1875 the said Ann Eliza Mackey, together with her husband, William II. Mackey, mortgaged her undivided interest in the land so devised by her father, to Robert W. Mackey for $2,000.</p> <p>In 1876 a bill in equity for partition, was filed by John W. Adams, one of the devisees, and the cause was referred to a master, who found, inter alia, that the said indorsement of the testator of the $1,000 note, held by the Allegheny National Bank, was, under testator’s will, a charge on the share of the said Ann Eliza Mackey, but without preference over other charges thereon created by the testator. Equal partition being impracticable, the land was divided into purparts, one of which, valued at $9,455, was allotted to Ann Eliza Mackey, subject to certain sums, charged as owelty of partition, among which was the sum of 81,000, with interest, payable to the Allegheny National Bank for said indebtedness of the testator. The master’s report was confirmed by a final decree of the court, which was not appealed from.</p> <p>Subsequently, in 1880, the said mortgage of Ann Eliza Mackey for 82,000 was foreclosed by scire facias, and the tract, allotted in the partition to Ann Eliza Mackey, was sold at sheriff’s sale for $1,600. The sheriff made a special return in favor of the mortgage creditor, and, exceptions being filed thereto, the matter was referred to an auditor, who reported distribution of the fund to the several parties entitled to owelty of partition, pro rata (the fund being insufficient to pay said owelties in full), including a proportional share to the Allegheny National Bank. The bank filed exceptions to the report, claiming, that the auditor should have awarded payment of its claim in full, with interest, on the ground that the same, having been expressly charged upon the distributive share of Ann Eliza Mackey by the clause of John Adams’ will, hereinbefore quoted, was entitled to a preference over all claimants on the fund for owelty of partition.</p> <p>The court, after argument, overruled the exceptions, and confirmed the report, from which decree the Allegheny National Bank took this appeal.</p> <p>The $1,000 note, held by the appellant, was a testamentary charge on the distributive share of Ann Eliza Mackey, under her father’s will. This was judicially settled by the decree in partition. The only object of the partition was to divide the land between the parties entitled thereto, subject to owelties, as between themselves. The share of Ann Eliza, being already subject to the testamentary charge, as a first lien, the owelties, charged thereon in favor of the devisees, were also subject thereto. The testator’s intention, as expressed in his will, was that his land should be sold, and the $1,000 note paid by his executors out of the proceeds, the amount thereof to be deducted, in the distribution, from Ann Eliza’s share of such proceeds. The fact, that the devisees elected to take land, instead of money, cannot affect the intention of the testator. Nor can the fact, that the Allegheny National Bank’s claim was treated, in the partition, as in the nature of owelty. This was irregular, and was done only for convenience sake. Such charge as “ owelty” could not, however, reduce its prior testamentary lien to an equality with the lien of the owelties, which arose out of the partition itself. The testamentary lien, having been discharged by the sheriff’s sale of Ann Eliza’s purpart, is payable out of the proceeds in preference to liens created by Ann Eliza on her undivided interest before the partition, or to liens, which originated in the partition itself: Tower’s Appropriation, 9 "W. & S. 103; McFait’s Appeal, 8 Barr 290. The court, therefore, erred in awarding distribution to the appellants, pari passu with the other claimants on the fund.</p> <p>The $1,000 note was not, as claimed, a testamentary lien on Ann Eliza’s share of the testator’s real estate, because her interest under the will was personal, and the debt was only to be regarded in the matter of distribution among the legatees. Even if a general lien on the testator’s real estate at the time of his death in 1872, such lien had expired at the time of the sheriff’s sale in 1880. It was only because the appellant’s debt remained unpaid, and because the devisees elected to take land instead of proceeds, that the claim was admitted in the partition, without contest, as equitable owelty. The bank’s claim then, as a lien, takes its rise in the partition, and, standing on the same plane with other owelty, must participate ratably therewith. The decree in the partition suit necessarily settled this, and, being unappealed from, is con-elusive on the bank. The recent decision of this court on the appeal of McOandless, executor of Kobert W. Mackey, from tiie same decree to which this appeal is taken, also to some extent rules this case.</p>

2, of Allegheny county : Of October and November Term 1881, No. 293. This was an appeal by the heirs of George Black from the report of viewers on the opening of Frazier street in the city of Allegheny, from Western avenue to Ridge avenue, along the western line of property belonging to appellants.

2, of Allegheny county: Of October and November Term 1881, No. 290. Held: however, that there had been no such positive acts as to fix the terminus at that point. He held, moreover, that the continuance of the track westward from said point was fully authorized either by the Act of April 4th 1868, § 9, Parnpli.

<p>Error to the Court of Common Pleas No 3 of Philadelphia County : Of July Term 1881, No. 33, Eastern District.</p> <p>Amicable action in debt, by William Baldwin against the City of Philadelphia to recover a sum alleged to be due plaintiff for salary as chief commissioner of highways for said city.</p> <p>The following case stated was submitted to the court:—</p> <p>“ By an ordinance of the councils of the City of Philadelphia, approved December 23d 1874, the Department of Highways, Bridges and Sewers for the city of Philadelphia was constituted, consisting of a chief commissioner and six assistants. The former at a salary of four thousand dollars per annum, and the latter each two thousand dollars per annum. The chief to be elected by viva voce vote of councils in joint convention, to serve for two years, and with power to appoint his assistants, whose duty was to superintend all work done on the bridges, culverts, sewers and highways in the city of Philadelphia, and enforce all ordinances relating to said department.</p> <p>“ By an ordinance of said councils, approved the twelfth day of December 1876, it was provided that ‘the chief commissioner of highways shall hereafter be elected for the term of three years.’ On January 1st 1877, the plaintiff was elected by city councils aforesaid, in joint convention, chief commissioner of the highways for three years from that date, and reelected in like manner on December 30th 1879, for three years. By an ordinance of said councils, approved the nineteenth day of December, 1877, making an appropriation for 1878, to said department, item one provides, inter alia: ‘ For salaries of the officers of said department: chief commissioner, three thousand six hundred dollars.’ The plaintiff’s salary was thus reduced during his term of office; and for the year 1878, and thereafter he received but thirty-six hundred dollars per annum. By ordinance” approved the thirty first day of December 1880, making an appropriation to the department of highways, it was provided, inter alia, in item one as follows: ‘ For salaries of officers of the department: chief commissioner, forty-five hundred dollars.’ The plaintiff’s: salary was thus increased during his term of service as chief commissioner of highways. It is admitted that if the increase made by the above ordinance was lawful, that then the sum of three hundred and seventy-five dollars was, and is due and owing by defendant to plaintiff as his salary for the month of January 1881, and that the city has refused to pay the same.</p> <p>“ It is agreed, that if the court shall be of opinion upon the-facts of this case that the plaintiff is not a public officer within the meaning of article III. section 18 of the Constitution of the state of Pennsylvania, so that his salary could be lawfully increased during the period for which he was elected, that then judgment shall be entered for plaintiff in the sum of $375, and if the court shall be of opinion that he is a public officer, and that his salary could not lawfully be increased as aforesaid, that the judgment shall be entered for plaintiff in the sum of 300.”</p> <p>The court entered judgment for the plaintiff, Baldwin, in the sum of $300.</p> <p>A similar case was submitted to the court, wherein William Dixey, the commissioner of the city property, was plaintiff and City of Philadelphia defendant.</p> <p>Ludlow, P. J., filed the following opinion:—</p> <p>“ Two cases have been submitted to the court, both of which involve the consideration of the same question, and both will be decided in the present opinion.</p> <p>“ The plaintiffs are officers of the City of Philadelphia: one is ‘ The Commissioner of Highways/ and the other ‘ The Commissioner of the City Property.’ Both have been elected by councils, are paid by virtue of ordinances legally adopted, both are serving for the terms designated by law, both receive moneys belonging to the municipality, and both, pending their respective terms of office, have, by virtue of the action of councils, been authorized to receive additional remuneration.</p> <p>“ Does the constitution of the Commonwealth prohibit this increase of salary ?</p> <p>“ That is the question now to be determined. By article III., § 13, of the Constitution, it is provided that “no law shall extend the term of any public officer, or increase or diminish his salary, or emoluments, after his election or appointment.’</p> <p>“ It is manifest that the decision of these cases turns upon the true meaning of the words £ public officer ’ in the constitutional provision.</p> <p>“ It is to be observed that “ The City of Philadelphia ’ is a municipal, and therefore a public and not a private corporation, and it exists by virtue of the sovereign authority of the Commonwealth. Th© corporate authority of the city was created for the benefit of the people, and the duties of its legislature, and of all its officers, are in one sense public duties.</p> <p>“ The great departments of the government, such as its ‘ Police’ and ‘Fire Departments/ ‘Commissioner of Highways/ of ‘ City Property/ and the like, exist for a public purpose, and wherever money is to be collected, it is to be used, not for pxivate gain or emolument, but for a pxxblic use.</p> <p>“ It does not necessarily follow that every person engaged in the service of the city, no matter how humble the employment may be, is a public officer, but it is, we think, very plain, that if the functions performed by an employé are of a public character; if he handles the public money, or performs public duties for the municipality, he is public officer.</p> <p>“ Indeed, upon this distinction rests the principle now settled, that the city is not liable for many acts of her police officers, firemen, surveyors, &c. See Elliot v. City, 7 Phila. Rep. 128; Freeman v. The City, 36 Legal Intell. 148 ; Rosenberry v. City, 7 W. N. C. 558.</p> <p>“ It may be admitted to be the law, that in the ‘ usurpation of a municipal or corporate office, no franchise or liberty of the Commonwealth is invaded or withheld,’ as was decided in Commonwealth v. Burrell, 7 Barr 37, and that ‘ a quo warranto directed to one holding the office of mayor of a municipal corporation may be prosecuted by a private relatorCommonwealth <o. Jones, 12 Penna. St. 367. l)oes it, therefore, follow that such officers as the mayor, city solicitor and receiver of taxes, are not public officers ? True, as was said in Kilgore v. Magee, 4 Norris 411, ‘this act (respecting the treasurer of Pittsburgh) concerns a municipality — a division of the -state for governmental purposes — and falls within the power of repeal and revision ;’ but that decision did not determine the question now before us, and only re-affinned in substance the old doctrine that the creature is not greater than the creator-, and is therefore the subject of legislative will.</p> <p>It seems to us that our appellate tribunal, in Commonwealth v. Evans, 24 P. F. Smith 139, after declaring that it is a difficult matter to distinguish betweeix a public officer and a person employed by the goveruxnent to perfox’rn some special service by contract, announced the doctrine when it declared, ‘We are of the opinion that all persons who by authority of law are entrusted with the X’eceipt of public moxxeys, through whose hands money due to the public, or belonging to it, passes on its way to the public treasury, must be so considered, by whatever name or title they may be designated in the law authorizing their appointment, and whether the sex-vice be special or general, transient or pennaxxent.’ Commonwealth v. Evans, it may be ax-gned, was a case which involved the liability of a sjxecial agent appointed by the governor; but, ixx principle what distinction can be made between that case and the present % The municipality is a public corporation, the moneys paid to it are xnoxxeys 2>aid for public purposes to ‘a division of the state for governmental purposes,’ and to officers who ax-e appointed to x-eceive it. All is done under the authority of law, and the money collected is designed to go into the pxiblic treasury.</p> <p>If the Legislature of the Commonwealth and her executive cannot by any legal device inflict upon the state officers, who shall be quasi private officers, can it be possible that the creature of the sovereign power, to wit, the municipality, may create officers, who, while handling the princely revenues of the first city in the Commonwealth, shall escape, upon the merest of technical constructions, the commands of the Constitution ?</p> <p>“ One other thought as to the construction to be placed upon the constitutional provision before we close this opinion.</p> <p>“ In Heydon’s Case, 3 Rep. 18, the judges resolved, “ that the true way to arrive at a sound construction of a doubtful statute is to consider the old law, the mischief, the remedy, and the true reason of the remedy.’ This principle has received the sanction of our highest tribunal (see Commonwealth v. Burrell, supra), and it is therefore our duty, in looking at a constitutional provision, to apply it.</p> <p>“The old organic law unfortunately neglected, in most instances, to guard the public treasury. The mischief was apparent, and the remedy applied had to be stringent. It is needless to refer to the reason, for that is so clear that it requires no comment. The old law was the former constitution, and the language of such an instrument, as well as the new one, is not to receive a technical construction, like a statute, but is to bo read and construed according to the natural and usual meaning of the words used. When we declare that the salaries of ‘the Commissioner of Highways,’ and ‘the Commissioner of City Property,’ cannot be ‘increased or diminished,’ after their election, and during the current terms, we only give a natural interpretation to the language of the constitution, which makes this provision applicable to ‘ public officers.’</p> <p>“ As the officers whose cases are now before us would receive but a reasonable and fair salary under the ordinances of councils, we regret in these particular cases the conclusion at which we have arrived, but we have but one duty to perform, and that is to enforce the sovereign will of the people, as embodied in the Constitution of the Commonwealth.’</p> <p>The plaintiff took this writ of error, assigning for error the entry of judgment on the case stated for $300, instead of for $375 ; and the decision of the court that the plaintiff was a public officer within the meaning of article III., § 13, of the Constitution of Pennsylvania, and that his salary as such could not be lawfully increased during the period for which he was elected.</p> <p>“ Public officers,” within the meaning of the constitution, are officers of' the state, appointed by the governor or elected by the people of the state: Commonwealth v. Burrell, 7 Barr 37; Commonwealth v. Jones, 2 Jones 367; People v. Devlin, 33 N. Y. 269 ; Conner v. The Mayor, 1 Sold. 285; Evans v. Commonwealth, 24 P. F. S. 124. The plaintiff is not such an officer, but is only the servant of a municipal corporation appointed by the city councils.</p> <p>The words of the constitution, “ no law shall be passed,” occurring as they do in an article on its face designed to direct and control the legislation of the state, and denominated “ legislation,” do not apply to an ordinance of council. An ordinance of council is not a law, and cannot, therefore, be within its meaning. The first section of this article, by its reference to “ either house,” shows the relation of the whole article to the Legislature of the Commonwealth. The 13th section of this article is no more applicable to councils than is the 1st. Justice Gordon, in the case of Kailroad v. Ervin, 7 W. N. C. 73, says that a “ law emanates from the supreme power. An ordinance is bnt a mere police regulation enforceable by lino or penalty.” The councils of Philadelphia cannot pass a law; hence the ordinance increasing the plaintiff’s salary, not being a law, is not within the meaning of the article in question.</p> <p>The language of the constitution is to be construed in a broad and popular rather than in a legal or technical sense, and when it declares “ no law shall extend the term of any public officer,” etc., the court is not warranted in confining the term “law” to a general Act of Assembly, or the term “ public officer ” to an officer elected by the people of the entire state. The term “law” in its broad sense includes an ordinance of councils, which is a law to the citizens of the municipality; and if the functions of a city official are of a public character, if he handles public moneys for the municipality and has charge of highways (which are public to all citizens of the state), he is a public officer in the constitutional sense: Donohugli’s Appeal, 5 W. N. C. 196 ; Alcorn v. City of Philadelphia, 8 Wright 352 ; Dean v. New Milford Twp., 5 W. & S. 545 ; Erie City v. Schwingle, 10 Harris 384; Freeman v. City of Philadelphia, 7 W. N. C. 45 ; Dillon on Munic. Oorp. §| 5, 22, 233; Commonwealth v. Evans, 24 P. F. S. 124; Southwark Ely .Co. v. City, 11 Wr. 314; Phila. & Trenton E. E. Co., 6 Whart. 25; Bx-anson v. City of Philadelphia, 11 Wr. 329.</p>

<p>1. The rule that where part of a contract is in writing and part in print, the written part will prevail in the construction thereof over the printed part, only applies where there is a conflict or repugnance between the different parts of the contract.</p> <p>2. An owner of land entered into articles of agreement with a railroad company whereby liin consideration of §450 payable as thereinafter stated with interest, in full for right of way and all claims for damages” he agreed to convey to the said railroad company, “ by a good and sufficient deed in fee simple with covenant of general warranty ” a certain strip of land. “Upon the delivery of said deed . . . at any time after the expiration of live years, the said . . railroad company agreed to pay . . . the said sum of §430.” The portions of the above agreement cited in Italics were written, and the rest printed. Held, that there was no conflict or repugnance between the different parts of the agreement and that the plain intent of the parties was to contract for a conveyance of the strip of land in fee.</p> <p>O. Where the owner of said land after entering into the above articles of agreement, conveyed the land to a third party, reserving to himself only the right to convey to said railroad company a right of way over said strip of land, Held, that he had put it out of his power to carry into execution his contract with the railroad company, and that therefore he could not bring an action of equitable ejectment, against said railroad company to enforce payment of the purchase money for said strip of land.</p> <p>4. A vendor under articles of agreement who has parted with the legal title to the land and who has neither possession nor the right of possession, cannot bring an action of equitable ejectment to enforce the payment of the purchase money.</p>

231. Bill in equity, by Bobert M. Modisette, et aL, against the Pittsburgh and Connellsville Bailroad Company. After answer filed, the cause was referred to an examiner and master, to whose report the defendant filed exceptions, which the court, after argument, dismissed, confirming the report, and a decree was entered in favor of the complainants.

262. Debt on the official bond of George Walter, sheriff of Butler county, by the Commonwealtli, for use of the Oil City Savings Bank, against George Walter, sheriff, and Jacob Keck and others, sureties on the said bond.

<p>1. A., in consideration of the conveyance of a tract of land to him by B., agreed to support B. during her life, and to give her a Christian burial. B., afterwards became a pauper and was provided for by the overseers of the Poor District in which she lived. A. thereupon agreed with said overseers to commute and compromise with them his contract witli B. for the sum of $ 1,500, which was to be paid in annual installments of $150 each. B. afterwards died, leaving in the hands of the overseers a portion of one of the yearly installments paid by A. Suit having been brought by B.’s executor against said overseers to recover the amount thus left in their hands, Held, that B. not being a party to the contract of commutation between A. and the overseers, and not bound in any way thereby, her representative was not entitled to set up any rights thereunder; and that hence defendants were entitled to judgment. '</p> <p>' 2. Who was entitled to the fund in question, and also to the balance of the $1,500 unpaid by A., not decided.</p>

<p>1. In an action by an administrator to recover the price of goods belonging to his intestate which he in his official capacity has sold, the defendant cannot set off a debt due him by the intestate.</p> <p>2. In an action by an administrator the plaintiff is competent to give evidence as to facts existing and acts occurring subsequent to the death of his intestate, even though the evidence may in its effect tend to prove that the same facts existed prior to the death of such intestate.</p> <p>3. A. died intestate owning a number of mules. Letters of administration were granted upon his estate ; the mules were included in the inventory and appraisement, and were afterwards sold at public sale by the administrators. In an action by said administrators against B., the purchaser of the mules at said sale, for the price bid by him, B. defended on the ground that he held a note of A. exceeding in amount the price so bid by him, that he had agreed with A. in his lifetime that the mules in question should be put into the possession of the persons who were after-wards A.’s administrators with instructions to sell them and apply the price on account of said note; that in pursuance of said agreement the mules were put into the possession of those persons prior to A’s death and so continued; that they remained unsold until after letters of administration were granted on A.’s estate; that when B. purchased them at the sale he did so under the belief that he was buying under the agreement made with A.; and finally that after the sale the administrators agreed that the sum bid by B. should be credited and indorsed on the note. Plaintiffs, in order to contradict this evidence, offered to show that they did not take possession of the mules until about the time of the appraisement. Held, that this evidence was competent and relevant, and should have been admitted.</p> <p>4. In the above case, nothing less than clear and specific evidence was admissible on the part of the defendant in support of his contention.</p> <p>5. Administrators have not the power, in distributing the estate of their intestate, to give one creditor priority over another.</p> <p>6. In the case above mentioned, it was held error to submit to the jury the question as to what the defendant’s belief was at the time of sale as to the terms thereof, there being no reason shown for such belief other than that the mules were unsold at the time of A.’s death, and the question of the plaintiff’s belief at the time of the sale being wholly irrelevant.</p> <p>7. A widow may testify as against the interest of the estate of her deceased husband in relation to facts which came to her knowledge otherwise than through the confidential relations existing between them.</p>

317. Tills was an appeal by Morgan R. Wise from a decree of the said court, discharging a rule to show cause why a certain judgment should not be opened and the said Wise be let into a defence.

313. Libel for divorce a vinculo matrimonii, by William Allen, against Hannah Allen, formerly Hannab Duvall, averring as follows: — “ That on the 25th day of July 1878 an alleged marriage was celebrated between your petitioner and Hannah Duvall; that said marriage wras procured by fraud on the part of the said Hannah, in this, that prior to the said marriage and to the time the same was celebrated the said Hannah represented and presented herself to your petitioner as a…

<p>1. Where negotiable notes are indorsed over ns collateral security for other notes then and there discounted by the indorsee for the indorser on the faith and credit of the notes indorsed as collateral, the indorsee of said notes is to be regarded as a purchaser for value. Hence no prior indorser can set up as against such indorsee the fact that he is an accommodation indorser only.</p> <p>2. In a suit by such indorsee, against such prior indorser, no evidence is admissible on behalf of the defendant which does not prove or go to-prove actual payment of the notes to the indorsee.</p> <p>O. Where a suit is instituted by one person to the use of another, and subsequently on the trial it appears that the use plaintiff is both the legal and equitable owner of the security sued upon, it is competent for the court to allow the record to be amended so as to correspond to the facts of the case. •</p>

<p>Error to the Court of Common Pleas of Washington county: Of October and November Term, 1881, No. 310.</p> <p>Debt, by the Commonwealth of Pennsylvania, to the use of A. J. Eiggle against Samuel L. Hughes and Oliver Lacock, upon the official bond of said Hughes, as administrator d. b. n. c. t. a. of Samuel Eiggle, deceased, in which bond the said Lacock was surety. Service was had upon both defendants, and both appeared by counsel. After suit brought the defendant, Hughes, died, whereupon the court, on motion, amended the record by striking out the name of the deceased defendant, so that the action should proceed against defendant, Lacock, alone. !</p> <p>On the trial, before Hart, P. J., the facts of the case appeared to be as follows : Samuel Eiggle died in 1844, leaving a widow and five children, whereof the plaintiff in the present case was one. By his will Eiggle directed a certain farm, whereof he had died seised, to be sold after the death or remarriage of his wife, and the proceeds to be divided among his children. He nominated one George Eiggle as his executor. Said George Eiggle afterwards died, whereupon letters of administration d. b. n. c. t. a., on the estate of Samuel Eiggle, were granted to Samuel L. Hughes. Hughes filed the official bond in suit.</p> <p>On October 14th 1861 the widow of Samuel Eiggle having x’emarried, Hughes obtained from the Orphans’ Court an order authorizing him to sell the farm. The sale was accordingly made, and on November 19th 1861, was confirmed by the court.</p> <p>On June 17th 1863, Hughes filed his account as administrator, which was the same day confirmed. Among his vouchers was a receipt in full for the proceeds of the farm, signed, or purporting to be signed, by all the children of the deceased, including the plaintiff.</p> <p>Subsequently, on August 4th 1879, the plaintiff, averring that he had never received his distributive share of said proceeds, instituted this suit.</p> <p>Plaintiff was offered as a witness on.his own behalf to prove that his signature to the receipt for the proceeds of the farm, was not genuine. Offer objected to, on the ground that the witness was incompetent to testify. Objection overruled, and evidénce admitted; exception. 0</p> <p>Subsequently, in the course of the trial, the deposition of Hughes, taken after suit brought, and before his death, relative to the circumstances attending the signing of- the receipt, was put in evidence by defendant.</p> <p>Verdict and judgment for the plaintiff, whereupon defendant took tills writ of error, assigning for error the admission of the plaintiff’s evidence.</p> <p>-Had the suit, at time of trial, been against Lacock and the administrators of Hughes, the plaintiff would have been incompetent, beyond .all question, as he would then have been excluded by both the spirit and letter of the law: Earns v. Tanner, 16 P. F. Smith 297; Hanna v. Wray, 27 P. F. Smith 27; Evans v. Heed, 28 P. F. Smith 415; Pratt v. Patterson, 31 P. F. Smith 114; Evans <o. Heed, 3 Nor. 254; Brady v. Heed, 6 Nor. I'll; Hess v. Gourley, 8 Nor. 195.</p> <p>If, by striking the name of Hughes, who was principal on the bond on which the action was brought, from the record, and allowing the action to stand against the surety alone, the plaintiff is enabled to recover a judgment against him on testimony which would be inadmissible in an action against the estate of the deceased principal, or in an action in which the administrators of the principal were joined with the surety, then the law is evaded; and the estate of Samuel L. Hughes, deceased, is thus indirectly charged with what could not be recovered in a direct action; because, in an action by Lacock against the administrators of Hughes, upon the contract of indemnity which the law will imply as made the moment the surety’s obligation is entered into (Ward v. Henry, 5 Conn. 595) the judgment recovered against him, would be evidence against them: Clark v. Carrington, 7 Crancli 322; Drummond v. Prestmau, 12 Wheat. 516; WLart. on Ev. § 770; and conclusive evidence, if notice has been given to defend the action: Greenleaf on Ev. §188; Biglow on Estoppel, 65; Dufiield v. Scott, 3 Term H. 374; Lloyd v. Barr, 1 Jones 42 ; Hanna v. Wray, 27 P. F. Smi+h 27; Barr v. Greenawalt, 12 P. F. Smith 175.'</p> <p>It will not do to say that the plaintiff was a competent witness under the Act of 1869, because Hughes’s deposition was taken and read in evidence. The plaintiff was not put on the stand to rebut or deny anything Hughes had testified to, but to make out his own case before it could be known whether the deposition would be read or not.</p> <p>Even if the deposition of Samuel L. Hughes had been read in evidence before the plaintiff offered himself as a witness, he still would have been incompetent. The third section of the Act of April 15th 1869, authorizes the testimony of all witnesses made competent by that act to be taken “ by deposition or commission issued as the case may require.” If the plaintiff wished to perpetuate his own testimony, his only way was to follow the provisions of that act by having his deposition taken, while all the parties were living, and there was a chance for cross-examination: Pratt v. Patterson, 31 P. F. Smith 114; Evans v. Reed, 3 Norris 254.</p> <p>Defendant in error did not appear, and presented no paper book.</p>

62. Debt, by James McLoney against James Craighead, upon the following note under seal: $1,080. March 31st 1868. One day after date we, or either of us, promise to pay to James McLoney, or order, $1,080, without defalcation, for value received. Witness our hands and seals, at eight per cent, interest.

20J. Debt, by the Hoosier Drill Company against John C. Johnson to recover the price of five drills sold by defendant as their agent. On the trial, before Willson, P. J., the following facts appeared. On December 13th 1878, plaintiff entered into articles of agreement with defendant, whereby the latter was constituted plaintiff’s sole agent for the sale of the agricultural implements made by them in certain townships of Fayette county.

<p>1. A vendee of land under articles of agreement who has been deceived by fraudulent misrepresentations of the vendor as to tbe number and amount of the liens upon the land, and whose vendor is unable to make to him a good and sufficient deed by reason of the existence of such liens, is not obliged to apply the purchase money on account of said liens where the amount thereof exceeds the amount of such purchase money. He may in such case elect to rescind the contract.</p> <p>2. Where a party to an agreement for the exchange of lands is in the position above described, he is entitled to demand from the other party an unconditional release of the liens on the premises for which he has contracted. In case of failure on the part of said party to procure said release the party defrauded is at liberty to rescind the contract of exchange and to resume possession of the premises originally owned by him.</p> <p>3. A release of liens conditioned on the performance by the defrauded party of his contract of exchange is not such an unconditional release as said party is bound to accept.</p> <p>4. Where such release is tendered after the defrauded party has elected to rescind and resumed possession of his own land and immediately before the land for which he has contracted is to be sold under an execution issued upon one of the lions, the tender is too late and need not be accepted.</p> <p>5. It is not error for the court to comment on the evidence, or to express an opinion on the weight thereof, if the facts are left to the jury.</p>

144. ' Debt, by Sarah A. Chase, survivor of Edward II. Chase, to the use of Watson and Pierce against Asher S. Hubbard and Mary E. Hubbard, Ms wife, upon a joint and several bond for §4,000 given by defendants to plaiutiff Sarah A. Chase and Edward II. Chase, deceased. Judgment was entered upon this bond by virtue of the warrant of attorney thereto annexed, on November 19th 1877 in the sum of $1,054.94, that being the amount alleged to be due and unpaid thereon.

320. Feigned issue. By virtue of several executions the real estate of one W. T. McMurtry was sold at sheriff’s sale in November 1880, and the proceeds were paid into court. Before the auditor, appointed to report distribution, the fund was claimed on the one hand by Ticknor &■ Co., and on the other hand by Caroline A. Huston, both of whom held judgments against McMurtry. Miss Huston’s judgments were entered October 1876.

318. Feigned issue, between N. IT. Payne, plaintiff, and M. O. Egbert, defendant, to determine the ownership of a sum of $1,883.12, deposited in the Second National Bank of Titusville,! to the credit of Payne, and by the .said bank paid into court.

312. This was an appeal by David Shafer from an order refusing to open a judgment entered on a judgment note by virtue of a warrant of attorney to confess judgment, in favor of J. R. Dick & Co. against Henry Shafer, George Shafer and David Shafer.

<p>Error to the Court of Common Pleas of Orctwford county: Of October and November Term 1881, No. 56.</p> <p>Assumpsit, by Hiram Randolph and A. F. Randolph against Thomas Shafer and James Martin (and others not served) to recover for breach of an alleged contract, whereby the defendants procured the plaintiff to manufacture certain patented articles, under a patent-right owned by defendants, at a stipulated price, which the defendants afterwards refused to pay. The narr. averred a joint contract, on the part of the defendants, Shafer and Martin, and breach. There was no defence as to Shafer, except as to the number of articles contracted for. Martin defended on the ground that the contract was made by Shafer alone, who had no right to bind him.</p> <p>On tbe trial, before Church, P. L, the evidence showed that the defendants, Shafer and Martin, with several others, had purchased jointly a certain patent right for the manufacture and sale of patent grain separators. The plaintiff, A. F. Eandolph, testified that, in 1877 Shafer engaged him to manufacture twelve separators, at §10 each; that Martin was present during the interview, and made no objection, stating that he and Shafer and others had bought the patent-right jointly as partners; that, after the twelve machines were made, and three of them delivered, Shafer paid $15 on account, and told Kandolph to go to Martin and the other owmers of the patent, who were to pay their share of the cost of manufacture ; that Martin, on being applied to, put him off, saying he thought some of the separators would be sold within a week, whereby the money could be raised to pay plaintiffs for making them.</p> <p>Shafer denied that the contract was for twelve separators, alleging that the agreement was for three or four, and if they sold readily others should afterwards be made. Martin denied that he had ever made any partnership with Shafer, other than the joint purchase of the patent-right, and denied his affirmance of the bargain made by Shafer. It appeared that Martin, in reply to an application from a party to hire a machine, had said : “I do not want to hire them — -we have them to sell; I will sell you one for $20.”</p> <p>The defendants presented the following point:</p> <p>“ That this suit being’ brought against the defendants jointly, and there being no evidence to show that both joined in the contract, the plaintiff cannot recover.”</p> <p>Ansveer. “ This suit does not seem to have been brought against the defendants jointly, but against the defendants and others. Those two defendants, being the only ones served with process, are the only ones at present before the court. If these two defendants owned a patent-right with others, and one of these bargained for the making of the patented article, and for the sale of the same for their joint and common account, it was such a bargain that one partner might make for and bind his copartners, and the fact of the partnership not having been registered as provided by law, the leaving out of some partners, who might have been lawfully joined, is not cause for plea of abatement, nor according to the rules of court in pleading as to partnership or non-partnership.”</p> <p>Verdict and judgment for the plaintiff for $122. The defendants took this writ of error, assigning for errpr the answer to their point, as above.</p> <p>Evidence of joint ownership of a patent-right is wholly insufficient to sustain a claim founded on liability of the joint owners, as partners, for the cost of manufacturing the patented articles under a contract made by one only of such joint owners. These owners were simply assignees of the patent, and at no time formed any copartnership of any kind whatsoever.</p> <p>"Whether the defendants below, Shafer and Martin, were general partners in any kind of business is not material. It Avas sufficient to show that they were jointly concerned in the particular transaction in which the plaintiffs, Randolphs, Avere employed to construct the machines: Kirk v. Hartman, 13 P. F. Smith 105. Of the fact that they Avere so concerned there was ample evidence to go to the jury, and the jury found that they Avere.</p>

272. This was originally an appeal by William Nash, treasurer of Crawford county, under the provisions of the Act of April 16th 1875, § 1, Pamph. L. 54, from the report of the auditors of. said county fixing the amount of appellant’s commissions as treasurer for the year ending January 1st 1882. The court directed an issue to be framed, wherein William Nash was plaintiff and the county of Crawford defendant, to determine the amount of said commissions due to the plaintiff.

158. Trespass, by J. J. Freeman and Pamelia Freeman, liis wife, in right of said, wife, against Andrew G. Apple, sheriff, and L. II. Long, deputy sheriff, for taking into execution and selling certain household goods, the property of said Pamelia, under a writ of li. fa, issued upon a judgment obtained against said J. J. Freeman, her husband.

144. On June 28th 1878 the plaintiff, E. J. Montague, entered judgment to April Term 1878, No. 706, against the defendant, G. A. McDowell, upon a promisssory note for $843.80 with warrant of attorney, including a five j>er cent, attorney’s fee, making the amount $886.

<p>Error to the Court of Common Pleas of Mercer county: Of October and November Term Í881, No. 45.</p> <p>Assumpsit by Orr Griswold, et al., against William McCafferty, to recover damages for the breach of an alleged parol agreement, whereby defendant agreed to lease to the plaintiffs for the term of twenty years a tract of land for the purpose of drilling oil wells thereon. Pleas, non assumpsit, payment with leave. The defendant, William McOafferty, died before trial, and his administrator, Howard McOafferty, was substituted.</p> <p>On the trial before MoBermitt, P. J., the evidence on behalf of the plaintiff was to the following effect:</p> <p>In 1872 William McOafferty, who owned a farm in Butler county containing three hundred acres, entered into negotiation with the plaintiffs, who were practical drillers, with the view of testing a portion of his laud for oil. He at first proposed to give them a lease of five acres on certain conditions. The plaintiffs declined to take a lease of less than ten acres. After some negotiation, the parties agreed verbally that the lease should be for a square ten acres of land out of the south-east corner of McCafferty’s farm, for the term of twenty years, the lessee to bore for oil, and prosecute the work to success or abandonment, and in case of success, the lessor to be entitled to a royalty of one-fourth (afterwards reduced to one-sixth) of the oil obtained; and in case any well should produce more than forty barrels per day, the lessees should pay, in addition, to the lessor the sum of $200 per acre. The plaintiffs immediately took possession, built a rig, etc., at a cost of about $600, and commenced drilling. On August Blst 1872, after the commencement of the work, the parties met at the office of M. S. Bay, a justice of the peace, to execute the lease. A lease was produced, which had been prepared by Justice Bay under the instructions of McOafferty, for five acres of land instead of ten. The plaintiffs at first refused to accept this lease. McOafferty stated that he would prefer to sign first a written lease for the five acres on which the well was begun, and if that well should prove to be a paying one, he would then give a written lease for the other five acres. Griswold objected at first, but afterwards consented to the proposed arrangement, and the lease for the five acres was duly executed.</p> <p>Griswold then proceeded with the work, and after ten months’ labor and an expenditure of $10,000, the well produced oil at the rate of 170 barrels per day. Within a few days after its completion, Griswold demanded from McOafferty a written lease for the other five acres, which he refused to give; and for the breach of this alleged verbal agreement, Griswold brought this suit. It appeared that the plantiffs had sold their interest in the well and five-acre lease for the sum of $18,000 ; also, that McOafferty, within a month after the completion of the well, had sold his farm for $90,000, and that two wells, producing each about 250 barrels a day, were afterwards sunk on the five acres which were the subject of the alleged parol agreement.</p> <p>The plaintiffs averred that the labor and cost which they expended in putting down the said well, were so expended in consideration of the parol agreement to lease the additional five acres, as well as in consideration of the written lease.</p> <p>The defendant claimed that all the prior negotiations were merged in the written lease for five acres, and denied the alleged contemporaneous verbal contract, and that the plaintiffs had expended any money or labor on the faith thereof.</p> <p>The plaintiffs presented the following points: — 1. “ If the jury find from the evidence that McCafferty agreed to lease to the plaintiffs a square of ten acres of land, out of the south-east corner of his farm, for the consideration of the plaintiffs’ putting down the test well on said farm, the lease for five acres of said land to be executed before the well was put down, and the lease for the other five acres to be executed after the well was down, as testified to by plaintiffs, then the plaintiffs are entitled to recover, for the breach of the McCafferty agreement to execute the second five-acre lease, one-half of what it cost them to put down said well, with interest from the time of breach.”</p> <p>Answer. “ The general law of this point is affirmed, and as we know of no more equitable rule for the measure of damages then as herein stated, the j>oint is affirmed generally.”</p> <p>2. “ That if the original parol contract for ten acres, as testified to by plaintiff, was not changed or modified at the time the written lease for five acres was made (except as shown by the evidence of Orr Griswold), then the execution of said written lease would not prevent plaintiffs’ recovery in this suit.”</p> <p>Answer. “ Affirmed; but what the original parol contract was is for you.”</p> <p>The defendant presented the following points : — “ 1. That all the conversations and negotiations between the parties prior to the execution of the written contract are merged in such written contract, and that the law presumes such written contract to be the consummation of the previous negotiations, and to be the actual agreement of the parties.”</p> <p>“ Answered affirmatively, but this is a presumption of law which may be overthrown by parol proof of what occurred between the parties when they executed their written agreement.”</p> <p>“ 2. That if the jury believe from the evidence that the plaintiffs accepted the written contract of August 31st 1872, and in pursuance of said contract went on and expended their time and money in putting down the well on said lease, then all the labor and expenditure so made on said lease would be referable to said written lease or contract, and none of the same could be referred to their verbal contract.”</p> <p>Answer. “If the weight of the evidence shows you that the plaintiffs accepted the written lease or contract in evidence, and in pursuance of it and solely upon the faith of it expended tlieir money in putting clown tbe well, then this point is affirmed ; but if you find as a fact from the evidence that the plaintiff refused to accept the five-acre lease as a consideration for sinking the well, and that the agreement between the parties, entered into at the same time the five-acre lease was executed, was that they should receive a written lease for the other five acres as soon as a paying well was struck, and if the plaintiffs expended their money on the faith of such agreement that they were to receive a lease for the other five acres, then this point is refused.”</p> <p>“ 3. That if the jury believe from the testimony of the plaintiffs that one of the conditions of their getting the additional five-acre lease was, that they should get a paying well on the five acres for which they had a written contract, then all the time and money so expended was expended on and under said written contract in putting down the well, the quality of which, when finished, was a condition precedent to any additional lease, then none of the expenditures so made could be referred to the promise of an additional lease.”</p> <p>Answer. “ If you find, the contract was that plaintiffs should put the well down under the lease executed for the five acres alone, this point is affirmed ; but, if the contract was, that they were to receive a lease of the ten acres therefor, and if the plaintiffs expended their money on the faith of so receiving a lease for the other five acres in addition when a paying well was struck, then this point is refused.”</p> <p>“4. That from all the evidence in the case the plaintiffs have not shown, that they have paid any money to the defendant, or made any expenditures of moi’e time and labor exclusively upon the faith of the verbal lease for five acres in addition to the five acres in the written lease, and therefore they cannot recover.”</p> <p>Answer. “Whether they have or not is a question of fact for the jury under all the evidence. Thus answered, this point is refused.”</p> <p>Verdict for the plaintiffs for $4,345.50, and judgment thereon. The defendant took this writ of error, assigning for error, inter alia, the answers to plaintiffs’ and defendant’s points as above.</p> <p>Although an action will lie for a breach of a parol contract to lease for more' than three years, the rule as to the measure of damages recoverable, as now well settled in Pennsylvania, is that in the absence of fraud only such damages as result directly from the breach can be recovered— nothing for the loss of the bargain: Sausser v. Steinmetz, 8 W. N. C. 100 ; Thompson v. Slieplar, 22 P. F. Smith 160 ; Harris v. Harris, 20 P. F. Smith 170 ; Dumars®. Miller, 10 Casey 319. The former doctrine, as held in Jack ro. McKee, 9 Barr 235, was distinctly overruled in Hertzog v. Hertzog, 10 Casey 418, which has been followed in all the subsequent cases. The evidence in this case was insufficient to establish the alleged parol contract: Frederick v. Campbell, 13 S. & R 136; Poorman v. Kilgore, 1 "Wright 309: or, that the plaintiffs performed any labor or expended any money exclusively on the faith of their alleged parol contract. What they did expend was necessary under the written lease, and is referable solely to that. The plaintiffs suffered no damage on the whole transaction; but, on the contrary, made a clear profit of $8,000. The court, therefore, erred in its answers to the points with respect to the measure of damages.</p> <p>We do not claim that we can recover for the “loss of our bargain.” We do claim, however, that the labor and money expended by us on the test well, was so expended equally on the faith of the parol contract to lease an additional five acres, as on the written lease. This was shown by the facts that we refused McCafferty’s first offer of five acres, and upon his acceding to our proposition for a lease of ten acres, we began work and expended several hundred dollars on the faith of that parol contract for ten acres before the production by McCafferty of the written lease for five acres. This was a surprise to us, and we only accepted it, at his request, on the faith of his contemporaneous agreement that he would sign the lease for the other five acres upon a successful completion of the well. The written lease for a part, and the parol agreement that accompanied it and upon the faith of which it was accepted, effected no change in the original contract, except that the time for signing the lease of one-half the land was postponed until the completion of the well already begun on the other half. The consideration for the whole was the sinking of one test well. By accomplishing this, we have paid the consideration for the whole; but have received only one-half. Why then can we not recover back the consideration we paid in advance for the second half, viz., the amount we spent on the faith of McOafferty’s promise to give it ? The court below in their instruction to the jury equitably measured this amount as one-half of what we expended on the well, although the jury did not give us so much. If McCafferty had agreed, in consideration of our sinking the test well, to sell us ten acres, the deed for five acres to be made on commencement of the work afid the deed for the other five acres to be made on its completion, he could not, after its completion, have refused with, impunity to execute the second deed. There is no difference, in principle, between a sale and a lease. The fact, that we sold our live-acre lease for more than we spent upon it, is immaterial. Our right to recover, in this action, is the same as if we had sold it for less or had retained it.</p>

58. Appeal of Elizabeth B. Biddle from a decree of the said court, dismissing her exceptions to and confirming the adjudication of the… Held: at which it was resolved to increase the capital stock from $2,000,000 to $3,000,000 by issuing 100,000 shares at $10 per share in the proportion of one share for each two shares held by the stockholders, the latter to pay $10 per share for each share of the new stock, aud also $10 per share for the privilege of subscribing; the…

2, of Philadelphia comity : of January Term 1882, No. 22. Debt, by Lydia B. Timlow, et al., executors, etc., against the Philadelphia and Reading Railroad Company. The plaintiffs filed copies of four bonds for $1,000 each, issued by the Philadelphia and Reading Coal and Iron Company, on each of which was an indorsement executed by the Phfadelpliia and Reading Railroad Company, guaranteeing the punctual payment of the principal and interest of said bonds.

3, of Philadelphia oovmiy: Of January Term 1882, No. 20. Appeal by Elizabeth Eillman from an order of said court, setting aside the service of a subpeena in divorce. Elizabeth Fillman, a resident of Philadelphia, by her next friend John F. Maclde, filed a libel in divorce, a. v. m., against her husband Jacob Fillman, who resided in Montgomery county.

3, of Philadelphia county: Of July Term 1881, No. 47. Assumpsit by William W. Righter and Edward L. Cowgill, trading as Righter, Cowgill & Co., against the Philadelphia Warehouse Co., to recover the disputed balance of an account of sale of collaterals, held by defendant as security for a loan to plaintiffs.

2 of Philadelphia comity: Of January Term 1879, No. 262. Assumpsit, by John Stuard, against Marcus A. Davis.

3, of Philadelphia county: Of January Term 1881, No. 179. Trespass, by Thomas Moore and wife against the Pennsylvania Iiailroad Company, to recover damages for the death of their son, Thomas B. Moore, caused by the alleged negligence of the defendants’ servants.

1, of Philadelphia county : Of January Term 1880, No. 329. Trespass, by George F. Fields against William S. Stoldey, to recover damages for tbe destruction of a wooden building belonging to the plaintiff which had been torn down and demolished by defendant’s orders. Pleas, not guilty, and a special plea, to which a demurrer was sustained.

3, of Philadelphia county: In Equity : Of July Term 1881, No. 28. Appeal by Theophilus Smaltz, from a decree of the said court, requiring him to perform specifically an agreement in writing to purchase certain real estate.

1, of Philadelphia counl/y: Of July Term 1881, No. 80. Mechanic’s claim, filed by Joseph C. Boteler, et al., trading as Joseph C. Boteler & Co., against Jacob Espen and Samuel Espen, owners, &c., and James L. Burns, contractor, for $185.75, for painting and glazing done by the plaintiffs on a certain building, No. 1020 Chestnut street, Philadelphia, known as the Clarendon Hotel.

2, of PJiiladelphia county: Of July Term 1881, No. 101. This was a scire facias, issued by W. W. Jones against the Manufacturer’s National Bank, garnishees, upon a judgment obtained by the plaintiff against James Payer.

1, of Philadelphia county: Of January Term 1882, No. 15. * Trespass, by the Harmony Building Association against George Berger, for severing and taking away from a house which the plaintiff had purchased at sheriff’s saie certain articles alleged to be fixtures. On the trial, before Biddle, J., the following facts appeared : The defendant, on December 29th 1873, being the owner of a house and lot, No. 2612 Girard avenue, mortgaged the same to the association plaintiff.

2, of Philadelphia county: In Equity: Of January Term 1881, No. 151. Appeal of James w. Carson and W. W. Keefer, trustees, from a decree of said court directing the payment by them of certain accumulated income to Mrs. Ella V. Nutter, the cestui que trust under a deed of trust.

3, of Philo delj)hia county: Of January Term 1881, No. 96. Scire facias stir muneipal claim, by the city of Philadelphia, to the use of William Armstrong, against the heirs of J. S. Wain, deceased.

104. Appeal of Fredoi’ick McGlade, executor of the will of Mary B. Daly, deceased, and of Rev. James E. Mulholland, from decree of said court, in the matter of the account of said McGlade, as executor, surcharging him with the proceeds of certain securities sold during the testatrix’s last illness by her direction ; and refusing to award payment to Rev. James E. Mulholland of the sum of $100, bequeathed to him by said testatrix “ for masses.” The facts were as follows : — On…

2, of Philadelphia cownty: Of January Term 1881, No. 205. Case stated, by the People’s Bank of Philadelphia against William W. Kurtz, trading as W. W. Kurtz & Co., showing the following facts :— * In April, 1875, the People’s Bank purchased from the defendant, who was a note-broker, three promissory notes in the following form:— “ $5,000.

4, of Philadelphia county: In Equity: Of July Term 1881, No. 97. Appeal by Edward T. Burke from a decree of said court requiring liim to surrender to William Torrey certain securities pledged for an alleged loan or debt. Tbe bill in equity, filed by William Torrey against Edward T. Burke and tlie several corporations whose stock constituted the subject of tlie pledge, set forth: 1.

67. This was an appeal by Gertrude Pleasonton, administratrix of Augustus Pleasonton, deceased, from a decree of the said court, dismissing exceptions to, and conforming the adjudications of the judge auditing the account of Augustus J. Pleasonton, Chapman Biddle and Robert Toland, trustees under the last will and testament of Joseph Dugan, deceased.

1, of Philadelphia county : Of July Term 1881, No. 18. Covenant, by Joseph Penn against John Auer, upon a contract of suretyship annexed to a lease. Upon a former writ of error, a judgment entered for plaintiff for want of a sufficient affidavit of defence was reversed, and a procedendo awarded : See 11 Norris 444.

1, of Philadelphia county; Of January Term 1882, No. 69. Assumpsit, by John T. Tagg, to use of Horace F. Weeks, against Jonas Bowman. The narr. contained only the common, counts.

3, of Philadelphia county: Of January Term 1882, No. 26. On July 9th 1881, James C. Biddle and Ernest Weiss, trading as Biddle & Weiss, procured to be issued a writ of attachmentj under tlie act of March 17th 1869 (Purd. Dig. 53, pi. 71), wherein II. W. Black and---Moody were named as defendants. The plaintiff’s affidavit on which the attachment issued averred. an indebtedness due by defendants to plaintiffs, on a book account, for goods sold and delivered.

3, of Phüadel/phia county: In Equity: Of January Term 1881, No. 186. Appeal of II. J. Fox, executor and trustee under the will of Elizabeth Sparks, deceased, from a decree of said court, restraining Mm from collecting the rents of a certain house and lot, and requiring Mm to deliver up to the complainants the muniments of title thereto in Ms possession.

123. Indictment against Albert G. F. Goersen for the murder of his wife Elizabeth E. Goersen.

62/ Appeal of Silas Yerkes, et al., executors of the will of Mary G. Whitaker, deceased, from a decree of said court, in the matter of the distribution of the estate of her late husband, Robert… Held: and disallowed the said claim for credits in the account.

In the Supreme Court of Pennsylvania. Charles C. ITaines, William E. Mislcey, Jr., and Henry G. Clement, filed their petition, averring, inter alia, that upon the trial of a certain indictment in the Court of Quarter Sessions of the county of Philadelphia, before the Honorable Thomas K. Pinletter, an associate justice of said court, wherein tiie petitioners were indicted for conspiracy, and were convicted and sentenced, tbe defendants, by their counsel, had taken certain…

47. This was an appeal by Michael B. Andress and' George II. Dale, executors of Conrad B. Andress, deceased, from a decree of said court dismissing their exceptions to the adjudication of the auditing judge upon tlieir account as executors. Conrad B. Andress died May 16th 1879.

Appear from the Court of Commom Pleas No. 2, of Philadelphia, county: In Equity: Of January Term 1881, No. 112. Held: as evidence of her title, eight certificates issued by the company in the usual form, taken out of the certificate book, and all under its seal duly attested by the genuine signatures of its president, secretary and treasurer; that the certificates for 1677 of the said shares were handed, on February 25th 1876, to her by John S.…

3, of Philadelphia county : Of January Term 1881, No. 254. Appeal by Mrs. Sarah Yinton from a decree of said court dismissing her exceptions to the report of an auditor appointed to audit, settle and adjust the account of the Pennsylvania Company for Insurance on Lives, &c., trustees for said Sarah Vinton, under a certain deed of trust, and confirming the report.

<p>A testator, by his will, directed his executors, in case within five years after Ins decease a respectable number of persons could be found to form the nucleus 'of a Presbyterian congregation in T., to set apart ground, erect a church thereon, and convey the same to the trustees of the General Assembly of said church, in trust for the use of said congregation, and with power, whenever said trustees should deem it expedient, to convey the same to said church and congregation. He further directed his executors, on completion of the building, to deposit a certain sum in trust, the income therefrom to be applied towards the support of the pastor of said church. In case no congregation should be formed within the stipulated period, the testator directed the above devise and bequest to fall into, and become part of his residuary estate. The executors notified the presbytery in whose ecclesiastical jurisdiction the town of T. was situate, and said presbytery thereupon proceeded to organize and constitute a regular congregation and church in said town, notifying the executors of their action in the premises. The executors wrote to tlic presbytery accepting its action as binding upon them, and acknowledged their obligation to carry out the wishos of the testator. Subsequently, however, at the instance of the residuary legatees and devisees, they declined to go on, averring that they liad not sufficient evidence to justify them in building. A bill in equity having been filed in the Common Pleas by the members of the church established in T., as aforesaid, to enforce their rights under the will against the executors, and said executors having filed an answer averring that a respectable number of persons had not been found to form the nucleus oí a congregation, — Held, that if such a nucleus onco were established it was the clear duty of defendants to locate, build, convey and deposit as directed by the will, and that the presbytery, having regularly, and apparently in good faith, organized a congregation, the prima facie presumtion was that there existed a proper nucleus ; that the burden of proof was on defendants to show want of good faith, or gross error of judgment on the part of the presbytery, aud that they having failed to do this, complainants were entitled to the relief sought. Held, further, that the Common Pleas had jurisdiction in the premises, and that the jurisdiction of the Orphans’ Court was not exclusivo. Held, further, that under the circumstances of the case, the executors having acted in good faith and made no unreasonable delay, the costs should be paid out of testator’s residuary estate, not out of the fund in controversy.</p>

<p>Error to the Court of Common Pleas No. 1, of Philadelphia, county : Of January Term 1882, No. 201.</p> <p>Amicable action, ease, between Herman D. Kellner, et a]., plaintiffs, and Herman Binge, defendant, for the purpose of determining whether the plaintiffs were seised in fee of certain premises in the city of Philadelphia.</p> <p>The following facts were agreed upon by the partios, and submitted to the court for their opinion as a case stated : — ■</p> <p>Daniel Kellner died on January 28th 1878, leaving to survive him a widow, Caroline M. Kellner, who has since died, on July 1-ith 1880, and the following children: Herman D. Kellner, Clara J., wife of Frederick C. H. Corvey, Caroline M., wife of Charles F. Albert, and Anita M., wife of Gustav K. Schindler.</p> <p>By his will, since duly admitted to probate in the office of the register of wills of Philadelphia county, Daniel Kellner provided, as” follows :—</p> <p>“Philadelphia, July 26th 1876.</p> <p>“ I, Daniel Kellner, now residing No. 515 Wood street, in the city of Philadelphia and state of Pennsylvania, I herewith make and write down my will and testament which if no will of a later date be found at my decease shall be binding to my heirs and all concerned as my last will and testament.</p> <p>“ To my beloved wife, Caroline Kellner, I leave all the revenue and income of my real and personal estate daring her life time provided slie remains my widdow .... all my real and personal estate after the decease of my wife and after debts and funeral expenses are paid shal be ecpially divided among my four children or their children incase they themselves are dead. It is also my will ‘that my daughters shal have and hold their share of inheritance in their own name and shal not let it be contronled by their respective husbands, and tbe husband slial not inherit it unless there is no child living. I want the estate to be settled up within one year after the last of us is dead, but will leave to my heirs to determine whether they will sell the real estate within that time or settle it among- themselves another way, as for instance, one may take one property and another one another and pay over the difference. Now, to avoid all quarreling as much as possible after we are gone, I will say yet, whatever we have given to one oc the other during lifetime shal not be taken account of. But if any one holds borrowed money for which he or she pays interest such sums must be taken in account. All furniture and other personal estate what is left shal be collected in as many lots as there are children heirs and drawn for by lot.</p> <p>“ Daniel Kellner.”</p> <p>At the time of his death Daniel Kellner was seised in fee of premises No. 515 Wood street, in the city of Philadelphia. Herman Ringe has entered into a contract to purchase from the heirs of Daniel Kellner, deceased, hereinbefore named, the said premises for the price of $3,100, but now refuses to pay the purchase-money, upon the ground that the said, heirs cannot convey to him an estate in fee.</p> <p>If the court shall be of opinion that the said plaintiffs can convey to the said Ringe an estate in fee, then judgment shall be entered in favor of the plaintiffs against the said defendant for the sum of $3,100; but if the said plaintiffs cannot convey such an estate, then judgment shall be entered in favor of the defendant; either party to be at liberty to sue out a writ of error.</p> <p>After argument, the court below, being of the opinion that the plaintiffs could convey to Ringe an estate in fee, entered judgment against the defendant in the sum of $3,100. The defendant then took this writ of error, assigning for error the said judgment.</p> <p>Prior to the Act of April lltli 1848, the use of any words in a deed or will which indicated an intention to give property to a married woman in such a manner as that she should hold independent of her husband’s control, was sufficient to raise a trust for her sole and separate use. If no trustee were named, a court of equity would not permit the trust to fail for that reason, but would appoint a trustee: Jamison v. Brady, 6 S. & R. 465; Tyson’s Appeal, 10 Barr 220; Heck v. Olippenger, 5 Barr 385. The Act of 1848, has no application to cases whore the words would have created, before that act, a sole and separate estate in equity: Wright v. Brown, 8 Wright 224. A married woman, for whose benefit a sole and separate estate in equity has been created, has no power of alienation other than what may be expressly given to her in the instrument creating the trust.</p> <p>The direction of the testator, that the shares of his daughters (who were married women at the date of the will) should not “ be controlled by their respective husbands, and the husband shall not inherit it, unless there is no child living,” is appropriate to create a sole and separate estate; and there being no express general power of sale given to the cestnis que trustent by the will, they cannot convey a fee.</p> <p>The estate given by the will answers the description of the estate given by the Act of 1848. Not only was no trust created, but the idea of a trust is excluded by the express direction that the daughters were to have and to hold their shares in their own names; they had the option of selling or making partition among themselves. The testator’s expressions “ they shall not let it be controlled by their husbands,” and “ the husband shall not inherit it unless there is no child living” may fairly be construed to be merely words of recommendation and advice. Otherwise the provisions of the will would be inconsistent and irreconcilable, in which case the prior clause excluding the husband’s control must give way to the subsequent power to sell. In doubtful cases, the law-leans in favor of absolute estates.</p>

<p>Error to the Court of Common Pleas No. 4, of Philadelphia county: Of July Term 1881, No. 82.</p> <p>Case, by Morton A. Packer against Loftus Sykes and Joseph Sykes, trading as L. Sykes & Son, to recover damages for an injury to the plaintiif caused by the alleged negligence of the defendants.</p> <p>On the trial, before Briggs, J., the following facts appeared The defendants were builders of iron structures, and were engaged in the construction of an iron shed upon a pier on the river Delaware. In this work they had employed the plaintiff as a rigger. The defendant, Joseph Sykes, being aloft upon a rafter, resting upon iron columns, for the support of an iron roof, directed the plaintiff to come up and assist him in his work. He did so, and in a few minutes the building fell, precipitating both Sykes and the plaintiff, and others, to the ground, whereby the plaintiff was injured. The testimony showed that the rafters, after being placed in position, had been held in place by two sets of blocks and tackle, and that, a short time before the plaintiff mounted the rafter, one set had been removed by permission of one of the defendants. A witness testified: “I am a rigger; arranged the guys Etnd tackles myself. One guy was removed. I took it off. I asked Mr. Sykes whether I could, and he said yes. .The other tackle stood still. The tackle I took off I wanted for something else.” The plaintiff was not informed of the removal of the tackle. No witness testified that the accident was directly caused by the removal of the tackle, but there was some evidence that another workman, who had been on the rafter with Sykes, became nervous because “ the thing shook,” and he was told to go down and send plaintiff in his place. The same witness said that in his opinion the accident would not have happened if the block and tackle had been left there. At the close of the plaintiff’s case, the defendant moved for a non-suit, which was denied.</p> <p>The defendants’ counsel, in his opening to the jury, began to refer to the mode of erection of the structure, when he was stopped by the judge, who said the question was whether the tackle was taken away — that defendants were liable, if either of them ordered the tackle to be taken away without notifying plaintiff.</p> <p>The defendants requested the court to charge that, under all the evidence, the verdict should be for the defendants. Refused. The court, in the charge, said : “ It is alleged by the plaintiff, that the defendants caused to be removed a support essential to keep part of the structure in position, without notifying the plaintiff of the removal. If you find this to be so, and the plaintiff did not know of the removal, and that it was improper to remove it, then it is negligence on the part of the defendants.”</p> <p>Verdict for the plaintiff for $500, whereupon the defendants took this writ of error, assigning for error, the refusal of their point, and the portion of the charge above quoted.</p> <p>The court instructed the jury, in effect, that an employer engaged with his workmen in a hazardous employment, is not only'bound in law to know the effect of the shifting of supports in a building which he is erecting, but that, while he is sharing the risk of the removal, he is bound specially to call the attention of his workmen to the fact, though they are beside him, and have the means of knowing. In other words, if it could be subsequently shown by the effect of the removal, that if it had not been made the building would not have fallen, though the builder honestly exercised his judgment as a builder’, and stood beside his men exposed to the same danger, he is responsible if one of his men is injured. This is not the law: Railway Co. v. Bresmer, 1 Out. 1Ó3; Priestley v. Fowler, 3 M. & W. 1.</p> <p>If the master subjects his servant to dangers, such as he ought to provide against, he is liable for an accident resulting from them. The servant’s primary duty is obedience, and if in the discharge of his duties he is damaged, through the neglect of the master, the latter is liable for the injury ; and the master is bound to furnish and maintain suitable instrumentalities for the duties required of his servants ; and if he does not he is liable for injuries arising from his neglect: Patterson v. Pittsburgh and Connellsville R. R. Co., 26 P. F. Smith 389; Oak Ridge Coal Co. v. Reed, 5 W. N- O. 3 ; Coal Company v. McEnery, 8 W. N. C. 81; Baker v. Allegheny Talley R. R. Co., 9 Id. 337; Bressmer v. R. R. Co., 1 Out. 103; Clarke v. Holmes, 7 Hurlst. & Nor. 937; Snow v. R. R. Co., 8 Allen 444; Gilman v. R. R., 10 Id. 233.</p>

<p>1. The provisions of the General Road Law of June 13th 1836, Pamph. L. 556, requiring an owner of land through which a public road may be opened, to present his petition for a jury of view to assess damages within one year after his land has been taken, applies in cases where the grade of a street in the city of Philadelphia, more than fifty feet wide, is altered in accordance with the provisions of section 27 of the Consolidation Act of February 2d 1854, Pamph. L. 37.</p> <p>2. The provisions of section 27 of the Consolidation Act of February 2d 1854, Pamph. L. 37, authorizing the recovery of damages by land owners in the city of Philadelphia whose land is injured by the alteration of the grade of streets in the maimer therein specified, were intended to apply in those cases only where such alteration is made in order to make all the streets conform to a general plan, changing the grade previously adopted by the old city of Philadelphia, or by one of the municipalities incorporated therewith.</p> <p>3. The Ridge Turnpike Company was incorporated by Act of Assembly of March 30th 1811, Pamph. L. 167, with power to construct a turnpike through and beyond a portion of the former district of Penn (now a part of the city of Philadelphia), in accordance with certain grades therein specified. The turnpike was laid out accordingly, and prior to 1854 the grade thereof was neither changed nor regulated by the authorities of the district of Penn. In 1871 city councils ordered a change of grade, which was physically effected in 1873. In 1878 certain property owners filed a petition for a jury of view, to assess the damages which, they had suffered by said change of grade. Held, that the petitioners, having failed to comply with the provisions of the general road law of June 13th 1836, section 7, Pamph. L. 556, requiring petitions in such cases to be filed within one year, were not entitled to a jury of view. Held, further, that the provisions of the Consolidation Act of February 2d 1854, section 27, Pamph. L. 37, under which said petition was filed, had no application to the facts of the case.</p>

<p>1. Upon a certiorari to a road case, in the Court of Quarter Sessions, the opinion of that court sustaining or dismissing the exceptions filed to the report of the viewers constitutes no part of the record. Where, therefore, said opinion alone indicates the disposition made by the court of said exceptions, the Supreme Court will quash the certiorari, upon the ground that the reeord fails to disclose a judgment.</p> <p>2. By virtue of the provisions of the Act of May 3d 1869, Pamph. L. 1247, it is the duty of the Court of Quarter Sessions of Philadelphia county, in passing upon exceptions to the report of viewers in road cases, to specify which exceptions are sustained and which dismissed. If said court fail to do this, the Supreme Court will quash a writ of certiorari to the proceedings.</p> <p>3. Upon certiorari to a road case, the Supreme Court will only consider and review the jurisdiction of the court below and the regularity of the proceedings. The merits of the case will not be inquired into.</p> <p>4. The Supreme Court cannot, in such case, reverse the findings of the court below upon the facts, nor will it reverse the rulings upon the law where they are the logical deductions from the facts as found.</p>

40. Appeal of Francis F. Milne, from a decree in the matter of the distribution of the estate of Archimedes J. Bucknor, Sr. The facts were as follows :— On March 19th 1878, Francis F. Milne, being the holder of two judgments against A. J. Bucknor, Jr., a son of A. J. Buck-nor, Sr., deceased, amounting to $11,556.76, issued writs of attachment execution thereon, in the court of Common Pleas No. 2, summoning as garnishee William A. James, administrator of the estate of the…

1, of Philadelphia county: Of July Term 1881, No 93. Case, by John Hoosey, against the Camden and Atlantic Railroad Company, to recover damages for personal injuries suffered by the plaintiff, caused, as alleged, by the negligence of the defendant company. On the trial, before Pierce, J., the facts appeared as follows : — On August 26th 1878, the plaintiff, a tavern-keeper, joined in an excursion to Atlantic City gotten up by the St. Ann’s Temporáneo Society.

<p>1. A debt -which has been due and unclaimed and without recognition for twenty years, is, in the absence o£ explanatory evidence, to be presumed to have been paid. The burden of proof is on the creditor to show that payment of such debt has not been made.</p> <p>3. Evidence that during this period the debtor had said to a stranger that he would not pay the debt, because the creditor was rich enough without it, is insufficient to overcome the presumption of payment.</p> <p>3. A. died bequeathing a legacy to B., and appointing C. his executor, to whom letters testamentary were granted. About twenty-one years afterwards, O. died, having never filed his account as executor of A. Subsequently, B. filed a petition, alleging that her legacy had never been paid, and praying that O.’s executors be decreed to file C.’s account as A. ’s executor. The decree prayed for was entered, and the account filed, the executors claiming credit therein for the amount of B.’s legacy. B. testified that she had never received the legacy, and gave evidence showing that C. had in his lifetime told a third party that he would not pay B. her legacy, as she was rich enough without it. The Orphans’ Court thereupon surcharged the accountants with the amount of said legacy. Held, that this was error; that from the lapse of time a presumption of payment had arisen, that this presumption was not overcome by the evidence and the particular circumstances of the case, and that, therefore, B.’s claim should be disallowed.</p>

<p>Error to the Court of Common Pleas No. 2, of Philadelphia county: Of July Term 1881, No. 117.</p> <p>Case, by Patrick J. Carr and Mary Ann, his wife, in her right, against the Philadelphia and Reading Railroad Company, to recover damages for injuries suffered by the said Mary Ann Carr, caused, as alleged, by the negligence of the defendant’s servants.</p> <p>On the trial, before Hare, P. J., the following facts appeai*ed : — On the evening of June 2d 1878, between half-past nine and ten o’clock, the plaintiff, Mary Ann Can’, accompanied by her' uncle, Thomas C. Meehan, was walking westwardly on Diamond street, in the outskirts of the city of Philadelphia, approaching the point where it is crossed by the tracks of the Germantown branch of the defendant’s railroad. Diamond street is crossed diagonally by four parallel sets of ¡tracks, the two centre ones being the main tracks and the outside ones being sidings. These tracks extend northwardly from Diamond street in a slight curve, but practically in a straight line for several squares or nearty two thousand feet. Beyond that is a considerable curve in the road.</p> <p>When the plaintiff arrived at the railroad crossing, she stopped, looked and listened, and heard and saw a train approaching from the city, running northward. She stopped and allowed this train to pass. As the last car passed the crossing, she again looked and listened, and, neither seeing nor hearing another train, started to cross the tracks.</p> <p>At the moment she started, the rear end of the train which had just passed was about a car length distant. While in the act of crossing the westwardly main track, she caught her foot or slipped and fell, and within ten or fifteen seconds, her foot was run over and cut off by a train running southwardly from Germantown towards the city, at a very rapid rate. The evidence showed that had it not been for the up train, she would have seen the headlight of the engine of the train approaching in the opposite direction. This engine passed the rear end of the up train at a point about one hundred yards from the crossing. The engineer of the down train testified that his engine was about thirty feet from the plaintiff when she fell. The plaintiff’s uncle, who was with her at the time of the accident, was not called as a witness.</p> <p>The defendant’s counsel presented, inter alia, the following points:—</p> <p>“ 3. That a traveler intending to cross a railroad is bound to presume that a train is approaching, or if the railroad be a double track railroad, that a train is approaching in each direction, and it' is his or her duty to stop and look both up and down the track and listen for approaching trains; an omission to do so is negligence, and is an absolute bar to any recovery by such a person in case of a collision. Answer. Instead of saying that a traveler is bound to presume that a train is approaching in either direction, I would say that as a train may be approaching in either direction, he should act as if that possibility or probability were a reality. I affirm the point as thus qualified.</p> <p>“ 4. The fact that a traveler stops and waits until a passing train gets by does not absolve him or her from looking and listening for trains approaching upon the other track in an opposite direction, and a traveler waiting for a train passing in one direction must wait sufficiently long so that that train shall not prevent him or her seeing a train approaching in an opposite direction. If, therefore, the jury believe that Mrs. Can*, after stopping east of the railroad at Diamond street while the out train was passing, started across at a time when that train prevented her seeing the incoming train, she was guilty of negligence, and cannot recover. Answer. I have already told you that it was Mrs. Carr’s duty on approaching the track with a view of crossing it, to look and listen, to look in both directions, and listen for the approach of trains on either side, and I also said, or it was a necessary inference from it, that if she was delayed, as she was delayed in this case, by any cause — the approach of the up train in the case in hand — it would be her duty again to look in both directions and listen before setting out. I am asked to say to you, however, that if under those circumstances a train which passed up the road shut out any portion of the road from view, it would be her duty to wait until that obstacle to vision was removed, and that if she did not do so, it would necessarily be negligence, and preclude her recovery. What I say is, that it would have been a wise and proper precaution as the event shows. Whether the omission of that precaution be negligence would depend upon circumstances, and I am not willing to take upon myself the responsibility of saying that under the circumstances in this case she would necessarily be guilty of negligence in not waiting until the view of the other track was entirely clear. That is for the jury to consider. If the jury find that she was negligent, then the consequence ■would follow which has been already stated.”</p> <p>The charge of the court was not contained in the bill of exceptions, and was not printed.</p> <p>Verdict and judgment for the plaintiffs for $8,000. The defendant company took this writ of error, the only assignment of error beiug the answer of the court to its fourth point.</p> <p>The duty of one about to cross a railroad, to stop, look and listen, is admitted. In the ease of a double-track railroad, it is a necessary inference from the rule that if a foot traveler stops for a train to pass in one direction, he must not only looki again in both directions, but he must wait until the train just passed has proceeded a sufficient distance not to block his vision of the other track; otherwise, looking is of no use. It has been decided that a permanent obstacle, obstructing a view of the track will not .relieve one about to cross from the duty of looking at a place where he can see up or down the track : Central R. R. Co. of New Jersey v. Feller, 3 Norris 226; R. R. Co. v. Beale, 23 P. F. Smith 50é.</p> <p>There is no difference in principle between a permanent obstacle to the view and a moving one, so long as the latter continues to be an obstacle. In the one case, the obstacle is one of place, in the other, it is one of tíme; and as in the one, the passenger must look at a place where there is no obstruction, so in the other, he must wait until the moving and temporary obstruction be removed: Werner v. R. R. Co., 8 Norris 59; Penna. R. R. Co. v. Fortney, 9 Norris 323.</p> <p>The plaintiff below performed her whole duty. The court cannot say, as a matter of law, that after waiting for one train to pass, and after then looking in both directions, she was bound to wait an indefinite time, because there might be a train coming in the opposite direction at an uncertain distance : Phila. and Trenton R. R. Co. v. Hagan, 11 Wright 216. At so dangerous a crossing, within the city limits, the railroad company should provide efficient safeguards, and not rely on the court to cast all the responsibility upon travelers on the public streets: Phila. & Reading R. R. Co. v. Killips, 8 W. N. C. 526.</p>

<p>Arpead from the Court of Common Pleas No. 2, of Philadelphia county: In Equity: Of January Term 1882, No. 53.</p> <p>Appeal of the Mount Holly Paper Company from a decree of said court, sustaining the exceptions of the West Philadelphia Passenger Bailway Company, to the report of the Master in the matter of a cross bill filed by tlie said railway company, in a cause wherein Sarah Swain, and William M. Baugh, were complainants, and the said West Philadelphia Passenger Railway Company, its officers and directors, and others, were defendants.</p> <p>The original bill in equity set forth, inter alia, that by a fraudulent combination between the president, treasurer, and secretary of said company, a large number of certificates of stock had been issued, which, though duly attested by the officers of the corporation and sealed with its seal, were fraudulent ; that the company had received no consideration therefor, and that the same constituted an unauthorized over-issue. The bill prayed that such certificates be decreed null and void and be surrendered up to the company for cancellation.</p> <p>The railway company filed an answer and subsequently a cross bill against the said complainants and numerous other parties who had appeared by counsel, including the Mount Holly Paper Company, submitting themselves to the order of the court in the premises. Certain of tlie defendants in the cross bill also filed cross bills in their own behalf.</p> <p>The cause was referred an Examiner and Master, David W. Sellers, Esq., before whom it was agreed by counsel that relief might be granted to each of the defendants in the cross bill, as though each had filed a separate cross bill in their behalf, suitable to all the proofs in the cause.</p> <p>The Master found the facts, as far as they relate to the case of the Mount Holly Paper Company, to be substantially as follows: — ■</p> <p>The West Philadelphia Passenger Railway Company was incorporated by a special Act of the Legislature of Pennsylvania, approved May 14th 1857 (P. L. 1858, 585). In October 1873, the firm of J. R. Nagle & Co., was indebted to the Mount Holly Paper Company in the sum of about $39,000. In answer to their demand for security, .John S. Morton, president of the West Philadelphia Passenger Railway Company, at the request of Nagle & Co., called upon the treasurer of the Mount Holly Paper Company, and made the following proposition, which was accepted, viz.: “ That if the Mount Holly Paper Company would advance the firm of J". R. Nagle & Co. the additional sum of $5,000 in cash, and divide the whole amount of indebtedness into notes of a convenient size for said J. R. Nagle & Co. to meet, and if not convenient to pay as they matured, to renew such or such parts thereof as they might not be able to pay from time to time; and would continue to said J. R. Nagle & Co. a line of credit, by continuing to sell them goods; he the said John S. Morton would indorse their notes, and to secure their payment, would give the Mount Holly Paper Company stock of tlie West Philadelphia Passenger Railway Oo. as collateral.” On the receipt of 550 shares of 'said stock, in certificate 1727 for 400 shares, and 1750 for 150 shares, standing in the name of John S. Morton, a paper was given by Charles S. Mullen to John S. Morton, stating that the stock was to be held “upon the express understanding and agreement as collateral security for the payment of certain promissory notes then discounted, or thereafter to be, of John R. Nagle & Co.” The notes were specified, amounting to $44,837.38. The agreement further provided, that if there should be default, “ before making any disposition of said stock, written notice should be served upon said Morton,” and that “upon payment of these notes, or those given in renewal, with the written consent of the said Morton,” the stock should be returned. By this paper it was further agreed that unless there was default, “ said stock shall not be transferred on the books of the company.” The sum of $5,000 was advanced as agreed, and the indebtedness divided “ into notes of a convenient size.” The notes now held in execution of this agreement amount to $22,000. The Master found that the agreement was in consideration of a forbearance to sue John R. Nagle & Co. and of a further cash advance to them, and that said agreement was executed.</p> <p>The said certificates of stock were delivered to the Mount II oily’Paper Company on October 15th 1873, and were never transferred from the name of the said John S. Morton, nor was any demand for such transfer made.</p> <p>Several years subsequently to that date, and before the filing of the bill, John S. Morton became indebted to the West Philadelphia Passenger Railway Company to the amount of $93,957.36, which remained due and unpaid at the time of the decree in this case.</p> <p>The Passenger Railway Company contended before the Master’, that, under the seventh section of the General Railroad Act of February 19th 1849 (P. L. 82), which provides “that no certificate shall be transferred so long as the holder thereof is indebted to said company unless the Board of Directors shall consent thereto,” the Mount Holly Paper Company was not entitled to demand a transfer of the said stock from the name of John S. Morton, or to recover the amount of said notes for which said stock was pledged, until Morton’s indebtedness to the company should be paid. On this point, the Master reported as follows: — “ The Master is of opinion that the Act of 1849 in this particular has no application to the present corporation. All of the subject matters of the Act of 1849, relative to the organization, the subscription for stock, the election of directors, and the execution of the corporate franchise, are supplied in the text of the charter. Unless in the charter a reference is made to the general railroad law, it is not to be incorporated. In the legislation of the State the franchises and charter of a horse railway company are not supposed to be included in the general railroad law. (City v. Passenger Railway, 8 Philada. 648.) The charter of the Philadelphia and Darby Railroad Company, upon which a similar question arose in Willis v. Darby Railway (6 Weekly Notes 461), contaihed an express provision that it should be ‘ subject to all the conditions and restrictions conferred and imposed by an Act to regulate railroad companies ’ (P. L. of 1858, Appendix 556).</p> <p>“ Even though it should be applicable, the Master holds that its scope is to be wholly confined to the transfer of valid stock, and that when the redress is to a grievance arising from an over-issue, as here, it is without force. No lien for indebtedness could exist on valid stock unless stipulatedi in the charter. Such liens are not recognized at common law: Dock Co. v. Heron, 2 P. E. Smith 280.”</p> <p>The West Philadelphia Railway Company and others filed exceptions to the Master’s findings, (1) in holding that the general railroad law of 1849, did not apply to the West Philadelphia Passenger Railway Company, and that the Mount Holly Paper Company were therefore entitled to demand a transfer of said shares without the prior payment of Morton’s indebtedness to the company, and (2) in holding that if said Act of 1849 were applicable to said corporation, the proviso prohibiting transfers of stock from a debtor of the company until payment of the debt, would apply only to valid stock.</p> <p>The court, after argument, sustained the said exceptions, holding that the railway company had a right of lien by virtue of the General Railroad Law of 1849 for the indebtedness of its stockholders upon the stock standing in their name, and entered a decree : “That upon the payment to the said Passenger Railway Company of the aforesaid indebtedness of said John S. Morton, to wit, the sum of $93,957.36 with interest from the 22nd day of September 1877, the said -Mount Holly Paper Company shall be entitled to receive from the; said Passenger Railway Company the sum of $22,000 with interest from the dates of maturity of the notes aggregating said amount, and shall thereupon forthwith deliver to the said Passenger Railway Company, to be cancelled, said certificates......”</p> <p>The Mount Holly Paper Company thereupon took this-appeal, assigning for error the above finding and decree of the court. 1</p> <p>The court found in our favor, as to our right to recover the amount of the notes for which the stock was pledged, but subject to the company’s right of lien, under the general railroad law of 1849, to have Morton’s indebtedness first paid. In other words, they decided that on payment of §94,000, we could receive §20,000! The error was in holding that the general railroad law applied to this company, which was chartered, not under the general law, but by a special Act not containing the proviso of the general law that a stockholder’s debts to the company must be paid before stock in liis name could be transferred.</p> <p>Such a lien is unknown at common law, and can only exist by statutory enactment expressed in the Act of incorporation or in by-laws made by authority of the Act: Steamship Dock Go. v. Heron, 2 P. F. Smith 280; Mass. Iron Co. v. Hooper, 7 Cush. 188; Sargent v. Franklin Ins. Co,, 8 Pick. 90; Angel! & Ames on Corp."355. It has been held that the general railroad law is not applicable to a city horse railway company, unless reference is made thereto in its charter : The City v. Passenger Railway Co., 8 Phila. 648. This is a necessary conclusion from a comparison of the two Acts, which relate to essentially different classes of companies. The general Act relates to steam railways only running through the country, operated by locomotives, for the transportation of freight as well as passengers. All its provisions are based upon this assumption, and are inapplicable to a city passenger railway operated by horses. The latter is simply an omnibus company using tramways laid upon the public streets. That the legislature did not intend that the general railroad law of 1849 should apply to street passenger railways, is clear from the fact that such passenger railways were not known or in existence until long subsequently.</p> <p>Rut if the general railroad law does apply, the provision as to lien can only apply to indebtedness arising from unpaid stock subscriptions, and not to indebtedness arising from other causes long after the stock was pledged : See section 7 of Act of 1849. Secret liens are against the policy of the law, and can only be sustained by express enactment, as in the Bank Acts.</p> <p>In any case, the lien can only exist as to valid stock, and not to an unauthorized over-issue. The position of the appellants is as though they were suing at law in an action of deceit for damages for a false representation, viz.: in issuing a false certificate of stock, i. e., not a certificate of (good) stock, i. e., in law willing; and it is absurd to say that the company can have a lien upon that nothing. The company admit a liability to the holders of over-issued stock, founded on the misconduct of their officers in issuing it. For them to contend at the same time that such misconduct gives rise to a right in them to withhold compensation to third persons who have suffered from the fraud, is self-contradictory. They cannot thus reap a benefit growing out of the fraud of their own officers.</p> <p>Jhe ground on which a bona fide holder of a certificate of stock accompanied by a power of attorney to transfer, in blank, can recover against the company, is the broad one that by the uniform business of the money centres of the world, it is the intention and practice alike of the corporation, the receiver and the public, that the certificate and power is the title as against the corporation, as well as for delivery according to the rules of the Stock Exchange and for all other purposes. Otherwise business could not be transacted as it now is. It often requires two or three days to complete a transfer, while the transactions are frequently for a single day or part of a day; moreover, the books of all corporations are closed annually against transfers for considerable periods óf time. It involves no hardship to corporations — they can protect themselves, oven against dishonest officers, by having a stock registry, which can be examined at any time, and which renders an over-issue impossible.</p> <p>The most the appellants believed when they took the stock was, that it was good stock — but if so the company could have set oil Morton’s indebtedness. Yet they now claim, they are in a better position, as holders of bogus stock, than if it had been good stock. It is argued that the bogus stock is in law nothing, and that a lien cannot exist on nothing. But if it is not stock, no claim can be founded on it, and if it is, the statutory restriction as to transfer, which is not a mere lien, applies.</p> <p>That the charter of this company was subject to the general railroad law of 1849, so far as its provisions were not expressly supplied, is clear. The Act of 1849 expressly provides that it shall be applicable to all railroad corporations, subsequently incorporated by special Act. The lack of specific provisions in the charter of this company as to the issue, and transfer of stock, throws the company back to the provisions of the general law, in this respect. No distinction can be drawn between the terms raÜROAD and railwAv; a general statute applicable to one is applicable to the other: Hestonville Railway Go. v. Philadelphia, 36 Leg. Int. 452.</p> <p>The issuing of certificates, as evidences of the title to stock, being a statutory duty of the corporation, the company only insures the title to the particular holder, to whom it issues the certificate, unless transferred on the books to an assignee, and then a new certificate issues to him. There is no general representation for the benefit of purchasers of the certificate, with a blank power of attorney to transfer; the principle of estoppel does not exist as to strangers ; the certificate recites on its face, that it is not until after actual transfer, that assignees can claim: Central R. R. Go. v. Ward, 37 Georgia 531. The case is an analogous to the liability of the recorder of deeds, for the issue of a false certificate of search — he is only liable to the party to whom it was issued : Peabody Building Association v. Houseman, 11 W. N. C. 193. The transferee of certificates should inquire of the corporation, as the assignee of a bond must inquire of the obligor. The principle of estoppel is not applicable. The company made no untrue representation to these appellants; the latter agreed to take Morton’s indorsement of Nagle & Co.’s notes, and his stock as collateral, expressly agreeing not to demand a transfer unless default was made in the notes. They prove no damage resulting therefrom ; on the contrary, Nagie’s indebtedness on the notes was at that time $44,000, while now it is only $22,000, and so long as a loss is not established, no estoppel can arise.</p>

<p>Appeal from the Court of Common Pleas Is o. 3, of Philadelphia county: Of July Term 1881, No. 76.</p> <p>Bill iu equity, by Cunningham S. Patterson, against the Novelty Paper Box Company, praying for an account, and that the defendant be decreed to pray the complainant certain royalties for the use of a patented invention.</p> <p>The bill set forth: that by an agreement under seal, dated November 30th 1877, the plaintiff granted to the company defendant “sole and exclusively of all others the license and right to make, use and sell in the United States all the devices granted to Charles T. Palmer for the manufacture of paper or pasteboard boxes, in patent No. 132,368, dated October 22nd 1872, and to make and sell such boxes, of which patent said C.</p> <p>S. Patterson is now the sole owuer.” The said agreement provided further as follows -“ The party of the first part hereby also grants full and irrevocable power and authority to the party of the second part under them and in their name to license any other parties to use the said devices, and to make and sell such boxes when not fastening the same with wire-staples ; to charge and collect from such persons such royalties as may be agreed upon, for the use and benefit of the party of the second part. The party of the first part further grants to the party of the second part authority in his name to prosecute any and all parties infringing the said Palmer patent, and to recover from any such all damages or penalties as may by courts of justice or otherwise be awarded, to the sole use and benefit of the said party of the second part; the said party of the second part bearing all costs of any such litigation. In further consideration of this license and powers granted, the said party of the second part will, on the proper execution of this agreement, hand over to the party of the first part one hundred shares of The Novelty Paper Box Company’s stock; and the said party of the second part further agrees to, and will pay to the said party of the first part, commencing with the month of July, 1877, a royalty of fifty cents for each one thousand paper boxes sold and delivered by them during each month, payable at the expiration of one month thereafter, until expiration of said Palmer’s patent: Provided, however, That should in course of litigation, an injunction by the United States courts be refused against any party or parties infringing the said Palmer patent, thereby declaring the same untenable or invalid, then from such period all royalties accuring and payable to the said party of the first part shall cease. This agreement to terminate in the event of the party of the second part failing to comply with the above conditions; and in that case the said license and powers conferred hereby to revert again to the party of the first part.”</p> <p>The bill averred that the defendant complied with the agreement and paid the royalties up to December 1st 1878, since which time they had ceased to pay royalty, although continuing to manufacture under the patent. The bill prayed a decree as above stated.</p> <p>The defendants filed an answer and a cross-bill, in which they averred that the alleged patent was invalid for want of novelty, that other parties were making similar boxes, and both the complainant and the defendants wrere powerless to prevent them ; that the defendants were induced by misrepresentations of complainant as to the validity of the patent to execute the agreement, which they did “ under a mistake; ” and that the consideration having failed they were released from further compliance therewith, and had terminated the same on December 1st 1878, by ceasing to pay royalties. The defendants prayed that the said agreement be cancelled, and that complainant be decreed to repay to defendants, the moneys and stock they had paid under the terms thereof.</p> <p>The Master to whom the cause was referred, reported that the defendants had entered into said agreement in order to relieve themselves of the consequences of an alleged infringement of said patent, and also to control the trade by restraining others from manufacturing a similar article; that the defendants had, as shown by the evidence and letters produced, as well as by the agreement, taken the chances of the validity of the patent; that the defendants had commenced a suit in the Circuit Court of the United States for the district of New Jersey to enforce their rights under said patent, but had subsequently abandoned the same, being advised by counsel that they could not obtain a decree in their favor: and that no decree had been made in the cause. The Master held that as the. agreement provided that royalties should cease only in the event of a decree of the United States court adverse to the patent, the opinion of counsel could not be substituted therefor, and sucli opinion afforded no defence: he therefore reported in favor of the plaintiff, and, upon the statement of an account, recommended a decree that the defendants pay the plaintiff the sum of $4,107.79, being the amount of royalties due, with interest and costs.</p> <p>The defendants filed exceptions to the Master’s report, and after argument the court entered this decree : “ And now, May 31st 1881, it is ordered and adjudged that the finding of the Master be reversed, and it is decreed that complainant’s bill in this cause be dismissed with costs; and it is also decreed that the cross bill be dismissed without costs.”</p> <p>From this decree the complainant took this appeal.</p>

<p>Appeal from a decree of the Orphans’ Court of Philaddphia county : Of January Term 1882, No. 214.</p> <p>This was an appeal by John W. Biddle, Joseph G. Heuszey, Daniel W. Slack and Alexander D. Stockton, executors of the last will and testament of Alexander J. Derbyshire, deceased, from a decree of the said court, making distribution of the property appearing from an account held by ap]3ellants to be in their hands.</p> <p>The facts of the case were as follows: — Alexander J. Derby-shire died in March 1879, leaving a will wherein appellants were nominated as executors. By the said will, the testator, after bequeathing certain legacies, provided, inter alia, as follows:</p> <p>I give, devise, and bequeath to my executors, and the survivors and survivor of them, and the heirs, executors, administrators, and assigns of such survivor, all the rest, residue, and remainder of my estate, real and personal, of which I may be seised and possessed, and to which I may be in any wise entitled at my decease, and which I have not hereinbefore otherwise given, bequeathed, and disposed of, with the appurtenances, to have and to hold the same unto my said executors, and the survivors and survivor of them, and the heirs, executors, administrators, and assigns of such survivor, in trust nevertheless to and for the uses and purposes hereafter mentioned, that is to sayin trust to let and demise the real estate, and to collect the rents, and income together with full power of sale. In trust to permit and suffer Algemine D. Smith to occupy a certain building during her natural life, the executors to pay the insurance and taxes thereon; in trust to invest the proceeds of real and personal estate in safe and reliable securities; in trust to pay an annuity of $3,000 to said Algemine D. Smith; one of t$800 to Caroline Derbyshire and one of $600 to Eliza Ann Henszey ; in trust also to pay to Alexander J. Derbyshire, Jr., the sum of $1,000 “ when he shall arive at and if he shall live to the full age of twenty-one years” and upon further trust “ and my said executors are hereby directed, after the decease of the said Algemine D. Smith, Caroline Derbyshire, and Eliza Ann Henszey, and of the said Alexander J. Derbyshire, Jr., before his arrival at the age of twenty-one years, to convey, assign, transfer, set over, and pay, unto the Contributors to the Pennsylvania Hospital, their successors and assigns, for the charitable uses of said institution, all the rest, residue, and remainder of my estate, real and personal, and of the income, rents, issues, profits, and accumulations thereof, which may remain in the hands of my said executors, unsold or undisposed of as aforesaid, after the decease of the said Algemine D. Smith, Caroline Derby-shire, Eliza Ann Henzey, and Alexander J. Derbyshire, Jr., as aforesaid, and after paying and discharging all my debts and funeral expenses, and all the annuities, legacies, bequests, and sums of money hereinbefore and hereinafter devised and bequeathed, or directed to be paid, and after paying for and discharging all the charges, taxes, repairs, and insurance upon all my estate and property, real and personal, and all the charges and expenses incident to the sale, management, and settlement of my estate and property as aforesaid, and as hereinafter mentioned.”</p> <p>The testator added a provision to this effect: “The said several legacies, annuities, bequests, and sums of money herein-before directed to be paid shall be paid out of the rents, income, issues, and profits of my estate, so far as the same will suffice, before any part of the capital or principal thereof shall be used for the purpose.”</p> <p>At the time of the testator’s death all the beneficiaries named in the will were alive, the said Alexander J. Derbyshire not having attained his majority.</p> <p>U pon the filing of the account of the executors, it appeared that they had in their hands a principal of $326,147.49, producing an annual income of $18,000, to meet annuities which amounted to $4,400 per annum only. It was contended on behalf of the Contributors to the Pennsylvania Hospital that the primary object of the testator was to secure the payment of the interest of $4,400, per annum, to the objects of his bounty; that, subject to the payment of said life interest to the annuitants, the whole estate was vested in them in remainder; and that after a sufficient fund was set aside for that purpose, they were entitled to the present enjoyment of the balance of the estate, both principal and income. They suggested that $125,000 was fully sufficient for that purpose, and asked that the balance of personal estate, amounting to $95,547.49, should be at once transferred to the hospital, “ for the charitable uses of the institution,” and that the net income of the real estate, after the payment of taxes, repair’s, etc., and the expenses of keeping up the property on Fourth street, for Algemine D. Smith, should hereafter annually be paid to them, for the same purpose.</p> <p>J. Sergeant Price, Esq., the auditor to whom the account had been referred, was of opinion that such distribution should not be made. Exceptions were thereupon filed to his report by the Contributors to the Pennsylvania Hospital, which were sustained by the court in the following opinion by Ashman, J.:</p> <p>“It is unnecessary to consider some of the topics which seem to have boon discussed before tbe auditor. The Act of 18th of April 1853, forbidding accumulations, exempts bequests to charities from its operation, and has, therefore, no application to the will of this decedent. So it may be conceded that the testator was acquainted with the terras of the bequests made by other donors to the several charitable institutions with which he was identified. But it would be hazardous to base au interpretation of his own testamentary intent upon the judgment he may be supposed to have formed respecting similar gifts by others, unless that judgment had been most clearly and unmistakably indicated. In the single instance in which, according to the auditor’s report, the testator seems to have expressed an opinion, his criticism was adverse to a trust for accumulation.</p> <p>“ By clause I. of his will, the testator provided as follows: ‘ My said executors are hereby directed, after the decease of the said Algemine D. Smith, Caroline Derbyshire, Eliza Ann Henszey, and of the said Alexander J. Derbyshire, Jr., before his arrival at the age of twenty-one years, to convey, assign, transfer, set over, and pay unto the contributors to the Pennsylvania Hospital, their successors and assigns, for the charitable uses of said institution, all the rest, residue, and remainder of my estate, real and personal, and of the income, rents, issues, profits, .and accumulations thereof, which may remain in the hands of my said executors, unsold or undisposed of.’ In the same instrument he had previously given an annuity to Algemine D. Smith of $4,000, for two years after his death, and thereafter of $3,000 during her life; to Caroline Derbyshire an annuity of $800 for life; to Eliza Ann Henszey an annuity of $600 for life; and to his nephew, Alexander J. Derbyshire, Jr., a legacy of $1,000, to be paid to him provided he should attain twenty-one years of age. His estate was valued at $326,147.49, yielding an income of $18,000 per annum. The auditor held that the payment of the legacy to the hospital must await the de^th of the several annuitants, and that in the mean time the surplus income must accumulate for the benefit of the charity.</p> <p>“ The will was written by the testator himself, and, in some respects, inartificially. A literal construction of the language in the clause which created the trust would annul the bequest to the charity in the event of the survival of the nephew after twenty-one. It is manifest from the whole will that the testator could never have contemplated such a result; but that he meant that the legacy to the nephew should go to the hospital in case of the nephew’s death in his minority.</p> <p>“Two very practical questions are presented: Was any special purpose to be subserved by an accumulation of the whole fund, and were there facts within the knowledge of the testator showing that the charity would- be best promoted by a present distribution % The only clue which the will affords to the first proposition is its silence as to any such purpose. There is no hint in the whole instrument of any proposed enlargement of the scope of the chai’ity, or of any change in its methods, which would render necessary a separate and large endowment. The legacy is given ‘for the charitable uses of said institution.’ Wliat those uses were no one knew bettor than the testator himself. It is found as a fact by the auditor that the testator had devoted to the hospital more than twenty-two years of the most valuable portion of his life, and that he was thoroughly acquainted with the details of its management and the means by which it was supported. He must therefore have been cognizant of the fact, which is also expressly found by the auditor, that the demands upon the charity were pressing, and that its necessities were such that the present enjoyment of so largo a legacy would be extremely helpful.</p> <p>“ We are not obliged, however, to go outside of the will to discover with reasonable certainty the intention of the testator. Trusts for accumulation are nob specially favored by law, and their evils, even when the ultimate object of the trust is a charity, were summarized by Hibson, C. L, in Hillyard v. Miller, 10 Barr 320. It is impossible to gather from the will a reason why the testator should seek to divert a fund from those to whom it must eventually come, merely to secure a purposeless accumulation. The instrument contains no direction to accumulate, beyond what may be inferred from the use of the word accumulations in the clause which has been quoted. But that word will apply, without any forced rendering of the sentence, to the surplus income of the fund which might be set apart for the annuities. If it had been designed that the fund, after payment of the annuities, should remain intact for the purposes of accumulation until the death of the survivor of the annuitants, it is reasonable to suppose that words of survivorship would have been employed ; and the absence of such words, and of all directions to accumulate, is sufficient evidence of an intent to effect an earlier distribution.</p> <p>“ The whole scope of the will leads up to tho charity as the ultimate object of the testator’s bounty and the recipient of the entire residuary estate. We have seen that this bequest could not have been meant to depend uponJhe death of the testator’s nephew before twenty-one, although that would be the literal result of the language used. For the reasons already given, there, is as little room for the belief that the testator meant to postpone the benefit to the charity to a more or less remote and indefinite period ; while there is every ground to assume that he intended tho gift to vest in possession along with the other bequests. We should hesitate long before venturing to remodel the language of a will. But if, by transposing a single member of the sentence which conveys the gift, without adding or removing a word, we may overcome a latent ambiguity, we certainly liave the power to make the alteration. Such an innovation would be no greater than that wrought by Lord Eldon, in Sidney v. Shelley, 19 Yes. 352, where the words, ‘ subject to the trusts thereof,5 were considered as inserted. By the change which is suggested, the clause will read : ‘ My said executors are hereby directed to convey, assign, transfer, set over, and pay unto the Contributors to the Pennsylvania Hospital, their successors and assigns, for the charitable uses of said institution, all the rest, residue, and remainder of my estate, real and personal, and after the decease of the said Algemine D. Smith, Caroline Derbyshire, Ann Henzsey, and of the said Alexander J. Derbyshire, Jr., before his arrival at the age of twenty-one years, of the income, rents, issues, profits, and accumulations thereof which may remain in the hands of my said executors unsold or undisposed of.5 Under the clause as thus constructed, a sufficient fund can be set apart to meet the several annuities and the legacy of $1,000, and the balance of the estate can be paid immediately to the charity. Upon the death of ah annuitant, the question can be raised and determined whether the proportion of the fund appropriated for the payment of her annuity will be presently payable to the hospital, or will be held to await the death of the remaining annuitants.</p> <p>It may be observed, that the question of acceleration is not raised by this record, and we are relieved from discussing the cases upon that point, which, in England at least, are certainly conflicting. That question arises, according to Jarman, vol. i. p. *513, where, in a series of consecutive limitations, a particular estate is void in its creation from being limited to a person incapable by law, or who refuses to take, in which case the remainders immediately expectant on such estate are either accelerated, or the interest in question descends to the testator’s heir-at-law. There is no such void estate in this instance, and the only inquiry is as to the intention of the testator.</p> <p>“ It was agreed before the auditor that the sum of $125,000 would constitute an ample fund to sustain the annuities. We therefore award that sum to the executors, to meet the annuities and legacy of $1,000, and the balance to the Contributors of the Pennsylvania Hospital.55</p> <p>A decree was subsequently entered in accordance with the above opinion. The executors thereupon took this appeal, assigning for error the decree of the court.</p> <p>If the testator intended that the hospital should not take until after the death of the annuitants, the intent was legal and must be enforced. Postponements of enjoyment of vested remainders by charities are respected where similar directions, as against individuals, would not be City of Philadelphia V. Girard, 9 Wright 1 ; Harbin '0. Mastermau, L. R. 12 Eq. 559. And this, even though an accumulation was not distinctly directed and only results incidentally.</p> <p>The expicss terms of the testator’s will clearly postpone the period of the hospital’s enjoyment of his estate until after the death of the annuitants. Express words are not requisite for a valid direction to accumulate, if what is ordered necessarily brings about an accumulation: Tench v. Cheese, 6 De G. M. & G. 453; Mathews v. Keble, L. K. 3 Clx. App. 695.</p> <p>In the present case, the directions of the testator result inevitably in an accumulation, and also amount to an express direction to accumulate.</p> <p>The decree of the court clearly violates the intention of the testator, and is not authorized by law.</p> <p>The testator clearly did not intend to postpone the enjoyment of his bounty by the hospital until after the death of the annuitants. His aim was simply to indicate that his estate was subject to the annuities in question, and that the amount not required to fully secure the annuities, was to be paid to the hospital directly.</p> <p>The phrase “ after paying and discharging all my debts and funeral expenses .... and after paying for and discharging all the charges, taxes, repairs and insurance upon all my estate and property real and personal, . . . . ” clearly means only that the balance of his estate, unnecessary for said purposes, shall be paid directly to the hospital. Such is also the proper construction of the word “after” in the other clauses of testator’s will: Lamb v. Lamb, II Pick. 371; Doe ». Dacre, 1 .Bos. & P. 250; Luxford v. Cheeke, 3 Lev. 125; Browne v. Hammond, Johns. (Eng.) 210; Meeds v. Wood, 19 Beavan 15 ; Massey v. Hudson, 2 Merivale 130; Key v. Key, 4 De G. M. & G. 73; Franks v. Price, 3 Beavan 182.</p> <p>It is inconceivable that the testator should have intended his executors to accumulate without saying so in express terms, particularly as the ordinary motives for accumulation are wanting in the case of a charity.</p> <p>Apart, moreover, from the testator’s meaning, the Act of 23d February 1853, P. L. 98 (Purdon, 451, pi. 227), provides that the balance of an estate may be relieved from the lien of annuities by giving to the Orphans’ Court the power to set apart a sufficient portion of the personal property to secure them. The decree of the court was clearly proper under this act. ..</p>

<p>Error to the Court of Common Pleas of Daujphvn county: Of May Term 1882, No. 57.</p> <p>Upon tlie petition of Charles'S. Wolfe, a writ of alternative mandamus was issued in tlie name of the Commonwealth of Pennsylvania, directed to Samuel Butler, state treasurer, commanding him to pay to the petitioner the sum of $500, being tlie balance alleged to be due bim upon a warrant in liis favor for bis compensation as a member of tlie bouse of representatives for the session of 1881. Tlie respondent filed an answer, to which a replication was filed.</p> <p>There was no dispute as to the facts, which were as follows: — The relator was a member of the house of representatives, and served as such during the session of 1881, which lasted from January 4th to June 9th 1881, a period of one hundred and fifty-eight days. By the Act of May 11th 1874, Pamph. L. 129, it 'is provided: “ That the compensation of members of the General Assembly shall be one thousand dollars for each regular and each adjourned annual session, not exceeding one hundred days, and ten dollars per diem for time necessarily spent after the expiration of the one hundred days : provided however, that such time shall not exceed fifty days at any one session.”</p> <p>At the expiration of the session the relator received a “warrant in due form for the sum of $1,577.20, of which $77.20 was for “ stationery and mileage,” and $1,500 for “ compensation,” for the said legislative .session of one hundred and fifty-eight days.</p> <p>Upon presentation of this warrant the state treasurer paid the sum of $1,077.20, but, acting under the opinion in writing of the attorney-general, which he had formally requested, refused to pay the balance of $500, being ten dollars per diem for fifty days “ necessarily spent after the expiration of the one hundred days,” on the ground that the said Act authorizing the payment of the same was in contravention of art. II., § 8, of the constitution, which provides: — “ The members of the General Assembly shall receive such salary and mileage for regular and special sessions, as shall be fixed by law, and no other compensation whatever, whether for service upon committee or otherwise. No member of either house shall, during the term for which he shall have been elected, receive any increase of salary or mileage under any law passed during such term.”</p> <p>The relator thereupon filed his petition for a mandamus in the Court of Common Pleas of Dauphin county, jurisdiction having been expressly conferred upon that court to issue writs of mandamus to State officers, by Act of May 25th 1881, Pamph. L. 32.</p> <p>The court (Pearson, P. J., and Henderson, J.), after argument, filed an opinion, holding that the Act of 1874 is constitutional so far as it gives a fixed sum for the session, but that so much thereof as purports to give daily pay, in addition to a fixed sum, is unconstitutional and void. The court, therefore, refused to award a writ of peremptory mandamus, and entered judgment for the respondent.</p> <p>The relator thereupon took this writ of error, assigning the said judgment for error.</p> <p>The court will never declare an Act of Assembly void, unless it violates the Constitution clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation in the mind of the court: Menges v. Wertman, 1 Barr 223 ; Sharpless v. Mayor of Philadelphia, 9 Harris 164 ; Speer v. School Directors, 14 Wr. 157; Erie, &c. 31. E. Co. v. Casey, 2 Casey 287; Weister v. Hade, 2 P. F. S. 474; Commonwealth v. Hartman, 5 Harris 119 ; Commonwealth 'V. McCloskey, 2 Eawle 374; Pennsylvania E. E. Co. v. Eiblet, 16 p. F. S. 169; Lewis’s Appeal, 17 P. F. S. 165; Craig v. First Presbyterian Church, 7 Norris 46 ; Donohugh’s Appeal, 5 Norris 310.</p> <p>By the Constitution (art. II. §8) the legislature had sole jurisdiction over the subject, and the amount of compensation to members of its own body. The argument that the Act of 1874 is unconstitutional rests upon the alleged meaning of the single word “ salary ’’ — that it excludes a per diem compensation under all circumstances. Now the word is not a term of art; it has not a technical meaning in the law; it has no exact meaning signifying the same thing under all circumstances ; it is unlike such terms as “ fee simple,” “ dower,” “remainder,” “reversion,” etc., -which convey an exact idea. The lexicographers do not deline it precisely similarly. It is generally defined as synonymous with stipend, pay, wages, hire, allowance : See Webster, Worcester, Encyclopedia Br., Bouvier, Tomlin, etc. It lias been so considered in judicial decisions: Taylor v. Laird, 1 Hurls. & Nor. 266; Eundle v. Sheetz, 2 Miles 330 ; Eanck v. Albright, 12 Casey 371; Hutchinson v. Gormley, 12 Wr. 270. So also in Acts of Assembly: Acts of April 14th 1853, § 3, P. L. 359 ; May 5th 1864, § 3, P. L. 242 ; March 22d 1865, §§ 8, 6, 43, P. L. 9; April 11th 1866, §§ 3, 6, P. L. 68, 70; April 11th 1867, § 3, P. L. 2, 4; April 6th 1870, § 19, P. L. 21; May 27th 1871 § 17, P. L. 213 ; April 3d 1872, § 17, P. L. 7; April 9th 1873, § 31, P. L. 12; April 29th 1878, P. L. 33.</p> <p>To argue that a compensation ceases to be a salary when it is measured by the day, is to beg the question. There is no essential difference in a per diem pay for three hundred and sixty-five days, and an equivalent lump sum for the year. The Constitution contains no express prohibition of the per diem method of compensation; nor is there any such prohibition _by necessary implication. The canon that words in a constitution shall be' presumed to have their -popular signification may be invoked to maintain the constitutionality of an Act, but never to destroy it — ut magis valeat qnam pereat. The debates in the Constitutional Convention on the clause in question, relied on by the other side, -were meager, and they shed no light on the question of construction. The absence of an express prohibition is in our favor. But if this were otherwise, the people who subsequently established the Constitution may have viewed the construction differently. The question is one of intrinsic meaning, not of extrinsic light. The evil intended to be remedied was extra pay for service on committees, and “ salary grabbing,” by increase of salary during the term of office, which the Constitution reformed, and against which the Act of 1874 does not offend.</p> <p>Where it was intended in the Constitution to provide fixed salaries, that term is expressly used; but the words of the clause in question are “such salary” as shall be fixed by law. Eixed salaries are made applicable to officers whose duty is of fixed duration, as by the year. The sessions of the legislature, however, vary in duration with the exigencies of the public business. A proper salary for a session of one hundred days is insufficient for a session of one hundred and fifty days. A variable compensation is therefore as free from objection in ethics as in law. While the Constitution carefully distinguishes between salary and fees, and while it prohibits the legislature from increasing the salary of its members during their term, it does not prescribe a fixed salary, but vests in the. legislature a discretion to provide such salary, i. e., of what, like or kind, as it may fix by law. This includes the method of measuring the salary as well as its amount, and leaves the legislature free to provide any mode of compensation .that is not entirely destructive of every sense in which the word “ salary ” can be properly used. A per diem compensation is allowable, under the term “ such salary,” without doing violence either to correct definition or popular parlance.</p> <p>The defendants in error seek not merely to destroy part of the act, and retain the rest — which may sometimes be done— but to destroy one part of a single sentence and retain the rest of it, which is novel, and cannot be done. The whole act is virtually in that sentence, and if unconstitutional at all, it is unconstitutional altogether, and in such case the legislature were untrammelled and had the right to appropriate to themselves the pay they did. The Act has stood unquestioned since its passage in 1874, and contemporaneous construction is a cumulative argument in favor of its constitutionality.</p> <p>It is a mistake to say that the Act of 1,874 has remained unquestioned till now. At every session since its enactment it has received a practical protest from at least one senator (from Chester) who has refused to accept his extra per diem pay, because he believes it unconstitutional. The attorney-general in 1876, filed his opinion that the per diem provision was unconstitutional. The question did not become a practical one in the following year, because the legislature adjourned before tlie expiration of the one hundred days.</p> <p>The language of a constitution is not to receive a technical construction, but words, not obviously technical, are to be construed according to their popular or familiar signification and import, having regard to the spirit and intention of the provision : Cronise v. Cronise, 4 P. F. S. 255; Farmers & Mechanics’ Bank v. Smith, 3 S. & R. 69 ; Monongahela Navagation Co. v. Coons, 6 W. & S. .114; Smith’s Comm. p. 513. The inquiry is, What would the citizen of average intelligence understand by the word 1 Commonwealth v. Dumbauld & .Roberts, 9 W. N. C. 531. The commonly accepted meaning of “salary,” is a fixed sum for a stipulated period of service. The standard dictionaries so define it. “An annual or periodical payment for services; a stipulated periodical recompense:” Webster. “Stated hire; annual or periodical payment:” Johnson. The idea of daily pay or wages never occurs in connection with the word salary. If any number of men were asked what they understood by a salaried officer, the uniform answer would be, one who receives a stated sum for a stated service, as for a year, a month or a session; the amount of such salary would never be thought of as so much a day. The meaning of salary — salarium—has never changed since it was coined during the Roman empire, to signify a round sum paid to officers or others for “ salt-money,” which represented all their pay for provisions and service: Pliny. The legislative use of the word accords with the popular signification : Acts of April 13th 1791, 3 Sm. L. 26; April 8th 1793, Id. Ill; February 7th 1814, 6 Id. 106 ; April 17th 1843, § 7, P. L. 324; Salary Act of 1855, § 9, P. L. 495 ; April 21st 1858, § 4, P. L. 376, find numerous other Acts.</p> <p>There can be no doubt that the framers of the convention used this word in the same sense, and it is a rule of construction that the constitution is to be construed in accordance with the intent of its framers: Pike County v. Rowland, 9 W. N. C. 241. The convention of 1874 struck out the word “ compensation,” in the constitution of 1838 (art. I. § 18), which was broad enough to cover all kinds of pay, and inserted “ salary ” and “ mileage,” with the avowed object of confining the pay for both to a stated sum per session : Seo 1 Deb. 513; 7 Id. 313. At that time the members of the legislature were paid session salaries, as were also the members of the constitutional convention.</p> <p>It is argued that by “ such salary ” the constitution vests a discretion in the legislature to fix such kind of salary as they may choose, which would include per diem pay. Now the word “ such ” means “ so much,” and refers to amount. The kind of salary is fixed by the constitution. The context dispels any doubt on this point : “ shall receive such salary and mileage for regular and special sessions, as shall be fixed by law, and no other compensation whatever.” One salary, to be fixed for the session, excludes other salaries to be fixed by the day, if the term could be so used. Moreover “ such ” refers equally to mileage, which may vary in amount but not in hind. Session and not annual salaries were appropriately provided for in view of biennial sessions.</p> <p>The meaning of “salary,” as applied in legislative acts to government officers, has been judicially construed to mean “ an annual or periodical payment for services :” Cowdin v. Huff, 10 Ind. 83 ; Thompson v. Phillips, 12 Ohio St. 617.</p> <p>The Act of 1874 does not fix any salary whatever — the word salary is not used in it. Its title is “ An Act fixing the compensation of members of the General Assembly,” &c., and it enacts, “ That the compensation of members of the General Assembly,” &c. In other acts the compensation of State offices is denominated salary, and such acts are called salary acts, which this is not. If the constitution permits a per diem allowance at all, there is no limit to the power of the legislature to vote themselves any amount of per diem pay for any number of days, in lieu of or in addition to a session salary, thus aggravating the evil the Constitution aimed to suppress.</p>

<p>1. Whore a testator, when in undoubted health of body and mind, lias executed a will by which he has devised and bequeathed all his property to his relations, and subsequently, when in great age and suffering from great physical infirmity, executes another will through the procurement and instrumentality of a trusted friend and adviser, whereby the provisions of the former will are radically altered and a substantial benefit given to the friend and adviser aforesaid, a proper case is presented for the court to grant an issue to determine whether undue influence has not been exerted to procure the execution of the will last named.</p> <p>3. In such case, the burden is upon the beneficiary under the last named will to prove affirmatively all the circumstances connected with the drawing of it. He must also make it appear that the alleged testator was laboring under no mistaken apprehension as to the value of his property and the amount he was giving to his confidential adviser, and that the gift was his free and intelligent act.</p> <p>3. Cuthbertson’s Appeal, 1 Outerbridge 163, followed.</p> <p>4. Where, in a case like that set forth above, the charge of undue influence admittedly requires judicial investigation, and there is also an allegation of mental unsoundness, supported by the evidence of the attending physician and other witnesses, it is not proper to restrain the inquiry to the charge of undue influence alone. Both charges are necessarily so connected with each other that the inquiry should extend to both.</p>

<p>1. The law will not imply a promise on the part of a father to pay to his adult married daughter wages for services rendered while she and her husband reside with him and constitute part of his household.</p> <p>2. Where a daughter marries but continues to live with her parents as before marriage and to perform similar services, her husband will not be held entitled to recover compensation for such services.</p> <p>3. Where a person serves in the capacity of a domestic servant, and no demand for wages is made until a considerable period after such service has terminated, the inference is either that the wages have been paid, or that the service was performed on the footing that no payment was to be made.</p> <p>4. McConnell’s Appeal, 1 Outerbridge 31, followed.</p>

<p>1. An action of replevin will not lie for growing crops severed by the person in possession under claim of title to the land on which the crops -were grown.</p> <p>2. The provisions of the act of May 15, 1871, Pamph. L. 208, enabling the owner of realty to sustain an action of replevin to recover timber, lumber, coal or other property severed from the realty, notwithstanding the fact that the title to tlie land may be in dispute, do not apply to the' case oí growing crops.</p> <p>3. The words “other property,” employed in the said Act, were intended to include only articles of the same generic character as those already enumerated, — such as slate, marble, iron ore, zinc ore, and all other forms of minerals and ores, building-stone and fixtures, and machinery of every description which have been permanently affixed to the realty.</p>

<p>1. In an action of covenant on an agreement under seal, an affidavit of defence making general allegations of undue influence in procuring the agreement is insufficient. The acts resulting in undue influence should be set out.</p> <p>2. The refusal of a vendor’s wife to join in the execution of a deed for the conveyance of real estate, will not .relieve the vendor from damages for breach of his contract to convey.</p> <p>3. In order to determine whether the sum named in a contract as a forfeiture for non-compliance, is intended as a penalty or as liquidated damages, it is necessary to look at the whole contract, its subject matter, the ease or difficulty in measuring the breach in damages, and the magnitude of the stipulated sum, not only as compared with the value of the subject of the contract, but in proportion to the probable consequence of the breach.</p> <p>4. A. agreed with B. by articles under seal to convey to him, twenty days from date, a farm of fourteen acres, at the rate of $450 per acre. B. thereupon paid to A. $500, which sum A. was to hold as a forfeit in case B. failed to comply with the contract. In case of failure on his part to so comply, A. covenanted to return said $500, “and also to forfeit the sum of $500 to the said B. in case of his negleot to convey the property as agreed.” Held, that the clause above cited was to be construed as providing for liquidated damages, and not for a penalty, and that, therefore, A. having failed to convey the property to B. he was bound not only to refund the $500 deposited with him, but to pay $500 additional.</p>

<p>1. The Borough of South Chester, in Delaware county, was incorporated in 1870, under and subject to the General Borough Law of April 3d 1851, Pamph. L. 320. In 1877 it filed a claim against certain real estate within its limits, for the removal of a nuisance. In 1880 said real estate was sold at sheriff’s sale, under a judgment obtained for arrears of a ground-rent, created in 1865. In the distribution of the proceeds of said sale, — Held, that the said General Borough Act fully authorized the filing of the said claim. That by the provisions of the Act of February 3d 1824, 8 Smith L. 189, extended to Delaware county by the Act of April 18th 1848, Pamph. L. 334, said claim was entitled to have priority to and to be fully paid and satisfied before any incumbrance which the said real estate might thereafter become charged with or liable to. That the operation of this act in the present instance was not affected by the circumstance that the ground-rent had been created prior to the incorporation of the borough, and that hence the whole amount of said claim should first be paid out of the fund.</p> <p>2. The priority of the claim in question was not affected by the passage of the act of April 3d 1872. Pamph. L. 768, entitled “An Act to better secure the payment of municipal claims and taxes in the Borough of South Chester.” Said enactment is substantially a re-enactment of the provisions of the said Act of 1824, so far at least as priority of payment is given to municipal claims for abating nuisances.</p> <p>3. The Act of April 1st 1873, Pamph. L. 509, supplying a new method for the collection of taxes in Delaware county, has special reference to taxes, properly speaking. It has no application to municipal claims or assessments, which were made liens, entitled to priority of payment, by prior Acts of Assembly.</p>

<p>1. In order to support an indictment for cheating by false pretences, the pretence in question must be the assertion of an existing fact^not a promise to perform some act in the future.</p> <p>2. An indictment against one A. contained two counts. The first charged that A., with intent to cheat and defraud B., had represented to B. that he would be unable to pay at maturity a certain note drawn by him to B:’s order, endorsed by B., and then in the hands of a third party, by which representation he induced B. to endorse another like promissory note and to deliver the same to him, pretending that he would use the same to take up the first named note, whereas he did then intend and afterwards did acLually use said last; named note for another purpose. The second count was similar, except that it averred the note, at the time of its delivery to A., to have been “ then and there the property of the said B.” Held, that neither count of the indictment set out an indictable false pretence under the statute. ¡</p> <p>3. Where, upon the trial of A. under the above indictment, a verdict of guilty was rendered, and subsequently judgment was arrested for insufficiency of the indictment, whereupon the Commonwealth took a writ of error on the ground that the court had erred in not holding that the facts set forth in the indictment and proved on the trial, showed that defendant had obtained the property in question in such manner as in law would amount to larceny, and in not rendering judgment accordingly, Held, that the Supreme Court could not, without having the evidence in the court below before it, reverse upon this ground.</p> <p>4. A general verdict of guilty, upon an indictment, is a finding only of the facts sufficiently pleaded. j</p> <p>5. Neither of the counts in the indictment above set forth, was sufficient to sustain a charge of larceny.</p>

<p>1. As a general rule, a sale of personal property is not good against the creditors of the vendor, unless possession be delivered by the vendor in accordance with the sale. In determining the kind of possession necessary to be given, regard must be had not only to the character of the property, but also to the nature of the transaction, the position of the parties, and the intended use of the property. No such change of possession as will defeat the fair and honest object of the parties is required.</p> <p>2. A change in the location of the property is not always essential to protectt.be property against the creditors of the vendor. If the purchase was in good faith; and for a valuable consideration, followed by acts intended to transfer the possession as well as the title, and the vendee assumed such control of the property, as to reasonably indicate a change of ownership, the delivery of possession cauuot, as matter of law, be held insufficient. The case should under such circumstances, go to the jury to find whether the sale was in good faith or merely colorable.</p> <p>3. A., an old man, was indebted to his son B., with whom he resided on a farm, which he held under a parol lease. By reason of infirmities and poverty, A. was unable to carry on the farm. He therefore sold and transferred to his son B., all the property on the farm, including certain cattle, in consideration of the latter agreeing to support his father and mother, and to pay the rent. In pursuance of this agreement, B. took charge of the farm, bought and put additional stock on it, hired labor to care for it, paid the rent and supported his father and mother. Both A. and B. continued to live in the same house, but A. did no work about the farm. In a contest between execution creditors of A. and B. as to the ownership of the cattle sold by A. to B., — Held, that under the circumstances it was for the jury to find whether the sale was in good faith or merely colorable.</p>

<p>1. Where the land of a testator is sold or mortgaged in pursuance of a decree of the Orphans’ Court made under and by virtue of the provisions of the Act of April 18th, 185,3, Pamph. L. 503, the purchaser or mortgagee takes title clear of the lien of a legacy charged by testator on said land.</p> <p>2. Semble, that in such case the legatee can have recourse solely to the proceeds of,the sale or mortgage, and that, in the event of the legacy being contingent, the court may direct the investment of a sufficient part of such proceeds to pay the legacy at the time when, by the terms of the will, it can be demanded.</p>

171. Debt, by the Singer Manufacturing Company against Thomas McQuillen, and Mary E. McQuillen his wife.

<p>Certiorari to the Court of Common Pleas of Lycoming county: of January Term 1882, No. 130.</p> <p>On September 11th 1880, A. W. Tallman, burgess of the borough of Muncy, bled a petition in the said court reciting that the town council bad surveyed, laid out, enacted and ordained that a certain alley, known as Mrs. Petrikin’s alley, be widened to a street of the width of thirty-seven feet, and called Brady street. The petition further set out that the borough was unable to agree with the parties owning property abutting on said alley as to proper compensation; it, therefore, prayed the court to appoint five viewers to assess the said damages.</p> <p>On the same day the viewers were appointed, and on September 13th 1880, an order was issued to said viewers reciting the petition, and also the terms of the Act of May 24th 1878, Pamph. L. 129, under which the application was made to the court.</p> <p>On October 4th 1880, the report of the viewers was filed, awarding damages to the heirs of W illiam A. Petrikin, deceased, owners of property abutting on said Brady street, in the sum of $375, for “the opening of the said Brady street and the appropriation therefor of twenty-five by one hundred and eighty feet of the lot fronting on Main street, and twenty-two by one hundred and fifty of the lot fronting on Washington street.”</p> <p>On October 16tli 1880, this report was confirmed by the court absolutely, and judgment entered against the borough of Muncy accordingly. On March 9th 1881, E. Bruce Petrikin, executor of Willian A. Petrikin, deceased, filed a petition setting forth that the title to the real estate of the said testator was vested in him; that the town council of the borough of Muncy had taken certain of this real estate for the purposes of a street, without notice to him, or making a compensation, or giving security therefor ; and praying the court to strike off the judgment entered in this case and set • aside the proceedings, on the ground of want of jurisdiction.</p> <p>A rule was granted to show cause why the judgment shonld not be stricken off and the procepding set aside, which rule after argument was discharged by the court, in the following opinion by Cummin, P. J.</p> <p>“ I am of opinion that the proceedings in this case were properly entertained by the Court of Common Pleas, under the provisions of the Act of Assembly of 24th May 1878 (P. L. 129). Pursuant to this statute, the proceedings have been properly conducted to final judgment. The owners of lands abutting on this alley have had aljl the notice the law requires. The necessity of widening this alley, and the sufficiency of the damages awarded, are both established by the weight of evidence taken on this rule, and the petitioner, therefore, has no just ground of complaint. ,</p> <p>“But apart from the merits of the controversy, this application comes too late. On the first day of the October term of court, to wit, October 4th 1880, the report of the viewers in this matter was filed and confirmed nisi. Qn the 16th of October 1880, this report was confirmed absolutely and judgment entered thereon, pursuant to the Act of 24th May 1878, supra, wherein it is directed that such report shall be confirmed and judgment entered, &c., if no exceptions jbe filed within ten days. The next term of the court began the first Monday of January. The second term thereafter was' the March term, which began March 7. The petition for this rule was filed March 9th 1881. The term to which the original proceedings were returnable, and at.which the judgment was entered having elapsed, and another full term having expired before this petition was presented, I have now no power to strike off the judgment and grant the prayer of the petitioner.” j .</p> <p>E. Bruce Petrikin, executor, thereupon took this certiorari assigning for error, inter alia, the discharging of his rule.</p> <p>—The act of May 24th 1878, Pamph. L. 129, was only intended to provide a remedy for abutting property owners in case of change of grade. It was intended to reestablish the doctrine of Allegheny County v. Eowley, 4i Clark 379, and to override O’Connor ®. Pittsburgh, 6 Harris, 187, and In re Ridge avenue, 5 Casey 391. The Burgess should have filed his petition in the Quarter Sessions under the Act of April 22d 1856, Paraph. L. 525, which provides expressly a remedy in case of the widening of streets or alleys. The Act of 1878 does not repeal the Act of 1856, either expressly or by implication. To establish a repeal by implication there must be a clear and strong inconsistency'between the Acts: Street ®. Commonwealth, (if. & S. 209 ; Cohen®. Commonwealth, 6 Barr 111: Commonwealth ®. Easton Bank, 10 Barr 442: Egypt Street, 2 Grant 455; Commonwealth ®. Gregory, 2 Pars. 241. If two statutes can stand together the latter does not abrogate the former; the whole course of legislation is to be construed in pari materia, that every part and word shall have its effect, if it consistently can, and the will of the legislature be completely executed: Erie®. Bootz, 22 P. F. Smith 196; Maloney ®. McNeish, 6 Luz. Log. Reg. 155. The proceedings were, therefore, coram non judice.</p> <p>It is clear that the Act of 1878 was intended to repeal the Act of 1856. Its title reads thus: “ An Act to provide for appointing viewers to assess damages where streets and alleys are changed in grade or location in the several boroughs of this Commonwealth.” The use of the word “location” shows that the legislative intent was to supplant the former Act. You can change the location of a street without changing the grade, and you can change the grade without changing location. When you widen a street, you change its location ; not so when you fill it up or cut it down — then you change the grade. Further, if we take the Act in that part where it prescribes the duties of the viewers, it is provided, that they “ shall view the said street or alley and premises affected by the change or enlargement thereof.” Does not this mean a widening or spreading out, not a change of grade ? The title to an Act need not be a complete index of its contents: Commonwealth®. Green, 8 P. F. S. 226; Yeager ®. Weaver, 14 P. F. S. 425. All that is required is that the title fairly give notice of the subject of the Act, so as reasonably to lead to an inquiry into its body: Allegheny Home’s case, 27 P. F. Smith 77; Mauch Chunk ®. McGee, 31 P. F. Smith 433. Then if this Act means what we contend it does, it is plain that it repeals so much of the Act of 1856 as relates to the widening of streets or alleys and assessing the damages caused thereby. A subsequent affirmative statute is a repeal, by implication, of a former one made concerning the same matter, if it introduce a new rule upon the subject, although it contains no express words repealing it: Ledlie V. Mon. Nav. Co., 6 Barr 392; Com. v. Oromley, 1 Ash. 181; Johnston’s Estate, 9 Casey 511, 515. Acts which, although in pari materia, grant a right conditioned on different things, are inconsistent; and the inconsistency operates as a repeal: Gwinner v. The Lehigh and Delaware Gap R. R. Co., 5 P. F. Smith 126. It is well settled that if the court below had jurisdiction and proceeded in conformity of law, the Supreme Court will not reverse: In re Kensington and Oxford Turnpike Co., 10 W. N. C. 177. But further than this, the court at the time the pétition of plaintiff in error was filed had not the power to set aside the judgment, for the reason that the term of court at which the judgment was entered had elapsed and another full term ha,d expired : White v. Leeds, 1 P. F. Smith 189 : King v. Brooks, 22 P. F. Smith 363; Commonwealth v. Mayloy, 7 P. F. Smith 291; In re Kensington and Oxford Turnpike Co., 10 W. N. C. 177, 181.</p>

<p>1. A. applied to a register of wills for letters of administration on the estate of B. The register accepted and approved A.’s official bond with sureties, and agreed to issue the letters. He marked the bond as filed, made an entry of the grant of letters in his docket, and requested A. to call later in the day for his certificate. A. left, but called the next morning, and then took the official oath and received his certificate. Held, that in the interim before the second visit to the register’s, A. was so far the duly constituted representative of B., that a writ of attachment directed against B.’s estate could be served upon him in that capacity.</p> <p>2. How far the record of a grant of letters of administration in the docket of a register of wills may bé impugned by parol evidence, not decided.</p>

<p>Error to the Court of Common Pleas of Lycoming county : of January Term 1882, No. 316.</p> <p>On August 24th 1880, S. J. Myers gave to William Pickersgill, Jr., his judgment note for $329.05. Pickersgill entered up this note on September lltli 1880. The same day he issued a writ of attachment execution, wherein The Lycoming Fire Insurance Company was summoned as garnishee, it being alleged that said company was indebted to the defendant Myers for a certain loss sustained under a cash policy issued by said company. Said company, in response to interrogatories, answered that it was not indebted to Myers, and subsequently being ruled to plead, pleaded “ nulla bona.” The cause was continued by the court from time to time and was never tried.</p> <p>On October 8th 1881, The Lycoming Fire Insurance Company dissolved and its effects were ordered to be distributed in the manner provided by the Acts of April 4th 1873, Pamph. L. 20 and May 1st 1876;, Pamph. L. 66. J. A. Beeber, Esq., was appointed receiver. On December 31st 1881, the receiver presented a petition setting forth the foregoing facts and praying for a rule to show cause why the attachment should not be dissolved.</p> <p>The rule was granted and after argument, was made absolute by the court, in an opinion by Cummin, P. J. Plaintiff thereupon took this writ of error, assigning for error the action of the court in making the rule absolute.</p> <p>It is true that the corporation became by its dissolution civilly dead, nevertheless under the Act of May 1st 1876, Pampli. L. 66, the receiver is vested with ample powers to carry on or defend suits. It was therefore error to dissolve the attachment.</p> <p>— Upon the dissolution of the corporation it became civilly dead and all suits against it abated as of course: National Bank v. Colby, 21 Wall. 609 ; Building Association v. Anderson, 7 Phila. 106 ; Ilenry v. Kishbach, 5 Luz. Log. Reg. 90 ; Dean & Son’s Appeal, 11 W. N. C. 26; Mumma v. The Potomac Co., 8 Peters 281; McCullough '». Norwood, 58 N. Y. 562.</p> <p>No suit can be proceeded with without making the receiver a party. But there is no provision in the Act of 1876, by which he can be compelled to become a party to any suit or proceeding existing prior to liis appointment; consequently, it is optional, with him, representing as he does both the dissolved corporation and its creditors, to ask the court to authorize him to proceed with the suit or defend.</p> <p>There was no application in this case to have the receiver made a party. Any such application must have at any rate failed. The possession of the receiver is the possession of the court: Robinson v. Atlantic & Gt. W. It. Co., 16 P. F. Smith 160. The court will take care of the interests of creditors: Wiswall v. Sampson, 14 Howard 52.</p> <p>It has been repeatedly decided that the receiver of a corporation cannot be made a party to any suit without the consent of the court appointing him, because he acts as an officer of the court, and is under its protection and control: Wray v. Ilazlett, 6 Phila. 155; Daniel’s Chancery Practice 1744; Kennedy v. it. R. Co., 3 Fed. Reporter, 97; In re Globe Fire Ins. Co., 6 Paige Cli. Rep. N. Y. 102.</p> <p>When a party claims title paramount to that of the receiver he must apply to the court for leave to proceed to assert his right, notwithstanding the appointment of a receiver: De Groot v. Jay, 30 Barb. 483.</p>

128. Covenant, by William McLees .et ah, doing business as the Elmsport Lumber Company, against John H. Goodman and others, doing business as the Watsontown Car Manufacturing Company.

202. This action was originally brought in covenant, by Frank Pollman against Morgester & Jackson, to recover damages for breach of a covenant in a lease to build, and for a balance of rent due. After issue joined, the plaintiff, by leave of the court, amended tlie form of the action to assumpsit, and the defendants pleaded non assumpsit, payment with leave, and set off.

<p>1. Although prior to the adoption of the present constitution of this commonwealth corporations vested with the right of eminent domain were not usually liable for consequential damages, yet the legislature, in its grant of this right to a corporation, might so limit the exercise thereof, as to make it, subject to the payment of such damages.</p> <p>2. A water company was incorporated in 1805, with power to take the waters of any stream, “making compensation for the same.” Its charter further provided, that “if, in the location of ... . the works, an injury should be done to private property, and the parties could not agree upon the amount of compensation to be made to the owner,” either party might apply to the court to appoint viewers. The company in constructing its works used the waters of a certain stream, diminishing materially the flow of water therefrom, through a certain mili race, about a mile and a half further down. The owner of the null-race had purchased the right to use the water for his mill, from the owners of the land bordering on the stream at the point where the mill-race was built. Held, that the owner of said mill-race had a property, though of an incorporeal nature, in the waters of the stream, and that, unde^ the terms of the charter of the water company, he was entitled to recover compensation for tlie injury lie had sustained by the diminution in the flow of the water.</p> <p>8. Pending an appeal by said owner, from a report of viewers assessing damages done him, the rights, franchises, and property of the water company, were sold at sheriff’s sale under a mortgage. Held, that said owner's claim for damages was a continuing lien upon the corporate property, and that lie could assert said claim by continuing the proceedings already commenced, as against the sheriff's vendee.</p> <p>4. On the trial of an issue framed in the said proceedings to determine the damages to which the owner of the mill-race was entitled, the water company proposed to prove that, after its taking of part of the waters of the stream as aforesaid, a railroad company had constructed its road by the side of the mill, and across the mill-race in question, destroying the same, and that a recovery liad been had for injuries sustained by the construction of the road as aforesaid, to the full value ol the mill and mill-race. Held, that the evidence was properly excluded, because (1) the railroad company must be held to have made compensation having reference to the deterioration in value already caused by the water company, and (2) the railroad company took no water, but only caused an obstruction, so that the claim against it for damages was wholly unlike that against the water company.</p> <p>5. Where property taken by a corporation in the exercise of the power of eminent domain, has already been deteriorated in value by the exercise of the same power by another corporation, the damages must be estimated with reference to the existing deterioration.</p>

<p>1. A creditor of a mutual fire insurance company reduced his claim to judgment, and issued an attachment execution thereon, wherein a mutual member of the company was summoned as garnishee. Said garnishee was indebted to the company on his premium note for his proportion of losses sustained. The amount of said indebtedness was not, however, at the time, fixed by assessment. Subsequently, the company was dissolved by decree of the court, and a receiver appointed who proceeded to levy an assessment on all the premium notes to meet outstanding liabilities at the time of the dissolution. Held, that the attaching creditor by virtue of his attachment was entitled to the amount thus assessed by the receiver on the garnishee.</p> <p>2. The dissolution of the corporation in the above case did not abate the attachment proceedings, nor did the appointment of the receiver prevent the attaching creditor from prosecuting said proceedings. The action of said receiver in levying an assessment simply fixed the measure or amount of the debt which had been levied on by the attachment.</p>

182. This was an appeal by Bebecca Taggart, widow of James Taggart, deceased, from a decree of the said court setting aside certain proceedings instituted by said appellant for the partition of certain real estate of her said husband. The facts of the case were as follows-: James Taggart died August 13th 1878, leaving him surviving his widow Rebecca Taggart and several children, and seised, inter alia, of certain real estate in Lycoming county.

57. This was an appeal by the Providence Gas and Water Company, from a report of viewers, assessing damages for the taking of certain land and springs, belonging to one Michael Finn, by the said company, for the construction of a reservoir. The facts of the case were as follows: — The Providence Gas and Water Company was incorporated by an Act of Assembly of February 23d 1867, Pamph. L. 249.