m The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017205455 /**-^. Jue,'^^rL< yj% 7 ^ Cornell University Library KFP 45.1.B84 A digest of cases decided by "^« ^"E,f!f,|"* 3 1924 017 205 455 'ifp Wi >_> ,/ \p. DIGEST. DIGEST OF CASES DECIDED BY THE SUPREME COURT OF PENNSYLVANIA, AS REPORTED FROM 3d WRIGHT TO 5th P. F. SMITH, INCLUSIVE, WITH TABLE OF TITLES AND TABLE OF CASES. F. CARROLL BREWSTER. PHILADELPHIA: PUBLISHED JBY JOHI^ CAMPBELL, No. 740 Sansom Street. 18 6 9. KiSG & BAIRD, PaiNTERS, 607 Sansom st., Phila. TABLE OF TITLES. ABATEJEENT. ABANDONMENT OP SETTLEMENT. See Land H., 4. ABANDONMENT OP LAND TAKEN UNDER EMINENT DOMAIN. See Land XIII. ACCEPTANCE AND ACCEPTOR. See, generally, Bills of Exchange. ACCORD AND SATISPACTION. ACCOUNT RENDER. ACTIONS. Against associators. See Associations^ 6. Against stockholders. See, generally, Corporations V. When reconveyance is necessary to rescind contracts. See Contract VIII., 4. First jurisdiction attaching should decide. See Courts, 10. Damages in. See, generally, Damages. Receiver must sue in name of firm. See Equity I., 35. Conviction on indictment no bar. See Former Recovery, 3. Partners liable in trespass. See Partnership III., 15. ACT OP GOD. ACTS OP ASSEMBLY. Constitutionality of Acts. See, generally. Constitutional Law. Acts of limitation may be retrospective. See Limitations IV., 24. ADEMPTION. See Decedents' Estates VI., 10. ADDITIONAL PLEADING. See Pleading, 19. AD JOINERS. See Land I., 4, 5, 8, 20, 36, 45. ADMINISTRATION AND ADMINISTRATORS. Rights and Povters of Administeatoks and Liability of thbir Sueeties. See, generally, Decedents' Estates II. Bonds of. See Decedents' Estates II., 40, 41. Liability of — For signing notes or confessing judgment. See Decedents' Estates II., 33. Peomise op — To pay debts of decedent must be in writing. See Fraud III., 9. ADVANCEMENT GENERALLY. See Decedents' Estates VI. Purchase by parent in name of a child is not a trust, but a gift. See Trusts I., 2, 5. ADVANCES. Future, mortgage to cover. Bee, Debtor and Creditor VIIL, 1,3, 3. See Hortgagel., 3, 4, 5. ADVANCING. Freight, agreement by vendee to advance. See Vendor and Vendee II., 3. AFFIDAVIT OF DEFENCE. As to defences to promissory notes, &c. See Bills of Exchange and Promissory Notes. AFFREIGHTMENT. Agreement by vendee to advance freight. See Vendm- and Vendee II., 3. AGENCY AND AGENT. Money paid by an agent in compromise cannot be recovered back by his principal, unless there has been collusion. See Assumpsit, 7, 8. Attachment on moneys deposited by an agent. See Attachment, 1. iv TABLE OF TITLES. AGENCY AND AGENT. An agent is a competent witness for principal, except when principal sued for agent's negligence. See Evidence III., 13. Proof of agency. See Emdence XX., 7, 9, 16, 24, 37. Husband acting under a deed which is a fraud upon his marital rights, does not estop him. See Husband and Wife VI., 1, 2. For powers of insurance agents. See, generally. Insurance VII. Notice of mortgage to a husband acting for his wife is notice to wife. See Mori- ffage IV., 7. Notice to an attorney not sufficient. See Mortgage IV., 9. Notice to an agent, except in the course of his agency, will not affect his principal. See Vendor and Vendeel., 4. Same principle in insurance cases. See Insurance II., 4. AGREEMENT. When agreement is or is not merged in deed. See Deed, 3. By married women. See, generally, Husband and Wife III. As to discharging encumbrances. See, generally. Land IV. Other agreements as to land. See, generally. Vendor and Vendee IV. When executed and when executory. See, generally, Vendor and Vendee IV. As to other matters. See, generally. Contracts. ALDERMAN. As to reversing judgment. See Certiorari, 6. See Errors and Appeals VIII. As to costs on appeal. See Costs, 1, 10. As to surrendering dockets, &c. See Justices, 5, 11, &c. As to ofl'setting judgment of another justice. See Set-off, 11. ALIEN. ALIENATION. See Ejectment. ALLEYS Cannot be closed by owner if another has had an easement. See Easement, 1, 2. ALTERATION OF DEED. See Deed, § 4. AMENDMENT. See, generally. Practice IV. Whether claims can be amended after the six months, doubted. See Mechanics' Claim, 17. AMOTION. See Corporation IV. , 34. ANNUITY Bears interest. See Interest, 3. Charge on land is not discharged by a sale, nor by bringing the money into Court. See Wills IV., 9. APPEAL Is the remedy on application for subrogation, or to set-off judgment. And as to appeal by one defendant being for all, and generally. See Errors and Appeals. Ought not to be withdrawn without consent. See Errors and Appeals VI. , 6. As to costs on appeal if judgment tendered. See Costs, 1, 10. Appeal is barred by claiming under decree. See Estoppel, 9. APPLICATION OF PAYMENTS. See, generally. Debtor and Creditor IV. APPOINTMENT. Power of, under wills, may be exercised unequally. And, generally, as to appointments. See, generally, Wills V. APPROPRIATION OF PAYMENTS. See, generally, Debtor and Creditor IV. APPURTENANCE. See Land XVII., 3. ARBITRATION AND AWARDS. As to arbitration of engineers and appointment of arbiters to measure. See, gen- erally, Contract XII. ASSETS. Marshalling. See, generally, Debtor and Creditor IV., VII., IX. TABLE OF TITLES. ASSIGNEE, ASSIGNORS, AND ASSIGNMENTS. Directors of bank declaring illegal dividends, not liable to compulsory assignee. See Gorporaiions V., 34. Assignment of a contract no defence. See Contract XIII., 11. As to conflicts between assignments and judgments on same day. See Day, 1. As to creditors' dividends. See Debtor and Creditor IX. Assignment of error should repeat the points for charge. See Errors and Appeals VI., 11. Assignments of ground-rent and of the term. See, generally, Qround-rent. Assignee for creditors cannot make title if land sold under prior judgment. See Land XI., 4. Assignee of judgment not bound to prove consideration of assignment, unless attacked. See Judgment VII. , 2. An assignee of a lease is liable for rent after he assigns the term, if he remain in possession. See Landlord and Tenant, 18. As to liability of surety of assignee. See Surety, 11, 12. Sureties bound to pay, although the money is received for specific and not for general creditors. See Surety, 11. As to surcharging of assignee. See, generally, Trusts and Trustees III. ASSOCIATIONS. ASSUMPSIT. ^ Claims by relatives for work, board, &c. See, generally. Contract III. When reconveyance necessary to rescind. See, generally. Contract IX. One bound to pay a substitute, though the contract made in mistake of law and fact. See Contract VI., 11. Claims for contribution. See, generally, Contribution. When agreement must be or need not be in writing, and parol promise to pay debt of another. See, generally. Fraud II., III. Tort may be waived and assumpsit brought. See Pleading, 13. Assumpsit will lie for repairing a road, bridge, &c. See Road, 20, 23. ATTACHMENT. Executors can be attached. See Decedents'' Estates II., 33. Attachment will not lie against commissions of an executor. See Decedents' Estates VII., 19. As to foreign attachments. See Foreign Attachments. Money due to wife for property fraudulently conveyed to her by her husband can be attached by his creditors. See Husband and Wife II., 11. But not if lawfully settled on her. See Husband and Wife II., 13, 14. Trustee can be attached, and attaching trust moneys. See, generally. Trusts III. V. ATTORNEYS AT LAW. As to proving by an attorney the imbecility of his client. Vide Wills I., 3. Collecting costs, liable therefor. See Costs, 7. ATTORNEYS IN FACT. And as to attorneys in fact generally. See Agent. AUDITA QUERELA. See, generally, Practice X. AUDITORS. An auditor having filed final report cannot proceed further without recommittal of the matter, and generally, see Decedents^ Estates. AVOWRY. May claim more than is due. See Beplemn, 9. AWARD. See Arbitration. BAIL. BAILEE, BAILMENTS. Criminal proceedings against bailee. See Criminal Law, 37, 40. vi TABLE OP TITLES. BANKS AND BANKERS. Court cannot order a sheriff's deposit to be paid into Court. See Sheriff, 0. Directors declaring illegal dividends liable to voluntary but not to compulsory assignee. See Corpora&ns V. , 24. As to bonds of officers and their sureties. See, generally, Surety. As to limitation of suits for deposit and on check. See Limitation II., 1. Pledge of stock for a second loan enables the association to apply payments on the stock to either loan. See ABSoeiations, 7. BASTAED. BILLS OF EQUITY. See Mquity. BILLS OF EXCEPTIONS. See Courts, 14, 15, 16, 17, 18, and see Practice VII., 4, 5, 6, 9, 10, 15, 16. BILLS OF EXCHANGE AND PEOMISSOEY NOTES. When giving note vrill discharge a claim. See Debtor and Creditor I., 1, 3, 3, 6 11, 13, 13, 16. Eenewing notes under a judgment or mortgage to secure future discounts or future liabilities. See Debtor and Creditor I., 5 ; VIII., 1, 3, 4. Notice by a surety. See, generally, Surety. I. As TO Endoksers. II. As TO Depenoes by Makers, Acceptors, and other Matters. BILLS OF LADING. Liability of carriers. See, generally. Carriers. BILLS OF REVIEW. See Orphans' Court, 15, 16. BIETH. Effect of issue upon will. See Wills II., 1, 2, 10, 14, 15, 16, 17. BLOOD. Evidence of See Evidence XIII., 4. BONDS. As to municipal bonds. See, generally, Corporations VI. Extension of railroad bonds does not extend the right to convert into stock. See Corporations V., 43. Bonds of administrators and executors. See, generally, Decedents'' Estates II. As to cancelling bonds given by mistake. See Equity I., 5. Suits on bonds given on sheriff's interpleader. See, generally, Execution VI. Indemnity bond as to title. See La7id VII., 11.- As to replevin bonds. See Beplemn, 7. Voluntary bonds of public officers are binding. See Surety, 24. As to purchase-money bonds. See, generally, Vendor and Vendee IV. BOOK OP OEIGINAL ENTRIES. See, generally. Evidence VI. BOROUGHS OR TOWNSHIPS. See Bounties— Constitutional Law. BOUNTIES. Constitutionality of laves as to bounties. See, generally, Constitutional Law. Contracts as to. See, generally. Contracts. BREACH OF CONTRACTS. See, generally, Contracts. BRIDGES. Liability of county officers to repair. See County, 4, 5. Liability of railroad and canal companies to repair. See Corporations IV. , 7, &c. Power to bridge rivers and liability for damages. See Water, 8, 4, 10, 11, 13, 13. BROKER. BUILDING ASSOCIATIONS. , As to the effect of a law attempting to legalize past usurious contracts. Vide Con- stitutional Law, 31, 23. CALLS. See, generally, Land I. CAMP MEETING. Trespass will lie for seizing any thing but liquors near camp meeting, under Act of Api-il 22, 1832. See Trespass, 14. TABLE OF TITLES. vii CANAL. CANAL COMPANY. Liability to lieep bridge iu repair. See Corporation IV. , 7. CAPITAL. In a will means sums contributed, &c. See Will VI., 54, 55. CAEE. One induced to purchase by fraud is chargeable with care of the property. See Contract VIII. , 5. Charges as to want of care. See, generally. Errors and Appeals IV. Want of care in selling liquor to inebriates. See Innkeeper^ 1, 3, 3. Want of care by railroad company. See, generally. Railroads I. and II. CARRIERS. CASE FOR MALICIOUS PROSECUTION— NEGLIGENCE. See those Titles. CASE STATED. CAUSA PROXIMA NON REMOTA SPBCTATUR. See, generally, Negligence. CERTIORARI. CHALLENGE. See, generally. Jury. CHARACTER. Mode of attacking character of witness. See, generally, Evidence II., IV. CHARGE. See, generally. Errors and Appeals II., III., IV., &c. It is error to charge that wife's title must be free from doubt. See Husband and Wife IL, 34. A charge upon land in wills binds devisee personally, and the land, though assigned. See Wills IV., 7. CHARITABLE ASSOCIATIONS. Wills in favor of. See, generally, Wills III. CHARITY. Devises to charities. See, generally. Wills III. CHARTER. Evidence of See Evidence VI., 8, 20, 21. CHARTER PARTY. See Affreightment. CHATTELS. Bona fide purchaser, when protected. See Fraud I., 7. CHATTEL MORTGAGE. See, generally, Mortgage I. When personalty, and when realty. See, generally. Real Estate ; see, generally, Bailment. CHECK. As to depositing worthless check, and what passes by check. See Bank, 12, l:!. As to limitation of suit on check. See Limitation II., 1. CHILD. Birth of— affecting wills. See Wills IL, 1, 3, 9, 10, 14, 15, 16, 17. Illegitimate children. See Bastard. Liability of father for act in his presence. See Trespass, 1 . CHURCH. See, generally, Corporation. CITY. See, generally, Corporation. CLAIM. Of exemption. Vide, generally. Execution III. Of goods levied on. Vide, generally. Execution VI. Of mechanics. Vide, generally, Mechanics^ Claim. Of municipal claims. Vide, generally. Municipal Claims. CLANDESTINE Removal by tenant. See Landlord and Tenant, 16. COAL. Reservation of, &c. See, generally. Land IX. COLLATERAL Inheritance tax. See, generally, Decedents'' Estates VIII. viii TABLE OF TITLES. COLLATERAL. Sureties on register's official bonds not liable for collateral inheritance tax. See Register, 1. COLLATERAL SECURITY. Pledge of stock twice to an association for successive loans, prevents the holder from applying payments on the stock to the first loan. See Building Associa- tions, 6. COMMISSIONS. To take evidence. See, generally, Evidence. Of officers— power of Governor to revoke and to issue commission in contested election cases. Vide Elections, 10, 11. Oertiorari. Of executors, c%c. See, generally. Decedents^ Estates VII. Of trustees, &c. See Trusts III., 2, 11, 14. Cannot be attached. See Decedents'' Estates VII. COMMON CARRIERS. See, generally, Corners. COMMON LAW. Remedy in trespass not repealed by stay law. See Statutes, 3. COMMON SCOLD. See Criminal Law, 45, 46. COMMONWEALTH Not liable for damages unless provision made. See Damages, 9. Purchasers from State bound to repair bridges, &c. See Corporation IV., 7. Lien of State judgment against officers not to be preferred. See Lien, 2, 3. COMPANIES. Consolidation of. See Corporations IV., 8, 17. COMPROMISE. Moneys paid in compromise cannot be recovered back. See Assumpsit, 6, 7, 8. CONDITION. As to what words create a condition, and as to conditions affecting land. See, generally, Land XII. Conditional sales, what are and what are not bailments. See, generally, Bailments. A condition in restraint of alienation cannot be set up by one whose land has been sold by judicial decree. See Ejectment II., 12. Effect of unlawful condition on wills. See Wills III. Breach of condition in wills forfeits. See Wills VI., 49. CONDITIONAL VERDICT. See, generally, Ejectment I. CONDUCTOR Can remove drunken passenger. See Railroads II., 83. CONFEDERATE STATES. Capture by. See, generally, Insurance V. CONFLICT. The first jurisdiction attaching should decide. See Courts, 10. CONFUSION OF GOODS. CONSEQUENTIAL DAMAGE. For consequential damages from act of State. See Damages, 2, 9. For error in charge as to. See Errors and Appeals II., III. CONSIDERATION AND FAILURE OP CONSIDERATION. As to land. See, generally. Vendor and Vendee II. , 3, 5. When a purchaser for inadequate consideration chargeable as trustee. See Equity. As to notes, &c., for chattels, and general failure of consideration. See Contract VIII. Consideration of assignment of a judgment need not be proved on mere notice to do so. See Judgment VII., 2. CONSOLIDATION OP COMPANIES. See Corporations. CONSPIRACY. Evidence in. See Evidence V., VII. ( TABLE OF TITLES. ix CONSTABLE. As to suits for refusing exemption. See Execution III., 11, 13, 13. CONSTITUTIONAL LAW. CONTEMPT. Trustees may be attached. See Trusts III., 16. CONTESTED ELECTIONS. See, generally, Mections. Of councilmen, courts cannot try. See §«o Warranto, 1, 2. CONTRACTS. Money paid in compromise cannot be recovered back. See Assumpsit, 6, 7, 8. Assumpsit will not lie for charges provided for by sealed contract. See Assumpsit, 4. Case lies to recover back usury. See Assumpsit, 13. Contracts which are not of sale, but of bailment. See, generally, Bailment. As to laws impairing. See, generally, Constitutional Law. As to subscriptions to stock. See, generally, Corporations V. , VI. Extensions of bonds do not extend right to convert into stock. See Corporations v., 43. As to usurious contracts. See, generally. Debtor and Creditor II. When necessary to be in writing, and parol promise to pay debt of another. See, generally. Frauds II., III. Municipal officers cannot bind the corporation except as authorized hf law. Sti' Philadelphia, 5. As to real estate generally, when executed and executory. See, generally Vendor and Vendee IV. I. Contracts entire and divisible. II. Contracts for benefit of third parties. III. Claims by relatives. IV. Implied contracts. V. Legal tender contracts. VI. With and without consideration — absurd contracts — lawful and unlawful con- tracts — contracts under mistake. VII. Contracts of warranties. VIII. Failure of consideration. IX. Eecission of contracts. X. Damages on contracts. XI. Where representatives of deceased contractors liable. XII. Contracts providing for measurement, for arbitration, &c. XIII. Contracts by ofiicers, and other matters pertaining to contracts. For contracts in restraint of trade. See Equity I., 63, 64. CONTRIBUTION. Of alienation of different properties bound by same judgment. See Judgment IL, 1. CONVERSION IN WILLS. See, generally. Wills IV. CONVEYANCE. See Gonii-act IX. When reconveyance necessary to rescind. Reconveyance not necessary in order to defend for usury. See Debtor and Creditor II., 13, 15. CORONER. On sheriff's death coroner controls his deposits. See Sheriff, 9. CORPORATIONS. Assignments by. See, generally. Assignments. As to Commonwealth's lien for taxes on dividends, as to liability for tax on fraud- ulent dividends, and as to lien on stock, as to right of noteholders to priority. See, generally. Banks. Liability of carriers. See, generally. Carriers. A body illegally organized can be restrained. See Equity I. , 44, 45. But a bill will not lie to restrain an anticipated intrusion. See Equity I. , 10. TABLE OF TITLES. CORPORATIONS. As to liability for taking land. Vide Railroads I. ; and, generally, Roads ; and generally, Land VIII. As to restoration and requirement of a return to a mandamus. See Mandamus, 9 10, 17, 18, 19. Cannot assign a mortgage given to cover loss without assent of mortgagor. Vide Mortgage V. , 4. Service of summons on. See Practice I., 2. Power of charter cannot be attacked collaterally. See Pleading, 6. County officers cannot advertise in more papers than authorized by law. Sei PMladeljiliia, 5. Managers de facto can hold elections. See Qao Warranto, 3, 4. Must repair bridges and roads they occupy. See Railroads III., and, generally Roads. As to connecting railroads, renewing railroads, and as to negligence of railroads See, generally, Railroads I., II., III. As to distribution of stock. See Stoclc, 1. As to sureties of officers. See, generally, Btirety. Bequests to religious corporations. See Wills III., 3, 7, 10, 12, 13. Bridge companies not liable for damages occasioned by piers authorized by law See Water, 13, 13. I. Taxation and exemption from taxation. II. Liability of corporations, municipal and others, including cities, railroads an( bridge companies, for damages. III. Remedy against corporations for collection of debts, damages, &c. — wha property cannot be sold, &c. IV. Construction of charters — powers and obligations of officers and of the corpo ration — (right to lease — pass ordinances — to expel — liability to repair — liabilit; of counties for support of convicts, &c.) V. Rights and liabilities of subscribers, stockholders and directors — lien on stock- power to issue stock. VI. Authority to corporations to subscribe for stock, to give bonds — liability o bonds, coupons, &c. VII. As to rights of majority and minority in all corporations, and as to divisions i religious corporations. VIII. The existence of charter, its forfeiture, &o., can only be questioned by th State — as to forfeitures, pleadings and defences on quo warranto — dissolution, &( CORRUPTION OP ARBITRATORS. See, generally, Arbitrations. COSTS. Defendant liable for costs if pardoned after sentence, and county liable for cosi when defendant pardoned before sentence. See Criminal Law, 10, 18, 19, 21, 2' Costs not chargeable against guardians and other trustees except for fraud, delaj &c. See Decedents' Estates VII., 4, 9, 15, 16. COUNCILMEN. Courts cannot try contested elections of. See Quo Warranto 1, 2. But where two bodies claim to be a council, equity will restrain the body illegall organized. See Equity I., 44, 45. Councilmen may be compelled to meet. See Mandamus, 4. Councils can control expenditures, and illegal contracts do not bind. See Pliili delpMa, 5, 6. COUNSEL PEES. See Trusts III., 14, &c. COUNT. Civil cases. See, generally. Pleading. Criminal cases. See, generally. Grimes, COUNTIES, COUNTY TREASURER, COUNTY AUDITOR, AND COUNT" OFFICERS. As to taxes. See, generally, Taxes. TABLE OF TITLES. xi COUNTIES, COUNTY TEBASUREE, &c. Public officers only liable for malice. See Negligence, 1. County liable for costs where defendant pardoned before sentence. Vide Crimi- nal Law, 10. Sureties of sheriff. See SJieriff, 7, 31, 33. Sureties of other county officers. See Surety, 1, 3, &c. Officers cannot advertise in more papers than authorized by law. See PJdladel- pJiia, 5. Counties liable to townships for township taxes collected by county treasurer. See Townships, 3. Counties liable for support of insane convicts sent to a hospital by the commis- sioners. See Corporations IV. , 34. COUPONS are negotiable. See Corporations VI., 15. And bear interest. See Corporations VI., 30. COURSES AND DISTANCES. See, generally, Zand I. COURTS. Divided Court. See Practice VII., 3. Cannot try contested election of councilmen. See Quo Warranto, 1. Can compel councilmen to meet. See Mand,amus, 4. As to verdict after adjournment. Vide Practice VII., 17. Record in criminal cases. See, generally, Criminal Law. May attach trustees. Vide Trusts III., 16. As to errors in charge. Vide Errors and Appeals II., III., IV. May be reversed on construction of their own rules. See Errors V., 17. Their construction of rules as to depositions respected. See Evidence I., 6. Cannot order a bank to pay sheriff's deposits into court. See Sheriff, 9. COVENANT. For second instalment on land discharged by sale of land for first instalment. See Vendor and Vendee IV., 13. Covenant will alone lie for cost of changes provided for in a sealed contract. See 4. COVENANTS OF TITLE. Covenants to pay off encumbrances. See, generally. Land IV., VII. COVERTURE. When trust for coverture ceases on discoverture. See, generally, Trusts V. CREDITOR'S BILL. See Equity 1., 13, 14, 3?, 34, &c. CRIM. CON. See Husband and Wife V., 31. CRIMES AND CRIMINAL LAW. For challenges. See, generally. Jury. As to statutes of limitation. See Limitation III. CROP. Way-going. See Landlord and Tenant, 3. CROSS-EXAMINATION. See, generally. Evidence II. CURTESY. See Husband and Wife V., 3, 14, 17, 34. CUSTOM. Special custom cannot affect bar of the statute. See Limitations IV., 3. Evidence of. See, generally. Evidence XX. Bad custom. See Evidence XX., 4. DAMS. For damages from dams. See Damages, 3, 3, 13, 15. Conviction for maintaining a dam is no bar to suit for damages. See Former Re- covery, 3. DAMAGES. As to charges upon. Vide, generally. Errors and Appeals II., III., IV. Evidence in mitigation of damages in slander. Vide Evidence VII., 1, 17, 19, 36. Against railroads, &c., for taking land for opening roads, railroads. See Bail- roads I., and, generally, Roads. xii TABLE OP TITLES. DAMAGES. Damages for non-performance of contract. See, generally, Gontract X. For non-performance of covenants of title. See, generally, Land IV. In trover and trespass. Vide, generally. Trover. Public ofiBcers not liable except for malice. See Negligence., 1. As to charges of CourS' upon measure of damage for loss of husband's life. Vide Errors and Appeals II. , 3. DAMNUM ABSQUE INJURIA. Cutting off subterranean springs. See Land X., 2. DAT. DEATH. For charge as to measure of damages from husband's death. Vide Errors and Appeals 11., 3. As to recovery by father and mother for death of child. See Damages, 39. DEBT. Trustees can be attached. See Trusts TU.., 16. DEBTOR AND CREDITOR. As to checks and settlements in fraud of creditors, fraudulent deeds and sales, and fraudulent judgment. Vide, generally, Fraud II. As to guarantor. Vide, generally. Guarantor. As to husband and wife. See, generally. Husband and Wife I., III. As to legacy extinguishing debt. Vide TFi'Ks VI., 71. ^ As to husband's declaration creating trusts for wife. See Husband and Wife IV. As to creditors being estopped from attacking deed for fraud. Vide Estoppel, 3. As to verbal promises to pay the debts of another. Vide Fraud III. As to suits by persons not parties to the promise. Vide Contract II. As to claims by relatives for board, work, &c. See Gontract III. As to lumping sales by a sheriff. See Fraud I., 18. As to holding of property by wife against her husband's creditors. See Husband and Wife II. Creditors may attach purchase moneys of laud conveyed by husband to wife, and by her conveyed. See Husband and Wif ell., 11. They cannot attach rents of her separate estate. See Ibid II., 14. Attaching trust moneys, &c. See Trusts V. , 3, 9, &c. Attachment will not lie against commissions of executors. See Decedents^ Es- tates VII., 10. Money paid in compromise cannot be recovered back. See Assumpsit, 6. Issue should be awarded if asked in time, and fact material. See E.Mcutior, VIIL, 8. Officers' fees, &c., not attachable. See Attacliment, 7. As to husband's liability to his wife for a debt. See Husband and Wife V. , 6, 7, &c As to postponing prior to a jiinior execution. See Execution IV., 3, &c. Cases of fraud. See, generally. Fraud. I. Of taking note or acceptance on account of promise to forbear — of payment other- I wise than in money — releasing and discharging one joint debtor — waiving par performance. II. Of usury — Of fraudulent sales— fraud generally— right of a creditor to take ad vantage of usury between debtor and prior creditor ; and, generally, as t( feigned issues. III. What papers make a mortgage. IV. Of application of payments. V. Of attachments against deposits of one acting as agent. VI. As to interest. VII. As to partnership creditors. VIIL As to securities for future advances. IX. As to dividends on assigned estate, and as to collaterals. TABLE OF TITLES. DEBTOR AND CREDITOR. X. As to fixtures. For other cases of fraud, as against creditors. See Fraud I. For other cases of usury. See Building Associations. For other cases. See Mortgage II. DECEDENTS' ESTATES. For Administration, Annuities, Donatio Mortis Causa, Dower, Trustees, Wills, Set-off. See those Titles. Finding of auditor conclusive until error is shown, and as to auditors generally. See Auditors. As to exemption, sale thereof by widow, &c. See Executions III. Promise of administrator to pay debt of decedent must be in writing. See Fraud III., 9. As to distribution among heirs of intestate. See, generally, Intestate. As to setting aside sales. See Orplians'' Court, 1, 22. As to distribution where partnershii^ creditors. See Partnership II., 9; III., 33, &c. As to where executor or administrator is or is not liable for profits. As to liability of estate of deceased surety of trustee. As to liability of trustees for invest- ments. See Trusts and Trustees III., 1, 2, 3, 15 ; V., 11. When a charge of a legacy is or is not implied on land. See WillsTV., 1, 9, 13, 25. As to apportioning dividends. See Wills VI., 34, 25. I. As to jurisdiction of Orphans' Courts and common law Courts— on claims of creditors — as to opening accounts — bills of review — and jurisdiction of Orphans' Courts generally — finality of Orphans' Courts decrees — and when the discre- tion of the Court can bo reviewed. II. Eights of admmistrators et al. to maintain trover, to bury deceased, to sell — their powers generally — liability of administrators, guardians et al., and their sureties, (of administratrix for devastavit of her husband,) and generally for what acts they are and are not chargeable. III. Of defences by heirs, administrators, devisees and widows, against claims, judgments, &c., due by decedent — how and when land chargeable with debt. IV. As to inheriting — distribution by agreement — what goes to the heir — support of minors, and sale of their land. V. Power of Orphans' Court to apportion income, to decree execution of contracts, to distribute partially, to order sales although part is mortgaged, and generally as to ordering sales, setting aside sales — of distribution among creditors et al. VI. As to advancements, gifts, releasing debts, and conversion. VII. Commissions — charging accountant with interest and expenses — allowing counsel fees. VIII. Collateral inheritance tax. IX. Of legacies — interest thereon — when vested. X. Of auditors. XI. What is discharged by sale in partition — right of purchaser to possession. XII. Right of husband and wife to administer — how it may be affected. DECEIT. Evidence in. See, generally, Emdence. Master not liable for servant's deceit. See Agent 4. DECLARATION In pleading. See Pleading, 2, 3, 9, 12, 20, 21, 32. DECLARATIONS Of husband. See, generally. Husband and Wife IV. Declarations are insufBcient to divest a right acquired. See Limitations I., 9. Declarations of surveyors. See Evidence IX., 3, 38. DECREE. Conclusiveness of Orphans' Court decree. See Orphans'' Court, 6, 14, 18, 21. xiv TABLE OF TITLES. DEEDS. As to deed and judgment same day. See Day. As to deeds obtained by fraud, impositions, &c., and as to fraudulent deeds. See, generally, Fraud. Laches in recording a deed, and thereby giving a false credit to husband. See Husband and Wife II., 13. As to mental unsoundness affecting deeds. See hnbeeility, 2, 3. Reservations, exceptions, (of coal, &o.,) uncertain deeds, and as to words creating a condition. See, generally. Land IX. and XII. If mortgage not recorded in mortgage book, it is unrecorded. See Mortgage IV., 3. As to -words "issue," "children," what words create a life-estate, and as to rule in Shelly's case. See Shelly. As to revocable deeds, and deeds to take effect after death. See Wills II. , 18. DEMAND For exemption. Vide Bxecution III. DEMURRER To evidence. Sea Practice VII., 7. To bill in equity. See Equity II. DESCRIPTION. DEVASTAVIT. See Decedents' Estates II. DEVISEE. Plea by, to sci. fa. See Decedents^ Estates III., 37. DIRECTOR. See Corporations. Directors de facto can hold an election. See Quo Warranto, 3. DISCLAIMER. See Ejectment II., 3, 7, 30, 34. DISCOVERTURE. When it entitles to a reconveyance. See Trusts V. DISCRETION Of school directors not reviewable. See Scliools V. Reviewing discretion of Orphans' Courts. ^See Decedents'' Estates L, 3 ; and see Orphans^ Court. DISFRANCHISEMENT. See Corporations IV., 35, 86, &c. DISMISSAL OF SERVANT Before term expires. See Co7itract I., 3. DISTILLED SPIRITS. See, generally. Inspections. DISTRESS. See, generally. Landlord and Tenant. Distress for dower. See Dower, 13, 14. DISTRIBUTION. Under sheriff's sale. See Execution VIII. Of decedents' estates. See Decedents^ Estates V. DIVIDED COURT. See Practice VII., 3. DIVIDEND. To creditor of assigned estate. See Debtor and Creditor IX. To creditor of decedent's estate. See Decedents'' Estates V. Fraudulent dividend. See Corporations V., 34. A dividend devised is not apportionable. See Wills VI., 24, 35. DIVISION OF THE COURT. See Practice VII., 3. DIVORCE. Defendant estopped from appealing by claiming under the decree. See Estoppel, 1,8. DOMAIN, EMINENT. Lee Land XIIL DOMESTIC SPIRITS. See Inspection. DOMICIL. DONATIO MORTIS CAUSA. DOWER. Where devises affect dower. See Wills VI., 36. Dividends not apportionable. See Wills VI., 24, 25. TABLE OF TITLES. xv DRAIN. Draining water on to another's ground is actionable. See Water, 3. DRUNKARD. Sale of liquor to. See Innkeeper, 1, 3, 3. DRUNKENNESS As reducing grade of murder. See Grimes, 13. DRUNKEN PASSENGER May be removed. See Crimes, 13. EASEMENT. EJECTMENT. Reconveyance necessary in order to rescind. See Contract IX., 1, 3. Costs upon conditional verdict. See Costs, 3. As to words creating conditions; as to what will and will not work forfeiture. See Land XII. Will not lie against a public corporation taking land, because the execution is re- turned nulla bona. See Land VIII., 8. Between landlord and tenant. See Landlord and Tenant, 10. As to sufficiency of ouster. See Limitations I. Original will need not be produced in ejectment. See Wills III., 5. I. "Where, by whom, and for what ejectment will lie — of equitable ejectments — specific performance of contracts for sale of land — of conditional verdicts — of ejectments by mortgagee, execiitor, &c. II. Of the proceedings in ejectment — good without narr. — of the prsecipe — what the plaintiff must show — of the defence — as to disclaimer — evidence in eject- ments — authority of attorney to confess judgment. III. As to former verdicts — establishing their certainty by evidence — their con- clusiveness — effect of recovery in trespass — certainty of description in judg- ment. IV. Of the haberi — of restitution. ELECTION AND ELECTIONS. Courts can restrain a body of councils illegally organized. See Equity I., 44. But injunction refused on a forged return. See Equity I., 9, and see below. Managers are to fix place of election where charter and by-laws silent. See Quo Warranto, 4. Courts cannot try contested elections of councilmen. See Quo Warranto, 1. A legatee is not estopped from denying that he is debtor to the testator as alleged in the will. See Wills VI., 53. EMBEZZLEMENT. See Crimes, §§ 17, 40. EMINENT DOMAIN. See Land XIII. EMPLOYEE. Dismissal of, before term expires. See Contract I. , 3. ENDORSEMENT. Of approval of assignment on policy. See Insurance III., 19. ENDORSER. See, generally. Bills of Exchaiige and Promissory Notes I. ENGLISH. Notice must be in English. See Roads, 19. ENGINEER. Estimates of, not conclusive unless the contract says they shall be final. See Con- iractXn., 4, &c. Not liable to indictment for obstructing highways. See Railroads II., 30. ENTRIES, BOOK OF. See Emdenee VI., 15, 16, 33, 34, 35, 27, 38, 3.j. ENTRY. By landlord. See Landlord and Tenant. EQUITABLE EJECTMENT. See Ejectment I. EQUITABLE SUBSTITUTION. See Equity I., 1, &c. xvi TABLE OF TITLES. EQUITY. Tbe jurisdiction first attaching slioukl decide tlie case. See Courts, § 10. As to constitutional objection to Acts of Assembly. See, generally, Gonatitutic Law. As to liability of married executrix for her husband's devastavit. See Decede Estates 11., 1. As to ejectments to enforce specific performance, and as to conditional verdi See, generally. Ejectment I. Specific performance involving construction of will. See Wills. Other cases of specific performance. See Specific Performance. As to putting purchaser in possession. See Vendor and Vendee II., 2, &c. As to trusts resulting and otherwise. See Trusts. As to dismissing bill after verdict in feigned issue. See Practice yill., 1. As to limitations in equity. See Limitations. As to equity jurisdiction of Supreme Court. See Courts, §g 3, 10. I. When, for what, and by wjiom, a bill will lie and will not lie — what are and w are not proper cases for injunctions — as to dissolving injunctions — as to receivi II. As to the bill and demurrers. III. As to the answer and replication. IV. As to referring a case — the master's fees — costs. ERRORS AND APPEALS. As to judgments for want of sufiicient affidavit of defence. See, generally, i davit of Defence. As to certioraris, thfeir effect, and when parol evidence is admissible on heari See, generally, Certiorari. As to making up bills of exceptions. See Courts, 15, 16, 17, 18, and Practice W 4, 5, 6, 9, 10, 15, 16. As to error in admission of evidence of witnesses. See, generally. Evidence. As to error in the matter of challenges to jurors in civil cases. See Jury 2, 3, 4. I. As to reversing for admitting or rejecting evidence. II. As to charges upon questions of damages from death. III. Charges as to other questions of damages. IV. Points for charge and charges as to negligence, fraud, and generally, except to questions of damage which are classified above — when Court may omit charge — when questions are for the Court — when for the jury. V. To what a writ of error, appeal and certiorari loill and will not lie — who can it out — presumptions in favor of auditors' reports and decrees of Courts — of b of exceptions — of affirming part of a judgment — of restitution. VI. As to paying costs on appeal — the praecipe for writ of error — other prelimi ries— appeal by one defendant — withdrawing appeal — quashing — as to assi ments of error — when a party is barred from appealing — as to paper books. VII. Writs of error in criminal cases. VIII. As to magistrates' judgments — as to error in form of action — as to notice quit. IX. When writ of error is supersedeas. X. Judgment will not be reversed for immaterial matters — practice of Court as voting on assignment of errors. ESTATES TAIL. ESTIMATES. ESTOPPEL. By omitting to object to defect in writ or narr. See Pleading, 16, 23, 34. By verdict in ejectment, generally. See Ejectment III. By judgment in other cases, generally. See Former Recovery. If a miner say certain water will not damage, he cannot sue for loss in ] removing it. See Land IX., 4. TABLE OF TITLES. xvii ESTOPPEL. Insurance companies estopped from alleging forfeiture by subsequent receipt of premium. See Insurance II., 14. A legacy does not estop a legatee from denying the assertion in another part of the will that he is debtor to testator. See Wills VI., 53. ESTREPEMENT. EVICTION. See Landlord and Tenant, 6. EVIDENCE. Promise to pay for board, wages, «&c., as between relations. See, generally, Contracts III. Declarations and acts of husband. See Husband and Wife IV. Evidence in ejectment between vendor and vendee. See Ejectment I., II. Evidence in ejectment by husband's creditors against wife. See Husband and Wife II. Admitting title to land in replevin. See Land V., 1. Proof of title to boundaries. See Land V., 3 ; I., &c. Demurrer to evidence. See Practice VII. Evidence in claims for road and railroad damages. See 'Railroads I., and Roads. Evidence of nuncupative wills. See Wills V., 4. Conclusiveness of probate. See Wills III., 4, 5. I. Of 'commissions, depositions, notices as to taking and filing. II. Of the examination of witnesses — opinions as to sanity — as to character — as, to undue influence — as to values — as to handwriting — as to experts — refreshing memory — cross-examination — rebuttal. III. When and what witnesses competent and incompetent — how made competent. IV. How witnesses to be attacked. V. Of declarations and acts, deeds, and depositions of parties — of husband and wife ■ — of owner — of co-conspirator — of a witness — of partner et al. VI. Of books of original entries— of charters, deeds, ancient papers — sheriff's returns — notaries' certificates — of records and transcripts — lost parts thereof — explaining records. VII. Of evidence in cases of fraud — of slander — of conspiracy — of forgery — of mis- takes — of lunacy. VIII. Of evidence as to wills. IX. Of evidence in land cases not embraced in the foregoing classifications. X. Of evidence in partnership cases and cases of joint liability not embraced in the foregoing classifications. XI. Of evidence in insurance cases not embraced in the foregoing classifications. XII. Of evidence in cases on notes, and against sureties, not included in the fore- going classifications. XIII. Of evidence in criminal cases not included in the foregoing classifications. XIV. Of evidence in cases against stockholders. XV. When evidence for the Court and when for the jury. XVI. As to invalidating wife's acknowledgment. XVII. Of evidence to atfect judgments, surveys— of parol evidence of contents of writing, to explain writings — of construction of different instruments — of notices by parol, and notices generally. XVIII. Of evidence on questions of damages — of readiness to perform, &c. XIX. Of effect of prima facie evidence — of immaterial and harmless admissions and rejections of evidence. XX. Of customs, pi'esumptions (of death, payment, agency, marriage) — what admissible without notice — of bond where signature not denied by alfldaviti. (though unstamped) — bills of lading, and other matters. EXAMINATION OP WITNESSES. Qee Evidence l\. EXCEPTION OF COAL OUT OF GRANT. SeeiancZIX. EXCEPTIONS, BILLS OP. See Practice VII. xviii TABLE OF TITLES. EXECUTED AND EXECUTORY AGREEMENTS. See, generally, Vendor an Vendee IV. EXECUTION. Effecl of attacliment. See Attachment, 6. Officers' fees not attachable. See Ibid. 7. Municipal bonds can be attached. See JMd. 28. Eifect of collusion between execution plaintiff and defendant, and collusion 1 prevent bidding. See Attachment, 14, 15. Of controlling execution because of notes given. See Debtor and Creditor I., 1! Commissions of an executor cannot be attached. See Decedents' Bstnte^Yll., 1 Of restitution. See Errors and Appeals V., 31. Bjectment IV., 1, 3. An execution creditor will be restrained from selling fixtures severed in fraud i first lien creditor. See Equity I., 38. Creditor's bill to restrain execution of another creditor. See Equity I., 13, Tl. Lumping and fraudulent sales and deeds, and fraudulent judgments. See Fraud Goods and property earned by, given to, or bought by a wife. See Husband av Wife II. A railroad passes as an appurtenance. See Land XVII., 3. Lien of testatum is gone when it is struck off. See Land XL, 3. Landlord's right to proceeds. See Landlord, 11, 13, 15. Distribution between partnership and separate creditors. See Partnership II., 9, &c. Liability of sheriff for proceeds, &c., and for goods stolen. See Sheriff, 1, 4, & Sheriff may bring trover. See Sheriff, 3, 16, 17. Sheriff may leave goods with defendant until sale. See Sheriff, 17. Attaching trust moneys. See Trusts V., 3, 8, 9. I. Of the levy — stock may be levied on. II. Of exemption against partners, and against one partner. III. Of the exemption of a defendant and of a widow — claiming, waiving, allowin, rejecting, and assigning it — suits for refusing it. IV. Of staying, superseding, postponing, delaying executions. V. Of executions against life-estates and corporations— what a sheriff's sale di charges — when it is void — when sequestration necessary — when a sale is n satisfaction. VI. Of claims by thij-d parties, and sheriff's interpleaders— suits on interplead bonds. VII. Of fraudulent transfers by debtors— of lumping sales by sheriff. VIII. Of confession of judgments, when void, and when good as to other ere itors— of distribution of proceeds (other than in partnership cases, which a noted in II.) — claims of wages — issues. EXECUTORS AND ADMINISTRATORS, GENERALLY. See Decedents' Estait When they are not liable for profits. See Trusts III. EXEMPLIFICATION. As to exemplification of an exemplification. See Land XX. , 8. EXEMPTION. See Execution III. EXPECTANCY. Mortgage of See Mortgage I. Mortgage of wife's expectancy. See Husband and Wife III., 3, 3. EXPERTS. See, generally, Evidence II., 1, 3, 4, 5, 7, 10, 13, 16. EXTINGUISIBIENT. Of ground-rent. See Oround-Bent. FACTORS. FATHER. FEES. FEIGNED ■ ISSUES. See Debtor md Creditor II. Execution VIII. TABLE OF TITLES. xix FEME COVEKT. Administration by husband and wife. See Decedents^ Estates XII. Liability of wife for lier husband's devastavit. See Decedents^ SstatesU., 1. Practice in divorce. Effect of divorce. See Divorrfi. Charge as to damages for loss of liusband. See Errors and Appeals II., 3. Statement of husband or wife, when evidence against the other. See EvidencelY. For gifts to, or purchases by wife. For fraud on marital rights. See Jliishand and Wife. Wife's share in partition. See Partition, 4, 9, 10. Wlien trust for feme covert ceases on discoverture. See Trusts V. FENCES. FIRE. As to insurance. See Insurance. FIXTURES. May be covered by a mortgage. See Mortgage 1. FOREIGN ATTACHMENT. FORFEITURE. As to wliat will or will not work a forfeiture. See Zand IX. and XII. Breach of condition in will. See Wills IV., &c. Of lease. See Land IX. and XII. FORGERY. Defence of endorser. See Bills of Exchange and Promissory Notes I., 1, 3, 16. Alteration of ground-rent deed destroys right of distress. See Ground-Rent, 7. FORMER RECOVERT. FRAUD, FRAUDS AND PERJURIES. Collusion to prevent bidding. See Aitachmeni, 15. Reconveya.nce must be tendered— what contracts void and voidable — fraud may be ratified, may be waived and assumpsit brought — one defrauded is charged with care of property. See Contracts VI., IX., 1, 2, 5. Fraudulent dividends. See Corporations'-^ ., 24, 51. Defendant not liable for statements honestly believed to be true, nor for thought- less suppression. See Deceit, 1. Fraud of trustees or others with trustees. See Equity I., 94 ; and Trustees. Evidence upon trial of fraud. See Evidence VII. Holding by wife against her husband's creditors. See Hushandand Wife II. Fraud on marital rights. See Husband and Wife VI. Rescission of articles by parol. See Husband and Wife II., 3, 3. Vendor and Vendee III. and IV. Fraudon wife'spower 1o alienor mortgage. See Husband and Wife III. What will or will not affect a policy. See Insurance. Fraud in obtaining wife's acknowledgment. See Justices, 13, 13. Concealment of outstanding title is a fraud upon the purchaser. See Zand VII., 6, 7, 8. Fraudulent removal by tenant. See Zandlord and Tenant, 10. Allegations of fraud will not excuse councilmen from meeting as required by law. See Mandamus, 4. Allegations of fraud will not give Courts jurisdiction to try a contested election where a remedy is given elsewhere. See Quo Warranto, 1. I. Of fraud against creditors by sales, gifts, transfers, conveyances, bonds, judg- ments, severance of fixtures — assignment of policy of bona fide purchasers — purchase as agent. II. Of parol sales and partitions of land — recital of articles— agreement to fence. III. Of parol promises to pay the debt of another — parol acceptance — parol release. IV. Of fraud against the vendor, endorser, covenantor, maker — imbecility— confi- dential relation — alteration — fraudulent recovery — tampering with agent. V. Cases of trust — fraud binds the party. XX TABLE OF TITLES. FREIGHT. As to local freight. See Oorporaiions IV. , 30, 30, 38, 39, 50. Agreement by vendee to advance freights. See Vendor and Vendee II., 3. FUTURE ADVANCES. 3Iortgage for future advances postponed as to advances made after a judgment See Mortgage I., 3. Other cases. See Debtor and Creditor IX. GARNISHEE. See Attachment. GERMAN. Notices cannot be in German papers unless expressly so directed. See Moads, 19 GOD. Act of, excusing carrier. See Carrier, 1, 2. GOVERNOR. Effect of his commission upon, a contested election, and effect of a certiorari upoi the Governor's commission. See Election, 10, 11, 13, 31. " GRANT, BARGAIN AND SELL." See Land IV., 8. GROOM. Subrogation of. Vide Lien, 6. GROUND-RENT. GUARANTEE AND GUARANTOR. Parol promises to pay debt of another. See, generally. Frauds III. Partner cannot hind firm by guarantee unless it is authorized or adopted. See Partner III., 7. As to liability of surety, &c. See Surety. GUARDIAN. When chargeable with interest, costs, &c. ; when to be allowed counsel fees anc commissions generally. See Decedents' Estates VII. Bond cannot be cancelled while trust rpmains. See Orplians^ Court, 7. HABEAS CORPUS. HANDWRITING. Evidence as to. See, generally. Evidence II. HEIR. Plea by, to sci. fa. See, generally, Decedents^ Estates III. HEREDITAMENTS. Corporeal and incorporeal as to mines, &c. See Land IX. HIGHWAYS. A contractor can be indicted for not repairing. See Crimes, 16. Indictment will not lie against engineer for obstructing highway. See Railroad; II., 80 ; and, generally, Roads. HIRING. See Bailment, 3, 4, 5. HOME. See Domicil 1. HOMICIDE. See Crimes, 7, 11, 13, 13, 14, 25, 36. 38, 39, 30, 31, 33, 33, 34, 36, 37, 38 39. HORSE. Sale of stolen horse for keep passes no title. See Lien, 1. Groom entitled to lien on horse for feed, &c. See Lien, 6. HOTEL-KEEPER. Sale to inebriate. See LnnJceeper, 1, 3, 3. Sale of horse. See Lien, 1. HUSBAND AND WIFE. Administration by husband and wife, and how the right thereto may be affected See Decedents' Estates XII., 1, 3. Liability of wife for her husband's devastavit. See Decedents' Estates II. 1. Practice in and effect of divorce. See, generally, Divorce. Dower. See, generally, Dower. TABLE OF TITLES. xxi HUSBAND AND WIFE. As to charge defining measure of damage for loss of husband. See Errors and Appeals II., 3. Admission of statements of husband or wife against the otlier. See, generally, Evidence IV. ; and see this title IV. Fraud in obtaining wife's acknowledginent. See JuMiees, 13, 13. Notice of mortgage given to husband acting for wife is notice to wife. See Mort- gage IV., 7. As to share of wife in partition. See Partition, 9, 10. When trust for feme covert ceases on discoverture. See Trusts V. I. Of validity of marriage — proof of marriage — effect of deed to husband and wife — agency — deeds of separation. II. Contests between the wife and creditors of her husband. III. Bonds, contracts, judgments, revivals of judgments, and mortgages — of mar- ried women — liability for consideration of a conveyance — liability for torts, for taxation, for necessaries — husband must be joined as co-defendant. IV. Declarations of husband. V. Claims of wife and others against her liusband, or his estate, and claims by her against others (innkeepers, insurers and tort-feasors), claims by him against her estate —curtesy. VI. Fraud on marital rights. IMBECILITY, INSANITY, MENTAL UNSOUNDNESS AND LUNACY. IMPLIED COVENANTS To discharge encumbrances. See, generally, Zand IV. IMPRISONMENT FOR DEBT. INADEQUACY, Gross, of consideration. See Equity I., 6. INCEST. INCOME. Meaning of, in wills. See Wills V., 31. INDEMNITY. Judgment for future liabilities. See, generally. Debtor and Creditor VIII. Bond of, as to title. See Land IV., 4. INDICTMENT. See, generally. Criminal Law. Don't lie against an engineer obstructing a highway. See Railroads II., 30. INDIVIDUAL LIABILITY OF STOCKHOLDERS. See, generally. Corporations V. INEBRIATE. Selling liquor to. See Innkeeper, 1, 2, 8. INFANT. Right of administrators to pay for necessaries at request of infants. See Decedents'' Estates II., 3. INHABITANT. INJUNCTION. See, generally, Equity I. Powers of Supreme Court to grant. See Courts, 3. Damages on injunction bond. See Damages, 17. INN— INNKEEPER. Sale of stolen horse passes no title. See Lien, 1. INSANITY. See Imbecility. INSOLVENCY AND INSOLVENT. INSPECTIONS. INSURANCE. Liability of carriers. See, generally, Carriers. Stockholder in company not liable on mortgage given to cover losses, and assigned without his consent. See Mortgage V., 4. I. As to the policy — construction of policies generally, and of different clauses therein (except as to notices) — transfers of part of stock — extension — alteration sxii TABLE OF TITLES. INSURANCE. II. As to clauses requiring notices, and as to the service of notices and preliminar; proofs — the sufficiency of notices — waiver. III. Misconduct, concealment, falseliood, &c., of insured, hefore and after th policy — conditions, covenants and warranties — assignment of policies — ratifica tions. IV. Of levies upon property insured. V. Of losses occasioned by the rebellion, and cases thereunder. VI. Of insurance by a vendor — the remedy on a policy — immaterial defences — doubl insurance — attaching insurance moneys. VII. As to the agents of insvri'anoe companies. INTEREST. Against garnishees. See Attachment, 2, 3. Usury of building associations. See Building Associations, 2, 3. Interest chargeable against an attorney on costs collected by him. See Costs, 7. Usury in other cases. See, generally. Debtor and Creditor II. Against guardians et al. See, generally. Decedents^ Estates VII. Interest on legacies. See, generally, Decedents' Estates IX. Interest stops on purchase money after tender and refusal. See Ejectment I., 30. Interest of witness. See, generally, Eoidence III. On road damages. See Boads and Streets, 11. " Capital" charged in will against legatee does not carry interest. See Wills VI 54, 55. INTERPLEADER. Sheriff's interpleader. See, generally, Execution VI. INTESTATES. brother's interest in estate of her illegitimate child. See Bastard, 1, 2. Mother's interest, she not being of the blood of the ancestor. See Decedent. EstateslY., 1. INTRUSION. INVESTMENTS BY A TRUSTEE. See Trusts III. and IV. INVOLUNTARY MANSLAUGHTER. See Grimes, 26, 33, 34. ISSUE. Effect of birth of issue upon will. See Wills II. Should be awarded on execution if fact material and asked for in lime, and aware ing of, generally, upon proceeds of sheriff's sales. See, generally. Execution VII •TAIL. JOINDER, NON-JOINDER AND MIS-JOINDER. In civil suits. See Abatement, 7 ; and Husband and Wife III. In criminal cases. See Criminal Law, 33, 34, 3.5, 3C, 47, 48, 49. Of counts in civil cases. See, generally. Pleading. JOINT TENANCY. See Land XV., 1. JUDGMENT. For want of suflBcient affidavit. See, generally. Affidavits of Defence. Colluding to prevent bidding at sheriff's sale. See Attachment, 14, 15. Judgment against the corporation conclusive against the stockholders. See Co porations V., 13. Judgment against corporations, and proceedings thereon. Vide, generally, Co porations II., III. Judgment for damages for taking land is entitled to priority over a mortgage givi after the land was taken and before the damages were ascertained. See Corp rations III., 5. Tender of judgment to save costs. Vide Costs, 10. Power of Courts to satisfy or strike-off. Vide Courts, 1. Conflict between judgment and deed. Vide Way, 1. Court will control judgment for payment, &c. See Debtor and Creditor I., 13. TABLE OF TITLES. JUDGMENT. To secure future advances and liabilities. See, generally, Debtor and Creditor VIII. When note will discliarge judgment. See Debtor and Creditor I., 1, 3, 13, 13, 14, 16. Error does lie to refusal to open a judgment. See JSrrora and Appeals V., 19. Of binding interest of slierifTs vendee, of setting off judgment against judi^ment, ■what discharged by sheriff's sale. See, generally. Execution. Fraudulently confessed. See Fraud I. Lien of Commonwealth's judgment not to be preferred. See Lien, 2, 3. Of renewing notes under a mortgage to secure future discounts. See Mortgage I., 8,4. Conclusiveness of judgment of Orphans' Court. See Orphans' Court, 3, 4, 5, 6, 12, 14, 18, 21. Of other Courts. See Courts. Judgment for want of a plea is a lien before damages assessed. See Practice V., 2, 3, 4. What can be claimed on issue after opening judgment. See Practice Y. I. As to mis-spelling and variance in name of defendant. II. As to alienation of different properties bound by one judgment — as to judgment confessed for more than is due — judgment confessed in ejectment- — warrant not filed, &c. III. As to judgments against partners — judgments confessed by one partner. IV. Of the lien of a judgment, what it protects, what interest it binds — of the notice from recording of tlie sheriff's deed — judgment valid as to strangers, though void inter partes — judgments on same day — ^judgment to secure future advances. V. Of the sci. fa. — lien — of revived judgment — interest of heirs — defences to sci. fa. VI. Of judgments for purchase money — ^judgments on exemplifications — liability of plaintiff who fails to satisfy judgment. VII. Of setting off damages against a judgment, and judgment against judgment. VIII. Of distribution — of opening and refusing to open judgment — of assigning judgments. JURISDICTION As affected by repeal of a law. Jurisdiction first attaching should decide, and, generally, see Courts. JURY. If defendant has his challenges, presumption is he was present. See Criminal Law, 32. Record need, not show defendant had opportunity to poll jury. See Criminal Law, 31. Constitutionality of laws for collecting of municipal claims without jury trial. See Constitutional Law, 49, 50, 51, 52. As to taking verdict after adjournment. See Practice VII., 17. JUSTICES. As to reversing judgments on parol evidence. See Certiorari, 6. Reversing generally. See Errors and Appeals VIII. As to tender of judgment to save costs. See Costs, 1, 10. Cannot set off judgment before another justice. See Judgment VII., 4. Surety of justice liable for money collected, though not by suit. See Surety, 1. KEEP. Sale of stolen horse for keep passes no title. See Lien, 1. KEEPER OF JAIL. LABORERS. Distribution of sheriff's sales to pay wages. See Execution VIII., 6, &c. LAND. Appointment under deeds. See Appointment, 1. xxiv TABLE OF TITLES. LAND. Reconveyance necessary to rescind. Vide Contract IX., 1, 3. Where contribution to be made for encumbrances. See Contributions, 1, 3, 3, 4. Damages for taking land by a corporation are the first lien. See Corporations III., 5. State not liable for consequential damages. See Damages, 1, 2, 9, 1.5. For damages from overflow and for dravying off water. See Daraages, 3, 3, 13, 14, 15. When agreement merged in deed. See Deed, 3. A way becomes an easen^ent by dedication \>j pere dufamille. Bee Basement, 3. An alley cannot be closed if another lot has easement. See Easement, 1. Ejectment by tenant in common. See Ejectment I., 11, 18, 89, 40. As to conditional verdict. See Ejectment I., 3, 3, 4, 13, 14, 30, 31, 33, 34, 35, 38, 40. Eestraint on alienation not to be set up by one whose title has been sold by thie law. See Ejectment II., 13. As to second verdict in ejectment. See, generally, EjectmentHl. As to evidence in ejectment of surveys and boundaries. See Ejectment II., and see, generally, Evidence. Distribution after sheriff's sale. See Execution II. and VIII. For fraud against co-purchasers. See Fraud V., C, 7, 8, 9, 10, 11. As to sales fraudulent against creditors. See, generally, Fraud I. For parol sales and partitions. See, generally. Frauds and Perjuries II. Effect of laches in recording deeds and giving false credit to husband, and con- tests between his creditors and his wife. See, generally, Husiand and Wife II. As to mental unsoundness. See Imbecility, 1, 3, 3. Reviving judgments, &c. See Judgment V. As to ouster, adverse process, two j'ears, &c. See Limitations I. Rent is not a lien upon land. See Mortgage V., 33 ; VI., 4. Leasehold mortgages not discharged by sale because of prior liens of rent. See Mortgage I., 9. When machinery not real estate. See Mortgage I., 6 ; and see Real Estate, 1, 2, 3, 4, 5. For damages from opening roads, railroads, &c. See Roads, and also Railroads. As to words " issue " and " children," when a life-estate passes, when a fee vests and rule in, Shelly^s case. See Shelly. Tax sales of lands. See Taxes. Purchase by a parent in name of child is not a trust, but a gift. See Trusts I. , 3, 5, 6. Trusts as to land. See Trusts. As to rescission of article of agreement. N\work done " outside of the contract," (after the completion of the v?ork named in the con- tract and after it had been laken off the contractor's hands,) the engineer has no jurisdiction. O'Reilley v. Kerns, 2 P. F. Smith, 214. XIII. Contracts by officers, and other MATTERS pertaining TO CONTRACTS. 1. A contract to furnish boards cannot be charged by superficial measurement, because the architect's statement referred to a number of superficial feet required. Per Graham, P. J., afSrmed. School v. Potter, 7 Wr. 139. 2. An agreement to allow a certain dam to be built must be referred to one to be built within a reasonable time. Lane v. Mumma, 7 Wr. 267. 3. Neither acquiescence of directors nor the signature of their president will bind a school district to an agreement which the law requires to be entered upon their minutes. Cascade v. Lewis, 7 Wr. 318. 4. Declarations of several managers, not made at the board, cannot affect a contract of their corporation. Turnpike Road V. Craver, 9 Wr. 386. 5. One who is bound to pay for a building cannot escape by notifying the other party not to put it up. McVicker V. Dennison, 9 Wr. 390. 6. An agreement to pay "as soon as all shall have been delivered" requires that the party enforcing the performance shall tender or offer performance when he demands performance. The purchaser suing for a breach must show an offer of payment and readiness and willingness to pay on delivery. Keeler v. Schmeriz, 10 Wr. 135. 7. An agreement to cut another's wood, and to deliver the owner one-half — the balance being the contractor's compensa- tion — does not make him joint owner of the wood cut, and he can be sued in trespass for removing it. Trout v. Kennedy, 11 Wr. 387. 8. A contract to tan hides and return the leather gives the contractor no prop- erty therein, and if he remove it to an un- usual place, replevin will lie. -Lee v. Gould, 11 Fr. 398. 9. Prevention of performance is a bar to damages for non-performance. Wilson V. Croioell, 12 Wr. 58. 10. Where a vendor's sawing is to be done "two weeks about with the other logs," this does not mean two weeks in every four, but two weeks in turn with other customers. Wilson v. Crowell, 12 Wr. 58. 11. It is no defence that the contract and claim under it have been assigned to one who is not named on the record to use, &c. llemphis R. R. Co. y. Wilson, 12 Wr. 161. 12. A contractor released by supple- CON 85 CON mental contracts from the work is to be paid according to the supplemental contract. It is no defence that he was dismissed under the first contract, or that finishing his work cost more than his first contract price. Ibid. 13. Neither tender, nor offer to pay, -can be required as proof of readiness to paj"-, where an article is deliverable in lots uncertain as to time and quantity, and where inspection is a prerequisite. Per Agnew, J. Nortfi American Oil Co. v. Forsyth, 12 Wr. 291. 14. Where mutual acts are to be per- formed, a party cannot recover without showing his own readiness to perform. But where a defendant has contracted to deliver upon a certain boat, and is to be paid on such delivery, it is his duty to notify the plaintiff when he is ready to perform, and if, failing in this, he sell the article elsewhere, he is liable without proof of tender. Gullum v. Wagstaff, 12 Wr. 300. 15. A contract for delivery 6f a cer- tain quantity of merchandise must be strictly complied with. The purchaser is not bound to accept a larger quantity. Stevenson v. Bur gin, 13 Wr. 86. 16. An agreement to pay expenses of organizing a new company includes coun- sel fees. B. B. Go. v. Titus, 13 Wr. 2TY. I'l. An agent contracting as principal is liable. Whitcomb v. Kephart, 14 Wr. 85. 18. A contract for so many barrels of liquid means the statutory number of gallons to a barrel, but where the barrels of the defendants are to be filled, the con- tract will apply to them. Forsyth v. Oil Co., 3 P. F. Smith, 168. 19. A plaintiff is not bound to show that" he was ready and willing to accept merchandise which the defendant has agreed to deliver. Shreve v. Brereton, 1 P. F. Smith, 17Y. 20. We are bound "in $10,000, not as a penalty, but as liquidated damages," construed to be a penalty, and the plain- tiff allowed to recover more, because the contract was for delivery of merchandise by instalments, and contained an agree- ment that, in case of default, the pur- chasers were " to be at liberty to buy the deficiency at market prices and charge the difference." Ibid. 21. A lease of surplus water does not impose on the lessor the obligation to supply any water or to maintain the works. Com. v. Penn. B. B. Go,, 1 P. F. Smith, 351. 22. A contract by a tenant to build without specifying when, means before the expiration of the term. Palethorp v. Bergner, 2 P. F. Smith, 149. Mere declarations by a party that he will not keep his contract are not grounds for ac- tion until actual breach. Ibid. 23. A letter written proposing a change in a contract which is unan- swered and unaccepted cannot be relied on to vary the contract. GolH.ns v. Baumgardner, 2 P. F. Smith, 461. 24. A contemporaneous parol contract cannot be set up to vary or contradict a written contract. Ibid. 25. A receipt for notes containing an agreement to transfer a judgment upon full payment of the notes, is only a con- tract to sell, not a sale. Conley^s Ap- peal. Ensworth and Moore'' s Appeal, 2 P. F. Smith, 465. 26. The offer of a reward for the re- covery of stolen property, though directed to the sheriff alone, is a general offer, and binds the offerer to any person capturing the property. Cummings v. Gann, 2 P. F. Smith, 484. 27. A special contract that goods left shall be called for within a year, and shall only be delivered on return of the tickets, binds the owner. Lance v. Griner, 3 P. F. Smith, 204. 28. A proposition made and accepted where no expectation of contracting ex- ists, should be carefully weighed when sued on as a contract. Brown v. Finney, 3 P. F. Smith, 3Y3. 29. It is error to treat such a conversa- tion as a contract : the question of con- tract should be left to the jury. Ibid. 30. If all the terms are not finally ar- ranged, and the entire contract is to be re- duced to writing at a future time, which is not done, there is no contract. Ibid. 31. A party has the right to stipulate that certain terms shall not be binding until put in writing. Ibid. 32. If a defendant is prevented from fulfilling a contract by a flood, which destroyed the only road for delivery, he is excused during the prevention, but no longer. Lovering v. Buck Mt. Goal Go., 4 P. F. Smith, 291. One mouth's delay held to be reasonable. Ibid. 33. If the contract stipulate that tie CON 36 COR purchaser shall pay, in addition to the contract price, "any advance on freight," tiie seller has the right to insist upon the advancp, although there was a delay occa- sioned by the " act of God," and an offer to fiirnisti in this manner refused by the purchaser bars his right to recover dam- ages for non-delivery. Ibid. CONTRIBUTION. Of alienation of different properties bound by same judgment. See Judgment II., 1. 1. Where a portion of land bound by a mortgage is sold to pay the lien on the whole, the owner of the part sold is prima facie entitled to contribution from the owner of the part unsold. Beddow v. De- UHtt, 1 Wr. 326. 2. His right to this contribution is not affected by the fact that his deed is subse- quent to the defendant's, if the defendant has not paid all the purchase money, for to the extent of that non-payment the de- fondant cannot defend upon the principle of equity, which charges lands in the hands of successive grantees with the payment of a common encumbrance in the inverse order of the conveyances. Ibid. 3. Nor is the plaintitf in such a case to be defeated (although he is a subse- quent grantee) because the defendant's unpaid purchase money has been secured by a mortgage which has been assigned, especially where the assignment was for benefit of creditors, was not recorded, and the assignee was not a holder for value. Ibid. 4. Nor is it a defence in such a case, that the plaintiff had agreed to pay off the lien, if the land was encumbered be- yond the amount represented. Ibid. CONYERSION IN WILLS. See, generally. Wills IV. CONVEYANCE. See Contract IX. When reconveyance necessary to rescind. Reconveyance not necessary in order to defend for usury. See Debtor and Creditor II., 13, 15. CORONER. On sheriff's death coroner controls his deiiosits. See Sheriff, 9. An inquest is criminal process, and can be held on ground over which the State has ceded her jurisdiction to the United States, reserving right to serve civil and criminal process. The county is liable for costs of such an inquest. County v. McGlung, 3 P. F. Smith, 482. CORPORATIONS. Assignments by. See, generally, Assignments. As to Commonwealth's lien for taxes on dividends, as to liability for tax on fraudu- lent dividends, and as to lien on stock, as to right of noteholders to priority, See, generally. Banks. Liability of carriers. See, generally, Carriers. A body illegally organized can be re- strained. See Equity I., 44, 45. But a bill will not lie to restrain an anticipated intrusion. See Equity I., 10. As to liability for taking land. Vide Railroads I. ; and, generally, Eoads ; and, generally. Land VIII. As to restoration and requirement of a return to a mandamus. ■* See Mandamus, 9, 10, IT, 18, 19. Cannot assign a mortgage given to cover loss without assent of mortgagor. Vide Mortgage V , 4. Service of summons on. See Practice I., 2. Power or charter cannot be attacked collaterally. See Pleading, 6. County officers cannot advertise in more papers than authorized by law. See Philadelj^hia, 5. Managers de facto can hold elections. See Quo War7-anto, 3, 4. Must repair bridges and roads thej^ occupy, ^ee Railroads IIL, and, generally. Roads. As to connecting railroads, renewing railroads, and as to negligence of rail- roads. See, generally, Railroads I., II., III. COR 37 COE As to distribution of stock.^ See Stock, 1. As to sureties of oEBcers. See, generally, Surety. Bequests to religious corporations. See Wills III., 3, Y, 10,' 12, 13. Bridge companies not liable for dam- ages occasioned by piers authorized by law. See Water, 12, 13. I. Taxation and exemption from taxa- tion. II. Liability of corporations, municipal and others, including cities, rail- roads and bridge companies, for damages. III. Remedy against corporations for collection of debts, damages, &c. What property cannot be sold, &c. IV. Construction of charters — powers and obligations of officers and of the corporation — (right to lease — pass ordinances, to expel — lia- bility to repair — liability of coun- ties for support of convicts, &c.) V. Rights and liabilities of subscribers, stockholders and directors — lien on stock — power to issue stock. VI. Authority to corporations to sub- scribe for stock, to give bonds — liability on bonds, coupons, &c. VII. As to rights of majority and mi- nority in all corporations, and as to divisions in religious corpora- tions. VIII. The existence of charter, its for- feiture, &c., can only be ques- tioned by the State — as to for- feitures, pleadings and defences on quo warranto — dissolution, &c. I. Taxation and exemption erom taxa- tion. 1. The exemption of the public works of a corporation from taxation does not extend to corporations for private pur- poses. Their lands are taxable as the lands of individuals, although necessary to the business of the company. Carbon Iron Co. V. Carbon Co., 3 Wr. 251. 2. The tax payable at the Auditor- General's office is for the corporate fran- chise and not as exemption from ordinary taxation. Ibid. 3. Houses, lands and goods of a cor- poration are taxable although purchased with its capital on which a tax is paid. LackaiuannaCo. v. Luzerne Co., 6 Wr. 424. 4. If a charter recognize one state- ment from a corporation (and not a series of yearly statements) as the basis of tax- ation, the account between it and the State should be settled on the basis of the first statement. Canal Co. v. Com., 7 Wr. 22T. 5. A tax on dividends is to be calcu- lated according to the cash capital, not the nominal capital. Eailway v. Ciiy, 13 Wr. 2S1. 6. The Act of April 29, 1844, (P. L. 486,) (taxing mortgages, money owing, &c.,) applies to the interest due upon railroad bonds. Maltby v. Reading B. R., 2 P. F. Smith, 140. 7. Loans in a corporation held by non- residents are taxable. Ibid. 8. A citizen of Pennsylvania is person- ally taxable for State and county taxes on stock held in a foreign or domestic corporation. McKeen v. Northampton, 13 Wr. 519. Whitsell v. Nortliampton, 13 Wr. 526. 9. A tax on dividends exceeding six percent, "of capital stock" means capital actually paid up. Hence if the dividend exceed six per cent, of the cash capital it is taxable. Second and Third St. Pas- senger Railway Co. V. City, 1 P.F. Smith, 465. Philadelphia v. Gray's Ferry Road, 2 P. F. Smith, 177. 1 0. The cost of a road is not its capital. Ibid. 11. If a company pay a tax and take a receipt — without any fraud or misrepre- sentation — interest is not chargeable upon an amount less unpaid by mutual mistake. Ibid. 12. If no such payment, however, is made, interest is chargeable upon the tax. Philadelphia v. Gray's Ferry Road, 2 P. F. Smith, 177. 13. National bank stock in the hands of stockholders is liable to State taxation. Mintzer v. Co. of Montgomery, 4 P. F. Smith, 139. 14. But not the capital or business. Pittsburgh v. National Bank, 5 P. F. Srnith, 45. 15. A party ought to appeal from set- tlement of Auditor-General when suit is brought, if he has not appealed before. Lehigh Co. v. Com., 5 P. F. Smith, 448. COR 38 con 16. An addition of profits to the regu- lar capital is taxable as a dividend. Ibid. 17. A proviso in a charter that the company should not be taxed until its dividends amounted to six per cent., can he repealed under a clause reserving the right to repeal, and is repealed by a later statute affecting all corporations. Com. V. Fayette B. B. Co., 5 P. F. Smith, 452. 11. Liabilities of Corporations, muni- cipal AND OTHERS, INCLUDING CITIES, RAILROADS, AND BRIDGE COMPANIES, FOR ■ DAMAGES.' 1. Public corporations (as for the man- ufacture of gas) are liable in damages for nuisance, in oppressively causing smells or allowing fluids to run th:fough the ground which annoy another and create an abiding nuisance to his property. Their incorporation or privilege of buying land is no defence. Pottstown Gas Co. v. Murphy, 3 Wr. 263. 2. A city is not liable for damages caused by the breaking of a sewer with which they have connected another sewer — the original sewer not having been built by the city, and the breakage not having been caused by the city. The fact that the city repaired the old sewer would not render it liable. Munn v. Pittsburgh, 4 T7r. 364. 3. A city has the right to pour its sewers and drains into a run without keeping it clear to its mouth, on the pri- vate property of all the lotholders through which it flows.' Ibid. 4. When there has been a dedication of a highway to public use, a municipal cor- poration may become bound to repair by adopting it, and making repairs is evi- dence of adoption. Per Strong, J. Ibid. 5. A corporation invested with the rights of eminent domain is liable for con- sequential damages to private property no further than it is declared to be so in the act of incorporation. Per Strong, J. Clarke v. Birmingham Bridge Co., 5 Wr. 147. 6. The Act of August 14, 1725, (pro- hibiting the erection of any bridge, &c., which should hinder navigation,) applies only to bridges erected without authority of law. Ibid. 7. The milldam act prohibits only such obstructions as are not legalized by stat- ute. Ibid. 8. The right to erect a bridge includes the right to fix the number and location of the piers. Ibid. 9. The grantee of a franchise to erect a bridge is not responsible for damages re- sulting from a mistake of judgment in locating the piers. Such a mistake is not culpable negligence. If a plaintiff sustain special injury by a malicious, wanton, or arbitrary exercise of an undoubted right of a defendant, he may have his action. Ibid. 10. 'A city is not liable to one who sup- ports a pauper except upon proof of an express contract. The guardians of the poor in Philadelphia have no power to make such a contract. A book contain- ing entries on account by the guardians is not evidence of such contract. Sauls- bury V. City, 8 Wr. 303. 11. A city is not liable for the mistake of her district surveyor in locating the line of a lot. Alcorn v. City, 8 Wr. 348. 12. A corporation must maintain and repair a footway which it was required to construct in order to obtain the right of putting a railroad on a bridge. Phosnix- ville V. Iron Co., 9 Wr. 135. 1 3. A county is not liable for food, &c., furnished to militia at the request of the sheriff, when they are assisting him to suppress a riot. Baush v. Ward, 8 Wr. 389. 14. A city is not liable for an injury occasioned by the negligence of contract- ors with it, or of their servants. Painter V. Pittsburg, 10 Wr. 213. 15. A purchaser of a canal from the State is bound to keep a bridge over the canal in repair. Penna. B^ B. Co. v. Duquesne, 10 Wr. 223. 16. Assumpsit will lie against a corpo- ration neglecting to repair. Ibid. 17. The State could not be sued, but a purchaser from the State can be sued. Ibid. IS. If private parties have no right to a bill to enforce a repair of the works of a public corporation, they have no right to a decree for compensation for damages suffered. Buck Mt. Coal Co. v. Lehigh Nav. Co., 14 Wr. 91. 19. The remedy against a corporation for laying a track across an alley is by assessment of damages under their char- ter. An action on the case will not lie. B. B. Co. V. Williams, iP. F. Smith, 103. 20. The expression in a charter, "as soon as the company can conveniently COR 39 COR locate and construct," does not limit them from constructing sidelines, &c., years after the location. B. B. Co. v. Wi.Uiams, 4 P. F. Smith, 103. III. Remedy against Corporations for collection op debts, damages, &0. — What property cannot be sold, &c. 1. Land appropriated to corporate ob- jects and necessary for the exercise of a franchise of the corporation, (whether acquired by purchase or by delegated powers of eminent domain,) is exempt from levy and sale. The company can- not alien it. The only remedy of credit- ors is sequestration. Plymouth R. R. Co. V. Golwell, 3 Wr. 337. 2. If a company is chartered as a rail- road without reference to canal basins, and they purchase land and use it as a basin for canal boats, it is liable to levy and sale. Ibid. 3. In such a case, if the company bring ejectment against the holders of the sheriff's title, it is a question of fact for a jury how much of the ground the com- pany had actually appropriated to the lawful purposes of the corporation. Ibid. 4 A clause forbidding trustees from incurring any debt does not exempt the building they erect from mechanics' claims. University v. Reber, 1 Wr. 305. 5. Where a corporation, authorized to take land upon compensation or security, enter upon a lot, and the only security to the owner is the lien of a judgment for damages, it is entitled to priority over a mortgage given before the entry of the judgment. And although the land neces- sary for the franchise cannot be sold upon execution, still such a lien is entitled to priority whenever proceeds are brought into court for distribution. Per jVIaynard, P. J., affirmed by Supreme Court. Ap- peal of Borough of Easton, II Wr. 255. 6. Authority to mortgage estates, rights and franchises, gives right to mortgage the interest acquired in a lot by taking possession of it, subject to the owner's right of compensation, and such a mort- gage binds the after-acquired title, and is entitled to payment after the owner's damages are paid. Ibid. Appeal of Borough of Easton, 11 Wr. 255. "7. A stockholder may sue his corpora- tion like other creditors. Brinham v. Wellesburg Goal Co., 11 Wr. 43. 8. A stockholder compelled by execu- tion to pay a judgment against the cor- poration, can only collect by contribution in that suit. He cannot bring a separate bill for contribution against stockholders not joined in the first suit. Ibid. 9. A bill in equity cannot be filed against persons indebted to an insolvent corporation, the only remedy is by seques tration. Siii/dam v. N. Western Ins. Co., 1 P. F. Smith, 399. IV. Construction of charter — Powers AND OBLIGATIONS OF THE OFFICERS AND OF THE CORPORATION — RiGHT TO LEASE — Pass ordinances — To expel — Lia- bility TO REPAIR — Liability of coun TIES for support OF CONVICTS — LoOAI, FREIGHT, &C. 1. A railroad company cannot urge that their road would be more profitably worked in connection with a canal. Their corporate powers are to be measured by a strict construction of the legislative grant. Plymouth R. R. Co. v. Colivell, 3 Wr. 337. 2. If a charter give five years to com- plete a road, the company cannot after that period appropriate ground. Ibid. 3. A company chartered for locomo- tives cannot maintain a horse-track. Per Woodward, J. Ibid. 4. No alleged appropriation ought to be respected if not followed by a bona fide effort to build a road according to the plain intent of the charter. Ibid. 5. A subscription to stock becomes void, if the charter of the company be- comes null by its own provisions, because of failure to commence the work withiu the time prescribed. The contract once dead cannot be revived by a supplement extending the time. Plank Road Co. v. Davidson, 3 Wr. 485. 6. A section of a city "charter which requires '' by-laws and ordinances" to be submitted to the mayor for his approval applies to all resolutions and regulations, except the rules of the council. Kepner V. Com., 4 Wr. 124. 7. Under the 5th section of the Act of April 21, 1858, (transferring the North Branch Canal to the Sunbury and Erie Railroad Company,) the assigns of the railroad company are bound to keep in repair bridges crossing the canal, and the fact that another railway company heightens and lengthens a bridge does COE 40 COR not relieve the party primarily responsi- ble, who can look to the company alter- ing the bridge for damages, but must as to the owner preserve it in proper repair. Ammerman v. Wyoming Canal Co., 4 Wr. 25 fi. 8. The Philadelphia and Erie Railroad Company and the Pennsylvania Railroad Company had the power to enter* into contracts, selling the rolling stock of the Erie road, and leasing it for 999 years to the Pennsylvania Railroad Company. Gratz V. Penna. R. B. Co., 5 Wr. 447. 9. The councils of a city cannot forfeit baskets for not being marked as required by ordinance, there being no Act of As- sembly authorizing the ordinance. Phil- lips V. Allen, 5 T-Fr. 481. 10. If a corporation act under a sup- plement to their charter, this is evidence of its acceptance. Fell v. McEenry, 6 Wr. 41. 11. On quo warranto, the judgment that follows a finding of an usurpation of functions is, that the defendants be ex- cluded therefrom without affecting the corporation as to any proper franchise. Com. V. Canal Co., 1 Wr. 295. 12. A gront by a canal company of one-half of its whole facilities for navi- gation is not invalid unless the public is injured or excluded. Ibid. 13. A canal company may commute tolls, and measure them by transporter's profits. Ibid. 14. A school district is not bound to pay for tuition of her children in another district, because her directors acquiesce and the president of the board agree in writing. The agreement must be "en- tered on the 7ninutes" as required by law. Cascade v. Lewis, 7 Wr. 318. 15. A city is not liable t'o one who supports a pauper, except upon proof of an express contract. The guardians of the poor in Philadelphia have no power to make such a contract. A book con- taining entries on account by the guar- dians is not evidence of such a contract. Saulsbury v. City, 8 Wr. 303. 16. A city is not liable for the mistake of her district surveyor in locating the line of a lot. Alcorn v. The City, 8 Wr. 348. 17. The act consolidating two com- panies does not affect the original lia- bility of either under its act of incorpo- ration. Gould V. Langdon, 7 Wr. 365. 18. A corporation must maintain and repair a footway which it was required to conBti;uct, in order to obtain the right of putting a railroad on a bridge. Phce- nixville v. Iron Co., 9 Wr. 135. 19. A proviso cannot contradict a grant Charters are to be construed strictly in favor of the Commonwealth, but reasonably. Bridge Co. v. Kirk, 10 Wr. 128, 129. 20 The "local freight" intended by the Act of March 7, 1861, includes not only domestic articles, but those which have become the subject of internal trade. Hence, wheat imported from Ohio, put in store in Pennsylvania, and then shipped, is chargeable with the reduced rates under that act. B. B. Co. v. Canfield, 10 Wr. 211. 21. A purchaser of a canal from the State is bound to keep a bridge over the canal in repair. Penna. B. B. Co. v. Duqueme, 10 Wr. 223. 22. Authority to mortgage estates, rights and franchises, gives right to mort- gage the interest acquired in a lot by taking possession of it, subject to the owner's rights to compensation, and such a mortgage binds the after acquired title, and is entitled to payment after the owner's damages are paid. Appeal of Borough of Easton, 11 TFr. 255. 23. One sued for use of a wharf or other public improvement, cannot defend upon the allegation that it is not properly built. PrescottY. Duquesne, 12 Wr. 118. 24. A county is liable for the support of insane convicts sent .to a hospital by the county commissioners for want of a proper place to confine them, although no act authorizes the transfer. Allegheny v. Western Hospital, 12 TT'r. 123. 25. The Pennsylvania Railroad Com- pany have power to construct a lateral road from their main Hue to the Pitts- burg and Steubenville railroad. Pitts- burg V. Penna. B. B. Co., 12 TTr. 355. 26. Corporate ofiBcers cannot recover for services, except upon express con- tract. Kilpatrick & Serrill v. Penrose Ferry Bridge Co., 13 Wr. 118. 27. Provisions in a charter approved by the Courts have the same force as if specifically granted by special act. So- ciety V. Com., 2 P. F. Smith, 125. 28. If a member of a mutual relief as- sociation "feign himself sick, and con- tiiuie to draw relief after his recovery, COR 41 COR contrary to the. charter, he may be ex- pelled therefor." Ibid. 29. An act against the " society, tend- ing to its destruction and injury," and an " offence against his duty as a cor- porator," are grounds for expulsion. — Ibid. 30. Millers in Philadelphia buying grain west of Pennsylvania, not the pro- duct of the soil of the State, and shipping it to Pittsburg, and thence by railroad to Philadelphia, cannot claim to pay only "local freight," under the commutation Act of March 7, 1861. Eowland v. Penna. B. R. Co., 2 P. F. Smith, 250. 31. In construing charters, all doubts are to be resolved in favor of the Com- monwealth. Per Strong, J. Com. v. Central Pass. R. W. Co., 2 P. F. Smith, 506. A proviso that a company shall not nse any portion of an " artificial road " without the consent of the parties owning the same, requires the defendant to obtain the consent of city councils before they can occupy a street. Per Strong, J. Com. V. Central Pass. B. W. Co., 2 P. F. Smith, 506. 32. There is a distinction between rail- roads and passenger railways, the latter being used exclusively with horse power, and for passengers only. Ibid. 33. Where, upon bills to foreclose the mortgages of a railroad company, it is agreed that a new company shall be formed, and that the expenses of carrying out the agreement, for printing new bonds, &c., shall be sustained by the new company, they are liable for counsel fees paid by the bondholders. Bailr'oad Co. V. Titus, 13 Wr. 217. 34. Amotion for adequate cause is in- herent to all corporations, municipal or private, except literary or eleemosynary ; but a motion does not affect the private rights of the corporators in the franchise. Per Woodward, C. J. Euans v. Phila. Club, 14 Wr. 107. 35. The power to disfranchise is never sustained without statute grant, except for conviction at court for an infamous offence, or for some act against the so- ciety tending to its injury. Ibid. 36. By-laws giving power of expulsion for minor offences are void. Ibid. Where the corporation owns property, no power of expulsion can be exercised unless ex- pressly conferred by charter. Ibid. 37. Striking a blow within the walls of a club-house is not ground for expulsion. Ibid. 38. Rates of freight must be equal to all. But requiring shippers from an extra territorial point to pay more than home customers, is not unlawful discrimination. Shippers. Penna. B. R. Co., 11 Wr. 338. 39. "Local freight" is intended to apply to articles transported in the prose- cution of our own internal trade. Ibid. 40. Mandamus will not lie to compel a mayor to execute a lease obtained by fraud. Com. v. Henry, 13 Wr. 530. 41. Suit cannot be brought on a war- rant on a county treasurer ; the claims must be on the original cause of action. Allison V. Juniata Co., 14 Wr. 351. 42. The power "to construct a railroad to connect with any road constructed,' or to be constructed," at any point on a cer- tain county line, is a grant of two powers : First. To construct a road to any point the company selects on the county line, irrespective of another railroad. Second. To connect with the other road. Com. v. Crosscut B. B. Co., 3 P. F. Smith, 68. 43. A corporation can have no legal existence out of the bounds of the sov- ereignty creating it. County of Alle- gheny Y. Cleveland and Pittsburg B. B. Co., 1 P. F. Smith, 228. 44. A State cannot confer on a com- pany corporate existence in another State. Ibid. 45. Therefore, where two States in- corporate the same company, it is a dis- tinct and separate body in each State. Ibid. 46. Where a company is chartered in Ohio, and then in Pennsylvania, the legal presumption is, that its members are citi- zens of both States, and no evidence is to be received to countervail this presump- tion. Where such a company is sued in Pennsylvania, it cannot remove the record to the United States Court. Ibid. 47. The remedy against a corporation for laying a track across an alley is by assessment of damages under their char- ter. An action on the case will not lie. Penna. R. B. Co. v. Williams, 4 P. F. Smith, 103. 48. The expression in a charter, " as soon as the company can conveniently locate and construct," does not limit them from constructing sidelings, &c., years after the location. B. B. Co. v. Williams, 4 P. F. Smith, 103, COE 42 COR 49. A corporation carl take a right of way under powers to talce land. Ibid. 50. A company incorporated both as a transportation and railroad company, and limited to a certain rate for " toll," are only confined to that rate when others carry goods over their road. When the company transport goods, they may ex- ceed that rate. Boyle v. Phila. and R. R. B. Co., 4 P. F. Smith, 310. V. Eights and liabilities op sub- scribers, STOCKHOLDERS AND DIREC- TORS — Liens on stock — Powers to ISSUE stock. 1. A subscription to stock becomes void if the charter of the company be- comes null by its own provisions, because of failure to commence the work within the time prescribed. The contract once dead cannot be revived by a supplement extending the time. Plank Road Go. v. Davidson, 3 Wr. 435. 2. Obtaining judgment against a manu- facturing corporation does not bar a suit against the corporation and stockholders. Patterson v. Wyomissing Co., 4 Wr. IIT. 3. Stockholders are liable for debts contracted while they are stockholders, although they have paid up the whole of their stock. Ibid. 4. Stockholders cannot plead that the corporation did not pay the State the bonus required by law. Ibid. 5. One who subscribes to stock of a railroad company on the express condi- tion that the company '" should locate and construct their road along " a designated route, is bound to pay if the' road is located but not constructed on the route named, for the stock payments must precede construction. 3Iiller v. R. R., 4 Wr. 23T. 6. Nor can he in suit for the amount due, default the interest unpaid upon his subscription, although the company guar- anteed that they would pay interest on stock " as soon as paid," for this means fully paid. Ibid. 7. Bank stock is subject to a lien for a debt due to the bank. The recovery of a judgment for the debt and the transfer of the judgment to a surety of the defendant do not affect the lien. A sale of the stock under a.fi. fa. upon that judgment passes a title to the purchaser superior to that held by a purchaser under a previous fi. fa., and sale by a third party ; for the first purchaser takes the risk of existing debts when he buys. West Branch Bank v. Armstrong, 4 Wr. 278. 8. Where a corporation gives the as- sessed stockholders a preference " out of the profits " or " surplus funds," this will not entitle them to such a preference where there are no profits or surplus, and the company is wound up by consent. North American Mining Co. v. Clarke, 4 Wr. 432. 9. Subscriptions made before a com- pany is organized must be unconditional. After organizing, a company may receive conditional subscriptions to its stock. Pittsburgh and Connellsville R. R. Co. v. Stewart, 5 Wr. 5-t. 10. If a president of a company after its organization agree with -one whose former subscription to the stock has been released, that if he will continue his sub- scription the company will receive pay- ment in materials, they cannot enforce payment in cash nor payment before the time appointed, nor repudiate the au- thority of the president, nor say that the subscriber is estopped by paying part in cash. Ibid. 11. If a defendant has given notes to a company under a supplement to their charter, he 'cannot defend upon the allega- tion that the company has not accepted the supplement. Fell v. McHenry, 6 Wr. 41. 12. Where stockholders are made indi- vidually liable for all debts, they cannot upon the sci. fa. against them contest the judgment obtained against the corpora- tion. Wilson V. Coal Co., 7 Wr. 424. 13. In an action against the stockhold- ers of a manufacturing corporation, the charter is prima facie evidence that the persons named were members. Acting as a member or failing to disavow mem- bership prevents a defendant from evading liability by showing he was not a sub- scriber. So the failure to disavow the act of an attorney in subscribing and in satisfying a judgment exchanged for stock is evidence of ratification. McMose V. Wheeler, 9 Wr. 32. 14. The ledger of the company is evi- dence to prove indebtedness to plaintiffs. Ibid. 15. Faults and mistakes in their own organization are no defence. Ibid. 16. A plaintiff can recover against COR 43 COR some of the stockholders, though he fail as to others. Ihid. IT. In an action against the stock- holders individually of a self-incorporated company, the plaintiff can prove that the capital stock has not been paid up and that the charter was obtained by filing a false certificate. Patterson v. Arnold, 9 Wr. 410. 18. The stock must be paid for in money, not by a valuation of assets on hand. Ibid. 19. Purchasers of stock knowing this vice in the organization, are liable with the other as copartners. Ihid. 20. Innocent purchasers are not so liable. Ihid. 21. Giving the certificate in evidence does not prevent the plaintiff from attack- ing it. Ihid. 22. In an action by creditors against stockholders of a manufacturing com- pany for balances due on subscriptions, the stcckholders cannot defend by show- ing that they subscribed as agents, nor otherwise contradict their own certificate. Allibone v. Hager, 10 Wr. 48. 23. Nor can they defend because" the company omitted for more than six years to call in the subscriptions. Ihid. 24. Directors of an insolvent bank de- claring dividends impairing the capital, are not liable to the assignee under a compulsory assignment, but are liable to the voluntary assignee. GunkelVs Appeal, 12 Wr. 13. 25. An unconditional subscription can- not be qualified by conditions attached^ preparatory to the procurement of the charter, nor by a change in the charter. Bedford R. B. Go. v. Bowers, 12 Wr. 29. 26. Directors cannot release subscrip- tions to stock, so as to injure creditors. Ihid. If directors unlawfully release subscriptions to stock, a succeeding board may rescind the release and the minutes are evidence of such rescission. Ihid. 21. Evidence of what took place at an unlawful release of subscription is ad- missible. Ihid. 28. Evidence is not admissible for the subscriber, that when he was released the company had suflScient assets to pay its debts, for the other stockholders had an interest. Ibid. 29; A stockholder may sue his corpo- ration like other creditors. Brinham v. Wellersburg Coal Co., 11 Wr. 43. 30. A stockholder compelled by execu- tion to pay a judgment against the cor- poration can only compel contribution by process in that suit. He cannot bring a separate bill for contribution against stockholders not joined in the first suit. BrinhamY. Wellersburg Coal Co., 11 Wr. 43. 31. If stockholders are sued, the cred- itor must join the corporation. The non-joinder need not be pleaded in abatement, but can be taken advantage of under plea of payment. Hoard v. Wilcox, 11 Wr. 51. 32. A levy on the real estate producing nothing is no defence. Ibid. 33. The company may contract debts I for merchandise and for a general stock needed at the works. Ibid. 34. The fifth section of Act of March 2'7, 1854, (providing that stockholders of companies incorporated under the Act of 1849, and the supplement thereto, should be liable only for debts due laborers and for merchandise,) is a restriction upon the general liability, under the Act of April 20, 1853, (for all debts,) and does not retroact upon stockholders of a com- pany formed in 1849. Megargee v. Wakefield Co., 12 Wr. 442. 35. Stockholders of a company formed in 1849, paying up their stock in full, are not liable for debts under Act of March 27, 1854. Ihid. 36. Corporate officers cannot recover for services except upon express contract. Kilpatrick and Serrill v. Penrose Ferry Bridge Co., 13 Wr. 118. 3t. A tax upon dividends is to be cal- culated according to the cash capital, not the nominal capital. Bailway v. City, 13 Wr. 251. 38. Neither the stockholders of the Lehigh Coal and Navigation Company, nor the holders of bonds under the mortgage of March 1, 1842, were injured by the mortgage authorized by the Act of March 4, 1863, or the resolutions of the stockholders of May 12, 1863, and therefore no injunction could issue to re- strain the execution of the second mort- gage. Ashton V. Lehigh Co., 13 Wr. 261. 39. There is no lien at common law against stock for debts in favor of the corporation issuing the stock. Steamship Co. V. Heron, 2 P. F. Smith, 280. 40. Such a lien must exist by statutory authority. A by-law of the corporation COR 44 COR cannot create it, unless brought home to the purchaser. Ibid. 41. A by-law passed after the death of a stockholder cannot create a lien on his stock. Ihicl. 42. The extension of a railroad bond without the repetition of the clause authorizing the holder to convert into stock does not extend the right of con- version. Muhlenherg v. E. R. Co., 11 Wr. 16. 43. New mortgage bonds and stock may be issued as long as the covenanted securityofaprior mortgage is not affected. Ash ton V. Lehigh Co., 13 Wr. 261. 44. Holders of scrip who are to have no rights as stockholders until their cer- tificates are converted into stock, cannot upon such conversion claim back divi- dends. Brown v. Lehigh Navigation Co., 13 Wr. 270. 45. Stock may be transferred by de- livery of a blank power. Association v. Sendmeyer, 14 Wr. 67. 46. A corporation taking a pledge of stock from a stockholder, without the production of his certificate, cannot refuse to transfer it at request of a prior holder of the certificate for value, who took it when free of claim against it. Associa- tion V. Sendmeyer, 14 Wr. 67. 47. A stockholder may interfere for the protection of the company against an execution for fraud. He should apply to the Court where the judgment is entered, and if he do so and fail he is precluded. Gravenstine's Appeal, 13 Wr. 311. 48. A receiver cannot be appointed for a company not sued. Gravenstine's Ap- l, 13 Wr. 311. 49. If an association permit stock- holders who are borrowers to pay up and cancel the stock on certain terms, they cannot sue for subsequent dues on the stock. Miller v. Association, 14 Wr. 32. 50. A bill in equity cannot be filed against persons indebted to an insolvent corporation, the only remedy is seques- tration. Buydam V. N. Western Ins. Co., 1 P. F. Smith, 399. 51. One who is an active director of a corporation, attends its meetings regularly, participates in the declaration of dividends out of the capita), and lends it money to pay a dividend when there was a defi- ciency, cannot recover back the money thus lent until all the stockholders- are paid. Eisterbock's Appeal, 1 P. F. Smith, 483. 52. Directors can issue all the unsub- scribed stock to one person, if there is no fraud and the stock is not worth more than par. Curry v. Scott, 4 P. F. Smith, 270. 53. So they can issue preferred stock authorized by law. Ibid. 54. Stockholders have no right of pri- ority to subscribe for unissued stock. Ibid. 55. Subscription to stock is a contract to pay instalments as called. Merrimac Co. V. Levy, 4 P. F. Smith, 227. 56 A transferree of the stock accepted by the company is under like obligation. Ibid. 57. The decisions of the Courts of an- other State upon a charter in that State are the best evidence of the rights and duties of stockholders. Per Strong, J. Ibid. VI. Authority to Corporations to subscribe for stock, to give bonds — Liability on bonds, coupons, &c. 1. An authority by Act of Legislature to a county to subscribe to railroad stock, to borrow money, and provide for pay- ment of principal and interest "as in other cases," is an implied repeal of a limitation upon the taxing power of a county in the Act of April 15, 1834. Com. V. Allegheny, 4 Wr. 348. 2. The right of a municipal corpora- tion to subscribe to the stock of a railroad company contained in the original act, may be continued by a supplement extend- ing the charter which is silent as to the subscription. Com. v. Pittsburg, 5 Wr. 278. 3. And this, although the name of the company is changed and the termini altered before subscription. Ibid. 4. And they may give bonds, for the power to subscribe implies the power to issue bonds. Under the general powers a corporation can give a bond for any au- thorized debt. Ibid. 5. The objections to municipal sub- scriptions to railroads, &c., already set- tled, will not be reviewed. Com. v. Pitts- burg, 7 Wr. SQL 6. If an ordinance authorizing the issue of bonds require certain conditions pre- cedent to be performed, the issue of the bonds is evidence that the provisions of COR 45 COR the ordinance have been complied with or waived. Per Read, J. Ibid. 7. Where defendants allow their bonds to pass from hand to hand in the market for years, and acquiesce in their validity, a defence is not to be favored grounded on the alleged neglect of the maker of the instruments. Ibid. 8. The constitutionality of the laws authorizing municipal subscriptions is irrevocably settled in all cases not covered by the eleventh Article of the Constitution. Per Read, J. Com. v. Perkins, 1 Wr. 400. 9. Mandamus is the appropriate remedy to enforce the levy of a tax to pay muni- cipal bonds Ibid. 10. If the county commissioners sub- scribe to a less number of shares of stock than the grand jury authorized, this is no defence to the bonds issued therefor. Ibid. 11. The improper conduct of the grand jury, an agreement between the county and the railroad company that the latter was to pay the interest, and a remon- strance against the subscription, cannot affect bona fide holders of the bonds. Ibid 12. Authority to create a debt implies an obligation to pay it, and where no spe- cial mode of doing so is provided, it is also implied that it is to be done by taxa- tion. Ibid. 13. Authority to' subscribe to stock be- comes part of tiie charter. Ibid. U. Where stockholders are made indi- vidually liable for all debts, they cannot upon sci. fa. against them contest the judgment obtained against the corpora- tion, Wilson V. Coal Co., 1 Wr. 424. 1.5. Bonds payable to bearer and the coupons thereon are negotiable, pass by delivery, may be owned and sued sepa- rately, and the coupons bear interest from the time of presentation. Where there is a denial of all obligation demand is unnec- essary. Per Read, J. Com. v. Perkins, 7 Wr. 400. Beaver v. Armstrong, 8 Wr. 63. 16. A municipal corporation cannot, since the amendment to the Constitution, (sec. vii., art. xi.,) devote its stocks, moneys, or credit to a steamship line or to any corporation, nor can it authorize a retention of dividends due to it for such a purpose. Penna.B. B. v. City, 11 Wr. 189. 17. After an ordinance passed as above, suit was brought in name of the corpora- tion by its officer and the dividends re- covered. Ibid. 18.' A provision in a mortgage author- izing foreclosure, if the bonds are not paid, does not preclude suit upon the bonds or coupons. B. B. Co. v. John- son, 4 P. F. Hniith, 127. 19. Demand of coupons at the place, &c., unnecessary when defendants show no readiness to pay. N. Pa. B. B. Co. v. Adams, 4 P. F. Smith, 94. B. B. Co. v. Johnson, Ibid. 127. 20. Coupons bear interest from ma- turity. Ibid. '21. The corporation not bound to pay counsel fees of plaintiff under Act of May 3d, 1866, where validity of the bonds are not contested, and the default was before the act. Ibid. VII. As TO RIGHTS OP MAJORITY AND MINORITY IN ALL CORPOBATIONS, AND AS TO DIVISIONS IN RELIGIOUS CORPORA- TIONS. 1. Majorities may bind in the conduct of a concern, but can decide no one's rights in the act of settlement or distribu- tion. Per LowRiE, C. J. North Ameri- can Co. V. Clarke, 4 Wr. 432. 2. Religious societies may organize as independent churches, and then their law is found in their own separate institu- tions ; or they may organize as associated churches, and then their law is to be found in their own rules and in those of the associated organism. Per Lowrie, C. J. McGinnis v. Watson, 5 Wr. 9. 3. That one of two divisions in a church has obtained a charter of incorporation has no influence on the question of title to the property ; that depends upon the legitimate, orderly, and regular riiainte- nance of the organized congregation or succession of associated owners. Per Lowrie, C. J. Ibid. 4. In general organizations of united churches, the law of the general organism is binding on all the individual churches, and even a majority seceding lose all their rights in the church property. Ibid. 5. The union of the seceding church and the Associated Reformed church was not brought about by any excess of au- thority, and was in harmony with the COR 46 COR authority usually admitted to belong to those bodies. Ihid. 6. A majority of a church have no right to secede from the denomination to which the church is attached and control the property. The minority in such a case represent the church. The question is not which party has the majority, but which is right according to the law by which the body has hitherto consented to be governed. Per Lowbie, C. J. Sutter V. lleformed Church, 6 Wr. 503. 7. The majority may control consist- ently with the laws of the organism, but not in violation of them. Ihid. and Wine- hrenner v. Colder, 1 Wr. 244. 8. In church organizations, although the charter treats the corporation as inde- pendent, yet if it has always been asso- ciated with a certain denomination, and been governed by its laws, a majority cannot dissolve the connection. Per LowRiE, C. J. Winebrenner v. Colder, 7 Wr. 204. 9. Where an article provided that a committee of the church at large should appoint preachers to the several stations, and that their report should be final, unless rejected by a majority, the major- ity of the particular church cannot reject the preacher. The article means the majority of the assembly, to whom the committee is to report. Ibid. 10. A majority resisting the legitimate authority of their ecclesiastical superiors, and expelling the minority, and instituting as pastor a regularly expelled minister, is not the true congregation. Per Lowbie, C. J. Ibid. 11. Those who adhere to the regular order (though they be a minority) con- stitute the true corporation. Ibid. 12. Where regular action has been sus- pended for years, the Court will order and supervise an election. Ibid. 13. When the majority of a church do not depart from the faith of its founders, and the trust is not dependent on any particular ecclesiastical connection, the majority do not lose the property by a withdrawal from one synod and a union with another synod. Trustees v. St. Michael's, 12 Wr. 20. 14. But even if the new convention had been a breach of the original grant, seceders could not maintain ejectment. Per Thompson, J., 12 Wr. 20. VIII. The existence op chartee, its FORFEITURE, &0., CAN ONLY BE QUES- TIONED BY THE State — As to forfeit- ures, PLEADINGS, AND DEFENCES ON QUO WARRANTO, DISSOLUTION, &C. 1. A defendant cannot refuse to pay a note due to a corporation because of im- proper acts of the trustees working afor- feiture. Coile v. Pittsburg Female Col- lege, 4 Wr. 445. 2. In quo warranto, the judgment that follows a finding of an usurpation of func- tions is, that the defendants be excluded therefrom, without affecting . the corpora- tion as to any proper franchise. Com. V. Canal Co., 1 Wr. 295. 3. Irregularities in the organization of a company are not necessarily fatal to its being. Per Strong, J. Com. v. Cen- tral Pass. Railway Co., 2 P. F. Smith, 506. 4. Where the grantee of a franchise is to take upon terms, he must comply strictly with all the conditions precedent. But mere irregularities could at most but work a forfeiture ; they would not entitle the Commonwealth to a judgment that the franchise has no existence. Ibid. 5. Where an Act of Assembly declared that the purchaser of a railroad, &c., should be a body politic, it is no ground of de- murrer to a plea in quo warranto that the corporation allege that the purchaser became a body politic. The averment is immaterial, and at the worst but surplus- age. Ibid. 6. Nor is it a good objection that the plea aver that the corporation adopted a common seal and determined the amount of the stock, when it was made the purchasers' duty to do so ; nor that the certificates of stock were issued to such persons as the purchasers named; nor that the names and interest of the parties are not given ; nor that the amount of capital stock was fixed in excess of the value of the road. Ibid. 1. In construing charters, all doubts are to be resolved in favor of the Com- monwealth. Com. V. Central Pass. Railway Co., 2 P. F- Smith, 506. 8. A proviso that a company shall not use any portion of an " artificial road" without the consent of the parties owning the same, requires the defendants to ob- tain the consent of city councils before they can occupy a street. Ibid. COR 47 COR 9. There is a distinction between rail- roads and passenger railways, the latter being used exclusively with horse power and for passenger travel. Ibid. 10. A prohibition in a railway charter that no freight, or burden trains, or loco- motives, shall be permitted to pass over the same, is not removed by a supplement authorizing the use of steam passenger cars. Ibid. 11. The power to build a passenger railway requires the use of a rail appro- priate to such structures, and forbids the use of the usual rail for freight and steam cars. Ibid. 12. In some cases, a misrecital of an Act of Assembly in another act may be cured, but this principle cannot apply to the grant of a franchise to a private cor- poration, where the act supposed to be recited is not correctly referred to by date, title or subject matter. Ibid. 1 3. Nor can a private corporation claim a franchise from obscure language, making them subject to certain acts which grant privileges and do not impose burdens. They cannot be made servient to the gift of a right. Ibid. 14. The certificate of consolidation of the Atlantic and Great Western Railway Company was a valid instrument, and upon being filed with the Secretary of the Commonwealth, a legal corporation was created. Com. v. Atlantic and Great Western Bailway Co., 3 P. F. Smith, 9. 15. Nul tiel record can be replied to the plea of a certificate of consolidation. Ibid. 16. Depositing a certificate with the Secretary of the Commonwealth is a filing of the same ; his omission so to mark it can be enforced by mandamus. Ibid. 17. Private persons cannot question the existence of a corporation. Phila. & Erie R. B. v. Gatawissa R. R. Co., 3 P. F. Smith, 20. 18. Railroad companies may consoli- date though the gauges are not identical. Ibid. 19. A stockholder cannot file a bill in the interest of a rival company. Ibid. 20. A lease of the whole road with the appurtenances, will pass a lease of an- other road held by the lessors, although it was to be forfeited in case of an assign- ment for creditors or a judicial sale or transfer. Ibid. 21. In the absence of a contract or special interest, the public duty of a cor- poration cannot be enforced by a private complainant. Buck Mt. Goal Go. v. Le- high Nav. Co., 14 Wr. 91. 22. If private parties have no right to a bill to enforce a repair of the works of a public corporation, they have no right to a decree for compensation for damage suffered. Ibid. 23. Demurring to a plea in quo war- ranto is an admission that there is no ground for denial. Goni. v. Grosscutt B. B. Go., 3 P. F. Smith, 62. 24. Quo warranto will lie for a claim (without the exercise) of corporate fran- chises. Com. V. Grosscutt B. R. Go., 3 P. F. Smith, 61. 25. The power " to construct a railroad to connect with any road constructed or to be constructed," at any points on a certain county line, is a grant of two powers : First. To construct a road to any point the company selects on the county line irrespective of another railroad. Second. To connect with the other road. (70771. V. Grosscutt R. R. Go., 3 P. F. Smith, 68. 26. Where there is added to the grant the proviso that the "gauge of said road" shall not exceed a certain width, "said road" does not refer to its imme- diate antecedent, (the road to be con- nected with,) but to the road chartered. Ibid. 69. 27. An averment of a charter right, although accompanied with a denial of other matters, is a good plea. It is neither a disclaimer nor non-usurpavit. Ibid. 28. The power of the common pleas to decree a dissolution of corporations is not confined to those formed under au- thority of the Courts. Gom. v. Slifer, 3 P. F. Smith, 71. 29. The Court of the county where the principal oifice is located is the proper Court to make such a decree. Ibid. 30. A mandamus will lie to the Secre- tary of State to record the decree. Ibid. 31. A stockholder cannot maintain a bill if he has purchased his stock in order to file it, and with full knowledge of the facts. Per Woodward, C. J. Sparhawk V. Bailway Go., 4 P. F. Smith, 453. 32. An abuse by a company of its charter can only be tried at the suit of the Commonwealth. Ibid. 33. Corporate existence of the defend- COR 48 con ant need not be shown unless in issue. Telegraph Go. v. Wenger, 5 P. F. Smith, 268. COREUPTION OP ARBITRATORS. See, generally, Arbitrations. COSTS. Defendant liable for costs if pardoned after sentence, and county liable for costs when defendant pardoned before sentence. See Criminal Laio, 10, 18, 19, 21, 22. Costs not chargeable against guardians and other trustees except for fraud, de- lay, &c. See Decedents' Estates VII., 4, 9, 15, 16. 1. Under the act regulating appeals the plaintiff must pay the costs, unless he filially recover a judgment greater than the amount of the judgment defendant tendered, with interest thereon. Re- covery of a judgment greater than the tender will not subject the defendant to costs, if the judgment tendered and in- terest thereon exceed the judgment re- covered. Park V. Sweeny, 3 Wr. 111. 2. A conditional verdict in ejectment carries costs. Bradley v. O'Donnell, 4 Wr. 419. 3. A Court can compel compensation to artists by making an order on the par- ties when both apply, but the losing party cannot be compelled to pay a bill of a surveyor appointed by the Court to make drafts in an ejectment. Caldwell v. Miller, 10 Wr. 233. 4. A defendant is not entitled to the costs of a trial on the opening of a judg- ment which results simply in reducing the amount. If he pay the amount into Court, or bring a separate suit for the oHset, or have a feigned issue awarded, he can recover costs if successful. Ken- nedy V. Dean, 10 Wr. 246. 6. Costs in decree of distribution are matters of discretion. Where an except- ant fails, he is not entitled to costs as against the successful party, but he may be entitled to costs where he succeeds. Per Maynaed, P. J., afSrmed by Su- preme Court. Borough of Easton Ap- peal, 11 Wr. 255. 6. A prothonotary paying State taxes on writs he parts with on credit can re- cover the taxes and the costs from the plaintiffs. Cone v. Donaldson, 11 Wr. 363. I. An attorney collecting prothono- tary's costs is liable therefor with interest and without demand. Gone v. Donald- son, 11 Tfr. 363. 8. A prothonotary performing services is entitled to his fees. If he has not complied with the law, and any damage has been sustained, the party injured must bring suit for it. Ibid. 9. A plaintiff suing in common pleas without filing affidavit, and in the absence of defalcation recovering less than one hundred (100) dollars, is not entitled to costs. Hale v. Ard, 12 Wr. 22. 10. The offer of a judgment before a justice in order to save costs may be made by the defendant's agent. Bandall v. Wait, 12 Wr. 127. II. Where an unfounded demand cre- ates a contest in a distribution, the losing claimant Should pay costs. Moore's Ap- peal, 14 Wr. 250. 12. A plaintiff is not entitled to costs who recovers less than one hundred (100) dollars on suit brought in common pleas, where he files no affidavit, where set-off is not pleaded, and where the plea of pa}'ment is unaccompanied by the words " with leave." Iron Go. v. Bhule, 3 P. F. Smith, 93. of. COUNCILMEX. Courts cannot try contested elections See Quo Warranto, 1, 2. But where two bodies claim to be a council, equity will restrain the body ille- gally organized. See Equity I., 44, 45. Councilmen may be compelled to meet. See Mandamus, 4. Councils can control expenditures, and illegal contracts do not bind. See Philadelphia, 5, 6. COUNSEL FEES. See Trusts III., 14, &c. COUNT. Civil cases. See, generally, Pleading. Criminal cases. See, generally. Crimes. cou 49 COU COUNTIES, COUNTY TREASUR- ER,* COUNTY? AUDITOR, AND COUNTY OFFICERS. As to taxes. See, generally, Taxes. Public officers only liable for|inalioe. See Negligence, I. County liable for costs where defend- ant pardoned before sentence. Yide Criminal Law, ] 0. Sureties of sheriff. See Sherif, 7, 21, 23. Sureties of other county officers. See Surety, 1, 2,_&c. Officers cannot advertise in more papers than authorized by law. See Philadelphia, 5. Counties liable to townships for town- ship taxes collected by county treasurer. See Townships, 2. Counties liable for support of insane convicts sent to a hospital by the com- missioners. See Corporations IV., 24. 1. An academy is not a public build- ing. The Legislature cannot authorize its erection upon land " dedicated " to " public buildings." Kittaning v. Brown, 5 Wr. 2Y0. . 32. 14. Evidence of the negotiations, the market value, the circumstances of the defendant, the papers, searches, &c., is admissible. Ibid. 15. The defendantis not bound to tender a reconveyance in such a case. Ibid. 16. An agreement to pay two and a half per cent, on advances is usurious. Grubb V. Brooke, 11 Wr. 485. 17. If a loan is made upon condition that the borrower will take worthless stock at a large price, the contract is usurious. Per Hampton, P. J., affirmed in Supreme Court. Heath v. Page, 12 Wr. 130. 18. If a mortgage is taken for the usury, the giving of a second mortgage in satisfaction of the first is not a payment. The statute only runs from payment of the usury. Ibid. 19. One who pays the usury by a con- veyance of land, does not compromise his right to recover back the usury. Ibid. 20. The defendant, when sued for the usury in such a case, can show that the land he received was not worth the amount due. Ibid. 21. A payment by the debtor in land is equivalent to a payment in money; where this is evidenced by writing, it is DEB 59 DEB for the Court, and not for the jury, to de- cide. Heath r. Page, 12 Wr. 130. 22. The debtor need not return the stock he was compelled to take. He can sue for the usury, and the jury can deduct the value of the stock if it is worth any thing. Ibid. 23. An action on the case will lie for usury; it need not be debt. Ibid. 24. An ownermay, in good faith, waive part performance of a building contract. The lien is good as to other creditors for the part performed. Stewart v. Mc- Quaide, 12 PTr. 191. 25. Creditors having no lien at the date of the first item in a claim, are bound by an appropriation of payments. If a set- tlement leave a general balance due on two properties, it is for the jury to say which property is to pay it, and how much. Ibid. 26. Rent cannot be defalked from a mechanic's claim. If rent is claimed, the mechanic can show there is a book account unsecured, to which equity would apply the rent in preference to the lien. Ibid. 198. 27. It is not fraud for a debtor to leave the country if he do it openly, speak of it freely, and conceal nothing. Shawns Ap- peal, 13 Wr.lS2. 28. If a creditor agree to accept fifty per cent, if all others do so, receive his percentage and deliver the notes, he can recover the balance if all do not so agree. Greer v. Shriver, 3 P. F. Smith, 259. 29. A debtor fraudulently concealing other property, no matter what its value, forfeits his exemption of the property levied on. Emerson v. Smith, 1 P. F. Smith, ' 90. 30. A debtor included in a judgment confessed to the plaintiff other debts owing to third persons. The judgment was not attacked upon this ground. Dav- enport V. Wright, I P. F. Smith, 292. 31. A defendant who fraudulently con- fesses a judgment is bound by it. Blye- stone V. Blyestone, 1 P. F. Smith, 373. 32. A parol sale of land, set up by a son against his father's creditors, should be distinctly proved, and it should be clearly shown that possession was taken, and that improvements were made on the faith of it. Wiley v. Bay, 1 P. F. Smith, 51. For other cases of fraud, as against creditors. See Fraud I. For other cases of usury. See Building Associations. III. What papers make a mortgage. 1. If a tenant assign his lease to one who gives a written defeasance, to take effect upon payment of a certain sum, the assignment is a mere mortgage. Greene V. Tyler, 3 Wr. 361. 2. An agreement that the lender shall receive more than six per cent, interest, cannot be legalized by a pretended leas- ing, nor by a custom sanctioning the con- trivance. Ibid. For other cases. See Mortgage II. ly. Of application op payments. 1. The law relative to the application of partial payments applies only when the alternative debts are both legal debts. Per Woodward, J. Greene v. Tyler, 3 Wr. 361. 2. A banker receiving a draft merely for collection, making no advances and giving no new credits thereon, cannot re- tain the proceeds for a debt due by the sender, but is liable therefor to the owner. Jones v. Milliken, 5 Wr. 252. 3. Creditors having no lien at the date of the first item in a claim, are bound by an appropriation of payments. If a set- tlement leaves a general balance due on two properties, it is for the jury to say which property is to pay it, and how much. Stewart v. McQuaide, 12 Wr. 191, 195. 4. The debtor has the first right to ap- propriate the payment he makes ; failing to apply it, the creditor has the right. If neither appropriate the payment, the law applies it in the manner most beneficial to the creditor. An attaching creditor has all the rights of his debtor, and if credits have not been already applied, he has the right to place them where the fund will be largest for his attachment. Smith v. Brooke, 13 Wr. 147. 5. If the parties have not appropriated a payment, the law generally credits it to the oldest debt. Hollister v. Davis, 4 P. F. Smith, 508. 6. The holder of two collaterals for dif- ferent claims, the last being held for all the claims, is not bound to appropriate a col- lection of the last in discharge of the first collateral. His unsigned memorandum of figures so arranged is not_ evidence of DEB 60 DEB such an appropriation. Ege 7. Watts, 5 P. F. Smith, 321. V. Of attachments against deposits OF ONE ACTING AS AGENT. 1. If deposits made by one as agent are attached, the garnishees can prove that none of the moneys belonged to the agent. Bank v. Jones, 6 Wr. 536. VI. As TO INTEREST. 1. Interest will carry interest, as on coupons, on a judgment, ground rent, pur- chase money, annuities See a review of the authorities. Per Read, J. Beaver V. Armstrong, 8 Wr. "13. See the title Interest. Yll. As TO PARTNERSHIP CREDITORS. 1. Where there are partnership credi- tors and partnership property, and sepa- rate property and separate creditors, each class of creditors must look to their re- spective estates, each having priority on its respective estate. After it is satisfied, the others may come on the residue. Per Thompson, J. Black's Appeal, 8 Wr. 503. Nate. — There in a full examination of the authorities, English and American, in this opinion. 2. A judgment to secure liabilities to be assumed for partners will not cover a liability assumed after one partner has left the firm so as to hold him, unless it was a renewal of an old liability. Hartly V. Kirlin, 9 Wr. 49. 3. A partner withdrawing from the firm cannot defend upon the ground that plaintiff after the withdrawal levied on enough property to pay the debt and then discharged the company. Hartly v. Kir- lin, 9 Wr. 49. 4. A partner cannot claim as creditor of his insolvent firm until other creditors are paid, nor can his assignee, nor can his creditors. Houseal and Smith's Appeal, 9 Wr. 484. VIII. As TO SECURITIES FOR FUTURE AD- VANCES. 1. A mortgage to secure future dis- counts, without any agreement binding the mortgagee to make discounts, will be postponed to a subsequent judgment as to all discounts afier the entry of judgment. Appeal of Bank of Commerce, 8 Wr. 423. 2. The mortgage would take priority as to notes dated after the judgment, if they were renewals in regular order of notes prior to the judgment. Ibid. 3. But intention of parties is not evi- dence where rights of a third person have intervened. Ibid. 4. A judgment to secure liabilities to be assumed for partners, will not cover a liability assumed after one partner has left the firm so as to hold him, unless it was a renewal of an old liability. Hartly V. Kirlin, 9 Wr. 49. 5. Parties may contract that the judg- ment plaintiff may issue execution for his liabilities before paying them, and in such case the plaintiff does not need, but may issue a sci.fa. quare. ex. non. His judg- ment is under the control of the Court if the defendants pay or reduce the liabili- ties. Ibid. IX. As TO DIVIDENDS ON ASSIGNED ES- TATES AND AS TO COLLATERALS. 1. A creditor is entitled to a dividend from an assigned estate upon the whole debt, without regard to any collaterals he may hold. Batten's Appeal, 9 Wr. 151. 2. If a policy is assigned as collateral to a husband's bond, secured by a wife's mortgage, a collection on the policy is a payment of the mortgage. Buckley v. Garret, 11 Wr. 280. X. As TO Fixtures. 1. Debtors will be restrained from re- moving fixtures so as to give one creditor a preference over another whose lien first attached. Per Pearson, J. Witmer's Appeal, 9 Wr. 455. 2. A lathe is covered by a mortgage on a machine shop. A purchaser acquires no title as against the mortgagee. Hoskinsv. Woodward, 9 Wr. 42. A steam-engine in a mill is realty. Witmer's Appeal, 9 Wr. 455. 3. Rolls cast for and delivered to a mill, but not put into it, are personal property. The intention cannot make it otherwise, unless they are attached. Johnson v. Mehaffey, 7 Wr. 308. 4. Fragments of a torn building and cut timber on the ground, may be treated by the owner as part of his freehold. Al- temus V. Huff smith, 9 Wr. 121. 5. The temporary hiring of new boil- ers in place of old boilers, and putting them in place, does not make them realty or subject them to the lien of a mortgage DEC 61 DEC upon the old machinery. Hill v. Sewald, 3 P. F. Smith, 271. DECEDENTS' ESTATES. For Administration, Annuities, Donatio Mortis Causa, Dower.Trustees, Wills, Set- off. See those Titles. Finding of auditor conclusive until error is shown, and as to auditors generally. See Auditors. As to exemption, sale thereof by widow, &c. See Execution III. Promise of administrator to pay debt of decedent must be in writing. See Fraud III., 9. As to distribution among heirs of in- testate. See, generally. Intestate. As to setting aside sales. See Orphans' Court, 1, 22. As to distribution where partnership creditors. See Partnership II., 9; III., 23, &c. As to where executor or administrator is or is not liable for profits. As to liability of estate of deceased surety of trustee. As to liability of trustees for invest- ments. See Trusts and Trustees III., 1, 2, 3, 15; v., II. When a charge of a legacy is or is not implied on land. See Wills lY., 1, 9, 13, 25. As to apportioning dividends. See Wills VI., 24, 25. I. As to jurisdiction of Orphans' Courts and common law Courts — on claims of creditors — as to opening accounts — bills of re- view — and jurisdiction of Or- phans' Courts generally — final- ity of Orphans' Courts decrees — and when the discretion of the Court can be reviewed. II. Rights of administrators et al. to maintain trover, to bury deceased, to sell — their powers generally — liability of administrators, guar- dians et al., and their sureties, (of administratrix for devastavit of her husband,) and generally for what acts they are and are not chargeable. III. Of defences by heirs, administra- tors, devisees and widows, against claims, judgments, &c., due by decedent — How and when land chargeable with debt. IV. As to inheriting — distribution by agreement — what goes to the heir— support of minors, and sale of their land. V. Power of Orphans' Court to ap- portion income, to decree execu- tion of contracts, to distribute partially, to order sales although part is mortgaged, and generally as to ordering sales, setting aside sales — of distribution among creditors, et al. VI. As to advancements, gifts, releas- ing debts, and conversion. VII. Commissions — charging account- ant with interest and expenses — allowing counsel fees. VIII. Collateral inheritance tax. IX. Of legacies — interest thereon — when vested. X. Of auditors. XI. What is discharged by sale in par- tition — right of purchaser to possession. XII. Right of husband and wife to ad- minister — how it may be affected. I. As TO JURISDICTION or Orphans' Courts AND COMMON LAW CoURTS — On CLAIMS op creditors — as to opening accounts — Bills of review — And jurisdiction or Orphans' Courts generally — Fi- nality OP Orphans' Courts decrees — and WHEN the discretion OP THE Court can be reviewed. 1. An account confirmed by the Or- phans' Court cannot be opened on ap- peal after the lapse of three years, or by bill of review after the lapse of five years. Bhoads' Appeal, 3 Wr. 1 86. 2. There is no difference between an original and a final account in this respect. Ibid. 3. The final decree of the Orphans' Court reaffirmed on a petition for review presented by sureties and unappealed from, cannot be examined collaterally in DEC 62 DEC a suit upon the administration bond. Per Read, J. Hartzell v. Govi., 6 Wr. 453, 4. Tlie Supreme Court will reverse an inequitable confirmation of a sale. Dem- my's Appeal, 1 Wr. 155 5. A guardian's account may be cor- rected on his petition for a review, so as to relieve him from a charge of moneys and interest never received, and not chargeable against him. Yoder's Appeal, 9 Wr. 394. 6. Where goods, &c., have come into the hands of an administrator or executor after filing a final account, he can be called on to file a supplementary account. A bill of review is not the proper remedy. Shaffer's Appeal, 10 Wr. 131. "?. The Orphans' Court jurisdiction in favor of creditors is not exclusive of the common law remedy. McLean v. Wade, 3 F. F. Smith, 146. 8. A want of jurisdiction is as fatal to decrees of the Orphans' Court as of any other tribunal. Torrance v. Torrance, 3 F. F. Smith, 505. 9. If a clerk enter a petition as for sale of real estate for payment of debts, this does not excuse a purchaser under the order from looking further, and if the petition is by an executor for the sale of the realty of the deceased to pay legacies, the proceeding is wholly void and no title passes. IMd. II. Rights of administeators et al. to MAINTAIN TROVER, TO BURY DECEASED, TO SEEL — Their powers generally — Liability op administrators, guar- dians ET AL., AND THEIR SURETIES, (OF administratrix FOR DEVASTAVIT OF HER HUSBAND,) AND GENERALLY FOR WHAT ACTS THEY ARE AND ARE NOT CHARGEABLE. 1. An administratrix or executrix who marries and survives her husband is liable personaliter for his devastavit during coverture, because it was her folly to take a husband who would misconduct himself. Calhoun's Appeal, 3 Wr. 218. 2. But a chancellor will look at all the circumstances of the case before he applies this rule, and will refuse to apply it where the complainants are heirs or legatees who knew of the devastavit, were under no legal disability, and suffered the husband to mismanage the estate for twenty-six years. IMd. 3. An administrator, who is not guar- dian or trustee for a minor heiress, may lawfully pay as she may call on him for necessaries, at the risk of the question whether the payments are for necessaries. Fetitl's Appeal and Lapsley's Appeal, 3 Wr. 324. 4. If a person mortgage his chattels, remain in possession and die, his admin- istrator is entitled to their custody, and can maintain trover against the mortga- gee for taking the property, although there was a default after the death of the mortgagor, which would have authorized the mortgagee to take possession had the mortgagor lived. Nor can the mortgagee when sued in trover offset his debts, for that is to confound tort and debt, beside which the mortgage unaccompanied by possession is void as against creditors, and the mortgagee can only come in with others. Kater v. Steinruck, 4 Wr. 501. 5. An administrator is not chargeable with the amount of rents received from realty. They are not assets. Bobb's Appeal. Harper's Appeal, 5 Wr. 50. 6. It is a gross irregularity for admin- istrators to sell a large personal estate to one of their number by a private sale, and in bulk. Per Woodward, J. Lothrop Y. Wightman, 5 Wr. 303. 7. But an execution creditor of the purchaser cannot complain of it, for he is neither heir nor creditor of the decedent. Ibid. 8. If administrators purchase property sold under their Ji. fa., the property re- Tests in the estate of tiie decedent, and a judgment creditor of one of them person- ally cannot levy on the property. Jbid. 9. A transfer of property of the dece- dent made by administrators irregularly, is as between the parties sufficient to pass the legal title thereto. Ibid. 10. Administrators can transfer the property of a decedent after an execution against one of their number personally has been delivered to the sheriff, for it becomes no lien. Ibid. 11. If a widow and heirs agree that an administrator may hold the balance as theirtrustee, and he accordingly take credit for it, and his account as settled shows no balance in his hands, they cannot after- wards require him to account therefor as administrator. Vandever's Appeal, 6 Wr. 74. . 12. The duty of burying a deceased person devolves upon the executor or administrator, and terminates with the DEO 63 DEO burial. No subsequent expense would be a lepal charge upon the estate. Wynkoop V. Wynkoop, 6 Wr. 293. 13. A widow has no right to the body after burial. Ibid. 14. The right of burial belongs to the next of kin. Ibid. 15. The sureties of an administrator "de bonis non cum testamento annexe," are answerable for the proceeds of real estate sold by him by virtue of a power in the will. Hartzell v. Com., 6 Wr. 453 16. A bond containing the usual con- ditions for an inventory, a true adminis- tration, an account and payment of the balance, is sufficient. Ibid. 17. The final decree of the Orphans' Court reaffirmed on a petition for review, presented by sureties and unappealed from, cannot be examined collaterally in a suit upon the administration bond. Per Read, J. Hartzell v. Com , 6 Wr. 453. 18. A foreign administrator, who has re- covered a decree against his predecessor in the trust in another State, can sue in Pennsylvania, on the record because the defendant is not a debtor of the decedent. Moore v. Fields, 6 Wr. 46T. 19. A guardian's bond cannot be can- celled while the trust exists. Neim:omer''s Appeal, 1 Wr. 43. 20. The sureties of an administrator improperly appointed, are liable for his default in paying over the proceeds of sale of real estate, although the bond did not cover said proceeds, (being in the usual form only,) and although the sale was made by the administrator after the ex- piration of a year, under a power to exec- utors to sell "within one year." Shalter and Ehling's Appeal, 1 Wr. 83. 21. A power to sell so that it "be done within one year," may be executed after the expiration of the year, for the latter clause is but directory, and not a condi- tion precedent. Shalter's and Ubling's Appeal, 1 Wr. 83. 22. A balance found due to an admin- istrator on settlement of his accounts be- comes a lien upon the real estate of the decedent. Demmy's Appeal, 1 Wr. 155. 23. An administrator signing an ac- knowledgment of Indebtedness or confes- sion of judgment, is not liable personally. Dickey v. Trainer, 7 Wr. 509. 24. Where goods, &c., have come into the hands of an administrator or executor after filing a final account, he can be called on to file a supplementary account. A bill of review is not the proper remedy. Shaffer's Appeal, 10 Wr. 131. 25. An administrator is liable for a debt lost by his neglect to sue a solvent debtor, although his delay has been at request of the widow. Shaffer's Appeal, 10 Wr. 131. 26. An administrator cannot make an executory contract imposing a new and original obligation upon the estate, but he may sign a waiver of formal mode of proof. Anderson v. Washabaegh, 7 Wr. 115. 27. A trustee for custody and manage- ment must invest the fund and its increase, but he should be allowed a reasonable time for investment. Galey's Appeal, 11 Wr. 356. 28. A credit allowed for debts paid by an executrix out of the personal estate instead of out of the rents, the payment being beneficial to the legatees. Smith's Appeal, 11 Wr. 424. 29. An administrator " cum testamento annexo " has power to sell, if the executors had. Per Fisher, P. J., affirmed by Su- preme Court. Keefer v. Schwartz, 11 Wr. 503. 29J^. Where a mortgage is given to an administrator to secure the widow's inter- est during life, and on her death the prin- cipal to be paid to the heirs of the de- ceased, upon the death of the administra- tor the mortgage cannot be sued out by his executor. The heir can collect it, or the administrator " de bonis non " of the original estate can sue it out. Brooks v. Smyser, 12 Wr. 86. 30. But where the mortgage is purchased by a third party, who pays the heirs and takes an assignment from the executor of the administrator, and the executor of the mortgagor confesses a judgment which remains for fourteen years, the terre tenants cannot object, although the con- fession was within the year after the debt fell due. Per Pearson, J., affirmed by Supreme Court. Ibid. 31. An executor is a trustee. One who borrows from an executor the assets of the estate can be compelled to restore them in specie by a bill in equity, and to pay all interest derived therefrom. Abbott V. Beeves, 13 Wr. 494. 32. An executor can be surcharged for policies assigned by his testator in fraud DEC 64 DEC of creditors unless he collects them. Ap- peals of Elliott and Glay, 14 Wr. f5. 33. A dismissed executor can be at- tached for disobedience of an order to pay and deliver to his successor. Tome's Ap- peal, U Wr. 285. 335. Administrators cannot create or incur an obligation against the estate. If they undertake to do so the obligation becomes their own. Fluck v. Hager, 1 P. F. Smith, 459. 34. The fact that land is sold by an executor for less than its value is no ground of surcharge where " the sale was fair and made in good faith, without fraud or connivance, and for the highest and best price which could be obtained at the time." Springer's Estate, 1 F. F. Smith, 34-'. Note. — Tlie fact that one of the executors was the pur- chaser was not made the subject of an exception. 35. The declaration by an executor that the lands would not be sold unless they would bring their value, is not a guarantee that such a price should be obtained. Ibid. 36. An executor cannot be surcharged beyond the actual profits, without pn ofs of supine negligence or wilful default. Springer's Estate, 1 P. F. Smith, 342. 37. Family arrangements will be en- forced if all parties in interest agree, and there are no creditors ; although the ad- ministrator does not consent. Hence where the widow and all the heirs (being of full age) sell out their interest in cer- tain personal property of the decedent, there being no creditors, the administrator cannot bring trover against the purchaser. Walworth V. Abel, 2 F. F. Smith, 370. 38. The Orphans' Court jurisdiction in favor of creditors is not exclusive of the common law remedy. McLean v. Wade, 3 P. F. Smith, 146. 39. One who has acted as bailiff in col- lecting the estate of a decedent may be sued by his principal in account render, although he might be liable as executor de son tort. Ibid. 40. When an executor gives bond under order of Orphans' Court, the legatees have a vested interest therein. It is not a guarantee to the Court, and they can- not release the bond without the consent of all parties in interest. Com. v. Sogers, 3 P. F. Smith, 470. 41. Nor is such a bond discharged by a distribution to only part of the legatees of money paid to the sheriff upon an exe- cution on a judgment of indemnity given by the executor to his surety. Ibid. 42. It is the duty of a guardian to place the ward's land upon lease and to collect the rents. He can avow ; bring ejectment. If, by his omission to distrain, rent is lost, he is chargeable. So, too, if he reject a proper offer to rent the estate. Hughes' Minors' Appeal, 3 P. F. Smith, 500. 43. An administrator of an insolvent estate ought to retain property of which the deceased died in possession, as against one who claims under a bill of sale fraud- ulent as to creditors by non-delivery of the goods. Bain v. Doran, 4 P. F. Smith, 124. 44. An executor can maintain eject- ment under a will directing a sale of realty, although he was not expressly em- powered to make the sale, and although not directed to bring the suit by the Or- phans' Court. Kirk v. Garr, 4 P. F. Smith, 285 45. If guardians accept a mortgage and bond from an administrator as satisfac- tory security for money belonging to the heirs, the administrator is released from further responsibility. Zooh's Appeal, 4 P. F. Smith, 486. 46. An administrator of a deceased ad- ministrator cannot collect a claim due the original estate. It can only be collected by an administrator de bonis uon. Stair V. Bank, 5 P. F. Smith, 364. 47. In order to fix the liability of an ad- ministrator's sureties for the faithful ac- counting of the proceeds of realty, a sep- arate account should be filed of such proceeds. An account composed of real and personal estate is not such an account. Com. V. Eilgert, 5 P. F. Smith, 236. III. Of defences by heirs, adminis- trators, DEVISEES, WIDOWS — AGAINST CLAIMS, JUDGMENTS, &C., DUE BY DECE- DENT — How AND WHEN LANDS CHARGE- ABLE WITH DEBTS. 1. In an action to revive a judgment against the heirs of a deceased defendant, they cannot be permitted to plead that, as heirs and devisees, they take and hold nothing by descent from their ancestor. Coulter V. Selby, 3 Wr. 358. . 2. When a judgment has been recovered against a defendant, his administrator is not entitled to t^^e next term after service DEC 65 DEC of the sci. fa. to appear. Wallace v. Holmes, 4 Wr. 427. 3. But judgment against the adnninis- trator does not prevent a stay, in order to apply to the Orphans' Court for a sale. Ibid. 4. A mortgage of land of a decedent may be stayed in his suit until adminis- trator can apply for order of Orphans' Court for sale. Kater v. Steinruck, 4 Wr. 501. 5. A sheriff's sale of the heir's estate does not divest the lien of the decedent's debts. Horner v. Hasbrouck, 5 Wr. 169. 6. The lands of a decedent like his goods are assets for the payment of his debts, and both realty and personalty are committed to the jurisdiction of the Orphans' Court. If that Court set aside proceedings for the sale of the realty, because of irregularities, its jurisdiction is not impaired. It is exclusive. Credit- ors can be restrained from proceeding at common law against the real estate of the deceased, although on judgment against the heir, they may sell his interest alone, but no title passes to a vendee of the heir's interest which can prevail against the purchaser at Orphans' Court sale of the decedent's estate. Horner v. Has- brouck, 5 Wr. 169. 7. A balance found due to an adminis- trator on settlement of his account, be- comes a lien, upon the real estaie of the decedent. Demmy's Appeal, 7 Wr. 155. 8. But the payment by the administrator of a debt due by the estate, cannot prolong the existence of the lien beyond the five years. Ibid. 9. The statutory period begins to run from the death, not from the grant of let- ters. Ibid. 10. Confirmation of a sale does not divest the interest of the heir; until de- livery of the deed he can maintain eject- ment even against the purchaser, and upon death of the heir before delivery of the deed, no conversion is worked, and his interest descends as land, not as money. Bemmy's Appeal, 7 Wr. 168. 11. If a sci. fa. sur judgment against a decedent's estate is not properly pursued, the lien of the debt is lost. Buehler v. Buffington, 7 Wr. 278. 12. A will directing a sale for payment of debts, "all accounts to be brought in, in lawful time," does not create a trust extending the limitation of the lien of debts. Buehler v. Buffington, 7 Wr. 278. 13. Although the lien of a judgment is restricted to certain land, yet after death of the defendant it binds other land as a debt7?L-e years, and if prosecuted, ten years. If so prosecuted, and if within that time the widow and heirs are served, they must impeach the debt, or show its payment. McMurray v. Hopper, 7 Wr. 468. 14. Though the money is not due upon the judgment, the plaintiff can and must continue the lien by sci. fa. Ibid. 15. Piling a praecipe for a sci. fa. does not continue a lien. Ibid. 16. Where the personalty is sufficient to satisfy a testator's debts, and it is actu- ally applied by an executor to discharge them, the devisees are discharged from the charges upon their devises for pay- mant of debts. Per Hays, J., affirmed by Supreme Court. Gr off 's Appeal in My'' s Estate, 9 Wr. 379. 17. A general judgment cannot be sus- tained on a narr, two counts whe.reof are against executors on their personal prom- ise, and one upon the testator's promise. Bogle V. Kreitzer, 10 Wr. 465. A judg- ment might be sustained, if entered spe- cially on the last count. Ibid. 18. Personalty in hands of executors is not liable for ground-rent accruing subse- quently to the death of the covenantor. Per Stroud, J. Taylor v. Painter, Tliird Philadelphia Reports, 365, affirmed by Supreme Court. William's Appeal, 11 Wr. 283. 19. A creditor of a decedent should not be allowed more than he claims. Years- ley's Appeal, 12 Wr. 531. 20. A claim presented is itself no evi- dence, but if the administrator claim the benefit of the credits therein stated, he makes the paper prima facie evidence of the debits also, But he may disprove the debits, if he can. Ibid. 21. A laborer serving a single employer for years, may make weekly entries in his book. Ibid. 22. Payments made by a decedent within six years, prevent the bar of the statute. Ibid. 23. It is not necessary that heirs should be made parties to a sci. fa. to revive a judgment obtained in the lifetime of the decedent. Bennet v. Fulmer, 13 Wr. 155. DEC 66 DEO 24. The administrator can confess a judjijment and waive inquisition. Ihid. 25. A widow can claim the amount of life policies issued directly to her upon the life of her husband, though he was insol- vent. Appeals of Elliott and Clay, 14 Wr. lb. 26. Otherwise as to policies in his name assigned to her. Ibid. 2T. After judgments against an execu- tor on sci. fo. against widow and devi- sees, the plaintiff may read the judgment and rest, the widow and devisees can then be heard fully on original grounds, and show that the debt never existed, has been paid, &c. If they do not assail it, the prima facie case becomes conclusive. It is of no avail to show that the damages were assessed on a wrong principle, unless they show to what extent they were wrong. Butler v. Slamm, 14 Wr. 456. 28. When administrators take an^as- signment of a mortgage from one who held with the mortgage the covenant of the deceased guaranteeing the mortgage, the guarantee becomes extinguished, and a subsequent transfer of the mortgage cannot revive the guarantee. The mort- gage and the guarantee being owned in the same right, the guarantee was at an end, and though in other cases a simple transfer of a paper carries with it all its securities, an assignment of this mortgage could not carry with it the guarantee, for it no longer existed. Fluok v. Bagger, 1 P. F. Smith, 459. 29. A sale of real estate under a judg- ment obtained in the lifetime of owner, but upon an execution issued after his death, and without nci. fa. to the pergonal representatives, is a sale upon process ex- pressly forbidden ; it is therefore void, and passes no titles. Cadmus v. Jack- son, 2 P. F. Smith, 295. IV. As TO INHERITING — DISTRIBUTION BY AGREEMENT — WhaT GOES TO THE HEIR — Support of minors — Sale of THEIR LAND. 1. Upon death of the owner of land derived from his grandfather, his mother is entitled only to a life-estate, and cannot inherit to the exclusion of the next of kin ex parte paterna. The proviso to the ninth section of the Act of April 8, 1833, applies to the fifth and seventh sections of the same act. EoberttP Appeal, 3 Wr. 4n. 2. A voluntary deed of distribution by an heir binds, although some of the dis- tributees who sign are not sui juris. Cressman's Appeal, 6 Wr. 147- 3. Rent payable in grain not harvested until after the death of the landlord, goes to the heir. McDowell v. Adams, 9 Wr. 430. 4. A guardian can be ordered to pay a reasonable sum for the maintenance of the ward. Lriby's Appeal, 13 Wr. 182. 5. A husband taking his wife's .share of land sold in partition in the Orphans' Court, takes the usufruct for life. Upon the death of the wife, the whole vests in her heirs, subject to the husband's life-es- tate. The heirs living at her death take the estate, not those surviving the hus- band. Hence, in such a case where the wife died leaving three children, each child took one-third, subjectto the father's life-estate. Two of these dying without issue, their shares descended to their father as personalty ; it was no longer realty, and did not go to the surviving sister. Ha.yft' Appeal, 2 P. F. Smith, 449. 6. Where there are no debts and no distribution needed, a solitary heir can sue without administering. McLeanr. Wade, B P. F. Smith, 146. 7. Where one invests rents in the name of the heirs of A, the executors of the investor cannot set up that the land from which the rents came did not belong to A, and thus claim the rents. Ibid. 8. A sale of a minor's interest in real estate under the Act of 1853, (the Price Act,) not for the purpose of raising money for the minor, does not work a conversion into personalty. In its distribution it is to be treated as realtv. Holmes' Appeal, 3 P. F. Smith, 339. " 9 Title in a minor by deed is by pur- chase, and the common pleas has jurisdic- tion to order the sale under the Price Act. Beed v. Palmer, 3 P. F. Smith, 379. V. Power of Obphans' Court to appor- tion INCOME ; TO DECREE EXECUTION OF CONTRACTS ; TO DISTRIBUTE PAR- TIALLY ; TO ORDER SALES, ALTHOUGH PART IS MORTGAGED, AND, GENERALLY, AS TO ORDERING SALES ; SETTING ASIDE SALES— Of distribution among cred- itors ET AL. 1. Where a will directs an investment to be made, and interest thereof to be DEC 67 DEO appropriated to the necessities of a lega- tee and those of his wife and family, the Orphans' Court have the supervision of its management, and can apportion the income where the husband is intemperate and ill-treats his wife, so as to allow the wife a maintenance. Noble's Appeal, 3 Wr. 425. 2. The Orphans' Court has unquestion- able jurisdiction to decree the execution of contracts of decedents, but it has no authority to entertain a bill by a stranger to such decrees, to rescind its orders. Weyand v. Weller, 3 Wr. 443. 3. The Orphans' Court may make a partial distribution of a fund, if enough is reserved to pay an unestablished claim. Appeal of Gable's Exrs., 4 Wr. 231. 4. An order of sale for payment of debts may be granted, although a portion of the real estate is covered by a mort- gage then sued out, and it is in discretion of the Court to investigate the facts, or to refer to an auditor. Fitzsimmons' Appeal, 4 Wr. 422. .5. A sale will not be set aside on appli- cation of a widow claiming title, the pur- chaser being willing to take it. Khne's Appeal, 3 Wr. 463. B. The Orphans' Court have only power to order a sale of decedent's interest in the land. Kline's Appeal, 3 Wr. 463. *l. A mortgagee (f land of a decedent may be stayed in his suit until adminis- trator can apply for order of Orphans' Court for sale. Kater v. Steinruck, 4 Wr. 505. 8. Real estate sold for payments of debts may be shown to have been pur- chased with a portion of an assigned estate intrusted to the decedent, who was the assignor, and the Orphans' Court should then distribute the proceeds under the assignment. Rohh's Appeal. Har- per's Appeal, 5 T-T'V. 45. 9. The Act of April 18, 1853, is a remedial statute, and is to be benignly ex- pounded. The right to decree a private sale does not depend upon the existence of other undivided interests in the land, and the willingness of other parties to take a given sum. The Court or auditor may determine this question for them- selves. Per Thompson, J. Oilmore v. Bodgers, 5 Wr. 120. 10. It is not error for the Orphans' Court to decree a private sale at a lump- ing price, although the petition refer to a price per acre. Oilmore v. Bodgers, 5 Wr. 120. Nor will an error as to the interests of the heirs affect the title of the purchaser. Ibid. 11. The lands of a decedent, like his goods, are assets for the payment of his debts, and both realty and personalty are committed to the jurisdiction of the Orphans' Court. If that Court set aside proceedings for the sale of the realty, because of irregularities, its jurisdiction is not impaired. It is exclusive. Cred- itors can be restrained from proceeding at common law against the real estate of the decedent, although on judgment against the heir, they may sell his interest alone, but no title passes to a vendee of the heir's interest which can prevail against the purchaser at Orphans' Court sale of the decedent's esi;ate. Horner v. Has- brouck, 5 Wr. 169. 12. A purchaser under an Orphans' Court sale ordered on his own petition, cannot object that the order was not in strict conformity with the law, especially as such defects may be remedied at the time of confirmation. Demmy's Appeal, 7 Wr. 155. 13. A fire between sale and confirma- tion, seriously affecting the value of the property, discharges the purchaser. Demmy's Appeal, T Wr. 155. 14. Creditors may contest each other's claims before an auditor. Hahnlin's Ap- peal, 9 Wr. 343. 15. Creditors who do not verify their claims when they send them to the ad- ministrator, and do flot appear before the auditor, cannot reverse because of theii absence from the State. Ibid. 16. The Orphans' Court may base its order of sale upon a reservation of a lien, and where the purchaser reserves th« amount thereof, there may be a personal judgment against him. Deck v. Gluck, 11 Wr. 403. IT. A title passes by Orphans' Court sale though the administrator fail to give security. Disley v. Laning, 13 Wr. J 43, 18. The share of an heir in the pro- ceeds of the real estate of his ancestor is not liable to deduction for a judgment due by him to the decedent, where the land is sold and the fund is in hands of a third party for distribution. Wallace v.. Keyser, 1 P. F. Smith, 493. 19. The right to deduct a debt due by an heir from his share of the estate, can- DEC DEC not be enforced until the party or the fund is in the power of the Court. Per Agnew, J. Ibid. 20. A mortgage is payable out of per- sonalty, whether given by decedent or binding on land he purchased. Lennig's Estate, 2 P. F. Smith, 135. 21. A widow electing to take under the intestate laws cannot have mortgages charged upon the realty. Ibid. 22. Partition of a decedent's estate does not prevent a sale for payment of his debts. Desher v. Allentown Co., 2 P. F. Smith, 225. 23. On a sale in partition and receipt of the fund by administrators, they should apply for an auditor to ascertain liens. The interest of an heir is bound by judg- ments against him in their order. Lucas' Appeal, 3 P. F. Smith, 404. 24. A want of jurisdiction is as fatal to decrees of the Orphans' Court as of any other tribunal. Torrance v. Torrance, S P. F. Smith, 505. 25. If a clerk enter a petition as for sale of real estate for payment of debts, this does not excuse a purchaser under the^ order from looking further, and if the petition is by an executor for the sale of the realty of the deceased to pay legacies, the proceeding is wholly void and no title passes. Ibid. 2fi. An unrecorded mortgage without possession taken under it, is not entitled to preference in distribution of a dece- dent's estate. Nice's Appeal, 4 P. F. Smith, 20O. 2t. When land is sold as unproductive, and the proceeds invested for the benefit of a tenant for life, on the determination of that estate the proceeds are to be dis- tributed as money. Large's Appeal, 4 P. F. Smith, 383. 28. An adult assenting to an Orphans' Court sale of hi.s land, is estopped from disputing its irrogularitj'. Ibid. 29. Where land is sold subject to the widow's dower, she is not entitled to the interest of one-third of the proceeds, but they, after payment of debts, belong to the heirs. Zoolc's Appeal, 4 P. F. Smith, 436. 30. An administrator may petition for a private sale of real estate to pay debts. Eower's Appeal, 5 P. F. Smith, 331. 31. But the Court will not so decree if the title is contested. Ibid. 32. The "Price Act'' is intended to ' pass unencumbered titles, not to settle questions of title. Ibid. VI. As TO ADVANCEMENTS ; GIFTS ; RE- LEASING DEBTS — OONVEKSION. 1. An advancement to a daughter may be made by releasing a debt due by her husband, but this does not make the hus- band a debtor of his wife. Must's Ap- peal, 4 Wr. 24. 2. A gift cannot be converted into a debt by any subsequent act or intention of the father. If it was the creation of a debt it will so continue, notwithstand- ing any change of the parent's intention, unless some further act be done to con- vert it into an advancement. Per Strong, J. 3Iiller's Appeal, 4 Wr. 60. 3. The fact that one child has received more than another, raises no presump- tion of an advancement. Ibid. 4. It is cogent evidence that an ad- vancement is not intended when security is taken or evidence preserved as of a debt. Ibid. 5. Charges of moneys furnished, made in a general day-book, are evidences of debt, and are not to be converted into an advancement by the father's ex-parte declaration that they were for the son's education, and were to come off from his inheritance. Ibid. 6. Where there is no other proof than the charges, they are to be treated as a debt, and the book not being evidence thereof, the son is not to be charged. Ibid. 7. A sum charged to a legatee as an advancement is to be so treated, although the testator had made loose memoranda of it as a loan. Thompson's Appeal, 6 Wr. 345. 8. Whether loan or advancement, the legatee must do equity before he can claim equity, and the legacy is to abate, although the statute might have barred the loan. Ibid. 9. To establish a conversion, the will must direct it, irrespective of all contin- gencies. The direction must be positive, and there must be decisively fixed upon the land the quality of money. Where directions to sell are not absolute, but subject to the election of a devisee, there is no conversion until the sale is actually made. Anewalt's Appeal, 6 Wr. 414. 10. A receipt to a father-in-law, "in part of my wife's share as willed to her, which I bind myself to account for to his DEO 69 DEO executors on final settlement," is neither a gift nor advancement in partial ademp- tion, but a loan, and can be demanded before the estate is finally settled. Craig V. Moorhead, 8 Wr. 97. 11. An alDsolute deed, with bond from grantee for support of grantor, may be shown to be an advancement by a prior cancelled deed, and by parol. Kingx- hury^s Appeal, 8 Wr. 460. 12. If the parent pay the purchase money and take the deed in the name of the child, it is an advancement, not a re- sulting trust in favor of the parent. Mur- phy V. Nathans, 10 Wr. 508. 13. A sale of a minor's interest in real estate, under the Act of 1853, (the Price Act,) not for the purpose of raising money for the minor, does not work a conversion into personalty. In its distribution it is to be treated as realty. Holmes' Appeal, 3 P. F. Smith, 339. '- 14. When land is sold as unproductive, and the proceeds invested for the benefit of a tenant for life, on the determination of that estate the proceeds are to be dis- tributed as money. Large's Appeal, 4 P. F. Smith, 383. VII. Commissions — Charging account- ant WITH INTEREST AND EXPENSES — Allowing counsel fees. 1. Commissions of $450 allowed on $1,100 personalty, and $2,600 proceeds of realty. Miller's Appeal, 4 Wr. 51. 2. Executors are chargeable with in- terest, the fund drawing interest. Appeal of Gable's Executors, 4 Wr. 231- 3. Executors are to be allowed for counsel fees paid to collect notes given to them by residuary legatees, and not paid, although suit is brought to reimburse the executors for paying a specific legacy, and it is error to charge such expenses to the specific legatee, simply because he would have been compelled to sue for his legacy if the executors had not advanced the moneys. Wilson's Appeal, 5 Wr. 94. 4. For mere omission or negligence of guardian, or other trustee, the rule is to charge simple interest, and no more. Pen- nypacker's Appeal, 5 Wr. 494. Nor should rests be made. Ibid. 5. If a testator provide for payment of general commissions, and also for addi- tional services, the executor cannot claim rem devisees a commission upon prop- erty conveyed to them by the executors as trustees. Shippen v. Burd, 6 Wr. 461. 6. A guardian's account may be cor- rected on his petition for a review, so as to relieve him from a charge of moneys and interest never received, and not chargeable against him. Yodet^'s Appeal, 9 Wr. 394. "7. An accountant is not chargeable with interest during the pendency of ex- ceptions to his account, unless filed by him- self and groundless. Yoder's Appeal, 9 Wr. 394. McElhenny's Appeal, 10 Wr. 341. 8. Nor is he chargeable with the ex- penses of an audit for correcting mistakes against himself ,in his account, where the opposite party insisted upon holding the accountant to the mistakes. Ibid. 9. A guardian is not chargeable with interest pending exceptions of the other party, unless actually received ; nor with costs when he acted in good faith, without fraud or delay. He should be allowed counsel fees for necessary services and commissions, two and a half per cent, for responsibility, and an addition for custody and management. $600 allowed for collec- tions amounting to nearly $8,000, and nine vears service, management of a farm, &c. " McElhenny's Appeal, 10 Wr. 347. 10. The commissions of an executor cannot be attached in the hands of his co- executors and himself Adams' Appeal, {Hutchinson's Estate,) 11 Wr. 94. 11. A trustee for custody and manage- ment must invest the fund and its increase, but he should be allowed a reasonable time for investment. Galey's Appeal, 11 Wr. 356. 12. Commissions lost by negligence arising out of kind feeling. Smith's Ap- peal, 11 Wr. 424. 13. Costs of audit charged to estate where balance charged is diminished. Ibid. 14. Interest is not to be charged by rests. Where a trustee has used the money, he is only liable for the rate of interest received in the neighborhood. Graver's Appeal, 14 Wr. 189. 15. Where he has acted faithfully, the trustee is not chargeable with costs. Graver's Appeal, 14 Wr. 189. 16. An executor cannot be surcharged beyond the actual profits, without proof of supine negligence or wilful default. Springer's Estate, 1 P. F. Smith, 342. DEC 70 DEO It. He is chargeable with interest on moneys he should have collected and on balances. Hughes^ Minor^s Appeal, 3 P. F. Smith, 500. yill. Collateral inheeitance tax. 1. A devisee subject to the "payment of all taxes," is chargeable with the col- lateral inheritance tax, although the testa- tor declares that the devises are not to be "interfered with or lessened," and directs "all charges against his estate to be paid by his executors." Shippen v. Burd, 6 Wr. 461. 2. When a grandmother inherits, she must pay the collateral inheritance tax. McDowell V. Adams, 9 Wr. 430. 3. Where the whole estate passed from a devisor in 18'28, and a life-estate ter- minated in 1864, the tenant in remainder is only liable to a collateral inheritance tax of two and a half per cent, under the Act of 1826, and not to the five per cent, charged by the Act of 1846. Per Hayes, A. J., affirmed by Supreme Court. Com. V. Eckert, 3 P. F. Smith, 102. 4. Government bonds are subject to the collateral inheritance tax, not as bonds, but as part of the decedent's es- tate. Strode v. Com. Clymer v. Com., 2 P. F. Smith, 181. 5. Personal property of a decedent in another State not equal to the debts due there, is not liable to collateral inheritance tax. Com. V. Coleman, 2 P. F. Smith, 468. 6. Real estate in another State is not liable to the tax. Ibid. T. Ad administrator can appeal from the valuation of the personalty, but not of the realty. Ibid. 8. An act of legitimacy prior to the death of the parent will relieve the estate from the collateral inheritance tax. A subsequent act will not. Gom. v. Stump, 3 P. F. Smith, 132. IX. Of legacies— Interest thereon — When vested. 1. A legacy to a grandchild payable at her maturity, does not carry interest from the expiration of the year after pro- bate of the will. Leech's Appeal, 8 Wr. 140. 2. Where a will does not allow interest, equity will not allow interest, except where the relation of the legatee to the testator, in connection with circumstances of destitution and dependence of the lega- tee, seems to demand it. Per Lowrie, C. J. Ibid. 3. Where a legacy is payable so soon as the legatee reaches a certain age, or upon any other contingency, no interest is chargeable meanwhile; but where it is vested, it carries interest. Duffey v. Prea- byterian Congregation, 12 Wr. 46. 4. Where the legatee i.s a child of the testator, and a minor incapable of sup- porting himself, or one to whom the tes- tator has plaeed himself in loco parentis, and no specific provision is made for his raaiuteuance, interest will be allowed on the legacy, although not payable until a future time. Per Kill, P. J., afflrmed by Supreme Court. Clark v. Wallace, 12 Wr. 80. 5. A bequest to a daughter of a certain sum which is to remain a lien on the real estate during her life, the interest to be paid to her annually, and at her death the principal to her children when they arrive at lawful age, is a vested legacy in the children, bearing interest, and is re- coverable in the Orphans' Court by pro- ceedings against the devisees accepting the land. Ibid. X. Of auditors. 1. The docket entry of a reference to an auditor may be enlarged by the certifi- cate under seal issued to him, so as to include the taking of evidence and stating of an account. Yoder's Appeal, 9 Wr. 394. XI. What is discharged by sAle in partition — Right of purchaser to possession. 1. Debts of a decedent are not dis- charged by a sale in partition made within two years of the granting of administra- tion. Wihon's Appeal, 9 Wr. 435. ^ 2. Partition of a decedent's estate does not prevent a sale for payment of his debts. Dresher v. Allentown Co., 2 P. F. Smith, 225. 3. On a sale in partition and receipt of the fund by the administrators, they should apply for an auditor to ascertain liens. The interest of an heir is bound by judgments against him in their order. Lucas' Appeal, 3 P. F. Smith, 404. 4. The purchaser at an Orphans' Court sale in partition can obtain possession like a sheriff's vendee, under the Act of April 9, 1849. Simpson v. Thornton, 4 P. F. Smith, 391. DEO 71 DEE XII. Right op husband and wife to ADMINISXEE — HoW IT MAY BE AFFECTED. 1. The surviving tusband is entitled to administer to the estate of his deceased wife, or to nominate an administrator. 6'oouer's Api^eal, 2 P. F. Smith, 421. 2. A wife who deserts her husband is not entitled to exemption or administra- tion, or to object that the administrator appointed is a non-resident. Per But- IBR, P. J., affirmed by Supreme Court. Ordiorne's Appeal, 4 P. F. Smith, 175. DECEIT. Evidence in. See, generally. Evidence. Master not liable for servant's deceit. See Agent, i. 1. A defendant is not liable for false .representations, honestly believed to be true, nor for his omission to mention the existence of a judgment, if it was from thoughtlessness and without intent to deceive. Per Strong, J. Graham v. Bollinger, 10 Wr. 55. 2. In the absence of warranty it is for the jury to say whether misrepresenta- tions were made knowingly and fraudu- lently. If the parties are not in a position of equality, false representations avoid the contract. Bigler v. Flickinger, 5 P. F. Smith, 283. DECLARATION In pleading. See Pleading, 2, 3, 9, 12, 20, 21, 22. DECLARATIONS Of husband. See, generally, Husband and Wife IV. Declarations are insufficient to divest a right acquired. See Limitations I., 9. Declarations of surveyor. See Emdence IX., 2, 28. DECREE. Conclusiveness of Orphans' Court de- cree. See Orphans^ Court, 6, 14, 18, 21. DEEDS. As to deed and judgment same day. See Day. As to deeds obtained by fraud, imposi- tion, &c., and as to fraudulent deeds. See, generally. Fraud. Laches in recording a deed, and there- by giving a false credit to husband. See Husband and Wife II., 12. As to mental unsoundness affecting deeds. See Imbecility, 2, 3. Reservations, exceptions, (of coal, &c..) uncertain deeds, and as to words creating a condition. See, generally, Land IX. and XII. If mortgage not recorded in mortgage book, it is unrecorded. See Mo7-tgage lY., 2. As to words " issue," " children," what words create a life-estate, and as to rule in Shelly's case. See Shelly. As to revocable deeds, and deeds to take effect after death. See WilU II., 1 8. 1. A voluntary deed of distribution made by an heir is binding, although some of the distributees who sign it are not sui juris. Cressman^s Appeal, 6 Wr. 141. 2. A deed must be so construed, if pos- sible, that no part shall be rejected. If the habendum is absolutely repugnant to the premises, it must give way. But a grant in the premises to one, " his heirs and assign?, subject to the limitations hereinafter expressed,''' is not repugnant to a habendum limiting the grant as to part of the property to a life-estate, and the grantee takes but a life-estate in that portion. Per Strong, J. Tyler v. Moore, 6 Wr. 314. 3. An agreement for sale of land is not merged in the deed, in regard to that which is not to be consummated by deed, and which is collateral to it, as a reserva- tion of the crop. Harbold v, Euster, 8 Wr. 392. 4. A ground-rent landlord cannot re- cover (nor can his innocent assignee re- cover) upon a ground-rent deed in which the time for redemption, originally left in blank, has been, after execution of the deed, filled up without the consent of the tenant. There is no remedy either by debt, covenant or distress. Wallace v. Harmstead, 8 Wr. 492. DEM 72 DIS 5. A deed by one who is attorney in fact of the owner is good, although it is drawn as if the attorney held the title. Henhy v. Warner, 1 P. F. Smith, 216. 6. A deed " to the heirs of the" grantor's son "for the natural love he had for his grandchildren," is not void either for un- certainty or because the son of the grantor was then living. Huss v. Ste- phens, 1 P. F. Sviilh, 282. T. "Grandchildren" is a designatio personarum, and "heirs" is to be con- strued as a word of purchase, mea.iing the grandchildren. Had the grantor named them, he could scarcely have been better understood. Per Woodward, C. J. Ibid. 8. A wife can prove her "acts and declarations at the time, and before the execution and acknowledgment of a deed, as to her unwillingness to execute it, and that she executed it through compulsion of her husband and not from her own free will," without coupling this with an offer to prove knowledge of the coercion on the part of the grantees. Hall v. Patterson, 1 P. F. Smith, 289. Note. — The testimony "had already teaded to prove the grantees' knowledge of her unwiUing:uess." 9. To require a party, as each link is produced, to weld it to all others which shall follow, would burden the cause. Per Agnew, J. Ibid. 10. A magistrate's certificate of a wife's voluntary acknowledgment is not conclu- sive in cases of fraud or constraint, but a bona fide purchaser without notice is excepted from this rule. Jbid. 11. A deed of trust made for the gran- tor's own personal convenience, by which the trustees are to account to him, and by which no beneficial interest vests until after his death, is revocable. Frederick's Appeal, 2 P. F. Smith, 338. 12. If a plaintiff show a lucid interval, he is not bound to show that the instru- ment was read to the lunatic. Noel v. Harper, 3 P. F. Smith, 97. 13. If a grantee alter or destroy his deed, his title to the land is not gone. The instrument is rendered void, not the estate. Bifener v. Bowman, 3 P. F. Smith, 312. DEMAND For exemption. Vide Execution III. 1. For payment of coupons, unneces- sary when defendant not ready to pay. B. B. Go. V. Adams, i P. F. Smith, 94. DEMURRER To evidence. See Practice VII., 7. To bill in equity. See Equity II. DESCRIPTION. 1. Description by number of street suf- ficient in ejectment for premises in a city having a known system of notation. Flanigan v. City, 1 P. F. Smith, 492. DEVASTAVIT. See Decedents' Estates II. DEVISEE. Plea by, to sci. fa. See Decedents' Estates III., 27. DIRECTOR. See Corporations. Directors de facto can hold an election. See Quo Warranto, 3. DISCLAIMER. See Ejectment II., 2, 7, 20, 24. DISCOVERTURE. When it entitles to a reconveyance. See Trusts V. DISCRETION Of school directors not reviewable. See Schools, 5. Reviewing discretion of Orphans' Courts. See Decedents' Estates I., 3; and see Orphans' Court. DISFRANCHISEMENT. See Corporations IV., 35, 36, &c. DISMISSAL OP SERVANT Before term expires. See Contract I., 3. DISTILLED SPIRITS. See, generally. Inspections. DISTRESS. See, generally. Landlord and Tenant. Distress for dower. See Dower, 13, 14. DISTRIBUTION. Under sheriff's sales. See Execution VIII. Of decedents' estates. See Decedents' Estates V. Diy 73 DOM DIVIDED COURT. See Practice VII., 3. DIVIDEND. To creditor of assigned estate. See Debtor and Creditor IX. To creditor of decedent's estate. See Decedents' Estates V. Fraudulent dividend. See Corporations V., 24. A dividend devised is not apportionable. See Wills VI., 24, 25. 1. A tax on dividends on capital stock is to be calculated with reference to thecas/i capital. Railway Co. v. City, 13 Wr. 251. DIVISION OF THE COURT. See Practice VII., 3. DIVORCE. Defendant estopped from appealing by- claiming under the decree. See Estoppel, 1, 8. 1. A divorce decreed where the sub- poena issued in vacation and but twelve days before the ensuing term, is not void. It is only voidable if the objection is taken in time, and by a party who had a right to object. Miltimore v. Miltimore, 4 Wr. 151. Where a wife obtains a divorce on the ground of adultery, her dower is gone. Ibid. A libellant can- not show that her proceeding was by fraud, collusion or force. Ibid. 2. If a party be in Court by appear- ance or service, and make no application for an issue until the Conrt is about to determine the case on testimony taken, it is too late to demand an issue. Allison V. Allison, 10 Wr. 321. 3. The Act of 1855 creates no addi- tional causes of divorce. It only extends the jurisdiction to cases where parties at the time of the occurring of the cause of divorce were domiciled out of the State. Per LiNDSY, P. J., affirmed by Supreme Court. Gordon v. Gordon, 12 Wr. 226. 4. The cruelty and barbarity which entitle a husband to a divorce or to re- fuse to take his wife back, must be the same kind of cruelty as would entitle the wife to a divorce. Ibid. 5. Loose and immoral conduct, an un- governable temper, outrageous behavior, vulgar and obscene language, are not cruelty, do not justify a divorce, or the turning of a wife out of doors. Gordon V. Gordon, 12 Wr. 226. 6. Judge King's definition of cruelty in Butler v. Butler, (1 Parsons' Eq. C. 329,) adopted by Strong, J., in Gordon V. Gordon, 12 Wr. 238, viz : "Actual personal violence, or the reasonable apprehension of it, or such a course of treatment as endangers life or health and renders cohabitation unsafe." I. Desertion is an actual abandonment of matrimonial cohabitation with an in- tent to desert, wilfully and maliciously persisted in without cause for two years. Poverty and idleness, driving a wife to separation, and neglect to answer her letters, are not desertion. Ingersoll v. Ingersoll, 13 Wr. 249. 8. The Legislature can divorce without notice. If the reason is not assigned, it can be inquired into. The presumption is, that the cause was sufficient until the contrary is shown. Cronise v. Cronise, 4 P. F. Smith, 258. Roberts v. Boberts, Ibid. 265. 9. Exhibiting false statement of af- fairs, pretending to be wealthy when bankrupt, is not fraud for which Courts can divorce. Ibid. 10. A divorcing statute passed after a libel filed, is evidence in the divorce case, and puts an end to it. Ibid. II. In divorce the Court may direct the form of the issues, and are not bound to adopt the libel and answer as an issue. Waldron v. Waldron, 5 P. F. Smith, 231. If the issue is framed on the libel and answer, notice of special matter may be required. Ibid. The Court should allow counsel fees and alimony pendente lite, but its order, or suspension thereof, or directing a trial, although the alimony be not paid, is not reviewable. Ibid. 12. Jurisdiction in divorce depends on the real domicil of the parties at the time of the injury. If the plaintiff abandon his domicil and remedy in Pennsylvania to take up a new domicil where the de- fendant has never appeared, the decree is not binding in Pennsylvania. Calvin v. Reed, 5 P. F. Smith, 375. DOMAIN EMINENT. See Land XIII. DOMESTIC SPIRITS. See Inspection. DOM 74 DOW DOMICIL. A citizen does not cease to be an " in habitant" by enlisting. Graham y. Com., 1 P. F. Smith, 255. DONATIO MORTIS CAUSA. 1. A gift to a friend by a soldier, then in good health, of two promissory notes, followed by three letters confirming the act, and by the donor's death in a few months, is not a good donatio mortis causa, for the, donor was at the time in full health, not in his last illness, or in periculo inortis, contemplation, expecta- tion, or apprehension of death. Oourtey V. Linsenbigler, 1 P. F. Smith, 345. 2. A bond is a proper subject of a donatio mortis causa. Ihid. 349. 8. So are bills of exchange, promissory notes unendorsed, a policy, a mortgage, &c. Ihid. 4. If the donee dies before the donor, or the donor revokes the gift, there is no donatio mortis causa. Ibid. DOWER. Where devises affect dower. See Wills VI., 26. Dividends not apportionable. See Wills VI., 24, 25. 1. Where a wife obtains a divorce on ground of adultery, her dower is gone. Millimore v. Miltimore, 4 Wr. 151. 2. Dower is not a lien on land, but an interest in it. SchaU's Appeal, Gaul v. Lauer, 4 Wr. 111. 3. Dower is a permanent lien, and is not discharged by a sale in partition. Al- legheny City's Appeal, 5 Wr. 62. 4. A recognizance, given in partition is good for the widow's share, although in the name of the heirs alone Bailey v. Com., 5 Wr. 473. 5. Land of a decedent may be sold under a judgment which is no lien, and the widow's dower is thereby barred, al- though the husband die disseised. Di- rectors V. Payer, 7 Wr. 146. 6. Dower is not barred by a deed from the widow acting solely as administra- trix, ma^de under decree upon a contract of decedent for sale of the land. But if she convey" not only all the right of the decedent, but also her ovm estate, dower is barred, though not named. Thomas v. Harris, 7 Wr. 231 ; overruling Schurtz y. Thomas, 8 Barr, 359. 7. A sheriff's sale on a judgment ob- tained against the decedent in his life- time extinguishes dower, although the land is purchased by one who had con- tracted witli the decedent to buy it. Ibid. 8. In no Orphans' Court partition has the Court power to assign to the widow any thing else than her interest as defined by the intestate laws, or the interest given to her by the will of her husband. Her dower is neither. Per Strong, J. Brad- ford V. Kentz, 7 Wr. 474. 9. A widow refusing to take under a will and electing dower, is not debarred of her common law action against the devisees, though her husband may have died seized of the lands devised, and out of which dower is demanded. Ibid. 10. A widow's election may be evi- denced by matters in pais. It is not suffi- cient to prove that she has been passive, or received property under the will, unless she knew the situation of the estate, and the relative value of the properties. But after knowing this, if she receive the gift under the will and uses it as her own, she is not at liberty to say that she did not intend to relinquish dower. Ihid. 11. It is error to charge, that if she re- mained on the property merely to keep the household, "this would not be an election to accept it under the will." The true question is not what her motives were, but whether she had elected to take the bequest. Ibid. 12. Where acts of acceptance are of doiibtful import, lapse of time is decisive. Ibid. Acquiescence f jr eleven years after a distribution bars dower. Ibid. 13. The representatives of a widow can distrain for dower actually due at the time of her death, but not for an instal- ment falling due after her death. Hender- son V. Boyer, 8 Wr. 220. 14. The English and Pennsylvania statutes as to distress collected and re- viewed by Strong, J. Ibid. 15. A widow hasno dower in an estate, devised to trustees for the use of her hus- band during his life, and after his death for his children. Horwilz v. Norris, 13 Wr. 213. 16. A dower is not changed into per- sonalty by a partition in which the land is valued and the interest becomes an annual charge. Per Thompson, J. Mannh Appeal, 14 Wr. 375. DEA 75 EJE n. Where lands are held as severally by a devisee subject to only a common law right of dower, the jurisdiction is ex- clusively in the comraoa pleas. Shaffer V. Shaffer, 14 Wr. 394. 18. Dower must be paid to the last day of life, and so must an annuity in lieu of dower. Blight v. Blight, 1 P. F. Smith, 420. 19. A devise to trustees, their " execu- tors and assigns," will give them a fee — if they are to pay the income — and a son dying during the trust has no estate of which his vt^idow is dowabfe. McBride V. Srmjth, 4 P. I. Smith, 245. DRAIN. Praining water on to another's ground is actionable. See Water, 2. DRUNKARD. Sale of liquor to. See Innkeeper, 1, 2, 3. DRUNKENNESS As reducing grade of murder. See Crimes, 12. DRUNKEN PASSENGER May be removed. See Crimes, 13. EASEMENT. 1. One who purchased a lot front- ing on opposite sides of an alley leading to another lot having the use thereof, cannot close it up though his deed em- braces the whole of it. McCarty v. Kitch- enman, 11 Wr. 239. 2. If a way is laid out by an owner over his own property to connect one part with another, and to furnish an out- let, and he acquiesces in its use for twenty- five years, it passes as a parcel of the portion devised, having the use thereof Phillips V. Phillips, 12 Wr. 178. EJECTMENT. Recoftveyance necessary in order to rescind. See Contract IX., 1, 2. Costs upon conditional verdict. See Costs, 2. As to words creating conditions ; as to what will and will not work forfeiture. See Land XII. Will not lie against a public corpora- tion taking land, because the execution is returned nulla bona. See LandYllL, 8. Between landlord and tenant. See Landlord aiid Tenant, 10. As to sufficiency of ouster. See Limitations I. ' Original will need not be produced in ejectment. See Wills III., 5. I. Where, by whom, and for what ejectment will lie — of equitable ejectments — specifio performance of contracts for sale of land — of conditional verdicts — of eject- ments by mortgagee, executor, &c. II. Of the proceedings in ejectment — good without narr — of the pra9- cipe — what the plaintiff must show — of the defence — as to dis- claimer — evidence in ejectments — authority of attorney to confess judgment. III. As to former verdicts— establishing their certainty by evidence — their conclusiveness — effect of recov- ery in trespass — certainty of de- scription in judgment. IV. Of the haberi — of restitution. I. Where, by whom, and for what Ejectment will lie — Of equitable Ejectments — Specific performance OF contracts for sale of land— Of conditional verdicts — Of Eject- ment BY mortgagee, executor, &c. 1. One judgment in an equitable eject- ment is conclusive, but a verdict is not a judgment, although the jury fee is paid and the case indexed as though a judg- ment had been entered on the appearance docket. Fergusons. Staver, 4 Wr.2\3. 2. Where part of the condition of a verdict is that the land shall be sold, and at the sale the plaintiff becomes the pur- chaser, he is still entitled to his haberi &nd Ji. fa. for costs. Bradley v. O^Don- nell, 4 Wr. 479. 3. In equitable ejectment the condition of the parties at the time of the decree is regarded rather than at the commence- ment of the suit. Lauer v. Lee, 6 Wr. 171. 4. So that an instalment falling due in EJB 76 EJE the meantime may be included in the verdict. Ihid. 5. A plaintiff need not announce when he brings suit that his object is to enforce the payment of purchase money. Ihid. 6. In buch a case, it is error to permit the defendant to set up encumbrances against the plaintiff to prove his inability to make a clear deed. Ibid. 7. Nor is the plaintiff bound, as in covenant, to tender a deed before institut- ing the ejectment. Ihid. 8. A surety for the purchaser of land can, on paying the purchase money, receive a conveyance, and use the title to enforce payment to himself. Ihid. 9. An executory contract for land may be rescinded by parol, if evidenced by acts which leave no doubts of the intent. Ibid.. 10. A party can show that money paid on account of land w'as afterwards with the consent of the purchaser carried to another account. Ihid. 11. Ejectment is the appropriate rem- edy of a sheriff's vendee of the interest of one tenant in common, if the co-tenants refuse to acknowledge his title. Glenin- ger v. Hazard, 6 Wr. 389. 12. The Act of April 21, 1846, applies only between vendor and vendee, and not between mortgagor and / mortgagee. LowRiE, C. J. Hill V. Oliphant, 5 Wr. 3T5. The dictum {Brown v. Nickle, 6 Barr, 390,) that Act of April 21, 1846, applies only to ejectments by a vendor, and a verdict in his favor with time to vendee to redeem, overruled. Ihid. 13. If vendee bring ejectment and re- cover a verdict, with condition that he pay vendor a certain sum within three years, and if not paid, judgment shall be entered for the vendor, and the plaintiff do not so pay and judgment is entered for defendant, this annuls the equitable title. Ibid. 14. One who purchases the title of a party to an ejectment, after a verdict therein, is bound thereby to the same ex- tent as his grantor would have been. Ibid. mi. 15. In the United States Courts, the equitable title is not regarded in eject- ment. Ihid. SIT. ' 16. Ejectment to enforce specific per- formance will still lie notwithstanding the grant of equity powers to the Courts. Corson v. Mulvany, 13 Wr. 88. It is no defence for the vendor that the bond and mortgage he has agreed to take will not secure the purchase moneys ; nor that the contract gave the purchaser an option to buy, if the election has been exercised ; nor that the vendee's wife will not sign the deed. Ihid. 17. Ejectment will lie for fixtures which are in the nature of real estate. Hill v. Hill, 7 Wr. 521. 18. Where one tenant in common is in exclusive possession and forbids the use of the property to his co-tenant, ejectment will lie. Hill v. Hill, 7 Wr. 527. 19. In equitable ejectments, the first verdict and judgment conclude the right. But where it appears chat three grounds of defence were presented, only one of which was equitable, and it is impossible to say from the record and parol evidence what ground was sustained by the verdict, it is too uncertain to operate as an estop- pel. Per Strong, J. ileyers v. Hill, 10 Wr. 9. 20. The Act of April 21, 1846, (giving a defendant where time was essential, two years to pay his money or enforce his contract,) is constitutional, and applies to ajudgment confessed without trial. Waters V. Bates, 8 Wr. 473. 21. In ejectment by a vendor who gives in evidence the articles, defendant may show that the plaintiff could not comply with his contract. Erwin v. Myers, 10 Wr. 96. 22. It is allowable for th'e plaintiff to prove that, after the defendant entered, he damaged the property in order to offset any improvements defendant may rely on. Ihid. 23. But where a vendor sells a bad title as a good one, and thereby induces the vendee to take possession and pay part of the purchase money, it is a fraud to reclaim possession without paying back the purchase money received. Ibid. 24. In such a case the plaintiff ought not to have a verdict to be released on payment of the purchase money of a good title. Ihid. 25. The defendant may elect to take the part plaintiff can convey, and if he has paid its proportion of the purchase money, he is entitled to a verdict. Or, defendant may elect to rescind, and then the verdict should be for plaintiff, on condition that he repay the purchase money he has received and the costs of EJE 77 EJB defendant's improvements, deducting ■waste, if any, by defendant. Ihid. 26. The proviso of tiie first section Act of April 13, 1858, (requiring that before trial of ejectment by mortgagee for unseated lands, defendants munt have notice,) extends to ejectments by vendor against vendee for specific performance. EaslettY. Foster, 10 Wr. 411. 21. Advertisement for sixty days under Act of April 14, 1851, is not sufficient. Ibid. 28. In ejectment by a mortgagee who has bought the property at his sheriff's sale, he is entitled to recover absolutely. It is not the case for a conditional ver- dict. But the defendant cannot complain of a condition benefiting him, nor will the condition prevent defendant from try- ing his seconl ejectment. Murphy v. Nathans, 10 Wr. 508. 29. Procuring an attornment from the tenant without the landlord's assent gives no possession. Dubois v. Bnum, 10 Wr. 537. 30. A vendor who has refused the pui-- chase money when tendered can bring ejectment, but if the purchasers prove the contract of sale, the tender, and bring the money into Court, the plaintiff cannot claim interest. Thompson v. McKinly, 11 Wr. 352. 31. It is essential to a conditional ver- dict that the time should Be fixed when the money is to be paid. Ibid. 32. The defendant need not plead ten- der. Ibid. 33. A conditional verdict can be di- rected where the defence is a contract, part payment, possession, &c. And the time mentioned in the verdict may be enlarged. Webster v. Webster, 3 P. F. Smith, 161. 34. A plaintiff in ejectment who recov- ers a conditional verdict after assigning the instalments, cannot issue an haberi. Boyd V. MoNaughton, 1 P. F. Smith, 227. 35. If a plaintiff who has recovered a conditional verdict in ejectment, assign an instalment after it has fallen due, he thereby acknowledges the defendant still to be his debtor, and waives the forfeiture. Ibid. 36. Ejectment to enforce specific per- formance will not lie in favor of a pur- chaser who neglects to make his payments. Waits for several years, and does not sue until the land is sold and improved by a bona fide purchaser for value. Miller v. Henlan, 1 P. F. Smith, 265. 37. Specific performance is always the subject of discretion, and a Court of equity will not decree it in favor of a purchaser who has permitted a long time to elapse without evincing a fixed intention to carry his contract into execution, and especially if the circumstances are so altered as to work great injustice. Per Read, J. Ibid. 269. 38. In ejectment by vendor, if jury find a parol contract, they may return a con- ditional verdict for plaintiff, to be released on payment of unpaid purchase money within a reasonable time. Per Stowe, A. J., affirmed by Supreme Court. McGib- beny v. Burmaster, 3 P. F. Smith, 332. 39. One of a number of heirs can main- tain ejectment for her share of land pDr- chased by her father, for which a deed was executed to her brother " in trust for the heirs of the deceased." Echels v. Stewart, 3 P. F. Smith, 460. 40. If she has released for a considera- tion not paid, she is entitled to a condi- tional verdict. Ibid. 41. An executor can maintain eject- ment without direction, of the Orphans' Court, and although he is not named in the will in connection with the direction to sell. Kirk v. Carr, 4 P. F. Smith, 285. 42. A vendee having but a mere agree- ment, must be vigilant and pressing. If he do not tender the money until years have elapsed and the land increased in value, he is too late. DuBois v. Baum, 10 Wr. 537. 43. A defendant in ejectment may show an outstanding title to defeat the plaintiff, but it must be a valid and subsisting, not a derelict or barred title. McBarron v. Gilbert, 6 Wr. 280. 44. The administrator of a vendor can bring ejectment to enforce payment of un- paid purchase money, for that is person- alty. But ejectment cannot be brought against an administrator. The heir should be defendant. Thompson v. Adams, 5 P. F. Smith, 479. 45. Ejectment to compel payment of purchase money will not lie by a vendor where the purchaser has not got title through the vendor, but has bought at a sheriff's sale. The amount due to the former owner can be collected, but not by EJE 78 EJE ejectment. Thompson v. Adams, 5 P. F- Smith, 419. 46. One who purchases a title absolute on its face, but which he knows to be held only as security, cannot recover in ejectment if the balance due is tendered. Houaer v. Lamont, 5 P. F. Smith, 311. II. Op the peoceedings in Ejectment — Good without nare — Of the praecipe — What the plaintiff must show — Of the defence — As to disclaimer — Evidence in Ejectment — Authority of attorney to confess judgment. 1. A general verdict in ejectment for plaintiff is not void for uncertainty al- though no narr has been filed, the prae- cipe containing a sufficient description. Ewing v. Alcorn, 4 Wr. 501. 2. If a defendant does not defend for the whole premises, he should file with his plea a description of the part for which he takes defence. Where he does not do so, he defends for the whole property. Eill V. Hill, 1 Wr. .521. 3. Without proof of title of possession, a plaintiff cannot recover against an in- truder. Warner v. Henby, 12 Wr. 187. 4. A missing deed will not be presumed in favor of one who proves no act of own- ership. Ihid. 5. A plaintiff cannot give in evidence a deed from one as to whom there is no proof of title on paper or by possession. Ihid. t). If two are sued in ejectment, they may separately defend on separate titles. They may conclude themselves by plead- ing jointly, but even then each may show title to all or to part. But a tenant can- not sever from his landlord. Helfenstien V. Leonard, 14 Wr. 461. 7. One can defend in ejectment by showing (under plea of not guilty) that he was not in possession at service of the writ or since, and he may contradict the sheriff's return which is only prima facie evidence. Helfenalien v. Leonard, 14 Wr. 461. 8. Where the joinder is vexatious, the Court may submit the evidence to the jury as to one of the defendants, but it is error to instruct them to find for him where the evidence is conflicting, and it is error to submit the case of one sepa- rately where there is evidence affecting both. Ihid. 9. The legal presumption is that a will shown to have been in possession of a tes- tator, and not afterwards found, was de- stroyed by him, but this may be rebutted by proof of spoliation. Ihid. 10. Certainty in a verdict may be estab- lished by reference to monuments, deeds, diagrams, warrants of surveys, or agree- ments. " In favor of plaintiff for reserva- tion only as stipulated in agreement," mentioning its date is sufficient. Miller v. Gasselherry, 11 Wr. 876. 11. Where title is conferred by judicial sale, a party to the record cannot object that the purchaser's papers are , unac- knowledged and unrecorded, for, being a party, be had notice. Sill v. Hill, 7 Wr. 521. 12. One whose interest has been di- vested by a judicial sale cannot object thereto that his title contained a restraint on alienation. Hill v. Hill, 7 Wr. 528. 13. Where a defendant does not appear, a plea entered by the Court and a verdict thereon are irregular. Johnson v. Fuller- ton, 8 Wr. 466. 14. In ejectment by a vendor who gives in evidence the articles, defendant may show that tlae plaintiff could not comply with his contract. Erwin v. 2Iyers, 10 Wr. 96. 15. It is allowable for the plaintiff to prove that, after the defendant entered, he damaged the property in order to offset any improvements defendant may rely ou. lOid. 16. Where a vendee in possession asserts no equity, offers to pay for no part of the property, and avers the contract to be null, because not complied with by the vendor, he may not set up defective or outstanding titles to protect his profession. Per Strong, J. Ibid. 1 7. But where a vendor sells a bad title as a good one, and thereby induces the vendee to take possession and pay part of the purchase money, it is a fraud to re- claim possession without paying back the purchase money received. Ibid. 18. In such a case the plaintiff ought not to have a verdict to be released on payment of the purchase money of a good title. Ihid- 19. The defendant may elect to take the part plaintiff can convey, and if he has paid its proportion of the purchase money he is entitled to a verdict. Or de- fendant may elect to rescind, and then the verdict should be for plaintiff on condi- BJE 79 EJB tion that he repay the purchase money he has receiveJ and the costs of defendant's improvement, deducting waste, if any, by defendant. Ihid. 20. If a defendant has disclaimed and obtain judgment in his favor, he should not on second ejectment plead the former jud.iiment, but repeat the disclaimer. No replication is needed. The plaintiff may take the disclaimant at his word, or may go to trial at the risk of costs. Trip- ner v. Abr-ahams, 11 Wr. 220. 21. A judgment in ejectment for prem- ises, describing them by the number and street, is sufficiently definite if in a city having a known system of notation. Flanigan v. Gity, 1 P. F. Smith, 491. 22. The authority of an attorney to confess a judgment need not be in writ- ing. Ibid. 23. A warrant of attorney need not be filed with a confession of judgment Ibid. . 24. A disclaimer is not properly a plea in ejectment. Eirtland v. Tliompson, 1 P.F. Smith. 218. 25. A defendant in ejectment can set up no defence against the sheriff's vendee. But if at the time of levy and sale, the property belonged to his wife, her title may be set up. Curry v. Bott, 3 P. F. Smith, 400. There is no presumption in favor of her title. The possession of the husband is presumed to be in his own right. Ihid. 26. Where a plaintiff takes judgment against one of three tenants in common, and the others limit their defence to two- thirds and establish it, they are entitled to a verdict. Cambria Iron Co. v. Tomb, 3 P. F. Smith, 422. 27. A confession of judgment in eject- ment concludes the defendant and his privies forever. Secrid v. Zimmerman, 5 P. F. Smith, 446. iii. as to eormee verdicts — estab- lishing their, certainty by evidence ■ — Their conclusiveness — Effect of recovery in trespass certainty op description in judgment. 1. One judgment in an equitable eject- ment is conclusive, but a verdict is not a judgment, although the jury fee is paid and the case indexed as though a judg- ment had been entered on the appearance docket. Ferguson v. Staver, 4 Wr. 213. 2. A recovery in trespass is not, as a general proposition, conclusive of the title in ejectment, but if title was claimed in that action, it is conclusive against the parties to it. Ewing v. Alcorn, 4 Wr. 491. 3. To form a bar to a third ejectment, the two former ones must be for the same land, upon the same title. Trying half the tract twice and the whole once, will not bar as to the half once tried. Einter V. Jenka, 1 Wr. 445. 4. Where land is purchased under arti- cles, and paid for, the title is complete, although it lack a conveyance. And in such a case, one verdict in ejectment is not a bar, for no conditional verdict can be required. Taylor v. Abbott; 5 Wr. 3.52. 5. Certainty in a verdict may be estab- lished by reference to monuments, deeds, diagrams, warrants of surveys, or agree- ments. " In favor of plaintiff for reserva- tion only as stipulated in agreement," mentioning its date is sufficient. Miller V. Caaselberry, 11 Wr. 376. 6. In equitable ejectments, the first ver- dict and judgment conclude the right. But where it appears that three grounds of defence were presented, only one of which was equitable, and it is impossible to say from the records and parol evi- dence what ground was sustained by the verdict, it is too uncertain to operate as an estoppel. Per Strong, J. Meyers v. Hill, 10 Wr. 9. 7. A judgment in ejectment for prem- ises, describing them by the number and street, is sufficiently definite if in a city having a known system of notation. Flanigan v. The City, 1 P. F. Smith, 491. IV. Of the habbri — Of restitution. 1. The Court may award a restitution when the sheriff has ejected one who is no party to the judgment, and cannot legally be affected by it. Johnsen v. Fullerton, 8 Wr. 466. 2. But a judgment entered against a husband justifies the execution of an haberi against the wife and family. Ihid. 3. A landlord cannot, after judgment and execution against his tenant, claim restitution, though he was not heard. His title is not affected, though his pos- session is. Ibid. 4. Whether a haberi can issue on a conditional verdict until default made in last instalment dubitatur. Boyd v. Mc- Naughton, 1 P. F. Smith, 227. ELE 80 BLE ELECTION AND ELECTIONS. Courts can restrain a body of councils illegally organized. See Equity I., 44. But injunction refused on a forged re- turn. See Equity I., 9, and see below. Managers are to fix place of election where charter and by-laws silent. See Quo Warranto, 4. Courts cannot try contested elections of couucilmen. See Quo Warranto, 1. A legatee is not estopped from deny- ing that he is debtor to the testator as alleged in the will. See Wills VI., 53. 1. The law providing for the voting of Poldiers in actual service covers the case of municipal elections. Hulseman v. Bems, 5 Wr. 396. 2. The injunction refused to restrain a defendant from setting up a certificate of election judges based upon forged re- turns, the defendants having no hand therein, and a contested eleciion affording adequate redress. Ihid. 3. If the duties of return judges are so interfered with by disorder that they can- not be performed at the usual place, the meeting may be adjourned to another place. Ibid. 4. The record of a contested election may be reviewed upon certiorari. Chase v. Miller, 5 Wr. 403. 5. But not the merits. Ihid. 6. Return judges may well reject an army vote which does not appear to come from qualified electors of the proper coanty, and which omits to state the detachment or company, the names of the voters, and the place at which they voted. Ibid.ilb. 7. The forty-third section of the gen- eral election law of July 2, 1839, is in violation of the constitution which went into effect January 1, 1839. Ibid. 428, and Com. v. Kunzman, 5 Wr. 429. 8. One who votes fraudulently at an election held outside of the State, under a law of the State, cannot be indicted within the State. Com. v. Kunzman, 5 Wr. 429 9. A bill in equity does not lie to enjoin officers illegally elected. Updegroff v. Grans, 11 Wr. 103. 10. The powers of the governor to revoke a commission once issued to an officer not removable at the pleasure of the governor, may well be denied. Per Strong, J. Ewing v. Thompson, 1 Wr. 372. 11. _ After a decree setting aside an election, the governor may issue a com- mission to the successful party, and if he commence his duties, the subsequent service of a certiorari will not avoid or interrupt his commission, but if certiorari be first served, it will operate as a stay, and he may be enjoined. Ibid. 12. A certiorari in a contested election case only enables the plaintiff in error to aver errors in the record, not to re-try facts. Ibid. 13. It is not a writ of right, and will never be allowed for merely technical errors, nor affecting the merits. Ibid. 14. It will be quashed if there is no sufficient cause shown to justify it. Per LowRiE, C. J. Ewing v.' Filley, 7 Wr 384. 15. In important public cases the Supreme Court will hear the certiorari or a preliminary question, wherever they may be sitting. Ibid. Ifi. A contestant must show fraud or mistake in the return. The neglect of the oflScers to file certain papers is in- sufficient, and a Court may refuse leave to aver or prove such neglect. Ibid. 17. A decree will not be reversed be- cause the Court have refused to allow matters to be averred which could not change the result. Ibid. 18. The absence of a judge of election during the greater part of the day possi- bly vitiates the vote of the division, but where that vote would not turn the scale the question is immaterial. Ibid. 19. If parts of a petition are con- tradictory they should be struck out; the petition should not be quashed. Ibid. 20. The objection that but one judge was present when a petition was presented in the Quarter Sessions, and a time fixed for hearing, will not be listened to if not made in proper time. Ibid. 21. A proceeding to contest an election cannot be frustrated by a commission issued afterwards. Ibid. 22. In proceedings to divide an election EMB 81 EQU district, it is error to confer in the com- missioners' report without ordering an election. Eugler's Appeal, 5 F. F. Smith, 123. 23. The laws authorizing contested elections are constitutional, although they do not provide for a jury trial. Ihid. 24. The Act of Congress of March 8, 1865, (disfranchising deserters,) is con- stitutional, but the voter must be con- victed before a court-martial. Huber v. Beily, 3 P. F. Smith, 112. 25. Money bet on an election can be recovered irom the stakeholder by the better, if the guardians do not sue for it in two years. Foscht v. Green, 3 F. F. Smith, 138. EMBEZZLEMENT. See Grimes, §§ 11, 40. EMINENT DOMAIN. See Land XIII. EMPLOYEE. Dismissal of, before term expires. See Contract I., 3. ENDORSEMENT Of approval of assignment on policy. See Insurance III., 19. ENDORSER. • See, generally. Bills of Exchange and Promissory Notes I. ENGLISH. Notice must be in English. See Roads, 1 9. ENGINEER. Estimates of, not conclusive unless the contract says they shall be final. See Contract XII., 4, &c. Not liable to indictment for obstructing highways. See Railroads II., 30. ENTRIES, BOOK OF. ^QQ Evidence VI., 15, 16, 23, 24, 25, 2T, 28, 35. ENTRY By landlord. See Landlord and Tenant. EQUITABLE EJECTMENT. See Ejectment I. EQUITABLE SUBSTITUTION. See Equity I., 1, &c. EQUITY. The jurisdiction first attaching should decide the case. See Courts, § 10. As to constitutional objection to Acts of Assembly. See, generally. Constitutional Law. As to liability of married executrix for her husband's devastavit. See Decedents^ Estates II., 1. As to ejectments to enforce specific performance, and as to conditional verdicts. See, generally. Ejectment I. Specific performance involving con- struction of will-'. See Wills. Other cases of specific performance. See Specific Performance. As to putting purchaser in possession. See Vendor and Vendee II., 2, &c. As to trusts resulting and otherwise. See Trusts. As to dismissing bill after verdict in feigned issue. See Practice VIII., 1. As to limitations in equity. See Limitations. As to equity jurisdiction of Supreme Court. See Courts, §§ 3, 10. I. When, for what, and by whom, a bill will lie and will not lie — what are and what are not proper cases for injunctions — ■ as to dissolving injunctions — as to receivers. II. As to the bill and demurrers. III. As to the answer and replication. IV. As to lefurring a case — the master's fees— costs. I. When, for what, and tT whom, a BILL WILL LIE AND WILL NOT Lli — What are and what are not proper CASES FOR injunctions — As TO DIS- SOLVING INJUNCTIONS — As TO RECEIV- ERS. 1. An accommodation acceptor who pays the draft, cannot olnim an equity in a liond of indemnity given to an endorser ^f the EQU 82 EQU draft. Cooper v. Piatt, 3 Wr. 528. A surety may contract for his own individual indemnity, without being required to share it with other sureties. Ibid. 2. In a clear case an injunction will lie to restrain a creditor from selling the separate estate of the wife for a debt of the husband. Per 'rHOMPSON, J. Hun- ter's Appeal, 4 Wr. 194. 3. Acts to be restrained must be both contrary to law and prejudicial to the in- terests of the community or the rights of individuals. Acts simply against equity are not within the power. Per Thompson, J. Ibid. 4. The District Court of Allegheny County have jurisdiction m equity when- ever account render will lie. Shriver v. Nimick, 5 Wr. 80. 5. Whether a Court of equity would order the cancellation of a bond, given by a devisee in pursuance of a family arrange- ment, for the reason that both parties were mistaken as to the estate devised by the obligor, dubitatur. Gote v. Von Bonhorst, 5 Wr. 250. 6. Nothing but fraud or palpable mis- take is ground for rescinding an executed contract. And this, although the thing sold was worthless, and no suit would be enforced upon the contract, if executory. Bockafellow v. Baker, 5 Wr. 319. 1. Generally a mortgagor cannot have a bill to compel the mortgagee to satisfy the mortgage, for he has ample legal rem- edy ; but where the conveyance is abso- lute on its face, and the defeasance is in parol, a bill will lie. Kenton v. Vande- grift, 6 Wr. 839. 8. Courts of equity have no control over the discretionary powers of school directors, but their illegal acts can be restrained. Wharton v. School Directors, 6 Wr. 358. A Court will not enjoin against an indiscreet exercise of discre- tion. Ibid. 9. An injunction refused to restrain a defendant from setting up a certificate of election judges, based upon forged returns, he having no hand therein, and a contested election affording adequate redress. Hul- seman v. Rems, 5 Wr. 396. 10. A bill in equity will not lie to enjoin an anticipated intrusion into office, the remedy is by quo warranto after entry. Updegroffy. Grans, 11 Wr. 103. 11. A stockholder having a right to complaiu against a judgment for fraud, should apply to the Court where it is entered. If he do so and fail, he is pre- cluded. Gravenstine's Appeal, 13 Wr. 310. 12. One who has parted with his stock cannot file a bill. Ibid. 13. A creditor cannot restrain another creditor from levying. Gravenstine's Ap- peal, 13 Fr. 310. 14. It is error to appoint a receiver for a company not sued, and another defendant can reverse for this, although the company does not appear. Gravenstine's Appeal, 13 Wr. 310. 15. One who has been intrusted with funds to pay over to certain persons, and who has in part discharged his trust, can- not be sued in assumpsit or tort. He should be proceeded against by bill or ac- count render. 'The test is- the duty. Is it to pay to plaintiff, or to account ? Per Agnew, J. Reeside v. Reeside, 13 Wr. 322. 16. A bill in equity lies by a trustee against the borrower of trust assets to compel the return of the securities and all interest received thereon. Abbott v. Reeves, 13 Wr. 494. 17. Aside from a contract or special interest, private persons cannot by bill enforce the repair of works of a public corporation, nor recover damages for non- repair. Buck Mt. Goal Go. v. Lehigh Nav._ Go., 14 Wr. 91. 18. Equity will not relieve a party signing a transfer made to hinder creditors, although the signature was obtained by fraud. Hershey v. Weiting, 14 Wr. 240. 19. Equity will restrain an erection upon a public street at the instance of private complainants. Penna. R. R. Go. v. Grain Elevator Go, 14. Wr. 499. 20. A preliminary injunction cannot issue to take property from the defendant and give it to the plaintiff, nor to restrain the use of a road pending the bill. Rail- road Go. V. Reno Railway Go., 3 P. F. Smith, 224. 21. Equity will restrain a grantor from interfering with his grantee and the assigns of the grantee, where there has been a grant of an exclusive right to mine with right to subdivide and assign. Funk V. Saldeman, 3 P. F. Smith, 229. 22. Equity has only jurisdiction in matters of account where the accounts are mutual and complicated, or where they are all on one side, and discovery is EQU 83 EQU sought. Where they are all on one side and no discovery is sought, Courts of equity decline taking jurisdiction. Gloninger V. Hazard, 6 Wr. 389. 23. Where a sheriflfs vendee of the share of a tenant in common files a bill for account against the other tenants in common, without joining intermediate assignees for the benefit of creditors who might have an interest, the bill will be dismissed without prejudice. Gloninger V. Hazard, fi Wr. 389. 24. An ejectment bill cannot be sus- tained. N. Pa. Coal Co. v. Snowden, 6 Wr. 488. 25. Equity will restrain the assessment of a special tax by supervisors to pay general creditors. Dunne v. Deegan, 7 Wr. 334. 26- A bill will lie to restrain one who appears by a decree in a contested election case to be entitled to an ofiBce, if before he commence to act a certiorari is served. Ewing v. Thompson, 7 Wr. 372. 27. Terms may be imposed upon grant- ing a preliminary injunction. Ihid. 28. The validity of a parol partition is dependent upon an adjustment of owelty where it has been part of the agreement that it should be allowed, and it is not for a Court of equity to decree how much owelty shall be paid. Per Stbong, J. Kennedy v. Kennedy, 7 Wr. 413. 29. But where there has been long ac- quiescence and possession under a parol division of lands, equity will quiet the enjoyment. Ibid. 30. Where a judgment has been ob- tained upon a note by one who is not the legal holder thereof, and the defendant with knowledge of the fact, and without payment, procure him to enter satisfac- tion, the real owner of the note may file a bill in equity and compel payment. Mc- Glurg V. Wilson, 7 Wr. 439. 31. Equity will enjoin against the erec- tion of a building on a street. Plitt v. Cox, 7 Wr. 486. 32. Uninterrupted use of a passage- way for more than twenty-one years raises a presumption of right. Plitt v. Cox, 7 Wr. 486. 33. If one sells lots fronting on ground previously surrendered for a highway, neither he nor his assigns can close it. Plitt V. Cox, 7 Wr. 486. 34. A bill in equity will lie by a wife against her husband and his vendee, for a conveyance of land fur which the hus- band with knowledge of his wife's title secured a warrant, and which he sold to a co-defendant also having notice and paying an inadequate consideration. O'Neill V. Hamilton, 8 Wr. 18. • 35. A receiver cannot sue in his own name. Yeager v. Wallace, 8 Wr. 294. 36. A State Court has no power to en- join officers of the United States from making a conscription. Kneedler v. Lane, 9 Wr. 238. 37. A preliminary injunction may be dissolved without putting in demurrer, answer or affidavits. Kneedler v. Lane, 9 Wr. 238. 38. An execution creditor will be re- strained from selling as personal property a steam-engine, &c., &c., removed from a mill in order to give him a preference over an older judgment creditor. After liens have attached, the owner cannot commit waste. Per Pearson, J. Wit- me7-'s Appeal, 9 Wr. 455. 39. If stocks, bonds, notes, &c., are deposited for safe-keeping, and the bailee refuse to deliver and threaten to transfer them, equity has jurisdiction to enjoin a transfer and compel thefr delivery. Per Thompson, J. Simes v. Ever son, 10 Wr. 304. 40. There is no difference between an express bailment and a deposit by agree- ment, which provides for a return in cer- tain contingencies. Ihid. 41. A minority of partners will be re- strained from interfering with the majority acting fairly and bona fide. Peacock v. Chambers, 10 Wr. 434. 42. A majority of partners of a news- paper may discharge one publisher and engage another. Ibid. 43. An article providing that a pub- lisher shall be elected for a term not ex- ceeding five years, does not prevent a majority from dismissing a publisher within the five years, where the.duration of his service had not been specified. Ibid. 44. A Court of equity has authority to decide which of two bodies is a regu- lar city council. Kerr v. Trego, 11 Wr. 292. 45. The wrongful body may be re- strained by injunction, at the suit of the others. Ibid. 46. The legal certificate is prima facie title to the office. Where there are two. EQU 84 EQU rival bodies, that which has preserved the regular forms of organization is entitled to an injunction to restrain the others. Ibid. 47. Where part of a public body re- mains, it is an organized nucleus and re- ceives the new members. Ihid. It is no defence of an irregular organization that fraud was intended. Ibid. 48. Equity will restrain proceedings at law by a purchaser of county bonds with notice that the sale was illegal. He can only recover what he has paid, with in- terest. The railroad company to whom the bonds were issued, and by whom the sale was made, need not be joined in the bill. Armstrovgv. Brinton, 11 Wr.SQI. 49. A railroad company cannot restrain the removal of a connecting track. South- wark B. B. v. City, 11 Wr. 314. 50. Permission "to connect with the termination" of another road is a mere license, involving no contract between the State and the company for the perpetuity of the road to be connected with. Hence the State may authorize the removal of the latter road. Ibid. 51. A corporation cannot be compelled to maintain a road no longer profitable. Ihid. 52. Equity has no jurisdiction to en- force individual liability of inhabitants of a borough for its debts. Per Pearson, P. J., affirmed by Supreme Court. North Lebanon v. Arnold, 11 Wr. 488. 53. Nor will the fact that the defend- ants have procured legislation transferring them to another township render them liable. Such an averment in the bill is not traversable, and the Court are bound to presume it was otherwise. Per Ibid. Ibid. 491, 54. Equity will relieve from a mistake of fact growing out of a mistake in law, as where the administrators of a trustee, erroneously supposing that tlipy succeeded to the ti;ust, gave a bond as ti'ustees.' Gross V. Leber, 11 Wr. 520. 55. Under the Act of April 8, 1846, (forbidding Courts of equity to enjoin against the erectiop of any public works erected or in progress, under authority of Act of Assembly, until the damages have been ascertained,) a Court cannot enjoin the laying out of a park. The words' '■ erected or in progress" refer to the time of the resort to the Court. Wo.bert v. Giti/, 12 Wr.iSd. 56. The grant of equity powers does not effect the remedy of ejectment to en- force specific performance. Corson v. Mulvany, 13 WV. 88. 57. Under prayer for general relief, the Court can decree an abatement of a build- ing erected after bill filed. Clark v. Mar- tin, 13 Wr. 289. .58. A perpetual injunction enforced by attachment, sequestration, and a writ of assistance. Ibid. 299. 59. A stockholder may interfere by bill for the protection of the company against an execution for fraud, but when all the stockholders create a debt, one of them cannot interfere. Gravenstine's Appeal, 13 l^Fr. 810. 60. The execution of a law will not be restrained because it was hastily or im- providently passed. Smedley v. Erwin, 1 P. F. Smith, 445. 61. A creditor's bill cannot be filed be- fore execution and return of nulla bona. Suydam v. Northwestern Ins. Co., 1 F. F. Smith, 399. 62. Judgment creditors cannot file a bill against persons indebted to an insol- vent corporation. The only remedy is sequestration. Suydam v. Northwestern Ins. Co., 1 P. F. Smith, 399. 63. A bill will not lie to enforce spe- cific performance of an agreement where- by the defendant, in consideration of re- ceiving instruction in making scales, agrees to pay plaintiff $50 for every pair he may thereafter make for any person other than the plaintiff. It is a tax for life in restraint of trade. Eeeler v. Tay- lor, 8 P. F. Smith, 467. 64. All such contracts must be founded on valuable consideration, must be rea- sonable, and must impose no general restraint upon trade or industry. Per Woodward, C. J. Ibid. 65. Equity will enjoin against the con- tinuance of a work, finished, pending a bill to restrain it. Warren and Frank- lin Bailway v. Clarion Land Co., 4 P. F. Smith, 28. 66. Wliere a company has located a route, a company subsequently incorpo- rated will be restrained from interfering with it. Ibid. 1.7. Where power is given "to con- struct a road from their own lands * * not to exceed twenty miles in length," the company will be enjoined if they have no land. ibid. BQU 85 EQU . 68. They cannot construct a road for profit from travel. Ihid. 69. An owner will be enjoined from pollutinn; water by discharges from a fac- tory. Mg Galium V. Germantown Water Co., 4 P. F. Smith, 40. 691. Prescription to pollute water re- quires the strictest proof Ibid. *10. It cannot be polluted to any greater extent than it was polluted at the com- mencement of the twenty-one year.s. Ibir>. 11. A Court of equity can decide dis- puted facts without granting an issue. Ibid. '12. An appeal from an order granting a special injunction must be decided upon the facts shown to the Court when the injunction was granted. Ilining Co. v. Pottsville Water Go., 4 P. F. Smith, 164. 73. Where water at plaintiff's dam is but slightly affected by water from de- fendant's mine, it is not a case for a prelirainarv injunction. Mining Go. v. Pottsville Water Go., 4 P. F. Sviith, 164. '74. Extensive works should not be stopped by a preliminary injunction un- less there is no adequate remedy at law, and irreparable mischief will ensue. Mining Go. v. Pottsville Water Go., 4 P. F. Smith, 164. T5. Rights in dispute must be settled before a special injunction can issue. Mammoth Vein Goal Go.'s Appeal, 4 P. F. Smith, 183. '76. Past transactions cannot be reached by a preliminary injunction. Ibid. 1*1. It should only issue when there is a pressing necessity. Ibid. It should be refused if there is an even balance. Ibid. IS. If manifest that the defendants are about to drown plaintiff's mine, they can be enjoined. Ibid. 79. A bill will lie to recover the amount due to complainant as one of a club which agreed to pay any member thereof a certain sura if he volunteered ; the club being unincorporated, and the moneys being trust funds. And this, though the funds had been passed over to another. Foley V. Tovey, 4 P. F. Smith, 190. 80. A bill in equity will not lie for the cancellation of stock issued by the direc- tors, being all the untaken stock of the company, there being no allegation of fraud in the subscription, or that the stock was worth more than par. Gurry v. Scott, 4 P. F. Smith, 270. Nor to re- strain the issue of preferred stock author- ized by a special statute. Ibid. 81. A refusal of a Court of law to open a confessed judgment is no bar to a bill in equity alleging us\iry. Ibid. 81^. A bill of discovery will not lie on a motion to open a judgment. Ibid. 82. After an owner has permitted an- other to erect a coal-breaker, he cannot reclaim the laud by ejectment, and equity will restrain his suit. Big Mountain Goal Go.'s Appeal, 4 P. F. Smith, 361. 83 A corporation may be restrained from doing an unconscionable thing out- side of its ordinary business, as well as within it. Ibid. 84. Injury to property by continuous hurtful acts may be restrained, but it must be irreparable injury. Per Thomp- son", J. Sparhawk v. Railway Go., 4 P. F. Smith, 401. 85. A defective case cannot be supple- mented by an alleged infraction of the penal laws. Ibid. 86. Running cars on Sunday is a vio- lation of the Act of 1794, but not re- strainable by injunction. Ibid. 87. An injunction will not lie merely because the act is illegal. Ibid. A doubt- ful equity is an anomaly. Ibid. 88. Equity will only interfere when the act complained of is a nuisance at law. Ibid. 89. Injury to health by noise may be restrained, but a pew-hulder cannot re- strain the running of a car upon the alle- gation that it disturbs his worship. Ibid. 90. The history of the Sabbath, and the authorities as to its observance, col- lected. Per Read, J. Ibid. 433. 91. An abuse by a company of its char- ter can only be tried at the suit of the Commonwealth. Per Woodward, C. J. Ibid. 453. 92. A stockholder cannot maintain a bill if he has purchased stock in order to file a bill, and with full knowledge of the facts. Ibid. 93. Equity will not listen to a stale de- mand. Price's Appeal, 4 P. F. Smith, 4 72. 94. If one standing in the relation of parent procure a deed from a dissolute young man just of age for his whole pat- rimony, evidently to save it for him, the grantee is trustee ; he cannot devise it, and his representatives will be decreed to account. Price's Appeal, 4 P. F. Smith, 472. EQU 86 EQU 95. Equity has jurisdiction where a ti- tle is clouded by the improper recording of a deed, delivered only in escrow. Eckman V. Eclcman, 5 P. F. Smith, 269. 96. Where, however, the deed reserves a life-estate which was all the grantor intended to reserve, he cannot claim its cancellation because the grantees will not carry out an arrangement of partition be- tween themselves. Ibid. 97. Equity has not jurisdiction to com- pel specific performance in favor of a ven- dor, simply for the payment of money. Kauffman's Appeal, 5 P. F. Smith, 383. II. As TO THE BILL AND DEMURRERS. 1. Where a sheriff's vendee of the share of a tenant in common files a bill for an ac- count against other tenants in common, without joining intermediate assignees for the benefit of creditors who might have an interest, the bill will be dis- missed without prejudice. Oloninger v. Hazard, 6 Wr. 389. 2. A bill in equity should state facts, not the evidence of the facts. Winebren- ner v. Colder, 1 Wr. 244. 3. A bill is generally demurrable where the objection is apparent on its face, or for defects in its frame, or in the case made by it ; as a bill for specific per- formance of an agreement to sell houses, mentioning only the street on which they are located, with no other description of place, size, &c. Hammer v. McEldowney, 111 Wr. 334. 4. Under prayer for general relief, the Court can decree an abatement of a build- ing erected after bill filed. Clark v. Mar- tin, 13 Fr. 289. 5. A demurrer to discovery for a cause which amounts to defence against the re- lief cannot be sustained. Wistar v. Mc- Manes, 4 P. F. Smith, 318. 6. A demurrer to discovery sustained is no reason for dismissing a bill praying for relief Ibid. III. As TO THE ANSWER AND REPLICATION. 1. An answer denying a trust is con- clusive, unle.ss disproved. Hassler v. Bitting, 4 Wr. 68. 2. The denials of an answer must be contradicted. Wynkoop v. Wynkoop, 6 Wr. ;;03.' 3. A preliminary injunction may be dissolved without putting in demurrer, answer, or affidavits. Kneedler v. Lane, 9 Wr. 238. 4. Pleadings are to be construed strictly against the pleader, where a bill averred that defendant had sold a license on or about the last of A ugust, and after the busi- ness of the firm had been stopped, and the answer denied only that the sale was made after dissolution, and averred that when the sale was made the firm was in existence ; the burden of proof was held to be on the defendant to prove that the sale was not made in the last of August as averred, and not directly denied. Coleman v. Boss, 10' Wr. 180. 5. Where a bill avers a right to dis- charge an employee, and the answer de- nies the right because the terms, of em- ployment had not expired, the complain- ants are not bound to contradict the answer. The burden is on the defetrdant. Peacock v. Chdmbers, 10 Wr. 434. 6. An answer in equity admitting the receipt of merchandise, but averring that it was received on account of a debt, (without affirming that it was so paid or appropriated by consent,) admits a lia- bility for the merchandise. Moloney v. Davis, 12 Wr. 512. 7. An amendment to an answer will never be denied when justice demands it. Leach v. Aashacher, 5 P. F. Smith, 85. 8. An answer is not evidence against a co-defendant, unless he claim through the respondent, or there is a joint interest. Eckman v. Eckman, 5 P.F. Smith, 269. 9. An answer alleging that certain of the persons named as complainants did not promote or join in the bill is to be taken for true, unless controverted in the proof, and as to them the bill should be dismissed. Gravenstine's Appeal, 13 Wr. 310. 1 0. A replication puts in issue aver- rnents of the answer not responsive to the bill, and on the defendant rests the bur- den of proving them. Naglee's Appeal, 2 P. F. Smith, 154. iv. as to deciding without an issue .The master's fees - Costs. 1. The Court below are the best judges of the quantum of fees due to a master, Totten's Appeal, 4 Wr. 385. 2. Costs are at discretion of the Court. Where complete equity has been offered and dpclined, costs will be refused ; other- ERR 87 ERR wise, where no such sum has been offered as the decree shows to have been due. Coleman v. Boss, 10 Wr. 180. 3. A Court of equity can decide dis- puted facts without gt-antin^ an issue. McCallum v. Germantown Water Co., 4 P. F. Smith, 40. 4. A case referred to a master after argument on appeal. Lance's Appeal, 5 P. F. Smith, 16. ERRORS AND APPEALS. As to judgments for want of sufBcient affidavit of defence See, generally, Affidavit of Defence. As to certioraris, their effect, and when parol evidence is admissible on hearing. See, generally, Certiorari. As to making up bills of exceptions. See Courts, 1.5, 16, 17, 18, and Practice VII., 4, 5, 6, 9, 10, 15, Ifi. As to error in admission of evidence of witnesses. See, generally. Evidence. As to error in the matter of challenges to jurors in civil cases. See Jury, 1, 2, 3, 4. I. As to reversing for admitting or rejecting evidence. II. As to charges upon questions of damages from death. III. Charges as to other questions of damages. TV. Points for charge and charges as to negligence, fraud, and gener- ally, except as to questions of damage which are classified above — when Court may omit to charge — when questions are for the Court — when for the jury- V. To What a writ of error, appeal and certiorari will and will not lie — who can sue it out — pre- sumptions in favor of auditors' reports and decrees of Courts — of bills of exceptions— of af- firming part of a judgment — of restitution. VI. As to paying costs on appeal — the pra3cipe for, writ of error — other preliminaries — appeal by one defendant — withdrawing ap- peal — quashing — as to assign- ments of error — when a party is barred from appealing — as to paper books. VII. Writs of error in criminal cases. VIII. As to magistrates' judijments — as to error in form of action— as to notice to quit. IX. When writ of error is supersedeas. X. Judgment will not be reversed for immaterial matters — practice of Court as to voting on assign- ment of errors. I. As TO REVERSING FOR ADMITTING OE REJECTING EVIDENCE. 1. It is not ground of reversal that improper evidence has been admitted upon an issue which the Court, in favor of the plaintiff in error, withdrew from the jury. Daniel v. Daniel, 3 Wr. 191. 2. Nor that irrelevant testimony was received which was harmless. Ibid. 3. Nor that a question was excluded which, it seems, from the testimony of the witness, he could not have answered. Ibid. 4. Nor that one form of question was overruled if another substantially the same was admitted. Ibid. 5. Nor because of a ruling upon a side issue on the character of one not a party to the record. Ibid. 6. Error in admission of a paper may be cured by its entire withdrawal from the consideration of the jury. Fwing v. Alcorn, 4 Wr. 500. 7. The rejection of a competent wit- ness is not sufficient for a reversal ; it should appear that he was called to prove something the loss of which was in- jurious to the plaintiff in error. Lothrop V. Wightman, 5 Wr. 305. 8. A judgment will not be reversed because of the improper rejection of a deposition which was of no importance. Hill V. Meyers, 1 Wr. IT 6. 9. In a proceeding to assess damages for a railroad, it is error to exclude the opinions of witnesses because they give as reasons the dangers and delays of crossing. The true measure of damage is the value, as unaffected by the use of the road, and the value as affected thereby. Brown v. Corey, 1 Wr. 495. 10. Before a witness can be asked whether another witness is to be be- lieved under oath, the preliminary ques- tions must be put as to knowledge of the ERR 88 ERR witness attacked, and of his general reputation for truth, and what that re'iutation is. Bogle v. Kreilzer, 10 W-. 465. 11. It is not error to allow a witness to refresh his memory by a memorandum made at the time; and where' the memo- randum has been received without ob- jection and recites the transaction, it is not error to say that it corroborates the witness. Selover v. Rexfor.d, 2 P. F. Smith, 308. II. As TO CHARGES UPON QUESTIONS OF DAMAGIS FROM DEATH. 1. In an action for damages from death of a minor, it is not error to decline to charge "that the damages may include the advantage of deceased's society and assistance at home, and also the contin- gency of his laboring for his parents after his majority." The standard is the pe- cuniary value of the service of the child during his minority. Caldwell 7. Brotvn, 3 P. F. Smith, 453. 2. There can be no fixed standard for the admeasurement of a wife's damages sustained by the loss of her husband The following directions were held not to be error : "You must put a value on his life, his probable gains and accumula- tions, and award such damages as a care- ful and impartial examination of the evidence demands. It would be wrong to limit the value of a man's life by his probable accuiiiulations." B. B. Co. v. Armstrong, 2 P. F. Smith, 282. III. Charges as to other questions OP damages. 1. Where the injury is not wilful, it is error to charge that the jury may give such damages as they think right under the evidence. They should be told that compensation is all the plaintiff ^ Bible, or that a witness whose deposition had been taken was unuble to attend Court. Keyser v. Rodgcrs, 14 Wr. 27.5. 49. A defendant confest^iog judgment is not a competent wiiness for a co-defend- ant. Noble V Laley. 14 Wr. 281. 50. One not a party to the record, who is the source of both titles set up, and who cannot be affected by the rchull, is a com- petent witness. Clark v. Watson, 14 Wr. 317. 51. One who conveys a lease of a mill and the improvements is acomjietent wit- ness for his vendee in an action brought by the vendee against a constable and others seizing the property under an execution agafnst the vendor. Mclnroy V. Dyer, 11 Wr. 118. 52. One who has paid money to the husband which belonged to the wife, is a competent witness for the husband's es- tate to prove the wife's assent. Mann''s Appeal, 14 Wr. 375. 53. A defendant against whom judg- ment has been entered by default, is not a competent witness for his co-defendant or for the plaintiff. Swanzey v. Parker, 14 Wr. 441. EVI 102 EVI 54. The seller of negotiable paper by- delivery warrants that it is not forged or fictitious, although he do not endorse it, and is incompetent to testify for the plain- tiff. Swanzey V. Parker, 14 Wr. 441. 55. A judge's former charge in the case cannot be read as evidence in argument. Bullerv. Slam. 14 Wr. 45fi. 56. Upon trial of an attacljment execu- tion, a person is a competent witness for the garnishee who was present at a settle- ment between the garnishee and tiie de- fendant, which resulted in showing that the garnishee owed defendantnothiiig, that the defendant was indebted to the gar- nishee, and that the witness for a con- sideration agreed to pay the debt, but failed to do so. Garr v. Beck, 1 P. F. Smith, 269. 57. On the trial of an attachment in execution, another attachinji creditor can be called by the plaintiff. King v. Faher, 1 P. F. Smith, 3 ST. 58. A plaintiff in an attachment can show by another attacliing creditor that the garnishees were allowed to buy in the defendant's goods at a sheriff's sale for less than their value, upon the representa- tion that they were purchasing fur the defendants, and that defendants were to have the surplus after paying the gar- nishees. Ihid. 59. Jurors are competent witnesses both in civil and criminal issues. Howser V.' Com., 1 P. F. Smith, 332. 60. If a party call his adversary, he makes him a general witness. Seip v. Storch, 2 P. F. Smith, 210. 61. The interest which excludes a wit- ness must be present, certain and vested. His liability to a like action does not ex- clude him, if the verdict cannot be given in evidence for or against him. Braine V. Spalding, 2 P. F. Smith, 24'/. 6-. An attorney is a competent witness against an endorser, although it is alleged that his neglect to send notice discharged the endorser and made the attorney liable. Braine v. Spalding, 2 P. F. Smith, 247. b3. The owner of a judgment cannot make himself a witness by assigning it. Selouer V. Rexford, 2 P. F. Smith, 308. 64. In a contest between an attaching creditor and creditors who hold by assign- ment, the defendant debtor is a competent witness to prove the assignment. Upde- graff v. Bowland, 2 P. F. Smith, 317. 65. In such a contest, one of the credit- ors, whose claim was secured by the as- signment, was held to be competent to defeat the attachment, he npt being a party to the record, his interest being very remote, and the payment of his debt being secured beyond all doubt, no matter what the termination of the suit. Ibid. 66. In a feigned issue between two judgment creditors, one of whom is al- leging that the other judgment was fraud- ulently obtained, the defendant in the at- tacked judgment is a competent witness to prove the fraud, although the judgment creditor calling him might net take all the debtor's property. The verdict in such a feigned issue could never be used by or against the witness. Ferree v. Thomp- son, 2 P. F. Smith, 353. 67. In ordering feigned issues a Court can make no order to deprive parties of legal testimony, but it may direct that the parties bo examined. Ibid. 68. A party interested (though not named) as plaintiff is not a competent witness to support the claim. Wa.rd v. Tyler, '2 P. F Smith, 393. ■ 69. In replevin it is error to admit as witnesses the sureties in the replevin bond, although the plaintiff has paid the money into Court. Gummings v. Gann, 2 P. F. Smith, 484. 70. A defendant in whose favor a judg- ment has been entered for part of the premises in ejectment, and who confesses judgment for the balance, is not a compe- tent witness for his co-defendant. Hel- fe.nstein v. Leonard, 14 Wr. 461. 71. A party may prove different state- ments, not to discredit his own witness, but to dispose of the credit given by the act of calling him. Per Thompson, J. Stearns v. Bank, 3 P. F. Smith, 490. The authorities collected and reviewed per Read, J., and Thompson, J. Ibid. 72. A lessee of the surface land having no right to mine, is a competent witness in an action between others involving the title to the mine below the laud. Penna. Salt Go. V. Noel, 4 P. F. Smith, 9. IV. How WITNESSES TO BE ATTACKED. 1. In ejectment it is not competent for the defendant to prove that the plain- tiff was a convict, nor is such an offer ad- missible because submitted " as a contin- uation of the history of the family of plain- EVI 103 EVI tiff's father." Painter v. Drum, 4 Wr. 467. 2. If a witness state that he left a count}' on business, it is not competent to contradict him by producina; two in- iadictmentd aj^ainst him. Wright v. Cumptay, 5 Wr. 102. .3. The answer of a witness to a collat- eral question binds the questioner. Ibid. 4. If a witness prove nothing benefi- cial to the party callinp; him, the judgment will not be reversed because the Court improperly allowed the witness to be at- tacked. Ibid. 5. A plpa filed in one case is not evi- dence against the party pleading when testifying in another case, unless it di- rectly contradicts his testimony. Rhines V. Baird, 5 Wr. 2.56. 6. If a defendant in trespass for seizing personal property under a fi. fa., prore declarations of the plaintiff that the property belonged to the defendant in the execution, the pl.iiniiff may rebut by showing his acts and declarations to the contrary at another time in the presence of the execution defendant. Roberts v. Young, 6 Wr. 439. 7. Where a witness testifies to the fact that a note was signed, it is com- petent to contradict by showing that in another examination the witness testified that^she did not see it signed. Travis v. Brown, 7 Wr. 9. 8. Reputation is to be proved as a fact, not inferred from acts. Hence it is not competent on cross-examination to ask a woman seduced whether she has had con- nection with other men, for the witness could not be contradicted if she answered' in the negative. Hoffman v. Kemerer, 8 Wr. 452. 9. The motive of a witness is not collateral. If on a trial for murder the witness on cross-examination deny that he had ill-will towards or had threatened the deceased, he can be contradicted. Gaines V. Com., 14 Wr 319. 10. If the attention of the first witness has not been called to the name of the witness to contradict him, this should be specifically mentioned as an objection, or it is waived. If the objection is made, the Court can permit the cross-examination to be resumed. Ibid. 11. Partiality for the party who calls him, or prejudice against the opposite party, are not colluteral. Ibid. 12. It is competent to prove that a man was a prisoner in the penitentiary with- out producing the warden's journal. Howser v. Com., 1 P. F. Smith, 332. 13. It is not competent for a party to impeach his own witness either by evi- dence of bad character or by contradictory statements on other occasions. Per Read, J. Stearns v. Bank, 3, P. F. Smith. 490. 14. The answer of a witness that he does not rejriflmfter, does notshelter him from contradiction. Gregg v. Jamison, b P F. Smith, 468. 15. It is not error to rule out letters, written by a witness, which do not con- tradict him. Bigler v. Flickinger, 5 P. F. Smith, 279. 16. A party may prove different state- ments, not to discredit his own witness, but to dispose of the credit given by the act of calling him. Per Thompson J. Ibid. The authorities collected and reviewed by Thompso."}, J., and Read, J. Ibid. V. Op declarations, acts, deeds and DEPOSITIONS OF PARTIES — OF A WITNESS Oe PARTNER Op HUSBAND AND WIFE — Op OWNER — Of co-conspirator. 1. A levy on property by a plaintiff is evidence against him that it was not his property. Warner v. Scott, 3 Wr. 274. 2. A plaintiff's ex parte declarations are not evidence for him. Per Woodward, J. Staufferv. Young, 3 Wr. 455. 3. Admissions of alleged conspirators made after the alleged common design had been accomplished, are not admissible against a co-defendant. Benford v. San- ner, 4 Wr. 9. 4. Even if made in furtherance of the common purpose, they are not evidence against a co-defendant until his connec- tion with thiit purpose is first shown. Ibid. 5. Telegrams and declarations of a wife not evidence against her husband or his co-defenilants. Ibid. As to declara- tions of a husband. See Husband and Wife IV. 6. Evidence that a witness (whose mental faculties are attacked) repeated the same story as that given on the trial years before, may help the jury to a right estimate of his intellectual faculties, for to reword a narrative without substantial EVI 104 EVI variation is indicative of memory, tlie most valuable of all the powers of the mind. Per Woodward, J. Bricker v. Lightner, 4 TFr.~199. 7. The admission of one defendant that hn was a partner is evidence against him; and the adnaission to the same effect by the other defendant shows that both have so agreed. Drennen v. Housp., 5 Wr. 30. 8. The testimony of a witness in a former suit, between the same parties, and about the same subject, can be admitted, he having left the State ; although the former suit was replevin, the present as- sumpsit, and although in the replevin there was an additional defendant. Wright v. Cumptsy, 5 Wr. 102. 9. If a defendant in trespass for seizing personal property under ^. /a. prove dec- larations of the plaintiff that the prop- erty belonged to the defendant in the execution, the plaintiff may rebut by show- ing his acts and declarations to the con- trary at another time in the presence of the execution defendant. Roberts v. Young, 6 Wr. 439. 10. If a plaintiff prove by a witness that defendant had a certain letter in his possession, the defendant may cross-ex- amine as to what defendant said when he showed the letter to the witness. Steven- ftnn V. Roy, 7 Wr. 191. If a defendant prove what the plaintiff did on a certain uLcasion, the plaintiff can prove what he said at the time. Sherioood v. Titman, 5 P. F. Smith, 11. The declarations of a defendant are evidence against him. Ibid. 11. Where a supervisor is sued for damages in building a causeway in a stream, instead of a bridge over it, it is competent for him to show that he had received a message from another super- visor that he would not join in building a bridge. It disproves malice, and is not makinsr testimony. Yearly v. Fink, 7 Wr. 212. 12; In a suit on a mortgage, it is com- petent for the delendant to show that he objected to the deed when tendered to him, unless satisfied that it passed a clear title, and that the grantors assured him that such was its effect. For this evi- dence rebuts any presumption that by taking the deed he waived any of his rights to a perfect title. Thomas v. Harris, 7 Wr. 231. 13. But if the deed passed a good title the rejection of such evidence is not error, for its reception could not have benefited the defendant. Ibid. 14. Where a witness is cross-examined as to a payment, the opposite party may re-examine as to what was said at the time, for that is part of the res gestte. Woodwell V. Brown, S Wr. 121. 15. Testimony of witnesses in a crimi- nal case, and since deceased, is not admis- sible in a civil suit. Harger v. Thomas, 8 Wr. 128. 16. Evidence that a husband has re- ceived his share of the proceeds of land, and said it would not be right for him to claim any estate in the land, is admis- sible against his demand for curtesy. Johnson v. Fritz, 8 Wr. 449. See Hus- band and Wife IV., for other declarations of a husband 17. Instructions to an agent to deliver a message or make a demand can be proved as well by a bvstander as the agent. Featherman v. Miller, 9 Wr. 96. It is error to strike out the evidence be- cause the agent did not deliver the whole message. Ibid. 18. Where a defendant has produced a receipt which does not mention on what account, it is competent fir the plaintiff to prove that he sent to defendant an- other note of tl'e defendant, and asked for the receipt, which defendant said bad been burned. These facts are all for the jury. And it is not competent for de- fendant to prove in rebuttal that he was a blink director, and that plaintiff'.s neigh- bors were in the habit of sending him notes for discount. Ibid. 19. Declarations of husband and wife are evidence fur the wife against the hus- band's creditors, if not relating to the oriifinal ownership of the money, but only to its loan by her to him, evidenced by a note, all before creditors were in ex- istence. Townsend v. Maynard, 9 Wr. 198. 20. But declarations as to ownership not admissible. Parvin v. Gapewell, 9 Wr. 89. 21. Declarations of one or more man- agers not at a meeting of the board, are not admissible against a corporation to change a contract. Turnpike Road v. Graver, 9 Wr. 386. 22. Declarations of an owner, while owner, are evidence as to boundaries. Oratz v. Beates, 9 Wr. 495. EVI 105 EVI 23. So are his deeds recognizing cer- tain boundaries. Gratz v. Beates, 9 Wr. 495. 24. So declarations of non-claim. Ibid. 25. In an action for falsely representing a man as entitled to credit, the defendant cannot show that he did not make simi- lar representations to others, or that he had advised others not to sell to the debtor; nor are the declarations of the debtor and others, in the absence of the plaintiff, evidence. Orahnm v. Hnl- li.iger, 10 Wr. 55. 26." The testimony given by the sheriff before the auditor is not evidence in favor of the sheriff in an action brought against him for neglect to levy. Per Taylor, P. J., affirmed by the Supreme Court in Linton v. Gorn , 10 Wr. 294. 2'r. Notes of evidence of a witness since deceased are admissible, the counsel taking the notes sayhig that he took down all of the cross-examination that was ma- terial. B. B. Co. V. Spearen, 11 Wr. 300. 28. The declarations of a person in possession of land are explanatory evi- dence of the title he is claiming. Duffey V. Presbyterian Congregation, 12 Wr. 46. 29. Neither the declarations of an ex- ecutor, nor the statements of his agent, nnr the statements of a tenant of the land, are evidence against the heir, or devisee, or landlord, as to boundaries. Eakman V Sheqfer; 12 Wr IT 6. 30. Where a public officer has made a search of a defendant's person, the defend- ant is entitled to prove the search, and his contemporaneous declarations as to certain money found, although the finding of the money was developed on cross-ex- amination of the defendant's witness, the declarations are part of the search. Bhodes V. Com., 12 Wr. 396. 31. The report made by a corporation to the auditor-general is evidence against it. Bailway Go v. City, 13 Wr. 251. 32. In a feigned issue as to a. wife's judgment, the declarations of the husband are not evidence against her. Oicker v. Martin, 14 Wr. 138. 33 Neither declarations of husband nor wife can affect the title of the other. Thomas v. Maddan, 14 Wr. 261. 34. Evidence of loose declarations by one having the legal right to the title will not create a trust. Cowden v. Oyster, 14 Wr. 368. 35. The answers of a mortgagor to in- terrogatories filed as garnishee in an at- tachment to attach the mortgage debt, are not evidence against the mortgagee in his suit on the mortgage. Per Strong, J., in Broion v. Heott, 1 F. F. Smith, 366. 36. A defendant who is sued for the value of machinery (which the plaintiff did not deliver, but for which the plain- tiff simply gave an order on a third party) can prove that he presented the order and that it was dishonored. Stafford v. Henry, 1 P F. Smith, 514. Such evidence can- not be ruled out because the plaintiff' alleges and proves that the defendant took the order at his own risk, for each party has the right to maintain his own theory of the case. Ibid. Nor can it be rejected as hearsay. Ibid. 37. Not only confidential communica- tions between husband and wife are ex- cluded, but whatever has come to the knowledge of either pnrty by means of the confidence which marriage implies, cannot afterwards be divulged though the other party be no longer living. Hitner's Appeal, 4 P. F. Smith, 110. 38. A widow is not competent to prove that articles of separation were abrogated by cohabitation, although she has assigned her interest. Ibid. Other cases of decla- rations of husband. See Husband and Wife IV. 39. Declarations of plaintiff's agent not evidence for plaintiff, if not part of res gestae. Telegraph Co. v. Wenger, 5 P. F. Smith, 268. 40. Where suit is brought against a bank by one claiming that a deposit be- longs to him, the plaintiff can prove dec- larations of the depositor. Stair v. Bank, 5 P. F. Smith, 364. 41. Evidence is admissible of the acts of agents of those under whom a defend- ant claims. Jessup v. Loiicks, 5 P. F. Smith, 364. 42. Declarations of an engineer at the time of an accident are evidence against the company as part of tile res gestae. B. B. Co. V. Coyle, 5 P. F. Smith, 396. VI. Op books of original entries — Of chapters and ancient papehs — Sheriff's returns — Notaries' cer- tificates — Of records and trans- cripts — Lost parts thereof — Ex- plaining records. 1. When a transcript is offered, the EVI 106 EVI award need not be produced upon which the judgment has been entered by the justice. Warner v. Scott, 3 Wr. 2T4. 2. Lost parts of a recoid may be sup- plied by parol evidence. Miltimore v. Miltimore, 4 Wr. 151. 3. A record of recovery against the sheriff in trespass is evidence, though not conclusive, in a suit brought by him upon his bond of indemnity. Hazzard v. Nagle, 4 Wr. IT 8. 4. A record is properly admitted which is a necessary part of the history of the case. Patterson v. Anderson, 4 Wr. 364, 5. A bill of exceptions to an offer to prove certain facts by a record should set out the record, otherwise, though it should appear to the Supreme Court that the facts vs^ere admissible, the judgment can- not be reversed, for the bill of exceptions does not show that the record would have made out the offer. Lothrop v. Wight- man, 5 Wr. 29 T, 6. Evidence is admissible to explain a record where a guarantor claims that he has been discharged by the action of the creditor in withdrawing a motion for a new trial made in the suit against the principal. It is competent for the guar- antor to prove that he protested against the withdrawal of the rule, and that he insisted that the argument should proceed, &c. Stark v. Fuller, 6 Wr. 320. I. It is admissible to prove an account against a defendant, by the evidence of an arbitrator between the defendant and another, the arbitrator stating that the account was gone over in the presence of the defendant. Tarns v. Lewis, 6 Wr. 413. 8. Where officers of a corporation are sued as individually liable for its debts, the plaintiff must prove the charter of the institution, and where letters patent are necessary, they must be proved. Gardner V. Post, 1 Wr. 19. 9. Where the paper appears to be a copy, it should be rejected. Lau v Mumma. 7 Wr. 267. 10. The rule of evidence for ancient documents is, that they must have the appearance of antiquity and genuineness, be procured from the proper custody, and be corroborated by acts corresponding with their tenor. Lau v. Mumma, 7 Wr. 267. II. Where the same clerk acts for two Courts, and he omits to state in recording a deed the Court in which it was ac- knowledged, and the Court itself no longer exists so as to amend, the judge trying a case in which the record is offered, may ascertain the official default on suffi- cient f vidence and treat the deed as duly recorded. Per Lowrie, C. J. Buehler V. Puffington, 7 Wr. 278. 12. A sheriff's return, alvs^ays evidence for himself, should be construed most strongly against him. If he append a notice, without explaining when he re- ceived it, the law presumes he got it upon the day it bears date. Smith v. Emerson, 7 Wr. 456. 13. Parol evidence may be admitted to show when a Ji. fa. was received which the sheriff has omitted to endorse. Hale's Appeal, 8 Wr. 438. 14. The certificate o^f protest by a no- tary of another State is evidence under Act of December 14, 1854, although he do not keep a record as required of Penn- sylvania notaries by the Act of 1791. Sta7'r V. Sandford, 9 Wr. 1 93. 15. It is error to exclude from the jury all evidence impeaching the plaintiff's book, except that which relates to the de- fendant's account. Funk v. Fly, 9 Wr. 444. 16. The plaintiff who swears to his book, puts in evidence Iiis general charac- ter for truth and the general character of his book for honesty and accuracy. If from erasures, false d tes, &c., it clearly appears not to be -a, legal book of entries, the Court may reject it. If it go to the jury, its general character may be attacked by proof that other entries near the time in controversy are false and fraudulent. Per WoODWAED, J. Ibid. 17. The record of a replevin as to property alleged to have been stolen fis not evidence in an action for malicious prosecution growing out of the same con- troversy. Schofield V. Ferrers, 11 ll>. 194. 18. In an action on a leasehold mortr giige, (where the question is, whether a sheriff's sale upon a subsequent judgment discharged the lien of the mortgage be- cause of prior arrears of rent,) the record of the sale and distribution is evidence for the defendant as part of the res ges- tae, although the arrears, being no lieu, could not affect the mortgage. No in- ference can arise from the record to the prejudice of the mortgagee. Bank v. Heilner, 11 Wr. 461. EVI 107 EVI 19. Drafts not proved to be correct de- lineations may be rejected. Meehan v. Williams, 12 Wr. 243. 20. An original charter, sixty-eight years old, proves itself. Blackstone v. White, 5 Wr. 330. 21. If proof is made of a bona fide search for a copy of a charter where it was most likely to be found, which is un- successful, secondary evidence of the con- tents is admissible. Ibid. 22. It is error to admit evidence of a delivery of a deed in opposition to two judgments establishing that it was not de- livered. Hill v. Oliphant, 5 Wr 376. 23. "Cash," "commissions on cash," "work," or "merchandise,'' without specification, not admissible as book en- tries. Hale V. Ard, 12 Wr. 22. 24. Literary services not admissible. lUd. 25. Whether services by an attorney are admissible, dubitatur. Ibid. 26. A deed acknowledged before a mayor of a city outside of Pennsylvania, is admissible without proof of the cor- poration seal. Duffey v. Presbyterian Congregation, 12 Wr. 46. 27. Weekly entries by a laborer in his book admissible Yearsley's Appeal, 12 Wr. 531. 28. An entry in a book charging a sale of cattle is admissible, made under direction of plaintiff by his clerk on the day of sale, immediately after plaintiff's return from the drove-yard. Schol- lenberger v. Seldonridge, 13 Wr. 83. If a charge is made against two jointly, but not as partners, evidence that there was no general partnership is irrelevant. Ibid. 29. To explain a doubtful implication is not to contradict a record. Per Wood- ward, 0. J. Schnitzel's Appeal, 13 Wr. 23. It may be shown that one became bail for stay of execution at the request of a defendant who was as to the other defendant the principal. Ibid. SD. A plaintiff is bound by the sheriff's return of levied subject to prior levies, and cannot show that there were no prior levies. His remedy is for a false return. Paxson^s Appeal, 13 Wr. 195. 31. The security on an interpleader bond can, when sued, give in evidence the sheriff's return to the Ji. fa., to show that the property levied on was not eloigned, but sold by the sheriff. Hill v. Grant, 13 Wr. 200. The plaintiff can- not contradict the levy endorsed on his writ. Ibid. 32. A master's report is not evidence of a claim made before him. The making of the claim is a fact in pais, and only provable as such. Winter v. Newell, 13 Wr. 507. 33. It is competent to show by an arbitrator that an award did not embrace certain items. Converse v. Colton, 13 Wr. 346. 34. Parol evidence is admissible to show what articles were levied on by the sheriff. Weidensaul v. Reynolds, 13 Wr. 73. 35. Shop books of third parties are not evidence of a particular credit, they are only evidence of goods sold and deliv- ered, and work and labor performed. Winter v. Newell, 13 Wr. 507. 36. A sheriff's return is conclusive as between him and execution creditors of the defendant, but the sheriff, in his suit against a party who received property levied on and bound himself to return it, may show that his return to the fi. fa. was false and fraudulently procured by the party who would set it up. Eoans V. Matson, 1 P. F. Smith, 366. 37. Upon trial of an attachment, the garnishees cannot offer in evidence the record of a sheriff's interpleader between themselves as claimants, and other creditors as plaintiffs, resulting in a judgment for the claimants. King v. Faber, 1 P. F. Smith, 3S7. 38. It is error to admit in evidence a record of another suit to which the de- fendant was a party, not relating to the same subject matter. Cummings v. Gann, 2 P. F. Smith, 484. 39. The receipt on the record of a judgment, the records having been de- stroyed by fire, can be proved by parol. Clark V. Trindle, 2 P. F. Smith, 492. 40. A writing is not evidence unless supported by oath of party making it. Gil- morev. Wilson, 3 P. F. Smith, 194. 41. If the certificate is correct, an exemplification must be received, although some papers may not appear. They must be accounted for in order to supply them by secondary evidence, if needful. Eberts V. Eberts, 5 P. F. Smith, 110. EVI 108 EVI VII. — Of Evibenob in cases of feaud — Of slander — Op conspiracy — Qi'i'OR- GERY — Of mistake — Of lunacy. 1. Evidence to mitigate the damages in slander must not tend to prove the truth of the charge. Evidence is admis- sible of facts which in the mind of a prudent man would justly awaken suspi- cions of guilt. But this is necessarily subordinate to the first rule. Smith v. 'Smith, 3 Wr. 441. 2 It is a maxim that great latitude of evidence is to be allowed in the trial of questions of fraud. The meaning of which is, that every circumstanae in the condition and relation of the parties, and every act and declaration of the party charged with fraud, shall be competent evidence, if it is calculated to persuade the jury that the allegation is or is not well founded. Whatever is not of a nature to beget mental conviction, should be rejected ; whatever is of that nature, should be admitted. Per Woodward, J. Stauffer V. Young, 3 Wr. 455. 3. Where the question is, whether the defendant was imposed upon, the record of an inquisition finding him a lunatic is competent evidence for the defence, al- though he was restored and the commis- sion dissolved by decree of Court ten years before. Because if it showed he was of sound mind, it could not harm the plaintiff; but if it was calculated to shake the confidence of the jury in his mental soundness, then it was relevant. Ibid. 4. In such a case the defendant can show the plaintiff's inability to loan a large amount at the time in question, the extent of the defendant's necessities, and the transactions out of which the bond arose. Ibid. Parol evidence of fraud as to wife's ac- knowledgment. See Emdence XVI. 5. If any of the evidence is clearly ir- relevant, still the judgment will not be reversed unless the evidence is mischiev- ous as well as irrelevant. Ibid. 3 Wr. 455. 6. Although a conspiracy must ordi- narily be proved by circumstantial evi- dence, yet it is not to be forgotten that the charge of conspiracy is easily made, and that in a race between creditors suspicions of unfairness are readily awakened. Mere suspicion, possibility of guilty connection, is not to Ije received as proofs in such a case. Per Steong, J. Benford v. /San- ger, 4 Wr. 9. t. A creditor who receives money from his debtor, knowing that it has been promised to another creditor, is not thereby made a party to a corrupt conspiracy. Ibid. 8. In a question of fraudulent sale, the declarations of a vendor still in possession when the fi. fa. is levied are evidence for the creditor. Deakers v. Barker, 5 Wr. 234. In such a case, the conduct of the parties before and after the factcomplained of, as well as in immediate connection with it, must be freely examined. Ibid. 9. On the trial of a question of fraud- ulent sale, it is admissible to prove that the vendor sold and mortgaged other property. Deaker v. Temple, 5 Wr. 234. 10. Subsequent consent or ratification of an instrument will bind a party, even when it has been forged. Oarrett v. Gonter, 6 Wr. 143. 11. In action for conspiracy to defraud by secreting property of a debtor, it is not admissible for the defendant to show an effort to sell the property, or that some one had contemplated purchasing it. TaviH V. Lewis, 6 Wr. 413. 12. Where one whose claim for an ex- emption has been refused, sues for dam- ages, evidence of fraudulent concealment of his own or partnership property is admissible. Smith v. Emerson, 7 Wr. 456. 13. But not evidence of attempted con- cealment two months after the sheriff's sale. Ibid. 14. Upon trial of a question of fraud in the transfer of propei'ty, evidence is not admissible of fraud in another subject a year before. Hantzinger v. Harper, 8 Wr. 204. 15. The record of a plaintiff's convic- tion of forgery of the note he sues on is not evidence in the civil suit, either on the question of forgery, or as a foundation for introducing the > testimony of witnesses examined by the Commonwealth in the criminal case, who have since died. Har- ger v. Thomas, 8 Wr. 128. 16. It is competent for a defendant to prove that a credit he gave for hauling was a fraud committed on him, the article never having been hauled, but having been burned. Bobertson v. Beed, 11 Wr. 115. 17. In an action of slander, if the ac- EVI 109 EVI tionable words impute a want of chastity, the defendant can show that the general character of the plaintiff was bad before the slander. Gonroe v. Conroe, 1 1 Wr. 198. 18. Evidence of a mistake of fact, aris- ing out of a mistake in law, is admissible to avoid a bond, as where the administra- tors of a trustee supposed that they were the successors in the trust, and erro- neously gave a bond as trustees. Oross V. Leber, 11 Wr. 520. 19. In slander for charging perjury, the delendant may prove that the plaintiff's general character for veracity is bad Moyer v. Moyer, 13 Wr. 210. 20. Mortgages given by a grantor after his conveyance, and without tlie kpuwiedge of the grantee, are not evidence of acts of ownership to sustain an allegation of fraud in the conveyance. Preston v. Jones, 14 Wr. 54. 21. It is only acts and declarations of a conspirator in furtherance of the C(mT- mon design, or during *he prosecution of it, that can affect his confederates Per Strong, J. TJiomas v. Maddan, 14|l^r. 265. 22. Upon the trial of a feigned issue to ascertain how much was due by the defendants (a bank) upon a judgment confessed, it is not competent for the bank to show that " all their assets went into the hands of" the assignee of the judg- ment, or "that no losses were su.stHined by the bank." Davenport v. Wright, 1 F F. Smith, 292. 23. Evidence that a judgment is exces- sive without proof of fraud does not avoid the whole judgment. Ibid. 24. A party is estopped from defending himstlf by a return to a writ which he fraudulently procured the sheriff to make. Having bound himself to return goods levied on, having failed to do so, and having procured the sheriff to falsely re- turn to l\\& fi. fa. "sold," &c,, he cannot setup ihis false return in an action cm the bond. Evans v. Matson, 1 P. F. Smith, 366. 25. A finding of lunacy reaching be- yond the contract, throws upon the plain- tiff the onus of proving sanity at the time of execution. If he do this, he need not prove that the instrument-was read. Noel v. Earper, 3 P. F. Smith, ^1. 26. In slander, the repetition by others of similar reports is not evidence even in mitigation. General character may be assailed. Per Buffington, P. J., affirmed 1^/ Supreme Court. Fitzgerald v. Stewart, 8 P. F. Smith, 343. 27. An inquisition of lunacy is only prima facie evidence of lunacy, although ii find that there are no lucid intervals. Per SxkoNQ, J. Titlow v. Titlow, 4 P. F. Smith, 216. 28. Correspondence between the wife and her trustee is evidence to prove her separate estate as against her husband's creditors. Per Butler, P. J., affirmed by Supreme Court. Hannis v. Eazlett, 4 P. F. Smith, 133. 29. To strengthen the presumption of payment arising from lapse of time, the defendant may prove needy circumstances of the obligee. But that obligee had given mortgages is not relevant. So, too, it is immaterial that the defendant had a house and received a salary. Hughes v. Hughes, 4 P. F.-Smith, 240. 30. A writing may be reformed for fraud or mistake, but if in ordinary lan- guage it is not admissible to show that the words were used in any other than the popular sense. Fisher v. Deihtrt, 4 P. F. Smith, 460. 31. A purchaser who is not in a posi- tion of equality with the seller can show false representations knowingly made, al- though not a warranty. Bigler v. Flick- inger, 5 P. F. Smith, 2Y9. VII. Of Evidence as to wills. 1. To meet the allegation of undue in- fluence, it is competent to prove declara- tions of the testator many years before " of his intention to leave his property to his own name." Neel v. Potter, 4 Wr. 483. 2. Adulterous connection with the mother of a devisee is admissible in evi- dence upon the issue devisavit vel uon. Uean v. Negley, 5 Wr 312. 3. A change of intent is of no import- ance if there be a sound mind uncon- strained, but a will executed during a lucid interval may be attacked by evidence of instructions for a different will a short time before the testator became a luna- tic. Per Strong, J. Titlow v. Titlow, 4 P. F. Smith, 216. 4. But evidence that the testator fre- quently said within ten years that he liked one relative better than his other relations, is not admissible. Ibid. EVI 110 EVI 5. A legatee named in a preceding will not in controversy, is a competent witness against the subsequent will. Ibid. , 6 The declarations of the executor, plaintiff having no interest in establishing the will, and made prior to the will, are not evidence against it. Ihid. I. After proof of execution of a will, the plaintiff may rest, and may recall the subscribing witnesses if necessary in re- buttal. Ibid. 8. The opinions of subscribing wit- nesses as to a testator's sanity are evi- dence without the facts whereon the opin- ions are founded. As to other witnesses the rule is different. Ibid. 9. The testator's declarations are evi- dence in support of the will. Ibid. 10. An inquisition of lunacy is only prima facie evidence of lunacy, although it find that there are no lucid intervals. Ibid. I I. A petitioner for the inquisition and a committee of the lunatic are not estopped from showing a lucid interval. Ibid. 12. Want of memory in a subscribing witness will no more destroy the attesta- tion than insanity, absence or death. Kirk V. Carr, 4 P. F. Smith, 285. 13. The probate of a will, confirmed on an issue devisavit vel non, is prima facie evidence of the execution of the will, In an action of ejectment. Ibid. 14. Where there is no ambiguity in the description of property devised, evidence dehors the will cannot be received. Best V. Hammond, 5 P. F. Smith, 409 ; and see Wallize v. Wallize, 5 P. F. Smith, 242. IX. Evidence in land cases not em- braced IN THE FOEEaOING CLASSIFICA- TIONS. 1. A recovery in trespass quare clausum fregit is not conclusive of the title in ejectment, as a general proposition. If title was claimed in the action, it is con- clusive against the parties to it. Ewing V. Alcorn, 4 Wr. 497. 2. A recorded copy of an old plan of a town, by which all the original deeds must have been drawn corresponding with sur- veys on the ground, is evidence. Bir- mingham v. Anderson, 4 Wr. 506. The record of a bill by a borough, to perpet- uate the testimony of a surveyor since deceased as to such a plan, is evidence. His declarations in relation thereto con- cerning a matter of public interest are evidence. Ibid. 3. A deed from a defendant for a lot other than that liened, is evidence of ihe opening of a street. Darlingtdn r. Com., 5 Wr. 68. 4. Where a line or boundary is dis- puted, it is always a question of fact for a jury. And this, though a draft is marked by the parties, for it only desig- nates boundaries and does not locate them. Brown V. WiVey, 6 Wr. 205. 5. Where the question is, whether a parol sale of land can be taken out of the statute of frauds, it is competent for the claimant to show that there had been a contract to sell, and that the purchase money had been paid, though that alone is not sufficient. Hill v. Myers, T Wr. 175. 6. But it is not .competent to show that the vendor was present at a £heriff'.s sale of the land as the property of the vendee, and did not give notice, the sale not being that under which the plaintiff claims. Ibid. 7. Nor is it competent to show that the value of the land had depreciated. Ibid. Nor are declarations of the vendee ad- missible in the absence of the vendor. Ibid. 8. When the record of a deed, although not stating the Court in which it was acknowledged, does refer to the record of the suit, and the judgment and executions regularly appear, this is evidence of notice. Buehler v. Buffington, 7 Wr. 278. 9. Where there is not a sufficient de- scription in a lease, the jury may define the boundaries by evidence dehors the papers. Tiley v. Moyers, 7 Wr. 404. 10. In assessing damages for laying a railroad the opinions of experts are en- titled to weight. They may refer to the dangers of crossing. Brown v. Corey, 7 Wr. 495. 11. Certified connected drafts of ad- joining snrveys are evidence as aids in locating surveys. Gratz v. Beates, 9 Wr. 495. 12. The certificates need not say that the copies had been "carefully compared" with the original. Ibid. 13. The number of tracts need not be stated in the certificate. Ibid. 14. The draft may be in pencil, and unless an insertion appear to have been EVI 111 EYI made subsequently to the certificate, the presumption is, it was properly done. Ibid. 15. Declarations of an owner, while owner, are evidence as to boundaries. Ihid. So are his deeds recognizing cer- tain boundaries. Ibid. 16. A presumption from lapse of time, that a survey was made as returned, stands in the absence of marks on the ground for proof of actual location. Ibid^ 17. As the first step in showing title a connected driift is not evidence. Ibid. 18. A draft furnished by the ancestor of a plaintiff to the witness is evidence against the plaintiff, although part of it has been lost by accident, if the part pro- duced covers the land in controversy. Ihid. 1 9. In a contest in ejectment between di-tances and a monument, evidence is admissible as to how a former owner had divided and laid out the land. Lodge v. Baniett, 10 Wr. 477. 20 Mistakes by measurement cannot be shown by estimate from general ap- pearance Herdic V. Bilger, 1 1 Wr. 60. 21. A deed is not admissible in eject- ment without proof of some title in the frrantor by paper or acts of ov\rnership. Warner v. Henby, 12 Wr. 187. 22. The record of a conviction for for- cible entry is not evidence against the same defendants in a subsequent action of trespass. Bennett y. Fulmer, 13 Wr. 15t. 23. A trust can be proved by parol, but it must be clearly proved. Against a legal title ic is not favored. Bennett v. Fulmer, 13 Wr. 155. 24. The declarations of a purchaser for value, with his own funds, of an intention to hold the land in trust will not bind him. Ibid. 25. Where a resulting trust is set up against a legal title, all evidence should be rejected which does not make out a case sufficient to induce a chancellor to decree a conveyance. Ibid. 26. Evidence of a rambling way of passing, sometimes along one path and sometimes on another, does not establish a right. Arnold v. Gornman, 14 Wr. 361. 27. A sheriff's deed allowed to be read without the judgment or execution, this was objected to, and assigned for error, but not noticed in the opinion of the Court; the judgment, however, being affirmed. Hayden v. Patterson, 1 P. F. Smith, 262. 28. Declarations of a deceased county surveyor as to a corner of land not evidence. Kirkland v. Thompson, 1 P. F. Smith, 216. 29. A sheriff's deed is evidence in ejectment, without showing title in the person as whose property the Innd was sold, both parties claiming under the sheriff's vendee. Clark v. Trindte, 2 P. F. Smith, 492. 30. The office copy of a deed convey- ing land in two counties, and recorded in only one, is evidence in ejectment for lands in the county in which it is not recorded. Wheeler v. Winn, 3 P. F. Smith, 131. 31. Evidence is inadmissible of run- ning a line in partition, when possession under it has only continued a few years. Ho f err. Miller, 3 P.F. Smith, 156. 32. A deed proved or acknowledged ac- cording to law can be read, though it has never been recorded, and this without proof of handwriting of magistrate. His certificate is prima facie evidence of authority and signature. Keichline v, Keichline, 4 P. F. Smith, 75. X. Of evidence in partnership cases AND CASES OP JOINT LIABILITY NOT EM- BRACED IN THE FOREGOING CLASSIFICA- TIONS. 1. A deed executed after the formation of the partnership can have no retrospec- tive effect as to creditors. Graham v. McGreary, 4 Wr. 515. 2. A secret ariicle between an irre- sponsible partner and another irrespon- sible person of the same surname as the responsible partner, is not evidence to re- lieve the latter of the debts due by the firm. Ibid. 3. A joint purchase by two of stock in a store, and the giving of notes for the consideration, signed by one in the name of both, make out a prima facie case of partnership. Ihid. 4. The violation of the limited partner- ship law which converts a special into a general partner must be intentional. Singer v. Kelly, 8 Wr. 145. 5. A naked offer to show an assignment of assets without the assent of the special partner is not admissible. Ibid. 6. A receipt from a partner, not the liquidator of the firm, is no evidence of a EVI 112 EVI ratification. Ins. Co. v. Marr, 10 Wr. 5U4. *?. The order of testimony is for tlie Court. If necessary for a plaintiff' to prove a joint liability of two defendants independently of charges in his book, he may do so as well after reading the book in evidence as before. Bowers v. sun, 13 TTV. 65. 8. To establish a joint liability of de- fendants, a plaintiff may prove joint ownership of the property where the work sued for was dune, joint dealing with others as to the same property, the payment of bills made out again.^t them jointly, and the presence of the defendant contesting. Ibid. 9. The declaration of one defendant as to a partnership or joint liability is evi- dence against bira, and if the other de- fendant do not ask that it shall be con- fined to the party making it, he cannot except to its admission generally. Ibid. 10. A receipt by one partner is evi- dence against all, if follovifed by evidence of the partnership. Gronagrove v. Him- melrich, 4 P. F. Smith, 203. 11. The declarations of a partnership by one defendant are evidence. Cross- grove V Himmelrioh, 4 F. F. Smith, 203. XI. Of evihence in insueance cases NOT EMBRACED IN THE FOKEGOING CLASSI- FICATIONS. 1. Preliminary proofs in an insurance cas% cannot be read by the plaintilf un- less their sufiBeiency is denied, they are not piima facie evidence. Co7n. Ins. Co. V. Sennett, h Wr. 161. 2. A prima facie case uncontradicted is conclusive. Ibid. '6. The report made by an insurance agent to his cumpany is not evidence against them. Ins. Co. v. Schreffler, 8 Wr. 269. 4. A record of proceedings in another State establishing an equitable title in a plaintiff to goi ds insured, is evidence in his favor in his action on the policy in order to show his interest. Coursin v. Ivs. Co., 10 Wr. 323. 5. J'arol evidence is not admissible to show that a warranty in a policy was in- serted by mistake. Cooper v. Ins. Co., 14 Wr. 299. 6. Evidence of mistake is only admis- sible when it is mutual. The mistake of an insured in warranting property free, which was really encumbered, cannot be reformed by parol, even if the company's agent were also mistaken ; and the agent could not bind the company in this par- ticular. Cooper V. Ins. Co., 14 Wr. 299. 7. If the mistake were in a representa- tion, not a warranty, then the insured can show it by parol. Ins. Co. v. Cooper, 14 Wr. 331. 8. Evidence that the insured had no license, or that he defrauded other com- panies, or made false representations to defendant's agent as the agent of other companies, is irrelevant. Ins. Go. v. Spencer, 3 P. F. Smith, 353. 9. Evidence is admissible in an action on a policy that an article alleged to be hazardous is used in other establishments like that insured, and that its particular use was according to custom. I'er Wil- liams, A. J., affirmed by Supreme Court. Ins. Co V. McLaughlin, 3 P. F. Snnth, 48.5. For other insurance c.ises, see tiile Insurance. XII. Of EVIDENCE IN CASES ON NOTES AND AGAINST SURETIES NOT INCLUDED IN THE FOREGOING CLASSIFICATIONS. 1. If a note is passed in part payment of a prior indebtedness, a defendant can- not show that he was an accommodation endorser, and that it was passed in fraud of the defendant. Struthers v. Kendall, 5 Wr. 214. ■ 2. The addition of the endorser's resi- dence is no alteration of the instrument. Ibid. 3. Evidence that a holder of collaterals has exchanged some of them for other paper does uot of itself discharge the pie .gor. He should shew that the ex- change produced a loss. Ins. Co. v. Marr, 10 Wr. 604. 4. A previous warning that the exchange would be at the risk of the pledgee is not ipso facto a discharge, unl.ess there is evidenQ.e of a loss. Ibid. 5. When a surety proves ar: unequivocal notice to the plaintiff to sue or that the surety wiil be dischaiged, the burden is on the plaintiff to show that a suit would not have collected the debt. Strickler v. Bnrkholder, 11 Tfr. 476. 6. It is not competent for the defendant to show that about the time the note sued on was signed he was treated, &c. It should be confined to the day. Noel v. Ear per, 3 P. F. Smith, 97. EVI 113 EVI 1. Nor that defendant had signed a number of notes for his co-defendant, who was without means. Ibid. 8. A record of a judgment in foreign attachment is not evidence in a suit by an endorsee on a promissory note to show that it was attached as the payee's, the holder being no party to the attachment, and not having been notified thereof. Flanagan v. Bank, 4 P. F. Smith, 398. 9. Failure of consideration between the original parties is not evidence against an endorsee of a promissory note. Flana- gan V. Bank, 4 P. F. Smith, 398. XIII. Of evidence in ceiminal cases NOT INCLUDED IN THE FOREGOING CLAS- SIFICATIONS. 1. Distinct crimes cannot be proved against a defendant, but to show a mo- tive for homicide the Commonwealth may prove an illegal intimacy between the de- fendant and the wife of the deceased. Com. V. Ferrigan, 8 Wr. 386. 2. There being no evidence to show that the defendant was impelled to kill the deceased in self-defence, it is not com- petent for the defendant to prove the de- portment of the deceased towards his family, or generally as to violence of character, or his threats towards defendant. Ibid. 3. The motive of a witness is not col- lateral. If, on a trial for murder, tlie witness on cross-examination deny that he had ill-will towards or had threatened the deceased, he can be contradicted. Gaines v. Gom., 14 Wr. 319. 4. The Court may refer to the jury the question whether a substance seen by the witnesses was blood, although there is no evidence of scientific tests. Ibid. 5. Jurors are competent witnesses, both in civil and criminal issues. Howser V. Com., 1 P. F. Smith, 332. 6. It is competent to prove that a man was a prisoner in the penitentiary with- out producing the warden's journal. Ibid. 7. In questions of identity, records and registers are not the best evidence, for, after the entries themselves are received, it is necessary to individuate the persons mentioned. Per Woodward, C. J. Ibid. 389. 8. If in answer to a question put by the prisoner's counsel, the witness says he was convicted of burglary and par- doned, the defendant cannot object to the witness being sworn, because the pardon is not produced. Ibid. 9. Where a pardoned convict is a wit- ness, he may corroborate his testimony before it is attacked. Ibid. 10. A judgment will not he reversed because the witness states declarations which were either connected with the circumstances or immaterial. Ibid. 1 1. The inventory and appraisement of the estate of a murdered person, showing that the administrator found no money, are evidence against defendants charged with herhomicide, where there is proof that the deceased had money and that the de- fendant had spoken of robbing her, &c. Ibid. XIV. Of evidence in cases against STOCKHOLDERS. 1. In an action against stockholders of a manufacturing corporation, the mem- bership of the defendants may be proved by the charter, by the record thereof, and by subscriptions of an attorney. 3fc- Hose V. Wheeler, 9 M^r. 32. The ledger of the company is evidence of indebted- ness to plaintiff. Ibid. 2. Evidence of defendant's faults and mistakes in organizing is irrelevant fur the* defence. Ibid. XV. When evidence for the Court AND WHEN FOR THE JURY. 1. An addition apparent on the face of a note presents a question for the Court, not for the jury. Hill v. Cooley, 10 TTV. 259. See, also, Buchanan v. Buchanan, 10 Wr. 186. 2. It is error to leave a question to the jury of which there is no evidence. Hf.r- dic V. Bigler, II Wr. 60. Updegraff y. Rowland, 2 P. F. Smith, 317. 3. See other cases. Errors and Ap- peals IV., 14, 15. XVI. As TO INVALIDATING WIFE'S AC- KNOWLEDGMENT. 1. A wife's acknowledgment may be impeached for fraud or constraint. 3Iich • ener v. Gavender, 2 Wr. 337. Hall v. Patterson, 1 P. F. Smith, 290. 2. A purchaser of land without notice is excepted from this rule. Ibid. 3. A purchaser of a mortgage is not protected unless he inquire. McGandless V. Engle, 1 P. F. Smith, 313. EVI 114 EVI 4. Less than actual duress may avoid a wife's acknowledgment. McGandless V. Engle, 1 P. F. Smith, 313. XVII. Of evidence to MENTs— Surveys — Op DENCE TO EXPLAIN PAROL EVIDENCE OF AFFECT JTJDG- PAROL EVI- WRITINGS — Op CONTENTS OF WRITINGS — Of CONSTRUCTION OP DIP- PERENT INSTRUMENTS — Op NOTICE BY PAROL, AND NOTICES GENERALLY. 1. The effect of a judgment cannot be swept away by showing what was proved at the hearing. Warner v. Scott, 3 Wr. 214. 2. As to affecting a wife's acknowledg- ment by parol. See Emdence XVI. 3. The rule that an instrument, is to be construed most strongly against the party thereto, qualified in a case where the evi- dence on the opposite .side showed that the language was the plaintiffs', -written by them, and sent to defendant. Prit- chett V. Wilson, 3 Wr. 424. 4. A survey may be corrected by the calls, by evidence of a mistake, by proof of the quality of the land omitted, of the carelessness or incompetency of the sur- veyor, and by the opinion of the witness as to how the error occurred. Caldwell V. Holler, 4 Wr. 160. 5. An executory contract may be re- scinded by parol evidenced by acts. Lauer v. Lee, 6 Wr. 172. R. A vendor may prove that money paid on account of land was transferred to another account by consent. Holmes V. Johnson, 6 Wr. 159. T. Parol evidence allowed to determine a question of doubt as to who was a legatee, and to show that a name had been inserted by mistake. Wagner's Ap- peal, 7 Wr. 102. 8. A party cannot give parol evidence of the contents of a letter, if it appear that he has a fac-simile of the original in his possession ; it should be produced. Stevenson v. Hoy, 1 Wr. 191. 9. An agreement to allow a certain dam to be built, must be construed to mean that the dam is to be built within a reasonable time. Lau v. Mumma, 7 Wr. 267. 10. An instrument may be reformed by parol on the ground of fraud, accident, or mistake, but parol evidence is not admis- sible to contradict, vary, or alter a writing as to show that grain, expressly reserved, was not to belong to the vendor if not in law movable property. Harbold v. Kus- ter, 8 Wr. 392. 11. Parol testimony may be admitted to prove that a conveyance from father to son was intended in part as an advance- ment. Kingsbury's Appeal 8 Wr. 460. 12. A sheriff can prove that his deed was never delivered. This does not con- tradict his deed. Gibson v. Winslow, 10 Wr. 380. 13. In a contest in ejectment between distances and a monument, evidence is admissible as to how a former owner had divided and laid out the land. Lodge v. Barnett, 10 Wr. 411. 14. Where a guarantee reads " for goods bought," it is competent to show that it referred to goods purchased and to be purchased. The subject-matters and cir- cumstances are explainable by parol. Aldridge v. Eshelman, 10 Wr. 420. 15. Parol notice from a surety to sue is admissible. Strickler v. Burkholder, 11 Wr. 476. 16. The contents of a notice should be proved by a duplicate original. Morrow V. Com., 12 Wr. 305. 17. Where an agreement for sale of land bound the owner to convey in fee, clear of all encumbrances, evidence is not admissible that the purchaser agreed to take just such title as the vendor had. Lloyd V. Farrell, 12 Wr. 73. 18. Where a contract expresses simply that land shall be conveyed in satisfaction of certain mortgages, it is not competent to show that the mortgagor intended thereby to release usury by evidence of prior propositions to convey the latjd in settlement of all claims. Per Hampton, P. J., affirmed by Supreme Court. Heath V. Page, 12 Wr. 130. 19. An administrator defendant, who has signed a waiver of formal proof, is not competent to explain the circum- stances under which he made it. Ander- son v. Wnshabaugh, 1 Wr. 115. 20. Parol evidence is admissible to show that a purchaser agreed to pay liens. Buckley's Appeal, 12 Wr. 491. 21.^ An unanswered letter cannot vary a contract. Collins v. Baumgardner, 2 p. F. Smith, 461. Evidence of a con- temporaneous parol contract cannot be received to vary or contradict a vi'ritten contract. Ibid. • EVI 115 EVI 22. A bill of lading may be explained to rebut an implication from its face, con- trary to the fact, as to show a different destination beyond that mentioned in the bill. Steamboat Co. v. Brown, 4 P. F. Smith, "77. 23. A written notice served is admissi- ble, although it contain statements of the plaintilf in his own favor. C'rossgrove v. Himmelrich, 4 P. F. Smith, 203. 24. A carrier cannot give evidence of the usual form of his bill of lading, and that it excepted loss by fire, when the con- tract in suit contains no such exception. Clyde V. Graver, 4 F. F. Smith, 251. 25. Nor can a will be affected by parol where there is no ambiguity, Best v. Hammond, 5 P. F. Smith, 409. Wailize V. Wailize, 5 P. F. Smith, 242. 26. A release may be affected by parol evidence that certain matters were ex- cepted therefrom. Gould v. Lee, 5 P. F. Smith, 99. 27. Evidence can be admitted to show that a condition to farm in a workmanlike manner means to spread limo, &c. Au- gi'iibaugh v. Coppenheffer, 5 P. F. Smith, 347. XYIII. Of evidence on question op DAMAGES — Oe readiness TO PERFORM, &C. 1. Evidence to mitigate the damages in slander must not tend to prove the truth of the charge. Evidence is admissible of facts which in the mind of a prudent man would justly awaken suspicions of guiit, but this is necessarily subordinate to the first rule. Smith v. Smith, 3 Wr. 441. 2. In an action for wrongly dissolving a partnership, injury to its credit is a sub- ject of damage, but evidence is not ad- missible of the giving up of a former contract at considerable loss. Addams v. Tutton, 3 Wr. 447. 3. Evidence as to the value of land should be the selling price in the neigh- borhood. Fast Penna. B. B. Co. v. Hiester, 4 Wr. 53. 4. It is not competent to ask a witness in chief, what sales he knew of? Such a question might be proper in cross-exami- nation. Ibid. 5. In an action for damages for non- delivery of merchandise, evidence offered by the plaintiff that defendant had an abundance of the article, and was able to perform, rejected aa irrelevant. North American Oil Co. v. Forsyth, 12 Wr. 291. 6. Where an article is deliverable in lots, uncertain as to time and quantity, and inspection is necessary for payment, neither a tender nor an offer to pay can be required as proof of readiness to pay. Ibid. 7. Where a plaintiff, for the purpose of showing damages, offers to prove a price at a place other than the place of delivery, the defendant should object on that ground; if he object generally, and the evidence be admitted, the judgment will not be re- versed. Cullum V. Wagstaf, 1 2 Wr. 300. 8. Evidence of price at a place distant from the contract place of delivery, not admissible. Fessler v. Love, 12 Wr. 407. 9. Evidence of readiness and willing- ness to perform is for the jury where the parties have been indulgent as to deliv- eries, payments, &c., and one suddenly insists on rescission. Forsyth v. Oil Co., 3 P. F. Smith, 168. 10. In an action for damages in not sending a telegram for purchase of stock, evidence is not admissible to show that there was no certainty the stock could have been purchased. The fact that it could not be purchased would be evidence. Telegraph Co. v. Wenger, 5 P. F. Smith, 268. 11. In an action for damages the plain- tiff can show the amount of his sale, and his profits thereon prior to the injury. B. B. Co. V. Coyle, 5 P. F. Smith, 396. XIX. Of effect of prima facie evi- dence — Of immaterial and harm- less ADMISSIONS AND REJECTIONS OF EVIDENCE. 1. A prima facie case uncontradicted is conclusive. Com. Lis. Co. v. Sennett, 5 Wr. 161. 2. If a witness prove nothing beneficial to the party calling him, the judgment will not be reversed because the Court improperly allowed the witness to be attacked. Wright \. Cumpsty, 5 Wr. 102. 3. A judgment will not be reversed because of error' in rejecting a compe- tent witness, unless the bill of exceptions also show what he was to prove, and that its loss was injurious to the plaintiff in error. Lothrop v. Wightman, 5 Wr. 297. 4. In an action against an endorser, letters between the maker and the plain- EVI 116 EVI tiff before the giving of the note (inquir- ing if plaintilF would discount a note so endorsed, &c.) are not evidence, but the judgment will not be reversed if the deft^ndant has not been prejudiced. Eckert v. Cameron, T Wr. 120. 5. Unless prima facie evidence is re- butted it is conclusive. Starr v. Sand- ford, 9 Wr. 193. fi. A judgment will not be reversed for the introduction of irrelevant testimony if entirely innoxious. Jus. Go. v. Marr, 10 Wr. 504. 7. Error does not lie to the discretion in admitting or rejecting evidence in re- buttal, because it could or could not have been offered in chief. Gaines v. Com., 14 Wr. 319. 8. If an offer of testimony is good for any purpose it cannot be rejected. King V. 'Faber, 1 P. F. Smith, 387. 9. A legal presumption is the conclu- sion of the law as to the existence of one fact from others in proof, and is binding ]irima facie until disproved. Per Agnew, J. Tanner v. Huyhes, S P. F. Smith, 291. XX. Of customs, presumptions, (of DEATH, PAYMENT, AGENCY, MAR- RIAGE) — What admissible with- out NOTICE Of bond WHERE SIGNA- ture not denied by affidavit (though unstamped) —Bills of lading and other matters. 1. Evidence of an agreement to assign to a plaintiff certain drafts not then in existence, does not support an averment that the drafts became the property of the plaintiff. Benford v. Sanner, 4 Wr. 9. 2. Repairs of a highway by a city is evidence of adoption. Munn v. Pittsburg, 4 Wr. 370. 3. Resolutions of a city council are evidence without being recorded, when they are not required to be recorded. Darlington v. Com., 5 Wr. 68. 4. Evidence will not be received to prove a custom, however ancient, if t'ontrary to morality, as that in a certain region it is not the custom for negroes to form legal marriages. Holmes v. John- son, 6 Wr. 159. 5. An interval of twenty-seven years from the last rumor of a person justifies the presumption of his death. Ibid. 6. Possession- of a bill by an acceptor, or of an endorsed note by its maker over- due, is evidence of payment ; but such possession before maturity is not notice to the purchaser thereof either of pay- ment or extinguishment. Per Strong, J., reviewing the English cases in Eckert v. Cameron, 7 Wr. 128. 7. Proof that one signed receipts and endorsed checks for a defendant is no evidence of an authority to sign a guar- antee for defendant. Stevenson v. Hoy, 7 Wr. 191. The proof should be of similar guarantees ratified or authorized. Ibid. 8. A defendant does not make a claim evidence by reading it. Harm.an v. Cum- mings, 1 Wr. 322. 9. Agency can be proved by acts, re- cognition, &c. Woodwell V. Brown, 8 Wr. 121. 10. Evidence demurred to. Steelwagon V. Jeffries, 8 Wr. 407. 11. Giving a certificate of incorporation in evidence does not prevent the party offering it from showing its falsity. Pat- terson V. Arnold, 9 Wr. 410. 12. After payment of fees and expenses and acts of ownership under a purchase, the law will presume in twenty years the payment of the whole purchase money, and after thirty years the delivery of a deed. Brock v. Savage, 10 Wr. 88. 13. Where a purchaser of merchandise has agreed to "advance the freight," it is error to admit evidence of a custom to pay the freight to the carrier on delivery. The contract being to advance before shipment, custom cannot control it. Eartje V. Collins, 10 Wr. 268. 14. A receipt on a deed is only prima facie evidence of payment. Gibson v. Winslow, 10 Wr. 380. 15. Vague rumors are not evidence of a mortgage. Murphy v. Nathans, 10 Wr. 508. 16. Notice to a husband will affect the wife when acting for her. Murphy v. Nathans, 10 Wr. 508. 17. Payment of interest on a mortgage is evidence of notice of its existence. Ibid. 18. After evidence has been received without objection and commented upon by the defendant, he cannot ask to have it withdrawn. Mclnvoy v. Dyer, 11 Wr. 118. 19. Evidence against one defendant, if limited to him alone, cannot be excluded because it does not apply to the other de- EVI 117 EXA fendants. Phillips v. Phillips, 12 Wr. 178. 2 J. If an objection to evidence be general, the ruling will be sustained if the evidence be proper for any purpose. Cul- lum V. Wagstaff, 12 Wr. 300. 21. No bill of exception lies to the re- fusal to strike out evidence received with- out objection. The Court should be asked to charge the jury to disregard it. Oswald V. Kennedy, 12 Wr. 9. 22. If one recognizes his signature as a subscribing witness, it is immaterial that he does not recollect the act of signing by the parties or by himself. Bennett v. Ful- mer, 13 Wr. 155. 23. Taking a note from one of two who are jointly liable, and obtaining judgment thereon, is no satisfaction of the claim, unless so agreed to be taken. Bowers v. Still, 13 Wr. 65. Shollenberger v. Set- donridge, 13 Wr. 83. 24. A map in the possession of a prin- cipal on which land is marked with the name of one who has purchased from an agent, is evidence of the agency. So, too, is the custody of the article of sale by the principal. Hall v. Vanness, 13 Wr. 457. The fact that the old article is made the basis of a new one is also evidence. Ibid. 25. Upon an ispue of payment between plaintiff and defendant in a judgment, evidence of other judgments is inadmissi- ble. Horner v. Hower, 13 Wr. 475. 26. It is admissible for a defendant in trover to show that he was surety for the plaintiff in the purchase, vinder an agree- ment that the goods should belong to de- fendant until paid for. Keyser v. Bad- gers, 14 Wr. 275 27. A judge's former charge in the case cannot be read as evidence in argument. Butler V. Slam, 14 Wr. 456. 28. The taking from a mortgagor notes equal in amount to the mortgage, fur- nishes of itself no legal presumption that the notes were accepted in satisfaction of the mortgage. Brown v. Scott, 1 P. F. Smith, 363. 29. It is true that in Massachusetts and in Maine, it is held that if a debtor gives his negotiable promissory note for the amount of his precedent debt, the law presumes it a payment of the debt in the absence of any agreement to the contrary. But such is not the general rule of the common law. No such presumption is raised. It is a question for the jury with- out any presumption of discharge of the debt. Per STaoNG, J., in Brown v. Scott, 1 P. F. Smith, 363. 30. It is error to admit in evidence an answer by a sheriff to a telegram offering a reward for the recovery of stolen prop- erty, the sheriff not being a party to the suit. Cummings v. Oann, 2 P. F. Smith, 484. 31. On trial of a municipal claim, the defendant cannot show under pleas of non-assumpsit and payment (without notice) that the contractor was not employed by the chief commissioners. City V. Burgin, 14 Wr. 539. 32. But if this evidence is received, the claimant would be at liberty to rebut it. Ibid. The claimant can show that the defendant waived his notice and told the workmen to go ahead. Ibid. 33. Cohabitation alone is not evidence of a marriage. The alleged wife, when competent to testify, cannot prove repu- tation. The contract should be evidenced by words in the present tense for the pur- pose of establishing the relation of hus- band and wife, and should be proved by signatures or witnesses. Application to legitimate children and subsequent mar- riage are evidence against the former marriage. Com. v. Stump, 3 P. F. Smith, 132. 34. An insolvent bond is evidence, without proof of execution, where a cjpy has been filed and no affidavit denying execution put in sec. reg. Mc Govern v. HoUback, 3 P. F. Smith, 176. It is evi- dence, although unstamped. Ibid. 35. A bill of lading, with receipt on it for through fare, is sufficient evidence of a con tract to carry to thatterminus, although beyond the defendant's line. Steamboat Go.'v. Brown, 4 P. F. Smith, 77. 36. A bill of lading may be explained to rebut an implication from its face, con- trary to the fact, as to show a different destination beyond that mentioned in the bill. Steamboat Go. v. Brown, 4 P. F. Smith, 77. 37. The agent of a carrying company can bind them to transport beyond their terminus. Steamboat Co. v. Brown, 4 P. F. Smith, If. EXAMINATION OF WITNESSES. See Eoidence II. EXC 118 EXE EXCEPTION OP^ COAL OUT OP GRANT. See Land IX. EXCEPTIONS, BILLS OP. See Practice VII. EXECUTED AND EXECUTORY AGREEMENTS. See, generally, Vendor and Vendee IV. EXECUTION. Effect of attachment. See Attachment, § 6. Officers' fees not attachable. See Ibid. § 1. Municipal bonds can be attached. See Ibid. § 28. Effect of collusion- between execution plaintiff and defendant, and collusion to prevent bidding. See Attachment, §§ 14, 1.5. Of controlling execution because of notes given. See Debtor and Creditor I., 12. Commissions of an executor cannot be attached. See Decedents^ EstatesYJI., 10. Of restitution. See Errors and Ajopeals V., 21. Eject- ment IV., 1, 3. An execution creditor will be restrained fi'oni selling fixtures severed in fraud of first lien creditor. See Equity I., 38. Creditor's bill to restrain execution of another creditor. See Equitij I, 13, 71. Lumping and fraudulent sales and deeds, and fraudulent judgments. See Fraud I. Goods and property earned by, given to, or bought by a w\Xe. See Husband and Wife II. A railroad passes as an appurtenance. See LandXYll., 3. Lien of testatum is gone when it is struck off. See Land XI., 3. Landlord's right to proceeds. See Landlord, 11, 12, 15. Distribution between partnership and separate creditors. See Partnership II., 5, 9, &c. Liability of sheriff for proceeds, &c., and for goods stolen. See Sheriff, 1, 4, &c. Sheriff may bring trover. See Sheriff, 2, 16, It. Sheriff may leave goods with defendant until sale. See Sheriff, 17. Attaching trust moneys. See Trusts V., 3, 8, 9. I. Of the levy — stock may be levied on. II. Of exemption against partners, and against one partner. III. Of the exemption of a defendant and of a widow — claiming, waiv- ing, allowing, rejecting, and as- signing it — suits for refusing it. IV. Of staying, superseding, postpon- ing, delaying executions. V. Of executions against life-estates and corporations — what a sher- iff's sale discharges— when it is void — when sequestration neces- sary — when a sale is not satis- faction. VI. Of claims by third parties, and sheriff's interpleaders — suits on interpleader bonds. VII. Of fraudulent transfers by debtors — of lumping sales by sheriff. VIII. Of confession of judgments when void, and when good as to other creditors— of distribution of pro- ceeds (other than in partnership cases, which are noted in II. j — claims of wages — issues. I. Op the levy — Stock may be levied ON. 1. If the officer, with the goods in view and within his power, assert that he makes a levy upon them, his acts are equivalent to a levy. Per Strong, J. Ins. Go. V. Berger, 6 Wr. 292. 2. Omission to endorse the time at which an execution is received will not postpone it to a second writ. This may be supplied by parol. Sales' Appeal, 8 Wr. 438. EXE 119 EXE 3. If a levy is given to a sheriff else- where, it is his duty to go and enter it in viev7 of the property. Failing in this, the execution must be postponed and the sheriff is liable. Per Taylor, P. J., af- firmed by Supreme Court. Linton v. Com., 10 Wr. 294. 4. Stock may be seized by fi. fa. or attached, but if bank stock or other stock liable to lien, (for debts, &c.,) attachment is the better remedy. Weaver v. R. R. Co., 14 Wr. 314. II. Of executions against partners, AND against one PARTNER. 1. Where an execution against one partner is levied on his right in partner- ship property, and a second execution is levied on the partnership property, the proceeds of the sale are to be paid first to the execution against the firm, although it was second in point of time ; the sur- plus goes in discharge of the first execu- tion, and is not payable to the defendant or to the creditors of the firm having no execution. Backus v. ilurphy, 3 Wr. 39Y. 2. The sheriff's sale in such a case dis- solves the partnership, extinguishes the joint stock, and the right of the defend- ant or creditors without execution to intervene is gone. Ibid. 3. An executory agreement of partner- ship never executed but repudiated, gives no title to the repudiator to property pur- chased by the other party, nor can the re- pudiator's creditors levy thereon. Rice v. Shuman, 1 Wr. 37. 4. The interest of a defendant in a partnership is leviable. Smith v, Emerson, 1 Wr. 456. 5. If a firm is dissolved and its goods become the individual property of one partner, an execution against him alone and a levy on the goods takes precedence of a subsequent execution against the firm and levy on the same goods. Copers Appeal, 3 Wr. 284. 6. For judgments against partner's.. See Judgments III., 1, 2, 3. 1. A partnership debt is that which is owing to its creditors, not a debt due to the firm by a partner. McCormick's Appeal. Hayes' Estate, 5 P. F. Smith, 253. 8. Partnership creditors cannot claim the estate of a deceased partner of an insolvent firm, except through the surviv- ing partner, and he cannot claim for un- paid debts due by the firm. Ibid. III. Of the exemption of a defendant AND OF A WIDOW — Of CLAIMING, WAIV- ING, ALLOWING, REJECTING, AND ASSIGN- ING IT^-SUITS FOR REFUSING IT. 1. A widow to whom real estate has been set apart under the exemption act, can sell it, and, like any other vendor, can be sued in ejectment. Sipes v. Mann, 3 Wr. 414. 2. One who purchases land subject to a judgment, cannot claim the three hundred dollar exemption out of the proceeds. As terre tenant he is neither " defendant nordebtor. " EberharVs Appeal, 3 Wr. 509. 3. The mere right of exemption is not vendible nor assignable. Ibid. 4. A widow is entitled to her exemption as against a claim existing before July 4, 1849. Baldifs Appeal, 4 Wr. 328. 'Hill V. Hill, 6 Wr. 204.« 5. A widow cannot be barred of her exemption by proof that she and her hus- band committed adultery before marriage. Hill V. Hill, (> Wr. l')8. ^'or by divorce from a former husband for desertion. Ibid. 6. The exemption can be claimed against an attachment in execution, but the claim must be made in a reasonable time. It is too late after plea. Strouse V. Becker, 8 Wr. 20fi. 7. The debtor must claim his exemption against every successive execution cred- itor. Strouse V. Becker, 8 Wr. 20fi. 8. Judgment debtors cannot claim the exemption against purchase money liens; but if the exemption is not claimed, pur- chase money liens must rank according to their date of record. Hence, a with- drawal of the exemption will give the fund to the first judgment, although not for purchase money. A'yle and Dunlap's Appeal, 9 Wr. 353. 9. A widow can claim her exemption as against a creditor whose judgment states that it is "for balance of purchaae money," where the creditor was not the vendor of the land, but one who lent the money to enable the husband to purchase it. Notte's Appeal, 9 Wr. 361. 10. A sheriff's return to writs, always evidence for him, should be construed most strongly against him. If he attach to his return without explanation a de- mand for the exemption, it is evidence that EXE 120 EXE it was received on its date. Smith v. Emerxon, 1 Wr. 456. 11. Where a defendant, who has been improperly refused his exemption, sues for his damages, the sheriff may prove a fraudulent concealment of property, and it is not error to charge that if he fraud- nlently concealed more than three hun- dred dollars his damages should be nom- inal, but tliat if he were an honest debtor, his damages should be compensatory. Smith V. Emerson, '7 Wr. 456. 1"2. But the sheriff cannot in such an action prove an attempted concealment of property two months after the levy and sale complained of. IMd. 13. It is error to charge in such a case that if the concealment was of partner- ship property, of which the debtor was only part owner, it was highly proper. Such a concealment is fraud. Ibid. 14. The widow's exemption should be promptly appraised as>a sheriff proceeds. It should be made by the appraisers of the other personalty. It is no objection 1hat they are relatives of the widow, or that they first appraise all and let the widow select. Vandevort's Appeal, IWr. 462. 15. It is error to review a widow's ap- praisement by referring the question to an auditor, and if a guardian obtain such a reference he should pay the costs. Ibid. 16. If the whole of the widow's exemp- tion is not satisfied by the personalty, the balance may be charged upon the realty, and follows it in the hands of a purchaser from the heirs, who have received it under a partition, and the Orphans' Court may decree a sale therefor. Eetweiler's Ap- peal, 8 Wr. 243. 11. Joint debtors cannot claim the ex- emption out of joint property. Bonsai v. Gomly, 8 Wr. ' ii2. 18. A replevin will not lie for goods appraised at under three hundred dollars. Ibid. 19. A waiver of the exemption in favor of junior creditors inures to the benefit of the oldest judgments. Lauck's Appeal, 8 Wr. 395. 20 A widow who delays her claim seven years and then prosecutes it through a second husband, is not entitled to her exemption. Setting apart the land to her is a nullity, and she can be ejected at suit of the owner. Burk v. Gleamn, 10 Wr. 29Y. 2i. Choses in action cannot be attached upon a judgment obtained on notes given for rent, under a lease waiving the ex- emption of personal property from levy and sale for arrears of rent; the waiver extends only to the property liable for the rent. Mitchell v. Goates, 11 Wr. 202. 22. The widow's exemption is to be paid to her, not distributed among the children, and she is accountable fyr it only in the Court of conscience. Per Strong, J. Nevin'n Appeal, 11 Wr. 230. 23. A widow's right to land set apart to her under sec. 5, Act April 14, 1851, is not superior to the, lien of a judgment obtained against her husband before the passage of the act, and continued until her death. Per Steong, J. Bishell v. Bishell, 12 Wr. 248. 24. Where there is no waiver of ex- emption in the judgment which sells prop- erty, the defendant can claim three hun- dred dollars of the proceeds, but not as against a creditor whose debt was con- tracted before July 4, 1849. Bittman's Appeal, 12 TFr. 315. 25. A debtor cannot change the order of distribution by waiving his exemption in favor of subsequent judgments. Ibid. 26. A purchaser at a judicial sale ac- quires title to the goods sold, although the officer act in violation of law in re- fusing an appraisement and exemption, and although the purchaser direct the officer to sell. Hatch v. Bartle, 9 Wr. 166. 21. A debtor is not entitled to the ex- emption against a purchase-money judg- ment, although the Court may have con- firmed the appraisement. UlricKs Appeal , 12 Wr. 489. 28. A waiver of inquisition and a sale on a fi. fa. do not bar the claim for ex- emption made' in due season. Shawns Appeal, 13 Wr. 177. 29. The possession of other property without fraud is no bar to the exemption. Ibid. 30. The claim for the exemption can- not be set up upon the trial of an attach- ment. Zimmerman v. Briner, 14 Wr. 535. 31. A. widow marrying again is en- titled to the three hundred dollars exemp- tion. Com. V. Bowell, 1 B. F. Smith, 438. 32. A widow is entitled to the three' EXE 121 EXE hundred dollars exemption as against lien creditors by judgment or mechanic'si claim. The unpaid purchase-money is the only lien protected against her claim. Hilde- brand's Appeal, 3 Wr. 133. 38. A constable can justify a refusal to allow the exemption whore it is apparent on the face of the record that the debt was contracted before the date mentioned in the statute, July 4, 1849, but he can- not go behind the cause of action (a prom- issory note) to show that it was given for a back account, part of which was before July 4, 1849. Diehl v. Holben, 3 Wr. 213. 34. A verbal warning to the officer not to sell, that the property is claimed under the three hundred dollar law for the de- fendant's family, is a sufiicient demand. Ibid. 35. A demand or notice there must be,; but any words sufiicient to apprise the officer that the statutory exemption is the thing claimed, are sufficient. Ibid. 36. Unless there is an absence from home, ignorance of the levy, or other cir- cumstances to justify the delay, the de- mand must be made before the day of sale, generally before the advertisements are issued. Ibid. 37. A defendant must claim his exemp- tion of three humlred dollars as against an attachment when the process is served, or within a reasonable time thereafter. Bair v. Steinman, 2 P F. Smith, 423. 38. A widow is not entitled to three hundred dollars if there was an amicable separation and a provision for the wife's mainten'ance continuing until the hus- band's death. Hetlrick v. Hettrick, 5 P. F. Smith, 290. 89. A widow whose husband deserted her can claim the three hundred dollars out of his estate, and she is not barred from presenting her claims by the lapse of time before she had notice of his death. Terry^s Appeal, ,5 P. F. Smith, 344. 40. Money awarded by the State as a gratuity cannot be claimed by creditors. 'Gillan v. Gillan, 5 P. F. Smith, 430. IV. Of staying, stjperseding, postpon- ing, DELAYING EXECUTIONS. 1. The -Supreme- Court of Pennsyl- vania will not stiiy or supersede an exe- cution because of a writ of error from the Supreme Court of the United States, which has been issued and bail given within three weeks, according to the State law, but not in accordance with the Act of Congress. P. R. R. Go. v. Com., 3 Wr. 403. 2. Nor will the executions be super- seded because the record has not been remitted from the Supreme Court to the inferior Court, the record never having been sent up by the defendant below. Ibid. 3. If an execution plaintiff order the sherifi" not to proceed until further orders, and afterwards direct him to levy but not to sell, and allow the defendant the keys, his writ is liable to be supplanted by any junior execution ; and to entitle him to priority, he must prove affirmatively that he gave orders to sell before the sheriff received the second writ. Freeburger's Appeal, 4 Wr. 244. 4. Omission to endorse the time at which an execution is received will not postpone it to a second writ. This may be supplied by parol. Males' Appeal, 8 Wr. 438. 5. An execution will be postponed for a second writ, if the goods are not re- moved, the store is kept open, and in charge of defendant's clerk, who sells and accounts to the sheriff, although the levy is not merely for security, and although there was no delav nor orders to delay. Pary & Go. Appeal, 5 Wr. 273. 6. An execution will not be postponed because real estate levied on is adver- tised before the personal property is ad- vertised. Ghilds V. Dilworth, 8 Wr. 123. 7. Nor because some of the personal property was not included in the inven- tory. Ibid 8. Nor because the plaintiff request tine real estate to be first sold ; the only delay being a single day, and the sheriff selling the personalty first Ibid. 9. Stay laws affecting prior contracts are constitutional, if reasonable, and the fact of war may be considered in de- termining that question. Breitenbach v. Bush, 8 Wr. 313. Goxe v. Martin, 8 Wr. 322. 10. An order of Court staying &fi. fa. until a rule shall be disposed of, does not interfere with its lien, although the order contains no proviso preserving the lien. Bardorff v. Focht, 8 Wr. 195. 11. The lien of an execution is gone by the supersedeas of an appeal and tlie return of the execution. It cannot be EXE 122 EXE revived by the failure to file the appeal. Copers Aidpeal, 3 Wr. iM. V. Of executions against liee-estates AND CORPORATIONS — ^WhAT A SHER- IFF'S SALE DISCHARGES — WhEN IT IS VOID — When sequestration nboes- SARY — When a sale is not satis- EACTION. 1. A vend. exp. aj!;a.inst a life-estate can only issue by order of the Court on ten days previous notice of the applica- tion, otherwise nn title passes. Snyder V. Christ, 3 Wr. 508. 2. A sheriff's sale will not discharge liens expressly reserved in the conditions and deed. Schall's Appeal. Gaul v.. Lauer, 4 Wr. 170. 3. Creditors of improvement companies cannot sell under fi. fa.; they must resort to sequestration. Bittenhender v. Sun- hury and Erie R B. Co., 4 Wr. STT. 4. If one accept land under partition, and give a recognizance, it is good for the widow's share, although in the name of the heirs alone; hence it is not discharged by a sheriff's sale against the recognizor if the widow survive the sale But if the widow die between levy and sale, the lien is discharged, and is payable out of the pro- ceeds. Bailey v. The Com., 5 Wr. 413. 5. A sheriff's sale will discharge liens for purchase money or for performance of collateral conditions, unless they be testa- mentary provisions for wives and chil- dren, or are incapable of valuation, or expressly created to run with the land. Per Woodward, C. J. Heister v. Green, 12 Wr. 96. 6. A legacy charged upon land devised in trust is not discharged by a sheriff's sale of the land under a judgment against the devisee and trustee. Bewart'ss Ap- peal, 1 Wr. 325. 1. A sheriff's sale of lands not in his own county passes no title. Kinter v. Jenks, 7 Wr. 445. An unexecuted war- rant for land is not the subject of levy and sale as the property of the warrantee under a Ji. fa. Ibid 8. A sheriff's sale under a judgment obtained after a fraudulent deed does not divest liens before the deed. Soffman's Appeal, 8 Wr. 95. 9. A fruitless levy or sale producing nothing is no satisfaction. Hoard v. Wil- cox, 11 Wr. 60. 10. The words "under and subject to the payment of a certain sum, " to certain children, at the death of the widow, cre- ate an express lien, not discharged by a sheriff's sale during the lifetime of the widow; for while she lives the lien was of indeterminate value. A grantee of the land is liable for the amount charged. Per Chapman, P. J., affirmed by Su- prenje Court. Heist v. Baker, 13 Wr. 9. 11. Although a sale of land under a Ji. fa., (with waiver of inquisition,) made after the return day, is void as against a subsequent purchaser, yet a sale under a vend, exp., made after the Act of 1836, and before July 2, 1845, is valid, though six weeks after the return day. Kelly v. Green, 3 P. F. Smith, 302. 12. The writ need not be returned be- fore the deed is acknowledged. Ibid. 13. A sale of land under a fi. fa., without waiver and without inquisition, is void, and is not made good by distri- bution of the proceeds among creditors. Gardner v. Sisk, 4 P. F. Smith, 506. VI. Of CLAIMS BY third parties and sheriff's interpleaders — Suits on interpleader bonds. 1. One who claims an absolute and ex- clusive ownership of property levied on should prove it, he cannot set up a limited or restricted one, as a lease or a pledge. Stewart v. Wihon, 6 Wr. 450. 2. It is not error to submit the question of fraud, where there is evidence of large indebtedness and a hurried and uncertain transfer of property. Ibid. 3. If an agent sell personal property, and while it is in transitu, he, with the consent of all, sell it to another purchaser, it cannot afterwards be levied on by cred- itors of the agent or of the first purchaser. Huntzinger v. Harper, 8 TT>. 204. 4. A mortgagee of a chattel can main- tain a claim thereto against an execution creditior of the mortgagor. All that a claimant need do is to secure the public from the deception which may be practised by possession without ownership. Fry V. lliller, 9 TT'r. 441. 5. One who has planted grain may mortgage the crop, and an execution creditor can only levy subject to the mortgage. Ibid. 6. It is no defence to an action on a bond sur sheriff's interpleader to prove that a part of the goods was forthcoming to answer the execution. Nothing less than EXE 123 EXE the produciuij all, and producing them to answer the execution, will be a compli- ance with the condition of the bond. Hill V. Rohiwon, 8 Wr. 380. I. A sheriff's return is binding upon the plaintiff in a question of distribution. Paxson's Appeal, 13 Wr. 195. 8. And in a suit upon an interpleader bond. Hill v. Grant, 13 Wr. 200. 9. The surety upon an interpleader bond is discharged if the property levied on is forthcoming under that and other writs. Hill V. Grant, 1 3 Wr. 200. 10. It may be surrendered before the interpleader is determined. Ibid. II. Claimants of property levied on may allege and prove that " the right of property is in them, and that they hold it as collateral security for indebtedness." Richardson v. Montgomery, 13 Wr. 203. 12. Title to a ship will pass without bill of sale. Richardson v. Montgomery, 13 Wr. 203. 13. An execution creditor is not with- in the protection of the Act of Congress of 1850, declaring that no bill of sale or mortgage of a vessel shall be valid unless recorded. As against him a claimant can show an unrecorded trust in the holder of the legal title. Ibid. 14. Where the plaintiff in a sheriff's interpleader claimed as a creditor of the execution defendant, he is not debarred from asserting that indebtedness because he had made a general assignment and the assignee had not returned his claim in the inventory, it appearing that his debts had been all paid and his property revested in him. Keen v. Kleckener, 6 Wr. 529. As to fraud. See Execution VII. Fraud I. Husband and Wife II. VII. Of FRAUDTTLElSfT TRANSFERS BY DEBTORS — Of LtJMPING SALES BY SHERIFF. 1. Though a lumping sale by a sheriff is void, yet the defendant may confirm the title of the purchaser if there has been no fraud. Elopp v. Witmoyer, 1 Wr. 226. 2. There must be a change of posses- sion if the goods are capable of manual delivery. A transfer of furniture to one living in the same house without any change save the removal of a name from the door, is void as against creditors. Steelwagon v. Jeffries, 8 Wr. 40Y. 3. Fraud in the conveyance of real estate is a question of fact for a jury. Retention of possession will not make it fraud inlaw. Bank v. Beck. 13 Wr. 394. 4. The fact that the sheriff got a list of the goods to be sold from the defendant, and that he gave the defendant the hand- bills to put up, will not maiie the sale a fraud in law as to a subsequent execution creditor. These facts are for the jury. Ibid. 5. As against creditors there must be an actual, permanent change of possession. The burthen is on the purchaser. But if the seller leave the property, it is the same as if the property left him. Bai'r v. Reitz, 3 P. F. Smith, 256. 6. The delivery of keys of a safe, and of the room in which it stands, is a sufficient delivery as against creditors. Benford V. Schell, 5 P. F. Smith, 393. 1. A claimant in sheriff's interpleader is entitled to a verdict for such goods as are shown tn be his. Rush v. Vought, 5 P. F. Smith, 43Y. 8. For other cases of fraudulent sales, gifts, &c. See Fraud I., and Husband and Wife II. VIII. Of confession of judgments, WHEN VOID, AND WHEN GOOD AS TO OTHER CREDITORS — Of DISTRIBUTION OF PROCEEDS (other THAN IN PARTNERSHIP cases, which are noted in ii.) Claims of wages — Issues. 1. If an attachment in execution is served, and judgment obtained a-gainst the garnishee pending a levy by the debtor in the attachment against the garnishee, and afterwards the sheriff sell and pay the money into Court, the attaching creditor may be paid out of the proceeds. Win- termitz's Appeal, 4 Wr. 490. 2. An execution creditor who is insol- vent, and who has become security for the payment of a second execution, will not be allowed to receive the proceeds, but equity will award them to the second execution creditor, to whom the first would be bound to pay them if he re- ceived them. Per Hare, J., affirmed in , WorralVs Appeal, 5 Tl^r. 524. 3. If the claim be honest, a defendant may confess judgment for it, though barred by the statute. Keen v. Kleckner, 6 Wr. 529. 4. So a judgment will be valid for a bona fide claim barred by the statute of frauds. Ibid. EXE 124 EXP 5. Thoujrh defendants are embarrassed they can lawfully confess a judgment. Ibid. 6. Under Act of April 12, 1849, all laborers are to be paid, no matter how their wages are to be measured If a master workman has not paid his helpers they may claim, not exceeding fifty dol- lars. Se.ide7-Ki Appeal, 10 Wr. 57. T. Sale of land sold under articles con- verts the separate interests into money. The first owner is entitled to balance of unpaid purchase money. Against it are chargeable liens, &c., against his title. Judgments attaching after sale only bind to the extent of the interest the defendant would have in the proceeds. Barnes' Appeal, 10 Wr. 350. 8. It is error to refuse an issue upon material facts if demanded in time. Ap- peal of Benson, 12 Wr. 159. 9. An auditor having filed his report cannot, without a recommittal of the matter to him, file a supplementary re- port, especially as to other moneys. Ihid. 10. In distribution, other creditors are bound by the waiver of an owner as to part performance of a building contract if made without fraud. The lien in such a case is good fur the part performed. Stewart Y. McQuaide, 12 Wr. 191. 11. Creditors having no lien at the date cf the first item in a claim are bound by an appropriation of payments. If there is a settlement leaving a balance due by one of two properties levied on, it is for the jury to say how much is due by each property. Ihid. 195. 12. A (defendant in an execution is not a " person interested," who may question the right of plaintiff to receive a deed without payment of the purchase money, under Act of April 20, 1846, (allowing the sherifl' to take the receipt of the pur- chaser where purchaser is entitled to the proceeds.) Shaw's Appeal, 10 Wr. 401. 13. If the defendant has a defence to the judgment he should apply to have it opened. Ibid. , 14. Proceeds of a sheriff's sale are to be distributed according to the rights of parties on the day of the sale. If on that day a judgment appear, paid by a sheriff's return of "money made," a surety can- not by showing that he paid it and pro- curing subrogation, obtain priority. Doug- lass' Appeal, 12 Wr. 223. 15. A sheriff's return is binding upon the plaintiff in a question of distribution. Paxson's Appeal, 13 Wr. 195. 16. An heir-at-law is not a "person in- terested," under the Act of April 20, 1846, allowing a lien creditor to receipt to the sheriff when he purchases real estate. The only persons who can con- test the creditor's right so to receipt are lien creditors. Housekeeper's Appeal, 13 Wr. 141. 17. A conveyance " subject to the pay- ment of " a certain sum to the heirs of the grantor after his decease, creates a lien which is prior to a mortgage given by the grantee, and if the grantor die be- fore sheriff's sale, under a judgment sub- sequent to the mortgage, the sum re- served is the first to be paid, and then the mortgage. Strauss' Appeal, 13 Wr. 353. 18. Otherwise if the grantor had not died before the sale. Strauss' Appeal, 13 Wr. 141. 19. Creditors cannot without demand- ing an issue avail themselves of the plain- tiff's demand. If the plaintiff demand issues, but the auditor report in his favor, he has the right to withdraw his demand. Schick's Appeal, 13 Wr. 3->0. 20 One creditor cannot avail himself of the finding upon an issue in favor of another creditor. Schick v. Pharo, 13 Wr. 384. 21. In distribution of proceeds of sale of lands mortgaged by a corporation, their superintendent cannot claim his sal- ary under a clause in the mortgage which excepted " expenses of direction " from the tolls. Sheaff's Appeal, 5 P. F. Smith, 403. EXBCIJTORS AND ADMINISTRA- TORS, GBXERALLY. See Decedents' Estates. When they are not liable for profits. See Trusts III. EXEMPLIFICATIO-NT. As to exemplification of an exemplifi- cation. See Land XX., 3. EXEMPTION. See Execution III. EXPECTANCY. Mortgage of. See Mortgage I. EXP 125 FOR Mortgage of wife's expectancy. See Husband and Wife III., 2, 3. EXPERTS. It is not error to charge that visible facts are to be preferred to scientific meas- urement. Brown v. Bush, 9 Wr. 61. See, generally, Evidence II., 1, 2, 4, 5, 7, 10, 12, 16. EXTINGUISHMENT Of ground-rent. See Ground-Bent. 1. Where administrators take an as- signment of a mortgage from one who held with it the guarantee of their dece- dent, the guarantee is extinguished, and they cannot revive it by a transfer of the mortgage. Fluck v. Eager, 1 P. F. Smith, 459. 2. If a grantor held the entire title, his conveyance would extinguish a judgment he also held against the land ; but where his conveyance fails because of an out- standing equitable title, his judgment against the holder of that equity will not be extinguished. PosVs Appeal, 3' Wr. 328. 3. The rule in equity is that where it is manifestly to the interest of the owner of the encumbrance that it should not be sunk in the inheritance, it will be kept alive. Per Thompson, J. Batz's Appeal, 4 Wr. 211. 4. A conveyance to a wife will not extinguish a mortgage held on the same property by her trustee. Ibid. FACTORS. A factor cannot be deprived of his right to sell goods advanced upon, by an at- tachment thereon. Baugh v. Kirkpatrick, 4 P. F. Smith, 84. FATHER Is liable for' trespass of son in his presence. Strohl v. Levan, 3 Wr. 111. FEES. The Court below are the best judges of the quantum of fees due to a master. Totten's Appeal, 4 Wr. 385. FEIGNED ISSUES. See Debtor and Creditor II. See Exe- cution YIII. FEME COVERT. Administration by husband and wife. See Decedents' Estates XII. Liability of wife for her husband's de- vastavit. See Decedents' Estates II., 1. Practice in divorce. Effect of divorce. See Divorce. Ch arge as to damages for loss of husband. See Errors and Appeals II., 2. Statement of husband or wife, when evidence against the other. See Evidence IV. For gifts to, or purchases by wife. For fraud on marital rights. See Husband and Wife. Wife's share in partition. See Partition, 4, 9, 10. When trust for feme covert ceases on discoverture. See Trusts V. FENCES. An owner cannot remove the portion of a division fence erected by him, and trespass will lie for such removal. Stoner V. Hunsicker, 11 Wr. 514. FIRE Discharges purchaser at Orphans' Court sale from his bid. Demmy's Appeal, 1 Wr. 155. But not a purchaser at sheriff's sale or by articles. Ibid. As to insurance. See Insurance. FIXTURES May be covered by a mortgage. See Mortgage I. FOREIGN ATTACHMENT. 1. A foreign attachment is not strictly a proceeding in rem.; and, therefore, if under such a writ the sheriff seize the goods of a person other than the defendant, he is liable in trespass. Megee v. Peine, 3 Wr. 50. 2. In such a case the owner may in- tervene ; but if he do not, he is not pre- cluded by the judgment in the foreign attachment. Ibid. 3. A plea of the foreign attachment and judgment thereon, is in such a case FOR 126 FOR demurrable. Ibid. Where goods are sold under an order in foreign attach- ment as perishable, the title of the pur- chaser is indefeasible. Ibid. 4. Where a defendant in foreign at- tachment appears but gives no bail, he can defend, but the attachment is not dis- solved. Littel V. Sor anion Gas Co., 6 Wr. 500. 5. If defendant in foreign attachment confess judgment, and stock attached is sold by fi. fa., as good a title passes to the purchaser as if a sci. fa. had issued against the garnishee. Ibid. 6. One viho claims by private purchase from the defendant in opposition to a sheriff's vendee under proceedings in at- tachment, should show a valuable consid- eration by clear proofs. Ibid. I. A judgment in foreign attachment may be set aside for irregularity in en- tering the same, but it is error to dissolve the attachment for such a reason. Mur- doch V. Steiner, 9 Wr. 349. 8. Foreign attachment lies in account render and in all actions sounding in contract where the Court can fix the amount of bail to dissolve. Strock v. Little, 9 Wr. 416. ^ 9. Whether foreign attachment will lie in covenant not decided. £. B. Co. v. Wilcox, 12 Wr. 161. 10. After appearance and plea, the regularity of an attachment cannot be contested. Ibid. II. Where the object of the plaintiff in a foreign attachment is to attach mer- chandise, the sheriff must actually take it into his possession. A service of the writ upon a company having custody of the property without actual seizure of the goods amounts to nothing, except in cases vehere the officer is prevented by fraud or force from getiing at the property. Penna. B. B. Go. v. Pennock, 1 P. F. Smith, 244. 12. After service of a foreign attach- ment in Allegheny county upon the Pennsylvania Railroad Company as gar- nishees, they allowed the debtors' oil then in Philadelphia to be delivered. The Court below gave judgment against them, the Supreme Court reversed, holding that as the oil was susceptible of seizure if present, and was not seized, " nothing was done in attaching it that the act requires." Ibid. FORFEITURE. As to what will or will not work a forfeiture. See Land IX. and XII. Breach of condition in will. See Wills IV., &c. Of lease. See Land IX. and XII, FORGERY. Defence of endorser. See Bills of Exchange and Promissory Notes I., i, 3, 16. Alteration of ground-rent deed de- stroys right of distress. See Oround-Bent, § 7. FORMER RECOVERY. 1. In trespass, conclusive of the right if title claimed. Ewing v. Alcorn, 4 Wr. 49T. 2. The charge of the Court may be properly received to show that a former suit was for the same cause of action. Pick ford v. Cooper, 5 Wr. 142. 3. A conviction on an indictment for maintaining a dam is no bar to a common law suit for damages. Gould v. Lang- don, 1 Wr. 366. 4. If under the act allowing a petition for damages, the prosecutor had su bmitted his claims to the jury who tried the in- dictment, it would have been irregular, but if it were set up and defeated, the de- fendant might show this in bar of the civil suit. Ibid. 5. A former verdict and judgment be- tween the same parties is conrlusive of the thing directly decided, and of every fact essential to the adjudication. The form of action need not be the same, but it must appear from the record, or by evidence not inconsisteut therewith, that the thing alleged to have been adjudi- cated vi'as necessarily and directly in- volved in the judgment. Per Stkong, J. Tarns V. Lewis, 6 Wr. 410. 6. Hence if a creditor, injured by a conspiracy to fraudulently secrete the goods of the debtor, issue an attachment in execution against the confederate as garnishee and is defeated, this will not bar his right to sue in conspiracy for his damages. Ibid. 1. Nor can the confederate defend such FOE 127 FRA a suit by showing that insolvent assignees of the debtor have also recovered from him the value of the goods so fraudulently assigned. Ihid. 8. A decision upon a bill in equity in a United States Court between the same parties, and upon the same will, is con- clusive in an ejf'ctment brought in the State Court. Cihj v. Girard, 9 Wr. 9. 9. A dismissal of a bill in equity can- not be pleaded by a defendant who has confessed judgment quod computet in account render. Fulton v. Addams, 9 Wr. 67. 10. If two equitable ejectments result in different judgments, there is estoppel against estoppel. Per Strong, J. Myers V. Hill, 10 Wr. 9. A party is not con- cluded by a prior judgment, unless the precise question was then necessarily tried and determined. Ibid. 11. What has been determined in a former suit is often a question of fact for a jury, but when it is determinable by the pleadings, it is always a question of law for the Court. Bitzer v. Eillinger, 10 Wr. 44. 12. If a plaintiff introduce a claim accruing after suit brought without objec- tion from the defendant, he is bound by the verdict. Ihid. 13. Although a judgment may not have been entered on the verdict in the first suit when the second case is tried, yet if in fact the judgment is entered in the first before judgment in the second suit, the plaintiff cannot complain that the Court excluded in the second suit a claim in- cluded in the first verdict. Ihid. 14. A defendant can use in a second suit a set-off already used before arbitra- tors in the first suit, where the plaintiff has appealed from the award. Ihid. 15. When a cause of action is insus- ceptible of severance, the estoppel of a previous judgment will extend to the whole, but when severable, this presump- tion may be rebutted by evidence (as of an arbitrator) that it extends only to a part. Converse v. Cotton, 13 Wr. 346. 16. Proper effect should be given to evidence supplying a lost record, to make out a former judgment for the same cause. The loss of the declaration if properly supplied does not relieve the unsuccessful party from the effect of the judgment. Butler V. Slam, 14 Wr. 456. 17. " Plaintiff being called came not, and attachment dismissed," is only a non-suit, and does not bar a second suit. Per Taylor, P. J., affirmed by Supreme Court. Haws v. Tiernan, 3 P. F. Smith, 192 18. A former recovery is evidence of a plaintiff's right, although the judgment in the first suit was entered after the bring- ing of the second snit Casehcer v. Muwry, 5 P. F. Smith, 419. And it is conclusive as to a matter not embraced therein, if inevitably flowing therefrom, as for injuries by a tail-race, the first suit referring only to the dam. Ibid. FRAUD, FRAUDS AND PER- JURIES. Collusion to prevent bidding. ^ee Attachment, 15. Reconveyance mustbe tendered — what contracts void and voidable — fraud may be ratified, may be waived and assumpsits brought — one defrauded is charged with care of property. See Contracts VI., IX., 1, 2, 5. Fraudulent dividends See Corporations V., 24, 51. Defendant not liable for statements honestly believed to be true, nor for thoughtless suppression. See Deceit, § 1. Fraud of trustees or others with trus- tees. See Equity I., 94 ; and Trustees. Evidence upon trial of fraud. See Euidence VII. Holding by wife against her husband's creditors. See Husband and Wife II. Fraud on marital rights. See Husband and Wife VI. Rescission of articles by parol. See Husband and Wife II., 2, 3. Vendor and Vendee III. and IV. Fraud on wife's power to alien or mortgage. See Husband and Wife III. What will or will not affect a policy. See Insurance. Fraud in obtaining wife's acknowledg- ment. See Justices, §§ 12, 13. FEA 128 FEA Concealment of outstanding title is a ' fraud upon the purchaser. See Land VII., 6, '7, 8. Fraudulent removal by tenant. See Landlord and Tenant, 16. Allep;atioBS of fraud will not excuse councilmen from meeting as required bj law. See Mandamus, 4. Allegations of fraud will not give Courts jurisdiction to try a contested election where a remedy is given else- where. See Quo Warranto, 1. I. Of fraud against creditors by sales, gifts, transfers, conveyances, bonds, judgments, severance of fixtures — assignment of policy of bona fide purchasers — purchase as agent. II. Of parol sales and partitions of land — recital of articles — agreement to fence. III. Of parol promises to pay the debt of another — parol acceptance — parol release. IV. Of fraud against the vendor, en- dorser, covenantor, maker — im- becility — confidential relation — alteration — fraudulent recovery — tampering with agent. V. Cases of trust — fraud binds the party. I. Oe featid against creditors by Sales, gifts, transfers, conveyances, bonds, judgmenys, severance of fix- TURES, assignment of POLICY — OF BONA FIDE PURCHASERS — PURCHASE AS AGENT. 1 . If the motive of a grantor in a vol- untary conveyance be to withdraw prop- erty from the reach of debts he intends to contract, the deed is invalid as against the debts subsequently incurred. Snyder V. Christ, 3 Wr. 499. 2. This may be inferred from entering into a hazardous business or contracting large debts immediately after. Ihid. 3. If a creditor know of the conveyance when he gives credit, he is not defrauded. Ihid. Where the party claiming under the deed alleges that the creditor knew of the deed, that question should be left to the jury. Ihid. 4. Fraud in law is a question for the Court, who should not leave it to the jury where the facts are that stock is trans- ferred to the wife of a debtor and by her to a third person without payment of money, taking of an inventory, or change of possession. Milne v. Henry, 4 Wr. 352. 5. In such a case a sale in solemn form, honest in intent, accompanied by pay- ment, but with possession retained, would be fraudulent in law and void. Jhid. 6. If there is any dispute as to change of possession, the facts are for the jury. Ibid. For other cases between the wife and creditors of her husband, see below, 38, 39, 40, 44, 45, 46 ; and see Husband and Wife II. T. A bona fide purchaser of a chattel for a valuable consideration and without notice from a fraudulent vendee takes a title clear of the fraud, whether it be legal or actual. Per Read, J. Sinclair V. Healy, 4 Wr. 417. 8. It is not an error to decline to charge that " a jury ought to be satisfied by the clearest and most satisfactory testimony that a grantor intended to defraud his creditors" by a certain deed, before they find against it. Painter v. Drum, 4 Wr. 467. 9. An intent to defraud at the time a deed is executed is necesswy in order to avoid it, but such an intent is deducibie from previous acts and declarations. Ibid. 10. When there is a substantial de- liveiy of personal property and transfer of possession, and it is so retained exclu- sively for four or five weeks, the vendors return and the occasional use of the prop- erty by his wife will not vitiate the original transfer. Graham v. McCreary, 4 Wr. 615. 11. It is not a fraud upon prior credit- ors to carry on a business in the name of a debtor, the same being conducted by a trustee of certain contributors, and the property, whether it represents the capital or the profits, cannot be levied on by such prior creditors. Reas v. Livingston, 5 IF;-. 113. 12. A purchaser who has only given notes which have not been negotiated, is not protected against execution creditors if the sale were made to hinder, delay, or defraud creditors. Per Hampton, J., affirmed. Deakes v. Temple, 5 Wr. 234. 13. A purchaser at a sheriff's sale may safely allow the defendant in the execution to carry on the business under the same sign and trade-mark as before, the judg- FEA 129 FRA ment being; nnimpeached. Lothrop v. Wightman, 5 Wr. 29Y. 14. An owner of property cannot so dispose of it fur bis own use as to put it beyond the reach of liability for his future debts. Mackason's Appeal, 6 Wr. 330. A conveyance to trustees for the grantor's own use is void as to creditors. Ibid. 15. A transfer of property as security for a debf. is valid, unless made to hinder creditors. It is error to charge as matter of law that such an assignment is of itself fraudulent. Vallance v. Ins. Co., 6 Wr. 441. 16. It is not error to submit to a jury the question of fraud, when there has been a large indebtedness and hurried and uncer- tain transfer of property. Stewart v. Wihon, 6 Wr. 450. lY. Where there is no change of pos- session it is not error to refuse to leave the question to the jury, and the facts that vendor and vendee live together, and that part of the arrangement was that vendor should take care of and sell 4he property, do not excuse retention of the possession. Brown v. Keller, 1 Wr. 104. 18. Circumstances may justify a sheriff in selling in the aggregate ; but the pur- chaser under such a sale ought to sh.nv their existence. Prima facie, the sale is not G;ood. Per Stkong, J. Klopp v. Witmoyer, Y Wr. 224. .19. If there are no such circumstances shown, and the execution plaintifi' becomes the purchaser, the jury should be in- structed that the sale is a fraud, even against one not at that time a judgment creditor. Ibid. 20. A sheriff's discretion is not to be controlled by the execution plaintiff. Ibid. 21. A purchase by one as an agent will not shield property from his creditors when no authority is shown from the supposed principal. Per Williams, P. J., affirmed by Supreme Court. Henry v. Milne, 1 Wr. 418. 22. Where the notice of claim is put in by the agent in the name of the supposed principal, it is no evidence of ratification. Ihid. 23. Judgment notes given by partners to defraud creditors will be set aside,' although assigned to innocent holders. Taylor's Appeal, 9 Wr. 71. 24. A confederate cannot cover such a fraud by taking the notes in the name of third persons, and assigning the notes to them in lieu of notes exchanged between him and said parties. Ibid. 'lb. A bill of sale and delivery of pos- se.«sion by an insolvent is void against creditors if accompanied by a secret trust, from which the debtor may have the ben- efit of a possible surplus. Connelly v. Walker, 9 Wr. 449. 26. This is to be determined by the fact of trust or no trust, and not by the indebtedness of the owners to the vendee, nor by the eventual profits or losses. Per Woodward, J. Ibid. 2Y. The trust may be established by parol, and declarations after the agree- ment are confessions and admissible. They need not be made at the time the paper is executed. Ibid. 28. If there was no indebtedness by the owner to the vendee, the sale would be fraudulent in fact. Evidence of such indebtedness is admissible, and the exe- cution creditor may rebut it. Ibid. 29. To sever fixtures, &c., in order to give a later judgment creditor the oppor- tunity to levy upon them as personalty, is a fraud upon the first lien creditor, and will be restrained. Per Pearson, P. J. Witmer')~ Appeal, 9 Wr. 4.55. 30. If a sum not proved is included in a judgment for the purpose of delaying creditors, the whole is void, but not so if included by mistake. Per Long, P. J., affirmed by Supreme Court. Wellinger V. Bailsman, 9 Wr. 522. 31. A aian cannot settle his property to his own use until a creditorshall assail it, and then over so as to prevent his creditor from seizing it. A check not to be presented unless an attachmeqt is laid will not avail against an attachment. Lloyd V. McCaffrey, 10 PFr. 411. 32. If a crier at a judicial sale discour- age bidders, whereby he strikes off to himself»valuab]e property for a trifling sum, it is a fraud which avoids the sale. If, however, he fairly give to all a chance and only refuses to assure them of the title, the purchase by himself, even at a low price, is not fraudu'ent. This is a question for the jury, not the Court. Brotherline v. Swires, 12 Wr. 68. 33. A sale of personal property unac- companied by possession is fraudulent as to creditors of the vendor; and this is for the Court. Dewart v. Clement, 12 Wr. 413. 34. Reter.tion of possession of real 9 FEA 130 FEA estate does not make fraud in law. Bank V. Beck, 13 Wr. 394. 35. That tlie slieriff got a list of per- sonal property from the defendant in the expcntion and gave him the hand-bills, does not mnke fraud in law. Ibid. 3fi. A deed from father to son for a nominal consideration on its face, but really in consideration that the son would pay the father's debts, which amounted to the full value of the property, is good as aj^ainst subsequent creditors. Preaton V. Jones, 14 Wr. 54. 37. Mortgages given by the grantor subsequently to the conveyance are not evidence of the exercise of ownership as against the grantee. Ibid. 38. A widow cannot claim as against creditors the amount of a policy on her husband's life issued to him and assigned to her when insolvent. Appeals of Elliott and Clay, 14 Wr. 75. 39. She can claim, however, policies issued directly to her. Ibid. 40. A bond may be void as to credit- ors in part and good in part, as a bond given by a husband for moneys of his wife is' valid as to all receipts since 1848, though void as to prior receipts unless there was an express promise at the time to repay her. Oicker v. Martin, 14 Wr. 133. 41. A bond taken for a fraudulent sale of land may be assigned bona fide, but a judgment thereon will not bind the land. Haymakers' Appeal, 3 P. F. Smith, 306. 4'2. Creditors of a fraudulent grantee must he postponed to creditors of the grantor. Ibid. 43. Mere excessiveness without fraud does not avoid a judgment. Davenport V. Wright, 1 P- F. Smith, 292. 44. If a man make a settlement upon his wife when clearly solvent, and he so remain for two years, it is good a« against subsequent creditors, provided it was not made to provide against future risks which he then contemplated incurring, or with intent to defraud any present or future creditor. Per A. P. Ross, Esq., auditor, affirmed by Supreme Court in Woolston's Appeal, 1 P. F. Smith, 452. 45. If creditors establish indebtedness to any amount at the time of a voluntary settltment, those claiming under the deed must show sufficient solvency to rebut the presumpiion against the deed. Ibid. 4G. Ihe fact that a creditor has recov- ered in ejectment against the wife's title as fraudulent, does not prevent the wife from claiming the fund arising from the sale of the land upon a prior mortgage. Ibid. 47. A parol sale of Ifind set up by a son against his father's creditors should be distinctly proved, and it should be clearly shown that possession was taken and improvements made. Willey v. Day, 1 P. F. Smith, 51. 48. It is no defence for a tenant that the lease has been assigned in fraud of creditors. Phipps v. Boyd, 4 P. F. Smith, 342. 49. It is not necessary in a purchase of lumber that the marking should be done at the instant of delivery, provided it is done as soon as circumstances will reasonably admit. Long v. Knapp, 4 P. F. Smith. 514. II. Or PAROL SALES AND PARTITIONS OF LANDS — Recital op articles — Agree- ments TO .FENCE. 1. A sale by parol, followed by pos- session and improvement, is notice to a subsequent judgment creditor, and the owner is not estopped from showing his early title by obtaining and recording his deed after the entry of his judgment. Patton V. Hollidaysburg, 4 Wr. 206. 2. Payment alone gives a purchaser under a parol contract no title, either legal or equitable, for payment may be com- pensated. There must not only be a delivery of possession under the parol contract, but it must be maintained, and unless accompanied by improvements which will not reasonably admit of com- pensation in damages, such performance will not take the case out of the statute. Per Strong, J. Hill v. JFeyers, 7 Wr. 172, and llcKoiven v. McDonald, 7 Wr. 441. 3. A tenant in common in possession cannot sell by parol to his co-tenant, nor can a tenant in possession buy from his landlord by parol. Ibid. 4. It is not enough to sustain a parol partition that the • parties agree to run and actually run a line of division, if it is also part of the arrangement that owelty should be adjusted and this' is not done. Kennedy v. Kennedy, 7 Wr. 413. 5. Equity will quiet the enjoyment of estates where there has been long ac- quiescence and possession under a parol FRA 131 FRA division. Per Strong, J. Kennedy v. Kennedy, 7 Wr. 413. 6. A parol contract for the sale of land will not be taken out of the statute by payment of money, nor by a possession not delivered under the contract, as where the purchaser was in possession when the contract was made. Myers v. Byerly, 9 TFr. 368. T. A recital in a deed to a stranger of articles for the sale of another tract, will not take the case out of the statute. It is a simple admission, not an estoppel, and requires of the claimant proof of the actual loss of the alleged article. Allen v. Allen, 9 WrA&'i. 8. It is error to submit such an admis- sion, standing alone, to the jury. Ibid. 9. Agreements to fence and about lines and boundaries are not within the statute of frauds. Fleming v. Ramsey, 10 Wr. 252. 10. A parol partition is good between tenants in common who run a line and take possession accordingly. Rider v. Maul, 10 Wr. 376. 11. A man is not estopped from assert- ing his legal title because he contracts with another to pay in land for erecting an improvement, nor because he allowed a sub-contractor to finish the improve- ment on the faith of the promise. Miran- ville V. Silver thorne, 12 Wr. 147. 12. Payment of purchase money can be acknowledged by parol. Bonner v. Campbell, 12 Wr. 286. 13. A parol partition among heirs is binding even upon femes covert if they assent, but only when agreed to by all and when it has been executed. Per Strong, J. McGonnell v. Carey, 12 Wr. 345. 14. An attempt by one heir to pur- chase the interests of other heirs in a certain tract is not such a partition, al- though he agree to pay by releasing bis interest in other lands ; and the deed of a feme covert without the joinder of her husband passes no title. Ibid. 15. Where a purchaser by parol pays, and takes possession, and holds for over twenty-one years, it should be left to the jury to find the facts; and if fully satisfied of the sale, identity of the land, extent of the land, the price paid and possession delivered, this is sufficient to maintain the title of the purchaser. Per Agnew, J. Richards V. IJlwell, 12 Wr. S&l. 16. It is error in such a case to charge that the contract must be clearly proved in all its parts by those who heard it made or repeated in presence of the parties, and that it must clearly exhibit location, boundaries, quantity and price. Ibid. 17. So, too, it is error in such a case to charge that the possession must be con- tinuous. A vendee need not stick to possession like one defending under the statute. Ibid. 18. Possession of a deed by a son is no evidence of title to land paid for by his fathej', although the son was of the same Christian name, and although the father had declared it was for the son. The clearest evidence of a gift, accompa- nied by possession, of valuable improve- ments not to be compensated in damages, is necessary to establish a parol gift between father and son. Miller v. Hartle, 3 P. F. Smith, 108. 19. Two years acquiescence in a par- tition line establishes nb title. Hoffer v. Miller, 3 P. F. Smith, 156. 20. Easements, profits a prendre, and incorporeal rights, cannot exist by parol. Hull V. McCauley, 3 P. F. Smith, 206. 21. A parol partition of lands held in common by an equitable title can be made. Maul v. Rider, 1 P. F. Smith, 386. 22. A parol sale of land to operate against the vendor's creditors should be distinctly proved, and it should be clearly shown that possession was taken and im- provements made on the faith of it. Willeyv. Day, 1 P. F. Smith, 51. Lapse of time may supply want of directness and distinctness of proof, but it cannot create proof. Per Strong, J. Ibid. 23. One who gives his ground for a school-house, and solicits others to sub- scribe to the building, cannot afterwards reclaim the land. McLain v. School Di- rectors, 1 P. F. Smith, 196. 24. A parol sale of land set up by a son against his father's creditors should be distinctly proved, and it should be clearly shown that possession was taken and im- provements made. Willey v. Day, 1 P. F. Smith, 51. 25. A parol contract for sale of land need not be proved by a person present, but may be established by the acts and declarations of the parties. The prop erty must be identified without doubt, and FEA 132 FRA the consideration shown. Possession must be taken under the c'ontract, and improve- nients made and the contract executed so fVir as to make it unjust to rescind it. Per Stowe, A. J., affirmed by Supreme Court. McOihheny v. Burmaster, 3 P. F. Smith, 332. 26. If the jury find these facts in favor of the purchaser, they may find a condi- tional verdict in ejectment by the vendor, to be released on payment of the unpaid purchase money in a reasonable time. Ibid. 27. A parol contract for the exchange of land cannot be enforced if wanting in certainty, and no possession has been taken under it. Big Mountain Go.'s Appeal, 4 F. F. Smith, 361. 28. But one who has encouraged ex- penditures not capable of reimbursement except by possession, will be enjoined from disturbing the possession. Ibid. 29. The statute of frauds does not apply where a creditor agrees with a debtor that, if he will waive the exemp- tion, the creditor will buy the land and hold a certain part as trustee for the debtor. Beegle v. Wentz, 5 P. F. Smith, 369. 30. Where a defendant in equity con- fesses a parol sale in his answer, he can- not set up the statute of frauds. Houser v. Lamont, 5 P. F. Smith, BIT. III. Op parol promises to pat the debt OP another — Parol acceptance — Parol release. ^ 1. A verbal promise by a purchaser of goods to pay the debts due by the seller, will not enable a creditor of the seller, who was not a party to the agreement, to sue the purchaser. Shoemaker v. Eing, 4 Wr. lOY. 2. When a debtor puts money or means in the hands of another to be delivered to a particular creditor, the creditor can sue. Ibid. 3. The statute of frauds contemplates the mere promise of one to be responsible for another. Where the defendant under- takes upon a consideration received by himself, the promise is not within the statute. Per Read, J. Malone v. Keener, 8 Wr. 107. 4. A guarantee of a note passed by a defendant in payment of his own debt, need not be iu writing. Ibid. b. A promise to pay money in the hands of the defendant as agent of another, to the creditor of that person, need not be in writing. Stoudt v. Hine, 9 Wr. 80. 6. A promise to pay the debt of another in consideration of some benefit to the promisor or harm to the promisee, need not be in writing. Arnold v. Stedman, 9 Wr. 186. 7. The consideration of a promise to pay the debt of another need not be set out in the writing, but may be proved aliunde. Shir,ely v. Black, 9 Wr. 345. The English and American cases cited per Read, J. Ibid. 8. A husband is not liable on his wife's note given for debt of a third person, though she sign it at his request, and he promise to see it paid. Miller v. Long, 9 Wr. 350. 9. A promise by an administrator to be personally liable for the death of his de- cedent, will not bind unless in writing, although he may have been guilty of a devastavit. Sidle v. Anderson, 9 Wr. 464. 10. If one sign his name below the maker's name on a note, though long after the date of the note, this will take the case nut of the statute of April 2(i, 1855, (requiring a memorandum in writing;) but if he endorse he is only liable to subse- quent, not to prior holders. Jack v. Mor- rison, 12 Wr. 113. 11. But one who has promised by parol to pay the debt of another, is liiible if he has received collaterals for his promise for all sums collected on the collaterals, although there is no memorandum. Ibid. 12. An acceptance may be by parol. Spaulding v. Andreirs, 12 Wr. 411. 13. A plaintiff cannot recover upon a verbal promise to pay all the debts of a corporation, (including a claim due to the plaintiff,) although the consideration was his transfer of his stock, his resignation as a director, the election of the defend- ants, and their control of the property. Maule V. BuckneU, 14 Wr. 89. 14. If a principal agree to pay a sub- contractor for going on with the work, this is an original undertaking and not within the statute. Whitcomb v. Kev- hart, ]4 Wr. 85. 15. Although it may be a plaintiff's duty to do work as a citizen to repel invasion, yet if the defendant promise to pay him if he do it, an action will lie, iFRA 133 FEA although the promise is not ia writing. Smith V. McKenna, 3 P. F. Smith, 151. 16. A promise to pay the debt of the vendor as the consideration for a sale of goods need not be in writing. Clymer V. De Young, 4 P. F. Smith, 118. n. A release of damages to a railroad company may be proved by parol, but the evidence should be clear and definite. E. B. Go. V. Schollenberger, i P. F. Smith, 144. IV. Of Fraud against the vendor, ENDORSER, COVENANTOR, MAKER — TAM- PERING WITH AGENT — Imbecility— Con- fidential RELATIONS — ALTERATION Fraudulent recoverv. 1. If a grantor is imbecile it is no rea- son for cancelling a deed in the absence of evidence of a confidential relation. Dean V. Fuller, 4 Wr. 474. 2. A fraudulent misrepresentation of the quality, &c., of land sold, will avoid the contract, unless the purchaser ex- pressly agree to waive inspection and to take the risk. Burr v. Todd, 5 Wr. 206. 3. The addition of an endorser's resi- dence is not an alteration of a note. Struthers v. Kendall, .5 Wr. 214. 4. If a ground-rent landlord, after exe- cution of the deed, without the consent of the tenant, fill up a blank in the clause for redemption, neither the landlord nor his innocent assignee can recover by debt, covenant or distress. Wallace v. Harm- stead, 8 TFr, 492. 5. Where material words, such as "pay- able at" a certain place, look as if added after the signature was affixed to a note, an endorsee is bound to explain the addi- tion, and failing herein, the Court may refuse to let the note go to the jury. Per H^mpto.v, J., affirmed by Supreme Court. Hill V. Cooly, 10 Wr. 259. 6. If one who, having advanced less than half their face, holds notes hierely as pecurity for his advances, go before arbi- trators, and in the absence of defendant and his counsel take an award for the full amount, it is evidence from which a jury may infer a fraudulent intent. Cochran V. Eldridge, 13 Wr. 365. 7. An award may be opened for fraud and an issue directed after the time for appeal has elapsed, and the Court may order parties to be examined on either side. Ibid. 8. Tampering with an agent in pro- curing a contract will deprive the wrong- doer of remedy against the principal for non-fulfilment of the contract. Com., v. Henry, 13 Wr. 530. 9. The alteration of a deed by the grantee renders the instrument void, but not the estate. Bifener v. Bowman, 3 P. F. Smith, 31.3. 10. In sale of personal chattels, unless fraud is alleged, a warranty must lie shown in order to defend because of de- fective quality. Heilbrunner v. Wayt, I P. F. Smith, 259. 11. A writing may be reformed for fraud or mistake, but where it is expressed in ordinary language it is not admissible to show that in that particular case the words were used in any other than their ordinary meaning. Fisher v. Deibert, 4 P. F. Smith, 460. V. Cases op trust — Fraud binds the party. 1. A purchase by partner or joint owner of the land is in trust for the others in interest, and his deed showing that the land had formerly been so owned is notice to all of the trust. Gibson v. Winslow, 10 Wr. 380. 2. Papers made to hinder creditors cannot be cancelled upon the bill of the party signing them, though his signature was obtained by fraud. Hershey v. Weit- ing, 14 Wr. 240. 3. The investment of rents in the name of A, prevents the executor of the investor from claiming the investment upon the allegation that the land out of which the rent issued did not belong to A. McLsan V. Wade, 3 P. F. Smith, 146. 4. A false return by a sheriff cannot be set up by a party who fraudulent y procured it to be made. Such a return is only conclusive on the sheriff where his adversary was not concerned in the fraud. Evans v Matson, 1 P. F. Smith, 366. 5. A judgment fraudulently confessed to hinder the creditors of the defendant, binds the defendant. It is not an execu- tory but an executed contract, for the^i. fa. is of course. Blystone v. Blystone, 1 P. F Smith, 373. 6. If one of two purchasers of land fraudulently procure the title to be maiie in his own name, he is a trustee for tlie other. Maul v. Bider, 1 P. F. Smil/i, 385. FRE 134 GRO 7. It is not necessary to create a trust in such a case that the wrong-doer should undertake to act as 'agent for the other purchaser. Ibid. 8. Where one of two joint purchasers of land under articles of agreement ob- tains possession of the paper upon the pretence that he wants to borrow money, and then secures a new article from the owner to himself alone by the represen- tation that the land has been sold for taxes, and that he had bought it from the purchaser at the tax sale, this is a fraud upon the other purchaser, and the law raises a trust in his favor; although the statement as to the tax sale was true, for that transaction was simply a redemption of the land by one tenant in common for the benefit of both. Maul v. Rider, 1 P. F. Smith, 384. 9. One who is a trustee ex maleficio, and sets up as defence the statute of April 23, 18fi6, (requiring suit to be brought within five years,) must under its proviso prove that the opposite party had knowl- edge of the fraud, or that reasonable dili- gence would have revealed it. Ibid. 385. 10. Where land is sold for taxes as- sessed against two owners, and one of them buys it from the purchaser at the lax sale, he does not thereby acquire the title of the other owner. It is only a redemption. Ibid. 384. 11. In such a case, the fact that after the assessment of taxes and before the sale there was a partition between the two owners, leaves it still a redemption. Ibid. 884. 12. One who gives his ground for a school-house, and solicits others to sub- scribe to the building, cannot afterwards reclaim the land. McLain v. School Directors, 1 P. F. Smith, 196. FREIGHT. As to local freight. See Corporations IV., 20, 30, 38, 39, 50. Agreement by vendee to advance freights. See Vendor and Vendee II., S. 1. A consignor is liable for freight notwithstanding the failure of the carrier 10 enforce his lien under the bill of lading, and this although there be no charter party. Thomas v. Snyder, 3 Wr. 317. 2. But if the owner of the vessel make the freight payable to himself instead of the captain, he should be on hand, or appoint an agent at the place of delivery to receive it. If he fail to do this and the cargo is delivered and the consignees fail, the owners of the vessel cannot resort to the owner of the cargo for the freight. Ibid. A bottomry bond charged pro rata upon freight and proceeds of sale of a ship. Welsh V. Cabot, 3 Wr. 342. FUTURE ADVANCES. Mortgage for future advances post- poned as to advances made after a judg- ment. See Mortgage I., 3. Other cases. See Debtor and Creditor IX. GARNISHEE. See Attachment. GERMAN. Notices cannot be in German papers unless expressly so directed. See Roads, 19. GOD. Act of, excusing carrier. See Carrier, §§ 1,2. GOVERNOR. Effect of his commission upon a con- tested election, and effect of a certiorari upon the governor's commission. See Election, §§ 10, 11, 12, 21. "GRANT, BARGAIN AND SELL." See Land IV., 8. GROOM. Subrogation of. Vide Lien, 6. GROUND-RENT. 1. A covenant against a paramount rent (contained in a conveyance of part of the lot reserving a second ground-rent) will not bind the subsequent owner of the lot reserved. McQuiggv. Morton, 3 Wr. 31. 2. The covenant of the grantor for him- 1 self and his assigns is, in such a case, the GEO 135 GEO covenant of llie grantor and Tiis assigns of the second ground-rent, not his assigns of the lot reserved. Ibid. 3. The ground-rent is a separate estate from the ownership of the ground. The ovs^nerofthe ground-rent is not charged with notice of the sub-divisions of the land, and of the rents made among the owners of the ground. If the convey- ances he is bound to notice do not show a merger of the estates they are not merged as to him. Ibid. 4. An agreement in a ground-rent deed that at the expiration of one hundred and twenty-one years, and so at like suc- ceeding intervals, the land and improve- ments shall be revalued, and one-half of the excess of such valuation above the rent shall be added to the rent, is a legal covenant. Phila. Library Co. v. Beau- ment, 3 Wr. 43. 5 The basis of a proper valuation in such a case is not the rent which the property commands, but the actual value of the property, so that if it is farm land renting for less than six per cent, on its value, the value is to govern, not the principal of the rent. Ibid. 6. An assignment of a deed poll (con- veying certain ground-rents) will pass not only those rents, but new rents reserved by the grantor. Per Woodward, P. J., affirmed by Supreme Court. Shollen- berger v. Filbert, S Wr. 404. 7. The holder of a ground-rent under a deed which has been altered after exe- cution (by filling up a blank in the clause for redemption) without the consent of the tenant, cannot recover the rent by debt, covenant, or distress. Per Wood- ward, J. Wallace v. Harmstad, 8 Wr. 492. 8. For a full examination of the law as to Pennsylvania ground-rents and tenures, see the opinion of Woodward, J. Ibid. 9. The owner of land subject to a ground-rent is liable therefor personally from the date of his purchase, although the land is sold for former arrears and bought in by him. Per Hays, P. J., affirmed by Supreme Court. Heister v. Shaeffer, 9 Wr. 537. 10. A suit and recovery by sheriff's sale is a claim and payment which pre- vents the bar of the Act of April 27th, 1855, (Br. Dig., 517, § 9.) Ibid. 11. Where the owner of a part of a ground-rent takes a conveyance of the land encumbered by a previous mortgage, and treats both as separate, there is no merger of the rent either in law or in equity. Per Hare, J., affirmed by Su- preme Court. Cook V. Brightly, 10 Wr. 439. 12. The owner of a part of a ground- rent can sue alone without joining the parties in whom the title to the residue is vested. Per Hare, J., affirmed by Su- preme Court. Ibid. 13. If the security for stay of execu- tion on a judgment for ground-rent pay the judgment and procure an assignment of the judgment, he is not thereby en- titled to priority over subsequent arrears of the rent. Fassitt v. Middletoa, H Wr. 214. 14. The personal representatives of the covenantor can be sued for subsequent breaches, but the judgment will be re- stricted to the land bound by the cove- nant. Per Stroud, J. Taylor v. Pain- ter, 3 Phila. Pep. 365, affirmed by Su- preme Court. Williajns' Appeal, 11 Wr. 283. The landlord is not entitled to distribu'.ion out of moneys in the hands of executors. Ibid. 15. Aground-rent payable m"twenty- one pieces of eight" cannot be discharged by legal-tender notes to the amount of twenty-one dollars. A. covenant for money or lawful money could be dis- charged in greenbacks, but this is a bar- gain for a commodity. Mather v. Kinike, 1 P. F. Smith, 425. 16. The principal of a ground-rent is a debt when the covenantor elects to pay it off', ana it may be redeemed in green- backs, although payable in * * "dollars lawful silver money." Shollenberger v. Brinton, 2 P. F. Smith, 9. 17. A rent payable in lawful money of the United States, or in dollars lawful silver money, each dollar "weighing 16 pwt. 6 gr. at least," can pe discharged in greenbacks. Mervine v. Sailor, Ibid. Davis V. Burton, Ibid. 10. Kroemer v. Colhoun, Ibid. 10. 18. A ground-rent payable in Spanish dollars of a specified weight cannot be paid in legal-tender notes. (Jhrist Church Hospital V. Fuechi 39. A reasonable post-nuptial settle- ment made by a hu>band is not fraudulent per se. He who alleges the fraud must prove it. Larkin v. McMullin, 13 Wr. 29. 40. Exclusive possession in the wife is not necessary as against her husband's creditors. Ibid. 41. Conveying in trust for a wife before or at the time of entering into a hazard- ous busine.-s is not necessarily a fraud upon future creditors. If the intent' is to protect the goods from them it is a fraud, and the jury are to judge of the intent. IMd. Kecordinganassigiimfsnt of personal property is not notice to creditors. Ibid. 42. A purchase by a married woman on credit will not protect the property from ■;xecution of her husband's creditors. And this, althougli the goods belonged to lier father's estate, she taking them from the executor upon an agreement to pay her father's debts, which exceeded the value of the goods. Hoffman v. Toner, 13 Wr. 231. 43. The husband can defend upon his wife's title if acquired before (but not after) the sheriff's sale. His possession is presumed to be in his own right until the contrary appear. Gurry v. Bott, 3 P. F. Smith, 400. 44. The wife's credit alone, without a separate estate, is not sufficient to invest her with title. Ibid. 45. The principle that property of a married woman acquired by purchase after marriage must be shown clearly to have been paid for out of her separate estate, applies only where the contest is between creditors and the wife. A pur- chaser at a sheriff's sale, under a mort- gage given by an innocent purchaser from the wife, cannnt be affected by matters of which he had no notice. Keichllne v. Keichline, 4 P. F. Smith, 75. 46. Correspondence between the wife and the administrators of her grandfather is evidence in order to prove her separate estate in a contest with her husband's creditors. Per Butler, P. J., affirmed by Supreme Court. Hannis v. Hazlelt, 4 P. F. Smith, 133. 4T. The products of separate estate of the wife belong to the wife, although the husband and children may have worked 'thereon. Bush v. Vought, 5 P. F. Smith, 43V. 48. A married woman's estate cannot be charged with a judgment against her husband because he improved her estate, the judgment not being for any of the improvements ; nor could it be so charged if the judgment were for the improve- ments and she objected to their being made. Per Pearson, P. J., affirmed by Supreme Court. Barto's Appeal, b P. F. Smith, 386. III. Bonds, conteacts, judgments — Revivals of judgments and_ mort- gages OF MARRIED WOMEN — LlABlLIlY for consideration op a, conveyance — Liability for torts, for taxation, for necessaries — husband must be joined as co-defendant. 1. The bond of a married woman is not binding, and it is not made good by the fact that she represented herself to be single and thereby obtained the consider- ation for which it was given. Keen v. Goleman, 3 Wr. 299. 2. A mortgage by a married woman of her expectancy in her father's estate, the father being then alive, and the mortgage being given without any present consid- eration, but to secure the past debts of her husband, is not binding. Baylor v. Gom., 4 Wr. 87, 3. Whether a married woman can by any form of conveyance convey the es- tate she expects to inherit, dubitatur. Ibid. HUS 142 HUS 4. A mortgage given by a married womnn alone for purchase moneys paya- ble on the death of annuitants, during whose life the interest was to be paid, in default whereof for six months "the prin- cipal may be collected as if fully due," is binding, and can be sued out immediately after a six mouths default. Glass v. War- wick, 4 Wr. 140. 5. The judgment bond of a feme covert is absolutely void, and the judgment thereon is a nullity, although given for debts contracted before marriage, or for necessaries, or to enable her to purchase, improve, or relieve her land from lien. Keiper v. Helfricker, 6 Wr. 325. Stein- man V. Eiuing, 1 Wr. 63. 6. The Act of 1848 has no reference to estates settled to the separate use of mar- ried women, whether a trustee be named or not. In both cases they have no power of alienation beyond such expressly given in the instrument creating the estate. Per Strong, J. Wright v. Brown, 8 Wr. 224. I. A married woman's mortgage of property devised to her sole and separate use is void. Ihicl. 8. Title will vest in a married woman by a conveyance, although the considera- tion is to be paid in futuro in the na- ture of an annuity to the grantor. Bortz V. Bortz, 12 Wr. 382. 9. A married woman is not liable for a tort growing out of a contract, as for falsely stating that she was single when she procured certain notes and gave her bond therefor. Keen v. Hartman, 12 Wr. 497. 10. A wife who has contracted for the sale of her land without acknowledgment made as required by law, and received the purchase money, may repudiate the contract and recover the land without re- payment, although her husband, join with her in the articles. Rumfelt v. Clemens, 10 Wr. 455. II. The deed of a feme covert without her husband's signature passes no title in an unexecuted partition. McConnell v. Carey, 12 Wr. 345. 12. A judgment given by a married woman for improvements upon her realty is void. No title would pass by the sale, and an auditor may disregard it in making distribution. Branner^s Appeal, 11 Wr. fiT. Quere — Can she contract for its im- provement ? Ibid. 13. She may, however, revive by con- fession a judgment entered before her coverture. Ibid. 14. The deed of a married woman in which her husband does not join passes no estate. Dunham v. Wright, 3 P. F. Smith, 167. 15. The real estate of a married woman is not relieved from county taxation by the exemption of her husband on account of his military service. Crawford v. Bar- rett Township, 3 P. F. Smith, 219. 16. The contract of a married woman for sale of her estate is void, and she is not estopped from the defence of coverture by part payment, by delivery of possession, or by an improvement by the purchaser. Olidden v. Simpler, 2 P. F. Smith, 400. IT. Under not guilty in ejectment coverture may be relied on, and defeats the action if husband not joined. Black V. Tricker, 2 P. F. Smith, 436. The husband must be joined with the wife as defendant in ejectment. Ibid. 18. What are necessaries for married women and minors is a question suscepti- ble of no sharp definition, and generally for the jury. Yet the Court may in many in- stances withhold it from the jury. Mohney V. Euans, IFF. Smith, 80. 19. Though a mortgage by a feme covert is void, yet a judgment against h-r on tico nihils protects the title of the sheriff's vendee. Hartman v. Ogborn, 4 P. F. Smith, 120. 20. A bill of sale by a feme covert is void. Bair v. Doran, 4 P. F. Smith, I '2 4. 21. A conveyance to a married woman reserving a ground- rent passes the estate subject to the rent, and her assignee also takes it subject to the charge. Cowton v. Wickersham, 4 P. F. Smith, 302. IV. Declarations of Husbands. . 1. The fact that a husband has moneys of his wife in his possession, and that an agreement for the purchase of land is made in their joint names, will not create a resulting trust in favor of the wife, the deed being taken in his name, the wife refusing to secure the purchase money or consummate the contract, and telling the vendor lo make the deed to the husband. Kline's Appeal, 3 Wr. 463. 2 In such a case subsequent declara- tions of the husband will not avail, if made after the rights of creditors accrue. Ibid. 3. The declarations of a husband in HUS 143 HUS favor of his wife's title are not evidence in an action by a creditor. Faruin v. Gapewell, 9 Wr. 89. 4. Declaration before creditors were in existence admitted, if corroborated. Toiunsend Y. Maynard, 9 Wr. 198. 5. If the husband join in a release to executors for his wife's mone}', and shortly thereafter give a trustee a judgment note for less than the amount paid, this is evi- dence that the money passed into his hands. His note is evidence. It is more than a declaration. Mellinger v. Baus- man, 9 Wr. 522. 6. The husband's declaration that he had to give his wife a note for money he got from her and to pay her interest, made before his other indebtedness, is evidence. Per Long, P. J., affirmed by Supreme Court. Orabill v. Moyer, 9 Wr. 530. I. In an action of ejectment against a wife by the sheriff's vendee, (under execu- tion against the husband,) it is not com- petent for the plaintiff to prove that on a former trial the husband corrupted a writ- ing. The crime of the husband cannot be imputed to the wife. Tripner v. Abrahams, 11 Wr. 220. 8. Where a husband in 1820 took lands for his wife's share of the proceeds of a sale in partition, he is not to be treated as trustee for his wife upon loose declara- tions. Cowden v. Oyster, 14 Wr. 368. 9. The husband's declarations cannot be received against the wife to affect his hond. Gicker v. Martin, 14 Wr. 138. Nor the declaration of either husband or wife against the title of the other. Thom- as V. Maddan, 14 Wr. 261. 10. Declarations of a husband to estab- lish an indebtedness to his wife must be deliberate, precise and consistent. Wes- co's Appeal, 2 P. F. Smith, \ 95. II. When a wife sues her husband's estate for moneys alleged to have been loaned by her to hiin in his lifetime, she cannot recover upon loose declarations and equivocal expressions, and ask a jury to infer doubtingly, but she must show by distinct and clear proof that the transac- tion was a loan from her separate estate. Per Agnew, J. Eause v. Oilger, 2 P. F. Smith, 412. 12. In such a case the following ex- pressions were ruled to be insufficient by Jordan, P. J., and the ruling sustained by the tjupreme Court. " The money you paid for me." " I vnll pay you all due debts and demands." "I have borrowed sums of money from her." Ibid. V. ClAIMSBY Wife AND OTHERS AGAINST HER Husband, oit his estate, and CLAIMS BY HEE AGAINST OTHERS, (INN- KEEPERS, TORT-FEASORS, INSURERS,) AND CLAIMS BY HIM AGAINST HER ESTATE — Curtesy. 1. An advancement by a father to his daughter by releasing part of a due by her husband, and charging her therewith, does not make the husband a debtor to his wife. Mast's Appeal, 4' Wr. 24. 2. In settlement of his deceased wife'.s estate, a husband cannot be charged as her debtor because her father released him of a debt and charged it to the daughter as an advancement. Ibid. 3. Actual possession by the wife is not necessary to entitle a husband to curtesy. The right of possession is equivalent to seisin. A devise to a daughter will not be controlled by a subsequent repetition of the clause, adding the words, "after the decease of my wife," the testator's widow having no life-estate in the prem- ises. In such a case the daughter is seiaed upon the testator's death, and her husband is entitled to curtesy, although the widow survives. Buchanan v. Duncan, 4 Wr. 82. 4. The statute of limitations does not begin to run upon a wife's eiaim against her husband until his death. Kutz's Appeal, 4 Wr. 90. 5. The principle applies to a note taken by the wife from her husband's firm. Ibid. 6. A married woman cannot maintain an action against her husband on a con- tract made during coverture, even though she sues by her next friend. Ibid. ^ 7. Nor without her husband, even for her separate estate. Ibid. 8. Parties will not be allowed upon appeal to argue that there was no suffi- cient evidence that money lent to a hus- band was the separate estate of the wife, when before the auditor and the Court below the only objection was upon the statute of limitation. Ibid. 9. A widow can recover damages for the loss of her husband's life from an inn- keeper who furnishes liquor to the hus- band while intoxicated, in consequence HUS 144 HUS whereof he falls and is killed. Fink v. Qarman, 4 Wr. 95. 10. The innkeeper cannot defend in such a case upon the ground of concurrent ne<;;ligence. Ibid. 11. A mortgage given by a husband to a trustee for his wife to secure loans from her separate estate, will not be ex- tinguished by a subsequent conveyance of the property to her without the con- sent of the trustee, and the intent to keep alive the mortgage being apparent in the conveyance. Hartz' a Appeal, 4 Wr. 209. 12. Nor will her interest in the mort- gage be affected by an assignment thereof liy her trustee, without her consent, as collateral for a debt due by her husband. Ibid. 13. ]S"or by giving a second mort- gage on the property afcer the convey- ance thereof to her. Ibid. 14. Where a testator directs land to be sold on certain contingencies, no conver- sion takes place until sale. If the daughter die before the contingency happen, her husband cannot claim her share as per- "sonalty ; he has only his tenancy by the curtesy. AnewaU's Appeal,, & Wr. Hi. 15. If a husband, with knowledge of his wife's title, obtain a warrant for her landj he holds as her trustee, and one to whom he conveys for a grossly inadequate consideration is not a bona fide purchaser for value. A bill for a conveyance in the name of the wife suataived against the husband and his vendee. O^Neill v. Hamilton, 8 Wr. 18. 16. 4- '^ifs cannot, sue her husband for injury to property settled on him for life by ante-nuptial conti'act, although he has separated himself from her. Miller v. Miller, 8 Wr. HO. 17. A husband is entitled to curtesy in his wife's separate estate. Her convey- ance without his joining is void as against him. 15ut if he receive his share of the proceeds, he is estopped from claiming curtesy, and his statement that it would not be right in him to claim it, is evidence against him. Johnson v. Fritz, 8 Wr. 449. 18. A husband is not liable on his wife's note given for debt of a third person in her name, although he request her.to sign it and promise to see it paid. If she signed for him, the question would be different. Miller v. Long, 9 Wr. 350. 19. A feme covert cannot maintain an action' of slander in her own name he- cause her husband refuses to support her in her separation. Smith v. Smith, 9 Wr. 403. ■ 20. Where the husband, after the pas- sage of the Act of April 11, 1848, receives the wife's money, the presumption of law is he receives it for her, although the right accrued to the wife previous to the act. Per Long, P. J., affirmed by Supreme Court Mellinger v. Bausman, 9 Wr. 522. 21. Where a husband consents that a legacy shall be collected under his wife's authority, a conveyance of land in satis- faction thereof to her attorney is in trust for her, and not a reduction Dy the hus- band, and his power to make it his is gone. A subsequent conveyance to him is still a trust for the wife. His disposi- tion of it by, will does not affect her unless she accept thereunder, and her heirs can recover in ejectmeut. Davia v. Davis, 10 Wr. 343. '22. The bequest to a husband without reserve of the right to receive and dis- pose of a share of his wife's provision by the same will does not create a trust. Wike V. Aurandt, 12 Wr. 103. 23 A trust created by marriage settle- ment, providing that if the wife survived the husband the trustee shoiild convey to the wile, expires upon the death of the husband, and the wife can collect rents reserved by the trustee. Benziehauser ^. Keyser, 12 Wr. 351. 24. A husband has a vested interest as tenant by the curtesy in an equitable estate of the wife. Harris v. Ins. Co., 14 Wr. 341. 25. When ai husband insures his wife's property, it will be presumed he was her agent. Harris v. Ins. Co., 14 TTV. 341. 26. An interest on partition of real estate secured to a married daughter by recognizance passing upon the death of the daughter and her husband to her daughter, is payable upon the death of herfecif and her husband to his personal representatives. The heirs of the original cognizee have no interest therein. Walker v. Behacen, 14 Tl'V. 101. 27. A bond given by a husband in trust for his wife is good for all moneys belong- ing to her received by the husband since 1848, though it may be bad so far as con- cerns money received prior to 1848, unless he expressly promised at the time to re- pay her. Gicker v. Martin, 14 Wr. 138. 1MB 145 IND 28. The Act of 1848 did not divest the right of one who had married a widow entitled to an interest in her first hus- band's estate. Mann's Appeal, 14 Wr. 375. 29. A wife cannot claim from her hus- band's estate for money received by him in her presence, and with her assent, or as a gift from her. Mann's Appeal, 14 Wr. 375. Hinneij v. Phillips, Ibid- 382. 80. When a wife sues her husband's estate for moneys alleged to have been loaned by her to him in his lifetime, she cannot recover upon loose declarations and equivocal expressions, and ask a jury to infer doubtingly, but she must show by distinct and clear proof that the trans- action was a loan from her separate estate. Per Agnew, J. Sause v. Oilger, 2 P. F. Smith, 412. 31. In crim. con. the plaintiff can prove acts of intimacy after separation of the plaintiff and his wife in order to inter- pret improper conduct between the wife and the defendant before the separation. Sherwood v. Titman, 5 P. F. Smith, 77. 32. A husband cannot satisfy a mort- gage given to him and his wife for her separate estate. McKinny v Hamilton, 1 P. F. Smith, 63. Payment to the hus- band in such a case is no discharge. Ibid. 33. Possession by a wife of a hus- band's chattels is very slight evidence of a gift to her. His possession of her chattels is still less evidence of a gift 'to him. Per Pearson, P J., affirmed in Bachman v. Killinger, 5 P. F. Smith, 414. In a suit against a husband and his surety on a bond, his declarations are evidence for the plaintiff". Ibid. After such a bond passes into the wife's hands interest ceases. Ibid. VI. Fraud on marital rights. 1. The execution by a woman shortly before her marriage of a deed conveying her property to trustees without the con- sent of the intended husband is a fraud upon his rights, and will be set aside, al- though no fraud was intended. Bun- can's Appeal, 7 Wr. 67. 2. That the husband acted as agent under the deed is no estoppel. Ibid. IMBECILITY, INSANITY, MEN- TAL UNSOUNDNESS AND LU- NACY 1. Mental weakness not amounting to inability to comprehend the contract, when unaccompanied by imposition or undue influence, furnishes no ground for equitable interference with an executed contract. Per Thompson, J. Aiman v. Stout, 6 Wr. 123. 2. Opinions of witnesses to the effect that they do not believe that a releaer was capable of understanding the re- lease, are not entitled to much respect, and the admissibility of such evidence doubted. Thompson, J. Ibid. 3. Declarations and acts subsequent to a deed, in approval and ratification of it, are evidence to establish the deed. Ibid. 4. Lunacy when a note is given is no defence to a sci. fa. sur judgment on the note. Henry v. Brothers, 12 Wr. 70. 5. A sale of land under proceedings in lunacy passes a title, although the lunatic be dead when the order of sale issues. Yaple V. Titus, 5 Wr. 195. 6. The finding of lunacy reaching back to a period prior to the execution of notes in suit, devolves upon the plaintiff the necessity of showing a lucid interval. Per King, P. J., affirmed by Supreme Court. Noel V. Karper, 3 P. F. Sm.ilh, 97. The plaintiff is not compelled to show that the notes were read or explained i^ he show a lucid interval. Ibid. IMPLIED COVENANTS T& discharge encumbrances. See, generally. Land IV. IMPRISONMENT FOR DEBT. Trustees can be attached. Tome's Ap- peal, 14 Wr. 285. INADEQUACY. Gross, of consideration. See Equity I., 6. INCEST. Marriage of uncle and niece is only voidable, not void. Parker's Appeal, ^ Wr. 309. INCOME. Meaning of, in wills. See Wills v., 31. INDEMNITY. Judgment for future liabilities. See, generally. Debtor and Creditor VIII. Bond of, as to title. See Ldnd IV., 4. 10 IND 146 INS INDICTMENT. See, p;enerally, Criminal Law. Conviction of nuisance no bar to suit for damages. Gould v. Langdon, 7 Wr. 365. Don't lie against an engineer obstruct- ing a highway. See Railroads II,, 30. INDIVIDUAL LIABILITY OP STOCKHOLDERS. See, generally, Corporations Y. INEBRIATE. Selling liquor to. See Innkeeper, 1, 2, 3. INFANT. Right of administrators to pay for necessaries at request of infants. See Decedents^ Estates II., 3. \. Whether a pair of bulls are neces- saries for a minor farmer is a question for the jury and not for the Court. Mohney v. Evans, 1 P. F. Smith, 80. 2. What are necessaries for married women and minors is a question suscepti- ble of no sharp del3nition, and' generally for the jury, yet the Court may in many in- stances withhold it from the jury. Ibid. INHABITANT. A citizen does not cease to be an inhab- itant of the State by enlisting into the army. Graham v. Com., 1 P. F. Smith, 255. INJUNCTION. See, generally. Equity I. Powers of Supreme Court to grant. See Courts, § 3. Damages on injunction bond. See Damages, § IT. INN— INNKEEPER. Sale of stolen horse passes no title. See Lien, 1. 1. An innkeeper who sells to an intoxi- cat.'d person liquor, which is the proxi- ma e cau^e of liis death, is liable to the widow for her pecuniary damages arising from the loss of her husband's life. Fink v. German, 4 Wr. 95:" 2. The action against an innkeeper who sells liquor to a person of known intem- perate habits, or to a person when intoxi- cated, is not confined to those persons whom the inebriate may injure. Ibid. 3. That the inebriate lost his life through his own negligence is no defence to the innkeeper. Ibid. INSANITY. See Imbecility. INSOLVENCY AND INSOLVENT. 1. An insolvent bond is forfeited if the debtor do not file his petition and ask for a hearing. If the Court fail to fix a day. he must have the case continued, appear at the next term and ask for a hearing. Failing in this, his bond is forfeited. Bar- tholomew V. Bartholomew, 14 Wr. 194. 2. A suit upon an insolvent bond should not be tried pending the proceed- ings upon the petition. MoGoiern v. Holsback, 3 P. F. Smith, 116. 4. An insolvent bond is not void be- cause of the omission of the clause au- thorizing a presentation of the petition to a judge if the Court be not in session, the Court having been in session. Per John- son, P. J., affirmed by Supreme Court. Powers V. Gradon, 3 P. F. Smith, 198. 5. If a warrant of commitment is granted under the Act of 1842, and a bond be thereon given, it is a compulsory bond. Ibid. 6. The formal omission to overrule a motion in arrest in judgment does not in- validate a suit brought upon an insolvent bond, the debtor having been bound over, convicted, and his petition dismissed. Ibid. 1. Judgment creditors cannot file a bill against persons indebted to an insolvent corporation. Suydam v. Northwestern Ins. Co., 1 P. F. Smith, 399. INSPECTIONS. 1. Any one who demands inspections is liable for the fees, having a resort to his veudors if they fall below proof Cath- erwood v. Collins, 12 Wr. 480. 2. The two inspectors of spirits can ap- point one deputy, and for the fees suit may be brought in the names of the two inspectors jointly. Ibid. 3. The fees are earned, although sam- ple barrels alone are inspected and no certificate furnished. Ibid. INS 147 INS INSURANCE. Liability of carriers. See, generally, Carrier's. Stockholder in- company not liable on mortgage given to cover losses, and as- signed without his consent. See Mortgage Y., 4. I. As to the policy — construction of policies generally, and' of differ- ent clauses therein (except as to notices) — transfers of part of stock — extenpion — alteration of building— insurable interest— how proved. II. As to clauses requiring notices, and as to the service of Qotices and preliminary proofs — the sufiicien- cy of notices — waiver. III. Misconduct, concealment, falsehood, &c., of insured, before and after the policy- conditions, covenants and warranties — assignment of policies — ratifications. IV. Of levies upon property insured. V. Of losses occasioned by the rebel- lion, and cases thereunder. VI. Of insurance by a vendor — the rem- edy on a policy — immaterial de- fences — double insurance — at- taching insurance moneys. Vll. As to the agents of insurance com- panies. I. As TO THE POLICY — CONSTRUCTION OP POLICIES GENERALLY, AND OE DIFFERENT CLAUSES THEREIN, (EXCEPT AS TO NO- TICES) — Transfers of part of stock — Extension — Alteration of building —Insurable interest — How proved. 1. A policy with all its stipulations is the law of the relation between the insur- ers and the assured, by which their mutual rights and liabilities are to be defined and measured. Per Woodward, J. Ins. Go. V. Helfenstein, 9 Wr. 289. 2. A transfer of a portion of an insured stock of merchandise will not prevent a recovery for loss to the part unsold. A condition forbidding sale cannot be ap- plied to an insurance on merchandise ' which is used for traffic. Ibid. 3. A lease of a portion of the building is not within a prohibition forbidding " a transfer or change of title," for the lease only works a change of occupancy. Ibtd. i. A condition forbidding assignment of any claim under a policy, "either prior or subsequent to a loss, without con- sent, &c.," cannot apply to an assignment for benefit of creditors after a loss If applicable to it the condition is null and void, because opposed to the law of the land. Ibid. 5. A policy will not cover goods in an extension of the original building. A consent by the company for the extension of a " store room " will not cover an ex- tension or removal of part of a " frame barn." A plaintiff might recover for a loss on goods contained in what remains of a building, notwithstanding an altera- tion. Lycoming Ins. Co. v. Updegraff, 4 Wr. 311. 6. A memorandum of a president of an insurance company as to the form of notice to be given, is no waiver of notice. md. T. A " valued " policy is one which values the loss, and is equivalent to t.n assessment of damages in the event of a loss. A warranty is a contract relating to an existing fact, not a covenant for future acts ; but where these expressions, though inaccurately used in a point for charge, are so explained by the language of the point as to refer to the exact law of the case, the request cannot be refused. Per Agnew, J. Ins. Co. v. Mitchell, 12 Wr. 367. 8. A landlord has an insurable interest on property liable to a distress if rent is not paid. Per Long, P. J., affirmed by Supreme Court. Ins. Co. v. Cooper, 14 Wr. 331. 9. Whether merchandise insured was destroyed in the building described in the policy, is necessarily a question for the jury. Ins. Go. v. Updeijraff, 1 Wr. 350. 10. Uncertainty as to wliat rooms were intended to be covered is fatal to the in- surers, for the language of the policy is to be construed most strongly against them. Ibid. 11. A plaintiff can prove his equitable title to goods insured by a record of an- other State. Goursin v. Ins. Co., 10 Wr. 323. 12. A transfer of a tenant in common to his co-tenant, or from one partner to another, is within the prohibition declar- ing that alienation av'iid.s a pol.cy, Buckley v. Garrett, 11 Wr. 203. 13. iJut a rule forbidding the transfer INS 148 INS of the property unless the policy be assigned, does not apply where before the transfer of the property the policy was assigned with the approval of the com- pany by cue partner to another. Ibid. 14. If a company insure a patent leather factory, benzole being used in such factories, they are bound to pay for a loss occurring from the bringing of benzole into the factory, although the policy granted the privilege of keeping five barrels of it in a shed and nowhere else on naid premises. Per Williams, A. J., affirmed by Supreme Conrt. Ins. Co. V. McLaughlin, 3 P. F. Smith, 485. 15. It is admissible to prove that the benzole was used by plaintiff as used in other such establishments. Ibid. 16. A tenant by curtesy has an in- surable interest, although the policy is issued while he has merely an equitable title. Harris v. Ins. Co., 14 Wr. 841. "Without such an interest his insurance of the wife's property would be valid as her agent, and the agency would be presumed. Ibid. 17. A policy on a mill, machinery, engine and fixtures, does not apply to stock, although the application include stock grain. Mitchell v. Lycoming Ins. Co., ] P. F. Smith, 402. 18. Whether a policy covers the goods in a house is a question for the Court where the ambiguity is on the face of the paper, and for the jury if the ambiguity arises from extrinsic evidence. Beatly v. Lycoming Ins. Co., 2 F. F. Smith, 456. II. As TO CLAUSES EEQUIRING NOTICES, AND AS TO THE SliRVICE OF NOTICES AND PRELIMINAEY PROOFS — ThE SUF- IICIENCY OF NOTICES — WaIVER. 1. An article requiring "notice in writing forthwith to the secretary" is satis- fied by a written notice from the insured throuf^h a local agent to the secretary, sent with due diligence under all the cir- cumstances of the case. Starting on the day of the fire, seeing the agent twelve miles distant, and sending seventy miles within five days, is a compliance with the article. Ter Woodward, J. Ins. Co. v. Etljenstein, 4 Wr. 289. 2. A notice which does not state the amount of loss is not sufiieient. Lycom- vjj Ins. Co V. Updegraff, 4 Wr. 311. o. Preliminary pruols are conditions precedent which may be waived in whole or in part, and if not objected to, the plaintiff cannot avail himself of his own statement, and read them to the jury even' as prima facie evidence. Com. Ins. Co. V. Sennett, 5 Wr. 161. Lycoming Ins. Co. V. Schaeffer, 6 Wr. 188. 4. If defendants' agent acquire knowl- edge of a fact which forfeits a policy, not while transacting the affairs of the de- fendants, 'but while attending to other policies, it is error to submit the question of notice and waiver to the jury. Per Agnew, J. Ins. Co. V. Mitchell, 12 Wr. 367. 5. If a notice is received and acted upon by visit of an agent, offers of compro- mise, demand of statement, of loss, &c., this is a waiver of any objection that the notice was not in time. Lycoming Ins. Co. V. Schreffler, 6 Wr. 188. 6. It is not error for the Court to refer to the jury the question of the particu- larity of the statement furnished after tlie fire, instructing them that if a more par- ticular statement could have been given it was required. Ins. Co. v. Updegraff, 1 Wr. 350. 7. It is not error to charge that a par- ticular statement of loss may be waived, and to leave the question of waiver to the jury : (1,) the agent and the assured having agreed to fix the amount of the loss in some other mode ; (2,) the presi- dent having acknowledged receipt of statement sent, and refused payment on account of "circumstances connected with the insurance." Ibid. 8. An insurance company may waive a provision of the policy. Ins. Co. v. Bowman, 8 Tl>. 91. 9. A company may waive the condition as to statement of loss. If they refer the plaintiff to their agent, he is invested with authority to receive it or to extend the time for furnishing it. The question of waiver is then for the jury. Ins. Co. v. Schollenberger, 8 Wr. 256. 10. Where the insurance is on one article and the loss is total, a notice stating that fact is a particular statement under the article. Ibid. ' 11. An article declaring that the insur- ance shall be void if an assessment be not paid, "until such assessment is paid," may be waived by acceptance after condi- tion broken. Once waived it cannot be reasserted. Even without express waiver, INS 149 IISFS the payment of the assessment, would, under the words "until paid," revive, the policy. Ibid. . 12. After verdict a narr is sufficient which avers performance, although the proof is waiver. Ibid. 13. If a company act and promise after an action is barred by failing to sue in six months, as if they did not intend to insist on the limitation, a jury may infer a waiver. Per WilliaMo, J., agirmed by Supreme Court. Coursin v. Ins. Co , 10 Wr. 323. 14. Where the officer whose duty it is to receive premiums has positive Imowl- edge of a transfer of the property, and receives premiums after an alleged for- feiture, this is an estoppel. Buckley v. Garrett, 11 Wr. 203. 15. If a policy or a renewal is granted with knowledge of the company's agent that a hazardous business is carried on, conditions as to endorsement of notice have no application. Per Steerett, P. J., affirmed by Supreme Court. Ins. Co. V. Spencer, 3 P. F. Smith, 353. 16. Notice of an increased risk, given before a renewal, runs through all subse- quent insurances. Ibi '. n. Double insurances are where the assured make two or more insurances on the same subject, risk and interest. If priority is not provided for, all are in- surers pro rata. One insurance on a building, and another on the building ma- chinery and stuck, do not make a double insurance, and do not come under an article forbidding double insurance with- out notice. Stout v. Ins. Co., 18 Wr. 14. III. MiSCONDDCT, CONCEALMENT, FALSE- HOOD, &c., OF Insured, before and AFTER THE P^ OT — CONDITIONS, COV- ENANTS AND WARRANTIES — ASSIGN- MENTS OF POLICIES — Ratifications — Estoppel. 1. The misconduct of the insured is never insured against, and if it occasion a loss, the owner must bear it. If bar- ratry is not insured against, the owner takes that risk. Citizens' Ins. Co. v. Marsh, 5 Wr. 386. 2. If an owner of a steamer, in viola- tion of the Act of Congress of August 30, 1853, (providing that turpentine shall be secured at a distance from fire,) bring urpeutine near the furnace whereby the vessel is destroyed, this is misconduct, and he cannot recover on his policy, although the jury find that it was not wilful mis- conduct. It is a question of la'w. Ibid. 0. Where a policy stipulates that it shall be void if the assured neglect to dis- close the amount of encumbrances, or fail to obtain the consent of the company to any subsequent encumbrances or levy, there can be no recovery if existing judg- ments are not mentioned, or if two exe- cutions (one prior and one subsequent) are not assented to by the company, Ins. Co. v. Gottsman, 12 Wr. 151. 4. A "valued" policy is one which values the loss, and is equivalent to an as- sessment of damages in the event of a loss. A warranty is a contract relating to an existing fact, not a covenant for fu- ture acts. But where these expressions, though inaccurately used in a point for charge, are so explained by the language of the point as to refer to the exact law of the case, the request cannot be refused. Per Agnew, J. Ins. Co. v. Mitchell, 12 Wr. 36Y. 5. A plaintiff who has covenanted not to insure more than two-thirds of the value, cannot recover if he insure beyond the limit, unless the company is informed of the fact and waive the forfeiture. Ibid. 6. One taking an assignment of a policy is not bound to set forth the nature of his interest. Ibid, and Ins. Co. v. Mitchell, 12 Wr. 374. 7. Or the encumbrances. Ibid. 8. A description of the property in the application for insurance is not a war- ranty, nor does it become so by being re- ferred to in the policy " for a more par- ticular description of the property in- sured." Per Bupfington, P. J., affirmed by Supreme Court. Ins. Co. v. Mitchell, 12 Wr. 374. 9. Whether a false representation avoids a policy is not a question of law, but a question of fact for the jury as to whether it was fraudulent and material. Per Buffington, P. J., affirmed by Su- preme Court. Ibid. 10. A company may ratify a policy by agreeing to a transfer to an innocent as- signee, andif so ratified, with a knowledge of the facts made known to the company or their agent, the company are bound. Ibid. 11. A false representation that prop- erty to be insured is tree Iroui eu- INS 150 IXS cnnibrances, (tlie represt'iitation beinpr a warranty,) although made by mistake, bars a recovery, nor can the fact that the agent (who had no authority to waive puch a matter) shared in the mistake assis*^ the plaintiff. Cooper v. Ins. Co., 14 Wr. 299. 12. But if the representation is not a warranty, then it can be explained by parol and by the agent. Per Long, P. J., affirmed by Supreme Court. Ins Co. Y. Cooper, 14 Wr. 331. 13. Nor is this affected by the circum- stance that the company is a mutual company, that the insured became a mem- ber by insuring, or that the policy con- tained a clause making the agent the agent of the insured. Ibid. 14. If a policy require the consent of the company, "if an encumbrance fall sufficient to reduce the interest of the insured equal to or below the insurance, or if it shall be levied upon, &c.," the in- sured cannot recover if liens accumulate beyond the value of the property and the company be not notified. Brown v. Com Ins. Co., 5 Wr. 181. 15. Omission to give notice of another insurance, but not on the same property, will not prevent a recovery. Ins. Co. v. Updegrdff, T Wr. 850. 16. The false swearing which works a forfeiture of the insurance must be done wilfully, knowingly, and with intent to defraud. Ibid. n. The policy is not avoided by omit- ting to specify china, glasses, &c., where it covers merchandise in a country store. Ibid. 18. The list taken down by counsel at an arbitration cannot be made evidence by asking the witness " whether it was correct." Ibid. : 19. The approval of the assignment of a policy, though required to be endorsed, \ may be on a separate paper attached to the policy. Ins. Go. v. Bowman, 8 Wr. 89. j 20. An insurance is not avoided by j showing a judgment which did not bind the property insured, when the insured has only said there was no lien on what he wanted to insure. Per Nill, P. J., i affirmed in Ins. Co. v. McAnally, 9 Wr. 4L. 21. It is not a departure or deviation from a policy on oil "to be laden between Oil City and Pittsburg, and for forty- eight huurs afterwards," to place on the deck barrels of oil after tha barge has arrived at her place of destination and been moored safelv. Phcenix Ins. Co. v. Cochran, 1 P. F." Smith, 143. 22. It is not error to leave to the jury the question whether the cargo was "in greater danger of being lost with the barrels on board than it would have been without them." Ibid. 145. 23. Bemation and departure are con- vertible terms, "both meaning nothing more nor less than a violation of some express or implied provisions of the contract." Per Hampton, J., affirmed by Supreme Court Jbid. 147. 24. The insured can recover if the proximate cause of loss was by a peril in- sured against, althoug-h negligence of the captain and crew may have loeen the re- mote cause. Ibid. 148. 25. A stipulation in the policy that "the aggregate amount insured in that and other companies should not exceed two-thirds of the esfimated cash value," is a condition and not a covenant. Mitchell V. Lycoming Lis Co., 1 P. F. Smith, 402. 26. To avoid the policy, the excessive insurances must be subsisting and available. If void from the beginning, they would be no obstacle in the plaintiffs' way. If the excessive policies were at one time available and became otherwise by the act of the plaintiffs, their default could not restore the policy sued on. Ibid. 21. A plaintiff cannot escape the con- sequences of excessive insurances, by showing that the policies in excess were void, (because of encumbrances and alien-j, ations,) when he has sworn in his notice'- of loss that these policies existed and^ has sued on them. Ibid. 28. Nor by showing that the excessive, policies were voidable by the companies issuing them, said companies having waived the forfeiture. Ibid. 29. Nor can he escape by alleging that the insurances were not on the same property, the variances in description beiiig immaterial. Ibid. 30. Nor can he escape by showing that the policies which made an excessive in- surance were exhibited to the defendant's agent when the agent approved of a transfer of the policy in suit, the agent having no power to issue or ratify policies, INS 151 INS but simply power to make surveys, transmit applications, approve transfers, and collect assessments. Ihid. 406. 31. A ratification, to be binding, should be with linowledge of ihe facts. Ihid. 407. 32. The question as to whether the terms of two policies are substantially the same is a question of comparison for the Court, and not for the jury. Ihid. 410. • IV. Op levies upon property Insured. 1, A policy is not avoided by a paper levy without any change in the possession or custody of the goods And this, although there is a clause declaring that the insurance shall cease, from the time the property insured "shall be levied on or taken into possession or custody." 7ns, Co. V. Berger, 6 Wr. 285. 2. An article providing that the policy shall cease when the property insured is " levied on or taken into possession or custody under an execution or other pro- ceedings at law or equity," does not apply to a trespass in which the sheriff levies upon the property as belonging to a stranger. Ins. Go. v. Mills, 8 Wr. 241. V. Of losses occasioned by the rebel- lion, AND CASES thereunder. 1. An insurance against loss-, by "ene- mies, pirates, and all such losses," covers a loss by capture by the Confederate forces. Ins. Co. v. Chester, 1 Wr. 491. 2. The exception of " capture " in a marine policy relieves the insurance com- pany from payment of loss occasioned by seizure of the vessel by a Confederate privateer. Fifield v. Ins. Co., 11 Wr. 166. 3. A clause that no " insurance is made against loss bj^ fire occasioned by mobs or riots," will not avail as defence where the loss occurred from the firing of a bridge burned to prevent the approach of an armed force of traitors. Harris v. Ins. Co., 14 Wr. 341. VI. Op Insurance by a vendor — The REMEDY ON A POLICY — IMMATERIAL DE- FENCES — Double Insurances — At- taching Insurance moneys. 1. If a fire happen after the execution of an agreement for sale of the property, the insurance, having been effected by the vendor, belongs to him, but he must ac- count therefor to the vendee. Heed v. Lulcens, 8 Wr. 200. 2. Debt lies on a policy assigned by parol endorsement. Per Stebrett, P. J., affirmed by Supreme Court. Ins. Co. V. Spencer, 3 P. F. Smith, 353. 3. It is no defence that the insured was unlicensed or defrauded other compa- nies. Ihid. 4. Double insurances are where the as- sured make two or more insurances on the same svhject, risk and interest. If priority is not provided for, all are insur- ers pro rata. One insurance on the build- ing, and another on the machinery and stock, do not make a double insurance, and do not come under an article forbid- ding double insurance without notice. Sloat V Ins. Co., 13 Wr. 14. 5. The insured holding two policies can recover the full amount of his loss exceeding one policy, but less than the aggregate. Phoenix Ins. Co. v. Cochran 1 P. F. Smith, 155. 6. A policy insuring goods generally cannot claim that a policy insuring spe- cific parts of the goods should be ex- hausted before the general policy pays. Nor will this be effected save by an article free from ambiguity. Merrick v. Ins. Co., 4 P. F. Smith, 211. 1. An unliquidated loss on a policy may be attached. Ins. Co. v. Field, 9 Wr. 129. VII. As TO the agents of Insurance companies. 1. The statement of the agent is not evidence against the company. Ins. Go. V. Schrefler, 8-Wr. 269. 2. Where the officer whose duty it is to receive premiums has positive knowledge of a transfer of the property, and receives premiums after an alleged forfeiture, this is an estoppel. Buckley v» Garrett, 1 1 Wr. 203. 3. Authorities as to estoppel and waiver cited per Agnew, J. Ibid. 213. 4. If a policy or renewal is granted with knowledge of the company's agent that a hazardous business is carried on, conditions as to endorsement of notice have no application. Per Sterrett, P. J., affirmed by Supreme Court. Ins. Go. V. Spencer, 3 P. F. Smith, 353. 5. A plaintiff being a member of thb- company sued, is chargeable with knowl- edge of its rules and of the authority INT 152 INT of its agent. Mitchell v. Lycoming Ins. Co., 1 P. F. Smith, 402. INTEREST Against garnishees. See Attachment, §§ 2, 3. Usury of building associations. See Building Associations, §§ 2, 3. • Interest chargeable against an attorney on costs collected by him. See Costs, § 1. Usury in other cases. See, generally, Debtor and Creditor II. Against guardians et al. See, generally, Decedents^ Estates VII. Interest on legacies. See, generally, Decedents^ Estates IX. Interest stops on purchase money after tender and refusal. See Ejectment I., 30. Interest of witness. See, generally. Evidence III. On road damages. See Boads and Streets, 11. " Capital " charged in will against leg- atee does not carry interest. See Wills VI., 54, 55. 1. Interest is chargeable on taxes on dividends. Bailway Co. v. City, 13 Wr. 251 ; and see Taxes. 2. And on coupons. B. B. y. Adams, 4 P. F. Smith, 94. 3. Interest will carry interest. Interest is due upon coupons, judgments, ground- rents, purchase money, annuities, &c. See a review of the authorities. Per Read, J. Beaver v. Armstrong, 8 Wr. IB. 4. A debtor corporation paying inter- est and principal at a fixed time and place is not bound to seek its creditor. Emlen V. Lehigh Coal and Nav. Co., II Wr. 16. 5. Nor is it bound to pay interest after maturity of its obligations if it has suffi- cient at all times to pay the principal, al- though the amount is not set apart. Ibid. 6. Interest is chargeable upon a settle- ment by the auditor-general three months from its date, although the settlement is for penalties. Com. v. Coojce, 14 Wr.'2(i\. 1. An order on a county treasurer does not carry interest from date of its refusal. Allison v. Juniata Co., 14 Wr. 351. 8. Interest is not suspended by sepa- rate notices from two partners to the debtor, each partner notifying him not to pay the other. King v. Kelly, 1 P. F. Smith, 36. 9. Interest is allowed for "detention " of money ; hence, when non-payment is ascribable to mutual misapprehension, it is not demandable. Second and Third St. Bailway Go. v. The City of Phila., 1 P. F. Smith, 468. 10. Interest may be allowed on the penalty of a judgment. Weikel v. Long, 5 P. F. Smith, 238. 11. Where a corporation paid all the taxes believed to be due, without any fraud or concealment, interest is not chargeable on an amount left unpaid by mutual mistake. Bailway Co. v. City, 1 P. F. Smith, 462. INTERPLEADER. Sheriff's interpleader. See, generally^, Execution VI. INTESTATES. Mother's interest in estate of her illegiti- mate child. See Bastard, §§ 1, 2. Mother's interest, she not being of the blood of the ancestor See Decedents' Estates IV., 1. 1. The distribution among children of deceased uncles and aunts of an intestate is to be per stirpes. Brenneman's Ap- peal, 4 Wr. 115. First cousins exclude second cousins ; whenever second cousins inherit, they take per capita. Ibid. 2. Nephews and nieces are in the same position as grandchildren, and take per capita and not per sticpes. Willer's Ap- peal, 4 Wr. 387. 3. The "next of kin" is to be ascer- tained by the civil and not by the canon law. A grandmother in the ascending list is nearer than an uncle. Her share is subject to the collateral tax. McDowell V. Addams, 9 Wr. 430. 4. When one dies seiaed of land de- scending from a father, and having as nearest kindred a mother, a paternal aunt and a maternal aunt, the paternal aunt takes the estate. Mc Williams v. Boss, 10 PFr. 369. 5. The representatives of a deceased husband are entitled to the valuation money in partition secured to his wife's INT 153 JUD mother, the mother and wife being deceased. Walker y. DeHaven, 14 Wr. 101. 6. Upon death intestate and without issue of one who took under his father's will the share he would have taken by descent, (although it was charged with legacies,) the fee passes to bis brothers and sisters and not to his mother and her relatives. Kinney v. Glasgow, 3 P. F. Smith, 141. 7. Brothers of half blood cannot in- herit real estate where there are brothers of the whole blood. And this, although the estate came by devise to a deceased brother from the father. Stark v. Stark, 5 F. F. Smith, 62. INTRUSION. A bill in equity will lie against a body illegally organized. Kerr v. Trego, 1 1 Wr. 292. But not to restrain an antici- pated intrusion. Updegraff v. Grans, 1 1 Wr. 103. See, also, Ewing v. Thomp- son, T Wr. 372. mVES^TMENTS BY A TRUSTEE. See TrustslM. and IV INVOLUNTARY MAN- SLAUGHTER. See Crimes, 26, 33, 34. ISSUE. Effect of birth of issue upon will. See Wills II. Should be awarded on execution if fact material and asked for in time, and award- ing of generally upon proceeds of sheriff's See, generally, Execution VIII. JAIL. Keeper is liable for costs if he di.scharge without payment of costs a pardoned con- vict. .Schuylkill v. Reifsnyder, 10 Wr. 446. JOINDER, NON-JOINDER AND MIS-JOINDER. In civil suits. See Abatement, § 7 ; and Husband and Wife IlL In criminal cases. See Criminal Law, §§ 33, 34, 35, 36, 47, 48, 49. Of counts in civil cases. See, generally. Pleading. JOINT TENANCY. See Land XV., 1. JUDGMENT. For want of sufficient affidavit. See, generally, Affidavits of Defence. Colluding to prevent bidding at sheriff's sale. See Attachment, §§ 14, 15. Judgment against the corporation con- clusive against the stockholders. See Corporations V., 12. Judgmentagainstcorporations, and pro- ceedings thereon. Vide, generally. Corporations II., III. Judgment for damages for taking land is entitled to priority over a mortgage given after the land was taken and before the damages were ascertained. See Corporations III., 5. Tender of judgment to save costs. Vide Costs, § 10. Power of Courts to satisfy or strike-off. Vide Courts, § 1. Conflict between judgment and deed. Vide Day, § 1. Court will control judgment for pay- ment, &e. See Debtor and Creditor I., 12. To secure future advances and liabili- ties. Sen, generally, Debtor and Creditor VIII. When note will discharge judgment. See Debtor and Creditor I., 1, 3, 12, 13, 14, 16. Error does lie to refusal to open a judgment. See Errors and Appeals V., 19. Of binding interest of sheriff's vendee, of setting off judgment against judgment, what discharged by sheriff's sale. See, generally, Execution. Fraudulently confessed. See Fraud I. JUD 154 JUD Lien of Commonwealth's judgment not to be preferred. See Lien, 2, 3. Of rcnewinp: rotes under a mortgage to secure future discounts. See Mortgage I., 3, 4. Conclusiveness of judgment of Or- phans' Court. See Orphans'' Court, 3, 4, 5, 6, 12, 14, 18, 21. Of other Courts. See Courts. Judgment for want of a plea is a lien before damages assessed. See Practice Y., 2, 3, 4. What can be claimed on issue after opening judgment. See Practice V. I. As to mis-speliing and variance in name of defendant. II. As to alienation of different prop- erties bound by one judgment — as to judgment confessed for more than is due — judgment confessed in ejectment — warrant not filed, &c. III. As to judgments against partners — judgments confessed by one partner. 'IV. Of the lien of a judgment, what it protects, what interest it binds — of the notice from re- cording of the sheriff's deed — judgment valid as to strangers, though void inter partes— judg- ments on same day — judgment to secure future advances. Y. Of the sci. fa. — lien — of revived judgment — interest of heirs — defences to sci. fa. VI. Of judgments for purchase money — judgments on exemplifications — liability of plaintiff who fails to satisfy judgment. VII. Of setting off damages against a judgment, and judgment against judgment. VIII. Of distribution — of opening and refusing to open judgment — of assigning judgments. I. As TO MIS-SPELLING AND VAEIANCE IN NAME OF DErENDANT. 1, A judgment against Bohh binds lands of Buhh in a connty where the pro- nunciation of both is identical. Persons searching for liens ought to know the dif- ferent forms in which the same name may be spelled, and make their searches ac- cordingly. Mijf.r V. Fegaly, 3 Wr. 429. 3. A judgment against George P. Joest cannot be paid out of proceeds of land of George P. Yoest, though they are the same person, and though in German J and Y are pronounced alike. There must be notice to the eye and not to the car. The dockets are to be kept in Enu;- lish. Eeil and Lauer^s Appeal, 4 Wf. 453. 3. A judgment against a firm by its firm's name (omitting Christian names of the partners) will be postponed to a judgment properly entered against their names in full. Smith's Appeal, 11 Wr. 128. 4. Actual notice supplies defective entry, but it must be notice to the pany, not to his attorney. Ibid. II. As TO ALIENATION OF DIFFERENT PROPERTIES BOUND BY ONE JUDGMENT — As TO Judgment confessed for more THAN is due — JuDG.MENT CONFESSED IN EJECTMENT — WARRANT NOT FILED. 1. If several pieces of property encuni' bered by a common lien be successively alienated by the debtor, they are in equity to discharge the lien in the inverse order of their alienation. Welsh v. Cabot, 3 Wr. 357. 2. A judgment confessed is not void because it is excessive, unless there is fraud. Davenport v. Wright, 1 P. F. Smith, 292. 3. A judgment by confession in eject- ment will not be reversed because the warrant of attorney is not filed. Flan- agan V. City, 1 P. F. Smith, 493. 4. Nor because the premises are de- scribed by number and street if in a city having a known system of notations Ibid III. As TO JUDGMENTS AGAINST PART- NERS — Judgments confessed by one PARTNER. 1. Where real estate has been pur-, chased and held for partnership purposes, judgments against the firm are to be pre- ferred to imlividual judgments. Frwin's Appeal, 3 Wr. 538. 2. A judgment confessed by one co- partner for the firm debt is not void, and JUD 155 JUD Clin only be questioned by a non-assenting partner. Erwin'a Appeal, 3 Wr. 538. 3. A judgment against a firm by its name (omitting Christian names of tlie pnrtners)x will be postponed to a judg- ment properly entered against their names in full. Smith's Appeal, 11 Wr. 128. IV. Of the lien of a judgment, what IT PROTECTS, WHAT INTEREST IT BINDS — Of the NOTICE FROM RECORDING OF sheriff's deed — Judgment valid as to strang k. lis, though void inter- partes - Judgments on same day — Judgment to secure future ad- vances. 1. A -fixed lien preserves all that pre- cede it. Allegheny City's Appeal, 5 Wr. 62. 2. A judgment against one who has purchased by parol binds no interest in the land, although he may have paid the purchase money, for that may be compen- sated. Hill V. Meyers, 1 Wr. 170. 3. If he is a tenant in common in pos- session, and has purchased from his co- tenant by parol, the judgment will not bind the interest thus purchased, for it is within the statute of frauds, and no pos- session can be delivered by tenant in com- mon to his co-tenant already in posses- sion which will take the case out of the statute. Ibid. i. If a judgment and the executions regularly appear of record, a sheriff's deed which is recorded without stating in what Court it had been acknowledged, but re- ferring to the suit, is notice to sulisequent purchasers. Buehler v. Buffingloti, 1 Wr. 278. 5. A judgment is valid as to strangers, if the party submit to it, though entered on a sci. fa,, on a void judgment. Buehler V. Buffington, 7 Wr. 278. 6. A judgment against a purchaser at a shepiff's sale will bind his interest before acknowledgment of the deed. Garrett V. Deioart, 7 Wr 342. 7. The lien of a judgment entered on an exemplification from another county continues five years from the date of its entry in the county to which it is trans- ferred. Knauss' Appeal, 13 Wr. 419. 8. The death of an assignee for the benefit of creditors does not continue the lien'of a judgment upon land assigned to him. He has no estate or interest to be bound. Fulton's Estate, I P. F. Smith, 204. 9. Judgments entered on the same day take pro rata. McGlure v. Roman, 2 P. F. Smith, 458. 10. A judgment, entered to seen re future liabilities luhich the plaintiff is' not bound to make, takes effect only from the date at which the liability is incurred. Ibid. H A juilirment protects the sherilf's vendee though it is against a feme covert upon her mortgage. HartmanY. Ogborn, 4,P. F. Smith, 120. 12. A judgment loses its lien after five years, although stated on the record to be for purchase money. Bath's Appeal, 4 P. F. Smith, 173. V. Of the sci. pa. to revive — LiE»f OF REVIVED Judgment — Interest of heirs — Defence to soi. fa. 1. A sci. fa. on a judgment must be properly pursued. Hence, if a sci. fa. issue on a judgment against a decedent, and it is served on one only of the execu- trixes, and she is the wife of the plaintiff, and she appear and confess judgment, it is void ; and if the second sci. fa. against the other executrix do not issue until after the time fixed for limitation of lien of debts of a decedent, the lien is lost. Buehler v. Buffington, 7 Wr 278. 2. If the lien of a judgment is restricted to certain land, a revival in the life of the defendant makes it a general lien upon all his lands. But a revival again.->t his personal representatives does not extend the lieu to other real estate, for as to it the title has been already vested in the heirs. McMurray v. Hopper, 7 Wr. 468. 3. Although heirs take real estate un- encumbered by a judgment whose lien is restricted to certain land, yet they take it encumbered by debts. A judgment of restricted lien is a general debt and lasts fi^re years, and if prosecuted, ten years from the death of the debtor. Ibid. 4 If the lien of a debt is continued ten years, and if, within that time, the widow and the heirs are served with a scire facias, they must impeach the debt or show its payment, if they would save thH real estate. Ibid. 5. It is the duty of the plaintiff to fix the date of the death, and if he fail to do this the judgment will be reversed. Ibid. 6. If after the judgment the defendant JUD 156 JUD acquire real estate and then die, the plaintiff must sue within five years. Ibid. T. If the judpjment is not due until after the death of the defendant, the plaintiff can and must continue tlie lien by aci. fa. though the money is not due. Ibid. 8 A praecipe for a sci fa. is not a " particular written statement," and filing it does not continue the lien. Ibid. 9. A plaintiff can revive his judgment for the whole amount, althougliiin auditor has made the plaintiff a conditional award on account tliereof, the money not having been received. Masser v. Dewart, 10 Wr. 534. 10. A finding that defendant was a lunatic when he gave the note sued on, is no defence to a scire facias on the judgment for the note. Henry v. Brothers, 12 Wr. TO. 11. The issuing of sci. fa. within five years of the judgment does not continue the lien, if tliere is no revival until after the expiration of five years from the date of the SCI. fa. Fulton^s Estate, 1 F. F. Smith, 204. _ ' 12. In such a case some valid excuse should be shov^n for not prosecuting the sci. fa. The fact that the defendant had made a voluntary assignment for the benefit of creditors and that the assignee died, is no excuse. Nor is the absence of counsel an excuse. Ibid. 209. 13. An assignee under a voluntary assignment need not be sued as a terre tenant in the revival of a judgment. Ibid. 211 14. If the revival is carried into the judgment docket, prior judgment credit- ors who lost their lien by laches cannot complain that the sum for which judg- ment was rendered was not stated. Ibid. 214. 15. A judgment under a warrant of at- torney is not within the statute 8 and 9 Wm. 3. An execution may issue simply marking the amount to be collected with- out any assignment of breaches. Weikel V. Long, 5 P. F. Smith, 238. 16. It is only a subsequent encunii- brancer who can claim to have suffered injury from want nf notice of a prior lien. I'er Agnew, J Ibid. 215. 17. The death of an ass'gnee for the benefit of creditors does not continue the lien of a judgment upon land assigned to him. He has no estate or interest to be bound. Ibid. 210. VI. Of judgments foe purchase money — Judgments on exemplifications — Liability op plaintiff who fails to satisfy Judgment. 1. If a vendor obtain judgment for the first instalment of the purchase money of the land, and the land is sold to his attor- ney, the remaining instalments are extin- guished. Graff V. Kelly, 7 Wr. 453. 2. But if one take a judgment for pur- chase money, restricting its lien to the land sold, and upon the sale of the land there is a balance unpaid, he can proceed against other property to collect it. Mc- Murray v. Hopper, 7 Wr. 4^8. 3. A judgment entered upon an exem- plification of an exemplification is void, and may be set aside. Mellon v. Guthrie, 1 F. F. Smith, 116. 4. To transfer a judgment into two counties, exemplifications of the original judgment should be filed. Ibid. 5. A plaintiff who collects a judgment by execution is still bound to satisfy it upon proper demand, and failing to do so may be sued for the penalty, not exceed- ing one-half of the judgment, under Act of April 13, 1791. Allen v. Conrad, 1 P. F. Smith, 487- 6. In such a suit, though no special damage be proved, the jury are not lim- ited to nominal damages. Ibid. 7. A judgment loses its lien after five years, although stated on the record to be for purchase money. liuth's Appeal, 4 F. F. Smith, 173. VII. Op setting off damages against A Judgment, and Judgment against Judgment. 1. A judgment cannot be paid by dam- ages for breach of an alleged contract. Kennedy v. Kennedy, 5 Wr. 185. 2. A notice to the assignee of a judg- ment, to prove the consideration of the assignment, is nugatory where there is no allegation of fraud. Hurton v. Miller, 8 Wr. 256. 3. The acts r nferring equity jurisdic- tion do not intL ere with the power of a Court to set off judgment against judg- ment. But where a judgment has been assigned before the second judgment has been recovered, the set-off will not be permitted against th assignee of, the first, nor can this be affect.,., by ante- JUR 157 JUS dating an assignment of the second judg- ment. Ibid. 4. A Justine cannot set off a judgment before another justice against a judgment on his docket. Kline v. McKee, 10 Wr. 519. VIII. Of distribution — Op opening and eefusing to open judgment — Of assigning judgment. 1. A decree of distribution is conclu- sive unless appealed from. It cannot be attacked in a suit on a bond of indemnity. Per Maynaud, P. J., afSrmed by Supreme Court. Noble V. Cope, 14 Wr. IT. 2. Error does not lie to refusal to open a judgment. Henry v. Brothers, 12 Wr. 70. 3. Marking a judgment to use upon the record is no notice to the defendant, and if he receive no notice, his payment to the former owner is a defence as against the assignee. Ibid. 4. A Court may open a judgment upon an award for fraud, direct issues, and that the parties be examined. And this, ahhough the time for appeal has elapsed. Cochran v. Eldridge, 13 Wr. 365. 5. When a judgment is opened and pleas filed, a general finding of the jury for plaintiff leaves the debt to stand as before the opening of the judgment. Fultonh Estate, 1 P. F. Smith, 211. 6. If land bound by a judgment is sold, before the judgment is due, by a second judgment creditor, the first is entitled to the proceeds. Ensworth and Moore's Appeal, 2 P. F. Smith, 465. JTJRISDICTIOlSr As affected by repeal of a law. Juris- diction first attaching should decide, and, generally, See Courts. JURY. If defendant has his challenges, pre- sumption is he was present. See Criminal Law, § 32. Record need not show defendant had opportunity to poll jury. See Criminal Law, § 31. Constitutionality of laws for collecting of municipal claims without jury trial. See Constitutional Law, §§ 49, 50, 51, 52. As to taking verdict after adjournment. See Practice VII, 1 7. 1. It is no ground of principal chal- lenge toa juror that he is a guest of the defendant, who is an innkeeper. If a cause of challenge at all, it is to the fa,vor, and is to be determined by triers. Oum- mings v. Gann, 2 P. F. Smith, 484, 2. The Commonwealth is entitled to four peremptory challenges out of all the jurors that may be called She is not bound to challenge the first four, and does not waive her right by passing a juror. Eartzell v. Com., 4 Wr. 462. 3 The allowance of the right of per- emptory challenge to the Commonwealth is constitutional. Ibid. 4. It is not a ground of challenge that the juror is brother-in-law to counsel. Funk V. Ely, 9 TT'r. 444. It is not error to refuse the fifth peremptory challenge. Ibid. 5. If a party do not object to a juror as soon as it is discovered he is incompe- tent, but take his chance of a verdict, it is too late. EakmanY. Sheaffer, 12 Wr. 176. 6. A verdict may be taken at the hou=e of a sick juror. King v. Faber, I P. F. Smith, 388. JUSTICES. As to reversing judgments on parol evidence. See Certiorari, § 6. Reversing generally. See Errors and Appeals YIII. As to tender of judgment to save costs. See Costs, §§ 1, 10. Cannot set off judgment before another justice. See Judgment VII., 4. Surety of justice liable for money col- lected, though not by suit. See Surety, 1. 1. The common pleas cannot open a justice's judgment. Boyd y. Miller, 2 P. F. Smith, 431. 2. Where the claim upon the transcript and the narr does not exceed one hundred dollars, and the verdict is for only that amount with interest added, the Court may properly refuse to entertain an ob- jection to the jurisdiction. Funk v. Ely, 2 P. F. Smith, 442. I 3. The jurisdiction of justices and of the KEE 158 LAN Cuurts of common pleas is concurrent in trover and trespass. Per Pearson, J., afBrmed by Supreme Court. Moyer v. lUig, 2 P F. Smith, 444. 4. A justice iuis no jurisdiction to enter a judgment exceeding one hundred dol- lars, except where the parties voluntarily appear, and not in ansiver to any proceas served. Borland y. Eoly, 1 Wr. 111. 5. A justice cannot be required by pe- tiiion and rule to surrender his docket to his successor. Petition of Baker, 8 Wr. 440. (i. A justice has jurisdiction of a claim lielow one hundred dollars, although tlie interest added would make it above one hundred dollars, if the plaintiff does not claim the interest. Euans v. Hall, 9 Wr. 235. Y. A justice has jurisdiction of an ac- tion by a county against a purchaser of unseated lands, for the amount of his bid. The jurisdiction Ijeing expressly conferred, it would matter nut that the title to land might come in question. County of Ful- ton V. Tate, 1 1 Wr. b32. 8. Proceedings on an appeal are not de novo as to jurisdiction, and a defendant cannot set off a claim exceeding one hun- dred dollars. Walden v. Berry, 12 Wr. 456. 9. Where the transcript upon which a justice has issued a sci. fa. is mislaid, the ducket may be produced to show its con- tents. Koom V. Headley, 13 Wr. 168. 10. The transcript is prima facie evi- dence. Ihid. 11. A justice has no common law juris- diction by action of debt upon a transcript, nor can he proceed by sci. fa. on execu- tion upon a transcript certified by a justice whose term has expired. If he render a judgment thereon, the defendant upon appeal can plead nul tiel record, for there is no legal record to support the sci. fa. Ibid. 12. A justice's certificate of a wife's acknowledgment is not conclusive in cases of fraud or constraint Ilichener v. Cal- ender, 2 Wr. SST. Ball v. Patterson, 1 P. F. Smith, 290. 13. A purchase without notice is ex- cepted from this rule. Ihid. KEEP. Sale of stolen horse for keep passes no title. See Lien, 1. KEEPER OP JAIL. Liable for costs if he discharge a par- doned convict who has not paid the costs. Schuylkill v. lieifsnyder, 10 Wr. 446. LABORERS. Wages of, cannot be attached by a jus- tice although the law has been waived. Ftrmstone v. Mack, 16 Wr. 387. Distribution of sherilf's sales to pay wages. See Execution VIII., 6, &c. LAND. Appointment under deeds. See Appointment, § 1. Reconveyance necessary to rescind. Vide Contract IX., §§ 1, 2. Where contribution to be made for en- cumbrances. See Contributions, §§ 1, 2, 3, 4. Damages for taking land by a corpora- tion are the first lien. See Corporations III., § 5. State not liable for consequential dam- ages. See Damages, §§ 1, 2, 9, 15. For damages from overflow and for drawing off water. See Damages, §§ 2, 3, 13, 14, 15. When agreement merged in deed. See Deed, § 3. A way becomes an easement by dedi- cation hy pere dufamille. See Easement, § 2. An alley cannot be closed if another lot has easement. See Easement, § 1. Ejectment by tenant in common. See Ejectment I., 11, 18, 39, 40. As to conditional verdict. See Ejectment I., L', 3, 4, 13, 14, 20, 31, 33, 34, 35, 38, 40. Restraint on alienation not to be set up by one whose title has been sold by the law. See Ejectment II., 12. As to second verdict in ejectment. See, generally, Ejectment III. LAN 159 LAN As to evidence in ejectment of surveys and boundaries. See Ejectment 11., and see, generally, Uvidence. Distribution after sheriff's sale. See Execution II, and VIII. For fraud against co-purchasers. See i^raitd v., 6, T, 8, 9, 10, 11. As to sales fraudulent against creditors. See, generally. Fraud I. For parol sales and partitions. See, generally, Frauds and. Perjuries II. Effect of laches in recording deeds and giving false credit to husband, and con- tests betvsreen his creditors and his wife. See, generalljr, Husband and Wife II. As to mental unsoundness. See Imbecility, §§ 1, 2, 3. Reviving judgments, &c. See Judgment Y. As to ouster, adverse process, two years, &c. See Limitations I. Rent is not a lien upon land. See Mortgage V., 22 ; VI., 4. Lease-hold mortgages not discharged by sale because of prior liens of rent. See Mortgage I., 9. When machinery not real estate. See Mortgage I., 6 ; and see Heal Estate, h 2, 3, 4, 5. For damages from opening roads, rail- roads, &c. See Roads, and also Railroads. As tovtrords "issue" and "children," when a life-estate passes, when a fee vests, and rule in Shelly's case. See Shelly. Tax sales of lands. See Taxes. Purchase by a parent in name of child is not a trust, but a gift. See Trusts I., 2, 5, 6. Trusts as to land. See Trusts. As to rescission of article of agree- ment. Vide Husband and Wife II., and Vendor and Vendee III., 6, 14, IV. Second instalment for land discharged by sale under judgment for first instal- ment. See Vendor and Vndee IV., 12. Suit for purchase money. See Vendor and Ffindeell., I V. Defence by purchaser. 8ee Vendor and Vendee IV. As to when agreement is executed or executory. See Vendor and Vendee IV. Charge upon land in will binds it in hands of assignee of devisee. See Wills IV. Appointment under will.a. See Wills 11. I. Of surveys — warrants — calls, mistaiie in the same — re- surveys — boundaries — monu- ments — settlements — improve- ment — ^ideiitity of owner. II. As to agreement executed or executory — as to abandon- ment by private owner — (for abandonment by State, see Land XIII ) III. As to selling life-estate — as to purchasing from party in eject- ment. IV. Of the liability of the grantee for dower — of covenants of title- damages — the grantor pays for stamps. V. Of trying title to land collaterally in replevin, trespass, &c. — what plaintiff in trespass must prove. VI. Proof of possession — presump- tion of posse.ssion — notice from possession — presumption from applying for title — from acts of ownership — when title re- mains in grantor, and when he can sue in trover. VII. Of actions for purchase moneys — defences. VIII. Damages against railroad and canal companies for talcing land — proceedings to recover tlie same, and defence thereto. LAN 160 LAN IX. Grants of mining rights, coal, salt, oil, &c. — of licenses— in- juries to mines — working mines — surface rights — ease- ments. X. Injuries to neighboring lots by- grading — by cutting off water — subterranean streams, &c. XI. Of liens — of sales of land of lu- natic — of testatuins — effects of judicial sale — liability of sher- iff's vendee. XII. Of conditions, forfeitures, reser- vations — of certain special titles (Grubb and Coleman lands) — Pennsylvania titles. XIII. Of trusts, parol sales, and dedi- cations — eminent domain and abandonment by the State. XIV. Of recording. XV. Of tenancy in common. XVI. Of tax sales, tax titles, outstand- ing titles — of redemption, limi- tation. XVII What is part of freehold. XVIII. Of limitations, (other than in tax cases which are noted above in XVI.) XIX Of deeds void for uncertainty — deeds revocable, as wills- deeds deliverable after death — deeds by agent — receipt. XX. Of di.'^claimer, verdicts, decrees — of judgments transferred. XXI. Of impeaching the wife's ac- knowledgmtnt. I. Of surveys — Warrants — Calls, mis- takes IN THE SAME — Re-surveys — Boundaries — Monuments — Settle- ments — Improvement — Identiiy of owner. 1. A failure to return a survey for more than- seven years leaves the land open to new appropriations. Garver v. McNulty, 3 Wr. 4Y3. 2. The inchoate right of re-survey by the holder of a Maryland warrant was not protected by the agreement of July 4, 1160, between the Penns and Lord Balti- more. Thomas v. Stigers, 3 TfV. 486. 3. A mistake in the draft of the sur- vey may be shown by the work on the ground. The one may be said to be the substance, and the other the shadow. When they differ, the line on the ground must govern, unless where it is apparent that the work on the ground is a mistake, and is shown to be so by extrinsic evi- dence. Per Thompson, J. Caldwell v. Holler, 4 Wr. 168. 4. An indescriptive warrant and survey under it, made long after an adjoining tract had been located, is no evidence of the boundary of the adjoiner. Per Strong, J. Clement v. Wright, 4 Wr. 250. 5. The calls of a survey will extend the survey on the ground to them, al- though the lines described in the patent may not reach to them. Per Thompson, J. Caldwell v. Holler, 4 Wr. 168. 6. Calls will overrule lines returned, but not on the ground, as when the call is for a stream. Ibid. T, Where a mistake is apparent, the Court may admit testimony to show care- lessness or incompetency of the surveyor, the quality of the land excluded, and the opinion of an expert as to how the mis- take occurred. Ibid. 8. Where a survey called for a certain adjoinder, but the return by mistake read " N. 29 E.," instead of " N. 69 E.," thus leaving a vacant spot which another party discovering, applied for and obtained as "unimproved," it was held that the orig- inal owner could show the mistake by the call, the quality of the land omitted, &c. Ibid. 9. A tract cannot be carried beyund its marked boundaries to reach its call. Where there are no lines or monuments on the ground, or calls to indicate where the lines should be, there the courses and distances as returned must fix the boundaries. Where lines cannot be shown to have been run on the ground, after twenty-one years from the date of the re- turn, the lines will be presumed to have been run as returned. Per Thompson, J., in Bellaa v. Clearer, i Wr. 260. li), After the return of survey, nothing but an order of re-survey could authorize an enhirgement or diminution of it. Bel- las v. Cleaver, 4 TTV. 260. 11. Junior warrants cannot be so lo- cated as to enlarge a survey already re- turned, nor will the lapse of time after their location give title to the senior up to their boundaries. An act done for the junior cannot aifect the senior. As calls they cannot enlarge the boundaries of an older survey. Ibid. 12. Junior surveys may be received as declarations of a deceased artist, but they are not powerful evidence. Ibid. LAN 161 LAN 13. The acceptance of a patent ends all controversies about lines and quantities other than those described in it. Ibid. 14. Pull effect is to be given to cham- ber surveys where sufficient time has elapsed since their return to raise a legal presumption. After twenty-one j^ears the law treats all surveys duly returned as actual surveys, though no chain was stretched upon the land. Per Wood- ward, J. McBarron v. Gilbert, 6 Wr. 279. 15. A mere unexecuted purpose of a surveyor could not become a survey. But if a judge, in leaving the question of location to a jury, refer it to them to say whether the warrants were located, or intended to be located on the land, the Supreme Court will not reverse, but will regard the charge as meaning that the jury must find that the surveyor located the warrants either on the land or on paper, which, returned into the land office, would indicate the land intended to be appropriated Ibid. 16. A warrantee of 1815 against whom a presumption has fully run that war- rants of 1784 were duly surveyed, cannot set that presumption aside by showing warrants and surveys of 1794 which no one has ever claimed. Ibid. 17. A deputy may correct his survey while the warrant remains in his hands, but when it has passed to the land office bis power ceases, and an attempt to locate the warrant a second time without an order of resurvey gives no rights. Per Strong, J. Hughes v. Stevens, 7 Wr. 197. 18. Where a warrant is descriptive and not shifted in its location, title commences with its date. If it be shifted, title will not commence until the survey be returned and accepted, except as against persons having actual notice In the excepted case it commences with the survey. But when the warrant is indescriptive, title is acquired under it only from the time of the survey. Ibid. 19. Descriptive warrants should be ex- ecuted according to priority, but inde- scriptive warrants are not conflicting, and the rule does not apply to them. With them the first survey takes the title. Ibid. 20. The lines ijiarked on the ground are the true survey. When a younger calls fur an older survey as an adjoiner, and no lines are found marked for the younger on the side on which the older is called for, the younger is to be laid • so as to adjoin tlie older. If the younger calls for no adjoiner and for no monument, and no lines be found on the ground, then the lines returned determine the location. By Woodward, J. Quinn V. Heart, 7 Wr. 337. 21. If the judge leave the question to the jury and they determine it according to the calls, the party claiming the lines cannot complain. Ibid. 22. While a mere settler remains in possession the Commonwealth indulges his delay in taking a warrant, but when out of possession from whatever cause, a delay fur ten years without excuse is fatal. Being turned out upon an haberi is not an excuse. Per Woodward, J. Grant v. Allison, 7 Wr. 427. 23. Where there is a discrepancy be- tween distances and adjoiners, the former always gives way. Speakman v. Fore- paugh, 8 Wr. 363. 24. An old warrant line submerged in a farm and the return of a part of the land as unseated, are not sufficient evi- dence of abandonment of that part against the fact of its use as part of a larger seated tract. Altemose v. Hufsmith, 9 Wr. 121. 25. The only cure for a mi.'ilocation of a warrant is by an order of resurvey. Per Thompson, J. Gratz v. Beates, 9 Wr. 495. 26. Where an indescriptive warrant calls for land on the waters of a stream, it is not intended thereby that the stream is necessarily to be embraced in the sur- vey, or that it be on or adjoining it. It is within the intendment if it be located within the district watered or drained by it. Ibid. 27. Where one has title to an improve- ment he can show when it began, &c., but where one without any authority under- takes to sell the improvement title of a decedent, the vendee acquiring no title, his evidence as to the improvements is in- admissible. Zubler v. Schrack, 10 Wr 67. 28. The transfer of a mere improve- ment right will be good as against the owner, but a settlement is an interest in land and is not transmissible as a chattel. Ibid. 29. Entry on the Commonwealth's 11 LAN 162 LA.N vacan*- land gives no title under the sta- tute of limitations. Ibid. 30. If one acquire color of title after P'lrt of the limitation period has elapsed, it will have no operation upon the origi- nal entry. Ihid. 31. Adverse possession must be trans- mitted like property so as to vest aright in the .successor. Ihid. 32. It is not to be presumed that a warrant has been located in violation of a settler's right. Ibid. o'i. Where one claims exclusively upon the improvement right of another, he can- not in error set up his own entry. Ibid. 34. A party should be allowed to send out a paper defining his claim, although it refer to a survey and diagrams in evi- dence. But this is a matter of discretion and not reviewable. 0''IIara v. Rich- ai'dfion, 10 Wr. 385. 35. Courses and distances give way to boundaries. Where a sheriff sells a fac- tory and houses, parcels of a large lot, ^dividing them as on the ground, but mis- describes the depths of the house lots, (jiiving them several feet beyond their fences and including an area used by the factory,) the purchaser of the houses only takes to the fences, and although the de- scription of the factory does not embrace the a-ea, the purchaser of the factory gets the area. Lodge v. Barnett, 10 Wr. 4Y7. 36. A patent for unwarranted lands will not pass the title of the Common- wealth as against a subsequent warrantee. Land not embraced in the survey cannot be passed by the patent. Canal Go. v. Dimock, 11 Wr. 3!>3. 37. It is error to charge that before the jury can adopt a certain line testified to in a chamber survey, they must be satis- fied tliat there are marks on that line cor- responding with the date of the survey. Jjreer v. Garskadden, 1 2 Wr. 38. 38. Continuous acts of tenants may de- fine boundaries, but the statements of a tenant are not admissible agi.inst his land- hjr.i, nor the declarations of an executor or his agent (though in pos.=ession) against the heir or devisee. Eakman v. Shaeffer, 12 Wr. 176. 39. Where a map or plan is referred to in a deed, it becomes a part of the con- veyance as if incorporated in it. Bir- mingham V. Anderson, 12 Wr. 253. 40. Therefore, although tlie deer] con- vey land "to a river," yet if the plan re- ferred to therein show an open space for other lot-owners on the river front, the boundary is to be controlled by the plan. Ibid. 41. When dealing with blocks of sur- veys the marks on any part of the block belong to each tract of the block. Ma- lone V. Sallada, 12 Wr. 419. 42. If lines are returned that do not coincide with those of an older survey which is called for, they are to be rejected and the lines of the older survey adopted, unless marks on the ground forbid it. Ibid. 43. A younger survey must not go to its call because there are no marks on it, if the body of which it is a member is well marked. Every tract of the body is governed by the incontestable lines of the whole. Ibid. 44. Lines found on the ground control the calls and conclusively establish the survey. When a younger calls for an older survey, and no lines are marked for the younger on that side, it is to be laid so as to adjoin the older. If the younger calls for no adjoiner or monument, and no lines be found on the ground, then the lines returned to the land office determine the location. Per Woodward, J., in 7 Wr. 341. AflBrmed, 12 Wr. 429. 45. Where the call for an adjoiner is a mistake, it may be controlled by the lines returned and other evidence. Per Ag- NEW, J. Malone v. Sallada, 12 TF"/-.429. 46. Descriptive warrants if followed up with legal diligence confer title from their date, but it is the duty of the holder to pay the fees and have the warrants re- turned in a reasonable time. If this is neglected, the rights of a younger claim- ant may prevail, though it originated before the limitation had closed on the elder, and though the purchase money was paid on the old warrant. McGowan V. AM, 3 P. F. Smith, 84. 47. Where other sufficient marks are found, the erroneous indication of the place of a water-course cannot impair a surve3^ Ibid. 48. Declaration of a deceased county surveyor as to a corner of land not evi- dence. Kirkland v. Thompson, 1 P. F. Sinilh, 216. 49. Though in official surveys the lines on the ground constitute the true survey, yet rejected lines prove nothing. E.k- pcrimental lines may be controlled by the LAN 163 LAN deed. Rifener v. Bowman, 3 P. F. Smith, 313. ; 50. It is error to submit a question of identity ■without proof, as whether R. P. O'Neill is Rev. Patrick O'Neill. Bur- ford V. McCue, 3 P. F. Smith, 427. 51. One of a block of surveys located with otiiers so as to answer to most of their calls, is not a chamber survey. It is not necessary nor proper to re-mark old lines. Per Ryon, P. J., affirmed by Supreme Court. Eister v. Paul, 4 P. F. Smith, 196. 52. Where the evidence of location is all one way, the judge may declare the effect of the evidence. Ibid. 53. Marks upon any part of the block belong to each tract. Ibid. 54. Courses and distances make the survej' where lines on the ground are noi to be found, except in ease of calls for adjoiners. Boynton v. Urian, 5 P F. Smith, 142. 55. A survey is entitled to its distance by a measui'ement made in the same man- ner as the surveyor who measured it, and not by an air line. Ibid. 56. The younger must give way to the elder survey. Ibid. 5T. Blocks of surveys must be laid each adjoining the other. Ibid. 58. Part of a settlement right aban- doned when the survey was made, cannot afterwards be surveyed under that right, for it is exhausted by the first survey. Parshall v. Jones, 5 P. F. Smith, 153. 59. Lines run upon the ground are not a chamber survey, and if the survey is lost, a warrant can be located upon them. Parshall v. Jones, 5 P. F. Smith, 153. II. As TO AGREEMENT EXECUTED OR EX- ECUTORY As TO ABANDONMENT BY PRIVATE OWNER, (FOR ABANDONMENT BY State, see Land XIII.) 1. As to when an agreement is exe- cuted or executorv. Garver v. McNulty, 3 Wr. 4Y3. 2. If there be a known defect of title, and the contract has been executed, it will be presumed that the purchaser im- dertook to run the risk, unless he had a covenant against -it put in the deed. The presumption, however, is not conclusive. Speakman v. Forepaugh, 8 Wr. 363. 3. Such a presumption is inapplicable to executory contracts. Ibid. 4. Possession by a warrantee and his tenants rebuts the presumption of aban- donment, and is notice. Burford v. Mc- Gue, 3 P. F. Smith, 42T. III. As TO SELLING LIFE-ESTATE — As TO PURCHASING FROM PARTY TO EJECT- MENT. 1. A life-estate can only be divested where the vend. exp. is issued by order of the Court on ten days previous notice of the application. Snyder v. Christ, 3 Wr. 508. 2. One who purchases the title of a party to an ejectment after verdict, takes subject to the verdict. Hill v. Oliphant, 5 iVr. 376. IV. Op THE LIABILITY OF THE GRANTEE FOR DOWER — Op COVENANTS OP TITLE Damages — The grantor pays for STAMPS. 1. The words in an habendum, "sub- ject to the payment of a certain dower," &c., do not of themselves, the deed n it being sealed by the grantee, import a covenant or a promise by acceptance of it to be personally answerable to discharge the dower. The dower falling due after the death of the grantee is chargeable against the land devised. Shoenberger V. Hay, 4 Wr. 132. 2. On a covenant of warranty the measure of damages after eviction is the consideration paid and interest. On breach of covenant for further assurance the damages will be nominal unless the plain- tiff prove actual damages. Burr v. Todd, 5 Wr. 213, citing Rawle, Gov. Title. 3. For refusal to convey after payment of purchase money, (or on exchange after receiving the property in exchange,) tl'e measure of the damage is the value of the land at the time it ought to have been conveyed. Ibid. 4. On bond, with penalty conditioned for conveyance, the obligee can only re- cover for breach the value that he gave. Ibid. 5. If there be a known defect of title, and the contract has been executed, it will be presumed that the purchaser un- denook to run the risk, unless he has a covenant against it put in the deed. The presumption, however, is not conclusive. Speakman v. Forepavgh, 8 Wr. 363. 6. A covenant to convey to A is to him and his heirs, and free of dower though the vendor's wife do not sign the LAN 164 LAN articles. Speakman v. Forepaugh, 8 Wr. 363. v. A purchfiser of a perfect title is only entitled to a covenant of special warranty against the acis of his grantor and his heirs. Lloyd y. Farrell, 12 Wr. 73. 8. A defect in a title of an outstand- ing trust for two-thirds is not covered by the statutory covenant of the words ''grant, bargain and sell," or by an ex- press covenant of special warranty. Ibid. 9. A general warranty extends to a defect of title as to a right of way, but the purchaser cannot detain purchase money for a known encumbrance or de- fect. Wilson Y. Cochran, 12 Wr. 107. 10. A covenant of general warranty is only br(iken by eviction. Ibid. 11. There can be no recovery on a covenant lor quiet enjoyment prior to an eviction. But a bond to keep the pur- chaser "clear and indemnified, and to make hira secure," can be sued out if the title fail to part, and the measure of damages is the consideration paid, and the cost and expenses (including reason- able counsel fees) ot defending the worth- less title. Anderson v. Washabaugh, 7 Wr. 115. 12. Under a contract "to create a suf- ficient deed," the vendor is bound to pay for the stamps. Callaghan v. McCredy, 12 Wr. 463. V. Of trying title to Land collater- ally IN REPLEVIN, TRESPASS, &C. — "VNhaT PLAINTlrP IN TRESPASS MUST PROVE. 1. While it is true that in replevin or trover the title to real property cannot be directly tried, it is equally true that it may be incidentally brought in question, and may, therefore, be admitted in evi- dence. Per Strong, J. Clement v. Wright, 4 Wr. 250. 2. One sued for carrying away wood from his own land can defend upon the plea of not guilty alone; and can under that plea show his title and define his bo\indary. Withdrawing the plea of liberum tenementura does not witlidraw his evidence. AUemo'se v. Hufsmith, 9 Wr. 121. 3. A plaintiff cannot recover against an intruder without proof of title or pos- secsiou. Warner v.Henby, 12 Wr. 187. VI. Proof of possession — Presumption OF possession — Notice from posses- sion — Presumption from applying FOR title, from ACTS OF OWNERSHIP — When title remains in grantor, and when he can sue in trover. 1. In the absence of actual adverse pos- session of timber lands the law casts pos- session upon the owner. Proof of title, therefore, in a defendant's vendor, is proof of at least constructive possession in him. Clement v. Wright, 4 Wr. 250. 2. To affect an innocent purchaser with notice, possession must be clear, open, notorious and unequivocal. An act done which may lead to an inference of tres- pass as well as of title, is insufficient. Per Strong, J. Meehan v. Williams, 12 Wr. 238. 3. Notice to the vendor of the claimant or to his agent, if not in the course of his agency, is insufficient. Ibid. 4. Where a brother and unmarried sisters take possession of an abandoned improvement and live on it for many years, whether the entry is the settlement of the brother alone, is a question of fact for the jury. There is no presumption in favor of the brother as there would be in favor of a husband or father. Cambria Iron Co. V. Tomb, 12 Wr. 3S1. 5. A jury may infer in such a case a knowledge by the sisters of a sale by the brother. Ibid. But such inference of knowledge will not work an estoppel. Ibid. 6. Nor will knowledge of an applica- tion by the brother for the title in his own name, or that he filed a caveat, work an estoppel. Ibid. 7. Nor would mere acquiescence in the acceptance by the brother of a lease from his vendee estop the sisters in the absence of misleading representations or fraudu- lent concealment. Ibid. 8. Independently of the statute mere acquiescence is not recognition of title. Tullock- V. Worrall, 13 Wr. 133. 9. A mere temporary occupancy to take off timber by one having no right of possession does not defeat the construc- tive possession of the owner, who can maintain replevin or trover as soon as the timber is severed. Brewery. Flem- ing, 1 P. F. Smith, 115. IJ. When an agreement for sale stipu- lated that the purchaser was to pay in LAN 165 LAN lumber to be cut by him from the land, and at such time the owner was to exe- cute a deed, no legal title passes until delivery of the lumber, and meanwhile the ownership of lumber cut on the land is in the owner who can maintain replevin therefor, if the purchaser, in- stead of delivering it under the contract, is attempting to dispose of it. Per Wil- liams, A. J., affirmed by Supreme Court. Gorbett V. Lewis, 3 P. F. Smith, 322. 11. But other lumber not cut on the land cannot be claimed by the owner of the land, although the purchaser in viola- tion of his contract sawed it at the owner's mill. 1 bid. 12. Twenty-one years peaceable posses- sion of an interference will prevent the courses and distances of an elder survey from controlling tlve title. Long peace- able possession is evidence of location of an ancient survey when ancient land- marks are not found. Ralston v. Graff, 5 P. F. Smith, 276. 13. Trover or replevin will lie for timber cut on wild land. The owner has presumptive possession. Toung v. Her- dio, 5 P. F. Smith, 172. 14. Building a cabin for choppers, and deserting it after the wood is cut, will not toll the possession. Young v. Herdic, 5 P.F. Smith, 172. YII. Op actions eoe purchase money — Defences. 1. Payment of a purchase "money bond cannot be enforced by a vendor who fails to perform a condition requiring him to sink an existing well so as to make the supply of water permanent, the purchaser thereby having lost more than the amount of the bond. An offer to sink another well where the water could not be used for family purposes, is not a compliance with the vendor's undertaking. Maguire v. Howard, 4 Wr. 391. 2. Although two bonds were given, all the damage could be set off against the last. Ibid. 3. The vendor cannot reply to such a defence that the purchaser knew of a mine beneath the well which might drain it. Ibid. 4. If a vendor make fraudulent repre- sentations as to the value and quality of land sold, he cannot recover on the con- ract unless the purchaser expressly agree waive an inspection and to take the risk of quality upon himself. BAirr v. Todd, 5 Wr 206. 5. Failure to pay purchase money until after ejectment brought, takes away an equity of defendants as innocentpurchasers without notice. Ghadwick v. Phelps, 9 Wr. 105. 6. Where the agreement of sale is to convey in fee, clear of all encumbrances, it is not competent to prove by a witness present that the purchaser agreed to take just such title as the vendor had without guarantee of any kind. Lloyd v. Farrell, 12 Wr. 73. 7. Even if the agreement could be re- formed, such evidence could not affect the deed subsequently delivered. Ibid. 8. If the vendor think he have a good title, good faith does not require hira to state facts he deemed of no importance. But if he knows of a defect and conceal it, that is a fraud which is available as a de- fence for unpaid purchase money. Ibid. 9. A purchaser, though lie has taki^n a conveyance, upon failure of the title is en- titled to relief against the unpaid purchase money, unless it plainly appear that he agreed to assume the risk. Ibid. 10. A covenant of general warranty is onlv broken by eviction. Wilson v. Goohran, 12 TFr. 107. 11. There can be no recovery on a covenant for quiet enjoyment prior to an eviction. But a bond to keep the purchaser " clear and indemnified and to make hira secure," can be sued out if the title fail to part, and the measure of dam- ages is the consideration paid, and the costs and expenses (including reasunable counsel fees) of defending the worthless title. Anderson v. Washabaugh, 7 Wr. 115. 12. That the purchaser has sold part of the land is no defence. Ibid. VIII. Damages against railed ads and CANAL COMPANIES FOR TAKING LaND — Proceedings to recover the same and defences thereto. 1. A jury in assessing damages against a railroad company may consider the in- convenience in crossing the road and in- terference with crossings already estab- lished. East Penna. B: R. Go. v. Hies- ter, 4 Wr. 53. 2. An offer to claim no damages if the road is located in a particular place, if LAN 166 LAN not accepted when made, is not binding. Ibid. '6. Aw appeal from assessment of dam- ages onght not to be withdrawn except bj' consent. Brown v. Corfy. "I Wr. 495. 4. In assessing damages foi' laying a railroad the effect on the whole tract should be considered, not the part taken. Brown v. Corey, 1 Wr. 49.5. 5. The standard is to eomyiare the pres- ent value of the whole tract with its value before entry. Ibid- em Dangers and delays of crossing, de- preciation from increased difficulty of access, are items of damage. Ibid. 7. The opinions of experts are entitled to weight in such cases. Ibid. 8. The only remedy for damages in taking land for a canal is against the com- pany by judgment and execution ; eject- ment will not lie, because the execution is returned nulla bona. Canal Co. v. Hireen, 8 Wr. 418. 9. The Court of Quarter Ses-ions of any county through which the Union canal passes can award a venire for damages to land or wafer. Heilman v. Union Canal Co., 14 Wr. 268. 10. Water continued to be used under a license which hag expired can be made the suliject of an assignment of damages by the owner at the time the license ex- pires. Heilman v. Union Canal Co., 14 Wr. 268. IX. Grants of mining eights, coal, SALT, OIL, &c. — Injuries to mines — Working mines — Stjreace rights — Easements — Op licenses. 1. A grant of an unlimited right to take away coal on a designated tract for a con- .sideration presently paid, is a grant of the coal itself, and not merely of a license or incorporeal right. But if the considera- tion paid is only nominal ; if what the grantee is to take, as well as where he is to take, is left all uncertain ; and if it is evident that the grantor's motive for exe- cuting the paper was the erection by the grantee of certain works, only an incor- poreal hereditament passes. Clement v. Youngman, 4 Wr. 341. 2. A conveyance of " fifty acres of coal" is a conveyance of land. Brown v. Corey, 1 Wr. 4!.)5. 3. If defendants permit plaintiffs to operate a mine through the defendants' gangway, it will nut justify the defend- ants in wilfully filling the shaft with water. Mc Knight v. Eatcliff, 8 Wr. 156. 4. If plaintiffs inform defendants that water in a shaft will escnpe before it dam- ages the plaintiffs, any damage thereafter done results from their own misrepresen- tations, and they are not entitled to re- cover. MoKnight v. Radcliff, 8 Wr. 156. 5. A conveyance of land, the grantor "reserving for his own use the coal con- tained in the said land, with free ingress to hnul," is an e.xception, the coa: remains in the grantor, and on his death in his heirs. " For his own use" means the same dominion as if no deed had been made. Per Woodward, J. Whitaker v. Brown, 10 Wr. 197. 6. If mines are already opened, or if the lease permits their being opened, it is not waste for the tenant to work them even to exhaustion ; nor would it be waste to open new shafts or pits to follow the same vein. Per Eead, J. Kier v. Peterson, 5 Wr. 357. 7. A lease of land with privilege to bore salt wells, entitles the lessee to petro- leum rising in the wells in connection with the salt water. Ibid. Woodward, J., concurred in the judgment in this ca.-^e because trover would not lie, the remedy being in his opinion by bill in equity. 8. A license by the State ofBcers and use thereunder, cannot divest the State title, although improvements were erected thereunder. It is revocable at pleasure. Haldeman v. R. R., 14 Wr. 425. 9. An agreement to mine and pay for a stipulated quantity of coal, and that in de- fault thereof the lessors shall be at liberty to determine the lease, justifies, if broken, a re-entry which, in the absence of proof to the contrary, should be presumed to have been in virtue of this right, and it is error in such a case to leave the question of waiver to the jury. McEnight v. Kreutz, 1 P. F. Smith, 232. 10. A grant to A, his heirs and assigns, of the free privilege to go upon land, to subdivide and assign, to experiment for oil, if found, to sever it and take it on pay- ing a third to the landlord, with covenants binding A to erect engines, &c., gives A an incorporeal hereditament, which at law would have been indivisible and in common with the f rantors, but which is here exclusive of tlie grantor and assign- able by the grantee Funk v. Haldeman, 3 P. F. Smith, 229. LAN 167 LAN 11. A conveyance "of the right of dig- ging and taking away coal to any extent the grantee may think proper," gives the grantee the absolute ownership of all the coal, the grantor remains the owner of the surface, but acquires no right to the minerals by exclusive enjoyment of the surface. To acquire title thereto under the statute, he must disseize the grantee and mine continuously for the statutory period. Armstrong v. Caldwell, 3 P. F. Smith, 284. 12. Minerals may be severed from the land by a separate conveyance of them. Pennsylvania Salt Go. v. Neel, 4 P. F. Smith, 9. 13. A surface-right with restriction against building and limitation to one use, is but the grant of an easement, although described to be in fee. Big Mountain Co.'s Appeal, 4 P. F. Smith, 361. 14. A grant to A and his heirs and as- signs to dig coal at a certain coal bed, with ingress and regress, is an incorporeal hereditament. The right is not exclu- sive, but in common with the owner. Gloninger v. Franklin Goal Go , b P. F. Smith, 9. Grove v. Hodges, 5 P. F. Smith, 504. 16. A grant of "all the ore'''' is cor- poreal, and passes ownership in the ore. Ibid. 16. An agreement to sell land if oil is found, means if found in a reasonable time. Dark v. Johnston, 5 P. F. Smith, 1B4. n. A grantee of all the oil in a tract cannot maintain ejectment. It is not cor- poreal. Dark v. Johnston, 5 P. F. Smith, 164. 18. A reservation by a grantee of a right to remove his machinery is evidence that the grant is not corporeal. Ibid. 19. A parol license may be revoked, although a consideration has been paid. But not if improvements are erected. Whether a license by deed can be revoked duhitatur. Dark v. Johnston, 5 P. F. Smith, L69. 20. A personal license differs from a grant which carries an interest in the land, and is forfeited by assignment. Ibid. ITl. X. Injuries to neighboring lots by GRADING, BY CUTTING OFF WAT£R, SUB- TERRANEAN STREAMS, &C. 1. An owner who wishes to fill his lot up to grade, must keep the dirt within his line. He cannot so fill up his own lot as to let the earth pass over the line on the lot of his neighbor, and if he inflicts any injury he is responsible in damages. Per Hampton, J., affirmed by Supreme Court. Hulchinsonv. Schimmelfeder, i Wr. 39(). 2. An act done causing damage which the law will redress, must not only be hurtful, but wrongful. A proprietor has the I'igjitto an uninterrupted flow of a sur- /ace-water course, but not to an unknown subterranean stream. If, in mining or quarrying, without malice or negligence, an underground stream is interrupted which was not known or well defined, and a spring is thereby destroyed, it is dam- num absque injuria, and the owner of the spring has no cause for action. Per Strong, J. Haldeman v. Bruckhart, 9 Wr. 514. XI. Of liens — Of sales op lands op LUNATIC — Of testatums — Effects op judicial sale — Liability OP sheriff's vendee. 1. A fixed lien preserves all which pre- cede it. Allegheny City's Appeal, 5 Tl'r. 62. 2. A sale of land of a lunatic under proceedings in lunacy passes a title, al- though the lunatic died before the urder of sale issued. Yaple v. Titus, 5 W?: 195. 3. Where a testatum fi. fa. is struck off, the lien is gone, and a deed before the entry of the testatum passes title, clear of the lien of a secon t testatum. McLaugh- lin V. Kain, 9 Wr. 113. 4. An assignee for benefit of creditors cannot sell the land as his own. After sheriff's sale upon judgment entered be- fore the assignment, the assignee's sale passes no title. Altemose v. Huf smith, 9 Wr. 121. 5. A railway running over the land of others connected with iron works, useful and necessary in the manufacture of iron, and in effect parcel of the establishment, will pass by a sheriff's sale of the works, although appurtenances are not named. Per Hays, P. J. Wright v. Chestnut Hill Co., 9 Wr. 475. 6.' The words "under and subject to the payment of a certain sum" to chil- dren at the death of a widow, create an express lien not discharged by a sheriff's LAN 168 LAN pale during the lifetime of the widow, feta breach of it will not work a forfeit- ure if it is evident that the word " condi- tion" is used in the sense of agreement, &c. And especially so if a forfeiture is declared as to the other parts, but omitted in this clause. Ibid. 20. Mere delay is no evidence of waiver of forfeiture. Ibid. 21. Putting in another tenant without demand or notice on the original lessee, is not the wav to enforce a forfeiture. Kreutz v. McKnight, 3 P. F. Smith, 319. 22. But if a tenant break his cove- nants under a lease which authorizes the liindlord in such an event to annul it, abandon possession, and suffer an intruder to hold for two years and a half, this obviates the necessity for demand of rent and formal declaration of forfeiture. Ibid. XIII. Op trusts — Parol sales and DEDICATIONS — Eminent domain and abandonment by the State. 1. A promise of one to buy land and hold it for another on the terms of paying fur it, where no money is paid by the latter, creates no resulting trust in his favor. Per Strong, J. Lauer v. Lee, 6 Wr. m. 2. A parol sale of land by father to son is within the statute, although the father promised to give the land in consideration of services which the son perfirms, and although the son has possession and im- proves ; for all this can be com])ensated in damages. McKowen v. McDonald, 7 Wr. 441. 3. The State may delegate her right of eminent domain to a corporation or to an individual. Brown v. Corey, 7 Wr. 495. 4. An agreement to recover land be- longing to heirs and credit it on a claim, which has never been acted upon, is irrele- vant for the defence in an ejectment against the vendee of the heirs to show a trust from which a right to redeem might be inferred. Chadwick v. Phelps, 9 Wr. 105. 5. A purchase by a partner or joint owner is in trust for the others in interest. If his deed show his relation to them, that is notice of the trust to all succeeding him Gibson V. Winslow, 10 Wr. 380. 6. If the donor of a burial-ground build a school-house thereon, this aci is evi- dence that he dedicated the lot for school as well as for burial purposes. Pott v. School Directors, 6 Wr. 132. 7. The first oral dedication would not prevent a change of purpose by the donor and donee. Ibid. 8. The use of a school dedicated with- out restriction, is not to be limited to the inhabitants of the donor's town-plot. Ibid. 9. Where no provision is made for trustees of a school dedicated to public use, the management of it falls on the school directors. Ibid. 10. A vendor selling a full title when he has less than a fee and afterwards ac- quiring the fee, holds it in trust for his vendee ; and if a vendee mortgage h's title, the perfection of the title enures to the benefit of the mortgagee. Clark v. Mar- tin, 13 Wr. 299. 11. Sale or abandonment by the Com- monwealth of land taken, and the value whereof has been paid for by her does not revest the title of the former owners. Haldemand v. P. P., 14 Wr. 425. 12. A license by the State officers and use thereunder cannot divest the State title, although improvements were erected thereunder. It is revocable at pleasure. Ibid. 13. A parol sale of land set up by a son against his father's creditors should be di.stiiictly proved, and it should be clearly shown that possession was taken and that improvements were made on the faith of it. Willey v. Day, 1 P. F. Smith, 61. 14. In such a case lapse of time may supply want of directness and distinctness LAN 170 LAN of proof, but it cannot create proof. Per Strong, J.^ Ibid. 15. Land' granted to State does not re- vert on abandonment of the works. Craig V. Mayor, 3 F. F. Smith, 41Y. 16. The right of eminent domain can only be exercised for a public purpose. Lance's Appeal, 5 P. F. Smith, 16. 17. Prescripiion can only exist by ac- quiescence. If property is taken under right of eminent domain there is no ac- quiescence, and abandonment restores the property to the owner. Jessup v. Loucks, 5 F. F. Smith, 350. XIV. Op recording. 1. A purchaser at a sheriff's sale is within the protection of the recording acts. A deed unrecorded at the date of the sale more tljan six months, cannot be recorded after the sale and before the sheriff's deed so as to destroy the title of the sheriff's vendee. Speakman v. Fore- paugh, 8 Wr. 363. 2. A title derived under the first deed on TBCord, without notice of any other, is protected by the recording acts. Shaw V. Read, 11 Wr. 96. 3. The office copy of a deed conveying lands in two counties and recorded in one, is evidence in ejectment for lands in the countv where it is not recorded. Wheeler V. Winn, 3 F. F. Smith, IBl. 4. A second purchaser is not safe merely because of the neglect of the first purchaser to record within six months, for, notwithstanding such omission, the first purchaser, if he be first on the record, gets the title, although the second has paid for, occupied and improved the land be- fore the recording of the first deed. Penna. Salt Co. v. Neel, 4 P. F. Smith, 9. XV. Of tenancy in common. 1. A devise to two "for their natural lives and after their decease to their heirs (if any they have)" creates not a joint tenancy, but a tenancy in common. Seely v. Seely, 8 Wr. 434. XVI. Op tax sales— Tax titles — Outstanding titles op redemption — Limitation. 1. The payment by one heir of his portion of redemption money, not for others but for himself, if he has previously convoyed his title, can avail nothing to his vendee. Chadwick v. Phelps, 9 Wr. 106. 2. The five years limitation in the Act of 1804 has no operation against a sub- sequent tax title. It is only applicable to the holder of the prior title. Chad- wick V. Phelp.^, 9 Wr. 113. 8. A sale in 1838, lor taxes in 1807, is void. McLaughlin v. Kuin, 9 Wr. 113. 4. The Act of 1804 (limiting the time for recovering land sold for taxes to five years) cannot avail a plaintiff who has never been in possession, and a former owner may defend although more than five years have elapsed. Alexander v. Bush, 10 Wr. 62. 5. Where land sold for taxes brings more than the taxes and costs, a bond for the surplus is indispensable to the validity of the title. If the purchaser pay the whole bid, his title is worthless That such a bond was given must be proved; it will not be presumed from lap.se of time, nor from payment of taxes fur a number of years by the purchaser, where the deed shows that the whole bid was paid. Alexander v. Bush, 10 Wr. 62. 6. If the county treasurer mistake the amount due, this does not invalidate a re- demption. If the purchaser do not get all he is entitled to by the redemption, his remedy is against the treasurer. Buhb v. Tompkins, 11 Wr. 359. Y. Where there have been continuous acts of ownership on the part of a claim- ant for twenty-one years, a presumption may be made of a missing deed from the former owner, but without these, tlie mere fact that the claimant makes a deed of the property does not supply the missing link in his chain. Warner v. Henby, 12 Wr. 18Y. 8. A deed under an assessment and tax- sale is conclusive against an intruder without color of title. Wheeler ^•. Winn, 3 P. F. Smith, 131. 9. An outstanding title is as good a defence in an ejectment following a deci- sion of the board of property as in any other ejectment. Burf.ord v. McCue, 3 P. F. Smith, 427. 10. A sale of seated land for taxes as unseated, is void, and if the possession has been derelict for the years for which the taxes accrued, this will uot change it to unseated land. Ibid. 11. A sale of seated lands as unseated, or of unseated lands as seated, passes no LAisr 171 LAN title. Hathaway Y. Elshree, 4 P. F. Smith, 498. 12. If land has been placed on the seated lists and the taxes so paid for sev- eral years, the owner is not thereby es- topped from showing; that there has been a change, and that it was unseated when assessed. Per Thompson, J. Ibid. 13. "Unimproved" means unseated; "cleared" mean fe seated Ibid. 14. A surplus bond (for the excess of the bid above the taxes and costs) is es- sential to the validity of a sale for taxes. But the giving of it may be presumed from lapse of time, assertion of title, payment of taxes, &c. Iron Go. v. Fales, 5 P. F. Smdth, 90. 15. Bona fide residence and performing labor on land make it seated; otherwise, as to temporary residence of a trespasser. Iron Go. v. Fales, 5 P. F. Smith, 90. 16. The assessor's return of the assess- ment of a tract, and the rate fixed by the commissioners, and a day fixed for the appeal, are sufficient evidence to support a sale. Wells v. Smyth, 5 P. F. Smith, 159. n. A warrant and schedule cannot be rejected because the year of the assess- ment is omitted, if that ah'eady appear in the duplicate. Ibid. The authorities re- viewed per Agnew, J. Ibid. 18. The purchaser at a tax sale cannot cut timber during the two years allowed for redemption. Shalemiller v. McCarty, 5 P. F. Smith, 186. XVII. What is part of fkeehold. 1. Fragments of a torn building and timber cut whilst on the ground may be claimed by the owner as part of his free- hold Altemose v. Hufsmith-, 9 Wr. 121. A lathe is covered by a mortgage on a machine shop. A purchaser acquires no title as against the mortgagee. Roskins V. Woodward, 9 Wr. 42. 2. Rolls cast for and delivered to a mill, but not put in it, are personalty. Johnson v. Mehaffy, 1 Wr. 309. 3. A railway running over the land of others connected with iron works, useful and necessary in the manufacture of iron, and in effect parcel of the establishment, will pass by sheriff's sale of the works, although appurtenances are not named. Per Hays, P. J. Wright v. Ghestnut Hill Co., 9 Wr. 475. XVIII. — Of limitations, (other than IN TAX OASES WHICH ARE NOTED IN XVI.) 1. Entry on the Commonwealth's va- cant land gives no title under the statute of limitations. Zubler v. Schrack, 10 Wr. fi-?. 2. If one acquire color of title after part of the limitation period has elapsed, it will have no operation upon the origi- nal entry. Ibid. 3. Adverse possession must be trans- mitted like property, so as to vest a right in the successor. Ibid. 4. Where one purchases the interest of warrantees, pays the fees and expenses, and exercises acts of ownership, he is en- titled to the presumption that after twenty years the whole purchase money has been paid, and by the lapse of thirty years that a deed has been delivered in confirmation of tlie contract. Brock v. Savage, 10 Wr. 88. 5. It is error to charge that, " if no eject- ment was brought within six months of a decision by the board of property, the party is barred," where part of the land in controversy is not in the warrant passed on by the board. Nor is this cor- rected by qualifying an answer to another point with the words " so far as cov- ered " by the decision of the board. O'Bara v. Richardson, 10 Wr. 385. 6. If a party defines his boundaries, takes actual posse.'^sion of part, and uses the remainder as farmers use woodland, and does this adversely and exclusively , the owner not interlering, he gains title by limitation. Per Agnew, J. Ibid. 1. If the owner enter from time to time, it is for the jury to say whether these entries exhibit a mixed possession or were not in prosecution of liis rights as owner. Per Agnew, J. Ibid. S. A proper location of a warrant is, after thirty years, as actual an appropria- tion of the land as if the lines had been well marked on the ground. Dreer v. Carscadden, 12 Wr. '68. XIX. Of deeds void for uncertainty — Deeds revocable as wills — Deeds deliverable after death — Deeds BY agent - Receipt. 1. A conveyance of land, the grantor "reserving for his own use the coal con- tained in the said land, with free ingress LAN 172 LAN to haul," is an exception. The coal re- mains in the g;rantor, and on his death in Lis heirs. '' For his own use " means the same dominion as if no deed had been made. Per Woodward, J. Whitaker v. Broivn, 10 Wr. 197. 2. A conveyance wbicli declares that it is "in no way to take effect until after the decease of the grantor," with haben- dum "to have and to hold after the de- cease of the grantor," is revocable as a will. Fer7-yv. Scott, 1 P. F. Smith, 119. Turner V. Scott, 1 P. F. Smith, 126. 3. A conveyance "to the heirs of A" who is then living is void for uncertainty, and parol evidence cannot be received to show that the grantor declared he meant the children then born and that might he born. Morris v. Stephens, 10 Wr. 200. 4. A fee cannot be limited to take effect in fnturo, unless a particular estate to take effect presently is granted ("not re- served) to support the fee. Turner v. Scott, 1 P. F. Smith, 132. 5. A deed from one who is attorney in f;ict of the owi.er is gooi, although it is drawn as if the attorney held the title. Henby v. Warner, 1 P. F. Smith, 216. 6. The acknowledgment in the body of a deed of the receipt of the purchase money, is evidence against the grantor and against a subsequent purchaser from the grantor. , Penna. Salt Co. v. Neel, 4 P F. Smith, 9. 7. If a deed is delivered by the grantor in his lifetime, to be delivered to the grantee after his decease, it is good de- livery upon the happening of the contin- gency, and relates back to divest the title from the first delivery. Stephens v. Huss, 4 P F. Smith, 20. XX. Of disclaimers, verdicts, decrees' — Of judgments transferred. 1. A verdict for two defendants for two- thirds, without referring to the other third, for which a co-defendant had confessed judgment, is amendable to a verdict for plaintiff for one-third. Cambria Iron Co. V. Tomb, 12 Wr. 387. 2. A decree concluding a mortgagor concludes a mortgagee. Clark v. Mar-tin, 13 Wr. 299. 3. A judgment transferred by exempli- fication does not become a judgment of the Court in which the copy is filed. It can be proceeded in with like effect as to lien revivals, executions, &c., but it cannot be transferred by an exemplification of the exemplification to another county. Mel- lon V. Guthrie, 1 P. F. Smith, 116. 4. Disclaimer is not properly a plea in ejectment, but the plea of not guilty may be limited to the real point of contest by a description of the part for which defence is taken. Per Woodward, C. J. Eirk- land V. Thompson, 1 P. F. Smith, 218. XXI. Of impeaoijing the wife's ac- knowledgment. 1. A wife's acknowledgment may be impeached for fraud or constraint. Mich- ener v. Cauender, 2 Wr. 337. Hall v. Patterson, 1 P. F. Smith, 290. 2. But a bona fide purchaser of land without notice is excepted from this rule. Ibid. 3. Less than actual duress may avoid a wife's acknowledgment. McCandless v. Engle, 1 P. F. Smith, 313. LANDLORD AND TENANT. As to exemption and waiver of exemp- tion. See this Title, § 14, and see Execution III. Forfeiture and waiver. See Land XIl. Rent is not a lien upon land. See Mortgage V., 22 ; VL, 4. Avowry may claim more than is due. See this Title, § 40, and see Replevin, 9. 1. A barren distress will not preclude a suit against the tenant and his surety. Robinson v. White, 3 Wr. 255. 2. If the tenant sue the landlord for illegally distraining, and recover back all that the landlord received from the dis- tress, the landlord can sue the tenant and his surety, and the distress is no bar. Ibid. 3. A tenant is entitled to the way- going crop even against a sheriff's vendee. Miller v. Clement, 4 Wr. 484. 4. A sheriff's vendee is not entitled to rent falling due after his purchase and before his deed is acknowledged, although the sale was under a mortgage made be- fore the lease. Garrett v. Dewart, 7 Wr. 342. 5. W^here the mortgage or judgment under which land is sold is paramount to a lease, the landlord may affirm or disaf- LAN 173 LAN firm the lease. If he disaffirm, he can claim no rent. If he affirm it, he becomes landlorfl only from the delivery of the sheriff's deed. Ibid. 6. Eviction is an actual expulsion of the lessee out of all or some part of the demised premises. The rent is restored by restoring possession. Rent already due is not forfeited by eviction, but the tenant rany defalk the damages caused by the eviction. A lessor cannot apportion rent by a partial eviction. Per Wood- ward, J. Tiley V. Moyers, 1 Wr. 404. 1. A rent of a coal bank to be paid at a price per bushel, is a sale at the price fixed ot so many bushels as the tenant may take. Ihid. 8. Where there are not enough woods in the lease to define the boundaries, it is for the jury and not for the Court to de- fine them. Ihid. 9. The entry of a landlord upon part of a coal tract leased, and taking coal there- from without interrupting the tenant min- ing, does not suspend the rent; it only enables the tenant to defalk the damages he thereby sustains. Ihid. 10. If a landlord sue in ejectment, issue an estrepement and fail, the tenants can in a subsequent suit for rent defalk the cos'.s in the ejectment and the dam- ages of the estrepement, but not damages for the suit in ejectment. Ihid. 11. 'J'he goods of a sub-tenant are liable to distress, and the proceeds thereof in hands of the sheriff to the claim of the paramount landlord for rent. McComVs and IIowden\ Apjjeal, 1 Wr. 435. 12. And this, though the sub-tenant has paid tlie rent due by him to the origi- nal tenant. Ibid. 13. Executor cannot distrain for rent falling due after death of the landlord. The English and Pennsylvania statutes collected and reviewed, per Strong, J. Uendertson v. Buyer, 8 Wr. 220. 14. Joint lessees are not entitled to the exemption out of joint property. A re- plevin will not lie lor goods appraised at less than three hundred dollars. Bonsall V. Gomly, &Fr. 442. 15. A landlord is not entitled to his rent out of goods sold by the sheriff, un- less the goods are on the premises and liable to distress. If levied upon and sold elsewhere he has no claim. Grant and McLane^is Appeal, 8 Wr. 47 T. 16. A removal openly and in the day- time is not clandestine or fraudulent. Ihid. 8 Wr. 4n. 17. Rent payable in grain, the crops not being harvested nntil after the land- lord's death, goes to the heir. McDowell V. Addams, 9 Wr. 4.30. 18. An assignee of a term is liable by reason of priority of estate, and his as- signment to a pauper terminates his lia- bility. But where he remains in posses- sion after an assignment, he is liable for the rent while he has the enjoyment of the estate. Negley v. Morgan, 10 Wr. 281. 19. An agreement to pay ten cents per ton as re-payment of an improvement loan is not an agreement to pay rent, though it is so called. Bank v. Heilner, U Wr. 452. 20. Receiving surplus of sale of goods over rent claimed does not estop the ten- ant from suing in trespass. Ingram v. Hart, 12 Wr. 380. If the tenant should treat the proceedings as valid by suing in debt for the surplus, he might be es- topped from suing in trespass. Ihid. 21. In an action for use and occupation, the plaintiff must prove either an express contract or show that the land was occu- pied by his permission. When an occu- pant enters without the knowledge of the owner no promise is implied, nor is a promise to be implied before the plaintiff had title. Brolasky v. Ferguson, 12 Wr. 434. 22. A tenant cannot set up that he was cestui que trust. Bennett v: Fulmer, 13 Wr. 155. 23. One who is paid for work in part of the crop is not a tenant, and his share passes by a sheriff's sale. Adams v. Mc- Kesson, 3 P. F. Smith, 81. 24. Proceedings to remove a tenant upon expiration of the term can be insti- tuted by the grantee of the landlord's as- signee, upon notice given by the landlord before he sold the property. Luff v. Fitz- water, 4 P. F. Smith, 224. 25. A description following the lease is sufficient. Ihid. 26. The Act of 1772 is not repealed by the Act of December 14, 1863. Ibid. 27. Settling for coal taken out is no discharge of liability for not inining the stipulated amount. Powell v. Burroughs, 4 P. F. Smith, 329. 28. A lessee neglecting tD mine can only be excused by showing an inability LAW 174 LEG to perform provided against in the lease. He cannot escape the payment of the stipulated amount by showing that the coal he failed to mine increased the value of the mine. Ibid. 29. If a tenant in common lease land, and his interest is sold at a sheriff's sale, the purchaser can sue the lessee for use and occupation (under the n9th s.ection of Act June 16, 1836, relating to execu- tions) without joining the other tenant in common. Hayden v. Patterson, 1 P. F. Smith, 261. 30. Wherever the owner could sue for use and occupation, the same remedy lies in favor of the purchaser of his title at sheritf's sale, for any sura accruing after he has received his deed. Per Agnew, J. Ihid. 265. 31. The landlord and tenant's Act of December 14, 1868, (substituting the judgment of one justice to that of tvi^o justices and a jury underthe Act of 1772,) is constitutional. Haines t. Levin, 1 P. F. Smith, 412. 32. A writ of error is a supersedeas of a writ of possession issued by the com- mon pleas on affirmance of a judgment under landlord and tenant's Act of De- cember 14, 1863. Ibid. 33. A tenant cannot defeat his land- lord's ejectment by showing a sale of one-seventh of the premises before action entered, without an attornment or other act to sever the possession. Holt v. Martin, 1 P. F. Smith, 499. 34. Nor can the tenant be permitted to show that in making the lease the plaintiff (who signs as " agent ") acted for certain parties owning ^j who^had revoked his agency, continued to lease to defend- ant and collected rent of him. Ibid. 35. A tenant agreeing to build without stipulating w/ien, has the whole term to perform his contract. Palethorpr. Berg- ner, 2 P. F. Smith, 149. 36. Under Act of December 14, 1863, (giving summary jurisdiction to one alderman,) the notice to quit must be given three months before the expiration of the term. Bich v. Keyser, i P. F Smith, 86. 37. Notice to remove at the end of the term (without mentioning the date) is sufficient. Snyder v. Car/rey, 4 P. F. Smith, 90. 38. A tenant from year to year is entitled to the way-going crops. His bad husbandry is no excuse for the land- lord's trespass. Glark v. Harvey, 4 P. F. Smith, 142. 39. Under Act of February 28, 1865, (as to lost leases,) the record must show a tenancy from year to year or for years, and that the first year of the term or the term itself is ended, or the magistrate has no jurisdiction. McMullinv. McGreary, 4 P. F. Smith, 230. 40. The rent reserved should be accu- rately stated in the avowry. The rent due need not be. Phipps v. Boyd, 4 P. F. Smith, 342. 41. A tenant cannot defend because the lease has been assigned in fraud of credit- ors. I bid. 42. The purchaser at an Orphans' Court sale (though not for payment of debts) can proceed to obtain possession in the same manner as the purchaser at a sheriff's sale. Simpsonv. Thornton, 4 P. F. Smith, 391. 43. The rent of a cropper is payable only when the crop is harvested. Lam- berton v. Stouffer, 5 P. F. Smith, 284. LARCENY. See Criminal Law, 40, 48. LATERAL RAILROADS. Opening of. See Ltailroads I. LEASE. For decisions as to landlord and tenant, and water. See those titles. As to what will work forfeiture and waiver of forfeiture. Vide Land XIL An assignee of a lease is liable while in possession, though he assign the term. See Landlord and Tenant, § 18. Mortgage of leasehold not discharged because rent in arrear. See Mortgage I., 9. LEASEHOLD Mortgage, liens of, not destroyed by prior arrears of rent. See Mortgage I., 9. LEGACY AND LEGATEE. When redeemed, advancement, &c. See Decedents' Estates TI. LEG 175 LIE Interest on. See Decedents^ Estates IX. When vested or contingent. See Decedents^ Estates IX. When discharged by sheriff's sale. Tide Execution V., 4, 5, 6, 10. When legally presumed to be a charge or not. Construction of legacy, &c. See Wais IV. LEGAL TENDERS. See Constitutional Law, §§ 1, 48, &c. ; see Contracts V. LEHIGH NAVIGATION CO. See Corporations V.. 38, &c. LESSOR AND LESSEE. See Landlord and Tenant. LEX LOCL The lex loci consulted upon a question of fraud in settlement by a husband upon a wife. Townsend v. Maynard, 9 Wr. 198. LIABILITY. Individual liability. See Corporations Y. LIBERDM TENEMENTUM. See Lajid V., 2 ; and see Pleading, 1*1. LICENSE. Not necessary to produce license in suit for sale of liquor. See Contract VI., 4. License to dig, mine, shaft, &c. See Land IX. 1. A license on the faith of which the licensee invests money, is in the nature of a contract ; but one who accepts a license from a county, takes it subject to the paiaraount trust in fnvor of the public. Kitianing v. Brown, 5 Wr. SYO. 2. Such a license is a mere contract for quiet enjoyment at the pleasure of the hcensor. Ihid. 3. Allowing a relative to sell a right to mine, allowing him to receive the dues, paying him half the profits, is all a mere benefit, revocable at pleasure, and, after notice to defendants, the owner can main- tain assumpsit for the mining dues. Troxel v. Lehigh L-on Co., 6 Wr. 513. 4. Permission to connect with a rail- road is revocable, though granted for value, and improvements be erected on the faith thereof. Railroad v. City, 11 Wr. 314. Branson v. City, 11 Wr. 329. 5. The right of connection with a rail- road cannot be destroyed without com- pensation. Reading R. R v. The City, 11 Wr. 325. 6. A license for a flow of water from the dam of a canal company is subject to the State right to build another dam, which may impair the license, and such an injury is not the subject of claim for damage. BlcKeen v. Delaware Canal Co., 13 Wr. 424. Y- A license from State officers for use of the side of a canal, followed by im- provements, is revocable at pleasure. Haldeman v. R. R., 14 Wr. 425. 8. A license to enter and take coal un- accompanied by expenditure, is revocable even if it has been agreed that a consid- eration shall be paid. HuffN. McCauley, 3 P. F. Smith, 2U6. 9. A license cannot be inferred from mere use for eighteen years. Heyl v. Railroad, 1 P. F. Smith, 469. Permit- ting a dealer in coal to put a frog and switch in a railroad so as to make a side- ling for his yard, creates no irrevocable license, although he put up valuable im- provements. Ibid. Even though a party secured a license from a railroad company to p"it a frog and switch in their track, it will be presumed he took it subject to the right of the company to make reasonable charges, and the mere use of the switch would not in any event destroy this right. Per Ludlow, J., affirmed by Supreme Court. Ibid. LIENS. Liens of bank on stock. See Banks, 9, 15. Constitutionality of laws for collection of municipal liens. See Constitutional Law, §§ 49, 50, 51, &c. Jury trials denied on municipal claims. See Constitutional Law, § 52. As to contribution to pay lien. See Contribution, §§ 1, 2, 3, 4. On land of corporations. Vide Corporations II., III. LIE 176 LIM Lien of damages for taking land is to be preferred to a mortgage given by tlie cor|joration after tliey took the land and before damages were assessed. See Corporations III., § 5. Of debts of decedents. See DecedenW Estates III., XI. As to dower. See that title. As to execution. See that title. What liens discharged by sheriff's sale. See Execution V. Postponing liens of execution. See Execution IV. Stay by Court of ^. fa. does not im- pair its lien. See Execution IT., § 10. Lien of judgment against sheriff's ven- dee before his deed delivered. Vide Judgment IV., § 6. As to judgments generally. See Judgment IV. Lien of testatum gone when testatum struck off. See Land XI, § 3. As to mechanic's claim. See that title. Lien of leasehold mortgage not de- stroyed by prior arrearages of rent. See Mortgage I., 9. What are and what are not defences to municipal liens. i ' See Municipal Claims. Judgment for want of a plea is a lien before damages assessed. See Practice V, 2, 3. Purchase money not a lien unless clearly so expressed. Bee Vendor and Vendee VI., 4. Lien of legacy, when to be implied. See Wills IV. Charge on land in will is a lien. See Wills IV. L The sale by an innkeeper of a horse for keep does not divest the owner's title if the horse has been stolen. Gump v. Showalter, 1 Wr. 5U7. 2. If the lien of the State against an officer has not been perfected so as to pre- vail against his other creditors, it cannot be against his sureties. The Common- wealth has no priority over the liens of judgment creditors and mortgagees, whose liens had attached before a copy of the account was entered of record in tlie proper county. Arnold'' s Estate, 10 Wr. 277. 3. The lien of the State may be post- poned by the delay of her officers. Ibid. 4. A party may bind himself not to file a lien. Pulis v. Sanborn, 2 P. F. Smith, 368, 5. A captor of stolen property is en- titled to a lien thereon to the amount of a reward offered for its recovery, and this though the offer was made to the sheriff and not to the captor. Cummings u. Gann, 2 P. F. Smith, 484. 6. A groom is entitled to a lien upon a horse which he keeps and feeds, and for whose shoeing he pays. Hoover v. Ep- ler, 2 P. F. Smith, 522. 7. Subrogation is founded on principles of equity, and may be decreed where no contract exists, but not in favor of a mere volunteer. Per Thompson, J. Ibid. 8. Paying the innkeeper's bill by giving a note would not entitle the groom to a lien for that item. Ibid. LIFE. Charge as to damages from loss of life. Vide Errors and Appeals II. LIFE-ESTATE. Manner of selling life-estate. See Land III., § 1. What words do or do not enlarge life-estate into estate tail; &c. See SheUy^s Case. LIFE-TEx\ANT Liable for selling the estate. Perry v. Lowber, 13 Wr. 483. LIMITATIONS. Twenty-six years bar claim against administratrix. See Decedents^ Estates. LIM 177 LIM I. As to limitations in cases of land, wnj's, water, mer^ne profits, mines- II. As to lin:iitations in suits for deposits, and against attorneys, a.a;ents, trus- tees, and in cases of fraud. III. As to limitations in criminal cases. IV. Other cases — taking cases out of the statute, &c. — constitutional and unconstitutional acts, &c. I. As TO Limitations in cases of land — Mesne peofits — Ways — Water — Mines. 1. The Act of April 22, 185fi, (requir- ing suits for resulting trusts, &c., to be brou.uht within five years,) does not alto- gether repeal the Act of 1785. The first section of the Act of April 22, 1856, takes away the ten years allowed by the Act of 1185, (within which femes covert, &c., may bring suit after disability re- moved,) and gives thirty years after the right of entry accrued. (Aliller v. Fron- ctscus, 4- Wr. 335, overruled.) Warjield V. Fox, 3 P. F. Smith, 3b2. 2. If a married woman has a resulting trust in property, an action brought within thirty years alter her right of entry ac- crued is in time. Ibid. Though she were in possession before the passage of the Act of 18o(i, it must be her duty to com- pel a conveyance. Ibid. 3. To land outside of the lines of his paper title, a person can only acquire title by residence, or clearing and cultivation. If he go upon it, clear a field, and define his boundaries, his occupancy draws to it the pos.-^ession, even as against the owner in attiial occupancy of other portions of the land. But there must be a pedis pos- sessio. Per Thompson, J. Ewing v. Alcorn, 4 Wr. 492. 4. An occasional trespass and cutting of wood, accompanied by declarations of claim, are of no avail ; an actual extension of the line is an essential element of ouster. Without this, even clearing and cultivating for twenty-one yeai's would only avail to the extent of the enclosed territory. Ibid. 5. If a thing be pledged to secure the payment of a debt, it may be that the pledgor may recover it from the pledgee after the debt is presumed to be paid from lapse of time. But an executory contract to sell cannot be enforced in favor of a purchaser who has not com- plied with his engagements, and has re- mained quiescent until discharged by lapse of time. Per Strong, J. Moan' Appeal. Balsey'a Appeal, 1 Wr. HS. 6. Ten years abandonment of a settle- rnent, without adequate excuse, is fatal. Grant, v. Allison, ^ Wr. 427. 7. Twenty-one years uninterrupted use of a passage-way raises a presumption of right. Plitt V. Cox, 7 Wr. 486. 8. The Act of April 21, 1846, (enact- ing that in all actions tried since May 5, 1841, wherein by verdict or confession time became essential, the defendant should have two years to pay his money or enforce the contract,) is constitutional, and applies to a judgment confessed with- out trial before the passage of the act. Waters v. Bates, 8 Wr. 473. 9. Evidence of use of a way for twenty- one years, openly,, notoriously, without particular leave, by a person claiming to use without danger of being treated as a trespasser and as a matter of right, con- fers title ; the burden is then upon the owners of the land to show license, or something inconsistent witli the right. Declarations by the person using the road that he did so on sufferance, made after the right had been acquired by twenty- one years ube, and inconsistent with his other declarations, are not sufficient to repel the presumption of a grant. Peirce v. Cloud, 6 TIV. 102. 10. The possession of a vendee need not be continuous. He need not stick to possession like one defending under the statute. Bichardsx. Ehvell, 12 Wr. 361. A presumption of a release arises in favor of one who purchases by parol and of those claiming under him after the lapse of forty years, the payment of purchase money and possession delivered. Ibid. 11. No mere lapse of time will avail to give one tenant in common title in sever- alty. There must be some plain and un- equivocal act to amount to an ouoter. Tulloch V. Worrall, 13 Wr. 133. 1 2. Length of use for over thirty years, and the erection of improvements under a license from State officers, will not bar the title of the State. Haldenian v. R. R., 14 Wr. 425. 18. No matter what corners are marked, or improvement built, if it is only used to herd cattle, is abandoned when the sea- son is over and lacks continuity, it will not confer title. Wheeler v. Winn, 3 P. F. Smith, 122. 13 LIM 178 LIM 14. It must be for residence or culture and not a mixed possession with hunters. Ibid. 15. The fiye years limitation in the Act of 1804, is only applicable to the holder of the prior title. It has no operation against a subsequent tax-title. Chadioick T. Phelps, 9 Wr. 105. 16. A sale in 1838, for taxes of 1807, is void. They are presumed to have been paid. McLaughlin v. Kain, 9 Wr. 113. 17. Notwithstanding that a defendant enter without color of title he may avail himself of an adverse possession of twen- ty-one years. Per Barrett, P. J., af- firmed by Supreme Court. Hollings- hend V. Nauman, 9 Wr. 140. 18. The fact that his purpose v?as to hold only until a better owner came, does not change the character of his posses- sion. Ibid. 19. He need not improve the whole tract ; if he clear, occupy and farm upon the tract, it gives to the claim a good title to the land included in his survey. Ibid. 20. Though a title under the statute may be subjict to a lien of the Common- wealth, yet that lien is discharged by the Commonwealth's sale, and the twenty-one years commence to run against the pur- chaser from the date of the sale, not the date of his deed. Ibid. 21. A mere survey of land for the pur- pose of ascertaining its locality is not a sufficient entry to interrupt the statute. Ibid. 22. A plaintiff can only recover mesne profits for six years prior to the suit brought. Per Fisher, P. J., affirmed by Supreme Court. Hill v. Meyers, 10 Wr. 16 23. The Act of 1804 (requiring action for recovery of lands sold for taxes to be brought within five years) does net apply to the defence set up by a former owner never out of possession. It applies to suits against the purchaser, not by him. Alexander v. Bush, 10 Wr. 62. 24. The limitation acts do not run against the State. Zubler v. Schrack, 10 Wr. 67. Color of title acquired after part of the limitation h.is elapsed will have no operation upon the original entry. Ibid. Adverse possession, to vest a right in a successor, must be transmitted like property. Ibid. 25. The State may lose her lien by the delay of her officers. Arnold's Estate, 10 Wr. 277. 26. The issuing of a.sci./a. within five years keeps a lien alive, but it must be duly prosecuted. A delay of eight years is not due prosecution. Ward v. Patter- son, 10 Wr. 372. 27. The Act of April 22, 1856, gives only two years to parties whose five years limitation had expired at its date, and it applies to a woman then of age and un- married, though she subsequently marry. Rider v. Maul, 10 Wr. 376. One dis- ability is never added to another. Ibid. 28. If a division line is run by tenants in common and exclusive possession taken thereunder for twenty-one years, an ouster may be inferred. Rider v. Maul, \i)Wr. 376. 29. Suffering seven years to elapse without writ of error binds terre tenants where a judgment has been confessed by the executors of a mortgagor within a year after the debt fell due. Per Pear- son, P. J. Brooks V. Smyser, 12 Wr. 86. 30. In ejectmentthe statute may beset up under the general issue. Heath v. Page, 12 Wr. 142. In all other cases the defence of the statute is waived unless pleaded. Ibid. The six months withiu which suit must be brought to recover back usury, count from the day of ac- tual payment. Ibid. 3,1. The Act of April 22, 1856, (bar- ring an action for specific performance,) does not apply to a defendant's equity. Webster v. Webster, 3 P. F. Smith, 161. 32. The owner of the surface may ac- quire a title under the statute as against tlie owner of a mine beneath. But as they are different estates, mere occupa- tion of the surface will not give such a right. The owner of the mine must be disseised by continuous adverse mining for the statutory period. His mere nou-. user will not suffice, nor is an occasional taking of the coal from him a disseisin. Per Strong, J. Armstrong v. Caldwell, 3 P. F. Smith, 284. 33. It is for the Court to determine what kind of possession is necessary to give title by the statute. Ibid. 34. Omission of a grantee to enter for twenty-one years is not prima facie a bar. Ibid. 35. Prescription to pollute water re- LIM 179 LIM quires the strictest proof. McCallum v. Qermantown Wafer Co., 4 P. F. Smith, 40. 3fi. It cannot be polluted to any greater extent than at the commencemeut of the twenty-one years. Ibid. 81. Use for eighteen years of a switch in a railroad track creates no license. Heyl V. Railroad, 1 P. F. Smith, 469. 38. The statute of April 22, 1856, (making five years the limitation in cer- tain trusts, ) does not apply to a case where the cestui que trust was in possession during the period in which the statute is claimed to have been running. Clark y. Trindle, 2 P. F. Smith, 492. 39. If the statute had begun to run, possession would stop it. If possession preceded the trust relation, it would not be^in to run. Ihid. 40. A joint occupancy by plaintiff and the defendant's ancestor for nine years is neither a statutory nor a presumptive bar. Ihid. 41. The entry of one along with and as a member of a family cannot be made the starting point for the running of the statute against any of them. Ihid. 42. The Act of April 22, 1856, (barring actions for specific performance in five years,) does not apply to a grant exe- cuted. Grove v. Hodges, 5 P. F. Smith, 518. II. As TO Limitations in suits foii de- posits, AND BY AND AGAINST AT- TORNEYS, AGENTS, TRUSTEES AND IN OASES OP FRAUD. 1. Six years do not bar a deposit, nor a check marked good. The bank is only bound to pay on demand, and the statute only commences to run from demand. Oirard Bank v. Bank of Penn Town- ship, 3 Wr. 92. 2. If one agree to hold money to in- denniify the surety of a committee of a lunatic, and instead of holding it, he pay it over to the committee, the statute does not begin to run until the liability of the surety is fixed ; that is, until the account of the committee is settled. Keller v. Iihoads,3 Wr. 513. 3. Only those trusts are without fhe operation of the statute which are ex- clusively cognizable in a court of equity Ibid. 4. A resulting trust cannot be enforced after lapse of twenty-four years from the time the complainant had notice of the breach of the trust. Hassler v. Bitting, 4 Wr. 68. 5. One who fraudulently secures his notes from the servant of his deceased creditor is estopped from setting up the statute of limitation. As against him the statute would only begin to run from the discovery of the fraud. Bricker v. Lightner, 4 Wr. 199. 6. A receipt of one attorney of the fees of himself and his colleague raises no trust which will prevent the running of the statute, there being no fraud or con- cealment. Webster v. Newbold, 5 Wr. 482. I. The statute is a bar against the owner of personal property who allows it to remain in the possession of a purchaser six years after the last instalment falls due, although the agreement stipulaie that it is not to become the defendant's until fully paid for. Barton v. Dickens, 12 Wr. 518. 8. The trusts not reached by the statute are continuing trusts, not cognizable at law, but exclusively in equity. Ibid. 9. Six years bar'an actiun against an attorney for money collected. Campbell V. Boggs, Ibid. b2i. 10. A payment made in the character of trustee for a debtor will not prevent the bar of the statute as against the payer individually. Thus, where an endorser is appointed trustee of the maker, his payment of the trust funds of the maker over to the creditor is not a payment on account of his endorsement, and will not keep the debt alive as to him. Bank v. Watson, 10 Wr. 310. II. The statute is a bar in favor of an attorney who collects and invests his principal's money in his own name. Fleming v. Culbert, 10 Wr. 498. 12. An action against an attorney for breach of duty is barred six years after the neglect. Stephens v. Doimiey, 3 P. F. Smith, 424. 13. The statute of April 22, 1856, (making five years the limitation in cer- tain trusts,) does not apply to a case where the cestui que trust was in posses- sion during the period in whicii the statute is claimed to have been running. Clark V. Trindle, 2 P. F. Smith, 492. 14. The delivery of goods to be sold on agency is a consignment, and the statute does not run until an account has LTM 180 LIM been furnished or refused. Jayne v. Mickey, 5 F F. Smith, 260. 15. The statute does not begin to run against an attorney's bill until the disso- lution of the relation between him and his client. Lichty v. Hugus, b P F. Smith, 434. The reversal of a judgment does not terminate the relation if a venire de novo is ordered. Ibid. The attorney cannot revive the relation by volunteer- ing services. Ibid. III. Limitations in criminal cases. 1. A criminal prosecution for larceny suspends the statute of limitations in trover until the termination of the crim- inal prosecution. Hutchinson v. Bank of Wlieeling, 5 Wr. 42. 2. A soldier who remains at his home in this State several months after the commission of an offence, is then absent in the service more than two years, and subsequently returns to his home, cannot be prosecuted for tlie crime. The limita- tion act of tviro years protects him, and the pi'oviso as to one who "shall not have been an inhabitiint of the State, or usual resident therein," docs not apply to such a defendant, for his usual residence is not changed by service in the army. Graham v. The Com., 1 P. F. Smith, 255. IV. Other cases— Taking cases out OF THE STATUTE, &C. — CONSTITU- TIONAL AND UNCONSTITUTIONAL ACTS, &C. 1. The statute does not begin to run upon a wife's claim against her husband until his death. Kutz^s Appeal, 4 Wr. 90. 2. A plaintiff, to prevent the bar of the statute, cannot be allowed to prove a cus- tom existing among merchants engaged in the same business, by which all bills must be settled by note on January 1st and July 1st after the purchase. This would only be evidence if uniform and universal, or if made part of the contract, or assented to by defendant. Hursh v. North, 4 Wr. 241. 3. The statute does not run against a record. Where the committee of an habitual drunkard settles an account, which on confirmation shows a balance in his favor, he can set-off the amount against a debt due by him to the habitual drunkard, although more than six years have elapsed from the date of the decree. Vincent v. Watson, 4 Wr. 306. 4. A criminal prosecution for larceny suspends the statute of limitation in trover until the termination of the crim- inal prosecution. Hutchinson v. Ba7ik of Wheeling, 5 Wr. 42. 5. Endorsement of credits, proved to have been made while the statute is run- ning, removes the bar of the statute. Shaffer v. Shaffer, 5 Fr. 51. 6. When made by a promisee after the statute has barred the claim, they are not evidence. Ibid. I. A due bill " on settlement of a note as interest," does not identify the note and does not prevent the running of the Statute. Ibid. 8. A new promise to remove the bar of ihe statute must be clearly and ex- plicitly proved, and be in its terms un- equivocal and determinate, otherwise it should not be submitted to the jurv. Ibid. 9. Public rights are not destroyed by long continued encroachments or per- missive trespasses. Eittaning v. Brown, 5 Wr. 210. 10. The expression of a willingness to pay something if other parties will do so, does not take a case out of the statute. Webster v. Newbold, 5 Wr. 482. II. If a plaintiff intend, to rely upon non-administration as an answer to a plea of the statute, he should so reply. Ibid. 12. A legatee cannot plead the statute against a set-off of a loan made to him by the testator. Per Read, J. Thompson's Appeal, 6 Wr. 345. 13. Where the originators of a company agree that subscribers shall be paid an annual dividend, the statute is no bar, and upon final distribution the claims of the projectors are to be postponed until the others are paid the promised dividend. Moss' Appeal. Halsey's Appeal, 1 Wr. 23. 14. If one of the originators advances sums to pay dividends in compliance with such an agreement, he cannot on final distribution claim to have said advances repaid. Ibid. 15. If a thing be pledged to secure the payment of a debt, it may be that the pledgor may recover it from the pledgee after the debt is presumed to be paid from lapse of time. But an executory contract to sell cannot be enforced in favor of a purchaser who has not complied with his LIM 181 LIM engagements, and has remained quiescent until discharged by lapse of time. Per Steong, J. Mosa' Appeal. Sahey's Ap- peal, 1 Wr. 35. 16. An act directing a review twelve years after decree is imconstitutional. Baggs' Appeal, 1 Wr. 514. 17. Limitation laws affecting prior con- tracts and rights are constitutional wliilst they only modify the remedy. Breilenbach V Bush, 8 Wr. 313. Coxe v. Martin, Ibid. 32'2. Watera v. Bates, 8 Wr. 473. 18. The effect of the statute cannot be avoided by an amendment. Wright v. Hart, 8 Wr. 454. Stout v. Stout, 8 Wr. 457. Smith v. Smith. 9 Wr. 403. 19. The Act of April 21, 1846, (en- acting that in all actions tried since May 5, 1841, wherein by verdict or confession time became essential, the defendant should have two years to pay his money or en- force the contract,) is constitutional, and applies to a judgment confessed without trial before the passage of the act. Waters v. Bates, 8 Wr. 473. 20. After dissolution, a new promise without other consideration than the original debt, made by only one partner, will not take the case out of the statute, except where the promisor is the liqui- dator. Where the firm is insolvent, and property sold out, the promise by one is insufficient. Reppert v. Gplvin, 12 Wr. 248. 21. The statute is a bar against the owner of personal property who allows it to remain in the possession of a pur- chaser six years after the last instalment falls due, although the agreement stipu- late that it is not to become the defend- ant's until fully paid for. Barton v. Dickens, 12 Wr. 518. 22. Payments stop the running of the statute. Yearsly's Appeal, 12 Wr. 531. 23. Length of use for over thirty years, and the erection of improvements under a license from State officers, will not bar the title of the State. Haldeman v. B. B., 14 Wr. 425. 24. An act of limitation may be retro- active. Kenyon v. Steivart, § Wr. 179. 25. In a suit between creditors of a manufacturing company and its stock- holders for unpaid subscriptions, the sub- scribers cannot set up that the company omitted to call, in the subscriptions for more than six years. Allihone v. Eager, 10 Wr. 48. 26. The statute of limitations is not a bar to a bond. A presumption of pay- ment arises in suits on specialties from the lapse of time, but it does not require the same evidence to repel this presump- tion of payment as to remove the bar of the statute. Hence, in such cases, an admission of the debt, thougli incon- sistent with a promise to pay, (as whore defendant admits it but says he will not pay,) will repel the presumption of payment, and this may be ruled as matter of law. Per Williams, J., affirmed by Supreme Court. Beed v. Reed, 10 Wr. 239. 27. A payment made in the character of a trustee for a debtor, will not prevent the bar of the statute as against the payer individually. Thus, where an endorser is appointed trustee of the maker, his pay- ment of the trust funds of the maker over to the creditor is not a payment on ac- count of his endorsement, and will not keep the debt alive as to him. Bank v. Watson, 10 Wr. nO. 28. If an act authorize an assessment for paving theretofore done by a city, it is no defence that the city paid for it more than six years prior to the act. Per Williams, J., affirmed by Supreme Court. Magee v. Com., 10 Wr. 358. 29. The acknowledgment must be so distinct and clear as to preclude hesita- tion. A proposal to pay a certain sum for a release without refeiring to the debt or amount is not sufficient. Wolfens- hurger v. Young, 1 1 Wr. 5 1 6. 30. A defence of the starute cannot be avoided by the fact that the plaintiff^ was the general agent of the party. Hale v. Ard, 12 Wr. 22. 31. The fact that a case was continued over years might save the claim of an at- torney in the case from the statute, but not his claim for services generally. Nor is the defendant's will admissible to save the bar of the statute. Biid. 32. Suffering seven years to elapse without writ of error binds terre tenants, where a judgment has been confessed by the executors of a mortgagor within the year after the debt falls due. By Peak- son, P. .1. Brooks V. Smyser, 12 Wr. 86. 33 To take a case upon a note out of the statute there must be a clear distinct acknowledgment, but referring to it as a note in the hands of a certain person for collection, he having but one such note, LIM 182 MAJ sufficiently identifies tlie note.' Yaw v. Kerr, 11 Wr. 333. 34. The action should be brought upon the old debt, not upon the new promise. Ibid. 35. The new promise needs no con- sideration. Ibid. 36. A limitation in the contract binds. Lanoe v. Griner, 3 P. F. Smith, 204. Si. The Act of 1856 (limiting contests of probate to five years) binds infants, femes covert, and persons non compotes mentis. Warfield v. Fox, 3 P. F. Smith, 383. 38. After the lapse of thirty years it will be presumed that creditors of an assigned estate have been paid, and the unclaimed dividends awarded to them will be paid to the representatives of the assignor. Per Allison, J., aflSrmed by Supreme Court. Estate of Potter and Page, 4 P. F. Smith, 465. 39. If a citizen do not pay his taxes, and the collector thereby becomes liable, the collector's claim against the tax- payer is not barred by the statute until eight years after the tax is due, for dur- ing the first two years the collector can- not sue, he can only use his warrant to enforce collection. Wickemham v. jRus- sell, 1 P F. Smith, 11. 40. The question of the retroactive effect of a statute of limitations, although raised, not noticed in the opinion of the Court, and apparently conceded. Maul V. Rider, 1 P. F. Smith, 381, 385. 41. Use for eighteen years of a switch in a railroad track creates no license. Heyl V. R B., 1 P. F. Smith, 469. 4 2. An agreement "to settle for the above balance" will not take a case out of the statute. Weaver v. Weaver, 4 P. F. Smith, 152. 43. A shorter period than twenty years, aided by circumstances strengthening the presumption of payment, may be sub- mitted to the jury as grounds for presum- ing payment of a bond. Hughes v. Hughes, 4 P. F. Smith, 240. 44. That the creditor was in needy cir- cumstances is a fact which would strengthen the presumption, but giving mortgages does not prove the fact. The possession of a house and receipts of a salary by the obligor do not strengthen the presumption. Ibid. 45. If one cannot call for an account until after the expiration of a life-estate, the presumption from lapse of time will not begin until the expiration of the life- estate. Price^s Appeal, 4 P. F. Smith, 472. LIMITED PARTNER AND PART- NERSHIP. See Partnership III., 11, 12, 13, 18, 19, 20. LIQUIDATED DAMAGES. See Damages, 12. LIQUORS. Under act prohibiting sales near camp meetings only liquors can be seized. See Trespass, 14. LIS PENDENS. 1. Plea of lis pendens in another State no defence. Smith v. Lothrop, 8 Wr. 326. Wilson v. Bank, 9 Wr. 488. 2. One who takes a second mortgage pending a suit on the first mortgage is bound by the judgment thereon. Schnepfs Appeal, 11 Wr. 37. 3. A purchaser of the title of a party in ejectment after verdict takes subject to the verdict. Hill v. Oliphant, 5 Wr. 376. LOCAL FREIGHT. See CorporaKonslY., §§ 13, 20, 30, 88, 39. LUMBER. 1. Lumber is to be paid for by'inch measure unless otherwise provided for in the contract ; and this, although the archi- tect's memorandum referred to the quan- tity of superficial feet required. Per Geaham, p. J., affirmed. School v. Potter, 7 Wr. 134. LUNACY AND LUNATIC. See, generally. Imbecility ; and see Evi- dence II. MACHINERY. When not real estate. See Real Estate, 1, 2, 3, 4, 5. MAJORITY Of a corporation violating its laws are not the corporation. See Corporation YII.. 1, 4, 6, 7, 8, 9, 10, 13. MAL 183 MAN MALICE. Proof and disproof of, generally. See Evidence. Of public officers. Vide Negligence, 1. In malicious prosecution. See that title. MALICIOUS PROSECUTION. \. Nothing short of an acquittal will answer to sustain the action of malicious prosecution where the prosecution has progressed to a trial by a petit jury. Per Thompson, J. Kirkpatrick v. Kirk- patrick, 3 Wr. : 88. 2. An acquittal upon certain counts, a conviction upon others involving the same accusation, followed by an arrest of judg- ment and a discharge, are insufficient to sustain malicious prosecution. Ibid. 3. There should also be testimony to show the cause of the prosecution, and that there was no reason nor probable ground for it. Ibid. 4. Want of probable cause is not of itself malice; it is evidence of malice. Schofield V. Ferrers, 11 Wr. 194. 5. If a prosecution be instituted to ex- tort money or property, the law implies malice. Ibid. 6. Where the offence charged is not within criminal jurisdiction, (as breaking open the doors of an unoccupied school- house on the Sabbath for the purpose of preaching in it,) trespass, not malicious prosecution, lies. Kramer v. hott, 14 Wr. 495. 7. Case will lie, although no crime is charged in the information, if the prose- cutor desire a warrant to issue, procure a binding over, and prefer an indictment which is ignored. Stewart v. ThompHon, 1 P. F Smith, 158. Such a case distin- guished from Maker v. Ashmead, 6 Casey, 344, (where the defendant was discharged by the magistrate, nocrirae being charged,) and from Baird v. Householder, 8 Casey, 68, (where a warrant void on its face was quashed.) Ibid. 8. What amounts to probable cause is a question of law for the Court, but whether it has been proved is a fact for the jury. The officers reported to the de- fendant that suspicion of murder rested upon the plaintiff's family, that one of them had acknowledged his guilt, and a knife said to belong to the murdered per- son was found in their cabin. Graham, P. J., charged, " If you believe the facts detailed by the officers, as proved by them, were communicated to the defendant, and he acted in good faith under a belief of the guilt of the plaintiff, you ouglit to find for defendant." The jury found for the defendant. The judgment was af- firmed by the Supreme Court. Smith v. Ege, 2 P. F. Smith, 419. MANAGERS De facto can hold elections. See Quo warranto. MANDAMUS To enforce payment of municipal bonds. See, generally. Corporations VI. 1. A petition for a mandamus shotild refer to or set forth the law or ordinance imposing the duty. Smith v. Com-., 5 Wr. 835. 2. Where a relator avers that he was duly elected and qualified to an office, and the defendant denies this because se- curity has not been given as required, this raises a question of fact. Ibid. 3. Public officers ought to have their compensation fixed beforehand, and it ought not to be specially voted. Ibid. 4. Councilmen can be compelled to meet as required by law. Fraud in the organization of another chamber is not a defence. Lamb v. Lynd, 8 Wr. 336. 5. Mandamus lies to compel payment by a debtor township in a poor case. Sugarloaf V. Schuylkill Co., 8 Wr. 481. 6. Mandamus is designed to stimulate, not to restrain official activity, and will not lie to compel school directors to ex- onerate from a tax alleged to be illegal. Directors of Bedford v. Anderson, 9 Wr. 388. 7. Mandamus lies to compel build- ing of a new bridge. Howe v. Commis- sioners, II Wr. 361. And to compel school controllers to comply with an ordi- nance directing them to fix a scale of salaries. City y. Johnson, \i Wr. ;',^'i. 8. Mandamus will not lie to compel a mayor to execute a lease, although ap- proved by the proper officers, where in his opinion improper means have been used to obtain it, and it would be injuri- MAN 184 MAS ons to the city. Com. v. Henry, 13 Wr. 630. 9. Mandamus lies for the restoration of a member of a club expelled for strik- ing a blow in the club bouse. Per Wood- AVAED, C. J. Evans v. Philadelphia Club, 14 Wr. lOT. 10. The law of amotion and disfran- chisement discussed and authorities cited. Ibid. 11. If the Secretary of State refuse to irfark "filed" upon a legnl certificate of incorporation, the duty can be enforced by mandamus. Com. v. Atlantic and Great Western Railway Co., 3 P. F. Smith, 9. 12. Mandamus lies to the Secretary of State to compel the recording of a decree dissolving a corporation. Com. v. Slifer, 3 P. F. Smith, 11. 13. Mandamus will lie against a county treasurer to enforce payment of orders drawn in an orderly way, when there is money in the treasury applicable to thera. Per Thompson, J. Treasurer of Jeffer- son Go. V. Shannon, 1 P- F. Smith. 225. 14. It is error for a Court to refer an answer (filed to a suggestion for a man- damus) to an auditor, and upon his re- turn of the testimony to order a manda- mus. The proper course is to issue the alternative writ if the suggestion contain the substance of a case, and when an an- swer is filed it must be traversed or de- murred to. If after issue and trial the return* be adjudged insufficient, then a peremptory mandamus issues. Treas- urer of Jefferson Co. v. Shannon, 1 P. F. Smith, 224. 15. Orders drawn under an Act of As- sembly requiring that they shall be drawn by certain officers, and state the object for which drawn, must conform to the act or the treasurer may properly refuse pay- ment. Ibid. 16. Mandamus will not lie to compel a lessor to maintain a dam of which he has only leased the surplus water. Com. v. The Pa. R. R. Co., 1 P. F. Smith, 351. 17. The return to a mandamus to re- store to a corporation must distinctly set forth all the facts essential to conviction, both as to the cause and the mode of pro- ceeding. Society v. Com., 2 P. F. Smith, 125. 18. If a by-law require " sufficient evidence" for an expulsion, the return must contain those words ; " that he was duly tried," "according to the constitu- tion, &c.," are insufficient averments. Ibid. 19. Where a charter requires that the charge shall be in writing and signed by the board, the return should aver that, this was done. Per Agnew, J. Ibid. Quere — ,Whether a secular trial not concerning matters of conscience can lawfully be held on a Sunday ? Per Agnew, J. Ibid. 20. Mandamus will not lie to compel the sealing of a bill of exceptions, but a special writ lies. Conrow v. Schloss, 4 P. F. Smith, 28. 21. Mandamus will lie to the successors of a board to compel the levy of a tax to pay a balance of bounties. Morgan v. Com., 5 P. F. Smith, 456. MANSLAUGHTER. See Crimes, §§ 11, 12, 13, 25, 26, 28, 29, 33, 34, 37, 39. MANUFACTURING CORPORA- TIONS. Vide, generally, Corporations. MARITAL RIGHTS. Fraud on. See Husband and Wife VI., 1, 2. MARRIAGE. See, generally, Husband and Wife. MARRIED WOMEN. As to liability fur husband's devas- tavit. See Decedents^ Estates II., § 1. As to charge of Court upon measure of damages for loss of husband's life. See Errors and Appeals II. Fraud on husband's marital rights. See Husband and Wife VI., 1, 2. As to liability on contracts of sale, &c. Claims against their husbands. Liabil- ity in ejectment. Liability of property for husband's debts. Liability on mort- gages. See, generally, Husband and Wife. MARSHALLING ASSETS. Where partnership creditors. See Partnership. MASTER (In equity,) fees of Vide Equity IV., § 1. MAS 185 MEG MASTER AND SERVANT. See Negligence. Master not liable for servant's deceit. See Agent, § 4. Dismissal of servant before expiration of term. See Contracts I.. 3. 5. MECHANIC'S CLAIM. 1. Taking a note, not in satisfaction of the debt, payable before the expiration of the six months, apd receipting: therefor "in full for materials delivgred to the building," does not amount to an agree- ment to give time for the payment of the flccouiit, and does not discharge the build- ing. Shamv. Church, 3 Wr. 226. 2, A claim founded upon special con- tract need not set out the dates. Hahn's Appeal, 3 Wr. 409. 3 A mechanic's claim binds the estate of a lessor who takes from his tenant a stipulation to build a house, for while as between lessor and lessee this is an im- provement lease, as to material men it is a building contract. Leiby v. Wihon, 4 Wr. 63. 4. It is not a srood plea to a mechanic's lien that the defendant " holds no lands bound by the alleged Hen." Ihid. 5. A claim is not necessarily void be- cause it does not accurately describe the size of the building. If there be enough to identify it, to point it out with reason- able certainty, with certainty to a com- mon intent, the statutory requisition is sufficiently complied with. Per Strong, J. Kennedy v. Houae, 5 Wr. 39. fi. Whether the property can be identi- fied by the claim must ordinarily be re- ferred to the jury. Ibid. I. Under the Act of February IT, 1858, (extending the lien law to improvements by tenants in Luzerne and Schuylkill,) the claim need not set forth that defendant's interest was a leasehold, nor what his tenure was. Thomanv. Smith, 6 TFr. 68. 8. Nor is it an objection to such a lien that the defendant's interest in the land was merely a chattel interest. Ibid. 9. Nor can the law be confined to coal- lense estates. Ibid. 10. An ice house erected not as an out- house, but as an independent structure, is an improvement within that act, and is the subject of a lien. Ihid. II. A building erected by a corpora- tion is liable to a mechanic's lien, although the charter forbid the trustees from en- cumbering the estate or involving the corporation in any debt which they have not the means of paying. University v. Reber, 7 IIV. 305. 12. A building erected under an im- provement lease is subject to a mechanic's claim. Hopper V. Ghilds, 1 llV. 310. 13. A new wing is a building within the lien law. The claim oug-ht not to aver that the work was done to the whole house, but when established, the lien ex- tends to the whole. That one Wiill of the wing is old makes no difference. Harman v. Gummim^, T Wr. 322. 14. Repairs and improvements of parts of an old house are not subject to a lien. Ibid. 15. If defendant read the claim to the jury, he does not admit it. Ibid. 16. When the claimant is a sub-con- tractor he must set out the natui'e and kind of work done, or the kind and amount of materials furnished. Rusaell V. Bell, 8 Wr. ■il. n. Whether a claim can be amended after the six months, doubted. Ibid. 18. The omission of the prothonotary to index a claim in the claim docket gives the defendant no defence thereto. Irish V. Harvey, 8 Wr. 76. 19. Where a!i owner has without fraud waived a defective performance of an en- tire contract, the lien is good as against the other creditors so far as the contract; was perfirmed. Stewart v. McQuaide, 12 Wr. 191. 20. If a lumping settlement leave a general balance due by two liens, it is for the jury to determine which property is to pay it, or if both, how it is to be divided. Ibid., 12 Wr. 195. 21. Rent cannot be defalked from a mechanic's claim though reserved ir. the same instrument from which the lien springs, if the covenants are distinct. llc'vuaide v. Stewart, 12 Wr. 198. 22. If rent is claimed, the mechanic can show that there is a book account un- secured, to which equity would apply the rent in preference to the lien. Ibid. 23. Although a mechanic's lien upon an equitable estate attaches to the subse- quently acquired legal estate, yet it does nut take precedence of a vendor's claim for purchase mone}' secured by a judg- ment entered on the day of his deed. MEN 186 MOR Such a judgment has priority over a claim for worli done before the deed. Stoner v. Neff, 14 Wr. 258. 24. A claim cannot be filed against a temporary railroad in a mine. The Act of February 17, 1858, should be strictly construed. Haterley's Appeal, 4 P. F. Smith, 192. 25. Whether repairs amount to a new construction is frequently a mixed ques- tion of law and fact. On distribution it can be properly decided by an auditor. Yoke's Appeal, b P. F. Smith, l'21. MENTAL UNSOUNDNESS. See Imbecility. MERGER. See Extinguishment, §§ 1, 2, 3, 4. Of ground-rent. See Ground-Bents, §§ 3, 6, 11, &c. When ground-rent is and is not merged in deed. See Deed, § 3, &c. MESNE PROFITS. Only six years can be recovered. See I/im,itations I., § 22. 1. One entitled to mesne profits can claim for timber cut at a mill put up by defendant. Walker v. Humbert, 5 P. F. Smith, 407. 2. Improvements may be defalked against mesne profits. Walker v. Hum- bert, 5 P. F. Smith, 407. MILITARY SERVICES. Contracts with substitutes. See Contracts VI., 11, 16, 17, IS, 19, 20. MILL. Injury to mill. See Water. MILL-DAM. See, generally. Dam. MIND. Mental unsoundness. See, generally, Imbecility. MINERALS AND MINES. See, generally, Land IX. MORTGAGES ON LEASEHOLDS. See Mortgages. Repaying improvement loan is not rent. See Landlord and Tenant. MINOR. Sale of land. See, generally, Decedents' Hstates IV., V. MINORITY Adhering to church are the corpora- tion. See, generally, Corporations VII., 4, 6, 7, 8, 9, 10, 13. MISJOINDER Of defendant See Practice II. MISNOMER Of name of defendant in judgment. See, generally, Judgment I. MISREPRESENTATION Of insurer. See Insurance III. A defendant is not liable in deceit, un- less his misrepresentation was intentional. See Deceit, § 1. MISTAKE Of arbitrators. See Arbitration, §§ 4, 5, 6, 8, 9, 11, 17. Cancelling and relieving for mistake. See Equity I. Equity will relieve from a bond exe- cuted by persons erroneously supposing they were trustees. See Equity I., 54. Mistake of law and fact as to one's lia- bility to serve in army will not relieve from contract to pay a substitute who ac- tually serves. feee Contract VI., 11. Mistake in marking settled, or in en- dorsing payment, do not bar a recovery. Vide Mortgage V., 2, &c. In adding a defendant. See Practice II. MORTGAGE AND MORTGAGOR. As to building association mortgages. See Building Associations. MOR 187 MOE Mortsyages of franchises by corporation. See, generally, Corporation IV. As to usurious mortgages, (other than building association mortgages noted above.) See Debtor and Creditor II. As to mortgages by and to married women. See Husband and Wife III. As to contribution to pay mortgage. See Contribution. Extension of mortgage bonds of rail- roads does not extend the right to convert into stock. See Corporations. As to mortgage of ship. See Ship. MORTGAGE. I. As to mortgages of chattels, leases, machinery, crops, expectancies, railroad franchises, and mort- gages to secure future discounts. II. As to papers not strictly in the form of mortgages. ,111. As to mortgages falling due for non-payment of interest or in- stalment — when mortgagee bene- fited by perfection of title. IV. As to unrecorded mortgfiges. V. As to proceedings on mortgages — defences thereto. VI. As to effect of sale of mortgaged property under judgments and Orphans' Court sales — what the sales discharge — distribution — rights of purchaser of mort- gaged premises. VII. Effect of stay laws upon a mort- gage. VIII. Husband's power over his wife's mortgage — mortgages by mar- ried women. I. As TO Mortgages op chattels, leases, MACHINERY, CROPS, EXPECTANCIES, RAIL- ROAD FRANCHISES, AND MORTGAGES TO SECURE FUTURE DISCOUNTS. 1. A chattel mortgage without posses- sion in the mortgagee, is void as to credit- ors. Megee v. Beirne, 3 Wr. 60. Kater T. Steinrack, 4 WV. 501. 2. A mortgage of an expectancy is impossible at law, but may be enforced in equity as an executory agreement, if it be sustained by a sufficient consideration. Bayler v. Com., 4 Wr. 37 3. A mortgage to secure notes "dis- counted or to be discounted" without any agreement binding the mortgagee to make discounts, will not be entitled to priority over a subsequent judgment, ex- cept to the amount actually discounted at the date of the entry of the judgment. Appeal of the Bank of Commerce, 8 Wr. 4?3. - 4. If the notes discounted after the entry of the judgment were renewals in regular order of notes existing before the judgment, the mortgage would take pri- ority. Ibid. 5. But the intention of the parties is not evidence where the rights of a third person have intervened. Ibid. Judg- ments to secure future advances. See Debtor and Creditor VIII 6. A mortgage of a machine shop in- cludes a lathe and all the fixed elements which give it its peculiar character. The mortgagee may follow it as personalty in the hands of a purchaser from the mortgagor who takes the risk of his ven- dor's title. Hoskin v. Woodward, 9 Wr. 42. 7. A mortgagor may sell lumber, grain, &c., from the land mortgaged until stopped by ejectment or estrepement, but he cannot sell a factory bj' piecemeal. Ibid. 8. A mortgage of a crop of grain sus- tained against a subsequent _/t. /a. Fry V. Miller, 9 Wr. 441. 9. A sheriff's sale under subsequent judgment will not destroy the lien of a leasehold mortgage because of a prior arrear of rent. -Bank v. Heilner, 11 Wr. 452. 10. A mortgage by a company of its railroad with its " franchises and appur- tenances" will not cover the lots not de- scribed nor named therein, unless they have been subjected to the railroad fran- chise, or become an appurtenance. And this is a question of fact for a jury. Rail- road V. Livermore, 1 1 Wr. 46.5. 11. Purchasing lots for the purpose of establishing a basin, and taking steps to- wards its construction, does not ipso facto incorporate them with the railroad fran- chise. Ibid. 12. New mortgage bonds and new stock may be issued so long as tlie covenanted security of the old loanholders be not im- MOE 188 MOR paired. Ashton v. Lehigh Nav. Co., 13 Wr. 261. 13. Thonprh a mortp;af;e provide for entry, yet the holder may proceed at law or in equity under a statute parsed after the date of the mortgage. McJElrath v, R. R. Co., 5 P. F. Smith, 189. A Court of equity may order a sale of part of a road out of the State. Ibid. 11. As TO PAPERS NOT STEIOTLY IN FORM OP Mortgages. 1. To prove an instrument defeasible, though in form absolute, it is not necessary that there should be direct evidence of an expressed agreement to hold it as a se- curity. Per Strong, J. Rinesv. Baird, 5 Wr. 263. 2. To convert an absolute deed into a mortgage, the proofs must be clear and convincing. Ibid. 3. Where there ia no present consider- ation, the grantor is largely in debt to the grantee, which still remains after the deed, and no part is paid by the deed nor securities delivered up, these circum- stances are cogent evidence that the trans- action is a mortgage. Ibid. 4 Importance is also to be attached to the retention of possession of the laud by the grantor, and to the acceptance by the grantee of a release from the grantor of all claims on the land. Ibid. .5. The fiict that a dee.d absolute on its face is only a mortgage will not prevent a I'ecovery under it, though it may affect the nature of the recovery. Ibid. 6. An agreement of defeasance is es- sential to every mortgage. It may be a j)art of the mortgage, a separate writing, or in parol. Ins. Go. v. Audin, QWr. 266. 7. An agreement to convey land to a third party will not make the transaction a mortgage. Ibid. 8. A conveyance of property to secure a present debt and future advances is a mortgage ; and the mortgagee cannot be charged as a trustee by a clause of letter of attorney, and an agreement that if he pay encumbrances he may have them luiirked to his use as additional security. If he use the power to collect rents he is accountable as mortgagee in possession. When he does not use it he is not account- able, Myers'' Appeal, 6 Wr. 518. 9. An absolute deed accompanied by a defeasance reciting that the intention was to secure payment of money, is a mort- gage. Directors v. Royer, 1 Wr. 146. Green v. Tyler, 3 Wr. 361. 10. A power of sale to the mo'^tgagee does not make it less a mortgage. Ibid. 11. A certificate, under seal, that- tvco deeds had been deposited as collateral for a note, and promising to make deeds of the property, treated as a mortgage. Luch's Appeal, 8 Wr. 519. 12. A conveyance of land merely as se- curity for' a loan, with a separate defeas- ance, is a mortgage between the parties, and as to everybody with notice. Guthrie . V. Kahl, 10 Wr. 3.31. 13. A deposit of title deeds as security for a debt, with a power of attorney in blank authorizing a sale, is a mortgage, and if the defeasance is unrecorded it will not avail against a subsequent mortgagee wilhout notice. Edwards v. Trumbull, 14 Wr. 509. 14. If a defeasance converting an ab- solute deed into a mortgage is delivered up, and the ^iiortgagor, by agreement founded on a valuable consideration, agree to release the equity of redemption, the original deed passes an absolute estate, and there is no interest in the mortgagor to he reached by an attachment. Careron V. llutual Go., 2 P. F. Smith, 28T. III. As TO Mortgages falling due foe NON-PAYMENT OF INTEREST OR INSTAL- MENT — When Mortgagee be.vefited BY PERFECTION OP TITLE. 1. A stipulation that in default for sis months in paying the interest the princi- pal " may be collected as if fully due," renders the mortgage immediately suable upon the expiration of the six months de- fault, without waiting twelve months. And this, although the twelve months limitation is not waived and the mortgage is by a feme covert. Glass v. Warwick, 4 Wr. 140. 2. If a vendee mortgage his title, the perfection of the title by the vendor enures to the benefit of the mortgagee. Clark V. llartiu, 13 Wr. 299. 3. A mortgagee can recover the whole mortgage debt upon default in paying a single instalment, where the stipulation was that "thereupon it shall be lawful to sue out forthwith a scire facias and pro- ceed at once for the whole amount at such time remaining unpaid." Robinson v. Loomis, I P. F Smith, 78. 4. A mortgage covering property not MOE 189 MOE tlien owned'by the mortj.'agor is no lien thereon, and if the mortgagor afterwards acquire it, and a judgment creditor sell it, the title will pass to the purchaser free of the mortgage. Calder v. Chapman, 2 P. F. Smith, 359. 5. A provision in a mortgage given to secure bonds that the whole amount of the b'jnds should fall due, if default was made in paying the coupons, does not bar a suit on the bonds. B. B. Go. v. Johnaon, i P. F. Smith, 127. IV. As TO UNRECORDED MORTGAGES. 1. An unrecorded mortgage is inopera- tive as against a subsequent purchaser witliout notice. Per STaoNG, J. Bhines V. Baird, 5 Wr. 263. 2. If a mortgage is not recorded in the mortgage book, it is an unrecorded mort- gage. Luch's Appeal, 8 Wr. 619. 3. An unrecorded mortgage is good as a sale against a creditor who has no- tice thereof before his debt is contracted, and if the mortgage is recorded before sheriff's sale, though after his judgment, it is entitled to priority in the distribution. Britton's Appeal, 9 Wr. 172. 4. A grantee in a deed who has notice of an unrecorded mortgage takes the land subject to the encumbrance. Murphy v. Nathans, 10 Wr. 508. 5. He cannot defend upon the ground that the land was bought for him by his parent, and that his parent was ignorant of the mortgage. Ibid. 6. A bona fide purchaser will not be affected by vague rumors. Ibid. 7. Notice to a husband will not affect the wife when she purchases for value, but if he act as her agent in the matter, notice to him is notice to her. Ibid. 8. Actual notice supplies defective entry or index. Smith's Appeal, 1 1 Wr. 128. Speer v. Evans, 11 Wr. 141. 9. But notice to an attorney is not suffi- cient. Sviith's Appeal, 11 Wr. 128. 10. An unrecorded mortgage will avail against the mortgagor, his alienee, or mortgagee, with notice or a voluntary assignee for creditors, and a mortgage for purchase money is good against a judg- ment creditor with notice .before his debt was contracted. Nice^s Appeal, 4 P. F. Smith, 200. 11. But it will not avail as a preference in the distribution of the estate of a de- cedent. Ibid. V. As TO PROCEEDINGS ON MORTGAGES — DEFENCiCS THERETO. 1. Ratification will bind a mortgagor, although there has been a forgery. Gar- rett V. Gonter, 6 Wr. 143. 2. If an attorney by mistake mark " settled" on the record of a sci. fa. sur mortgage, this is no defence to a pur- chaser at a sheriff's sale under an execu- tion against a defendant whose deed re- cited that the land was subject to the mortgage. Sauerman v. Binder, 7 Wr. 209. 3. A mortgagor can defend for failure of consideration, but if he take a perfect title free from dower, and in suit for dower fail to set up his defence, he cannot, when sued on the mortgage, defend because of the dower. Thomas v. Harris, 7 Wr. 231. 4. If a mortgage is given by a stock- holder to an insurance company to secure losses to be 'assessed pro rata with other mortgages, it cannot be transferred to another company for stock without con- sent of the mortgagor, and if so trans- ferred, no recoveiy can be had thereon. Mc Curdy v. Meyers, 8 Tl.V. 535. 5. If a mortgagee lake possession and compel a trespasser to settle with him, the owner cannot after reassignment sue the trespasser. The owner must look to the mortgagee. Guthrie v. Kahl, 10 Wr. 331. 6. A mortgagee can recover in eject- ment if the money is due Unit 7. If a mortgag-t' >;ne nm ttii- mort- gage, sell the land, and buy it in, he has the right to recover, if at all, absolutely, and it is not the case for a conditional ver- dict, but the defendant cannot complain of a condition benefiting tiiin. Marp < , V. Nathans, 10 Wr. 508. 8. Confession of judgment by an e.Kec- utortoa-fci ta. sur mortgage binds the terre tenants, althouarh made before the expiration of the year after the debt is due, if they suffer two years to elapse without writ of error. Per Pearson, I', J., affirmed by Supreme Court. Brooks v. Smyser, 12 Wr. 86. 9. A terre tenant is concluded by a verdict and judgment to which he is a party. So, too, one who takes a second mortgage pending the suit on the first mortgage, is bound by the judgment. Sdinepfs Appeal, 11 Wr. 37. MOR 190 MOR 10. Satisfaction of a mortgage does not discharge the debt unless so intended. Per Hampton, P. J., afBrmedby Supreme Court. Heath r. Page, 12 Wr. 130. 11. A mortgage is only a security, the assignee may sue in'his own name; but if he gives no notice of the assignment, a payment to the mortgagee discharges the mortgage. Horstman v. Gerker, 13 Wr. 282. A mortgage "payable in five years " is payable at any time within five years. Ibid. 12. If a vendee mortgage his title, the perfection of the title by the vendor enures to the benefit of the mortgagee. Clark V. Martin, 1.3 Wr. 299. 13. A judgment or decree against the vendee that affects the title will bind the mortgagee. Ibid. 14. A mortgagee can recover five per cent, collection fees under a clause au- thorizing that amount to be added. It is not a pen alt V. Bobinson v. Loomis, 1 P. F. Smith,'lS. 15. Less than actual duress w^ill avoid an acknowledgment of a conveyance or mortgage by-a wife, provided it be known to the party claiming or where he ought to have inquired for defences as in taking an assignment of a mortgage. Per Thompson, J. McGandless v. Engle, 1 P. F. SmitJi, 31 i. 16. It is no defence to a mortgage that the claim has been attached. Brown v. Scott, 1 P. F. Smith, 357. . 17. The pendency of an attachment execution is no bar to an action against the garnishee at the suit of the legal holder of the debt attached. Per Strong, J. Ibid. 362. 18. If a mortgagor give notes for the debt, which are passed to third parties and are outstanding, the right to sue on the mortgage may be suspended, but this is only a defence for the mortgagor himself, and it cannot be set up by a terre tenant who purchased the land subject to the mortgage. Ibid. 19. If a mortgagor give and a mort- gagee receive negotiable notes for the full amount of the mortgage, for the purpose of securing the proceeds of the mortgage from the creditors of the mortgagee, such an arrangement would not amount to actual payment of the mortgage unless the notes were received in payment. Ibid. 36o. 20. Terre tenants could set up no such defence, for they are not creditors, and creditors only can undo a fraud. This defence, if successful, would make the fraud effectual. Ibid. 365. 21. The answers of a mortgagor to in- terrogatories filed in an attachment in execution to attach the mortgage debt, are not evidence against the mortgagee in his suit to recover the amount due on the mortgage.- Ibid. 366. 22. The fact that a mortgagee leased the property mortgaged from one who has bought it subject to the mortgage, will not permit the mortgagor to offset the rent in an action on the mortgage. If the lessor were a party, the rent might, to avoid circuity of action, be oifsetted, if so pleaded. Scott v. Fritz, 1 P. F. Smith, 418. 23. When a mortgagee enters under a lease, it is no extinguishment of the mort- gage. Ibid. 24. A transfer to administrators of a mortgage, accompanied by their dece- dent's guarantee of the mortgage, kills the guarantee, being held in the same right. Hence, a subsequent assignment of the mortgage by the administrators does not revive the guarantee. Fluck v. Hager, 1 P. F. Smith, 459. 25. A mortgagor who gives the usual certificate of no offset, defence, &c., at the time his mortgage is assigned, cannot set up as defence that be is only bound to pay what the assignee of the mortgagee actually paid for it. Scott v. Sadler, 2 P. F. Smith, 211. 26. A provision in a mortgage given to secure bonds that the whole amount of the bonds should fall due if default was made in paying the coupons, does not bar a suit on the bonds. B. B. Go. v. John- son, 4 P. F. Smith, 127. 27. The clause in a mortgage, "with- out any deduction for taxes, &c.," does not bind the mortgagor to pa)' taxes on the bonds secured by the mortgage. It means without any deduction for taxes on the land. Cloplon v. B. B. Co., 4 P. F. Smith, 356. 28. It is no defence to a mortgage that the mortgagor was induced to sign it by the false representations of one uncon- nected witii the plaintiff. Stoddart v. Bobinson, 4 P. F. Smith, 386. MOR 191 MOT VI. As TO EFFECT OF SALE OF MOBTGAGED PROPERTY .UNDER JUDGMENTS AND Or- PHANh' Court SALES — What the sales DISCHARGE — DlSTRIBUTION^RlGHTS OF PURCHASER OF MORTGAGED PREMISES. 1. A judgment on a bond secured by a mortgajre is not payable out of the pro- ceeds of a sheriff's sale of the mortgaged premises under a junior judgment. If the sheriff erroneously pay it, he can be compelled to pay the holder of the second judgment, and when the plaintiff in the first judgment refunds to the sheriff he can collect his mortgage although he endorsed the bond paid. Cross v. Stahlman, 7 Wr. 129. 2. A purchaser at sheriff's sales of land subject to a mortgage, cannot compel an application of collateral security in reduc- tion of the mortgage. Spring Garden Association v. Tradesman's Loan Asso- ciation, 10 Wr. 49.3. 3. If a mortgagee sue out the mort- gage, pell the land and buy it in, he has the right to recover, if at all, absolutely, and it is not the ease for a conditional verdict, but the defendant cannot complain of a condition benefiting him. 3Iurphy Y. Nathans, 10 Wr. 508. 4. A sheriff's sale under subsequent judgment will not destroy the lien of a leasehold mortgage because of a prior ar- rearofrent. Bank y. Heilner, 11 Wr. ib^ 5. A sheriff's sale under one of two mortgages, both given for purchase moneys upon the same transaction^divesls the lien of both ; but if the mortgages, although purchase money mortgages upon the same property and by the same mort- gagor, are yet given upon different trans- actions, a sale under the second v?ill not divest the lien of the first. Dungan v. American Life Ins. Co., 2 P. F. Smith, 253. 6. A mortgage is divested by an Or- phans' Court sale for payment of debts, though not given by the decedent. Cad- mus V. Jackson, 2 P. F. Smith, 295. 1. A mortgage covering property not then owned by the mortgagor is no lien thereon, and if the mortgagor afterwards acquire it and a judgment creditor sell it, the title will pass to the purchaser free of the mortgage. Galder v. Chapman, 2 P. F. Smith, 359. 8. A mortgage by a feme covert is void, but a judgment on two nihils and a sale thereund'er, passes title to the sheriff's vendee. Hartman v. Ogborn, 4 P. F. Smith, 120. VII. Effect of stay laws on a Mort- gage. 1, A prior mortgage may be affected bv a stay law. Breitenhach v. Bush, 8 iVr. 313. Coxe v. Martin, Ibid. 322. 2. A mortgagor mustered into service is entitled to a stay under the Act of April 18, 1861, (giving stay to sol- diers,) although he may have sold the land and although the mortgage provide that a sci. fa. may issue forthwith, if there be default in -payment of the in- terest. Drexel v. Miller, 13 Wr. 246. VIII. Husband's power over his wife's Mortgage — Mortgages by married women. 1. A husband has no power to satisfy a mortgage given to him and his wife for her separate estate. McKinny v. Ham- ilton, 1 P. F. Smith, 63. 2. Payment to the husband is no dis- charge in such a ease. Ibid. 3. A purchaser of a mortgage executed by a married woman takes it subject to any defence of coercion and undue influ- ence. It is his duty to inquire, and fail- ing to do so, betakes the risk of such a defence as well as any other. A different rule applies to conveyances. A mortgage is but a "security for money. McCand- less V. Engle, 1 P. F. Smith, 314. 4. In cases of fraud, imposition or duress, parol evidence has been freely ad- mitted to overthrow the certificate of ac- knowledgment. Ibid. 313. 5. It is enough if she did it under moral constraint. Ibid. 6. A mortgage by a feme covert is void, but a judgment on two nihils and a sale thereunder passes title to the sheriff's vendee. Hartman v. Ogborn, 4 P. F. Smith, 120. MOTHER. As to interest in estate of her illegiti- mate child. See Bastard, §§ 1, 2. As to the interest of her illegitimate child in her estate. See Bastard, § 3. Cannot recover for injury to her child MUN 192 MUN unless death result. Railway v. Stutter, 4 P. F. Smith, 375. R. R. v. Bantom, Ibid. 495. MUNICIPAL BONDS. Purchaser of, with notice, takes them subject to equities. See Bonds, § 3. Power to issue, liability on, &c. See, generally, Corporations VI. Can bo attached. See Attachment, § 28. MUNICIPAL CLAIMS. As to constitutionality of laws in refer- ence to municipal claims. See Constitutional Law. 1. A municipal claim of the city of Piitsburgh, filed under the Act of April 18, lh5T, (relating to that city,) cannot claim priority over a mortgage recorded belore the work was done. Appeal of the City of Piitsburgh, 4 Wr. 455. 2 Municipal claims are discharged by a Judicial sale which realizes enough to pay and satisfy them. Allegheny City^s Appeal, 5 Wr. 60. 3. A private plan is not evidence agiiinst the dedication of a street. Bar- lingtonv. Com., 5 Wr. 63. 4. The omission to open a street throughout of the proper width, and to leave the cartways the proper width, is no defence to a municipal claim for paving. Ibid. 5. Where there is but one newspaper published in the city, notice advertised in it and a personal notice to one of two tenants in common, is a sufficient compli- ance with a law requiring notice of open- ing streets^, &c., to be published in two paper-. Darlington v. Com., 5 Wr. 68. 6. If a city furnish the paving contract- or with dirt costing the city nothing, under an agreement that the contractor is t ) allow the city ata certain rate therefor, the balance is all that the city can assess as costs and expenses. Ibid. 1. Under an ordinance authorizing the councils of a city to assess the cost of sewers upon property owners, the action of the councils is conclusive, and the ques- tion of necessity and benefit to the property cannot be reviewed on the trial of the claim. Com. v. Woods, 8 Wr. 118. 8. Where an act authorizes grading and paving, and the expenses to be cul- lected " by an equal assessment on the feet front," a lot opposite public property is bound to pay for the whole width of the street paved, and not to the centre only. McGonigle V. Allegheny, 8 Wr. 118. 9. Laws authorizing assessments for paving and for imposing damages sus- tained by grading a lot upon owner of lot benefited, are constitutional. City v. Woods, 8 Wr. 113. 3Iagee v. Com., 10 Wr. 358. Wray v. Mayor, 10 Wr. 365. 10. Omission by a city solicitor to file an assessment in the time prescribed by ordinance does not vitiate the lien. Per Williams, J., affirmed by Supreme Court. Magee v. Com., 10 Wr. 358. 11. Issuing a sci. fa. before last in- stalment matures, does not render it void. Ibid. 12. The fact that the city paid for the paving more than six years before the law was passed authorizing its collection, is no defence. Ibid. 13. The fact that the city paid for the paving out of moneys collected by general taxation, and that the property had already paid a tax assessed for that purpose, is no defence. Ihid. 14. A law is constitutional which assesses a tax by the feet and not by the value of the lot. Per Williams, J., affirmed by Supreme Court. Magee v Com., 10 Wr. 358 ; and Wray v. Pittsburgh, 10 Wr. 365. 15. It is no defence that the lot liened has been taxed as much as other lots far luore valuable. Per Williams, J., affirmed by Supreme Court. Magee v. Com., 10 Wr. 358. 16. Damages sustained by grading can be assessed upon lots benefited thereby. Such legislation is constitutional. Per Williams, J., affirmed by Supreme Court. Wray v. Pittsburgh, 10 Wr. 365. 17. If appraised as directed by law, the defendant is not entitled to "jury trial." Ibid. A claiiu in such a case can be tiled in the name of the city to the use of the party injured. Ibid. 18. Under plea of non-assumpsit and payment to a municipal claim, (without notice of special matter,) the defendant cannot prove by the chief commissioner of highways that he gave no authority to pave the street. City v. Burgin, 14 Wr. 539. 19. Bat if such evidence is admitted, ' MUN 193 NEG the plaintiff should be allowed to prove that he was employed by another chief commissioner, who reported the employ- ment to his successor, who approved of the act. Ibid. 20. Evidence for the plaintiff in such a claim is admissible ^ to show that the de- fendant waived his right to notice and that he told the workmen it was all right. lUd. 21. The owner of a lot on a street which exists only on a plan, and which has not been opened by paying or securing dam- ages, is not liable for the expense of a culvert. Goxe v. City, 11 Wr. 9. MUNICIPAL CORPORATIONS. See, generally. Corporations. Bill in equity will lie against a body illegally organized as councils. See Equity I., §§ 44, 45, 46, 47. But not to restrain an anticipated in- trusion. See Equity L, §§ 9, 10. Officers of, cannot advertise in more papers than authorized by law. See Philadelphia, 5. MUNICIPAL SUBSCRIPTIONS. See, generally, Coi'porations. MURDER. See Crimes,%^ 7,11,12,14,25,26,28,29, oU^31, 32, 33, 34, 36, 37, 38, 39. NAME. Effect of mistake on judgment. See, generally. Judgment I. Omission to index Mechanic'fi Claim. See Mechanic's Claim, § 18. Court may strike off a defendant. See Practice. NARR. See Pleading. NECESSARIES. See Infant, §§ 1, 2 ; Husband and Wife. NEGLIGENCE. Charges as to negligence. See Errors and Appeals IV., 3, 4, 5, 17, 18, 19, 20, 21, 25, 26, 27, 30, 38, 39, 42, 49, 50. In use of spark-catchers, and negligence generally of railroad companies. See Bailroads. When a city is or is not liable for negli- gence of its officials or contractors. See, generally. Corporations II. Innkeepers' negligence, selling liquor to inebriate. See Innkeeper, §§ 1, 2, 3. Of injuries to mines, streams, &c., from negligence, &c. See, generally. Land IX. and X. 1. Public officers are not answerable in damages for doing a public act with in- tent to injure a plaintiff, as, e. g., for building a causeway in a stream, instead of a bridge over it. They are only liable for malicious design to do injury, or such recklessness as is equivalent to malice. Per Strong, J. Yealy v. Fink, 7 Wr. 212. Nor are school directors liable for discharging ateacherunless express malice is proved. Burton v. Fulton, 13 TFn 151. 2. Where a defendant blocks up a lock, thereby holding plaintiff's boats exposed to a current, he is liable for their loss by a freshet, if the loss could have been fore- seen or guarded against by ordinary pru- dence. Scott V. Hunter, 10 Wr. 192. The cases as to causa proxima and causa remota collected by Strong, J. Ibid. 3. The owner of a boat who moors her in an unsafe place, where she is likely, in case of sinking, to produce injury, is liable for damages to another boat caused by her sinking. McGrew v. Stone, 3 P. F. Smith, 436. 4. The employer is not liable for in- juries to an employee from the ordinary risks of the business, nor from the negli- gence of another employee in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employee. Caldwell v. Brown, 3 P. F. Smith, 45 :i. 5. If the hands of a flatboat are under the orders of a tug having it in tow, and they do not obey the directions given to them, and thus contribute to a loss of the flatboat, the owner thereof cannot recover, even though defendants did not exercise proper care. Hays v. Paul, 1 P. F. Smith, 134. 6. But if sufficient orders were not 13 NEG 194 NOT given or not given in time, negligence may be imputed to the defendant in that as well as in any other respect. Per Mellon, J., afiSrraed by Supreme Court. Ibid. I. When the character of a boat apply- ing to be towed is such that it cannot be towed safely, and this cannot be discerned by ordinary care or is concealed, no lia- bility attaches to the tow for a loss pro- duced by this cause. But if its character is visible to all, it would be negligence in the captain of the tow-boat to undertake to tow a flat if too heavily laden or con- taining too much water. Per Mellon, J., affirmed by Supreme Court. Ibid. 8. If a judge charge that a defendant's care must be measured by other prudent and reasonable men, it is not error to add, " we must compare his conduct with what we may conceive careful men would have done." Ibid. 9. A party employed in any position of trust is held to the same care that he would exercise over his own property. Per Mellon, J., aiBrmed. Ibid. 10. Carriers cannot discharge them- selves from liability for their negligence by an endorsement on the ticket that they shall not be responsible. Penna. R. R. Go. V. Henderson, 1 P. F. Smith, 315. II. Such a release is no excuse for negligence. Per Read, J. Ibid. 331. Great doubt expressed as to the distinc- tions of slight, ordinary, and gross negli- gence. Per Read, J. Ibid. 326. 12. It is negligence in the occupant of an upper story to allow a visitor to leave a hydrant open whereby the occupant of a lower story is damnified. Killion v. Power, 1 P. F. Smith, 429. 13. An owner is not responsible in damages for the death of an employee of the contractor occasioned by the fall of one of the beams, although the written contract stipulated that the work was to be "in accordance with the plans, specifi- cations, and instructions furnished by the defendants or such persons as they may appoint." Hunt v. R. R. Go., 1 P. F. Smith, 415. 14. An employer is not answerable for an injury to a servant occasioned by the negligence of a fellow-servant, except where the employer has been negligent in employing an unskilful servant, know- ing him to be such, or that he might have known to be such by inquiry. Ibid. 15 If an accident arise by means of unsuitable or insufficient materials, if there was negligence in furnishing them, and the injured party is entirely blameless, the master or principal may be answer- able. Per Thompson, J. Ibid. 16. If there is no default or negligence in employing a contractor, even if the accident occur through his negligence, the owner is not answerable. Ibid. 1*7. A plaintiff cannot recover whose negligence contributes to the accident. Ibid. One who employs a contractor does not become a guarantor to all the employees of the contractor for his skill and care in performing the work. Per Agnew, J. Ibid. 18. One who contributes . by negli- , gence (as omission to fence his land) to the wrong done, cannot recover. Oregg V. Gregg, 5 P. F. Smith, 227. NEWSPAPER Notices must be in English. See Roads, 19. NEW TRIAL. See Practice. NON-JOINDER Of use plaintiff no defence. R. R. Go. V. Wilcox, 12 Wr. 161. NON-PERFORMANCE OF CON- TRACT. Damages for. See, generally, Gontract X. NON-RESIDENTS. Property of non-residents taxable. Malt- by V. R. R.,% P.F. Smith, 140. NOTARY. Competent witness. See Evidence III., 14. NOTE. Promissory notes, endorser, &c. See, generally, Bills of Exchange and Promissory Notes. NOTICE. Notice as to endorser. See Bills of Exchange and Promissory Notes I. NOT 195 OFF Notice as to bond. See Bond, § 8. Notice in ejectment. See, generally, Ejectment. As to notice under commissions. See, generally, Evidence I. As to notice claiming exemption. See, generally, Execution III. As to notices to insurance companies. See, generally. Insurance II. As to notice of judgment. See, generally. Judgment. As to notice from landlord. See, generally. Landlord and Tenant. As to notice of mortgage. See, generally. Mortgage. As to averment of notice in pleading. See Pleading. Notice need not be given claiming vs^ay- going crop. See Sheriff ''s Sale. Notices must be in English news- papers. See Boads, 19. ' Notice by a surety to proceed. See Surety, 8, 9. As to notice to a purchaser. See Vendor and Vendee. Notice of trust. See Trusts. 1. Notice to one tenant in common of opening a street is sufficient to bind both. Darlington r. Com., 5 Wr. 68. 2. Notice for three weeks means three full weeks, not notice for part of three weeks. In re North Whitehall Town- ship, 11 Wr. 156. 3. The contents of a notice served on a party should be proved by a duplicate original. Morrow v. Com., 12 Wr. 305. 4. Where a rule of Court requires service of a notice on a party, service on his attorney is insufficient. Fleming v. Beck, 1 2 Wr. 309. 5. Notice to owners of seated land that it has been sold for taxes need not be in writing, but it would be well to have it so. Broughton v. Journeay, 1 P. F. Smith, 85. 6. Whether written or oral, it should be distinct and full, and evidence of its service should be preserved in treasurer's office. Ibid. Y. Should the ownerwhileinvestigating discover the sale, this would not be tlie formal and official notice the law requires. Ibid. 8. From analogy, the tender to redeem seated lands should be made to the treasurer, but if the tender is made to the purchaser of the tax title he cannot com- plain. Ibid. 9. A bona fide purchaser of land with- out notice is excepted from the rule which allows a wife's acknowledgment to be im- peached for fraud or constraint. Hall v. Patterson, 1 P. F. Smith, 290. But a purchaser of a mortgage is not pro- tected unless he inquires. McCojidless V. Engle, 1 P. F. Smith, 313. NUISANCE By corporations, (other than bridge companies.) See, generally. Corporations II. Bridge companies not liable for nuisance. See Water, 3, 11, 12, 13. Nuisance on highways. See Boads, 1 4, 20, &c. On private ways, alleys, &c. See Way, 2. NUNCUPATIVE WILL. See Wills V. ODOR. Liability of corporations for nuisance. See, generally, ^Corporations II. OFFICE AND OFFICERS. Fees not attachable. See Attachment, § 7, &c. Official bond is only for the present term. See Bonds, § 4. Power of governor to issue commissions in cases of contested elections. See Certiorari, §§ 2, 3. A bill in equity will lie to restrain a body illegally organized. See Equity I., 44, 45. OFF 196 ORP Bill in equity will not lie to restrain an anticipated intrusion. See Elections, §§ 2, 9. Lien of judgment of State not to be preferred. See Lien, §§ 2, 3. Public officers only liable for malice. See Negligence, § 1. Officers de facto. See Quo Warranto, 3. Sureties of sheriff. See Sheriff, 1, 23. Sureties of other officers. See Surety, 1, 2, 10, 11. 1. An appointed officer as a steward of a college is removable at pleasure. Field y. Directors, 4 P. F. Smith, 233. OFFSET. Vide Set-off. ORDER. 1. A claimant cannot sue after givinjj an order for the fund in favor of a third party vs^ho obtains an acceptance thereon. Xing V. Kelly, 1. P. F. Smith, 36. ORIGINAL ENTRIES. See Evidence VI. ORDINANCES To be submitted to mayor. Vide Corporations IV., § 6. Not valid unless authorized by Act of Assembly. Vide Corporations IV., § 9. ORPHANS' COURT. For accounts of executors et al. as to ordering and setting aside sale of real estate, reserving liens. See, generally, Decedents^ Estates. For partition generally, See Partition. 1. The Orphans' Court will not set aside a sale upon application of the widow claiming title to the land, the pur- chaser being willing to take it, and the widow having her action of ejectment. Kline's Appeal, 3 Wr. 463. 2. The Orphans' Court has only power to order a sale of decedent's interest in the land. Ibid. 3. The Orphans' Court has grown long since to be a Court of record. Its decree is not subject to the statute of limitations. Vincent v. Watson, 4 Wr. 308. 4. The judgments and decrees of the Orphans' Court are final and conclusive; they cannot be impeached collaterally, and the exceptions must be as in other Courts, fraud and warit of jurisdiction. Gilmore v. Rogers, 5 Wr. 120. 5. History of the Orphans' Courts given per WooDWAaB, J. Horner v, Has- brouck, 5 Wr. 178. 6. Decree of Orphans' Court cannot be inquired into collaterally as in suit upon administration bond. Hartsell v. Com., 6 Wr. 453. 7. Although the Orphans' Court have a discretion in the matter of requiring bonds from guardians, yet when it has been exercised and a bond has been given, it cannot be cancelled while the guardian- ship remains. Newcomer's Appeal, 7 Wr. 43. 8. The confirmation of a sale by the Orphans' Court may be reversed as in- equitable, if the heirs of the decedent de- layed the confirmation until a fire had much impaired the value of the property. Demmy's Appeal, 7 Wr. 155. 9. An Orphans' Court sale does not di- vest the title of the heirs by confirmation, nor until a deed has been delivered ; until then they can maintain ejectment even against the purchaser. And if the heir die after confirmation, but before deed, there is no conversion, and his in- terest descends as land, not as money. Demmy's Appeal, 7 Wr. 168. 10. Orphans' Court jurisdiction in dow- er is not exclusive. Bradford v. Kentz, 7 Wr. 474. 11. The limitation of seven years for writs of error is received as a binding analogy for bills of review, when there is no positive rule given by the Legislature. Baggs' Appeal, 7 Wr. 514. 12. In settlement of decedents' estates the Orphans' Court has full equity juris- diction, and may decree a sale of land for paj'ment of a widow's exemption charged thereon. Detweiler's Appeal, 8 Wr. 243. 13. Courts having jurisdiction of trus- tees may award attachments to enforce obedience. The Act of 1842 does not OEP 197 PAR apply to such cases. Chew's Appeal, 8 Wr. U1. 14. The record of the Orphans' Court cannot be impeached collaterally. Though the petitions were not sworn to, its decree is conclusive until reversed Waters v. Bates, 8 Wr. 473. And though the ad- ministrator did not give security on con- firmation of sale, the title passes. Dixey v.Laiiivg, 13 Wr. 143. 15. An application for a supplementary account (for moneys chargeable when the first account was filed) is but a bill of re- view in disguise, and should be barred after five years. Per Thompson, J. Graff's Appeal, 9 Wr. 3 79. 16. A bill of review is not the proper remedy to compel payment of moneys received after an account has bejn filed, it should be a petition to file a supple- mental account. Shaffer's Appeal, 10 Wr. 131 . IT. A legacy charged upcn real estate can be collected in the Orphans' Court by proceedings against devisees accepting the land. Clark v. Wallace, 12 Wr. 80. 18. The discretion of the Orphans' Court in refusing to appoint a person named by a minor over fourteen as guardian is not reviewable. McCann's Appeal, 13 Wr. 304. 19. The Orphans' Court has not juris- diction to proceed upon petition of a widow claiming dower at common law out of lands held in severalty by a devisee. The common pleas has exclu- sive jurisdiction. Shaffers. Shaffer, 14 Wr. 894. 20. Caveat emptor applies to Orphans' Court sales for payment of debts. In partition it may be different. Maple v. Kussart, B P F. Smith, SiS. 21. Where there is no jurisdiction the decrees of the Orphans' Court are void, and may be avoided collaterally. As where an executor petitions to sell the land of testator for payment of legacies. Torrance v. Torrance, 3 F. F. Smith, 505. 22. A sale in partition may be set aside by the Orphans' Court for inade- quacy, without notice to the successful bidder. Hay's Appeal, 1 P. F. Smith, 58. No opinion expressed as to right of suc- cessful bidder to appeal. Ibid. 23. The Orphans' Court can decree sale to pay debts after a decree in parti- tion. Vresher v. Allentown Co., 2 P. F. Svxith, 225. 24. Sale for payment of debts dis- charges mortgage, though not given by decedent. Cadmus v. Jackson, 2 F. F. Smith, 295. OUSTER. What is sufficient to acquire title. Tide Limitations I., §§ 3, 4,7, 9, 17, 18, 19, 21,24, 28, 32,33, 34, 40, 41. What is ouster of co-tenant. See Limitations I., 28, 40, 41, &c., and see Trespass, 12, 13. OWELTY Cannot be decreed in equity. See Equity I., § 28. PARDON: 1. A pardon in a case of fornication and bastardy after conviction, but before sentence, is a release of the lying-in ex- penses, the costs and the maintenance ; for these are parts of the sentence when passed, and it cannot be entered after pardon pleaded. Com. v. Ahl, 7 Tl^r. 53. 2. A Court will not hear parol evi- dence to show that a pardon was ob- tained by fraud. Per Fishee, P. J. Ibid. The Supreme Court, not doubting the correctness of this ruling, refused to consider the question because no bill of exceptions lay in such a case. 3. Until delivery, a pardon is merely an intended favor, and may be cancelled. Cum. Y. JSalloway, 8 Wr. 210. 4- By usage, delivery to the warden is a constructive delivery to the prisoner, but it is open to repelling proof, as that it was delivered to enable the government to obtain the service of the defendant ac- cording to a request for him, which proves to have been forged. Ibid. 5. A pardon is void if obtained upon forged representations, although the de- fendant was not a party to the fraud. Ibid. 6. The ancient practice of a habeas corpus to plead pardon is inconvenient. Ibid. PARENT AND CHILD. Damages from death of child. See Damages, 29. PAR "198 PAR For parol sale of land by father to son. See Zand XIII, 2," 13, 14. Evidence received to prove a convey- ance was an advancement. See Evidence XVII., § 11. For trespass of child. See Trespass, 1. PAROL. Parol evidence as to doubtful legatee. See Evidence XVII., § "?. Parol evidence as to when fi. fa. was received. See Evidence. Parol promise to pay the debt of an- other. See, generally. Frauds and Perjuries III. Parol partition and sales. See, generally. Frauds and Perjuries II. Parol sale of land, by father to son. See Land XIII., § 2, 13, 14. Rescission by parol. See Vendor and Vendee ; see Evidence XVII., 5, 6. PARTIES. Effect of misjoinder. See Practice. PARTITION. Parol partition. See, generally. Frauds and Perjuries II. Setting aside sales in Orphans' Court. See Orphans' Court, §§ 8, 22. 1. All of the mine hills without the lines of the Clark survey did not pass under the amicable partition of the Corn- wall estates of August, 1787. .Blewett v. Goleman, 4 Wr. 45. 2. Priority of title is the rule of allot- ment under the Act of March 29, 1832, but the Act of April 22, 1856, makes the highest price offered in writing above the valuation, the rule. Hence, the second son bidding higher than the valuation is entitled to take in preference to the first offering to take simply at the valuation, nor does an agreement of valuation bar this right. Mason's Appeal, 5 Wr. 74. 3. If an heir intend to refuse a purpart, he should do so and ask for a sale. No refusal appearing of record, it is too late to object in the Supreme Court that he was unwilling to take the purpart allotted to him. Ibid. 4. A recognizance in partition is good for the widow's share, although in the names of the heirs alone. Baily v. Com., 5 Wr. 473. 5. A judgment in partition confessed by certain defendants does not bind a co- defendant not a party thereto, although the same counsel represented all the de- fendants, the narr. on which the judg- ment 'was confessed omitting to assign to the defendant, not bound, any interest in the land. BlackweU v. Cameron, 10 Wr. 236. 6 It is error to set aside an inquest in partition because the same guardian acted for several minors. Totten's Ap- peal. McAboy's Appeal, 10 Wr. 301. It is error to set aside an inquest in parti- tion after the lapse of two years, im- provements made, adjoining lands pur- chased, and lines adjusted. Ibid. 7. The counsel fees for conducting a partition are not to be paid by one share, but by all, and are to be taxed like other costs. Snyder's Appeal, i P. F. Smith, 67. 8. An Orphans' Court partition does not preclude a sale of the land for pay- ment of debts of decedent. Dresher v. Allentown Co., 2 P. F. Smith, 225. 9. If a husband in right of his wife ac- cept land at its appraised value under an Orphans' Court partition in the estate of the wife's ancestor, he acquires but a life- estate in her share, and a fee simple in the residue ; her share is not converted, for his recognizance to her would be a nullity. McMillan and Crissman's Appeal, Otto's Estate, 2 P. F. Smith, 434. 10. If a husband take his wife's share of proceeds of real estate in an Orphans' Court partition, he holds it as realty and it goes to her heirs on her death, but is then to be treated as personalty. Hays' Appeat, 2 P. F. Smith, 449. 11. A judgment against a minor in par- tition, without the appointment of any guardian for hira, is error, even though I service of the writ be made upon him and I his next of kin, and an appearance be en- PAR 199 PAR tered for the next friend. Swain v. Ins. Co., 4 -P. F. Smith, 455. 12. A wife's interest in land is not changed into personalty by partition. Her husband's interest is realty. Eberts v. Eberts, 5 P. F. Smith, 110. 13. In partition, the omission by the judge of a return day is not error if the clerk insert it. Sankeyh Ajipeal, 5 P. F. Smith, 491. Premises may be awarded to an heir several days after the rule is returnable, for parties must wait until called. Ibid. The allotment is matter of discretion, and generally not reviewable. Ibid- The act requiring notice in but one paper, the Court may proceed if no- tice is so published, although their order directed notice in two papers. Ibid. PARTNER, PARTNERSHIP. A partner cannot be a witness in ac- count render. See Account Pender, § 1. Assignment by one partner. See Assignment, § 1. As to evidence in partnership cases. See, generally, Evidence X. Execution against, and distribution of proceeds. See, generally. Execution II. Judgments against. See, generally. Judgments III. A partner cannot revive a debt after dissolution unless he is the liquidator. See Limitations IV., § 20. I. Of actions by partner against part- ner — sale of share of one partner. II. What is individual and what is part- nership property. III. Liability of firm and of a partner to others — suit on paper signed by one partner — suit on judgments confessed by one partner— suits for trespass and generally — spe- cial partners. I. Or ACTIONS BY PARTNER AGAINST PARTNER — Sale of share of one PARTNER. 1. Covenant will lie by one partner against his copartner upon the articles for dissolving the partnership or wrong- fully embarrassing its operations, although there is no express covenant to sustain the action." Such a covenant is involved in the nature of the contract. Addams v. Tatton, 3 Wr. 447. 2. In such a ease, injuring the credit of the firm by discouraging customers would be properly a subject of damage, although the firm were to do a cash business. Ibid. 3. In such a case, the giving up of a former contract at considerable loss is not properly an item of damage. Ibid. 4. It is only a non-assenting partner that can call in question the validity of a judgment confessed by his co-partner. Such judgment is not void. Per Strong, J. Erwin's Appeal, 8 Wr. 335. 5. A partner cannotclaimto charge the estate of a deceased partner with services in settling up the partnership, although the executor of the deceased partner agree to allow the survivor for all "expenses, costs, and services." For the executor has no power to allow the survivor for his services, and the word " services" re- fers to the labor of others. Brown v. IIcFarland, 5 TIV. 129. 6. The fact that the purchaser of a partner's interest in goods cannot succeed to the possession, but only to a right of account, will not forbid a levy and sale. Lothrop V. Wightman, 5 Wr. 297. -7. If a partner keep the funds of the firm in bank in his own name without consulting his co-partner, he is liable for a loss. Lefever v. Underwood, 5 Tlr. 505. 8. The interest of a defendant in a final settlement of a partnership is levi- able, and a fraudulent concealment of it is as iniquitous as the fraudulent conceal- ment of other effects. Smith v. Emerson, 7 Wr. 456. 9. In the absence of any stipulation in the articles, a majority of the partners must govern in the affairs of a partner- ship. They have, therefore, the right to dismiss one employee and engage an- other. The minority will be restrained from interfering. Peacock v. Chambers, 10 Wr. 434. 10. A covenant for the continuance of partnership for a reasonable period after death is binding on the estate of a dying partner, if assented to by the personal representatives. Per Agnew, J. Laugh- lia V. Lorenz, 12 Wr. 275. 11. Where a partnership agreement provides for its continuance after the de- cease of a partner, his death does not PAR 200 PAR work a dissolution. Per Agnew, J. LaughlinY. Lorenz, 12 Wr. 275. 12. A new firm payin;^ debts of the old firm and becoming insolvent, can sue in equity }he individual estate of each part- ner. Ibid. 13. A partner may lawfully apply the assets of his firm to the lifting of a guarantee by paying the debt of the firm for which it was given, although the co- partner is not consulted, and although the guarantee has yet time to run. Kirk- patrick- V. Lex, 13 Wr. 122. 14. A partner may maintain an action against his co-partner and a third person for colluding to injure him. But persua- sion to pay the debt of a surety is not an injury. Ihid. 15. If a deceased partner was debtor to his firm, the surviving partner must de- duct what he owes, and can then claim one-half only of the balance. McCor- micVs Appeal, Hayes' Estate, 5 P. F. Smith, 256. II. What is individual and what is Partnehship property. 1. Where a lot is bought with the money of a firm, in furtherance of its busi- ness, it is partnership property, although the deed is to one only, and though the business could be carried on without it. Erwin's Appeal, 3 Wr. 535. 2. That it is "not necessary for the partnership " is not sufficient to make it individual property ; to produce that re- sult it must be bought with views and purposes beyond and outside of the par- ticular business in which the firm is en- gaged. Per Strong, J. Ihid. 3. Where the title is taken to both part- ners, without any assertion on its face that it was treated as partnership prop- erty, they are tenants in common. Ibid. 4. Bat where there is an intention to buy for the firm, with nothing to indicate a severance of interests, and with the fact that the joint funds paid for the lot, the beneficial interest is in the firm as such. Ibid. 5. Where real estate is purchased and held for partnership purposes, judgments against the firm for partnership debts are to be preferred to judgments against the individual partners Ibid. 6. It is only a non-assenting partner that can call in question the validity of a judgment confessed by his copartner. Such judgment is not void. Ibid. 7. One who repudiates an executory agreement for partnership, cannot claim any interest in property purchased there- under. Bice V. Shuman, t Wr. 37. 8. A purchase at a judicial sale by a partner or joint owner is in trust for the other in interest. A purchaser from him is bound by the trust, for the deed shows the purchase by one of a number of owners. Gibson v. Winslow, 10 Wr. 380. 9. Where there are partnership prop- erty and creditors, and separate property and creditors, each has priority on its re- spective estate. Per Thompson, J. Black's Appeal, 8 Wr. 503. For full examina- tion of the authorities, American and English, see this opinion. See, also, Eou- seal & Smith's Appeal, 9 Wr. 484 ; and McGormick's Appeal, 5 P. F. Smith, 252. 10. Land bought on behalf of partners, paid for by their moneys and used for partnership purposes, is to be treated as partnership property, although the deed is made to the partners in their individual names. Its proceeds are to Redistributed to firm creditors. Abbott's Appeal, 14 Wr. 234. III. Liability' of firm and of a part- ner TO others — Suit on paper signed BY one partner — Suit on judgments CONFESSED BY ONE PARTNER — SUITS FOR TRESPASS, AND GENERALLY — SPECIAL PARTNERS. 1. It is only a non-assenting partner that can call in question the validity of a judgment confessed by his copartners. Such judgment is not void. Per Strong, J. Erwin's Appeal, 3 TI'/\ 535. 2. The fact that the purchaser of a part- ner's interest in goods cannot succeed to the possession, but only to a right of ac- count, will not forbid a levy and sale. Lothrop V. Wightman, 5 Wr. 297. 3. It is error to submit to a jury with- out evidence the question whether the plaintiff's property was taken by one part- ner on his individual account, or by the firm on their joint credit. Donnelly v. El/an, 5 Wr. 306. 4. If a plaintiff has made a personal loan to one to enable him to become a partner of a firm, and has taken his indi- vidual note therefor, the partnership is not bound, although the body of a letter from the borrower soliciting the loan is PAR 201 PAR in the handwriting of the other partner, and although the loan goes into the firm. Ibid. 5. If a partner who is a bailee for safe- keeping of money uses it in the firm with the knowledge of his copartners, but without the knowledge of his bailor and contrary to instructions, the firm is liable. Per Read, J. Ibid. 6. When a creditor a.grees with a new firm to take their security in discharge of an old firm, the retiring partner is dis- charged ; hut whether he did so agree is for the jury. Per Read, J. Ibid T. A partner cannot bind the firm by guarantee of a debt of a thii'd person with- out special authority, or authority to be implied from common course of the busi- ness or previous dealing, unless the guar- antee be adopted by the firm. Stevenson V. Hoy, t Wr. 191. 8. The interest of a defendant in a final settlement of a partnership is leviable, and a fraudulent concealment of it is as iniquitous as the fraudulent concealment of other effects. Smith v. Emerson, 'I Wr. 456. 9. If a partner borrow money and give his own security for it, it does not become a partnership debt by being- applied to partnership purposes. So a purchase of property by a partner who gives his indi- vidual bonds therefor, does not make the firm liable, although the purchase was on account of the firm, and he give them a, declaration of trust. North Penna. Goal Go.'s Appeal, 9 Wr. 181. 10. A receipt by a partner after disso- lution, he not being the liquidator, is no evidence of ratification. Ins. Co. v. Marr, 10 Wi: 504. 11. A special partner cannot be made liable for a change in the business without a knowledge that it had taken place. There must be knowledge or an inten- tional violation of the act. Singer v. Kelly, 8 Wr. 145. 12. A naked ofi"er to show an assign- ment of assets, without proposing to show the assent of the special partner, is not admissible to charge him as a general partner. Ibid. 13. A special partner has nothing to do with the care and collection of the debts of the firm after it fails. Ibid. 14. A special partner cannot claim as creditor of his firm if it is insolvent. Dunning's Appeal, 8 Wr. 150. 15. Partners are liable for a trespass committed or authoi'ized by one partner in pursuing the ordinary routine of the business of the firm. McEnight v. Bat- cliffe, 8 Wr. 156. 16. They are also liable for a trespass by their employees in the legitimate con- duct of the partnership business, or if the trespass be by direction of their agent, acting within the scope of his powers. Ibid. 17. They are also liable where the tres- pass of the servant Is in the act of pro- tecting property of the principals from injury. Ibid. 18. A special partner may render him- self liable as a general partner for the en- gagements of the firm by one act within the prohibition of the statute, but this will not make him liable in trespass if the act has no relation to the trespass and he has not acted as a general partner in man- aging the affairs of the firm. McEnight V. Batdiffe, 8 Wr. 156. 19. Selling to or buying from the firm, or doing an occasional act or errand for the firm, is not the kind of agency pro- hibited by the " act as to special partner- ships," and will not make a special a gen- eral partner. Ibid. 20. Under such circumstances the de- fendant is entitled to a positive instruction that he is not liable. Ibid. 21. Where there are partnership prop- erty and creditors, and separate property and creditors, each has priority on its re- spective estate. Per Thompson. J. Black's Appeal, 8 Wr. 503. For full examina- tion of the authorities, American and English, see this opinion. This is affirmed. McGornnch's Appeal, 5 P F. Smith, 252, explaining Eouseal & Smith's Appeal, 9 Wr. 484. 22. Each partner has the right to insist upon the appropriation of partnership property to pay partnership debts. If fraudulent judgments are confessed, cred- itors can work out this equity. Taylor's Appeal, 9 Wr. 11. Fraudulent judgments postponed, though held by innocent par- ties. Ibid. 23. The assets of the deceased partner are liable to the business debts. Per Aqnew, J. Laughlin v. Lorenz, 12 Wr. 275. 24. A judgment may be executed or suit brought against the administra- tor of a deceased partner without insol- PAS 202 PHI vency of or recovery against the survivor. Ibid. 25. Except under the Act of 1838, (authorizing one firm to sue another where there is a partner common to both,) which applies only to firm debts, ajudg- Bient recovered cannot be levied on ihe separate estate of a partner. Ibid. 2ti. Where an agreement for the pur- chase of land is signed in a firm name and there is proof of the partnership, the request of one partner to the owner to convey the land to a person named binds the copartner. Bonner v. Campbell, 12 Wr. 286. 27. One who is a member of several firms has presumptively the same power in each that his partners have. He may draw for one firm, and endorse the same paper for another firm. The person re- ceiving such a note is not boi^nd to prove cjnsideration because of that fact. Mil- ler V. Bank, 12 Wr. 514. 28. A partnership may be established by joint dealings, pavment of joint bills, &c. Bowers v. Still, 13 Wr. 65. 29. The declarations of one are evi- dence against him. The other defendant should ask that they should be so confined, and failing herein he cannot reverse. lUd. 30. Taking a note from one is no dis- charge of the other defendant unless so agreed. : Nor is obtaining a judgment thereon a bar, unless satisfied. Bowers v. Still, 13 Wr. 65. PASSENGER May be removed if drunken. See Eailroads. Injuries to. See Railroads. PATENT. See, generally, Land I. PAVING. See Roads. PAYMENT. Yoluntary payment cannot be recov- ered. See Assumpsit, §§ 6, *?, 8. tJnder plea of, stockholder may de- fend that corporation is not joined. See Corporation V., 31. Application of. See, generally, Debtor and Creditor IV. Payment may be made in land. See Debtor and Creditor I., T. When evidence by writing is a ques- tion for Court and not for jury. See Debtor and Creditor I., 7. Evidence to explain a receipt. See Evidence XVII., 18. Marking settled on record of sei. fa. sur mortgage, or satisfied on the bond or mortgage, does not pay the debt unless so intended. See Mortgage V., 2, 10 ; VI., 1. Plea of, may be added. See Pleading. 1. Agreeing to take part will not discharge the whole debt. Keen v. Vaughan, 12 Wr. 477. 2. Surety under interpleader bond can prove under plea of payment that the goods were surrendered to the sheriff. Hill V. Grant, 13 Wr. 200. 3. Payment is a question for the jury. Horner v. Hower, 13 Wr. 475. PENAL CODE. See, generally. Criminal Law. PENALTY. See Damages §§ 7, 11, 12. PERFORMANCE Of contract, and damages for non-per- formance. See, generally. Contract X. PERPETUITY. See Wills. PERSONAL PROPERTY. Bailment of. See, generally, Bailment. When personalty and when realty. See Real Estate. PHILADELPHIA. Not liable for support given to a pau- per except upon express contract. See Corporations IV., § 15. As to claims. See Municipal Claims, §§ 2, 17, 18, 20. PLE 203 PLE As to taxes. See Taxes. 1. The board of port wardens have no right to restrain the erection of a bridt^e authorized by statute. Board of War- dens V. Tlie City, 6 Wr. 209. 2. The Legislature had the power to authorize the construction of the Chest- nut street bridge. Flanagan v. The City, 6 Wr. 219. 3. The Courts cannot try a contested election of councilmen where a remedy is specially provided by the charter. Com. J. Leeds, 8 Wr. 332. But they can de- termine vphether there was a vacancy. Com. V. Meeser, 8 Wr. 341. 4. Councilmen can be compelled to meet as required by law. Fraud in the organization of another chamber is no defence. Lamb v. Lynd, 8 Wr. 336. 5. An officer directed to advertise in but two papers cannot bind the city by advertising in more. City v. Flanagan, 11 Wr. 21. Nor can he bind the city because the Act of Assembly says "not more than three." Ibid. 6. The controllers of the public schools cannot exceed the appropriation for sala- ries made by councils. City v. Johnson, 11 Wr. 382. T. The mayor of Philadelphia cannot be compelled by mandamus to execute a lease approved by the superintendent of the Girard estate and the committee of councils. He has a discretion. Com. v. Henry, 13 Wr. 530. 8. The directors of Girard College have a discretion to remove their appointees" at pleasure. Field v. Directors, 4 P. F. Smith, 233. PLEADING AND PLEAS. In abatement. See Abatement. Plea to jurisdiction waived by general issue. See Courts. By heirs or devisees to sci.fa. See Decedents^ Estates III. In mechanic's lien. See Mechanic^ Claim. Time for rule to plead. See Practice. 1. If, upon a foreign attachment, the sheriff seize and sell the goods of a third party, and he is afterwards sued by the owner for the trespass, a plea of the for- eign attachment and the judgment thereon is demurrable, for the owner is not pre- cluded thereby. Megee v. Beirne, 3 Wr. 50. 2. A judgment will not be reversed be- cause the declaration is in indebitatus as- sumpsit, instead of setting forth the con- tract sued on. Keller v. Rhoads, 3 Wr. 520. 3. A conditional verdict upon a decla- ration in indebitatus assumpsit is a nov- elty, but the judgment will not be reversed where the condition enures to the advan- tage of the plaintiff in error. Ibid. 4. Stockholders of a manufacturing corporation cannot plead that the corpo- ration has not paid the State the bonus required by law. Patterson v. Wyomis- sing Co., 4 TFr. 117. 5. A defendant sued by a corporation cannot put in a plea involving the for- feiture or invalidity of plaintiff's charter. Dyer v. Walker, 4 Wr. 157. 6. An endorser sued by an assignee of a bank cannot defend upon the allegation that the bank had no power under her charter to transfer the note. Housum v. Sogers, 4 Wr. 190. 7. A defendant cannot complain that a trial went on without a replication to a plea of the statute of limitations iiled during the trial. Bricker v. Lightner, 4 Wr. 199. 8. A bailee who has received property to hold as security for the payment of a debt, is under no obligation to return it until demand made or notice given that the debt has been discharged. The want of an averment of demand or notice is not cured by verdict. Dewart v. Masser, 4 Wr. 302. 9. Counts in case may be joined with trover. Patterson v. Anderson, 4 Wr. 364. 10. The plea of non-assumpsit does not put in issue the license of a plaintiff who sues upon a contract for sale of liquors. Horan v. Weiler, 5 Wr. 470.- 11. If pleas are good, and an imma- terial issue be formed thereon and be tried, a repleader will be awarded. But if pleas are bad, they are not aided by immaterial issues and a verdict thereon PLB 204 POO for the defendant. Tarns v. Lewis, 6 Wr. 412. 12. A count for rescission provided for by contract may be joined with a count for rescission of a fraud. One for dnmages and one for rescission would be repugnant. Pearsall v. Ghapin, 8 Wr. 9. 13. ,Tort may be waived and assumpsit brought. Pearsall v. Ghapin, 8 Wr. 9. 14. A plea merely frivolous may be stricken oif. If defendant in replevin plead that the goods were delivered to him by the sheritF upon a former replevin, the plea may be stricken off. Loveti v. Bur /char dt, 8 Wr. 173. lb. An amendment averring a waiver of notice in place of a general statement of performance is a matter of right, and after verdict the defect is cured. Ins. Go. V. Schollenherger, 8 Wr. 259. 16. Failing to object when case first in Supreme Court to the form in which plaintiff" sues, (as in his own name instead of to use,) is a waiver of the error, if any. Ins. Go. v. Schreffler, 8 Wr. 269. 17. A defendant can show his title and define his boundary and possession under plea of not guilty, where the action is not for breaking the close. Withdrawing plea of liherum tenementuin does not withdraw the evidence. Alteniose v. Huf smith, 9 Wr. 121. 18. Whether illegality of the contract is evidence under "payment with leave" duhitaiur. Evans v. Hall, 9 Wr. 235. 19 It is error to refuse leave to file a plea of payment after filing a plea of non- assumpsit. Smithy. Kessler, 8 Wr. 142. A refusal to permit a defendant to alter his plea is the subject of a writ of error. Ibid. 20. A narr. averring an accommoda- tion acceptance, a transfer of the bill by the accommodation acceptor to the plain- tiff, and a direct promise from defendant to plaintiff, discloses a sufficient consider- ation and a good cause of action. Be Barry v. Withers, 8 Wr. 356. 21. A narr. for breach of contract to deliver goods, should aver a demand, or that the parties fixed a time for delivery, but an amendment in these particulars is a matter of course. Robinson v. Tyson, 10 Wr. 286. 22. It is not necessary to aver tender of the price, if there is an allegation of readiness to receive the goods and pay for them. This must be averred and proved. Ibid. 23. One cannot sue in his own name for an amount earned by another, but car- ried at request of the party entitled thereto to the credit of plaintiff in defendant's book. Robertson y. Reed, 11 Wr. 115. 24. But the mi.stake will be regarded as amended on error. Ibid. 25. Matter of inducement in a narr. need not be proved by a plaintiff. Thus the averment that the plaintiff enjoyed the natural flow of a stream through his prop- erty until disturbed by the defendant, does not admit that a former trespass by others wasno disturbance, or thatthey had aright to disturb him. Jessup v. Loucks, 5 P. F. Smith. 350. PLEDGE, PLEDGEE, PLEDGOR. See Collateral Security, §§ 1, 6, 7, 8. POINTS FOR CHARGE. See, generally, Errors and Appeals IV. POLICY OP INSURAA'CE. See Insurance I. POLLING JURY. Record need not show defendant had opportunity to poll jury. See Grimes. POOR. Guardians of, Philadelphia, cannot con- tract for support of a pauper. See Gorporations IV., 15. 1. Orders for removal unappealed from are conclusive. Sugarloaf v Schvi/I- kill Co., 8 Wr. 481. ^Schuylkill v. 3Ion- tour, 8 Wr. 484. 2. The consequence of disobedience is a fine. Ibid. 3. Although the law only provides for the compelling payment by one district to another district where the pauper ■' cannot be removed," yet the case of an insane pauper is within the spirit of the act. Ibid. 4. Where a pauper is removed and accepted, there is no provision for costs and charges. If the order fix no amount, the acceptance of the pauper is no implied promise to pay, and a " request to send bill of expenses" will not be sufficient to POE 205 PEA found an action thereon. Schuylkill v. Montour, 8 Wr. 484. 5. The settlement of a pauper is the place of bis birth until he acquires another from his parents, or by acts of his "own. If his father remove and he remain, he does not acquire a settlement in the township to which his fatlier removes. Tohy V. Madison, 8 Wr. 60. 6. Overseers of the poor can recover from a trustee for support of his cestui que trust who has become insane, although the will directs that the principal shall only be applied " if urgent necessity should require." Erisman v. Directors of the Poor, 11 Wr. ft09. T. The original settlement of an illegiti- mate child is the place of its birth. It may acquire or derive from its mother a subsequent settlement. Nippenose v. Jersey Shore, 12 Wr. 402. 8. Sudden sickness or dangerous hurt so that he cannot be removed, entitles the pauper to relief from the district in which he may then be, and the order may come as well after as before the relief is admin- istered. If he have a settlement in the State and can be removed to it, he should be so removed. Ibid., l^i Wr. H)-2. Com- mon law actions between poor districts should be discouraged. Ibid. 9. Where apauperhas notgained a legal settlement in another township, the settle- ment is that derived from the parents. Marion v. Spring Township, 14 Wr. 308. 10. The claim in behalf of the district where sickness occurs is against the district of the last legal settlement. Jt cannot be applied against the district of the original sickness, and in behalf of a district charged with no dmy. Marion v. Spring Township, 14 Wr. 3(18. PORT WARDENS. See Philadelphia, 1. POWER OF APPOINTMENT. Under wills. See Wills. Under deeds. See Appointment, 1. PRACTICE. Non-joinder of use plaintiff, to whom a contract has been assigned, is no defence. See Contract XIII., 11. Courts cannot order a prothonotary who is out of office to pay over money. See Courts, 13. Defect in indictment cured by verdict. See Grimes, 41. As to points for charge, and as to re- versing for errors in charge. See, generally. Errors and Appeals II., III., IV. Assignment of error should repeat the point. See Errors and. Appeals VI., 11, 14, 15. Restitution not awarded except after collection on execution. See Errors and Appeals V., 20, 21. Stay by Court of Jl. fa. does not impair its lien. See Execution IV., 10. In mandamus. See Mandamus. Courts cannot order a bank to pay sheriff's deposit into court. See Sheriff. I. Of service on agent and generally — of service of sci. fa. — of curing defective writ and defective ser- vice — of return day. II. When misjoinder and non-joinder are fatal — joining different causes of action — of debt. III. Of filing narr. in appeal cases — defect in narr. cured by verdict. IV. Of amendments of pleading and verdicts — striking out name — adding name. V. Of the rule to plead and notice — judgment for want of plea — de- murring to plea — of plea of covenants performed — opening judgment. VI. Of joining issue — of case stated. VII. Of matters connected with the trial — assessing damages, &c — demurrer to evidence— divided court — taking verdict — special verdict — bills of exception — paper books. VIII. A plaintiff cannot dismiss his own bill after verdict in feigned issue — of judgment — of new trials — judgment after death of plaintiff PEA 206 PEA and generally — ofuci.fa. against personal representatives. IX. Judgment will not be reversed for immaterial matters — practice of court as to voting on assign- ment of error. X. Of audita querela. I. Of service on agent and generally — OF SERVICE OF SCI. FA. Of CURING DE- fective writ and defective service — Of return day. 1. Appearing and pleading cure a de- fective service. Dyer v. Walker, 4 Wr. 167. 2. A summons upon an insurance com- pany cannot be made on a travelling agent for procuring applications. Parke v. Com. Ins. Co., 8 Wr. 422. 3. A sci. fa. to revive need not be served on one holding an executory con- tract of purchase. Meehan v. Williams, 12 Wr. 243. 4. Appearance waives defect as to. re- turn day of writ. Schober v. Mather, 13 Wr. 21. 5. An attachment in execution may be made returnable at the second return day. Ibid. 6. " Served personally on defendant at his dwelling-house, by leaving a copy of the original summons and making known the contents thereof," is a sufficient ser- vice. Snyder v. Garfrey, 4 P. F. Smith, 90. II. When misjoinder and non-joinder ARE FATAL — JOINING DIFFERENT CAUSES OF ACTION — Of debt. 1. A plaintiff cannot recover in as- sumpsit except against all. Locke v. Daugherty, 7 Wr. 88. 2. Two cannot be sued as sureties without joining the third when the three are jointly bound in the same covenant. Gity V. Beeves, 12 Wr. 472. Covenant by two or more is joint if not declared to be several or joint and several. Ibid. 3. Assumpsit and tort cannot be joined, and if joined, the plaintiff can be com- pelled to elect. Noble v. Laley, 14 Wr. 281. 4. Although a judgment has been en- tered against one defendant by default, he is still discharged if the other defendant obtain a judgment upon a plea common to both. Swanzey v. Parker, 14 Wr. 441. If two are sued as joint promissors, neither is liable unless both are liable. Ibid. III. Of filing narr. in appeal cases — Defect in narr. cured by verdict. 1. A plaintiff should file his declara- tion in cases of appeal as well as in other cases under a rule of Court requiring narrs to be filed within a year. Craig v. Barclay, 12 Wr. 202. 2 But a molion to quash the appeal suspends the rule, and he cannot be non- prossed pending the motion. Ibid. 3, .The objection that a deed is not sufficiently set out in the narr avails nothing after verdict. It will be re- garded as amended. Pennsylvania Salt Co. V. Neel, 4 P. F. SmAth, 9. IV. Of amendments of pleadings and verdicts — Striking out name — Add- ing name. 1. An amendment introducing a new cause of action will not be allowed. Gardner v. Post, 7 Wr. 19. 2. Where the declaration charged de- fendant as individually liable for the debts of a bank, the plaintiff cannot file an addi- tional count on the assumption that the bank was never legally chartered. Ibid. 3. Where there is no mistake alleged in adding a second defendant, and wdiere plaintiff acquires a full knowledge of all the facts at an arbitration, a Court may in their discretion refuse leave to plaintiff to strike out a defendant. Locke v. Daugherty, 7 Wr. 88. 4. A Court may strike off the names of two defendants improperly joined, although the third defendant objects. Jackson v. Lloyd, 8 Wr. 82. 5. An amendment of waiver instead of a general averment of performance is matter of right. Ins. Go. v. Schollen- berger, 8 Wr. 259. 6. Amendment averring waiver instead of a general averment of performance is matter of right. Ins. Co. v. Schollenber- ger, 8 Wr. 259. 7. The name of an assignor may be added as plaintiff. Ins. Co. v. Schreffler, 8 Wr. 269. 8. Where an amendment is allowed as proper to reach the merits, it is to be pre- sumed that the Court were legally satis- fied of the mistake. Wilson v. Bank, 9 Wr. 488. 9. An amendment averring a demand PRA 207 PRA for delivery of goods sold, or averring that a time had been fixed for their delivery, is of course. Bohinson v. Tyson, 10 Wr. 286. 10. The name of the party who should have sued can be added, and upon error the Supreme Court will treat it as done. Boberison v. BePtl, 11 Wr. 115. 11. An amendment will not be allowed introducing a new cause of action or one barred by the statute. Wright v. Hart, 8 Wr. 4.54. Nor of change of title so as to avoid the statute. Siout v. Stout, 8 Wr. 457. 12. A new count mny be added in slan- der, presenting the same charge in an ex- tended form. Gonroe v. Gonroe, 11 Wr. 198. 13. A count in assumpsit cannot be added to a count in deceit. It may be stricken off, especially after an appeal from an award. B. B. Go. v. Zug, 11 Wr. 480. 14. The common counts can be added in assumpit. Jack v. Morrison, 12 Wr. 113. 15. The name of a plaintiff inserted by inistFike may be struck off and be be sworn. Prencoti V. Dnqves7ie, 12 Wr. 118. 16. A verdict of two- thirds of the land for defendants can be amended to read one-third for plaintiffs. Cambria Iron Co. V. Tomb, 12 Wr. 387. n. A verdict against a garnishee for a certain sum may be amended so as to read that there was a debt due by the garnishee to the defendant in the execu- tion for that amount. Keen v. Hopkins, 12 Wr. 445. 18. A plaintiff may amend his writ and narr by striking out the words charging a copartnership " trading as," &c. Schol- lenberger Y. Seldenridge, 13 Wr. 83. 19. A mistake in the description of the line of a lateral railroad is amendable. BoydY. Negley, 3 P. F. Smith, 387. 20. A plaintiff who had obtained a judgment against a manul'acturing com- pany, and had sued the stockholders in a separate suit, and whose judgment was reversed because of the rion-joinder of , the company, was allowed to amend his narr. by joining the company. This is not, however, to be a precedent. Mans- field Iron Works v. Wilcox, 2 P. F. Smith, 377. 21. If one sue for damages in his own name instead of the name of another to his use, judgment will not be reversed, but an amendment allowed. Barnhill v. Haigh, 3 P. F. Smith, 165. , y. o]? the rule to plead and notice — Judgment for want op plea — Demurring to plea — Of plea op covenants performed — opening judgment. 1. The day on which notice is given to plead is excluded, and if it expire on Sunday that day is also excluded. , Marks Y. Bussell, 4 Wr. 372. 2. A judgment for want of a plea is final, and is a lien whenever the sum is certain or can be made so by mere calcu- lation. Sellers v. Burk, 11 Wr. 344. 3. Where the narr. is on a valued policy for a total loss, claiming a certain sum, a • judgment for want of a plea is final, and a lien, although common counts are added, and although the judgment is afterwards opened and the damages not ascertained until the case is tried by a jury. Sellers V. Burk, 11 Wr. 344. 4. Hence, a sale upon execution after such a verdict relates back to the date of the judgment for want of a plea, and passes title in preference to a deed after the judgment. Ibid. 5. Demurring to a plea admits that there is no ground for denial. Com. v. Crosscut B. B. Co., 3 P. F. Smith, 62. 6. " Covenants performed absque hoc" throws on the plaintiff the burden of proving performance of his part of the covenant. Smith v. Frazier, 3 P. F. Smith, 226. 7. If appearance and plea are with- drawn, judgment may be entered by de- fault. Dubois V. Glaub, 2 P. F. Smith, 238. Opening a judgment by default is subject to the discretion of the Court ex- clusively, and terms can be imposed. Ibid. 8. In awarding feigned issues the Court may direct parties to be examined, but it cannot deprive them of legal testi- mony. Ferree v. Thompson, 2 P. F. Smith, 355. VI. Op JOINING ISSUE— Op case stated. 1. A defendant cannot complain that a trial progressed without a replication to a plea of the statirte of limitations filed during the trial. Bricker v. Lightner, 4 Wr. 199. 2. Where a case goes to trial upon pleas PEA 208 PEA of non-assumpsit and nul tiel record, it will be presumed that the latter plea was de- cided by the Court. Koons v. Headley, 13 Wr. 168. 3. The terms of a case stated cannot be enlarged, however manifest the justice that might be reached by doing so. B. R. V. Waterman, 4 P. F. Smith, 33Y. YII. Of matters connected with the TRIAL — Assessing damages, &c.. — De- murrer TO EVIDENCE — Divided Court — Taking verdict — Special verdicts — Bills of exceptions — Paper books. 1. A defendant does not make a claim evidence by reading it. Harmanv. Gum- mings, 7 Wr. 322. 2. Damages on a demurrer can be as- sessed by the regular jury sworn to try the issue in fact. DeBarry v. Withers, 8 Wr. 356. 3. The Court being divided upon an objection to evidence, thfr objection fell and the evidence was admitted. Com. v. Ferrigan, 8 Wr. 389. 4. A party should be allowed to send out a paper defining his claim, although it refer to other papers in evidence. But this is a matter of discretion and not re- viewable. O'IfaraY. Richardson, 10 Wr. 385. 5. If an objection is made to a deposi- tion that it is not attached to the commis- sion, the objection and the fact ought to appear in the bill of exceptions. Hill v. Hill, 6 Wr. 198. 6. An assignment of error as to over- ruling testimony must appear in the bill of exceptions. Ihid. 1. A demurrer to evidence admits every fact and conclu.^ion the evidence tends to prove. McKviuen v. McDonald, 7 Wr. 441. 8. When an issue is directed to ascer- tain how much is due upon a judgment which has been assigned, it is not compe- tent for the assignee to claim unliquidated oamages arising out of an agreement oil the part of defendant to consign iron to the assignee of the judgment, to enable him to meet the notes with which he pur- chased the judgment. Gruhh v. Brooke, 11 Wr. 486. Nor can the assignee re- cover two and a half per cent, on his ad- vances, although according to the custom and agreement of the parties. It is usu- rious. Ibid. 9. A judge may decline to allow a wit- ness to be examined after the testimony has closed, although the opposite party waive his objection. Molonyv. Davis, 12 Wr. 512. 10. Rules requiring the settlement and sealing of bills of exceptions in a speci- fied time cannot be disregarded without the consent of the opposite party. Kirk- patrick v. Lex, 13 Wr. 122. 11. Upon an issue to ascertain if a judgment has been paid, the beginning and conclusion are with the party alleging payment. Horner y. Hower, 13 Wr.ili. 12. A jury may in all cases find a special verdict. Com. v. Ghathams, 14 Wr. 181. 13. If an appellant's paper book does not furnish the proofs, the decision below cannot be reviewed. Brindle v. Brindle, 14 Wr. 387. 14. Where one defendant has confessed a generaljudgment the jury may be sworn as to the other. Noble v. Laley, 14 Wr. 281. The one confessing judgment is not a wit- ness for the other. Ibid. 15. The bill of exceptions or evidence certified by the judge should be printed. Tanner v. Oil Greek Co., 3 P. F. Smith, 411. Burford v. McGiie, Ibid. 427. 16. Ko bill of exceptions lies on motions for summary relief, on decisions as to right of counsel to conclude to the jury, nor to inquiry of damages executed at the bar of the Court, nor in road cases. Pa. R. R. Go. V. Lutheran Gongregation, 3 P. F. Smith, Ub. 17 A verdict cannot be received after an adjournment, but a verdict can be taken after the crier has announced an adjournment, if the judges have not sepa- rated. Adjournment is an act, not a declaration. Person v. Neigh, 2 P. F. Smith, 199. 18. Evidence in chief cannot be offered in rebuttal. Stetson v. Grosky, 2 P. F. Smith, 230. ] 9. The order of addressing the jury is for the Court below. Smith v. Frazier, 3 P. F. S7nith, 226. 20. A special verdict should state all necessary facts. Where it refers to the plaintiff as crossing a railroad track, it should say whether he was a traveller or lawfully there. R. R. Go. v. Evans, 8 P. F. Smith, 250. 21. If a defendant plead an eviction, the plaintiff reply that in a suit for prior rent the defendant offered evidence of the PEA 209 PEO same eviction, and judgment was against defendant, and the defendant rejoin that he did not offer evidence of the same eviction, the defendant must on the trial prove his rejoinder, viz.: that he did not offer evidence in the first case of the same eviction — he cannot prove the eviction. Dunwoody v. Raynor, 2 P F. Smith, 293. 22. A witness can refresh his memory by a memorandum made at the time. Selover v. Bedford, 2 F. F. Smith, 308. 23. In awarding feigned issues the Court may direct parties to be examined, but it cannot deprive them of legal testi- mony. Ferree v. Thompson, 2 P. F. Smith, 355. 24. Joint debtors may confess separate judgments. One of two defendants in a sci. fa. may confess judgment for the amount due, the other for a certain amount. The prothonotary can liquidate the first by the second. Weikel v. Long, 5 P. F. Smith, 238. VIII. A PLAINTIFF CANNOT DISMISS HIS OWN BILL AFTER VERDICT IN FEIGNED isstfE — Of judgment — Of new trials — Judgment after death of plain- tiff AND generally — Of SCI. FA. against personal REPRESENTATIVES. 1. It is matter of course to permit a complainant to dismiss his own bill with costs before decree, but this is not the rule after trial and verdict in a feigned issue. The defendant is then entitled to a formal dismissal. Saylor's Appeal, 3 Wr. 495. 2. Paying a jury fee on a verdict and having the case noted on the judgment index, does not without the formal entry of a judgment create a judgment. Fer- guson V. Staver, 4 Wr. 213. 3. A new trial granted upon conditions can only be had upon prompt perform- ance of conditions. If a party be ordered to pay costs, &c., and fail to comply for years, the Court ought to rescind the grant of a new trial ; and if they refuse to do so, and try the case a second time, the judgment will %e reversed and judgment entered upon the first verdict. Ward v. Patterson, 10 Wr. 372. 4. The entry of judgment upon reserj^d points substantially disposes of a motion for a new trial, and if necessary, it could be done nunc pro tunc. Penna. Salt Go. v. Neel, 4 P. F. Smith, 9. 5. Judgment can be entered in per- sonal actions notwithstanding the death of the plaintiff after verdict. Per Buf- pington, p. J., affirmed by Supreme Court. Fitzgerald v. Stewart, 3 P. F. Smith, 343. 6. Although judgment is entered in lifetime of defendant, yet if he die before execution issue, his personal representa- tives should be warned by sci. fa., and failing to do this no title passes by the sale. Cadmus v. Jdckson, 2 P. F. Smith, 295. IX. Of AUDITA QUERELA. 1. An agreement to accept a sum in payment of a larger debt, payment of part and tender of balance does not en- title the defendant to an audita querela. Keen v. Vaughan, 12 Wr. ill. PRiECIPE FOR WRITS OF ERROR. See Errors and Appeals YI., T. PRESUMPTION FROM EVIDENCE. See Evidence XX., 12, &c. PRINCIPAL AND AGENT. See, generally. Agent. PRINCIPAL AND SURETY. See Surety. PRIZE. 1. Title to property is not divested by capture ; until condemned it remains in the owner, and if the libel is discontinued and the property delivered to a third party who has intervened, the owner can assert his title as against him. Pei" Hampton, P. J., affirmed by Supreme Court. Millingar v. Hartupee, 3 P. F. Smith, 362. PROBATE OF WJLL. Conclusiveness of. See Wills. PROFITS MESNE. Only six years can be recovered. See Limitations I., 22. PROMISE. As to suits by persons not parties to the promise. See Contract II. 14 PRO 210 RAI Verbal promises to pay debt of an- other. See Frauds III. PROTEST. Waiver of. See Bills of Exchange and Promissory Notes I., 6, 18. PROTHOJSrOTARY Can recover costs from an attorney col- lecting them. See Costs, 7. PUBLIC BUILDINGS. See Counties, 1. PUBLIC OFFICERS Only answerable for malice. See Negligence, 1. PURCHASE MONEY Not a lien unless clearly so expressed. See Vendor and Vendee. Defences in action for. See, generally, Lands VII. PURCHASER. Purchaser reserving amount of a lixed lien is liable therefor personally. See Decedents' Estates V., 16. As to purchase from widow of the ex- emption. See Execution III., 1, 3. As to purchaser bona fide when pro- tected. See Fraud I., 7, 12, 18, 36, &c. As to purchase of land in name of an- other and resulting trust. See Trusts. 1. A bona fide purchaser of land with- out notice cannot be affected by proof of fraud or constraint in securing a wife's acknowledgment. Hall v. Patterson, 1 P. F. Smith, 290. 2. But a purchaser of a mortgage should inqiiire. MoCandless v. Engle, 1 P. F. Smith, 313. QUO WARRANTO. 1. The Courts cannot try a contested election for councilman where a remedy is specially provided by a city charter. Com. V. Leech, 8 Wr. 332. 2. But they can decide whether there was an office to be filled, and whether a ward is entitled to two councilmen. Where the claim to the ofiSce is based upon the allegation that a ward had a certain num- ber of taxable inhabitants, it must appear that it had -that number the preceding year, and the list of taxables (though names are erased therefrom) is evidence of the number. Com. v. Meeser, 8 Wr. 341. 3. A quo warranto brought within the term may be tried after its expiration, but the title to a past ofliice cannot be tried in a writ against the successor. Hence the validity of an election held by officers de facto cannot be decided upon their right to act, their term having ex- pired. Com. v. Smith, 9 Wr. 59. And acts of officer de facto are binding, although he is not sworn. Gregg v. Jamison, 5 P. F. Smith, 468. 4. Where charter and by-laws do not fix the place of election the managers can fix it. Ibid. 5. Quo warranto (not an injunction bill) is remedy for intrusion into office. A bill will not lie before the officers enter. Updegraff V. Crans, 11 Wr. 103. 6. Quo warranto lies for claim of cor- porate franchises. Com. v. Crosscut E. P., 3 P. F: Smith, 62. 1. " To construct a road to connect with any other road on a county line" gives the power to go to the line, though no road is then there to connect with, and also gives the povper to connect when there may be a road there. Ibid. 8. The gauge of "said road" does not of necessity refer to its immediate ante- cedent, (the second road,) but may refer to the road incorporated. Ibid. 9. A denial of ceitain allegations and the averment of a charter make a good plea. They are neither a disclaimer nor " non usurpavit." Ibid. 10. Demurring to plea admits it can- not be replied to. Ibid. RAILROADS AND RAILWAYS. Railroad bonds generally, See Bonds. Liability as to carriers. See, generally. Carriers. As to local and other freight. See Corporations IV., 20, 30, 38, 39, 50 EAI 211 EAI As to taxing loans, &c. See, generally, Corporations I. As to lien on stock. See Corporations V., Y, 39, 40, 41, 46, 55, 56, 5'7. Subscriptions to stock. See Corporations V. and VI. Liability to repair bridges. See Corporations IV., T, 18, 21. Extension of bonds does not extend right to convert into stock. See Corporations V., 42, 44. A railway passes as an appurtenance. See Land XI., 5. For taxes and licenses. See those titles. I. Proceedings agaiuPtrailroads, lateral railroads and railways for damages to lands and houses by location of road — for damages by fire — herein as to viewers — amendments — ap- peals — abandonment of land — va- cating. II. Proceedings for damages to persons and to personal property — herein as to passengers, employees, per- sons and property at crossings — obstructing highway. III. As to right of connection, license to connect, liability to maintain, clean and repair road, bridge, streets — right to existing location — cases as to Warren and Franklin Rail- way. I. Proceedings against Railroads and Railways and lateral Raii^roads for damages to lands and houses by location op road — For damages by fire — Herein as to viewers — Amendments — Appeals — Abandon- ment OE LAND — Vacating. 1. The risk of fire from locomotives cannot be taken into consideration by a jury in estimating damages sustained from construction of a railroad over the land. Per Williams, A. J., affirmed by Supreme Court. Boyd v. Negley, 4 Wr. 381. 2. Nor can the jury allow for the in- convenience and delay in crossing the road. Ihid. But in considering the ad- vantages derived by the owner, the jury may set-off against this the risk of a fire and the inconvenience occasioned by the proximity of the road. Ihid. 3. Under the lateral railroad act, on appeal from the report of the viewers, the determination of the necessity and use- fulness of the proposed road is exclusively for the Court. All that can be tried by the jury is the amount of damages. Brown V. Peterson,, 4 Wr. 373. Boyd v. Negley, 4 Wr. 384. 4. It is no objection to a petition for a lateral railroad that a person is named as joint owner of one of the tracts, when in truth he was not a joint owner. The law does not require that the names of intervening landowners should be set out in the petition, though it is proper that they should be. Boyd v. Negley, 4 Wr. 377. 5. Nor is it necessary that a tenant should be named. Ibid. 6. It is not a defect for the petitioner to say that the road is to carry his coal and the coal of other parties thereon. The grades need not be set out. Ihid. 7. It is not a sufficient objection that the petitioner had a right of way to a river and a right to connect with a railroad. Ibid. 8. The Court can allow amendments after report made averring additional pur- chases. Ibid. 9. Before sending an appeal to a jury for trial on the question of damages, the Court should approve or disapprove of the finding upon the question of necessity. Ibid. 10. Those laying a lateral or under- ground railway acquire no title to the stone, wood, or minerals removed. Trover will lie therefor, and the plaintiff is en- titled to damages as of the time of con- version. Lyon V. Gormly, 3 P. F. Smith, 261. 11. The true line of a lateral railroad is that which is surveyed by the petitioner, and marked on the ground. A mistake is amendable. Boyd v. Negley, 3 P. F. Smith, 387. A petitioner cannot change his grade after assessment so as to injure the owner.' Ibid. 12. In proceedings against a railroad for damages for taking land, &c., it is not competent for the plaintiff to show an injury to unused water power, or that power might be gained by erecting a new EAI 212 EAI dam further down. Dorian v. B. B. B. Co., 10 Wr. 520. 13. The admission of evidence of an ofiFer by the company to remove obstruc- ti(^ns is not the subject of error if con- trolled by a charge that it is to be disre- garded. Ibid. 14. A viewer is competent as a witness on appeal, though the road was not com- pleted when he examined it. Surplus water power not in use is a legal ground of claim at its actual market value. Ibid. 15. In assessing damages a jury may consider the inconvenience in crossing the railroad. B. B. v Heister, 4 Wr. 53. 16. An offer to claim no damages if the road is located in a particular place is not binding if not accepted when made. Ibid. 17. An appeal from assessment of dam- ages ought not to be withdrawn except by consent. Brown v. Corey, 7 Wr. 495. 18. In assessing damages the effect on the whole tract should be considered. Brownv. Corey, "7 Wr. 495. Dangers and delays, and depreciation from crossings, are items of damages. Ibid. Opinions of ex- perts entitled to weight in such cases. Ibid. 19. Ejectment will not lie because the execution for damages is returned nulla bona. Canal Co. v. Hireen, 8 Wr. 418. 20. A finding of damages should not be set aside on an allegation that the petitioner has no title. The remedy is by objection Leiore the jury are appointed, or by ap- peal. Church V. Bailway, 9 Wr. 339. 21. After proceeding for damages for^ the opening of a road, the petitioner can- not maintain error in the opening of the road. Weaver't; Bead, 9 Wr. 405. 22. A promise to pay for withdrawal of objection to a road is binding. Weeks V. Lippincott, 6 Wr. 414. 23. A bond for payment of all damages by reason of location of a railroad covers damages for construction, and all damages the plaintiff could under any circumstances recover. Wadhams v. B. R., 6 Wr. 303. 24. Hence, if such a bond is filed the owner cannot recover the land from the company in ejectment. Ibid. 25. Nor can the owner allege that the company should have attempted to agree with him as to the damages before they filed the bond, for, as it is permitted to be liled by the Court after notice, the owner is piecluded by the order. Ibid. 26. The power of supervisors under an opening order is exhausted by action upon it, although not laid on the ground selected by the viewers it cannot be changed. Morrow v. Com., 12 Wr. 305. 21. If a road is not opened under an order, mere use with acquiescence of supervisors is not competent to change the route selected by the viewers. Ibid. 28. The testimony of a viewer and sur- veyor and of all others capable of testify- ing to the fact should be received to the point, whether a fence in controversy is upon or outside of a road as located by viewers. Ibid. 29. A Court has no jurisdiction to vacate a road without a sufficient descrip- tion. Chartiers Township Boad, 12 Wr. 314. 30. A confirmation of a report, not at the next term after it is filed, is a fatal irregularity. Chartiers Township Boad, 12 Wr. 314. 31. The Act of April 14, 1834, (allow- ing suits against railroads and canals to be removed into another county,) does not apply to an appeal from the report of viewers when it assumes the form of a suit against the company. Binneo v. Bailroad Co., 7 Wr. 361. 32. Reviews, like views, must be re- ported at the next term or be continued by the Court, otherwise they are invalid. Heidelberg Township Boad, 11 Wr. 536. 33. If councils of a city vacate a foot- way to a railroad company to revert in a certain contingency, and the contingency happens, the street reverts as a highway without new condemnation. Suspension of the public right does not destroy it. Ba. B. B. Co. V. Orain Elevator Co., 14 Wr. 499. 34. The decision of viewers cannot be reviewed in the Supreme Court on the merits or facts. Ba. B. B. Co. v. Lu- theran Church Congregation, 3 B. F. Smith, 445. 35. No bill of exceptions lies in such a ease. Ibid. The Court below can amend the petition. Ibid. 36. The statutes allowing assessment of damages for tunnelling beneath a church, apply to the church and buildings (including the parsonage) on the same lot where they are an entirety. Ibid. 3t. Land granted to the Commonwealth EAI 213 EAI forever for the purpose of a canal does not revert upon the abandonment of the canal. Craig v. Mayor, 3 P. F. Smith, ill. 38. A claimant is not barred from de- manding damages for location of a rail- road because of his statement that if the company would change the location he would give the land for nothing, and their answerthat they would "try to accommo- date him." PerRYON, P. J., afiBrmed by Supreme Court. B. R. Co. v. Schollen- berger, -t P. F. Smith, 144. 39. An owner can claim for deposit of earth and stone by a company on his land outside of the right of way taken for the road. Ibid. 40. A company have the right, unless re- strained by the charter, to locate their route and stations to suit their own and the public convenience. They are not responsible for the destruction of a bridge because they placed a station near it and did not shut off the steam. Turnpike Co. v. P. P. Co., 4 P. F. Smith, 345 41. The market value of the land taken is the standard of damages against a rail- road for taking land. To this may be added the disadvantages to the rest of the property from the manner in which it may be cut, allowing for advantages from the road. P. P. Co. v. Hottenstine, 11 Wr. 28. The jury may properly inquire " what the property would sell for before and after the road is made and in success- ful operation." Ibid, and Harvey v. P. P., 11 Wr. 428. 42. The plan originally adopted for a private railroad and on which damages are assessed, cannot be changed. Lance's Appeal, 5 P. F. Smith, 16. 42^. Increased competition is not a ground for damage in taking land ; nor the particular use to which the owner puts the ground ; uor the removal of tramways which have been illegally placed on a highway. Harvey v. Pail- road Co., 11 Wr. 428. 43. The jury may properly itemize the damages and give items of the total in their verdict. Ibid. 44. Tramways across a highway are a nuisance, although placed there by the owner of the soil. Ibid. 45. The measure of the damages to be assessed against a railroad company for taking land is the difference between the value of the land before the road was built and its value after the road is finished. Harvey's Ca.se, 11 Wr. 434. Hornstein v. Atlantic P. P. Co., 1 P. F. Smith, 8*7. 46. Damages are not to be allowed for smoke, dust, noise, danger from sparks, or any consequential or speculative dam- ages. Ibid. 47. A railroad company who agreed to fence are not liable in tort for the killing of cattle by a train passing through the" land they should have fenced. The remedy, if any, is on the agreement, to fence. Brake v. Philadelphia and Erie P. P. Co., 1 P. F. Smith, 240. 48. A railrond company has the right to burn coal in their engines, but the latest improvement in its management should be applied, and a failure herein is negligence, rendering them liable for loss arising therefrom. Lackawanna Co. v. Doak, 2 P. F. Smith, 37 9. 49. If a railroad company claim a license to enter upon land without com- pensation or security, they must produce either a writing or full, distinct and un- equivocal proof. Per Agnew, J. U7i- angat'K Appeal, bP. F. Smith, 128. 50. A license upon condition is for- feited if the condition is violated. Ibid. Permission to enter subject to two condi- tions is forfeited if only one condition is complied with, and the company will be enjoined. Ibid. 51. Equity will enjoin a railroad com- pany from entering upon land under a license, the conditions of which have been violated. Unavgst's Appeal, 5 P. F. Smith, 128. 52. An appeal from report of viewers of railroad damages must be entered within thirty days from the filing (not the confirmation) of the report. Gwin- ner v. P. P. Co., 5 P. F. Smith, 126. 53. In proceedings to assess railroad damages the report need not state the number of acres, (if the courses, &c., are given,) nor the quality of the land if it is described as town land, &c. P. P. Co. v. Bruner, 5 P. F. Smith, 318. No appeal lies as to the facts. Ibid 54. An owner of land (fronting on a street has no claim for damages against a railroad company for removing their rails from one part to another part of the highway. Snyder v. P. P. Co., 5 P. F. Smith, 340. EAI 214 RAI 11.. Proceedings for damages to per- sons AND PERSONAL PROPERTY— Herein AS TO PASSENGERS, EMPLOYEES, PERSONS AND PROPERTY AT CROSSINGS — OB- STRUCTING HIGHWAY. 1. Concurrent negligence bars recovery. B. B. Co. V. Evans, 3 P. F. Smith, 250. 2. A plaintiff has the right to cross a railroad upon a street. On approaching it, he should stop, not so near to or on the road as to be strucl^ ; and look and listen. It is negligence in him not to exercise his senses correctly. The company have the right to run locomotives on their road, but in approaching grade crossings they are bound to give sufficient notice to warn persons of ordinary prudence of their ap- proach, ill. B. Go. V. Evans, 3 P. F. Smith, 250. 3. A railroad company is not liable for mules killed at large at a public crossing, although the engineer is guilty of some negligence, and although the owner had left them in a secure enclosure. The owner can only recover in cases of wanton injury or gross negligence. Per Thomp- son, J. B B. Co. V. Behman, 13 Wr. 101. 4. It is not negligence for one right- fully on the track of a railroad (as an employee on a hand-car) to approach a train at a station. B. B. Go. v. Arin- strong, 13 Wr. 186. 5. But he must exercise care in ap- proaching it, and hence it is error to charge, without reference to his duty, that it is not negligence to approach unless he knew the train was in piotion, for the question of negligence should be referred to the jury. Ibid. 6. A party cannot recover whose neg- ligence contributes to the injury. Ibid. 7. The servant of a railroad company can' recover against another company leasing the track of his employers. Ibid. 8. The engineer of a train producing an injury must be released to make him a ' competent witness. Ibid. 9. It is competent for a workman em- ployed by a supervisor for repairing, &c., on the road, to show that he was a pas- senger when injured, and to prove this by evidence that "the custom was to ride in the baggage cars and to assist with the freight " O'Donnell v. B. B. Co., 14 Wr. 400. 10. If the plaintiff's son is guilty of want of ordinary care in running with f,n engine, and his want of care contributes to produce an injury, the plaintiff cannot recover. Per Williams, J., affirmed by Supreme Court. Oakland Bailway Co. v. Fielding, 12 Wr. 320. 11. A railway company in possession of a street are bound to keep the part over which the track is laid in repair, and may be liable in damages for a hole left in their track, though made by others. They are primarily liable if they have notice of the hole and neglect to repair it Ibid 12. In judging of the negligence of the plaintiff's son, a jury should consider his age and capacities, and apply the same standard they would apply in judging the conduct of boys of like age and capacity Ibid. 13. If it is the habit of other boys of like age and capacity to run with engines to a fire, the jury may consider that fact upon the question of misconduct. Ibid. 14. The damages to be recovered by a father for an injury to his son are com- pensation for loss of his services, fo^ nursing and for medical attendance. B)id. 15. The' same degree of caution is not required of a child as of an adult. B. B. V. Spearen, 11 Wr. 300. 16. But if a child dart suddenly in front of an engine below a crossing where the child had no right to be and the en- gine being in full view, she cannot re- cover. Ibid. 11. Nor can she recover because the engine was following a preceding train at a shorter distance than allowed by the rules of the company, nor because of the omission to whistle. Ibid. 18. The authorities as to negligence of adults and children collected by Agnew, J. Ibid. 19. Where both sides offer evidence as to negligence of both, the defendants can- not ask the Court to do more than to sub- mit the question to the jury. Bailroad V. McTkjhe, 10 T7r. 316. 20. It is not error to refuse to charge that the plaintiff " ought to show he used the care necessary to prevent a collision or to pass by without collision." Ibid. 21. To obtain instructions on a given hypothesis, the facts must be stated hy- pothetically. Ibid. Note. — In this caso the plaintiff recoverpd for injuries received by backiug iigiiinst a train of cars standiuij in a street. EAI 215 EAI 22. Where a railroad does not inter- sect a crossing and where their right is exclusive, it is not negligence to omit notice of the approach of cars. There can be no recovery by one who goes on the track in such a case, and it is error to refer the question to the jury. B. B. Go. V. Hummell, 8 Wr. 315. 23. A corporation is liable in trespass for the loss of a servant in the course of his employment. Penna. B. B. Go. v. Vandimr, 6 Wr. 365. 24. Although a passenger has not paid his fare, the company is liable in damages if more force than is necessary is used to eject hira. Ibid. 25. If there is evidence that an officer of the defendant forcibly removed the hands of a passenger from the car so that he fell and died, it is not error to decline to charge the jury to find for de- fendants. Penna. B. B. Go. v. Van- dimr, 6 Wr. 365. 26. The English and American cases as to liability of corporations for torts collected in a learned opinion by Read, J. Ibid. 27. If a railroad carrier Contribute to the negligence whereby injury results to a passenger, th* suit should be against the carrier, and not against others whose negligence concarred in producing the injury. If the carrier did not contribute directly Xo i\\& disaster, (although there may have been negligence in running too rapidly,) those can be sued whose acts were the proximate cause. Lockhartv. Lichtenthaler, 10 Wr. 15,1. 28. If defendants leave barrels near a track, they should not be sued for dam- ages thus occasioned in running the cars off, if the carrier's negligence concurred. The remedy in such ease is against the carrier alone. Ibid. 29. The English and American cases reviewed per Thompson, J. Ibid. 30. An engineer is not indictable for nuisance for obstructing a highway with cars. The remedy is exclusively under Act of 1845 for penalty of twenty-Jive dollars. Com. v. Gapp, 12 Wr. 53. 31. In an action against a railroad com- pany for damages from death by negli- gence, it is error to charge that if the deceased "knew his danger in time to escape and did not, the fault was his." The instruction ought to be " that he is charged with knowledge or regarded as knowing, if he had such warnings and opportunities of knowledge as would with ordinary caution in those circum- stances have saved him from danger." Bailroad v. Henderson, 1 Wr. 449. 32. The mere fact of going towards a moving train without leave is not of itself carelessness. Ibid. 33. A conductor has a right to put out a drunken and abusive passenger who refuses to be quiet. Keenan v. Gom., 8 Wr. 60. 34. In suits for loss of a parent's life all the children must join, although but one suffers pecuniary damage. They recover in equal proportions. Per Hare, J., affirmed by Supreme Court. Bailroad V. Bobinson, 8 Wr. 175. 35. Negligence is a mixed question of law and fact. Neglect of a warning not to pass a track is not negligence, but evidence of negligence. If the warning convey a knowledge of the state of the case and of the danger, and the party go on vtith knowledge so derived or from any other source, so as to convey a knowledge of his situation, it is a bar to the action. Per Hare, J. Ibid. 36. One who is negligently on a rail- road track cannot claim damages from another also negligently using the track. Heil V Glanding, 6 Wr. 493. Use of a track without airthority is negligence which bars recovery for damages. Ibid. 37. It is the duty of railroad companies to adopt the best precautions against danger. But ordinary care in view of the circumstances is all that is required; and if they use a good spark-catcher in common use, and approved by experi- enced mechanics, they are not required to use any greater skill in respect to the spark-catcher used by them. Turnpike Go. V. B. B. Go., 4 P. F. Smith, 345. 38. The contract to carry includes the duty of giving a reasonable opportunity to alight in safety, and an action will lie for neglect of this duty. Bailway Go. v. Stutter, 4 P. F. Smith, 375. 39. But a mother cannot sue for a to r growing out of a contract to carry her minor son, although he earned money for her, and she nursed him and furnished medicines. Ibid. Note. — The injury in this case did not result in death. 40. A mother can recover damages for the death of her son, arid her claim is not limited to nursing, melical attendance EAI 216 EAI and funeral expenses. She can recover fou lost services. B. It. Go. v. Bantom, 4 P. F. Smith, 495. 41. A railroad company who agreed to fence are not liable in tort for the killing of cattle by a train passing through the land they should have fenced. The remedy, if any, is on the agreement to fence. Drake v. Phila. and Erie B. B. Co., 1 P. F. Smith, 240. 42. In an action against a railroad company for damages resulting from negligence, causing death, it is not err>jr for the Court to advert to the fact that an emigrant car was behind time, although that delay was not laid in the declaration. Penna. B. B. Go. v. Hen- derson, 1 P. F. Smith, 315. 43. A drover's free pass, containing an endorsement that he " assumed all risks of accidents, and expressly agreed that the company should not be liable under any circumstances, whether of negligence or otherwise, &c.," is no bar to an action brought by his widow to recover damages for his death, occasioned by the negli- gence of the defendants. Ihid. 44. If the agents of a company act improperly in attaching freight cars to a passenger train, the company cannot repudiate the act so as to free itself from responsibility for negligence on the ground of want of power in the agent. Per CoNTNGHAM, P. J., afSrmed by Supreme Court in Lackawanna and B. B. B. Co. V. Cheneivith, 2 P. F. Smith, 382. 45. Nor is the company exonerated from the risk of subsequent negligence because the plaintiff agreed to assume all the risks of attaching the car. Per CoNYNGHAM, P. J., affirmed in Ibid. 46. Nor is the company relieved be- cause the passenger agr.ee to act as brakes- man. Per CoNYNGHAM, P. J., affirmed in Ibid. 41. Though a railroad company is not bound, to fence against cattle, yet as be- tween the company and its passengers it must take the risk of injury to them from such a cause. Per Thompson, J. I bid. 48. The fact of cattle being on the track at the time of an accident always raises a question of negligence or care, only determinable by the jury. Per Thompson, J. Ibid. 49. The fact that a plaintiff is on the rear platform at the moment an accident occurs, does not necessarily cany the case against him. It is for the jury to say whether this increased the danger, and whether the injury is the result of an unauthorized change of position or con- duced to it. If these facts are affirmar tively found, negligence is established and the plaintiff cannot recover. Per Conyng- HAM, p. J., affirmed by Thompson, J. Ibid. 50. A passenger is entitled to be com- pensated for an injury resulting from the negligence of the carriers, although he is out of his seat, if this do not contribute to the injury. Per Thompson, J. Ibid. 51. If a passenger stand upon a plat- form where he is conducted by the defend- ant's watchman, it cannot be imputed to him as negligence that he was there and not in the station-house. B. B. Go. y. Henderson, 1 P. F. Smith, 315. 52. It is not error in such a case to de- cline to charge the jury "that in estimat- ing the pecuniary value of the life of the plaintiff's husband, they must, if they can, fix a period in his life when, if he had lived, he would have acquired property beyond his debts." Ibid. 53. It is competent for the plaintiff to prove that after the death the agents of the company condemned and removed the platform. Ibid. 54. It is not error to allow a witness to be asked whether the attention of a pas- senger would not necessarily be directed to the car he is about to enter. Ibid. 55. It is competent to ask a witness, from his knowledge of deceased, how long the deceased would have been useful to his family. Ibid. 56. The law of deaths from negligence and of releases to carriers fully reviewed and English and American decisions col- lected by Read, J. Ibid. 322, &c. 51. A railroad company is liable for injuries received by a passenger from the fighting of others in the cars, if the con- ductor did not make proper efforts to stop the disturbance. He should stop the train, call the hands and passengers to his assistance, and make an earnest effort to expel the rioters. Per Stone, A. J., affirmed by Supreme Court. Bailway Co V. Hinds, 3 P. F. Smith, 512. 58. But the company are not bound to furnish a force sufficient to prevent a mob from rushing into the cars. Ibid. 59. A passenger who undertakes to perform the duty of an employee at the EAI 217 EAI rfiquest of a conductor, assumes the risk of the act, but if, after the performance of the act, he is injured by the negligence of the engineer, the company is liable. R. B. Co. V. Myers, 5 P. F. Smith, 288. 60. A company wliose cars and ser- vants occasion an injury are liable, although they do not own the road on which they run. B. B. Co. v. Coyle, 5 F. F. Smith, 396. 61. One approaching a track is bound to stop, look and listen. B. B. Co. v. Goyle, 5 P. F. Smith, 396. 62. A servant injured by the negligence or misconduct of a fellow-servant cannot recover from the employer, unless there was fault in the selection of the wrong- doer, or in continuing him after he had proved incompetent, or in the use of un- safe machinery. Per Pearson, P. J., affirmed Weger v. B. B. Co., 5 P. F. Smith, 460. 63. A servant is not entitled to the same protection as a passenger. The presumptions are all against the company in the case of a passenger, and against the employee in his case. Ibid. 64. Retention of a servant after an accident is not evidence of acquiescence in his acts. Ibid. iii. as to right of connection — License to connect — Liability to MAINTAIN, clean, AND REPAIR ROAD, BRIDGE, STREETS— Right to existing LOCATION — Cases as to Warren and Franklin Railway. L A railroad company cannot restrain a corporation connecting with their track from removing the connecting road. Southioark B. B. v. City, 11 Wr. 31 i. 2. Permission to connect is a mere license, and it is no violation of contract for the State to authorize the removal of the road to be connected with. Ibid. 3. A corporation cannot be compelled to maintain a road no longer profitable. Ibid. 4. A railroad having the right of con- nection cannot be deprived thereof with- out compensation. The owners of the road connected with cannot take it up even by permission of the State. Bead- ing B. B. V. The City, 11 Wr. 325. 5. Where both sides offer evidence as to negligence of both, the defendants can- not ask the Court to do more than to submit the question to the jury. Bail- road V. McTighe, 10 m*. 316. 6. When a person or corporation 'is bound to repair a public highway and neglects this duty, the proper public officers may, on notice, repair it, and re- cover in assumpsit. B. B. Co. v. Du- quesne, 10 Wr. 223. 7. If an Act of Assembly allow pri- vate parties to occupy a bridge with a railroad and require them to construct a footway, they must maintain it while they use the privilege granted. Phcenix- ville V. Iron Co., 9 Wr. 135. 8. It is a fair presumption that the Legislature never intends to give away public rights or to impose burdens upon a local community without compensation. Per Strong, J. Ibid. 9. In Erie county a road juror can only be challenged for interest. Having rendered a verdict in the same cause which had been set aside is not ground of challenge. Boad Commissioners v. Morgan, 11 Wr. 276. 10. A license to connect with a railroad, though for valuable consideration paid, and though improvements be established on faith thereof, is revocable. Branson V. The City, 11 Wr. 329. 11. A passenger railway occupying a highway under an ordinance which re- quires the company " to keep the street in good order and repair from curb to curb," is bound to clean the street. Pa.'i- senger Bailroad Co. v. Birmingham, 1 P. F. Smith, 41. 12. On neglect of this duty the au- thorities can clean the street and recover the cost thereof from the company. Ibid. 13. A location made by an existing railroad company cannot be interfered with by a company subsequently incor- porated. Warren and Franklin Bail- way Co. V. Clarion Land Co., 4 P. F. Smith, 28. 14. The land to be held by the Clarion Land Company must be in fee simple. Ibid. 15. A power to "construct. a railroad from their own lands to connect with any road, or to any stream, not to exceed twenty miles in length," does not give authority to build a road independent of their own lands for profit from travel. Without lands they could build no road, and all the roads together cannot exceed twenty miles in length. Ihid. EEA 218 EEN REAL ESTATE. When legacy is oris not charged. See Will. As to other matters. See Land. 1. Rolls cast for and delivered to a mill, but not put into it, are personal property. The intention cannot make it otherwise unless they are attached. Johnson v. Mehaffy, 1 Wr. 308. 2. A lathe is covered by a mortgage on a machine shop. A purchaser ac- quires no title as against the mortgagee. Jdoskins V. Woodward, 9 W7\ 42. 3. A steam-engine in a mill is realty. Witmer's Appeal, 9 Wr. 455. 4. Fragments of a torn building and cut timber on the ground may be treated by the owner as part of his freehold. Altemose v. Huf smith, 9 Wr. 121. 5. The temporary hiring of new boilers in place of old boilers, and putting them in place, does not make them realty, or subject them to the lien of a mortgage upon the old machinery. JEill v. Sewald, 3 P. F. Smith, 21 \. RECEIYER Cannot sue in his own name. And, generally, see Equity I., 35. RECONYEYAlSrCE Necessary to rescind. See Contract IX., 1, 2. Not necessary in order to defend for usury. See Debtor and Creditor II., 22. RECORD. Sufficiency of record in criminal cases. See Criminal Law, 2, 20, 28, 30, 31, 32. Evidence of. See Evidence VI., 2, 3, 4, 5, 6, 11, 14, n, 29, 37, 38, 39; IX., 4. Record of conviction of forgery not evidence against a plaintiff suing on same note. See Euidence VII., 15. Neglect to record and giving false credit. See Husband and Wife II., 12. If mortgage not recorded in mortgage book, it is unrecorded. See Mortgage IV., 1, 2. RECOVERY. (Former.) See Former Becovery. REDEMPTION Of legacy. See Legacy and Decedents' Estates YI. and IX. REFEREES. Mistake of. See Arbitration, II, 18. REGISTER AND REGISTER'S BONDS. 1. The sureties of a register upon his official bond are not responsible for col- lateral inheritance taxes retained by the register, the law providing for them another bond. Com v. Toms, 9 Wr. 408. RELEASE. Mental unsoundness. See Imbecility. RELIGIOUS SOCIETIES. See Corporations VII. Trespass will lie for seizing any thing but liquors under act prohibiting sales near camp meetings. See Trespass. REMAINDERS. See Wills. REMEDY. Effect on remedy by repeal of statute. See Courts, § 4. RENEWING NOTES Under a mortgage to secure future advances. See Mortgage I., 3, 5. Under a judgment. See Debtor and Creditor YIII., 4. EEN 219 EES RENT. Forfeiture and waiver. See Land XII., 3, 4, 8, 10, IT, IS, 19, 20, 21, 22; see Landlord and Tenant, 2, 3, 4, 6, T, 9, 10, 11, 13, 15, 17, 18, 40. Repayino; improvement loan is not rent, though called rent. See Landlord and Tenant, 19. Cannot be set-off against liens. See Mechanics^ Claim, 21, 22. Arrears of, will not defend lien of leasehold mortgage. See Mortgage VI., 4. REPEAL. Effect of, on remedy. See Courts, § 4. REPLEVIN. Reconveyance necessary to rescind con- tract. See Contract IX., 1, 2. Damages in replevin. See Damages, 10, 23. Will not lie for goods exempt. See Execution III., 18. For timber cut. See Land VI., 9, 10. 1. The mere delivery to the plaintiff in replevin of the goods does not tend to prove that the plaintiff owns them. Lovett V. Burkhardt, 8 Wr. 173. 2. A plea by defendant in replevin that the goods had been delivered to him by the sheriff upon a former replevin, is frivolous. Ibid. 3. A jury are not confined to the value of the property, but may go beyond it, if there has been outrage and oppression. Schofield V. Ferrers, 10 Wr. 438. 'i. And this, although there is no count for special damage. Ibid. 5 The jury need not sever the damages for value from those given for the tort. Ibid. 6. A defendant retaining goods cannot satisfy the judgment by returning them. Retorno habendo has no existence except when the goods have been replevined and the judgment is for defendant. Ibid. 1. A plaintiff in replevin cannot dis- charge the sureties by depositing the money in Court. Cummings v. Gann, 2 P. F. Smith, 484. 8. Non cepit and property can both be pleaded in replevin. There is no incon- sistency in them Cummings v. Gann, 2 P. F. Smith, 491. 9. An avowant can recover for less than his avowry alleges to be due. Per Strong, J. Barr v. Hughes, 8 Wr. 516. RESERVATION. Out of grant. SeeLandlX., 5, 11, 13. RESCISSION. Reconveyance necessary to rescind. See Contract IX., 1, 2. By parol. See Vendor and Vendee. RES GEST^. See Evidence, and, generally. Evidence VL, 18. RESIDENCE. 1. Not changed by enlisting. Graham V. Com., 1 P. F. Smith, 255. 2. The fact of changing the uses of different parts of the same house, or de- serting or not using the principal part of it at all, affords no ground for allegiog a change of residence. Webster v. Boss, 6 Wr. 418. 3. Property of non-resident can be taxed. Maltby v. Railroad, 2 P. F. Smith, 140. RESIDENT. See Residence. RESPONDEAT SUPERIOR. See, generally, Railroads and Corpora- tions. RESTITUTION. See Errors and Appeals V., 21 ; see Ejectment IV., 1, 3. RESTORATION Of membership. See Corporations IV., 28, 29, 34, 35, 36, 37. EES 220 ROA RESTRAINT. A defendant in a judicial sale cannot object that his title contains a restraint on alienation. See Ejectment II., 12. Restraints on trade. See Equity I, 63, 64. RESULTING TRUSTS. See, generally. Trusts. As to limitations barring trusts. See Limitations I., 1, 2. RESURVEY. See, generally. Land I. RETROACTIVE AND RETRO- SPECTIVE. Acts of limitation may be. See Limitations IV., 24, 40. REWARD. The offer of a reward for the recovery of stolen property, though made to the sheriff, is not for him alone, but for every- body, and any captor is entitled to the reward and to retain the property until paid. Cummings v. Gann, 2 P. F. Smith, 484. RIVERS. As to port wardens of Philadelphia. See Philadelphia. As to bridges, non-liability of bridge companies and rivers generally. See Water. ROADS, STREETS, &o. 1. A road lawfully opened cannot be changed because the town council had no authority to appoint the supervisor who opened it, nor can it when once opened be afterwards changed by another officer. If he do so, he is liable in trespass to a party whose land he takes. Boss v. Mal- com, 4 Wr. 284. 2. Where a supervisor opens a road it is to be presumed he was the proper oflS- cer to do so, and the burden of showing the contrary is on the parly denying his authority. Ibid. ■6. The Act of April 22, 1856, applies only to cases where the borough authori- ties have power to lay out new streets. Boad in Milton, 4 Wr. 300. 4. A county road law which only mentions townships and township offi- cers, applies also to roads in boroughs. Ibid. 5. Where a road is ordered by the Court, the county and not the borough should pay the damages. Ibid. 6. When a highway is dedicated to public use a city may become bound to repair by adopting it, and making repairs is evidence of adoption. Munn v. Pitts- burg, 4 Wr. 310. I. The fact that a street has been thrown open and used as a public high- way for twenty-six years is evidence of a dedication. Darlington v. Com., 5 Wr. 63. 8. A private plan is not evidence to contradict a dedication. Ibid. 9. Although an ordinance may require certain width of cartways and sidewalks, yet if a highway is dedicated to the pub- lic, the city may grade and pave it, though it be not opened its entire length of the proper width. Ibid. 10. When the councils of Philadelphia have ordered a street marked upon a public plan to be opened, and the dam- ages have been assessed, the owner may sue for them after a year, although the street has not been opened. City v. Dyer, 5 Wr. 463. II. The city in such a case is liable for interest, although the owner remain in possession until suit brought. Ibid. 12. Land so circumstanced cannot be built upon or improved except at the hazard of the improver. Per Strong, J. Ibid. 13. Lien creditors on such land may be protected by ordering the fund into Court. Ibid. 14. If one fill up a drain made by a public supervisor, he cannot escape the penalty of the sixty-seventh section of the general road law by showing that his act had not injured the road, that the drain \Yas improper, that a former super- visor had agreed to take the water else- where, or that it was injurious to tiie deCetidant. Ileeker v. The Com., 6 Wr. 2S3. 15. After confirmation of a view nisi, an act changing the road laws would not prevent confirmation under the old law. EOA 221 EOA Hickory Tree Road, t Wr. 139. Spring Garden Road, 7 Wr. 144. 16. Though a proceeding be com- menced before the passage of an act, the subsequent steps' must be in conformity thereto. Ihid. 17. The Supreme Court will not re- view the facts of a road case. Spring Garden Road, T Wr. 144. 18. It is not error to refuse to order a third review. Ihid. 19. " Notice to be given in two news- papers nearest the road" does not mean German newspapers, although nearest to the road. Road in Upper Hanover, 8 Wr. 277. 20. A mill owner may dig arace through a highway of which he owns the fee-sim- ple, but he must build and maintain a bridge which will keep the way as good as before. If it were only a footway, a bridge for foot passengers is all that is required. If the public afterwards widen the road and erect anew bridge, he is not bound to maintain it in order. Fhcenix- villev. Iron Co., 9 Wr. 135. 21. The omission to fix the width of a road in the decree of confirmation nisi is cured by fixing it during the term, and if all parties have until the next term to file exceptions and the road is then duly granted, it cannot be expunged by rule to vacate, but only in the manner directed by road laws of June 13, 1836, § 18, and May 3, 1855, § 1. Hunter's Road, 10 Wr. 250. 22. He who causes a private road to be laid through his neighbor's land must do all necessary fencing. An agreement by a defendant to a fence in such a case is not nudum pactum, nor need it be in writing. Fleming v. Ramsey, 10 Wr. 252. 23. A property owner contracting for the paving of a street is liable, though the work be not done for two years, and though he in the meantime sell his lot. McDowell V. Johnson, 12 Wr. 483. 24. The quarter sessions may permit a lot owner to remit part of an award, and the Court may confirm the balance. Wharton St., 12 Wr. 487. 25. The quarter sessions cannot re- view the proceedings of commissioners appointed to lay out State roads under special Acts of Assembly without some express authority to the Court to do so, and this although the commissioners are to file their report in the ofBce of the clerk. State Road, 2 P. F. Smith, 161. 26. After a road is opened, the Court may review and change such parts of it as shall become useless or burdensome. Ibid. The road law and decisions re- viewed by Agnew, J. Ibid. 27. The quarter sessions, under road law of 1836, have only to lay out a, pri- vate road from lands of petitioners to a highway, to a place of necessary public resort, or to some other private way lead- ing to a highway. Sandy Lick Road, 1 P. F. Smith, 94. 28. A report which omits to set forth that the road is necessary should be set aside. Ibid. 29. A petition for a review must be presented "at or before the next term of the Court after the report upon the first viev7." These words of the act of the general road law are mandatory. Road in Indiana County, 1 P. F. Smith, 296. 30. An Act of Assembly directing the chief commissioner of highways to open a certain street in Philadelphia for public use is constitutional, although it indicate no method of ascertaining or securing damages to the owners of property takeu for the street. The Act of April 1, 1864, provides for damages only for streets laid out on public plans and ordered to be opened by councils, but the general road law of June 13, 183'6, provides a remedy. Smedley v. Irwin, 1 P. F. Smith, 445. 31. A Court cannot restrain the opening of a street because the act directing it to be done was " hastily and improvidently passed." Ibid. 32. Nor because the thirty days have expired within which the law directed the chief commissioner to open the street. Ihid. 33. A party in interest may sue out a certiorari in a road case, although not named. Road Commissioners v. Fick- i7iger, 1 P. F. Smith, 48. 34. But in such a case the proceedings, if regular, will not be reversed because the complainant below was not aggrieved and his complaint was a fraud upon those really interested in opposing the new road. Ibid. 35. A proviso recognizing the right of commissioners to assess damages confers the power to assess. Church Street, 4 P. F. Smith, 353. Testimony will not be reviewed in a road case. Ihid. RUL 222 SCI 36. The power of supervisors under an opening order is exliausted by action upon it. Although not laid on the ground selected by the viewers it cannot be changed. Morrow v. Com.., 12 Wr. 305. 31. If a road is net opened under an order, mere use with acquiescence of supervisors is not competent to change the route selected by the viewers. Ibid. 38. The testimony of a viewer and surveyor, and of all others capable of testifying to the fact, should be received to the point whether a fence in contro- versy is upon or outside of a road as located by viewers. Ibid. 39. A court has nojurisdiction to vacate a road without a sufficient description. Chartiers Toivnahip Eoad, 12 Wr. 314. 40. A confirmation of .a report, not at the next term after it is filed, is a fatal irregularity. Chartiers Township JRoad, 12 Wr. 814. 41. Reviews, like views, must be reported at the next term or be continued by the Court, otherwise they are invalid. Hei- delberg To]vnship Boad, 11 Wr. 586. 42. If councils of a city vacate a foot- way to a railroad company to revest in a certain contingency, and the contingency happens, the street reverts as a highway without new condemnation. Suspension of the public right does not destroy it. Pa. R. R. Go. V. Grain Elevator Co., 14 Wr. 499. 43. The decision of viewers cannot be reviewed in the Supreme Court on the merits or facts. Pa. R. R. Go. v. Lutheran Gongregation, 3 P. F. Smith, 445. 44. No bill of exceptions lies in such a case. Ibid. 45. The Court below can amend the petition. Ibid. 46. A claimant is not barred from de- manding damages for location of a rail- road because of his statement that if the company would change the location he would give the land for nothing, and their answer that they would " try to accommo- date him." Per Ryon, P. J., affirmed by Supreme Court. R. R. Go. v. Schollen- berger, 4 P. F. Smilh,,li4:. RULE IN SHELLY'S CASE. See Shelly. SABBATH. See Fquity I,, 86, 81, 88, I Sunday. and see SALE. What is a sale and what is a bailment. See, generally. Bailment. Fraudulent sales. See Fraud I.' As to setting aside Orphans' Court See Orphans' Gourt, 1, 2, 8, 9, 22, 23. As to sales generally. See Vendor and Vendee. SALT. See Land IX., 1, &c. SAMPLE. See Vendor and Vendee. SCHOOLS. 1. Under the school law of 1854, the seat of a director cannot be declared va- cant for non-attendance except upon de- fault " at two regular meetings." Special meetings are not "regular meetings." Zulich V. Bowman, 6 Wr. 83. 2. The illegal acts of school directors may be restrained, but not the indiscreet exercise of their discretion. Wharton y. School Directors, 6 Wr. 358. 3. A school district is not bound to pay for the tuition of her children in another district unless the agreement is "entered upon the minutes," under the school law of 1854, sec. 23, art. 9, (Br. Dig. 1U64.) Neither the acquiescence of the directors nor the written agreement of their presi- dent is sufficient. Cascade v. Lewis, 1 Wr. 318. 4. The Court of Quarter Sessions have no power to remove school directors for a reasonable exercise of a vested discretion, as the consolidation of two neighboring schools for a summer season. Heard v. Directors, 9 Wr. 93. 5. The discretion vested in school di- rectors as to assessing a tax cannot be reviewed. School Directors of Bedford v. Anderson, 9 Wr. 388. 6. School directors are not liable in conspiracy for discharging a teacher with- out cause, unless express malice be shown. Burton\. Fulton, 13 Wr. 151. SCIRE FACIAS. See Judgment V., 1, 9. Need not be served on one holding agreement to purchase. See Practice I., 8. SEA 223 SET SEATED LANDS. Vide Taxes. SECESSION. See Insurance V., 1, 2, 3 ; Constitutional Law, 34, 85, 36, 39, 40, 42, 54, 60, 62. Secession in church. See, generally. Corporations VII. SEDUCTION. 1. In an action for seduction, the female cannot be cross-examined as to her con- nection with other men. Hoffman v. Eemerer, 8 Wr. 452. SEQUESTRATION. See Corporations III., 1, &c. SERVANT. Negligence of. See Negligence, 4, 9, 14 ; and, generally, Railroads I., II. Dismissal of, before term expires. See Contract I., 3, 5. SERVICE Of summons. See Practice I., 2, 3, 6. SERVITUDES. See Easements, 1, 2. SETTLEMENT On land. See Landl., 28; VI., 4. Of pauper. See Poor, 5, T, 9. SET-OFF Allowed on notes given for part per- formance. See Contract I., 2. Appeal (not writ of error) lies on ap- plication to set-off judgments. See Errors and Appeals V. If defendant is not notified of assign- ment of judgment, his payment to origi- nal plaintiff is a defence against the assignee. See Judgment VIII., 3. Damages cannot be set-off against judgment. See Judgment VII., 1. Setting off judgment against judgment. See Judgment VII., 3, 4. Rent cannot be set-off against a lien. See Mechanic's Claim, 21, 22, 23. L An accommodation endorser of a promissory note discounted by a bank which assigned it along with other assets for value prior to its failure, cannot pay it in the notes of the broken bank. Housum V. Sogers, 4 Wr. 190. 2. Damages cannot be offset against a judgment. Kennedy v. Kennedy, 5 Wr. 185. 3. One bound to pay a recognizance may offset it by purchasing a judgment against the recognizee. Keagy v. Com., 7 Wr. 70. One who purchases a recog- nizance takes it, subject to every equity, unless he inquire of the debto.r, and without such inquiry he takes it subject to a set-off of a judgment against the recognizee purchased by the debtor, although the assignment is not of record. Ibid. 4. A set-off must be between parties claiming under the same right, hence where one contracts with a firm and at the same time with one of the partners, he cannot when sued by the partner set- off a breach of the firm article. Per Woodward, P. J., affirmed in Jackson v. Clymer, 7 Wr. 79. 5. Giving notes for part of goods de- livered does noc prevent defendant from offsetting his damages for the part not delivered, Fessler v. Lone, IWr. 313. 6. The maker of a note discounted by a bank, and passed by the bank to a de- positor as security for his deposit, cannot after the note has thus been passed obtain notes of the bank and offset them against their note, except for the excess of the security held by the depositor. Struthers V. Brown, 8 Wr. 469. 7'. Sending an accepted bill to a cred- itor is no discharge of a previous debt, unless he so accept it. If he omit to notify the sender of its non-payment, and thus discharge him as endorser, it is no defence to an action upon the original claim. Starr v. Sandford, 9 Wr. 193. 8. A tenant can set-off against the rent the value of an outbuilding which the lease bound the landlord to pay for, although the landlord notify the tenant not to put it up. Mc Vicker v. Denni- son, 9 Wr. 390, SET 224 SHE 9. Where a plaintiff has appealed from an award, a defendant may nse in a second suit the same set-off he used before ar- bitrators in the first suit. Bitzer v Kil- ' linger, 10 Wr. 44. 10. An obligor in a bond cannot set- off against the third holder a claim against the second holder of the bond. Blair v. Mathiott, 10 Wr. 262. 11. A justice cannot set-off against a judgment on his docket a larger judg- ment before another justice, nor can he find a balance to be thus due the de- fendant. Nor can such a finding be filed in the common pleas and made the sub- ject of .set-off there. Kline v. McKee, 10 Wr.bl^. 12. Where the equitable owner of two lots sells one for its full .value, the other lot is bound for the whole unpaid pur- chase money, and the party paying the same cannot set-off any portion of it against a claim held by the owner of the lot first sold. Gone v. Donaldson, 11 Wr. 363. 13. In the distribution of the estate of an insolvent decedent, a debtor to de- ceased at the time of his death cannot set-off a claim maturing after the death. Appeal of F. and M. Bank, 12 Wr. 51. A bank cannot claim to retain a deposit because of the non-payment of a note after the depositor's death, his estate being insolvent. Ibid. 14. A defendant cannot offset on ap- peal a claim above one hundred dollars. Walden v. Berry, 12 Wr. 456. 15. A plaintiff cannot appropriate items of set-off to another claim without consent of defendant. Maloney v. Davis, 12 Wr. 512. A set-off cannot be made to a set-off. Ibid. 16. One sued for timber cut by him under an agreement that he will sell the bark to a third party cannot set-off the value of the bark, the third party having failed. Winter v. Newell, 13 Wr. 507. 17. A purchaser can offset from the unpaid purchase money the value of tim- ber lawfully taken from the land by an adverse claimant. Weakland v. Hoffman, 14 Wr. 513. 18. In an action on a mortgage the mortgagor cannot offset rent due by the plaintiff' to one who has bought the prop- erty subject to the mortgage, and who is not joined as terre tenant. Scott v. Fritz, 1 P. F. Smith, 418. 19. A mortgagor estopped by his cer- tificate of no defence. Scott V. Sadler, 2 P. F. Smith, 211. 20. A debtor to an insolvent estate cannot buy up claims to offset them. Steamship v. Herron, 2 P. F. Smith, 282. 21. Setroff is not receivable under "payment" without notice. Iron Go. v. Rhule, 3 P. F. Smith, 93. 22. A right to call for an account which can only be settled in account render or by bill, is not the subject of a set-off. A set-off to a set-off will not be permitted. Russell v. Miller, 4 P. F. Smith, 154. 23. A debt due by plaintiff to one of two defendants can be offsetted. Hollis- ter V. Davis, 4 P. F. Smith, 508. 24. A borough treasurer cannot deduct in the settlement of his account a bond he holds against the borough. He must account as treasurer. Todd v. Patter- son, 5 P. F. Smith, 496. SHELLY— RULE IN SHELLT'S CASE. 1. A grant to one for life, and at his decease to descend to and vest in his chil- dren lawfully begotten, their heirs and assigns, as tenants in common, with a proviso that the grantee may by will ap- point the manner of division and the amount of interest of each child, does not amount to an estate tail, and is only a life- estate, because of the use of the word children, and because of the added words of limitation (heirs and assigns) and dis- tribution (tenants in common.) The words " descend to " cannot control all of these, and are merely the alternative of " vest in." Per Stkong, J. Tyler v. Moore, 6 Wr. 374. 2. A devise to one for life, and " at his death to his legal issue or heirs," makes him tenant in tail, and the reversion after the determination of the estate tail being undevised, descended to the heirs-at-law of the deceased. Angle v. Brosius, 7 Wr. 187. The will in thi& case was dated November 11, 1840. 3. A deed of personal property in trust to pay the income to the sole use of a married woman for life, and after her de- cease for the use of her appointees by will, and in default of appointment, " for the use of such persons as would have been her legal representatives had she died a w^idow," gives but a life-estate to SHE 225 SHE the first taker, and she is not entitled upon her husband's death to a transfer of the property ; upon her decease it goes to her next of kin. Ralston v. Wain, 8 Wr. 2T9. 4. A deed of real and personal prop- erty in trust for a married woman for life, with a power of appointment by will, and in default of appointment to convey "to her heirs and legal representatives," gives her as widow an absolute fee and a right to a conveyance. Ralston v. Wain, 8 Wr. 279. 5. Devise to one for life, and at his death to his heirs as tenants in common, gives a fee simple. Curtis v. Longstreth, (McNeran's Will,) 8 Wr. 297. 6. For life, and after his death to his chil- dren, share and share alike, is but a life- estate in the first taker. Ibid. I. And a limitation in default of issue does not affect it, for " issue " there means such issue, viz. : children. Ibid. 8. " -Heirs" construed to mean "issue." Seely v. Seely, 8 Wr. 434. 9. " In trust to pay income to A for life, and in case of his death, without leaving issue, to B," gives the first taker only an estate for life. The trust is good. Still V. Spear, 9 Wr. 168. 10. To A for life and at his decease to his lawful " issue, child or children then living, share and share alike," gives A only an estate for life. " Issue " is con- trolled by "children" "then living," and by the distribution. Walker v. Milligan, 9 Wr. 178. II. In trust to a wife for life, and after her death to her children then living, gives her but a life-estate. The trust sus- tained and reconveyance refused after divorce. Harris v. McElroy, 9 Wr. 216. 12. A conveyance to a married woman " and to her children exclusively, and their heirs and assigns," gives her a life- estate. The husband has no curtesy, ^nd children born afterwards are to share in the distribution, the period of which is the termination of the life-estate. Gour- ■sey -V.Davis, 10 Wr. 25. The American and English cases reviewed per Read, J. Ibid. 13. Devise to A, but "if she should be called away by death without a lawful heir," then over to her sisters, means if she should die without issue, provides for an indefinite failure of issue, is an estate tail and is barred by conveyance. Covert v. 'Robinson, 10 Wr. 274. 14. In a deed "issue" is universally a word of purchase. In a will it ia prima- rily a word of limitation Per Strokg, J. Powell Y. Board of Missions, 13 Wr. 46. 15. This, however, is but a presumption which may be overcome. Ibid. The addition of words of distribution ("if more than one to be equally divided") and of superadded limitation ("their heirs and assigns forever") will make "issue" a word of purchase. Ibid. 16. To my son for life, after his death to his issue, if more than one to be equally divided, their heirs and assigns forever, gives a life-estate only to the first taker. Ibid. 17. A devise in trust for a daughter for life, and after her decease to convey to her children and the issue of any deceased child, with power of devise to the first taker in default of issue, gives but a life- estate. Perry v. Lowber, 18 Wr. 483. 18. A devise to one in f^ee, followed by a codicil devising the estate in trust for his use for life, with power of appoint- ment to his children, and in default of appointment the remainder to be equally divided among his right heirs, carries the fee, for the estates are both legal, the law executes the trust, and "right heirs " in- exorably carries the fee, unless the intent is rebutted by evidence which leaves no doubt. The power of appointment and the addition of words of limitation (their heirs and assigns) do not change the result. Per Strong, J. Physick's Ap- peal, 14 Wr. 128. 19. A devise to trustees "to invest, to permit a daughter to receive the income for her sole use, and after her decease to assign the estate to her right heirs, their heirs and assigns, in such proportions as if the daughter had died seized in her right, intestate," passes the fee to the daughter, and upon discoverture she is entitled to a conveyance. The words of distribution do not affect the question unless the limi- tation is to heirs of the body. Per Strong, J. Nice's Appeal, 14 Wr. 148. 20. A devise to a daughter and her heirs, and "in case she die without heirs of her body," gives her an estate tail. Curran v. McMeen, 5 P. F. Smith, 487. Where an estate is given to survivors, they take a fee, unless a manifest inten- 15 SHE 226 SHE tion appear to the contrary. Per Gra- ham, P. J,, affirmed in Ibid. 21. Heirs construed to be a word of purchase, because the grantor defined them as grandchildren. Huss v. Ste- phens, 1 P. F. Smith, 288. 22. Devise to A and her heirs, for her use during life, and on her decease to her children, in default of child or issue to heirs of testator, gives life-estate to first taker, remainder to children, if any, and execulory devise to testator's heirs. Biehle's Appeal, 4 P. F. Smith, 91. 23. A devise to A, "and in case of his death unmarried or without issue," then over, provides for an indefinite failure of issue, passes an estate tail, and on sher- iff's sale of the land under judgment against'deceased and payment to the de- visee, the tail is barred. Matlack v. Boherts, 4 P. F. Smith, 142. SHERIFF— SHERIFF'S SALES, RETURNS AND DEEDS. As to sheriff's sale of heir's interest not discharging debts of decedent. See Decedents' Estates III., 5 ; XI., 2, 3. When no title passes, and what liens discharged by sheriff's sales. See, generally. Execution V. Distribution under sheriff's sales. See, Execution VIII., 10, 11, 12, 14, 15, 16, 19, 20. As to exemption. See, generally. Execution III. Sheriff's interpleader. See, generally, Execution VI. Sheriff's liability for seizing strangers' property. See Foreign Attachment, 1, 2. Lumping sales a fraud. See Fraud I., 18, 19 ; and see Execution VII., 1. Judgment against sheriff's vendee be- fore deed. See Judgment IV., 6. A railway passes as an appurtenance. See Land XI., 5. Sheriff's vendee not entitled to Vfay- goiug crop. See Landlord and Tenant, 3. Sheriff's vendee not entitled to rent before his deed is acknowledged. See Landlord and Tenant, 4. Sheriff's sales do not discharge taxes. See Taxes. 1. Where a sheriff makes a sale in par- tition, and under Act of 1T99, § 2, takes judgment bonds from the purchasers, which he enters up in his own name, it is negligence in the parties to wait nine years ; and if the money is lost, the ques- ti .u ought not to be taken from the jury, but submitted to them whether the loss was through the negligence of the sheriff. No assignment of the judgments was needed, and the parties ought to have seen to their collection. Snively v.. Com., 4 Wr. 75. 2. If a sheriff sell the interest of the defendant in certain goods, the purchaser is entitled to possession upon giving proper indemnity, and if the sheriff de- liver the goods to a claimant, he is liable to, the purchaser in trover. Patterson v. Anderson, 4 Wr. 359. 3. A sheriff is liable for food furnished at his request to militia who are aiding him to suppress a riot. Baush v. Ward, 8 Wr. 389. 4. After a levy by a sheriff upon geods sufficient to pay the debt, a larceny of part of the goods before sale will not ex- cuse the sheriff. Hartlieh v. McLane, 8 Wr. 510. 5. Pendency of a former suit is a bar to a second suit on a sheriff's bund. Com. V. Cope, 9 Wr. IBO. 6. A sheriff accepting indemnity is bound to sell the goods under his fi. fa. Connelly v. Walker, 9 Wr. 449. 1. A sheriff's sureties are not liable for his private bills. Com. v. Swope, 9 Wr. 535. 8. A sheriff receiving an execution with directions to levy, is bound to go and enter his levy in view of the property. Failing in this, if the execution is thereby postponed, the sheriff is liable. Per Tay- lor, P. J. Linton v. Com., 10 Tl r. 294. 9. When a sheriff dies, the coroner is entitled to execute the office, to control official deposits, return writs and pay over- moneys ; as soon as the sheriff's successor is qualified, the coroner's rights and duties pass to him. Alleghany Bank's Appeal, 12 Wr. 328. A Court cannot order a bank to pay into Court moneys deposited SHE 227 SHI by a sheriff; but if the bank comply with- out execution, it cannot afterwards appeal. lUd. 10. A tenant entitled to a way-going crop need not give notice at a sheriff's sale of the land. Miller v. Clement, 4 Wr. 484. Notice that he had bought it at a tax sale does not estop him from claiming as tenant. Ibid. }1. A crier may bid for and bny prop- erty at his own sale. Swires v. Brother- line, 5 Wr. 135. 12. A lumping sale is prima facie a fraud. Klopp v. Witnoyer, 7 Wr. 224. 13. A sale is not necessarily void be- cause the articles are not in view when sold. Klopp V. Witmoyer, 1 Wr. 225. 14. If a sheriff's sale is void, the de-, fendant may afterwards ratify the proceed- ings, and the title of the purchaser is good. Ibid. 226. 15. A sheriff need not endorse on the fi. fa. a list of the goods levied on. Such an endorsement is not exclusive evidence of the levy, except in favor of subsequent execution creditors. Weidenaaul v. Rey- nolds, 13 TT'V. 73. 16. A sheriff' can maintain trover against one who takes away person9,l property levied on by him, although the levy may have been wrongful. Weidenaaul v. Rey- nolds, 13 Wr. 73. 17. In such an action the defendant cannot prove that the property belonged to him. nid. The sheriff need not show he had actual possession in order to maintain trover. Ibid. A sheriff' may leave property in the hands of the debtor until the day of sale without losing his lien on it. Ibid. 18. A sheriff's return cannot be contra- dicted by a party to the writ in a ques- tion of distribution. Paxson^s Appeal, 13 Wr. 195. 19. Nor in a suit against the surety upon an interpleader. Hill v. Grant, 13 Wr. 200. 20. A sheriff can recover upon a bond taken to indemnify him for paying to a certain execution creditor, although the bond recite that the money was made upon that execution, and although the goods were first levied upon under that execution. And in an action upon the bond, the defendants cannot collaterally attack the decree of distribution. Per Maynard, p. J., affirmed by Supreme Court. Noble v. Cope, 14 Wr. 17. 21. In an action on a sheriff's bond for failure by the sheriff to pay over money received on & fi. fa., it is no defence that the narr. omits to recite the judgment whereon the fi. fa. issued. • Rioketson v. Com., 1 P. F. Smith, 155. 22. The death of the sheriff after re- ceipt of the money makes any demand unnecessary. Ibid. 23. The sureties are liable for interest upon moneys received by the sheriff". Ibid. 24. A sheriff's sale passes the interest of a cropper or one who farms on shares. Adams v. McKesson, 3 P. F. Smith, 81. 25. A sheriff's deed admitted in evi- dence without the judgment or execution ; assigned for error but not noticed, and judgment affirmed. Haydenv. Patterson, "l P F. Smith. 262. 26. A sheriff can show the falsity of his return if it were fraudulently procured by the party he is suing. The fraud estops the party defending on the return. Fva7is V. Matson, 1 P. F. Smith, 367. 27. One of two execution plaintiffs whose writs were against different de- fendants, but who levied on the same goods, cannot, after receiving the goods and giving bond for the return of the property, escape from his bond by run- ning the goods into another county and staying his fi. fa. Ibid. 28. A sherift''s vendee is protected by a judgment on tivo nihils, though entered against a feme covert on her mortgage. HarlmanY. Ogborn, 4 P. F. Smith, 120. SHIP. As to freight. See Freight. 1. The authority of the master of a ship in a foreign port to pledge it in a case of necessity is undoubted ; but the master cannot hypothecate to himself. Strong, J. Welsh v. Gabot, 3 Wr. 342. 'I. An implied lien does not necessarily arise out of the mere fact that necessary supplies have been furnished fur the ship. They must have been furnished on the credit of the ship, and whenever it is not relied on originally but personal security is taken, there is no lien. Ibid. 3. Where moneys are advanced on the personal credit of the masters and owners and not upon any pledge, there is no lien. Ibid. 4. In bottomry of ship and cargo be SIC 228 SPB longing to different owners, the bond is to be first satisfied out of the ship, and the cargo is only secondarily liable ; but the reason fails, and with it the rule, when they belong to the same person. Ibid 5. A bottomry bond charged pro rata upon freight and proceeds of sale of a ship. Ibid. 6. Title to a ship passes without bill of sale. Richardson v. Montgomery, 13 Wr. 203. 1. As against an execution creditor, the bill of sale of a ship need not be recorded. Ibid. SIC UTEEE. . See, generally, Negligence and Land. SLANDER. Evidence in mitigation of damages. See Evidence VII., 1 ; and below. 1. That the defendant has repeated a report originating from plaintiff's levity is only mitigation of damages, not a bar. Per Buffington, P. J., affirmed by Supreme Court. Fitzgerald v. Stewart, 3 P. F. Smith, 343. 2. It is no defence that others are re- peating similar slanders. General char- acter may be assailed, but reports of particular guilt are not evidence even in mitigation. Ihid. and Lukehart v. Byerly, Ibid. 418. The death of a plain- tiff after motion for a new trial does not abate the suit. Ibid. 3. The words " he has taken apples or stolen apples, or is a thi^f," charge either a trespass or a larceny, and being in the alternative are not actionable without a colloquium, and are not helped by an innuendo of larceny. Lukehart y. Byerly, 3 P. F. Smith, 418. SMELLS. Liability of corporations for nuisance. Vide Corporation II., 1. SOCIETIES, RELIGIOUS. See, generally. Corporations VII. SPECIAL PARTNER AND PART- NERSHIP. See Partnership III., 11, 13, 14, 18, 19, 20, &c. SPECIFIC LEGACY. See Will. SPECIFIC PERFORMANCE. A purchaser not paying is barred by the statute of limitations from claiming specific performance. See Limitations I,, 31. Specific performance under wills. See Wills. 1. Where the contract is for payment on delivery of deed, the vendee ought to tender the purchase money, but where one claiming under the vendor has taken off timber, a previous tender is unnecessary, for the amount due can only be settled by an account, and may be fixed by a con- ditional verdict. Baum v. Dubois, f Wr. 260. 2. A bill for a specific performance will not lie " for the sale of houses " in a certain street without designating their situation, size, material or area of ground. The complainant has his remedy at law for damages, but his bill is generally de- murrable. Hammer v. McEldowney, 10 Wr. 334. 3. Specific performance will not be en- forced in favor of a vendor unless he offer a marketable title which is beyond reason- able uncertainty. Per Agnkw, J. Swain V. Ins. Co., 4 P. F. Smith, 455. A title under a partition is defective where minors were defendants and no guardian appointed. Ibid. 4. A purchaser cannot have specific performance who neglects to make his payments, waits for several years, and does not sue until the land is sold and improved by a bona fide purchaser for value. Miller v. Henlan, 1 P. F. Smith, 265. 5. Specific performance is always the subject of discretion, and will not be en- forced in favor of a purchaser who per- mits a long time to elapse without evinc- ing a fixed intention to carry his contract into execution, and especially if the cir- cumstances are so altered as to work great injustice. Per Read, J. Ibid. 269. 6. Specific performance may be refused notwithstanding a contract obligation, if there be circumstances rendering it un- equitable. Per Thompson, J. Freetly V. Barnhart, 1 P. F. Smith, 281. SPI 229 STA T. The vendor must give a marketable title. There is no such thing as a doubt- ful title in a court of equity. Ihid. 8. It will be refused where the prop- erty is indescriptive and uncertain as to location and extent. Ibid. And vsrhere the object of the bill is simply to collect purchase money. Kauffmari's Appeal, 5 P. F. Smith, 383. 9. Where the purchase is not divisible, a defect in any one of a number of titles to be conveyed defeats the right to specific performance. The vendee is en- titled to all or none. Ibid. A convey- ance received without the covenants promised in the original contract may be returned. Ibid. SPIRITS. See, generally, Inspections. SPRINGS. Right to cut off subterranean springs. See Land X., 2. STAMPS. A bond is evidence against the obligor though not stamped. McGovern v. Hoesback, 3 P. F. Smith, 176. An insolvent bond need not be stamped. Ibid. STATE. Purchaser from State bound to repair bridges, &c. See Corporations 1Y.,^1. State not liable in damages unless pro- vision made. See Damages, 2, 9, 13, 15. Lien of State judgment not to be pre- ferred. See Lien, 2. State not to be prejudiced by omission of her officers. See Taxes. 1. Land granted to the State forever , for the purposes of a canal does not re- vert upon abandonment of the canal. Craig v. Mayor, .'i P. F. Smith, 417. 2. Under an act giving the consent of the State to the occupation of lands by the United States for an arsenal, and re- serving the right to serve process, civil and criminal, the coroner can hold an in- quest on the land ceded. Cou7ity v. Mc- Glung, 3 P. F. Smith, 482. STATES OP THE UNION. 1. In respect to all proceedings prior to judgment, the Courts of the different States are so far foreign that lis pendens is no plea. Smith v. Lathrop, 8 Wr. 326. 2. The decisions of the Courts of an- other State upon a charter in that State are the best evidence of the rights and duties of the stockholders. Per Strong, J. Merrimac Go. v. Levy, 4 P. F. Smith, 227. STATUTES. Effect of repealing statute on remedy. See Courts, 4. Act of limitation may be retrospective. See Limitations IV., 24. Remedy- against an engineer obstruct- ing a highway must be under the statute and not by indictment. See Railroads II., 30. 1. A proviso cannot contradict the grant. Bridge Co. v. Kirh, 10 Wr. 128. 2. Charters are to be construed strictly in favor of the Commonwealth, but rea- sonably. Ibid. 129. 3. Stray laws do not repeal the com- mon law remedy by trespass. Mikhell V. Wolf, 10 Wr. 147. 4. Unless the intention to make the act retrospective be clear and unequivo- cal, it will not be so construed. Megarge V. Manufacturing Co., 1- Wr. 442. To give it such effect " an" will not be con- strued "or." Ibid. 5. An act which in terms repeals a law allowing an abatement, repeals all inter- mediate acts in pari materia. Ridgway V. O'Neill, 13 Wr. 174. 6. A statute directly repugnant to a former law repeals it. Opdyke's Appeal, 13 Wr. 373. 1: A supplement to a charter declaring its true intent and meaning, and saying that it shall be construed according to the supplement, cannot absolve the corpora- tion from a tax then due to a city. Phila- delphia V. Gray's Ferry Co., 2 P. F. Smith, 177. 8. Generality of expression in Acts of Assembly as well asin contracts is often to be restricted by regard to the subject matter in respect to which it has been used. Per Strong, J. Com. v. Montrose, 2 P. F. Smith, 391. STA 230 SUB 9. The Act of April 3, 1851, (regulat- ing boroughs,) applies only to those in- corporated after the passage of the act. Ibid. 10. The title is no part of a statute, and can be resorted to only where there is doubt. Com. v. SUfer, 3 P. F. Smith, n. 11. Statutes extending mechanics' liens to chattel interests should be strictly con- strued. Esterly's Appeal, 4 P. F. Smith, 192. 12. Statutes out of the course of the common law ought to be construed strictly. TMd and McMullen V. McGreary, Ibid. 230. ' 13. A proviso recognizing a right con- fers it. Church Street, 4, P. F. Smith, 353. 14. The omission of a word in a section of a statute supplied by reference to a preceding section. Chalker*Y. Ives, 5 P. F.Smith, 81. 15. If two acts are inconsistent, the latter repeals the former. Gwinner v. M. B! Co., 5 P. F. Smith, 126. STAT Of Ji. fa. by Court does not impair its lien. See Execution lY., 10. STAY LAWS. When constitutional. See Constitutional Law, 34, 35, 36, St, 39. STOCK AND STOCKHOLDERS. Liability of stockholders in associa- tions. See, generally. Associations. Liability of stockholders in corpora- tions. See, generally. Corporations Y. Lien of banks on stock. See Banks, 9. Damages on contracts for sale of stock. See Contracts X., 9. Worthless stock forced on a borrower need not be tendered back before he sues for usury. See Debtor and Creditor II., 22. Stock may be seized or attached. See Execution I., 4. Stockholder not liable on a mortgage given to cover losses and assigned with- out his consent. See Mortgage Y., 4. 1. In a distribution of stock amongst corporators pro rata, a stockholder is only entitled to claim upon the stock he holds at the date of distribution, and not upon the stock he held when the shares to be divided were bought by the com- pany. Coleman v. Columbia Oil Co., 1 P. F. Smith, 74. 2. A transfer of stock imports an ad- verse not a fiduciary ownership, and the allegation of a trust will not be listened to after the lapse of sixty years. Halsey V. Tate, 2 P. F. Smith, 311. STOPPAGE m TRANSITU. 1. Goods may be stopped, although delivered to an agent of the plaintiff, if the agent become insolvent. Wenger v. Barnhart, 5 P- F. Smith, 300. 2. A purchaser through an agent cannot maintain trover for goods pur- chased by and delivered to the agent, if he become insolvent and the goods be re- claimed before delivery to the plaintiff. Ibid. And see Vendor and Vendee III. STRAYS. Swine. See, generally, Swine. STREETS AND ROADS. Yide, generally, Boads. SUBROGATION. Subrogation of groom. See Lien, 6, Y, 8. Subrogation of legatee to the lien of the creditors paid by his legacy. See Wills. 1. Joint promisees have no right of subrogation as against each other. Bank V. Armstrong, 4 Wr. 283. 2. A surety paying all may be subro- gated to the judgment so as to obtain contribution. The plaintiff cannot take a writ of error to such an order, for he has been paid ; the proceeding should be by petition, answer and proofs. The remedy for errors is by appeal. Springer v. Springer, 1 Wr. 518. 3. Sureties of a debtor stockholder to / SUB 231 SUE a bank are entitled to the bank's lien upon the stock on payment of that debt. Klopp V. Bank, 10 Wr. 88. 4. If a surety pay a judgment, he roust assert his right to subrogation with diligence. If he suffer the record to stand with a sheriff's return to the execu- tion of "money made," and allow another creditor to sell the defendant's land, it is too late to claim a subrogation as against the creditor who regulated his bid by the fact' that the first judgment was paid. Douglass' Appeal, 12 Wr. 223. 5. A surety sued with his principal, and paying the judgment, is entitled to subrogation even as against one who went bail for stay of execution at the request of the principal. Schnitzel's Ap2}eal, 13 Wr. 23. SUBSCRIPTIONS To stock. See, generally, Corporations V. and VI. SUBSTITUTES. Contracts with. See Contracts VI., 11, I'T, 19, 20. SUBSTITUTION In equity. See Equity I., 1, 30, 34. SUMMONS. Service of. See Practice I., 2, 6. SUNDAY. See Equitij I., 86, 87, 88, 89. 1. Running cars on Sunday is a viola- tion of the Act of 1194, but not restrainable by injunction. Per THOMPSOisr, J. Spar- hawk V. Bailway Co., 4 P. F. Smith, 401. The history of the Sabbath and the authorities as to its observance col- lected per Read, J. IMd. 433. 2. Whether a secular society can try one of its members on Sunday, gitere ? Per Agnew, J. Society v. Cora., 2 P. F. Smith, 135. 3. No recovery can be had on a note executed or a contract consummated on Sunday. Foreman' v. Ahl, b P. F Smith, 325. For part delivered on Monday a recovery may be had. IMd. SUPERSEDEAS OF EXECUTION. See Execution IV., 1, 2, 11. SUPERVISORS. Liability of boroughs for contracts of supervisors. See Boroughs, 1, 2. Supervisors only liable for malice. See Negligence, 1. Power to tax. See Taxes, 4. SUPREME .COURTS. See Courts, 3, 10. > SURETY. As to sureties of administrators. See Decedents' Estates II., 15, 16, 11, 20. Surety ou sheriff's interpleader. See Execution VI., 9, 10. Parol promise to pay debt of another. See, genel'ally, Frauds III. As to guarantors — charging and dis- charging them. See, generally. Guarantor. Lien of State judgment against sureties not to be preferred. See Lien, 2, 3. Sheriff's sureties. See Sheriff, 1, 23. Right of surety to subrogation See, generally. Subrogation. As to death of surety before default of principal. Vide Trusts and Trustees. 1. The sureties of a justice are liable for moneys received by him on a note left with him for collection, though not sued out. Ditmars v. Com., 11 Wr. 335. 2. The sureties of a county treasureiT are liable for moneys received by him, though borrowed by the commissioners in violation of law. Boehmer v. Schuyl- kill, 10 Wr. 452. 3. Notice to the husband is not notice to the wife. Eellen v. Bryson, 4 Wr. 472. Shimer v. Jones, 11 Wr. 268. 4. If intended for the wife and delivered to the husband for her, it is a question of service. Ibid. 5. The notice to discharge a surety must be clear and distinct; if not so, it is error to submit it to the jury. Ibid. 6. The time at which the jury should SUE 232 SUE ascertain the solvency of the principal is the time of the giving of the notice. Ihid. 7. To discharge a surety by notice, it must be unequivocal that if suit be not brought he will hold himself discharged. Strickler v. Burkholder, 11 Wr. 4'76. 8. A notice to collect, or get, or make an effort, should be pronounced by the Court insufficient. Ibid. 9. But a notice "to collect, as he (de- fendant) will not stand bail any longer," is unequivxical. Ihid. The burden of the proof in such a case is on the plaintiff to show that the money could not have been collected by suit. Ibid. 10. A surety of a county treasurer on his State bond is liable to the State di- rectly, although the State might collect the arrear from the county. Hughes v. Com., 12 Wr. 66. 11. The sureties of an assignee are bound by a decree against him, although the money was received for a specific creditor and not for general creditors. If they do not appeal, they are bound by the decree. Little v. Com., 12 Wr. 337. 12. So, too, they are bound for the payment of purchase money of land sold by the assignee and received by him on two judgments which were liens, but which he had assigned and had therefore no right to collect. Patterson^s Appeal, 12 Wr. 342. 13. A surety for stay of execution can show that his principal was also surety, and that the plaintiff has made the claim from the first debtor. Marsh v. Bank, 12 Wr. 510. 14. Hence, he can show that though the judgment on which he became surety was against the maker of a note, yet that the maker signed for the accommodation of the endorsers, and that on judgment against the endorsers a levy was made on sufficient property to pay the debt. Ibid. 15. "I agree to become security for faithful performance of above," is a con- tract of suretyship, not a guarantee. Allen V. Hubert, 18 Wr. 259. 16. If a surety is sued as such jointly with his principal, he is entitled on pay- ment of the judgment to subrogation, even as against the bail for stay of execu- tion who signed the bond at request of the principal. Schnitzel's Appeal, 13 Wr. 23. 17. Mere omission to sue a debtor does not discharge a surety; when the creditor has the means of satisfaction, either actu- ally or potentially, in his hands, and does not choose to retain it, the surety is dis- charged. The release of levies, the re- fusal upon demand to pursue the legal means of recovering the debt, discontinu- ing a suit which might result in satisfac- tion, discharge a surety. But mere for- bearance or unreasonable inaction will not discharge him. Bichards v. Com., 4 Wr. 146. 18. If a creditor 'allow the debtor's property to be assigned and distributed by the assignee upon an auditor's report, this will not discharge a surety. Ibid. 19. Persons agreeing to indemnify a sheriff are liable for the amount recovered against him by conapromise of the princi- pals. The record is proper, though not conclusive evidence. Huzzard v. Nagle, 4 Wr. 178. 20. A notice by a surety to collect the note given months before it matures, is inoperative. Hellen v. Crawford, 8 Wr. 105. 21. A surety for stay of execution is discharged by the opening of the judg- ment by consent of the original parties, although it has been attached and has been marked by the Court to the use of the attaching creditor. Corson v. Mc- Afee, 8 Wr. 288. 22. The notice from a surety to pro- ceed against the original debtor ought to be clear and distinct without the need of argument. Where it is doubtful it is not error to charge against it. Wolleshlare V. Searles, 9 Wr. 45. 23. An acceptor becomes a principal by accepting, and though he may be an ac- commodation acceptor, this fact, if un- known to the plaintiff, will not prevent the plaintiif from giving time to the drawer, and such indulgence will not dis- charge the acceptor. Wilson v. Bank, 9 Wr. 488. 24. A voluntary bond given by oue em- ployed by a public officer will bind the sureties thereon, although there was no authority for the employment. Franklin V. Hammond, 9 Wr. 507. 25. The condition "for faithful per- formance and true accounting and paying over " will bind for moneys collected, although there was no authority to collect. Ibid. 26. The sureties of a county treasurer are liable for scrip received by the treas- r' w SUE urer and not accounted for, though it was illegal. Wylie v. Gallagher, 10 Wr. 205. 21. The sureties of a bank teller are not " exonerated by previous acts of omission of the bank," which amount simply to negligence on the part of the officers in failing to discover a large exist- ing default. The party accepting security is only bound to communicate knowledge ; he is not required to investigate unless requested to do so. Wayne v. CoTniner- cial Bank, 2 P. F. Smith, 343. 28. Nor are they discharged because the teller having authority to issue due- bills for a special purpose, fraudulently uses them to raise money for himself. Ibid. 29. Neither the teller nor his surety have the right to set up the defence that the bank'was not bound to pay such due- bills, either for want of power to issue them or for want of a stamp. When the default of a principal forfeits a bond as to him, it is forfeited as to his surety. Ibi'l. 30. The discontinuance of a suit brought against the teller, and another for con- spiracy to defraud the bank, does not discharge the surety. Ibid. SI. " Ship immediately and I will be responsible," makes the signer a surety and not a guarantor. Beigert v. White, 2 P. F. Smith, 438. 32. The sureties of a county treasurer are liable to the county for a balance of State tax collected and kept by the treas- urer, and paid by the county to the State. Mder v. Com.. 5 P. F. Smith, 485. SURVEY. See, generally, Land I. SURVEYOR. Declarations of, are evidence. See Evidence IX., 2, 18, 28. SURVIVOR AND SURVIVING OF ACTION. As to action surviving against executor of trustees' surety. Vide Trusts. As to survivorship between devisees. See Wills. SWINE. 1. The remedies for injuries by swine 233 TAX running at large are: First. Under Act of 1862, and stray laws of 180T and 1819. These are proceedings against the hogs. Second. The Act of 1808, if the plaintiff's fences are "neighbor-like." Here their being accidentally at large is not a defence. But this remedy is not practicable for the number of referees, and the power to ap- point them is not prescribed. Third. The common law remedy by trespass. Stray laws do not repeal the common law remedy. Mitchell y. Wolf, U Wr. 147. TAVERN KEEPERS. Sale of liquor to inebriate. See Innkeeper, 1, 2, 3. Lien on horses. See Lien, 6, 8. TAXES. As to State's lien for tax on dividends. See Banks, 1, 2, 3. As to constitutionality of certain taxes. See Constitutional Law, 2, 6, 7, 11, 41, 68, 62. As to taxes against corporations. See, generally, Corporations I. As to duties of counties to tax. See Corporations VI., 1, 9, 12. As to collateral inheritance tax. See, generally, Decedents'' Estates VIII. As to tax titles. See, generally. Land XVI. Lien of State judgment against officers not to be preferred. See Lien, 2. Register's general sureties not liable for collateral inheritance tax. See Register, 1. 1. The property of the American Philo- sophical Society in Philadelphia is not liable to taxation for State or city pur- poses. The City v. The American Philo- sopihical Society, 6 Wr. 9. 2. A poor house cannot be taxed. The public property is never subject to tax laws without express statute. Directors of Poor V. School Directors, 6 TT-V. 21. 3. A sheriff's sale will not discharge taxes unassessed, nor taxes registered, unless the proceeds are sufficient to pay them. Dufy v. The City, 6 Wr. 192. TAX 234 TAX 4. Supervisors have the power to levy a tax to discharge debts due to a former supervisor, although sold to third parties, and there is no right to work out this tax. But they have not the power to assess a tax to pay other creditors. Dunne v. Began, 1 Wr. 334. 5. Clothing is subject to United St9,tes tax as a manufacture, under Act of Con- gress, July 1st, 1862. Bennett v. Keith, 8 Wr. 291. Mayer v Budd, Ibid. 6 The medical department of the Uni- versity of Pennsylvania cannot be taxed, for the Act of April 16, 183T, exempts universities. An arrangement by which part of the income of the medical depart- ment goes towards the support of another department does not render it taxable, under Act of April l4, 1851. City v. University, 8 Wr. 360. Y. The State can tax profits of brokers thougli licensed, may make the profits of a preceding year the standard, and the penalty is incurred by not keeping ac- counts from the date of the act to the end of the fiscal year. Per Pearson, P. J., afiirmed in Supreme Court, Drexel V. Com., 10 TFr. 31. 8. A precept from a register for an issue devisavit vel non need not be stamped. Shay v. Eenk, 13 Wr. 79. 9. The allowance of five per cent, for prompt payment of State taxes was re- pealed by the Yth section of the Act of April 30, 1864, (P. L. 220,) as to Phil- adelphia and all the counties of the State. Ridgway v. O'Neill, 13 Wr. 174. lU. A tax on dividends exceeding six per cent, on capital stock is to be calcu- lated with reference to the cash capital, not the nominal capital. Railway Go. v. City, 13 Wr. 251. 11. An assessment of a certain number of acres, without any other description, in the name of a person unknown in con- nection with the title or possession, will not support a sale of the land as unseated. Per Agnew, J. City v. Miller, 13 Wr. 440. 12. The Pennsylvania cases as to iden- tity of tracts collected and reviewed, per Agnew, J. Ihid. 13. There may be a permissive re- demption after the five years from the purchase by the commissioners. Ibid. 14. A citizen of Pennsylvania is per- sonally liable for State and county taxes on stock in a foreign or domestic corpora- tion. McKeen v.' Northampton, 13 Wr. 519. Whitesell v. Northampton, 13 Wr. 526. 15. Stock in the West Branch and Susquehanna Canal Co. is taxablef for county purposes. Lycoming Co. v. Gam- ble, 11 Wr. 106. 16. Where a township line divides an estate, it is all taxable where the man- sion is situated. If the mansion is in a township, and part of the land in a city, it cannot be assessed in the city. Baus- man v. Lancaster, 14 Wr. 208. 17. Taxes past due are not discharged by the statute restricting future liability. Canal Co. v. Com., 14 Wr. 399. 18. Nor by omission of State officers. Ibid. 19. A penalty is not chargeable as for neglect or refusal to make a return when the State officers informed the company that they were not taxable. Ibid. 20. The Commonwealth is entitled to interest on what is justly due, although the settlement included items not due. Ibid, and Ibid. 410. 21. Under the Act of April 12, 1859, a tax is collectable upon a dividend de- clared in February, 1859. Ibid. 410. 22. When a company goes into opera- tion in the middle of the year, only half a year's tax is collectable. Ibid. 23. A tax on dividends exceeding six per cent, of capital stock is payable whenever the dividend exceeds six per cent, on the cash capital. Second and Tliird St. Railway Company v. The City of Philadelphia, 1 F. F. Smith, 465. 24. The tender to redeem seated lands should be made to the treasurer, but if the tender is made to the purchaser of the tax title he cannot complain. Brough- ton V. Journey, 1 P. F. Smith, 35. 25. Property of non-resident taxable. Maltby v. R. R., 2 P. F. Smith, 140. AM V. Glein, 2 P. F. Smith, 432. 26. Government bonds liable to col- lateral inheritance tax as part of dece- dent's estate. Strode v. Com., Clymer v. Com., 2 P F. Smith, 181. 27. An owner whose land has been sold for taxes in fact paid, and who has not been served with the soi.fa. sur. the claim, can defend in ejectment, but if he has been served, the judgment concludes him and all claiming under him while it is un- ira peached. Cadmus v. Jackson, 2 P. F. Smith, 295. TAX 235 TEN 28. When an owner redeems land sold for taxes, the neglect of the treasurer cannot be charged against the owner. Price V. 3Iott, 2 P. F. Smith, 315. 29. The Act of May 8, 1855, which declared that the owner, in addition to the usual redemption, shall pay the taxes which the purchaser shall have paid up to the time of redemption, does not apply to pales made in I8f)4. Ibid. 30. An alien inhabitant is taxable for all purposes. Frantz's Appeal, 2 P. F. Smith, 3G7. laws to pay bounties are con- Ahl V. Glein, 2 P. F. Smith, 31. Tax stitutional. 432. 32. The Auditor-General and State Treasurer have authority to settle the in- debtedness by cities and counties for State taxes. Phila. v. Com., 2 P. F. Smith, 451. 33. The Acts of Assembly on that sub- ject are constitutional. Ihid. 34. The settlement so made is con- clusive, if notice is given ; where no notice has been given, the settlement may be impeached on the hearing. Per Pear- son, P. J. Ihid. 35. The power to school directors to raise a county tax, and "to assess all property subject to taxation for State and county purposes,'' does not authorize an assessment upon property not included in the adjusted valuation made by the as- sessor. Per Hays, A. J., affirmed by Supreme Court. Shirk v. Pitcher, 3 P. F. Smith, 94. 36. Boroughs may require property owners to grade and pave sidewalks, and may lien for the charge thereof. Greens- burg V. young, S P F. Smith, 280. 37. National bank stock in the hands of stockholders is liable to State taxa- tion. Mintzer v. Go. of Mo7itgomery, 4 P. F. Smith, 139. 88. A mortgagor is not bound to pay, in addition to interest, the State and United States taxes chargeable upon the holders of the bonds secured by the mort- gages. Clapton V. B. B. Co., 4 P. F. Smith, 356. 39. The clause, " without any deduc- tion for taxes," &c.. means without de- duction for taxes on the land. Ibid. 40. Under the excise act, rails manu- factured out of pig iron which has not paid the tax are liable to pay an additional duty of three dollars per ton, in all six dollars per ton. B. B. Go. v. Waterman, 4 P. F. Smith, 337. TENxVNT BY CURTESY. See Estoppel, 10 ; see Husband and Wife v., 3, 17, 24, 28. TENANT FOR LIFE. See Life-Tenant. TENANT IN COMMON Can be sued in ejectment by cotenant. See Ejectment I., 18. For parol partition. See Frauds and Perjuries II., 4, 10, 13, 14, 19, 21. Fraud by one tenant in common. ^ee: Fraud Y., 6. 7, 8, 9, 10, 11. Purchase of tax title by one tenant in common. See Fraud Y., 10, 11. When tenant in common or joint tenant. See Land XV., 1. The statute of limitations does not favor a tenant in common unless there has been an actual ouster. See Limitations I., 10. Trespass by tenant in common. See Trespass. TENANT (Of way-going crop) and generally. See Landlord and Tenant. TENDER. See Constitutional Law, 1 ; Contract Y. ; Ground-Bent, 16, 17, 18 ; Vendor and Vendee. Worthless stock forced on a borrower need not be tendered by him before he sues for usury. See Debtor and Creditor II., 22. Tender of purchase money stops in- terest thereon. See Ejectment I., 30. Tender need not be pleaded in eject- ment. See Ejectment I., 32. 1. The offer of a sum accompanied by the declaration that it is a certain amount of interest, which is refused without dis- TER 236 TEE puting the amount, is a sufficient tender. Brewer v. Fleming, 1 P. F. Smith, 102. TERRE TENANT. 1. Terre tenants wlien not served may- avail themselves in any after suit of any defence. Kramph's F.xecutors v. Haiz's Executors, 2 P. F. Smith, 529. TIMBER CUT Part of freehold. See Land XVII., 1. TIME. For confliicts as to. See Day. As to agreement for giving time. See Debtor and Creditor I., 1, 2, 3. As to computation of time, on rules to plead. See Practice V., 1. TORT May be waived and assumpsit brought. See Pleading, 13. TOWNSHIP. Liability of, for contract of supervisors. See Boroughs, 1,2. Officers only liable for malice. See Negligence, 1. Poor. See, generally. Poor. 1. Under Act of March 14, 1857, (for division of townships,) the Court can- not confirm the returns of the commis- sioners absolutely. After passing on ex- ceptions they must refer the matter to a popular vote. In re North Whitehall Township, 11 Wr. 156. 2. A township can recover from its county, road taxes on unseated lands col- lected by the county treasurer. Per White, P. J., affirmed by Supreme Court. Potter Go. v. Oswayo Township, 11 Wr. 162. 3. Where a township line divides an estate, it is all taxable in the township where the mansion is situated. Baus- man v. Lancaster, 14 Wr. 208. And so where the mansion is in a township and part of the land is in a city, it cannot be assessed in the city. Ibid. TRADE. Restraints of. See Equity I., 63, 64. TRANSFER Of judgment. See Judgment IV., 4. TRESPASS. Conclusiveness of judgment in trespass on ejectment. See Ejectment III., 2. Error in charge as to damages in tres- pass. See Errors and Appeals IV., 55. Trespass to mines. See, generally. Land IX. Only six years mesne profits can be re- covered.' See Limitations I., 22. Partner liable in trespass. See, generally, Partnership III., 15, 16, 17. Damages in trespass and trover. See Trover. TRESPASS. 1. A father is liable in trespass for an injury resulting from the reckless driving of his son, the father sitting upon the wagon at the time. Strohl v. Levari, 3 Wr. 177. 2. A tenant in common may maintain trespass against his cotenant for mesne profits, or for a total destruction of the common property. Gritchfield v. Hum- bert, 3 Wr. 427. 3. Where a tenant in common recovers in ejectment against his cotenant, he is entitled to damages for use and occupa- tion from the time his title vested. Ibid. 4. A tenant in common has no right to seize ore mined under a lease or license from his cotenant. Bleiuelt v. Coleman, 4 Wr. 52. 5. One who alters the location of a road without authority is liable in tres- pass to the person whose land is taken. Ross V. Malcom, 4 Wr. 284. 6. One whose property is sold upon a regular fi. fa. cannot maintain trespass against the crier and others, because the crier bid for and bought tlie property upon the first bid, for an inadequate price, TEE 237 TEO upon an advertisement omitting the plain- tiff's name. Swires v. Brotherline, 5 Wr. 135. 1. A fi. fa. is a justification to the ofBcer executing it, although issued by a plaintiff in violation of his agreement. Ibid. 8. Without fraud, or wilful negligence, or wrong, the measure of damages in tres- pass to land is the value of the thing taken in its place, and such other damage to the land as the act may have caused. Forsyth v. Wells, 5 Wr. 291. 9. A codefendant in trespass who pleads and defends jointly without presenting any point as to the effect of evidence not im- plicating him, and who receives the pro- ceeds of the trespass, cannot after judg- ment complain that the evidence did not affect him. Per Long J., af&rmed in Ream v. Harnish, 9 Wr. 3'?6. 10. Declaration of a plaintiff not made to any of the defendants, nor acted upon by them, cannot avail them as a defence. Ibid. 11. Where rent reserved is a share of the grain to be delivered at a mill, the property is in the tenant until delivery, and he can maintain trespass therefor and recover its full value against one who levies on it as the property of the land- lord before it is so delivered. Ibid. 12. If one tenant in common put out the lessee of his cotenant, this is no ouster of the cotenant. If a trespass against anybody it is against the person put out. Nor is it an ouster because it is accom- panied with a denial of the cotenant's title. Filbert v. Hoff, 6 Wr.^1. 13. There must be an unequivocal ouster to enable one tenant in common to sue his cotenant. Per Thompson, J. Ibid. 14. Under Act of April 22, 1822, (pro- hibiting sales near places of worship,) noth- ing but liquors can be seized. Fetter v. Wilt, \QWr. 45*7. The constitutionality of the act denied per Thompson, J. Wood- ward, C. J., concurred. Ibid. 15. To maintain trespass, there must be actual possession or the right to imme- diate possession flowing from the right of property. One who purchases and enters on land on which a former tenant has left timber, does not thereby become liable in trespass. Weitzel v. Marr, 10 Wr. 463. 16. Trespass will lie in some cases by a tenant in common of land against his co- tenant for actual ouster. But not where the tenancy in common is of personalty unless the defendant has destroyed the joint property. A sale of it by one does not affect the interest of the other. Trout V. Kennedy, 11 Wr. 387. IT. One who agrees to cut and saw another's wood, and give his principal one- half, the remainder being his compensa- tion, does not become tenant in common, and can be sued in trespass for removing the lumber. Ibid. 18. The plaintiff can recover damages for haulings after suit brought, where the claim to exclude him and also some of the haulings were before the suit. Ibid. It is not a defence in trespass that there was no market for the property taken. Ibid. 19. One cannot maintain trespass for goods which he has sold or given away. Even though the sale is conditional, yet, if he has parted with the possession, he cannot maintain trespass. To do this he must have either possession or the right to take actual possession. Waldron v. Haupt, 2 P. F. Smith, 408. 20. The jurisdiction of justices and the common pleas is concurrent in trespass. A plaintiff who sues in common pleas in trespass, claims over one hundred dollars in his narr. and recovers less, is still en- titled to costs. Moyer v. lUig, 2 P. F. Smith, 444. 21. Trespass will not lie by owner of improved land for damage by cattle, if he has neglected to fence. Gregg v. Gregg, 5 P. F. Smith, 227. TROVER. Reconveyance necessary to rescind. See Contract IX., 1, 2, 4. By administrator for chattels mortgaged by a decedent. See Decedents'' Estates II., 4. Trover for timber cut. See Land VI., 9. Trover by sheriff. See Sheriff, 16. 1. Trover will lie for wrongful conver- sion of bonds, &c. Davis v. Funk, 3 Wr. 243. 2. A pledgee selling, must give notice to pledgor of time and place of sale. Ibid. 3. To maintain trover, the plaintiff must show title to the identical goods by TEO 238 TEXT proof that he has complied with all the conditions upon which it was agreed that the right of property should pass to him. B. B. Co. V. Hughes, 3 Wr. 521. 4. Where one buys a portion of an ar- ticle lying in a mass and receives an order upon a superintendent for the por- tion bought, with the understanding that he is to present his order and get his por- tion set apart, if he fail to do this, he cannot maintain trover against one who takes the entire lot. Ibid. 5. Notice of this to defendant cannot avail the plaintiff, forthere was no title in plaintiff. Ibid. 6. One can be sued in trover, although acquitted for larceny of the same articles. Kor do a conviction and sentence dis- charge the right to bring trover, for a pardon might make it ineffectual for resti- tution. Hutchinson v. Bank of Wheel- ing, 5 Wr. 42. 7. The pendency of a prosecution for larceny suspends the running of the statute of limitations. Hutchinson v. Bank of Wheeling, 5 Wr. 42. 8. If a defendant fraudulently conceal the conversion, the statute does not run, although he confess it to two or more per- sons. Per GiLMOEE, P. J., affirmed by Supreme Court. Ibid. 9. Trover lies for coal mined by a de- fendant by mistake beyond his line. For- syth V. Wells, 5 Wr. 291. 10. Where there is no fraud, wilful neg- ligence, or wrong, the value of the coal in its place and such damage to the land as the mining may have caused, is the meas- ure of damages. Ibid. 11. Such is also the measure in tres- pass for mesne profits. Ibid. 12. If an owner of coal suffer it to be left on a wharf, this is not negligence which will prevent him from suing one who purchases it from the wharfinger. Kusenberg v. Browne, 6 Wr. 173. 13. In tvespass and trover the measure of damage is the value of the property and the interest. Where, however, there is some evidence of the plaintiff or his agent having become repossessed of the property, the question should be sub- mitted to the jury, with instruction that if the possession was never disturbed the measure of damage is the sum bid by the plaintiff, with interest. Mclnroy v. Dyer, 11 Wr. 118. 14. Without title, possession or lien, one cannot maintain trover. Castor v. McShnffery, 12 Wr. 437. 15. It is a defence in trover that the plaintiff has recovered from another for the same property. Converse y. Golton, 13 Wr. 346. 16. Defendant in trover can show he was plaintiff's surety and was to have possession of the goods purchased by plaintiff until paid. Eeyserv. Bodgers, 14 Wr. 275. 17. A suit for trover can be com- menced simultaneously with a prosecu- tion for larceny, but cannot be tried until the indictment is disposed of. Keyser v. Bodgers, 14 Wr. 275. 18. Trover will not lie by one joint owner against the other for selling the chattel. Walworth v. Abel, 2 P. F. Smith, 370. TRUSTS AND TRUSTEES. Appointments under deeds. See Appointment, 1. Reconveyance necessary to rescind. See Contract IX., 1, 2, 4. When trustee is chargeable with inter- est. See, generally. Decedents^ Estates TIL For commissions. See Decedents' Estates YII., 1, 5, 10, 12. For estoppel on ground of trust. See Estoppel, 2, 19, 27, 34, 36. For fraud against copurchaser. ^QQ Fraud Y., 6, 7, 8,9, 10, 11. When husband trustee for wife. See Husband and Wife V., 15, 20, 21, 22, 25, 29, 30. Assignment by wife's trustee of her mortgage as collateral for her husband's debt without her consent not binding. SeQ Husband and Wife V., 11, 12. For limitations barring a trust. See, generally, Limitations II. and IV., 3. Appointment under wills. See Wills. I. Trusts from ownership of purchase money of lands — advancements. II. Of affecting, creating, waiving and assigning trusts by parol — tenants in common of trusts. TRU 239 TRU III. Of charging trustees and others as trustees — their comraissions, coun- sel fees — right of subrogation — attachment against trustees — no- tice of trusts — purchase by agent, by partner, by assignee. IV. Distribution — trustee must show his authority, if required — settlement between trustee and cestui que trust — claims by trustee against trust estate. V. Trusts for married women — active trusts — trusts as against creditors — trusts executed. VI. Impossible trusts — compelling trus- tees to exercise discretion — trusts affected by statute of limitations. I. Trusts from ownership of purchase MONEY OP LAND — ADVANCEMENTS. 1. The ownership of money which purchases land draws to itself the equit- able interest in the estate which is exempted from the statute of frauds. This is, however, a presumption, not an arbitrary but a reasonable presumption. Edwards v. Edwards, 3 Wr. 369. 2. If the nominee in the title be a wife, child, grandchild, or one to whon) the purchaser stands in loco parentis, an advancement is presumed. Ibid. 3. Declarations of a purchaser, in order to defeat his equity, must be used con- temporaneously with, or in contemplation of the act of disposition. Before the pur- chase they import only an intention which may be changed; after the purchase they operate to divest an estate and are un- worthy to be received. Ibid. 4. A purchase of lands with partner- ship funds generally makes the partners tenants in comijion, according to their respective interest, however the legal title may be held. Such is also the effect of a joint purchase by parties -not stand- ing ill the relation of partners. Ibid. 5. Purchase by parent in name of child is an advancement, not a resulting trust in favor of parent. Murphy v. Nathans, 10 Wr. 508. Shaw v. Bead, 11 Wr. 103. 6. The payment of part of the purchase money raises a resulting trust in favor of the payer, which is for the jury. Harrold V. Lane, 3 P. F. Smith, 268. II. Of affecting, creating, waiving AND assigning TRUSTS BY PAROL^ Tenants in common of Trust. 1. Declarations of a purchaser, in order to defeat his equity, must be used con- temporaneously with, or in contemplation of the act of disposition. Before the purchase they import only an intention which may be changed ; after the purchase they operate to divest an estate and are unworthy to be received. Edwards v. Edwards, 3 Wr. 369. 2. 'fwo or more may be tenants in common of a resulting trust. Ibid. 3. And this, where several advance the purchase money, as well as where it is all advanced by a single individual. Ibid. 4. Where tenants in common of a re- sulting trust refuse to state their accounts, and the case between them is destitute of evidence of their respective advances, the legal presumption is that their proportions were equal. Ibid. 5. Equitable interests in land are not assignable except by writing, but they may be waived by parol. Eline^s Appeal, 3 Wr. 463. 6. Declarations of a husband cannot establish a trust in favor of his wife as against creditors. Ibid. 1. A trust cannot be established against the lawful owner by loose declarations. Gowden v. Oysters, 14 Wr. 368. 8. One living on land as tenant cannot set up that he was cestui que trust. Ben- nett V. Fulmer, 13 Wr. 155. 9. A trust cannot be established by evi- dence that there was no intention to con- vey except in trust. A resulting trust can only be established against a legal title by evidence which would induce a chancellor to decree a conveyance. Ibid. 10. The declaration of an executor that "the lands would not be sold, unless they would bring their value," is not a guar- antee that such a price should be ob- tained. Springer Estate, 1 P. F. Smith, 342. III. Of charging Trustees and others AS Trustees — Their commissions, counsel fees — Right of subroga- tion — Attachment against Trus- tees — Notice of Trust — Purchase by agent, by partner, or by as- SIGNEE. 1. A trustee cannot make profit out TEXT 240 TRU of the trust estate, but where the control of the trust property is taken out of the power of the trustee by the act of the law or other paramount authority, he will not be regarded as standing in a fiduciary relation to it. Per Thompson, J. HalVs Appeal, 4 Wr. 409. 2. Where the executor of a deceased partner is employed by the surviving partner to attend to the business of the firm, he may receive and retain a per- centage on the profits. Ihid. 3. He cannot be charged as executor because after his employment ceased he set up a rival factory, assumed to be the successor of the old firm, and secured its customers. Ihid. 4. Assignee purchasing land, sold un- der his execution, is a trustee of the title for the creditors. Campbell v. McLain, 1 P. F. Smith, 200. 5. An assignee surcharged for allowing purchasers of land too great a deduction on a mortgage. Blackburne's Appeal, 3 Wr. 160. 6. An assignee surcharged for allowing the assignor goods as exempt, the as- signment not reserving the exemption. Ibid. *l. A negligent assignee surcharged with interest upon credits improperly claimed. Ibid. 8. The executors of the surety of a trustee can be sued for the trustee's default after the death of the surety. White V. Cowan, '6 Wr. 167. 9. If an assignor purchase property with a portion of the assigned estate intrusted to him by the assignee, it belongs to the trust created by the assignment. BobVs Appeal. Harper's Appeal, 5 Wr. 4.5. 10. A, trustee paying debts is entitled in the final distribution to stand in the place of the creditor. Ibid. 11. Ordinarily three per cent, is a sufficient compensation for the sale of real estate, but five per cent, allowed when extra trouble, and two and a half per cent, allowed when trustee had agreed in advance for that sum. Ibid. 12. A discharged assignee is a compe- tent witness upon settlement of his suc- cessor's account. Ibid. 13. If one receives a conveyance from a trustee in consideration of a private loan to the trustee, this is a fraud ; but if he pay full value, with no knowledge that the money is to be misapplied, it is not fraud. Ins. Go. v. Austin, 6 Wr. 257. 14. Counsel fees for services in the ex- ecution of a trust should be allowed. Moss' Appeal. Halsey's Appeal, 1 Wr. 23. 15. One who is directed to invest in " secure" stocks must strictly comply or invest under order of Court. Failing herein be is liable, though he act in good faith and invest where his own funds are invested. Ihmsen's Appeal, 7 Wr. 431. 16. A trustee may be attached for disobedience of an order to pay. Chew's Appeal, 8 Wr. 247. 1 7. A purchase by a partner or joint owner of the property held by him and the others is in trust for those others, and his deed showing that all theretofore owned it is notice of the trust. Gibson V. Winslow, 10 Wr. 380. 18. Whatever will put a purchaser upon inquiry and lead to knowledge is notice. Ibid. 19. A purchase by an agent under the execution, and with the funds of his prin- cipal, creates a trust in favor of the prin- cipal. JEshleman v. Lewis, 13 Wr. 410. 20. And a purchaser from the agent with knowledge of the fact, takes it sub- ject to the trust. But if the agent has secured his principal's consent that he may buy f;h styled ar- ticles of agreement, although sijrned by both, although delivered to a third party for safe-keeping,) if tliere is an entire absence, by expreFsion or implication, of any agreement or necessity for further assurance. Ihid. 3. If the instrument pass the grantor's title, the covenants in his favor are his only security. Ihid. Unexecuted arti- cles can be rescinded by parol, but when the title has passed there must be a re- conveyance. Ihid. 4. Equitable interests are not assign- able except by writing, but they may be waived by parol. Kline's Appeal, 3 Wr. 463. 5. An agreement for valuable consid- eration to assign certain drafts not then in existence does not vest the ownership of the drafts in the proposed assignee. Benford v. Banner, i Wr. 9. 6. An executory contract for land may be rescinded by parol evidenced by acts. A vendor may show that money paid on account of land was transferred by con- sent to another account. Lauer v. Lee, 6 Wr. 165. 7. One who repudiates an executory agreement can claim no interest in prop- erty purchased thereunder, nor can his creditors levy thereon. Rice v. Shuman, 1 Wr. m. 8. If a purchaser accept a title he knows to be defective, the presumption is he takes the risk, but the presumption may be rebutted. Thomas v. Harris, 1 Wr. 231. 9. If a purchaser by his negligence suffer a wrongful recovery for dower, he cannot present that as a defence when sued on the mortgage belonging to the heirs. Thomas v. Harris, 1 Wr. 231. 10. Regular conveyances reciting pay- ment of purchase money, unaccompanied by any suspicious appearances, are evi- dence of payment, entitling the vendee to stand prima facie as a bona fide purchaser as against a previous unrecorded contract. Baum V. Dubois, 7 Wr. 260. 11. When the previous purchaser has possession, other evidence of payment may be required. //>?>/. 12 A vendor who repossesses himself of the equitable estate of the vendee cannot enforce payment of a balance of purchase money. Therefore if he sue for the fir.'^t instalment, obtain judgment, and the land is sold to his attorney, he cannot sue for the subsequent instalments. Graff v. Kelly, 1 Wr. 453. Note. — This does not apply where there is a restricted lien oa a j udgment. McMurray v. Hopper, 7 Wr. 468. 13. It is an invariable rule in chancery that a purchaser shall not be compelled to accept a doubtful or unmarketable title. Per Strong, J. Speakman v. Forepaugh, 8 Wr. 363. 14. Hence where the complainant's title is good on the face of the papers, because a prior owner dirl not recurd a deed in time, still a purchaser will not be compelled to accept a deed, for the prior owner cannot be made a party, nor bound by the decree, and might prove actual niitice of the deed, which would be equiv- alent to recording. Ibid. 15. That the purchaser knew of this outstanding title and did not insist upon a covenant against it does not conclude him, unless he has accepted a deed. Ibid. 16. A covenant to convey to A is, to A and his heirs, a gooil title against dower of the wife though she has not signed the artiide. Ibid 17. Where a vendor has conveyed with covenants on whicli he would be liable for a defect of title, the vendee may de- tain purchase money to the extent of the damages he could recover, and need not restore possession. Per Woodward, J. Wihon V. Cochran, 10 Wr. 229 18. Where there is a known defect, but no covenant or fraud, he can avail himself of nothing; where there is a cov- enant against a known defect, he cannot detain purchase money until the covenant is broken. Ibid. 19. If the covenant be for seizin of against encumbrance, it is broken as soon as made if there is a defect of title or an encumbrance; but if it be a covenant of warranty, there must be an eviction by suit or legal force. Ihid. 20. The covenant is applicable to a YEN 247 VEN right of way or other incorporeal right, and upon eviction therefrom under title paramount the purchase money may be detained. Ihid. 21. A vendee has an equity to an abatement out of purchase money un- paid, for deficiency in the land. Erivin V. Myers, 10 Wr. 96. Barnes' Ajjpeal, Ibid. 350. 22. As a purchaser is to be credited with improvements, he is chargeable with waste Erwiii v. Myers, 10 Wr. 96. 23. A purchaser of a title which after- warrls proves defective may elect to take and pay for it, deducting for the defect, or rescind and recover back his payments and improvements, less his waste. Ibid. 24. Where a vendee is to be paid in work, he is not entitled to damages if he prevent performance. Wilson v. Gro- well, 12 Wr. 58. 25. Whether an instrument is executed or executory depends upon the intention of the parties as gathered from its terms ; where there is doubt, light may be shed by the attendant circumstances. Per Agnew, J. Boriz v; Bortz, 12 Wr 382. 26. The first rule is to inquire whether the language imports a present convey- ance, or whether it contemplates a further assurance. Ibid. 27. Present words of grant will not be construed into an executory contract be- cause the con^^ideration is payable in future. Ibid. 28. A grant to a married woman, in consideration of an annuity to be paid to the grantor, is good. Ibid. 29. Where a deed expressly states that the land is subject to a judgment, the purchaser makes the debt his own and cannot deduct it from a mortgage he gives for purchase money. Nor can he deduct other liens which he agreed to pay, and this may be proved by parol. Buck- ley's Appeal, 12 Wr. 491. 30. A vendor cannot refuse to comply with his contract of sale because the bond of the purchaser will be worthless and the mortgage no security for the pur- chase money, nor because the purchaser had an option to buy within a given time if he has elected to take the property within the time, nor because the vendor's wife will not sign the deed. Corson v. Mulvany, 13 Wr. 88. 31. The grant of equity powers to the Courts does not take away the common law jurisdiction to enforce specific per- formance. Ibid. 32. A vendee taking property subject to a mortgage makes the debt his own, and if by reason of a deficiency the ven- dor is obliged to pay on his bonds, he can recover from the purchaser. Burke v. Gummey, 13 Wr. 51'^. 33. If, between sale and a tender of a conveyance, the land is stripped of timber by an adver.i-e claimant, the purchaser can defalk the value of the timber from the unpaid purchase money. Weakland v. Hoffman, 14 Wr. 513.- 34. If a purchase money bond contain a clause that it shall be payable at ma- turity " upon consideration that the title to the land be by that time assured, and particularly a certain agreement (for min- ing) be rescinded," payment of the bond cannot be enforced until the title be as- sured and the agreement be rescinded ; the lapse of twenty-four years from the date of the agreement not entitling the obligee to recover, the existence of the agreement having been recognized at a period within seven years of the bringing of the suit. Youngman v. Linn, 2 F. F. Smith, 413. 35. If the consideration money of land has not been paid, the purchaser, unless it plainly appear that he has agreed to run the risk, may defend an action for the purchase money on defect of title, either whole or in |)art, and this without any covenants of general warranty or of quiet enjoyment, and whether a deed has been executed or not. Per Woodward, C. J. Ibid. 36. Where there is a known defect, but no covenant or fraud, the vendee can avail himself of nothing, but where there is a covenant against the known defect he shall nut detain the purchase money unless the covenant be broken. Per Wool - WARD, C. J. Ibid. 37. A judgment in ejectment and an haberi executed, put an end to the defend- ant's equity under an agreement of pur- chase. Damon v. Bache, 5 P. F. Smith, 67. 38. A creditor for unpaid purchase money can take a judgment in ejectment, and by an haberi obtain possession. Other creditors gain nothing by afterwards sell- ing the supposed equity of the purchaser. Damon v. Bache, 5 F. F. Smith, 67. YEN 248 YOL V, Op AOORITION Oft loas HEfORK OON- SUMMATION — Op dbath bepobeoonsvm- MATioN — Vendor's liabjuty for STAMPS— Purchaser's wabiuty por ENOUMBRANOES. 1. In ordinary sales by articles the purchaser is entitled to accretion, and must sustain any loss caused by accidental injuries between the date of the agreement and the execution of the deed. Per Strons, J. Demmy'a Appeal, 1 Wr. 155. 2. If vendor by articles die before con- veyance, the sale works a conversion, and the purchase money passes to his personal representatives and not to his heirs. If vendee dies before oonveyanoe, his per- sonal representatives take nothing, ttid. 3. Under a eontraet to " execute a suf- ficient deed," the vendee is bound to pay for the stamps. Gallaghan v. Mo Greedy, 12 Wr, 463. 4. A vendee taking property subject to a mortgage makes the debt his own, and if by reason of a deficiency the ven- dor is obliged to pay on his bond, he can recover from the purchaser. Burke v. Giimmey, 13 Wr. 518, 5. It is no delivery if the purchaser merely test the article and express him- self satisfied, ffaldeman v. Dunean, I P. F. Smith, 66. 6. In such a ease the seller is bound to refund the purchase money if the property is swept away by a flood. Ibid. TI As TO AQENT8— ShERIFP'8 SALES OP Vendee's interest — Eppeot thereof on purchase money, &c, 1, An agent can bind his principal upon ft sale of land, though his warrant is not sealed and his contract is sealed, for the seal h not necessary, Such a sale needs no ratification, Baum v, Dubois, t Wr. 260. 2. A sheriff's sale substitutes the money for the land. Barnes' Appeal, 10 Wr. 350. 8. After sheriff's sale the balance due the vendor is to be first paid ; liens, &c„ due by him being chargeable to his share, Oredi ors obtaining judgments after the transfer can obtain no more than the de- fendant could if not indebted. Ibid. 4. A lien for purchase money, or for performance of collateral conditions, can only be created by clear and ewpress wards, and such liens will be divested by 8absequ@at sheriff's sales unless they are testamentary provisions for wives and children, or incapable of valuation, or ex- pressly created to run with the land. Per Woodward, 0. J,, overruling Neass' Ap- peal, 7 0, 298, in Hiester v, Oreen, 12 Wr. 98, 5. Where a widow, a devisee for life of a house, releases her interest to heirs ia remainder in consideration of an annuity, (without charging it on the land,) the sheriff's vendee of the lot takes it free of the annnity. Ibid. 6, Notice to a vendor will not affect his vendee. Notice to an agent, if not in the course of his agency, will not affect the principal, Meehan v. WilliamH, 12 Wr. 238, VERDICT Cures indictment. See Grimes, 41. In ejectment not void for an uncer- tainty if prsecipe correct. See Ejectment TI., 1. Conditional verdict in ejectment. See EijeMment I., generally; III., 4; IV., 4. Second verdict in ejectment. See Ejectment III. 1. A verdict may be taken by the Court at the house of a sick iuror. King v, Faber, I P. F. Smith, 388. a, A verdict cannot be received during adjournment, but it can be taken after crier has announced the adjournment if no separation of the Court ha-< taken place. Person v. Neigh, 2 P. F. Smith, 199. VESTED LEGACIES. See Wills. VIEWERS, See, generally, Boads. VOID AND VOIDABLE CON- TRACTS, See Gontracts IX,, 3, and generally, VOLUNTARY DEED. See Deeds, 1, U. VOLUNTARY MANSLAUGHTER. See Grimes, 11, S3, 34, and generally. VOL 249 WAT YOLUNTARY PAYMENT Cannot be recovered back. See Assumpsit, 6, T, 8. WAGES Cannot be attaclied. See Attachment, 23, 32. Distribution of sheriff's sales to pay wages. See Execution VIII., 6. WAIVER. Excepting to an award on its merits waives otlier objections. See Account Bender, 3. Waiver of the protection of wages will not render them liable to attachment. See Attachment, § 23. Voluntary payment waives right to restitution. See Errors and Appeals V., 21. Waiver of objection to witness. See Evidence III., 27- Waiver of exemption by tenant and others. See Execution III., 21, 24, 25, 28, and generally. Waiver of notice and of forfeiture of policy, &c., by insurers. See Insurance I., 6; II., 1, 8, 9, 13, 14, 15. Waiver of forfeiture of land. See Land XII., 3, 7, 9, 10, 19, 20, 22. Waiver of performance of entire con- tract makes a lien good for part per- formed. See Mechanic's Claim, 19. A defendant in a municipal claim may waive his right to notice. See Municipal Claims, 20. Waiver of objection to writ, narr., &c. See Pleading, 2, 7, 11, 16. Tort may be waived and assumpsit brought. See Pleading, 18, Waiver of objection by purchaser. See Vendor and Vendee. WARDENS. Port wardens. See Philadelphia. WARRANT OP ARREST. 1. A judge may commit upon the com- plainant's aflSdavit alone, unless the de- fendant deny it under oath. Berger v. Smull, 3 Wr. 302. 2. If the affidavit state the nature and amount of the debt, the defendant's re- fusal to furnish a statement of his prop- erty, his declaration that he will not give plaintiff a cent, his sale of his property, and his removal beyond the State, are sufficient, if not denied under oath, to justify commitment. Ibid. 3. The Supreme Court will not, on certiorari, review the opinion of the judge on the proofs, but see only that his pro- ceedings are regular. Ibid. WARRANTY By insured. See Insurance III., 4, 8, 11, 12, and generally. As between vendor and vendee. See Vendor and Vendee III., 1, 2, 3, 4, 5, 12. WATER. Liability of corporations for polluting waters. See Corporations II., 1, 2, 3. Damages from overiows, and from withdrawing. See Damages, 3, 13, 15. Conviction in criminal Court for main- taining a dam is no bar to civil suit for damages. See Former Recovery, 3. As to right to cut off subterranean springs. See Land X., 2. Assessment against corporations for taking land and water. See, generally. Land VIII. Water in mines. See Land IX., 3, 4. For negligent use of water. See Negligence, 12. WAT 250 WAY As to port wardens of Philadelphia. See Philadelphia. 1. One who backs water upon the race of another, two lots beyond, cannot defend the wrong upon the allegation that the plaintiff had no right to an easement in the intervening lot. Graver v. Shall, 6 Wr. 58. 2. Plowing water back on the land of another cannot be defended by the plea that the part so flooded was not thereby depreciated. The law implies damage for such an act. Per Thompson, J. Ibid. 3. The State may bi'idge the streams which rise, run and empty within its own borders upon terms which only im- pair the navigation, without destroying it altogether. Per Woodwaed, J. Flan- agan V City, 6 Wr. 219. Affirmed by Supreme Court, U. S. Oilman v. City, 3 Wallace, 713. 4. The " area of a water-way" con- strued to be square, not linear measure- ment. Flanagan v. City, 6 Wr. 219 5. A purchaser of land with a stone- row in a creek thereon, may clear it and may raise a dam to the same height, but no more. Brown v. Bush, 9 Wr. 61. 6. A defendant who has not pleaded the statute cannot complain that the judge has instructed the jury that evidence beyond six years is to be viewed only with reference to the situation of the stream during that time. Ibid. 7. It is error to assume that a "stone- row " is a construction that acquires no rights by a lapse of time. Ibid. 8. The true inquiry in such a case is whether the defendant has raised the water beyond the line of the row. Ibid. 9. It is not error in opposition to scientific measurements for the Court to call the attention of the jury to " actual visible facts," such as ripples, rise and fall of the water. Ibid. 10. All rivers are navigable which are really so, though tideless; the soil up to low water mark and the river itself are the property of the CommonwealJi. Per Eead, J. Monongahela Bridge Go. v. Eirk, 10 Wr. 112. 11. A bridge authorized by law cannot be treated as a nuisance, and a proviso in the charter that it shall be so erected as "not to interrupt the navigation," is a limitation on the grant, not a rule of liability to injured navigation. Where piers are authorized, the proviso cannot be construed to forbid them. Ibid. 12. Where a charter makes no express provision for compensation for conse- quential injuries, the company are not liable for losses resulting from the loca- tion of a pier. Ibid. 13. If the piers are injudiciously located, the Commonwealth may complain, but not a party injured. Ibid. 14. The owner of land through which a stream flows may drain water into it, without liability to a lower owner. But he cannot drain water standing on his land on to another's ground. Miller v. Laubach, 11 Wr. 154. 15. The great rivers of the State have always been regarded as navigable. The ebb mid flow of the tide is not a criterion. McKeen v. Delaware Canal Co , 13 Wr. 424. The dam erected in the mouth of the Lehigh was wiihin the -discretion vested by the State in her agents, and they could rebuild and enlarge it. Ibid. 16. The assigns of the State are not liable for the backing of water from the dam formerly owned by the State. Ibid. \1. The lease by the State of the nse of the surplus water of a dam imposed no duty on the State to maintain the dam, and the purchaser from the State is not liable to mandamus if the dam is suffered to fall out of repair. Com. v. Pa. R. R. Co., 1 P.F. Smith, 3.1 1. 18. A person has no right under the mill-dam act to provide for a "splash'' fliood to send logs down the stream, and if he do so, he is liable for all damages re- sulting from his act. Dubois v. Gtaub, 2 P. F. Smith, 23S. 19. Equity will restrain the pollution of water. A defence resting upon pre- scription requires the strongest proof, and the pollution cannot be increased beyond the point at which it commenced. lilc- Calliun V. Oermantown Water Co., 4 P. F. Smith, 40. WAY. An alley cannot be closed if another lot has easement. See Easement, 1. A way becomes an easement by dedica- tion by pere du famille See Easement, 2. WAY 251 WIL Equity will enjoin against building on a way. See Equity 1 , 31. After selling lots fronting on open ground it cannot be closed. See Equity I., 3-3. Permitting a building to be erected estops from claiming right of way. See Estoppel, 26. As to use of way-giving title. See Limitations I., 9. 1. In an action for illegal removal of a gate to an inconvenifnt entrance to the way, the defendant, if he rely upon the plaintiff's duty to repair the gate, must prove it. The plaintiff is not bound to prove that he repaired the gate. Erb v. Ert), 14 Wr. 388. 2. In an action for continuance of a nuisance across an alley, evidence of a former recovery supports the action, and it is not defeated by a license for use per year which has terminated. Per Stowe, A. J., affirmed by Supreme Court. Gil- more V. Wilson, 3 P. F. Smith, 194. WAY-GOIXG CROP. See Layidlord and Tenant, 3. No notice as to, needed at sheriff's sale. See Sheriff's Sale, 10. WHARF AND WHARFINGER. 1. Wharfinger has no power to sell merchandise deposited on his wharf for wharfage. Per Read, J. Kusenberg v. Bi-oiune, 6 Wr. 187. 2. The history and law of wharves in Pennsylvania reviewed in an able opinion by Read, J. Ibid. 179. WIDOW. As to annuity in lieu of dower. See Annuity, 1. Dower extinguished by annuity. See Annuity, 1. As to discharging administrator. See, generally, Decedents' Estates II. As to widow's right to bury deceased husband. See Decedents'' Estates II , 12, 13. As to exemption oi three hundred dol- lars. See, generally, Execution III. As to power to sell the exemption. See Execution III., 1, 8. When widow becomes trustee. See Trusts III., 21. I 1. A widow marrying again would be entitled to the three hundred dollars ex- emption, and the widow of the son of a person dying seized, &c., is exempt from the collateral inheritance tax if she marry before the settlement of the estate. But if she marry again before the death of the devisor, she ceases to be a widow, and in that event mufit pay the tax. Com. v. Powell, 1 P. F. Smith, 438. 2. A widow is a woman whose hus- band is dead and who remains unmarried. Ibid. WIFE. As to administration by husband. See Decedents' Estates X.II., 1. As to wife's liability for her husband's devastavit. See Decedents' Estates II., 1, 2. As to charge defining measure of wife's damages for loss of her husband. See Errors and Appeals II., 2. As to admission in evidence of state- ment of husband and wife. See Evidence V., .5; and Husband and Wife IV. As to her share in partition. See Partition, 4, 9, 10. As to tenant by curtesy and other mat- ters. See, generally. Husband and Wife. WILLS. As to power of sale under wills. See Decedents' Estates II., 29, 44. As to interest on legacies. See Decedents' Estates, IX. As to evidence in contested will cases. See, generally. Evidence VIII. As to mental unsoundness. See Imbecility. WIL 252 WIL As to words " issue," "children," and as to rule in Shelly's case. See Shelly. Active trusts in wills. See Trusts Y., 6, 1, 8, 9, 20, and generally. I. Of testamentary capacity — evidence in issues, devisavit vel non. II. Of the execution, attestation, and stamping, — of republication — of revocations of wills by birth of issue, &c. — of deeds to take effect after death. III. As to after-acquired property — heirs cannot claim under and against wills- conclusiveness of register's decree — of decree of Unn-e^ States Court — bequests to charities and religious corporations — of perpe- tuities — restraints. IV. Conversion of land into money — for- feiture of devise — forfeiture of ex- ecutorship — of specific legacies — charges on real estate — purchase of share of devisee — of lapsed legacies. V. Devise by husband of his wife's land — devises by married women — of wills executed under a power — nuncupative wills. VI. Of the construction of wills not ern- braced in the foregoing specifica- tions. I. Op testamentary capacity — Evi- dence IN issues — Devisavit vel non. 1. An idiot is incapable of making a will. While -a man need not have the highest or even the ordinary degrees of intelligence to make a will, he may be disqualified though neither an idiot nor a madman. A disposing mind and memory is one in which the testator had, at the mflking of the will, an intelligent con- sciousness of the act, a knowledge of his property, an understanding of the dispo sition he wishes to make of it, and of the persons he desired to participate in his bounty. Daniel v. Daniel, 3 Wr. 191. 2. That is to be deemed no testament when the sick person answers yea, the interrogation being made by a suspected person. Ibid. 3. An attorney may be asked " why he could have no conversation with his client, or the shape of his client's head," in order to prove imbecility. Ibid. 4. The admission of one of several de- fendants in an issue devisavit vel non cannot be given against the others. Ibid. 5. It is not error to exclude the ques- tion, could the testator "understand a will ?" if the Court allow the question, was he " fit to make a will ?" Because there is really no difference between the condi- tion competent to understand a will and that which is fit to make a will. Ibid. 6. A will cannot be avoided~merely because it is unaccountably contrary to the common sense of the country. Per LowRiE, C. J. Dean v. Negley, 5 Wr. 316. 7. Lawful influence, however great, must be allowed to produce its natural results even in influencing last wills. Ibid. 8. To avoid a will for such a reason, the influence must be unduly exerted over the ver\' act of devising. Ibid. 9. But it is competent to prove an adulterous connection between a testator and the mother of his devisees, and it may jnstify a verdict against the will Ibid. If a man innocently marry the wife of au- other, this will not affect her will in his favor. Ibid. 10. Undue influence, in order to avoid a will, must destroy the free agency of the testator at the time when the instru- ment is made. Per Strong, J. Eokert V. Flowry, 1 Wr. 46. 11. Neither moral nor physical con- straint is to be inferred from mental weakness alone. Ibid. 1 2. That one appointed executor exer- cised control over the affairs of the testa- trix, and even over herself months after the will was made, if unconnected with the testamentary act, is not evidence from which the jury can infer that the will was not her own. Ibid. 13. A decree of a register's Court against a paper offered as a will, affirmed by the Supreme Court, is conclusive against a second offer to the register. Shermer>s Appeal, 8 Wr. 396. 14. In an issue devisavit vel non the party seeking to establish the will takes the onus ; but when he has proved the due execution of the paper, the law presumes sanity of the testator. Werstler v. Cus- ter, 10 Wr. 502. WIL 253 WIL II. Of the bxeoution, attestation and STAMPING — Or REPUBLICATION — Of KEVOCATION OE 'WILLS BY BIETH OF ISSUE, &C. 1. Subsequent birth of issue is a par- tial revocation of a will, although the will is made by a feme covert under a power, in a marriage settlement. Young's Ap- peal, 3 TFr. 115 _ _ 2. Where a will is in part revoked by subsequent birth of issue, the annuities and other legacies are to be abated pro rata, and to be paid out of the share of the estate passing under the will. Young's Appeal, 3 Wr. 115. 3. A will written in the presence of the testator, and according to his dicta- tion, and executed in accordance with the statutes, is valid though not read to or by him. Per Pearson, P. J., affirmed by Supreme Court. Hesff' Appeal, 1 Wr. 73. 4. In an issue devisavit vel non the party seeking to establish the will takes the onus, but when he has proved the due execution of the paper, the law presumes sanity of the testator. Werstler v. Cus- ter, 10 Wr. 502. 5. Subscribing witnesses should be sat- isfied of the testator's sanity before they sign. Und. 6. A will need not be stamped. Ibid. I. A republication of a will which for- gives debts due from children discharges a bond taken between the making of the will and its republication. Hutchinson's Appeal, 11 Wr. 84 8. A marriage subsequent to a will is a revocation of it as to the wife, whether there is or is not a provision for her. Nor does it depend on her election. Ed- ward's Appeal, 11 Wr. 144. 9. A contingent remainder in favor of a child who may be born after the date of the will is not a provision for him, and his birth revokes the icill as to him, Ed- ward's Appeal, 11 Wr. 144. 10. A will revoked by subsequent mar- • riage and birth of a child is not neces- sarily revoked as to trustees. Ibid. II. A codicil duly executed repub- lishes the will to which it refers, unless there is an expressed intent to the con- trary. Neff's Appeal, 12 Wr. 501. 12. And this, although there was a second will between the first will and the codicil thereto, and although the codicil to the first will contained no words of republication of the first will, or of revo- cation of the second will. Ibid. 13. When one subscribing witness tes- tifies to all the signatures, and thts otl er does not remember and only swears to his signature, the will is sufficiently proved. McKee v. White,' \i Wr. 354. 14. Appointing a guardian "for any child living at the time of the decease" of the testator is not "providing for" a child born after the date of the will. Hollings- vmrlh's Appeal, 1 P. F. Smith, 518. 15. Nor is the appointment of a guard- ian " providing for" sucli a child, although the testator add, " which guardianship I intend as a suitable and proper provision for such child." Ibid. 16. As to a child boru after the date of such a will, the testator dies intestate.. Ibid. 17. Such birth does not, however, re- voke the appointment of the guardian. Ibid. 18. A disposition of property to take effect after the grantor's death is tesia- mentary, and therefore revocable. This- principle applied to a deed of trust, Frederick's Appeal, 2 P. F. Smith, 338. 19. In the absence of allegation of fraud or undue influence, a will cannot be set aside because of the omission of legatees by the inadvertence or intention of the scrivener. Wallize v. Wallize, 5 P. F. Smith, 242. 20. Parol evidence of this not admissi- ble. See the cases collected per Read, J. Ibid. 21. If the testator alter certain lega- cies by erasure and interlineation, and reacknowledge the will, it is not a revo- cation or cancellation of the will. J)ix- on's Appeal, 5 P. F. Smith, 424. 22. A will can be executed on Sundny. And a paper can be signed on Sunday and delivered another day. Beitenman's Appeal, 5 P. F. Smith, 183. III. As TO after-acquired property — Heirs cannot claim under and against will — conclusiveness of register's decree, of decree of UNI- TED STATES COURT— Bequests to char- ities AND RELIGIOUS CORPORATIONS — Of perpetuities — Restraints. 1. The Act of April 8, 1833, § 10, (directing that after-acquired real estate shall pass by a general devise,) does not apply to a will made before its passage, WIL 254 WIL although the testator died after the pass- age of the act. The English and Penn- si/Jvania authorities collected and re- vieived in an able opinion of Read, J. Gable's E.rrs. v. Davb, 4 Wr. 211. 2. Heirs cannot claim under and against a will. Ibid. 3. A bequest to a religious congrega- tion, made within one calendar month of the testator's decease, is void under Act of April 26, 1855. McLean v. Wade. 5 Wr. 266. 4. A decree of a register's Court against a paper offered as a will, affirmed by the Supreme Court, is conclusive against a second offer to the register. Shermer's Appeal, 8 Wr. 396. 5. The probate of a will is evidence of its validity, conclusive as to personal prop- erty, and presumptive as to real. The original need not be produced in an eject- ment. Kenyan v. Stewart, 8 Wr 179. 6. The Act of April 22, 1856, (requir- ing the suit to be brought within five years,) is retrospective so far as concerns all who were sui juris at that date, and it is constitutional. Ibid. 1. A present gift to a charity is never a perpetuity, though inalienable. Per LowKlE, C. J. City V. Girard, 9 Wr. 9'. 8. Restraints upon alienation do not transgress the rule against perpetuities where ihey have no relation to the vesting of the estate. Ibid. 9. Where a vested estate is given, and there are annexed to it conditions, limita- tions, trusts for accumulation, or other restraints not allowed bylaw, the restraints are void but not the vested estates. Ibid. 10. Unreasonable or impracticable di- rections for the management of a chailty do not annul the gifts. The reasonable doctrine of cy pres prevails in Penn- sylvania, whereby a charity well defined may be enforced, even where the means provided are inadequate or unlawful. Ibid. ■ 11. A decree of a United States Court upon the same will, and between the same parties, is conclusive, although the pro- ceeding there was by bill in equity, and the suit in the State Court is ejectment. Ibid. 12. A devise for the foundation of a school, although not a free scliool, and although it was to bear the founder's name, is a charity, and if made within a inoulii of testator's death is void uuder Act of April 2fi, lf-'65, § 11. Miller v. Forter, 8 P. F. Smith, 292. 13. The subsequent incorporation of the school cannot divest the estate of the heirs. Ibid. lY. Conversion of land into money — Subrogation of legatee — Forfeit- ure OF DEVISE — Forfeiture of ex- ecutorship — Of specifjc legacies — Chargeson real estate — Purchase OF SHARE OF devisee — Of LAPSED LEG- ACIES. 1., Where land is directed to be con- verted into money or vice versa, a con- version is worked. But an authority to sell does not work a conversion ; to accom- plish this, there must be a " positive and explicit " devise. Chew v. Nicklin, 9 Wr. 84. 2 A clause annulling a devise, in case the devisee shall seek to invalidate the will, is to be strictly construed, and will not apply where there is probabilis causa litigandi. Disputing the right of execu- tors to sell, and retaining adverse pos- session of part of the estate, will not work a forfeiture. Chew'.^ Appeal, 9 Wr. 228. 3. Nor would a forfeiture of a devise oust the devisee from his executorship. Chew V. Cheic, 9 Wr. 2.34. 4. It will not be implied that a specific legacy is charged on real estate where others are expressly charged, and it is not charged. Per Strong, J. Mcllon's Appeal, 10 TT>. 1(15. 5. Where a specific leg^icy has been taken to pay creditois, the legatee is sub- rogated to the creditors ; but where the lien of the creditors has not been extended by suit or filing a copy of the claim, and a judicial sale tiike.s place more than five years after the death of the testator, the lien of the creditois is gone, and paying them out of the specific legacy gives the legatee no subrogation of lien". Ibid. 6. Equitable conversion is a que.stion of intention, and does not result necessarily troni a power of sale given to executors. Edward's Appeal, U H>. 14t 1. A devisee accepting land charged with legacies assumes to pay them, and is jtersonally liable. Steele's Appeal, 11 Wr. 43T. McGredy's Appeal, 11 Tlr. 442. 8. His assigns take the land subject to the charge, whether sold by the devisee or by his executor. Steele's Appeal, 1 1 '3'? WIL 255 WTL Wr. 43T. McCredy's Appeal, 11 Wr. 442. 9. If land is charged with a legacy, the lien continues wlien the land is sold by the devisee or his executor, and paying the purchase money into Court will not divest a lien not divested by the sale. McCredy'n Appeal, 11 Wr. 442. 10. "Where an annuity is charged upon land in a certain county, and tlie residue of the estate is devised after " securing the payment of the annuity," these vv'ords ex- tend the charge of the annuity upon all the estate. Ibid. 11. A bequest of "as much personal property as the wife chooses to retain" passes the whole personalty, choses in action included. Ilyer's Appeal, 12 Wr. 26. 12. But it will not throw the legacies and debts upon the realty, where, taking the whole will, it appears that the widow was only to have the residue of the per- sonalty. Ibid. 13 A bequest of a principal sum charged on land, the interest to be paya- ble to a daughter for life, and after her death the principal to be divided amongst her children when they arrive at lawful age, is a vested legacy in the children, hears interest, and is recoverable in the Orphans' Court by proceedings against the devisees accepting the lands. Clark T. Wallace, 12 Wr. 80. 14. Where there is no specific devise of realty, but it is blended with the per- sonalty and given to the residuarj legatee, who is also named as executor, the realty is thereby charged with the payment of the legacies. Gallagher's Appeal, 12 Wr. 121 15. A devi.=e of lands in trust to permit a son to receive the rents during life for his support, subject, however, to the pay- ment of a certain sum to another, and after death of the tenant for life then over, places the charge upon the estate for life and not in remainder. The charge is pre- ferred to the support of the tenant for life. Mc Glurken't! Appeal, 12 Wr. 211. 16. A general charge of real estate for payment of debts does not create a testa- mentary lien unfettered by limitation. Per Agnew, J. Trinity Church v. Wat- son, 14 Wr. 518. The authorities col- lected and reviewed. Ibid. 17. The words in a will, "I order the same (the property, real, personal, and mixed) to be sold by ray executors for its reasonable value, and the proceeds to be disposed of as herein specified," make a clear case of a devise to executors to sell, and operate as a conversion of the realty into money from the moment of the de- cease of the testatrix and the descent is broken. Per Thompson, J. Brolasky v. Gaily, 1 P.F. Smith, 512. 18. A judgment against one of the dis- tributees is no lien on his share. Ibid. 19. One who contracts in such a case to purchase the estate from the execu- tors cannot claim to deduct from the pur- chase money the share of one of the de- visees bought by him a-t a sheriff's sale. Ibid. 20. An authority to dispose of the property for a "term of years" would not prevent the other clause from operating as a conversion. Ibid. 21. If one of a number of residuary devisees, sons of the testator, each of whom is named, die before the testator, without issue, the share devised to him lapses, as to it the testator died intestate, and it goes to the heirs at law of the testator. Wil- liams V. Neff, and Neff's Appeal, 2 P. F. Smith, 326. 22. In such a case there is no survivor- ship, for it is not given to a class but to each by his own name. Ibid. 23. This is not att'ected by a repiiblica- tion of the will after the death of the de- visee. Ibid. 24. A devise in trust for such children as may be living, when the youngest child arrives at twenty-one, does not pass a vested estate until the youngest child , arrives at twenty-one, and a child dying before that event has no vested estate. McBride v. Smyth, 4 P. F. Smith, 245. 25. Before a legacj^ can be held a charge so as to bind lands in the hnnds of a purchaser or against a mortgagee, it must appear by direct expression or plain implication that such was tlie intention of the testator. Per Sirong, J. Mel- lon'' s Appjeal, 10 Wr. 165. 26. An intent to charge may be im- plied from a devise of the residue blend- ing real and personal estate, and even where portions are excepted, but this im- plication will not arise where the legacy is of a specific fund — as a debt due to tes- tator by others. For if that fund fail, the legacy falls. Ibid. 27. A charge upon land devised "for WIL 256 WIL a comfortable room and sufBcient main- tenance" of the widow, allows her a rea- sonable discretion as to place and quan- tum measured by the station of the tes- tator. The devisee accepting the land should tender performance, and failing herein the widow is entitled to a decree against the devisee personally and against the land though assigned. Steele^s Ap- peal, 11 Wr.iSI. V. Devise by husband oe his wife's LAND — Devises by married women — Of wills executed under a power — Nuncupative wills. 1. Devise by a husband of land held in trust for his wife Inoperative unless the wife accept under the will. Davis v. Davis, 10 Wr. 342, 2. A will executed in New Jersey by a married woman acting under a power, and executed according to the laws of Penn- sylvanist, will pass realty in Pennsylvania. Alexander V. Paxson, 11 Wr. 12. 3. Although an instrument profess to be by virtue of a power, it may still as a will pass realty under a "'general devise of the residue of estate," and those words will not be confined to personalty by the subsequent expressions " resid- uary legacy" and "residuary legatee." Ibid. 4. A letter written by a witness pur- porting to give an account of a testament- ary disposition of property, is not a compliance with the statute requiring, in cases of nuncupative wills, that the testi- mony or the substance thereof be com- mitted to writing within six days, &c. The words of the testatur or their sub- stance, and his request to the bystander to bear witness, &c., must appear, Taylor's Appeal, 11 Wr. 31. 5. If a testator have only a power and not a devisable estate, his devise shall be considered an execution of the power, though it be not referred to in the words by which the gift is made. Per Fisher, P. J., affirmed by Supreme Court. Keefer v. Schwartz, 11 Wr. 603.^ . 6. One having a power of appointment amongst his children by will, cannot de- vise to them for life only, with power of appointment to their issue. Such a delegation is transgressive, and they take the life-estate under the last will, with a vested remainder under the first, and hence have the fee. Horwilz v. Norria, 18 Wr. 213. 7. A devise of the residue after bequest of legacies implies a charge for the pay- ment of the sums bequeathed. Becker V. Kehr, 13 Wr. 223. 8. A purchaser of the land from the devisee takes it subject to the charge, and if several tracts are charged and sold Buccessivfily, the lot last sold bears all the burden, and if there is a deficiency the lot preceding it must be called on. Ibid. VI, Of the construction of Wills not EMBRACED IN THE FOREGOING SPEOIW- OATION. 1 A devise over, when " one of the above-named deceases, my grandson to draw their part," gives the grandson " the part" of the one first dying, not both parts on the death of both. Logan's Appeal, 3 Wr. 237. 2. A devise of the whole estate to a wife for life, after her death two-thirds to certain devisees, and the other third "that my wife can do and bequeath to whom she pleases," vests the one-third abso- lutely in the wife, and she can devise ii; without reference to the alleged power of appointment. Musselman's Estate, 3 Wr. 469. 3. A direction that if a legatee " should die without children then the bequest made to fall back," does not involve an indefinite failure of issue, is not void, and the legatee is therefore not, entitled to receive the principal without security. Bedford's Appeal, 4 Wr. 1 8. 4. The word " children " may be con- strued "istiue" when the context of the will affirmatively shows that the testator intended to useiit in that sciise. Per Strong, J., in Ibid., and in Haldeman v. Baldeman, 4 Wr. 35. 5. The use of the word " then " and the limitation over to persons in being, show that a testator does refer to an undefined period, or to an indefinite failure of issue. Ibid. 6. In bequests of personalty very slight circumstances are laid hold of as suflicient to indicate an intention that a limitation over on death without issue shall take effect at a definite time, viz., the death of the first taker. Per Strong, J. Ibid. 1. A devise of the whole estate, which standing alone might be a fee simple, may WIL 257 WIL be reduced by a, subsequent clause. Hal- deman v. Haldeman, 4 Wr. 29. 8. A testator cannot denude a fee of its ^properties, but a reduction of tiie quan- tum of tlie gift is allowable. Per Strong, J. Ibid. 9i. A devise of the residue, followed by a direction that the executors shall account for and pay over hidf-yearly the income during life of the devisee, and after her death " then to descend to the children ;" but if the devisee "siiould die and leave no lawful isaue," then "the share to fall back," is not a devise directly in fee sim- ple because of the limitation for life, and because of the remainder over to the chil- dren and the direction to fall back if no issue; but it is an estate tail, the vi^ord "children" being used in the same sense with " issue," and meaning "heiis of the biidy." Hence, under Act of April 27, 1855, it is a fee simple. Ibid. 10. No such trust is created by those words as to prevent the operation of the rule that an estate for life with remainder to issue is an estate tail. Ibid. 11 . A bequest to a widow of mere rights 'and privileges upon a farm, not the farm itself, and a clear devise of it to a daughter, will not be controlled by a rep- etition thereof, adding the words "after the death of mj'- wife." Buchanan v. Duncan, 4 Wr. 82. 12. A bequest to a sister dead at the date of the will is saved by the Act of May 6, 1844, § 2, she having left children surviving the testator, llinter'ti Appeal, 4 Wr. 111. 13. A devise of a residue to the chil- dren of two brothers and to a sister, (who was dead at the date of the will, but who left children surviving the teslator,) "share and share alike," is to be distrib- uted into three parts, the children of each taking per stirpes. Ibid. 14. A devise in these words, "at the death of my brother it is my will and I give to my nephew," and the disposition of the whole is a vested legacy in the nephew. BurdY. Burd, 4 Wr. 182. 15. A devise "to brothers and the chil- dren of such as are deceased," does not include grandchildren. Appealof Gable's Executors, 4 Wr. 231. 16. A devise to one for life, and after her death to her children, gives the i3rst taker only a Ufe-estate, although she lias no children at the time. Cole v. Von Bornhorst, 5 Wr. 243. Where the gift to the children is immediate and not liy way of remainder, (as a devise to A anl his children, he not having children at the time ) it is an estate tail. Ibid IT. A devise to a man "during his life and that of his wife, and after their de- cease the land to descend to their heirs and their heirs f irever, or to such of them a.s may then be living," gives an estate in fee to the first taker. GriswelVs Appeal, 5 Wr. 288. 1 8. Superfluous and inconsistent words do not reduce the words "heirs" or "heir.s of the body" into words of purchase. Griswell'.i Appeal, 5 Wr. 288. 19. Words of superadded limitation, (as to A for life, remainder to his heirs and to their heirs forever,) and words of distributive modification, (as to A for life, remainder to the heirs of his body as ten- ants in common, share and share alike,) are insufficient to reduce the word "heirs" to a word of purchase. Per Strong, J. Ibid. 20. Where the word "heirs" is used there must be unequivocal evidence that the testator so intended, in order to read it " children." The addition of the words "to such of them as may then be living," is not evidence of such an intent. , Per Strong, J. Ibid. 21. If a legacy be given to one by name, and in event of his death to another, the alternative gift will take effect if the first legatee die, even in the testator's lifetime. So, too, when a legacy is given to a class, and in the event of the deatli of one of the class before a defined period, his share over to another, that other will take though the first legatee die in the lifetime of the testator. Martha May's Appeal, 5 Wr. 512. Per Strong, J. 22. A bequest by a testatrix to all her nieces does not embrace the nieces of her husband, although she call one of her hus- band's relatives her niece several times in the will. Green's Appeal, Satterth- waite's Appeal, 6 Wr. 25. 23. A bequest of a sum, "both princi- pal and interest," (if the legatee need it,) during her lifetime, after which, as in the residuary clause, entitles the legatee to receive the principal without giving se- curity. Green's Appeal. Satiertlnuaite's Appeal, 6 Wr. 25. ■J.i. A bequest of a " yearly dividend in a factory" carries the whole dividend 17 WIL 258 WIL made after tlie testator's death. It can- not be apportioned so as to give to tlie legatee only the proportion which the whole 5'ear beais to the time between the death and the dividend. McKeen's Ap- peal, 6 Wr. 4"? 9. 25. If the will provide that in case a dividend bequeathed should be less than a certain sum "the difference shall be made good" out of the estate, the legatee is entitled, if no dividend is declared, to have the whole deficit made good from the estate. Ibid. 26. Where a will directs that certain devises shall be "in lieu of dower," the widow cannot claim in addition a share of the residue under a clause which di- vides it "amongst the heirs already named." Ihid. 2Y. A devise to one in fee, with a lim- itation over to others if he should die without issue, with a proviso that if the first taker "should sell the property he may grant and assign as he likes," gives him the right to convey for a nominal consideration, to have a reconveyance made to himself, and the limitation over is then destroyed. Per Woodward, P. J., affirmed in Barnet v. Deturk, 7 Wr. 93. 28 A legacy was given "to Lavinia, daughter of my brother John." The brother John had no daughter Lavinia. The testator had expressed an intention to give sueh a legacy to two godchildren. They both claimed the legacy. One was a daughter of the brother John, but not named Lavinia; the other was named Lavinia, but was not a child of the brother John. The Court below decided in favor of the former. The Supreme Court held that in such "an equal balance" the pre- sumption was in favor of the decree, and affirined it. Wagner's Appeal, 1 Wr. 1U2. 29. To one for life and "after his death to his legal issue or heirs," is an estate tail. Angle v. Brosius, 1 Wr. 181. 30. A devise for the devisee's "use and comfort, to be disposed of as she pleases at or before her decease, when no doubt she will make such distribution as she may then think most proper," gives a fee unaccomoanied by any trust. Kiiiter v. .leaks, I'Wr. 445. al. "I bequeath the income of five thousand dollars " does not give an in- come of five thousand dollar.-:, but only of three hundred dollars. Simh Appeal, 8 Wr. 345. 32. When a devise over to two sur- vivors takes effect, there is no further survivoiship as between the devisees.. Each can will his one-half. Seminary v. Wall, 8 Wr. 353. 33. A devise to two " for their lives and after their decease to their heirs" is not a joint tenanc}', but a tenancy in common. Seelyv. Seely, 8 Wr. 434. 34. " In trust to pay the interest at his discretion to A for life, and in case of his death without leaving issue to pay the principal to B," gives A no interest which creditors can attack, and is a good trust. Stills. Spear, Q Wr. 168. 35. To " A for life and at his decease to his lawful issue, child or children then living, or the lawful issue of such chil- dren as may be then dead, share and share alike," gives the first taker only a life- estate, for the word "issue" is controlled by "then living," by the distribution " share a,id share alike," and liy the words "child and children." Walker v. Milligan, 9 Wr. 118. 36. A clause annulling a devise in case the devisee shall seek to invalidate the will is to be strictly construed, and will not apply where is " probabilis causa litigandi." Disputing the right of exec- utors to sell and retaining adverse pos- session of part of the estate will not work a forfeiture. Chew's Appeal, 9 Wr. 228. 37. Since the Pennsylvania statutes, the heir never takes either a lapsed or a void legacy or devise if the residuary clause be suflBcientiy clear and compre- hensive to embrace it. Per Woodward, J. Patterson v. Swallow, 8 TTV. 4S7. :>8. An intention must be full, rounded and complete, not hesitating doubts or experimental or suspended purposes. Patterson v. Swallow, 8 Wr. 487. 39 A devise to of a ground-rent omitting the name of the devisee, followed by a devise of "all the rest and residue of my real and personal estate which does not pass by virtue of m}- will," gives the ground-rent to the residuary legatee. Ibid. 40. A devise to one for life, "after his decease to the heirs of his body, their heirs in such manner as he may see fit to divide it among them, which he shall have full power to do as he pleases," gives the first taker power to divide the land among WIL 259 WIL the heirs of his body as he may choose, and an unequal distribution will not be set aside upon the former English rule as to illusory divisions. Per Woodwaed, P. J., affirmed by Supreme Court. Graeff V. Be Turk, 8 Wr. 521. ■11. A present gift to a charity is never a perpetuity though inalienable. Per LoWBiB, 0. J. City V. Girard, 9 Wr. 9. 42. A devise of a residue "amongst the whole of my heirs already named" is to be construed as including only the heirs already named, and not all the lega- tees theretofore named. Porter's Appeal, 9 Wr.2>)l. 43. Where there is an evident intent to dispose of the whole estate, and a part of the will gives an absolute estate which a later clause limits for life, without any devise over, the devisee takes the whole estate. SUknitter^s Appeal, 9 Wr. 365. 44. The devise of the interest of a fund, no trustees being interposed, and no in- vestment directed, carries an absolute estate. Ibid. 45. Devise of the interest of personalty to a widow for li'e, remainder to a grand- daughter, " and should she die under age and without issue, or after arriving at age should she die intestate and without issue, then to testator's heirs," gives the grand- daughter upon testator's death a vested remainder, and though the widow survive the granddaughter, the granddaughter's administrator is entitled to the fund. Stehman's Appeal, 9 Wr. 398. 46. If a will bequeath a sum sufficient to pay a balance of purchase money of a farm devised, the legatee must recover it as a legacy and not as a debt. Bichards V. Bichards, 10 Wr. 78. 47. Before a legacy can be held a charge, so as to bind lands in the hands of a purchaser or against a mortgagee, it must appear by direct expression or plain implication that such was the intention of the testator. Per Strong, J. Melloii's Appeal, 10 Wr. 165. 48. A devise to A, "but if she should be called away by death without a lawful heir," then over to her sisters, means if she should die without issue, and being an indefinite failure, it is an estate tail which can be barred by conveyance. Covert t. Sobinson, 10 Wr. 274. 49. A bequest, followed by a direction that should the len-atee " Call into drunk- enness or rcvelr; , his interest is to cease, and the estate to be disposed of as above directed," in connection with a preceding direction for division among relatives, is not a mere declaration in teri'orem, but a virtual limitation over. And upon breach of the condition the legacy is forfeited, although the legatee was formerly a drunkard and no worse after the death of the testator. Per Gilmore, P. J., af- firmed in Mickey's Appeal, 10 Wr. 337. 50. Words of recommendation and con- fidence will not convert a bequest into a trust. Per Read, J. Beck's Appeal, 10 Wr. 5-27. 51. Other parts of the will may show that the legatee is not to have the ultimate disposition, and that a trust may be created. Ibid. .t2. a bequest of annuity " to be paid to her for house rent" can be claimed, although the annuitant do not keep house. Beck's Appeal, 10 Wr. 527. 53. A bequest of a certain debt due to the testator is no evidence to establish the claim in a suit between the executors and the alleged debtor. The fact that he is one of the- legatees in other clauses of the will does not estop him from denying the alleged debt. Zimmerman v. ZiTni- merman, 11 Wr. 378. 54. If a will forgive debts due by children, " except capital " in the hands of one, and he afterwards gives a bond, and subsequently the will is republished, the bond and interest are discharged, although the debtor (as executor) included the bond in the inventory he filed. Ibid. 55. "Capital" in such a case means the sums contributed to the capital by the testator without interest. Ibid. 56. A bequest of " as mucn personal property as the wife chooses to retain," passes the whole personalty, choses in action included. Myer's Appeal, 12- Wr. 26. 57. A devise of the entire estate to A, with a clause that the devisee "is not to divest herself of it until after her death, and that at her death the residue is to be divided among the children," passes au estate in fee to the first taker with a void condition against alienation, the children being only entitled to what she ma}' have left undisposed of. Jauretche v. Proctor, 12 Wr. 466. 58. A will, by referring to an unde livered deed, may make the deed in soraj sense a part of the will. A devise to WIL 260 AVTL for life of two acres, at her death "to revert to my sisier, with lands already conveyed to her," gives to tlie sister the land described in the deed, although it had never been delivered to her. Thomp- son V. Jjloyd, 13 Wr. 121. 59. A devise to a daughter "in trust for her heirs until they are twenty-one, until which time she is to have the in- come, and should she die, leaving no heirs, then to revert to her brothers," provides for an indefinite failure of issue, (a fa. lure any time after her death,) passes ■A fee tail, and the trust being impossible, the whole fee pnssed to her. Allen v. liender.-^on, 13 Wr. 333. 60. Devise to one of a farm for life, "he to receive wages as heretofore until the first harvest after my decease," does not puslpone the devisee's enjoyment of the farm until after the first harvest, It sim- ply gives the estate the right to claim the ci'ops in the ground at testator's death. Per Fjsher, p. J., affirmed by Supreme Court. Fetrow v. Fetrow, 14 Wr. 253. fiO-J. Devise "to heirs according to law" means heirs in the technical sense, and only such as are of the blood of the first purchaser can participate. Fby^s Appeal, 14 Wr. 311. Zimmerman v. Briner, 14 Wr. 53'!. 61. A devise of property to a widovif for life and upon her decease to bedivided among the testator's children "then living, the issue of h deceased child to represent the respective parent," creates a vested remainde'' in the testator's children to be enjoyed \a futuro. Womrath v. McCor- mick, I F. F. Smith, 5U4. 62. xn such a case the widow and chil- dren can, by uniting in a deed, convey a good title. Ibid. 68. The terms "heir," "issue," and the like, define the qiuaiitity of the estate, and tlie heirs succeed to it on the death of the ancestor. In all such cases succession may be defeated by alienation of the an- cestor. Per Thompson, J. Ibid. 64. The law requites the construction to be made in doubtful cases in favor of vested in preference to contingent re- mainders, and indefeasible to defeasible estates. Ibid. 65. The word " when" or " whenever," referring to the time at which property is to be divided, will not be allowed to ni;ike a devise to children contingent. Per T'hompson, J. Ibid. 66. A conveyance which declares that it \i "in no way to take effect until after the decease of the grantor," with habendum to have and to hold after the decease of the grantor, is revocable as a will. Perry v. Scott, 1 P. F. Smith, 119. Turner v. Scott, Ibid. 126. 67. A person legitimated after the making of a will, but before the death of the testator, can take under a devise to " lawful issue.'" Miller's Appeal, 2 P. F. Smith, 113. 68. "Issue" will embrace descendants unless the will limits its meaning to chil- dren. Miller's Appeal, 2 P. F. Smith, 118. 69. If two clauses of a will are irrecon- cilable with each other, the latter must prevail, but the whole will must be care- fully considered to reconcile them if pos- sible. Newbold v. Boone, 2 P. F. Smith, 167. 70. Apparently repugnant clauses of a will reconciled in learned opinions of Woodward, P. J., and Agnew, J. Ibid. 71. A legacy exceeding the amount of a claim which is not contingent or uncer- tain and is payable immediately, is a satisfaction of the debt. TT'269 Assignee, &c., 2, 3, 4, 5, 6. 377 Execution v., 3. Bitting, Hasslcrv., 4 Wr. 68 Equity IIL, 1. Limitations II. , 4. Bitzer v. Killinger, 10 Wr. 44 Former Recovery, 11 13, 13, 14. Set-oir, 9. Black's Appeal, 8 Wr. 503 Debtor and Creditor VIL, 1. Partner, Partnership II. , 9. BLA - BOW 275 Black V. Halstead, 3 Wr. 64 Affidavit, 1, 3. Shivel}' v., 9 Wr. 345 Fraud III., 7. V. Tricker, 3 P. F. Smith, 436 Abatement, 6. Coverture. Husband and Wife III., 17. Blackburn's Appeal, 3 Wr. 100 Assignee, ifcc, 11. Trusts and Trustees III., 5, C, 7. Blackburn V. Ormsby, 5 Wr. 97 Affidavit, 15. 101 Accord, 1. 3. Debtor and Creditor I., 3. Blackmore V. Allegheny, 1 P. F. Smith, 160. Counties, G, 7. Bla'ckston v. Buttermore, 3 P. F. Smith, 366 Attorneys at Law, 13, 13. Blackstone v. White, 5 Wr. 330 Evidence VI., 30, 31. Blackwell v. Cameron, 10 Wr. 330 Estoppel, 18. Partition, 5. Blair v. Mathiot, 10 Wr. 363 Bonds, 3. Set-off, 10. Blewettv. Coleman, 4 Wr. 45 Land XII., 3. Partition, 1. 53 Evidence III., 4. Trespass, 4. 176 LandXIL, 3. Blight Y. Blight, 1 P. F. Smith, 430 Annuity, 1. Dower, 18. Blood V. Mercelliot, 3 P. F. Smith, 391 Constitutional Law, 46, 47. Blystone, Blystone v., 1 P. F. Smith, 373 ...Debtor and Creditor II., 31. Fraud V., 5. Board of Missions, Powell v., 13 Wr. 46 Shelley, 14, 15, 16. Wardens V. City, 6 Wr. 309 Philadelphia, 1. Bodey, Saurman y., 6 Wr. 476 Bills of Exchange and Promissory Notes I., 5. Evidence in. , 33. Boehmer v. Schuylkill, 10 Wr. 453 Surety, 3. Boggs, Campbell v., 13 Wr. 534 Trusts VL, 7. Limitations II., 9. Bogle V. Kreitzer, 10 Wr. 465 Decedents' Estates IIL, 17, Errors and Appeals I., 10. Errors and Appeals IV. , 34, 35. Bomberger, Horton v., 11 Wr. 493 Contracts VI., 11. Bond, Phipps v., 4 P. F. Smith, 343 Errors and Appeals IV., 57. Y. Negley, 4 Wr. 381 Railroads L, 1, 3, 3, 4, 5, 0, 7, 8, 9, 11. Bonner v. Campbell, 13 Wr. 386 Fraud IL, 13. Errors and Appeals VI., 4. Evidence III., 38, 39. Partner, Partnership III., 26. Bonsai v. Comly, 8 Wr. 443 Execution IIL, 17, 18. Landlord and Tenant, 14. Boone, Newbold v., 3 P. F. Smith, 167 Wills VL, 69, 70. Borland v. Ealy, 7 Wr. Ill Errors and Appeals V., 6. Justices, 4. Borough of Dunmore's Appeal, 3 P. F. Smith, 374 Errors and Appeals V., 35. Constitutional Law, 4, 5. Borough of Easton's Appeal, 11 Wr. 355. ..Corporations IIL, 5, 6; IV., 22: Costs 0. Petersburg v. Noss, 3 P. F. Smith, 448 Bounties, 1. Bortz V. Bortz, 13 Wr. 383 Husband and Wife IIL, 8. Vendor and Vendee IV., 35, 20, 37, 28. Bott, Curry v., 3 P. F. Smith, 400 Ejectment IL, 35. Husband and Wife IL, 43, 44. Bowen, Stewart v., 13 Wr. 345 Account Render, 3. Auditors, 1, 5. Y. Still, 13 Wr. 65 Debtor and Creditor I., 11. Evidence X., 7, 8, 9. Evidence XX., 33. Partner, Partnership IIL, 28, 29, 30. 276 BOW — BRO Bowman, lus. Co. v., 8 Wr. 89 BillsofExoliangeanclProinissory Notesl., 9. Insurance III., 19. 91 Insurance II., 8. Rifener v., 3 P. F. Smith, 313 Deeds, 13. Fraud IV., 9. . Land I., 49. Zulich v., 6 Wr. 83 Schools, 1. Bowser, R. R. Co. v., 13 Wr. 39 Corporations V., 85, 36, 37, 38. Bojd V. McNaughton, 1 P. P. Smith, 337... Ejectment I., 34, 35; IV., 4. V. Miller, 8 P. P. Smith, 431 Justices, 1. V. Negley, 3 P. P. Smith, 387 Practice IV., 19. Phipps v., 4 P. F. Smith, 343 Landlord and Tenant, 40, 41. Fraud I., 48. Boyer, Henderson v., 8 Wr. 380 Dower, 13, 14. Landlord and Tenant, 13. Boyer's Estate, 1 P. P.,Smith, 433 Day, 1. Boynton v. Urian, 5 P. P. Smith, 142 Land I., 54, 55, 56, 57. Bradbury v. Wagenhorse, 4 P. F. Smith, 180 Affidavit, 24. Bradford v. Kentz, 7 Wr. 474 Dower, 8, 9, 10, 11, 12. Orphans' Court, 10. Bradley v. O'Donnell, 4 Wr. 479 Costs, 3. Ejectment I., 8. Braiue v. Spalding, 3 P. F. Smith, 847 Attorneys al Law, 10 ; Bills of Exchange and Promissory Notes I., 18. Evidence III., 61, 68. Branson v. City, 11 Wr. 339 License, 4. Railroads III., 10. Breitenbach v. Bush, 8 Wr. 313 Constitutional Law, 34, 35, 36, 37. Executions IV., 9. Limitations IV., 17. Mortgage VII., 1. Brendlinger v. Yeagley, 3 P. F. Smith, 464. Arbitrament and Awards, 15, 16. Brenneman's Appeal, 4 Wr. 115 Intestates, 1. Brereton, Shreve v., 1 P. F. Smith, 177 Contracts IX., 10 ; X., 15; XIII., 19, 20. Damages, 33. Brewer V. Fleming, 1 P. P. Smith, 115 Land VL, 9. 103 Tender, 1. Brickerv. Lightner, 4 Wr.l99 Evidence IL, 1, 8; V., 6. Limitations II., 5. Pleading, Pleas, 7. Practice VL, 1. Bridge Co., Clarke v., 5 Wr. 147 Corporations IL, 5, 6, 7, 8, 9. Kilpatrick v., 13 Wr. 118 Corporations V., 36 ; IV., 26. Contracts IV., 3. T. Kirk, 10 Wr. 138, 139 Corporations IV., 19. Statutes, 1, 3. Brightly, Cook v., 10 Wr. 439 Ground-rent, 11, 13. Brindle, Brindle v., 14 Wr. 387 Practice VIL, 13. Briner v. Zimmerman, 14 Wr. 535 Execution III., 30. 537 Wills VL,60i. Brinham v. Coal Co., 11 Wr. 43 Corporations III., 7, 8. Corporations V., 39, 30. Brinton, Armstrong County v., 11 Wr. 367.Bonds, 3. Equity I., 48. SholloHberger v., 3 P. F. Smith, 9. Ground-rent, 16. Britton's Appeal, 9 Wr. 178 Mortgage IV., 3. Brook V. Savage, 10 Wr. 83 Evidence XX., 13. Land XVIII., 4. Brolasky v. Ferguson, 18 Wr. 434 Landlord and Tenant, 31. v. Gaily, 1 P. F. Smith, 513 Wills IV., 17, 18, 19, 80. Brooke, Grubb v., 11 Wr. 485 Debtor and Creditor IL, 16. Practice VII., 8. Smith v., 13 Wr. 147 Attachment, 36, 33. Debtor and Creditor IV., 4. Brooks V. Smyser, 13 Wr. 86 Decedents' Estates II., 89^, 30. Limitati(ms I., 39. Limitations IV., 33. Mortgage V., 8. BRO — BRU 277 Brosius, Angle v., 7 Wr. 187 Slielly, 3. Wills VI., 29. Brotherline v. Swires, 13 Wr. G8 Fraud I., 33. 5 Wr. 135 Sheriff, 11. Trespass, 6, 7. Brothers, Henry v., 13 Wr. 70 Errors and Appeals V., 19. Imbecility, &c.; Lunacy, 4. Judgment V., 10; VIII., 3,.3. Broughton v. Journoay, 1 P. F. Smith, 35.. .Taxes, 34. Bruckhart, Haldeman v., 9 Wr. 514 Notice, 5, 6, 7, 8. Land X., 3. Brown V. Bush, 9 Wr. 61 Experts. Water, 5, 6, 7, 8, 9. Caldwell t., 3 P. F. Smith, 453 Errors and Appeals IL, 1. Negligence, 4. V. Corey, 7 Wr. 404 Constitutional Law,30. Errors and Appeals I., 9 ; VI., 6. Evidence II., 10; IX., 10. Land VIII., 3, 4, 5, 6, 7. Land IX., 3; XIIL, 3. Railroads!., 17, 18. V. Finney, 3 P. F. Smith, 373 Contracts XIIL, 28, 29. 30, 31. T. Foster, IP. F. Smith, 170 Contracts X., 11, 12, 13, 14. 174 Damages, 20, 31. V. Ins. Co.. 5 Wr. 187 Insurance III., 14. V. Keller, 7 Wr. 104 Debtor and Creditor IL, 11, 13. Fraud I., 17. Kittanning v., 5 Wr. 370 Constitutional Law, 10 ; Counties, 1. License, 1, 3. Limitations IV., 9. V. Lehigh Nav. Co., 13 Wr. 370 Corporations V., 44. V. McFarland, 5 Wr. 139 Partner, Partnership I., 5. V. Nickle, 6 Barr, 390 Ejectment L, 13. V. Peterson, 4 Wr. 373 Railroads L, 3. V. Scott, 1 P. F. Smith, 357 Debtor and Creditor L, 13. Mortgage V., 16, 17, 18. 19, 30, 21. 362 Attachment, 13. 363 Evidence XX., 38, 29. 366 Evidence V., 35. Smithers v., 8 Wr. 469 Set-off, 6. Steamboat Co. v., 4 P. F. Smith, 77 Agency and Agent. 7; Evidence XVIL, 22. Evidence XX., 35, 36, 37. Town'p, Childs v., 4 Wr. 332 Boroughs or Townships, 1, 3. Travis v., 7 Wr. 9 Evidence I., 4; IL, 7; IV., 7. Whitaker v., 10 Wr. 197 Land IX., 5. LandXIL, 6; XIX., 1. V. Willey, 6 Wr. 305 Evidence IX., 4. AVriglit v., 8 Wr. 224 Husband and Wife IIL, 6, 7. Woodwell v., 8 Wr. 121 Errors and Appeals IV., 238. , Evidence V., 14. Evidence XX., 9. Browne, Kusenberg v., 6 Wr. 173 Evidence III., 21. Trover, 12. Vendor and Vendee III., 5. 187 Wharf, 1, 2. Maples v., 13 Wr. 458 Bills of Exchange and Promisscry Notes IL, 24, 25. Bruner, R. R. Co. v., 5 P. F. Smith, 318 ....Railroads I., 53. Brunner's Appeal, 11 Wr. 67 Husband and Wife III., 12, 13. Bryson, Hellen v., 4 Wr. 472 Guarantee and Guarantor, 7. Husband and Wife I., 1. Surety, 3, 4, 5, 6. Brua's Appeal, 5 P. P. Smith, 294 Contracts VL, 21. Errors and Appeals V., 2. Brubacher, Diller v., 3 P. F. Smith, 504 Accord, 5. 498,505.Collateral Security, 7, 8, 9. 505 Estoppel, 33. 505 Trusts IV., 3. 278 BRU — BUS I3ubb V. Tompkins, 11 Wr. 3."i9 Land XVI., 6. Buchanan, Buchanan v., 10 Wr. 180 Courts, 11. Errors and Appeals lY., 14. Evidence III,, 31, 33, 38, 34. Evidence XV., 1. T. Duncan, 4 Wr. 83 Husband and Wife V., 3. Wills VI., 11. Buchanan's Appeal, 1 P. F. Smith, 483 l»ay, 1. Bucher, Shirk v., 3 P. F. Smith, 94 Taxes, 35. Levering v., 4 P. F. Snnth, 291 Act of God, 1 ; Contracts XIII., 33, 33. Buck Mt. Coal Co. v. Lehigh Nav. Co., 14 Wr. 91 Corporations IL, 18. Equity I., 17. Buckley, Ellison v., 6 Wr. 281 Errors and Appeals VI., 1. V. Garrett, 11 Wr. 280 Collateral Security, 4. Debtor and Creditor IX., 3. 383 Insurance L, 13, 13. Insurance II., 14. Insurance Vll., 3, 3. Buckley's Appeal, 13 Wr. 491 Evidence XVIL, 20. Vendor and Vendee IV., 39. Bucknell, Maule v., 14 Wr. 39 Fraud IIL, 13. Budd, Mayer v., 8 Wr. 391 Taxes, 5. Buehler v. Bufflngton, 7 Wr. 278 Decedents' Estates IIL, 11, 12. / Evidence VL, 11; IX,, 8. Judgment IV., 4, 5; V., 1. Buffington, Buehler v., 7 Wr. 378 Decedents' Estates IIL, 11, 12. Evidence VL, 11 ; IX., 8. Judgment IV., 4, 5 ; V., 1. Bunn V. Gorgas et al., 5 Wr. 441 Constitutional Law, 25. Burd V, Burd, 4 Wr. 182 Wills VL, 14. Sliippen v., 6 Wr. 4R1 Decedents' Estates VIL, 5 ; VIIL, 1. Burford v. McCue, 3 P. F, Smith, 437 Errors and Appeals IV., 46. Land XVI., 9, 10. Land L, 50; IL, 4. Land VIL, 15. Burgin, City v., 14 Wr. 539 Municipal Claims, 18, 19, 30. Evidence XX., 31, 33. Stevenson v. 18 Wr. 36 Contracts XflL, 15. Vendor and Vendee IL, 7. Burk V. Gleason, 10 Wr. 397 E.KCcution IIL, 30. Sellers v., 11 Wr. 344 Practice V., 2, 3, 4. Burke V. Gummey, 13 Wr. 518 Vendor and Vendee IV., 83. Vendor and Vendee V., 4. V, Koble, 13 Wr. 168 Errors and Appeals V. , 7. Burkhardt, Lovett v., 8 Wr. 173 Keplevin, 1, 2. Pleading, Pleas, 14. Burkliolder, Strickler v., 11 Wr., 470 Evidence XII,, 5. Evidence XVIL, 15. Surety, 7, 8, 9. Buvmaster, McGibbeny v., 3 P. F. Smith, y;J3 Ejectment L, 38. Fraud IL, 25, 26. Burr V, Todd, 5 Wr. 306 Fraud IV., 2. Land IV., 3, 3, 4; VIL, 4. Burrouglis, Powell v., 4 P. F. Smith, 339.. ..Damages, 28. Estoppel, 35. Landlord and Tenant, 27, 38. Burton, Davis v., 3 P. F. Smith, 9 Ground-rent, 17. V. Fulton, 13 Wr. 151 Negligence, 1. Schools, 6, Bush, Alexander v., 10 Wr. 62 Land XVI., 4, 5. Limilations IL, 23. Breitenbach v., 8 Wr. 318 Constitutional Law, 34, 35,86, 37. Execution IV., 9. Limitations IV., 17. Mortgage VIL, 1. Brown v., 9 Wr. 61 Experts. BUS — CAN 279 Bush, Brown v., 9 Wr. 61 Water, 5, 6, 7, 8, 9. Butler V. Slani, 14 Wr. 456 Conti acts III., 8. Errors and Appeals IV., 43. Evidence III., 55. Evidence XX., 27. Former Reco.very, 16. Decedents' Estates III., 27. Euttermore, Blackstone v., 3 P. F. Sinitb, 266 Attorneys at Law, 12, 13. Byerly, Meyers v., 9 Wr. 368 Fraud IL, 6. Lukehart v.,3P. F. Smith, 418 Slander, 2, 3. Byers v. Com., 6 Wr. 89 Constitutional Law, 31. C. & A. R. R. Co., Farnham v., 5 P. F. Smith, 53 Carriers, 8. Cabot, Welsh v., 3 Wr. 342 Freight, 2. Ship, 1, 2, 3, 4, 5. 357 Collateral Security, 2. Judgment II., 1. dadmus v. Jackson, 2 P. F. Smith, 295 Mortgage VI., 6. Orphans' Court, 24. Decedents' Estates III., 29. Errors and Appeals V., 33, 34. Taxes, 27. Practice VIII., 6. Caldwell, Armstrong v., 3 P. F. Smith, 284. Limitations L, 33, 33, 34. Land IX., 11. Caldwell v. Brown, 3 P. F. Smith, 453 Errors and Appeals XL, 1. Negligence, 4. V. Holler, 4 Wr. 160 Evidence XVIL, 4. 167 Errors and Appeals IV., 11. 168 Land I., 3, 5, 6, 7, 8. Errors and Appeals IV., 56. V. Miller, 10 Wr. 233 Costs, 3. Reynolds v., 1 P. F. Smith, 298. ...Arbitrament and Awards, 17, 18, 19; Con- tracts XII., 5. Estimates. C^ley's Appeal, 11 Wr. 356 Decedents' Estates II., 27; VIL, 11. Calhoun's Appeal, 3 Wr. 318 Decedents' Estates IL, 13. Callaghan V. McCreedy, 7 Wr. 115 Land IV., 12. 13 Wr. 463 Vendor and Vendee V., 3. Cambria Iron Co. v. Tomb, 13 Wr. 387 Evidence III., 42. LandVL, 4, 5, 6, 7; XX., 1. Practice IV., 16. Cameron, Blackwell v., 10 Wr. 336 Partition, 5. Estoppel, 18. Eekertv., 7 Wr. 130 Evidence XIX., 4. 138 Evidence XX., 6. Bills of Exchange and Promissory Notes 1L,7. Campbell V. Baker, 10 Wr. 043 Guarantee and Guarantor, 10. Boggs, 12 Wr. 524 Limitations IL, 9. Trusts VI., 7. Bonner v., 13 Wr. 286 Errors and Appeals VI., 4. Evidence III., 38, 39. Fraud IL, 12. Partner, Partnership III., 36. T. Hand, 13 Wr. 234 Land XL, 8. Assumpsit, 14. 241 Dams, 1. V. Laycock, 4 Wr. 448 Contracts IL, 1 ; VL, 1. Guarantee and Guarantor, 6. V. McLain, 1 P. F. Smith, 200.. ..Trusts and Trustees III., 4. 1 P. F. Smith, 300, 203 , ^Trusts III., 26, 37. Assignee, &c., 37, 38. Canal Co., Ammerman v., 4 Wr. 356 Corporations.IV., 7. Com. v., 7 Wr. 395 Corporations VIIL, 3. Constitutional Law, 17; Corporations IV., 11, 12, 13. 280 CAN — CHE Canal Co., Com. v., 7 Wr. 287 Corporations!., 4. V. Com., 14 Wr. 399 Taxes, 17, 18, 19, 20, 21, 23. (Delaware), McKeen v., 13 "Wr. 424 License, 6. V. Dimock, 11 Wr. 393 Land I., 36. Heilman v., 14 Wr. 268 Laud VIII., 9, 10. V. Hireen, 8 Wr. 418 Railroads L, 19. Land VIII., 8. V. McKeen, 2 P. F. Smith, 122. ..Errors and Appeals V., 31, 32. MoKeen v., IB Wr. 424 Dams, 2 ; Damages, 13, 14, 15. V. R. R. Co., 5 P. F. Smith, 180. Capital. Canfleld, R. R. Co. v.,10Wr. 211 Corporations IV., 30. Capewell, Parvin v., 9 Wr. 89 Evidence V., 30. Husband and Wife II., 23, 23. Husband and Wife, IV., 31. Capp, Com. T., 13 Wr. 53 Crimes, 23, 34. Errors and Appeals VII., 1. Railroads II., 30. Carbon Co., Iron Co. v., 3 Wr. 251 Corporations I., 1, 3. Carey, McConnell v., 12 Wr. 345 Fraud IL, 13, 14. Husband and Wife III., 11. Carfrey, Snyder v., 4 P. F. Smith, 90 Errors and Appeals VIIL, 1, 3, 3, 4, 5. Landlord and Tenant, 37. Carrv. Beck, 1 P. P.Smith, 369 Evidence III'., 56. Kirk v., 4 P. P. Smith, 285 Decedents' Estates IL, 44. Ejectment I., 41. Evidence VIIL, 12, 13. Carskadden, Dreer v., 13 Wr. 38 Land L, 37 ; XVIIL, 8. Carson v. Bailie, 7 Harr. 375 Vendor and Vendee III., 1, 2, 3, 4. Cascade V. Lewis, 7 Wr. 318 Corporations IV., 14; Contracts VI., 8 XIIL, 3. School, 5. Casebeer v. Mowry, 5 P. F. Smith, 419 Dams, 5 ; Damages, 31. Former Recovery, 18. Cases (English) reviewed in Eckert v. Cam- eron, 7 Wr. 138 Evidence XX., 6, 7. Casselberry, Miller v., 11 Wr. 376 Ejectment IL, 10; IIL, 5. Castor V. McShaffery, 13Wr. 437 Trover, 14. Catawissa R. R. Co. v. Armstrong, 3 P. F. Smith, 383 Errors and Appeals IL, 2 ; IV., 48, 49, 50. Phila. & Erie R. R. Co. v., 8 P. F. Smith, 30. Corporations VIIL, 18, 19, 30. Catherwood v. Collins, 12 Wr. 480 Inspections, 1, 3, 3. Cavender, Michener v., 3 Wr. 337 Evidence XVL, 1, 3. Justices, 13, 18. Land XXL, 1, 3. Cavero-w v. Mutual Co., 3 P. F. Smith, 387. Constitutional Law, 3. Mortgage II. , 14. Chadwick v. Phelps, 9 Wr. 105 Land VIL, 5; XIIL, 4; XVL, 1, 2. Limitations I., 15. Cbalker V. Ives, 5 P. F. Smith, 81 Bounties, 3; Constitutional Law, 77. Statutes, 14. Chamberlain V. Smith, 8 Wr. 431 Bailee; Bailments, 3. Chambers, Ins. Co. v., 10 Wr. 485 Trusts V., 8. Peacock v. , 10 Wr. 434 Contracts L, 5 ; IX., 8. Equity I., 41, 42, 43 ; III., 5. Partner, Partnership I. , 9. Chapiii, Pearsall v., 8 Wr. 9 Contracts VIIL, 4, 5, ; IX., 1, 3, 3, 4, 5. Pleading, Pleas, 13, 13. Chapman, Colder v., 3 P. F. Smith, 359 Jlortgage VI., 7. Mortgage IIL, 4. Cliartiers Township Road, 13 Wr. 314 Railroads L, 39, 30; Roads, 39, 40. Chase V. Miller, 5 Wr. 403 Election, 4, .'"), 6, 7. Errors and Appeals V., 4, 5. 438..... Constitutional Law, 34. Chathams, Com. v., 14 Wr. 181 Crimes, 89, 40. Practice VIL, 12. Chenewith, R. R. Co. v., 2 P. F. Smith, 382.Railroads IL, 44, 45, 40, 47, 48, 49, 50. CHE — CIT 281 Chester, Ins. Co. v., 7 Wr. 491 Errors and Appeals V. 13. Insurance V., I. Chestnut Hill Co., Wright v., 9 Wr. 475 ....Land XI., 5 ; XVII., 8. Chew V. Chew, 9 Wr. 334 Wills IV., 3. V. Nicldin, 9 Wr. 84 Wills IV., 1. Chew's Appeal, 9 Wr. 338 Auditors, 1. Wills IV., 2. Wills VI., 86. 8 Wr. 247 Trusts and Trustees III., 16. Orphans' Court, 13. Childsv. Dilworth, 8 Wr. 123 Execution IV., 6, 7, 8. Hopper v., 7 Wr. 310 Mechanics' Claim, 12. V. Brown Township, 4 Wr. 332 Boroughs or Townships, 1, 2. Choteau, Lentz v., 6 Wr. 435 Contracts, X., 1. Errors and Appeals IV., 13. Christ Ch. Hospital v. Fuechsel, 4 P. F. Smith, 71 Constitutional Law, 1, 48; Contracts V., 4. Ground-rent, 18. Christ, Snyder v., 3 Wr. 499 Frauds L, 1, 3, 3. 508 Estoppel, 3. Execution v., 1. LandllL, 1. Church V. Disbrow, 3 P. F. Smith, 319 Wills, VI., 78, 74. V. Railway, 9 Wr. 839 Railroads I., 20. Shaw v., 3 Wr. 336 Debtor and Creditor L, 1, 3. Mechanics' Claim, 1. Church street, 4 P. F. Smith, 353 Constitutional Law, 76. Errors and Appeals V., 88 ; X., 6. Roads, 85. Statutes, 13. Sutter v., 6 Wr. 503 Corporations VIL, 6, 7. Churcher v. Guernsey, 3 Wr. 64 Vendor and Vendee II., 1. 84 Vendor and Vendee I., 1, 2. Citizens' Ins. Co. v. Marsh, 5 Wr. 886 Insurance III., 1, 3. City, Alcorn v., 8 Wr. 848... Corporations II., 11; IV., 16. V. American Philosophical Society, 6 Wr. 9 Taxes, 1. V. Bank, 5 P. F. Smith, 45 Banks and Bankers, 17. Board of Wardens v., 6 Wr. 209 Philadelphia, 1. Branson v., 11 Wr. 329 License, 4. Railroads IIL, 10. T. Burgin, 14 Wr. 539 Evidence XX., 31, 33. Municipal Claims, 18, 19, 20. V. Com., 2 P. F. Smith, 451 Constitutional Law, 8. Coxe v., 11 Wr. 9 Municipal Claims, 21. Duffy v., 6 Wr. 193 Taxes, 3. T. Dyer, 5 Wr. 463 Roads, 10, 11, 13, 13. Flanigenv., 6 Wr. 319 Water, 3,4. 1 P. F. Smith, 491, 493... Description, 1; Ejectment II., 21, 23, 23; III., 7. 493 Attorneys at Law, 1, 3. .ludgment II., 8, 4. G Wr. 2M Constitutional Law, 27. Philadelphia, 3. V. Flanigen, 11 Wr. 31 Philadelphia, 5. Oilman v., 8 Wallace, 713 Constitutional Law, 27. Water, 3. V. Girard, 9 Wr. 9 Former Recovery, 8. Wills IIL, 7, 8, 9, 10, 11. Wills VI., 41. Hague v., 12 Wr. 527 Counties, 5. v.'Johnson, 11 Wr. 383 Mandamus, 7. Philadelphia, 6. v. Miller, 18 Wr. 440 Taxes, 11, 13, 13. of Allegheny, Appeal of, 5 Wr. 60 Municipal Claims, 3. of Philadelphia, 3d and 3d sts. Railway v., 1 P. F. Sm., 468.1nterest, 9, 11. of Pittsburg's Appeal, 4 Wr. 455 Municipal Claims, 1. Railroad v., 11 Wr. 314 License, 4. 282 CIT — COA City, R. R. Co. v., 11 Wr. 189 Constitutional Law, 55. Corporations VI., 16, 17. B14 Constitutional Law, 56. 325 Constitutional Law, 57. Railway v., 13 Wr. 85 Corporations V., 37 ; Dividend, 1. 351 Capital; Corporations I., 5. Taxes, 10. 1 P. P. Smith, 465 Capital; Corporations L, 9, 10, 11. Railway Co. v., 1 P. F. Smitli, 463 Interest, 11. 465 Taxes, 33. 18 Wr. 351 Interest, 1. Evidence V., 31. Reading R. R. v., 11 Wr. 335 License, 5. Railroads III., 4. V. Reeves, 13 Wr. 473 Covenant, 3. Practice II. , 3. Saulsburyv., 8 Wr. 803 Corporations 11., 10; IV., 15. Soutliwark R. R. v., 11 Wr. 314 Equity L, 49, .50, 51. Railroads III., 1, 3, 3. V. University, 8 Wr. 360 Taxes, 6. Wolbert v., 13 Wr. 439 Equity I., 55. V. Woods, 8 Wr. 113 Municipal Claims, 7, 9. Claris V. Dotter, 4 P. P. Smith, 315 Affidavit, 36. v. Harvey, 4 P. P. Smith, 143 Landlord and Tenant, 38. V. Martin, 13 Wr. 389 Equity!., 57, 58; II., 4. Lani;i XII., 10, 11 ; XIIL, 10 ; XX., 2. 399 Constitutional Law, 88. Mortgage V., 13, 13. Mortgage III., 3. Rhines v., 1 P. P. Smith, 96 Constitutional Law, 64, 65. T. Trindle, 3 P. P. Smith, 493 Evidence VI., 39; IX., 3'.i. Limitations I., 38, 39, 40, 41 ; II., 13. V. Wallace, 13 Wr. 80 Decedents' Estates IX., 4, 5. Orphans' Court, 17. Wills IV., 13. V. Watson, 14 Wr. 317 Evidence III., 50. Clarke v. Bridge Co., 5 Wr. 147 Corporations II., 5, 6, 7, 8, 9. Company v., 4 Wr. 433 Corporations VII., 1. McCuUy v., 4 Wr. 399 Errors and Appeals IV., 4, 5. Mining Co. v., 4 Wr. 433 Corporations V., 8. Clay and Elliott, Appeals of, 14 Wr. 75 Fraud I., 38, 39. Cneaver, Bellas v., 4 Wr. 360 Land I., 9, 10, 11, 13, 13. Clemens, Rumfelt v., 10 Wr. 455 Husband and Wife III., 10. V. Wriglit, 4 Wr. 350 Land V., 1 ; VL, 1. Clement, Dewart v., 13 Wr. 413 Fraud I., 33. Hottenstein v., 5 Wr. 503 Courts, 3. Miller v., 4 Wr. 484 Landlord and Tenant, 3. Sheriff, 10. V. Wright, 4 Wr. 350 Land I., 4. V. YouQgman, 4 Wr. 341 Lund IX., 1. Clopton V. R. R. Co., 4 P. F. Smith, 356.... Mortgage V., 37. Taxes, 38, 39. Cloud, Peirce v., 6 Wr. 103 Limitations I., 0. Clyde V. Graver,'4 P. F. Smith, 351 Evidence XVII., 24; Carriers, 9, 10, 11. Clymer V. Com., 3 P. F. Smith, 181 IDccedents' Estates VIIL, 4. Taxes, 26. V. DeYoung, 4 P. P. Smith, 118.. ..Fraud IIL, 16. Jackson v., 7 Wr. 79 Set-off, 4. Coal Company's Appeal, 4 P. F. Smith, 183. Equity I., 75, 76, 77, 78. 361. Equity I., 83, 83. Coal Co., Brinham v., 11 Wr. 43 Corporations IIL, 7, 8. Coi'porations V. , 89, 30. V. Forsyth, 13 Wr. 391 Errors and Appeals IV., 83. Glonniger v., 5 P. F. Smith, 9 Land IX., 14, 15. V. Lehigh Nav. Co., 14 Wr. 91 Corporations II., 18. Corporations VIIL, 31, 33. Equity I., 17. v. Snowden, 6 Wr. 488 Constitutional Law, 89, 30. Equity I. , 34. COA — COM 283 Coal Co., Wilson v., 7 Wr. 434 Affidavit, 6. Corporations v., 18. Corporations VI., 14. Coates Y. Gerlach, 8 Wr. 43 Husband ami Wife II., 11, 13. Mitchell v., 11 Wr. 203 Execution III, 31. Cochran v. Eldridge, 13 Wr. 305 Arbitrament and Awards, 13. Fraud IV., 6, 7. Judgment VIII., 4. PhcBnix Ins. v., 1 P. F. Smith, 155 Insurance VI., 5. 143 Insurance III., 31, 33, 33, 24. Wilson v., 10 Wr. 339 Vendor and Vendee IV., 17, 18, 19, 20. 13 Wr. 107 Land IV., 9, 10; VII., 10. Coffin V. Landis, 10 Wr. 430 Contracts I., 4; IX., 7. Cuil V. Pittsburg College, 4 Wr. 489 Affidavit, 11, 12; Contracts VIII., 1, 3. 445 Corporations VIII., 1. Colder V. Chapman, 3 P. F. Smith, 359 Mortgage III., 4. Mortgaire VI., 7. Winebrenner v., 7 Wr. 344 Corporations VII., 7, 8, 9, 10, 11, 13. I Equity II., 3. Colev. Bonhorst, 5 Wr. 343 Wills VI., 16. Coleman, Blewett v., 4 Wr. 45.-. Land XII., 2. Partition, 1. 52 Evidence III, 4. Trespass, 4. 176 LandXn.,2. V. Columbia Oil Co., 1 P. F. Smith, 74 Stock and Stockholders, 1. V. Com., 3 P. P. Smith, 468 Administration, 1. Com. v., 3 P. P. Smith, 468 Decedents' Estales VIIL, 5, 6, 7. Keen v., 3 Wr. 399 Husband and Wife III., 1. V. Ross, 10 Wr. 180 Equity IIL, 4; IV., 2. Colhoun, Kroemer v., 3 P. F. Smith, 10 Ground-Rent, 17. College, Coile v., 4 Wr. 445 Corporations VIIL, 1. Collins v.Baumgarduer, 3 P. F. Smith, 461.. Contracts XIII., 33, 34; Evidence XVII, 21. Damages, 8. Catherwood v., 13 Wr. 480 Inspections, 1, 3, 3. Hartje v., 10 Wr. 368 Evidence XX., 13. Vendor and Vendee II., 3. Colton, Converse v., 13 Wr. 346 Evidence VI., 33. Former Recovery, 13. Trover, 13. Columbia Oil Co., Coleman v., 1 P. P. Smith, 74 Stock and Stockholders, 1. Colvin v. Reed, 5 P. P. Smith, 375 Divorce, 13. Kephart v., 13 Wr. 348 Limitations IV., 20. Colwell, R. R. Co. v., 3 Wr. 337 Corporations IIL, 1, 2, 3 ; IV., 1, 2, 3, 4. Comly, Bonsall v.,8 Wr. 443 Execution IIL, 17, 18. Landlord and Tenant, 14. Commerce, Bank of, Appeal, 8 Wr. 433 Mortgage I., 3, 4, 5. Commercial Bank, Wayne v., 2 P. F. ' ■ Smith, 343 Surety, 27, 28, 39, 30. Commissioners v. Fickinger, 1 P. P. Smith, 48...' .Certiorari, 4, 5, 6. Howe v., 11 Wr. 361 Counties, 4. Mandamus, 7. v. Lycoming, 10 Wr. 496 Counties, 3 ; Crimes, 32. V. Morgan, 11 Wr. 276 Railroads IIL, 9. Com. V. Ahl, 7 Wr. 53 Crimes, 10. Pardon, 1, 2. V. Allegheny, 4 Wr. 348 Corporations VI., 1. V. Atlantic and Great Western Rail- way Co., 3 P. F. Smith, 9 Mandamus, 11. Bailey v., 5 Wr. 473 Executions V., 4. Partition, 4. Baylor v., 4 Wr. 37 Husband and Wife IIL, 3, 3. Jilortgage I., 3, Byers v., 6 Wr. 89 Constitutional Law, 31. 284 COM — COM Com.. Canal Co. v., 14 Wr. 399 Taxes, 17^, 18, 19, 30, 21, 22. 7 Wr. 237 Corporations I., 4, V. Canal Co., 7 "Wr. 395 Corporations VIII., 2. Constitutional Law, 17; Corporations IV., 11, 13, 13. ' V. Capp, 13 Wr. 53 Crimes, 23, 34. Errors and Appeals VII., 1. Railroads II., 30. V. Chathams, 14 Wr. 181 Crimes, 39, 40. Practice VII., 12. Clymer v., 3 P. P. Smith, 181 Decedents' Estates VIII.. 4. Taxes, 36. V. Coleman, 2 P. F. Smith, 468 Administration, 1 ; Banks and Bankers, 11. Decedents' Estates VIII., 5, 6, 7. V. Cooke, 14 Wr. 201 Banks and Bankers, 11. Interest, 6. V. Cope, 9Wr. 160 Sheriff, 5. 161 Abatement, 2, 3. V. Crosscut R. R. Co., 3 P. F. Smith, 68. ...Corporations IV., 48. 63. ...Corporations VIII., 33, 34, 35, 36, 37. Practice V., 5. Quo Warranto, 6, 7, 8, 9, 10. Darlington v., 5 Wr. 68 Evidence IX., 3. Evidence XX., 8. Municipal Claims, 3, 4, 5, 6. Notice, 1. Roads, 7, 8, 9. Ditmars v., 11 Wr. 385 Errors and Appeals VI., It. Errors and Appeals IV., 4.j. Surety, 1. Drexel v., 10 Wr. 31 Constitutional Law, 41. Taxes, 7. V. Eckert, 3 P. F. Smith, 102 Decedents' Estates VIIL, 3. Elder v., 5 P. P. Smith, 485 Counties, 8. Surety, 33. Ensworthy., 2 P. F. Smith, 320 Damages, 3. v. Fayette R. R. Co., 5 P. F. Smith, 452 Constitutional Law, 79 ; Corporations I., 17. T. Ferrigan, 8 Wr. 386 Crimes, 36, 37, 38. Practice VII., 3. v. Frey, 14 Wr 245 Crimes, 41, 42, 48, 44. Gaines v., 14 Wr. 19 Evidence XIX., 7. 819 Crimes, 14. Evidence IL, 15, 16, 17; IV., 9, 10, U. Evidence XIIL, 3, 4. Graham v., 1 P. F. Smith, 255 Domicil. Inhabitant, 1. Limitations III., 2. Residence 1. V. Gurley, 9 Wr. 392 Crimes, 19, 20. Errors and Appeals V., 16. V. Halloway, 8 Wr. 310 Pardon, 3, 4, 5, 6. Hartzell v., 4 Wr. 463 Constitutional Law, 23. Jury, 2, 3. 453 Decedenis' Estates L, 3;II., 15, 16, 17. Orphans' Court, 6. V. Henry, 13 Wr. 530 Corporations IV., 40. Fraud IV., 8. Mandamus, 8. Philadelphia, 7. Henwood v., 2 P. F. Smith, 434 Crimes, 47, 48, 49. V. Hilgert, 5 P. P. Smith, 286 Decedents' Estates II., 47. V. Hitchman, 10 Wr. 357 Crimes, 18. V Holloway, 6 Wr. 446 Constitutional Law, 28. Hoplvins v., 14 Wr. 9 Crimes, 2S,2Q, 30. Errors and Appeals VII., 2. Houser v., 1 P. P. Smith, 332 Crimes, 1, 3, 3, 4, 5 6, 7. Evidence III., 59 ; IV., 13. COM — COM 285 Com., Huglie8 v., 13 Wr. 6R Surety, 10. Ins; Co., Parke T., 8 "Wr. 432 Practice I., 2. V. Sennett, 5 Wr. 161 Evidence XIX., 1. Insurance II., 3. Woodhouse v., 4 P. P. Smith, 807 Attachment, 16, 17; Constitutional Law, 75. Keenan v.,8 Wr. 55 Crimes, 11, 12, 13. Kepner v., 4 Wr. 134 Corporations IV., 6. V. Kunzman, 5 Wr. 429 Crimes, 8, 9. Election, 7, 8. V. Leech, 8 Wr. 333 Quo Warranto, 1. V. Leeds, 8 Wr. 333 Philadelphia, 3. Lehigh Co. v., 5 P. P. Smith, 448 Corporations I, 15, 16. Linton v., 10 Wr. 294 Execution L, 3. Sheritr, 8. Little v., 13 Wr. 337 Surety, 11. Mageev., 10 Wr. 358 Constitutional Law, 50. Limitations IV., 38. Municipal Claims, 9, 10, 11, 13, 13, 14, 15. V. McClung, 3 P. F. Smith, 483 Coroner. MeSUer v., 6 Wr. 383 Roads, 14. V. Meeser, 8 Wr. 341 Quo Warranto, 3. V. Mohn, 3 P. P. Smith, 343 Crimes, 45, 46. V. Montrose, 3 P. P. Smith, 391 Boroughs or Townships, 4. Statutes, 8, 9. Morgan v., 5 P. P. Smith, 456 Mandamus, 31. Morrow v., 13 Wr. 305 Evidence XVII., 16. Errors and Appeals IV., 33. Notice, 3. Railroads I., 36, 37, 28; Roads, 3G, 37, 38. Y. Newcomer, 13 Wr. 478 Crimes, 27. V. Pa. R. R. Co., 1 P.P. Smith, 351... .Contracts XIIL, 31. Mandamus, 16. Water, 17. V. Pass. R. R. Co., 3 P. P. Smith, 506 Corporations IV., 31, 32. Corporations VIIL, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 13. p. R. R. Co. v., 3 Wr. 403 Execution IV., 1, 3. T. Perkins, 7 Wr. 400 Corporations VL, 8, 9, 10, 11, 13, 13, 15. Philadelphiav.,3P. P. Smith, 451 Constitutional Law, 8. Taxes, 32, 33, 34. Phillips v., 8 Wr. 197 Constitutional Law, 33. Crime.i, 16, 17. V. Pittsburg, 5 Wr. 378 '...Corporations VL, 2, 3, 4. 7 Wr. 391 Corporations VL, 5, 6, 7. V. Powell, 1 P. P. Smith, 438 Execution IIL, 31. Widow, 1, 3. V. R. R. Co., 3 P. F. Smith, 9 Corporations VIIL, 14, 15, 16. Rhodes v., 12 Wr. 390 Crimes, 35, 36. Evidence V., 30. Richards v., 4 Wr. 146 Surety, 17,18. Ricke'fson v., 1 P. P. Smith, 155 Sheriff, 31, 32, 23. V. Rogers, 3 P. F. Smith, 470 Decedents' Estates IL, 40, 41. V. Smer,3 P. P. Smith, 71 Corporations VIIL, 38, 39, 30. Mandamus, 13. Statutes, 10. Smith v., 4 P. P. Smith, 309 Crimes, 50, 51. 5 Wr. 335 Courts, 12. Mandamus, 1, 2, 3. 9 Wr. 59 Quo Warranto, 3. Bnively v., 4 Wr. 75 Errors and Appeals IV., 8. Sheriff, 1. Society v., 2 P. P. Smith, 135 Corporations IV., 37, S8, 29. Mandamus, 17, 18, 19. 135 Sunday, 3. Strode v., 3 P. P. Smith, 181 Decedents' Estates VIIL, 4. Taxes, 36. V. Stump, 3 P. P. Smith, 133 Bastard, 4. COM — COM CoDi. V. Stump, 3 P. F. Smith, 132 Decedents' Estates VIII. , 8. Evidence XX., 33. ' Husband and Wife I., 7. V. Swope, 9 Wr. 449 Sherill, 7. Tavlorv.,8 Wr. 131 Crimes, 31, 33. V. Toms, 9 Wr. 408 Register, 1. AValters v., 8 Wr. 135 Crimes, 33, 34, 35. White v., 3 Wr. 167 Contracts XL, 1, 3. V. Woods, 8 Wr. 113 Constitutional Law, 49. Municipal Claims, 7, 9. Company v. Adams, 4 P. P. Smith, 94 Corporations VI., 19. Demand, 1. 5 P. P. Smith, 499 Damages, 29. Allegheny v., 1 P. P. Smith, 228.. .Corporations IV., 43, 44, 45, 46. V. Allen, 3 P. F. Smith, 376 Damages, 34, 35. (American Life Ins. ) , Dungan v. , 3 P. F. Smith, 353. ..Mortgage VL, 5. Ammerman v., 4 Wr. 356 Corporations IV., 7. V. Armstrong, 3 P. P. Smith, 383.Errors and Appeals II., 3 ; IV., 48, 49, .50. 13 Wr. 186 Evidence III., 43. Railroads II., 4, 5, 6, 7, 8. « Ashton v., 13 Wr. 361 Corporations V., 38, 43. Bank v., 9 Wr. 419 Banks and Bankers, 7, 8 ; Carriers, 7. v. Bantom, 4 P. F. Smith, 495.. ..Child, 4. Damages, 29. Railroads II., 40. Beatty v., 2 P. P. Smith, 456 Errors and Appeals IV., 53. (Big Mountain,) Appeal, 4 P. P. Smith, 361.. .. Fraud IL, 37, 38. V. Birmingham, IP. F. Smith, 41. Railroads III., 11, 12. Bittenbender v., 4 Wr. 269 Assignee, 3, 3, 4, 5, 6. V. Bowers, 13 Wr. 39 Corporations V., 35, 36, 37, 38. v. Bowman, 8 Wr. 89 Bills of Exchange and Promissory Xotes I., 9. (Bridge) v. Kirk, 10 Wr. 138, 139. Statutes, 1, 3. Brinham v., 11 Wr. 43 Corporations III., 7, 8. Corporations V., 39, 30. v. Brown, 4 P. F. Smith, 77 Agency and Agent, 7; Evidence XVII., 22. Brown v., 5 Wr. 187 Insurance III., 14. 13 Wr. 270 Corporations V., 44. V. Bruner, 5 P. P. Smith, 318 Railroads L, 53. Buck Mt. Coal Co. v., 14 Wr. 91. ..Corporations II. , 18. (Cambria Iron) v. Tomb, 12 Wr. 387 Practice IV., 16. (Canal) v. Com., 14 Wr. 399 Taxes, 17, 18, 19, 30, 21, 23. V. Canfield, 10 Wr. 311 Corporations IV., 20. V. Carbon Co., 3 Wr. 251 Corporations I., 1, 2. Caverow v., 2 P. P. Smith, 287.. Constitutional Law, 3. V. Chenewith, 2 P. F. Smith, 382. Railroads II. , 44, 45, 46, 47, 48, 49, 50. V. Chester, 7 Wr. 491 Errors and Appeals V., 13. Church v., 9 Wr. 339 Railroads I., 30. (Citizens' Ins.) v. Marsh, 5 Wr. 386 Insurance IIL, 1, 3. v. City, 11 Wr. 189 Constitutional Law, 55. Corporations VI. , 16, 17. 314 Constitutional Law, 50. Railroads IIL, 1, 2, 3. 325 Constitutional Law, 57. Railroads IIL, 4. 13 Wr. 251 Evidence v., 31. V. Clarke, 4 Wr. 432 Corporations V., 8. Corporations VII., 1. Clarkev., 5 Wr. 147, Corporations II. , 5,6, 7, 8, 9. (Columbia Oil), Coleman v., 1 P. F. Smith, 74. ..Stock and Stockholders, 1. V. Colwell, 3 Wr. 3;i7 Corporations IIL, 1, 3, 3 ; IV., 1, 3, 3, 4. Com. v.,1 P. F. Smith, 351 Contracts XIIL, 21. Mandamus, 16. 2 P. F. Sinilh, C06 Corporations IV., 31, 32 : VIIL, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 13. COM — COM 287 Company, Com. v., 3 P. F. Smith, 9 Corporations "VIII., 14, 15, 16. Mandamus, 11. 62 Corporations VIIL, 33, 34, 35, 26, 37. Quo Warranto, 6, 7, 8, 9, 10. 68 Corporations IV., 42. 5 P. F. Siiiith, 453 Constitutional Law, 79 ; Corporations I,, 17. 448 Corporations I., 15, 16. 7 Wr. 295 Corporations VIIL, 3. V. Com., 7 Wr. 227 Corporations I., 4. 295 Constitutional Law, 17; Corporations IV., 11, 12, 13. (Com. Ins.), Parke v., 8 Wr. 423.Practice I., 3. V. Sennett, 5 Wr. 161 Evidence XIX., 1, Insurance II., 3. V. Company, 8 P. F. Smitli, 20... Corporations VIIL, 18, 19, 20. 4 P. P. Smitli, 28. ...Equity I., 65, 66, 67, 68. Railroads III., 13, 14, 15. 104.. Equity L, 73, 73, 74. 345.. Railroads I., 40 ; II., 37. ' 5 P. F. Smitli, 180.. Capital. 14 Wr. 91 Corporations IL, 18. Corporations VIIL. 21, 22. 499 Railroads L, 33 ; Roads, 43. Conrad v., 4 P. F. Smith, 373.. ..Attachment, 20. Errors and Appeals IV., 23. V. Coyle, 5 P. F. Smith, 396 Evidence V., 42 ; Railroads IL, 60, 61. (Crosscut R. K.,) Com. v., 3 P. F. Smitli, 62 Practice V., 5. V. Davidson, 3 Wr. 435 Corporations IV., 5; V., 1. (Delaware Canal,) McKeen v., 13 Wr. 424.License, 6. V. Dimock, 11 Wr. 393 Land L, 36. V. Doak, 2 P. F. Smith, 379 Errors and Appeals IV., 53. Railroads I., 48. Dorian v., 10 Wr. 530 Railroads I., 13, 13, 14. Drake v., 1 P. F. Smith, 240 Railroads I., 47 ; IL, 41. Dresher v., 3 P. P. Smith, 335. ..Decedents' Estates V., 22; XL, 3. Dungiin v., 2 P. F. Smith, 353. ..Estoppel, 30. V. Duquesne, 10 Wr. 323 Corporations IL, 15, 16, 17 ; IV., 21. Railroads III., 6. V. Erie, 5 Wr. 341 Land XII., 7,8, 9. V. Evans, 3 P. F. Smith, 250 Railroads IL, 1, 3. V. Fales, 5 P. Smith, 90 Errors and Appeals VI., 14. Land XVI., 14, 15. Farnham v., 5 P. F. Smith, 53... Carriers, 8. V. Field, 9 Wr. 139 Attchment, 6. V. Fieldinsr, 13 Wr. 330 Railroads II. , 10, 11, 13, 13, 14. v. Forsyth, 12 Wr. 291 Errors and Appeals IV., 22 ; V., 8. Forsvth v., 3 P. F. Smith, 168.... Contracts IX., 9 ; XIIL, 13, 18. (Gas",) Littel v., 6 Wr. 500 Foreign Attachment, 4, 5, 6. (Germantown Water,) McCallum v., 4 P. F. Smith, 40 Limitations I., 35, 36. Gloninger v., 5 P. F. Smith, 9 Land IX., 14, 15. V. Grain Elev. Co., 14 Wr. 499... Equity L, 19. Gratz v., 5 Wr. 447 Assignee, &c.., 8; Constitutional Law, 26; Corporations IV., 8. (Gray's Ferry,) Philadelphia v., 2 P. P. Smith, 177. Statutes, 7. Gwinner v., 5 P. F. Smith, 126. ..Railroads L, 53. V. Hagan, 11 Wr. 348 Errors and Appeals IV., 36, 37, 38, 39. V. Hall Association, 13 Wr. 440. ..Bonds, 4. Harvey v., 11 Wr. 438 Railroads I., 41. Heileman v., 14 Wr. 368 Errors and Appeals IV., 43. Land VIIL, 9, 10. V. Henderson, 1 P. F. Smith, 315. Carriers; 8. Railroads IL, 42, 43, 51, 53, 53, 54, 55, 56. V. Heron, 3 P. F. Smith, 280 Corporations V., 39, 40, 41. v. Hiester, 4 Wr. 53 Railroads I., 15, 16. 288 COM — COM Company v. Hiester, 4 Wr. 53 Land VIII., 1, 2. V. Hinds, 3 P. F. Smith, 512 Railroads II., 57,58. T. Hireen, 8 Wr. 418 Land VIIL, 8 ; Railroads L, 19. Hornsteiu v., 1 P. P. Smith, 87. ..Railroads I., 45, 46. V. Hottenstein, 11 Wr. 28 Evidence II., 13; Railroads L, 41. V. Hummell, 8 Wr. 375 Errors and Appeals IV., 30. Railroads II., 32. (Ins.) V. Austin, 6 Wr. 257 Trusts and Trustees III., 13. 266 Mortgage II., 6, 7. V. Berger, 6 Wr. 385 Insurance IV., 1. 393 Execution!, 1. V. Bowman, 8 Wr. 89 Insurance III., 19. fil Insurance II., 8. V. Chester, 7 Wr. 491 Insurance V., 1. Cooper v., 14 Wr. 299 Insurance III., 11. Evidence XL, 5, 6. V. Cooper, 14 Wr. 331 Insurance I., 8; IIL, 12, 13. Evidence XL, 7. Coursin v., 10 Wr. 333 Insurance I., 11. Insurance II., 13. Evidence XL, 4. V. Coyle, 5 P. F. Smith, 396 Evidence XVIIL, 11. V. Field, 9 Wr. 139 Insurance VL, 7; Attachment, 6. Pifield v., 11 Wr. 166 Insurance V., 2. V. Gottsman, 12 Wr. 151.. .Insurance III., 3. Harris v., 14 Wr. 341 Husband and Wife L, 6. Husband and Wife V., 24, 25. Insurance I., 16. Insurance V., 3. v. Helfenstein, 9 Wr. 289.. Insurance I., 1, 2, 8, 4. Insurance II.. 1. V. Marr, 10 Wr. 504 Evidence XIX,, 6. Partner, Pai'lnership IIL, 10. V. McAnally, 9 Wr. 41 Insurance IIL, 30. v. McLaughlin, 3 P. F. Smith, 485 Insurance I., 14, 15. Merrick v., 4 P. F. Smith, 877 Insurance VL, 6. V. Mills, 8 Wr. 341 Insurance IV., 2. T. MitcheJl, 12 Wr. 367 Insurance I., 7. Insurance II. , 4. Insurance III., 4, 5, 6, 7, 8, 9, 10. V. Schreffler, 8 Wr. 269 Practice IV., 7. Pleading, Pleas, 16. Insurance VIL, 1. v. Shollenberger, 8 Wr. 256 Insurance II., 9, 10, 11, 13. Pleading, Pleas, 15. Practice IV., 5, 6. Sloat v., 13 Wr. 14 Insurance VL, 4. V. Spencer, 3 P. F. Smith, 353 Insurance II., 15, 16. Insurance VI. , 2, 3 ; VIL, 4. Stout v., 13 Wr. 14 Insurance IL, 17. Svi-ain v., 4 P. P. Smith, 455 Partition, 11. Specific Performance, 3. v. TJpdegraff, 7 Wr. 350. ...Insurance I., 9, 10; III., 15, 16, 17, 18. Insurance II. , 6, 7. Vallance v., 6 Wr. 441 Fraud I., 15. Irwin v., 7 Wr. 488 Attachment, 2. V. Johnson, 4 P. F. Smith, 127. ..Affidavit, 23. Corporations VI., 18, 19, 20, 21. Keagy v., 7 Wr. 70 Set-off, 8. ', Keenan v., 8 Wr. 60 Railroads IL, 83. V. Keyser, 4 P. F. Smith, 94 Affidavit, 23. Kilpatrick v., 13 Wr. 118 Contracts IV., 8; Corporations IV., 36; V., 36. COM — COM 289 Company v. Kirk, 10 Wr. 128, 129 Corporations IV., 19. Knapp v., 3 P. F. Smitli, 185 Affidavit, 19, 20. Lackawanna Co. v., 6 Wr. 424... Corporations I., 3. (Leliigli,) Ashton v., 13 Wr. 261. Mortgage I., 13. (Leliigti Coal and Nav.,) Emlen v., 11 Wr. 76 Interest, 4, 5. i (Lehigh Iron,) Troxell t., 6 Wr. 513 License, 3. V. Lehigh Navigation Company, 14 Wr. 91 Corporations IL, 18. Equity I., 17. V. Levy, 4 P. P. Bmitli, 227 Corporations V. , 55, 56, 57. Lovering v., 4 P. F. Smith, 391. .Act of God, 1 ; Contracts XIIL, 32, 83. V. Lutlieran Congregation, 8 P. F. Smith, 445 EailroadsL, 34, 35, 36 ; Eoads, 43, 44, 45. v. Luzerne Co., 6 Wr. 434 Corporatioas L,3. (Lycoming Ins.,) Beatty v., 3 P. F. Smith, 456. Insurance I., 18. Mitcliellv., IP. F. Smith, 403.1nsurance L, 17. Insurance III., 25, 36, 37, 28, 29, 30, 31, 33. 410. Insurance VII. , 5. V. Shaeffer; 6 Wr. 188 Insurance II., 3. v. Schretfler, 6 Wr. 188 Insurance IL, 5. V. UpdegraflF, 4 Wr. 311 Insurance L, 5, 6; IL, 2. Maltby v., 3 P. F. Smith, 140 Constitutional Law, 3 ; Corporations I., 6, 7. Residence, 3. (Manufacturing,) Megargee v., 13 Wr. 442 Statutes 4. T. Marr, 10 Wr. 504.....' Collateral Security, 8. Evidence III., 87 ; X., 6 ; XII., 3, 4. MoElrath v., 5 P. F. Smith, 189.. Bonds, 8 ; Constitutional Law, 78. McCallum v., 4 P. F. Smith, 40.. Equity I., 69, G9|, 70, 71 ; IV., 3. V. McKeen, 2 P. F. Smith, 133. ..Damages, 1, 3, 3. Errors and Appeals V., 31, 33. McKeen v., 18 Wr. 424 Dams, 3; Damages, 18, 14, 15. V. McLaughhn, 3 P. P. Smith, 485.Evidence XL, 9. V. McTighe, 10 Wr. 316 Raih-oads IL, 19, 30, 31 ; IIL, 5. V. Meeser, 8 Wr. 341 Philadelphia, 3. Megargee v., 12 Wr. 443 Corporations V., 34, 35. (Merrimac,) Levy v., 4 P. F. Smith, 227 States of the Union, 2. V. Miles, 5 P. F. Smith, 309 Carriers, 13. Miller v., 4 Wr. 237 Corporations V., 5, 6. V. Myers, 5 P. P. Smith, 288 Railroads IL, 59. Muhlenberg v., 11 Wr. 16 Corporations V., 43. V. Murphy, 3 Wr. 263 Corporations IL, 1. (Mutual), Caverow v., 2 P. F. Smith, 387 Mortgage IL, 14. v. Noel, 4 P. F. Smith, 9 Land IX., 13 ; XIV., 4; XIX., 6. Evidence III., 73; Practice VIII., 29. (North American Oil) v. Forsyth, 13 Wr. 391. Evidence XVIII. , 5, 6. (N. W. Ins.,) Suydam v., 1 P. F. Smith, 399 Insolvency and Insolvent, 7. O'Donnell v., 14 Wr. 490 Errors and Appeals VI., 10. Railroads IL, 9. Oil Creek, Tanner v., 8 P. F. Smith, 411 Carriers, 3, 4, 5. Practice VII., 15. (Oil) V. Forsyth, 3 P. F. Smith, (Pa. R. E.) V. Henderson, 1 P. F. Smith, 315.. Negligence, 10, 11, V. Lutheran Congre- gation, 3 P. F. Smith, 445 Practice VIL, 16. 19 290 COM — COM Company, Pa. R. R. Co. v., 14 Wr. 499 Equily I., 19. V. Parke, C Wr. 31 Land XII., 1. Patterson v., 4 Wr. 117. Corporations V., 3, 3, 4. (Penna. Salt) v. Neol, 4 P. P. Smith, 9 Practice III., 3. (Placenix Ins.) v. Cocliran, 1 P. F. Smith, 143... Insurance III., 21, 22, 23, 24. 155. ..Insurance VI., 5. Phosnixville t., 9 Wr. 135 Corporations II., 12 ; IV., 18. Railroads III., 7, 8. Roads, 20. Pinneo v., 7 Wr. 361 Railroads I., 31. Pittsburg Y., 13 Wr. 355 Corporations IV., 25. (Railway) v. City, 1 P. F. Smith, 463. ..Interest, 11. 18 Wr. 251.. ..Interest, 1. Taxes, 10. (R. R.,) Clopton v., 4 P. P. Smith, 356 Mortgage v., 27. Taxes, 38, 39. ■ V. Evans, 3 P. P. Smith, 250 Practice VII., 20. Gwinnerv., 5P. F. Smith, 126 Statutes, 15. V. Hughes, 3 Wr. 521 Trover, 3, 4, n, 168 Evidence XVIIL, 9. Hunt T., 1 P. P. Smith, 475 Negligence 13, 14, 15, 16, 17. V. Johnson, 4 P.P. Smith, 137 Mortgage III., 5 ; V., 26. Maltby v., 2 P. P. Smith, 140 Non-Residenls, 1. T. McElrath, 5 P. F. Smith, 189 Mortgage I., 13. V. Pennock, 1 P. F. Smith, 244 Foreign Attachment, 11, 13. Sparhawk v., 4 P. F. Smith, 401, 433. ...Sunday, 1. V. Waterman, 4 P. F. Smith, 337 Taxes, 40. Weaver v., 14 Wr. 314.. .Execution I., 4. V. Zuo;, 11 Wr. 480 Practice IV., 13. V. R. W. Co., "3 P. P. Smith, 224.Equity I., 2. V. Relrman, 13 Wr. 101 Railroads II., 3. V. Rbule, 3 P. P. Smith, 93 Costs, 12; Set-off, 31. v. Roliinson, 8 Wr. 175 Railroads II., 34, 35. Rowland y., 3 P. F. Smith, 250. ..Corporations IV., 30. V. Sands, 5 P. F. Smith, 140 Carriers, 8, 13. v. SchrefBer, 8 Wr. 269 Evidence II., 11 ; X., 3 ; XL, 8. V. Schwarzenberger, 9 Wr. 308... Carriers, 6. (Second and Third Street Rail- way) v. City of Philadelphia, 1 P. P. Smith, 465 Taxes, 28. V. Sennett, 5 Wr. 161 Evidence XL, 1, 3. Shipper v., 11 Wr. 338 Corporations IV., 38, 39; Constitutional Law, 69. V. Shollenberger, 4 P. P. Smith, 144 Fraud IIL, 17. Railroads I., 38, 39 ; Roads, 46. 8 Wr. 359 Land XII., 3. V. Snowden, 6 Wr. 488 Constitutional Law, 39, 30. Equity I., 24. Snyder v., 5 P. P. Smith, 340 Railroads I., 54. Sparhawk v., 4P. P. Smith, 401. .Equity I., 84, 85, 86, 87, 88, 89, 90, 91, 92. 453.. Corporations VIIL, 31, 33. V. Spearen, 11 Wr. 300 Evidence V., 27. Railroads II., 15, 16, 17, 18. V. Spencer, 3 P. P. Smith, 353 Evidence XL, 8. COM — coo 291 Company (Steamboat) v. Brown, 4 P. F. Smith Evidence XX., 35, 36, 37. V. Stewart, 5 AVr. 54 Corporations V., 9, 10. Errors and Appeals IV., 7. 58 Contracts IV., 1. V. Stutler, 4 P. F. Smitli, 375 Railroads II., 38, 39. Suydam v., 1 P. F. Smith, 399. ...Corporations III., 9 ; V., 51. Equity I., «1, 63. Tanner v., 3 P. F. Smith, 41 Carriers, 3, 4, 5. (Telegraph) v. Weno-er, 5 P. F. Smitii, 368 Evidence XVIII., 10. V. Titus, 13 Wr. 377 Attorneys at Law, 6; Contracts XIII., 16; Corporations IV., 33. V. Tomb, 3 P. F. Smith, 432 Ejectment II., 36. 13 Wr. 387 Evidence III., 42. Laud VI., 4, 5, 6, 7; XX., 1. Troxell v., 6 Wr. 513 Assumpsit, 3. Estoppel, 6. V. Updegraff, 7 Wr. 350 Errors and Appeals VI., 5. Evidence II., 8. Vallance v., 6 Wr. 441 Assignee, &c., 13. V. Vandiver, 6 Wr. 365 Railroads II., 23, 24, 35, 38. V. Waterman, 4 P. F. Smith, 337.. Constitutional Law, 61. Weser v., 5 P. P. Smith, 460 Railroads 11., 63, 63, 64. V. Wenger, 5 P. F. Smith, 263, 268 Corporations VIII., 33. Damages, 30. Errors and Appeals V., 18, 37. Evidence v., 39. V. Wilcox, 13 Wr. 161 Contracts XIL, 4; XIIL, 11, 13. Estimates. Non-Joinder. V. Williams, 4 P. F. Smith, 103.. Corporations II., 19, 20 ; IV., 47, 48, 40. Wilson v., 7 Wr. 434 Aifidavit, 6. Corporations V., 13; VI., 14. Woodhouse v., 4 P. F. Smith, 307 Attachment, 16, 17; Constitutional Law, 75. Wright v., 9 Wr. 475 Land XL, 5. Company's Appeal, 4 P. F. Smith, 183 Equitv L, 75, 76, 77, 78. Equity I., 83, 83. Estoppel, 36. Land IX., 13. (North Penna. ) Appeal,. 9 Wr. 181 Partner and Partnership III., 9. Cone v. Donaldson, 11 Wr. 863 Constitutional Law, 58. Costs, 6, 7, 8. Set-off, 12. Linton v., 10 Wr. 394 Evidence III., 36; V., 26. Congregation, Duffey v., 12Wr. 46 Decedents' Estates IX., 3. Conley's Appeal, 3 P. F. Smith, 465 Contracts XIIL, 25. Connelly v. Walker, 9 Wr. 449 Fraud I., 3.5, 36, 27, 38. Sheriff, 6. Conrad, Allen v., 1 P. P. Smith, 487 Judgment V., 5, 6. V. Insurance Company, 4 P. F. Smith, 373 Attachment, 20. ' Errors and Appeals IV , 23. V. Stowe, 8 Wr. 193 Husband and Wife IL, 18. Conroe v. Conroe, 11 Wr. 198 Evidence VII., 17. Practice IV., 12. Conroe v., 11 Wr. 198 Practice IV., 13. Conrow v. Schloss, 4 P. F. Smith, 28 Courts, 15. jVIandamus, 20. Converse v. Colton, 13 Wr. 346 Evidence VI., 33. Former Recovery, 15. Trover, 15. Cook V. Brightly, 10 Wr. 4-39 Ground-rent, 11, 13. Cooke, Com. v., 14 Wr. 301 Banks and Bankers, 11. Interest, 6. 292 COO — COX Cooley, Hill v., 10 Wr. 359 Bills of Exchange and Promissory Notes II., 18. Courts, 11. Errors and Appeals IV., 14. Fraud IV., 5. Cooper, Bickfordv., 5 Wr. 143 Contracts VI., 3. Former Recovery, 3. V. Ins. Co., 14 Wr. 299 Evidence XI., 5, 6. Insurance III., 11. Ins. Co. v., 14 Wr. 331 Ev;dence XL, 7. Insurance I., 8; III., 13, 13. v. Piatt, 3 Wr. 538 Equity I., 1. Coover, Leidig v., 11 Wr. 534 Contracts III., 5. Coover's Appeal, 3 P. F. Smith, 437 Attorneys at Law, 11 ; Attorneys in Fact, 1, Decedents' Estates XII., 1. Errors and Appeals V., 36. Cope, Com. v., 9 Wr. 161 Abatement, 3, 3. Slieritt',5. Noble v., 14 Wr. 17 Estoppel, 34. Judgment VIII. , 1. Sheriff, 20. Cope's Appeal, 3 Wr. 284 Execution IL, 5- Execution IV., 11. Copp'enheffer, Auginbaugh v., 5 P. F. Smith, 347 Evidence XVIL, 37. Corbett v. Lewis, 3 P. F. Smith, 333 Confusion of Goods. Land VL, 10, 11. Corey, Brown v., 7 Wr. 404 Constitutional Law, 20. 405 Land IX., 2 ; XIII., 3. 495 Errors and Appeals I., 9 ; VI. , 6. Evidence XL, 10 ; IX., 10 ; Railroads L 17, 18. LandVin.,3, 4, 5,6,7. Cornman, Arnold v., 14 Wr. 361 Estoppel, 36. Evidence IX., 36. Corson v. McAfee, 8 Wr. 388 Attachment, 4, 5. Surety, 21. T. Mulvaney, 13 Wr. 88 Ejectment L, 16. Equity I., 56. Vendor and Vendee IV., 30, 31 Cote V. Von Bonhorst, 5 Wr. 250 Equity L, 5. Coulter V. Selby, 3 Wr. 858 Decedents' Estates IIL, 1. County (Lycoming) v. Gamble, 11 Wr. 106.Taxes, 15. V. McClung, 3 P. P. Smith, 482 State, 3. County of Armstrong v. Brinton, 11 Wr. 367 Bonds, 3. Carbon, Iron Co. v., 3 Wr. 251.. Corporations I., 1, 3. Juniata, Allison v., 14 Wr. 351. ..Interest, 7. Montgomery, Mintzer v., 4 P. F. Smith, 139 Taxes, 37. Potter V. Oswavo Township, 11 Wr. 163 Township, 3. Schuylldll, Sugarloaf v., 8 Wr. 481 Poor, 1, 3, 3. Coursey v. Davis, 10 AVr. 35 Shelly, 13. Coursin v. Ins. Co., 10 Wr. 333 Evidence XL, 4. Insurance I., 11 ; IL, 13. Covert V. Robinson, 10 Wr. 374 Shelly, 13. Wills VL, 48, 49. Cowan, White v., 3 Wr. 167 Trusts and Trustees IIL, 8. Cowden v. Oyster, 14 Wr. 368 Evidence V., 34. Husband and Wife, IV., 8. Trusts and Trustees IL, 7. Cowen, McClintock v., 13 Wr. 256 Appointment, 1. Cowlesv. Cowles, 3 P. F. Smith, 175 Wills VL, 95. Cowlcs v., 3 P. P. Smitli, 175 Wills VL, 95. Cowton V Wickcvsham, 4 P. F. Smith, 302. Husband and Wife IIL, 31. Cox, Plittv., 7 Wr. 486 Equity L, 31, 32, 33. Limitations I., 7. cox — CUR 293 Coxe V. City, 11 Wr. 9 Municipal Claims, 31. v. Martin, 8 Wr. 333 Constitutional Law, 34, 85, 36, 37. Execution IV., 9. Limitations IV., 17. Mortgage VII., 1. Coyle, B. R. Co. v., 5 P. F. Smith, 396 Evidence V., 42; XVIIL, 11. Railroads II., 60, 01. Craft V. Fleming, 10 Wr. 140 Bills of Exchange and Promissory Notes I., / 12. Craig V. Barclay, 13 Wr. 302 Errors and Appeals VL, 2, 3. Practice III., 1, 2. V. Mayor, 3 P. F. Smith, 477 > Canal. Land XIII., 15. Railroads I., 37. State, 1. V. Moorhead, 8 Wr. 07 Decedents' Estates VL, 10. Crans, Updegraff v., 11 Wr. 103 Election, 9. Equity I., 10. Intrusion, 1. Craver, Turnpike v., 9 Wr. 386 Contracts XIII., 4. Evidence V., 21. Crawford v. Burrell Township, 3 P. F. Smith, 219 Husband and Wife III., 15. Hellen v., 8 Wr. 105 Surety, 20. Cressman's Appeal, 6 Wr. 147 Decedents' Estates IV., 3 ; Deeds, 1. Trusts IV., 1. Crissman's Appeal, 2 P. P. Smith, 434 Partition, 9. Crisswell's Appeal, 5 Wr. 288 Wills VL, 17, 18, 19, 20. Critchfield v. Humbert, 3 Wr. 437 -..Trespass, 2, 3. Cronise v. Cronise, 4 P. F. Smith, 35.') Constitutional Law, 70, 71, 73. 238 Divorce, 8, 9, 10. Croskey, Stetson v., 2 P. F. Smith, 230 Contracts X., 16. Damages, 4. Evidence II., 19. Practice VIL, 18. Cross V. Stahlman, 7 Wr. 139 Mortgage VL, 1. Crosscut B. R. Co., Com. v., 14 Wr. 351.. ..Corporations IV., 43. '3 P. F. Smith, 63.. Quo AVarranto, 6, 7, 8, 9, 10. v., 5. Crossgrove v. Himmelrich, 4 P. F. Smith, 203 Evidence L, 8, 9 ; X., 10, 11. Evidence XVII. , 23. Vendor and Vendee II. , 9. Vendor and Vendee III., 14. Crowell, Wilson v., 12 Wr. 58 Contracts X., 3 ; XIIL, 9, 10. Vendor and Vendee IV., 34. Culbert, Fleming v., 10 Wr. 408 Limitations II., 11. CuUum v. Wagstaff, 13 Wr. 300 Contracts XIIL, 14. ErrEN — DEB 295 Denison, MoVicker v., 9 Wr. 890 Contracts IX., 6 ; XIII., 5. Sft-otr, 8. Denny V. Saving Fund, 3 Wr. 154 Constitutional Law, 21. Deturii, Bamet v., 7 Wr. 93 Wills VI., 27. De Turk, Graeff v., 8 Wr. 527 Wills VI., 40. Dctweiler's Appeal, 8 Wr. 243 .' Execution III., 16. Orphans' Court, 12. Devries, Flick v., 14Wr. 206 Husband and Wife II., 30. Dewart v. Clement, 12 Wr. 413 Fraud I., 33. Garrett v., 7 Wr. 343 Judgment IV., -6. Landlord and Tenant, 4, 5. V. Masser, 4 Wr. 302 Affidavit, 10; Bailee and Bailments, 1. Pleading, Pleas, 8. Masser v., 10 Wr. 534 Judgment V., 9. Dewart's Appeal, 7 Wr. 325 Execution V., O. Dewitt, Beddow v., 7 Wr. 320 Contribution, 1, 2, 3, 4. DeYoung, Clymer v. , 4 P. P. Smith, 118.. ..Fraud III., 10. Dickens, Barton v., 13 Wr. 518 Trusts VL, 5, 0. Limitations II., 7, 8. V. Barton, 13 Wr. 518 Limitations IV., 21. Dickey v. Trainer, 7 Wr. 509 Decedents' Estates II., 23. Diebl V. Holben, 3 Wr. 213 Execution IIL, 33, 34, 35, 36. Diller v. Brubacher, 3 P. P. Smith, 504 Accord, 5. 498, 505. Collateral Security, 7, 8, 9. 505 Estoppel, 33; Trusts IV., 3. Dilworth, Cbilds v.,~8 Wr. 123 Execution IV., 0, 7, 8. Dimock, Canal Co. v., 11 Wr. 393 Land I., 36. Directors V. Anderson, 9 Wr. 388 Mandamus, 6. Field v., 4 P. F. Smith, 333 Office and Officers, 1. V. Field, 4 P. F. Smith, 233 Philadelphia, 8. Heard v., 9 Wr. 93 School, 4. of Bedford v. Anderson, 9 Wr. 388. Mandamus, 6. of Poor v. School Directors, Wr. 21 Taxes 2 v. P.oyer, 7 Wr. 146 Mortgage II., 9, 10. of Sclioois, Din ctors of Poor v., 6 Wr. 21 Taxes, 2. of the Poor, Erisman v., 11 Wr. 509 Trusts, VI., 3. Poor, 0. Wharton v., 6 Wr. 550 School, 3. Disbrow, Church v., 3 P. F. Smith, 219 Wills VI., 73, 74. Disley v. Laninjt, 18 Wr. 143 Decedents' Estates V., 17. District V. Zumbro, 5 P. F. Smith, 432 Bounties, 4. Ditmars V. Com., 11 Wr. 335 Errors and Appeals IV., 45; VI., 11. Surety, I. Dixey V. Laning, 13 Wr. 143 Orphans' Court, 14. Dix(m's Appeal, 5 P. F. Smith, 434 Wills II., 21. Doak, Lackawanna Co. v., 3 P. P. Smith, 379 Errors and Appeals IV., 53. Railroads I. , 48. Donaldson, Cone v., 11 Wr. 363 Constitutional Law, 58. Costs, 0, 7, 8. Set-off, 13. Donnelly V. Eyan, 5 Wr. 306 Evidence IIL, 18. Partner, Partnership IIL, 3, 4, 5, 6. Doran, Bain v., 4 P. P. Smith, 134 Decedents' Estates II., 43. Errors and Appeals IV., 50. V. Bain, 4 P. F. Smith, 134 Husband and Wife IIL, 30. Dorian v. R. R. Co., 10 Wr. ,520 Railroads L, 13, 13, 14. Dotter, Clark v., 4 P. F. Smith, 315 Affidavit, 26. Dougherty v. Hunter, 4 P. F. Smith, 380. ...Agency and Agent, 8 ; Attachment, 17, 18. Debtor and Creditor I., 10. Douglass' Appeal, 12 Wr. 223 Subrogation, 4; Executions VIII., 14. Downey, Stephens v., 3 P. P. Smith, 424. ...Attorneys at Law, 8. V. Stephens, 8 P. P. Smith, 424 Limitations II., 12. Drake v. Phila. & Eric R. R. Co., 1 P. F. ' Smith, 240 Railroads I., 47 ; II., 41. Dreer v. Carskadden, 12 Wr. 38 Land L, 37 ; XVIIL, 8. 296 DEB — EBE Drennen v. House, 5 Wr. 30 Evidence V., 7. Dresher v. Allentown Co., 3 P. F. Smith, 235 Decedents' Estates V., 33; XI., 3. Orplians' Court, 33 ; Partition, 8. Drexel V. Com., 10 Wr. 31 ConstitutionalLaw, 41. Taxes 7 V. Miller, 13 Wr. 346 Constitutional Law, 34, 35, 36, 37. Mortgage VII., 3. Drum, Painter v., 4 Wr. 467 Contracts VI., 3. Evidence IL, 3; IV., 1. Fraud I., 8, 9. Dubois, Baum v., 7 Wr. 360 Agency and Agent, 2. Specific Performance, 1. Vendor and Vendee II., 3; IV., 10, 11 ; VI., 1. V. Baum, 10 Wr. 537 Ejectment I., 39, 43. V. Glaub, 3 P. F. Smith, 338 Abatement, 5. Damages, 5, 6. Practice V., 7. Water, 18. Duff V. Fitzwater, 4 P. F. Smith, 234 Landlord and Tenant, 24, 33, 26. Duffy V. City, 6 Wr. 193 Taxes, 3. V. Duffy, 8 Wr. 399 Contracts IIL, 4. V. Prcsbyter'n Congregat'n, 13 Wr. 46.Estoppel, 31. Evidence v., 38; VI., 26. Decedents' Estates IX., 3. Duncan, Buchanan v., 4 Wr. 83 Wills VI., 11. Ilusbandand Wife v., 3. Haldeman v., 1 P. F. Smith, 66.. ..Vendor and Vendee III., 9, 10, 11 ; V., 5, 6. Duncan's Appeal, 7 Wr. 67 Estoppel, 7. Husband and Wile VI., 1, 2. Dungan v. Am. Life Ins. Co., 2 P. F. Smith, 353 Estoppel, 30. Mortgage VI., 5. Dunham v. Wright, 3 P. F. Smith, 167 Husband and Wife III., 14. ' Dunkard, Debolt v., 3 P. F. Smith, 314 Contracts VL, 15, 16, 17. Dunne V. Deegan, 7 Wr. 334 Equity I., 35. Taxes, 4. Dunning's Appeal, 8 Wr. 150 Partner, Partnership IV., 14. Dunmore's Appeal, 2 P. F. Smith, 374 Errors and Appeals V., 35. Duuwoody v. Raynor, 3 P. F. Smith, 293... Practice VII., 21. Duquesne, Prescott v., 13 Wr. 118 Corporations IV., 33; Assumpsit, 11. Evidence III., 41. • Practice IV., 15. R. R. Co. v., 10 Wr. 333 Corporations 11., 15, 16, 17; IV., 21. Railroads III., 6. Durst, Schilling v., 6 Wr. 128 Debtor and Creditor L, 13, 1-1. Dutton V. Pailaret, 3 P. F. Smith, 109 Contracts V., 3, 3. Dwyer, Schmertz v., 8 P. F. Smith, 335 Damages, 37. Vendor and Vendee III., 13. Dver, City v., 5 Wr. 463 Roads, 10, 11, 13, 13. Mclnroy v., 11 Wr. 118 Evidence IIL, 51 ; XX., 18. Trover, 13. V. Walker, 4 Wr. 157 Pleading, Pleas, 5. Pl'fLCticC I, 1. Eakman v. Sheaffer, 12 Wr. 176 Evidence IL,'l4; V., 29. Jury, 5. Land L, 38. Ealy, Borland v., 7 Wr. Ill Errors and Appeals V., 6. Justices, 4. Earp V. Cummins, 4 P. P. Smith, 394 Broker. East Penna. R. R. Co. v. Hiester, 4 Wr. 53. Evidence XVIII. , 3, 4. LandVIIL, 1, 2. Easton, Boro' of. Appeal, 11 Wr. 355 Corporations IIL, 63, ; IV., 32. Frederick v., 4 Wr, 419 Attachment, 25. Easton' s Appeal, 11 Wr. 255 Costs, 5. Eberhart's Appeal, 3 Wr. 509 Execution IIL, 2,3. Eberts v. Eberts, 6 P. F. Smith, 110 Evidence VL, 41. Guardian, 4, 3, 6.' Eberts v., 5 P. F. Smith, 110 Guardian, 4, 5, 6. EBE — ESH 297 Eberts, Eberts v., 5 P. F. Smith, 110 Partition, 13. Eby's Appeal, 14 Wr. 311 Wills VI., 60*. Estate, 9 Wr. 379 Decedents' Estates III., 16. Eckert v. Cameron, 7 Wr. 120 Evidence XIX., 4. 128 Bills of Exchange and Promissory Notes II., 7. Evidence XX., 6. t Com. v., 3 P. F. Smith, 102 Decedents' Estates VIII., 3. V. Plo-svry, 7 Wr. 46 Wills I., 10, 11, 13. Eckles V. Stewart, 3 P. F. Smith, 460 Ejectment I., 39, 40. Eckmau v. Eclanau, 5 P. F. Smith, 269 Equity I., 95, 96 ; III., 8. Edwards' Appeal, 11 Wr. 144 Wills II., 8, 9, 10. Wills IV., 6. Edwards v. Edwards, 8 Wr. 369 Trusts and Trustees I., 1, 2, 3, 4 ; II., 1, 2, 3 4. Edwards v., 3 Wr. 369 Trusts and Trustees I., 1, 2, 3,4; II., 1, 3, 3, 4. V. Trumbull, 14 Wr. 509 Mortgage II., 13. Ege, Smith v., 2 P. F. Smith, 419 Malicious Prosecution, 8. V. Watts, 5 P. F. Smith, 331 Debtor and Creditor IV., 6. Eister v. Paul, 4 P. P. Smith, 196 Land I., 51, 52, 53. Elder v. Com., 5 P. P. Smith, 485 Counties, 8. Surety, 32. Eldridge, Cochran v., 13 Wr. 365 Arbitrament and Award, 13. Fraud IV., 6, 7. Judgment VIII., 4. Elliot and Clay's Appeal, 14 Wr. 75 Decedents' Estates, II., 33 ; III., 35, 36. Fraud I., 38, 89. ElHs, Fessler v., 4 Wr. 948 Attachment, 24. Ellison V. Buckley, 6 Wr. 281 Errors and Appeals VI., 1. Elsbree, Hathaway v., 4 P. F. Smith, 498. ..Land XVI., 11, 12, 13. Elwell, Richards v., 12 Wr. 361 Fraud II., 15, 16, 17. Limitations I., 10. Ely, Funk v., 9 Wr. 444 Evidence VL, 15,16. Jury, 4 ; Justices, 2. Emerson v. Smith, 1 P. F. Smith, 90 Debtor and Creditor II., 39. Smithy., 7 Wr. 456 Evidence VI., 13; VII., 13, 13. Execution II., 4 ; III., 10, 11, 13, 13. Partner, Partnership I., 8 ; III., 8. Emlen v. Lehigh Coal and Nav. Co., 11 Wr. 76 Interest, 4, 5. Eneu, Schaferv., 4 P. F. Smith, 304 Child 2; Constitutional Law, 74. Trusts v., 18, 19. Engle, McCandless v., 1 P. F. Smith, 318... Evidence XVI., 3, 4. Land XXI., 3. Notice, 9. Purchaser, 3. 314. ..Mortgage V., 15; VIIL, 3, 4, 5. English Cases reviewed in Eckert v. Came- ron, 7 Wr. 128 Evidence XX., 6, 7. Ensworth and Moore's Appeal, 2 P. P. Smith, 465 Contracts XIII., 35. Judgment VIIL, 6. Ensworth v. Com., 2 P. F. Smith, 830 Dams, 3. Epler, Hoover v., 3 P. F. Smith, 522 ,Lien, 6, 7, 8. Erb V. Erb, 14 Wr. 388 Way, 1. Erie, Sharon Iron Co. v., 5 Wr. 341 Land XII., 7, 8, 9. Erisman v. Directors of the Poor, 11 Wr. 509. Poor, 6. Trusts VI. , 3. Erwin V. Mayers, 10 Wr. 96 Vendor and Vendee IV., 21, 32, 33. Ejectment L, 21, 22, 23, 24, 25 ; II., 14, 1.", 16, 17, 18, 19. Smedley v., 1 P. F. Smith, 445 Acts of Assembly, 1 ; Constitutional Law, 67, 68 ; Equity'l., 00. Erwin' s Appeal, 3 Wr. 538 Judgment III., 1, 3. 335 Parmer, Partnership L, 4; II., 1, 2, 3, 4, 5, 6; III., 1. Eshree, Hathaway v., 4 P. F. Smith, 498.. ..Estoppel, 38. Eshelman, Aldridge v., 10 Wr. 430 Guarantee and Guarantor, 11. 298 ESH — FAB Bshelman, AWrid^e v., 10 Wr. 477 Evidence XVII., 14. V. Lewis, 13 Wr. 410 Trusts and Trustees III., 19, 20. Estate, Arnold's, 10 Wr. 277 Lien, 3, 3. Limitations I., 35. Boyer's, 1 P. P. Smith, 433 Day, 1. Eby'a, 9 Wr. 379 Decedents' Estates IIL, 16. Foulke's, 2 P. F. Smitli, 301 Wills VL, 72. Fulton's, 1 P. F. Smitli, 211 Appeal, 3. 204 Assignee, &c.,-34, 25. Judgment IV., 8 ; V., 11, 12, 13, 14 ; VIII., 5. Hayes's, McCormick's Appeal, 5 P. P. Smith, 253 Execution IL, 7, 8. 256, 253 Piirtner, Partnership I., l."i ; IL, 9 ; IIL, 31,33. Hutchinson's, 11 Wr. 94 Decedents' Estates VII., 10. Lennig's, 3 P. F. Smitli, 185 Decedents' Estates V., 20, 31 Kiiglee's, 3 P. F. Smith, 154 Trusts VL, 8. Musselman's, 3 Wr. 469 Wills VL, 3. of Potter and Page, 4 P. F. Smith, 465 Assignee, &c., 33. Limitations IV., 38. Otto's, 3 P. P. Smith, 434 Partition, 9. Sheet's, 2 P. F. Smith, 267 Trusts V., 30'. Springer's, 1 P. P. Smith, 843 Decedents' Estates II. , 34, 35, 30; VIL, 16. Trusts and Trustees IL, 10. Trusts IIL, 28, 29. Esterley's Appeal, 4 P. P. Smith, 193 Mechanics' Claim, 24. Statutes, 11, 12. Etnier v. Shnpe, 7 Wr. 110 Arbitrament and Award, 9. Evans, Billmeyer v., 4 Wr. 324 Constitutional Law, 13, 13, 14. V. Hall, 9 Wr. 235 Contracts VL, 4. .Justices, 6. Pleading, Pleas, 18. V. Matson, 1 P. F. Smith, 361 Bonds, 6. Evidence VL, 36 ; VIL, 34. Fraud V., 4. 367 Sheiitr, 26, 27. Mohney v., 1 P. F. Smith, 80 Husband and Wife IIL, 18. Infant, 1, 2. V. Philadelphia Club, 14 Wr. 107. ...Corporations IV., 34, 35, 36, 37. Mandamus, 9, 10. B. R. Co. v., 3 P. P. Smith, 350 Practice VIL, 30. Railroads II. , 1, 3. Speer v», 11 Wr. 141 Mortgage IV., 8. Everham v. Association, 11 Wr. 353 Building Association, 8. Everson, Simes v., 10 Wr. 304 Equity L, 39, 40. Ewing V. Alcorn, 4 Wr. 493 Limitations I., 3, 4. 497 ."...Former Recovery. 1. 500 Evidence I., 2; IX., 1. Errors and Appeals I., 6. .501 ■ Ejectment II. , 1 ; IIL, 3. v. Filloy, 7 Wr. 884 Constitutional Law, If!. Elections, 14, 15, 16, 17, 18, 19, 20, 31. v. Thompson, 7Wr. 872 Certiorari, 1, 3, 8. Evidence XVI. ; XVII., 3. Election, 10, 11, 13, 13. Equity I., 26, 37. Intrusion, 1. Executors, Kramph's, v. Hatz, 3 P. P. Smith, 539 Terre Tenant, 1. Hatz's, Kramph's Executors v., 3 P. P. Smith, 529 Terre Tenant, 1. Express Co., Bank v., 9 Wr. 419 Banks and Bankers, 7, 8. Carriers, 7. V. Smds, 5 P. P. Smith, 140.. Carriers, S, 13. Paber, King v., 1 P. F. Smith, 387 Attachment, 14, 15. Evidence IL, lo; IIL, 57, 58; VL,37; XIX.,8 388 .Jury, (i. Verdict, 1. 394 Courts, 17. FAL— ELA 299 Fules, Iron Co. v., 5 P. F. Smith, 90 Errors and Appeals VI., 14. Land XVL, 14, 15. Fallon's Appeal, 6 Wr. 335 Assignee, 9, 10. Farnham v. R. R. Co., 5 P. F. Smith, 53. ...Carriers, 8. Farrell, Lloyd v., 12 Wr. 73 Evidence XVIL, 17. Land IV., 7, 8; VII., 6, 7, 8, 9. Fassitt V. Middleton, 11 "Wr. 214 Assignee, 16. Ground-rent, 13. Featherman v. Miller, 9 Wr. 96 Evidence V., 17, 18. Fegaly, Mycr v., 3 Wr. 429 Judgment I., 1. Fell V. McHeni^, 6 Wr. 41 Bills of Exchange and Promissory Notes II., 5 ; Corporations IV., 10 ; V., 11; Evi- dence III., 19, 30. Ferguson, Brolasky v., 13 Wr. 434 Landlord and Tenant, 31. V. Staver, 4 Wr., 313 Ejectment I., 1 ; III., 1. Practice VIIL, 3. Ferguson Township, Musser v. 5 P. F. Smith, 475 Bounties, 7. 478 Contracts VL, 6, 7. Fcrree v. Thompson, 3 P. F. Smith, 853 Evidence III., 66, 67; Practice VII., 23. 855 Practice v., 8. Ferrers, Schofield v., 10 Wr. 438 Damages, 10. Replevin, 3, 4, 5, 6. 11 Wr. 194 Evidence VI., 17. Malicious Prosecution, 4, 5. Ferrigan, Com. v., 8 Wr. 386 Crimes, 30, 37, 38. Evidence XIII., 1, 3. 389 Practice VII. 3. Fessler V. Ellis, 4 Wr. 34S Attachment, 34. v. Love, 7 Wr. 813 Contracts L, 2. Set-off, 5. 12 Wr. 407 Contracts VIL, 3, 3 ; X, 4, C, 6, 7, 8. Evidence XVIII. , 8. Fetherolf, Barton v., 3 Wr. 379 Evidence III., 2, 3. Fetrow V. Fetrow, 14 Wr. 253 Wills VL, 60. Fetter V. Wilt, 10 Wr. 457 Constitutional Law, 53. Trespass, 14. Ficldnger, Road Coni'rs v., 1 P. F. Smith, 48. Certiorari, 4, 5, 6. Roads, 33, 34. Field V. Directors, 4 P. P. Smith, 333 Philadelphia, 8. Office and Officers, 1. Ins. Co. v., 9 Wr. 129 Attachment, 6. Insurance VI. , 7. Moore v., 6 Wr. 467 Affidavit, 9. Fieldino-, Oakland R. W. Co. v., 13 Wr. 330.Rnilroads IL, 10, 11. 13, 18, 14. Fields, Moore v , 6 Wr. 467 Decedents' Estates IL, 18. F'field V. Ins. Co., 11 Wr. 166 Insurance V., 3. Filbert v. Hoff, 6 Wr. 07 Trespass, 12, 13. ShoUenberger v., 8 Wr. 404 Ground-rent, 6. Filley, Ewing v., 7 Wr. 384 Constitutiimal Law, 18. Elections, 14, 1.5, 16, 17, 18, 19, 20, 31. Finlj V. Garman, 4 Wr. 95 Husband and Wife V., 9, 10. Inn, Innkeeper, 1, 3, 3. Yealy v., 7 Wr. 313 Errors and Appeals IV., 26, 37. -Evidence V., 11 ; Negligence, 1. 315 Damages, 9. Finney, Brown v., 3 P. P. Smith, 373 Contracts XIIL, 28, 29, 30, 31. Firmstonev. Mack, 15 Wr. 387 Attachment, 23, 31. Laborers, 1. Fisher v. Deibert, 4 P. F. Smith, 460 Evidence VIL, 30. Fraud IV., 11. Fitzgerald v. Stewart, 3 P. F. Smith, 343.. ..Evidence VIL, 36; Practice VIIL, 5. Slander, 1, 2. PJzpatrick's Appeal, 13 Wr. 341 Trnsts V., 15. Fitzsimraons' Appeal, 4 Wr. 433 Decedents' Estates V., 4. Fitzsimmons v. Baum, 8 Wr. 82 Debtor and Creditor IL, 13, 14, 15. Fitzwater, Duff v., 4 P. F. Smith, 224 Landlord and Tenant, 24, 25, 26. Flanigeu v. Bank, 4 P. F. Smith, 898 Attachment, 31, 33 ; Bills of Exchange and Promissory Notes II. , 33, 33; Evidence XII., 8, 9. 300 FLA — FEE Flanigen Y. City, 6 Wr. 219 Water, 3, 4. Philadelphia, 3. IP. F. -Smith, 491, 493.. ..Description, 1; Ejectment II., 21, 23, 23; 493 Attorneys at Law, 1, 3. Judgment II., 3, 4. 6 Wr. 219 Constitutional Law, 27. Citvv., 11 Wr. 21 Philadelphia, 5. Fleming v. Book, 12 Wr. 309 Contracts VIL, 3, 3; X., 4, 5. Evidence I., 0, 7. Notice, 4. Brewer v., 1 P. P. Smith, 115 Land VI., 9. 102 Tender, 1. Craft v., 10 Wr. 140 Bills of Exchange and Promissory Notes L, 18. V. Culbert, 10 Wr. 498 Limitations II., 11. V. Ramsey, 10 Wr. 353 Contracts VL, 10. Fraud II., 9. Roads, 32. Flick V. Devries, 14 Wr. 260 Husband and Wife 11, 36. Flickiuger^ Bigler v., 5 P. F. Smith, 379 Bills of Exchange and Promissory Notes II., 34; Contracts VIL, 1. Errors and Appeals VI., 15; Evidence IV., 15, 16; VIL, 31. 383 Deceit, 3. Flowry, Eckert v., 7 Wr. 46 Wills I., 10, 11, 13. Fluck V. Hiiger, 1 P. P. Smith, 459 Assignee, 33. Decedents' Estates IL, 33J ; III., 38. Extinguishment, 1. Guarantee and Guarantor, 13. Mortgage V., 34. Focht, Batdorff v., 8 Wr. 195 Executions IV., 10. Foley V. Tovey, 4 P. F. Smith, 190 Equity L, 79. Foltz' Appeal. 5 P. F. Smith, 438...'. Guardian, 7. Foreman v. Ahl, 5 P. F. Smith, 335 Evidence III., 3. Sundav, 3. Forepaugh, Speakman v., 8 Wr. 363 Land 1., 33 ; IL, 2, 3 ; IV., 5, 6 ; XIV., 1. Vendor and Vendee IV., 13, 14, 15, 16. ForschtT. Green, 3 P. F. Smith, 138 Contracts, VL, 13. Election, 35. Forsyth, N. A. Coal Co. v., 12 Wr. 391 Errors and Appeals IV., 23; V., 8. Evidence XVIII. , 5, 6. v. Oil Co., 3 P. F. Smith, 168 Contracts IX., 9 ; XIIL, 13, 18. Evidence XVIII. , 9. Trespass, 8. V. Wells, 5 Wr. 391 Trover, 9, 10, 11. . Foster, Brown v., 1 P. F. Smith, 170 ;.. Contracts X., 11, 13, 13, 14. Damages, 30, 31. Haslett v., 10 Wr. 471 Ejectment L, 26,37. Hofi'man v., 7 Wr. 137. .: Affidavit, 18 ; Bills of Exchange and Prom- issory Notes II., 8. Fonlke v. Township, 3 P. P. Smith, 321 Contracts VI. , 15, 10, 17, 19, 20. Foulke's Estate, 2 P. F. Smith, 301 Wills VL, 73. Fox, Warfield v., 3 P. P. Smith, 382 Limitations L, 1, 3 ; IV., 37. Francisous, Millerv., 4 Wr. 335, [overruledj. Limitations I., 1. Frank v. Maguire, 6 Wr. 77 Aifldavit, 16, 17. Franklin Coal Co., Gloninger v., 5 P. F. Smith, 9 Land IX., 14, 15. V. Hammonnd, 9 Wr. 507 Agency and Agent, 3. Surety' 34, 25. Frantz's Appeal, 2 P. F. Smith, 367 Alien, 1. Taxc's, 30. Prazier, Smith v., 3 P. P. Smith, 236 Errors and Appeals V., 29. Practice V., 6 ; VIL, 19. Frederick v. Easton, 4 Wr. 419 Attachment, 35. Fredericks' Appeal, 3 P. P. Smith, 338 Deeds, 11. Wills IL, 18. Freeburger's Appeal, 4 Wr. 344 Executions IV., 3. Freetly v. Barnhart, 1 P. F. Smith, 381 Specific Performance, 6, 7, 8. FEE — GAR ' 301 Frey, Com. v., 14 AVr. 245 Crimes, 41, 43, 43, 44. Fritz, Johnson v., 8 Wr. 449 Estoppel, 10. Evidence V., IG. Husband and Wife V., 17. Scott v., 1 P. F. Smith, 418 Mortgage V., 32, 23. Set-off, 18. Fry V. Miller, 9 Wr. 441 Executions, VI., 4, 5. Mortgage I. , 8. Fuechsel, Christ Church Hospital" v., 4 P. P. Smith, 71 Ground-rent, 18. Hospital v., 4 P. F. Smith, 71 Constitutional Law, 1, 48 ; Contracts V., 4. Fuller, Dean v., 4 Wr. 474 Errors and Appeals IV., 6. Evidence n., 4, 5. Fraud IV., 1. Stark v., 6 Wr. 330 Evidence VI., 6. Guarantee and Guarantor, 8, 9. Fullerton, Johnson v., 8 Wr. 46fi Ejectnrent 11., 13; IV., 1. 2, 3. Husband and Wife II., 19, 20, 31. Fullerton's Appeal, 10 [Wr. 144 Bonds, 1. Fulmor, Bennett v., 13 Wr. 155 Decedents' Estates III, 33, 24. Evidence IX., 23, 23, 24, 25 ; XX., 23. Landlord and Tenant, 33. Trusts and Trustees II., 8, 9. Fulton, Burton v., 13 Wr. 151 Negligence, 1. Schools, 6. Co. V. Tate, 11 Wr. 533 Justices, 7. Fulton's Estate, 1 P. F. Smith, 311 Appeal, 3. 304 Assignee, &c., 34, 25. Judgment IV., 8; v., 11, 13, 13, 14; Vm.,5. Funk, Davis v., 3 Wr. 343 Collateral Security, 1. Trover, 1, 2, V. Ely, 9 Wr. 444 Evidence VL, 15, 16. Jury, 4 ; Justices, 3. V. Haldeman, 3 P. F. Smith, 329 Equity I. 21. Land IX., 10. Gable V. Daub, 4Wr. 317 Estoppel, 4. Gable's Executors, Appeal of, 4 Wr. 231 Decedents' Estates V., 3 ; VII., 2. Wills VI., 15. V. Daub, 4 Wr. 217 Wills IIL, 1, 2. Gaines V. Com., 14 Wr. 319 Crimes, 14. Evidence II., 1.5, 10, 17; IV., 9, 10, 11. Evidence XVII., 3, 4. Evidence XIX., 7. Gallagher, Wylie v., 10 Wr. 205 Estoppel, 17. , Surety, 26. Gallasher's Appeal, 12 Wr. 121 Wills IV., 14. Gaily'; Brolasky v., 1 P. F. Smith, 513 Wills IV., 17, 18, 19, 30. Gamble, Lycoming Co. v., 11 Wr. 106 Taxes, 15. V. Woods, 3 P. F. Smith, 158 Errors and Appeals V., 27, 28. Gann, Cummings v., 2 P. F. Smith, 484 Bail ; Contracts XIII., 20. Eviiience IIL, 69 ; VL, 38 ; Replevin, 7, 8 Reward, 1. Evidence XX., 30. Jury, 1. Lien, 5. 491 Damages, 23. Gardner v. Hcffley, 13 Wr. 163 Contracts IIL, 7. V. Post, 7Wr. 19 Evidence VL, 8. Practice IV., 1, 3. v. Sisk, 4 P. F. Smith, 506 Estoppel, 39. Executions V., 13. Garman, Fiuk v., 4 Wr. 95 Husband and Wife V., 9, 10. Inn, Innkeeper, 1, 3, 3. Garrett, Buckley v., 11 Wr. 303 Insurance I., 13, 13; IL, 14. 203, 313 Insurance VII., 3, 3. 280 Collateral Security, 4. Debtor and Creditor IX., 2. Y. Dewart, 7 Wr. 343 Judgment IV, 6. 302 GAE — GOR Giirrett V. Dewiirt, 7 Wr. 343 LanJlord and Tenant, 4, 5. V. Gonl.er, Wr. 143 Errors and Appeals IV., 10, 11. Evidence VII., 10. Mortgage V., 1. Slonecker v., 13 Wr. 415 Agency and A^ent, 5. Errors and Appeals IV., 41. Garver v. MoNully, 3 Wr. 473 Land I., 1 ; II., 1. Vendor and Vendee IV., 1, 3, 3. Gas Co. V. Murphy, 3 Wr. 203 Corporations II., 1. Gaul V. Lauer, Schall's Appeal, 4 Wr. 170. ..Executions V., 2. Gault V. Baffin, 8 Wr. 307 Husband and Wife II., 15. Geisenberg, Shaeffer v., 11 tV"r. 500 Assumpsit, 9. Gerker, Horslman v., 13 Wr. 383 Mortgage V., 11. Gerlach, Coates v., 8 Wr. 43 Husband and Wife II., 11, 13. Germantown Eoad, Attorney-General v., 5 P. F. Smitb, 46G Constitutional Law, 80. Germantown Water Co., McCallum v., 4 P. F. Smith, 40 Limitations I., 35, 36. Water, 19. Gbeen, Worrall v., 3 Wr. 388 Bills ot Exchange.' Ac, L, 1. Gibson v. Winslow, 10 Wr. 380 Evidence XVII., 13. Evidence XX., 14. Fraud V., 1. Land XIII., 5. Partner, Partnership, II., 8. Trusts and Trustees III., 17, 18. Gicker v. Martin, 14 Wr. 138 Evidence III., 45; V., 33. Fraud I., 40. Husband and Wife IV., 9 ; V., 37. Gilbert, McBarron v., 6 Wr. 879 Land I., 14, 15, 16. 380 Ejectment I., 43. Gilger, Hause v., 3 P. F. Smith, 413 Husband and Wife IV., 11, 12 ; V., 30. Gil'lan, Gillan v., 5 P. F. Smith, 430 Execution IIL, 40. Gilman v. City, 3 Wallace, 713 Constitutional Law, 37. Water, 3. Gilmore v. Rodgers, 5 Wr. 130 Decedents' Estates V., 9, 10. Orphans' Court, 4. V. Wilson, 3 P. F. Smith, 194 Evidence VI., 40. Way, 3. Girard Bank v. Bank of Penn Township, 3 Wr. 93 Limitations II., 1. Girard, City v., 9 Wr. 9 Former Eecoverv, 8. Wills IIL, 7, 8, 9, 10, 11. Wills VI., 41. Glanding, Heil v., 6 Wr. 493 Errors and ApDeals IIL, 1; IV., 35. Railroads IL, 36. Glasgow, Kinney v., 3 P. F. Smith, 141 Intestate, 6. Wills VI., 94. Glass V. Warwick, 4 Wr. 140 Husband and Wife IIL, 4. Mortgage ill., I. Glaub, Dubois v., 3 P. P. Smitb, 238 Abatement, 5. Damages, 5, 6. Practice V., 7. Water, 18. Gleason, Burk v., 10 Wr. 397 Execution IIL, 30. Gleim, Ahl v., 3 P. F. Smith, 433 Constitutional Law, 6, 7. Taxes, 2.5, 31. Glidden v. Strupler, 2 P. F. Smitb, 400 Estoppel, 38. Husband and Wife IIL, 16. Gloninger v. Franklin Coal Co., 5 P. F. Smitb, 9 Land IX., 14, 15. V. Hazard, 6 Wr. 389 Ejectment I., 11. Equity L, 23, 23; IL, 1. Gluck, Dech v., 11 Wr. 403 Decedents' Estates V., 16. Goffv. jSTuttall, 8 Wr. 78 Husband and Wife IL, 13, 14. Gonter, Garrett v., 6 Wr. 143 Errors and Appeals IV., 10, 11. Evidence VII., 10. Mortgage V., 1. Gordon V. Gordon, 13 Wr. 336 Divorce, 3, 4, 5, 6. GOR — GPJ 303 Gorgas et al., Bunn v., 5 Wr. 441 Conslitutional Law, 35. Gormley, Hutchinson v., 13 Wr. 370 Attachment, 7. Lyon v., 3 P. F. Smith, 361 Damages, 19. Railroads I., 10. Gottsman, Ins. Co. v., 13 Wr. 151 Iiisuriince III., 3. Gougler v. Price, 13 Wr. 86 Contracts VIII., 9. Gould V. Langdon, 7 Wr. 365 Corporations IV., 17. Former Recovery, 3, 4. Indictment. Lee v., 11 Wr. 398 Contracts, XITT., 8. V. Lee, 5 P. P. Smith, 99 Evidence XVII., 2r,. Grabill v. Moyer, 9 Wr. iMiO Husband and Wife II., 30, 31 ; IV., 6. Graetf v. DeTurk,8Wr. 537 Wills VL, 40. Graff V. Kelly, 7 Wr. 453 Judgment VI., 1. Vendor and Vendee IV., 18. Ralston v., 5 P. P. Smith, 376 Land VL, 13. Graham V. Com., 1 P. P. Smith, 25.j Domicil. Inhabitant, 1. Limitation III., 3 ; Residence, 1. V. HolliDger, 10 Wr. 55 Deceit, 1. Evidence V., 2.5. V. McCreary, 4 Wr. 515 Evidence III., 5; X., 1, 2, 3. Fraud L, 10. Grain Blev. Co., R. R. Co. v., 14 Wr. 499. ..Equity I., 19. Railroads I., 38; Roads, 43. Grant V. Allison, 7 Wr. 437 Land I., 33. Limitations I., 6. Hill v., 13 Wr. 300 Evidence VL, 31. Execution VL, 8, 9, 10. Payment, 2. Sheritt; 19. and McLane's Appeal, 8 Wr. 477 Landlord and Tenant, l.'i, 16. Gratzv. Beates, 9 Wr. 495 Errors and Appeals IV., 33. Estoppel, 16. Evidence V., 33, 33, 34 ; IX., 11, 13, 13, 14, 15, 16, 17, 18. Laud I., 35, 36. V. Penna. R. R. Co., 5 Wr. 447 Assignee, 8; Constitutional Law, 36; Cor- porations, IV., 8. Gravenstine's Appeal, 18 Wr. 310 Equity I., 11, 13, 13, 14, 59; III., 9. 311 Corporations V., 47, 48. Graver, Clyde v., 4 P. P. Smith, 351 Carriers, 9, 10, 11 ; Evidence XVII., 34. v. Shall, 6 Wr. 58 Water, 1, 3. Graver's Appeal, 14 Wr. 189 Decedents' Estates VII., 14, 1.5. Graydon, Powers v., 3 P. F. Smith, 198 Bonds, 7. Insolvency and Insolvent, 4, 5, 6. Gray's Ferry Road, Philadelphia v., 3 P. F. Smith, 177 Corporations I.', 9, 10, 11, 13. Statutes, 7. Green, Porscht v., 3 P. P. Smith, 138 Contracts VL, 13. Election, 35. Hiester v., 13 Wr. 96 Execution V., 5. Vendor and Vendee VL, 4, 5. V. Humphre}', 14 Wr. 313 Vendor and Vendee IL, 8. Kelly v., 3 P. P. Smith, 303 Execution V., 11, 13. V. Tyler, 3 Wr. 861 Mortgage IL, 9, 10. Green's Appeal, 6 Wr. 25 Wills VL, 33, 33. Greene v. Tyler, 3 Wr. 361 Debtor and Creditor IL, 1, 3, 3, 4, r,, 6 ; IIL, Greensburg v. Young, 3 P. P. Smith, 380. ..Taxes,' 36. Greer v. Shriver, 3 P. P. Smith, 359 Debtor and Creditor I., 15 ; IL, 38. Gregg V. Gregg, 5 P. P. Smith, 337 Negligence, 18. Trespass, 31. v. Jamison, 5 P. P. Smith, 468 Bounties, 5, 6. Errors and Appeals IV., 58. Evidence IV., 14; Quo Warranto, 3, 4. Grim v. School Directors, 1 P. P. Smith, 319. Bonds, 5. Griner, Lance v., 3 P. F. Smith, 304 Contracts XIII., 37. Limitations IV., 36. 304 GRO — HAL Groff, Ralston v., 5 P. F. Smith, 276 Errors and Appeals IV., 13. Oroff's Appeal, 9 Wr. 379 Decedents' Estates III, 16. Orphans' Court, 15. Gross, Bank v , 14 Wr. 234 Attachment, 35. V. Leber, 11 Wr. 530 Equity!., 54. Evidence VII., 18. V. Reddig, 9 Wr. 406 Evidence III., 30. Husband and Wife II., 37, 28. Grove v. Hodges, 5 P. F. Smith, 504 Agency and Agent, 9, 10, 11 ; Contracts VI., 6,7. Land IX., 14, 15. 518 Limitations I., 43. Grow, Lord v., 3 Wr. 88 Vendor and Vendee IIL, 1, 2, 3, 4. Grubb V. Brooke, 11 Wr. 485 Debtor and Creditor II., 16. Practice VII., 8. Guernsey, Churoher v., 3 Wr. 84 Vendor and Vendee I., 1, 3. Vendor and Vendee II., 1. Guilford Dist. v. Zumbro, 5 P. P. Smith, 433.. Bounties, 4. Gumniey, Burke v., 13 Wr. 518 Vendor and Vendee IV., 33. Vendor and Vendee V., 4. Gump V. Showalter, 7 Wr. 507 Lien, 1. Gunkel's Appeal, 13 Wr. 13 Corporations V., 34. Gurley, Com. v., 9 Wr. 393 Crimes, 19, 30. Errors and Appeals V., 10. Guthrie v. Wilson, 4 Wr. 480 Arbitration and Awards, 4, 5. V. Kahl, 10 Wr. 381 Mortgage IL, 12 ; V., 5, 6. Mellon v.,1 P. F. Smith, 116 Judgment VL, 3, 4. Land XX.. 3. Gwinner v. R. R. Co., 5 P. F. Smith, 136.. ..Railroads L, 52. Statutes, 13. Hade, Weister v., 2 P. F. Smith, 474 Constitutional Law, 7. Hagan, R. B. Co. v., 11 Wr. 348 Errors and Appeals IV., 36, 37, 38, 39. Hager, Allibone v., 10 Wr. 48 Corporations V., 32, 33. Limitations IV., 25. FluckT., 1 P. F. Smith, 459 Assignee, 33. Decedents' Estates IL, 33|; III., 38. Extinguishment, 1. Guarantee and Guarantor, 12. Mortgage V., 24. Hagertv v. Albright, 2 P. F. Smith, 374 Estoppel, 81. Wills VI., 86, 87, 88. Hague V. City, 13 Wr. 527 Counties, 5. Haimlin's Appeal, 9 Wr. 343 Decedents' Estates V., 14., 15. Hahn's Appeal, 3 Wr. 409 Mechanics' Claim, 3. Haight, Barnhill v., 3 P. F. Smith, 165 Contracts X., 10. Damages, 18. Practice IV., 31. Haines V. Levin, 1 P. F. Smith, 413 Constitutional Law, 66. Errors and Appeals VI., 13, 13 ; IX., 1. Landlord and Tenant, 31, 33. Haldeman v. Bruckhart, 9 Wr. 514 Land X., 3. T. Duncan, 1 P. F. Smith, 66 Vendor and Vendee III., 9, 10, 11. Vendor and Vendee V., 5, 6. Funk v., 3 P. F. Smith, 339 Equity I., 21. v. Haldeman, 4 Wr. 39 Wills'VL, 7, 8, 9, 10. 35 Wills VL, 4,5, 6. V. R. R., 14 Wr. 425 Land IX., 8. Land XIII., 11, 13. License, 7. Limitations I., 13. Limitations IV., 33. Hale V. Ard, 13 Wr. 33 Attorneys at Law, 3, 4, 5. Costs, 9. Evidence VL, 33, 34, 3.5. Limitations IV., 30, 31. Hale's Appeal, 8 Wr. 438 Execution L, 3. Execution IV., 4. .Evidence VI., 13. Hall Association, Loan Co. v., 12 Wr. 446 ..Bonds, 4. HAL — HAE 305 Hall, Evans v., 9 "Wr. 235 Contracts VI., 4. Justices, 6. Pleading, Pleas, 18. V. McCanghey, 1 P. F. Smith, 43 Alleys, 1, 2. V. Patterson, 1 P. P. Sniitli. 289 Deeds, 8, 9, 10. Evidence XVI., 1, 2. Justices, 13, 13. Laud XXI., 1, 3. Notice, 9. Purchaser, 1. Courts, 16. V. Vanness, 13 Wr. 457 Trusts and Trustees III., 21. Evidence XX., 24. E. R, v., 14 Wr. 435 Limitations IV., 23. Hall's Appeal, 4 Wr. 409 Trusts and Trustees IIL, 1, 2, 3. Halloway, Com. v., 8 AVr. 210 ; Pardon, 3, 4, 5, 6. Halloweil v. Curry, ~i Wr. 333 BillsofExchangeandPromissoryNotesI.,4. Halsey's Appeal, 7 Wr. 33 Associations, 1, 2, 3, 4, 5. Tiusts and Trustees III., 14. 23, 3.^ Limitations IV., 13, 14, 15. 35 Limitations I., 5. Halsey V. Tate, 2 P. P. Smith, 311 Stock and Stockholders, 2. HalKtead, Black v., 3 Wr. 64 ...Affidavit, 1, 2. Hamilton, McKinney v., 1 P. F. Smith, 68. Husband and Wife I., 9 ; V., 33. Mortgage VIII., 1, 2. O'Neill v., 8 Wr. 18 Courts, 9. Equity I., 84. Husband and Wife V., 15. Hammer v. McEldowney, 10 Wr. 334 Equity II., 3. ' Specific Performance, 2. Hammond, Best v., 5 P. P. Smith, 409 Evidence VIIL, 14; XVIL, 25. Franklin v., 9 Wr. 507 Agency and Agent, 3. Surely, 24, 25. Hand, Campbell v., 13 Wr. 234 Assumpsit, 14. Land XL, 8. 241 Dams, 1. Haanis V. Hazlett, 4 P. F. Smith, IBS Evidence VIL, 28. Husband and Wife IL, 40. Harbold v. Kuster, 8 Wr. 392 Deeds, 3. Evidence XVII., 10. Harger V. Thomas, 8 Wr. 138 Evidence V., 15; VIL, 15. Harmau V. Cuuimings, 7 Wr. 323 Evidence XX., 8. Wecljanics' Claim, 13, 14, 15. Practice VIL, 1. Harmstead, Wallace v., 8 Wr. 492 Deeds, 4. Fraud IV., 4. Ground-rent, 7, 8. Land XII., 5. Ilarnish, Roam v., 9 Wr. 370 Estoppel, 13. Trespass, !), 10, 11. Harper, Huntziuger v., 8 Wr. 304 Errors and Appeals IV., 29. Evidence VIL, 14. Executions VI., 3. Haiper's Appeal, 5 Wr. 45 Errors and Appeals V., 2. Trusts and Trustees IIL, fl, 10, 11, 12. Decedents' Estates II , 5; V., 8. Harris v. Ins. Co., 14 Wr. 341 Husband and Wife L, ; V., 24, 35. Insurance I., 10 ; V., 3. V. McElroy, 9 Wr. 210 Shelly, 11. Trusts v., 4. Thomas v., 7 Wr. 331 Evidence V., 13, 13. Mortgage V., 3. Vendor and Vendee, IV. , 8, 9. Harrison, Steman v., 6 Wr. 49 Bills of Exchange and Promissory Notes IL, 6. Harrokl v. Lane, 3 P. F. Smith, 308 Trusts and Trustees I., 6. Hart V. Ingram, 13 Wr. 380 Landlord and Tenant, 20. V. Wiight, 8 Wr. 454 Practice IV., 11. Limitations IV., 18. 20 306 HAE — HEA Ilart, Wright v., 8 Wr. 454 Bills of Exchange and Promissory Notes I., Hartje v. Collins, 10 Wr. 268 Vendor and Vendee II., 3. Evidence XX,, 13. Hartle, Miller v., 3 P. F. Smith, 108 Fraud IL, 18. Hartley V. Kirlin, 9 Wr. 49 Debtor and Creditor I., 4, 5; VIL, 2, 3; VIII., 4, 5. Hartley and Minor's Appeal, 3 P. P. Smith, 313 '. Attorneys at Law, 13, 18. Hartlieb v. McLane, 8 Wr. 510 Slieriff, 4. Hartman, Keen v., 12 Wr. 497 Husband and Wife III, 9. V. Ogborn, 4 P. F. Smith, 130 Husband and Wife III., 19. Judgment IV., 11. Mortgage VI., 8 ; VIII., 6. Sheriff, 28. Hartupee, Millingar v., 3 P. F. Smith, 362... Attachment, 9, 10, 11. ' Prize, 1. Ilartz, Ingram v., 13 Wr. 380 Estoppel, 33. Hartz's Appeal, 4 Wr. 209 Husband and Wife V., 11, 12. Hartzell v. Com., 4 Wr. 462 Constitutional Law, 33. Jury, 2, 3. 6 Wr. 453 Decedents' Estates L, 3; IL, 15, 16, 17. Orphans' Court, 6. Harvey v. Clark', 4 P. P. Smith, 142 Landlord and Tenant, 38. Irish v., 8 Wr. 76 Mechanics' Claim, 18. V. R. R. Co., 11 Wr. 428 Railroads L, 41, 42i, 43, 44, 45, 46. Hasbronck, Horner v., 5 Wr. 169 Decedents' Estates III., 5, 6; V., 11. Orphans' Court, 5. Haslett V. Foster, 10 Wr. 471 Ejectment L, 36, 37. Hassler v. Bitting, 4 Wr. 68 Equity IIL, 1, Limitations II. , 4. Hatch v. Bartle, 9 Wr. 166 Estoppel, 11. Evidence III., 29. Execution III, 36. Hathaway v. Elsbree, 4 P. F. Smith, 498. ...Estoppel, 38. Land XVI., 11, 13, 13. Hatz, Shroder v., 11 Wr. 538 Collateral Security, 5. Hatz's Appeal, 4 Wr. 211 Extinguishment, 3,4. Ex'rs, Kramph's Ex'rs v., 3 P. F. Smitli, 525 Errors and Appeals IV., 54. Guarantee and Guarantor, 16, 17. 529 . Terre Tenant 1 Haupt, Waldron v., 2 P. F. Smith, 408. .."....Trespass, 19. ' Hause v. Gilger, 3 P. F. Smith, 413 Husband and Wife IV., 11, 13 ; V., 30. Haws V. Tiernau, 3 P. F. Smith, 192 Former Recovery, 17. Hayden V. Patterson, 1 P. F. Smith, 361, 365.Landlord and Tenant, 29, 30. 363 Evidence IX., 37. Slieriff, 35. Hayes' Estate, McCormick's Appeal, 5 P. F. Smith, 353 Execution IL, 7, 8. 256, 252 Partner, Partnership I., 15; IL, 9; IIL, 31, 32. Hayes V. Paul, 1 P.P. Smith, 139 Courts, 15. Negligence, 5, 6,7, 8, 9. Haymaker's Appeal, 3 P. F. Smith, 306 Fraud I., 41, 42. Hays' Appeal, 3 P. F. Smith, 58 Orphans' Court, 32. 2 P. F. Smith, 449 Decedents' Estates IV., 5. Partition, 10. Hay V. Kennedy, 5 Wr. 387 Carriers, 1, 3. Shoenbergerv., 4 Wr. 133 Land IV., 1. Hazard, Gloninger v., 6 Wr. 389 Ejectmentl., 11. Equity I., 23, 23 ; IL, 1. Hazlett, Hannis v., 4 P. F. Smith, 133 Evidence VIL, 28. Husband and Wife IL, 46. Hazzard V. Nagle, 4 Wr. 178 Evidence VL, 3. Surety, 19. Headley, Koons v., 13 Wr. 168 Justices, 9, 10, 11. Practice VI., 2. Healy, Sinclair v., 4 Wr. 417 Land I., 30, 31. HE A — HEN 307 Heard V. Directors, 9 Wr. 93 School, 4. Heart, Quinn v., 7 Wr. 337 Assumpsit, 12; Evidence XVIL, 18. Heath V. Page, 13 Wr. 180 Debtor and Creditor I., 7; II., 17,18,19,20, 21, 22, 23. Errors and Appeals IV., 16. Mortgage V., 10. Limitations I., 30. 143 Fraud I., 7. Heckman v. Messingen, 13 Wr. 465 Assignee, &c., 18, 19, 30. Hecksher v. Shoemaker, 11 Wr. 349 Bills of Exchange and Promissory Notes I., 13, 14. Heffley, Gardner v., 18 Wr. 163 Contracts III., 7. Heibert, Allen v., 13 Wr. 359 Guarantee and Guarantor, 1. Heidelberg Township Road, 11 Wr. 536 Railroads I., S3 ; Roads, 41. Heilv. Glanding, 6 Wr. 493 Errors and Appeals III., 1; IV., 35. Railroads II., 36. and Lauer's Appeal, 4 Wr. 458 Judgment I., 3. V. Strong, 8 Wr. 364 Estrepement, 1, 3. Laud XII., 4. Heilbrunner V. Wayte, 1 P. P. Smith, 259. ..Bills of Exchange and Promissory Notes L, 17. Fraud IV., 10. Vendor and Vendee III., 13. Heileman, R. R. Co. v., 18 Wr. 60 Errors and Appeals IV., 43. Heilmanv. Canal Co., 14 Wr. 368 Land VIIL, 9, 10. Heilner, Bank v., 11 Wr. 453 Landlord and Tenant, 19. Mortgage!, 9; VL, 4 461 Evidence VL, 18. Heist V. Baker, 13 Wr. 9 Executions V., 10. Land XI., 6. Hellen v. Bryson, 4 Wr.473 Guarantee and Guarantor, 7. Husband and Wife I., 1. Surety, 3, 4, 5, 6. V. Crawford, 8 Wr. 105 Surety, 20. Helfenstein, Ins. Co. v., 4 Wr. 289 Insurance I., 1, 2, 3, 4; II., 1. V. Leonard, 14 Wr. 461 Ejectment IL, 6, 7, 8, 9. Errors and Appeals IV., 44. Evidence III., 70. Helfricker, Keiper v.,-6 Wr. 325 Husband and Wife III., 5. Helser v. McGrath, 2 P. F. Smith, 531 Errors and Appeals IV., 55; Estoppel, 32. Henby v. Warner, 1 P. F. Smith, 276 Deeds, 5. Warner v., 13 Wr. 187 Ejectment IL, 3, 4, 5. Evidence IX., 31. Land V., 3 ; XVI., 7 ; XIX,, 5. Henderson, Allen v., 13 Wr. 333 Trusts VL, 1. Wills VI. , 59, 60. V. Boyer, 8 Wr. 220 Dower, 13, 14. Landlord and Tenant, 13. Pa. R. R. Co. v., 1 P. F. Smith, 815 Negligence, 10, 11. Railroads IL, 42, 43, 51, 52, 53, 54, 55, 56. R. R. Co. v., 1 P. F. Smith, 315.. Carriers, 8. R. R. v., 7 Wr. 449 Railroads IL, 31, 33. Henk, Shay v., 13 Wr. 79 Errors and Appeals V., 30. Taxes, 8. Henlan, Miller v., 1 P. F. Smith, 265 Ejectment I., 86, 87. Speciiic Performance, 4, 5. Henly v. Warner, 1 P. F. Smith, 270 Attorneys in Fact., 3. Henneigh V. Kramer, 14 Wr. 530 Arbitrament and Awards, 13, 14; Account Render, 3. Henry V. Brothers, 13 Wr. 70 Errors and Appeals V., 19. Imbecility, &c., and Lunacy, 4. Judgment v., 10; VIIL, 2, 3. Com. v., 13 Wr. 580 Corporations, IV., 40. Fraud IV., 8. Mandamus, 8. Philadelphia, 7. Milne v., 4 Wr. 353 Debtor and Creditor IL, 7, 8, 9. Fraud I., 4, 5, 6. 308 HEN — HIN Henry V. Milne, 7 Wr. 418 Fraud I., 3t, 23. Staflbrd v., 1 P. F. Smith, 514 Evidence V., 36. 018 Errois and Appeals IV.', 47. Henwood v. Com., 3 P. F. Smith, 434 Crimes, 47, 48, 49. Herdiov. Bilger, 11 Wr. 60 Contracts XII., 1,3, 3. Courts, 11. BrTors and Appeals IV., 15. Estimntes ; Evidence IX., 20. Evidence XV., 3. Young v., 5 P. F. Smith, 172 Land VI., 13, 14. Damages, 33. Heron, Steamship Co. v., 3 P. F. Smith, 280 Corporations v., 39, 40, 41. Set-ofl; 20. Herring, Johnson v., 10 Wr. 415 Assignee, &c., 15. Hershey v. Weiting, 14 Wr. 240 Equity I., 18. Fraud V., 2. Hess' Appeal,7 Wr. 73 Wills II., 3. Hessler v. McGrath, 2 P. F. Smilh, 533 Evidence II., 20. Hettrick v Hettrick, 5 P. P. Smith, i!)0 Execution III., 38. Hettrick v., 5 P. F. Smith, 390 Execurion III., '38. Hevl V. Railroad, 1 P. F. Smith, 469 License, 9. Limitations I., 37 ; IV., 41. Hickory Tree Road, 7 Wr. 139 Courts, 4. Roads, 15, 16. Hiester, East Penna. Railroad Co. v., 4 Wr. 53 Evidence XVIIL, 3, 4. Land VIII., 1, 2. Railroads I., 15, 16. V. Green, 12 Wr. 96 Vendor and Vendee VL, 4, 5. Executions V., 5. V. Shaeffer, 9 Wr. 537 Ground-rent, 9, 10. Hildebrand's Appeal. 3 Wr. 133 Execution IIL, 33. Hill V. Cooley, 10 Wr. 259 Bills of Exchange and Promissory Xotea, II., 18; Evidence XV., 3. Courts, 11. Errors and Appeals IV., 14. Fraud IV., 5. V. Grant, 13 Wr. 300 Evidence VI., 31. Executions VI., 8, 9, 10. Payment, 3. ' Sheriti; 19. T. Hill, 6 Wr. 108 Execution III., 5. Practice VII., 5, 6. 198 Evidence I., 3. 304 Execution IIL, 4, 5. 7 Wr. 531 Ejectment!., 17,18; II., 2, 11, 13. V. Meyers, 7 Wr. 170 Judgment IV., 3, 3. 173 Fraud II., 3,3. 176 Errors and Appeals I., 8; V., 11. Evidence I,, 5; IX., 5, 6, 7. Meyers v., 10 Wr. 9 Former Recovery, 10. I.') Limitations I., 23. Ejcctmcnl I., 19; IIL, 6. Y Oliphant, 5 Wr. 375 Ejectment I., 12, 13,14, 15. Evidence VI., 23. Land HI., 3. liis Pendens, 3. T. Robinson, 8 Wr. 380 Execution VI., 6. T. Sewald, 3 P. F. Smith, 371 Debtor and Creditor X., 5. Husband and Wife I., 8. Real Estate, 5. Hilgeit, Com. v., 5 P. F. Smith, 336 Decedents' Estates II., 47. Himmelrich, Crossgrove v., 4 P. F. Smith, 303 Evidence I., 8, 9; X., 10, 11. Vendor and Vendee II., 9 ; III., 14. Hinds, R. R. Co. v., 3 P. F. Smith, 513 Railroads II., 57, 58. Hine, Stout v., 9 Wr. 30 Fraud IIL, 5. Hinuey v. Phillips, 14 Wr. 382 Husband and Wife V., 39. HIE — HOE 309 Hireen, Canal Co. v., 8 Wr. 418 Land VIII., 8; Railroads I., 19. History of the Orphans' Court, given per Woodward, J., 5 Wr. 178 Orphans' Court, 5. Hitchman, Com. v., 10 Wr. ^m Crimes, 18. miner's Appeal, 4 P. P. Smith, 110 Evidence V., 37, ?.8. Husband and Wife I., 10, 11. Hoard v. Wilcox, 11 Wr. 51 Abatement, 7. Corporations v., 31, 33, 33. Execution V., 9. Hoch, Steininger v., 3 Wr. 368 Bills of Exchange and Promissory Notes II., 1, 3, 3. Errors and Appeals X., 1. 6 Wr. 433 Errors and Appeals IV., 13. Evidence III., 33. Hodges, Grove v., 5 P. P. Smith, 504 Arency and Agent, 9, 10, 11; Contracts, VI., 6, 7. Land IX., 14, 15, 16. 518 Limitations I., 43. Hoesback, McGovern' v., 3 P. P. Smith, 176 Stamps, 1, 3; Evidence XX., 34; Insol- vents, 3. Hoff, Filbert v., 6 Wr. 97 Trespass, 13, 13. Hotfer V. Miller, 3 P. F. Smith, 156 Evidence IX., 31. Fraud II., 19. Hoffman v. Bechtel, 3 P. F. Smith, 190 Guarantee and Guarantor, 13, 14. V. Poster, 7 Wr. 137 Affidavit, 18; Bills of Exchange and Prom- issory Nofes, II., 8. v. Kemerer, 8 Wr. 453 Evidence IV., 8. Seduction, 1. V. Toner, 13 Wr. 331 Husband and Wife II., 43. Weakland v., 14 Wr. 513 Set-off, 17. Vendor and Vendee IV., 33. Hoffman's Appeal, 8 Wr. 95 Execution V., 8. Holben, Diehl v., 3 Wr, 313 Execution III , 33, 34, 35, 36. Holler, Caldwell v., 4 Wr. 160 Evidence XVIL, 4. 167 -Errors and Appeals III., 11 ; IV., 56. 168 Land I., 3, 5, 6, 7, 8. Hollidaysburg, Patton v., 4 Wr. 30G Estoppel, 3. Fraud II., 1. Hollinger, Graham v., 10 Wr. 55 Deceit, 1. Evidence V., 35. Hollingshead v. Nauman, 9 Wr. 140 Limitations I., 17, 18, 19, 30, 31. Hollingsworth's Appeal, 1 P. P. Smith, ^ 518 Child, 1. Guardian, 8. Wills IL, 14, 15, 16, 17. Hollister v. Davis, 4 P. P. Smith, 508 Debtor and Creditor IV., 5. Set-off, 23. Ilolloway, Com. v., 6 Wr. 446 Constitutionnl Law, 28. Holmes' Appeal, 3 P. P. Smith, 339 Decedents' Estates IV., 8; VI., 13. Holmes v. Johnson, 6 Wr. 159 Death, 3. Evidence XVIL. 6. Evidence XX., 4, 5. Wallace v., 4 Wr. 437 Decedents' Estates III., 3, 3. V. Wallace, 10 Wr, 300 Case Stated. Holt V. Martin, 1 P. P. Smith, 499 Landlord and Tenant, 33, 34. Hoover V. Epler, 3 P. P. Smith, 523 Lien, 6, 7, 8. Hopkins V. Com., 14 Wr. 9 Crimes, 38, 39, 30. Errors and Appeals VIL, 2. Keen v., 13 Wr. 445 Practice IV., 17. Hopper V. Childs, 7 Wr. 310 Mechanics' Claim, 13. McMurray v., 7 Wr. 468 Decedents' Estates IIL, 13, 14, 15 ; Courts, 5, 6, 7, 8. Judgment V., 3, 3, 4, 5, 6, 7, 8; VL, 3. Vendor and Vendee IV., 13, note. Horan V. Weiler, 5 Wr. 470 Contracts VL, 4. Pleading, Pleas, 10. Horner v. Hasbrouck, 5 Wr. 169 Dece^knts' Estates IIL, 5, 6; V., 11. 178 Orphans' Couri, 5. 310 HOR — HUG Horner V. Hower, 3 Wr. 126 Courts, 1, 2. 475 Evidence XX., 25. Payment, 3. Practice VII., 11. Hornstein v. Atlantic R. R. Co., 1 P. F. Smitli, 87 Railroads I., 45, 46. Horstman v. Gerlcer, 13 Wr. 383 Mortgage V., 11. Horton v. Bomberger, 11 Wr. 493 Contracts VI., 11. V. Miller, 8 Wr. 35(1 Judgment VIL, 3, 3. Horwitz V. Norris, 13 Wr. 213 Dower, 15. Wills v., 6. Hosldns V. Woodward, 9 Wr. 42. Debtor and Creditor X., 3. Land XVII., 1. Mortgage I., 6, 7. Real Estate, 3. Hospital, Allegheny v., 13 Wr. 123 Corporations IV., 34. (Christ Churoh)^ v. Puechsel, 4 P. P. Smith, 71. Ground-rent, IB. Constitutional Law, 1, 48. Contracts V., 4. Hottenstine v. Clement, 5 Wr. 503 Courts, 3. V. Auten, 7 Wr. 323 Arbitrament and Awards, 10. R. K. Co. v., 11 Wr. 28 Evidence II., 13; Railroads L, 41. House V. Adams, 13 Wr. 260 , Bills of Exchange and Promissory Notes II , 19, 20, 21. Drennen v., 5 Wr. 30 Evidence V., 7. Kennedy v., 5 Wr. 39 Mechanics' Claim, 5. 6. Houseal and Smith's Appeal, 9 Wr. 484 Debtor and Creditor VIL, 4. Partner, Partnership II. , 9. Householder v. Baird, 8 Casey, 6S Malicious Pj-osecution, 7. Housekeeper's Appeal, 13 Wr. 141 Execution VIII., 16. Houserv. Ass'n, 5 Wi'. 479 Building Association, 3. V. Lament, 5 P. F. Smith, 311 Ejectment I., 46. 317 Fraud II., SO. Housum V. Rogers, 4 Wr. 190 Pleading, Pleas, 6. Set-off, 1. Howard, Maguire v.. 4 Wr. 391 Land VIL, 1, 2, 3. Howe V. Commissioners, 11 Wr. 361 Counties, 4. Mandamus, 7. Hower, Horner v., 3 Wr. 126 : Courts, 1, 3. Evidence XX., 35. ' Payment, 3. Practice VIL, 11. Hower's Appeal, 5 P. F. Smith, 337 Decedents' Estates V., 30, 31, 32. Howser v. Com., 1 P. F. Smith, 333 Crimes, 1, 3, 3, 4, 5, 6, 7. Evidence III., 59; IV., 13. Evidence XIII. , 5, 6, 7, 8, 9, 10. 11. Hoy, Stevenson v., 7 Wr. 190 Evidence IL, 12; V., 10. 191 Evidence V., 10. Agency, 1 ; Evidence XVIL, 8 ; XX., 7. Guarantee and Guarantor, 3. Partner, Partnershij) III., 7. Huber v. Reilley, 3 P. F. Smitl;, 112 Constitutional Law, 60. Election, 34. Hubert, Allen v., 13 Wr. 3.19 Surety, 15. Huff V. McCauley, 3 P. F. Smith, 206 License, 8. Huffsmith, AUemose v., 9 Wr. 121 Debtor and Creditor X., 4. Land L, 34; V., 2 ; XL, 4 ; XVIL, 1. Real Estate, 4. V. AUemose, 9 Wr. 131 Pleading, Pleas, 17. Hughes, Barr v., 8 Wr. 516 Replevin, 9. V. Com., 12 Wr. 66 Surety, 10. Hughes v., 4 P. F. Smith, 340 Evidence VIL, 29. Limitations IV., 43, 44. Minors' Appeal, 3 P. P. Smith, 500... Decedents' Estates IL, 42; VIL, 17. V. Peaslec, 14 Wr. S.")" -.Errors and Appeals V., 26. R. R.Co. v., 3 Wr. 531 Trover, 3, 4, 5. V. Stevens, 7 Wr. 197 Land L, 17, 18, 19. Tanner v., 3 P. F. Smith, 291 Evidence XIX., 9. HUG -INS 311 Hughes' Appeal, 1 P. F. Smith, 433 Day, 1. Hugus, Liohty v., 5 P. F. Smith, 434 Limitations II., 15. Hull V. MoCauley, 3 P. F. Smith, 206 Fraud II., 30. Hulseman v. Eems, 5 Wr. 396 Ek^ction, 1, 2, 3. Equity I., 9. Humbert, Critcbfield v., 3 Wr. 437 Trespass, 2, 3. Walker v., 5 P. F. Smith, 407 Errors and Appeals IV., 11. Mesne Profits, 1, 3. Hummell, R. R. Co. v., 8 Wr. 875 Errors and Appeals IV., 30. Eailroad.s II,, 2:i. Humphrey, Green v., 14 Wr. 313 Vendor and Vendee II., 8. Hunsiclier, Stoner v., 11 Wr. 514 Fences. Huirt V. R. R. Co., 1 P. F. Smith, 475 Nesligence, 13, 14, 15, 16, 17. Hunter, Dougherty v., 4 P. F. Smith, 380... Agency and Agent, 8. Attachment, 17, 18. Debtor and Creditor I., 16. Scott v., 10 Wr. 192 Negligence, 3. Hunter's Appeal, 4 Wr. 194 Husband and Wife II., 5, 6. Equity I., 2, 3. Road, 10 Wr. 2'50 Roads, 21. Huntzinger v. Harper, 8 Wr. 204 Errors and Appeals IV., 29. Evidence VII., 14. Executions VI., 3. Hursh V. North, 4 Wr. 341 Limitations IV., 3. Huss, Stephens v., 4 P. P. Smith, 30 Land XIX., 7. V. Stephens, 1 P. F. Smith, 383 Deeds, 6, 7. 288 Shelly, 21. Hutchinson v. Bank of Wheeling, 5 Wr. 42. Limitations III., 1; IV. , 4. Trover, 6, 7, 8. V. Gormley, 12 Wr. 370 Attachment, 7. V. Schimmelfeder, 4 Wr. 396 ....Land X., 1. Hutchinson's Appeal, 11 Wr. 84 Wills II., 7. Estate, llWr.94 Decedents' Estates VIL, 10. Hyatt, King v., 5 Wr. 339 Attachment, 38. Ihmsen's Appeal, 7 Wr. 431 Trusts and Trustees III., 15. Illig, Moyer v., 3 P. F. Smith, 444 Justices, 3. Trespass, 20. Indiana Co., Road in, 1 P. F. Smith, 296. ...Roads, 29. Ingersoll V. IngersoU, 13 Wr. 249 Divorce, 7. Ingram v; Hartz, 13 Wr. 380 Estoppel, 23. Landlord and Tenant, 20. In Re North Whitehall Tw'p, 11 Wr. 156.. ..Notice, 2. Township, 1. Ins. Co., (American Life,) Dungan v., 3 P. F.'^Smith, 253.Mortgage VI., 5. v. Austin, 6 Wr. 257 Trusts and Trustees III., 13. 366 Mortgage IL, 6, 7. Beatty v., 2 P. F. Smith, 456 Errors and Appeals IV., 53. V. Berger, 6 Wr. 285 Insurance IV., 1. 393 Execution L, 1. T. Bovrman, 8 Wr. 89 BillsofExcliangeandPromissoryNotesI.,9. Insurance III., 19. 91 Insurance II., 8. Brown v., 5 Wr. 187 Insurance III., 14. V. Chambers, 10 Wr. 485 Trusts V, 8. V. Chester, 7 Wr. 491 Errors and Appeals V., 13. (Citizens') v. Marsh, 5 Wr. 386.. ..Insurance IIL, 1, 3. (Com.,) Parke v., 8 Wr. 433 Practice L. 3. V. Sennett, 5 Wr. 161 Evidence XL, 1, 3. Evidence XIX., 1. Insurance IL, 3. Conrad v., 4 P. F. Smith, 373 Attachment, 30. Errors and Appeals IV., 23. v. Cooper, 14 Wr. 331 Evidence XL, 7. Insurance L, 8; IIL, 12, 13. Cooper v., 14 Wr. 299... Evidence XL, 5, 6. Insurance IIL, 11. Coursin v., 10 Wr. 333 Evidence XL, 4. Insurance I., 11; II. , 13. 312 mS — IRO lus. Co., Dungan v., 2 P. P. Smith, 253 Estoppel, 30. F)field v., 11 Wr. 166 Insurance V., 2. T. Field, 9 Wr. 120 ' Attachment, 6. Insurance VI., 7. V. Gottsman, 13 Wr. 151 Insurance III., 3. Harris v., 14 Wr. 341 Hushand and Wi'e I., 6. Plusband and Wife V., 24, 35. Insurance I., 10; V., 3. V. Helfenstein, 4 Wr. 289 Insurance I., 1, 2, 8, 4; II., 1. (Lycoming,) Beatty v., 2 P. F. Smith, 456 Insurance I., 18. Mitchell v., 1 P. F. Smith, 402 Insurance I , 17. V. Schreffler, 8 Wr, 269 Insurance II., 5. v. Updegraff, 4 Wr. 311 Insurance II., 2. V. MoAnally, 9 Wr. 41 Insurance III., 20. Y. McLaughlin, 3 P. F. Smith, 485. Evidence XI., 9. Insurance I., 14, 15. V. Marr, 10 Wr. 504 Collateral Security, 3. Eviderce III., 87; X., 6 ; XIL, 8, 4; XIX., 6. Partners, Partnership III., 10. Merrick v., 4 P. F. Smith, 377 Insurance VI., 6. Y. Mills, 8 Wr. 341 Insurance IV., 3. Y. Mitchell, 13 Wr. 367 Insurance L, 7; II., 4; III., 4, 5, 6, 7, 8, 9, 10. (Northwestern,) Suydam v., 1 P. F. Smith, 399. Insolvency, Insolvent, 7. (Phoenix) v. Cochran, 1 P. F. Smith, 143 Insurance III., 31, 22, 23, 34. 155 Insurance VI., 5. Y. Schollcnberger, 8 Wr. 259 Practice IV., 5, 6. 356 Insurance II., 9, 10, 11, 13. 259 Land XII., 3. Pleading, Pleas, 15. Y. Schreffler, 8 Wr. 369 Evidence II., 11 ; X., 3. Evidence XL, 3. Insurance VII., 1. Pleading, Pleas, 16. Practice IV., 7. Sloatv., 13 Wr. 14 Insurance VI., 4. Y. Spencer, 3 P. F. Smith, 853 Evidence XL, 8. Insurance II., 1.5, 16; VL, 3, 3; VII., 4. Stout v., 13 Wr. 14 Insurance II., 17. Suydam v., 1 P. F. Smith, 399 Corporations III., 9; V., 50. Ec|Uity I., 61, 63. . Swain Y,, 4 P. F. Smith, 455 Partition, 31. Specific Performance, ". Y. UpdegrafF, 7 Wr. 350 Errors and Appeals II., 5. Evidence II., 8. Insurance I., 9,10; IL, 6, 7; III., 15, 16, 17, 18. Vallanoe Y., 6 Wr. 441 Assianee, etc., 12. Fraud L, 15. Woodhouse v., 4 P. F. Smith, 307.. Attachment. 16, 17; Constitutional Law, 75. Irish v. Harvey, 8 Wr. 76 Mechanics' Claim, 18. Iron Co. V. Carbon Co., 8 Wr. 3.51 Corpuriitions L, 1, 8. v. Erie, 5 Wr. 841 Land XIL, 7, S, 9. v. Pales, 5 P. F. Smith, 90 Errors nnd Appeals VI., 14. Lanj XVI., 14, 1.1. Phoenixville v., 9 Wr. 135 Corporations, IL, 13; IV., 18. Riiilroads IIL, 7, 8 ; Koads, 30. Y. Rhule, 3 P. P. Smith, 93 Costs, 13. Set-off, 31. Y. Tomb, 13 Wr. 387 Evidence IIL, 43. LandVL,4, 5, 6, 7;XX., 1. 3 P. P. Smith, 433 Ejectment II. , 36. Troxell v.. 6 Wr. 513 Assumpsit, 3. IRO — KAI 313 Iron Works v. Wilcox, 8 P. F. Smith, 377..Piuctice IV., 20. Irwin V. R, R. Co., 7 Wr. 488 Attacliment, 3. V. Sliultz, 10 Wr. 74 Arbitrament and Award, 2; Assump.sit, 3, 4,5. Smedley v., 1 P. F. Smith, 44.5 Roads, 30, 31, 83. Ives, Chalker v., 5 P. F. Smith, 81 Bounties, 2 ; Constitutional Law, 77. Statutes, 14. Jack V. Morrison, 13 Wr. 113 '. Assumpsit, 10. Frauds III., 10, 11. Practice IV., 14. Jackson, Cadmus v., 2 P. F. Smith, 393 Decedents' Estates III., 39. Errors and Appeals V., 33, 34. Mortgage VI., 6. Orpbaus' Court, 34. Taxes, 37. V. Clymer, 7 Wr. 79 Set-off, 4. V. Lloyd, 8 Wr. 82 Attachment, 3. Errors and Appeals V., 14. Practice IV., 4. James v. Milliken, 5 Wr. 253 Banks and Bankers, 5, 6. Jamison, Gregg v., .5 P. F. Smith, 468 Bounties, 5, 6. Errors and Appeals IV., 58. Evidence IV., 14 ; Quo Wairanto, 3, 4. Jauretche v. Proctor, 13 Wr. 466 Wills VL, 57. Jayne^v. Mickey, 5 P. P. Smith, 260 Limitations II., 14. Jufferies, Steelwagon v., 8 Wr. 407 Evidence XX., 10. Execution VII., 3. Jenks, Kinterv., 7 Wr. 445 Ejeclment III., 3. Execution v., 77. Wills VL, 30. Jersey Shore, Nippenose v., 13 Wr. 406 Errors and Appeals X., 4. 409 Poor, 7. 8. Jessup V. Loucks, 5 P. F. Smith, 350 Land XIIL, 17. Pleading, Pleas, 25. 363 Evi.lence IL, 31 ; V., 41. Dams, 4, 6. Johnson, City v., 11 Wr. 383 Mandamus, 7. Philai elpliia, 6. Dark v., 5 P. P. Smith, 164 Land IX., 16, 17, 18, 19, 30. V. Fritz, 8 Wr. 449 Estoppel, 10. Evidence v., 16. Husband and Wife V., 17. V. Fullerton, 8 Wr. 4'j6 Ejectment IL, 13 ; IV., 1, 3, 3. LIusband and Wile II., 19, 20, 31. V. Herring, 10 Wr. 415 Assignee, 15. Holmes v., 6 Wr. 159 Death, 2. Evidence XVIL, 6 ; XX., 4, 5. McDowell v., 13 Wr. 483 Roads, 33. v. Mehaffey, 7 Wr. 308 Debtor and Creditor X., 3. Real Estate, 1. 309 Land XVIL, 3. R. R. Co. v., 4 P. F. Smith, 137.. Affidavit, 88. Corpo:-ations VL, 18, 19, 20, 21. Mortgage III., 53; V., 26. Joues, Bank v., 6 Wr. 536 Attachment, 1. Debtor and Creditor V., 1. Banks and Bankers, 16. V. Bank, 8 Wr. 353 Attachment, 1. Evidence III., 38. V. Milliken, 5 Wr. 353 Debtor and Creditor II. , 10; IV., 3. Parshall v., 5 P. F. Smith, 153 Land I., 58, 59. Preston v., 14 Wr. 54 Evidence VII., 20. Fraud, 36, 37. Shimerv.,11 Wr. 868 Surety, 8, 4, 5, 6. Journeay, Brougbton v., 1 P. F. Smith, 35.. Notice, 5. 6, 7, 8. ' Juniata County, Allison v., 14 Wr. 351 Corporations IV., 41. Interest, 7. Kahl, Guthrie v., 10 Wr. 331 Mortgage IL, 12 ; V., 5, 6. Kain, McLaughlin v., 9 Wr. 113 Land XL, 3; XVIL, 3. 314 KAN — KEP Kane, McLaughlin r., 9 Wr. 113 Limitations I., 16. Karper, Noll v., 3 P. P. Smith, 97 Deeds, 13. Evidence VIL, 25; XIL, 6. Imbecility, 0. Kater v. Steinruck, 4 "Wr. 501 Decedents' Estates IL, 4; IIL, 4; V., 7. Mortgage L, 1. Kauffman's Appeal, 5 P. P. Smith, 383 Equity 1., 97. Specific Performance, 8, 9. Keagy V. Com., 7 Wr. 70 Set-off, 3. Keefer Y. Schwartz, 11 Wr. 503 Decedents' Estates IL, 29. Wills v., 5. Keelerv. Schmerfz, 10 Wr. 135 Contracts VIIL, 7; XIIL, 6. V. Taylor, 3 P. P. Smith, 4C7 Equity I., 63, 64. Keely v. Tibbals, 3 P. P. Smith, 408.' Attachment, 9, 10, 11, 12. Keen v. Coleman, 3 Wr. 299 Husband and Wife IIL, 1. V. Hartman, 13 Wr. 497 Husband and Wife IIL, 9. V. Hopkins, 12 Wr. 445 Practice IV., 17. V. Kleckener, 6 Wr. 529 Execution VL, 14; VIIL, 3, 4, 5. V. Vaughan, 13Wr. 477 Accord, 3. Payment, 1. Practice IX., 1. K.eenan v. Company, 8 Wr. 55 Crimes, 11, 13, 13. 60 Railroad IL, 33. Keener, Malone v., 8 Wr. 107 Fraud IIL, 3, 4. Kehr, Becker v., 13 Wr. 233 Wills V., 7, 8. Keichline v. Keichline, 4 P. P. Smith, 75 Evidence IX,; 32. Husband and Wife IL, 45. Keiperv. Helfricker, 6 Wr. 325 Taxes, 5. Keith, Bennett v., 8 Wr. 291 Husband and Wife IIL, 5. Keller, Brown v., 7 Wr. 104 Debtor and Creditor IL, 11, 13. Fraud L, 17. v. Rhoads, 3 Wr. 513 Limitations IL, 3, 3. 530 Errors and Appeals X., 3. Pleading, Pleas, 2, 3. Kellum v. Smith, 3 Wr. 241 Evidence L, 1. Kelly V. Association, 8 Wr. 148 Building Association, 1. Graff v., 7 Wr. 453 Judgment VL, 1. Vendor and Vendee IV., 12. V. Green, 3 P. F. Smith, 302 Execution V., 11, 12. King v., 1 P. F. Smith, 30 Assignee, &c., 36. 36 Interest, 8. Order, 1. Singer v., 8 Wr. 145 .' Evidence X., 4, 5. Partner, Partnership IIL, 11, 13, 13. Kemmerer, Hoffman v., 8 Wr. 458 Evidence IV., 8. Sednction, 1. Kendall, Struthers v., 5 Wr. 214 i.. Bills of Exchange and Promissory Notes I., 3, 3. Evidence IIL, 13, 14 ; XIL, 1, 3. Fraud IV., 3. Kennedy V. Dean, 10 Wr. 346 Costs, 4. Hays v., 5 Wr. 378....' Carriers, 1, 2. V. House, 5 Wr. 39 Mechanics' Claim, 5, 6. Y. Kennedy, 7 Wr. 413 Equity L, 38, 29, Fraud IL, 4, 5. 5 Wr. 185 Judament VIL, 1. Set-oft; 2. Oswald Y., 12 Wr. 9. Errors and .\ppeals IIL, 3; V., 18. Evidence XX., 21. Trout Y., 11 Wr.387 Contracts XIIL, 7. Trespass, 16, 17, 18. Kenton v. Vandegrift, 6 Wr. 339 Equity I., 7. Kentz, Bradford v., 7 Wr. 474 Dower, 8, 9, 10, 11, 12. Orphans' Court, 10. Kenyon Y. Stewart, 8 Wr. 179 Constitutional Linv, 32. Limitations IV., 24. Wills IIL, 5, 6. KephartT. Colvin, 12 Wr. 348 Limitations IV., 20. KEP — KIR 315 Kephart, Whitcomt) v., 14 "Wr. 85 Agency and Agent, 6 ; Attorneys at Law, 7 ; Contracts XIII., 17; Fraud III., 14. Kepner V. Com., 4 Wr. 134 Corporations IV., 6. Kepple's Appeal, 3 P. F. Smith, 311 Trusts V., 31. Wills VI., 96. Kerns, O'Eeilly t., 3 P. F. Smith, 314 Contracts XII., 6. 316 Estimates. Kerrv. Trego, 11 Wr. 393 Equity I., 44, 45, 46, 47. Intrusion, 1. Yaw v., 11 Wr. 333 Limitations IV., 33, 34, 35. Kessler, Smith v., 8 Wr. 148 Bills of Exchange and Promissory Notes I., 10. Pleading, Pleas, 19. Keyser, K. P. E. R. Co. v., 4 P. P. Smith, 94 Affidavit, 33. Renziehauser v., 13 Wr. 351 Husband and Wife V., 23. Trusts v., 13. Rich v., 4 P. P. Smith, 86 Landlord and Tenant, 36. V. Rodgers, 14 Wr. 275 Evidence III., 48. Trover, 16, 17. Smith v., 4 P. F. Smith, 86 Errors and Appeals VIII., 16. Wallace v., 1 P. P. Smith, 493 Decedents' Estates V., 18, 19. Kier V. Peterson, 5 Wr. 357 Land IX., 6, 7. Killam v. Killam, 3 Wr. 130 Bastard, 1, 3. Killinger, Bachman v.. 5 P. F. Smith, 414.. Husband and Wife V., 33. Bitzer v., 10 Wr. 44 Former Recovery, 11, 13, 13, 14. Set-off, 9. Killion v. Power, 1 P. F. Smith, 439 Courts, 18. Negligence, 13. Kilpatrickv. Bridge Co., 13 Wr. 118 Corporalions IV., 36; V., 36; Contracts IV., 3. King v. Faber, 1 P. F. Smith, 387.'. Attachment, 14, 15. Evidence II., 18; III., 57, 58; VL, 37; XIX., 8. 388 .Jury, 6. Verdict, 1. Courts, 17. v. Hyatt, 5 Wr. 339 Attachment, 38. V. Kelly, 1 P. P. Smith, 36 Assignee, &o., 26. Interest, 8. Order, 1. V. Shoemaker, 4 Wr. 107 Contracts II., 3. Fraud IIL, 1,3. v. Steiner, 8 Wr. 99 Contracts L, 3. Kingsbury, Appeal of, 8Wr. 460 Evidence XVIL, 11. Decedents' Estates VL, 11. Kinike, Mather v., 1 P. F. Smith, 435 Constitutional Law, 1 ; Contracts V., 3, 3. Ground-rent, 15, 18. Kinney v. Glasgow, 3 P. F. Smith, 141 Intestate, 6. Wills VL, 94. Kinter v. Jenks, 7 Wr. 445 Ejectment III., 3. Executions V., 7. Wills VI. , 30. Kirk, Bridge Co. v., 10 Wr. 128. Statutes, 1, 3. 138, 139 Corporations IV., 19. V. Carr, 4 P. F. Smith, 385 Decedents' Estates II., 44. Ejectment I., 41. Evidence VIIL, 13, 13. Monongahela Co. v., 10 Wr. 113 Water, 10, 11, 12, 13. Kirkland v. Thompson, 1 P. F. Smith, 316.Evidence IX., 28. Land II., 34. 318.Ejectmpnt II., 24. Land XX., 4. Kirkpatrick, Baughv., 4 P. P. Smith, 84.. ..Attachment, 19. Factors. v. Kirkpfitrick, 3 Wr. 388 Malicious Prosecution, 1, 3, 3. T. Lex, 13 Wr. 122 Conspiracy, 2. Partner, Partnership I., 13, 14. Practice VII., 10. 316 KIR — LAM Kirlin, Hartley v.,9"W"r. 49 Debtor and Creditor I., 4, 5; VII., 3, S; VIIL, 4, 5. Kisterbock's Appeal, 1 P. F. Smith, 483 Corporations V., 51. 480 Auditors, 2. Kitclienman, McCarty v., 11 Wr. 239 Easement, 1. Kittauuing y. Brown, 5 Wr. 270 Constitutional Law, 16. Counties, 1. License, 1, 2. Limitations IX., 9. Kleckener, Keen v., 6 Wr. 539 Execution VI., 14 ; VIIL, 3, 4, 5. Kline v. McKee, 10 Wr. 519 Judgment VII., 4. Set-off, 11. Kline's Appeal, 3 Wr. 463 Decedents' Estates V., 5, 6. Husband and Wife 11.', 3, y, 4; IV., 1, 2. Orplians' Coui't, 1, 3. Trusts and Trustees II., 5, 6. Vendor and Vendee IV., 4. Klopp V. Bank, 3 Wr. 489 Evidence III., 3, 3. 10 Wr. 88 Banks and Bankers, 9. Subroaation, 3. V. Witmoyer, 7 Wr. 334 Fraud' I., 18, 19, 30. Sheriff, 12, 13, 14. 236 Execution VII., 1. Knapp, Lone v., 4 P. F. Smitli, 514 Fraud I., 49. V. Oil Co.. 3 P. F. Smith, 185 Affidavit, 19, 20. Knauss' Appeal, 13 Wr. 419 Judgment IV., 7. Kneedler V. Lane, 9 Wr. 238 Constitutional Law, 40. Equity L, 36, 37; IIL, 3. Koons V. Headley, 13 Wr. 168 Justices, 9, 10, 11. Practice VI., 2. Kramer, Henneigh v., 14 Wr. 530 Account Render, 3; Arbitrament and Awards, 13, 1-t. V. Lett, 14 Wr. 495 Crimes, 15. Malicious Prosecution, 6. Kramph's Executors v. Hatz's Executors, 2 P. F. Smith, 525. Errors and Appeals IV., .54. Guarantee and Guarantor, 16, 17. 529.Terre Tenant, 1. Kreitzer, Bogle v., 10 Wr. 465 Decedents' Estates IIL, 17. Errors and A)ipeals I., 10; IV., 84, 35. Kreutz, McKnisht v., 1 P. F. Smith. 333.. ..Land IX., 9; XII., 17, 18, 19, 20. v. McKnight, 3 P. F. Smith, 319... Land XII., 21, 33. Kroemer v. Colhoun, 2 P. F. Smith, 10.:.... Ground-rent, 17. Kugler's Appeal, 5 P. F. Smitli, 133 Elections, 23, 33. Kuhn V, Newman, 3 Casey, 337 Trusts V., 7. Kunkle, Mahon v., 14 Wr."216 Attachinrnt, 8. Kunzman, Com. v., 5 Wr. 439 Crimes, 8, 9. Elections, 7, 8. Kusenberg v. Browne, 6 Wr. 173 Evidence III., 31. Trover, 13. Vendor and Vendee IIL, 5. 187 Wharf, 1, 3. Kussart, Maples v., 3 P. P. Smith, 848 Estoppel, 34. ^ Orphans' Court, 30. Kuster, Harbold v., 8 Wr. 392 Deeds, 3. Evidence XVII., 10. Kulz's Appeal, 4 Wr. 90 Husband and Wite V., 4, 5, 6, 7, 8. Limitations IV., 1. Kyle and Dunlap's Appeal, 9 Wr. 353 Execution IIL, 8. Lackawanna Co. v. Doak, 2 P. F. Smith, 379. Errors and Appeals IV., 53. Railroads L, 48. V. l/uzerne, 6 Wr. 434 Corporations I., 8. Laley, Noble v.; 14 Wr., 381 Evidence III., 49. Practice II., 3 ; VIL, 14. Lamb v. Lynd, 8 Wr. 336 Mandamus, 4, Philadelphia, 4. Lamberton v. Stouffer, 5 P. F. Smith, 284. ..Landlord and Tenant, 43. Lamout, Ilouser v., 5 P. F. Smith, 811 Ejectment I., 46. 817 Fraud II., oO. LAN — LEH 317 Lancaster, Bausman v., 14 Wr. 208 Taxes, 16. Township, 3. Lance v. Griner, 3 P. F. Smith, 304 Contracts XIII., 37. Limitations IV., 36. Lance's Appeal, 5 P. F. Smith, 16 Equity IV., 4. Land XIII., 16. Railroads I., 42, Land Co., E. "W". Co. v., 4 P. F. Smith, 28.. Equity I., 65, 66, 67, 68. Railroads III., 13, 14, 15. Landis, CofBn v., 10 Wr. 436 Contracts I., 4; IX., 7. Stricldery., 11 Wr. 518 Contracts VIII., 8. Lane, Harrold y., 3 P. F. Smith, 268 Trusts and Trustees L, 6. Kneedler v., 9 Wr. 238 Constitutional Law, 40. Equity I., 36, 37; III., 3. Langdon, Gould v., 7 Wr. 365 Corporations IV., 17. Former Recovery, 3, 4. Indictment, 1. Lanning, Dixey v., 13 Wr. 143 Decedents' Estates V., 17. Orphans' Court, 14. Lapsley's Appeal, 3 Wr. 334 Decedents' Estates II., 3. Large' s Appeal, 4 P. F. Smith, 383 Decedents' Estates V., 27, 28; VL, 14. Estoppel, 37. Larkin y. McMullin, 18 Wr. 29 Husband and Wife, IL, 89, 40, 41. Lathrop, Smith y., 8 Wr. 336 Abatement, 1. States of the Union, 1 ; Lis Pendens, 1. Lau y. Mumma, 7 Wr. 267; Contracts XIII., 3. Evidence VL, 9, 10; XVIL, 9. Lanbach, Miller y., 11 Wr. 154 Water, 14. Lauek's Apjaeal, 8 Wr. 395 Execution III.', 19. Lauer, Gaul y., Schall's Appeal, 4 Wr. 170.. Execution V., 2. y. Lee, 6 Wr. 165 Vendor and Vendee IV., 6. 171 Ejectment I., 3, 4, 5, 6, 7, 8, 9, 10. Land XIII., 1. 172 Evidence XVIL, 5. Laughlin y. Lorentz, 13 Wr. 275 Partner, Partnership L, 10, 11, 12; III., 23 34, 25. Laycock, Campbell y., 4 Wr. 448 Contracts IL, 1 ; VL, 1. Guarantee and Guarantor, 6. Leach y. Ansbacher, 5 P. F. Smith, 85 Equity III., 7. Trusts III., 33, 34, 35. Learn, Pc'iool District v., 3 P. F. Smith, 180 Contracts VL, 15, 16, 17. Leber, Gross y., 11 Wr. 520 Equity I., 54. Evidence VIL, 18. Lee, Gould v., 5 P. F. Smith, 99 Evidence XVIL, 36. y. Gould, 11 Wr. 398 Contracts XIIL, 8. Lauer y., 6 Wr. 165 Vendor and Vendee IV., 6. 171 Ejectment I., 3, 4, 5, 6, 7, 8, 9, 10. Land XIIL, 1. 173 Evidence XVIL, 5. Leech, Com. y., 8 Wr. 332 Quo Warranto, 1. Leech's Appeal, 8 Wr. 140 Decedents' Estates IX., 1, 2. Leeds, Com. v., 8 Wr. 333 Philadelphia, 3. White v., 1 P. F. Smith, 187 Affidavit, 38. Lefever y. Underwood, 5 Wr. 505 Partner, Partnership I., 7. Legal-tender Cases, 3 P. F. Smith, 9 Constitutional Law, 1. 9,10 Contracts v., 1. 100 Errors and Appeals X,, 5. Lehigh Coal and Nay. Co., Emlen v., 11 Wr. 76 Interest, 4, 5. Co., Ashtony., 13 Wr. 261 Corporations V., 38, 43. Mortgage I., 12. y. Com,, 5 P. F, Smith, 448 Corporations L, 15, 16. Iron Co., Troxell v., 6 Wr. 513 Assumpsit, 3. License, 3. Brown y., 13 Wr. 270 Corporations V., 44. Buck Mountain Coal Co. y., 14 Wr. 91 Corporations IL, 18 ; VIIL, 31, 23. Equity I., 17. 818 LET — LOG Leiby V. Wilson, 4 Wr. 63 Mechanics' Claim, 3, 4. Leiby's Appeal, 13 Wr. 182 Decedents' Estates IV., 4. Lcidig- V. Coovev, 11 Wr. 534 Contracts III., 5. Lendmeyer, Ass'n V., 14 Wr. 67 Corporations V., 45, 46 ; Damages, 16. Leuheim v. Wilmardings, 5 P. ¥. Smith, 73. .Bills of Exchange and Promissory Notes I., 19. Lennig's Estate, 2 P. F. Smith, 135 Decedents' Estates V., 30, 21. Lentz V. Ohoteau, 6 Wr. 435 Contracts X., 1. Errors and Appeals IV., 13. Leonard, Helfenstein v., 14 Wr. 461 Ejectment II., 6, 7, 8, 9. Errors and Appeals IV., 44. Evidence III., 70. Levan, Strohl v., 3 Wr. 177 Errors and Appeals IV., 1, 3. Father. Trespass, 1, Levin, Haines v., 1 P. P. Smith, 413 Constitutional Law, 66. Errors and Appeals VI., 12, 13 ; IX., 1. Landlord and Tenant, 31 , 32. Levy, Merrimao Co. v., 4 P. F. Smith, 327. Corporations V., 55, 56, 57. States of the Union, 3. Lewis, Cascade v., 7 Wr. 318..., Corporations IV., 14; Contracts VI., 8; XIIL, 3. Scho d, 5. Corbett v., 3 P. F. Smith, 333 Confusion of Goods. Land VL, 10, 11. Eshelmau v., 13 Wr. 410 Trusts and Trustees III., 19, 30. V. Lewis, 11 Wr. 127 Constitutional Law, 54. TamsT., 6 Wr. 403 Conspiracy, 1. 410 Former Recovery, 5, 6, 7. 412 Pleading, Pleas, 11. 413 Evidence VL, 7; VIL, 11. Williamson v., 3 Wr. 9 Habeas Corpus, 1, 3, 8. Lex, Kirkpatrick v., 18 Wr. 123 Conspiracy, 3. Partner, Partnership I., 18, 14. Practice VII., 10. Library Co. (Phila.) v. Beaumont, 3 Wr. 43. .Ground-rent, 4, 5. LiclUenthaler, Lockhart v., 10 Wr. 151 Eailraads 11., 37, 28, 29. Lichty V. Hugus, 5 P. P. Smith, 434 Limitations II., 15. Life Ins. Co., Dungan v., 3P. P. Smith, 353.Estoppel, 30. Lightner, Bricker v., 4 Wr. 199 Evidence II., 1, 2; V., 6. Limitations II., 5. Pleading, Pleas, 7. Practice VI. , 1. Linn, Youngman v., 3 P. F. Smith, 413 Vendor and Vendee IV., 84, 85, 36. Linton V. Com., 10 Wr. 294 Evidence IIL, 36; V., 26. Execution I., 3. Sheriff, 8. Lippincott, Weeks v., 6 Wr. 474 Contracts VI. , 5. Railroads I., 32. Littel V. Scranton Gas Co., 6 Wr. ^00 Foreign Attachment, 4, 5, 6. Little V. Com., 13 Wr. 337 Surety, 11. Strock v., 9 Wr. 416 Account Render, 5. Foreign Attachment, 8. Livermore, Railroad v., 11 Wr. 465 Mortgage I., 10, 11. Livingston, Rees v., 5 Wr. 113 Evidence IL, ; IIL, 10, 11, 13. Fraud I., 11. Lloyd V. Farrell, 13 Wr. 73 Evidence XVIL, 17. Land IV., 7, 8; VIL, 6, 7,8, 9. Jackson v., 8 Wr. 83 Attachment, 3. Errors and Appeals V., 14. Practice IV., 4. V. McCaffrey, 10 Wr. 410 Banks and Bankers, 10. Fraud I., 31. Thompson v., 13 Wr. 127 Wills VL, 58. Loan Association v. Moore, 11 Wr. 233 Associations, 7; Building Association, 6. Company v. Hall Association, 13 Wr. 446 Bonds, 4. Locke V. Daugherty, 7 Wr. 88 Practice IL, 1 ; IV., 3. Lockhart v. Lichtenthaler, 10 Wr. 151 Railroads IL, 37, 38, 39. LOD — MAG 319 Lodge V. Barnett, 10 Wr. 477 ...Evidence IX., 19 ; XVII., 13. Land I., 35. Logan's Appeal, 3 Wr. 337 Wills VI., 1. Long V. Kuapp, 4 P. F. Smith, 514 Fraud I., 49. , Miller v., 9 Wr. 350 Fraud III., 8. Husband and Wife I., 3 ; V., 18. Weikel v., 5 P. F. Smith, 338 Errors and Appeals X., 7. Interest, 10. Judgment V., 15, 16, 17. Practice VII., 34. Longstreth, Curtis v., (McNeran's Will,) 8 Wr. 397 Shelly, 5, 6, 7. Loomis, Eobinson v., 1 P. F. Smith, 78 Mortgage III., 8; V., 14. Lord V. Grow, 3 Wr. 88 Vendor and Vendee II., 1, 3, 3, 4. Lorentz, Laughlin v., 13 Wr. 375 Partner, Partnership I., 10, 11, 12; III., 23, 24, 25. Lorenz v. Wightman, 8 Wr. 27 Courts, 10. Lothrop V. Wightman, 5 Wr. 397 Evidence IIL, 16, 17 : VL, 5 ; XIX., 3. Fraud L, 13. Partner, Partnership I., 6, III., 2. 303 Decedents' Estates IL, 0,7, 8, 9, 10. 305 Errors and Appeals I., 7; V., 3. Lott, Kramer v., 14 Wr. 495 Crimes, 15. Malicious Prosecution, 6. Loucks, Jessup v., 5 P. F. Smith, 350-364.. .Dams, 4, 6. Land XIII., 17. Pleading, Pleas, 25. 363 Evidence II., 21 ; V., 41. Love, Pessler v., 7 Wr. 313 Contracts I., 2. Set-off, 5. 12 Wr. 407 Contracts VIL, 2, 3;X., 4, .">, 6, 7, 8. Evidence XVIII., 8. Lovering v. Buck Mountain Coal Co., 4 P. F. Smith, 391 Act of God, 1; Contracts XIIL, 32, 33. Lovett V. Burkhardt, 8 Wr. 173 Pleading, Pleas, 14. Replevin, 1, 3. Lowber, Perry v., 13 Wr. 483 Life Tenant, 1. Shelly, 17. Lucas' Appeal, 3 P. F. Smith, 404 Decedents' Estates V., 33 ; XL, 3. Luch's Appeal, 8 Wr. 519 Mortgage IL, 11 ; IV., 2. Luckenbach v. Anderson, 11 Wr. 133 Affldavit, 7, 8. Lukehart v. Byerly, 3 P. F. Smith, 418 Slander, 3, 3. Lukens' Appeal, 11 Wr. 356 Trusts IIL, 33. LuUens, Reed, v., 8 Wr. 300 Insurance VL, 1. Lutheran Congregation, Pa. R. R. Co. v., 3 P. F. Smith, 445.Bailroads I., 34, 35, 36; Roads, 43, 44, 45. Practice VIL, 16. Luzerne, Lackawanna Co. v., 6 Wr. 424 Corporations I., 3. Lycoming, Commissioners v., 10 Wr. 496... Counties, 3 ; Crimes, 33. Lycoming Co. v. Gamble, 11 Wr. 106 Taxes, 15. Lycoming Ins. Co., Beatty v., 3 P. F. Smith, 456 Insurance I., 18. Mitchell v., 1 P. F. Smith, 402 Insurance I^ 17. Insurance IIL, 25, 36, 37, 38, 29, 30, 81, 32. 410 Insurance VIL, 5. V. SchrefiBer, 6 Wr. 188.1nsurance II. , 5. V. Updegraff, 4 Wr. 311. Insurance I., 5, 6 ; IL, 3. Lynd, Lamb v., 8 Wr. 336 Mandamus, 4. Philadelphia, 4. Lyon v. Gormley, 3 P. F. Smith, 361 Damages, i3. Railroads L, 10. Mack, Firmstone v., 15 Wr. 887 Attachment, 38, 31. Laborers, 1. Mackason's Appeal, 6 Wr. 330 Fraud I., 14. Maddan, Thomas v., 14 Wr. 361 Evidence IIL, 47; V., 33; VIL, 31. Husband and Wife IV., 9. Madison, Toby v., 8 Wr. 60 Poor, 5. Magee v. Com., 10 Wr. 358 Constitutional Law, 50. 320 MAG — MAT Magee y. Com., 10 "Wr. 358 Limitations IV., 28. Municipal Claims, 9, 10, 11, 13, 13, 14. Maguire, Frank v., 6 Wr. 77 Affidavit, 16, 17. V. Howard, 4 Wr. 891 Land XII., 1, 3, 3. Blaher v. Ashmead, 6 Casey, 344 Malicious Prosecution, 7. Mahon v. Kunlde, 14 Wr. 316 Attachment, 8. Mairsv. Taylor, 4 Wr. 446 Bailee, Bailments, 3; Contracts VIIL, 3. Malcolm, Ross v., 4 Wr. 384 Roads, 1, 2. TrcsDsss 5 Malone V. Keener, 8 Wr. 107 Fraud III., 3, 4. V. Sallada, 12 Wr. 419 Land L, 41, 43,43, 44, 45. Maloney Y. Davis, 13 Wr. 513 Set-off, 15. Maltby v. Reading R. R. Co., 2 P. F. Sniitli, 140 Constitutional Law, 3 ; Corporations I., 6, 7. Y. R. R. Co., 3 P. F. Smith, 140 Residence, 3. Non-residents, 1. Taxes, 25. Mann, Sipes v., 3 Wr. 414 Execution IIL, 1. Mann's Appeal, 14 Wr. 375 Dower, 16. Evidence III., 53. Husband and Wife V., 28, 29. Mansfield Iron Works y. Wilcox, 3 P. F. Smilb, 377 Practice IV., 30. Manufacturing Co., Megargee v., 1 Wr. 443.. Statutes, 4. Maple v. Kussart, 3 P. F. Smith, 348 Orphans' Court, 20. Estoppel, 34. Maples v. Browne, 13 Wr. 458 Bills of Exchange and Promissory Notes II., 34, 25. Marion Y. Spring Township, 14 Wr. 308 Poor, 9, 10. Marks y. Russell, 4 Wr. 372 Practice V., 1. Marr v. Ins. Co., 10 Wr. 504 Evidence XIX., 6. Ins. Co. v., 10 Wr. 504 Collateral Security, 3. Evidence III., 37. Evidence X., 6; XIL, 3, 4. Partnc]-, Partnership III., 10. Weitzell v., 10 Wr. 463 Trespass, 15. Marsh v. Bank, 13 Wr. 510 Surety, 13, 14. Citizens' Ins. Co. v., 5 Wr. 386 Insurance IIL, 1, 3. V. Marshall, 3 P. F. Smith, 39C Affidavit, 31, 33. Marshall, Marsh v., 3 P. F. Smith, 396 Affidavit, 31, 23. Martha May's Appeal, 5 Wr. 513 Wills VL, 21. Martiu, Clark v., 13 Wr. 389 Equity 1., 57, 58;n.,4. Land X!L, 10, 11 ; XIIL, 10 ; XX., 3. 399 Constitutional Law, 38. Mortgage III, 3; V., 13, 13. v. Coxe, 8 Wr. 333 Executions IV., 9. Lirailalions IV., 17. Mortgage VII., 1. . Coxe v., 8 Wr. 333 Constitutional Law, 34, 3.5, 86, 37. Gicker v., 14 Wr. 138 Evidence IIL, 45; V., 33. Fraud I., 40. Husl)and and "Wife IV., 9 ; V., 27. Holt v., 1 P. P. Smith, 499 Landlord and Tenant,' 83, 34. Jlason, Scull v., 7 Wr. 99 Bills oi Exchange and Promissory Notes I., 6. Evidence IIL, 84. Mason's Appeal, 5 Wr. 74 Partition, 3, 3. Masser, Dewart v., 4 Wr. 303 Affidavit, 10; Bailee, Bailments, 1. Pleading, Pleas, 8. V. Dewart, 10 Wr. 534 Judgment V., 9. Mast's Appeal, 4 Wr. 34 Decedents' Estates VI. , 1. Husband and Wife V., 1, 3. M.itheart, Blair v., 10 Wr. 363 Set-off, 10. ilulhur V. Kinike, 1 P. F. Smith, 425 Constitutional Law, 1; Contracts V., 3, 3. Ground-rent, 15, 18. Schober v., 13 Wr. 31 Practice I., 4, 5. Mathiot, Blair v., 10 Wr. 263 Bonds, 3. Matlnck v. Roberts, 4 P. P. Smith, 143 Shelly, 23. Matson, Evans v., 1 P. F. Smith, 366 Bonds, 6. MAT — McO 321 Matson, Evans v., 1 P. F. Smith, 366 Evidence VI., 36; VII., 34. Fraud V. , 4. 367 Sheriff, 26, 27. Maul, Rider v., 10 Wr. 376 Fraud 11., 10. Lunitations I., 27, 38. V. Rider, 1 P. F. Smith, 384, 385 Fraud V., 6, 7, 8, 9, 10, 11. 381,385 Limitations IV., 40. 386 Fraud II., 21. Maule V. Buclmell, 14 Wr. 39 Fraud III., 13. Mayer v. Budd, 8 Wr. 291 Taxes, 5. Craig v., 3 P. F. Smitli, 477 Canal. Maj^nard, Townsend v., 9 Wr. 198 Evidence V., 19. Husband and Wife II., 34, 35 ; IV., 4. Lex Loci, 1. Mayor, Craig v., 3 P. F. Smith, 477 Land XIII., 15. State, 1. Railroads I., 37. Wray v.,10 Wr. 365 Municipal Claims, 9, 14, 16, 17. McAboy's AiDpeal, 10 Wr. 301 Guardian, 1. Partition, 6. McAfee, Corson v., 8 Wr. 388 Attachment, 4, .5. Surety, 21. McAnally, Ins. Co. v., 9 Wr. 41 Insurance III., 20. McBarron v. Gilbert, 6 Wr. 279 Land L, 14, 15, 16. 280 Ejectment I., 43. McBride v. Smyth, 4 P. F. Smith, 215 Dower, 19. Trusts v., 16, 17. Wills IV., 24; VL, 98. McBroom and Wood's Appeal, 8 Wr. 93 Assignee, &c., 13, 14. McCaffrey, Lloyd v., 10 Wr. 410 Banks and Bankers, 10. Fraud I., 31. McCallum V. Germantown Water Co., 4 P. F. Smith, 40 Equity L, 69, 69J, 70, 71 ; IV., 3. Limitation I., 35, 36. Water, 19. McCandless v. Engle, 1 P. F. Smith, 313.. ..Evidence XVI., 3, 4. Land XXL, 3. Notice, 9. Purchaser, 2. 314.. ..Mortgage V., 15; VIII., 3, 4, 5. McCann's Appeal, 13 Wr. 304 Errors and Appeals V., 25. Orphans' Court, 18. JlcCarty V. Kitchenman, 11 Wr. 239 Easement, 1. Shalemiller v., 5 P. P. Smith, 186.. Land XVI., 18. McCaughey, Hall v., 1 P. F. Smith, 43 Alleys, 1, 2. McCauley, Huff v., 3 P. F. Smith, 306 License, 8. Fraud II., 20. McClintock V. Cowen, 13 Wr. 356 Appointment, 1. McClung, County v., 3 P. F. Smith, 483 Coroner. State, 3. McClure v. Roman, 2 P. F. Smith, 458 Judgment IV., 9, 10. McClurg V. Wilson, 7 Wr. 439 Bills of Exchange and Promissory Notes, Equity L, 30. McCUirken's Appeal, 12 Wr. 311 Wills IV., 15. McConib and Howden's Appeal, 7 Wr. 435. Landlord and Tenant, 11, 13. McConnell v. Carey, 12 Wr. 345 Fraud II., 13, 14. Husband and Wife III., 11. McCormick's Appeal, Hayes' Estate, 5 P. F. Smith, 253 Execution IL, 7, 8. 253,2.56 Partner, Partnership I., 15: IL, 9; IIL, 21 22 McCorraick, Womrath v., 1 P. P. Smith, 504.WilIs VL, 61, 62, 63, 64, 65. McCreary, Graham v., 4 Wr. 515 Evidence IIL, 5; X., 1, 2, 8. V. Graham, 4 Wr. 515 Fraud L, 10. McCreary v., 4 P. F. Smith, 230.Statutes, 12. McMuUen v., 4 P. F. Smith, 230.Errors and Appeals VIIL, 7. Landlord and Tenant, 39. McCredy's Appeal, 11 Wr. 442 Wills IV., 7, 8, 9, 10. 322 IVIcC — McK McCredy, Callaghan T., 7 Wr. 115 Land IV., 12. 12 Wr. 463 Vendor and Vendee V., 3. McCue, Burford v., 3 P. F. Smith, 437 Errors and Appeals IV., 46. LandI.,r)0;II.,4. Land XVI., 9, 10. Practice VIL, 15. McCuUy V. Clark, 4 Wr. 390 Errors and Appeals IV., 4, 5. McCurdv v. Meyers, 8 Wr, 535 Mortgage V., 4. McDonald, McKowen v., 7 Wr. 441 Fraud II., 2, 3. Land XIII., 2. Practice VII., 7. McDowell V. Adams, 9 Wr. 430 Decedents' Estates IV., 3. Decedents' Estates VIII., 2. Intestates, 3. Landlord and Tenant, 17. V. Johnson, 12 Wr. 483 Roads, 23. McEldowney, Hammer v., 10 Wr. 334 Equity II., 3. Specific Performance, 2. McElhenny's Appeal, 10 Wr. 847 Decedents' Estates VIL, 7, 8, 9. McElrath v. R. R. Co., 5 P. F. Smith, 189.. Constitutional Law, 78. Bonds, 8.' Mortgage I., 13. McElroy, Harris y., 9 Wr. 210 Shelly, 11. Trusts v., 4. McFarland, Brown v., 5 Wr. 139 Partner, Partnership I., 5. McGibbeny V. Burmaster, 3 P. P. Smith, 333.Ejectment I., 38. Fraud II., 25, 26. McGiunis v. Watson, 5 Wr. 9 Corporations VIL, 3, 8, 4, 5. McGonigle v. Allegheny, 8 Wr. 118 Constitutional Law, 49. Municipal Claims, 8. McGovern v. Hoesbach, 3 P. F. Smith, 176.Evideuce XX., 34. Insolvency and Insolvent, 3. Stamps, 1, 3. McGowan v. Ahl, 3 P. F. Smith, 84 Land I., 46, 47. McGrath v. Association, 8 Wr, 385 Building Association, 4. Beaver v., 14 Wr. 479 Associations, 6. Helser v., 2 P. F. Smith, 531 ."Errors and Appeals IV., 55. Estoppel, 83. Evidence II., 30. McGrew v. Stone, 3 P. F. Smith, 436 Negligence, 3. McHenry, Pell v., 6 Wr. 41 Bills of Exchange and Promissory Notes n., 5. Corporations IV., 10; V., 11. Evidence III., 19, 20. McHose v. Wheeler, 9 Wr. 32 Corporations V., 13, 14, 15, 16. Evidence XIV., 1, 3, Mclnroy v. Dyer, 11 Wr. 118 Evidence IIL, 51. Evidence XX., 18. Trover, 13. McKee, Kline v., 10 Wr. 519 Set-off, 11. Judgment VIL, 4. V. White, 14 Wr. 854 Wills II., 13. McKeehan V. Wilson, 3 P. F. Smith, 74 Wills VI., R9, 90, 91, 92. McKeen, Canal Co. v., 3 P. F.Smith, 133. ..Damages, 1, 3, 3. Errors and Appeals V., 31, 33. V. Canal Co., 18 Wr. 424 Dams, 3. Damages, 13, 14, 15. V. Delaware Canal Co., 13 Wr. 424. .License, 0. Water, 15, 16. V. Northampton, 13 Wr. 519 Corporations I., 8. Taxes, 14. McKeen's Appeal, 6 Wr. 479 Wills VL, 34, 35, 36, 37. MoKenna, Smith v., 3 P. F. Smith, 151 Contracts VI., 13. Fraud IIL, 15. McKesson, Adams v., 3 P. P. Smith, 81 Land XL, 7. Landlord and Tenant, 33. Sheriff, 34. McKinley, Thompson v., 11 Wr. 352 Ejectment I., 30, 31, 32. 853 Courts, 14. McK — MEB 323 McKinney v. Hamilton, 1 P. F. Smith, 63.. ..Husband and Wife I., 9 ; V., 33. Mortgase VIII., 1, 3. McKnight v. Krentz, 1 P. F. Smitli, 333 Land IX., 9; XII.-, 17, 18, 19, 30. Kreutz v., 3 P. F. Smitli, 319 Land XII., 31, 33. Y. Radcliffe, 8Wr. 156 Errors and Appeals IV., 40. Land IX., 3, 4. Partner, Partnership HI., 15, 16, 17, 18, 19, 30. McKowen t. McDonald, 7 Wr. 441 Friiud II., 3, 3. Land XIII., 3. Practice XII., 7. McLain, Campbell v., 1 P. F. Smith, 300.. ..Trusts and Trustees III., 4. 300, 303. Assignee, 37, 38. Trusts III., 36, 37. V. School Directors, 1 P. F. Smith, 196 l.Estoppel, 27. Fraud IL, 33 ; V., 13. MoLane and Grant, Appeal of, 8 "Wr. 477.. ..Landlord and Tenant, 15, 16. Hartlieb v., 8 Wr. 510 Sheriff, 4. McLaughlin, Ins. Co. v., 3 P. F. Smith, 485.Evidence X., 9. Insurance I., 14, 15. V. Kain, 9 Wr. 113 Land XL, 3; XVI., 3. Limitations I., 16. McLean V. Wade, 3 P. F. Smith, 146 Account Render, 4. Decedents' Estates I., 7. Decedents' Estates IL, 38, 39 ; IV., 6, 7. Fraud v., 3. 5 Wr. 266 Wills III., 3. McManes, Wistar v., 4 P. F. Smith, 318 Equity II., 5, 6. McMillan's Appeal, 3 P. F. Smith, 434 Partition, 9. McMuUen v. McCreary, 4 P. F. Pjiith, 330.. Errors and Appeals VIIL, 7. Landlord and Tenant, 39. Statutes, 13. McMullin, Larldn v., 13 Wr. 39 Husband and Wife IL, 39, 40, 41. McMurray V. Hopper, 7 Wr. 468.... Courts, 5, 6, 7, 8. Decedents' Estates III., 13, 14, 15. Judgment V., 2, 3, 4, .5, 6, 7, 8 ; VI., 3. Vendor and Vendee IV., 12, note. McNaughton, Boyd v., 1 P. P. Smith, 337.. Ejectment I., 34, 35 ; IV., 4, McNulty, Carver v., 3 Wr. 473 Land I., 1 ; II., 1. Vendor and Vendee IV., 1, 2, 3. McNutt V. Strayhorn, 3 Wr. 319 Assignee, &c., 1. McQuaide, Stewart v., 13 Wr. 191 Debtor and Creditor I., 10 ; II. , 34, 2.'j, 20; IV., 3. Executions VIIL, 10, 11. 195, 198...Mechamcs' Claim, 19, 30, 31, 33. McQuigg T. Morion, 3 Wr. 31 Covenant, 1. Ground-rent, 1, 8, 3. McShaffery, Castor v., 12 Wr. 437 Trover, 14. McTighe, R. R. Go. v., 10 Wr. 316 Railroads IL, 19, 20, 31; IIL, 5. MoVicker V. Denison, 9 Wr. 390 Contracts IX., 6; XIIL, 5. Set-off, 8. Mc Williams V. Ross, 10 Wr. 369 Intestate, 4. Mears Webb v., 9 Wr. 222 Bills of Exchange and Promissory Notes II. , 14. Megargee v. Manufacturing Co., 1 Wr. 442. .Statutes, 4. V. Wakefield Co., 12 Wr. 442 Corporations V., 34, 35. Megee V. Beirne, 3 Wr. 60 Mortgage I., 1. 50 Foreign' Attachment I., 3, 3. Pleading, Pleas, 1. Mehaffey, Johnson v., 7 Wr. 308 Debtor and Creditor X., 3. Real Estate, 1. 309 Land XVIL, 3. Meehan v. Williams, 13 Wr. 338 Land VI., 2, 3. Vendor and Vendee I., 4. Vendor and Vendee VI., 6. 343 Evidence VI., 19. Practice I., 3. Meek v. Bayard, 3 i , F. Smith, 317 Contracts VL, 18. 324 MEE — MIL Aleeker V. Com., 6 Wr. 283 Roads, 14. Meeser, Com v., 8 Wr. 341 Philadelphia, 3. ■ Quo Warranto, 3. Bellinger v. Bailsman, 9 Wr. 532 Husband and Wife 11., 26, 39 ; IV., 5 ; V., 30. Mellon V. Gulhrie, 1 P. F. Smith, IIG Judgment VI., 3, 4. Land XX., 3. Mellon's Appeal, 10 Wr. 165 Wills VI., 47. Wills IV., 4, 5. Wills IV., 2.^, 26. Uercelliott, Blood v., 3 P. F. Smith, 391 Constitutional Law, 46, 47. Merrick v. Ins. Co., 4 P. F. Smith, 377 Insurance VI., 6. Merrimao Co. v. Levy, 4 P. F. Smith, 337. ..Corporations V., 55, 56, 57. States of the Union, 3. Mei-vine v. Sailor, 3 P. P. Smith, 10 Ground-rent, 17. Messinger, Heckraan v., 13 Wr. 465 Assignee, &c., 18, 19, 30. Meyers, Hill v., 7 Wr. 170 Judgment IV., 2, 3. 172 Fraud IL, 2, 3. 176 Errors and Appeals I., 8; V., 11. V. Hill, 10 Wr. 9 Ejectment I., 19; III., C, 15 Limitations I., 23. McCurdy v.. 8 Wr. 535. Mortgage V., 4. Michener v. Cavender, 3 Wr. 337 Evidence XVL, 1, 3. Justices, 13, 13. Laud XXL, 1, 3. Mickey, Jajme v., 5 P. F. Smith, 360 Limitations II., 14. Mickey's Appeal, 10 Wr. 337 Wills VL, 49. Middleton, Fassitt v., 11 Wr. 314 Assignee, &c., 16. 6r6nud-rent, 13. Miles, R. R. Co. v., 5 P. F. Smith, 309 Carriers, 13. Miller V. Association, 14 Wr. 32 Accord, 4. Building Association, 7. Corporations V., 49. V. Bank, 12 Wr. 514 Bills of Exchange and Promissory Notes IL, 36. Partner, Partnership III., 27. Boyd v., 2 P. P. Snrith, 431 .lustices, 1. Caldwell v., 10 Wr. 333 Costs, 3. V. Casselberry, 11 iWr. 376 Ejectment IL, 10; IIL, 5. Chase v., 5 Wr. 403 Election, 4, 5, 6, 7. Errors and Appeals V., 4, 5. 428: Constitutional Law, 24. City v., 13 Wr. 440 Taxes, 11, 13, 13. V. Clement, 4 Wr. 484 Landlord and Tenant, 3. Sheriff, 10. Y. Drexel, 13 Wr. 346 Constitutional Law, 34, 35, 86, 37. Drexel v., 13 Wr. 246 Mortgage VIL, 3. Featheriuan v., 9 Wr. 90 Evidence V., 17, 18. V. Francisciis, 4 Wr. 335 (overruled). Limitations I., 3. Fry v., 9 Wr. 441 Execution VL, 4, 5. Mortgage L, 8. V. Hartlc, 3 P. F. Smith, 108 Fraud IL, 18. V. Henlan, 1 P. P. Smith, 365 Ejectment L, 36, 37. Specific Performance, 4, 5. Hofferv., 8 P. F. Smith, 156 Evidence IX., 31. Fraud II. 19. Horton v., 8 Wr. 356 Judgment VIL, 3, 3. V. Laubach, 11 Wr. 154 Water, 14. v. Long, 9 Wr. 350 Fraud III., 8. Husband and Wife I., 3 ; V., 18. ■v. Miller, 8 Wr. 170 Husband and Wife V., 16. V. Porter, 3 P. F. Smith, 393 Wills III., 13, 13. V. R, R. Co,, 4Wr. 337 Corporations V., 5, 6. Russell v., 4 P. F. Smith, 154 Collateral Security, 10. Set-off, 23. Miller's Appeal, 3 P. F. Smith, 113 Wills VL, 67, 68. 4 Wr. 57-60 Decedents' Estates VL, 3, 8, 4, 5, 6 ; VIL,!. 387 Intestates, 3. Milligan, Smitli v., 7 Wr. 107 Contracts IIL, 1„3, 3; IV., 3. MIL — MOR 325 Milliken, James v., 5 Wr. 253 Banks and Bankers, 5, G. Jones v., 5 Wr. 852 Debtor and Creditor II., 10 ; IV., 3. Millingar v. Hartupee, 3 P. F. Smith, 363...Attaoliment, 9, 10, 11. Priz6 1. V. Sorg, 5 P. F. Smith, 215 Estoppel, 40. Milligan, Walker v., 9 Wr. 178 Shelly, 10. Wills VI., 35. Mills, Ins. Co. v., 8 Wr. 241 Insurance IV., 2. Milne v. Henry, 4 Wr. 352 Debtor and Creditor II., 7, 8, 9. PraiidH., 4, 5, 6. 7 Wr. 418 Fraud II., 4, 5, 6. Henry v., 7 Wr. 41S Fraud I., 21, 22. Miltimore v. Miltimore, 4 Wr. 151 Divorce, 1 ; Dower, 1. Estoppel, 1 ; Evidence VI., 3. Milton, Boad in, 4 Wr. 300 Koads, 3, 4, 5. Mining Co. v. Clark, 4 Wr. 432 Corporations V., 8. V. Water Co., 4 P.P. Smith, 164.Equity I., 73, 73, 74. Minor's Appeal, Hartley and, 3 P. F. Smith, 312 Attorneys at Law, 13, 13. Minter's Appeal, 4 Wr. Ill Wills VI., 13, 13. Mintzer v. Co. of Montgomery, 4 P. F. Smith, 139 Banks and Bankers, 17; Corporations I., 1?.. Taxes, 37. Miranville v. Silverthorne, 12 Wr. 147 Estoppel, 33. Fraud 11. , 11. Missions, (Board of,) Powell v., 13 Wr. 46.. Shelly, 14, 15, 16. Mitchell V. Coates, 11 Wr. 303 Execution III., 21. Ins. Co. v., 12 Wr. 367 Insurance I., 7. Insurance II., 4. Insurance III., 4, 5, 6, 7, 8, 9, 10. V. Lycoming Ins. Co., 1 P. P. Smith, 402 Insurance I., 17. Insurance III., 25, 36, 37, 38, 39, 30, 31, S2 ; VII., 5. 410 Insurance IIP, 25, 26, 37, 38, 211, 30, 31, 32. V. Wolf, 10 Wr. 147 Statutes, 3. Swine, 1. Mohn, Com. v., 3 P. F. Smith, 243 Crimes, 45, 46. Mohney v. Evans, 1 P. F. Smith, 80 Hushand and Wife, IIL 18. Infant, 1, 2. Moloney v. Davis, 12 Wr. 512 Equity III. 6. Practice VII., 9. Monongahela Bridge Co. v. Kirk, 10 Wr. 112. Water, 10, 11, 13, 13. Montgomery Co., Mintzer v., 4 P. F. Smith, 139 Banks and Bankers, 17; Corporations I., 1'?. Taxes, 37. Montgomery, Richardson v., 13 Wr. 303 Execution VI., 11, 12, 13. Ships, 6, 7. Montour, Schuylkill v., 8 Wr. 484 Poor, 1, 3, 3, 4. Montrose, Com. v., 2 P. F. Smith, 391 Boroughs or Townships, 4. Statutes, 8, 9. Moore, Association v., 11 Wr. 233 Associations, 7 ; Building Associations, 6. V. Fields, 6 Wr. 467 Aflfldavit, 9. Decedents' Estates II., 18. Tyler v., 6 Wr. 374 Deeds, 3. Shelly, I. Moore's Appeal, 14 Wr. 250 Costs, 11. Moorhead, Craig v., 8 Wr. 97 Decedents' Estates VL, 10. Morgan V. Com., 5 P. F. Smith, 456 Mandamus, 21. V. Negley, 3 P. F. Smith, 153 Damages, 17. Negley v., 10 Wr. 281 Ground-rent, 30. Landlord and Tenant, 18. Road Commis'rs v., 11 Wr. 376 Railroads III., 9. Mo'rris v. Stephens, 10 Wr. 300, 1 P. F. Smith, 132 Land XIX., 3. Morrison, Jack v., 12 Wr. 113 Assumpsit, 10. Fraud III., 10, 11. Practice IV., 14. Morrow v. Com., 13 Wr. 305 Errors and Appeals IV., 23. 326 MOR — NAT Morrow v. Com., 13 Wr. 305 Evidence, 16. Notice, 3. Railroads I., 26, 37, 28 ; Roads, 36, 37, 38. Morton, McQuigg v., 3 Wr. 31 Covenant, 1. Ground-rent, 1, 3, 3. Moss' Appeal, 7 Wr. 33 Associations, 1, 3, 3, 4, 5. Trusts and Trustees III. , 14. 35 Limitations I., 5. Limitations IV., 13, 14, 15. Srott, Price v., 2 P. F. Smitli, 315 Taxes, 38, 29. Mowry, Casebeer v., 5 P. F. Smith, 419 Dams, 5; Damages, 31. Former Recovery, 18. Moyer, Grabill v., 9 Wr. 530 Husband and Wife 11., 30, 31. Husband and Wife IV., 6. V. Illig, 3 P. F. Smith, 444 Justices, 3. Trespass, 30. V. Moyer, 13 Wr. 310 Evidence VIL, 19. Moyers, Tiley v., 7 Wr. 404 , Landlord and Tenant, 6, 7, 8, 9, 10. Evidence II., 9; IX., 9. Muhlenberg v. R. R. Co., 11 Wr. 16 Corporations V., 43. Mullen V. Wilson, 8 Wr. 413 Errors and Appeals IIL, 3 ; IV., 56. Husband and Wife IL, 16, 17; Mulvaney, Corson v., 13 Wr. 88 Ejectment I., 16. Equity I., 56. Vendor and Vendee IV., 30, 31. Mumma, Lau v., 7 Wr. 367 Contracts XIIL, 3. Evidence VI., 9, 10. Muun V. Pittsburg, *' Wr. 364 Corporations IL, 3, 3, 4. 370 Evidence XX., 2. Roads, 6. Murdoch v. Steiner, 9 Wr. 349 Foreign Attachment, 7. Murphy, Backus v., 3 Wr. 397 Execution IL, 1, 3. Gas Co. v., 3 Wr. 363 Corporations IL, 1. V. Nathans, 10 Wr. 508 Decedents' Estates VL, 13. Ejectment I., 38. Evidence XX., 15, 16, 17. Mortgage IV., 4,5, 6, 7 ; V., 7. Mortgage VI. , 3. Trusts and Trustees I., 5. Musgrave v. Berkendorff, 3 P. F. Smith, 310 Damages, 36. Music (Academy of) v. Smith, 4 P. P. Smith, 130 Ground-rent, 19. Musselman's Estate, 3 Wr. 469 Wills VL, 3. jMusser V. Ferguson Twp., 5 P. F. Smith, 475. Bounties, 7. 478. Contracts VL, 6, 7. Mutual Co., Caverov? v., 3 P. F. Smith, 387.Constitutional Law, 3. Mortgage IL, 14. Myers v. Byerly, 9 Wr. 368 Fraud IL, 6. Erwin v., 10 Wr. 96 Ejectment I., 31, 33, 38, 34, 35; IL, 14, 15, 16,17, 18,19. Vendor and Vendee IV., 21, 22, 33. V. Fegaly,3 Wr. 429 .ludgment I., 1. Hill v., 7 Wr. 176 Evidence L, 5 ; IX., 5, 6, 7. V. Hill, 10 Wr. 9 Former Recovery, 10. R. R. Co. v., 5 P. F. Smith, 388 Railroads IL, 59. Myers' Appeal, 6 Wr. 518 Mortgage IL, 8. 13 Wr. 36 Wills IV., 11, 12. Wills VI. , 56. 13 Wr. Ill Trusts v., 14. Nagle, Hazzard v., 4 Wr. 178 Evidence VL, 3. Surety, 19. Naglee's Appeal, 3 P. F. Smith, 154 Equity IIL, 10. Estate, 2 P. P. Smith, 154 Trusts VL, 8. Natcherv. Natcher, 11 Wr. 496 Assumpsit, 6, 7, 8. Nathans, Murphy v., 10 Wr. 508 Decedents' Estates VL, 13. Ejectment L, 28. Evidence XX., 15, 16, 17. Mortgage IV., 4, 5, 6, 7 ; V., 7. NAT — NOR 327 Nathans, Murphy v., 10 Wr. 508 Mortgage VI., 3. Trusts and Trustees I., 5. JNauman, Hollingshead v., 9 Wr. 140 Limitations I., 17, 18, 19, 20, 21. Navigation Co., (Leliigh,) Ashton v., 13 Wr. 2(il Mortgage I., 12. Emlen v., 11 Wr. 76 Interest, 4, 5. Neass' Appeal, 7 Casey, 293 Vendor and Vendee VI., 4, 5. Neel, Penna. Bait Co. v., 4 P. P. Smith, 4.. Husband and Wife II., 38. 9.. Land IX., 12; XIV., 4; XIX., 6. Evidence III., 72. PraotioellL, 3; VIII., 4. V. Potter, 4 Wv. 483 Evidence VIII., 1. Neeld, Wood v., 8 Wr. 86 Bills of Exchange and Promissory Notes I., 8. Neemes, Selden v., 7 Wr. 421 Affidavit, 3, 4, r,; Bills of Exchange and Promissory Notes I., 7. Neigh, Person v., 2 P. P. Smith, 199 Verdict, 2. Practice VII., 17. Neff, Stoner v., 14 Wr. 258 Mechanics' Claim, 23. Williams v., 2 P. F. Smith, 326 Wills IV., 21, 22, 23. Neff's Appeal, 2 P. F. Smith, 326 Wills IV., 31, 22, 23. 12 Wr. 501 Wills II., 11, 12. Negley, Boyd v., 4 Wr. 381 Railroads L, 1, 2, 3, 4, 5, 6, 7, 8, 9, 11. 3 P. F. Smith, 387 Practice IV.. 19. Dean v., 5 Wr. 312 Evidence VIII.. 2. 316 Wills I., 6, 7,8, 9. Morgan v., 3 P. F. Smith, 1.53 Damages, 17. V. Morgan. 10 Wr. 281 Ground-rent, 20. Landlord and Tenant, 18. Nesbit, Pontius v., 4 Wr. 309 Attachment, 27. Errors and Appeals V., 1. Nevins' Appeal, 11 Wr. 230 Execution III., 22. Newbold v. Boone, 3 P. F. Smith, 167 Wills VI., 69, 70. Webster v., 5 Wr. 482 Limitations II., 6;-IV., 10, 11. Newcomer, Com. v., 13 Wr. 478 Crimes, 27. Newcomer's Appeal, 7 Wr. 43 Decedents' Estates II., 19. Orphans' Court, 7.. Newell, Winter v., 13 Wr. 507 Evidence VL, 32, 35. Set-off, 16. Newman, Kuhnv.,3 Casey, 227 Trusts V., 7. Nice's Appeal, 4 P. F. Smith, 200 Decedents' Estates V., 26. jMortgagelV., 10, 11. 14 Wr. 143 Shelly, 19, 20. Trusts v., 11. Nickle, Brown v., 6 Barr, 390 Ejectment L, 13. Nicklin, Chew v., 9 Wr. 84 Wills IV., 1. Nimick, Shriver v., 5 Wr. 80 Equity I., 4. Nippenose v. Jersey Shore, 12 Wr. 402 Poor, 7, 8. 406 Errors and Appeals X., 4. Noble, Bask v., 12 Wr. 168 Debtor and Creditor I., 8, 9. J-5urkev., 12 Wr. 168 Errors and Appeals V., 7. T. Cope, 14 Wr. 17 Estoppel, 24. .ludgment VIIL, 1. Sheriff, 20. Laley, 14 Wr. 281 Evidence IIL, 49; Practice IL, 3 ; VIL, 14. Noble's Appeal, 3 Wr. 425...: Decedents' Estates V., 1. Noel V. Karper, 3 P. F. Smith, 97 Deeds, 13. Evidence VIL, 35; XII., 6. Imbecility, &c., and Lunacy, 6. Norris, Horwitz v., 13 Wr. 313 Dower, 15. Wills v., 6. Northampton, McKeen v., 13 Wr. 519 Corporations I., 8. Taxes, 14. Whitesell v., 13 Wr. 536 Corporations I., 8. Taxes, 14. North American Oil Co. v. Clarke, 4 Wr. 433 Corporations VII., 1. Evidence XVIII. , 5, 6. 328 NOR — O'EB North American Oil Co. v. For&ytli, 12 Wr. 391 Errors and Appeals IV., 33; V., 8. North, Hursh v., 4 Wr. 241 Limilatiojis IV., 3. North Lebanon v. Arnold, 11 Wr. 488 Boroughs or Townships, 3. Equity I., 53, 53. Penna. Coal Co.'s Appeal, 9 Wr. 181. Partner, Partnership III., 9. Pa. Coal Co v. Snowden, 6 Wr. 488. Constitutional Law, 29, 30. Equity I., 24. Pa. R. E. Co. Y. Keyser, 4 P. F. Smith, 94 Affidavit, 23. Whitehall Township, (in re,) 11 Wr, I.jG Errors and Appeals V., 17. Notice, 2. Western Ins. Co., Suydam v., 1 P. F. Smith, 399 Equity I., 61, 63. Insolvency and Insolvent, 7. Noss, Boro' of Petersburg v., 3 P. F. Smith, 448 Bounties, 1. Notte's Appeal, 9 Wr. 301 .Execution IIL, 9. Nuttall, Goffv., 8 Wr. 78 Husband and Wife IL, 13, 14. Oakland R. W. Co. v. Fielding, 13 Wr. 330 Railroads IL, 10, 11, 13, 13, 14. Ogborn, Hartman v., 4 P. P. Smith, 130 Husband and Wife III., 19. Judgment IV., 11. Mortgage VL, 8; VIIL 6. Sheriff, 38. Oil Co., Forsyth v., 3 P. F. Smith, 168 Contracts IX., 9 ; XIIL, 13, 18. Evidence XVIIL, 9. V. Forsyth, 13 Wr. 291 Errors and Appeals V. 8. Oil Creek Co., Tanner v., 3 P. F. Smith, 411 Carriers, 3, 4, a. Practice VIL, 15. Knapp v., 3 P. F. Smith, 185 Affidavit, 19, 30. Oldweiler, Township v., 5 P. F. Smith, 357.Bounties, 3. Oliphant, Hill v., 5 Wr. 375 Ejectment L, 13, 13, 14, 15. Evidence VI., 23. Land III., 2. Lis Pendens, 3. Opdyke's Appeal, 13 Wr.' 373 Bastard, 3. Statutes, 6. Ordiorne's Appeal, 4 P. F. Smith, 175 Decedents' Estates XII., 2. Ormsby, Blackburn v., 5 Wr. 97 AflBdavit, 15. 101 Accord, 1, 2. Debtor and Creditor I., 3. Orphans' Courts History given by Wood- ward, J., 5 Wr. 178.. ..Orphans' Court, 5. Oswald v. Kennedy, 13 Wr. 9 Errors and Appeals III., 3. Errors and Appeals V., 18. Evidence XX., 31. Oswayo Township, Potter Co. v., 11 Wr. 103 Township, 3. Olto's Estate, 3 P. F. Smith, 434 Partition, 9. Ovei'seers v. Jersey Shore, 12 Wr. 406 Errors and Appeals X., 4. Oyster, Cowdeu v., 14 Wr. 368 Evidence V., 34. Husband and Wife IV., 8. Trusts and Trustees II., 7. O'Conner, Smith v., 13 Wr. 318 Errors and Appeals IV., 17, IS, 19, 30, 31. O'Donnell, Bradley v., 4 Wr. 479 Costs, 3. Ejectment I., 2. v. E. R. Co., 14 Wr. 490 Errors and Appeals VI., 10. Railroads IL, 9. O'Hara v. Richardson, 10 Wr. 385 Land I., 34; XVIIL, 5, 6, 7. Practice VIL, 4. O'Neill V. Hamilton, 8 Wr. 18 (%.ur(s. 9. Equity I., 34. Husband and Wife XL, 5, 15. Ridgewayv., 13 Wr. 174 Statutes, 5. Taxes, 9. O'Reilly v. Kern?, 2 P. F. Smith, 214 Contracts XII., 6. * PAG — PAT 329 Page, Heath v., 13 Wr. 130 Assumpsit, 12; Evidence XVII., 18. Debtor and Creditor I., 7 ; II., 17, 18, 19, 20, 21, 22, 23. Estimates. Errors and Appeals IV., 16. Mortgage V., 10. 143 Limitations I. 30. Page (Potter and) Estate, 4 P. P. Smith, 4G5 Limitations IV., 38. Pailaret, Button v., 2 P. F. Smith, 109 Contracts V., 2, 3. Painter v. Drum, 4 Wr. 4G7 Contracts VI., 2. Evidence II., 3. Evidence IV., 1. Fraud L, 8, 9. V. Pittsburg-, 10 Wr. 218 Corporations IL, 14. Summerville v., 8 Wr. 110 Arbitrament and Awards, 7. Errors and Appeals VI., 7. Taylor v., 3 Phila. Eep. 365 Decedents' Estates IIL, 18. Ground-rent, 14. Paletliorpv. Bergner, 3 P. F. Smith, 140 Landlord and Tenant, 35. 149 Contracts XIII., 22. Palmer, Eeed v.. 3 P. F. Smith, 379 Decedents' Estates IV., 9. Park V. Svreeney, 3 Wr. Ill Costs, 1. Parke v. Com. Ins. Co., 8 Wr. 423 Practice L, 2. Pa. R. R. Co. v., 6 Wr. 31 Land XII., 1. Parker, Swanzoy v., 14 Wr. 441 Bills of Exchange and Promissory Notes I., 16. Evidence III., 53, 54. Practice II., 4. Parker's Appeal, 8 Wr. 309 Husband and Wife L, 3. IricGSt Parshallv. Jones, 5 P. P. Smith, 153 Land!., 58, 59. Parvin v. Capewell, 9 Wr. 89 Evidence V., SO. Husband .and Wife II., 22, 23. •Husband and Wife IV., 3. Parry ifc Co.'s Appeal, 5 Wr. 273 Execution IV., 5. Pass. R. W. Co., Com. v., 2 P. F. Smith, 506 Corporations IV., 31, 32. Corporations VIII., 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13. Patten's Appeal, 9 Wr. 151 Debtor and Creditor iX., 1. Vendor and Vendee III., 6, 7, 8. Patterson v. Anderson, 4Wr. 359 Sheriff, 2. 364 Evidence VI., 4. Pleading, Pleas, 9. V. Arnold, 9 Wr. 410 Corporations V., 17, 18, 19, 30, 31. Estoppel, 13. Evidence XX,, 11. Hall v., 1 P. F. Smith, 289 Deeds, 8, 9, 10. Evidence XVI., 1, 2. Justices, 12, 13. 291 Courts, 16. Land XXL, 1, 2. Notice, 9. Purchaser, 1. Hayden v., 1 P. F. Smith, 361, 265.Landlord and Tenant, 29, 80. 202 Evidence IX., 27. Sheriff, 25. V. Swallow, 8 Wr. 487 Wills VI., 37, 88, 39, 40. Todd v., 5 P. P. Smith, 496 Set-off, 24. V. Wallace, 8 Wr. 88 Evidence III., 27. Ward v., 10 Wr. 372 Limitations I., 26. Practice VIII., 3. v. Wyomissing Co., 4 Wr. 117... Corporations V., 3, 3, 4. Pleading, Pleas, 4. Patterson's Appeal, 12 Wr. 842 Assignee, 17. Surety, 12. Patton V. Hollidaysburgh, 4 Wr. 206 Estoppel, 3. Fraud II., 1. 330 PAU — PET Paul, Eistev v., 4 P. P. Smith, 196 Land I., 51, 52, 53. Hayes v., 1 P. F. Smith, t:W Courts, 15. 134 Neftligence, 5,6, 7, 8, 9. Paxson, Alexander v., 11 Wr. 12 Wills V., 2,3. Paxson's Appeal, 13 Wr. 195 Evidence YL, 30. Executions VL, 7 ; VIII., 15. Sheriff, 18. Peacock v. Chambers, 10 Wr. 434 Contracts I., 5 ; IX., 8. Equity I., 41, 43,43; III., 5. Partner, Partnershij), 9. Pearsall V. Chapin, 8 Wr. 9 Contracts VIII., 4, 5, 6; IX., 1, 2, 3, 4, 5. Pleading, Pleas, 13, 13. Peaslee, Hughes v., 14 Wr. 357 Errors and Appeals V., 26. Peii-ce V. Cloud, 6 Wr. 102 Limitations I., 9. Penn Township, (Bank of,) Girard Bank v., 3 Wr. 92 Limitations II., 1. Penna. Bank v. Assignee's Acc't, 3 Wr. 103. Banks and Bankers, 1, 2, 3, 4. Peiina. Railroad Co. v. Allen, 3 P. F. Smith, 376 Damages, 34, 35. V. City, 11 Wr. 189 Constitutional Law, 55. Corporations VI., 16, 17. V. Com., 3 Wr. 403 Execution IV., 1, 3. Com. v., 1 P. P. Smith, 351 Contracts XIIL, 21. Mandamus, 16. Water, 17. V. Duquesne, 10 Wr. 333 Corporations II , 15, 16, 17 ; IV., 31. Y. Grain, Elev. Co., 14 Wr. 499... Equity L, 19. Railroads I., 33 ; Roads, 43. Gratzv., 5 Wr. 447 Assignee, &c., 8; Constitutional Law, 26; Corporations IV., 8. V. Henderson, 1 P. F. Smith, 315 Carriers, 8. Neifligence, 10, 11. Ratlroads II., 43, 43, 51, 53,-53, 54, 55. 56. V. Lutheran Congreg'n, 8 P. F. Smith, 445. Practice VII., 16. Railroads I., 34, 35, 36 ; Roads, 43, 44, 45. V. Parke, 6 Wr. 31 Land XII., 1. V. Pennock, 1 P. F. Smith, 344 Foreign Attachment, 11, 13. Pittsburgv., 13 Wr.3oo. Corporations IV., 35. Rowland v., 2 P. F. Smith, 350 Corporations IV., 30. Shipper v., 11 Wr. 338. Corporations IV., 38, 39; Constitutional Law, 69. V. Vandiver, 6 Wr, 365. Railroads II., 23, 34, 25, 26. T. Willi-uns, 4 P. F. Smith, 103 Corporations IV., 47,48. Penna. Salt Co. v. Neel, 4 P. F. Smith, 4. ..Husband and Wife II., 38. 9. ..Evidence III., 73. Land IX., 13; XIV., 4; XIX., 6. Practice III., 3 ; VIII., 4. Pennock, Penna. R. R. Co. v., 1 P. F. Smith, 244 Foreign Attachment, 11, 13. Pennypacker's Appeal, 5 Wr. 494 Decedents' Estates VII., 4. Perkins, Com. v., 7 Wr. 400 Corporaticras VI., 8, 9, 10, 11, 12, 13, 15. Perry v. Lowber, 13 Wr. 483 Life Tenant, 1. Shelly, 17. T. Scott, 1 P. F. Smith, 119 Land XIL, 13, 13, 14, 15, 16; XIX., 3. Wills VI., 66. Perseverance Ass'n, Kelly v., 3 Wr. 148 Building Association, 1. Person V. Neigh, 2 P. F. Smith, 199 Verdict, 3. Practice VII., 17. Petersburg, Boro' of, v. Noss, 3 P. P. Smith, 448 Bounties, 1. Peterson, Brown v., 4 Wr. 573 Railroads!., 3. PET — POO 331 Peterson, Kier v., 5 Wr. 357 Land IX., 6, 7. V. Union Bank, 3 P. F. Smith, 206. Banks and Bankers, 13, 13. Petition of Baker, 8 Wr. 440 Justices, n. Pettit's Appeal, 3 Wr. 834 Decedents' Estates II., 3. Pliaro, Schick v., 18 Wr. 384 .....Execution VIII., 30. Plielps, Cliadwick v., 9 Wr. 10.5 Land VII., 5; XIIL, 4; XVL, 1,3. Limitations I., 1^. Pliiladelphia Ass'n v. Wood, 3 Wr. 73 C^onstitutional Law, 9, 10, 11. City, Railway Co. v., 1 P, P. Smith, 405 Taxes, 3.3. Second and Third Street Railway v., 1 P. P. Smith, 468 Interest, 9, 11. Club, Evans v., 14 Wr. 107.... Corporations IV., 34, 35, 86, 37. Mandamus, 9, 10. V. Com., 3 P. P. Smith, 451 Constitutional Law, 8. Taxes, 83, 83, 34. & Erie R. R. Co. v. Catawissa R. R. Co., 3 P. P. Smith, 30. Corporations VIII., 17, 18, 19, 30. & Erie R. R. Co., Drake v., 1 P. P. Smith, 340 Railroads L, 47; IL, 41. V. Gray's Ferry Co., 3 P. F. Smith, 177 Statutes, 7. Corporations I., 9, 10, 11, 13. Library Co. v. Beaumont, 3 Wr. 43 Ground-rent, 4, 5. Phillips V. Allen, 5 Wr. 481 Corporations IV., 9. T. Com., 8 Wr. 197 Constitutional Law, 33. Crimes, 10, 17. Hinney v., 14 Wr. 382 Husband and Wife V., 39. V. Phillips, 13 Wr. 178 Easement, 3. Evidence XX., 19. Philosophical (American) Society, City v., 6 Wr. 9 Taxes, 1. Philson v. Barnes, 14 Wr. 330 Assignee, ifcc, 31 ; Attachment, 36 Evidence IIL, 46. Phipps v. Boyd, 4 P. P. Smithy 343 Errors and Appeals IV., 57. Fraud I., 48. Landlord and Tenant, 40, 41. Phoenix Ins. Co. v. Cochran, 1 P. P. Smith, 143 Insurance III, 21, 23, 33, 24. 155 Insurance VI., 5. Phoenixville v. Iron Co., 9 Wr. 135 Corporations II., 12; IV., 18. Railroads IIL, 7, 8 ; Roads, 20. Physick's Appeal, 14 Wr. 128 Shelly, 18. Trusts v., 10. Pinneo v. R. R. Co., 7 Wr. 861 Railroads I., 31. Pittman's Appeal, 13 Wr. 815 Execution IIL, 34, 35. Pittsburg City's Appeal, 4 Wr. 455 Municipal Claims, 3. Pittsburg, Com. v., 5 Wr. 378 Corporations VI., 3, 8, 4. 7 Wr. 891 Corporations VL, 5, 0, 7. Munn v.,4 Wr. 364 Corporations II. , 3, 8, 4. 370 Evidence XX., 2. Roads, 6. Painter v., 10 Wr. 313 Corporations II., 14. V. Pa. R. R. Co., 12 Wr. 355 Corporations IV., 25. Wray v., 10 Wr. 365 Con.=;titutional Law, 51, 52. jVIunicipal Claims, 14, 16, 17. City of, v. Bank, 5 P. P. Smith, 45Banks and Bankers, 17 ; Corporations I., 14. College, Coil v., 4 Wr. 439 Affidavit, 11, 12 ; Contracts VIIL, 1, 3. Plank Road Co. v. Davidson, 3 Wr. 485 Corporations IV., 5. Corporations VI. Piatt, Cooper v., 3 Wr. 538 Equity L, 1. Plitt V. Cox, 7 Wr. 486 lEquity I., 81, 33, 88. Limitations I., 7. Pontius v. Nesbit, 4 Wr. 809 Attachment, 37. Errors and Appeals V., 1. Poor (Directors of) v.'School Directors, 6 Wr. 21 Taxes, 3. 332 POE — EAI Porter, Aurentz v., 13 Wr. 335 Courts, 13. Errors and Appeals V., 22, 23, 24. Miller v., 3 P. P. Smith, 392 Wills III., 12, 13. Porter's Appeal, 9 Wr. 301 Wills VI., 43. Post, Gardnerv., 7 Wr. 19 Evidence VI., 8. ' Practice IV., 1, 2. Post's Appeal, 3 Wr. 338 Extinguishment 3. Pott V. School Directors, 6 Wr. 133 Laud XIII., (J, 7, 8, 9. Potter Co. V. Oswayo Towns'p, 11 Wr. 163.Townsliip, 3. Neel v., 4 Wr. 4H3 Evidence VIII., 1. Potter and Page, Estate of, 4 P. F. Smith, 405 Assignee, &c., 23. Limitations IV., 38. School v., 7 Wr. 134 Lumber, 1. 139 Contracts XIII., 1. Powell V. Board of Missions, 13 Wr. 46 Slielly, U, 10, 16. Damages, 38. V. Burroughs, 4 P. F. Smith, 339. ...Estoppel, 35. Landlord and Tenant, 27, 28. Com. v., 1 P. F. Smith, 438 Execution IIL, 31. Widow, 1, 2. Power, Killion v., 1 P. F. Smith, 429 Courts, 18. Negligence, 12. Powers V. Qraydon, 8 P. F. Smith, 198 Bonds, 7. Insolvency and Insolvent, 4, 5, 6. Pownall V. Steele, 3 P. P. Smith, 446 Errors and Appeals V., 37. Premium Fund Ass'n's Appeal, 3 Wr. 1.06. .Building Association, 3 ; Constitutional Law, 21, 23. Presbyterian Cong'n, Duffy v., 12 Wr. 46. ..Estoppel, 31. Evidence v., 38; VL, 36. Prescott v. Duquesne, 13 Wr. 118 Assumpsit, 11 ; Corporations IV., 23. Evidence III., 41. Practice IV., 15. Preston v. Jones, 14 Wr. 54 Evidence VII., 30. Fraud I., 36. 37. Price, Gougler v., 13 Wr. 86 Contracts VIIL, 9. V. Mott, 3 P. F. Smith, 315 Taxes, 38, 39. Price's Appeal, 4 P. F. Smith, 473 Auditors, 4. Equity I., 93, 94. Limitations IV., 45. Trusts III. , 25. Pritchett V. Wilson, 3 Wr. 434 Evidence XVII., 3. Guarantee and Guarantoi', 3. 4, 5. Proctor, Jauretche v., 13 Wr. 466 Wills VL, 57. Pulis V. Sanborn, 3 P. F. Smith, 368 Contracts VL, 14. Lien, 4. Pulpress V. African Church, 13 Wr. 304 Trusts VL, 3, 4. Quinuv. I-Ieart, 7 Wr. 337 Land L, 30, 31. Kadclifle, McKuight v., 8 Wr. 156 Errors and Appeals IV., 40. Land IX., 3, 4. Partner, Partnership III., 15, 16, 17, 18, 19, 30. Railroad Co. v. Adams, 4 P. P. Smith, 94. ...Corporations VL, 19. Demand, 1. Interest, 3. 5 P. P. Smith, 499.. Damages, 39. V. Allen, 3 P. F. Smith, 376.. ..Damages, 34, 35. AUeglieny v., 1 P. F. Smith, 338 Corporations IV., 43, 44, 45, 46. V. Armstrong, 2 P. P. Smith, 2«3 Errors and Appeals II., 2 ; IV., 48, 49, 50. 13 Wr. 180 Evidence IIL, 43. Kailroads II., 4, 5, 6, 7, 8. V. Bantom, 4 P. P. Smith, 495.Cliild, 4. Damages, 29. Mother, 1. Railroads II., 40. V. Bn-mingham, 1 P. F. Smith, 41...'. Railroads IIL, 11, 13. EAI— RAI V 33c Railroad Co. Bittenbendev v., 4 Wr. 2G9 Assignee, 8, 3, 4, 5, 6. V. Bowers, 12 Wr. 3!) Corporations V., 25, 26, 27, 38. V. Brnner, 5 P. F. Smitli, 318.. Railroads I., 63. Canal Co. v., RP, F. Smith, ISO. Capital. V. Canfleld, 10 Wr. 311 Corporations IV., 20. T. Chenewith, 3 P. P. Smitli, 383 Railroads IL, 44, 45, 46, 47,48, 49, 50. T. City, 11 Wr. 189 Constitutional Law, 55. Corporations VI., 16, 17. 314 Cinistitiitionai Law, 56. Equity I., 4i), 50, 51. License, i. Railroads III., 1, 2, 3, 825 Conslitulional Law, 57. License, 5. Railroads III. , 4. Clopton v., 4 P. P. Smith, 356..Moi'tgage V., 37. Taxes, 38, 3!). V. Colwell, 3 Wr. 337 Corporations IIL, 1, 3, 3 ; IV., 1, 3, 3, 4. Com. v., 1 P. F. Smith, 351.. ..Contracts XIII., 31. Mandamus, 16. 3 P. F. Smith, 9 Corporations VIII., 14, 15, 16. 63 Corporations VIII., 33, 34, 35, 26, 27. Quo Warranto, 6, 7, 8, 9, 10. 68 Corporations IV., 43. 5 P. F. Smith, 4.53.. ..Constitutional Law. 79 ; Corporations I., 17. V. Coyle, 5 P. P. Smith, 396.. ..Evidence V., 43 ; XVIII., 11. Railroads II. , 60, 01. (Crosscut,) Com. v., 3 P. F. Smith, 63 Practice V., 5. Dorian v., 10 Wr. 520 Railroads I., 13, 13, 14. Drake v., 1 P. F. Smith, 340,. .Railroads I., 47; IL, 41. V. Duquesne, 10 Wr. 333 Corporations IL, 15, 16, 17; IV., 31. Railroads IIL, 6. (East Penna. ) v. Hiester, 4 Wr. 53 Evidence XVIII. , 3, 4. ■V. Evans, 3 P. P. Smith, 350... Practice VIL, 20. Railroads IL, 1, 3. Farnham v., 5 P. P. Smith, 53. Carriers, 8. V. Grain Elev. Co., 14 Wr. 499 Equity I., 19. Railroads!., 33; Roads, 42. Gratz v., 5 Wr. 447 Assignee, &c., 8; Constitutional Law, 26 ; Corporations IV-, 8. Gwinner v., 5 P. F. Smith, 120. Railroads I., 53. Statutes, 15. Y Hagan, 11 Wr. 348 Errors and Appeals IV., 36, 37, 38, 39. Haldeman v., 14 Wr. 435 Land IX., 8; XIIL, 11, 13. License, 7. Limitations I., 12 ; IV., 23. Harvey v., 11 Wr. 438 Railroads L, 41, 42J, 43, 44, 45, 46. v. Heileman, 13 Wr. 60 Errors and Appeals IV., 42. v. Heister, 4 Wr. 53 Land VIIL, 1, 3. Railroads I., 15, 16. v. Henderson, 1 P. F. Smith, 315 Carriers, 8. Railroads IL, 42, 43, 51, 53, 58, 54, 55, 56. 7 Wr. 449 Railroads IL, 31, 32. Heyl v., 1 P. F. Smith, 409 License, 9. * Limitations I., 87. Hornstein v., 1 P. F. Smith, 87.Railroads I., 45, 46. V. Hottenstine, 11 AVr. 38 Evidence IL, 13; Railroads I., 41. V. Hughes, 3 Wr. 521 Trover, 3, 4, 5. V Hummell, 8 Wr. 375 Errors and Appeals IV., 30. Railroads IL, 22. Hunt v., 1 P. F. Smith, 475 Negligence, 18, 14, 15, 10, 17. Irwin v., 7 Wr. 488 Attachment, 2. Y. Johnson, 4 P. F. Smith, 127.Affidavit, 38. Corporations VI., 18, 19, 30, 21. 834 RAI — EAI Railroad Co. v. Johnson, 4 P. F. Smith, 127. Mortgage III., 5 ; V., 26. V. Keyser, 4 P. F. Smith, 94.. ..Affidavit, 23. V. Land Co., 4 P. P. Smith, 28. Railroads III., 13, 14, 15. V. Livermore, 11 Wr. 405 Mortgage I., 10, 11. Maltby t., 3 P. F. Smith, 140. Constitutional Law, 2 ; Corporations I., 6, 7. Nou-Resident, 1. Residence 3. Taxes, 25. MoElrath v., 5 P. F. Smith, ISO.Bonds, 8 ; Constitutional Law, 78. Mortgage I., 13. V. McTighe, 10 Wr. 316 Railroads IL, 19, 20, 31 ; III., 5. V. Miles, 5 P. F. Smith, 309....C:arriers, 13. Miller v., 4 Wr. 237 Corporations V., 5, 6. MuhlenbergT., 11 Wr. 16 Corporations V., 42. V. Myers, 5 P. F. Smith, 388... Railroads II., 59. O'Donnell v., 14 Wr. 490 Errors and Appeals VI., 10. Railroads IL, 9. V. Parke, 6 Wr. 81 Land XII., 1. (Penna.) v. Com., 3 Wr. 403.. Executions IV., 1, 3. V. Henderson, 1 P. F. Smith, 315. ..Negligence, 10, 11. V. Lutheran Con'n, 3 P. F. Smith, 445.Practice VII..16. Railroads I., 34, 35, 36 ; Roads, 43, 44, 45. V. Pennock, 1 P. P. Smith, 244 Foreign Attachment, 11, 12. Pinneov., 7 Wr. 361 Railroads I., 31. Pittsburg v., 13 Wr. 355 Corporations IV., 35, V. Railroad, 1 P. F. Smith, 469. Limitations IV., 41. V. R. R- Co., 3 P. F. Smith, 20. Corporations VIII., 18, 19, 30. V. Railway Co., 3 P. P. Smith, 3a4 Equity L, 30. V. Rehman, 13 Wr. 101 Railroads II. , 3. Y. Robinson, 8 Wr. 175 Railroads IL, 34, 35. Rowland v., 3 P. F. Smith, 350. Corporations IV-, 30. V. Schwarzenberger, 9 Wr. 208. Carriers, 6. Shipper v., 11 Wr. 338... , Constitutional Law, 69; Corporations IV., 38, 39. V. ShoUenberger, 4 P. F. Smith, 144 Fraud IIL, 17. Railroads I., :;8, 39. Snyder v., 5 P. F. Smith, 340.. Railroads I., 54. V. Spearen, 11 Wr. 300 Evidence V., 27. Railroads IL, 15, 16, 17, 18. V. Stewart, 5 Wr. 54 Corporations V., 9, 10. Errors and Appeals IV., 7. Estoppel, 5. 58 Contracts IV., 1. (Sunbury and Erie,) Bitten- bender v., 4 Wr. 377 Executions V., 3. V. Titus, 13 Wr. 377 Attorneys at Law, 6 ; Contracts XIII., 16 ; Corporations IV., 33. Turnpike Co. v., 4 P. F. Smith, 345 RailroadsL, 40; IL, 37. V. Vandiver, 6 Wr. 365 Railroads IL, 23, 24, 2.3, 36. Wadhams v., 6 Wr. 303 Railroads L, 33, 34, 3.3. V. Waterman, 4 P. P. Smith, 337 Constitutional Law, 61. Practice VL, 3. Taxes, 40. Weaver v., 14 Wr. 314 Execution I., 4. Wenner v., 5 P. F. Smith, 460.Railroads II. , G3, 63, 64. v. WUcox, 13 Wr. 161 Contracts XIL, 4; XIIL, 11, 12. Estimates. Foreign Attachment, 9, 10. Non-Joinder. V. Williams, 4 P. F. Smith, lOS.Corporations IL, 19, 20 ; IV., 47, 48, 49. v. Zug, 11 Wr. 480 Agencv and Agent, 4. Practice IV., 13. EAI — EBE 335 Railway Co., Church v., 9 Wr. 339 Railroads I., 20. V. City, 1 P. F. Smith, 463. ...Interest, 11. (ad and 3d street) v. City, 1 P. P. Smith, 465 Taxes, 33. 468 Interest, 9. T. City, 13 "Wr. 351 Capital ; Corporations I., 5. ^ .Corporations v., 37; Dividend, 1. Evidence v., 31. Taxes, 10. Interest, 1. 1 P. P. Smith, 465. ...Capital ; Corporations I., 9, 10, 11. Com. v., 3 P. P. Smith, 506. ..Corporations IV., 31, 32. Corporations YIII., 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 13. 3 P. F. Smith, 9 Mandamus, 11. v. Fielding;, 13 Wr. 330 Railroads II., 10, 11, 13, 13, 14. V. Hinds, 3 P. P. Smith, 513.. Railroads II., 57, 58. V. Land Co., 4 P. P. Smith, 28.Equity I., 65, 66, 67, 68. R. R. Co. v., 3 P. P. Smith,224.Equity 1., 30. Sparhawk v., 4 P. F. Smith, 401 Equity I., 84, 85, 86, 87, 88, 89, 90, 01, 93. 433 Sunday, 1. 453 Corporations VIII., 31, 33. V. Stutler, 4 P. P. Smith, 375. Child, 3. TNIother, 1. Railroads II., 38, 39. Ralston v. Groff, 5 P. P. Smith, 376 Errors and Appeals IV., 12. Land VI., 13. V. Wain, 8 Wr. 379 Shelly, 3,4. Trusts v., 1, 3. Ramsey, Fleming v., 10 Wr. 353 Contracts VL, 10. Fraud IP, 9. Roads, 22. Randall v. Wait, 12 Wr. 127 Costs, 10. Ranshv. Ward, 8 Wr. 389...., Corporations IL, 13. Comities, 3. Sheriff, 3. Raynor, Dunwoody v., 3 P. F. Smith, 293.. Practice VTI., 21. Read, Shaw v., 11 Wr. 96 Evidence III., 40. Land XIV., 3. 103 Trusts and Trustees I., 5. Reading R. R. Co. v. City, 11 Wr. 335 Constitutional Law, 57. License, 5. Railroads III., 4. Maltbyv.,3P.P. Smith, 140 Constitutional Law, 3 ; Corporations I., 6, 7. Ream v. Harnish, 9 Wr. 376 Estoppel, 13. Trespass, 9, 10, 11. Reber, University v., 7 Wr. 305 Corporations IV., 4, Mechanics' Claim, 11. Reddig, Gross v., 9 Wr. 406 Evidence III., 30. Husband and Wife IL, 37, 28. Reed, Barnett v., 1 P. P. Smith, 190 Case for Malicious Prosecution, 1, 3, 3, 4. Colvin v., 5 P. P. Smith, 375 Divorce, 13. V. Lukens, 8 Wr. 300 Insurance VL, 1. V. Palmer, 3 P. P. Smith, 379 Decedents' Estates IV., 9. V. Reed, 10 Wr. 239 Limitations IV. , 36. Robertson v., 11 Wr. 115 Evidence VII , 16. Pleading, Pleas, 23, 24. Practice IV., 10. Rees V. Livingston, 5 Wr. 113 Evidence II., 6; III., 10, 11, 12. Fraud L, 11. Reeside v. Reeside, 13 Wr. 322 Assumpsit, 15. Equity I., 15. Reeves' Abbott v., 13 Wr. 494 Decedents' Estates IL, 31. Equity L, 16. 414 Trusts and Trustees IIP, 33. City v., 13 Wr. 473 Covenant, 8. Practice IL, 2. 336 EBH — EOA Eehman, R. R. Co. v., 13 Wr. 101 Railroads II., 3. , Reifsnyder, Schuylkill v., 10 Wr. 44G Crimes, 21. Jail, 1; Keeper of Jail, 1. Reigart v. White, 2 P. F. Smith, 438 Guarantee and Guarantor, 15. Surety, 31. Rcilly, Huber v., 3 P. F. Smith, 113 Constitutional Law, 60. Election, 24. Reiser v. AVm. Tell Association, 3 Wr. 137..BuiIding Association, 3 ; Constitutional Law, 21. Reitz, Barr v., 3 P. F. Smith, 256 Executions VIL, 5. Reins, Hulseman v., 5 Wr. 396 , Election, 1, 2, 3. Equity I., 9. Renzlehausen v. Keyser, 12 Wr. 351 Husband and Wife V., 23. Trusts v., 13. Rexford, Selover v., 2 P. F. Smith, 308 Errors and Appeals I., 11. Evidence III., 63. Witness, 1, 3, Reynolds v. Caldwell, 1 P. F. Smith, 398.... Arbitrament and Awards, 17, 18, 19 ; Con- tracts XII., 5. Estimates. Weidensaul v., 13 Wr. 73 Evidence VI., 34. Sheriff, 15, 16, 17. Rhey V. Baird, 1 P. F. Smith, 85 Appeal, 1. Rhinesv. Baird, 5 Wr. 356 Evidence IIL, 15; IV., 5. Vendor and Vendee I., 8. 263 Mortgage IL, 1, 2, 3, 4, 5 ; IV., 1. V. Clark, 1 P. P. Smith, 96 Constitutional Law, 64, 65. Rboads' Appeal, 3 Wr. 186 Decedents' Estates I., 1, 3. Rhoades v. Co. of Armstrong, 5 Wr. 92 Evidence III., 7, 8, 9. V. Com., 12 Wr, 3iJ6 Crimes, 25. 26. Evidence V., 30. Seller v., 3 Wr. 530 Errors and Appeals X., 3. Pleading, Pleas, 2, 3. 513 Limitations 11., 2, 3. Rhule, Iron Co. v., 3 P. F. Smith, 93 Set-off, 31. Costs, 12. Rice v. Shuman, 7 Wr. 37 Execution IL, 3. Partner, Partnership II. , 7. Vendor and Vendee IV., 7. Rich V. Keyser, 4 P. F. Smith, 86 Errors and Appeals VIIL, 6. Landlord and Tenant, 36. Richards v. Com., 4 Wr. 146 Surety, 17, 18. V. Elwell, 13 Wr. 361 Fraud IL, 15, 16, 17. Limitations I., 10. V. Richards, 10 Wr. 78 Contracts VL, 9. Wills VL, 46. Richards v., 10 Wr. 78 Wills VL, 46. Richardson, O'Hara v., 10 Wr. 385 Land L, 34; XVIIL, 5, 6, 7. Piactice VIL, 4. V. Montgomery, 13 Wr, 203 Executions VL, 11, 13, 13. Ship, 6, 7. Ricketson v. Com., 1 P. F. Smith, 155... .....Sheriff, 31, 23, 33. Rider v. Maul, 10 Wr. 376 Fraud IL, 10. Limitations L, 27, 28. Maul v., 1 P. F. Smith, 386 Fraud IL, 31. 384,385 Fraud V., 6, 7, 8, 9, 10, 11. 381, 385 Limitations IV., 40. Ridgway V. O'Neill, 13 Wr. 17J Statutes, 5. Taxes, 9. Richie's Appeal, 4 P. P. Smith, 97 Shelly', 32. Wills VI, , 97. Rifener V. Bowman, 3 P. F. Smith, 313 Deeds, 13. 313 Fraud IV., 9. Land I., 49. Rishellv. Rishell, 13 Wr. 243 Execution IIL, 23. 246 Constitutional Law, 59. Risk's Appeal, 3 P. F. Smith, 269 Wills VL, 85. Road Commissioners v. Fickinger, 1 P. F. Smith, 48 Certiorari, 4, 5, 6. EOA — EYA 337 Road Commissioners v. Pici:eriiig, 1 P. F. Smitli, 48 Roads, 33, 34. V. Morgan, 11 Wr. 276. Railroads III., 9. V. Davidson, 3 Wr. 435. Corporations v., 1. Road, (Hickory Tree,) 7 Wr. 139 Corirts, 4. in Milton, 4 Wr. 300 Roads, 3, 4, 5. Weaver's, 9 Wr. 405 .Errors and Appeals VI., 9. Estoppel, 9. Robb's Appeal, 5 Wr. 45 Errors and Appeals V., 3. Evidence III., G. Trusts and Trustees III., 9, 10, 11, 12. 50 Decedents' Estates, II., 5 ; V., 8. Roberts v. Matlaok, 4 P. P. Smith, 142 Shelly, 23. V. Roberts, 4 P. F. Smith, 305 Divorce, 8, 9, 10. Errors and Appeals IV., 28. V. Young, 6 Wr. 439 Evidence IV., ; V., 9. Roberts' Appeal, 3 Wr. 417 Decedents' Estates IV., 1. Robertson V. Reed, 11 Wr. 115 Evidence VII., 10. Pleading, Pleas, 23, 34. Practice IV., 10. Robinson, Ballentine v., 10 Wr. }77 Contracts X., 2. Covert v., 10 Wr. 274 Shelly, 13. Wills VI., 48, 49. Hill v., 8 Wr. 380 Executions VI., 6. V. Loomis, 1 P. F. Smith, 78 Mortgage III., 8 ; V., 14. R. R. Co. v., 8 Wr. 175 Railroads II., 34, 35. Stoddard v., 4 P. F. Smith, 886.. Affidavit, 25. Mortgage V., 38. V. Tyson, 10 Wr. 286 Errors and Appeals IV., 33. Pleading, Pleas, 21, 23. Practice IV., 9. Vendor and Vendee II., 4, 5. V. Wallace, 8 Wr. 139 Husband and Wife II., 1. V. White, 8 Wr. 3.55 Landlord and Tenant, 1, 3. Rockafellow v. Baker, 5 Wr. 319 Contracts VII., 1. Equity I., 6. Rodgers, Keyserv., 14 Wr. 275 Evidence III., 48. Evidence XX., 26 ; Trover, 16, 17. Rogers, Com. v., 8 P. F. Smith, 470 Decedents' E,states II., 40, 41. Gilmore v., 5 Wr. 130 Decedents' Estates V., 9, 10. Orphans' Court, 4. Housum v., 4 Wr. 190 Pleading, Pleas, 6. Set-off, 1. Roman, McClure v., 3 P. F. Smith, 458 Judgment IV., 9, 10. Ross, Coleman v., 10 Wr. 180 Equity III., 4 ; IV., 3. V. Malcom, 4 Wr. 284 Roads 1, 2. Trespass, 5. McWilliams v., 10 Wr. 869 Intestate, 4. Swope v.,4Wr. 186 Bills of Exchange and Promissory Notes, 11. , 4. Webster v., 6 Wr. 418 Residence, 3. Rowe V. Sharp, 1 P. F. Smith, 36 Bailee, Bailments, 4, 5. Rowland v. Pa. R. R. Co., 3 P. F. Smith, 250. Corporations IV., 30. Updegralf v., 2 P. F. Smith, 317... Errors and Appeals IV., 51. Evidence III., 64, 65. Evidence XV., 3. Royer, Directors v., 7 Wr. 146 Mortgage II., 9, 10. Rumfelt V. Clemens. 10 Wr. 455 Husband and Wife III., 10. Rush V. Vought, 5 P. F. Smith, 437 Executions VII., 7. Husband and Wife II., 47. Russell V. Bell, 8 Wr. 47 Mechanics' Claim, 10, 17. Marks v.. 4 Wr. 372 Practice V., 1. V. Miller, 4 P. F. Smith, 154 Collateral Security, 10. Set-ott; 22. Wicliersham v., 1 P. F. Smith, 37... Affidavit, 27. 71 ..LunitationsIV., 39. Ruth's Appeal, 4 P. F. Smith, 173 Judgment IV., 13 ; VL, 7. Ryan, Donnelly v., 5 Wr. 300 Evidence III., 18. Partner, Partnership III., 3, 4, 5, 6. 22 338 SAB— SCH Sabbiilh, (HistoiTof,) Read, J.,4P.F.Smith, 433 Sunday, 1. Sadler, Scott v.. 2 P. F. Smith, 211 Estoppel, 39. Mortgage v., 25. Set-otr, 10. Baffin, Gault v., 8 Wr. 807 Husband and Wife II., 15. Sailor, Mervine v., 3 P. F. Smith, 10 Ground-rent, 17. Sallada, Malone v., 12 Wr. 419 Land I., 41, 42, 43, 44, 45. Salt Co. V. Neel, 4 P. F. Smith, 9 Evidence III., 72 ; Practice VIII., 4; III., 3. Land IX,, 13 ; XIV., 4; XIX., 6. Sanborn, Pulisv., 3 P. F. Smith, 368 Contracts VL, 14. Lien, 4. Bills of E.xchange and Promissory Notes II., 13. Sandford, Starr v., 9 Wr. 193 Debtor and Creditor I., 6. Evidence VI., 14; XIX., 5. Set-off, 7. Sands, Express Co. v., 5 P. F. Smith, 140... Carriers, 8, 13- Sandy Lick Road, 1 P. F. Smith, 94 Roads, 37, 28. Sankey's Appeal, 5 P. F. Smith, 491 Partilion, 13. Sanner, Benford v., 4 Wr. 9 Evidence V., 3, 4, 5; VIL, 6, 7; XX., 1. Vendor and Vendee IV., 5. Satterthwaite's Appeal, 6 Wr. 25 Wills VL, 33, 23. Sauerman v. Binder, 7 Wr. 309 Mortgage V., 2. Saulsbnry v. City, 8 Wr. 303 Corporations IL, 10; IV., 15. Sauiman v. Bodey, Wr. 476 Bills of Exchange and Promissory Notes I., 5. Evidence III., 23. Savage, Brock v., 10 Wr. 83 Evidence XX., 12. Land XVIII., 4. Saving Fund, Denny v., 3 Wr. 154 Constitutional Lavr, 31. Reiser v., 3 Wr. 137 Building Association, 2 ; Constitutional Law, 21. . Saylor's Appeal, 3 Wr. 495 Errors and Appeals X., 2. Practice VIII., 1. Schafer v. Eneu, 4 P. F. Smith, 304 Child, 2; Constitutional Law, 74. Trusts v., 18, 19. Scliaffer, Aurand v., 7 Wr. 363 Husband and Wife IL, 9, 10. Schall's Appeal, Gaul v. Lauer, 4 Wr. 170. ..Executions V., 3. Schell, Benford v., 5 P. F. Smith, 398 Executions VIL, 6. Schick V. Pharo, 18 Wr. 884 ." Executions VIIL, 20. Schick's Appeal, 18 Wr. 380 Executions VIIL, 19. Schilling v. Durst, 6 Wr. 128 Debtor and Creditor I., 13, 14. Schimnielfeder, Hutchinson v., 4 Wr. 390 ...Land X., 1. Scliloss, Com. v., 4 P. F. Smith, 28 Mandamus, 20. Courts, 15. Schmertz v. Dwyer, 3 P. F. Smith, 335 Damages, 37. Vendor and Vendee III., 13. Keeler v., 10 Wr. 135 Contracts VIIL, 7; XIIL, 6. Schnepf's Appeal, 11 Wr. 37 Lis Pendens, 3. Mortgage V., 9. Schnitzel's Appeal, 13 Wr. 33 Evidence VL, 29. Subrogation, 5. Surety, 16. Schober V. Mather, 13 Wr. 31 Practice I., 4, 5. Schofield V. Ferrers, 11 Wr. 194 Evidence VL, 17. Malicious Prosecution, 4, 5. 10 Wr. 438 Damages, 10. Replevin, 3, 4, 5, 6. Scholle.nberger, Ins. Co. v., 8 Wr. 259 Practice IV., 5, 6. B. R. Co. v., 4 P. F. Smith, 144 Railroads I., 38, 89; Roads, 46. V. Seldonridge, 13 Wr. 83. ..Evidence VL, 28. Practice IV., 18. School T. Potter, 7 Wr. 134 Lumber, 1. 139 Contracts XIIL, 1. School Directors v. Anderson, 9 Wr. 388 Schools, 5. Directors of Poor v., 6 Wr. 21 .....Taxes, 3. SCH — SEL 339 School Directors, Grim v., 1 P. F. Smith, 219. Bonds, 3. McLain v., 1 P. P. Smith, 196 Estoppel, 27. Fraud 11., 23; V., 13. Pott v., 6 Wr. 132 Land XIII., fi, 7, 8, 9. Speer v., 14 Wr. MO Conatilutional Law, 43, 43, 44, 45. Tyson v., 1 P. F. Smith, 9. ..Constitutional Law, 63, 63. Wharton v., 6 Wr. 358 Equity L, 8. School, 3. School Dist. V. Learn, 3 P. F. Smith, 180... Contracts VI., 15, 16, 17. Schrach, Zubler v., 10 Wr. 67 Land L, 27, 28, 29, 30, 31, 33, 83; XVIIL, 1, 2, 3. Limitations I., 34. Schreffler, Ins. Co. v., 8 Wr. 269 Evidence 11., 11; X., 3; XL, 3. Insurance VII., 1. Pleading, Pleas, 16. Practice IV., 7. Lycoming Ins. Co. v., 6 Wr. 188.1nsurance 11., 5. Schultz, Short v., 7 Wr. 207 Contracts VL, 6, 7. Schuylkill, Boehman v., 10 Wr. 453 Surety, 2. Schuylldll Co., Sugar Loaf v., 8 Wr. 481.. ..Mandamus, 5. V. Montour, 8 Wr. 484 Poor, 1, 2, 3, 4. V. Reifsnyder, 10 Wr. 446. ..Crimes, 21. Jail, 1; Keeper of Jail, 1. Poor, 1, 2, 3. Schwartz, Keefer v., 11 Wr. 503 Decedents' Estates IL, 39. Wills v., 5. Schwarzenberger, R. R. Co. v., 9 Wr. 308.. Carriers, 6. Scott, Brown v., 1 P. F. Smith, 357 Debtor and Creditor I., 13. Mortgage V., 16, 17, 18, 19, 20, 31. 362 Attachment, 13. 363 Evidence XX., 38, 29. 366 Evidence v., 35. Curry v., 4 P. F. Smith, 370 Constitutional Law, 73. Corporations V., 53, 53, 54. Equity I., 80, 81, 81J. v. Fritz, 1 P. F. Smith, 418 Mortgage V., 33, 33. Set-off, 18. V. Hunter, 10 Wr. 193 Negligence, 2. Perry v., 1 P. F. Smith, 119 Land XII., 13, 13, 14, 15, 16; XIX., 3. Wills VL, 66. V. Sadler, 2 P. F. Smith, 211 Estoppel, 39. Mortgage V., 35. Set-oflF, 19. Turner v., 1 P. F. Smith, 136 Wills VI.,, 66. 133 Land XIX., 3, 4. Warner v., 3 Wr. 374 Arbitrament and Award, 3; Evidence XVII., 1. Evidence v., 1; VL, 1. Scranton Gas Co., Littel v., 6 Wr. 500 Foreign Attachments, 4, 5, 6. Scull V. Mason, 7 Wr. 99 Bills of Exchange and Promissory Notes L, 6. Evidence III., 34. Searles, Wolleshlare v., 9 Wr. 45 Surety, 22. Second and Third Street Railway Co. v. City of Philadelphia, 1 P. P. Smith, 465...Taxes, 33. 468. ..Interest, 9, 11. Secrist v. Zimmerman, 5 P. F. Smith, 446...Eiectment II., 37. Seely, Bates v., 10 Wr. 348 Husband and Wife I., 4, .5. V. Seely, 8 Wr. 434 Land XV., 1. Shelly, 8. Wills VI., 33. Seider's Appeal, 10 Wr. 57 Execution VIII., 6. Seip V. Storch, 2 P. F. Smith, 310 Evidence III., 60. Selby, Coulter v., 3 Wr. 3.i8 Decedents' Estates III., 1. Selden V. Neemes, 7 Wr. 431 Affidavit, 3, 4, 5; Bills of Exchange and Promissory Notes I., 7. Seldonridge, Schollenherger v., 13 Wr. 83. .. Evidence VL, 38; XX., 38. 340 SEL — SHO Seldoni-iclge, Scliollenberger v., 13 Wr. 83. ..Practice IV., 18. Sellers V. Burk, 11 Wr. 344 Practice V., 2, 3, 4. Selover v. Rexford, 3 P. P. Smith, 308 Errors and Appeals I., 11. Evidence III., 63 ; Practice VII., 32. Witness, 1, 3. Seminary v. Wall, 8 Wr. 353 Estates Tail, 1, 2, 8, 4. AVills VI., 33. Sennett, Ins. Co. v., 5 Wr. 161 ...Evidence XI., 1, 3; XIX., 1. Insurance II., 3. Sewald, Hill v., 3 P. F. Smith, 271 Debtor and Creditor X., 5. Ilusliand and Wife I., 8. Real Estate, .5. Shaffer V. Shaffer, 5 Wr. 51 Limitations IV., 5, 6, 7, 8. 14 Wr. 894 Dower, 17. Oiphans' Court, 19. Shaffer's Appeal, 10 Wr. 181 Decedents' Estates I., C ; II., 24, 25. Orphans' Court, 16. Shalemiller v. McCarty, 5 P. P. Smith, 186.Land XVI., 18. Shall, Graver v., 6 Wr. 58 Water, 1,2. Shatter and Ebling's Appeal, 7 Wr. 83 Decedents' Estates II., 20, 21. Shankland's Appeal, 11 Wr. 103 Trusts V., 9. Shannon, Treas. Jefferson Co. v., 1 P. P. Smith, 333 Mandamus, 13, 14, 15. Sharon Iron Co. v. Erie, 5 Wr. 341 Land XII., 7, 8, 9. Sharp, Rowe v., 1 P. P. Smith, 36 Uailee, Bailments, 4, 5. Shaw V. Church, 3 Wr. 326 Debtor and Creditor!, 1, 3. Mechanics' Claim, 1. V. Read, 11 Wr. 96 Evidence IIL, 40. Land XIV., 2. 103 Trusts and Trustees I., 5. Sbaw's Appeal, 10 Wr. 407 Execution VIIL, 13, -13. 13 Wr. 177 Execution IIL, 28, 39. 183 Debtor and Creditor II., 27. Shay V. Henk, 18 Wr. 79 Errors and Appeals V., 30. Taxes, 8. Sheaffer, Eakman v., 12 Wr. 176 Evidence II., 14; V., 39. ,Tury, 5. Laud I., 38. V. Qeisenberg, 11 Wr. 500 Assumpsit, 9. Heister v., 9 Wr. 537 Ground-rent, 9, 10. Lycoming Ins. Co. v., 6 Wr. 188.. Insurance II., .3. Sheaffs' Appeal, 5 P. P. Smith, 403 Execution VIIL, 31. Sheets' Appeal, 3 P. P. Smith, 257 Wills VL, 7.5, 76, 77, 78, 79, 80, 81, 82, 83, 84. Estate, 2 P. P. Smith, 367 Trusts V., 20. Shermer's Appeal, 8 Wr. 336 Errors and Appeals V., 15. Wills I., 13. Wills IIL, 4. Sherwood v. Titman, 5 P. P. Smith, 77 Evidence V., 10. Husband and Wife V., 31. Shimerv. Jones, 11 Wr. 268 Suret}^ 3,4. 5, 6. Shippen v. Burd, 6 Wr. 461 Decedents' Estates VII., 5 ; VIIL, 1. Shipper V. Pa. R. R. Co., 11 Wr. 388 Constitutional Law, 09; Corporations IV., 38, 39. Shirk V. Bucher, 3 P. P. Smith, 94 Taxes, 35. Sliively V. Black, 9 Wr. 345 Frnud III., 7. Shoemaker, Hecksher v., 11 Wr. 249 Bills of Exchange and Promissory Notes L, 13, 14. V. King, 4 Wr. 107 Contracts II., 2. Fraud HI., I, 2. Shoenberger V. Hay, 4 Wr. 133 Land IV., 1. Shollenberger v. Brinton, 3 P. P. Smith, 9. ..Ground-rent, 16. V. Filbert, 8 Wr. 404 Ground-rent, 6. Ins. Co. v., 8 Wr. 359 Insurance IL, 9, 10, 11, 13. LandXIL, 3. Pleadina:, Pleas, 15. E. E. Co. v., 4 P. F. Smith, 144 Fraud IIL, 17. V. Seldonridge, 13 Wr. 83 Evidence XX., 23. SHO — SMI 341 SUope, Etnierv., 7 Wr. 110 Arbitrament and Award, 9. Short V. Sohultz, 7 Wr. 207 Contracts VI., 6, 7. Sliowalter, Gump v., 7 Wr. 507 Lien, 1. Shreiner's Appeal, 3 P. F. Smith, 106 Trusts V., 12. Wills VI., 93. Slu-everv. Brereton, 1 P. F. Smitli, 177 Damae;es, 23. Contracts IX., 10 ; X., 15 ; XIII., 19, 20. Shriver, Greer v., 8 P. F. Smitli, 2r,?i Dcblor and Creditor I., 15 ; II., 38. V. Nimick, 5 Wr. 80 Equity I.. 4. Shroderv. Hatz, 11 Wr. 528 Collateral Security, 5. Shrom V. Williams, 7 Wr. 520 Evidence III., 25, 2(1. Shultz, Irwin v., 10 Wr. 74 Arbitrament and Award, 2 ; Assumpsit, 3, 4, 5. Shuman, Rice v., 7 Wr. 37 E.xccution II., 3. Partner, Parlnersliip II., 7. Vendor and Vendee IV., 7. Sidle V. Anderson, 9 Wr. 464 Bills of Exchange and Promissory Notes II., 15, 16. Fraud III., 9. Silknitter's Appeal, 9 Wr. 365 Wills VI., 43, 44. Silverthorne, Miranville v., 13 Wr. 147 Estoppel, 32. Fraud II., 11. Simpson v. Thornton, 4 P. P. Smith, 391.. ..Decedents' Estates XL, 4. Landlord and Tenant, 42. Sims' Appeal, 8 Wr. 345 Wills VL, 31. Sinclair V. Healy, 4 Wr. 417 Fraud L, 7. Singer v. Kelly, 8 Wr. 145 Evidence X., 4, 5. Partner, Partnership III., 11, 12, 13. Sipes V. Mann, 3 Wr, 414 Execution III., 1. Sisk, Gardner v., 4 P. P. Smith, 506 Estoppel, 39. Executions V., 13. Sitgreaves v. Bank, 13 Wr. 359 Bills of Exchange and Promissory Notes I., 15 ; Collateral Security, 1, 6. Slam, Butler v., 14 Wr. 456 Contracts IIL, 8. Decedents' Estates III., 27. Errors and Appeals IV., 43. Evidence III., 55. Evidence XX., 27. Former Recovery, 16. Slifer, Com. v., 3 P. F. Smith, 7 Corporations VIII., 28, 29, 30. 71 Mandamus, 12. Statutes, 10. Sloat V. Ins. Co., 13 Wr. 14 Insurance VL, 4. Slonecker v. Garrett, 12 Wr. 415 Agency and Agent, 5. Errors and Appeals IV., 41. Smedley T. Erwin, 1 P. F. Smith, 445 Acts of Assembly, 1 ; Constitutional Law, 67, 68. Equity I., 60. Roads, 30, 31, 33. Smith, Academy of Music T., 4 P. P. Smith, 130 Ground-rent, 19. Bickham v., 5 P. F. Smith, 335 Contriicts IV., 4. Trusts IV. , 6. V. Brooke, 13 Wr. 147 Attachment, 36, 33. Debtor and Creditor IV., 4. Chamberlain V. , 8 Wr. 431 Bailee, Bailments, 3. V. Com., 5 Wr. 335 Courts, 13. 4 P. F. Smith, 209 Crimes, 50, 51. ]\[undamus, 1, 3, 3. Com. v., 9 Wr. 59 Quo Warranto, 3. V. Ege, 3 P. P. Smith, 419 Malicious Prosecution, 8. Emerson v., 1 P. F. Smith, 90 Debtor and Creditor II., 39. V. Emerson, 7 Wr. 456 Evidence VL, 13; VIL, 13, 13. Execution II., 4. Execution III., 10, 11, 12, 13. Partner, Partnership I., 8. Partner, Partnership IIL, 8. V Prazier, 3 P. F. Smith, 326 Eriors and Appeals V., 39. Practice v., 6. 342 SMI— SPB Smith V. Prazier, 3 P. F. Smith, 336 Practice VII., 19. Houbeal's Appeal, 9 Wr. 484 Partners, Partnership III., 31. Kellum v., 3 Wr. 341 Evidence I , 1. V. Kessler, 8 Wr. 143 Pleading, Pleas, 19. Bills of Exchange and Promissory Notes I., 10. V. Lathrop, 8 Wr. 336 Abatement, 1. Lis Pendens, 1. States of the Union, 1. V. McKenna, 3 P. P. Smith, 151 Contracts VI., 13. Fraud III., 15. V. Milligan, 7 Wr. 107 Contracts III., 1, 3, 3 ; IV., 3. V. O'Conner, 13 Wr. 318 Errors and Appeals IV., 17, 18, 19, 30,31. V. Smith, 3 Wr. 441 Evidence VII., 1. Evidence XVIIL, 1. 9 Wr. 403 Husband and Wife V., 19. Limitations IV., 18. Thomas v., 6 Wr. 68 Mechanics' Claim, 7, 8, 9, 10. Smith's Appeal, 11 Wr. 138 .Judgment I., 3. 4; IIL, 3. Mortgage IV., 8, 9. 434 Decedents' Estates IL, 38; VIL, 13, 13. Smull, Berger v., 3 Wr. 302 Warrant of Arrest, 1, 3, 3. Smyser, Brooks v., 13 Wr. 86 Decedents' Estates II., 39^,30. Limitations I., 29. Limitations IV., 33. Mortgage V., 8. Smyth, MoBride v., 4 P. F. Smith, 245 Dower, 19. Trusts v., 16, 17. Wills IV., 34. Wills VI., 98. Wells v., 5 P. P. Smith, 159 Land XVI., 16, 17. Snavely v. Com., 4 Wr. 75 Errors and Appeals IV., 3. Sherifi; 1. Snowden, Coal Co. v., 6 AVr. 488 Constitutional Law, 39, 30. N. Pa. Coal Co. v., 6 Wr. 488. ...Equity I., 34 Snyder v. Carfrey, 4 P. P. Smith, 90 Errors and Appeals VIII., 1, 2, 3, 4, 5. Landlord and Tenant, 37. Practice I., 6. V. Christ, 3 Wr. 499 Fraud L, 1, 3, 3. 508 Estoppel, 2. Executions V., 1. Laud III., 1. V. R. R. Co., 5 P. P. Smith, 340. ...Railroads I., 54. Swanger v., 14 Wr. 218 Attachment, 33, 34. Estoppel, 35. Thomas v., 3 Wr. 317 Freight, 1, 3. Snyder's Appeal, 4 P. P. Smith, 67 Auditors, 6. PartitiDu, 7. Trusts III., 33. Society, (Am. Philos.,) City v., 6 Wr, 9 Taxes, 1. ^ V. Com., 3 P. P. Smith, 125 Corporations IV., 27, 38, 39. Mandamus, 17, 18, 19. 135 Sunday, 3. Sorg, Millingar v., 5 P. P. Smith, 315, Estoi)pel, 40. Bonder, Del Valle v., 1 P. P. Smitli, 442 Atlreightment, 1. Southwark R. R. Co. v. City, 11 Wr. 314. ...Constitutional Law, 56. Equity I., 49, 50, 51. Railroads III., 1. 3, 3. Southwood, Stanley v., 9 Wr. 189 Arbitinment and Award, 8. Spalding, Braine v., 2 P. P. Smith, 347 Attorneys at Law, 10; Bills of Exchange and Promissory Notes I., 18. Evidence III., fii, 63. Sparhawkv. R. W. Co., 4 P. P. Smith, 45:i.Corp()rations VIII., 31, 32. Equity I,, 84, 85, 86, 87, 88, 89, 90, 91, 93. 401, 403. Sunday, 1. Spaulding V. Andrews, 12 Wr. 411 As'iumpsit, 13; Bills of Exchange and Prom ssorv Notes II., 23, 23. Fraud III., 13. Speakman v. Porepaugh, 8 Wr. 363 Land I., 33 ; II., 3, 3 ; IV., 5, 6 ; XIV., 1. SPE— STB 34! Speaknian v. Forepaugh, 8 Wr. 363 Vendor and Vendee IV., 13, 14, 15, IG. Spear, Still v., 9 Wr. 168 Attachmunt, 30. Shelly, 9, Trusts v., 3. Wills VI., 34. Spearen, R. R. Co. v., 11 Wr. 300 Evidence V., 27. Railroads II., 15, 16, 17, IB. Speer V. Bidwell, 8 Wv. 23 Arbitrament and Awards, 6, 11. V. Evans, 11 Wr. 141 Mortgage IV., 8. V. School Directors, 14 Wr. 150 Constitutional Law, 42, 43, 44, 45. Spencer v. lus. Co., 3 P. F. Sn\ith. 353 Insurance VI., 3, 3 ; VII., 4. Ins. Co. v., 8 P. F. Smith, 353 Evidence XI., 8. Insurance II., 15, 16- Spring Garden Association v. Tradesman Loan Association, 10 Wr. 493. Building Association, 5. Mortgage VI., 2. Road, 7 Wr. 144 Roads, 15, 16, 17, 18. Spring Township, Marion v., 14 Wr. 308.. ..Poor, 9, 10. Springer v. Springer, 7 Wr. 518 Errors and Appeals V., 13. Subrogation, 2. Springer's Estate, IP. F. Smith, 342 Decedents' Estates II., 34, ?>', 36; VIL. 16. Trusts and Trustees, II , 10. Trusts III., 38, 29. Stafford V. Henry, 1 P. F. Smitli, 514 Evidence V., 36. 518 Errors and Appeals IV., 47. Stahlman, Cross v., 7 Wr 139 Mortgage VI., 1. Stair V. Bank, 5 P. F. Smith, 364 Banks and Bankers, 16. Decedents' Estates II., 46. Evidence v., 40. Stanley v. Southwood, 9 Wr. 189 Arbitrament and Awai'ds, 8. Stark V. Puller, 6 Wr. 330 Evidence VI., 6. Guarantee and Guarantor, 8, 9. V. Stark, 5 P. F. Smith, 63 Intestate, 7. Starry. Sandford, 9 Wr. 193 Bills of Exchange an 1 Prinnissory Notes II. . 13. Debtor and Creditor I., 6. Evidence VI., 14 ; Evidence XIX.. 5. Set-off, 7. State Road, 3 P. F. Smith, 161 Roads, 35, 26. Stauffer v. Young, 3 Wr. 455 Evidence V., 3. Evidence VIL, 2, 3, 4, 5. Staver, Ferguson v., 4 Wr. 213 Ejectment I., 1 ; III., 1. Practice VIIL, 2. Steamboat Co. v. Brown, 4 P. F. Smith, 77.. Agency and Agent 7 ; Evidence XVII., "','. 2 P. F. Smitli, 77. ..Evidence XX., 35, 36, 37. Steamship Co. v. Heron, 2 P. F. Smith, 280. Corporations V., 39, 40, 41. 282. Set-off, 20. Stearns v. Bank, 3 P. P. Smith, 490 Evidence III., 71 ; IV., 13. Stedman, Arnold v., 9 Wr. 186 Fraud III., 6. Steele, Pownall v., 2 P. F. Smith, 446 Errors and Appeals V., 37. Steel's Appeal, 11 Wr. 437 Wills IV., 7, 8, 27. Steelwagon v. Jeffries, 8 Wr. 407 Evidence XX., 10. Executions VIL, 3. Stehman's Appeal, 9 Wr. 398 AVillsVL, 45. Steiner, King v., 8 Wr. 99 Contracts L, 3. Murdock v., 9 Wr. 349 Foreign Attachments, 7. Steininger v. Hoch, 3 Wr. 263 Bills of Exchange and Promissory Notes II., 1, 2, 3. Errors and Appeals X., 1. 6 Wr. 432 Evidence IIL, 22. Errors and Appeals IV., 13. Steinman, Blair v., 3 P. F. Smith, 433 Execution IIL, 37. Steinruck, Kater v., 4 Wr. 501 Decedents' Estates II., 4; IIL, 4; V., 7. Mortgage I., 1. Steman V. Harrison, 6 Wr. 49 Billsof Exchange and Promissory Notes II., 6. Stephens y. Downey, 3 P. F. Smith, 424 Attorneys at Law, 8. Limitations II., 13. 844 STB — STE Stephens, Huss v., 1 P. F. Smith, 383 Detds, 6, 7. 388 Shelly, 31. V. Huss, 4 P. F, Smith, 30 .Land XIX., 7. V. Morris, 10 Wr. 300; 1 P. F. Smith, 133 Lfind XIX., 3. Stetson V. Oroskey, 3 P. F. SmiLh, 3130 Contracts X., 16. l^amafjes, 4. Evidence 11., 19. Practice VII., 18. Stevens, Hughes v., 7 Wr. 197 Land I., 17, 18, 19. Stevenson v. Burgin, 13 Wr. 86 Contracts XIII., 15. Vendor and Vendee II., 7. V. Hoy, 7 Wr. 191 Agency and Agents, 1. Agency, 1 ; Evidence XVIL, 8. Evidence II., 13. Evidence v., 10. Evidence XX., 7. Guarantee and Q-uarantor, 3. Partner, Partnership HI., 7. Stewart v. Bowen, 13 Wr. 345 Account Render, 3 ; Auditors, 1, 5. Echels v., 3 P. F. Smith, 460 Ejectment I., 39, 40. Fitzgerald v., 3 P. P. Smith, 343... Evidence VIL, 26; Practice VIIL, 5. Slander, 1, 3. Kenyon v., 8 Wi\ 179 Constitutional Law, 33. Limitations IV., 34. Wills in. , 5,6. V. McQuaide, 13 Wr. 191 Debtor and Creditor L, 10; IL, 34, 25, 26 ; IV., 3. Executions VIIL, 10, 11. 195, 198.. .Mechanics' Claim, 31, 32. R. R. Co. v., 5Wr. 54 Corporations V., 9, 10. 58 Contracts IV., 1. Errors and Appeals IV., 7. Estoppel, 5. V. Thompson, 1 P. F. Smith, 158.. .Malicious Prosecution, 7. V. Wilson, 6 Wr. 450 Errors and Appeals IV., 15. E.xecutions VI., 1, 2. Fraud I., 16. Stigers, Thomas v., 3 Wr. 486 Land I, 3. Still, Bowers v., 13 Wr. 65 Debtor and Creditor I., 11. Evidence X., 7, 8, 9. Evidence XX., 23. Partner, Partnership III., 28, 29, 30. V. Speer, 9 Wr. 168 Attachment, 30. Shelly, 9. Trusts v., 3. Wills VIL, 34. Stiver, Barrinsrer v., 13 Wr. 139 Husband and Wife II. , 35. St. Michaers,'Trustees v., 13 Wr. 30 Corporations VIL, 13, 14. Stoddard v. Robinson, 4 P. F. Smith, 386...AfHdavit, 25. Mortgage v., 38. Stone, MoGrew v., 3 P. F. Smith, 436 NegUgeuce, 3. Stoner v. Hunsicker, 11 Wr. 514 Fences. V. Neff, 14 Wr. 258 Mechanics' Claim, 23. Storch, Seip v., 3 P. F. Smith, 210 Evidence IIL, 60. Stoudt V. Iline, 9 Wr. 30 Fraud IIL, 5. Stouffer, Lamberton v., 5 P. F. Smith, 384.. Landlord and Tenant, 43. Stout, Aimanv., 6 Wr. 125 Estoppel, 15. V. Aiman, 6 Wr. 123 Imbecility, &c., and Lunacy, 1, 2, 8. V. Ins. Co., 13 Wr. 14 Insurance IL, 17. V. Stout,-8 Wr. 457 bimilations IV., 18. Practice IV., 11. Stowev. Conrad, 8 Wr. 193 Husband and Wife II., 18. Straley's Appeal, 7 Wr. 89 Attachment, 29. Strauss' Appeal. 13 Wr. 141, 353 Executions VIIL, 17, 18. Strayhorn, McNutt v., 3 Wr. 374 Assignee, Ac, 1. Streeper v. Williams, 13 Wr. 450 Damages, 11, 12. Street, (Church,) 4 P. P. Smith, 353 Statutes, 13, Strickler v. Burkholder, 11 Wr. 476 Evidence XIL, 5. STR — TA Y 3^5 Strickler v. Burkholder, 11 Wr. 476 Evidence XVII., 15. Pni-ety, 7, 8, 9. V. Landis, 11 Wr. 518 Contviuts, VIII.. 8. Sti'ockv. Little, 9Wr. 416 Account Render, 5. Foreign Attaelmients, 8. Strode v. Com., 3 P. F. Smith, 181 Decetlents' Estates VIII., 4. Ta.xi'S, 26. Strohl V. Leyan, 3 Wr. 177 Errors and Appeals IV., 1, 3. Father Trespass, 1. Strong, Heilv., 8Wr. 364 Estrepenient, 1, 3. Land XII., 4. Strouse v. Becker, 8 Wr. 306 Execution III., 6, 7. Strupler, Ghddeu v., 3 P. F. Smith, 400 Estoppel, 28. Husband and Wife, III., 16. Struthers V. Brown, 8 Wr. 469 Set-off, 6. V. Kendall, 5 Wr. 314 Bills of Exchange and Promissory Notes I., 3, '.). Evidence III., 13, 14; XIL, 1, 3. Fraud IV., 3. Sunderlin v., 11 Wr. 411 Estoppel, 30. Stump, Com. v., 3 P. F. Smith, 183 Bastard, 4. Decedents' Estates VIII., 8. Evidence XX., 38. Husband and Wife I., 7. Stutler, Railway v., 4 P. F. Smith. 375 Child, 3. Mother, 1. Railroads IL, 38,39. Sugarloaf V. Schuylkill Co., 8 Wr. 481 Mandamus, 5. Poor, 1, 3, 8. Summerville v. Painter, 8 Wr. 110 Arbitrament and Awards, 7. Errors and Appeals VI., 7. Sunburyand Erie R. R. Co, Bittenbenderv. , 4 Wr. 369. ...Assignee, 3, 3, 4, 5, 6. ,377.. ..Executions v., 3. Sunderlin v. Struthers, 11 Wr. 411 Estoppel, 30. Sutter V. Church, 6 Wr. 508 Corporations VII., 6, 7. Suydam v. Ins. Co., 1 P. P. Smith, 399 Corporations III., 9. Corporations V., 50. Equity I., 61, 63. Insolvency and Insolvent, 7. Swain v. Ins. Co., 4 P. P. Smith, 455 Partition, 11. Specific Performance, 3. Swallow, Patterson v., 8 Wr. 487 Wills VI., 37, 38, 39, 40. Swangerv. Snyder, 14 Wr. 318 Attachment, 33, 34. Estoppel, 35. Swanzey v. Parker, 14 Wr. 441 Bills of Exchange and Promissory Notes I., 16. Evidence III., 53, 54. Practice II., 4. Sweeny, Park v., 3 Wr. Ill Costs, 1. Swires v. Brotherline, 5 Wr. 135 Sheriff; 11. Trespass, 6, 7. 13 Wr. 68 Fraud I., .33. v. Everson, 10 Wr. 304 Equity I., 39, 40. Swope, Com. v., 9 Wr. .535 Sheriff', 7. V. Ross, 4 Wr. 186 Bills of Exchange and Promissory Notes II, 4. Tamsv. Lewis, 6 Wr. 403 Conspiracy, 1. 410 Fornrer Recovery, 5, 6, 7. 413 Pleading, Pleas, 11. 413 Evidence VI.. 7; VIL, 11. Tannery. Hughes, 3 P. F. Smith, 391 Evidence XIX., 9. v. Oil Creek Co., 3 P. F. Smith, 411. Carriers, 3, 4, 5. Practice VIL, 15. Tate, Fulton Co. v., 11 Wr. 533 Justices, 7. Halsey v., 3 P. F. Smith, 311 Stock and Stockholders, 3. Taylor v. Abbott, 5 Wr. 352 Ejectment III., 4. Y. Com., 8 Wr. 131 Crimes, 31, 33. 846 TAY — TOM Taylor, Keeler v., 3 P. F.' Smith, 467 '...Equity I., 63, 64. Mairs v., 4 Wr. 446 Bailee, Bailments, 3; Contracts VIII., 3. Y. Painter, 3 Pliila. Rep. 365 Decedents' Estates III., 18. Gronnd-rent, 14. Taylor's Appeal, 9 Wr. 71 Fraud I., 23, 34. Partner, Partnership HI., 33. 11 Wr. 31 Wills v., 4. Telegraph Co. v. Wenger, 5 P. F. Smith, 262, 268 Corporations VIII., 38; Damages, 30. 363 Errors an