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CORNELL UNIVERSITY LIBRARY 
 
 3 1924 084 224 140 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924084224140 
 
KQUITY 
 
 PENNSYLVANIA 
 
 ELLIS AMES BALLARD, 
 
 OF THG PHILADBLPHIA BAR. 
 
 Only one yolume of this work was ever published. The 
 intention to write a second volume was abandoned. 
 
 1955. 
 
 EEES WELSH & CO., 
 
 LAW BOOKSELLEES AND PUBLISHEKS, 
 
 No. 19 South Ninth Street. 
 1895. 
 
KQUITY 
 
 PENNSYLVANIA 
 
 ELLIS AMES BALLARD, 
 
 OF THE PHILADELPHIA BAR. 
 
 VOIv. I. 
 
 PHILADELPHIA 
 
 EEES WELSH & CO., 
 
 LAW BOOKSELLEBS AND PUBLISHEBS, 
 
 No. 19 South Ninth Stbeet, 
 1895. 
 
C^o'?^ 
 
 Entered according" to the Act of Congress, in the year 1S95, 
 
 By Rees WBX-tjH & Co., 
 
 In the office of the Ifihrarian of Congress, at Washington, B. C. 
 
n 
 
 PREFACE. 
 
 In classifying and arranging? under appropriate headings, 
 the decisions of the courts of Pennsylvania upon questions 
 involving equity and equitable principles, from the earliest 
 days up to the present, it is hoped that this work will 
 prove of value to the profession in the way of saving time and 
 labor otherwise necessitated in the search for authorities and de- 
 cisions applicable to cases in charge of the practitioner. These 
 headings, which are set out in the Table of Contents, will be 
 found to embrace every division and sub-division of the sub- 
 ject of Equity. The decisions include those involving equita- 
 ble principles as having been applied in actions at law and dis- 
 coverable only upon careful consideration of the different cases. 
 As equity is very largely administered in Pennsylvania through 
 common law remedies and forms, it must be admitted that a 
 complete knowledge of Equity, Equitable principles and 
 Equity jurisdiction is essential to thoroughness in the profes- 
 sion. As was aptly said by Tod J., in Bisler v. Kunhle, 17 S. 
 & El. 307: " It seems to one that the rules of Equity have, by 
 immemorial usage, become rules of property in our State, and 
 cannot, I apprehend, be now departed from without legislative 
 authority. Cases need not be cited to show how rights purely 
 equitable have been sued for with success in the forms of ac- 
 tion known only to the common law, and how relief has in- 
 variably been granted whenever it could be granted in any 
 way consistent with those forms ; generally by the courts with 
 the aid of a jury, — often, without." 
 
 It has not been the policy of Pennsylvania to create dis- 
 tinct courts of chancery or to invest the common law courts 
 with general chancery powers. Equity jurisdiction has been 
 conferred upon the courts at intervals of time, but has been 
 1 (iii) 
 
IV PEEFACE. 
 
 limited to certain specified objects. It was not until 1836, 
 that an act was passed (16 June, sec. 13) granting to the Su- 
 preme Ooiurt and the Courts of Common Pleas unlimited juris- 
 diction over matters relative to the supervision and control of 
 corporations, unincorporated associations and partnerships. 
 This act is the main foundation of our present chancery juris- 
 diction, and by the section named, these courts were given in 
 such cases, all the powers and jurisdiction of a court of chan- 
 cery, to be exercised in the ordinary mode, whether by bill, 
 injunction or otherwise, as the equity of each case required. 
 Since this act, others have from time to time been placed upon 
 the statute book vesting equity powers upon the courts in cer- 
 tain other specified cases. A list of these acts, chronologi- 
 cally arranged, with memoranda of the subjects over which 
 equitable jurisdiction has been conferred and extended, will 
 be found on pages v. xv. 
 
 The decisions of our courts being so largely governed by 
 Equity and Equity principles in actions at law, it is hoped that 
 the gathering together of the decisions contained in this work, 
 will prove of service as an assistant in the search for authori- 
 ties, and as an incentive to a com,plete and thorough study of 
 Equity in all its forms. 
 
 The publishers acknowledge the valuable services of William 
 -J. MacMuUan, Esq., of the Philadelphia Bar, in the line of 
 compiling many of the later cases, and arranging the form of 
 the work. 
 
 B. W. & Co. 
 
 Philadelphia, April, 1895. 
 
ACTS OF ASSEMBLY 
 
 BBLATING TO 
 
 EQUITY AND EQUITY JURISDICTION 
 
 BETWEEN 1684 AND 1893. 
 
 1684, February 1 (1 Colonial Becord, 98, 102).— Every court of jus- 
 tice declared a court of Equity as well as law. A provincial court estab- 
 lished, to try all criminals and titles of land, and to be a court of equity, to 
 decide all differences upon appeals from the county courts. 
 
 1693. — The several county courts empowered to hear and determine "all 
 matters and causes in equity," where the subject in controversy is under 
 ten pounds sterling in amount or value. 
 
 1701 (MS. L.). — Establishing courts of judicature in the province and 
 counties annexed, and granting full power to the judges of the several courts 
 of common pleas to hear and decree all such matters and causes of equity as 
 shall come before them, wherein the proceedings shall be by bill and an- 
 swer, with such "other pleadings as are necessary in chancery courts, etc., 
 with power to enforce obedience to their decree, etc. — Supreme Court also 
 given powers to hear and determine appeals in equity causes — (This act was 
 repealed by the Queen in council, in 1705.) 
 
 1710. — Establishing courts of judicature and providing for a court of 
 equity to be held by the judges of the respective county courts of common 
 pleas, four terms a year, with fall power to hear and decree all such matters 
 and causes of equity as shall come before them — to issue process, etc. etc., 
 observing as near as may, be, the rules and practice of the High Court of 
 Chancery in Great Britain — also, providing for a court of equity to be held 
 by the judges of the respective Supreme Courts in every county of the 
 province, for the determination of matters brought before them on appeal — 
 (This act was annulled in England, in 1713.) 
 
 1713, Maicb 27, sec. 8 (1 Sm. L. 84).— Orphans' courts granted power 
 
 (t) 
 
VI ACTS OF ASSEMBLY. 
 
 to compel obedience by attachment and sequestration "as fully as any court 
 ol' equity may or can do." 
 
 1715, (MS. Laws.] — A Supreme or Provincial court of law and equity, 
 created, — giving to the judges of the Supreme Court to hold pleas inequity 
 by bill, etc., for any discovery or other matters relievable in equity, etc., the 
 parties to proceed according to the rules or orders of the Court of Chancery 
 and Exchequer in Great Britain. (This act was annulled in England, in 
 1719.) 
 
 1720, Augusts (3 Colonial Records, 105-6). — Pursuant to a resolution 
 of the Assembly of May 4, 1720 (3 Colonial Records, 90-91), a separate court 
 of equity directed to be established by the Governor, he to exercise the 
 functions of chancellor, and to be assisted by certain members of the coun- 
 cil. (About the year 1736, this court meeting with much opposition from 
 the Legislature, was discontinued). 
 
 1722, May 22, sec. 13. — Judges of the Supreme Court authorized to ex- 
 ercise their jurisdiction and powers as fully and amply, as the Justices of 
 the Court of King's Bench, Common Pleas and Exchequer at Westminster, 
 or any of them may or can do. (Although the Court of Exchequer in Eng- 
 land had' chancery powers, it has never been supposed that the act conferred 
 such powers upon the Supreme Court.) 
 
 1772, March 21, 1 Sm. L. 383. — Legatees authorized to bring action 
 against executors for the recovery of legacies, upon the case, debt, retinue o* 
 account render. Abatement to be made when assets not sniKcient. Rea- 
 sonable demand to be first made. (This act which was to continue in force 
 for seven years, was made perpetual by act of 9 October, 1779, 1 Sm. L. 
 473). 
 
 17'f4, January 22 (1 Sm. L. 414). — Trustees of insolvent debtors neg- 
 lecting or refusing to execute their trusts, the Courts of Common Pleas au- 
 thorized to appoint commissioners who shall be empowered to call the trus- 
 tees before them, to call witnesses and examine them, and compel trustees 
 to settle their accounts. (This act was repealed by act 24 March, 1818, 7 
 Sm. L. 1'33). 
 
 1779, October 9 (1 Sm. L. 473).— Act of 21 March, 1772, relative to re- 
 covery of legacies, made perpetual. 
 
 1786, Marcll 28 (2 Sm. L. 375).— Power given Supreme Court upon bill 
 or petition filed to issue subpoenas, etc., to refer to master aud make orders 
 and' diecrees in reference to lost deeds as to justice and equity shall apper- 
 tain. (This act was revised in 1793, and extended the same powers to the 
 respective Courts of Common Pleas, and was further declared to be perpetual 
 by act 16 February, 1866, P. L. 50.) 
 
 1789, September 28 (2 Sm. L. 502).— Plaintiff in writ of attachment, 
 after judgment obtained, authorized to file interrogatories to garnishees, who 
 are required to answer in writing under oath, 
 
RELATING TO, EQUIIY. VU 
 
 Note.— The above are all the acts granting power of relief iq equity that 
 appsMir to Jiave been enacted previously to the Constitution of 1790. 
 
 This Goustitution by Art. V, sec. 6, expressly grants to the Supreaie 
 Court and the several Courts of Common Pleas, power to grant relief in 
 equity, as far as relates to the perpetuation of testimony; to the obtaining 
 of evidence from places out of the State; to the care of the persons and es^ 
 tates of^ those who are non compotes mentis, and further provides that the 
 Legislature shall vest in the said courts such other powers to grant relief in 
 equity, as shall be found necessary, and may, from time to time, enlarge or 
 diminish those powers, or vest them in such other courts, as they shall judge 
 proper for tbe due administration of justice. 
 
 1792, March 31 (3 Sm. L. 66). — Provides for the specific performance of 
 written contracts to sell lands, in cases where the vendor has died; the pro; 
 ceedings to be by petition to the Supreme Court or Court of Common Pleas 
 of the county where the lands lie. Court authorized to make Older empow- 
 ering tbe expcutors or administrators to make a deed. 
 
 1793, January 19 (3 Sm. L. 87).— Reviving Act of 28 March, 178H, 
 granting powers to the Justices of the Supreme Court to supply defects in 
 titles to lands, occasioned by the loss of deeds, etc., and to vest similar 
 powers in the several Courts of Common Pleas. 
 
 1794, April 14 (3 Sm. L. 129).— Supplement to above Act of 1792, au- 
 thorising similar proceedings against the committee of estate of a lunatic. 
 
 1804, March 12 (4 Sm. L. 158).— Extends the authority given by the 
 Act of 1792 (supra) to executors of executors and administrators de bonis iwn. 
 
 1814, February 7 (6 Sm. L. 104).— Authority given the Courts of Com- 
 mon Pleas to grant order of sale of estate of executors or persons non compos 
 mentis, upon application of the committee of their persons and estates. 
 
 1815, March 13 (6 Sm. L. 286).— Relating to divorces, the causes for,, 
 the proceedings, etc. (Analagous to proceedings in chancery.) 
 
 1817, February 26 (6 Sm. L. 405).— Supplement to above Act of 1815, 
 granting power to common pleas to decree divorces from bed and board witjl} 
 allowance to wife of alimony. 
 
 1818, February 17 (7 Sm. L. 43). — Power and jurisdiction given to Su- 
 preme Court and Court of Common Pleas to compel, upon petition for that 
 purpose, trustees holding lands for trust for any religious society or for liter- 
 ary and charitable purposes, to compel them to account, with power also to 
 remove the trustees and appoint others in their places. 
 
 1818, March 10 (7 Sm. L. 79). — Prescribes the proceedings to compiel, 
 performance of parol contracts for the conveyance of land. (These are simi- 
 lar to those provided in Acts of 31 March, 1793 and 12 March, 1804.) 
 
 1818, March 24 (7 Sm. L. 132). — Compelling assignees to settle their 
 ac^Qunts; proceedings to be by citation and answer. Court given, power to 
 decree distributioa; to issue attachments and order of sequestration; may 
 
■nu ACTS OP ASSEMBLY. 
 
 remoTe assignee who is in failing circnmstances or wasting the estate. 
 Suits by executors, administrators, trustees or assignees not to abate or 
 jndgiufents to be set aside on account of death, etc., of executors, etc., nor 
 for omission of party's name to the record. 
 
 1818, March 24 (7 Sm. L. 136).— Supplement to act of 7 February, 1814, 
 Power given to committee of person or estate of a lunatic, etc. , to mortgage 
 the estate or a part thereof, the provisions of the act to be followed. (By 
 the act of 13 June, 1836, P. L. 789, a complete system for the management 
 and control of lunatics' estates has been established.) 
 
 1819, February 25 (1 Sm. L. 155). — Relative to habitual drunkards. 
 Common Pleas power to appoint commissioners to inquire and report, etc. ; 
 guardians and trustees to be appointed; the proceedings. (Analagous to 
 proceedings in chancery. ) 
 
 1821, February 5 (7 Sm. L. 355).— Supplement to act of 31 March, 
 1792, 3 Sm. L. 66, enabling executors and administrators, by leave of court, 
 to convey lands contracted for with their decedents. Provides for similar 
 proceedings in cases of covenants for the release and extinguishment of 
 ground rents. 
 
 1822, January 19 (7 Sm. L. 489).— Supplement to Act of Feb. 25, 1819, 
 relative to habitual drunkards. Guardians and trustees by leave of court of 
 common pleas may mortgage or sell the estate or a part thereof for support 
 of the drunkard, the guardians, etc., to enter security. 
 
 1822, April 2 (7 Sm. L. 604).— Further supplement to Act of Feb. 25, 
 1819, relative to habitual drunkards. Where drunkard has no estate, the same 
 proceedings to be had viz., the appointment of commissioners, inquisition 
 to be had on their report. 
 
 1823, March 29 (8 Sm. L. 94).— The 4th section of the Act of 24 March, 
 1818 (7 Sm. L. 132), authorizing Common Pleas to dismiss assignees, etc.,. 
 extended to cases where any estate has been conveyed or transferred in 
 trust, either from femes covert, minors and others, and to appoint other 
 trustees. 
 
 1824, March 29 (8 Sm. L. 286).— District Court of the city and county 
 of Lancaster given all the authority, powers and j urisdiotion ot a court of 
 equity, so far as relates to the Marietta and Susquehanna TradingCompany, 
 its trustees, debtors, creditors and stockholders, etc. , interested in the con- 
 cerns of the said Company. Prescribes the proceedings for obtaining relief 
 in equity. Decree to be according to equity and law; may be enforced by 
 attachment and sequestration. 
 
 1825, March 22 (8 Sm. L. 405).— Supreme Court given power to grant 
 relief in equity, in all cases of trust, so far as regards the appointment of 
 trustees, in consequence of the death, etc., etc., of a trustee, inability or re- 
 fusal to act, or when one of several is dead. Filing of trustees' accounts 
 and the discharge of trustees regulated. 
 
BBLATING TO EQUITY. Ut 
 
 1828, April 14 (10 Sm. L. 210).— Supplement to Act of 24, March 1818, 
 (7 Sm. L. 132), relaiive to assignees' accounts, making it the duty of pro- 
 thouotary of disirict courts and courts of common pleas to give notice of the 
 filing of assignees' accounts; authorizes courts to issue citation to assignees 
 after one year; accounts may be referred to auditor. Appeal fiom decree of 
 the court allowed; security. 
 
 1828, April 14 (10 Sm. L. 213).— Relative to recovery of debts due by 
 incorporated companies, where execution returned nulla bona, citation to 
 issue, on petition of plaintiff, to any officer or member and answer on oath 
 to interrogatories required and compelled to be made. Court may issue 
 order of sequestration. 
 
 1828, April 14 (10 Sm. L. 222).— District Court of Philadelphia and the 
 several District Courts and Courts of Common Pleas in other counties author- 
 ized and empowered to grant relief in equity in all cases of trusts so far a» 
 regards the appointment ot trustees in case of death, etc. ; provides for set- 
 tlement of the accounts of the trustees. Cestui que trusts may apply by pe- 
 tition for equitable relief. 
 
 1829, April 23 (10 Sm. L. 420).— Courts of Common Pleas authorized to 
 discharge trustees under a domestic attachment on the settlement and confir- 
 mation of their accounts, and to compel such trustees to settle their ac- 
 connts. 
 
 1839, April 23, Sec. 1 (10 Sm. L. 455).— Equitable assignees of judg- 
 ments, etc., etc., may sue for the recovery of the money mentioned therein, 
 in their own names. Equitable plaintiffs may prosecute their actions, after 
 the death of their assignors. 
 
 Sec. 2. — Equitable plaintiff liable to execution on judgment against legal 
 plaintiff or plaintiffs; name of such plaintiff to be suggested on the record, 
 supported by afSdavit of his interest in the cause, before execution shall 
 issue. 
 
 Sec. 3. — Surety of constable paying a judgment which constable through 
 neglect of duty has failed to collect, may be substituted as equitable plain- 
 tiff in such judgment. 
 
 1831, March 21 (P. L. 192).— Further supplement to act 24 March, 
 1818, 7Sm. L. 132. Courts of Common Pleas authorized in cases of voluntary 
 assignment, on application of creditors, to appoint appraisers; to dismLs* 
 assignees and appoint others. Act of 14 April, 1828, 10 Sm. L. 210, ex- 
 tended to Common Pleas of Philadelphia county. Bonds of assignees to be 
 cancelled on settlement of their accounts. 
 
 1836, June 16, see's. 9-18 (P. L. 763).— Provides for discovery in ex- 
 ecution; parties to the bill; contents; oath of complainants; scire facias; 
 service; clause of capias; costs. 
 
 1836, June 16, sec. 13 (P. L. 789).— Jurisdiction and powers of 
 chancery given the Courts of Common Pleas in following, viz: 
 The perpetuation of testimony. 
 
I ACTS OF ASSEMBIfV. 
 
 Tbe obtaining of evideuce from places not within the State. 
 
 The care of the persons and estates of those who are non compos mentis. 
 
 The control, removal and discharge of trustees, appointment of trustees, 
 and settlement of their accounts. 
 
 The supervision and control of all corijorations, other than those of a 
 municipal character, and unincorporated societies or associations, and; part- 
 nerships. 
 
 The care of trust moneys and property, and other moneys and property 
 made liable to the control of the said courts; and in such other cases as said 
 courts have heretofore possessed such jurisdiction and powers under the 
 Constitution and laws of the Commonwealth. 
 
 In addition to tlje above, Courts of Common Pleas of Philadelphia city 
 and county, granted the power and jurisdiction of Courts of Chancery, so far 
 as relates to: 
 
 The supervision and control of partnerships, and corporations other than 
 muni ci pal. corporations. 
 
 The care of trust moneys and property, and other moneys and property 
 made liable to the control of the said courts. 
 
 The discovery of facts material to a. just determination of issues, and 
 other questions arising or depending in the said courts. 
 
 The determination of rights to property or money claimed by two or more 
 persons, in the hands or possession of a per.son claiming no right of property 
 therein. 
 
 The prevention or restraint of the commission or continuance of acts con- 
 trary to law, and prejudicial to the interests of the community, or the rights 
 of individuals. 
 
 The affording specific rsdief when a recovery in damages would be an in- 
 adequate remedy. 
 
 Provides how chancery powers are to be exercised, and prohibits the exe- 
 cution of process, issued in Philadelphia, beyond the county. 
 
 Note. — This act is tjis main foundation of the present chancery jurisdiction 
 exercised iy the courts of the State. 
 
 Art. V, sec. 6,, of the Constitution of 1838. provides as follows: The 
 Supreme Court and the several Courts of Common Pleas shall, beside 
 the powers heretofore usually exercised by them, have the powers of a Court 
 of Chancery, so far as relates to the perpetuating of testimony, the obtain- 
 ing of evidence from i>laces not within the State, and the care of the per- 
 sons and estates of those who are non compos mentis ; and the Legislature 
 shall vest in the said courts such other powers to grant relief in equity as 
 shall be found necessary; and may, from time to time, enlarge or diminish 
 those powers, or vest them in such other courts as they shall judge proper, 
 for the due administration of justice. 
 
 1840, June 13 (P. L. 671), sec. 39. — Jurisdiction of courts of common 
 pleas, county of Philadelphia, extended to cases arising therein, over which 
 courts of chancery entertain jurisdiction on the grounds of fraud, accident, 
 mistake or account. 
 
RELATING TO KQUITY. , 111 
 
 1840^. Oct. 13, (P. L. 1841 7), sec. 19.— All the courts of common 
 pleas granted the powers and jurisdiction of courts of chancery in settling- 
 partnership accounts; proceedings to be by hill in chancery or at common 
 law; certificate oi counsel to be annexed to bill, that no adequate remedy 
 ■can be obtained in law, etc. 
 
 1844, April 6 (P. L. 213), sec. 1. — Regulates service of process on 
 bill to perpetuate testimony where Commonwealth is a party. 
 
 1844; April 24 P. L. 512, sec. 2.— Supplement to act 16 June, 1836, 
 relating to executions. Provides for manner of service of writ. Oath on 
 behjUf^ of complainant in bill of discovery; may be made by the agent; 
 attorney, or any disinterested person. 
 
 1844," May 6 (P. L. 564), sec. 1. — Provides that injunctions shall not 
 be issued 'without entering of security. 
 
 1845, March 17 (P. L. 158), sec. 1. — Regulates appeals to Supreme 
 Court in equity suits instituted in county of Philadelphia; specifies coudi 
 tions of supersedeas. Decree. Jurisdiction to proceed on any other matter 
 in bilPnot affected by the decree. Sale of perishable property. 
 
 Sec 3. — Supreme Court for the Eastern district and court of common 
 pleas of Philadelphia county to each have all the power and jurisdiction of 
 a court of equity in all cases of dower and partition -within city and county 
 of Philadelphia. 
 
 1845,- April 16 (P. L. 542), sec. 3. — Gives jurisdiction to courts of 
 common pleas of county of Philadelphia, in all cases where chancery enter- 
 tains-jurisdiction under either of the heads of fraud, accident, mistake and 
 account, -whether the same be actual or constructive. 
 
 1846, April 8 (P. L. 272), sec. 1. — Provides that no injunction shall 
 issue to restrain the erection of public works until the questions of title and 
 damages have been tried at law. 
 
 1846, April 21 (P. L. 433), sec. 3.— Appeals allowed to the Supreme- 
 Court from the orders or decrees in equity of other courts than those of 
 the city and county of Philadelphia, in the same manner and upon the 
 same terms as appeals are allowed from the orphans' court. 
 
 1848, April 10 (P. L. 449), sec. 4.— Supreme Court and Court of Com- 
 mon Pleas in city and county of Philadelphia to have the same jurisdiction, 
 and power in all suits pending or to be brought, for the discovery of facts, 
 that are possessed by courts of chancery. 
 
 1850,. April 25 (P. L. 573), sec. 24. — Provides that tenants in common 
 of mines may proceed in equity for an account of all coal, iron or other 
 mineral taken by them respectively ; the proceedings regulated. 
 
 Sec. 25. — Appeals to the Supreme Court from final decree made by court 
 of common pleas, under the act, regulated. Of the security for the appeid; 
 -A'ifHdavits, etc. 
 
XU ACTS OF ASSEMBLY. 
 
 Sec. 26. — Powers and authority conferred upon the several courts of com- 
 mon pleas by 13 section, Act 16 June, 1836, relating to the "perpetuation 
 of testimony," extended and made applicable to the perpetuation of testi- 
 mony in cases of lost or destroyed records of any of the courts of record in 
 the State; the proceedings. Application to be made in the court in which 
 the record may be lost or destroyed. 
 
 1851, April 8 (P. L. 354), sec. 5. — Provides for the apportionment of 
 wharfage and dockage in port of Philadelphia; regulates the proceedings. 
 
 1852, April 8 (P. L. 291), sec. 1.— Supplement to Act 16 June, 1836. 
 Supreme Court when in session in any district to exercise original jurisdic- 
 tion in equity in the cases enumerated in 13 section of said Act of 1836, 
 throughout the State, and if not decided at the close of the session in such 
 district, to certify the cause with all the proceedings with the prothonotary 
 of the court, in the district within which the court shall be next in session. 
 
 1853, March 17 (P. L. 208, 685), sec. 1.— Supplement to Act 6 May, 
 1844, regulating proceedings in courts of justices, etc. Provides that the ■ 
 first section of said act shall not apply to any bill or proceeding in equity, 
 wherein the Commonwealth is plaintiff or complainant. Duty of court in 
 all such cases to expedite the final hearing and determination thereof. 
 
 1854, March 27 (P. L. 214), sec. 2.— Service of equity process on non- 
 resident mortgagees and j udgment creditors regulated. 
 
 1854, April 24 (P. L. 485).— Supplement to Act 8 April, 1851. Proyide.s 
 that owners of adjoining wharves, docks, landings or river front, referred to 
 in section 5 of said act, may appeal from decision of board of wardens to the 
 Court of Common Pleas of Philadelphia, sitting in equity. 
 
 1856, April 22 (P. L. 502), sec. 1. — In addition to the rights granted 
 tenants in common of mines, by 24 section Act 25 April, 1850, they may ap- 
 ply by bill or petition iu equity setting forth their claims; the court to ex- 
 amine, adjudicate and determine the rights of the several parties in the 
 manner prescribed in said section. 
 
 Sec. 2. — Appeals to the Supreme Court from final decree of tlie courts of 
 common pleas iu such cases, may be taken, but within one year from date of 
 the decree. 
 
 1856, November 6 (P. L. 1857 797).— Supplement to Act 6 May, 1844. 
 The first section of said act not to be held to apply to any bill or proceedings 
 in equity, wherein the Commonwealth, or any city or county of the Com- 
 monwealth, is libellant, plaintiff or complainant; no city or county to be re- 
 quired to give security on an appeal to the Supreme Court in any proceed- 
 ing in equity. Duty of the court to expedite hearing. 
 
 1857, February 14 (P. L. 39).— Courts of Common Pleas of the several 
 counties, in addition to the powers and jurisdictions already possessed and 
 exercised, vested with the same chancery powers and jurisdictions wiiich are 
 vested in th^ Common Pleas or District Court of the city and county of Phil- 
 
RELATING TO EQUITY. XIU 
 
 adelpbia. Appeals from final decrees of said courts, in suits and proceed- 
 iugs in equity, allowed as in appeals from said courts of Philadelphia. 
 
 1858, April 15 (P. L. 267).— Supreme Court for the Eastern District and 
 the Court of Common Pleas of Philadelphia, granted all the jurisdictions and 
 XKJWers of a Court of Chancery in cases of disputed boundaries between ad- 
 joiDing and neighboring lands in said county. 
 
 1859, March 29 (P. L. 289), sec. 1.— Decrees in equity for the payment 
 of money to be a lien on real estate, and shall be entered in judgment or 
 lien docket Of the proper county; plaintiff to have the remedy of revival, by 
 writ of 8(tire facias. 
 
 Sec. 2. — Issues of fact in revival proceedings to be tried in the manner 
 practiced in courts of equity. 
 
 1859, April 5, (P. L. 359) sec. 1.— Supplement to Act 15 April, 1858. 
 The jurisdiction and powers given by said Act, extended to and to embrace 
 the ascertainment and adjustment of disputed boundaries between adjoin- 
 ing iind neighboring lands in the county of Philadelphia, where such 
 boundaries have become confused or rendered uncertain by lapse of time, 
 etc., etc. 
 
 Sec. 2. — Power given court to decree partition of such undivided lands 
 on a bill to adjust boundaries, according to the law and practice of courts of 
 equity in the Commonwealth. 
 
 1859, April 6, (P. L. 387) sec. 1. — Service of process in certain cases of 
 cqtiity, upon parties out of the jurisdiction of the court, regulated. Special 
 return days. Service to be accompanied with copy of order, bill, etc., proof 
 of service. 
 
 Sec. 2. — Provides for service of process by publication. 
 Sec. 3. — No order or process of contempt to issue against defendant so 
 .served under the Act. 
 
 1882, April 5 (P. L. 268). — In cases where bills in equity shall be filed 
 by alienees of mortgagors, or their heirs or assigns, etc., service of subpoenas 
 and other process to be made as provided in 2d section of Act 27 March, 
 1854. 
 
 1863, April 14 (P. L. 374).— The several Courts of Common Pleas author- 
 issed to take and exercise jurisdiction, in equity, by bill or otherwise in all 
 cases arising under the general plank road law and its supplements. Au- 
 thority given either party to appeal to the Supreme Court'. 
 
 1864, May 4 (P. L. 775), sec. 1.— Judges of the District Courts and 
 CJourts of Common Pleas to establish a tariff of fees and costs in equity pro- 
 ceedings and cases. 
 
 Sec. 2. — Amendments in all equity proceedings, according to equity 
 forms, may be made, at the discretion of the court, in bills, answers, pleas, 
 etc., in same manner as in common law cases and practice, notice to be 
 given tf) adverse party. 
 
IKV ACTS OF ASSEMBLY. 
 
 1886, Feb. 14 (P. L, 28).— Appeals to Supreme Conrt allowed, lin alt 
 equity cases from interlocutory orders or decrees granting special, injunc- 
 tions, without affidavit or security, operation of the injunction i not; to be 
 ; suspended — the appeals to be heard iu any district in which it may be in 
 session, as in equity cases originating in said court. 
 
 1866, Feb. 16 (P. L. 50).— Supplement to Act 19 January, 1793, reviv- 
 ing Act of 28 March, 1786, relative to lost deeds and the perpetuation of 
 evidence — declares said Act to be a perpetual Act. 
 
 1871, June 19, (P. S. 1361) sec. 1.— Authorizes courts of law or equity 
 to inquire into the rights and franchises of corporations, and if exercising 
 equitable powers, to grant inj unctions. 
 
 Sec. 2. — Equitable jurisdiction as to railroad crossings. 
 
 1876, May 5, (P. L. 123) sec. 1.— Courts of common pleas granted all 
 the powers of a court of chancery in all cases of mortgages of property or 
 
 I franchises of railroad, canal and navigation companies. 
 
 Sec. 2. — Corporation voluntarily appearing to any suit under the' Act, or 
 having been served with process, the court to have jurisdiction of: the sub- 
 ject matter, irrespective of the local situation in this State of the mortgaged 
 premises. 
 
 Sec. 3. — Provisions of the Act to apply to all suits pending in any Court 
 of Common Pleas of the Commonwealth, the proceedings to be as valid as if 
 instituted after passage of the Act. 
 
 1877, March 23, (P. L. 32) sec. 1.— Courts of Common Pleas to have all 
 the powers of a Conrt of Chancery in all cases ot or for enforcing rights under 
 mortgages of any coal, iron, steel, lumber or oil, or any raining, manufac- 
 uriug or transportation corporation, within the limits of the Common- 
 wealth. 
 
 Sec. 2. — 'The court in which suit is or shall be pending to have juris- 
 diction of the subject matter, irrespective of the local situation in the State 
 of the mortgaged premises. Service of process. 
 
 1879, Juae 12, (P. L. 177) sec. 1. — Authorizes appeals to the. Supreme 
 Court, in equity cases, where a special or preliminary injunction has been 
 refused — the proceedings in the original suit not to be suspended — to be 
 heard in any district in which the court may be in sessiou. 
 
 Sec. 2. — In all appeals under the Act, only such bills, answers and affi- 
 davits shall be certified by the lower court as having been before said court 
 at the hearing for injunction, shall be considered by the Supreme Court. 
 
 1885, June 5 (P. L. 78).— Orders and decrees for the payment of money 
 in any suit, after the passage of the Act, by Courts of Comraoii Pleas, sittiug 
 in equity, or by any Orphans' Court, may be transferred to a corresponding 
 court of any other county. 
 
 1885, July 7 (P. L. 2571 sec. 1.— The several Courts of Common Pleas to 
 have all power and jurisdiction of a Court of Equity iu all cases of dower 
 and partition, within their respective counties. 
 
RELATING TO EQUITY. XV 
 
 Sec. 2. — After decree for partition, cause may be referred to a master, or 
 a master and commissioner — his duties prescribed. 
 
 Sec. 3. — Duty of court upon filing of master's report making paititimi. 
 
 Sec. 4. — Decrees of the court confirming a partition, to have the same 
 effect as a judgment of a court of law in like cases. 
 
 Sec. 5. — When partition cannot be made without prejudice to or spoil- 
 ing the whole lands or tenments and where parties refuse to take the same at 
 valuation, duty of the court to order the master to make sale thereof at 
 public auction. Notice to be given of the sale. 
 
 Sec.6. — Authority given master to make deed to purchaser or purchasers; 
 to give bond to Commonwealth before purchase money received by him. 
 Distribution made by him to be reported to the court. 
 
 Sec. 7. — Confirms all partition proceedings in equity heretofore insti- 
 tuted in which final decree has been entered. 
 
 1887, May 23, (P. L. 163.)— Provides for the institution of proceedings* 
 in equity by foreign attachments against non-residents — prescribes form of 
 the writs — its service and the proceedings in default of an appearance and 
 answer. 
 
 1889, May 9 (P. L. 172).— The several Courts of Common Pleas granted 
 jurisdiction in equity to assist plaintiff in any suit at law or in equity in 
 whose favor a judgment or decree for the payment of money may be ren- 
 dered, to reach and apply to the payment thereof any rights, interest or 
 property of debtor in copyrights and letters patent. 
 
 1893, May 4 (P. L. 29.) — Jurisdiction of the Court of Common Pleas in 
 equity, extended to embrace all litigations between stockholders and par- 
 ties claiming to be such, and between creditors and stockholders and credi- 
 tors and corporation. 
 
Insert after page XV. 
 
 INDEX 
 
 TO SUBJECTS OVER WHICH 
 
 EQUITABLE JUEISDICTION HAS BEEN GIVEN 
 
 TO THE 
 
 COURTS IN PENNSYLVANIA, 
 
 WITH DATES OF THE ACTS OF ASSEMBLY, 
 
 AS SET OUT FULLY IN 
 
 BALLARD'S EQUITY, Vol. I., Pages V. to XV. 
 
 Accident, cases arising on ground of. 1840, 1845 
 
 Accounts, assignees 1818, 1828 
 
 Accounts, trustees, religious societies 1818 
 
 Actions, legatees against executors 1772, 1779 
 
 Adininistrators and executors, to convey lands 1821 
 
 Administrators de bonis non a.nd executors; authority 1804 
 
 Administrators, suits by 1818 
 
 Administrators or executors, to make deeds 1792 
 
 Alienees of mortgagors ; service of process 1862 
 
 Amendments 1864* 
 
 Appeal, decree jelating to assignees' accounts 1828 
 
 Appeals from interlocutory orders or decrees 1866 
 
 Appeals from the courts of the several counties 1857 
 
 Appeals, Philadelphia county 1845 
 
 Appeals, other courts than Philadelphia county 1846 
 
 Appeals, regulated, tenants, in common of mines 1850, 1856 
 
 Appeals, special or preliminary injunction refused 1879 
 
 Appointment, trustees; powers. Supreme Court 1825, 1828 
 
 Assignees, equitable of judgment 1829 
 
I INDEX TO SUBJECTS ACTS OP ASSEMBLY. 
 
 Assignees, settlement of accounts 1818, 1828 
 
 Assignment, voluntary 1831 
 
 Attachment, domestic; discharge of trustees 1829 
 
 Attachment, garnishees .,. 1789 
 
 Attachment and sequestration 1713 
 
 Attachment and sequestration; assignees 1818 
 
 Bill in reference to lost deeds 1786, 1793, 1866 
 
 Boundaries, disputed ; jurisdiction. Supreme Court 1858, 1859 
 
 Chancery powers, how to be exercised 1836 
 
 Coal companies, mortgages 1877 
 
 Committees, estate of lunatic 1818 
 
 Commonwealth, when plaintiff or defendant 1853, 1856 
 
 Constable, surety of. 1829 
 
 Contracts, parol-conveyance of land 1818 
 
 Copyrights and letters patent 1889 
 
 Corporations, litigation between stockholders 1893 
 
 Corporations, rights and franchises of 1871 
 
 Corporations, unincorporated associations 1836 
 
 Decrees to be a lien 1859 
 
 Determination, rights to property 1836 
 
 Discovery in Execution 1836, 1844 
 
 Discovery, facts, determination of issues 1836 
 
 Discovery of facts ; jurisdiction Sup. Court and C. P. Phila- 
 delphia Co 1848 
 
 Disputed boundaries; jurisdiction. Supreme Court 1858, 1859 
 
 Distribution, assignees' accounts 1818 
 
 District Court, Lancaster Co., jurisdiction ; Marietta and 
 
 Susquehanna Trading Company 1824 
 
 Divorces 1815, 1817 
 
 Domestic attachment, discharge of trustees 1829 
 
 Dower and partition; jurisdiction Supreme Court 1845 
 
 Dower and partition ; the Courts of Common Pleas to have 
 
 jurisdiction 1885 
 
 Drunkards, guardians and trustees of. 1819, 1822 
 
 Equitable assignees of judgments 1839 
 
 Equitable plaintiff. 1839 
 
 Erection, public works, injunction 1846 
 
 Estate, assignees wasting 1818 
 
 Estate, executors, or persons fwn, compos mentis, order of sale.. 1814 
 
 Estate of persons won compos mentis Constitution, 1790 
 
 Evidence, from places out of the State, 
 
 1836, also Constitutions, 1790, 1838 
 Execution, discovery in 1836, 1844 
 
BALLARD S EQUITY. 6 
 
 Executors, actions by legatees against 1772, 1779 
 
 Executors and administrators de bonis non; authority 1804 
 
 Executors and administrators to convey lands 1821 
 
 Executors or administrators, to make deeds 1792 
 
 Executors or persons non compos mentis, order of sale 1814 
 
 Executors, suits by 1818 
 
 Pees in equity proceedings 1864 
 
 Femes covert, minors, etc. ; trustees 1823 
 
 Foreign attachments, non-residents 1887 
 
 Fraud, accident, mistalie, cases of. 1840, 1845 
 
 Garnishees, interrogatories to 1789 
 
 General plank road law, cases arising under 1863 
 
 Guardians and trustees ; habitual drunkards 1819,1822 
 
 Habitual drunkards ; guardians and trustees 1819, 1822 
 
 Incorporated companies, debts due by 1828 
 
 Injunctions, security 1844 
 
 Injunctions, erection of public works 1846 
 
 Interlocutory orders or decrees, appeals from 1866 
 
 Interrogatories to garnishees 1789 
 
 Issues of fact 1859 
 
 Jurisdiction, courts of common pleas of the several coun- 
 ties : 1857 
 
 Legatees, actions against executors 1772, 1779 
 
 Legislature, to vest equity powers in courts. 
 
 Constitutions, 1790, 1838 
 
 Letters-patent and copyrights 1889 
 
 Lost deeds 1786, 1793, 1866 
 
 Lost records, perpetuation of testimony 1850 
 
 Lunatic, estate of. 1794, 1818 
 
 Manufacturing corporations 1877 
 
 Master's report, partition 1885 
 
 Mines, tenants in common 1850 
 
 Mining corporations 1877 
 
 Minors, femes covert, trustees 1828 
 
 Mistake, cases arising on ground of. 1840, 1845 
 
 Mortgage, estate of lunatic 1818 
 
 Mortgagees, non-resident, service of process 1854 
 
 Mortgages, alienees of. 1862 
 
 Mortgages, coal, oil, etc., mining, etc.; corporations 1877 
 
 Mortgages, railroads, etc 1876 
 
 Non compos mentis, estates of persons. . . 1836, also Constitution, 1790 
 
 Non-residents, foreign attachment 1887 
 
 Non-resident mortgagees, service of process 1854 
 
4 INDEX TO SUBJECTS — ACTS OF ASSEMBLY. 
 
 Orders and decrees, lost deeds ...1786, 1793, 1866 
 
 Orders and decrees for payment of money may be trans- 
 ferred to another county 1885 
 
 Order of sale, executors or persons non compos mentis 1814 
 
 Parol contracts, conveyance of land 1818 
 
 Partition 1885 
 
 Partnership accounts, settling of; jurisdiction 1840 
 
 Partnerships, supervision and control of. 1836 
 
 Perpetuation of testimony 1836, also Constitutions, 1790, 1838 
 
 Perpetuation of testimony, lost records : 1850 
 
 Perpetuation of testimony, service of process, bill for 1844 
 
 Persons non compos mentis 1836, Constitution, 1838 
 
 Prevention, acts contrary to law, etc 1836 
 
 Process, service of. 1859, 1862 
 
 Public works, erection of; injunction 1846 
 
 Railroad crossings 1871 
 
 Railroads, canals, etc., companies, mortgages 1876 
 
 Rights and franchises of corporations 1871 
 
 Rights to property, determination of. 1836 
 
 Religious societies, trustees to account, removal.... 1818 
 
 Sequestration and attachment 1713 
 
 Sequestration and attachment, assignees 1818 
 
 Sequestration, incorporated companies 1828 
 
 Service of process : 1859, 1862 
 
 Specific relief. 1836 
 
 Stockholders, litigation between 1893 
 
 Supreme Court, when causes not decided to be certified 1852 
 
 Testimony, perpetuation of 1836, also Constitutions, 1790, 1838 
 
 Testimony, perpetuation of, lost records 1850 
 
 Testimony, perpetuation of, service of process 1844 
 
 Trustees, appointment, powers of courts 1828 
 
 Trustees, discharge of, domestic attachment 1829 
 
 Trustees, femes covert, minors, etc 1823 
 
 Trustees, religious societies, removal of. 1818 
 
 Trustees, religious societies, etc., to account 1818 
 
 Trustees, removal and discharge of. 1836 
 
 Trust money, care of 1836 
 
 Tenants in common, mines 1850, 1856 
 
 Unincorporated associations 1836 
 
 Vendor, death of; written contracts to sell land 1792 
 
 Voluntary assignment 1831 
 
 Wharfage and dockage 1851, 1854 
 
 Written contracts to sell land ; death of vendor 1792 
 
TABLE OF CONTENTS. 
 
 PAGIS, 
 
 Abatement, 1,2 
 
 Accident, 2 
 
 Account, 2-8 
 
 Accumulation, 9, 10 
 
 Acquiescence, 10 
 
 Actions, 10 
 
 Active Trust, 10 
 
 Acts contrary to Law, . 10 
 Acts of Assembly (origin 
 
 of Equity) V-XV 
 
 Adequate Bemedy at 
 
 Law, 11 
 
 Adjustment, 11-52 
 
 Advancement 53 
 
 Advances — ^Future, ... 53 
 
 Affidavit, 53 
 
 Agent, 54 
 
 Amended Bill, 54 
 
 Amendment, 54-57 
 
 Ancient Lights, .... 58 
 
 Answer, 58-63 
 
 Ante-Nuptial Settlement, 63 
 
 Appeal, 63-67 
 
 Application of Payments. 67 
 
 Appointment, 67 
 
 Apportionment, .... 67 
 
 Arbitration, 68 
 
 Arbitrators, 68 
 
 Assignee and Assignor, 68 
 Assignment, 68-79 
 
 PA<iK. 
 
 Assignment for Credi- 
 tors. 79-91 
 
 Association, 91 
 
 Attachment, 91-93 
 
 Attorney and Client, . . 94 
 
 Attorney's Commission, . 94 
 
 Auditor, 94 
 
 Bay Windows, 94 
 
 Bell, 94 
 
 Beneficial Society, . . 94 
 
 Bill (Generally), .... 94 
 
 Bill of Discovery, ... 94 
 
 Bill of Ejectment, ... 94 
 
 Bill of Interpleader, . . 94 
 
 Bill of Peace, 1)5 
 
 Bill of Eeview, 95 
 
 Body 95 
 
 Bona-fide Purchaser, . . 95 
 
 Bond, 95 
 
 Books and Papers (Pro- 
 duction of) 95 
 
 Boundaries, 95, 96 
 
 Bow Window, 96 
 
 Building Association, . . 96 
 
 Cancellation, 96 
 
 Case, 96 
 
 Catching Bargains, . . 96 
 
 Caveat Emptor, .... 9C 
 
 Certificate of Counsel, . 97 
 Chancery Powers, . . 97-100 
 
 <vu) 
 
CONTENTS. 
 
 See Acts of Assembly 
 (origin of Equity in 
 
 Pa.), V-XV 
 
 Charity, 100-106 
 
 Chattels " . . . 106 
 
 Chose in Action, .... 107 
 
 Citizens, 107 
 
 City 107 
 
 Clean Hands, 107 
 
 Cloud on Title, .... 108 
 
 Co-defendant, 108 
 
 Co-executor, 108 
 
 Co-owner, 108 
 
 Co-sureties, 108 
 
 Co-tenants, 108 
 
 Co-trustees, 108 
 
 Collateral Security, . 108, 109 
 
 Commission, 109 
 
 Commissioner, 109 
 
 Commissions, 109 
 
 Committee 109 
 
 Common Pleas 109 
 
 Commonwealth, . . . 109,110 
 
 Compensation 110 
 
 Conditional Sale, . . . 110 
 
 Conditions, 110 
 
 Conditional Verdict, . 110-114 
 Confidential Eelation, 114-122 
 Conflicting Equities, . . 122 
 
 Consideration, 322 
 
 Consignee, 123 
 
 Contempt, 123 
 
 Continuing Trespass, . . 123 
 Contracts in Restraint of 
 
 Trade 123 
 
 Contribution, 123 
 
 Conversion, .... 123-127 
 Conveyance, .... 127, 128 
 
 Cbpy right 128 
 
 Corporation, .... 128-140 
 
 fAGK. 
 
 See Acts of Assembly 
 (origin of Equity in 
 
 Pa.), V-XV 
 
 Costs, 140-144 
 
 Counsel Fee, 144 
 
 Court, 144 
 
 Court and Jury, . . . 144-147 
 
 Covenant, 147 
 
 Creditor 147 
 
 Creditor's Bill, 147 
 
 Crimination, 148 
 
 Cross-Bill, 148 
 
 Curtesy, 148 
 
 Cy-Pres, 148 
 
 Damages, 149 
 
 Dead Body, 150 
 
 Death of Defendant, . . 150 
 Debtor and Creditor, 150-153 
 Decedents' Estates, . 153, 154 
 Declaration of Trust, . . 154 
 
 Decree, 154-157 
 
 Deed, 157 
 
 Defective Execution, . . 157 
 
 Defence, 157 
 
 Demurrer, . - . . 157, 158 
 
 Deposit 158 
 
 Deposition, 158 
 
 Descent, 159 
 
 Discharge, 159 
 
 Discovery, 159-163 
 
 See Acts of Assembly 
 (origin of Equity in 
 
 Pa.) V-XV 
 
 Discretion, 163, 164 
 
 Dismissal, 164 
 
 Dissolution, 164 
 
 District Court, . . . . 164 
 
 Dociiments, 165 
 
 Doubtful Eight, .... 165 
 Dower, 165 
 
CONTENTS. 
 
 PAGB. 
 
 Duress, 165 
 
 Earmark, 165 
 
 Ejectment Bill 165 
 
 Ejectment 166-174 
 
 Election, 174-179 
 
 Elections, 179 
 
 Eminent Domain, . . . 179 
 Equitable Actions, . . . 180 
 Equitable Assignment, . 180 
 Equitable Defence, . 180-185 
 Equitable Ejectment, . . 185 
 Equitable Estate, . . 185-191 
 Equitable Interest, . . . 191 
 Equitable Lien, . . 191, 192 
 Equitable Owner, ... 193 
 
 Equitable Pleas 193 
 
 Equitable Mortg'age, . . 193 
 Equitable Title, .... 193 
 
 Escheat, 193 
 
 Escrow, 193 
 
 Estoppel, 193-216 
 
 Evidence, ..... 216-22P 
 
 Examiner, 221 
 
 Exchange, 222 
 
 Execution, 222 
 
 Executor, 222 
 
 Exemption, 222 
 
 Expectancy, .... 222, 223 
 
 Facts, 223 
 
 Family Settlement, . . 223 
 
 Fee, 223-225 
 
 Feme Sole Trader, ... 225 
 
 Fixtures, 225 
 
 Forfeiture, 225-227 
 
 Fraud, 227-237 
 
 Future Advances, . . . 237 
 
 Garnishee, 237 
 
 General Eelief, .... 237 
 
 Goodwill, 238 
 
 Grade Crossing, .... 238 
 
 PAGE. 
 
 Ground Eent, 238 
 
 Grantor and Grantee, . 238 
 Guardian and Ward, . . 238 
 
 Highway, 238 
 
 Husband and Wife, . 238-251 
 
 Ignorance, 251 
 
 Illusory Appointment, . 251 
 Improvements, .... 252 
 
 Index, 252 
 
 Infant, 252 
 
 Injunction 252-294 
 
 See Acts of Assembly 
 (Origin of Equity in 
 
 Pa.) V-XV 
 
 Injunction Affidavits, . , 294 
 
 Inquiry, 294 
 
 Insolvency, 294 
 
 Inspection — Order for, . 294 
 
 Insurance, 294 
 
 Insurance Policy, . . . 294 
 
 Interpleader, 294 
 
 Intoxication, 295 
 
 Irreparable Injury, . . . 295 
 
 Issue, 296 
 
 Joint Tenants, 296 
 
 Joint Trustees, , . , , 297 
 Joint Mortgagors and 
 
 Mortgagees, 297 
 
 Judge 297 
 
 Judgment, 297-299 
 
 Judgment Creditor, . . 299 
 Jurisdiction, .... 299-310 
 See Acts of Assembly 
 (Origin of Equity in 
 
 Pa.), 
 
 Jury, 310 
 
 Laches, 310-313 
 
 Landlord and Tenant, 314-316 ' 
 
 Land Warrant 316 
 
 Lateral Support, . , . . 316 
 
CONTENTS. 
 
 PAGE. 
 
 Lease, 316 
 
 Liability, 316 
 
 Lien, 316-320 
 
 Lis Pendens, 320 
 
 Lunatic, 320, 321 
 
 Maintenance, 321 
 
 Mandatory Injunction, . 321 
 
 Married Women 321 
 
 Mechanic's Lien, .... 321 
 Marketable Title, . . 322, 323 
 Marshalling Assets, . . 324 
 
 Master, 324-327 
 
 Maxims, 327 
 
 Merger, 328 
 
 Mesne Profits, 329 
 
 Minor, 329 
 
 Misrepresentation, . . . 329 
 
 Mistake, 329-333 
 
 Mortgage, Mortgagor and 
 
 Mortgagee, .... 333-393 
 Multifariousness, , . . 393 
 Multiplicity of Suits, . . 393 
 
 Mutuality, ,393 
 
 Municipal Corporations, 394 
 Ne Exeat, Writ of, ... 394 
 
 New Matter 394 
 
 New Party, 394 
 
 Nisi Prius, 394 
 
 Noise, 394 
 
 Notice, 395-405 
 
 Nuisance, 405 
 
 Obligor and Obligee, . . 405 
 
 Officer, 406 
 
 Oil, 406 
 
 Order, 406 
 
 Orphans' Court, . . 406-410 
 Parent and Child, ... 411 
 
 Parol Sale 411 
 
 Parol Trust, 411 
 
 Parties, 411-418 
 
 PAGE. 
 
 Partition, 418-420 
 
 See Acts of Assembly 
 (Origin of Equity in 
 
 Pa.), V-XV 
 
 Partner, 420 
 
 Partnerships 420-428 
 
 Part Performance, . . . 428 
 
 Party Wall 428 
 
 Patents, 428 
 
 Payment, 429,430 
 
 Perpetuation of Testi- 
 mony 430 
 
 See Acts of Assembly 
 (Origin of Equity in 
 
 Pa.), 
 
 Personal Estate 430 
 
 Perpetuities, 430 
 
 Petition, 430 
 
 Philadelphia, 431 
 
 Physician, 431 
 
 Planing Mill, 431 
 
 Pleading, 431 
 
 Possession, 431 
 
 Post Nuptial Settlement, 431 
 
 Power, 431-435 
 
 Power of Attorney, . . . 435 
 Practice and Pleading,435-451 
 Precatory Words, . . . 451 
 
 Preferences, 452 
 
 Preliminary Injunction, 452 
 Principal and Agent, 452,453 
 Principal and Surety, 454-457 
 
 Priority, 457 
 
 Proceedings at Law, . . 457 
 
 Process, 457 
 
 Production of Books and 
 
 Papers, 458 
 
 Promissory Note, . . 458, 459 
 Public Acts and Officers, 459 
 Public Improvements, . 459 
 
CONTENTS. 
 
 •gTTT 
 
 PAGE. 
 
 T'ublic Officera, .... 460 
 
 Public Works, 460 
 
 Puffing, 460 
 
 Purchase, 460 
 
 Purchase Money — Appli- 
 cation of, 461 
 
 Purchase Money Mort- 
 gage, 461 
 
 Purchaser, 462-469 
 
 Quia Timet, .... 469, 470 
 Quo Warranto, .... 471 
 
 Kailroad, 471 
 
 Railroad Contractor, . . 472 
 
 Beceiver, 472 
 
 Rescission, 475 
 
 Reconversion, 475 
 
 Record and Recording, . 476 
 Reduction to Possession 
 of Wifes Choses in Ac- 
 tion, 476 
 
 Reference, 476 
 
 Reformation, .... 476-479 
 
 Release, 479 
 
 Relief, 480 
 
 HemaindSr 481 
 
 Remedy at Law, . . 481, 482 
 Renewal of Lease, . . . 483 
 
 Rent, 483 
 
 Tlent, Apportionment of, 483 
 
 Rent Charge, 483 
 
 Replevin 483 
 
 Replication 483 
 
 Representation, .... 484 
 Res Adjudicata, .... 484 
 Restraint of Trade, . . 484 
 
 Rests, 484 
 
 Resulting Trusts, ... 485 
 Review, Bill of, . . . 485, 486 
 
 Revocation, 486 
 
 Enle in Shelley's Case, . 486 
 
 PAGM. 
 
 Rules, 486 
 
 Sale, 486-492 
 
 Satisfaction, 492 
 
 Savings Bank, 492 
 
 Scandalous Matter, . . . 493 
 
 School, 493 
 
 School Directors, . . . 493 
 
 School Tax, 493 
 
 Scire Facias, 493 
 
 Secret Equity 494 
 
 Security, 494 
 
 Security for Costs, . . . 494 
 Separate Acknowledg- 
 ment, 494 
 
 Separate Estate, .... 494 
 
 Separate Remedies, . . 494 
 
 Separate Use, 494 
 
 Separation, Articles of, . 494 
 
 Sequestration, 495 
 
 Service, 495 
 
 Set 0£f, 495-498 
 
 Settlement, Ante-nupt- 
 ial, 498 
 
 Settlement, Post-nuptial, 498 
 Settlement, Wife's Equity 
 
 to a, 498 
 
 Severability, 499 
 
 Shelley's Case 499 
 
 Sheriff, 499 
 
 SheriflF's Deed, 499 
 
 Sheriff's Hands, funds 
 
 in, 499 
 
 Sheriff's Sale, 499 
 
 Sign, 499 
 
 Silence, 499 
 
 Slaughter House, . . . 500 
 
 Smoke, 500 
 
 Sole Trader, 500 
 
 Sole and Separate Use, . 500 
 Specific Performance, 500-512 
 
CONTENTS. 
 
 PAGK. 
 
 See Acts of Assembly 
 (Origin of Equity in 
 
 Pa.) X-XV 
 
 Spendthrift Trusts, . . . 512 
 Statute of Elizabeth, . . 512 
 Statute of Frauds, , . 512-517 
 Statute of Limitations,517-522 
 Statutory Rights, .... 522 
 
 Stockholder 522 
 
 Subrogation, 522 
 
 Subsequent Judgment, . 523 
 Subsequent Mortgage, . 523 
 
 Substitution 523 
 
 Suits, Multiplicity of, . 523 
 Summary Belief, .... 523 
 
 Supersedeas, 523 
 
 Supplemental Bill, . . . 523 
 Supreme Court, . . . 523-525 
 See Acts of Assembly 
 (Origin of Equity in 
 
 Pa.) V-XV 
 
 Tacking, 525 
 
 Taxation 525 
 
 Taxation of Costs, . . . 525 
 Tax Sale, ....... 525 
 
 Taxes 525-527 
 
 Taxpayer 527 
 
 Tenants in Common, 527, 528 
 
 Tender, 528 
 
 Terre Tenants, 529 
 
 Testimony, Bill to Per- 
 petuate, 529 
 
 Time 529 
 
 Title, 529 
 
 Towns, 53o 
 
 Trade-Mark, 53o 
 
 Trespass, 531 
 
 Trial, 531 
 
 Trusts and Trustees, 531-597 
 Ultra Vires, 597 
 
 PAOill. 
 
 Unaccrued Damages, , . 597 
 Unauthorized Damages, . 597 
 Unauthorized Imposition 
 
 of Taxes, 597 
 
 Uncertainty, .... 597, 598 
 Unconstitutional Eemedy. 598 
 "Under and Subject" 
 
 Clause, 598, 599 
 
 Under Articles, .... 599 
 
 Under Seal, 600 
 
 Undisclosed Principal, . 600 
 Undisputed Title, ... 600 
 Undue Influence, .... 601 
 
 Unexecuted 600 
 
 Unfinished Building, . . 600 
 Unincorporated Associa- 
 tions 601, 602 
 
 Unintentional Infringe- 
 ment 602 
 
 United States, . . . 602, 603 
 Unjust Assessments,Taxes, 603 
 Unloading Cars on Streets, 603 
 Unliquidated Damages, . 603 
 
 Unpaid Party 603 
 
 Unmatured Notes, . . . 603 
 Unpaid Purchase Money, 603 
 Unprinted Pleadings, . . 604 
 Unrecorded Deed, . . . 604 
 Unrecorded Mortgage,605, 606 
 Unsatisfied Mortgages,606,607 
 
 Unseated Land 607 
 
 Unsettled Account, . . . 607 
 Upon What Allowed, . . 607 
 U. S. Bank Notes, ... 607 
 Use after Payment, . . . 608 
 
 Use Equitable, 607 
 
 Use of Assignor's Name, 608 
 Use of Plea in Subse- 
 quent Judgment, . . . 608 
 
CONTENTS. 
 
 PAGB. 
 
 Use Fraudulent, of Instru- 
 ment, 610 
 
 Use of Word, Trade Mark, 
 
 etc 608 
 
 Use Plaintiff, .... 608, 609 
 Use, Sole and Separate, . 610 
 Uses, Charitable, .... 609 
 
 Uses New, 609 
 
 Uses, Revoking and Ap- 
 pointing, New, .... 610 
 Using Trust Funds, . . 609 
 
 Usury 610, 611 
 
 "Vacation, ,..,... 612 
 Yague Description, , . . 612 
 
 Talid 612, 613 
 
 Validity, 613-615 
 
 Vendee, 616-622 
 
 Vendor 622-626 
 
 Vendor and Vendee, 626-628 
 
 Venue, 628 
 
 Verdict, 629, 630 
 
 Vessel, 630 
 
 Vested Legacy, 630 
 
 Vested Eemainder, . . . 631 
 
 Violation, 631 
 
 Virtute officii, 631 
 
 Void, 632, 633 
 
 See Act of Assembly 
 (Origin of Equity in 
 
 Pa.), V-XV 
 
 Voluntary Agreement, . 633 
 Voluntary Assignment, . 634 
 
 , PASE. 
 
 Voluntary Deed, . . 634, 635 
 
 Volunteer, 635 
 
 Voucher's Agents, . . . 636 
 
 Wages, 636 
 
 Waiver 636, 637 
 
 Want of Trustee, .... 637 
 Warrant, Land, .... 638 
 
 Warranty, 638 
 
 Waste 638, 639 
 
 Water Eights, 639 
 
 Ways, Eight of, .... 639 
 Weakness of Intellect, 639, 640 
 
 Widow, 640-644 
 
 Wife, 644-648 
 
 Will, 649-653 
 
 Windows, 649 
 
 Witnesses, 653, 654 
 
 Woman, 654 
 
 Words, 654, 655 
 
 Worthless Note, .... 655 
 
 Writings, 655 
 
 Writ of Assistance, , . . 655 
 
 Writ of Error, 656 
 
 Writ of Eevival, .... 656 
 Written and Oral Agree- 
 ment 656 
 
 Written Evidence, . . . 656 
 Wrong reason for Decree, 656 
 Wrong County, .... 657 
 
 Wrong Tract, 657 
 
 Wrongful Conversion, . 657 
 Wrongful Ouster, . . . 657 
 
EQUITY IN PENNSTIYANIA. 
 
 ABATEMENT. 
 
 [Abatement op Nuisanoes. See Injunction I. C] 
 
 I. Plea in. 
 
 A. In suits in Equity. 
 
 B. In actions at Law. 
 
 II. Decree of. 
 
 A. In Suits in Equity. 
 
 Account Stated.— Cruise r. Walker, C. P. 1867, 24 Leg. Int. 141 ; S. C. 6 
 Phila. 294. Where a bill is filed for a general account, and an account stated is 
 pleaded, the bill will be dismissed unless amended to show specific errors in 
 the account stated. 
 
 Pending Suit.— Streater V. Ricketts, C. P. Luzerne, 1884, 2 Kulp, 529, 
 S. C. 12 Luz. L. Reg. 417. It is a good plea to a bill in equity that an- 
 other suit is pending in the .same, or a concurrent court, which covers the 
 whole of the matter embraced in the bill. 
 
 lb.— Ejectment— Cancellation of Deed.— Buck Mt.CoaI Co. v. Conrad, N. 
 p. 1865, 22 Leg. Int. 373, S. C, 6 Phila. 111. A bill will not lie against a 
 party for cancellation of a deed on the ground of fraud, while an ejectment 
 is pending. 
 
 lb. Pleading.— Brooke v. Phillips, N. P. 1867, 24 Leg. Int. 132, S. C. 
 6 Phila. 392. A pending suit at law is not pleadable in abatement of an 
 equity suit, nor is a plea of a pending equity suit good unless it sets forth 
 that the whole relief sought in the prasent case can be had in the one 
 pleaded. 
 
 lb. Remedy at law— Certificate of Counsel.— Roberts v. Dunham, c. 
 P. Wyoming, 1870, 1 C. P. Eep. 136. Equity has large jurisdiction in set- 
 tling partnership accounts, and on certificate of counsel filed that there is 
 no adequate remedy at law will take jurisdiction of such a case although an 
 action of account render be pending. 
 
 lb. Same Cause of Action.— Glunz v. Kauffman, C. P. 1870, 27 Leg. Int. 
 205, S. C. 7 Phila, 459. It is a good plea to a bill in equity that an action 
 at law is pending between the same parties for the same cause of action. 
 
 B. In Actions at Law. 
 
 Final Decree.- Westcott v. Edmunds, 1871, 18 S. 34. A final decree in 
 equity is a bar to a suit at law, whether commenced before or after equity 
 proceedings, and as such may either be pleaded or given in evidence. 
 
 Injunction— Foreign State. — Lowry v. Lumbermen's Bank, 1841, 2 W. 
 & S. 210. Where a foreign attachment has been begun in another State and 
 an injunction granted by a court of chancery of that State, forbidding the 
 garnishee to pay the defendant in the attachment, if the latter be sued in 
 this State by the defendant he can plead such injunction in abatement but 
 not in bar. 
 
 1 — EQUITY 
 
2 ABATEMENT — ACCIDENT — ACCOUNT. 
 
 lb.— Ralph V. Brown, 1842, 3 W. & S. .395. The pendency of a bill in 
 equity in another State for discovery of the debtor's goods and of an injunc- 
 tion to prevent him from disposing of them, cannot be pleaded in abatement 
 of a subsequent suit in this State on the same cause of action. 
 
 lb.— Preliminary.— Pittsburgh R. R. Co. v. Mt. Pleasant R. R., 1874, 
 26 S. 481. A preliminary injunction has, during its life, the same force 
 as a final one, and may be pleaded in abatement. 
 
 Pending Bill.— Warner V. Hopkins, 1886, 1 Am. 328. Where a bill in 
 equity is pending, a plea in abatement to a law suit on Ihe same cause of 
 action is good. 
 
 II. Decree of. 
 
 When Granted— Prayer for.— Clark v. Martin, 13 Wr. 289, 1865. A de- 
 cree of abatement will be awarded where a defendant has built in violation 
 of a restriction after a bill has been filed, and that under the general prayer 
 and without an amendment. 
 
 ACCIOEMX. 
 
 See Mistake. 
 
 ACCOUNT. 
 
 [Account of Trustees. See Teusts and Trustees II. B.] 
 
 I. Jurisdiction. 
 
 A. Generally. 
 
 B. Particular parties. 
 
 (a) In General. 
 
 (b) Co-owners. 
 
 (c) Partners. 
 
 II. Procedure. 
 
 A. Practice and Pleading. 
 
 B. Relief. 
 
 I. Jurisdiction. 
 
 A. Oemerally. 
 
 Act Oct. 13, 1840— Mutual accounts.— Bank of United states v Bid- 
 die, 1844, 2 Pars. .31. Under act Oct. 13, 1840, both the common pleas and the 
 Supreme Court have equitable jurisdiction in cases of account. This juris- 
 diction is-concurrent with the legal remedies, but equity will assume iteven 
 though the accounts are all on one side wherever discovery is needed and 
 in cases of mutual transactions wherever the complication is such that the 
 equitable remedy is more complete. 
 
 lb.— Creditors Winding up Debtor'sBusiness.—Shriverw.Nimick,i86l 
 5 Wr. 80. Creditors who under an arrangement as to their debtor's prop- 
 erty occupy the position of partners or of principal and agent, may have 
 their accounts settled in equity ; the act October 13, 1840, having given 
 our courts equity jurisdiction in case of account wherever account render 
 •would lie at law. 
 
ACCOUNT. 3 
 
 lb. Agency — Consignees. — Bank of United States v. Biddle, 1844, 2 
 Pars. 31. The equitable jurisdiction under act Oct. 13, 1840, in cases of account 
 extends to all cases of agency, e. g . consignees, receivers and ofScers of 
 corporations. 
 
 lb. Bailee. — Persch v. Quiggle, 1868, 7 S. 247. One who is not only 
 bailee but also agent for custody and management can be sued in equity un- 
 der act Oct. 13, 1840. 
 
 Agency — Discovery. — Bank of Kentucky v. Schuylkill Bank, 1846, 1 
 Pars. 180. S. C. 5 Pa. L. J. 251. Equity will entertain jurisdiction of a bill by 
 a principal against a defaulting agent demanding an account and discov- 
 ery. 
 
 Agreement to Transfer Stock.— Phillips Ap., 1871, 18 S. 130. A bill 
 averred that complainants and defendants were jointly interested in oil lands 
 and that complainants were to receive a certain amount in stock for affecting 
 a sale of the lands, that the defendants refused to give them the stock but 
 gave its par value. Held by an evenly divided court that equity had juris- 
 diction. 
 
 Breach of Contract.— Pittsburgh R. R.'s Ap., 1881, 3 Out. 177. Equity 
 will not take jurisdiction of a bill asking for an account where the account is 
 merely for what should have been received under a contract which defend- 
 ant has broken. 
 
 Collateral Security. — Conjugham's Ap., 1868, 7 S. 474. A pledge as col- 
 latefal security for the payment of all claims and liabilities then held or 
 which may thereafter arise, which liabilities are alleged to be numerous, is 
 the subject of equity j urisdiction under the head of account. 
 
 lb. — McQueen's Ap., 1883, 8 Out. .595. A creditor to whom his debtor has 
 transferred collateral is liable to the latter in a suit in equity for an ac- 
 count, where, through carelessness or fraud, they have not been made the 
 most of. 
 
 Comity of Courts.— Bryan ». Dailey, C. P. 1880, 37 Leg. Int. 322, S. C. 
 14 Phila. 90. A purchaser at sheriff's sale of an interest in a partnership, who 
 wishes an account must proceed in the court in which the sale was made. 
 
 Construction of Deed.— Grubb's Ap., 1879, 9 N. 228. Where the right to 
 an account depends on the construction of a deed concerning which there is 
 no averment of fraud, accident or mistake equity has not jurisdiction. 
 
 Conveyance— Fraud.— ToUes & Bugher's Ap., 1888, 45 Leg. Int. 322. 
 One who obtains a conveyance of land by fraud is bound to account for all 
 the profits he receives therefrom during the time he holds possession ; a 
 fortiori when an allowance is made him for improvements made by him on 
 the property. 
 
 Ejectment Bill.— Long's Ap., 1879, 11 N. 171. Where the main object of a 
 bill is to determine title, it is an ejectment bill although it may incidentally 
 pray for an account. 
 
 Fraud.— Worthington v. tisdall, C. P. 1877, 34 Leg. Int. 114, S. C. 12 
 Phila. 187. A bill alleging fraudulent disposition of moneys committed to the 
 care of -the defendant and praying for an account, in which the necessity for 
 discovery Is manifest, is not demurrable. 
 
 Inadequate Remedy at Law.— Johnson v. DeCamp, C. P. Erie, 1862, 3 
 Luz. L. Obs. 38. It is enough to give equity jurisdiction in cases of fraud oi 
 account that the equitable remedy is more prompt and thorough than that 
 at law. 
 
 Injunction Pending Account.— New Jersey Coal Co V. Barnes, C. P. 
 Luzerne, 1876, 6 Luz. L. Reg. 43. A complainant in a bill for an account 
 filed a petition setting forth that the defendant was indebted to him and 
 was about to sell a certain tract of land in order to get his property beyond 
 the jurisdiction of the court. The answer denied the indebtedness, and it 
 was undisputed that the tract in question was not bound with any trust for 
 the complainant ; an injunction was therefore refused. 
 
4 ACCOUNT. 
 
 Mining Eight.— Alden's Ap., 1880, 12 N, 182. Equity has jarisdxc- 
 tion of a bill alleging that defendants are using more ore than a certain 
 reservation allows to them and praying for an account as to the excess. 
 
 Must be Mutual.— Gloninger v. Hazzard, 1862, 6 Wr. 389, Where an 
 account is all on one side and discovery is not sought, equity will not enter- 
 tain the case. 
 
 Orphans' Court— Decedents' Contract.— Walker's Ap., 1884, 32 Pitts. 
 L. J. 173. The orphan's court has no jurisdiction to specifically enforce a 
 contract between a decedent and another which besides being an agreement 
 to convey, involved questions of trust and account. 
 
 Title Claimed. — Messimer's Ap., 1879, 11 N. 168. Equity will not en- 
 tertain a bill where the plaintiff claims lands in the hands of the defend- 
 ant, although the prayers are for an account and a receiver. 
 
 B. ParHculaf Parties. 
 (a.) In General. 
 
 Attaching Creditors.— Alter v. Brooke, N. P. 1872, 29 Leg. Int. 117, 
 S. C, 9 Phila. 258. A bill for an account will not lie by a creditor who 
 asks to attach a partner's interest in an unsettled partnership. 
 
 Broker.— Oil Co. v. Adams, D. C. 1866. 23 Leg. Int. 349, S. C, 6 Phila. 
 182. A bill in equity lies against a broker who has received stock to sell 
 .and refuses to account. 
 
 Building and Loan Association—Director.— Callahan's A p., 1889, 46 
 Leg. Int. 200. Where the directors of a building association declared a 
 series matured and ordered the mortgages to be satisfied, and a mortgage on 
 prnperty of one of the directors was thereupon cancelled, and it was after- 
 wards discovered that the secretary had been embezzling funds, and that 
 the series had not in fact matured, equity will decree an account in a bill 
 brought against the director whose mortgage was cancelled and will have 
 the satisfaction stricken from the record . 
 
 Corporation — Heindel v. Southern Penna. Association, C. P. 1884, York, 3 
 York L. R. 204. A bill filed against a corporation and its directors, praying 
 an account and discovery will be entertained. 
 
 Debtor and Creditor.— Metz v. Famham, C. P. 1871, ICamp. 201, S. C, 
 3 Leg. Gaz. 188, 28 Leg. Int. 196, 8 Phila. 267. A complainant who is in- 
 debted to a defendant cannot have an account, nor can he have an injunc- 
 tion to restrain the defendant from suing. It is for a creditor to choose his 
 forum. 
 
 Guardian— Orphans' Court.— McCormick v. O'Rorke, C. P. 1875, 2 W 
 N. C. 109. Where a guardian has obtained the discharge of another guardian 
 in the orphans' court on condition that he should settle an account, he cannot 
 then go into equity and pray for an account therein, against this same dis- 
 charged trustee. 
 
 Husband as trustee.— Fidelity Trust Co. V. Morris, C. P., 1884, 14 W. 
 N. C. 22,5, S. C, 41 Leg. Int. 74. A bill in equity for an account will lie 
 against one who is a trustee of reality for his wife for life, and then to her 
 children, who has himself taken the profits after his wife's death, supposing 
 that he wag entitled as tenant by the courtesy. ° 
 
 Liability to several parties.- Lance's Ap., 1886, 17 W. N. 0. 513. 
 Where a party is liable to account to three jointly, if at all, a bill filed by 
 one only of the three will be dismissed. 
 
 Mortgagee's right.— Talbot's Ap., 1883, 2 Ches. Co. E. 413. A mort- 
 gagee has no estate in mortgaged premises unless he takes possession, and 
 therefore he cannot call on the mortgagor to account. 
 
ACCOUNT. 5 
 
 Surety,— EelsterUng i). Prowajyan, C. P. 1S65, 23 Leg. Int. 229, S. C, 6 
 Phila. 40. Where an assignee for creditors and one of his sureties files a 
 bill against the other surety, who has funds of the estate in his possession, 
 for an account the bill will be sustained. 
 
 lb.— Ashton v. Bayard, C. P. 1872, 4 Leg. Gaz. 101, S. C, 29 Leg. Int. 100, 
 9 Phila. 527. A surety on a due bill may maintain a bill in equity for an 
 account. 
 
 Stockholder's liability— Insolvent Corporation.— P-unn's Ap., 1884, 
 14 W. N. C. 193, aff'g 13 W. N. C. 57. A bill in equity will lie against 
 the stockholders of an insolvent incorporation by the creditors thereof, pray- 
 ing an account, a receiver, and that the stockholders make good the debts. 
 
 Trustee— Cestui que Trust.— Porter v. Hoppin, C. P. 1875, 32 Leg. Int. 
 66, S. C, 10 Phila. 396. A trustee who has been guilty of a breach of 
 trust and has assigned property to a third person as protection for the cestui 
 gue trust, cannot require an account from this third person without joining 
 the cestui gue trust, or restoring the trust assets. 
 
 (6) Co-otvners. 
 
 Co-Tenant's— Remaindermen.— Richardson's Ap., 1887, 19 "W. N. C. 175. 
 The child of a remainderman (whose interest was vested and who died dur- 
 ing the estate of the life tenant) has a remedy in the common pleas for an 
 account against the other remaindermen who have taken possession after the 
 death of the life tenant. 
 
 Co-traders— Keceiver.—McDonough v. Bulloch, C. P. Dauphin, 1874, 2 
 Pears. 191. Equity cannot appoint a receiver or take an account between 
 co-traders who are not partners. 
 
 Of Land.— Frisbee's Ap.,1878, 7N. 144. Equity will not entertain juris- 
 diction of a bill for an account between those alleged to be tenants in com- 
 mon, if their legal relations are in dispute. 
 
 lb.— Morris v. Gould, C. P. 1884, 15 W. N. C. 187. One tenant in common 
 cannot sustain a bill in equity against his co-tenant for an account of the 
 profits, without showing either an ouster or an express promise to account. 
 
 Of Ship.— Endsor v. Simpson, C. P. 1878, 5 "W. N. C. 232, S. C. 35, Leg. Int. 
 120, 12 Phila. 392. A settlement of accounts between part owners of a ship 
 is within the jurisdiction of courts of equity. 
 
 lb. Pleading.— Coursin's Ap., 1875, 29 S. 220. One of several tenants 
 in common of a boat brought a bill against his co-tenants, who had sold 
 the boat tooneof their number, for areceiver and an account and to restrain 
 them from breaking up the boat. A preliminary injunction was denied, 
 the boat broken up and a new company formed out of some of his old co- 
 tenants and others, and a new boat built. The plaintiff filed asupplemental 
 bill alleging that he was part owner of the new boat and asked that a trust be 
 decreed. This bill was against the same defendants as the other. Held {!) 
 that it was demurrable because it included those not part owners of the new 
 boat and excluded some who were such. (2) That the supplemental bill on 
 its merits should be dismissed. (3) That the original showed a good cause 
 of action and an account was decreed. 
 
 (c) Partners. 
 
 Absence of Agreement to Save Harmless.— Clarke's Ap., 1884, 11 Out. 
 436. Where articles of partnership provided that any partner could assign 
 his interest in the firm and that his assignee and the remaining partners 
 should hold him harmless, a partner who has retired, but who has not been 
 held harmless, has an adequate remedy at law and cannot bring a bill in 
 equity for an account and receiver. 
 
6 ACCOUNT. 
 
 Against Sheriff's Vendee.— Wylie's Ap., 1879, 9 N. 210. A partner -who 
 lias sold out to his co-partner has no right to an account with the sheriff's 
 vendee of the latter's interest on the ground that the full price of his interest 
 has not been paid, he having given no prior notice of his claim. 
 
 Amicable Settlement.— Shirk's Ap., 1869, 3 Brews. 119. Eqnity will 
 not entertain a bill for an account between partners where they have ami- 
 cably settled their affairs and given mutual receipts, save for fraud, misrep- 
 resentation or mistake. 
 
 Dissolution. — Hudson v. Barrett, 1850, 1 Pars. 414. Equity will enter- 
 tain a bill for an account filed by one co-partner against his associate, even 
 where the bill does not contemplate a dissolution of the partnership and a 
 final winding up of the affairs of the association. 
 
 Fraud.— Lightner v. Penna. Co., C. P., 1884, 41 Leg. Int. 386. Where the 
 relief prayed for is damages and the transactions are not complicated, the fact 
 that fraud is charged wil 1 not give equity jurisdiction, but if the transactions 
 were between partners and their accounts must be looked into, equity will 
 hear the case. 
 
 Good Will.— Mussleman's App., 1869, 13 S. 81. Should a liquidating 
 partner sell the good will he would have to account for it, but he himself is 
 not chargeable with it when he opens business for himself at the old stand 
 while still winding up the affairs of the firm. 
 
 Profit Outside Firm Business.— Waring v. Cram, 1850, 1 Pars. 516. A 
 partner will be compelled in Equity to account to his co-partners for any 
 money made outside the firm business by the use of either the capital oi the 
 firm or his own time, energy and skill. But where a partner deliberately 
 withdraws from a firm and engages in business for himself, the remedy is 
 at law. 
 
 Purchase of Partner's Interest. — Wallace's Ap., 1883, 8 Out. 559. A 
 purchaser of a partner's ipterest gets an intangible thing which he can only 
 reduce to possession by a demand for an account. 
 
 lb. — Knerr v. Hoffman, 1870, 15 S. 126. A purchaser of <>■ partner's in- 
 terest at sheriff's sale can either proceed by account rendered, or go into 
 equity for an account against the other partners. 
 
 Settlement and Release. — Abrahams v. Hunt, 1856, 2 C. 49. Where 
 one partner in exclusive possession of the books has procured a settlement 
 and release from his co-partner, the latter may nevertheless come into equity 
 for an account. 
 
 Surviving Partners.— Miller v. Coffman, C. P. 1885, 16 W. N. C. 423. 
 A surviving partner cannot file a bill against the executor of a deceased 
 partner claiming that the latter has never divided the profits. He must first 
 himself wind up the partnership, and if it appears that the estate of the 
 deceased partner is a debtor to the firm, proceed in the orphans' court. 
 
 lb. — Dehaven's Ap., 1886, 44 Leg. Int. 38. A surviving partner or a 
 person holding the property of a decedent in trust, who trades with the prop- 
 erty, is liable to account for the profits. 
 
 II. Procedure. 
 
 A, Practice and PleacLing. 
 
 Account Stated— Assignment of Specific Errors.- Cruise v. Walker 
 C. P. 1867, 24 Leg. Int. 141, S. C. 6 Phila. 294. Where a bill is filed for a 
 general account, and an account stated is pleaded, the complainant cannot 
 go on with his case without first amending so as to assign specific errors in 
 the account. 
 
 Answer — Denial of Indebtedness. — Koons v. Bute, C. P. 1856, 13 Lcs;. 
 Int. 317, S. C, 2 Phila. 170. Where an answer admits facts which show 
 the defendant to be an accounting party, a nositive denial of indebtedness 
 will not prevent a decree to account. 
 
Averment of Partnership. — Hudson v. Barrett, 1850, 1 Pars. 414. In 
 a bill for an account it is sufficient to aver a partnersliip in existence and its 
 commencement without loading the record with manner in which it had 
 been continued. 
 
 Allegation of Partnership need not be in detail.— White v. Judge, 
 C. P. 1874, 1 W. N. C. 87. A bill setting forth a partnership and asking 
 for an account is not demurrable because it sets out a continuance of the 
 partnership without specifying when made, how long to last or the consider- 
 ation. 
 
 Certificates of Counsel— No Remedy at Law. — Bachman v. Einhorn, 
 C. P. 1878, 5 W. N. C. 250, S. C, 35 Leg. Int. 120, 12 Phila. 391. A bill lor 
 an account between partners does not, in Philadelphia county, have to be 
 accompanied with certificate of counsel that the law affords no adequate 
 remedy. 
 
 lb. — Everhart v. Everhart, C. P. Luzerne, 1874, p Luz. L. Reg. 59. A 
 bill in equity for settlement of a partnership account must be accompanied 
 by a certificate of counsel, otherwise it will be dismissed upon objection 
 being taken at any stage of the proceedings. 
 
 lb.— Amendment.— Dick's Ap., 1884, 10 Out. 589. A bill which prays 
 for an injunction to restrain the defendants from making certain machinery, 
 for discovery, and for an account must be accompanied with a certificate of 
 counsel that there is no adequate remedy at law ; but it is error for the court 
 to refuse to allow such a certificate to be filed nunc pro tiinc by way of 
 amendment though the case has been before a master. 
 
 Form of action. — Bredin v. Dwen, 1833, 2 W. 95. Assumpsit, debt, 
 detinue or account render lies against a testamentary trustee to compel an 
 account. 
 
 Indebtedness Must be Alleged.— Volmer v. McCauley, C. P. 1870, 27 
 Leg. Int. 188, S. C, 7 Phila. 382. A bill for an account must allege that the 
 defendant is indebted to the complainant at the time of filing the bill. 
 
 Liability to Account.— Collyer v. Collyer, 1861, 2 Wr. 257. On a bill in 
 equity for an account between partners, the proper practice is first to deter- 
 mine the liability of the defendant to account, and then to settle the ac- 
 count if one be decreed. 
 
 lb. — Christy's Ap., 1879, 11 N. 157, Where the prayers in a partnership 
 bill are for account and contribution, and one of the defendants denies that 
 he was a partner, the proper practice is to make a special reference to a 
 master, to determine his liability before examining into the accounts ; 
 and although a general reference was made in this case, since the master 
 only reported on the one point of liability the reference would be considered 
 as amended and the proceedings regular. 
 
 lb.— Bailey v. Westcott, N. P. 1868, 25 Leg. Int. 173, S. C. 6 Phila. 525. 
 In a bill for an account the court may either refer to a master to state an ac- 
 count, or refer to a master to report whether an account should be stated. 
 
 lb.— Master.— Wilson v. Corson, C. P. 1874, 1 W. N. C. 98. Where a 
 suit for an account is referred to a master the proper practice is for him to 
 report on the liability of the parties to account and then to state the ac- 
 count. 
 
 lb.— Release set up.— Dampfs Ap., 1884, lO Out. 72. Where a bill asks 
 an account, and the defendant partner sets up a release, it is proper for the 
 court to direct the examiner to take testimony only as to the liability to 
 account. 
 
 Multifariousness.— Persch v. Quiggle, 1868, 7 S. 247. A bill which seeks 
 an account from a trustee, and from those to whom he has delivered the fund 
 is not multifarious. 
 
 Of Complainant.— Offer to Pay Balance.— Hudson v. Barrett, 1850,1 
 Pars. 414. A bill for an account need not contain an offer on the part of 
 complainant to pay any balance that may be found against him. 
 
€ ACCOUNT. 
 
 Parties.— Delbert'sAp., No. 3, 1877, 4 W. N. C. 294. A bill against a 
 trustee de son tort for an account ia defective if all the parties interested are 
 not made parties or are not represented by a trustee. 
 
 Prayer for Dissolution Uimecessary.— Von Tagen ;;. Roberts, C. P. 
 Dauphin, 1872, 2 Pears. 137. A bill for an account between parties need 
 not contain a prayer for dissolution. 
 
 Preliminary Injunction. — Lissig v. Langton, 1850, Bright. 191. Wbere 
 a defendant has filed his answer before the motion for a preliminary injunc- 
 tion is heard, there can be no counter affidavits, except in cases of vraste and 
 some cases of account between partners, but if he resist the motion by affi- 
 davits, his answer not being in, the case is different. 
 
 Purchaser of Interest. — SpeeificPerformance.— Allen t;. Hill, C.P.1867. 
 1 W. N. C. 167. A master appointed to settle a partnership account does not go 
 out of his province when he reports that an order be made on a purchaser of the 
 firm's real estate either to complete the sale or give up the possession. 
 
 Keceiver.— Fidelity Co. v. Huber, C. P. 1879, 7 "W. N. C. 278, S. C, 36 
 Leg. Int. 164, 13 Phila. 52. In a bill for an account by a trustee against a de 
 facto trustee who has in his possession cash government, bonds and other 
 personal securities, the court will appoint a receiver. 
 
 Waste— Venue.— Thompson v. Noble, 1870, 2 Crum. 201. A bill for an 
 account for waste committed by defendant must be filed in the county 
 ■where the land is situated. 
 
 B. Relief. 
 
 Appeal.— Cooper v. Van Fleet, 1875, 2 W. N. 0. 241, A decree for a part- 
 nership account is not a final decree, and no appeal lies therefrom. 
 
 Costs. — Coleman v. Coleman, 1868, 2 Pears. 511. In a bill for an account 
 between co-tenants, the court will not decree costs to be paid by respondents 
 though a decree is entered against them, where it appears that each co-ten- 
 ant used all he wanted, thinking there was an unexhaustable supply and 
 never expecting to be called to account. 
 
 lb. — Gyger's Ap., 1869, 12 S. 73. In equity costs rest in the sound dis- 
 cretion of the court and do not always follow the decree. In intricate or 
 doubtful accounts, especially in partnership accounts, the costs are usually 
 divided, or, what is the same thing, are taxed on the partnership eflFects. 
 
 Cross-bill. — Coleman v. Coleman, 1868, C. P. Dauphin, 2 Pears. 511. 
 Under act April 25, 1850, equity in a bill for an account, can decree a sum to 
 be paid by one defendant to another defendant, without there having been 
 a cross bill filed. 
 
 Form of Relief.— Long v. Perdue, 1876, 2 N. 214. One may file a bill for 
 an account before anything is due him, and when the decree is made it will 
 be made with reference to the facts then existing. 
 
 Interest.— Coleman D. Coleman, 1862, C. P. Dauphin, 2 Pears. 495. In 
 striking an account, interest should only be charged from the time the ac- 
 count is completed. 
 
 Surety.— Delo K. Banks, 1882, 5 Out. 458. A surety for a liquidating part- 
 ner whose obligation is to pay the other partner the full and just sum found 
 due on account being settled, is not liable for the final balance found by a 
 receiver who has been subsequently appointed to wind up the business, but 
 only for the amounts that came into the liquidating partner's hands before 
 he was superseded. 
 
 Tenants in Common. — Coleman v. Coleman, 1862, C. P. Dauphin, 2 
 Pears. 495. Where an account is to be taken between tenants in common 
 who are the children of tenants in common, the accounts should be per 
 stirpes. 
 
ACCUMULATION. 9 
 
 ACCUMUL,AXIOIV. 
 
 I. Genebally. 
 
 II. Disposal, of Income, Whbke' Direction Void. 
 III. Disposal op Income, Whbee Direction Valid. 
 
 I. Generally. 
 
 Act April 18, 1853.— Brown v. Williamson, 1860, 12 C. 338. Act 
 April 18, 1853, forbidding accumulations for more than twenty-one years, 
 avoids a trust which runs over the period only as to the excess. 
 
 lb.— Carson v. Rutter, 1882, 12 "W. N. C. 161. Act April 18, 1853, relat- 
 ing to accumulations applies to trusts created by deed as well as those 
 created by will, and the fact that part of the accumulation accrued in the life- 
 time of a grantor makes no difference. 
 
 Discretionary Accumulation.— Micheson's Est., 1882, 11 W. N. C. 547. 
 A direction to trustees to hold the surplus income to cover any future de- 
 ficiencies that might happen, or to apply it in improving the estate is a trust 
 ibr accumulation and if it exceed the statutory limit is void. 
 
 For Whose Benefit Made.— Washington's Est., 1874, 25 S. 102. Under 
 act April 18, 1853, accumulations must be for the benefit of the person who 
 if of age would be entitled to the rents and profits from which the accumu- 
 lation arises. Therefore an accumulation for the benefit of the estate during 
 the minority of a child who has an annuity only is void. 
 
 Non-residents.— Fowler's Ap., 1889, 9 Crum. Our provisions against 
 accumulation do not apply where the settlor and settlee are both residents 
 of states in v^hich the trust would be valid, although the trustee is a Penn- 
 sylvania corporation. 
 
 Rule Against.— Hillyard V. Miller, 1849, 10 Earr, 326. Trusts for ac- 
 cumlation are as rigidly restricted as legal estates in perpetuity. They are 
 wholly void if they transcend the limits, though after reaching a certain 
 amount part of the fund is directed to be applied to a certain charity. 
 
 Testof Validity.— Stille's Est., O. C. 1875, 2 Post. 381, S. C. 1 W. N. C. 
 249, 32 Leg. Int. 74, 11 Phila. 31. The test for determining whether accu- 
 mulations during the minority of a beneficiary are lawful, is whether or not 
 his minority is the sole obstacle to his present enjoyment. 
 
 Void Direction.— Butler v. Butler, N. P. 1872, 4 Leg. Op. 552. An in- 
 tention that the cesiuique trust should not have possession of his estate until 
 he became twenty-eight is lawful and will support an active trust, but ;i 
 direction that the interest shall accumulate, falls upon the beneficiary coming 
 of age. 
 
 II. Disposal of Income 'Wliere direction Void. 
 
 Beneficiaries Entitled.— Stille's Est., O. C, 1875, 1 W. N. C. 249, S. C, 
 32 Leg. Int. 74. Where a will creating a trust contains void directions to ac- 
 cumulate, the accumulations go to the beneficiaries under the trust and not 
 to the next of kin. 
 
 Heirs Entitled. — Grim's Ap., 1885, 13 Out. 391. A direction in a trust 
 to invest surplus income until the death of a certain living person is void, 
 and the heirs or next of kin are entitled to it. 
 
 Legatee Entitled.— Stille's Est., 1877, 4 W. N. C. 42. The legatee of a 
 specific bequest is entitled to all void accumulations made for his benefit. 
 
 III. Disposal of Income wtiere Direction Valid. 
 
 Power of Court— Maintenance.— Fumcss's Est.,0. C. 1884, 41 Leg. Int. 
 
10 ACCUMULATION — ACTS CONTBAEY TO LAW. 
 
 175, S C. 14 W. N. C. 391. Under act ot 1853, the orphans' court has 
 jurisdiction to allow, support to minors oat of a fund which is to accumulate 
 for their children. 
 
 lb. — Corbin v. Wilson, 1838, 2 Ash. 178. Equity will compel a trus- 
 tee to pay over income to maintain and educate one who on becoming sui 
 juris will be entitled to the fund. 
 
 lb. — Newport r. Cook, 1841, 2 Ash. 332. Equity will decree that a trust 
 fund be broken into to educate the minor cestuis que inistent where the prop- 
 erty is not to vest in any one until he is twenty- three years of age and where 
 the share of any one who dies is to go to the remainder of the class. And this 
 though the father of the children is living, Provided he be proved to be una- 
 ble to educate them properly. 
 
 lb. — Morris v. Fisher, 1841, 2 Ash. 411. An allowance for maintenance 
 will be made in favor of adult legatees (the legacies being vested), theiren- 
 joyment being by the terms of the trust postponed until the youngest child 
 should arrive at full age. 
 
 Spendthift Trust.— Huber's Ap., 1876, 30 S. 348. The accumulations 
 in the hands of a discretionary trustee for a spendthrift son, pass on the 
 death of the latter with the corpus of the trust estate and are not payable 
 to his representatives. (Agnew, C. J., diibiianle.) 
 
 Trustee's Discretion.— Levy's Est., O. C, 1856, 13 Leg. Int. 228, S. C, 
 aPhila. 138. The discretion of a trustee to withhold income cannot be used 
 for the purpose of accumulation. 
 
 lb.— Maintenance.— Potts {in re), 1826, 1 Ash. 340. A trustee is jus- 
 tified in breaking iiito the income or even the principal of a trust for accu- 
 mulation for a minor, if the latter be in need of it for maintenance and edu- 
 cation, and a trustee who (being unfriendly) refuses to do this is liable to 
 dismissal. 
 
 ACQUIESENCE. 
 See Estoppel. 
 
 ACTIONS. 
 
 See Equitable Actions ; Mortgage XVI, B : Teusts and Teustebs. 
 
 IV, B. 
 
 ACTIVE TRUST. 
 
 See Trusts and Trustees, I. B. (b.) 
 
 ACTS CONTRARY TO I.A'W. 
 
 [See Injunction, I. A.] 
 
ADEQUATE REMEDY AT LAW — ADJUSTMENT. 11 
 
 ADEQUATE REMEDY AT I.A'W. 
 
 See Remedy at Law. 
 
 ADJUSTMENT. 
 
 I. In General. 
 
 A. Between Assignees and Mortgagees. 
 
 B. Between Creditors. 
 
 C. Principal and Surety. 
 II. Application of Payments. 
 
 III. Apportionment. 
 
 IV. Contribution. 
 
 v. Exoneration — See also infra, I C. 
 VI. Marshalling of Assets. 
 
 VII. Set Off • — See also Decedents^ Estates IV. 
 
 [Declaration of no set off — See Estoppel VI. 
 
 A. Claims reduced to Judgment. 
 
 B. Claims not reduced to Judgment. 
 
 (a.) In General. 
 
 (b. ) Damages for Breach of Contract. 
 
 C. Practice. 
 
 (a.) In General, 
 (b.) Evidence, 
 (c.) Notice, 
 (d.) Jurisdiction. 
 
 VIII. Subrogation. 
 
 A. In General. 
 
 B. Principal and Surety. 
 
 C. Heirs, Legatees and Devisees. 
 
 D. Mortgagor and Mortgagee. 
 
 E. Debtor and Creditor. 
 6. Partners. 
 
 G. Vendor and Vendee. 
 
 I. In General. 
 
 A, Between Assignees and Mortgagees. 
 
 [See also infra VIII D.] 
 
 Abatement of Legacies. — Hooker's Ap., 1846, 4 Barr, 497. A devisee 
 of mortgaged land cannot claim that .specific legacies should abate in order 
 to free his land from the mortgage. 
 
 Act of April 22, 1856.— Koddy's Ap., 1872, 22 S. 98. Two bought 
 property and gave a mortgage upon it, and then divided it. Plaintiff had 
 paid half the mortgage and asked to have the share of his former co-tenant 
 first levied on. Held this should be done under the Act April 22, 1856. 
 
 Assignment of Mortgage and Judgment.— Ege v. Watts, 1867, 5 S. 
 321. A. assigned to B. a mortgage to secure certain specified debts, and after- 
 wards assigned to him a judgment to secure, inter alia general indebtedness. 
 Held equity would not compel the creditor to appropriate the amount re- 
 ceived on the judgment to any of the claims secured by the mortgage. 
 
 Assignees of Bonds.— Betz!). Heebner, 1830, 1 P. & W. 280. Where there 
 are several bonds given for debts secured by the same mortgage, the assignees 
 
12 AIUnSTJIENT. 
 
 of these bonds are entitled to come in pro rain under the mortgage, althoagh 
 the mortgage was assigned to some and others did not know of its exist- 
 ence. 
 
 Building Association. — Kelly v. Accommodation Saving Fund, D. C. 
 1856, 13 Leg. Int. 356, S. C, 2 Phila. 182. Where one has both given a 
 mortgage and assigned his stock to secure a loan by a building association, 
 the stock must bear its pro rata share of the debt. And the whole cannot be 
 collected out of the land. 
 
 Conveyance of Mortgaged Premises— Indemnity of Grantees.— 
 
 Emlin v. Boggs, 1796. 2 Y. 167. Where a mortgagor conveys partof the mort- 
 gaged premises and covenants against the mortgage, his grantees in a contest 
 with him for that part of the proceeds of a sale of the whole tract which re- 
 main after the mortgage is satisfied, are entitled to receive enough to in- 
 demnify them. 
 
 Credit for Assigned Stock— Building Association. — Kupfert v. Gnt- 
 tenberg Building Assoc, 1858, 6 C. 465. A purchaser at sheriff's sale of 
 property covered by a building association mortgage is entitled to credit for 
 the value of the shares of its own stock assigned to the association as collat- 
 eral security. 
 
 Distribution Under Sale Controlled. — Morris v. M'Conaughey, 1791, 1 
 Y. 9. The court will not control the execution on a judgment entered on a 
 bond accompanying a mortgage, but will control the distribution of the 
 money raised. 
 
 Exemption of Debtor .—Hufibrt'sAp., 1881, 10 W. N. C. 528. Where 
 real estate is sold under a judgment and a subsequent mortgage is thereby 
 thrown upon the fund, the debtor is not entitled to exemption. 
 
 Foreclosure— Pa3rment of Bonds pro rata. — Donley «. Hays, 1828, 17 S. 
 & R. 400. A mortgage by its terms was to be paid off by instalments. 
 Separate bonds were given for these. Part of which were assigned. On 
 forecloseure the proceeds were not sufficient to pay all. Held they should 
 he -pAiA pro rata. (Gibson, C. J., dissenting.) 
 
 Guaranty by Mortgagee.— Moore's App., 1844, 7 W. &S. 298. A guar- 
 anty given by a mortgagee to a, subsequent judgment creditor of the mort- 
 gagor, is apersonal guaranty merely and does notgivethe judgment creditor 
 any claim to the mortgage. A subsequent assignee of the mortgage takes it 
 as prior to the judgment. 
 
 Husband Purchases Mortgage— Cannot Claim Interest.— Pennock v. 
 Imbrie, D. C. 1858, 15 Leg. Int. 140 S. C, 3 Phila. 140. A man who 
 being in possession of his wife's land buys in a mortgage thereon cannot 
 claim interest on the same, because a tenant for life in possession is bound 
 to keep down encumbrances. 
 
 Holders of Bonds take pro rata.— Hodge's Ap., 1877, 3 N. 359. In the 
 di.stribution of a fund raised by a sale under a mortgage securing separate 
 bonds, tbebonds all take pro rata, and one holder cannot set up that another 
 holder has not paid value. 
 
 Judgment de terris.- Duncan v. Drury, 1848, 9 Barr. 332. One of two 
 owners of a mortgaged tract paid oft the mortgage. Held it did not merge 
 in his estate, but that he could proceed on it and have judgment 'de 
 terris, the mortgage keeping its original priority. 
 
 Land Subject to Judgment.— Devor's Ap., 1850, 1 H. 413. Land was 
 subject to a judgment, an undivided half of it was subject to a subsequent 
 mortgage. There were other later liens. In distributing the proceeds of a 
 sheriff's sale ot the land, it was held that the mortgage was entitled to go 
 against the whole fund left after the judgment was satisfied. 
 
 LienofMortgage— Parol Evidence.— Levy ». Schlager, C. P. Luzeine, 
 J878, 8 Luz. L. Eeg. 129. A judgment on a bond accompanying a mort- 
 gage will be restricted to the mortgaged premises, it being shown by parol that 
 
ADJUSTMENT. 13 
 
 the intention was that the bond and mortgage were to be a lien on this tract 
 only. 
 
 Order of Payment.— Shaw v. Chalfant, C. P. Allegheny, 1882, 30 P. L. 
 J. 317. Where parts of a tract subject to an encumbrance are successively 
 mortgaged, they are liable to satisfy the prior encumbrance in the inverse 
 order of the mortgages. 
 
 Payment Under Compulsion.— Fleming v. Beaver, 1828, 2 R. 128. Ac- 
 tual payment discharges a judgment at law ; but in equity, if justice so 
 reqiuires, and the party making payment does so under compulsion and not 
 voluntarily, the judgment will be kept alive to protect him. 
 
 Prior and Subsequent Liens.— Taylor's Ap., 1876, 31 S. 460. A creditor 
 took from his debtor two mortgages, one a first lien for $3,000, the other a 
 third lien for $10,000. His claim was for but $12,500. The property was 
 sold subject to the first mortgage. ETeld that he couldclaim the whole 
 $10,000 out of the proceeds and the deduction, il any, would be made on the 
 first lien. 
 
 Purchase by Assignee.— Colton v. Coiton, D. c. 18.'58, 15 Leg. Int. 20 
 S. C. , 3 Phila. 24. Where the assignee of a mortgage on three properties 
 has himself purchased two of them, he can collect only a ratable proportion 
 thereof off the third. 
 
 Purchase by Original Mortgagor.— Dill's Ap., 1883, 13 W. N. c. 499, S. 
 C, 3 Penny. 489. A mortgagor who has conveyed the mortgaged premises 
 and afterwards received a reconveyance of a part thereof is in no position to 
 compel subsequent grantees of other parts to first bear the mortgage he him- 
 self created. 
 
 Property Divided and Sold. — ^Wade 5). Filan, C. P. Luzerne, 1876, 5 
 Luz. L. Reg. 106. Where mortgaged property has been divided and parts 
 thereof sold the mortgagee may be made to proceed against them in the 
 order of their liability, or to accept the debt from those not in the first in- 
 stance liable. 
 
 Belease of Portion of Mortgaged Tract.— Taylor v. Maris, 183.5, 5 R. 
 51. A judgment creditor who releases part of the land bound by his judg- 
 ment, does not impair his right to be paid out of the remaining portion 
 which is bound by a subsequent mortgage, unless the mortgagee gave him 
 express notice of his right and cautioned him against impairing the security 
 of the mortgage. Mere record is not such notice. 
 
 lb. — Gulp D. Fisher, 1833, 1 Watts, 494. A covenant by the mortgagee 
 that he will not proceed against one of the several tracts included in the 
 mortgage, or even a formal release of such tract, does not release the other 
 tracts. 
 
 lb. — Martin's Ap., 1881, 1 Out. 85. If a mortgagee release a part of a 
 mortgaged tract sufficient to discharge the mortgage, the release operates to 
 discharge the lien of that mortgage on other parts of the same tract, which, 
 were conveyed by the mortgagor, while the part subsequently released was 
 still in his hands. 
 
 lb. — Paxton V. Harrier, 1849, 1 J. 312. A release for a valuable considera- 
 tion, of a part of mortgaged premises from the lien of the mortgage, discharges 
 the lien of the mortgage upon another part of the mortgaged premises which 
 was only liable in the second instance. 
 
 lb.— Shepherd's Ap., 1853, 2 Gr. 402. A release of one of two lots bound 
 by a mortgage for less than its proportionate sum as agreed upon, operates 
 as a release of the others except to the extent of its just proportion. 
 
 Sale in Parcels. — Mevey's App., 1846, 4 Ban-, 80. The sherifi" in selling 
 lands; mortgaged should sell in parcels as it will bring the most, and will be 
 directed by the court to sell in the order in which the tracts should contri- 
 bute to the lien, if there are such equities in the case. (See note p. 88.) 
 
14 ADJUSTMENT. 
 
 lb. — Fluch V. Replogle, 1850, 1 H. 405. When a mortgaged tract is sold 
 in parcels the parcels are liable for the mortgage debt in the inverse order 
 ' in which they are sold. 
 
 Satisfaction of Mortgage.— Kinley v. Hill, 1842, 4 W. & S. 426. If a 
 mortgage given as security for a debt is satisfied by the principal debtor, it 
 is extinguished and assignment of it to a surety to secure other claims car- 
 jriesno title. 
 
 Successive Assignees. — Hancock's Ap., 1859, 10 C. 155. Successive a.s- 
 signees of bonds secured by the same mortgage come in pro rata, and a ver- 
 bal guarantee by the assignor does not affect this rule. 
 
 Tacking.— Frazer v. Hallowell, 1805, 1 Bin. 126. The application of 
 the principle of "tacking" to Pennsylvania law discussed pro and con by 
 Yeates and Smith, J J. 
 
 lb. — Dorrow v. Kelly, 1785, 1 Dall. 142. The court will stay the pro- 
 ceedings on a scire facias mir mortgage upon payment into court of princi- 
 ■pa\, interest and costs, although there exists a simple contract debt between 
 the same parties which was contracted after the mortgage. 
 
 lb. Tender of Payment by Subsequent Mortgagee.— Bishops Ogden, 
 1872, C. P. 29, L. I. 397, S. C, 9 Phila. 524, 4 Leg. Gaz. 397, 4 Leg. Op. 487, 
 2 Sch. L. R. 355, 4 Lan. Bar, No. 33. Equity will not compel a first mort- 
 gagee to assign his mortgage to a subsequentmortgageewhotenderspayment 
 thereof, there being intervening mortgages. 
 
 lb. Tenants in Common.— Thomas' Ap., 1858, 6 C. 378, Eev'g 15 Leg. 
 Int. 54, 93, 3 Phila. 62, 99. A mortgage given by tenants in common to secure 
 a joint debt is discharged by payment and cannot be kept alive to secure 
 the mortgagee on a claim against one of the tenants individually. 
 
 lb.- Revival of Discharged Mortgage. — Anderson v. Neff, 1824, 11 S. 
 & E. 208. Our courts will not consider a discharged mortgage revived and 
 assigned to the owner of the land in order to protect him from a subsequent 
 judgment. There is no natural equity in tacking debts, and with us a mort- 
 gage is a mere security and when once paid is gone. 
 
 Terre-tenant.— Heritages Bartlett, C. P. 1879, 8 W.N.C. 26. Equity will 
 decree that the second terre-tenant who has taken land under and subject to 
 a mortgage shall discharge the same, the land having been sold for less than 
 the mortgage debt, and thus indemnify the first grantee of the mortgaged 
 premises who stands as a surety. 
 
 Vendor and Vendee.— Pax ton v. Harrier, 1849, 1 J. 312. A mortgagee 
 who has for a valuable consideration released a vendee ol the mortgagor of 
 part of the tract mortgaged, cannot recover against a prior vendee of another 
 portion of the tract, 
 
 B. Between Creditors, 
 
 Agreement for Priority of Separate Creditors.— Taggart v. Keys, D. 
 C. 1858, 15 Leg. Int. 86, S. C. , 3 Phila. 96. Parties may by agreement at 
 the time of entering into partnership, stipulate expressly or impliedly that 
 the separate creditors of one shall have priority over firm creditors. 
 
 Debtor's Exemption.— Laub v. Schollenberger, C. P. Berks, 1862, 1 
 Woodw. Dec. 18. A debtor is entitled to exemption where the first lien is 
 a judgment and the second a mortgage. 
 
 Estoppel by Agreement to Allow Liens to Remain.- Schrceder's 
 Est., 1870, O. C. Berks, 2 Woodw, Dec. 290. Where lien creditors made an 
 arrangement with a purchaser at orphans' court sale and the administrator 
 to leave their liens on the land sold, they cannot upon subsequently losing 
 them come upon the administrator who has conveved to the purchaser with- 
 out demanding that portion of the purchase money represented by the liens. 
 
 Lien Creditors and Mortgagee,— Dean v. Patton, 1825, 13 S. & K. 341. 
 
ADJUSTMENT. 15 
 
 A judgment creditor with a first lien who levies on personalty and afterwards 
 obtains a third lien cannot apply the proceeds of the personalty to that in 
 order to hold his lien on the real estate over a mortgage which is the second 
 lien. 
 
 Paid Judgment as Security.— Pierce ». Black, 1884, 32 Pitts. L. J. 65. 
 A judgment once paid can, as between the original parties, be kept alive as 
 security for other transactions, but not as against other lien creditors. 
 
 Partnership and Separate Creditors.— Houseal's Ap., 1863, 9 Wr. 
 484. Where assignments for creditors are made both by a firm and by one 
 of the partners, the creditors of the latter cannot claim on an equal footing 
 with the firm creditors although that partner was a large creditor of the firm. 
 
 lb. — Black's Ap., 1863, 8 Wr. 503. Where there are partnership and 
 separate creditors of an insolvent firm, each class has priority on its respective 
 estate. 
 
 Passing First Security.— Homing's Ap., 1879, 9 N. 388. A creditor 
 having several securities who passes the first is not thereby postponed to 
 junior lieu creditors as to the other funds. 
 
 Priority of Lien Creditors.— Keim's Ap., 1856,3 C. 42. A lien cred- 
 itor is entitled to a pro rata dividend out of theper.sonal estate of an insolv- 
 ent debtor ; and if he then makes more than the balance of his debt out of 
 his security the surplus enures to the benefit of the other creditors. 
 
 lb. — Graeff's Ap., 1875, 2 W. N. C. 104. A creditor who realizes a por- 
 tion of his claim after an assignment for creditors, out of a security which 
 he held prior to the assignment, is nevertheless entitled to a dividend on his 
 whole claim out of the funds in the hands of the assignee. 
 
 lb.— McDevitt's Ap., 1872,.20 S. 373. A. had a first lien on two funds. 
 B. the second lien on one of those funds. There were subsequent lien credi- 
 tors on both funds. B. bought A. 's claim and took an assignment of his 
 liens. Held that B. could claim the A. debt out of the fund which his own 
 debt did not bind. 
 
 lb. — Datesman's Ap., 1874, 27 S. 243, A prior execution creditor can- 
 not receive a fund in court for distribution in preference to a subsequent 
 execution creditor, to whom he was surety for the debtor, and the fact that 
 the latter judgment was defectively indexed made no difference. 
 
 Purchase of Encumbered Property. — Zeigler v. Long, 1834, 2 W. 205. 
 A purchaser of one of several tracts encumbered by a judgment, who is 
 afterwards compelled to pay the judgment may take an assignment thereof 
 and enforce it against the other tracts either in the hands of the original 
 debtor or of a subsequent vendee. 
 
 lb. — Bryson v. Myers, 1841, 1 W. & S. 420. One purchasing real estate 
 encumbered with judgments, is entitled in paying them to take an assign- 
 ment of them in order to perfect himself against another judgment of which 
 he had not been notified. 
 
 lb. — Myers v. Kasson, 1872, 4 Leg. Op. 455. One who has given his ob- 
 ligation for the purchase money of land on which it appears there is an en- 
 cumbrance, may keep the latter on foot as a security. 
 
 Belease by Lien Creditor. — Snyder v. Crawford, 1881, 2 Out. 414. . A lien 
 creditor may release part of the tract bound without losing his claim to the 
 rest unless he have actual notice that the part notreleased has been conveyed 
 and is warned not to do anything by which the rights of these grantees may 
 be diminished. 
 
 Subseq,uent Lien Creditor Cannot Compel Assignment.— Blich v. 
 Weller, C. P. Luzerne, 1882, 3 York L. R. 206. A third lien creditor has 
 no standing in court to compel a first lien creditor to accept payment from 
 him and to assign his judgment to him. 
 
 Waiver of Priority.— Kerr's Est., C. P. Cumberland, 1870, 1 Leg. Op. 
 25, A mortgage was given to secure two creditors, afterwards one of them 
 
16 ADJUSTMENT. 
 
 ■waived his priority in favor of a second mortgage, and before final distribu- 
 tion the latter gave back the priority to the one who had previously waived 
 It. Beld that the two first mortgagees should come in together on the fund*. 
 
 C. Principal and Swrety. 
 
 Assignee— Principal and Surety — Insolvency. — Fourth Nat, Bank's 
 Ap., 1889, 8 Crum. 473. Where a bank took a mortgage to secure notes to 
 be by it discounted, and both the mortgagor and the bank became insolvent, 
 there were three claimants, (1) the assignee for creditors of the bank, (2) an 
 attaching creditor of the bank, and (3) an assignee of one of the notes. Held 
 that the latter's equity was the highest, as the first two stood only in the 
 shoes of the bank, while the bank stood as surety to the assignee of the note 
 and therefore the latter must be paid in full. 
 
 Co-Owners.— Weaver V. Keith, 1888, 4 Montg. Co., L. Rep. 162. The 
 surplus of property sold under a mortgage given by two co-owners to secure 
 the debt of one of them, will go to the co-owner who is injured thereby and 
 not to the judgment creditor of the other. 
 
 Judgment Note Signed by Surety. — Patterson v. Anderson, C. p. 
 Beaver Co. 1885, 16 W. N. C. 569. One who signs as surety a judgment 
 note which is apparently executed by two principles, without notice that one 
 of these is a surety, is discharged upon payment by either of the parties sup- 
 posed by him to be principals. 
 
 Joint Judgment. — Boschert v. Brown, 1872, 22 S. 372. A joint judg- 
 ment rendered against principal and surety does not extinguish the equities 
 existing between them. 
 
 Bond and Mortgage.— Hay «. Node, 1800, 2 Y. 534. One who joins in 
 giving a bond, but does not join in the accompanying mortgage, may take an 
 assignment of the mortgage and sue it out. 
 
 Sureties' Judgment— Assignee.— Mifflin Co. Bank's Ap., 1881, 2 Out. 
 150. The bona fide assignee of a judgment given by a principal to his surety 
 takes it free from the equities of the creditor to have the judgment applied 
 to the debt. 
 
 Securities of Surety Liable.— Rice's Ap., 1875, 29 S. 168. A creditor 
 is entitled to go against any securities given to the sureties for his own ben- 
 efit even though the creditor did not give credit on the faith of tbem, and 
 the principle is unaltered even where the surety is in such a position that it 
 would be inequitable to allow him to make use of the securities. 
 
 SI. Application of Payments. 
 
 Building Association— Mortgage.— Spring Garden Assoc, v. Trades- 
 men's B. & L. Assoc, 1864, 10 Wr. 493. A mortgage was given to a build- 
 ing association to secure a loan and also the mortgagor's payments on his 
 stock ; an appropriation of payments to one or other of these objects can 
 only be made by the parties, and a stranger has no equity in the matter. 
 
 lb. lb.— Kupert 0. Guttenberg Building Assoc, 1858, 6 C. 465. A pur- 
 chaser at sherifi^'s sale of property covered by the building association mort- 
 gage is entitled to credit for the value of the shares of its own stock as- 
 signed to the association as collateral security. ' 
 
 lb. lb.— McGrath ii. Hamilton Loan Association, 1863, 8 Wr. 383. The 
 payments of a member of a building association who is also a morto-ao-or 
 are to be applied first to his sliare of the expense of running the company! 
 
 lb. lb.— Hughes' Ap., 1858, 6 C. 471. Payments on account of stock by 
 
ADJUSTMENT. 17 
 
 a member of a building association who has taken a loan and given a mort- 
 gage, are to be regarded as payments of the loan. 
 
 lb. lb.— Payment Generally.— Greenfield's Est., 1882, 1 Ches. Co. Rep. 
 356. Payments upon stock by a member of a building association', are not 
 to be considered as discharging a mortgage given by the member to the as- 
 sociation. 
 
 lb. lb. — Failure to Apply. — Kreamer v. Springfield Building A.ssoc., 
 1878, 6 W. N. C. 267, S. C, 1 Ches Co. K. 36.3. If a member of a building 
 association has given a mortgage to secure his payments on his stock assess- 
 ments, etc., and fails to have his payments applied to the leduction of the 
 mortgage, it cannot be done by a sherifl''s vendee of the premises. 
 
 lb. lb. — Presumption of Application.— Selden v. Building Assoc, 1876, 
 2 W. N. C. 481. Payments made by a member of a building association 
 who has taken a loan and given a mortgage, are presumptively lor dues and 
 fines. 
 
 lb. lb. lb.— North American Building Assoc, v. Sutton, 1860, 11 C. 463. 
 Where a member of a building association has obtained a loan and given a 
 mortgage, and in a suit on the latter has pleaded payment and had judg- 
 ment rendered against him, there is no presumption that his payments to the 
 association were applied to the mortgage and have been allowed to him. 
 under his plea, and that therefore he lias no stock. 
 
 lb. lb. — Stock Assigned as Collateral Security.— Economy Building 
 Assoc. V. Hungerbuehler, 1880, 12 N. 258. Where its stock is assigned to a 
 buildingassociation as collateral security for a mortgage given to the assso- 
 oiation, payments on the stock do not discharge the mortgage pro tanio 
 unless expressly so applied. 
 
 lb. lb. lb. — Shober v Accommodation Saving Fund Association, 1860, 11 
 C. 223. A member of a building association who has taken a loan and given 
 a mortgage, and assigned his stock as security therefor, and who has after- 
 wards transferred his .stock outright to a third party for a valuable considera- 
 tion, is in no position to demand that the payments that he has made on 
 the stock shall go to relieve his land ol the mortgage. 
 
 lb.— Subsequent Mortgagee.— Harris' Ap., 1886, is W. N. C. 14. Where 
 a member of a building association has borrowed money from it, and given 
 a mortgage conditioned for the repayment of the same and for the dues on 
 his stock in the company which was also assigned as collateral, a second 
 mortgagee has no equity to have payments made by the mortgagor applied 
 to the mortgage instead of to the stock account, especially when a third 
 party is assignee of the mortgagor's interest in the stock. 
 
 Fasrment by Debtor Generally. — Selfridge v. Northampton Bank, 1844, 
 8 W. & S. 320. Where a payment is made by a debtor without specifying 
 to wbicb of several debts it .shall be applied, equity will so apply it as to do 
 justice to all parties ; but this equitable principal cannot be invoked where 
 the debtor himself directs an application of the payment. 
 
 Mortgage to Building Association— Decedent's Estate. — Kingsessing 
 Building Assoc, v. Roan, 0. P. 1880, 11 W. N. C. 15. The next of kin of a 
 deceased member of a building association hasno standing to have payments 
 made by the latter in his lifetime applied to a mortgage which had been 
 given to secure a loan. 
 
 Principal and Agent — Creditors. — Johnson's Ap., i860, l Wr. 268. A 
 mortgage given by a principal to his factors to secure a running account 
 cannot be attached by a subsequent judgment creditor ; nor has the latter 
 any equity to compel the application of payments by the mortgagor to the 
 debts secured by the mortgage when there are unsecured debts between the 
 same parties. 
 
 Usury. — Turner v. McAnany, 1888, 5 Kulp, 175. Payments made on 
 several judgments will be so applied, in the absence of specific directions, 
 that usury shall not be paid on any ol them. 
 2 — EQUITY. 
 
X8 ADJUSTMENT. 
 
 III. Apportionment. 
 
 Ground Rent— Jurisdiction— Cnthbert v. Kuhn, isn?, 3 Whart. 357. 
 Where a portion of premises subject to a ground rent is taken by the Com- 
 monwealth, equity has jurisdiction to apportion the rent, but the propor- 
 tions must be settled by a jury. 
 
 Eminent Domain— Damages.— Dyer v. Wightman, 1870, 16 s. 425. The 
 exercise of the right of eminent domain is aot an eviction in equity. There 
 the damages take the place of the land, the rights, of the lessor and lessee 
 are adjusted and the relationship of landlord and tenant is at an end. 
 
 Erection of Borough— Practice.— Borough of Gilbertson (in re), C. F. 
 Schuylkill, 1879, 1 Scb. L. R. 11. All matters of indebtedness arising 
 when a new borough is erected should be axljusted by a petition in equity. 
 
 Release by Annuitant.— Addams ». Hefferman, 1840, 9 Watts, .529. An 
 annuity was charged on two separate lots, the annuitant released one of 
 them. This was not a release even pro tanio of the other. The latter de- 
 scended to several heirs one of whom was the annuitant, held the land was 
 discharged pro tarda. 
 
 Interest on Mortgage.— Earp's Will. 1850, l Pars., 453. Interest on i. 
 mortgage is apportionable. 
 
 Rent of Land Taken by Railroad.— Voegtly v. Pittsburgh E. R., 1858, 
 2 Gr. 243. Where part of a tract subject to a ground rent is taken by a rail- 
 road, equity will apportion the rent in relief of the tenant and compensate 
 the landlord out of the damages. 
 
 IV. Contribution. 
 
 Accommodation Endorser.— Steckel v. Steckel, 1857, 4 C. 233. Where 
 one of two payees in a promissory note endorsed by them for the accommn- 
 dation of the maker, pays the whole he is entitled to contribution from his 
 co-payee. 
 
 Between Liens.— Arna's Ap., 1870, 15 S. 72. Art April 22, 1856, «,9 
 (contribution between liens), (P,. L. 534), must be strictly pursued or plain- 
 tiff has no right of appeal. Under it the creditor is not obliged to wait until 
 the terre-tenants have settled their equities. 
 
 Conveyance of Encumbered Lots. — Beddow v. Dewitt, 1862, 7 Wr. 326. 
 Where tracts bound by the same lien, are conveyed by the owner to different 
 grantees the tracts are chargeable in the inverse order of their conveyance. 
 This right of the prior grantees rests only on their payment of purchape 
 money, and to the extent this is not paid, they can be called on for contribu- 
 tion. 
 
 Co-Debtor.— Gordon )). Freed, 1888, 4 Montg. Co., L. Rep. 183. A bill 
 in equity will lie by a debtor who has paid the debt of himself and his 
 co-debtor to enforce contribution from the latter. 
 
 Co-obligor. — Craig V. Craig, 1835, 5 R. 91. An obligor who has paid a 
 bond and has received it from the obligor may maintain an action from con- 
 tribution against his co-obligor. 
 
 Co-surety. — Kramph v. Hatz, 1866, 2 S. 525. Where one of two co-sure- 
 ties has paid the debt after having had judgment recorded against him, that 
 judgment is not conclusive upon his co-surety whom he suesfor contribution. 
 
 Damages— Adjoining Counties.— Armstrong Co. ■. Clarion Co., 1870, 
 16 S. 218. Where a traveler injured by the lalling of a bridge between 
 two counties sues one and gets damages that one is entitled to contribution 
 from the other. 
 
 Mortgaged Lands in Different Counties.— Fisher v. Clyde, \f*A\, 1 W. 
 &S. 544. When mortgaged land is by a division of a courrty divided and a 
 purchaser of a part in one county pays off the whole mortgage he is entitled 
 
ADJUSTMENT. 19 
 
 to be subrogated to the right of the mortgagee as to the other part and on 
 icire facias in the other county recover contilbution to the amount of the pro- 
 portiouate value of that tract. 
 
 Right and Remedy.— Zarpfel v. Baumgardner, 187,5, C. P. Lancaster, 6 
 L. B. 141. Contribution is an equitable right, subrogation the equitable 
 remedy to enforce that right. 
 
 Partnership— Surety. — Christy's Ap., 1879, 11 N. 157. A suit by a 
 surety for a partnership to enforce contribution from one alleged to be a 
 partner is a proper case for equity. 
 
 Partners— Co-defendants.— Clark ji. Martin, C. P. 1878, 6 W. N. C. 30. 
 The right of contribution among co-defendants where one pays the debt 
 does not exist between partners. 
 
 Sale of Divided Mortgaged Lots.— Leech v. Bonsall, C. P. 187,5, 32 
 Leg. Int. 256, S. C. 10 Phila. 384. "Where a large mortgaged lot is di- 
 vided into lots of equal size and improved and sold under the mortgage the 
 lots should contribute equally although some bring more than others. 
 
 Several Liable. — Horbach v. Elder, 1851, 6 H. 33. Where one of several 
 who are equally liable pays more than his share he is entitled to contribu- 
 tion. 
 
 Stockholders.— Brinham v. "Wellersburg Coal Co., 1864, 11 Wr. 43. 
 Stockholders of a corporation organized under the Act of 1849, who have paid 
 debts of the corporation must enforce contribution under that aqt and not 
 thiongh equity. 
 
 Statute of Limitations.— Wheatfield Twp. v. Brush Valley Twp., 1855, 
 1 C. 112. One of two joint debtors is not entitled to coBiribntion on paying 
 a debt barred by the statute of limitation. 
 
 Verdict— Assignment of Interest.— Riffle's Ap., 1869, 3 Brews. 94. One 
 paying the amount of a conditional verdict and taking an assignment of 
 plaintiff's interest in it gets no right to the judgment for possession. That 
 is extinguished by payment. 
 
 United States— Preferred Creditor.— Downing v. Kintzing, 1816, 2 S. 
 & R. 336. Where an insolvent has made two assignments to two different 
 sets of creditors, the United States as a preferred creditor can go against 
 either, and that fund is entitled to contribution from the other. 
 
 Volunteer.— Fleck v. Weller, C. P. Luzerne, 1884, 2 Kulp, 258, S. C, 12 
 Luz. L, Reg. 29. One who volunteers to pay a judgmentandhaveitmarked 
 to his use in order to save the debtor from having his property sacrificed is a 
 mere volunteer and his petition will not be granted. 
 
 "V. Exoneration. 
 
 [See also infra I. C] 
 
 Charged on Land.— Baldwin's Est., 1880, 1 Ches. Co. Rep. 315. A 
 mortgage which was already charged on land when it came into the hands 
 of one whose estate is being settled, is not payable out of the pereonalty. 
 
 Decedent's Estate— Property Liable.— Leoig's Est., 1866, 2 s. 135. 
 Where land is mortgaged it is but pledged collaterally for the debt, and in 
 settling a decedent's estate the personal property is liable in the first instance 
 to discharge such debt. 
 
 Personal Estate Not Relieved by Trust to Pay Debt.— Duval's Ap., 
 1861, 2 Wr. 112. A trust of the residue of testator's land, to pay debts not 
 otherwise provided for, does not relieve tlie personal estate in the first in- 
 stance- The power thus given is well exercised by a voluntary conveyance 
 to the administrator who mortgages the laud to raise money to pay the debts. 
 
 Devise Sulyect to Mortgage.— Hofl's Ap., 1855, 12 H. 200. Where a 
 
20 ADJUSTMENT. 
 
 devise is made of property subject to a mortgage, which mortgage was not 
 created by the testator, tlie defendant is entitled to have the mortgage paid 
 out of the residuary estate, although the testator upon taking a conveyance 
 of land agreed specifically to discharge the mortgage. 
 
 Purchase from Heir.— Hay's Est., O. C. 1857, 14 Leg. Int. 140, S. C, 2 
 Phila. 277. One buying the interest of an heir in an encumbered property, 
 who buys subject to the mortgage, is not entitled to have the mortgage dis- 
 charged out of the property of the decedent. 
 
 Decedents' Estates — Mortgages.— Leibert's Appeal, 1888, 2 w. n. c. 
 289. A debt of an intestate secured by a mortgage is payable like all other 
 debts of the intestate, out of his personal estate exclusively in the first in- 
 stance, although the mortgage is a lien upon the land of which the intes- 
 tate died siezed. But where the heir takes the property so bound, at a cer- 
 tain valuation, he cannot, after a lapse of thirteen years, enforce payment 
 out of the personal estate. 
 
 lb. — lb.— Euston ('. Ruston, 179G, 2 Y. 54. The personal estate of a testa- 
 tor shall go to ease his land of mortgages as against residuary legatees, but 
 not as against specific legatees. 
 
 lb.— lb. — Hansen's Est.., 1849, 1 Pars. 367. A bond and mortgage given 
 to secure the widow's interest by an heir who takes land at an appraisement 
 is payable after his decease out of his personal estate. 
 
 lb — lb. — Hirst's Ap., 1880, 11 N. 491. A devisee of land which came 
 Into the testator's hands under and subject to a mortgage, takes the land 
 subject to the mortgage and cannot call upon the personal estate to pay it. 
 
 lb. — lb. — Moore's Ap., 1879, 7 N. 450. The clause in a deed " under and 
 subject to a mortgage " does not create a personal liability on the grantee to 
 pay the mortgage. The debt, thei-efore, after his death is not payable out 
 of his personalty but out of the laud. 
 
 TI. Mai-slialing; of Assets. 
 
 Assignment by Partner.— Gregory's Ap., 1884, ir, w. N. C. 525. An 
 assignment for creditors by one partner is not a waiver of his right to have 
 firm creditors first satisfied out of firm assets. 
 
 Creditors of Different Debtors.— Bertolet's Est., C. P. Berks, 1862, 1 
 Woodw. Dec. 9. Where parties seeking equitable aid of the court are not 
 creditors of the same debtor, the court will not marshall the assets. 
 
 Decedent'sEstate— Mortgage.— Mason's Est., 1845, 1 Pars. 129. A 
 mortgage created by a decedent is to be paid out of his personalty (unless it 
 defeat pecuniary legatees), but one which he took with the land remains on 
 it and the devisee takes it ctim oncre. 
 
 Distribution of Fund — Lien Creditor's Sale. — Basting's Case, 1840, 10 
 Watts, 303. A lien creditor may sell on execution any tract bound by his 
 lien, or all if necessary, but when the money comes to be distributed, equity 
 will so apply it as, If possible, also to satisfy claimants against the separate 
 tracts. 
 
 Election by Widow— Legatees.— Young's Ap., i885, 32 Pitts. L. J. 
 316. AVhere by her election a widow disappoints legatees, equity sequesters 
 the legacies and devises to the widow (which she has refused) for the benefit 
 of the disappointed legatees. 
 
 Encumbered Estate Further Encumbered by Heir.— Cowden's Est., 
 1845, 1 Barr, 267. Where a son whose father's property descended to him 
 slightly encumbered, further encumbered it, it was held that the claims 
 against the ancestor should be paid out of the properties last encumbered. 
 
 Encumbered Funds as Security.— Miller v. Jacobs, 1835, 3 Watts, 477. 
 
 Where a creditor takes a security on one of two funds already encumbered, 
 lie may fairly speculate on the chances of being paid by a proper application 
 
ADJI'STMEXT. 21 
 
 of the liens. But he is in no standing to ask the court's aid in so marshal- 
 ling the assets, when at the time of his taking his security, it stood alone re- 
 sponsible lor another debt, and only afterwards was that responsibility 
 shaied by a second fund. 
 
 Fund in Court— Other Security.— Trustees of Bank of United states 
 (lare), 1850, 2 Pars. 110. Where a claimant on a fund in court for distribu- 
 tion has another security for his claim he must first exhaust that. 
 
 Insolvent Partner. — Wood v. Cunningham, C. P. 1877. 5 W. N. C. 189. 
 AVhen one of the members of a firm is insolvent and indebted to the finn, 
 equity will require the others to make up his indebtedness to the firm pro 
 rata with their interest in the firm. 
 
 Individual and Partnership Mortgage.— Vandike's Ap., 1868, 7 s. 9. 
 A. gave B. a mortgage on his interest in land, it not appearing that it was 
 partnerehip property. Afterwards A. and C. , partners, gave B. a mortgage on 
 the whole land and A. also confessed a judgment to B, as collateral lor this 
 mortgage. The land was sold under both writs and did not quite pay both 
 mortgages. Held that the judgment was not extinguished. 
 
 Jurisdiction— Remainderman Against Executor. — Mackinson v. Mack- 
 inson, 1854, 2 Gr. 286. The common pleas has no jurisdiction of a bill by a 
 remainderman against the executor of a life tenant to compel him to satisfy 
 arrearages of ground rent which accrued during the estate of the life tenants ; 
 the remedy is in the orphan's court. 
 
 Judgment Creditor — Prior Mortgage. — Harrison v. Wain. 1823, 9 S. 
 & R. 318. A judgment creditor who purchases a prior mortgage and judg- 
 ment, and under the latter levies on land of the debtor not iDcluded in the 
 mortgage, with a view to make his own judgment out of the mortgaged land, 
 will not be restrained on motion of a voluntary grantee of the land levied on, 
 though it seems he would be on motion of a purchaser. 
 
 Lien Creditor— Fund in Sheriff's Hands. — Bank of Penna. v. Winger, 
 1829, 1 R. 295. There is no equity which requires a lien creditor to satisfy 
 his claim out of funds in the sheriff's hands, he may pass it without affect- 
 ing his security. 
 
 Liens— Waiver of Exemption. — Pittmau's Ap., 1864, 12 Wr. :u.'). Where 
 a first lien is with waiver of exemption and a second lien is without such 
 waiver, the latter creditor can compel the former to proceed first against the 
 $300. 
 
 Mortgaged Property Subsequently Mortaged in Parts. — Milligan's 
 Ap., 1883, 8 Out. 503. When mortgaged property is subsequently mortgaged 
 in parts, these parts are liable to discharge the first mortgage in the reverse 
 order of their being mortgaged the second time, and the fact that one of the 
 second mortgagees subsequently buys in his part under his own mortgage can 
 make no difference. 
 
 No Partnership.— Worthington's Est., C. P. 1875, 2 W. N. C. 199. If 
 there is no partnership firm creditor's can have no preference, for their 
 equities depend on the equities of the partners. 
 
 Orphan's Court. — Gerhard's Est., C. P. Montgomery, 1872, 4 Leg. Gaz. 
 74. The orphan's court marshals and distributes assets according to prin- 
 ciples of equity. 
 
 Partnership Assets— Judicial Sale.— Backus r. Murphy, 1861, 3 Wr. 
 397. The equities of the partners and of their creditors to compel an appli- 
 cation of firm assets to firm debts is extinguished whenever the assets arc 
 converted into money by a judicial sale. 
 
 Partnership Creditors.— D'lnvilliers's Est., O. C. 1880, 8 W. N. C. 455. 
 A partnership creditor who desires to come in on separate property with sep- 
 arate creditors is under the necessity of showing that there was no firm 
 property. 
 
 lb.— McCormick's Ap., 1866, 5 S. 252. The rights of partnership cred- 
 
22 ADJUSTMENT. 
 
 itors to have firm property applied first to the payment of their debts is de- 
 pendent upon that of the partners to have the securities so marshaled. 
 
 lb.— Coover's Ap., 1859, 5 C. 9. The claim of partnership creditors to a 
 preference in the distribution of the estate of the firm, rests on the equities 
 of the partners and is lost where a partner's Interest is .sold either advereely 
 or with his consent. 
 
 lb.— Wharton v. Grant, 1846, 5 Barr. 39. The rule that the assets of a firm 
 must be first applied to partnership debts.is foirnded solely on the rights of 
 the partners themselves. 
 
 lb. — Backus V. Murphy, 1861, 3 "Wr. 397. The equities of partnership 
 creditors can only be worked out through the partners ; but if they are slow 
 in moving, the court may allow the creditors to proceed in the name of 
 the partners in an equitable proceeding. 
 
 lb.— Doner v. Staufler, 1829, 1 P. & W. 198. The preference which ex- 
 ists in favor of joint creditors of a firm is founded on no merits of their own, 
 but on the equities existing between the partners which spring from the na- 
 ture of the contract. 
 
 lb.— York County Bank's Ap., 1859, 8 C. 446. Where, under articles of 
 partnership, one of the partners is sole owner of the stock, his separate cred- 
 itors have equal rights with the partnership creditors. 
 
 Purchase Money Mortgage— Decedent's Estates.— Gould's Est., 0. 
 C. 1879, 6 W. N. C. 562. Where a decedent bought property in his lifetime 
 and created thereon a purchase money mortgage, which property his execu- 
 tor sells "under and subject" to the mortgage, the mortagee will be com- 
 pelled to go against the hind first on the equitable principal of marshaling of 
 assets. 
 
 Release by Prior Encumbrancer. — Mutual Assurance Co. v. Power, C. 
 P. 1877, 3 W. N. C. 407. The question whether a prior encumbrancer who 
 has released part of his security to the prejudice of a junior encumbrancer, 
 had notice of the claims of the latter should go to the jury under proper in- 
 structions. 
 
 Specific Devisee. — Gallagher's Ap., 1878, 6 N. 200. A specific devisee 
 has a right to have the assets of the estate marshaled so as to make her whole 
 where the widow has taken against the will. 
 
 Two Funds A-failable.— Kehler c. Miller, 1872, 1 Post. 35, S. C, 4 Leg. 
 Gaz. 125. A creditor who has two funds in the hands of the same debtor 
 will be restricted by equity to the one on which other creditors have no 
 claims. 
 
 VII. Set-ofiT. 
 
 [See also Decedents' Estates IV; Declaration of no set-off, see Estoppel VI.] 
 
 A. Claims Reduced to Judgment. 
 
 Arbitrators. — Franke v. Frable, C. P. Luzerne, 1878, 1 Lack. L. Rec. 
 377. A judgment which has been offered as a set off and refused by arbitra- 
 tors cannot be set off against the judgment rendered by the arbitrators. 
 
 Assignee— Existing Equities.— Keagy v. Commonwealth, 1862, 7 Wr. 
 70. A having given his recognizance in favor of B, bought a judgment 
 against him. C afterwards bought B's right under the recognizance. Held, 
 that A could set-off the judgment against C, since the transfer of a chose in 
 action is subject to the equity then existing. 
 
 lb.— Filbert v. Hawk, 1839, 8 AV. 443. The assignee of a judgment is 
 subject to set-off which existed betwen the original parties at the time of 
 the assignment. 
 
ADJUSTMENT. 23 
 
 Co-owner of Vessels. — Hazlehurst !!. Bayard. 1801, 3 Y. 152. A set-off 
 of a judgment allowed againstone who had insured a vessel. for himself and 
 others in a suit on the policy by him alone, although it was clearly proven 
 by extrinsic evidence that another was a half owner. 
 
 Costs.— Miles II. Moss, 1882, C. P. Lackawanna, 4 L. T. N. S. 5. Costs 
 in one judgment may be set-off against another. 
 
 Different Courts.— Best v. Lawson, 1835, l M. 11. Judgments may be 
 set-off against each other though recovered in different courts. 
 
 Discretion of Court.— Windle v. Moore, C. P. 1879, 10 "W. N. C. 387, S. C, 
 
 I Ches. Co. Rep. 69. The court will not allow one judgment to be set-off 
 against another unless the circumstances of the case make it an equitable 
 exercise of discretion. 
 
 Estoppel.— Bindley 's Appeal, 1876, 19 W. N. C. 18. M obtained judg- 
 ment against B, whereupon the latter filed a petition alleging that L had re- 
 covered a judgment against him upon an award by a referee which was 
 properly payable by M, and praying that the amount of L's judgment 
 should be credited upon the judgment obtained by M. E did not set this 
 up upon trial of the cause, nor had M agreed to the trial of L's claim before 
 a referee. Held, the facts did not present a proper case for equitable inter- 
 ference. 
 
 Executor — ^Personal Debt. — Prouty v. Hudson, 1854, 5 Clark, 311, S. C, 
 3 Am., L. Reg. 40. An executor cannot set off a judgment due his dece- 
 dent against one recovered against him personallj'. 
 
 Foreign Judgments.— Melloy v. Burtis, 1888, 4 Pa. Co. C. Rep. 613. A 
 plaintiff against whom a judgment for costs has been entered is not entitled to 
 set-off of the judgment of a court of another State against the firm of which 
 the defendant is a member. 
 
 Judgment. — Metzgar V. Metzgar, 1829, 1 R. 227. A judgmentmay be set- 
 off before a jury. 
 
 lb. Assignment. — Dunkin v. Calbraith, 1807, 1 Browne, 47. A judg- 
 ment against the plaintiff which has been assigned to defendant cannot be 
 set off against a judgment obtained by the plaintiff against the defendant, 
 the assignment having been made subsequently to the plaintiff becoming in- 
 solvent. 
 
 lb. — lb. — Jacoby v. Giner, 1821, 6 S. & R. 448. A defendant in two actions 
 in which verdicts have been given for plaintiff, and the same assigned to a 
 third person, may set-off a former judgment which he held against the plain- 
 tiff, although at the time of the assignment of the verdicts it was in the 
 hands of his assignee for creditors, and he procured a re-assignment for this 
 very purpose. 
 
 lb. — Bell V. Cowgell, 1811, 1 Ash. 7. A debt which has been reduced to 
 judgment may be set off. 
 
 Labor Done. — Bosche v. Maurer and Rothermel, 1888, 5 Pa. Co. Rep. C. 
 215. An ordinary judgment cannot be set-off against a judgment for wages 
 of labor since acts of May 23 and March 4, 1887. 
 
 Money Held for Special Purpose.— Tagg v. Bowman, 1882, 3 Out. 376, 
 One who is sued for money of plaintiff's which he has not disposed of ac- 
 cording to an agreement cannot set-off a judgment vfhich he has against 
 the plaintiff. He is sued in a quasi fiduciary capacity. 
 
 One Set-oflF Against Another.— Weilock v. Cowan, 1827, 15 S. & E. 
 318. No writ of error lies to an order made in the lower court allowing one 
 j udgment to be set off against another. 
 
 Principal and Surety— Joint Wote.— Seybert «.Hick,1879,C. P. Luzerne, 
 
 II Lan. Bar. 175. A surety who is sued with his principal may set off a 
 joint note which he holds against plaintiff and another. 
 
 Prior Assignment.— Marine Sawmill Co.'s Ap., 1885, 17 W. N. C. 308. 
 
24 ADJUSTMENT. 
 
 Equity will net allow tvo judgments to be set ofif against each other where 
 In one of them the claim was assigned before it was reduced to judgment. 
 
 Purchaser of Judgment Pending Suit. — Mervine v. Greble, 1849, 2 
 Pars. 271. Where a defendant in a judgment pending a writ of error pur- 
 chased a judgment against the plaintiff, he cannot set it off against a bona 
 fide assignee of the judgment after it was affirmed who took it without 
 notice of the set-off. Mutual demands do not per se extinguish each other. 
 
 Eent.— Ryan v. Casey, C. P. Dauphin, 1859, 1 Pears. 153; 3 Luz. L. Obs. 
 158. A defendant in a judgment in rem may set off a general judgment 
 which he holds against the plaintiff, but the reverse could not be done. The 
 defendant's offer of set-off need not be accompanied with an offer to pay the 
 balance. 
 
 Replevin. — Kennedy v. Kennedy, 1861, 5 Wr. 185. Plaintiff' in replevin 
 having recovered judgment, entered into an agreement with defendant to 
 appraise the goods and take them as satisfaction pro tanio. The plaintiff 
 afterwards refused to fulfil this agreement. Ifeld any claim defendant 
 might have under the contract could not be set off against the judgment. 
 
 Right Discretionary.— Burns v. Thornburgh, 1834, 3 Watts, 78. The 
 right to set off one judgment against another is discretionary and cannot he 
 questioned on a writ of erroi\ 
 
 Rights must.notbe Infringed. — Ramsey's Ap., 1834, 2 Watts, 228. An 
 equitable right of setting off judgments is permitted only where it will in- 
 fringe on no other right of equal grade ; consequently it is not permitted to 
 affect an equitable assignee for value. 
 
 lb.— McCUire's Ap., 1883, 31 Pitts. L. J. 200. Equity will allow a judg- 
 ment to be set off only where it will infringe on no other right of equal 
 grade. 
 
 Same Eight.— Johnson v. Hopkins, C. P. Chester, 1877, 1 Ches. Co. 
 Rep. 6'^. One judgment may be set off against another in the same right. 
 
 lb. — Reardon v. Pearce, 1879, 1 Ches. Co. Rep. 71. The court will allow 
 two judgments in the same rights to be set off against each other althougli 
 one of the judgments is a joint judgment against the plaintiff in the other 
 and a third person, and although one is on an action ex-contradu and the 
 other for a tort. 
 
 Sheriff's Sale.— Peck r. Whitaker, 1883, 7 Out. 297. A purchaser at 
 sheriff's sale who refuses to comply with his bid and is sued for the differ- 
 ence lost on a resale, cannot set off a judgment which he holds against the 
 judgment debtor. 
 
 Surety.— Gunn v. Dickey, C. P. 1884, 14 W. N. C. 274. One who has be- 
 come surety on a writ of error being entered, is entitled to set off a judg- 
 ment against the plaintiff in favor of the defendant, the judgment having 
 been affirmed and a judgment entered against him on the recognizance. 
 
 Use Plaintiff— Partnership.— Stout v. Moore, C. P. 1879, 7 W. N. C. 45t;. 
 A use plaintiff in a judgment recovered against a firm may set it off again&t 
 a judgment recovered against him by a member of the firm. 
 
 B. Claims not Reduced to Judgment. 
 
 (a.) In General. 
 
 Action in Tort.— Gogel v. Jacoby, 1819, 5 S. & R. 117. Mattei-s 
 sounding in tort and ari.sing in a different transaction from the one in suit 
 cannot be set off. 
 
 lb.— Lehr«. Taylor, 1879, 9 W. N. C. 401. Even in actions ex-delicto an 
 equitable defence as to matters growing out of the same transactions may be 
 admissable although it amounts to a set-off. 
 
ADJUSTMENT. 25 
 
 lb.— Linen v. Feltz, C. P. Lackawanna, 1881, 1.3 Lan. Bar, 24; S. C. 3 L. 
 T. N. S. 107. A mortgagor cannot set off in an action on the mortgage 
 damages arising from trespass committed by the mortgagee. 
 
 lb. — Wacker v. Strauh, 1878, 7 N. 32. A vendee may set off damages 
 sustained by a failure of title to part of the tract against a suit on the moit- 
 gage for the purchase money, but cannot set off interest on those damages if 
 he has continued in possession. 
 
 Agent of Two Firms.— Archer v. Dunn, 1841, 2 W. & sS. 327. An 
 agent of two separate firms under an arrangement in which all three parties 
 carried on a foreign trade, cannot, when sued by the two firms jointly for 
 money had and received, set off a debt due him by one only of the firms. 
 
 Assessment— Claim. — Pittsburgh v. Harrison, 1879, 10 N. 206. In a suit 
 by a city against property holders on assessment for improvements, the 
 latter cannot set off claims which they may have against the contractor. 
 
 lb. — Damages. — Smith v. Allegheny, 1879, 11 N. 110. Damages suffered 
 by the grading of a street cannot be set off in a suit on the assessments. 
 
 Assignment — Agreement.— Mann v. Duugan, 1824, 11 S. & E. 75. 
 An agreement between parties to a contract that the one falling shall pay a 
 stipulated sum to the other, may be given in evidence to prove a set off in 
 an action on a bond given by one of the parties to the other and assigned by 
 the latter. 
 
 , lb.— Bond Given Trustee.— Wolf v. Beales, 1820, 6 S. & R. 242. A 
 bond given by plaintiff to one as trustee and by him assigned to defendant 
 cannot be used by the latter as a set off against plaintiff. 
 
 lb. — ^Existing Equities. — Nonantum Worsted Co. v. Webb, 1889, 9 drum. 
 
 . Theassigneeofaclaimtakesit subject to any set-off the debtor may have 
 
 against the creditor even though the set-off arose out of a different transac- 
 tion. 
 
 lb.— lb.— Wheeler v. Hughes, 1776, 1 Dall. 23. The assignee of a bond 
 takes it subject to existing set-offs between the original parties. 
 
 lb.— Insurance— Debt due Company. — Eousset v. Ins. Co. of N. A., 
 1808, 1 Bin. 429. An insurance company can set off against the assignee of 
 the policy a debt due by the insured when the insurance is effected. 
 
 Assignment— Mortgage.— Caldwell v. Hartupee, 1871, 20 S. 74. A held 
 a mortgage in thrust for creditors. B, one of the cred itors, was indebted to A . 
 B gave C a note to A reading, " Please pay C the amount due us." This A 
 refused to do claiming that he had a right to retain it for his debt. Held 
 that the note constituted an equitable assignment and that C could recover 
 from A. 
 
 lb.— lb.— Guaranty.— Roberts v. Williams, 1882, 11 W. N. C. 337, S. C. 
 2 Penny. 208. A mortgagee assigned the mortgage to a husband and guar- 
 anteed its payment on a saleof theproperty. The trustee bought it in for less 
 than the mortgage debt, then refused to take it, and on a resale theproperty 
 brought still less. He sued the guarantee for the difference between the 
 second sale and the mortgage. Held that the difference between the two 
 sales could be set off. 
 
 lb.— Note Taken After Maturity.— Steward v. Tizzard, 1859, D. C, 
 16 Leg. Int. 132, S. C. 3 Phila. 362. One who takes a note by endorsement 
 after maturity takes it free from set-offs which arose out of distinct transac- 
 tions. 
 
 lb.— Prior Debt.— Jordan V. Sharlock, 1877, 3 N. 366. A debt due a 
 creditor before an assignment by his debtor may be set off against a note 
 given by the creditor to the debtor but which fell due after the assignment. 
 
 lb.— Recording— Judgment.— Horton I.-. Miller, 1863, 8 Wr. 256. Where 
 a judgment has been assigned and so recorded, and the assignment of the 
 one sought to be sot off against it was recorded a month later, no set-off will 
 
26 ADJUSTMENT. 
 
 be allowed though it be proved that the latter assignment was really made 
 first. 
 
 lb.— Release.— Wilmarth v. Mountford, 1822, 8 S. & R. 124. Where 
 an assignee for such creditors as should release within a certain time (the 
 time having passed without any releasing), sued one lor the price of goods 
 sold by him, a set off against the assignor is not available. 
 
 Attachment— Damages.— Shaw v. Folkers, C. P. 1882, 12 W. N. C. 518. 
 A defendant in an attachment cannot set off damages to his credit resulting 
 from the attachment being laid upon him. 
 
 Attorney— Antecedent Claim by.— Simpson v. Pinkerton, 1881, 10 "W. 
 N. C. 423. An attorney who has collected a claim for his client cannot set 
 off against the fund in his hands an antecedent debt due him by his client. 
 
 Beneficial Society — Treasurer's Private Claim.— Fields v. Kershaw, 
 1881, C. P. Delaware, 13 Lan. Bar, 68, S. C. 1 Del. Co. E. 103. A treasurer oi 
 a beneficial society cannot set off against the fund in his hands private claims 
 which he has against the society. 
 
 Bond, Assignment of. — Murry v. Williamson, 1810, 3 Bin. 135. An 
 equitable defense is pleadable in Pennsylvania ; hence the assignee of a bond 
 may set it off in an action against him by the obligor, although he could not 
 maintain an action on it in his own name. 
 
 Breach of Statute. — Chambersburg Bank v. Common-wealth, 1858, 2 Gr. 
 384. There can be no set off in an action to recover a penalty for breach of 
 a statute. 
 
 Bond of Indemnity.— Boyd ?^ Whelen, C. P. 1884, 41 Leg. Int. 154. In 
 a suit by a contractor, for the price of his work, a bond of indemnity which 
 he has given against failure in his work, etc., cannot be set off unless actual 
 loss is shown thereunder. 
 
 Certificate Obtained by Executor. — Galloney's Ap., 1847, 6 Barr. 37. 
 An executor being sued for a legacy of one-seventh of the residuary estate, 
 obtained as a verdict a certificate of a balance due him. Afterwards other 
 estates coming into his hands, and being sued by the same legatee, it Was 
 held that this certificate could be set off. 
 
 Claim after Debtor's Death.— Skiles v. Houston, 1885, 43 Leg. Int. 38, 
 S. C. 17, W. N. C. 188. A claim which had accrued prior to the death of 
 the debtor may be set off in a suit by the latter's administrator on a note 
 which matured after the debtor 's death. 
 
 Claim Accruing Subsequent to Suit. — Huling v. Hugg, 1841, 1 TV. &S. 
 418. Set-off is not admissible unless the claim proposed to be set-oft was 
 due at the commencement of the action. 
 
 lb. — Garrison v. Paul, 1881, 1 Penny. 380. A claim cannot be set-off 
 which has arisen since the suit was commenced, although it be such a fav- 
 ored claim as that of one surety against his co-surety, the former having dis- 
 charged the debt. 
 
 Collaterals— Excess.— Struthersti. Brown, 1863, 8 Wr. 469. One holding 
 as collateral a note made payable to a bank, together with other collaterals, 
 the whole being in excess of his claim against the bank, is not liable to set-oiBF 
 to the extent of this excess of claims against the bank procured after the as- 
 signment to him, it not appearing that the other collaterals have been 
 realized. 
 
 Conditional Note.— Shryock v. Basehore, 1876, 1 N. 159. A note which 
 has been obtained conditionally, or to which the defendant has no title, can- 
 not be set off. 
 
 Contract— Delivery in Future— Miller v. Plymire, 1880, 1 York L. R. 
 61, aff'g Hid 11. A contract to deliver goods in fiitiiro maybe given in evi- 
 dence as an equitable set off. 
 
 Co-obligor Not Summoned.— Henderson v. Lewis, 1823, 9 S. & R. 379. 
 
ADJUSTMENT. 27 
 
 A debt due by a plaintiff to one of the co-obligors in the action who has not 
 been summoned cannot be set off. 
 
 Costs. — Groff J). Eessler, 18.76,3 C. 71. A set-off will not be allowed where 
 it will unjustly affect the costs. 
 
 Creditor of Trustee as Individual.— Chew r. Eawle, O. c. 1857, 14 Leg. 
 Int. 140, S. C. 2 Phila. 282. One of several joint trustees cannot prevent 
 payment of a debt due by the estate to another estate which is indebted to 
 him individually. 
 
 Cross-demand UnUoLUidated. — Uhler ji. Sanderson, 1860, 2 Wr. 138. An 
 unliquidated cross-demand may be set off where it has sprung from the same 
 transaction. 
 
 Death and Insolvency. — Gorman r. Volkenand, C. p. Luzerne, 1884, 2 
 Kulp, 201. Where a right of set-off has accrued the death and insolvency 
 of one of the parties does not affect it. 
 
 Death of Joint Obligor.— Kobinaon v. Beall, 1801, 3 Y. 267. Where 
 after one of the obligors in a joint bill is dead, it is assigned to the obligor 
 in a bond in which the surviving obligor in the joint bill is payee, it may be 
 set off against the bond. 
 
 Debts in Same Right.— Darroch v. Hay, 1797, 2 Y. 208. Only debts 
 due in same right can be set off. 
 
 Debtor Ordered to Buy Goods.— Relfu. Bank of Mobile, 1853, 8 H. 435. 
 Where a creditor orders his debtor to buy goods for him, he cannot set off 
 the indebtedness of the latter against^ a draft drawn against hint in favor of 
 the seller. 
 
 Decedents' Estates— Administrator as Heir.— Heeler's Estate, 1889, 
 6 Pa. Co. C. Rep. 388. An administrator, who was also an heir of his testator, 
 died insolvent with moneys of the estate in his hands. Held, the adminis- 
 trator de bonis non v/&s entitled to set off the amount due the estate by the 
 administrator against the amount due the administrator by the estate. 
 
 lb. — ^Administrator as Garnishee.— Lorenz i. King, 1860, 2 Wr. 93. 
 An administrator who has been served as garnishee in an action against a 
 legatee cannot set off a debt due by the defendant to himself. 
 
 lb.— Administrators as Party. — Potter v. Burd, 1835, 4 W. 15. An ad- 
 ministrator sued as such cannot acquire a claim against plaintiff and use it 
 as a set-off. 
 
 lb.— As Plaintiff— Stephens v. Cotterell, 1881, 3 Out. 188. A debt due 
 defendant by a decedent cannot be set off in an action by the administrator 
 to recover the price of goods sold by him in his official capacity. 
 
 lb. — lb. — Singerly v. Swain, 1859, 9 C. 102. A purchaser from an ad- 
 ministrator cannot set off against the price a debt due him by the decedent. 
 
 lb.— lb.— Wolfersberger )). Bucher, 1823, 10 S. & E. 11. In a suit by an 
 administrator for the price of goods sold by him, the defendant cannot set 
 off a debt due him by the decedent. 
 
 lb. — lb. — Surety. — Beaver v. Beaver, 1854, 11 H. 167. A surety of a de- 
 fendant who has paid the claim after the latter's death can set itoff inasuit 
 against him by the administrator for a claim which accrued in decedent's 
 lifetime, even though the estate be insolvent. 
 
 lb. — Administrator, Balance Due.— Dreisbach's Ap., 1851, 5 H. 120. 
 The orphans' court may upon application set off a balance due an adminis- 
 trator on final account against his liability, arising from taking lands at a 
 valuation as an heir, provided it appears that the balance arose from pay- 
 ment by him of valid liens against the land. 
 
 lb.— Administrator's Claim.— Bradshaw's Ap., 1861, l Luz. L. Obs. 
 138. An administrator cannot set off a debt due him against the claim of 
 a distributee. 
 
 lb. — Bond — Advancement. — Dasher v. Leinaweaver, 1817, 3 S. & E. 
 
28 ADJUSTMENT. 
 
 200. A bond assigned by a father to his son-in-law as an advancement to 
 the daughter, is subject to set off after the assignor's death in case it proves 
 to be greater than the daughter's share, though the action is a personal one 
 between the sou-in-lavv and the administrator, the latter being the obligor 
 in the bond. 
 
 lb.— Contract After Death.— Stuart r. Commonwealth, 1839, 8. W. 74. 
 A debt due by an estate and contracted after the testator's death cannot be 
 set off against a debt due testator in his lifetime. 
 
 lb.— Debt Due by Heir.— Earnest r. Earnest, 1835, 5 R. 213. A debt 
 due by a son to a father can be set off in a suit brought by the grand-chil- 
 dren for a distributive share of the estate of the grandfather. 
 
 lb.— Insolvency.— Bosler v. Exchange Bank, 1846, 4 Barr, 32. A claim 
 which has fallen due after the death of a decedent cannot be set off against 
 a claim due him in his lifetime if the estate be in.solvent. 
 
 lb.— lb.— Thomas u. Winpenny, C. P. 1883, 13 W. N. C. 93. If an estate is 
 solvent any debt may be set off against a claim due it, if insolvent only one 
 which accrued before testator's death. 
 
 lb. — lb. — Debt Due in Lifetime.— Light o. Leininger, 1848, 8 Barr, 103. 
 In the settlement of decedent's estates, set-offs against the estate may be al- 
 lowed of claims due in decedent's lifetime, even though the estate be in- 
 solvent. 
 
 lb.— lb.— lb.— Farmers' and Mechanics' Banks' Ap., 1864, 12 Wr, 57. A 
 debt due to a decedent at the time of his death cannot be set off again.st a 
 debt owing by him but not due until after his death, the estate being in- 
 solvent. 
 
 lb.— Legatee.— Hughes' Ap., 1868, 7 S. 179. A debt due by the legatee 
 to the decedent is but an equitable set-off, and to be available as such must 
 be subsisting at the time. An advancement, lioivever, is not affected by 
 lapse of time. 
 
 lb.— lb.— Rent.— Solliday v. Bissey, 1849, 2 J. 347. An executor sued 
 by a legatee may set off rent due by the legatee to him as executor of an- 
 other estate. 
 
 lb.— Purchase by Administrator. — Steel v. Steel, 1849, 2 J. 64. A 
 debt due by the decedent cannot be set off against the price of goods bought 
 of the administrator. 
 
 lb.— Statute of Limitations.— Reed v. iMarshall, 1879, 9 N. 345. In 
 an action in the common pleas for a legacy, a note cannot be set off which 
 was given by plaintiff to the testator more than six years before his death. 
 Semhle, that it is otherwise in the orphans' court. 
 
 rb.— Surety. — Dorsheimer v. Bucher, 1821, 7 S. & R. 9. One who, after 
 a testator's death, has, as surety, paid the latter's bond, may set it off against 
 a judgment recovered against him by the executor, provided it does not in- 
 terfere with the claims of the creditors of the same class. 
 
 Deposit— Against Commercial Paper.— Chipman v. Ninth N. Bank, 
 1888, 5 Crum. 87. A bank holding a deposit belonging to an assignor for 
 creditors will not be permitted to set it off against certain commercial paper 
 of the assignor's held by the bank unmatured before demand made by the 
 assignee, though maturing before suit brought. 
 
 Different Capacities.— Commonwealth v. Matlaek, 1804, 4 Dall. 303. 
 One sued for a balance of money put into his hands by the State for a special 
 purpose cannot set up that he has expended part of it for other State pur- 
 poses, for this would amount to a cross action against the State. 
 
 Distribution of Proceeds of Sale.— Corn%\elt's Ap., 1844, 7 AV. & S. 
 305. In the distribution of the proceeds of a sheriff's sale the court will 
 not exercise its equitable power of set-off unless the mutual claims have 
 been reduced to j udgment. 
 
 Eciuitable Owner.— Rider v. Johnson, 1852, 8H. 190. Set-off is allowed 
 
ADJUSTMENT. 29 
 
 in Pennsylvania where the flefendant isonly the equitalile owner of the cross 
 demand. 
 
 Estoppel— Declaration of no Set Off.— Robertson r. Hay, 1879, 10 N. 
 24'^. Where one executes a l)ond and mortgage together with a certificate 
 of no defense and places the papers in the hands of a broker iinder certain 
 instructions, the mortgagor is estopped from setting up a defence against one 
 to whom the broker has assigned the mortgage althougli the broker has 
 acted fraudulently and has appropriated the money to his own use. 
 
 lb.— lb.— Holz V. Belden, C. P. 1877. 4 W. N.C. .573, S. C. 3.5, L?g Int. 28 ; 
 12 Phila. 498. A declaration of no set-off by a married woman to one about 
 to take an assignment of a mortgage ou hor property estops her. 
 
 lb.— lb.— Griffithsi). Sears, 1880, 17 W. N. C. 468. A declaration of no set- 
 off given to an intending j)urchaser of a mortgage operates in favor of subse- 
 quent assignees only when they have no notice — either actual' or con- 
 structive — of facts impeaching the declaration. 
 
 Estoppel— Former Action Before Justice.— Simpson v. Lapsley, 1846, 
 3 Barr, 459. A party is not estopped from recovering any part of a claim of 
 over $100, because in a former action against him by the defendant before a 
 justice of the peace he refused to set off any item of this account. 
 
 lb.— lb.— Herring v. Adams, 1843, 5 W. & S. 459. One sued before a 
 justice who has a set-off within the latter's jurisdiction and does not use it, 
 cannot afterwards use it. 
 
 lb.— Use in Subsectuent Action.— Bitzer jj. Killinger, 1863, 10 Wr. 44. 
 A defendant who has used a set-off before arbitrators from whose award 
 plaintiff appealed is not estopped from using it in another action, instead of 
 on the appeal of the first. 
 
 Executor— Profits made out of Estate.— Haberman's Ap., 1882, 5 Out. 
 329. An executor who has been surcharged with the balance of a debt that 
 has been lost to the estate cannot claim for himself a profit realized by a sale 
 of certain goods bought in on a judgment against the insolvent debtor. The 
 goods belonged to the estate, so did the profit. 
 
 Expenses of Agent.— Arthur v. Sylvester, 1884, 14 W, K. C. 417. One 
 sued in trover for title papers placed in his hands as agent cannot set off ex- 
 penses incurred in trying to sell the property. 
 
 Extinguishment of Mutual Demands.— Commonwealth v. Clarkson, 
 3829, 1 E. 291. Mutual demands extinguish each other by operation of law 
 without actual defalcation by act of the parties. 
 
 lb. — Hines !;. Barnitz, 1839, 8 AV. 39. Mutual demands do not necessarily 
 extinguish each other by operation of law. 
 
 lb. — Carmalt v. Post, 1839, 8 W. 406. Mutual demands only extinguish 
 each other when so applied by the parties. 
 
 lb.— Hinckly v. Walters, 1840, 9 W. 179. Parties having mutual de- 
 mands may extinguish them by agreement. 
 
 lb.— Post V. Carmalt, 1841, 2 W. & S. 70. Mutual debts do not :ict on 
 each other automatically. 
 
 Failure of Cause of Action.— Claridge v. Kleet, 1850, 3 H. 255. There 
 can be no set off where the cause of action of the plaintiff fails. 
 
 Feigned Issue. — Gray !'. Wilson, 1835, 4 W. 39. Set off is admissible in 
 a feigned issue to try whether there is any reut due. 
 
 Fraud— Sale of Consigned Goods.— Harper v. Kean, 1824, 11 S. & R. 
 280. A defendant may prove by way of set-off that he consigned certain 
 goods to plaintiff which were to be sold and applied on the claim in suit, 
 and that plaintiff fraudulently caused the goods to bring less than their 
 value ; upon proving this he is entitled to set off the full value of the goods. 
 
 Garnisbee — With Lien. — MacVeagh v. Darlington, 1881, 1 Ches. Co. 
 
30 ADJUSTMENT. 
 
 Rep. 150. A garnishee cannot set off a debt which is cine him from the 
 debtor if he have a lien on real estate which protects him. 
 
 lb.— Prior Claim in Attachment.— Roig v. Tim, 1883, 7 Out. 115. A 
 garnishee in an attachment execution cannot claim a set-off which he has 
 'against the defendant unless it had accrued prior to the service of the attach- 
 ment. 
 
 I lb. — Pennell D. Grubb, 1850, 1 H. 552. A garnishee may setoff a demand 
 against the defendant in the judgment which has accrued before the attach- 
 ment was served. 
 
 lb.— Against Attaching Creditor.— Yerkes v. Simons, c. P. 1875, l w. 
 N. C. 473. A garnishee cannot set off a claim which he has against the at- 
 taching creditor. 
 
 lb.— Against Defendant.— Myers v. Baltzell, 1860, 1 Wr. 491. One 
 made garnishee in an attachment execution loses none of his rights of set-off 
 against the defendant. 
 
 lb. — Against Deceased Creditor. — Crammond v. Bank of United states, 
 1S03, 1 Bin. 64. After the death of a creditor who has attached the goods of 
 his debtor, the garnishee cannot set off a claim which has arisen since the 
 creditor's death. 
 
 lb. — Unmatured Note. — Jones v. Manufacturers' Bank, 1882, 2 
 Penny. 377, affg. 10 W. N. C. 102. A bank which has been made garnishee 
 in an attachment against a depositor cannot set off unmatured notes which 
 it has discounted for him. 
 
 Ground Rent.— Mangle v. Stiles, 1855, 7 C. 72. A set-off not allowed to 
 a ground rent, on the ground that it arose on a contract which was not valid 
 as altering the amount of the rent, and which if allowed to be pleaded 
 would make the perpetual ground rent a perpetual dispute. 
 
 Husband and Wife Plaintiffs— Debt of Husband.— Bentz v. Bentz, 
 1880, 14 N. 216. Where a husband and wife are plaintiffs a debt of the hus- 
 band alone cannot be set off. 
 
 Injunction— Collateral Security.— Yarnall v. Stilz, C. P. 1876, 3 W. N. 
 C. 12. Equity will not intervene to prevent a sale of stock, pledged as col- 
 lateral, on the allegation that a set-off exists, the set-off being uncertain in 
 amount. 
 
 lb.— Execution at Law.— Laughlin v. Finley, C. P. 1878, 5 W. N. C. 
 144. Equity will not ordinarily restrain a party from issuing execution at 
 law, in order to await the determination in equity of a mere set-off, but may 
 do so in case of insolvency or fraud. 
 
 Improvements by Co-tenant. — Walker v. Humbert, 1867, 5 S. 407. 
 Improvements made by one co-tenant may be defalked in an action for 
 mesne profits by the other. 
 
 Insolvent Bank.— Farmers' Deposit Bank v. Penn Bank. 1889, 8 Crum. 
 283. A bank holding the check of an insolvent bank for collection may set 
 off the amount in a suit against it by the latter. 
 
 lb. — Venango Nat. Bank v, Taylor, 1867, 6 S. 14. One purchasing a 
 claim against an insolvent bank cannot set it off against his own indebted- 
 ness ; it would be giving him a preference. 
 
 lb.— Notes of —Thorp V. Wegefarth, 1867, 6 S. 82. An insolvent bank 
 had a judgment against A. A purchased notes of the bank and offered to 
 set them off. ffeld, he could not, 1st, because a simple debt cannot be set- 
 off against a judgment, and, 2d, because he had purchased the notes after the 
 insolvency of the bank. 
 
 Insolvent Corporation.— Long v. Penn Ins. Co., 1847, 6 Barr, 421. A 
 set-off is not allowed against an insolvent insurance company to a greater 
 extent than the defendant's pro rata share in its assets. 
 
 Insurance Company— Surety's Policy.— EUmaker v. Franklin Fire lu- 
 
ADJUST5IKNT. 31 
 
 surance Co., 1843, 6 W. & S. 439. A surety on a bond and mortgage, 
 sued by an insurance company, may set off' a loss under its policy on the 
 same premises which policy was assigned him before the loss occurred. 
 
 Joint Defendants.— Childerson v. Hammon, 1822, 9 S. & R. 68. Two 
 defendants sued jointly may set off" a debt due one of them by the plaintiff. 
 
 Joint Claims.— Silberburg v. Pincus, D. C. 1868, 25 Leg. Int. 37, S. C. 6 
 Phila. 533. Set-off of a joint claim may be made with the consent of the 
 joint owner. 
 
 Legacy— Debt of Husband.— Lowman'.s Ap., 1842, 3 W. &S. 349. In 
 a suit by a husband in the orphans' court to recover a legacy due his wife 
 the executor may set off a debt due by the husband to the testator. 
 
 lb. — lb. — Heister's Ap., 1848, 7 Barr, 455. A note to an executor iu his 
 individual capacity cannot be set off against a legacy due the wife, the latter 
 being either dead or divorced. 
 
 lb.— lb.— Donaldson r. West Branch Bank, 1845, 2 Barr, 286. Where a 
 husband comes into court and demands a legacy left to his wife, he so far 
 makes the legacy his own that the estate can set off against it a debt due it 
 by him. 
 
 lb.— lb.— Fink V. Hake, 18:!7, W. 131. In the distribution of a wife's share 
 in her father's estate the debt of iier husband cannot be defalked, they 
 having been divorced subsequently to the contracting of this debt and the 
 j^eath of the wife's father. 
 
 lb.— Separate Use.— Jamison v. Brady, 1821, 6 S. & R. 466. In an 
 action by husband and wife against an executor for a legacy for the separate 
 use of the wife, a debt due by the husband to the estate cannot be set off. 
 
 lb. — Ibi — Nfiglee r. Ingersoll. 1847. 7 Barr, 185. A debt due by a hus- 
 band cannot be set off against rent due his wife's separate estate, although 
 the husband with his wife's assent collects the rents without accounting and 
 had formerly allowed the set-off. 
 
 Lunatic. — Beale V. Coon, 1834, 2 W. 183. One who has purchased goods 
 from a committee of a lunatic cannot set off a claim which he has against the 
 lunatic himself. 
 
 Maker Against Payee.— Carman v. Garrison, 1850, 1 H. 158. The 
 maker of a note cannot set off against the payee a debt dne by the latter to 
 the broker who negotiated the note. 
 
 Mechanics' Lien— Rent.— McQuaide v. Stewart, 1864, 12 Wr. 19ft. 
 Claims arising under separate covenants cannot be set off against each other. 
 Therefore in an action to enforce a mechanics' lien, on a house built by the 
 plaintiff under an agreement by which he was also to be tenant for a num- 
 ber of years, a set off of rent was not allowed. 
 
 lb. — Gable v. Parry, 1850, 1 H.- 180. There can be no set off against a 
 set-off. A contractor being jointly sued with an owner on scire facias sur 
 mechanics' lien may set off a debt dne him by the plaintiff. 
 
 Mesne Profits.— Heft ?■. McGill, 1846, 3 Barr, 256. A vendee under 
 articles being improperly dispossessed, may bring ejectment without tender- 
 ing the balance of the purchase-money and may set off the profits ot the 
 estate received by the vendor against that amount. 
 
 lb.— Improvements.— Noble v. Biddle, 1876, 33 S. 430. In an action for 
 mesne profits, the defendant may set off only those improvements that are 
 of advantage to the plaintiff. 
 
 Money Held for Special Purpose.— Smuller v. Union Canal Co., i860, 
 1 Wr. 68. One receiving money for a special purpose cannot set it off' 
 against a note of the depositor which he holds- 
 Mortgage— Wife's Board.— Cleaver v. Scheetz, 1872, 20 S. 496. A gave 
 a mortgage to B, a married woipan, whose husband afterwards deserted her, 
 and she boarded with A. Held that the mortgagor could not set off llio 
 board against the mortgage. 
 
32 ADJUSTMENT. * 
 
 Municipal Lien.— City v. Cloud, C. P. 1877, 4 W. N. C. 445. A defend- 
 ant in a suit on a municipal lien may set off a debt due him by the 
 claimant. 
 
 Mutual Set-Offs.— Ulrich v. Berger, 1842, 4 W. &. S. 10. There cannot 
 he a set off against a set-off. 
 
 Notes— Possession After Suit Began.— Speers v. Sterrett, 1857, 5 C. 
 192. One offering as set-off notes given by plaintiff to a third party must 
 show that they came into his possession before the action was brought. 
 
 lb.— Given for Counter-Claim.— Kessler v. Angle, 1875, 2 W. N. C. 23. 
 A counter-claim which the defendant procures by giving his note therefor, 
 with a stipulation that it shall be returned if he cannot use the claim as a 
 set-off, is inadmissable for that purpose. 
 
 lb.— By Liquidating Partner. —Sellers v. Todd, 1876, 2 W. N. C. 520. 
 In a suit by one partner against the endorser of a note drawn by his liqui- 
 dating partner the defendant cannot set off a note due by the firm to the 
 liquidating partner. 
 
 Note by Two.— Smith v. Myler, 185.?, 10 H. 3G. "Where a note is given 
 to two, either may, with the assent of the other, set it off against a demand 
 by the maker. 
 
 lb.— Transfer of.— Heppard v Beylard, 1835, 1 \Vh. 22.^. A holder of 
 a promissory note has a right to transfer it to one indebted to the drawer in 
 anticipation of the failure of the latter. 
 
 lb.— Third Party's Debt.— Longafelt v. Bartsher, 1832, 3 P. & W. 492. 
 One sued on a note given for a third person's debt cannot set off a claim 
 which that third person has against the plaintiff. 
 
 Tb. — Non-negotiable. — Miller v. Kreiter, 1874, 26 S. 78. A gave his non- 
 negotiable note to B, and afterwards endorsed a note for B. Upon paying 
 (he second note he could set off the amount so paid against the first note. 
 
 lb.— Thompson v. McClelland, 1857, 5 C. 475. Set-off is allowable 
 between the nominal plaintiff and the defendant where the action is on a 
 non-negotiable instrument. 
 
 Obligor Against Insolvent Bank.— Northampton Bank v. Balliet, 1844, 
 8 W. & S. 311. An obligor of a bond held by a bank may, on the failure of 
 the bank, set off such notes of the bank as he had when he first heard of the 
 failure, but not those subsequently acquired. 
 
 Obligor and Second Assignee.— Blair v. Mathiott, 1863, lo Wr. 262. 
 An obligor of a bond cannot set off against a second assignee a claim which 
 he (the obligor) has against the first assignee. 
 
 Overdrawing Account.— United States Bank r. Macalester, 1848, 9 Barr, 
 475. A set-off may be allowed against a bank on a suit for overdrawing an 
 account. 
 
 Partnership.— Wrenshall ;■. Cook, 1838, 7 W. 464. One of several part- 
 ners may set off a debt due the firm by the plaintiff if the other partners 
 assent. 
 
 lb.— Eberly v. Eberly, O. C. 1874, 1 "«". N. C. 5. In an action by one 
 partner against another on a promissory note, claims which have arisen 
 between them on special contract may be set off though connected with 
 partnership dealings. 
 
 lb.— Claim in Account.— Fox v. Sheldrake, C. P. Delaware, 1879, 1 Del. 
 Co. K. 22. A claim depending on the settlement of partnership accounts can- 
 not be used as a set-off. 
 
 lb.— lb.— Roberts v. Filler, 1850, 1 H, 265. In a suitbetweu partners on 
 a matter outside the partnership, set off is not allowed of matters which 
 would come up in an account. 
 
 lb.— Consent of Co-partners.— Tustiu v. Cameron, 1839, 5 Wh. 379. A 
 defendant may set off a claim due by the plaintiff to a partnership of which 
 he is a member, the other partners consenting. 
 
ADJUSTMENT. 33 
 
 lb. — lb. — Montz V. Morris, 1879, 8 N. 392. A member of a firm may, in 
 an action against him individually, set off a debt due the IJrm by pioving 
 the assent of the other partners ; it is not necessary to have an assignment 
 of the claim. 
 
 lb.— Firm Debt.— Walker v. Eyth, 1855, 1 C. 216. A debt due by a firm 
 cannot be set off against the' personal claim of a partner. 
 
 lb.— Former Partners.— Klase r. Bright, 1872, 21 S. 186. In an action 
 between two who bad been partners one cannot set off half of a firm debt 
 which he has paid. 
 
 lb. — Garnishee- — Narcross v. Benton, 1861, 2 Wr. 217. A garnishee can- 
 not defalk a debt due him by one of the members of the defendant firm un- 
 less he shows the debt to be really a firm one. 
 
 lb. — Liquidating Partner— Surety. — Craig v. Eushton, D. C. 1874, 1 
 W. N. C. 29. A set-off arising out of a partnership transaction cannot be 
 set off in a suit by one who was surety for the liquidating partner against 
 the two partners, the withdrawing partner only defending. 
 
 lb. — lb. — Craig ri. Henderson, 1845, 2 Barr, 261. A liquidating partner, 
 to whom all the interest in the business has been assigned, may set off a 
 debt due the firm against his own debt. 
 
 lb. — "Wharton v. Douglass, 1874, 26 S. 272. In a suit between partners 
 the defendant cannot set off an alleged indebtedness arising from partner- 
 ship transactions. 
 
 lb. — Balances. — Haines V. Rapp, 1876, 2 W. N. C. 595. In an action by 
 one partner (leaving the firm) against his co-partner for the amount the lat- 
 ter promised to give him for his interest in the real estate belonging to the 
 firm, balances alleged to be due from unsettled partnership accounts cannot 
 be set off. 
 
 lb.— M'Fadden v. Irwin, 1836, 2 Wh. 37. In an action on a note, the 
 defendant was allowed to give in evidence, by way of set-off, the fact of a 
 former partnership in a single transaction, and that money was owing him. 
 by the plaintiff on claims which arose during the partnership. 
 
 lb.— Personal and Firm Debts.— McDowell v. Tyson, 1826, 14 S. & E. 
 300. A debt due by a firm, of which plaintiff is a member, to defendant, 
 cannot be set off against a personal claim due plaintiff from defendant. 
 
 lb.— Personal Claim.— Maitland v. Bayard, D. C. 1874, 1 W. N. C. 133. 
 A defendant in a suit by a firm cannot set oft a claim which he holds 
 against a former firm, the leading member of both firms being the same per- 
 son. 
 
 lb.— lb.— Wain V. Hewes, 1820, 5 S. & E. 468. In a suit by a surviving 
 and insolvent partner, the partnership not being settled, the defendant can- 
 not set off a personal claim which he holds against the plaintiff. 
 
 lb.— lb.— Wilson V. Cresson, D. C, 1874, 1 W. N. C. 92. One who has 
 purchased goods ftom a partner cannot set off an individual claim against 
 him in a suit by the partnership, although the seller at the time the debt 
 sued on was contracted agreed that this should be done. 
 
 lb.— Purchase from Keceiver— Rent. — Singerly v. Fox, 1874, 25 S. 112. 
 A purchaser from a receiver of a partnership cannot set oft against the price 
 of the goods so purchased the rent of the premises occupied by the firm. 
 
 lb. — Suit not between Same Parties. — Jackson v. Clymer, 1862, 7 Wr. 
 79. A contract between a firm and creditors stipulated inter alia that the 
 firm should transfer certain property, and that the creditors should pay cer- 
 tain individual debts of one of the partners. In a suit by the latter on this 
 contract ifie creditors were refused set-off of damages on the other contract, 
 the two not being between the same parties. 
 
 lb.— Unsettled Claim.— Milliken v. Gardner, 1860, 1 Wr. 456. An un- 
 
 3-—-EQUITY, 
 
34 ADJUSTMENT. 
 
 settled claiili against a firm cannot be set off against a partner's debt, 
 though both arose out of the same transaction. 
 
 Premiums of Insurance Company. — Fogartyw. Philadelphia Trust Co., 
 1874, 25 S. 125. An insurance company had agreed on three days' notice to 
 return to defendant his premium. The company failed and defendant then 
 demanded his premium. Held that it was a debt to be paid ratably with 
 others, therefore it could not be set off in a suit by the company on another 
 claim. 
 
 President of Insolvent Corporation.— Eeed v. Penrose, 1860, 12 C. 214, 
 See 1 Gr. 472. As to point whether the president of an insolvent corpo- 
 ration, who, as a banker, held its funds, could, on being made garnishee, 
 set off a debt due him by the defendent, the corporation, the court was di- 
 vided. 
 
 Principal and Agent.— Hart v. Serrile, C. P. 1875, 1 W. N. C. •;72. 
 Where an undisclosed principal sues on a contract made by his agent, a set 
 off which the defendant has against the agent may be used against the plain- 
 tiff. 
 
 Principal and Surety. — Hollister v. Davis, 1867, 4 S. 508. Where plain- 
 tiff sues a principal and his sureties, a debt due by plaintiff to the princi- 
 pal alone may be set off. 
 
 lb.— Seybert v. Hicks, C. P. Luzerne, 1882, 1 Kulp 45, S. C. 9 Lnz. L. 
 Reg. 49. In a suit on a note against a principal and surety, the latter may 
 set off a joint note made by the plaintiff and another. 
 
 lb. — Domestic Sewing Machine Co. v. Saylor, 1878, 5 N. 287. Where one 
 who is a surety sues the creditor on another claim, the defendant may set 
 off the indebtedness of the principal. 
 
 Private Claim of Official.— Wilson v. Lewistown, 1841, 1 W. & S. 426. 
 One sued in an ofScial capacity cannot set off a private debt. 
 
 lb.— Fields V. Kershaw, C. P. Delaware, 1881, 13 Lan. Bar 68, S. C. 1 Del. 
 Co. E. 103. A treasurer of a beneficial society cannot set off against the 
 fund in his hands private claims which he has against the society. 
 
 lb. — Eussell v. First Presbyterian Church, 1870, 15 S. 9. A treasurer of 
 a corporation when sued for money in his hands cannot set off his own debt. 
 
 Promissory ITote — ^Assignment. — Lighty v. Brenner, 1826, 14 S. & K. 
 126. The assignee of a promissory note drawn without defalcation who takes 
 it with notice of strong equities existing between the original parties is sub- 
 ject to the set-off, especially if the payee was insolvent at the time of the 
 transfer. 
 
 lb.— lb.— McCorkle v. Davis, C. P. Chester, 1878, 1 Ches. Co. Rep. 30. 
 A promissory note with warrant of attorney, not being negotiable paper, is 
 liable in the hands of an assignee to any set-off existing between the origi- 
 nal parties. 
 
 Promissory Note — Worthless. — McGowen ». Budlong, 1875, 29 S. 470. 
 One who gets possession of a worthless note against his creditor may offer 
 it in evidence as a set-off, and it is for the jury to say whether he holds the 
 note as an experiment or whether there was an actual transfer. 
 
 Purchasers at Tax Sale.— Irish v. Johnston, 1849, 1 J. 483. Set-off 
 under our act is allowed only between those in privity of contract ; there- 
 fore, in an action against a purchaser at a tax sale to recover che amount of 
 his bid over and above the taxes, the defendant cannot set off arrears of 
 ground rent which the use plaintiff (the former owner) should have paid. 
 The only privity is that of estate. 
 
 Purchase of Claim by Municipal Corporation. — Barley's Ap., 1884, 
 15 W. N. C. 67. A municipal corporation has no power to purchase an out- 
 standing judgment against its creditor even for the purpose of a set-off. 
 
 Purchaser of Cross Demand.— Russell v. Spear, C. P. 1876, 4 W. N. C. 
 476, 6 Luz. L. Reg, 250, 35 Pitts. L. J. 47, 34 Leg. Int. 328, 12 Phila. 330. 
 
ADJUSTMENT. 35 
 
 A debtor may purchase a cross demand to use as a set-off but cannot set off 
 one borrowed for that purpose. 
 
 Purcliaser of Note.— Dil worth v. Ackley, 1874, 1 W. N. C. 31. The fact 
 that a note is purchased on the last day of grace is no reason why the maker 
 should be allowed to set off a claim that he had against the seller of the 
 note. 
 
 Quasi Penal Suit. — Lebanon Bank v. Karman, 1881, 2 Out. 65. Where 
 in a quasi penal suit the prescribed action for the recovery of money wrong- 
 fully paid is debt, or an action in the nature of debt, there can be no set-off ; 
 although after the plaintiff shall have obtained judgment, the court possibly 
 has power to set off against it a claim which the defendant holds against the 
 plaintiff, if that claim has also been reduced to judgment. 
 
 Rent. — Coffman v. Hampton, 1841, 2 W. & S. 377. A purchaser at a con- 
 stable's sale cannot, on being sued for the price, set off a claim for rent due 
 him from the fund. 
 
 lb. — ^Not Due. — Case v. Davis, 1850, 3 H. 83. Kent not yet due cannot 
 be used as a set-off. 
 
 Replevin.— Sterner v. Abbott, C. P. 1883, 13 "W. N. C. 209. In replevin 
 for goods distrained for rent the tenant cannot plead set-off. 
 
 lb. — Ashton V. Clapier, 1851, Bright. 481. In replevin for rent set-off is 
 not allowable except under the act of Assembly, which applies only to cases 
 Under one hundred dollars. 
 
 lb.— Jennings v. McKay, 1877, 4 "W. N. C. 421. Set-off is not allowable 
 in replevin. 
 
 lb.— Avowry.— Clay v. Ins. Co., D. C. 1862, 19 Leg. Int. 293, S. C, 5 
 Phil a. 72. Set-off will be allowed to an avowry in replevin in a suit against 
 assignees for creditors. 
 
 lb. — Anderson v. Eeynolds, 1826, 14 S. & R. 439. Where the issue in re- 
 plevin is on the plea " no rent in arrear " a set-off is not admissible. 
 
 lb. — Beyer v. Fenstermacher, 1836, 2 Wh. 95. In replevin founded on a 
 distress for rent, nothing can be set off against the rent, except claims aris- 
 ing from the occupation of the premises. 
 
 lb. — Franciscus v. Eeigart, 1835, 4 W. 98, 477. In replevin arising out of 
 a distress for ground rent, the ground tenant cannot set off taxes paid by 
 him during the years for which the ground rent is due. 
 
 lb. — Macky v. Dillinger, 1873, 23 S. 85. Set-off does not exist in replevin, 
 hut when the goods are subject to a charge, the charge or lien being insep- 
 arable from the thing itself reduces the value of the thing, and therefore the 
 damages are correspondingly less. 
 
 Running Account.— Garrison V. Lentz, D. C. 1874, 1 W. N. C. 5. A bal- 
 ance on a running account may be set off against a mortgage. 
 
 Settled Claim.— Gannon V. Fritz, 1875, 29 S. 303. A defense that a 
 claim has been settled or compromised is not a set-off within the meaning<of 
 rules as to pleading and notice. 
 
 Seq[uestration — Loan by Defendant. — Beeler v. Turnpike Co., 1850, 2 
 H. 162. In a suit for tolls accruing after sequestration of the assets of a 
 turnpike company, the defendant cannot set off a claim for a loan made by 
 him before the sequestration. 
 
 Statute of Limitations. — Levering v. Eittenhouse, 1838, 4 Wh. 130. 
 A plaintiff may avail himself of the statute of limitations against a set-off 
 without pleading it. 
 
 lb.— Hinkley v. Walters, 1839, 8 W. 260. Where a demand offered as a 
 set-off is barred when so pleaded the defendant's case is not helped by the 
 fact that before it was barred the cross demands were held as at the time of 
 trial. Mutual demands do not act on each other automatically. 
 
 lb. — Christ V. Garner, 1830, 2 P. & W. 251. A set-off which was pleaded 
 
36 ADJUSTMENT. 
 
 to one of a series of bonds, but afterwards abandoned and judgment con- 
 fessed thereon, is not thereby taken out of the statute of limitations so that 
 it may be set off against one of the series which fell due more than six years 
 after the set-off accrued. 
 
 lb'. — Wisecarver v. Kincaid, 1876, 2 N. 100. A plea of set-off or notice of 
 set-off under a plea of payment, etc., stops the running of the statute of lim- 
 itations against the setoff. 
 
 lb.' — Reed v. Marshall, 1879, 9 N. 345. In an action in the common pleas 
 for a legacy a note cannot be set off which was given by plaintiff to the tes- 
 tator more than six years before his death. Setnble that it is otherwise in 
 the orphans' court. 
 
 lb. — Church V. Euland, 1870, 14 S. 432. Where there was a devise to one 
 absolutely under an oral promise to give the property to certain persons at 
 her death, the limitation of five years by the act April 22, 1856, does not 
 commence till her death. 
 
 lb. — Gilmore v. Reed, 1874, 26 S. 462. The commencement of an action 
 does not stop the running of the statute of limitations against a set-off; it 
 is not stopped until the plea of set-off is pleaded. 
 
 lb. — ^Watson V. Heusel, 1838, 7 W. 344. In an action brought for the use 
 of three persons, the defendant cannot set off a separate claim against each 
 of them. 
 
 lb.— Sitgreaves v. Griffith, 1876, 2 "W. N. C. 705. Mere contingent and 
 speculative profits or losses are not the subject of set-off. 
 
 lb. — McClure v. McClure, 1855, 1 Gr. 222. The time of entering a plea 
 of set-off determines the question of the statute of limitations. 
 
 lb. — Taylor v. Gould, 1868, 7 S. 152. A claim on its face barred by the 
 statute of limitation cannot be set off vrithout proof to take it out of the 
 statute. 
 
 lb. — Hines v. Porter, C. P. Dauphin, 1859, 1 Pears. 155. An affidavit of 
 defense ivhich relies on a set-off, part of which is apparently barred by the 
 statute of limitations, but how much cannot be determined from the affidavit, 
 is insufficient. 
 
 lb.— Hntchinson v. Hutchinson, C. P. 1886, 4 Kulp, 3. The statute of limi- 
 tations runs against a claim of set-off arising under a contract made more 
 than six years before the institution of the suit upon which the claim is 
 made. 
 
 Securities for Several Debts.— Price v. Franklin Fire Ins. Ck)., C. P., 
 1883, 13 W. N. C. 312. Securities in the hands of a creditor given severally 
 for separate debts cannot be made each to stand for all the debts, either by 
 tacking or by way of a set-off. 
 
 Surviving Partner,— Wain v. Hewes, 1820, 5 S. & R. 468. In a suit by 
 a surviving and insolvent partner, the partnership not being settled, the de- 
 fendant cannot set off a per.sonal claim which he holds against the plaintiff. 
 
 ^Taxes. — Shoemaker v. Swiler, C. P. Dauphin, 1871, 2 Pears. 114. A tax- 
 payer cannot set off against his taxes a private debt owing him by the col- 
 lector. 
 
 lb. — Owens V. Salter, 1861, 2 Wr. 211. A purchaser of unseated land on 
 which are unpaid taxes, may pay the same and defalk such payment from 
 the mortgage given for the purchase money. 
 
 Trustee— Expense.— Fourth Universalist Parish v. Wensley, C. P. 1878, 
 5 W. N. C. 273. Equity will compel one who has held property for a society 
 until it should become incorporated to convey the same to it although the 
 .society before incorporation became largely indebted for material, for which 
 the trustee being a member of the society may be responsible. 
 
 -Trespass — Losses. — Marvin r. Eiddle, 1876, 2 W. N. C. 658. In an ac- 
 tion for mesne profits against a trespasser the latter cannot set off losses 
 
ADJUSTMENT. 37 
 
 arising from his experimenting for profits in another part of the land tres- 
 passed on. 
 
 Two Defendants.— Stewart v. Coulter, 1824, 12 S. & R. 252. One of 
 two defendants may set otf a debt due him alone by the plaintiff. 
 
 lb. — Crist r. Brindle, 1828, 2 R. 121. In a suit against two, a debt due 
 to one may be set off if he be the real debtor and the other his surety. And 
 this, although the suit is by the executor and both the debt and the set-off 
 accrued in the lifetime of the testator. 
 
 Undisclosed Principal. — Parker v. Doualdson, 1841, 2 W. & S. 9. A 
 purchaser from an agent not knowing him to be such, may, in an action for 
 the price by the principal, set off a debt due himself by the agent. 
 
 lb.— Frame i). "Wm. Penn Coal Co., 1881, 1 Out. 309. A defendant when 
 sued by an undisclosed principal may set off claims which he has against the 
 agent with whom he dealt as a principal. 
 
 UnUoLuidated Balance, — Russell «. Miller, 1867, 4 S. 154. An unad- 
 justed balance arising from complicated accounts cannot be used as set-off. 
 
 Use Plaintiff.— Passmore v. Ins. Co. of Peuna., 1822, 8 S. & R. 66. A 
 suit was brought by P. & B. to the use of P. It was afterwards marked to 
 the use of S. Seld that in equity a set-off which would have been allowed 
 against P. would be allowed against S. 
 
 lb. — Balsley v. Hof&nan, 1850, 1 H. 603. Set-offs are allowed against the 
 use plaintiff. 
 
 lb. — Hugg V. Brown, 1841, 6 Wh. 468. A defendant may set off a claim 
 which he holds against the use plaintiff. 
 
 Usurious Payment. — Parker v. Sulouff, 1880, 13 N. 527. A grantee of 
 a large tract gave four separate mortgages at usurious rates on separate lots 
 in the tract to secure a balance of purchase money. One of these lots was 
 sold expressly subject to the mortgage. In a suit against the mortgagor and 
 ierre tenant the former was allowed to set off usurious payments "on the other 
 three mortgages which had been satisfied. 
 
 lb.— National Bank v. Dushane, 1880, 9 W. N. C.472. Usury actually re- 
 ceived by a national bank in the renewals of a series of notes cannot be set 
 off in a suit on the last note. 
 
 Vendee Purchasing Outstanding Title.— Stephens v. Black, 1874, 27 
 S. 138. A vendee under articles who buys in an outstanding title may set 
 off the amount he pays for it against the balance of the purchase money, but 
 cannot set up this title as a defense to the action without first renouncing his 
 claim under the vendor. 
 
 Vendee out of Possession. — Weakland v. Hoffman, 1865, 14 Wr. 513. 
 A vendee who has been kept out of possession by holders under an adverse 
 title may defalcate against the unpaid purchase money injury done to the 
 property by these intruders. 
 
 Wages— Fraud. — Heck v. Sheuer, 1818, 4 S. & R. 249. In an action to 
 recover compensation for services, evidence of fraud and embezzlement can- 
 not be given by way of set-off, but may be given in under the general issue 
 to defeat the action. 
 
 Withdrawal of Set-off.— Muirhead v. Kirkpatrick, 1843, 5 W. & S. 506. 
 A set-off being in the nature of a cross-action may be withdrawn, just as a 
 plaintiff may suffer a non-suit. 
 
 lb. — Gallagher v. Thomas, 1868, 2 Brews. 531. Set-off being in the na- 
 ture of a cross-action may be withdrawn after the evidence is all in just as u 
 plaintiff may suffer a non-suit. 
 
 Whole Claim must be Offered.— .lennings v. Hare, 1883, 8 Out. 489. 
 A defendant who sets up a set-off must offer his whole claim in evidence ; i!' 
 it is greater than plaintiff's demand and is established he will get a certifi- 
 cate against the plaintiff. 
 
38 ADJUSIMENT. 
 
 Warranty.— Steigleman V. Jeffries, 1815, 1 S. & E. 477. A purchaser of 
 goods with warranty may make use of the warranty by way of set-off in an 
 action for the price. 
 ' Widow's Interest. — Smith v. Boyer, 1834, 2 W. 173. In an action by 
 an administrator against the widow for goods purchased by her she may set 
 off her third interest. 
 
 (6) Damages for Sreach of Contract. 
 
 Act of 1705.— Hunt V. Gilmore, 1868, 9 S. 450. Our defalcation act 
 (1705) was passed before the British and is more comprehensive. Under it 
 unliquidated damages arising ex contractu may be set off whenever they are 
 capable of liquidation by any known legal standard. 
 
 Bond in Attachment. — Plunkett v. Sauer, 1882, 5 Out. 356. Damages 
 arising from a bond given by a plaintiff in an attachment which was dissolved 
 can be set off in a subsequent suit between the same parties. 
 
 Collateral Agreement. — Tucesco Oil Co. v. Burke, 1870, 18 Pitts. L. J. 
 226. Damages arising out of an agreement collateral with the one in suit 
 between the defendants and one of the plaintiffs cannot be set off. 
 
 Covenant.— Wright v. Smyth, 1842, 4 W. & S. 527. In an action for 
 breach of covenant, unliquidated damages for breach of a different and en- 
 tirely independent covenant by plaintiff cannot be set off. 
 
 lb. — AUegaert v. Smart, 1882, 11 W. N. C. 177. Damages resulting from 
 a breach by a landlord of a covenant in a lease cannot be set off by the ten- 
 ant in a replevin for rent, but he may have a proportionate reduction of the 
 rent over the whole period. 
 
 Entire Contract— Part Performance.— Fessler v. Love, 1862, 7 Wr. 
 313. On a suit on notes given to one who has partly performed an entire 
 contract, damages for the breach of the entire contract may be set off. 
 
 Goods Sold.— Hopple v. Bunting, 1877, 3 W. N. C. 472, affg. 2 W. N. C. 
 445 (by a divided court). Damages resulting from a breach of a contract to 
 let defendant have all the goods he wanted on four months' time cannot be 
 set off in an action for the price of goods sold. 
 
 lb. — Foster v. Bell, 1840, 2 M. 399. In a suit for goods sold and deliv- 
 ered, the defendant cannot set off damages arising from a contract between 
 the same parties which the plaintiff had broken, (1) because the damages 
 were not liquidated, and (2) because it did not arise out of the same trans- 
 action. 
 
 lb.— Biswanger v. Stocker, C. P. 1876, 2 W. N. C. 407. In an action for 
 the price of coal, the defendant may set off a claim arising from a breach of 
 a contract by plaintiff to keep him supplied. 
 
 Judgment Assigned. — McWilliams v. Hopkins, 1835, 1 Wh. 275. A 
 judgment for costs against an administrator cannot be set off by the assignee 
 thereof against a judgment recovered against the latter for damages. 
 
 Mechanics' Lien.— Bayne v. Gaylord, 1834, 3 W. 301. Unliquidated 
 damages arising from bad workmanship can be given in evidence by way of 
 set off in a suit on a mechanic's lien, but it is error to allow the juiy to iSnd 
 a certificate for the defendant thereunder. 
 
 Mortgagor— Trespass.— Linen d. Feltz, C. P. Lackawanna, 1881, 13 
 Lan. Bar. 24; S. C. 3 L. T. N. S. 107. A mortgagor cannot set off in an ac- 
 tion on the mortgage damages arising from trespass committed by the mort- 
 gagee. 
 
 Non-Delivery.— Johnson v. Hoosier Drill Co., 1881, 3 Out. 216. An agent 
 who has sold twenty articles for his principal, but to whom the principal 
 afterwards sends only live, saying that he is unable to furnish the others, 
 iiiay, in an action by the principal to recover the price of the five, set ofl 
 damages resulting to him through the failure to deliver the other fifteen. 
 
ADJUSTMENT. 39 
 
 lb.— Shaw V. Badger, 1824, 12 S. & R. 275. In an action brought to re- 
 cover the price of cattle, the defendant may set off damages for the non- 
 delivery of other cattle sold at the same time. 
 
 Non-Conveyance. — Brotherton v. Haslet, 1819, 5 S. & R. 334. A surety 
 on a bond when sued thereon cannot set off damages arising from the failure 
 of the plaintiff to make him a conveyance of land under a contract prior to 
 the execution of the bond and unconnected with it. 
 
 Insolvent Company. — Hillier v. Allegheny Mut. Ids. Co., 1846, 3 Barr, 
 470. A member of a mutual insurance company cannot in an action on his 
 premium note set off a damage since sustained, the company being insol- 
 vent. 
 
 Patent-Right.— Bradley V. Dubois, C. P., 1878, 6 "W. N. C. 109. In an 
 action on a note given for a patent-right, damages arising from the plaintiff's 
 interfering with a sale of an interest thereof by the defendant cannot be set 
 ■off. 
 
 Public Improvements. — Harrisv^irg v. Herr, C. p. Dauphin, 1877, 2 
 Pears. 278. Damages caused by a public improvement cannot be set oft 
 against the assessment bills given the contractor. 
 
 Replevin.-^Peterson t). Haight, 1837, 3 Wh. 150. In replevin founded 
 on distress for rent, set-off is inadmissible, but the tenant may defalk from 
 the rent damages sustained by a breach of the covenants in the lease by the 
 landlord. 
 
 Refusal to Return Property.— Mcllvaine v. Rand, C. P., 1878, 6 W. 
 N. C 173. Damages arising from a refusal by plaintiff to return property 
 of the defendants in his possession cannot be set off. 
 
 Separate Contracts.— Morris v. Pott, C. P., Schuylkill 1880, 1 Seh. L. E. 
 p. 175. Damages arising out of a contract different from that sued on, may 
 be used as a set-off. 
 
 lb.— Frey v. Saloman, 1879, C. P. Lancaster, 11 Lan. Bar 104. Damages 
 resulting from a breach of a contract other than that in suit, cannot be set- 
 off. 
 
 lb.— Carman v. Franklin Fire Ins. Co., 1843, 6 W. &S. 155. Adefendant 
 may set-off damages arising from the breach of a contract different from that 
 whereon he is sued. 
 
 School Tax.— McCracken d. Elder, 1859, IOC. 239. One sued for his school 
 tax cannot set off unliquidated damages against the school board for breach 
 of contract. 
 
 Same Transaction.— Higler v. Taylor, C P. Schuylkill, 1881, 2 Sch. L. 
 R. 6. Damages arising from the transaction on which plaintiff's claim is 
 founded, may be set off. 
 
 Suit. — Lehmaier v. Born, C. P. 1875, 1 W. & C. 444. Damages arising 
 from suit being brought before time of credit agreed upon has expired, cannot 
 be set off against the price of goods sold. 
 
 Tort. — Dunlop V. Speer, 1810, 3 Bin. 169. The court will not stay an exe- 
 cution on a judgment assigned as security for money lent to the defendant, 
 in order to let the latter reduce to damages a claim which he has against the 
 oth^rfor^rtioMS acts under or rather in contravention of the agreement. 
 
 lb. — Ahl V. Rhodes, 1877, 3 N. 319. Damages arisingfrom a technical tort 
 cannot be set-off. 
 
 Unliquidated. — Hubler v. Tamney, 1836, 5 W. 51. Unliquidated dam- 
 ages may be set off in an action of debt, whether they arise from the same 
 transaction as that on which suit is brought or not. 
 
 lb. — Halfpenny v. Bell, 1876, 1 N. 128. Unliquidated damages arising 
 from a distinct and separate contract may be used as a set-off. 
 
 Unaccrued.— Van Kleeck V. Pickering, C. P. 1881, 11 W. N. C. 238. Dam- 
 
40 ADJUSTMENT. 
 
 ages resulting from breach of contract which have not yet accrued cannot be 
 set-off. 
 
 lb. — Zuck V. McClure, 1881 , 2 Out. 54. Damages arising from a breach of 
 contract between two parties cannot be set off in an action between them, un- 
 less the breach was complete at the time the action was brought. 
 
 lb. — Tuck V. Rafferty, 1881, 13 Lan. Bar. 167. Damages accruing from a 
 breach of contract which was made after suit brought cannot be set off. 
 
 Wages.— Stover V. Hotel Co , C. P. 1876, 3 W. N. C. 156. Damages aris- 
 ing from misfeasance may be set off against a servant who sues for wages. 
 
 lb. — Nixon V. Crory, 1882, 5 Out. 289. Where a servant quits his employ- 
 ers service in breach of his contract and without notice, and leaves the fires 
 under boilers in such condition that the boilers are damaged, such damages 
 may be set-off in an action brought by the servant to recover wages due him 
 up to the time he left. 
 
 Warranty. — Phillips v. Lawrence, 1843, 6 W. & S. 150. In an action 
 on a note damages arising from a breach of warranty in another transaction 
 may be set-off. 
 
 C. Practice. 
 (a.) In General. 
 
 Affidavit of Defense— Markley v. Stevens, 1879, 8 N. 279. An averment 
 of set off in an affidavit of defense must be precise and certain as to the time 
 when it accrued. 
 
 Case Closed.— Scott ». Kittanuing Coal Co., 1879, 7 W. N. C. 289. Where, 
 after a plaintiff has closed his case, the defendant moves for leave to give 
 notice of a set off, the matter is within the discretion of the court. 
 
 I b. — Glazer v. Lowrie, 1822, 8 S. & E. 498. A plea of set off after the plain- 
 tiff has closed his case is too late. 
 
 Non-Suit.— McCredy v. Fey, 1838, 7W. 496. The fact that issue has been 
 taken on the plea of set-off does not deprive the plaintiff from suffering a non- 
 suit at any time before verdict. 
 
 Opening Judgment. — Beatty v. Bordwell, 1880, 12 Lan. Bar, 50. A judg- 
 ment will not be opened in order to let one set off a counter claini, the only 
 grounds on which a judgment will be opened are those which attack its 
 validity. 
 
 lb.— Worthline v. Bisbing, D. C, 1874, 1 W. N. C. 92. A judgment will 
 not be opened to allow a mere set-oft which is disputed. 
 
 lb.— Shisteru Brenneh, C. P. 1874, 1 W. N. C. 3. A judgment will not 
 be opened to let the defendant claim a set-off. 
 
 Payment After Suit Brought.— Thomson v. McClelland, 1857, 5 C. 475. 
 A payment by defendant after suit brought, of a judgment recovered before 
 suit brought against plaintiff as principal and defendant as surety, can be 
 Bet off. 
 
 Pending Suit.— Solomon v. Kimmel, 1812, 5 Bin. 232. A defendant can- 
 not offer as set off a claim on which suit is pending. 
 
 lb.— Stroch V. Uhrich, 1841, 1 W. & S. 57. A debt on which suitispend- 
 may be used as a set-oft. 
 
 lb.— On Appeal.— Good v. Good, 1836, 5 W. 116. A defendant cannot 
 avail himself by way of set off of a counter claim on which an awai-d was made 
 in his favor before arbitrators but which is pending trial on his own appeal. 
 
 Pleading General Issue.— Clay v. Carsper, ISll, l Browne, 254. A de- 
 fendant who has pleaded set off need not give an account of the items, other- 
 wise if he has pleaded the general issue. 
 
 lb.— Payment.— Balsbaugh v. Frazer, 1872, 7 H. 95. Set off is allowable 
 nnder the plea of payment. 
 
ADJUSTMENT. 41 
 
 Plea of Payment.— Glamorgan Iron Co. v. Ehule, 1866, 3 S. 93. Under 
 the plea payment set off is not allowable unless notice has been given. 
 
 lb.— Set-off —Henderson v. Lewis, 1823, 9 S. & E. 379. Where payment 
 is pleaded, the short entry of set-off made after issue joined, is not a plea 
 but only a notice, therefore no replication is necessary. 
 
 lb.— lb.— Eogers v. Old, 1819, 5 S. & E. 404. One who has pleaded set- 
 off but has refused to give specifications cannot give evidence to support his 
 plea. 
 
 lb. — Finlay r. Stewart, 1867, 6 S. 183. Where a rule of court provides 
 that a plea of set-off shall be accompanied with a specification of the items 
 of set-off, it is not complied with by having filed such specification with the 
 affidavit of defense. 
 
 Use of Plea in Subsec[uent Judgment.— Moloney v. Davis, 1865, 12 
 Wr. 512. A defendant having pleaded a set-off to one action cannot be 
 compelled to use it against a judgment subsequently obtained in another, 
 but may prove it and have it allowed on the trial of the action in which it 
 was pleaded. 
 
 (6.) Evidence. 
 
 Appeal from Magistrate. — Dobison v. Haddock, 1889, 5 Kulp, 254. It 
 is competent to show by parol evidence that the amount in controversy be- 
 fore a justice, by reason of a set-off, exceeded five dollars and thirty-three 
 cents, but in the absence of such evidence the right of appeal is determined 
 by the record. 
 
 Binds One Giving it.— Good v. Good, 1840, 9 W. 567. A defendant 
 who has given evidence of his set-off is bound by a verdict and judgment 
 against him and cannot re-assert it in another action. 
 
 Making out Case. — Lewis v. Culbertson, 1824, 11 S. & R. 59. A plain- 
 tiff against whom arbitrators had made an award went to trial and objected 
 to evidence of a set-off on the ground that he had not made out a case him- 
 self Held that the evidence should have been admitted. 
 
 Of Notice.— Boyd v. Thompson, 1797, 2 Y. 217. A set-off can only be 
 given in evidence when notice has been given. 
 
 lb.— Gogel V. Jacoby, 1819, 5 S. & R. 117. The evidence of set-off must 
 conform reasonably with the notice of set-off. 
 
 lb.— Yost V. Eby, 1854, 11 H. 327. Act 1806 (amendments) construed to 
 apply to set-offs where the notice was not regular. 
 
 Offered as Whole. — Sennett v. Johnson, 1848, 9 Barr, 335. Evidence 
 of matters to prove set-offs when offered as a whole may be rejected as a 
 whole, although one of the items if offered separately would have been a-d 
 missible. 
 
 Of Partnership.— McFadden v. Erwin, 1836, 2 Wh. 37. In an action on 
 a note, the defendant was allowed to give in evidence by way of set-off the 
 fact of a former partnership in a single transaction and that money was 
 owing him by the plaintiff on claims which arose during the partnership. 
 
 Oral and Written Agreements.— Everson v. Fry, 1872, 22 S. 326. A 
 set-off is in the nature of a separate action, therefore where an action is on 
 a written agreement and the set-off on a contemporaneous verbal agreement 
 to admit evidence of the latter is not necessarily contradicting the former. 
 
 Replevin. — Phillips v. Monges, 1838, 4 Wh. 226. In replevin founded 
 on a distress for rent, evidence that the premises were untenable for war}t 
 of repairs promised by the landlord, cannot be introduced by way of set-off 
 unless the promise to repair formed part of the consideration of the lease. 
 
 Settlement.— Marshall v. Sheridan, 1823, 10 S. & E. 268. Under a plea 
 of set-off evidence is admissible to show that since suit brought, the plain- 
 tiff acknowledged that a settlement had previously taken place even after 
 
42 ADJUSTMENT. 
 
 the commencement of the suit, and that he therefore became indebted to 
 the defendant and gave him a note for the debt ; and such note is also ad- 
 missible. 
 
 (o.) Notice. 
 
 Books Called For.— Latimer v. Hodgdon, 1820, 5 S. & R. 514. A de- 
 fendant who has called for books and papers cannot go on and prove a set-off 
 from them, unless he has given the special notice required. 
 
 Must be Certain.— Lewis v. Calbertson, 1824, 11 S. & R. 48. ■ A notice 
 of set-off must be reasonably certain, but need not be so formal as a decla^ 
 ration. 
 
 Hj. — Irwin ». Potter, 1834, 3 W. 271. Notice of set-off should set forth 
 with reasonable certainty the plaintiff's liability. 
 
 Of Special Matter.— Calvin v. McClure, 1828, 17 S. &R. 385. The jury 
 may certify a sum due by plaintiff to defendant under a plea of payment 
 without notice of special matter or plea of set-off. 
 
 (d. ) Jurisdiction. 
 
 Justice of Peace.— Shoup v. Shoup, 1850, 3 H. 361. Act March 20, 1810, 
 requiring a defendant before a magistrate to set off any claims he may have, 
 includes unliquidated damages arising from breach of contract. 
 
 lb.— Holden v. Wiggins, 1832, 3 P. & W. 469. In an action before a jus- 
 tice a set-off which is greater than the limit of the justice's jurisdiction can- 
 not be received. 
 
 lb.— Appeal from.— Baldwin.?). Burgess, 1888, 4 C. P. Rep. 223. Upon 
 a rule to strike off an appeal from a justice of the peace on the ground that 
 the set-off offered by defendant upon which judgment was founded was not 
 offered in good faith, the merits of the set-off will not be inquired into, but 
 only the bona fides of the offer. 
 
 lb.— Appeal.— Walden v. Berry, 1865, 12 Wr. 456. A setoff beyond the 
 jurisdiction of a justice cannot on appeal be set up as a defense. 
 
 lb.— Costs.— Odell V. Culbert, 1845, 9 W. & S. 66. A plaintiff is entitled 
 to costs though he recover less than the jurisdiction of the court if the amount 
 of his verdict was thus reduced by a set-off. 
 
 lb — Henion v. Morton, 1835, 2 Ash. 150. A defendant cannot offer as 
 set-off before a justice of the peace any claim of which the justice would not 
 have jurisdiction in a separate cause of action. 
 
 lb. — Milliken v. Gardner, 1860, 1 Wr. 456. A justice of the peace has no 
 jurisdiction over a set-off of over a hundred dollars. 
 
 Damage for Breach of Contract.- Nickle v. Baldwin, 1842, 4 W. & S. 
 290. A defendant before a justice of the peace may give in evidence a breach 
 of contract by plaintiff and claim damages therefor as set off. 
 
 VIII. Subrogation. 
 
 A. In General. 
 
 Act of April 22, 1856.— Fessler -c. Hickernell, 1876, 1 N. 150. Act April 
 22, 1856, P. L. 534, providing in what cases subrogation shall be allowed and 
 in what manner it shall be exercised, does not apply to any case in which 
 the amount that the substituted creditor has a right to collect from the ad- 
 verse party has not been ascertained. 
 
 Creditor entitled to Debtor's Securities. — Kramer's Ap., 1860, 1 Wr. 
 71 . A creditor is entitled to all the securities taken by the surety of his 
 ■debtor. 
 
ADJUSTMENT. 43 
 
 Bc[Ual Equities.— Hoff's Ap., 1877, 3 N. 40. Subrogation will not be 
 allowed against one whose equity is equal to that of the creditor asking it. 
 
 Guardian against Ward's Recognizance.— Kelchner v. Forney, 1847, 
 5 C. 47. A guardian who pays to his ward the share of the latter which is 
 secured to him by a recognizance, is entitled to be subrogated to the rights 
 of the ward under that security. 
 
 Indebtedness of Complainant.— Allegheny Nat. Bank's Appeal, 1887, 
 19 W. N. C. 78. Subrogation will not be granted so long as the debt of the 
 party whose rights are claimed to be used remains partly unsatisfied. 
 
 lb. — Coates' Ap., 1844, 7 W. & S. 99. Subrogation, resting as it does 
 on mere equity, will never be granted to a party where it appears that he is 
 indebted, on any account, in an equal, less or greater amount to the person 
 again whom the lien exists to which he asks to be substituted as plaintiff. 
 
 Insurance Company against Insured. — Allegheny Ins. Co. r. Ransom, 
 1871, 19 S. 496. An insurance company having a valued policy for one-third 
 on a vessel that was totally wrecked, paid as for a total loss. Held that they 
 were subrogated to all the rights of the insured for the purpose of indemni- 
 fying themselves. 
 
 Laches. — Building Assoc, v. Turkes, C. P. Luzerne 1879, 1 C. P.' Rep. 91. 
 Laches will defeat the right of subrogation. In this case the delay was seven 
 months. 
 
 Nature of Subrogation. — Bender v. George, 1879, 11 Lan. Bar. 130. Sub- 
 rogation does not depend on priority or strict suretyship, but is the means 
 whereby equity compels the one to pay a debt who in good conscience should 
 pay it. 
 
 Payment by Life-Tenant.— Wandell's Est., O. C. 1883, 13 W. N. C. 
 143. Where a life-tenant pays off a mortgage the presumption is that she 
 intended the satisfaction to result to the benefit of the remaindermen, her 
 children, and there will be no subrogation. 
 
 Practice. — Bailey v. Brownfield, 1852, 8 H. 41. One entitled to subroga- 
 tion in Pennsylvania need not get a decree to that effect, but may proceed 
 on the security and his right then be tried if a defence is set up. 
 
 lb.— Commonwealth v. Marshall, C. P. Berks, '1850, 3 Woodw. Dec. 117. 
 An application for subrogation must be made within six years. 
 
 lb. — Springer v. Springer, 1862, 7 Wr. 518. Subrogation is an equitable 
 remedy and should be applied for by petition or bill, not by mere motion, 
 and on the decree an appeal lies but not a writ of error. 
 
 lb.— Act of 22 April, 1856.— Gunther v. Fuller, C. P. Luzerne, 1874, 3 
 Luz. L. Eeg. 1. Under act April 22, 1856, P. L. 827, the rule by one claim- 
 ing contribution or subrogation must be in the alternative — either that the 
 judgment creditor shall le^-y his execution in the succession prescribed or 
 that he will accept his debt from the petitioner. 
 
 lb — Appeal. — Steele's Ap., 1872, 22 S. 101. Proceedings for subrogation 
 should be by petition in the lower court and must be brought to the Supreme 
 Court by appeal. 
 
 lb.— Benninghoffd. Wegeforth, 1871, 19 Pitts. L. J. 114. Appeal is the 
 proper remedy for review in cases of subrogation whatever has been the form 
 of proceeding in the lower court. 
 
 lb.— Notice.— Wilbur's Ap., 1881, 10 W. N. C. 133. A junior encum- 
 brancer can claim no equity at the hand of his senior unless he has given 
 notice and warning. 
 
 Prior Lien. — Yerkes' Ap., 1844, 8 W. & S. 224. A. had a prior lien on 
 lot No. 1. B. on lot No. 2. By mistake A. was paid first from lot No. 2. 
 Held that B. could not be subrogated to A.'s right against lot No. 1. 
 
 Secondarily Liable.— Cooper v. Piatt, 1861, 3 Wr. 528. One liable to 
 pay a debt in the second instance cannot be subrogated to a security which 
 
4 i ADJUSTMENT. 
 
 one liable in the third instance has against the principal to cover this and 
 other liabilities, but which is not sufficient for the purpose. 
 
 Sheriff's Sale.— Indiana County Bank's Ap,, 1880, 14 N. 500. Subro- 
 gation will not be allowed in the distribution of funds arising from sheriff's 
 sales where the right to it did not appear at the time of the sale. 
 
 Stockholders.— Butler Co. V. N. W. E. R., 1870, 18 Pitts. L. J. 201. 
 A sfflckholder cannot be subrogated to the rights of creditors against other 
 stockholders to recoup his subscription. 
 
 Taxes Paid by Collector.— Wallace's Est., 1868, 9 S. 401. A tax col- 
 lector paid taxes on a property and afterwards received from the owner a 
 judgment as collateral security. Held the collector would not be subrogated 
 to the rights of the Commonwealth as to the lien of the tax, so as to give 
 him priority over prior liens. 
 
 Unpaid Party.— Kyner v. Kyner, 1837, 6 W. 221. One will not be sub- 
 rogated to the rights of a party not himself fully satisfied. 
 
 Volunteer. — Hosier's Ap., 1867, 7 S. 76. Subrogation though not al- 
 lowed to mere volunteers, will be allowed in all cases where a payment has 
 been made under a legitimate and fair effort to protect the ascertained inter- 
 ests of the party paying. 
 
 lb. — Servant. — Hoover V. Epler, 1866, 2 S. 522. A volunteer will not be 
 entitled to subrogation, but a servant who rightly preserves his master's 
 property by repairing it, and who pays the bill is not a volunteer. 
 
 lb. — Brice'sAp., 1880, 14 N. 145. One, who under no compulsion pays 
 the debt of another, in whole or in part, becomes in the absence of proof to 
 the contrary, the purchaser of the debt pro tanio, and he becomes entitled to 
 the accompanying security. 
 
 lb. — Cottrell'sAp., 1854, 11 H. 294. Equity will decree subrogation where 
 justice demands it, though there be no privity or contract, and provided the 
 one discharging the debt be not a mere volunteer. 
 
 When Allowed.— Hoffman v. Leach, C. P. Luzerne, 1862, 2 Luz. L. Obs. 
 180. Subrogation will be allowed only in a clear case and where it works no 
 injustice to the rights of others. 
 
 lb.— Hexter v. Kessler, C. P. Schuylkill, 1881, Sch. L. R. 380. Subroga- 
 tion will only be decreed where a party under compulsion has actually paid 
 the debt of another. 
 
 lb. — Bank of Penna. v. Potius, 1840, 10 Watts, 148. Substitution is a mere 
 equitable right, therefore one will not be substituted where the principal has 
 not been fully paid. 
 
 lb. — Fink V. Mahaffy, 1839, 8 Watts, 384. Substitution is a mere equity 
 and will not be enforced against a legal right. 
 
 (6.) Principal and Surety. 
 
 Against Creditor.— Neff v. Miller, 1848, 8 Barr, 347. The equity of a 
 surety to be subrogated to a judgment against his principal is limited to the 
 balance of the general account between them. The right of subrogation dis- 
 cussed at length. 
 
 Against Bail.— Schnitzel's Ap., 1865, 13 Wr. 23, Aff'g. 21 L. I. 224, 5 
 Phila. 441. A surety is entitled to subrogation to the security which the 
 principal has given to one entering bail for stay of execution. 
 
 lb. — Burns v. Huntingdon Bank, 1830, 1 P. & W. 395. A surety is entitled to 
 subrogation, against one who has entered bail absolute for stay of execution 
 against the principal. 
 
 Accomodation Endorser.— Brough's Est., 1872, 21 S. 460. Accomoda- 
 tion endorsers who pay a note of their principal after he has assigned for credit- 
 ors are not entitled to any dividend. The payee's dividend is on the whole 
 
ADJUSTMENT. 45 
 
 debt, and after he has been wholly paid the endorsers can be subrogated to 
 his rights. 
 
 Act April 22, 1856.— Duffield v. Cooper, 1878, 6 N. 443. Act April 22, 
 1856, applies to the subrogation of parties to judgment liens on real estate, 
 but not to the right between principal and surety where by mere operation 
 of law the latter upon paying the debt succeeds to the rights of the creditor. 
 
 Assignee— Landlord.— Keely v. Cassidy, 1880, 12 N. 318. The sureties 
 of an assignee for creditors who have had to make good his account and out 
 of which advanced sum a landlord has been paid, are not entitled to subro- 
 gation to the rights of the landlord, thedebtorhavingbeen adjudged a bank- 
 rupt. 
 
 Assignment by Surety.— I^ehaffy v. Share, 1831, 2 P. & W. 361. Where 
 a surety or any one entitled to subrogation assigns his right thereto the assign- 
 ment carries all his right, though it only purports to be a right of subroga- 
 tion against certain persons. 
 
 lb. — Huston's Ap., 1871, 19 S. 485. A surety having paid his principal's 
 debt assigned his right of subrogation to one who had done the same for 
 him. A prior lien creditor, however, claimed this right of subrogation. 
 Held that the latter was entitled to it. 
 
 Co-Sureties — Judgment. — Black v. Robinson, 1882, 1 Ches. Co. Rep. 565, 
 S. C. 13 W. N. C. 172, aff 'g I Ches. Co. R. 367. A surety on- one note is en- 
 titled to a pro rata share in a judgment given to his co-surety who is also 
 surety on three other notes. 
 
 lb. — Shaeflfer v. Clendenin, 1882, 4 Out. 565. Co-sureties stand in a con- 
 fidential relation to each other, and each is entitled to participate in any in- 
 demnity given to the other by the principal directly or indirectly. 
 
 Costs — Bail. — Bank V. Harper, 1848, 8 Barr. 249. Bail in error who has 
 to pay costs is subrogated to the rights of the judgment there for against the 
 defendant. 
 
 Endorser of Note. — Bamett v. Reed, 1865, 1. S. 190. An endorser of a 
 second note which is given as payment for another which has fallen due, is 
 not entitled to subrogation against an endorser of the first note. 
 
 Executor Against Assignee.— Romig v. Erdman, 1839, 5 Wh. 113. An 
 executor in whose hands was a fund distributable upon the death of the widow 
 became surety for one of the heirs who afterwards assigned his interest to 
 his brother. The surety paid the debt, and it was held that he was entitled 
 to the fund as against the assignee. 
 
 First Lein Creditor.— Wagner v. Elliott, 1880, 14 N. 187. A surety for 
 a judgment which was a second lien on real estate, paid the same, the pro- 
 ceeds of the land not being sufficient to pay both liens. The first lien cred- 
 itor had previously levied on personal property which was claimed by others 
 and on the trial of a feigned issue, the claimant had won, but a new trial had 
 been granted. The land having in the meantime been sold, the first lien 
 creditor had received his debt out of the proceeds, ffeld that the surety was 
 not entitled to subrogation to the rights of the first lien creditor in thefeigned 
 issue. 
 
 Guardian's Bond.— Leiter's Ap., 1881, 10 W.N. C. 225, S. C. 14 Lan. 
 
 B. 25. A surety on a guardian's bond is entitled to be subrogated to all the 
 remedies of the ward. 
 
 Holder of Note.— Harmony Bank's Ap., 1882, 5 Out. 428, Theholderof 
 a promissory note is entitled to the securities given by the maker to the en- 
 dorser, but he cannot obtain any rights thereunder which the surety did not 
 himself possess. 
 
 Holding Out as Principal— Estoppel.— Wqjffj). Stover, 1884, 15 w. N. 
 
 C. 390. One who appears in a judgment as a principal and who pays it af- 
 ter a stay of execution, will not be allowed to show himself to be only a surety 
 in order to be subrogated against the one giving bond for the stay. 
 
46 ADJUSTMENT. 
 
 lb.— Gosweiler's Est., 1831, 3 P. & W. 200. One who has for eight years 
 allowed himself to appear on the record as the principal debtor, will not on 
 discharging the judgment be subrogated against one who appeared to be 
 surety although in reality the pilucipal , where other creditors of the latter 
 have intervened. 
 
 Insolvent Co-Surety. — Hess' Est., 1871, 19 S. 272. One of two co-sure- 
 ties paid the debt and sued the other surety forliis share. This latter was 
 insolvent. The auditor reported a dividend on one-half the principal debt. 
 Held that in Pennsylvania a surety was entitled to subrogation against his 
 co-surety to all the rights of the creditors. Therefore the dividend should 
 be on the whole claim. 
 
 Joint Endorsers. — West Branch Bank ii. Armstrong, 1861, 4 "Wr. 278. 
 Joint endorsers of negotiable paper are not entitled to subrogation as against 
 each other. 
 
 Joint Obligors.— Buchanan's Est., 1883, 2 Ches. Co. E. 74, S. C. 15 Lan. 
 
 B. 6. Where one of two j oint obligees, pays a debt which the other was liable 
 for in the first instance", and takes an assignment of the instrument eviden- 
 cing it, he is entitled to subrogation , but the transaction is not considered an 
 equitable assignment. 
 
 lb. — Greiner's Est., 1834, 2 W. 414. A surety who pays a debt is entitled 
 to subrogation to the securities, but a joint obligor is not ; he has only his 
 action for contribution. ' 
 
 Mortgage Given to Surety.— Brien v. Smith, 1845, 9 W. & S. 78. A 
 mortgage given to a surety to indemnify him, will pass to a third person who 
 pays the debt on the faith of it as security. The contingency for which the 
 mortgage was given has practically happened. 
 
 Must Evidence Intention.— Eittenhouse v. Levering, 1843, 6 W. & S. 
 190. A surety who pays the debt is not ipso faelo subrogated to the rights of 
 the creditors ; and if he does nothing to manifest his intention of relying on 
 the security before that security runs out, he Can only proceed against his 
 principal for money had and received. 
 
 Note— Independent Undertaking. — Tracy v. Pomeroy, 1888, 21 W. N . 
 
 C. 332. Where a party binds himself by a separate obligation at the instance 
 of the obligee, to pay whatever sum, not exceeding $500, said obligee may 
 fail to collect upon a promissory note, and the collaterals held therefor, 
 this is an independent undertakingon the part of the obligor, and when com- 
 pelled to pay in accordance with his contract, he has no claim on collaterals 
 by subrogation or otherwise, if the suit upon the note has been prosecuted 
 with due diligence. 
 
 Payment by Surety.— New Trustee.— John's Est., C. P. 1883, 2 Ches. 
 Co. E. 77. A surety who has paid the sum due by a trustee will on petition 
 be subrogated by a decree to all the rights of a new trustee against the old. 
 
 lb.— Liability to Pay not Suificient.— Ins. Co. of N. A. v. Fidelity Title 
 & Trust Co., 1884, 46 Leg. Int. 261. Subrogation will only be allowed when 
 there has been an actual payment by one occupying the relation of surety. 
 Mere liability to pay does not raise the equitable right. 
 
 lb.— Warren v. Sennett, 1846, 4 Barr. 114. One going surety for a debtor 
 by taking his property under an agreement that the debtor might redeem it 
 within a certain time, cannot on paying the debt and becoming absolute 
 owner of the land be subrogated to the rights of the creditor against the 
 debtor. 
 
 lb.— Administrator.— Appeal of Miskimins, 1886, 4 Am. 533. An ad- 
 ministrator who paid debts and had the mortgages against the real property 
 of decedent satisfied, then obtained a further order for the sale of real estate 
 upon which he never acted ,«irannot come into a common pleas court to be 
 subrogated to the rights of creditors whose debts he has satisfied. 
 
 lb.— Surety.— Owen's Ap., 1882, 11 W. N. C. 488. Where a surety pays 
 
ADJUSTMENT. . 47 
 
 a claim with money loaned to him on his judgment note, the surety thereon 
 being his principal in the debt paid by him, he is entitled to subrogation. 
 
 lb.— Stay of Execution.— Pott v. Nathans, 1841, 1 w. & s. 155; A 
 surety who has paid a debt is entitled to subrogation against one who has 
 given his note therefor in order to obtain a stay of execution. 
 
 lb. — ^Ib. — Lathrop's App., 1845, 1 Barr, 512. One who becomes surety 
 for stay of execution and who has to pay the judgment is not entitled to 
 subrogation as against subsequent judgment creditors. 
 
 lb.— Compulsory.— Ward's Ap., 1882, 4 Out. 89. The estate of a surety 
 having paid the debt under compulsion is entitled to subrogation. 
 
 lb.— Subsequent Creditor.— Armstrong's Ap., 1843, 5 W. & S. 352. A 
 surety for stay of execution who afterwards discharges the judgment is not 
 entitled to subrogation as against subsequent lien creditors. 
 
 lb.— Co-Surety for Consideration.— Himes v. Keller, 1842, aw. & s. 
 401. A surety who pays the debt is not entitled to subrogation against a 
 co-surety who had become co-surety for a consideration, where there are 
 creditors of the latter who would be injured thereby. 
 
 lb.— Co-Surety.— Heafifer V. Boyer, C. P. York, 1880, 1 York L. E. 161. 
 In the absence of any special arrangement between co-sureties, if one pays 
 the debt he is entitled to be subrogated to all the rights of the creditor as 
 well against his co-surety as against the principal. 
 
 lb. — Croft «. Moore, 1840, 9 Watts, 451. One of several joint sureties who 
 pays the debt of their principal may be subrogated to the rights of the cred- 
 itor in order to enforce contribution from his co-sureties. 
 
 lb. — Wright V. Grover, 1876, 1 N. 80. A co-surety who has discharged 
 the debt may be subrogated to the rights of the creditor in order to enforce 
 contribution from his co-surety. 
 
 lb.— Conveyance Subject to the Lien.— Owen's Ap., 1882, 11 W. N. C. 
 488. One who appears on the judgment docket as a principal may, on pay- 
 ing the judgment and proving himself to be a surety, assert his right to sub- 
 rogation against alienees of the real estate of the principal therein who have 
 taken conveyances while the judgment was a lien. 
 
 Practice — Notice. — Klopp v. Lebanon Bank, 1863, 10 Wi. 88. A surety 
 who has paid a debt need not as between themselves give notice to the cred- 
 itor that he is entitled to subrsgation, that right grows out of payment not 
 out of notice. 
 
 Prior Lien. — McCormick v. Irwin, 1860, 11 C. 111. When a surety in- 
 tervenes tor the purpose of obtaining time for the principal, a prior surety 
 will have the same right of subrogation against him as against the principal. 
 
 Purchase Subject to a Lien. — Gearhartt;. Jordan, 1849, 1 J. 325. Where 
 two parties purchase a tract subject to a lien, each is a principal as to his 
 share of the lien and a surety as to his co-owner's share and the right of 
 subrogation is governed accordingly. 
 
 Bent. — King V. Blackmore, 1872, 22 S. 347. A surety for rent who pays 
 it after a distress levied and replevin begun is entitled to subrogation to all 
 the rights of the landlord therein. 
 
 Subsequent Creditor.— Erb's Ap., 1830, 2 P. & W. 296. A surety who 
 has paid a debt out of fund released to him by a subsequent creditor of his 
 principal has no equity to be subrogated against the rights of that subse- 
 quent creditor. • 
 
 lb. — Moore v. Bray, 1849, 10 Barr, 519. Where a principal's debt has 
 been paid by two sureties, the subsequent lien creditors of one can be sub- 
 rogated to original judgment against the other on proof that the payment by 
 this other was made with funds supplied by the principal. 
 
 Stay of Execution.— Yeager's Appeal, 1887, 19 W. N. C. 151. Where a 
 party agreed to become surety for a stay of execution in three separate suits 
 
48 ADJUSTMENT. 
 
 brought and judgments obtained against the maker and two endorsers of a 
 promissory note, and by mistake made no entry in the case ot one of the 
 endorsers, but paid the judgments at the expiration of the stay of execution, 
 it was Jield that the said party was entitled to be subrogated to the rights of 
 the plaintiff in each case. 
 
 Volunteer. — Webster's Ap., 1878, 5 N. 409. One who voluntarily takes 
 the position of surety on a renewal note is not entitled to be subrogated to 
 the rights of the surety on the old note. 
 
 C Heirs, Legatees and Devisees. 
 
 Charge on Land. — Miller's Appeal, 1888, 4 Crum. 620. Where land 
 was devised to A. and B. jointly, subject to the charge of legacies, A. being 
 indebted to his wife conveyed his interest in the land to her, the conveyance 
 being to prevent him "from wasting his estate by contracting additional 
 debts and secure the same for the benefit of himself and family." An exe- 
 cution was issued upon a judgment against the estate and paid by B. Held, 
 in a bill in equity by A. and wife to prevent B. from levying on the land 
 conveyed to said wife, that the latter took the estate charged with all the 
 liabilities attaching to it at the time of the conveyance. 
 
 Decedents' Estates — Mortgage.— Morris v. McConnaughy, 1792, 2 Dall. 
 189, S. C. 1 Y. 189. A testator's real estate must contribute ratably to dis- 
 charge a mortgage created by him on oae tract. 
 
 Distress by Widow.— Shouffler «. Coover, 1841, 1 W. & S. 400. There 
 can be no subrogation to the right of distress given a widow for her annuity, 
 it is a purely personal remedy. 
 
 Insolvent Estate.— Worrall's Est., O. C. Delaware, 1882, 1 Del. Co. K. 
 441. Heirs who have paid off a judgment on the estate of their ancestor 
 believing it to be solvent, are not entitled to subrogation upon it afterwards 
 appearing that it is insolvent. 
 
 Mortgaged Land Conveyed to Devisee. — Jones' Est., O. C. Dauphin, 
 1872, 2 Pears. 128. A devisee of land upon which were two mortgages had 
 received a clean conveyance of it from the testator. The mortgages were 
 paid out of the residuary estate whereupon the creditors of the residuary 
 legatee claimed to be subrogated to the mortgages. Not allowed. 
 
 D. Mortgagor and Mortgagee. 
 
 Against State.— Morris Est., C. p. 1879, 8 W. N. C. 178. Where a sheriff 
 retains out of money raised by foreclosure of a mortgage, a sum to pay the 
 taxes on the property (the estate being insolvent and in the hands of an as- 
 signee) the mortgagee has no claiin to be subrogated to the rights of the State 
 as to that sum. 
 
 Conveyance by Mortgagor.— Morris v. Oakford, 1848, 9 Barr, 498. Where 
 a mortgagor conveys the estate to one who covenanted to pay the mortgage, the 
 parties stand in the relation of surety and principal and the mortgagor hav- 
 ing discharged the mortgage is subrogated to it. 
 
 lb. — McCurdy v. Shepley,1874,l W.N.C.54. A mortgagor who had conveyed 
 the land with warranty against the mortgage, gave the mortgagee a note for 
 it under an agreement, that if paid, it would dischargf the mortgage. Judg- 
 ment having been recovered on the note, it was paid by one who went secur- 
 ity for stay of execution. Held, that the mortgage was discharged and there 
 could be no subrogation. 
 
 Encumbered Land Primarily Liable.— Borland v. Elton, C. P. 1884, 14 
 W. N. C. 563. The land mortgaged is primarily liable for the mortgage debt, 
 and the court will, upon application, so marshall the securities and apply the 
 principles of subrogation as to have the debt satisfied thereout. 
 
ADJUSTMENT. 49 
 
 Fraudulent Mortgage.— McCleary's Appeal, 1888, 20 W. N. C. 547. A. 
 owned certain real estate subject to the lien of a mortgage. A. gave B. one- 
 third of the amount of the mortgage in cash, asked him to negotiate a new 
 mortgage for the other two-thirds and pay off the old mortgage. B. executed 
 a I'orged mortgage for more than the amount of the original mortgage to C, 
 a bona fide mortgagee, and then paid off the first mortgage, partly with the 
 fund given him by A., partly with the fund produced by the fraudulent mort- 
 gage. A. executed the mortgage for the said tM'O-thirds, but this B. neverhad 
 recorded. B. at first paid the interest on the forged instrument for two years 
 and then fied. C. filed a bill in equity praying a cancellation of the satisfac- 
 tion of the original mortgage and an assignment of it to him. Held that C. 
 had no equity under the facts to be subrogated to the rights of the mortgagee, 
 uuder the old mortgage and A. was entitled to have the forged mortgage can- 
 celled. 
 
 Life Tenant.— Crawford v. Carver, C. P. 1883, 40 Leg. Int. 474. A life tenant 
 ■who pays off a mortgage is entitled to be subrogated to the rights of the 
 mortgagee. 
 
 Tenants in Common. — ^Watson's Ap., 1879, 9 N. 426. Two who were 
 tenants in common gave a mortgage and eleven bonds to A. A. assigned 
 some to B. and some to appellant. A. then bought the interest of one of the 
 tenants in common and agreed to indemnify him against the mortgages. A. 
 then bought in the bonds he had a.ssigned to B. and afterwards re-assigned 
 them to the appellee. Seld that the re-assignment to A. after he became a 
 co-tenant with the mortgagor did not satisfy those bonds. The parties were 
 not partners and subrogation existed between them. 
 
 E. Debtor and. Creditor. 
 
 • Different'DebtorS. — Harrisburg Bank V. German, 1846, 3 Barr, 300. When 
 the two funds belong to different debtors there can be no subrogation. 
 
 lb.— Ebenhardt's Ap., 1845, 8 W. & S. 327. A purchaser of land bound 
 by a judgment gave a note for part of the purchase money " on account of 
 the lien on this property, etc.," other judgments were recovered against the 
 vendor and subsequently against the vendee. Property belonging to the 
 vendor was sold and the lien satisfied which bound the land of the vendee. 
 The subsequent judgment creditors of the vendor asked to be subrogated to 
 the rights of the first judgment to the extent of the note given asabove. Not 
 allowed because the funds are not the property of the same debtor. (See- 
 GEANT, J. dissents on the ground that the note shows that^ro tmito the land 
 conveyed remained to satisfy the first lien and the funds therefore did be- 
 long to the same debtor.) 
 
 lb.— Blank's Ap., 1878, 6 "W. N. C. 25. The doctrine of subrogation will 
 not be applied where the two funds belong to different debtors. 
 
 Equitable Owner. — Phinney v. Timmins, C. P. Lackawanna, 1879, 1 C. 
 P. Eep. 2. A creditor of the owner of an equitable estate against whom eject- 
 ment had been brought was allowed to satisfy the claim of the plaintiff and 
 be subrogated to his rights. 
 
 Feme Covert — Material Men. — Sellers v. Weinbaugh, 1887, 2 Crum. 
 220. Where a man loans money to a, feme covert upon her note or bond, the 
 money to be used in improving her separate estate, he will not be subrogated 
 to the rights of the mechanics or material men who have made the repairs. 
 
 Joint Debtors.— Howry's Est., C. P. Wyoming, 1882, 1 Kulp, 271, S. C. 
 10 Luz. Leg. Reg. 14, 2 Sch. L. R. 12, 20 Pitts. L. J. 27. The principal of sub- 
 rogation does not apply as between joint debtors. 
 
 Joint Principals.— Strough's Est., 1884, 2 Ches. Co. R. 291. The rule 
 that subrogation will not be allowed between joint principals and against 
 subsequent creditors does not apply where one paid more than half under an 
 agreement with the other to be subsequently reimbursed. 
 4 — EQUITY. 
 
50 ADJUST3IENT. 
 
 Junior Judgment Creditor Against Surety.— Bunting v. Riehl, 1880, 
 
 2 Pa. Co. C. Eep. 450. A junior judgment creditor of one of two co-sureties, 
 
 ■whose judgment is not reached in distribution, is entitled to be subrogated 
 
 to tie rights of a, prior judgment creditor against the other co-surety, the 
 
 " judgments against the sureties being paid in full in the distribution. 
 
 Junior and Senior Encumbrancers.— Robeson's Appeal, 1888, 2 Crum. 
 628. An encumbrancer having a lien upon but one of two funds, has an 
 equity to require a senior encumbrance having a lien upon both, to exhaust 
 the other of said sources first ; and this equity may exist not only against 
 the debtor and senior encumbrancer, but also against a mortgagee holding a 
 junior lien upon the second fund alone. 
 
 Laches.— Mechling's Appeal, 1888, 22 W. N. C. 138. AVhere a,fl. fa. and 
 attachment had been issued by a creditor, a second creditor issued a second 
 fi. fa. and attachment, and after the first had been satisfied, a third creditor 
 issued his attachment, the second creditor petitioned to be subrogated to the 
 rights of the first creditor. Held, that as the subrogation would prejudice 
 the rights of the third creditor and the petitioner had been guilty of laches, 
 the petition would not be granted. 
 
 lb.— Subsequent Creditors.— Douglass' Ap., 1864, 12 Wr. 223. Subro- 
 gation is but an equity, and is nothing more after a decree of subrogation 
 has been made, and may be lost by laches. One neglecting to assert his right 
 cannot after four years come upon a fund in the hands of a sheriff against 
 subsequent creditors. 
 
 Lien of Junior Encumbrancer. — Allegheny Nat. Bank's Ap., 1871, 3 
 Leg. Op. 88, S. C. 19 Pitts. L. J. 74. A creditor who has two funds shall 
 not go against the one which is the exclusive resource of another debtor, 
 without subrogating the latter to t^e fund upon which his own lien was ex- 
 clusive. 
 
 Liens not Revived. — Grove v. Latshaw, 1846, 3 Barr, 141. Where part ' 
 of the purchase money of land is a bond given to be applied to discharging 
 the liens upon that land and the liens are not revived, the lien creditors can- 
 not claim the benefit of the bonds. 
 
 Lost Lien.— Gorton v. Stone, C. P. Luzerne, 1882, 1 Kulp, 245, S. C. 9 
 Luz. L. Reg. 289. Subrogation will not be allowed in favor of one who has 
 once had a lien on the fund he now seeks to charge and has lost it. 
 
 Lien Discharged. — Sheffy's Ap., 1881, lOut. 317. Where a lien has been 
 discharged by a debtor or one standing in his shoes, a subsequent lien cred- 
 itor cannot be subrogated to the rights of the one paid. 
 
 Mortgagee.— Clark's Est., 1883, 2 Ches. Co. R. 93. Upon .the distribu- 
 tion of an assigned estate, a bond is entitled to its share of the personal 
 property although it be accompanied by a mortgage, but when the property 
 hound by the mortgage is sold those creditors whose dividends have been 
 lessened by the dividend to the bond may be subrogated to the right of the 
 mortgage to the same extent after the latter has been fully satisfied. 
 
 Payment by Joint Debtor. — Ackerman's Ap., 1884, 10 Out. 1. Where 
 one of two debtors on a joint judgment note has paid his share and is fcrced 
 to pay the share of his associate he is entitled to .subrogation. 
 
 Payment by Plaintiff in Execution.— Forest Oil Co.'s Appeal, 1888, 3 
 Crum. 138. Subrogation to the rights of a plaintiff in a judgment or exe- 
 cution cannot be decreed in favor of a petitioner until the creditor has re- 
 ceived payment, and a tender of the debt interest and costs, accompanied 
 vrith a demand for an assignment of the security or writ, is not the equiva- 
 lent of paying which will entitle to subrogation. 
 
 Payment by Junior Lien Creditor.— Gratz v. Farmers' Bank, 1836, 5 
 W. 99. A junior lien creditor who pays off a prior lien is not entitled to 
 subrogation against the surety in the latter. 
 
 Payment by Assignee. — Robb's Ap., 1861, 5 Wr. 45. An assignee for 
 
ADJUSTMENT. 51 
 
 creditors -who pays off encumbrances for the benefit of his trust is entitled 
 to subrogation to the liens which he has discharged. 
 
 Prior Lien Creditors. — McGinnis' Ap., 1850, 4 H. 445. Subrogation 
 -will not be allowed where it conflicts with the rights of others. Therefore 
 one having a lien on one tract will not be subrogated to the rights of one 
 having a lien on two, when there are lien creditors on the other tract prior 
 to him. 
 
 Prior and Subsequent Liens.— Dunn v. Olney, 1850, 2 H. 219. A. has 
 a first lien against property No. 1 and B. a second lien. As to property No. 
 2 their positions are reversed. The purchasers of property No. 1 agree with 
 A. that if he will release his lien on No. 1, they will make his lien against 
 No. 2 as good as a first lien. No. 2 being sold and A. not getting payment 
 asked to be subrogated to B.'s judgment against No. 1. Held, not a pure 
 case of subrogation, but' owing to the agreement equity would be done by al- 
 lowing it. 
 
 Prior Creditor as Surety.— Worrall's Ap., 1862, 5 Wr. 524. A subse- 
 quent execution creditor will be subrogated to the rights of a prior creditor 
 when the latter is surety fbr the claim of the former. 
 
 Passing Fund.— Uniontowu Building Assoc. 's Ap., 1879, 11 N. 200. If 
 there is a reason why a prior judgment creditor should not pass one fund 
 and come upon a second he should be notified thereof or he will not thereby 
 lose his lien. 
 
 Partners.— Sterling v. Brightbill, 1836, 5 "W. 229. A creditor of a part- 
 ner whose property has been taken tor a partnership debt is not entitled to 
 subrogation against the other partner, unless it appears that the party whose 
 property was taken was at the time the creditor partner of the firm. 
 
 Purchase of Debt.— Foster v. Fox, 1842, 4 W. & S. 92. A purchaser of 
 a debt is entitled to all the creditor's securities. 
 
 Subsequent Against Prior Creditors.— Lathrop's Ap., 1845, 1 Barr, 
 512. One having a judgment against three obtained satisfaction from the 
 land of one. Held that the subsequent lien creditors of this one could be 
 subrogated to the rights of the prior judgment creditor. 
 
 Subsequent Liens.— Lloyd v. Galbraith, 1858, 8 C. 103. The right of 
 subrogation only prevails where both funds are in the hands of a common 
 debtor, or, if the funds belong to different persons, where the one not taken 
 is primarily liable : therefore if one of two tracts subject to a lien be con- 
 veyed, and afterwards another lien be entered against the tract remaining, 
 this lien creditor has no right to subrogation when the other makes his debt 
 out of this tract. 
 
 Subsequent Lien Creditor.— Delaware Canal Co.'s Ap., 1861, 2 Wr. 512. 
 The right of subrogation of a second lien creditor having a lien upon but one 
 of two funds of his debtor, exists against subsequent creditors of the debtor 
 as well as against the debtor himself. 
 
 Vendee.— Couser's Ap., 1881, 1 Penny. 128 ; S. C. 11 W. N. C. 220 ; 29 
 Pitts. L. J. 394. A judgment creditor who has obtained a second lien after 
 his vendor has conveyed one of two tracts bound by a first lien has no 
 claim to subrogation against the purchaser of the first tract. 
 
 F. Partners. 
 
 Act of 22 April, 1856.— Fulton's Ap., 1880, 14 N. 323. Act April 23, 
 1856, P. L. 534, authorizing courts to make decrees of subrogation does not 
 apply to cases of judgment against copartners. 
 
 Assignee of.— Swayne's Est., 1843, 1 Clark, 457, S. C. 3 Pa. L. J. 121. 
 The assignee for creditors of one partner is entitled to be subrogated to the 
 rights of partnership creditors who have received dividends out of the estate 
 
52 ADJUSTMENT. 
 
 in his hands upon a balance appearing of partnership funds after all the 
 partnership accounts have been settled. 
 
 Indemnified Partner. — Scott's Ap., 1878, 7 N. 173. A partner who has 
 gone out of the iirm and for a consideration has been- indemnified by the 
 other parties against firm debts, is entitled to subrogation against them 
 upon paying a debt of the firm. 
 
 Payment by Indemnified Partner.— McGee's Est., C. P. Dauphin, 1853, 
 1 Pears. 42. Where after the dissolution of a partnership one partner pays a 
 debt which at dissolution the other promised to pay. The first may be sub- 
 rogated against the second. 
 
 Separate and Firm Property. — Knouf's Ap., 1879, 10 N. 78. Subro- 
 gation will not be allowed where one fund is partnership property and the 
 other is the separate property of some of the partners. 
 
 Settled Account. — Fessler V. Hickernell, 1876, 1 N. 150. A partner 
 who has paid a firm debt is not entitled to subrogation until an account has 
 been settled. 
 
 Unsettled Account. — Singizer's Ap., 1857, 4 C. 480. There can be no 
 isubrogation by one partner to the rights of a creditor of the firm where the 
 accounts of the partners are unsettled. 
 
 O. Vendor and. Vendee. 
 
 Discharge of Judgment. — Miner's Trust Co. 1'. Wren, 1873, 1 Post. 241. 
 One purchasing property subject to a judgment which he afterwards dis- 
 charges, is not entitled to subrogation against other land of his vendor. 
 
 Ib.^-McGill {in re) 1847, 6 Barr, 504. A purchaser on. paying a judgment 
 against his vendor is not entitled to subrogation if he has given bonds for 
 the purchase money, because he can set up tlie payment as a defense to the 
 bonds. 
 
 Fraud by Vendee.— Bleakley's Ap., 1870, 16 S. 187. The vendee of land 
 under articles had a judgment entered against him. He then assigned the 
 articles, antedating the assignment in order to defeat the judgment. The 
 assignee paid the balance of the purchase money. The judgment creditor 
 then brought this- bill against the original vendor for specific performance. 
 The assignee resisted the bill on the ground that he should be subrogated 
 to the vendor's rights and not lose the balance he had paid. This was denied 
 on the ground that subrogation is a mere equity and will not be extended 
 to one implicated in fraud. 
 
 Grantees- Mortgage.— Beddow v. Dewitt, 1862, 7 Wr. 326. Where 
 there are two grantees of separate tracts of land covered by the same mort- 
 gage the first grantee's right to have the other satisfy the mortgage exists 
 only to the extent that he has given value, if part of' the purchase money 
 is unpaid he must contribute pro tanto toward discharging the lien. 
 
 Mortgagee. — Champlan i\ Williams, 1848, 9 Barr, 341. The purchaser 
 of a part of a tract of land under a parol contract, who pays off the mort- 
 gage on the whole to prevent a sale of his part, is entitled to be subrogated 
 to the rights of the mortgagee. 
 
 lb.— Fisher v. Clyde, 1841, 1 W. & S. 544. When mortgaged land is by 
 a division of a county divided and a purchaser of a part in one county pays 
 off the whole mortgage, he is entitled to be subrogated to the rights of the 
 mortgagee as to the other part and on scire facias in the other county recover 
 contribution to the amount of the proportionate value of that tract. 
 
 Purchase at Sheriff's Sale— Conditional Verdict. — McGuire «>. War- 
 ren, 1888, 4 C. P. Eep. 193. A purchaser at sheriff 's sale of real estate is en- 
 1 itled to be subrogated to the rights of the holder of a conditional judgment 
 in ejectment where the title of the plaintiff in the judgment is overreached 
 by the sheriff's sale. 
 
ADVANCEMENT — AFFIDAVIT. 53 
 
 ADVANCEBIEPfX. 
 
 . See Teusts, and Teustees. 
 
 ADVAXCES— FUTURE. 
 
 See MOETGAGE XII. 
 
 AFFIDAVIT. 
 
 I. In Geneeal. 
 
 II. Injunction Affidavits — See Injunction II, B (b) ; II, C (b). 
 III. Of Defense to sci. fa. Sue Moetgage — See Mortgage XVI, B (b.) 2. 
 
 I. In General. 
 
 Appointment of Receiver. — Keller v. Young, 1869, C. P. Lancaster, 1 
 Lan. Bar No. 52. The appointment of a receiver should only be made where 
 the plaintiff 's equities will entitle him to a dissolution, and it should never 
 be done before answer except upou affidavits establishing without a doubt the 
 facts set forth. 
 
 Citation of Trustee.— Millish's Est., 1850, 1 Pars. 482. A petition for a 
 citation against a trustee to settle his account must be verified on oath or 
 affirmation. 
 
 Corporation— Jurisdiction.— Buck Mt. Coal Co. v. Lehigh Coal Co., 1875, 
 2 W. N. C. 241, S. C. 8 Leg. Gaz. 15. The Supreme Court will not assume 
 original jurisdiction of a bill against a corporation unless there be presented 
 an affidavit setting forth the reasons why the bill was not filed in the proper 
 county court. 
 
 Costs.— Quay V. Quay, C. P. Chester 1880, 1 Ches. Co. Eep. 17, (or 489). 
 Equity costs may include witness fees at 62j cents a day, but not a charge 
 for drawing injunction affidavits. 
 
 lb.— M'Call V. Barrie, C. P. 1884, 15 W. N. C. 28. Drawing injunction 
 affidavits may be allowed as costs. 
 
 Decree of Payment — Judgment. — Freeman v. Huntzinger, C. P. 1881, 
 11 "W. N. C. 191. A decree in equity for the payment of money is within 
 the rule allowing judgment for want of an affidavit of defense. 
 
 Ex-Parte.— Pittsburgh's Ap., 1875, 29 S. 3l7. JEx parte affidavits are but 
 prima facie evidence and unless the Legislature expressly provides the contrary 
 are only used in deciding preliminary and temporary questions. 
 
 Injunction Bond. — Calhoun v. Monougahela Building Assoc, 1883, 8 Out. 
 392. The affidavit of defense law does not apply to a suit on a bond given 
 by an unsuccessful complainant iri equity on the granting of a preliminary 
 injunction. 
 
 lb.— Smith V. Harley, D. C. 1874, 1 W. N. C, 111. An injunction bond 
 is not within the affidavit of defense law. 
 
 Knowledge and Belief Sufficient— Mills v. Dillon, C. P. 1875, 2 W. N. 
 C. 198. A bill of discovery in aid of an execution is sufficiently sworn to il 
 the affidavit is in the form that the facts are true, "to the best of his knowl- 
 edge and belief." 
 
54 AFFIDAVIT — AMENDMENT. 
 
 Of Poverty— Unprinted Bill.— Snyder v. PuUinger, C. p. 1876, 2 W. N. 
 C. 463. An unprinted bill unsupported by an aflfldavit of poverty will be dis- 
 missed and will not be reinstated together with an injunction granted there- 
 on upon motion to that effect. 
 
 AGENT. 
 
 See Peincipal and Agent, 
 
 AMEXDED BILI.. 
 
 See Amendment. 
 
 AMENDMENT. 
 
 I. In General. 
 II. Of Pleadings. 
 III. Of Deoebes. 
 
 I. In General. 
 
 Certificate of Counsel— Injunction.— Dick's Ap., 1884, 10 Out. 589. A 
 bill which prays for an injunction to restrain the defendants from making 
 certain machinery, for discovery, and for «in account must be accompanied 
 with a certificate of counsel that there is no adequate remedy at law ; but it 
 is error for the court to refuse to allow such a certificate to be filed nunc pro 
 tunc by way of amendment though the case has been before a master. 
 
 Costs — Before Amendment Filed. — Eose v. Rose, 1852, 1 Phila. 365, S. 
 C. 9 Leg. Int. 102. It is not necessary in our practice to pay costs and fur- 
 nish an office copy to the opposite attorney before filing an amendment. 
 
 Costs— After Answer.— Porter v. English, C. P. 1850, 1 Phila. 85, S. C. 
 7 Leg. Int. 150. Where a complainant files an amendedbillafterthe answer 
 is in, he must pay the defendant the cost of his first answer, which may in- 
 clude compensation for the trouble of preparing it, but allowance will, be 
 made for prolixity. 
 
 Conditional Verdict — Insertion of Date.— Kensingem. Smith, 1880, 13 
 N. 384. The Supreme Court may amend a judgment on a conditional verdict 
 Avhich has omitted to name a day of payment by inserting a date. 
 
 Discretion in all Cases. — Mattes v. Ruth, C. P. Luzerne, 1878, 7 Luz. L. 
 Reg. 228. An equity court may permit amendments in all pleadings accord- 
 ing to its discretion. 
 
 II. Of Pleading:s. 
 
 Account Stated Pleaded.— Cruise v. Walker, C. p. 1867, 24 Leg. Int. 
 141, S. C. 6 Phila. 294. Where a bill is filed for a general account and an 
 account stated is pleaded, the complainant cannot go on with his case with- 
 out first amending so as to assign specific errors in the account. 
 
 After Replication.— Richmond Twp. v. Thompson, C. P. Berks, 1866, 2 
 Woodw. Dec. 345. After replication filed an amendment to a bill will only 
 be allowed when supported by affidavit that it is not made for purposes of 
 
AMENDMEN'T. 55 
 
 delay and that the proposed matter of amendmentcould not, with reasonable 
 diligence, have been sooner introduced. 
 
 lb.— City V. Schuylkill R. R., C. P. 1884, 15 W. N. C. 364. A bill having 
 lieen filed to restrain defendants from obstructing the highways of the city 
 with a railroad, an amendment was allowed after replication adding prayer 
 that they be restrained from building a bridge which would obstruct navi- 
 gation. 
 
 After Witness Examined. — Brotzman v. Brotzman, 1887, 4 Lane. Law 
 Jlev. 266. Tlie amendment of a bill in equity after witnesseshave been exam- 
 ined, will be permitted only under very special circumstances. 
 
 After Examiner Appointed.— O'Malley v. O'Malley, C. P. 1881, 11 W. 
 X. C. 39. An amendment in a material part of a bill refused after three 
 years the case being before an examiner. 
 
 After Testimony Before Master. — Dougherty v. Murphy, 1873, 1 Fost. 
 305, S. C. 30, Leg. Int. 312, 10 Phila. 509. A bill in equity cannot be 
 amended afbir the testimony has begun to be taken before, a master. 
 
 After Second Eeport by Master.— Iredell v. Klemm, c. P. 1886, 17 W. 
 N. C. 426. An amendment allowed to a bill after a second report by amaster, 
 it appearing that the new matter only came to the knovtledge of the com- 
 plainant through the defendant's testimony. 
 
 Alternative Prayers.— Wilhelm's Ap., 1875, 29 S. 120. An original bill 
 set forth the title of a tract and prayed for an account of ores taken from that 
 held by tenancy in common between plaintiff'and defendant. The bill was 
 amended by averring that ore bad been mined outside the limits of the tract, 
 claimed in the first bill and asking the court, 'if they found that this outside 
 tract was included in the tenancy in common, to decree an account for the 
 whole, otherwise for the original tract. Held, (1) That it was a proper amend-^ 
 ment. (2) That such an alternative prayer (not inconsistent) was good. (3) 
 That the title being necessarily involved would be determined by equity. 
 
 Answer After Master Appointed. — ^Williams v. Snyder, C. P. Luzerne, 
 1>*75, 4 Lnz. L. Eeg. 273. An application to amend an answer refused when 
 made four years after the answer was filed, and touching matters concerning 
 which in the original answer he had refused to furnish information, the case 
 in the meantime having gone to a master who had finished his report. 
 
 Answer After Proofs. — McDaniels v. Cutler, 3 Brews. An answer may 
 be amended after proofs taken. 
 
 Before Answer.— Hays v. Dicken, C. P. Allegheny, 1880, 2 Sch. L. R. 191, 
 S. C. 28 Pitts. L. J. 180. Before answer filed bills may be amended as of 
 course. 
 
 Certificate of Counsel.— Thomas v. Hall, C. P. Dauphin, 1869, 2 Pears. 
 64. Under Act October 13, 1840, a bill in equity should be accompanied 
 with the certificate of counsel that there is no adequate remsdy at law, but 
 the certificate may be allowed after demurrer. 
 
 Demurrer to Amended Bill After Answer. — Evans v. Dunning, D. C. 
 1859, 16 Leg. Int. 172, S. C. 3 Phila. 410. A defendant who has answered 
 cannot upon an amended bill being filed demur generally. 
 ■ Ex-Parte — Amendment Before Replication.— Chambers v. Waterman, 
 N. P. 1870, 1 Camp. 60, S. C. 2 Leg. Gaz. 129. Where an amendment has 
 been allowed ex-parte after answer but before replication filed, the court will 
 on motion of the defendant reconsider the question whether such motion 
 should have been allowed. 
 
 Finding of Facts not Alleged. — Gamer's Ap., 1879, 1 Sch. L. R. 1. 
 Where the facts found by a master are different from those alleged in the bill, 
 the latter should be amended in the lower court. 
 
 General Demurrer. — Bank of United States v. Biddle, 1844, 2 Pars. 31. 
 A general demurrer to a bill partly good must fall. But the court may al- 
 low it to be amended by narrowing it. 
 
56 AMENDMENT. 
 
 MultiferiousneSS.— Meyer v. Young, C. P. 1878, 7 W. N. C. 60. A bill 
 prayed that defendant be enjoined from closing up an alley by building on it, 
 after a preliminary inj unction had been granted, the bill was amended by 
 setting forth that the foundation of the wall of the building was half on com- 
 plainants land but that the wall itself was not a party wall and had win- 
 dows in it, and prayed that it be made a party wall ; on demurrer it was held 
 that the bill as amended was not multiferious. 
 
 Names of Creditors. — Aultman's Ap., 1881, 2 Out. 505. Wherean orig- 
 inal bill against the stockholders of a corporation is by one who avers that 
 he, together with others whom he represents, is the sole creditor, an amended 
 bill setting forth the names of all these creditors and averring that they 
 are stockholder of the corporation who have paid it debts, is rightly allowed. 
 
 New Matter. — Bergner «. Commercial Exchange, C. P. 1882, 39 Leg. Int. 
 478, S. C. 15 Phila. 247. An amendment to a bill in equity will not be al- 
 lowed where it brings in matter independent of and distinct from the origi- 
 nal bill. 
 
 lb. — Supplemental Bill. — Bank of Kentucky v. Schuylkill Bank, 1846, 1 
 Pars. 180, S. C. 5 Pa. L. J. 251. New matter arising since the filing of a bill 
 must be introduced by supplemental bill, if added by way of amendment it is 
 demurrable. A supplemental bill can only be filed when the original could 
 support a decree, but this point must be taken by demurrer. 
 
 lb. — ^Answer After Argument. — Vollmer v. Schuylkill Elver East Side 
 E. E., C. P. 1886, 43 Leg. Int. 66, S. C. 1 Pa. Co. C. E. 301. An answer cannot 
 be amended after argument where the amendment introduces new and ma- 
 terial averments of facts. 
 
 lb.— Trust— Statute of Limitation.— Miller v. Sealer, 1882, 4 Out. 583. 
 "Where a suit is brought to enforce a resulting trust as to one lot within five 
 years of the discovery of the fraud, it cannot be so amended, after the five 
 years has run, as to include another lot. 
 
 New Party — Service on. — Spangler's Ap., 1870, 14 S. 387. Complain- 
 ant, learning from the answer that respondent was acting for another party, 
 moved to amend by making this person a party. This was allowed by the 
 court, and a replication ordered to be filed nunc pro tunc, and the injunction 
 granted, the new party not having been legally served. Held this was ir- 
 regular. 
 
 New Parties — Statute of Limitation— Creditors' Bill.— Evan's Ap., 
 1876, 31 S. 278, aft'g. 1 "W. N. C. 127. Where new parties, are added to a 
 bill by amendment, as regards the statute of limitations they are to be con- 
 sidered as beginning their action at the time of the amendment, except in 
 the case of creditor's bills filed for ' ' themselves and others who may come in. ' ' 
 
 lb.— After Six Years.— Harrison v. St. Marks Church, C. P. 1884, 14 W. 
 N. C 387, S. C 41 Leg. Int. 44. An amendment of new parties plaintiff to 
 a bill allowed after the defendant had, for six years, acquiesced in a prelimi- 
 nary injunction, and was moving to have the case finally disposed of. 
 
 lb. — Trustee. — Stevenson v. Matthews, 1848, 9 Barr, 316. After a judg- 
 ment against a trust fund has been reversed for want of proper parties, it is 
 proper (owing to our equitable principles) to allow the trustee to be made a 
 party defendant by amendment. 
 
 On Appeal. — Darlington's Ap., 1878, 5 N. 512. A bill may be amended 
 when before the Supreme Court if it has substance to amend by and is only 
 defective in form. 
 
 Preliminary Lijunction— Error in Bill for.— Packer v. Sunbury E. R., 
 1852, 7 H. 211. An error in a bill which is amendable does not prevent a 
 preliminary injunction being awarded. 
 
 Relief Other than Prayed for— Woods v. McMillan, O. C. Allegheny 
 1885, 32 Pitta. L. J. 363. Where the evidence shows a ground for relief dil- 
 ferent from thai alleged in the bill, the proper practice is to amend the bill, 
 otherwise the relief cannot be granted. 
 
AMENDMENT. 57 
 
 Second Amendment.— Liberman v. Liberman, C. P. 1886, 43 Leg.Int. 128. 
 A partnership bill charging fraud generally, which after amendment is eva- 
 sive and uncertain in its charges, will be dismissed without further oppor- 
 tunity to amend. 
 
 Specific Performance— Date of Contract.— Fetterling's Est., c. P. Berks 
 1864, 1 Woodw. Dec. 169. "^here a petition for specific performance in the 
 orphans' court omits to state the date of the contract, if the latter is fixed by 
 the testimony it may be added by amendment. 
 
 lb.— Bill Defective in Form.— Chess' Ap., 1846, 4 Barr, 52. A petition 
 praying for a decree of specific performance of a contract for the purchase of 
 land should state either that the petitioner has performed the agieement on 
 his part or that he is willing and ready to perform it, but an omission to 
 make such an allegation is a defect in form merely, and may be amended. 
 
 Supplemental Bill after Decree — ^Notice. — McMillan v. Hawthorn, c. 
 P. Allegheny 1882, 30 Pitts. L. J. 278. Whenever a bill in the nature of a 
 supplemental bill or amendment is filed after a decree, it should only be af- 
 ter notice and cause shown, but the court may keep the bill when so im- 
 properly filed and upon notice being given leave will be granted to regularly 
 file the bill. 
 
 Time Allowed after Demurrer.; — Osborne v. Hollenback, C. P. Luzerne 
 1884, 13 Luz. L. Eeg. 275. Where a demurrer has been sustained with leave 
 granted complainant to amend within a certain time, which he neglects to 
 do, the defendant's right to a formal decree dismissing the bill is complete. 
 
 To Use.— Siebert v. Siebert, C. P. 1868, 1 Brews. 531. A suit in equity 
 should not be brought "to use," but this defect is amendable. 
 
 Withdrawal of Answer after Master Appointed. — Pancoast?). Reeves, 
 C. P. 1870, 27 Leg. Int. 188, S. C. 7 Phila. 383. A defendant will not be al- 
 lowed to withdraw his answer and demur after the case has been before a 
 master many years. 
 
 III. Of Decrees. 
 
 Accidental Omission.— Torrenstein v. Biembaum, C. p. 1880, 8 W. N. 
 C. 301. An amendment to a decree will always be allowed if a clause which 
 would have been inserted as a matter of course if asked for at the hearing 
 has been omitted. 
 
 Before Decision Recorded.— Wray v. Hazlatt, 1866, 1 Brews. 295, S. C. 
 23, Leg. Int. 340, 6 Phila. 155. The court may allow an amendment to a bill 
 which has been demurred to after the decision of the court sustaining the de- 
 murrer has been announced, but before the entry is made on the record. 
 
 Decree Pro-Confesso — ^Amended Bill — Costs.— Salad a «. School Direct- 
 ors, 1870, 2 Pears. 51. Where a defendant allows a decree to be entered 
 against him, pro confesso, on an amended bill, the court will look into the 
 original bill and the master's report thereon in order to make the decree, and 
 also the defendant will be charged all costs arising since the amendment. 
 
 Former Decree — Technicality in . — Merrick's Est., 1841, 2 Ash. 485. 
 Equity will not award a fund in its control to an agent, if such action would 
 be in opposition to the rights of the principal, even though a former decree 
 had awarded the fund to the agent. For if through a technicality it had not 
 awarded it to him as agent, the court would open and amend the decree. 
 
 Surplusage.— Danville E.R.'s. Ap., 1876, 38 S. 326. A decree entered in 
 the court below directing the defendant " or Kase " (the president of the 
 company defendant) to pay a certain sum is erroneous on its face and will be 
 amended by striking out the words "or Kase" as surplusage. 
 
 Without Prejudice.— Weigley v. Coffman, 1888, 23 W. N. C. 37. A judg- 
 ment on a demurrer declaring that the common pleas has no jurisdiction of 
 the cause, will not be altered even after the orphans' court has decided that 
 it likewise had no jurisdiction, by adding the words to the original decree, 
 "vrithout prejudice." 
 
58 ANCIENT LIGHTS — ANSWER. 
 
 AniCIENX LIGHTS. 
 
 See Injunction I, U. 
 
 ANSWER. 
 
 Admissions of Fact with Denial of Indebtedness.— Koons v. Bute; C. 
 P., 1856, 13 Leg. Int. 317, S. C. 2 Phila. 170. Where an answer admits 
 facts wh'icli show the defendant to he an accounting party, a positive denial 
 flf indebtedness will not prevent a decree to account. 
 
 Admissions in as Evidence after Replication.— Hengst's Ap., 1855, 
 12 H. 413. The filing of a replication precludes respondent from using his 
 answer as evidence, but the complainant may make use of any admissions 
 contained therein, provided he read the wJiole passage. 
 
 Admitting Agreement. — Houser v. Lamont, 1867, 5 S. 311. Equity 
 will specifically enforce a contract within the statute of frauds where it is 
 admitted in the answer. 
 
 Allegations Must be Answered. — Steinman v. Lancaster, C. F. Lan- 
 caster, 1870, 2 Lan. Bar. No. 24. A defendant in equity must answer tht 
 allegations of the bill ; he cannot avoid it by stating that they may be true 
 for anything he knows. 
 
 lb.— Davis' Est., O. C. 1880, 9 "W. N. C. 380. An answer must answer 
 by confession and avoidance or by traverse all material allegations of a bill, 
 and not only as to knowledge and information but also on belief. 
 
 Bill of Discovery— Fraud.— Bonn v. Bebee, D. C. 1859, 16 Leg. Int. 292, 
 S. C. 3 Phila. 446. Where a defendant in an action at law files a bill for 
 discovery, he is entitled to full answers although they disclose his oppo- 
 nent's case. 
 
 Criminating Testimony. — Bank of United States v. Biddle, 1844, 2 
 Pars. 31. A party in equity need not answer any question which tends to 
 criminate him, but he must answer the other questions that are not open to 
 that objection. 
 
 Costs after Amended Bill.— Porter v. English, 1850, 1 Phila. 85, S. C. 7 
 Leg. Int. 150. Where a complainant files an amended hill after the answer 
 is in, he must pay the defendant the cost of the first answer, which may in- 
 clude compensation for preparing it, hut allowance will be made for pro- 
 lixity. 
 
 Contradictory Testimony. — Spencer's Ap., 1876, 30 S. 317. A respond-, 
 ent who answered that he had received a deed, said in his oral testimony 
 that he could not say that he had ever had a deed. Held that his own tes- 
 timony overthrew his answer. 
 
 Contradictory Answer.— Baker v. Williamson, 1846, 4 Barr, 456. If 
 an answer in chancery is contradictory in itself or contrary to the well-es- 
 tablished analogies of social life, or a departure from moral axioms of belief, 
 the chancellor is not bound to believe it though not contradicted by two dis- 
 interested witnesses. 
 
 Considered Iiyunction Affidavit.— Warren R. R. i. Clarion Land Go., 
 1867, 4 S. 28. An injunction may be applied for at any time before final 
 decree, and the answer is then considered as the respondent's affidavit. 
 
 Costs in Bill of Discovery.— Tenor v. Hutton, 1850, 1 Phila. 50, S. C. 7 
 Leg. Int. 50. The court struck from the taxation of costs an allowance to 
 tlefendant for his answer to a bill of discover}'. 
 
 Conclusive in Absence of Testimony.— Peacock v. Chambers, 1863, 3 
 
ANSWER. 59 
 
 Gr. 398. An answer that is responsive is conclusive as to the facts in the ab- 
 sence of opposing testimony. 
 
 Conclusive although Fraud Alleged.— Audenried v. Walker, c. P., 
 1876, 8 Leg. Gaz. 60, S. C. 33 Leg. Int. 82, 11 Phila. 183. The conclusive effect 
 of an answer in equity is the same though fraud is the gist of the bill. 
 
 Counter Affidavits— Puipresture.— Philadelphia v. Crump, 1866, 1 
 Brews. 320. A bill to restrain a puipresture can be filed by a municipal 
 corporation or a private individual, but a preliminary inj unction will not be 
 granted unless the right is clear. It being a case of nuisance, affidavits 
 counter to the answer may be read. 
 
 Demurrer.— Reading v. Maurer, 1889. 4 Pa. Co. C. Rep. 282. A defend- 
 ant in equity may not answer and demur to the whole bill. 
 
 lb.— Overruled.— Thomas v. Boswell, C. P. 1880, 37 Leg. Int. 147, S. C. 
 
 14 Phila. 197. Where there is a general demurrer and an answer in whole 
 or in part the latter overrules the former pro lanto. 
 
 Discrepancy in Date. — Burke's Ap., 1882, 3 Out. 350. Where an an^ 
 swer alleges that a certain transaction was made "early in 1879 or therea- 
 bouts." and the respondent's own witnesses afterwards proved that it was 
 early in the fall of 1878, lield that there was no fatal discrepancy. 
 
 Denial of Agreement — Sheriff's Sale. — McCarthur v. Ashmead, 1868, 
 2 Brews. 533, aff. 17 Sm. 326. Where a purchaser at sheriff's sale has agreed 
 to take subject to a mortgage which would othei'wise be discharged, and has 
 thereby obtained the property at a cheap price, he will be restrained from 
 parting with the property until the validity of that mortgage is tested, al- 
 though he denies the agreement in his answer. 
 
 Defendant Cannot Plead Ignorance.— Painter v. Harding, D. C, 1858, 
 
 15 Leg. Int. 140, S. C. 3 Phila. 144. A defendant in a bill of discovery can- 
 not escape from answering by saying he has no knowledge of the subject. 
 He must answer to the best of his knowledge, information and belief. 
 
 Defendant Contradicting His Own Testimony. — Smith v. Spencer, 
 1876, 2 W. N. C. 515. If a defendant in his testimony contradict his an- 
 swer he destroys its effect as evidence. 
 
 Denial of Facts and New Facts Alleged.— Paul v. Carver, 1855, 12 H. 
 207. Where an answer disputes the fact set up in a bill and avers other 
 facts, the latter stand as true unless contradicted. 
 
 Denying Facts but Asserting Title.— Burke's Ap., 1882, 3 Out. 350. 
 Where a bill alleges that the defendant holds certain securities in a certain 
 way, an answer denying the bill and setting up the title under which he 
 tloes hold them, is responsive. Anything less in the answer would make it 
 deficieilt. 
 
 Denial of Knowledge— Effect of.— Buchanan v. Noel, C. P. 1878, 35 
 Leg. Int. .490, S. C. 12 Phila. 431. Where a bill charges that a mortgage 
 held by defendant is a forgery, and the answer denies all knowledge of the 
 fact except as received from complainant, the facts of the bill will not be 
 considered to have been admitted. 
 
 Denial of Allegations.— Milton's Ap., 1883, 7 Out. 286. Where an an- 
 swer denies the allegations of the bill, relief will not be granted on the evi- 
 dence of one witness for the plaintiff. 
 
 Denial of Agreement.— Erie R. R. Co.'s Ap., 1883, 3 Penny. 164. 
 Where a bill in equity set forth "an express agreement officially in writ- 
 ing" made between complainant and the agent of the defendant, and the 
 latter denied in his answer that the agent "entered inter an express agree- 
 ment officially in writing, it was lield that there was no ground for the ap- 
 plication of the rule requiring two witnesses to overcome the answer. 
 
 Denial of Allegations— Several Suits Pending .-Hammond?). Weidow, 
 C. P. Luzerne, 1878, 8 Luz. L. Reg. 70, S. C. 1 L. T. N. S. 67. An injunc- 
 tion will be dissolved where the answer fully denies the allegations of fraud, 
 
60 ANSWER. 
 
 although there are several suits pending at law, it not being shown that 
 they were vexatious or malicious. 
 
 Denial of Trust— Protection from Discovery.— Perry d. Kinley, C. P., 
 1854, 11 Leg. Int. 107, S. C. 1 Phila. 505 ; 5 Clark, 326 ; 3 Amer. L. Reg. 
 182. A defendant by denying the existence of a trust by answer is as much 
 protected from discovery as though he had put in a plea ; and the fact that 
 he has answered some of the interrogatories more fully than was necessary 
 does not deprive him of the benefit of this rule. 
 
 Decree although Answer Responsive. — Eessler v. Witmer, C. P. 
 Dauphin, 1860, 1 Pears. 174. Where the court is satisfied with the truth of 
 a bill it may decree in favor of complainant although the answer is respon- 
 sive, is a direct denial and has not been impeached by direct evidence. 
 
 Dismissal of Exceptions. — Mcllvain v. Marlcet Co., C. P., 1875, 2W. 
 N. C. 208, S. C. 32 Leg. Int. 464, 10 Phila. 371. Where a bill and a cross bill 
 taken together contain all that is necessary to the decision of the cause ex- 
 ceptions to the answer as being insufSoient will be dismissed. 
 
 Doubtful Conclusions — ^Fraud. — Diller v. Rosenthal, C. P. Luzerne, 
 1876, 6 Luz. L. Reg. 33. Where a bill charges fraud a preliminary injunction 
 will not be dissolved upon the filing of an answer which leaves the matter 
 in doubt. 
 
 Demurrer and Answer. — Moyer v. Livingood, C. P. Berks, 1870, 2 
 Woodw. Dec. 317. Where a bill is both demurred to and answered the 
 complainant's rights go no further than to join in the demurrer and set it 
 down for argument. 
 
 Evidence in Support of BiU. — Hodges v. Laurel Run Lodge. C. P. Lu- 
 zerne, 1884, 2 Kulp, 358, S. C. 12 Luz. L. Reg. 190. Where the only evi- 
 dence in support of a bill is that of the complainant, it is not sufficient to 
 establish the bill against an answer denying the facts. 
 
 Foreign Attacliment — ^Formal Answer.— Stewart r. Pamell, 1S89, 46 
 Leg. Int. 132. Under act of May 23, 1887, to provide for the institution of 
 proceedings in equity by process of foreign attachment, a mere formal an- 
 swer to the bill is insufficient ; the complainant must show conclusively that 
 her denial of the complaint is the answer required by the writ. 
 
 Fraud — Enjoining Execution. — Hopkinson v. Mortimer, D. C , 1874, 1 
 W. N. C. 139. Where a bill charges very grave fraud in obtaining a judg- 
 ment, execution thereon will be enjoined by a preliminary injunction unless 
 the answer of the defendant is explicit in denial and shows how the debt 
 was contracted. 
 
 Hearing on Bill and Answer.— Philadelphia's Ap., 1875, 28 S. 33. 
 Where a case is heard on bill and answer the allegations of fact in the an- 
 swer are taken as admitted. 
 
 lb.— Thomas ,-. Ellmaker, 1844, 1 Pars. 98, S. C. 1 Clark, 502, 3 Pa. L. 
 J. 191. When a, case is set down for hearing on bill and answer without 
 more, the answer is taken as admitted. 
 
 Iqjunction Affidavit.— Dreydoppel v. Young, C. P., 1880, 1 Sch. L. R. 
 322, S. C. 37 Leg. Int. 397, 14 Phila. 226. A preliminary injunction will not 
 necessarily be dissolved on an answer being filed. As regards the injunction 
 the answer is but an affidavit, and counter affidavits may be filed. 
 
 lb.— Deschamps ». -Second St. R. R., C. P., 1858. 15 Leg. Int. 371, S. C. 
 3 Phila. 279. An answer filed upon notice for a specific injunction will be 
 treated as an affidavit. 
 
 Interrogatories. — Eherly u. Groff, 1853, 9 H. 251. Interrogatories 
 founded on matter contained in the charging part of the bill becomes part of 
 it and must be answered. And answers to them are only evidence when 
 iesponsive. 
 
 laformation and Belief —Bougheri>. Conn, C, P., 1885, 42 Leg. Int. 520. 
 
ANSWER. 61 
 
 An answer iu equity " upon best information and belief" is not within the 
 rule requiring two witnesses to overcome it. 
 
 Improbable Matter.— Hartley's Ap., 188:!, 7 Out. 3:!. An answer that 
 is responsive is evidence although the allegations therein made are highly 
 improbable. 
 
 InsufS.cient Answer— Costs.— Myers v. Kingston Coal Co., C. p. Lu- 
 zerne, 1884, 13 Luz. L. Reg. 271. Where the report of a master that an an- 
 swer is insufficient is submitted to by the defendant, the costs of the refer- 
 ence will be imposed on him. 
 
 Joint Answer.— Power v. Bank, C. P., 1876, 2 W. N. C. 242. A joint 
 answer filed by a corporation and an individual, both defendants, in the 
 third person and not signed by the individual, will stand as to the corpora- 
 tion, but the other jvill be ordered to file a separate answer. 
 
 Joint Defendants— Evidence.— Larkin's Ap., 1861, 2 Wr. 457, revg. 17 
 Leg. Int. 229, 4 Phila. 95. A separate answer of one of the defendants iu 
 equity is not evidence for the others. 
 
 lb. — Eckman v. Eckman, 1867, 5 S. 269. Where one defendant in equity 
 claims through his co-defendant, the answer of the latter is evidence against 
 the former, and the same rule applies to joint tenants, but not to tenants in 
 common. 
 
 Jurisdiction— Criminating Evidence. — Phila. v. Key.ser, C. P., 1873, 
 5 Leg. Graz. 165, S. C. 30 Leg. Int. 168, 10 Phila. 50. It is no objection to equi- 
 table jurisdiction where fraud is charged and discovery prayed for, that the 
 defendant may criminate himself, unless an indictment is actually pending, 
 or at least that there is reasonable probability that one will be preferred. 
 
 Liability to Produce Books and Papers. — Reed v. Stevenson, C. P., 
 1878, 6 W. N. C. 173, S. C. 35 Leg. Int. 310, 12 Phila. 536. A defendant in 
 equity cannot free himself of the liability to produce books and papers be- 
 fore hearing, on a motion to that effect, by setting forth in his answer long 
 extracts therefrom. 
 
 May Answer and Plead to Same Facts. — Huston v. Sellers, C. P., 
 1878, 35 Leg. Int. 262, S. C. 12 Phila. 520. A defendant may now answer 
 to the same facts as those to which he files a plea without overruling the 
 latter. 
 
 Must be FuU.— McFillin r. Bank, C. P., 1871, 1 Camp. 309, S. C. 3 Leg. 
 Gaz. 360. If a defendant answers when he might have demurred he must 
 answer fully. 
 
 Material Facts Must be Denied. — Delaware Canal Co. v. School Dis- 
 trict, C. P. Luzerne, 1878, 7 Luz. L. Reg. 107, S. C. 2 L. T. N. S. 1, 33 Leg. 
 Int. 349, 11 Phila. 587. A motion to dissolve a preliminary injunction will 
 not be successful unless the answer and affidavits deny every material fact 
 of the bill. 
 
 lb.— Moyer v. Livingood, C. P. Berks, 1870, 2 Woodw. Dec. 317. A de- 
 fendant need not answer explicitly every detail in the bill, if he answer to 
 all material allegations in full and in form as prescribed by the rules it is 
 sufficient. 
 
 Not Aware of Possessing Papers.— Werne v. Berner, D. C, 1854, 11 
 Leg. Int. 78, S. C. 1 Phila. 482. A formal interrogatory as to books and pa- 
 pers cannot be met with an answer that the respondent is not aware of having 
 at present any books and papers iu his possession or control which are ma- 
 terial to complainant's case or which do not relate exclusively to the proof 
 in Ms own case. 
 
 Preliminary Injunction — Counter Affidavits. — Barrett v. Working- 
 men's Building Assoc, C. P. Luzerne, 1878, 7 Luz. L. Reg. 143. On a mo- 
 tion to dissolve a preliminary inj unction, if the allegations of the answer are 
 re.sponsive to the bill they must prevail, although counter affidavits may be 
 read. 
 
62 ANSWER. 
 
 lb. — Lessig r. Langton. 1850, Bright. 191. Where a defendant has filed 
 his answer before the motion for a preliminary injunction is heard, there can 
 be no counter affidavits except in cases of waste and some cases of account 
 between partners ; but if he resist the motion by affidavits, his answer not 
 being in, the case is different. 
 
 Responsive. — Socher's Ap., 1883, 8 Out. 609. An answer based upon in- 
 formation only, or denying knowledge of the lacts alleged in the bill, is not 
 responsive in the sense that it is evidence requiring two witnesses to over- 
 throw it. 
 
 lb. — Everhart's Ap. , 1884, 10 Out. 349. An answer which is not directly 
 responsive, but which disputes the legal effect of the facts set up without 
 denying tliem, is not within the rule requiring two witnesses to overthrow 
 it. 
 
 lb. — Gleghorne v. Gleghorne, 1888, 3 Crum. 382. A bill in equity was filed 
 by a'vrife against her husband to recover money expended by her to aid iu 
 the erection of a dwelling for their home upon real estate purchased by him. 
 The answer averring that the money was given with no agreement or under- 
 standing that it was to be repaid, returned or secured was held to be respon- 
 sive to the bill. 
 
 lb.— Kenney's Appeal, 1888, 22 W. N. C. 89. A bill in equity was filed 
 to restrain a lessee from removing improvements made by him to the leased 
 property. The answer admitting the lease, but setting up a distinct oral 
 agreement giving him such authority was not responsive to the bill. 
 
 lb.— When not— Burden of Proof.— Pusey v. Wright, 1858, 7 C. 387. 
 The rule that the burden of proof rests with the affirmative applies to equity 
 as well as law ; therefore, facts set up in an answer not resj)onsive to the bill 
 must be proved. The answer is only evidence when responsive. 
 
 lb. — Injunction Dissolved. — Noble v. Becker, 1869, 3 Brews. 550. 
 Where an answer has been filed which is responsive to the bill and denies 
 its material facts, a motion to dissolve a preliminary injunction will be 
 granted. 
 
 lb.— Petition for Review.- Cremer's Est., O. C, 1S79, 36 Leg. Int. 286, 
 S. C. 13 Phila. 253. An answer to a petition for a review if responsive 
 will be taken as verity until overcome by evidence. 
 
 lb.— How Overcome. — Kennedy V. Wentz, C. P. Luzerne, 1882, 1 Kulp, 
 428, S. C. 10 Lnz. L. Eeg. 229. Where an answer is responsive to the bill 
 it can only be overthrown by the testimony of two witnesses, or by that of 
 one witness sustained by strong corroborating circumstances. 
 ', lb.— Painter v. Harding, D. C, 1859, 16 Leg. Int. 300, S. C. 3 Phila. 449. 
 An answer if responsive must be contradicted by two witnesses, or circum- 
 stances in evidence equivalent thereto. 
 
 lb. — Rowley's Ap., 1886, 5 Am. 150. Where a bill alleged that complain- 
 ants' rights as a corporator were denied . and the answer denied his right and set 
 up that although a subscriber and corporator his subscription was for the 
 benefit of one of the defendants. It was held (1) that the answer was re- 
 sponsive, and (2) that it was overcome by the testimony of the complainant 
 and the statement, acknowledgment and affidavit upon which the charter 
 was issued. 
 
 Kemembrance and Belief.— Spering's Ap., 1869, 10 S. 199. A defend- 
 ant who has in his answer stated positively a fact may state a circumstance 
 connected therewith according to his remembrance and belief. 
 
 Replication.— Naglee's Est., 1866, 2 S. 154. A replication puts in issue 
 the averments of the answer and throws upon the respondent the burden of 
 proving them. 
 
 Specific Performance— Statute of Frauds.— Parrish v. Koons, 1844, 1 
 Pars. 78. Specific performance of a contract for the sale of land will not be 
 decreed where the only writing in the case is vague and uncertain, and was 
 
ANSWEE — APPEAL. 63 
 
 si^ed by an agent for one of the parties whose authority was not in writing. 
 The plaintiff cannot in such a case rely on the defendant's answer as satisfy- 
 ing the statute of frauds. 
 
 Traversing Material Allegations Sufficient.— Johnson t\ Kier, 1870, 3 
 Pitts. R. 204, S. C. 17 Pitts. L. J. 204. If an answer traverses specifically the 
 material allegations of a bill no preliminary injunction will issue. 
 
 When Overcome — Complainants' Testimony.— Campbell v. Patterson, 
 1880, 14 N. 447. Equity will not rescind an executed contract, where tlie 
 answer denies the material facts of the bill, and the only testimony to over- 
 tjirow the answer is that of the complainants. 
 
 Whole Case May be Set Forth.— Parkhurst v. Devine, D. C. 1854, 11 
 Leg. Int. 83, S. C. 1 Phila. 486. A respondent is entitled to set forth his 
 whole case in his answer and may not only traverse, but also confess and 
 avoid complainant's case. 
 
 lb. — Cresson's Ap., 1879, 10 N. 168. An answerto a bill averring a part- 
 nership and praying an .account, setting forth that it was agreed that the re- 
 spondent should have a weekly salary and that he had drawn that salary from 
 time to time with the complainant's consent is responsive to the hill. 
 
 lb. — Eaton's App., 1870, 16 S. 483. An answer must be responsive. The 
 defendant is called on to be a witness only as to the facts set forth in the bill. 
 But if the bill set forth only part of a contract or a contract not the true one, 
 the respondent can set forth the true contract in his answer. Therefore, 
 where a bill stated that complainant and each defendant owned a third in a 
 partnership, it is proper for an answer to set out that plaintiff owned two- 
 ninths, one defendant three-ninths and the other four-ninths. 
 
 Withdrawal of. — Eauschmeyerv. Scranton Bank, C.P. Lackawanna 1879, 
 1 C. P. Rep. 17, S. C. Lack. L. Rev. 365. A defendant will not be permitted 
 to withdraw an answer and file a plea raising the same points, merely because 
 he wants to escape having the evidence in the cause taken. 
 
 lb.— Pancoast v. Reeves, C. P. 1870, 27 Leg. Int. 188, S. C. 7 Phila. 383. 
 A- defendant will not be allowed to withdraw his answer and demur after the 
 case has been before a master many years. 
 
 ANTE-PflTPTIAL SETTLEMENT, 
 
 See Husband and Wipe, III. 
 
 APPEAL. 
 
 I. Natuke of. 
 
 II. In What Cases Allowed. 
 III. How Taken. 
 
 I. Nature Of. 
 
 Affirmation of Decree by Supreme Court. — Paxson's Ap., 1884, 10 Out. 
 429. The fact that the Supreme Court on appeal affirms a decree for a pre- 
 liminary injunction does not in any manner bind them as a precedent in de- 
 ciding the case finally on its merits. 
 
 Decision of Case at Time of. — New Boston Coal Co. V. Pottsville Water 
 Co., 1867, 4 S. 164. On appeal from a decree granting a preliminary injunc- 
 tion, the case is to be considered exactly as it stood when the decree was 
 made. 
 
64 APPEAL. 
 
 lb. — Lyon's Ap., 1869, 11 S 15. An appeal from a preliminary injunction 
 must be decided on the state of the case at the time the injunction was 
 granted. 
 
 Supersedeas.— Brooke v. Underkoffer, C. P. 1875, 1 W. N. C. 480. An 
 appeal in equity is a supersedeas although not taken within twenty-one days. 
 
 H,._Chillas t). Brett, 1854, 5 Clark, 325, S. C. 3 Am. L. Eeg. 116. Under 
 act March 17, 1845, if an appeal from a decree in equity is perfected after the 
 levy of a fi. fa. but before a sale it is a supersedeas. 
 
 lb. — Barker v. Steel Co. , 1888, 6 Pa. Co. C. Rep. 183. Where upon final decree 
 a perpetual injunction has been awarded, an appeal with bond as required 
 Ijy acts of March 17, 1845, and February 14, 1857, does not without further 
 order, operate as a supersedeas. 
 
 lb. — New Brighton E. E.'s Ap., 1884, 9 Out. 13. An appeal from a de- 
 cree in equity, duly taken is a supersedeas, but the court below (concurrently 
 with the Supreme Court) retains the right to so control the actions of the 
 parties by attachment if necessary as to preserve the saius'in quo of each. 
 
 II. In Wliat Cases Allo-wed. 
 
 Agreement Not to Take. — Hostetter's Ap., 1879, 11 N. 132. An agree- 
 ment between parties to an equity suit to refer all the matters to the master 
 and to submit to his decision without appeal will be enforced. 
 
 lb. — Lewis' Ap., 1879, 10 N. 359. An agreement between the parties to 
 several equity proceedings which was made an order of court to abide by the 
 decision of the three masters already appointed, their report to be filed and 
 liave the effect of a decree, the party found debtor to be allowed to pay in 
 instalments, is a valid and binding agi cement and cannot be rescinded even 
 before a report is made. The provision about the payment in instalments is 
 a consideration for the agreement. 
 
 Argument on Master's Report Omitted.— Wilbur's Ap., 1881, 10 W. N. 
 C. 101. The Supreme Court will not hear an appeal from a, pro forma decree 
 of the common pleas confirming a master's report without argument, although 
 both parties are anxious that the cause be heard in this way. 
 
 Assignee for Creditor. — Singmaster's Ap., 1878, 5 N. 169. An assignee 
 for creditors has no standing to appeal from a decree made upon his account. 
 
 Auditor's Award of Costs. — Persch v. Quiggle, 1868, 7 S. 247. An error 
 in awarding costs by the auditor must be corrected on appeal from his decree, 
 it is too late to object upon taxation of costs after that decree has been af- 
 firmed. 
 
 Confirmation of Auditors' Report. — Keim's Ap., 1856, 3 C. 42. No ap- 
 peal will lie from the refusal of the common pleas to take off the confirmation 
 from a report of auditors, unless, perhaps, the petition is in the form of a bill 
 of review. 
 
 Decree in Partition.— Robinson's Ap., 1875, 1 W. N. C. 239. A decree 
 in partition setting fortlj the shares to which the several parties will be en- 
 titled, and binding the master to make partition accordingly, is not a final de- 
 cree, and no appeal lies. 
 
 Extent of Amicable Action. — Limbert's Appeal, 1888, 45 Leg. Int. 274. 
 The act of April 4, 1877, gives the right of appeal only where the judgment 
 has been entered by virtue of a warrant of attorney on a judgment note. 
 This does not extend to a case where a judgment is confessed in an amicable 
 action of ejectment. 
 
 Examiner's Report — No Finding of Facts. — Hope Hose Co. 's Ap. , 1876, 
 2 W. N. C. 451. No appeal lies from a decree entered by the lower court 
 upon the report of an examiner being filed, there having been no opinion or 
 finding of facts. 
 
APPEAL. G5 
 
 Final Decree.— Mitchell's Ap., 18G9, 10 S. 502. Only i„ final decree of 
 the orphans' court can be appealed from. 
 
 Injunction and Receiver. — Schlecht's Ap., 1869, 10 S. 172. A decree 
 o-ranting an injunction and appointing a receiver is a unit and the Supreme 
 Court has power to reverse it as such. 
 
 Interlocutory Decree. — Holden v. McMakin, 1847, IPars. 270. No ap- 
 peal lies from an interlocutory decree, c. g. granting a preliminary injunc- 
 tion and appointing a receiver on a motion belbre hearing on bill and answer. 
 
 lb.— What Is.— Cooper r. Vanfleet, 187.>, 2 \V. N. C. 241. A decree for a 
 partnership account is not a final decree, and no appeal lies therefrom. 
 
 lb.— lb.— Ruby's Ap., 1876, 3 "W. N. C. 349. A decree that the insolvency 
 of a State bank is fraudulent, is interlocutory and no appeal lies. 
 
 lb.— Lapse of a Year From.— Hutchinson's Ap., 1H84, 42 Leg. Int. 288. 
 Where after an appeal from an interlocutory decree, a year elapses before it 
 is argued and nothing has been done to obtain a final decree, the Supreme 
 Coui-t will file no opinion. 
 
 lb. — Preliminary Injunction. — Hilbish v. Catherman, 1869, IDS. 444. 
 A. decree granting or refusing a preliminary injunction is interlocutory and 
 <-aunot be appealed from except when it grants the injunction, when an appeal 
 lies under act February 14, 1866, P. L. 28. 
 
 lb. — Issue Directed. — Shaeffer's Ap., 1882, 4 Out. 379. A preliminary 
 injunction was not interfered with on appeal in a case where since it was 
 granted there had been ample time to obtain a final decree. 
 
 lb.— Dissolution upon Bond Filed.— New York R. R. Co.'sAp., 1882, 12 
 ■\V. N. C. 320. "Where a decree grants an injunction but provides that it shall 
 be dissolved upon a bond being filed, the defendant has no standing to appeal 
 if he has filed the bond, since there is no final decree against him. 
 
 lb.— Hoffman's Ap., 1881, 10 W. N. C. 401. The Supreme Court will not 
 on an appeal from a decree refusing to grant a preliminary injunction, ex- 
 press an opinion on the merits of the case. 
 
 lb.— Gyger's Ap., 18S5, 15 W. N. C. 513. An appeal (under Act June 12, 
 1879, P. L 177) from a decree refusing a preliminary injunction does not sus- 
 pend the proceedings in the suit. Therefore the Supreme Court will not pass 
 upon the appeal where it has been pending long enough to have brought the 
 case to a conclusion on its merits. 
 
 Judgment for Want of Proper Parties.— Bishop v. Culver, 1875, 1 W. 
 N. C. 272. A judgment on a demurrer to a bill in equity for want of proper 
 parties is not a final decree, and no appeal lies. 
 
 Lower Court as Master.— Baltimore R. R.'s Ap., 1881, 10 W. N. C. 530. 
 The finding of the lower court sitting as a master on the question of fact as 
 to tlie practicability of avoiding the crossing of two railroads at grade will 
 not be reversed except for palpable error. 
 
 Master not Appointed.— Penn. E. R. Co.'s Ap., 1883, 13 W. N. C. 173. 
 The Supreme Court will not hear an equity case on bill, answer and report 
 by an examiner, where there has b een no reference to a master and the lower 
 court has not made a special finding of facts. 
 
 Opening Decree — Discretion. — Acuff's Appeal. 1887, 3 Montg. C. L. R. 
 1 02. The question whether a decree shall be opened or not rests in the sound 
 discretion of the judge, and an appeal two years after first final decree will 
 not be entertained by the Supreme Court. 
 
 Order for Payment.— Fidelity Trust Co.'s Ap., 1881, 38 Leg. Int. 1.57. 
 No appeal lies from an order for the payment of certain expenses out of a fund 
 in controversy. 
 
 lb.— Orphans' Court.— Robinson's Ap., 1871, 19 Pitts. L. .1. 30. An order 
 for the sale of real estate, granted by the orphan's court, is not a definitive 
 decree. 
 
 5 — EQUITY. 
 
66 APPEAL. 
 
 lb. — Snodgrass' Ap., 1880, 15 N. 4'JO. A decree of the orphans' court or- 
 dering a sale of decedent's real estate to pay his debts is not a definitive de- 
 cree, therefore no appeal lies. 
 
 lb.— Gesell's Ap., 1877, 3 N. 238. No appeal lies from an order of the 
 orphans' court awarding an inquest in partition, it is not a definitive decree. 
 
 lb.— Against Administrator.— Mattern's Ap., 1876, 3 W. N. C. 166. An 
 order for an attachment on an administrator c. t. a. lor the payment of money, 
 is not a final decree, there being an appeal pending from the register who 
 has revoked the letters of administration. 
 
 lb. — ^Against Trustee. — Owens' Ap., 1875, 28 S. 511. A. cestui que trust 
 applied to the orphans' court, asking that the trustee be discharged and the 
 estate paid over to the petitioner. The court cited the trustee to appear at 
 the next term, but at the same time ordered him to pay over $150. Held that 
 the decree was definitive and an appeal lay. 
 
 Order to Enforce Decree. — Chew's Ap., 1860, 3 Gr. 294. An order to en- 
 force a decree previously made is not the subject of an appeal. 
 
 Opening Judgment — Discretion. — Kneedler's Ap., 1880, 8'W. N. C. 97. 
 On appeal from a decree relative to the opening of a j udgment, the only ques- 
 tion is whether or not there was a rightful exercise of the discretion or equit- 
 able power vested in the lower court. 
 
 Refusal to Confirm Master's Report— Reference Back.— Kimmel's 
 Ap. , 1875, 2 W. N. C. 138. A refusal to confirm a master's report and a re- 
 ference thereof back to him with instructions is not a definitive decree from 
 which an appeal lies. 
 
 Refusal to Open Judgment. — Lamb's Ap., 1879, 8 N. 407. No appeal 
 lies from a refusal to open a judgment which has been revived by agreement 
 in an amicable scire facias, though the judgment were originally entered on a 
 judgment note. 
 
 lb-— Glaub's Ap. , 1 882, 11 W. N. C. 297. No appeal lies from a refusal to 
 open a judgment revived by scire facias and two returns of nihil, though the 
 judgment were originally entered on a judgment note. 
 
 Refusal to Appoint Auditors. — WooUey's Est., 1847, 6 Barr, 351. An 
 appeal does not lie from a refusal of the court to appoint auditors to settle 
 the account of the deceased trustee of an insolvent debtor. 
 
 Set-Ofif of Judgments.— Wellock v. Cowan, 1827, 16 S. & R. 31 8. No writ of 
 error lies to an order made in the lower court allowing one judgment to be 
 set-off against another. 
 
 Subrogation. — Springer V. Springer, 1862, 7 Wr. 518. Subrogation is an 
 equitable remedy and should be applied for by petition or bill, not by mere 
 ■motion, and on the decree an appeal lies but not a writ of error. 
 
 Uncertainty in. — Brindle v. Brindle, 1865, 14 Wr. 387. A decree will he 
 afiirmed where appellant does not bring up the case in such a manner that 
 the Supreme Court can understaudingly review it. 
 
 III. Ho^v Taken : 
 
 Decree Pro Forma. — Cambers v. Watermann, P. 1871, 28 Leg. Int. 44, S. 
 C. 6 Phila. 82. Where the opinion of a judge is strongly against a complain- 
 ant's equity, he will enter a decree pro forma dismissing the bill so that an 
 appeal may be had speedily. 
 
 Form as in Orphans' Court.— Hedge & Horn's App., 1869, 13 S. 27;!. 
 Act of April 21, 1846, declares that appeals in equity from the common pleas 
 shall be "in the same manner and upon the same terms as appeals are al- 
 lowed from the orphans' court," namely under act June 16, 1836. 
 
 Issue Directed — Writ of Error. — Baker ii. Williamson, 1S45, 2 Barr. 116. 
 In all cases where an issue is directed out of chancery, no writ of error lies ; 
 the remedy is by appeal from the final decree. 
 
APPEAL — APPOETIONMENT. 67 
 
 lb. — Reed's Ap., 1872, 21 S. 378. Where an issue has been directed out 
 of chancery no writ of error lies until a flinal decree has been entered. When 
 the decree has been entered it is necessary to take an appeal from the decree 
 and also a writ of error to the judgment in the issues. 
 
 Interlocutory Decree. — Truby's Ap., 1880, 15 N. 52. It is needless to 
 take appeals from preliminary injunctions, for the Supreme Court will, ex- 
 cept in flagrant cases, continue the injunction and file no opinion on the merits. 
 The proper way to bring these cases here is to enter final decree by agreement. 
 (Per Sharswood, C. J., during argument.) 
 
 lb.— Testimony and Affidavits.— Schlecht's Ap., 1869, lo s. 172. An 
 appeal from an interlocutory decree, granting an injunction and appointing 
 a receiver, the testimony and affidavits taken on the motion should be made 
 part of the record. 
 
 Preliminary Injunction— Practice.— Kraft's Ap., 1880, 13 N. 449. The 
 Supreme Court will hear appeals from decrees relating to preliminary injunc- 
 tions whenever sitting. The proper practice is to' have the cases certified to 
 the district in which the court is sitting and the prothonotary will then place ^ 
 it on the list. 
 
 Set-Oflf of Judgments— Remedy.— Horton v. Miller, 1863, 8 Wr. 256. 
 Where there has been an application to the court to set oflf one judgment 
 against another the remedy of the party aggrieved by the decree is by appeal 
 not by writ of error. 
 
 Subrogation — ^Practice.— Steele's Ap., 1872, 22 S. lOl. Proceedings for 
 subrogation should be by petition, in the lower court, and m«s(be brought to 
 the Supreme Court by appeal. 
 
 Time and Manner of— Roddy's Ap., 1881, 29 Pitts. L. J. 314. An ap- 
 peal must be taken vrithin the time and in the manner prescribed. 
 
 Appearance. 
 
 One Sufficient— Amended Bill.— Brady v. Shisler, C. P. 1874, 1 W. N. 
 C. 17. Where a party to an equity suit has once appeared he need not enter 
 an appearance to an amended bill bringing him in in another capacity. 
 
 Oversight— Decree Pro-Confesso.— Ryan v. Richards, C. P. 1874, 1 W. 
 N. C. 78. A decree which has been entered pro confesso for want of an ap- 
 pearance will be stricken off on motion when it is made to appear that the 
 defendant has appeared in court and been recognized by the opposite counsel 
 and that the more-entry of appearance on the books was but an oversight. 
 
 APPLICATION OF PAYMENTS. 
 
 See Adjustment, II. 
 
 APPOINTMENT. 
 
 See Power, IV. 
 
 APPORTIONMENT. 
 
 See Adjustment, III. 
 
68 AEBITEATION — ASSIGNMENT. 
 
 ARBIXRATIOBI. 
 
 Act of June 16, 1836,— Parties May Eefer.— Cotton »-. Babcock, 1870, 
 
 14 S. 462. Act June 16, 1836 (p. 1. 717), relatingto arbitration, is confined to 
 actions at law, and cannot be nsed in an equity proceeding already begun. 
 Parties in equity may, however, doubtless refer a ca.se to persons mutually 
 chosen, to find and report facts to the court. 
 
 Agreement for will be Enforced. — Lewis' Ap., 1879, 10 N. 359. An 
 agreement between the parti-, s to several equity proceedings which was made 
 an order of court, to abide by the decisions of the three masters already ap- 
 pointed, their report to be filed and have the effect of a decree, the party 
 found debtor to be allowed to pay in instalments, is a valid and binding 
 agreement and cannot be rescinded even before a report is made. The pro- 
 vision about the payment in instalments is. a consideration for the agreement. 
 
 lb. — Hostetter's Ap., 1879, 11 N. l:!2. An agreement between parties to 
 an equity suit to refer all the matters to the master, and to submit to his 
 decision without appeal will be enforced. 
 
 ARBITRATORS. 
 
 Will not be Restrained Unless Conduct Unlawful.— West Jersey R. 
 E. V. Thomas, N. P. 1869, 26 Leg. Int. 236, S. C. 7 Phila. 635. Arbitrators 
 will not be restrained from j)roceeding unless their conduct or that of some 
 of the parties is manifestly unlawful. 
 
 No Agreement Between— Relief —Boswell's Ap., 1883, 31 Pitts. L. J. 
 192. Where matters in dispute are left to tliree arbitrators and no two of 
 them can agree, one of the parties may seek relief by a bill in equity. 
 
 ASSIGNEE AIVD ASSIGIVOR. 
 
 See AssiGNMES'T ; Assignment foe Ceeditoes ; Confidential Eela- 
 
 TIONS, III. 
 
 ASSIGNMENT. 
 
 I. What Constitutes a Valid. 
 II. Eights Under. 
 
 III. Peopeety Incli'ded. 
 
 IV. Pkaotice. 
 
 I. 'What Constitutes a Valid. 
 
 Agreement to pay Legacy. — Wylie's Ap., 1879, 11 N. 196. An agree- 
 ment by a debtor to pay over a legacy when he received it, is not an equit- 
 able assignment, for there is no such assignment as would authorize the ex- 
 ecutor to pay the legacy to the creditors. 
 
 Assent— Absent Party.— North v. Turner, 1823, 9 S. & E. 244. Where 
 an assignment for a valuable consideration is made to an absent party and is 
 beneficial to him, his assent will be presumed. 
 
 By Feme Covert of Mortgage.— Moore v. Cornell, 1871, 18 S. 320. An 
 
ASSIGNMENT. 69 
 
 assignment of a mortgage by a married woman, her linsbancl joining, but she 
 herself not acknowledging it, is void and will not be received as evidence. 
 
 lb. — Of Policy of Insurance. — Insurance Co. V. Brown cf. at, 1888,5 
 Lan. L. Rev. 394. An assignment of a life insurance policy taken out by a 
 wife pn her husbands' life, for her sole use, or in case of her death before her 
 husband, then for the use of her children, is void as to the children. 
 
 Certificate of Stock. — Bank of Commerce's Ap., 1873, 23 S. 58. An as- 
 signment of a certificate of stock is but an equitable transfer. A legal trans- 
 fer has to be made on the books of the company. 
 
 Check. — Eby's Estate, 1888, 5 Lan. L. Rev. 389. An ordinary bank check 
 does not, in the absence of acceptance by the drawee, constitute an equitable 
 assignment of the fund, nor does it give the payee a right of action against 
 the drawee. 
 
 Va, — Payment Tjy. — Kilpatrick v. Loan Ass'n, 1888, 45 Leg. Int. 188. 
 While payment by check is conditional payment only, yet negligence in pre- 
 senation by the payee when by due diligence the money could have been re- 
 covered, will make the acceptance of the check operate as an extinguishment 
 of the debt. 
 
 lb. — Obtained by Fraud — Purchaser of — Matthews !•. Foederer, 1888, 
 45 Leg. Int. 174. A check purchased for a valuable consideration from a 
 party who obtained it from the drawer through fraud, is good as against the 
 drawer and this even though not presented for several days after its date. 
 
 lb. — First National Bank v. Shoemaker, 1887, 2 Crum. 100. An ordi- 
 nary bank check is neither a legal nor an equitable assignment, or an approp- 
 riation of a corresponding amount of the drawer's funds in the hands of the 
 drawee. 
 
 Claim Against School District.— Corwin & Bro. v. School District, 1886, 
 4 Kulp, 245. An assignment of part of a claim against a school district does 
 not pass an equitable right of action which can be enforced at law. 
 
 Collateral Securities Pledged.— Heike's Ap., 1888, 22 W. N. C. 49. 
 Where an executor transferred certificates of loan to a broker, with a blank 
 power of attorney attached without the word "executor " included, for the 
 purpose of having new certificates made out in the name of the decedent's 
 heirs, and said broker subsequently pledged the certificates to a bank as col- 
 lateral for a demand note, it was held that the bank took a good title as 
 against the executor. 
 
 Consideration— Assent.— Dale v. Land Co., D. C. 1859, 16 Leg. Int. 21, 
 S. C. 3 Phila. 328. An assignment of a chose in action will be supported, 
 where there is a sufficient consideration, an intention to make a present trans- 
 fer, notice thereof to the debtor and assignee, and acquiescence therein by 
 them. 
 
 lb.— Delivery. — Lonsdale's Est, 1857, 5C. 407. An assignment of a chose 
 in action without valuable consideration, not delivered and not to take effect 
 until after the death of the assignor will not be allowed to stand. 
 
 lb. — lb. — Decedent. — Jones v. Drake, C. P. Montgomery, 1867, 24 Leg. 
 Int. 412, S. C. 6 Phila. 416. Equity will not enforce an assignment of choses in 
 action made in a decedent's lifetime to a trustee for his church but not de- 
 livered to the trustee. There being no consideration other than natural af- 
 fection. 
 
 lb.— Natural Love and Affection.— Kennedy «. Wave, 1845, 1 Barr, 445. 
 An equitable assignment of a chose in action is a declaration of trust with an 
 agreement to let the assignee sue in the name of the assignor. The contract 
 is necessarily executory and consequently must have a consideration. Nat- 
 ural love and affection is not a sufficient consideration in this case. 
 
 Consignment — Promise of Consignee. — Cabada v. De Jongh, C. P. 1875, 
 1 W. N. C. 342, S. C. 32 Leg. Int. 117. A promise by a consignee to apply the 
 proceeds of a consignment to paying certain creditors of the consignor, ac- 
 
70 ASSIGX3IEXT. 
 
 quiescetl in by the consignor and accepted by the creditors constitutes an 
 equitable assignment. 
 
 Direction to Trustee.— Greenfield's Est., 1855, 12 H. 232. A simple 
 direction to trustees to pay a certain claim is not an equitable assignment of 
 so much, if no particular fund is designated. 
 
 Draft on Particular Fund.— Nesmith r. Drum, 1844, 8 W. & S. 9. A 
 draft upon a particular fund in the hands of an agent is an equitable assign- 
 ment thereof though not accepted by the agent. 
 
 Draft— Unaccepted.— Hyatt v. Prentzell, 1863, 20 Leg. Int. 133. An un- 
 accepted draft cannot be considered an eqn.itable assignment pro tanto of the 
 fund on which it is drawn, as against an attaching creditor without affirma- 
 tive proof of a consideration. 
 
 lb. — lb. — Fabars v. Welsh, 1842, 1 Clark, 367. An unaccepted draft for an 
 amount greater than is in the hands of the drawee does not operate as an as- 
 signment of what he has in his hands, as against an attaching creditor. 
 
 Endorsement of Bond. — Zimmerman r. Streeper, 1874, 25 S. 147. An 
 endorsement by one on a bond, directing his executors to giva it to a certain 
 person is of no effect. It is not an assignment nor is it a trust. 
 
 Debtor and Creditor— Acceptance by Drawer.— Phoenix Iron Co. v. 
 Phila., C. P. 1876, 2 W. N. C. 596, S. C. 33 Leg. Int. 176, 11 Phila. 203. The 
 assignment by a debtor of part of a sum of money due him, is valid in equity, 
 the drawee being notified and in this case having accepted the order. 
 
 lb. — Notice. — Stevens v. Stevens, 1829, 1 Ash. 190. An assignment of a 
 debt due by a third person is a good equitable transfer of it as against sub- 
 sequent attaching creditors of the assignee although the debtor have no notice 
 of it. 
 
 lb.— Order on Particular Funds.— Ferran's Est., 1826, 1 Ash. 319. An 
 order by a creditor to his debtor to be paid out of certain funds as they came 
 into his hands, is an equitable assignment of the amount of the order. 
 
 Declaration of Trust. — Bond v. Bunting, 1875, 28 S. 210 An assign- 
 ment of part of a policy of insurance was executed on the back of the instru- 
 ment but not delivered. Though not good as an assignment it would be sup- 
 ported in equity as a declaration of trust. 
 
 Executory Contract. — Kountz v. Kirkpatrick, 1872, 22 S. 376. A con- 
 tract for the purchase and sale of oil at a future date (seller's option) is assign- 
 able. 
 
 Expectancy. — Kauffman's Est., 1870, 1 Lan. B. (March 19.) A promise 
 to appropriate a fund when received is invalid as an equitable assignment 
 thereof. 
 
 lb.— Soley's Est., O. C. 1884, 41 Leg. Int. 468, S. C. 15 W. N. C. 351. An 
 expectancy may be equitably assigned and the form of the assignment is im- 
 material. 
 
 lb. — ^Partner's Interest in Prospective Firm. — Collins' Ap., 1883, 11 
 Out. 590, rev'g. Hulse's Est., 11 "W. N. C. 499. There may in equity be a 
 valid pledge of a partner's interest in a prospective firm. 
 
 lb.— Relief —Woodward's Est., 1882, 1 Ches. Co. Eep. 417. An heir may 
 assign his expectancy, and liens entered after his ancestor's death and before 
 transfer do not effect the previous assignment. Equity will relieve against 
 a bargain of this kind if there has been surprise, fraud or inadequacy of price, 
 but if the latter is the only ground the heir must offer to return what he re- 
 ceived on making the contract. 
 
 lb.— Sturdevant&Goffr. Roberts & Dreisbach, 1888, 5 Kulp, 99. Anequit- 
 able assignment of part of a fund or demand resting in expectancy is valid if 
 assented to by the debtor. 
 
 Foreign Assignment — Recording— Notice. — Wells «i.Hotchkin,l888, 23 
 W. N. C. 26. An assignment made in another State and not recorded in 
 
ASSIGNMENT. 71 
 
 Pennsylvania is not necessarily void as against Pennsylvania creditors. If 
 tlie latter have notice of the assignment, iii will bind them, and the effect of 
 notice cannot be arrested by bringing the suit to the use of another. 
 
 Husband and Wife — Accident Insurance. — Williams' Ap., 1884, 41 
 I-eg. Int. 386, S. C. 15 W. N. C. 89. Where a husband purchased an acci- 
 dent insurance and banded the ticket over to his vpife saying, if he died she 
 would be that much better off, it was held not to constitute a good assign- 
 ment as against creditors. 
 
 lb. — Policy of Insurance — Consideration. — Bond r. Ins. Co., D. C. 1873, 
 30 Leg. Int. 304, S. C. 9 Phila. 149. An assignment by a married woman 
 and her husband without any consideration moving to the wife of part of a 
 policy of life insurance held by the wife on the lile of her husband, may be 
 sustained in equity. 
 
 lb. — lb. — Trough's Est., 1874, 25 S. 115. A husband executed an assign- 
 ment of bis policy of insurance to one in trust for his wife, but never deliv- 
 ered it. Held that it was good neither as an assignment nor as a declaration 
 ot trust. 
 
 lb.— Mortgage— Non-Joinder.— Stoops v. Blackford, 1856, 3 C. 213. An 
 assignment of a mortgage by a married woman without her husband's join- 
 ing is void. 
 
 lb.— Trust ofWife's Choses in Action.— Siteri;. Jordon, 1834, 4 R. 468. 
 An assigament by a husband of his wife's choses in action to a trustee for her 
 use, is such an act as equity will support as a reduction into possession so as 
 to defeat the claims of a second husband. 
 
 Incomplete Gift.— Taylor's Ap., 1874, 5 Lan. Bar No. 40, S. C. 2 Post. 
 82, 21 Pitts. L. J. 106, 6 Leg. Gaz. 53. Where one makes an assignment for 
 the benefit of another, encloses it in a sealed envelope and directs that it be 
 given to him after his death, there is neither a gift »or a declaration of trust 
 that equity will execute. 
 
 lb.— Non-Delivery of Certificates of Stock.— Roberts' Ap.,1877, 4N. 84. 
 A decedent had bought stock and put it in the name of his niece but never 
 told her of it, and kept the certificates in his possession in an envelope en- 
 dorsed with his and her names. The testimony was all to the effect that he 
 had treated his neice as though she were his daughter. Held that equity 
 would sustain the gift, and not decree a resulting trust. 
 
 Interest of Intestate Sold.— Horner's Ap., 1867, 6 S. 405. An admin- 
 istrator sold through the orphans' court the interest of his intestate. That 
 interest, on the doctrine of equitable conversion was personalty, AeW that his 
 deed under the orphans' court sale was good as an equitable assignment. 
 
 Mortgage— Assignment of Bond — Recording.— Sharpe v. Hutchinson, 
 C. P. Luzerne, 1882, 1 Kulp, 405, S. C. Luz. 10 L. Reg. 193, 13 Lan. B. 62, 2 
 Sch. L. R. 281. An assignment on the back of a bond accompanying which 
 is a mortgage, is an assignment of the mortgage and should be recorded. 
 
 lb.— By Heir.— Bailey v. Allegheny Bank, 1883, 8 Out. 425. A mortgage 
 given by an heir on his share of real estate directed to be converted, is aa 
 equitable assignment of this interest, or upon taking as land it binds his in- 
 terest and his share after partition subj ect of course to owelty. 
 
 lb.— Delivery.— Piper's Est., O. C. 1876, 33 Leg. Int. 228, S. C. 11 Phila. 
 141. Where, after the death of a party, a mortgage was found among his 
 papers which it was known had been by him formally assigned and handed 
 over to a third person, it was held there had been a good assignment. 
 
 Municipal Corporation— Assignment of Part of Claim.— Goist's Ap., 
 1883, 8 Out. 351. An assignment of part of a claim against a municipal cor- 
 poration is of no validity against the corporation, therefore a subsequent as- 
 signee for creditors of the assignor may collect it in spite of the former 
 partial assignments. 
 
 lb. — ^Executory Contract. — Phila. v. Lockhardt, 1873, 23 S. 211. An ex- 
 
72 ASSIGNMENT. 
 
 ecutory contract may be assigned though the party for whom the work is to 
 be done is a muuicipal corporation. 
 
 Offer to Assign— Acting Upon.— Inglls v. Inglis, 1790, 2 Dall. 49. An 
 offer to assign a legacy acted upon by the one to whom the offer is made is 
 a good equitable assignment. 
 
 Order— By Cestui que Trust.— MacEnen's Est., O. C. 1876, 3 W. N. C. 
 158, S. C. 33 Leg. Int. 408, 11 Phila. 152. An order drawn by a cestui que trust 
 on his trustees in a spendthrift trust, who have also a fund in their hands over 
 which he has control, is an equitable assignment ^ro tanto of the latter fund, 
 and will be supported on the consideration, expressed, of kind services. 
 
 lb.— lb.— Newton's Ap., 1878, 5 W. N. C. 521.. An order drawn by the 
 beneficiary of a spendthrift trust on his trustee in favor of a third person his 
 not a valid assignment of his interest. 
 
 lb.— For Fund— Notice.— Jermyn v. Mofiitt, 1874, 25 S. 399. An order 
 for the whole of a fund amounts to an equitable assignment of it, and binds 
 the drawee after notice, where, however, the assignment is of a part only of 
 the fund, the drawee is only bound after acceptance. 
 
 lb.— On City.— Murphy's Est., 0. C. 1877, 4 W. N. C. 39. An order on 
 the city controller by a contractor in favor of a sub-contractor on a particular 
 fund is not an equitable assignment of a part of that fund. 
 
 On Employer. — Ruple v. Bindley, 1879, 10 N. 296. An order on an em- 
 ployer by the employ6 to pay a certain sum that shall be due him tea third 
 l)arty constitutes an equitable assignment of the fund. Qussre, whether a 
 part of a fund could be so assigned. 
 
 Parol. — Tyson's Estate, 1871, 2 Pears., 497. A promise to a creditor that the 
 debtor would leave a portion of his expectant interest in an estate in the 
 hands of a third person, for the creditor, will not operate as an assignment. 
 
 lb. — Malone's Est., 0. C. 1880, 12 Lan. Bar, 94. A c/iose in action may be 
 transfered by parol. 
 
 lb. — Married Women— Collateral Security. — Walker v. Coover, 1870. 
 15 S. 430. A verbal assignment of bonds to a married women as collateral 
 security, she thereby undertaking to pay certain of the assignor's debts, is 
 valid as against attaching creditors. 
 
 Partial Assignment. — Pairgrieves v. Lehigh Nav. Co., D. C. 1856, 13 Leg. 
 Int. 356, S. C. 2 Phila. 182. A partial assignment by a clerk of his salary 
 will not bind the employer. 
 
 lb.— McCafifery v. Cassidy, D. C. 1858, 15 Leg. Int. 318, S. C. 3 Phila. 210. 
 The partial assignment of a debt is invalid unless it receives the assent of 
 the debtor. 
 
 lb.— Miller «. Ins. Co., D. C. 1862, 19 Leg. Int. 38, S. C. 5, Phila. 112. A 
 partial assignment of a chose in action afterwards recognized by the assignor 
 as valid, is good against a subsequent creditor. 
 
 lb. — Philadelphia's Ap., 1878, 5 N. 179. Equity will in general sustain 
 the assignment of part of a contract, but not where it interferes with the af- 
 fairs of a municipal corporation. 
 
 Policy of Insurance as Security.— Ross v. Wells, 1888, 5 Pa. Co. 
 C. Rep. 430. Where the owner of a policy of fire insurance, after loss, de- 
 livers it to the creditor, at the same time declaring "I want to secure you by 
 this policy ; I want you to take the policy, collect it and after you are paid, 
 pay the balance to me," this is a complete equitable assignment and although 
 the parties agreed at the time that a written assignment should be drav n 
 which was not done, the assignee holds the chose as against a subsequent 
 assignee. 
 
 Power of Attorney to Agent of Creditor.— Lightner's Ap.. 1876, 1 
 N. 301. An execution of an irrevocable power of attorney to transfer stock 
 by a debtor to the agent of his creditor in pursuance of a verbal agreement 
 so to do constitutes an equitable assignment of the stock. 
 
ASSIGN3IEXT. 73 
 
 lb.— To Transfer Bond.— Penna. Co.'s. Ap., 1878, 5 N. 102. An irre- 
 vocable power of attorney under seal ' ' for value received ' ' to transfer a bond 
 is in effect a present assignment. 
 
 Preferred Laborer's Claim— Phila. Trust Co.'s. Ap., 1876, 2 W. N. C. 
 593, S. C. 33 Leg. Int. 296. A preferred claim of a laborer may be assigned. 
 
 Release— Notice.— Gallagher v. Caldwell, 1853, 10 H. 300. Where the 
 assignee of a judgment fails to give notice of it to the defendant, he will be 
 bound by a release obtained for a valuable consideration by the defendant 
 from the plaintiff. 
 
 Wages— Unearned— Assent of Employer.— Trimble's Est., 1876, 23 
 Pitts. L. J. 89. An assignment of a portion of unearned wages is invalid un- 
 less assented to by the employer, 
 
 il. Rigfhts Under. 
 
 Assignee — ^Equities of. — Buchanan v. Wartz, 1836, 5 Watts, 151. An as- 
 signee of a bond is in no better position than his assignor unless he took it 
 at the instance of the obligor. 
 
 lb.— Overdue Note— Set-Ofif.— Hughes v. Large, 1845, 2 Barr, 103. The 
 assignee of an overdue note is not liable to a set off between the original 
 parties. 
 
 Avoiding Previous Assignment. — Bullitt v. Methodist Church, 1856, 
 2 C. 108. A voluntary assignee cannot avoid a previous invalid assignment 
 since he stands only in the shoes of the debtor as to whom it is valid. 
 
 Bond and Mortgage — Judgment. — Booth v. Williams, C. P. 1876, 2 W. 
 N. C. 504, S. C. 8 Leg. Gaz. 110, 33 Leg. Int. 128, 11 Phila. 266. An assign- 
 ment of a bond and mortgage carries with it the equitable right to control a 
 judgment previously entered on the bond. 
 
 Bond and Warrant— Agreement— Notice. — Davis v. Barr, 1822, 9 S. 
 & E. 137. An asisignee of a bond and warrant is not subject to an agreement 
 by the obligee not to enter up judgment thereon, unless he take with notice. 
 
 Debt— Remedies and Securities. — Morris v. McCulloch, 1876, 2 N. 34. 
 An assignment of a debt carries with it all remedies and securities incident 
 thereto, but does not transfer a personal right of action in tort. 
 
 Decedents Estate.— Morgan's Ap., 1889, 24 W. N. C. 167. The assignee 
 of a mortgage takes it subject to all equities between the original parties ; 
 and this doctrine was applied where the orphans' court ordered a mortgage 
 to pay debts, but never confirmed it until an assignee prayed for confirma- 
 tion and the widow of the deceased then set up equities between the original 
 parties. 
 
 Defalcation by Obligor Against Assignee.— Downey v. Tharp, 1869, 
 13 S. 322. An obligor in a bond cannot defalcate against the assignee of an 
 assignee a claim which he holds against the first assignee. 
 
 Existing Equities. — Edgar v. Kline, 1847, 6 Barr, 327. An assignee of 
 a chose in action takes subject to all existing equities between'the original 
 parties, unless the obligee or payee has estopped himself from making de- 
 fence by his declarations ; but the assignee cannot avail himself of such an 
 estoppel, unless he be an assignee for value. 
 
 lb.— Stewart v. Tizzard, D. C. 1859, 16 Leg. Int. 132, S. C. 3 Phila. 362. 
 One who takes a note by endorsement after maturity takes it free from set- 
 offs which arose out of distinct transactions. 
 
 lb. — Wheeler v. Hughes, 1776, 1 Dall. 23. The assignee of a bond takes 
 it subject to existing set-offs between the original parties. 
 
 lb. — Ashton's Ap., 1873, 23 S. 153. An assignee of a mortgage takes it 
 subject to all equities between the original parties, unless he be a purchaser 
 without notice and the mortgagor has estopped himself by a certificate of no 
 
74 ASSIGNMENT. 
 
 setoff. A subsequent assignee wiili notice, claiming under such- an assignee, 
 gets the latter's title. 
 
 lb. — -Poe V. Foster, 1842, 4 W. & S. 351. The assignee of a judgment 
 given to the assignor as collateral security takes sabject to the rights of the 
 parties of which he has notice. 
 
 lb.— Peele v. Green, C. P. Luzerne, 1878, 1 Lack. L. Eec. 405, S. C. 1 L. 
 T. N. S. 141. The assignee of a judgmen D takes free of equities which a third 
 person may have against the debtor and of which he (the assignee) has no 
 notice. 
 
 lb.— Gourdon v. Ins. Co. of N. A., 1802, 3 Y. 327. A policy of. insurance 
 is assignable in equity, but the assignee takes it subject to all equities be- 
 tween the original parties. 
 
 Fraud— Bona Fide Assignee.— Taylor v. Gitt, 1849, 10 Barr, 428. The 
 bona fide assignee of a sealed note in a contest with the obligee for the amount 
 of the note is not affected with a fraud between the obligee and the first as- 
 signee. 
 
 lb.— Notice.— McMurtrie v. Twitchell, C. P. 1876, 33 Leg. Int. 238, S. C. 
 11 Phila. 351. The bona fide assignee of a mortgage for a full consideration, 
 without notice and with a certificate of no set-off, is not affected by fraud be- 
 tween the original parties. 
 
 Guaranty by Mortgagee. — Moore's Ap., 1844, 7 W. & S. 258. A guar- 
 anty given by a mortgagee to -a, subsequent judgment creditor of the mort- 
 gagor, is a personal guaranty merely and does not give the judgment creditor 
 any claim to the mortgage. A subsequent assignee of the mortgage takes it 
 as prior to the judgment. 
 
 Insurance Policy — Debt due Company. — Eousset v. Ins. Co. of N. A., 
 1808, 1 Bin. 429. An insurance company can set off against the assignee of 
 the policy a debt due by the insured when the insurance was effected. 
 
 Interest of Assignor— Securities to pay Debts — Bond of Indemnity. — 
 
 Huston V. Clark, 1888, 45 Leg. Int. 236. A. being liable for the debts of a 
 certain company assigned to B. and C. securities to be used in raising a fund 
 to which B. and C. were to contribute, for the purpose of paying off the com- 
 pany's debts. The condition of the assign ment was that B. and C. should in- 
 demnify A. against all demands of the company's creditors and distribute the 
 surplus among contributors to the fond. The company's works were regu- 
 larly sold under a mortgage and bought in by B. and C, who thereupon 
 formed a new company. As there was no surplus A. claimed an interest as 
 stockholder in the new company. Held, A. had no claim to stock of such 
 corporation. 
 
 Judgment as Security for Preexisting Debt— Recording. — Pratt's 
 Ap., 1875, 27 S. 378. An assignment of a judgment as security for a preex- 
 isting debt after the bond and warrant have been assigned to another person 
 but not recorded, does not give the former an equity superior to that of the 
 latter because it is not a purchase "for value." 
 
 Judgment — Municipal Lien — Priority. — Hagemann's Ap., 1878, 7 N. 
 21. An assignment of a judgment recovered on a municipal lien carries with 
 it the priority which it possessed in the hands of the municipality. 
 
 lb.— Note— Endorsement of and Discount.— Mifflin Co. Bank's Ap., 
 IHKlj 2 Out. 150. The honafide assignee of a judgment given by a maker of 
 a promissory note to the endorser has an equity superior to that of one who 
 discounts the note. 
 
 lb.— Prior Release— Notice.— Mellon's Ap., 1880, 15 N. 475. The as- 
 ■signee of a judgment is not affected by a prior release of the lien of the judg- 
 ment upon a certain tract of which he had no notice. 
 
 lb.— Several Partial Assignments.— Moore's Ap., 1879, 11 N. 309. 
 Where fractional parts of a judgment are assigned at different times, the 
 rights of the several assignees are equal. 
 
ASSIGNMENT. 75 
 
 Mortgage — Amount Recoverable. — Eberly (•. Elsasser, D. C. 1874, 1 W. 
 N. C. 130. An assignee of a mortgage cannot recover any more on the mort- 
 gage than he or anyone in the line of his title has paid. 
 
 lb. — Assignment of with Agreement by Prior Mortgagee. — Brewer's 
 Ap., 1883, 8 Out. 417. A party who has taken an assignment of a second 
 mortgage under an agreement with the first mortgagee that he would enter 
 satisfaction of his mortgage may enforce the agreement by a bill in equity. 
 
 lb. — Collateral Agreement — Notice. — McMasters u. Wilhelm, 1877, 4 
 N. 218. An assignee of a mortgage is not affected by a collateral agreement 
 entered into between the mortgagor and mortgagee at the time of the execu- 
 tion of thfe mortgage and of which he has no notice. 
 
 lb. — American Sewing Machine Co.'s. Aj)., 1876, 2 N. 198. One owning 
 land subject to a purchase-money mortgage conveyed it and took a mortgage 
 for part of the purchase money *qual to the mortgage already on the land 
 and payable at the same time ; it being agreed by all the parties that the sec- 
 ond vendee should pay the same directly to the original owner. Held that 
 as to an assignee of the second mortgage without notice of this arrangement 
 a sheriff 's sale discharged the second mortgage. 
 
 lb. — Usury — Notice. — Duquesne Bank's Ap., 1873, 24 S. 426. An assignee 
 of a usurious mortgage is in no better position than the mortgagee and a cer- 
 tificate of no set off is no defence, if the assignee had notice of the usury. 
 
 lb. — Eeinemann i>. Robb, 1881, 2 Out. 474. An assignee of a mortgage 
 takes it subject to all the rights of the mortgagor against the mortgagee, 
 although they arise by an agreement made subsequent to the mortgage be- 
 tween the mortgagor and a stranger. 
 
 lb. — Earnest v. Hoskins, 1882, 4 Out. 551. An assignee of a mortgage who 
 makes no inquiry of the mortgagor takes the mortgage subject to all equities 
 between the original parties, although the mortgagor had confessed judgment 
 on the accompanying bond in open court. 
 
 lb.— Partial Assignment— Pro Rata Share.— Patrick's Ap., 1884, 9 
 Out. 356. An assignee of part of a mortgage debt is entitled to only 
 his pro rata share oi the proceeds of the mortgaged property when those pro- 
 ceeds are insufficient to satisfy the whole debt. 
 
 lb.— lb.— Betz V. Heebner, 1830, 1 P. & W. 280 Where there are several 
 bonds given for debts secured by the same mortgage, the assignee of these 
 bonds are entitled to come in pro rata under the mortgage, although the mort- 
 gage was assigned to some and others did not know of its existence. 
 
 Pending Suit— Equities Between Assignors.— Coon v. Reed, 1875, 29 
 S. 240. A plaintiff pending the trial of his cause made two assignments of 
 his interest in it to different persons. The second was recorded on the docket. 
 Judgment was obtained and the money paid to the first assignee, who had 
 filed his assignment of record the day judgment was obtained. Held, the re- 
 cording of the assignment on the docket was no notice, the parties therefore 
 had equal equities arxA prior intempore, prior est in jure. 
 
 Purchaser of Mortgaged Property. — Dollar Savings Bank v. Burns, 
 1878, 6 N. 491. A purchaser at sheriff's sale of property subject to a mort- 
 gage makes the debt his own and cannot upon discharging it take an assign- 
 ment of the bond and mortgage and enforce them against the original mort- 
 gagor. 
 
 lb. — Two Assignments of. — McLean's Ap., 1883, 7 Out. 255. Where 
 an heir was entitled to one-eighth part of a mortgage, and first assigned $2,000 
 out of the same, and afterwards the balance, it was Ae/rf that the first assignees 
 were entitled to be first paid. 
 
 Non-Negotiable Note— Equities.— White v. Heylman, 1859, 10 C. 142. 
 The assignee of a ncm-negotiable note takes it subject to existing equities be- 
 tween the original parties. 
 
 Notice— Bond— Payment.— Briudle v. Mcllvaine, 1822, 9 S. & E. 74. 
 
76 ASSIGX3IEXT. 
 
 An assignee of a bond must give notice of the assignment to the obligor, or 
 else he will be bound by payments made to the obligee. 
 
 Payment — Notice. — Buchanan u. Taylor, C. P. 1793, Add. 155. A debtor 
 who has actual notice that a judgment against him has been pledged to an- 
 other, pays the plaintiff at his peril, although the assignment was not tech- 
 nically legal in form. 
 
 lb. — lb — Guthrie u Bashline, 1855, 1 C. 80. Payment of a judgment to 
 the original plaintiff after notice (actual or constructive) of its assignment is 
 not good against the assignee. 
 
 lb. — lb. — Bury v. Hartman, 1818, 4 S. & R. 175. A payment madebyan 
 obligor of a bond to the obligee without notice of a prior assignment of the 
 bond is good against the assignee. 
 
 Penalty — Bond. — Mann v. Dungan, 1824, 11 S. & R. 75. An agreement 
 between parties to a contract that the one failing shall pay a stipulated sum 
 to the other, may be given in evidence to prove a set off in an action on a 
 bond given by one of the parties to the other and assigned by the latter. 
 
 Pending Suit— Purchase of Judgment.— Mervine v. Greble, 1879, 2 
 Pars. 271. Where a defendant in a judgment pending a writ of error pur- 
 chased a judgment against the plaintiff, he cannot set it off against a bona 
 fide assignee of the judgment after it was aflSrmed, who took it without no- 
 tice of the set-off. Mutual demands do not per se extinguish each other. 
 
 Policy of Courts of Law.— Burke v. Allen, 1803, 3 Y. 351. The deci- 
 sions of courts of law were formerly extremely narrow and contracted as to 
 the assignment of choses in action, but they will now take notice of a trust 
 and see who is beneficially interested. 
 
 Recognizance— Equities — Set-Oflf. — Keagy v. Comwlth., 1862, 7 Wr. 
 70. A. having given his recognizance in favor of B., bought a judgment 
 against him. C. afterwards bought B.'s rights under the recognzance. Held 
 that A. could setoff the judgment against C. since the transfer of a chose in 
 action is subject to the equities then existing. 
 
 Restraint of Trade— Penalty. — Reece v. Hendricks, C. P. 1870, 1 Camp. 
 79, S. C. 2 Leg. Gaz. 204. Equity will specifically enforce a bond given in 
 restraint of trade in favor of the assignee of the obligee, although it contains 
 a penalty. 
 
 Secret Equities. — Lane v. Smith, 1883, 41 Leg. Int. 296. The assignee 
 of a bond and mortgage takes subject to any agreement between the original 
 parties restricting the execution. 
 
 lb. — Rundle v. Ettwein, 1795, 2 Y. 23. An assignee of a bond takes it 
 subject to secret equities which exist between the original parties. 
 
 lb. — Metzgar v. Metzgar, 1829, 1 R. 227. The second assignee of a bond 
 takes it subject to all equities existing at the time of the assignmentbetween 
 the obligor and the first assignee, although they arose before the first assign- 
 ment of the bond (overruled, see 10 Wr. 265.) 
 
 lb. — Wetherills' Ap., 1859, 3 G. 281. An assignee of a chose in action not 
 made assignable by statute is not bound by secret equities existing between 
 his assignor and third persons. 
 
 lb. — Mott V. Clark, 1848, 9 Barr, 399. The assignee of a mortgagee is not 
 affected by an unrecorded deed of which he has no actual notice. The only 
 equities to which he is subject "without notice are those existing between the 
 mortgagor and mortgagee. 
 
 lb. — Fisher «. Knox, 1850, 1 H. 622. If an assignee of part of a judgment 
 leave the bond on which it was recovered in the hands of his assignor and 
 fail to note on the record the assignment, he will be postponed to a subse- 
 quent assignee of the whole bond for value and without notice. 
 
 lb.— Phila. Trust Co.'s Ap., 187R, 2 W. N. C. 593, S. C. 33 Leg. Int. 296. 
 A second assignee is not affected with equities between the first assignee and 
 the debtor of which he has no notice. 
 
ASSIGNMEXT, 77 
 
 lb. — Frantz v. Browii, 1830, 1 P. & W. 257. An oral agreement made at 
 the the time of the execution of a bond that in case the obligor becomes 
 surety for the obligee, the bond shall not be paid, is binding on a subsequent 
 assignee who has made no inquiry, and in case the obligation for which the 
 defendant has become surety is not yet due, he will be protected by a con- 
 ditional verdict. 
 
 lb. — Filbert?). Hawk, 1839, 8W. 443. The assignee of a judgment is sub- 
 ject to set-oflfs which existed between the original parties at the time of the 
 assignment. 
 
 Secret Trusts.— McClelland v. Myers, 1838, 7 W. 160. Although the as- 
 signee of a judgment is but an equitable assignee and must take subject to 
 secret trusts, yet if the cestui que trust has by his negligence made the loss 
 possible, he must bear it. 
 
 Vendor and Vendee— Covenant. — Hamilton v. Brown, 1851, C H. 87. 
 AVhere a vendor has entered into a covenant to convey and the vendee has 
 assigned his equitable title, and afterwards the vendor did convey to his 
 vendee, the assignee cannot recover against the vendor in a suit to his use on 
 the covenant, although he had given notice to the vendor of the assignment. 
 
 Void — Payment to Assignee. — Hoffman v. Hoke, 1888, 7 Crum. 377. 
 "Where a beneficiary with an insurable interest has assigned a policy of in- 
 surance to one without such interest, the assignment being illegal and void, 
 and the company has paid to the assignee, the administrator' of the assured 
 cannot recover the money paid to defendant. 
 
 Warranty. — Flynn v. Allen, 1868, 7 S. 482. The assignor of a chose in 
 action impliedly warrants the genuineness of the claim but not its payment. 
 
 III. Property Included. 
 
 Contingent Interests.— P., W. & B. R. E. v. Woelpper, 1870, 14 S. 366. 
 Contingent estates and interests, though not assignable at law, are assignable 
 in equity ; and they may also be the subject of a contract, which, when made 
 for valuable consideration, will be specifically enforced when the event hap- 
 pens. 
 
 Corporation— Property and Franchises of— Hoggs' Ap., 1878, 7 N. 
 195. A sheriff's sale of the property and franchisesoi a corporation does not 
 pass the choses in action of the corporation. 
 
 Goods, Chattels and Effects — Choses in Action.— Dowdel v. Hamm, 
 1833, 2 W. 61. An assignment of goods, chattels and effects carries cfmses in 
 action and the regret to control them. 
 
 Judgment — ^Mortgage. — Cathcart's Ap., 1850, 1 H. 415. An assignment 
 of a judgmeut will carry with it a right to a mortgage which secured the 
 bond on which the judgment was obtained. 
 
 Mortgage by Feme Covert as Security— Assignment ot.—O'Barav. 
 Baum, 1878, 7 N. 114. A mortgage given by a married woman to one who 
 endorsed her husband's notes is a security for the mortgagee alone, and an 
 assignment by him of the mortgage limits it as a security to the amount he 
 has then actually paid as endorser, and on a reassignment to him the mort- 
 gage does not again become a continuing indemnity. 
 
 Kelease by Assignee to Purchaser— Mortgage— Title of Subsequent 
 Assignees. — McDowell v. Jones, 1884, 4 Penny. 460. A. executed a mort- 
 gage to B., who assigned the same to C. as collateral security for a note given 
 in payment of a loan made by C. to B., which assignment was not under seal 
 and never recorded. A. subsequently conveyed the land bound by the mort- 
 gage to D., who obtained a release of the lien of the mortgage from C, for 
 a money consideration fully paid. D. took possession and made improve- 
 ments. Judgment had in the meantime been entered by C. on the bond, 
 and satisfied of record. One year after the release given by C. to D. had 
 
78 ASSIGNMENT. 
 
 been executed, A. executed an exactly similar bond and mortgage, assigned 
 it to B., who obtained money on it from E. E. 's assignee entered judgment 
 on the bond and sold the land. Held that D. had taken a good title before 
 E.'s assignee had acquired any rights, since by the valid equitable assign- 
 • ment of the bond and mortgage, C. was the only party capable of executing 
 (a release of the lien whereby the title became vested in D. freed from the 
 ; mortgage. 
 
 1 Trade Mark.— Piper v. Langhman, 1888, 6 Pa. Co. C. Rep. 232. A trade 
 mark passes under an assignment of all the property, personal and real. 
 Trust. — Wickersham's Ap., 1885, 43 L. I. 260. An assignment by a resi- 
 duary legatee of all his personal estate that would accrue to him as such car- 
 ries a sum left in trust for another for life, said sum upon the death of the 
 latter without issue to fall into the residuary estate. 
 
 I"V. Practice. 
 
 Actions — Accounts— Partner's Intea:est. — Wallace's Ap., 1883, 8 Out. 
 559. A purchaser of a partner's interest gets an intangible thing which he 
 can only reduce into possession by a demand for an account. 
 
 lb.— Attachment.— Canal Co. v. Ins. Co., D. C. 1857, 14 Leg. Int. 316, 
 S. C. 2 Phila. 354. A cJiose in action which has been equitably assigned can- 
 not be attached as the property of the assignor. 
 
 Contract— Separate Suits on— Eefusal to Refer Back to Referee. — 
 
 McManus v. School District, 1887, 4 Kulp, 439. Where separate suits have 
 been brought on assignments of a claim arising out of an entire contract, and 
 the referee decided against the plaintiffs on the ground that there was no 
 equitable right to bring such actions, a motion to refer the case back to the 
 referee for the pui-pose of amending the record and proceeding in the name 
 of the legal plaintiff was denied. 
 
 Defence— Equities Between Assignee and Obligee.— Duncan v. Wray, 
 1807, 4 Y. 371. An obligor of a bond cannot, when sued by an assignee 
 thereof, set up any equities which exist between the latter and the obligee. 
 
 lb.— Mortgage— Lost Book.— Hodgdon v. Naglee, 1843, 5 W. & S. 217. 
 A payment of the mortgage debt by a mortgagor to the mortgagee is an ex- 
 tinguishment thereof, although the accompanying bond has been previously 
 assigned for value, unless the assignee has given notice of his claim. There- 
 fore it is no defence to an action by the mortgagee that the bond is lost and 
 no indemnity has been tendered. 
 
 lb.— Obligor Becoming Surety for Assignee.— Frantz v. Brown, 1828, 
 17 S. & R. 287. It is a good defence against the assignee of a bond, that be- 
 fore maturity and without knowledge of the assignment the obligor became 
 surety for the assignee and has since been obliged to discharge this obliga- 
 tion. 
 
 lb.— Usury.— Hunter v. Campbell, D. C. 1874, 1 W. N. C. 109. Usury in 
 the original transaction is a good defence to a mortgage even in the hands of 
 an assignee. 
 
 Mortgage— -Recording— Discharge of Lien.— Brownbock r. Ozias, 1887, 
 2 Crum. 87. Where a mortgage executed in 1829 was assigned in 1855, and 
 the assignment not recorded until 1883, and in the meantime the mortgaged 
 property was sold by order of the orphans' court, the purchaser paying inter- 
 est on it, and subsequently conveying to another with the clause "subject to 
 the payment of a certain mortgage," and the latter purchaser continued to 
 pay interest thereon until he conveyed the property without reciting the 
 charge, accepting in payment a purchase money mortgage, under which tlio 
 property was again sold in 1878. Held that the charge in the first deed was 
 insufficient to affect the final purchaser jvith notice that the mortgage had 
 been kept alive. 
 
ASSIGNMENT — ASSIGNMENT FOB CEEDITOBS. 79 
 
 lb— Parol Evidence.— Hoopes v. Beale, 1879, 9 N. H2. Parol evidence 
 is admissible even against the assignee of a mortgage to prove that it was 
 agreed between the original parties that the mortgagor should not be person- 
 ally liable on the mortgage. 
 
 Parties. — Levy d. Levy, 1875, 28 S. 507. A suit on a chose in action which 
 has been assigned must be brought in the name of the holder of the legal 
 title. 
 
 lb.— Aldricks v. Higgins, 1827, 16 S. & E. 212. A sealed letter 'of credit 
 is not assignable so as to allow the assignee of the one having given credit, to 
 sue in his own name. 
 
 lb.— Coflfey V. White, C. P. 1884, 14 W. N. C. 108, S. C. 41 Leg. Int. 15. 
 An equitable assignee of a chose in action not assignable at law may maintain 
 an action thereon in the name of the legal owner without the latter's consent. 
 
 lb. — Sellers v. Cooper, 1872, 3 Leg. & Ins. R. 61. The assignee of a chose 
 in action may maintain assumpsit in his own name on an express promise to 
 pay ; but he must set forth in his declaration, the original consideration. 
 
 lb. — Fahnestock v. Schoyer, 1839, 9 W. 102. The assignee of a bill drawn 
 for specific articles cannot sue in his own name. 
 
 lb.— Faull V. Tinsman, 1859, 12 C. 108. The only effect of act May 28, 
 1715, is to allow the assignee of a chose in action to sue in his own name, it 
 does not give him a title free from equities existing between the original 
 parties at the time of the assignment. 
 
 lb. — Partridge v.. Partridge, 1860, 2 Wr. 78. An assignment of a mortgage 
 not under seal, without witnesses or acknowledgment, and not recorded, can 
 only be sustained as an equitable assignment, and the assignee cannot sue on 
 it in his own name. 
 
 Recording— Mortgage.— Gofif v. Denny, D. C. 1857, 14 Leg. Int. 132, S. 
 C. 2 Phila. 275. An assignee of a mortgage is not bound to record his assign- 
 ment. 
 
 lb. — Priority. — Fraley's Ap., 1874, 26 S. 42. One who held a judgment 
 note and had entered judgment thereunder, assigned to different parties, first 
 the note and afterwards the judgment, the latter assignment was first recorded, 
 held that it was prior in right. 
 
 Revival of Judgment by Assignee.— Winters' Est., 1883, 2 Ches. Co. E. 
 93. An assignee of part of a judgment may issue a scire facias thereon and 
 revive his interest only. 
 
 ASSIGNinElvr FOR CREDITORS. 
 
 [Eights, Duties, Liabilities and Commissions of Assignee, See TEtiSTS 
 AND Teustees, II.] 
 
 I. In Geneeal. 
 
 II. What Constitutes a Valid. 
 III. When it Must be Recoeded. 
 rv. Eights and Duties of Assignoe and Assignee. 
 
 V. Peefeeences. 
 VI. Peopeety Included in. 
 
 I. In General. 
 
 Appointmentof Assignee— Creditors' Rights.— News v. Sbackamaxon 
 Bank, C. P. 1885 42 Leg. Int. 256, S. C. 16 W. N. C. 207. Although creditors 
 
80 ASSIGNMENT FOE CEEDITOES. 
 
 have no right to participate in the appointment of assignees, they have a right 
 to be heard against tliose selected by the debtor, and for ca-ase shown the 
 court would refuse to approve them. 
 
 Attachment of Property Subseauently Acquired.— Miller's Ap., i860, 
 11 C. 481. A debtor who had assigned, received a legacy which was attached 
 by one of his creditors. Held this creditor's rights under the assignment re- 
 mained unchanged. 
 
 Auditor— Creditor not Assenting.— Williams' Ap., 1882, 13 W. N. C. 
 217. An auditor appointed to settle the accounts of an assign ee lor creditors can- 
 not entertain the claim of one who does not come in under the assignment. 
 
 lb.— Outside Parties.— Wylie's Ap., 1879, 11 N. 196, Where the report 
 of an assignee for creditors has been confirmed and an auditor appointed to 
 make distribution, the latter has no power to hear the claims of others than 
 creditors. 
 
 Rights of Mortgagee — Morris v. Olwine, 1854, 10 H. 441. A note was 
 secured by a mortgage. The mortgagor assigned for creditors. Held that 
 the mortgagee could claim his pro rata share under the assignment and pro- 
 ceed at the same time on his mortgage ; and the fact that the latter is fore- 
 closed before his pro rata share is paid, will not alter his rights. 
 
 Statute of Limitation. — Heckers' Ap., 1855, 12 H. 482. An assignment 
 for creditors is such a direct and continuing trust as is not affected by the 
 statute of limitations. 
 
 Stockholder as Depositor. — Schlandeckers' Appeal, 1888, 22 W. N. C. 
 37. A holder of capital stock in a corporation, whose stock is full paid, is 
 entitled to participate in the distribution of a fund in the hands of anassignee, 
 to the extent of his deposit, ratably with other creditors, 
 
 Two Assignments.— Hostile Claimants.— Jefferis' Ap., 1859, 9 C. 39. 
 Claimants under one assignment for creditors are necessarily hostile to a 
 later one and therefore cannot claim under it. 
 
 II. 'What Constitutes a Valid. 
 
 After Verdict to one Creditor.— Wilt v. Franklin, 1809, 1 Bin. 502. 
 An assignment to a trustee for all creditors equally, made after verdict but 
 before judgment entered by one creditor, and not accepted until after judg- 
 ment entered is nevertheless good. The assent of the trustee will be pre- 
 sumed. 
 
 Assent of Assignee.— Gray v. Hill, 1823, 10 S. & E. 436. An assign- 
 ment for creditors is valid although the assent of the assignee does not ap- 
 pear. 
 
 Bond Entitled to Dividend— Mortgage — Subrogation. — Clarke's Est. , 
 188S, 2 Ches. Co. R. 118. Upon the distribution of an assigned estate, a bond 
 is entitled to its share of the personal property although it be accompanied 
 by a mortgage, but when the property bound by the mortgage is sold, those 
 creditors whose dividend's have been lessened by the dividend to the bond, 
 may be subrogated to the rights of the mortgage to the same extent, after the 
 latter has been fully satisfied. 
 
 By Corporation.— Dana v. Bank of U. S., 1843, 5 W. & S. 223. The 
 power to make an assignment for creditors belongs to a corporation unless it 
 be taken away from it by its charter or other legal provision. 
 
 lb.— Ardisco Oil Co. v. North American Oil Co., 1870, 16 S. 375. A cor- 
 poration may make an assignment for creditors. 
 
 By Partner.— Sweigarts' Estate, 1889, 6 Lan. L. Rev. 185. A partner 
 may bind his firm by an assignment in his individual name. 
 
 Confession of Judgment.— Ewing's Ap., 1880, 1 Ches. Co. Rep. 34, S. C. 
 1 Del. Co. R. 5. A confession of judgment to trustees for certain creditors is 
 not an assignment for creditors. 
 
ASSIGNMENT FOE CREDITORS. 81 
 
 lb.— Reeves v. Reeves, C. P. Chester, 1880, 1 Ches. Co. Rep. 97. A con- 
 fession of judgment to trustees for certain creditors is not iin assignment tor 
 creditors although the accompanying deed of trust provides for compensation 
 for the trustee. 
 
 Conveyance in Fulfilment of Agreement.— Driesbach r. Becker, 1859, 
 10 C. 152. An absolute conveyance to one in fulfilment of an agreement with 
 certain creditors that they will accept forty per cent, and give releases, con- 
 stitutes, with the agreement, an assignment for creditors, and the two must 
 be recorded. Funds collected by an assignee under an unrecorded assign- 
 ment are liable to attachment at the suit of a creditor. 
 
 Conditioned on Release — Protection of Purchaser.— Johns v. Bolton, 
 IS49, 2 J. 339. An assignment for creditors stipulating for a release and ex- 
 cepting household furniture and goods exempt from execution is voidable. 
 But purchasers under it before avoided are protected. 
 
 lb. — Surplus to Assignor.— Mechanics' Bank v. Gorman, 1844, 8 W. & S. 
 304. An assignment for such creditors as release, the surplus to be for the 
 benefit of the assignor, is valid. 
 
 Contingent Fee. — Patten v. "Wilson, 1859, IOC. 299. An agreement be- 
 tween attorney and clientthat the former should liave.SlOO out of the verdict 
 to be obtained, is an equitable assignment of that amount and is good against 
 a subsequent attaching creditor of the client. 
 
 Declarationof Trust.— Fallon's Ap., 1862, 6 Wr. 235. One indebted 
 made a declaration of trust to A. in favor of B., B. at the same time contract- 
 ing to pay all the other debts of the grantor out of the fund and to receive 
 the balance as absolute payment. Held not to be an assignment for creditors. 
 
 Jurisdiction of Common Pleas.— Weiskettles' Ap., 1883, 7 Out. 522. 
 The common pleas have large discretionary powers over trustees, especially 
 assignees for creditors, the exercise of which will not, except for manifest 
 abuse, be modified or reversed by the Supreme Court. 
 
 lb. — Coxe V. Bank of Penna., 1858, 6 C. 516. The equity jurisdiction over 
 trusts does not include' assignees for creditors, that belongs exclusively to the 
 law side of the common pleas. 
 
 Executed in Foreign State. — Bacon i'. Home, 1889, 8 Crum. 452. An 
 assignment for creditors duly executed in another State is valid here ; with 
 the proviso that in order to bind Pennsylvania creditors it must be recorded 
 or they must have actual notice. 
 
 Exemption Reserved. — Mulford v. Shirk, 1856, 2 C. 473. Since act April 
 9, 1849 (exemption), a reservation of $300 in a deed in trust for creditors does 
 not avoid it. 
 
 Execution— Property Protected From.— McKinney v. Rhodes, 1836, 5 
 W. 343. To protect property assigned from execution the assignment must 
 be delivered; making it to the assignee is sufficient. 
 
 Estoppel by Assent — Tv/o Assignments. — Trustees of Bank of United 
 states (in re), 1850, 2 Pars. 110. Where an insolvent concern makes two 
 assignments, one for certain preferred creditors and subsequently a general 
 assignment, the two constitute but one assignment and a party claiming un- 
 der one is estopped from disputing the other. 
 
 Form Immaterial.— Rankin's Est., O. C. 1886, 43 Leg. Int. 140, S. C. 1 Pa. 
 Co. C. R. 516. It cannot be questioned that where the essentials of an equit- 
 able assignment are not wanting the form is immaterial ; that the fund njay 
 be wholly in expectancy, and that notice to the holder of the fund is not as 
 between the assignor and assignee essential. 
 
 Good When Accepted. — Lippincott v. Barker, 1809, 2 Bin. 174. An 
 assignment by an insolvent debtor of all his property to a trustee for the 
 benefit of such of his creditors as should within a given time release all their 
 demands against him is good from the time of the acceptance, and even be- 
 fore the release is executed. 
 6 — EQUITY. 
 
82 ASSIGNMENT FOB CEEDITOES. 
 
 Lien Creditor— When Lien Discharged. — Dodsons' Est., O. C. York, 
 1889, 6 Pa. Co. C. Rep. 617, In a sale of real estate by an assignee under an 
 order of the court, a lien will not be discharged unless the creditor had no- 
 tice' of the intention to apply for the order of .sale. 
 
 Letter of Attorney.— Watson v. Bagaley, 1849, 2 J. 164. A letter of at- 
 torney to one to collect certain moneys and pay over to specified creditors is 
 an assignment for creditors and must be recorded. 
 
 Mortgage. — Taylor v. Cornelius, 1869, 10 S. 187. A conveyance by a 
 debtor to a creditor of all his property, vrhereupon the latter executes a dec- 
 laration of trust that he holds the property as security for the payment by 
 him of the debts of his grantor, and promising to reconvey on the payment 
 of his advances, is a mortgage and not an a.ssignment for creditors. 
 
 Mortgage as Security.— Ridgway v. Stewart, 1842, 4 W. & S. 383. A 
 mortgage either of real or personal property given to secure creditors is not 
 an assignment for them within the meaning of the act of March 24, 1818, re- 
 quiring such assignments to be recorded within thirty days. 
 
 Ih. — Johns'in's Ap., 1883, 7 Out. 373. A mortgage given to one for the 
 benefit of creditors as security for an extension is not an assignment for cred- 
 itors, and, therefore, the account of the mortgagee should be settled in his 
 county not that of the assignor. 
 
 lb. — Beans v. Bullitt, 1868, 7 S. 221. For an instrument to be an assign- 
 ment for creditors it must (1) be a transfer of the property, and (2) such ;x 
 trust ibr creditors as is enforceable in equity. A mortgage given to one to 
 secure him for advances he might make to pay the debts of the mortgagor is 
 not an assignment for creditors, nor is a power of attorney given to one to 
 enable him to make settlements, compromises and exchanges in the business 
 of the constituent. 
 
 Name of Assignee Necessary. — Reamer v. Lamberton, 1868, 9 S. 462. 
 An assignment for creditors has no validity until the assignee's name is in- 
 serted. 
 
 Note. — Caldwell v. Harlupee, 1871, 20 S. 74. A. held a mortgage in trust 
 for creditors. B., one of the creditors, was indebted to A. B. gave C. a note 
 to A., reading : "Please pay C. the amount due us." This A. refused todo, 
 claiming that he had a right to retain it for his debt. Held that the note 
 constituted an equitable assignment and that C. could recover from A. 
 
 Non-Acceptance by Assignee.— Reed v. Robinson, 1843, 6 W. & S. 329. 
 An assignment for creditors is valid before the assignee accepts, and even if 
 he declines the courts have power to appoint a, successor and the trust will 
 not fall. 
 
 Of Assignors' Business. — Guiterman v. Landis, C. p. Dauphin, 1872, 2 
 Pears. 188. An assignment by a manufacturer of his property to a trustee 
 for the purpose of carrying on the works for the benefit of his creditors is an 
 assignment in trust for creditors, and protects the property from levy and 
 sale. Aff'd. in Peters v. Landis, 26 S. 289. 
 
 Partners— Consent of all Necessary.— Cleaver «. Brenzel, C. P. Schuyl- 
 kill, 1882, 1 Kulp 228, S. C. 12 Lan. B. 154. One partner cannot make an 
 assignment of the firm effects for creditors against the consent of the other 
 partner. 
 
 lb.— Stipulating for a Release.— Hennessyi'. Western Bank, 1843, 6 W. 
 & S. 300. An assignment for creditors by partners stipulating for a release 
 is not valid unless it contains an assignment of the separate property of each 
 partner. 
 
 lb.— General of all Effects.— Heckman «. Messinger, 1865, 13 Wr. 465. 
 A general assignment by partners of all their eflfects for separate and partner- 
 ship creditors is valid. 
 
 lb.— Unrecorded— Attaching Creditors.— Wharton v. Grant, 1846, 5 
 Barr, 39. An assignment ))y a firm for its creditors if not recorded is not 
 
ASSIGNMENT FOE CEEDITOES. 8:! 
 
 valid as against separate,cieditors of the partners, who attach the property 
 in the hands of the assignee. 
 
 lb.— By Two of Three Void.— /» re Wilson, 1846, 4 Barr, 430. An as- 
 signment for creditors stipulating for a release, is fraudulent and void if all 
 the property is not assigned. Therefore an assignment by two of the three 
 members of a firm, of the property of all three is void on its face, and it can- 
 not be shown that there was no property in the third partner to be separately 
 assigned. 
 
 lb.— Surplus to Assignors.— Huber v. Waterman, 1859, 9 C. 414. An 
 assignment by a firm for firm creditors, the surplus in trust for themselves, 
 is not avoided by the last clause, which would have been implied by law, if 
 not expressed. 
 
 lb.— Balance as Assignor Should Direct-- Vallance v. Miners' Ins. Co., 
 1862, 6 Wr. 441. An assignment to a member of a firm to pay the debt due 
 that firm and to hold the balance as the grantor should direct, is not an as- 
 signment for creditors. 
 
 Payment by Endorser after an Assignment.— Broughs' Est, 1872, 21 
 S. 460. Accommodation endorsers who pay a note of their principal after he 
 has assigned for creditors, are not entitled to any dividend. The payee's 
 dividend is on the whole debt, and after he has been wholly paid the endors- 
 ers can be subrogated to his rights. 
 
 Property Assigned in Part. — Weber v. Samuel, 1848, 7 Barr, 499. An 
 assignment by a firm for creditors which does not on its face include all the 
 property and which stipulates for a release is invalid. But when the com- 
 mon pleas, after a hearing, has made a decree concerning the distribution of 
 a fund in the hands of such assignees, the latter are protected in paying over 
 the money as directed. Such decree by the court is in the nature an action 
 in rem and the notice by publication is sufficient. 
 
 Property Remaining in Assignor's Possession.— Klapp v. Shirk, 1850, 
 1 H. 589. An assignment for creditors otherwise perfect is not avoided by 
 the fact that the property was left in the hands of the assignor. 
 
 lb.— Whallon v. Scott, 1840, 10 W. 237. For an assignment for creditors 
 to be binding the assignor must part with his property in the goods as well 
 as his possession of them. 
 
 lb.— Fitler v. Maitland, 1843, 5 W. & S. 307. The fact that a debtor who 
 has assigned for creditors remains in possession does not invalidate the as- 
 signment. 
 
 lb,— Mitchell v. Willook, 1841, 2 W. & S. 253. The fact that an assignee 
 for creditors does not take possession of the goods assigned for thirty days 
 does not vitiate the assignment. 
 
 Resulting Trust in Grantor.— Blank v. German, 1842, 5 W. & S. 36. A 
 conveyance by a debtor to his creditors, of land subject to an encumbrance, 
 in consideration of a release of their debts, is but an assignment for creditors, 
 and a resulting trust remains in the grantor as to any surplus. 
 
 Reconveyance Stipulated for.— McAllister v. Marshall, 1813, 6 Bin. 3.38. 
 An assignment executed by an insolvent debtor to a part of his creditors, with 
 an understanding that part should be reconveyed to his wife, is fraudulent 
 with respect to the part reconveyed, as to all creditorsnot assenting and may 
 be taken by them in execution. 
 
 Reversion to Assignor. — Livingston v. Bell, 1834, 3 W. 198. An assign- 
 ment for releasing creditors, 'the residue to revert to the assignor, is valid. 
 
 Reserving Application of Proceeds. — Mitchell r. Stiles, 1850, 1 H. 305. 
 A conveyance by one indebted in trust to sell and make such disposition of 
 the proceeds as the grantor shonld appoint is fraudulent on its face. 
 
 Resolution of a Corporation. — Guthries' Ap., 1879, 11 N. 269. Certain 
 claims were assigned by a corporation to attorneys for collection. On the 
 same day the corporation passed a resolution that the proceeds should be ap- 
 
84 ASSIGN MEXT FOE CEEDITORS. 
 
 plied to certain claims. Held that this resolution i^t having been communi- 
 cated to the attorneys there was no equitable assignment. 
 
 Sale by Debtor. — Lockhart r. Stevenson, 1869, 11 S. 64. Where an in- 
 solvent debtor makes a bill of sale to a creditor in consideration of his debts 
 to him and certain others, it is not nu assignment for creditors. If there is 
 any trust between the vendee of the goods and the other creditors it is not 
 created by the debtor. 
 
 Security for Surety. — McBrooms' Ap., 1862, 8 Wr! 92. An assignment 
 by a railroad company to a surety of certain assets to secure him against past 
 and present endorsements is not an assignment for creditors. 
 
 Secret Assignment by Partner. — McCutcheonu. Ackland, I88(i, 1 Ches. 
 Co. Rep. 82. One partner, his co-partner not being absent, cannot make a 
 secret assignment for creditors, and equity having got hold of the case will 
 vpind up the partnership and award damages. 
 
 Secret Provisions. — Shaffer v. Watkins, 1844, 7 W. & S. 219. Any trust 
 for creditors which contains secret provisions for the grantor is fraudulent 
 and void. 
 
 Securities to Redeem Notes.— Griffin v. Rogers, 1861, 2 Wr. 382. A 
 bank assigned certain securities to certain persons representing other banks 
 to secure these banks in redeeming the notes of the assignor. Held not an 
 assignment for creditors which must be recorded. 
 
 Specific Articles Excepted.— Knight v. Waterman, I860, 12 C. 2.58. An 
 assignment for creditors without any stipulation in favor of the debtor is not 
 avoided by an exception of certain specific articles. 
 
 Subsectuent Holder Considered Trustee. — Aycinena v. Pevies, 1843, 6 
 W. & S. 243. Any act or agreement vrhich makes an appropriation of part 
 of a general fund amounts to an equitable assignment of that part of it. And 
 ■where the whole fund is afterwards delivered to one as a stakeholder, he 
 holds it subject to that trust. 
 
 To Creditors — Held not in Trust for. — Henderson's Ap., 1858, 7 
 
 C. 502. An assignment to creditors is not an assignment in trust for credit- 
 ors, nor is it made such by an endorsementon the backof one of the accounts 
 assigned, "I assign to A. B. (attorney for the creditors) for the uses named 
 in his receipt to me. Signed, C. D. " 
 
 Testamentary Instrument. — Schads' Ap., 1878,7 N. ill. Adecedent 
 liad in his lifetime executed a paper, testamentary in its character, purport- 
 ing to be an assignment of a policy of in.surance to his Avife. Held that if it 
 was a will she took it subject to the debts of the estate, if an assignment she 
 must prove affirmatively that there was no fraud as to creditors, not having 
 done this, she was charged with the policy as administratrix. 
 
 Unrecorded— Attaching Creditors.- Mitchell r. Gendell, D. C. 1868, 
 25 Leg. Int. 269, S. C. 7 Phila. 107. An assignment for creditors not recorded, 
 followed by an agreement under which the property is sold by the sheriff 
 and bought in by the assignees, is not valid against attaching creditors. 
 
 lb. — ^Wharton r. Grant, 1846, 5 P.arr, 39. An assignment by a firm for its 
 creditors if not recorded is not valid against separate creditors of the part- 
 ners, who attach the property in the hands of the assignee. 
 
 lb. — Voidable. — Weber «. Samuel, 1848, 7 Barr, 499. An assignment for 
 creditors not recorded as provided for in the county of the assignor is void- 
 able at the election of the creditors, or, after the appointment of trustees 
 in insolvency by the trustees and by them olily. Commencing an action 
 is not notice of an intention to avoid the assignment until a narr is filed. 
 
 Voluntary— By Insolvent Void.— Skiles' Appeal, 1885, 14 Out. 253. 
 A voluntary assignment accepted in good faith, made by an insolvent be- 
 fore the fact of insolvency becomes known, is void as against creditors, 
 but the assignee will not be required to recovery without an allowance 
 
ASSIGXMEMT FOR CREDITOES. 85 
 
 being made for the amount expended bj' him in bona fide improvements 
 upon the premises. 
 
 lb.— Foreign— Extent of Validity.— Smith's Ap., 1883, 8 Out. 381. A 
 voluntary assignment for creditors made in another State is good against all 
 creditors with actual notice even before recorded in the counties of this State 
 where the assignor has property. 
 
 lb.— Independent of Statute.— Beck v. Parker, 1870, 15 S. 262. A volun- 
 tary assignment for creditors does not depend for its validity on any statute. 
 
 lb.— Depends on Lex Loci Contractus.— Law v. Mills, 1851, 6 H. 185. 
 The validity of a voluntary assignment for creditors is to be tested by the Ic.k 
 loci contractus. 
 
 When Affective Against Attaching Creditors.— Davis v. Wollerton, 
 C. P. 1876, 2 W. N. C. 428. An assignment for creditors has no validity 
 against attaching creditors until delivered or put in course of transmission 
 to the assignee. 
 
 III. 'Wben it Must be Recorded. 
 
 Act of March 24, 1818,— Scope of.— Englebert v. Blanjot, 1836, 2 Wh. 
 240, Eev'g. 1 Miles, 224. Act March 24, 1818, requiring assignments for the 
 benefit of creditors to be recorded is not confined to cases of assignments for 
 the benefit of all the creditors. 
 
 Agreement to Assign. — Thomas v. Lowber, 1850, 2 H. 438. An agree- 
 ment by a debtor, with certain parties that at their request he will assign to 
 them all his property for creditors, is such an assignment for creditors as must 
 be recorded in one month. 
 
 Agreement to Carry on Business.— Deer v. Sneathen, 1876, 25 Pitts. 
 L. J. 5. An agreement between a debtor and his creditors that the latter 
 should appoint a trustee who should carry on the business of the former for 
 the benefit of his creditors is not an assignment for creditors within the re- 
 cording acts. 
 
 Assignee Declining. — Johnson r. Herring, 1864, 10 Wr. 415. An assign- 
 ment for creditors must be recorded thirty days from Us date ; it makes no 
 difference that in the interim the assignee has declined and another has been 
 appointed. 
 
 Binding from Time Left for Record.- Mark's Ap., 1877, 4 N. 123. An 
 assignment for creditors is binding from the time it is left for record though 
 there has been no acceptance by the trustee. 
 
 Choses in Action. — Claflin v. Maglaughlin, 1870, 15 S. 492. An assign- 
 ment of cfto.ses in aciiora to specified creditors and others who might have claims 
 against the assignor, with an expressed design that the property should be 
 divided pro rata among his creditors and a direction to his attorney in who-^e 
 hands were these choses in action for collection that he should pay over the 
 same to these creditors, is not an assignment in trust for creditors, and need 
 not be recorded. 
 
 County Where Land Lies. — Dougherty v. Darrach, 1850, 3 H. 399. An 
 assignment of real estate for creditors must be recorded in the county, where 
 It is situated or a subsequent sale by the assignor to one without actual no- 
 tice of the assignment will pass title. 
 
 lb. — Eeigarts' Ap., 1846, 4 Barr, 477. Under the act of 1818, an assign- 
 ment for creditors must be recorded in the county where the assignor resides 
 as well as where the property is situated, and failing in this it is void. 
 
 Confession of Judgment. — Guy v. Mcllree, 1856, 2 C. 92, Reversing 1 
 Phila. 488. The confession of a judgment to one in trust for a particulai- 
 creditor is not an assignment which need be recorded, nor is it void as creat- 
 ing a preference. 
 
86 ASSUKMEXT FOR CREDITOKS. 
 
 Directly to Creditors. — Chaffees v. Kisk. 1855. 12 H. 432. An assign- 
 ment made directly to creditors is not an assignment in trust and therefore 
 voidable if not recorded. 
 
 Foreign — Notice. — Evans v. Dunkelberger, 1861, 3 Or. 134. An assign- 
 ment for creditors executed in another State may be recorded here, from which 
 time it vpill have validity. It also binds those having actual notice before 
 it is here recorded. 
 
 lb.— Sparks v. Heald, 1850, 1 Phila. 29, S. C. 7 Leg. Int. 19. Under act 
 of 1818, assignments by residents of other States need not be recorded. 
 
 lb.— Philson c. Barnes, 1865, 14 Wr. 230. Act May 3, 1855, providingfor 
 a record of an assignment for creditors in any countj- where there may be as- 
 sets, applies to assignments made without the State, and when not so recorded, 
 the assets may be attached by a creditor without notice of the assignment. 
 
 Lease in Trust. — Lucas v. Sunbury E. E. Co., 1859, 8 C. 458, re\ersing 
 :; Phila. 215. A lease of a railroad in trust to pay half the net earnings to 
 ere ditors, is an assignment for creditors and must be recorded. A record in 
 the county where the whole road was, though the principal office was in an- 
 other county, held sufficient. 
 
 Letter of Attorney.- "Watson v. Bagaley, 1849, 2 J. 164. A letter of at- 
 torney to one to collect certain moneys and pay over to specified creditors is 
 an assignment for creditors and must be recorded. 
 
 Levying Avoids Pro Tanto — Time of Recording. — Seal v. Duffy, 1846, 
 4 Barr, 274. A trust for creditors once accepted by the assignee will not be 
 suffered to fail on account of his misfeasance or nonfeasance. When not re- 
 corded within thirty days the creditors may avoid it, but levying on the as- 
 signed property only avoids it pro tanto. 
 
 Mortgage. — Manufacturers' & Mechanics' Bank v. Bank of Penna., 1844, 
 7 W. 335. A mortgage given to a trustee to pay a particular creditor is not 
 an assignment for creditors which must be recorded. 
 
 One County Only. — Follweiler v. Lutz, 1883, 6 Out. 585. An assignment 
 for creditors recorded in one county but not in another, is good against a pur- 
 chaser of land in the other, under a judgment hostile to the assignment, if he 
 have actual notice of it. 
 
 Of Surplus.— Flanigin v. Wetherill, 1839, 5 Wh. 280. An assignment for 
 certain creditors to a former assignee of a surplus remaining from the first as- 
 signment, which was for releasing creditors only, must be recorded. 
 
 Part of Creditors Only.— Murphy's Est., 1861, 2 Pitts. E. 271, S. C. 9 
 Pitts. L. J. 50, IS Leg. Int. 236. An assignment in trust for part of the as- 
 signor's creditors must be recorded. 
 
 Single Creditor.— Kern »■. Powell, 1881, 10 W. N. C. 547. An assign- 
 ment of property by a debtor for a single creditor must recorded. 
 
 Time of— Estoppel by Acceptance.— Burke's Est., 1850, 1 Pars. 470. 
 The fact that an assignment for creditors is not recorded within thirty days 
 avoids it only as against those objecting and one who has once claimed under 
 the assignment is bound by his election and is estopped from contesting the 
 assignment. 
 
 To Attorney Representing Judgment.— Wallace r. Wainwright, 1878. 
 6 N. 263. An assignment by a debtor to an attorney representing some of 
 his creditors of certain judgments and claims held by him, must be recorded 
 in thirty days (Sharswood and Paxson, JJ. , dissent. ) 
 
 When not— Voidable Only.— Goden's Ap., 1885, 14 Out. 581. An as- 
 signment for creditors not recorded as required, is not void but voidable as 
 against any creditor who may take any of the property in execution, and as 
 regards that jproperty only. 
 
ASSIGNMENT FOE CBEDITOES. 87 
 
 IV. Rights and Duties of Assis^nor and Assig^nee. 
 
 Assignee — Balance Due Assignor. — Heckert's Ap., 1871,19 8.264. An 
 assignee lor creditors beiug left with a balance for the assignor deposited it 
 in a bank and notified the assignor tu come and get it. The latter without 
 the others knowledge made an arrangment with the bank to leave it there 
 on interest, and draw interest on it ; the bank failed. Held, that the assignee's 
 liability was goue. 
 
 lb.— Bill by With Surety Against Co-Surety.— Belsterling.w. Prow- 
 attan, C. P. 1865, 22 Leg. Int. 229, S. C. 6 Phila. 40. Where an assignee for 
 creditors and onq of his sureties files a bill against the other surety who has 
 funds of the estate in his possession, for an account, the bill will be sustained. 
 
 lb.— Claim in Hands of.— Snyder's Est., 1838, 3 Wh. 495. Where an 
 auditor has found that there is a sum in the hands of an assignee for creditore 
 for distribution, the court may refer it to the auditor to make distribution 
 and is not bound to grant an issue to determine the validity of a petitioning 
 creditor's claim. 
 
 lb.— Creditor Must Make Claim to.— Burke's Est., 1850, 1 Pars. 470. 
 A trustee for creditors who makes distribution under order of the court is 
 protected. Creditors must come into court and assert their claims. 
 
 lb. — Delay of— Executor of Assignor.— Prevail v. Barclay, 1852, 5 Clark 
 •268, S. C. 2 Am. L. Reg. 172. An assignee for creditors who has done noth- 
 ing for five years, at which time his assignor dies will not be permitted to go 
 on and settle the estate in order to make his commissions, but must turn over 
 the affairs to the executor. 
 
 lb. — Distribution by. — Latimer's Est., 1841, 2 Ash. 520. A distribution 
 made by an assignee for creditors with the assent and approbation of all the 
 parties in interest is as effective as if made by an order of court. 
 
 lb. — Eoiuities of. — Gregory's Appeal, 1884, 4Penny. 221. An assignee for 
 the benefit of creditors stands in the position of his assignor, and, in the ca.se 
 of a partnership, is possessed of all the equities to require the application of 
 firm assets to firm debts, that the assignor would have if no assignment had 
 l)een made. 
 
 lb. — ^Entitled to Possession of Real Estate. — Griffith's Est., O. 0. 
 Chester, 1878, 1 Ches. Co. Rep. 39. The assignee for creditors is entitled to 
 the possession of the real estate as against the assignor and his creditors. 
 
 lb. — Interest of. — Fulton's Est., 1865. 1 S. 204. An assigneefor creditors 
 has no such interest in the real estate assigned as entitles him to be served 
 as terre tenant upon the revival of a judgment, nor does his death have any 
 effect on the lien of the judgment or debt. 
 
 lb.— Not Chargeable With Rent.— Detwiler's Est. , 1880, 15 N. 323. An 
 assignee for creditors who suffers the assignor to remain on the real estate is 
 not chargeable with rent. 
 
 lb. — ObjectingtO One of Two Sales.— Cro well r. Meconkey, 1847, 5 Barr, 
 168. A trustee for creditors by objecting to one of two sales impliedly con- 
 firms the other. At any rate by permitting the creditors to receive the money 
 from it, he is as much estopped as if he himself had received it. 
 
 lb. — Partners. — Moddewell v. Keever, 1844, 8 W. & S. 63. An assignee 
 for creditors of a partner has no rights as a member of the firm. 
 
 lb.— Payment of Invalid Debt by.— Stevenson's Est., 2838, 7 W. 480. 
 An assignee for creditors who pays a preferred debt on the sole evidence of the 
 assignment, is not protected in case it turns out that the debt was invalid. 
 
 lb. — To Produce Books and Papers.— ingraham v. Cox, 1830, i Ash. 38. 
 An assignee for creditors may be compelled to produce for inspection by the 
 creditors the books and papers of the debtor. 
 
 lb.— Property Taxable in Hands of.— Assignees' Ap., C. P. 1852, 5 Clark 
 
06 ASSIUXMENT FOB CKEDITOES. 
 
 im, S. C. 4 Am. L. J. 541. Assignees for creditors are not officers of the law, 
 therefore property in their hands is taxable. But see Eathvon v. School Di- 
 rectors, 1858, 6 C. 533. 
 
 . lb.— Presumption of Payment by. — Coates' Est., 1851, 2 Pars. 258. Af- 
 ter a lapse of twenty-one years, the presumption arises that as between an as- 
 signee for creditors and the creditors the debts have been paid and the trust 
 executed. 
 
 lb.— Selling Eeal Estate.— Gump's Est., C. P. Bradford, 1876, 9 Lan. 
 Bar, 3. Prior to act Feb. 17, 1876, an assignee for creditors could not sell 
 real estate free from encumbrances. 
 
 lb.— Sale Under Voidable Assignment.— Okie v. KeHy, 1849, 2 J. 3-2:;. 
 A iona fide sale made by assignees for creditors under an assignment, void- 
 able on its face, but before it was avoided by trustees in insolvency, is valid. 
 
 lb.— Volunteer.— Vandyke v. Christ, 1844, 7 W. & S. 373. An assignee 
 for creditors is not a purchaser within the meaning of the Statutes of Eliza- 
 beth. 
 
 lb. — lb. — Spackman r. Ott, 1870, 15 S. 131. An assignee for creditors is 
 a mere volunteer and as regards secret trusts stands iu the shoes of his as- 
 signor. 
 
 lb. — lb. — Knowles v. Lord, 1839, 4 Wh. 500. Assignees for creditors are 
 not purchasers for a valuable consideration within the doctrine in favor of 
 such purchasers, although the assignment stipulated for a release. 
 
 lb. — Voluntary Assignment. — Liability of, Under.— Gray?). Bell, 183."), 
 4 W. 410. Assignees under a voluntary assignment are not liable to be sued 
 for money had and received before settling an account. 
 
 Assignor— Intention of— Order of Sale. — Betz'sEst., C. P. Bucks, 1886, 1 
 Pa. Co. C. R. 587. Where an estate has been assigned in trust for creditors, 
 the court will not order a sale under the act of February 17, 1876, where the 
 only apparent purpose is to.enable the assignee to make distribution instead 
 of the sheriff, and so make his commissions. 
 
 lb.— Resulting Trust After Thirty Years.— Potter's Est., 1867, 4 S. 465, 
 Assignees for creditors made a final dividend twenty-six years after the as- 
 signment. Thirty years later it was held the assignor was eutitled to a bal- 
 ance in their hands, there being always a resulting trust in favor of the 
 grantor. 
 
 Defence. — Reynolds v. Taylor, C. P. Lancaster, 1876, 8 Lan. Bar, 62, S. C. 
 24 Pitts. L. J. 28. AVhatever would be a good defence against one who as- 
 signs for creditors is good against his assignee. 
 
 Trustees May Contest Prior Fraudulent Assignments.— Thomas v. 
 Phillips, 1848, 9 Barr, 355. When trustees in insolvency have been appointed, 
 they have the sole right of contesting any previous fraudulent assignment. 
 
 lb.— Secret Trusts Affect.— Krause v. Beitel, 1831, 3 R. 199. The trus- 
 tee of an insolvent debtor is affected by all secret equities that existed be- 
 tween the assignor and his debtors and creditors at I he time of the assign- 
 ment. 
 
 Voluntary Assignment— Cannot be Defeated.— Golden's Ap., 1885, 14 
 
 Out. 581. After a voluntary assignment for the benefit of creditors has been 
 duly executed and delivered, a trust has thereby been created which neither 
 the assignor nor his assignee, nor both, can defeat. 
 
 v. Preferences. 
 
 ActofAprill7, 1843— Application of— Miners' Nat. Bank's Ap., 18f;-\ 
 
 7 S. 193. Act April 17, 1843, applies to assignments for certain creditoi-s 
 when others are left out ; this really creates preferences. The statutes and 
 cases on this subject analized. 
 
ASSIGNMENT FOB CEEDITOES. 89 
 
 Act of April 9, 1849— Exemption Resei-ved.— Waiford v. Shirk, 1856, 
 2 G. 473. Since act April 9, 1849 (exemption), a reservation of $300 iu a deed 
 in trust for creditors does not avoid it. 
 
 Exemption Reserved— Creditors With Waiver of.— Myers' Ap., 1875, 
 28 S. 462. Where a debtor has assigned his property iu trust for his credi- 
 tors, reserving |300, a creditor whose claim is without exemption must assert 
 his claim against the debtor, not against the assignee. 
 
 Lease of Railroad.— Bittenbender V. Suubury R. E. Co., 1861, 4 Wr. 269. 
 A lease of one railroad to another in trust to pay debts is an assignment for 
 creditors and void so far as it contains preferences. 
 
 lb. — Gratz r. .Penna. E. E. Co., 1862, 5 Wr. 447. A lease by one railroad 
 to another of all its property, the rent to be 30 per cent, of the gross earnings, 
 ■which per cent, was to be applied first to taxes and interest on bonds, is not 
 an assignment for creditors with preferences. 
 
 Preferred Creditor— United States as a.— Downing v. Kintzing, t816, 
 2 S. & R. 326. Where an insolvent has m ade two different assignments to 
 two diiferent sets of creditors the United States as a preferred creditor can go 
 against either ; and that fund is entitled to contribution from the other. 
 
 When Valid— Prior to 1843.— Trustees of Bank of United States {in re), 
 1850, 2 Pars. 110. A preference in an assignment for creditors prior to 1843 
 was valid. 
 
 Ih.— Conditioned on Release.— Wilson v. Kneppley, 1823, 10 S. &E. 439. 
 An assignment in trust for such creditors as release is valid, and those not re- 
 leasing have no rights thereunder. 
 
 lb. — Bayne v. Wylie, 1840, 10 W. 309. A stipulation in an assignment 
 for creditors, that creditors releasing and agreeing to take the goods in specie 
 at their cost price, shall be preferred, is valid. 
 
 lb. — Sheerer v. Lantzerheizer, 1837, 6 W. 543. A voluntary assignment 
 of property in trust for creditors, giving a preference to those who should re- 
 lease, is valid. 
 
 lb. — ^Release After Dividend. — Bank of Pennsylvania V. Gratz, 1809, 1 
 Browne, Appendix p. 69. An assignment for releasing creditors enures to 
 the benefit of one who signs after a dividend has been declared and paid, and 
 such creditor may sue for and recover a like per cent of his claim. 
 
 lb.— Time of Release.— Cheever i>. Imlay, 1822, 7. S. & R. 510. An as- 
 signment for creditors who release within a certain time does not enure to 
 the benefit of one who releases after the time expires and before a dividend 
 is paid. 
 
 E).— Subsequent to 1843.— Lawi;. Mills, 1851, 6 H. 185. Under act April 
 17, 1843, an assignment with preferences is void only as to the preferences. 
 
 lb. — Agreement by Assignor for Services. — Faunce v. Lesley, 1847, 
 6 BaiT, 121. An agreement made the same day as an assignment to a credi- 
 tor, that the apprentices of the assignor should work for the creditor and the 
 former receive pay for their services, is not fraudulent, because the other 
 creditors are put in a better position by having these services put into a 
 tangible form which they can lay hold of. 
 
 lb.— Assignment by Newly Constituted Firm.— Baker's Ap., 1853, 9 
 H. 76. An assignment by a firm for ite creditors, is not void as creating a 
 preference against the creditors of the firm as differently constituted a year 
 before, even though the new firm had assumed the debts of the old one. 
 
 lb.— Judgments Prior to Assignment.— Blakey'sAp., 1848, 7 Barr, 449. 
 Act April 17, 1843, prohibiting assignments with preferences does not apply 
 to judgments given ten days before the assignment. 
 
 lb.— In Trust for Releasing Creditors.— Lea's Ap., 1848, 9 Barr, 504. 
 Act April 17, 1843 (P. L. 273), only forbids preferences in assignments for 
 creditors. An assignment in trust for those releasing is valid. 
 
90 ASSIGNMENT FOE CBEDITOKS. 
 
 lb. — Time of Assignment.— Wilson v. Berg, 1878, 7 N. 167. Preferences 
 avoid an assignment for creditors only when made at the time of the assign- 
 ment. If made before they are valid. 
 
 lb.— Sale to Creditor.— York Co. Bank v. Carter, 1861, 2 Wr. 446. A sale 
 of property by a debtor to his creditor on the consideration of his applying 
 the price to his own debt and to the debts of certain specified creditors is not 
 void as creating a preference. Preferences are only void in assignments in 
 trusts for creditors. 
 
 TI. Property Included. 
 
 Claim by United States.— Sibbald's Est. , 1852, 6 H. 249. A claim against 
 the United States will not pass by an assignment for creditors of all the claim- 
 ants effects unless specially mentioned. 
 
 Creditor of Trustee. — Ludwig v. Highley, 1847, 5 Barr, 132. An assign- 
 ment for creditors does not convey an estate held in trust and the doctrine 
 that possession is the only indicia of ownership does not apply to lands so as 
 to give creditors of the trustee an equity superior to that of the cestui que trust. , 
 
 Dower not Divested by.— Blaekman's Est., 0. C. 1866, 23 Leg. Int. 125, 
 S. C. 6 Phila. 160. An assignment for creditors by the husband alone does 
 not divest the wife's dower. 
 
 lb. — Helfrich v. Obermyer, 1850, 3 H. 113. Dower is not barred by a vol- 
 untary assignment for creditors in which the the vrife did not join. 
 
 Feme Covert — Property of in Husband's Assignment. — Eogers v. 
 
 Fales, 1847, 5 Barr, 154 . A feme covert may acquire property in chattels either 
 from her husband or by gifts from strangers, and such property does not pass 
 by a voluntary assignment of the husband for creditors. 
 
 Foreign Assignment— Recording. — Lewis v. Barry, 1872, 22 S. 18. An 
 assignment for creditors made in a sister State including property in this State 
 is valid if recorded here. 
 
 Husband and Wife. — Slaymaker «. Bank of Gettysburg, 1849, 10 Barr, 
 373. Stock bequeathed to a married woman and over which her husband has 
 exercised no acts of ownership, will not pass by a general assignment for credi- 
 tors made by the latter. 
 
 Legacy of Wife. — Skinner's Ap., 1847, 5 Barr, 262. An assignment by 
 a husband of all his personal property which he is in any manner entitled to, 
 be the same in possession or action, does not include an outstanding legacy 
 to his wife. 
 
 Mortgage— Recording.— Dubois' Ap., 1861, 2 Wr. 231. An assignment 
 to a creditor of all the debts due to the assignor, on account of a debt due to 
 the assignee, cairieswith it a mortgage which secures a debt due the assignor. 
 Such assignment need not be recorded. 
 
 Of Business. — Giuterman v. Landis, C. P. Dauphin, 1872, 2 Pears. 188. 
 An assignment by a m.inufacturer of his property to a trustee for the purpose 
 of carrying on the works for the benefit of his creditors, is an assignment in 
 trust for creditors and protects the property from levy and sale. Aff 'd. in 
 Peters v. Landis, 26 S. 289. 
 
 Real Estate Encumbered to Full Value— Partners.— Fassit v. Phillips, 
 1839, 4 Wh. 399. Where partners have made a conveyance of all their part- 
 nership effects for the benefit of creditors ; equity will not enjoin the assignee 
 from proceeding on the ground that there is separate real estate not included 
 in the assignment, when it appears that the liens thereon exceed its value. 
 
 lb.— Hill's Est., C. P. Westmoreland, 1886, 1 Pa. Co. C. E. 584. Where 
 an assigned estate consists wholly of real estate encumbered beyond its assessed 
 value, the<»urt will, not order a sale. 
 
 Remainder— Account. — Smith's Ap., 1883, 8 Out. 381. An assignee for 
 
ASSIGNMENT FOK CEEDITOES — ATTACHMENT. 91 
 
 creditors may bring a bill against the life tenant of a legacy of which the as- 
 signor has the remainder, for au account and to restrain any improper con- 
 version. 
 
 Resulting Trust.— Sheetz v. Marks, C. P. Dauphin, 1878, 2 Pears. 302. 
 Where a trustee uses trust money to buy land which he afterwards exchanges 
 for other land, a resulting trust arises which follows the second tract into the 
 hands of an assignee for creditors. 
 
 lb.— Voluntary Assignment.— Webb v. Dean, 1853, 9 H. 29. A volun- 
 tary assignment for creditors leaves a resulting trust in the assignor which 
 can be bound by a judgment against hiin. 
 
 lb.— Owner of- -Trustee's Assignment. —Wolf v. Eichelberger, 1831, 2 
 P. & W. 346. One having a resulting trust in land can claim the proceeds 
 of the sale of that land in the hands of the trustee's assignee for creditors. 
 
 Right of Action Against Bail in Error— Set-Off.— Williams «. Wood, 
 C. P. 1875, 1 W. N. C. 412. A right of action against bail in error being a 
 cliose in action, an assignee for creditors takes it subject to all set-offs which 
 were valid against the assignor. 
 
 Trust Property. — Garrison's Ap., 1858, 2 Gr. 216. Where an assignee for 
 creditors recovers from a third person property of the assignor held on valid 
 trusts, the trusts are not thereby defeated. 
 
 lb. — Thompson's Ap., 1853, 10 H. 16. Trust funds can only be followed 
 as long as their identity can be traced. When mingled in the business of the 
 trustee who afterwards assigns for creditors, the cestui que trust is entitled to 
 no preference. 
 
 lb.— Thomson v. Dougherty, N. P. 1825, 11 S. & E. 448. An assignment 
 for creditors does not effect a trust held by the assignor. , - 
 
 Vested Remainder. — Stuckertu. Harvey, 1836, 1 M. 247. An assignment 
 for creditors of all the property, real and personal, of the assignor carries the 
 interest which he has under a will directing a trustee on the death of a cer- 
 tain person to convey the fund to him without the control of any person and 
 without being subject or liable for his debts, the cestin que trust being alive 
 at the time of the assignment. 
 
 ASSOCIAXIOIV. 
 
 See Unincoepoeated Association. 
 
 AXXACHMEKTT. 
 
 I. Peopeety Liable to. 
 II. Peesons Liable to. 
 III. Jurisdiction. 
 rv. Peoceeduee. 
 
 I. Property Liable Xo. 
 
 Chose in Action.— Canal Co. v. Ins. Co., D. C. 1857, 14 Leg. Int. 346, S. 
 C.,2 Phila. 316. A chose in action which has been equitably assigned can- 
 not be attached as the property of the assignor. 
 
 Mortgage as Security.— Custer v. Nice, C. P. 1882, 12 W. N. C. 268. A 
 
99 ATTACHMENT. 
 
 mortgage, which is in the hands of a third party as security for a claim held 
 against defendant which has been satisfied, cannot be attached by plaintifi" in 
 the hands of this third person as garnishee. 
 
 Spendthrift Trust.— Bachman v. Wilcox, 1876, 2 W. N. C. 438. Theiu- 
 come of a spendthrift son trust is not liable to attachment in the hands of 
 the trustee. 
 
 Trust— Kemittance by Debtor.— Sharpless v. Welsh, 1803, 4 Dall. 279. 
 A remittance made by a debtor for payment of his creditors is a trust fund 
 and cannot be attached. 
 
 Trust Fund— Proceeds of.— Park v. Matthews, 1859, 12 C. 28. The pro- 
 ceeds of a trust fund in the hands of trustees is liable to attachment. 
 
 Trustee — Cestui Que Trust as Defendant. — Kinney v. Hemphill, C. P. 
 1876, 2 W. N. C. 323. An attachment will lie against funds in the hands of 
 a trustee to which defendant is entitled as cestui que trust. 
 
 Trustee— Money Baised by Sale. — Fenton v. Fisher, 1884, 42 Leg. Int. 
 28. Money in a trustee's hands raised by a sale can be attached. 
 
 Trustee — ^Deposit by. — Paxson v. Sanderson, D. C. 1858, 15 Leg. Int. 397, 
 S. C. 3 Phila. 303. Funds deposited by a trustee with his own account are 
 liable to attachment for his own debts. 
 
 II. Persons Liable To. 
 
 Books and Papers — Subpoened to Produce. — Monroe jj. Mechanics' Bu ild- 
 ing Assoc, C. P., 1883, 14 W. N. C. 106. An attachment will not issue against 
 one subpoened toproduce books and papers before an examiner. 
 
 Contempt— Notice.— Young v. Salber, C. P. 1876, 2 W. N. C. 394. An 
 attachment for contempt will not be granted against one who has had no no- 
 tice of the continuance of a special five day injunction. 
 
 lb.— Witthaus V. Wallace, C. P. 1876, 2 W. N. C. 618, S. C. 23 Pitts. 
 L. J. 199. An injunction having been granted against a label similar in gen- 
 eral effect though slightly different in name, design and color, the defend- 
 ant is in contempt if he changes the color slightly and goes on with the busi- 
 ness. 
 
 Cost— Complainant. — Cochran V. Gowan, N. P. 1874, 31 Leg. Int. 252, 
 S. C. 9 Phila. 299. A complainant who has tailed in his suit cannot he at- 
 tached for non-payment of costs. 
 
 lb.— Defendant.— Church's Ap., 1883, 7 Out. 263. A defendant may be 
 attached for costs on a decree entered against him in a suit for breach of trust 
 although the trust arose ex contractu. 
 
 lb. — Pierce's Ap., 1883, 7 Out. 27. Since the act abolishing imprisonment 
 for debt, a defendant in equity cannot be attached for costs (including mast- 
 er's fee) unless the suit established a breach of trust. 
 
 Decree— Imprisonment.— Com'w'lth v. Keeper, 1856, 13 Leg. Int. 276, S. 
 C. 2 Phila. 153. A decree for the payment of money cannot be enforced by im- 
 prisonment. 
 
 Iiyunction- Disobedience.— Bulloch v. McDonough, C. P. Dauphin, 1874, 
 2 Pears. 195. A party who meddles with property under the control of an 
 injunction is guilty of contempt of court, and a judge upon proof thereof will 
 issue an attachment forthwith, which attachment runs throughout the State. 
 
 lb.— Straeters' Est., O. C. Luzerne, 1884, 2 Kulp, 288, S. C. 12Luz.L. Eeg. 
 77. One who disobeys an injunction of which he has actual notice does so 
 at his peril although he has not been regularly served therewith. ' 
 
 lb.— Ehrgood v. Ehrgood, C. P. Lackawanna, 1881, 3 L. T. N. S. 206. Upon 
 rule by plaintiff, an attachment will issue against a defendant who has dis- 
 obeyed an injunction. 
 
ATTACHMENT. 93 
 
 Interlocutory Order— Expense.— Comm. ex r'el. Keely v. Perkins, 1889, 
 9 Crum. 36. An interlocutory order on a defendant in equity to exhibit cer- 
 tain machines, compliance with the order involving expense, will not be 
 enforced by attachment. 
 
 Supersedeas— Parties Thereto Controlled.— New Brighton E. E.'sAp., 
 1884, 9 Out.' 13. An appeal from a decree in equity, duly taken is a super- 
 sedeas but the court below (concurrently with the Supreme Court) retains the 
 right to so control the actions ot the parties by attachment if necessary as to 
 preserve the status in quo of each. 
 
 Trustee.— Fuller's Est., C. P. 1877, 4 W. N. C. 495. The court may dis- 
 charge a trustee but cannot compel him by attaohmentto enter new security. 
 
 Witness Before Examiner.— City v. McManes, C. P. 1885,42 Leg. Int. 444. 
 A witness before an examiner can be compelled by attachment to refer to his 
 books in order to be able to answer a proper question. 
 
 III. Jurisdiction. 
 
 Common Pleas— Enforcing Decree.— Chew's Ap., 1863. 8 Wr. 247. The 
 equity powers or our common pleas extend to enforcing their decrees by at- 
 tachment. This species of arrest is excepted from the act of 1842. 
 
 lb.— Order of View— Waste.— Lutz v. Winkler, C. P. 1877, 4 W. N. C. 
 442. The common pleas has, under its equity powers, the right to grant an 
 alternative order for an attachment, or to permit an owner of property to 
 view the same to see if waste is being committed. 
 
 Orphans' Court— Enforcing Specific Performance.— Chess' Ap., 1846, 
 4 Barr, 52. The orphans' court has the authority of a court of chancery to 
 decree, and, by necessary implication, to enforce by attachment, specific per- 
 formance of a contract. 
 
 lb.— Boyle's Est., O. C. Luzerne, 1884, 2 Kulp, 229, S. C. 14 Lan. B. 141, 
 11 Luz. L. Eeg. 301, The orphans' court may decree specific performance 
 against a purchaser at its own sale and enforce the decree by attachment. 
 
 IV. Proceedure. 
 
 Administrator— Decree Against — Not Final. — Mattem's Ap., 1876, 3 
 W. N. C. 166. An order for an attachment on an administrator c. t. a. for 
 the payment of money, is not a final decree there being an appeal pending 
 from the register who has revoked the letters of admistration. 
 
 Bank — Gamishee-r-Set-OflF. — Manufacturers' Nat. Bank v. Jones, 1882, 
 2 Penny. 377. A bank which is garnishee cannot set-off the amount of a note 
 not yet due, discounted by it for the debtor, although the latter is insolvent. 
 
 Contempt — Vacation. — Com'w'lth. v. Dow, C. P. Luzerne, 1877, 6 Luz. 
 L. Eeg. 219. A rule for an attachment for contempt taken in vacation should 
 state vfhere the defendant should appear. 
 
 Costs — Complainant. — Cochran V. Gowan, 1874, 3 Luz. L. Eeg. 14'i. An 
 attachment will not be granted against a complainant who has lost and has 
 failed to pay costs. 
 
 lb.— Decree for.— Scholl v. Schooner, C. P. Berks, 1863, 1 Wood. Dec. 
 134. A decree in equity for payment of costs may be enforced by attachment 
 execution. 
 
 Papers not Filed in Court. — Matthews v. Scranton, C. p. Luzerne, 1878, 
 8 Luz. L. Eeg. 68, S. C. 25 Pitts. L. J. 179. An attachment will be set aside 
 where it appears that the papers were not filed in court although the defend- 
 ant was served with notice. 
 
 Service.— Eobb v. Pepper, C. P. 1882, 11 W. N. C. 497, S. C. 39 Leg. Int. 228, 
 15 Phila. 191. In chancery an attachment mat/ issue although there has been 
 no personal service on the party. 
 
94 ATTOENEY AND CLIENT— BILL OF INTEEPLEADEE. 
 
 ATTORNEY AlVD CI^IENT. 
 
 See Confidential Relation, II ; Feaud, II. 
 
 ATTOR?(BY'S COIHIHISSIOIV. 
 
 See MoETGAGB, II. 
 
 AUDITOR. 
 
 See Mastee. 
 
 BAY "WINDOWS. 
 
 See Injunction, I C. 
 
 BELL. 
 
 See Injunction, I C. 
 
 BENEFICIAL SOCIETY. 
 
 See Chaeity, II. 
 
 BILL (GENERALLY.) 
 See Practice and Pleadings, V. 
 
 BILL OF DISCOVERY. 
 
 See Discovery. 
 
 BILL OF EJECTMENT. 
 See Ejectment. 
 
 BILL OF INTERPLEADER. 
 
 See Inteepleadee. 
 
BILL OF PEACE — BOUNDARIES. 95 
 
 BII^L OF PEACE. 
 
 See Peace. 
 
 See Pbacticb and Pleading, II. 
 
 BODY. 
 
 See Dead Body. 
 
 BOMA-FIDE PVRCIIASER. 
 
 See Puechasee. 
 
 bo:n». 
 
 See MOETGAGE, III. 
 
 BOOKS AND PAPERS— (PRODUCTION OF.) 
 
 See Peactice and Pleading, III. 
 
 BOUNDARIES. 
 
 Estoppel.— Kramer v. Goodlander, (No. 1), 1881, 2 Out. 353. Where one 
 by positive acts misleads another as to the boundary line between them, he 
 is estopped, though at the time he thought he was rightly representing it. 
 
 InjUBCtion. — Hartman v. Moul, C. P. Adams, 1880, 1 York L. R. 111. 
 Equity will not grant an injunction whire one of the matters is a disputed 
 boundary. 
 
 lb. — ^Mines. — Alter v. Bowman, 1874, 2 Post. 323. Equity will not re- 
 strain the working of a mine on a complaint that the boundary has been 
 crossed if that line is in dispute. 
 
 lb. — Bemoving Fence. ^Minnig's Ap. , 1876, l N. 373. In a dispute about 
 a boundary involving a foot or more of land apreliminary injunction will not 
 be granted against removing the present fence until the title to the strip be 
 determined in a pending ejectment, especially where the master reports ad- 
 versely to the complainants claim. It is but a temporary trespass and any 
 injury can be compensated by damages. 
 
96 BOUNDARIES — CAVEAT EMPTOR. 
 
 lb.— Trespass.— Wilkesbarre Coal Co. v. Elliott, C. P. Luzerne, 1872, 4 
 Lan. Bar. No. 43. A preliminary injunction to restrain trespasses, will not 
 be granted where there is a dispute a.s to the boundary line. 
 
 Jurisdiction. — Norris' Ap., IMTO, 14 S. 275. Equity has no jurisdiction 
 to fix the boundaries of legal estates unless some special equity exists. Nor 
 do the acts of April 15, 1858, (P. L. 267) and April 5, 1859, (P. L. 359) ex- 
 tend this jurisdiction. 
 
 lb. — Legal Estate. — Summit Branch E. R. v. Leininger, C. P. Schuyl- 
 kill, 1880, 1 Sch. L. R. 258. Equity has no jurisdiction to fix the boundaries 
 of legal estates unless some equity is superinduced by the acts of the parties, 
 until their rights have been established at law. 
 
 lb.— Different Counties.— Tierney's Ap., 1881, 3 L. T. N. S. 233. Equity 
 has no jurisdiction to settle disputes as to the boundary line between two 
 counties. 
 
 lb.— Ejectment Bill.— Tillmes u Marsh, 1871, 17 S. 507. A bill which 
 states title and that others are in possession and have confounded the bound- 
 aries, is a mere ejectment bill and as such demurrable. To give equity juris- 
 diction some equity must have arisen from the acts of the parties. 
 
 BO"W "WINDOVSr. 
 
 See Injunction, I C. 
 
 BUILDING ASSOCIAXIOIV. 
 
 See Adju.stjient, I A. ; II ; Mortgage, IV. 
 
 CANCELLAXION. 
 
 See Reformation, II. 
 
 CASE. 
 See Equitable Actions. 
 
 CAXCHIXG BAROAIXS. 
 
 See Fraud, II. 
 
 CAVEAT EMPTOR. 
 
 See Purchaser. 
 
CERTIFICATE OF COUNSEL— CHANCERY POWERS. 97 
 
 CERTIFICATE OF C01JXSEL. 
 
 See Abaiement, I A ; Practice and Pleading, V. 
 
 CHAPiCERV PO'WERS. 
 
 See also Conditional Verdict ; Ejectment, V B. 
 
 Application of. — Kuhn v. Nixon, 1826, 15 S. & E. 118. "With ns equity 
 and law are controvertible terms ; the principles of each are to he applied by 
 the jury under the direction of the court. 
 
 Assumpsit by Cestui Que Trust.— Martzell v. Stauflfer, 1832, 3 P. & W. 
 398. Assumpsit can he maintained on equitable principles by a cestui que 
 trust against a trustee who is wasting the trust estate, and the court can pre- 
 serve the intent of the settler that the cestui que trust shall not control the fund, 
 either by controlling the execution by ordering the sheriflf to pay the money 
 into court, or by a special judgment. 
 
 Commissioner— Appointment of. — Frank v. CJolhoun, 1868, 9 S. 381. 
 The authority of the court to appoint a commissioner to take testimony is an 
 equity power. The commissioner may administer oaths. 
 
 Discharge of Trustees — Compelling Payment. — Reese v. Ruth, 1825, 
 13 S. & R. 434. The courts of Pennsylvania have no power to discharge 
 trustees, but in an action by the cestui que trust for money had and received 
 can compel them to pay over the income. 
 
 District Court — Discovery. — Page v. Heath, 1867, 6 S. 215. A power, 
 though in its nature equitable, specifically conferred by statute, and to be 
 exercised in a particular way pointed out by statute, is not such a chancery 
 power as is granted to a court by an act giving it general chancery jurisdic- 
 tion in matters relating to that subject. Therefore the district court has no 
 jurisdiction to entertairi a bill of discovery in aid of an execution. 
 
 Ejectment. — Hawthorn v. Bronson, 1827, 16 S. & E. 269. In Pennsylvania 
 equity is law. The equitable action of ejectment forms a considerable por- 
 tion, of our law. 
 
 lb. — Peebles v. Reading, 1822, 8 S. & E. 484. Ejectment is an equitable 
 action ; in it our courts are governed by the rules of a court of chancery, 
 and wherever chancery would execute a trust or decree a conveyance, the 
 courts of this State, by the instrumentality of a jury, will direct a recovery 
 in ejectment. 
 
 lb. — Corson v. Mulvany, 1865, 13 "Wr. 88. Giving our courts equity pow- 
 ers to compel specific performance of contracts has not taken away the remedy 
 by equitable ejectment, the two are concurrent. 
 
 lb. — Evidence— Specific Performance. — Henderson v. Hays, 1834, 2 W. 
 148. Ejectment in this State is the substitute for a bill in chancery to en- 
 force specifically a contract for the sale of land ; the same principles conse- 
 quently govern the admission of evidence, and only a fair and conscienable 
 bargain will be enforced by the court. 
 
 Extent of— Fraud. — Batdorf v. Albert, 1868, 9 S. 59. Law as adminis- 
 tered in Pennsylvania, is as efficient to prevent the fraudulent use of an in- 
 strument as equity is to restrain it. 
 
 lb.— Arbitrators' Award.— Cochran v. Eldridge, 1865, 13 "Wr. 365. The 
 equitable power of the court to open a judgment and let defendant into a de- 
 fence on its merits, extends to judgments on award of arbitrators although 
 there are statutory remedies in such cases. 
 7 — equity. 
 
98 CHANCERY POWEES. 
 
 Forfeiture. — Solomon v. Wilson, 1835, 1 Whart. 241. A mortgage was 
 assigned on condition that if the receipts of a certain theatre, on a certain 
 night, should amount to $300, or the deficit be made up within one week by 
 the assignor, the assignmentto be avoided, otherwise to stand. The condition 
 was not fuliilled. Held, that, as the value of the mortgage was much greater 
 than the deficit, the assignment was in the nature of a penalty and the court 
 would equitably relieve against the forfeiture by allowing the assignor to re- 
 deem by paying deficit. 
 
 lb. — Conditions. — Wilson v. Lewis, 1799, 2 Y. 466. A condition which 
 works a forfeiture will not be enforced unless the plaintiff has fully discharged 
 his part. In any event a court of equity will relieve against the forfeiture 
 and it seems that our law courts would have done the same. 
 
 Husband and Wife — Cboses in Action. — Yohe v. Barnet, 1808, 1 Bin. 
 358. It is to be regretted, but is nevertheless the fact, that our courts have 
 no power to insist on a provision for the wife when the husband reduces her 
 ehoses in action to possession. 
 
 Il^unction — Perpetual. — Commonwealth V. Rush, 1850, 2 H. 186. Our 
 chancery powers are sufficient to grant a perpetual injunction where the 
 nuisance threatened would be irreparable. 
 
 Jurisdiction. — Church V. Euland, 1870, 14 S. 432. The investing of our 
 courts with separate and regular chancery powers did not divest them of any 
 of the jurisdiction possessed before of affording the same relief through com- 
 mon law forms. Equity is still part of the law of Pennsylvania. 
 
 lb.— Ardesco Oil Co. v. N. A. Mining Co., 1870, 16 S. 370. Equityisstill 
 part of our common law and is administered through common law forms as it 
 was before a separate equity jurisdiction was conferred. 
 
 lb. — McCallum v. Germantowii Water Co., 1867, 4 S. 40. Our common 
 pleas are courts of both law and equity^ and when, as chancellors, the equity 
 side deems it necessary to have an issue of fact, they, asjudges, have the power 
 to try that issue. 
 
 lb. — Dohnert's App., 1870, 14S. 311. The jurisdiction of our courts to ex- 
 ercise the powers of a coui't of chancery depends upon statutory enactments. 
 
 lb. — Aycinena v. Peries, 1843, 6 W. & S. 243. Our common law courts 
 still exercise concurrent jurisdiction in many matters of equity, proceeding 
 as heretofore through common law forms. 
 
 lb.— Mylin v. Mylin. C. P. Lancaster, 1835, 10 Lan. Bar. 129. EquitaWe 
 modes of relief cannot be assumed by the courts, but they must administer 
 equity through common law forms. 
 
 Legatee Suing.— Dunlop v. Bard, 1830, 2 P. & W. 307. The act of As- 
 sembly which gives a legatee the right to bring an action at law for the leg- 
 acy, gives to the law courts the same jurisdiction as is exercised by chancery 
 in other places, and they must proceed on the same principles. 
 
 Mistake. — Huss ■». Morris, 1869, 13 S. 367. Our courts have equity pow- 
 ers to relieve against a mistake of a scrivener in preparing a deed, the mis- 
 take being proven by parol evidence. 
 
 Orphans' Court.— Dimock's Est., 1845, 3 Clark, 317, S. C. 5 Pa. L. J. 261. 
 The orphans' court may exercise such chancery powers over sales under their 
 order as a chancellor would over sales made by a master appointed by him. 
 
 Pleading— Case.— Green wait V. Horner, 1820, 6 S. & R. 71. The action of 
 case is founded on the justice and conscience of the plaintiff's case, and is in 
 the nature of a bill in equity and in effect is so ; therefore, a former recovery , 
 release, or satisfaction, need not be pleaded, but may be given in evidence. 
 
 lb.— Declaration.— Butcher v. Metts, 1836, 1 M. 153. Where a plaintiff, 
 in a purely legal action, attempts to establish an equitable right, he must draw 
 his declaration in analogy to a hill in equity. If the declaration does not set 
 forth the equitable grounds for relief a conditional verdict can not stand. 
 
 lb.— lb.— Irvine v. Bull, 1838, 7 Watts, 323. Our courts, by a conditional 
 
CHANCERY POWERS. 99 
 
 ■verdict, accomplish the same result as a chancellor would by decreeing 
 specific performance. To do this the declaration contains first a count set- 
 ting forth such facts as would move a chancellor, namely, the agreement and 
 part performance, and then other counts for damages for breach of contract, 
 and under this the jury give damages so large as to make performance pre- 
 ferable but conditioned to be released on the contract's being specifically per- 
 formed. It is, therefore, relevant to give evidence as to the present value of 
 the land in order that the jury may know for what amount to fix the verdict. 
 lb.— Payment.— Hawk v. Geddis, 1827, 16 S. & E. 23. Our courts of law, 
 through the instrumentality of a jury, exercise chancery powers, on a plea of 
 payment, etc. Under such plea and notice evidence may be given of any- 
 thing that would prove that in equity and good conscience the plaintiff should 
 not recover. 
 
 Recovery— G-rounds of.— Green wait v. Homer, 1820, 6 S. & E. 71. What- 
 ever will in equity and conscience, according to existing circumstances, pre- 
 clude the plaintiff from recovering, may, in case, be given in evidence by the 
 defendant under the general issue, because the plaintiff must recover on 
 the justice and conscience of his own case, and on that only. 
 
 Stay of Execution. — Cherry v. Robinson, 1795, 1 Y. 521. As equity would 
 decree an injunction after three trials in ejectment resulting in a verdict for 
 the same title, so the courts of Pennsylvania would stay further proceedings 
 by their summary power. 
 
 Set-Oflf.— Morgan v. Bank of Nort'h America, 1822, 8 S. & E. 73. Courts 
 of law in Pennsylvania apply the equitable doctrines of set-off. 
 
 lb. — Morrison v. Moreland, 1826, 15 S. & R. 61. It seems that our courts 
 under their equitable powers would allow a set-off which accrued after suit 
 brought if plaintiff has agreed that it should be used as such. 
 
 lb.— Frantz v. Brown, 1830, 1 P. & "W. 257. Set-off, originally was noth- 
 ing more than an equitable defense, which the legislature has thought fit, 
 in plain and simple cases, to subject to the jurisdiction of the courts of com- 
 mon law, reserving to chancery its original jurisdiction of cross demands 
 which do not fall within the statute. Our courts, owing to the equitable 
 principle with which our law is tinctui'ed, can go beyond the simple cases 
 provided for by statutes, and do justice by means of a conditional verdict. 
 
 Statute of Frauds.— Thomson v. White, 1789, 1 D. 424. The equitable 
 principles which will not allow the strict letter of the statute of frauds to be 
 enforced where such a construction would itself work fraud, are in force in 
 Pennsylvania. 
 
 Tacking.— Anderson v. Neff, 1824, 11 S. & E. 208. Our courts will not 
 consider a discharged mortgage revived and assigned to the owner of the land 
 in order to protect him from a subsequent judgment. There is no natural 
 equity in tacking debts, and with us a mortgage is a mere security and when 
 once paid is gone. 
 
 Trustee.— McGirr V. Aaron, 1829, 1 P. & W. 49. Our courts will not let 
 a trust for a charity fail for want of a trustee. 
 
 lb.— Death of.— Shaw v. McCameron, 1824, 11 S. & E. 252. Where a 
 trustee, whose duty it is to pay over the income to the cestui que trust (which 
 latter has the power to dispose of the estate by will), dies, our courts will de- 
 liver the fund to the cestui que trust. Equity would appoint a new trustee. 
 Our courts have not that power, but do substantial equity in this way. 
 
 Vendor and Vendee. — Funk v. Voneida, 1824, 11 S. & E. 109. It seems 
 that a grantee with warranty, in an action against the grantor who had mort- 
 gaged the premises, will be allowed to recover the value of the incumbrance, 
 and that, before any breach has occurred by eviction, because chancery on :i 
 bill quia timet would give specific performance, by making the warrantor re- 
 move the incumbrance, and our courts do equity through legal forms. 
 
 lb.— Suit for Purchase Money.— Huber v. Burke, 1824, 11 S. & E. 238. 
 
100 CHAtfCERY POWERS — CHARITY. 
 
 If the vendor of land under articles sues for the purchase money before i)os- 
 session is delivered, such action is like a bill in equity ; and under the plea of 
 payment may be given in evidence every circumstance that would influence 
 a chancellor on a bill for specific performance. 
 
 CHARITY. 
 
 I. In General. 
 Trustees. 
 
 B. Statute of Elizabeth. 
 
 C. Proceeduee. 
 
 II. Essentials of a Valid Charitable Use. 
 
 I. In General. 
 
 A. Trustees. 
 
 Declarations of. — McKissick v. Pickle, 1851, 4 H. 140. Trustees for a 
 charity cannot by their delarations divest the title of the public in the charity. 
 
 Deed to— Effect of.— Savage v. Fortner, 1883, 2 Ches. Co. E. 271. A deed 
 of land to trustees and their successors, the deed cont lining certain provi- 
 sions, passes the land to those who come within the provisions of the deed 
 although the majority of the beneficiaries may vote to change the require- 
 ments. 
 
 lb. — ^Fees. — Latshaw's Appeal, 1888, 7 Crum. 143. When a deed is made 
 to trustees for a charity, the fee will vest at once, unless there be activeduties 
 to be performed by the trustees. 
 
 Discretion of.— ©random's Est., 1844, 6 W. & S. 537. The court wUl not 
 control the discretion of executors who have been charged to pay a certain 
 sum to some charitable organizatiori for the relief of the temperate poor, if 
 such a charity existed, by decreeing that the legacy shall go to a society whose 
 first object is the spread of temperance though it also assists the suffering 
 poor who do not use intoxicating liquors as a beverage. 
 
 Power to Create New Uses. — Brown v. Lutheran Church, 1854, 11 H. 
 495. Trustees for a charity have no power to create new uses, but a ratifi- 
 cation by the beneficiaries makes such act valid. 
 
 Who Are. — McLain v. School Directors, 1865, 1 S. 196. One devoting 
 land to a charity and encouraging the neighbors to improveit, will, in equity, 
 be held a trustee for those spending money on it, and they in turn for the 
 objects of the charity. 
 
 Witnesses. — Sorg v. First German Congregation, 1869, 13 S. 156. A trus- 
 lee of a charity who has no personal interest in the property is a competent 
 witness in a suit to which the corporation is a party. 
 
 B. Statute of Elizabeth. 
 
 Power of Appointment— Defect in. — Pepper's "Will, 1850, 1 Pars. 436. 
 Tlie provisions of the statute of Elizabeth as to charitable uses are part of 
 our common law. Therefore where a will giving property to a charity is 
 valid as a will, but as an appointment does not conform exactly to the power 
 given to the testator, nor refer to it, equity will aid the defect in favor of the 
 charity. 
 
W APR 
 
 11 
 
 CHARITY. 101\ 
 
 Principles of in force in Pennsylvania.— Witman v. Lex, 1827, 17 S. 
 & R. 88. Although the statute of Elizabeth as to charitable uses is not ex- 
 tended to Pennsylvania, yet its principles are in force here as part of the . 
 common law. 
 
 lb.— Zimmerman v. Anders, 1843, 6 W. & S. 218. The principles of the 
 statute 43 Elizabeth, concerning charitable uses seem to be recognized in 
 Pennsylvania by common usage, but the statute itself is not in force, on ac- 
 count it would seem of the inapplicability of its regulations to our modes of 
 procedure. 
 
 lb. — Thomas v. Ellmaker, 1844, 1 Pars. 98. Our courts have equitable 
 jurisdiction over unincorporated associations, especially when they are chari- 
 ties, this by our common law which is analogous to the statute of Elizabeth. 
 
 C Procedure. 
 
 Beneficial Association— Regulation of —Sperry's Appeal, 1887, 3 Mont. 
 Co. L. E. 143. A member of a lodge after paying dues for thirty-five years, ap- 
 plied for two weeks' sick benefits. Upon refusal on the ground of feigning 
 illness, and a verdict by a committee of the lodge, expelling him, he filed a 
 bill in equity for reinstatement and account. Held only the regularity of 
 the proceedings would be inquired into and that mistakes in judgment in the 
 rejection of evidence, would not authorize a decree. 
 
 lb. — ^Remedy at Law. — Beatty's Appeal, 1888, 7 Crum. 428. Where the 
 laws of a beneficial society authorized a member to surrender his certificate 
 and take out a new one naming a different beneficiary, a bill in equity will 
 not lie by a former beneficiary to recover the fund, but only by the one named 
 in the last certificate. The remedy, if any, of the former beneficiary is at law. 
 
 Division of Trust Fund. — Riddle v. Harmony Fire Co., C. P. 1871, 1 
 Camp. 316, S. C. 3 Leg. Gaz. 366. Money contributed for a charitable use 
 cannot be divided among the members of the society. 
 
 Interest of Judge.— Philadelphia v. Fox, 1870, 14 S. 169. A judge wbo 
 is concerned with the management of a charity is not thereby rendered in- 
 competent to try a case in which it is concerned. In fact if it is necessary it 
 is his duty to do so. 
 
 Reversion on Misuser. — Pickle v. McKissick, 1853, 9 H. 232. Land 
 conveyed to trustees for a charity under the proviso that it shall revert on 
 misuser, will not revert for non-^ser merely, and even misuser must be clearly 
 proved. 
 
 Specific Performance. — McLain v. School Directors, 1865, 1 S. 196. To 
 grant specific performance equity requires the contract to be proved withdefi- 
 niteness, but where the performance is demanded for a charity if the bound- 
 aries are reasonably certain, equity will act. 
 
 II. Essentials of a Valid Charitable Use. 
 
 Accumulation— Trust for.— Curran v. Phihi. Trust Co., C. P. 1882, 39 
 Leg. Int. 158, S. C. 15 Phila. 84. A trust for accumulation may exceed the 
 statutory limit when it is for a charitable purpose. (Affirmed. ; 
 
 lb.— Hillyard v. Miller, 1849, 10 Barr. 326. Trusts for accumulation are 
 as rigidly restricted as legal estates in perpetuity, they are wholly void if 
 they transcend the limits, though after reaching a certain amount part of 
 the fund is directed to be applied to a certain charity. 
 
 Beneficial Society. — Jones v. Beneficial Society, 1873, 5 Leg. Gaz. 197, 
 S. C. 5 Leg. Op. 57 ; 1 Fost. 333. A beneficial society whose benefits arc 
 only for those of its members who are in good standingand which is kept up 
 by dues, is not a charity within the act April 20, 1855. 
 
102 CHAKITY. 
 
 lb. — Babb V. Eeed, 1835, 5 E. 151. An association for the purpose of 
 mutual beuevolence among its members only, is not a charity. 
 
 lb.— Pritchett v. Schafer, C. P. 1876, 2 W. N. C. 317. An association 
 formed for mutual benefit, the benefits being exclusively confined to its own 
 members is not an association for charitable uses. 
 
 lb.— Swift V. Easton Beneficial Society, 1873, 23 S. 362. A society whose 
 benefits do not extend beyond its own membership is not a charity within 
 act April 26, 1855. 
 
 Bonds and Power of Attorney.— Daly's Est., O. C. 1881, 11 W. N. C. 
 21. A gift of bondsaccompanied by a power of attorney is a gift to a charity 
 within the meaning of the act April 26, 1855. 
 
 Church— Change of Synodical Relations.— Trexler v. Mennig, 1876, 2 
 W. N. C. 677. Inchurchesof the congregational order, such as the Lutheran, 
 any church may in the absence of restrictions in its deeds of trust change its 
 synodical relations, provided it does not depart from the old doctrines and 
 forms of worship. 
 
 lb.— Charter— Majority Must Observe.— Sawer v. Gosser, 1874, 1 W. 
 N. C. 55. Equity will enjoin a majority of a church from using the property 
 in contravention of its charter. 
 
 lb. — Information Against Trustee. — Commonwealth v. Arrison, 1826, 
 15 S. & E. 127. The court may in its discretion allow an information in the 
 nature of a quo warranto against persons acting as trustees of an incorporated 
 church. 
 
 lb. — Skilton v. Webster, 1850, Bright, 203. Equity will compel trustees 
 of a church to manage its affairs in accordance with the trust, whatever be 
 the desire of the majority of the congregation, and the complainants will not 
 be put to an ejectment since the equitable remedy is more complete. 
 
 lb. — Jurisdiction Over. — Eoshi's Ap., 1871, 19 S. 462. Equity has juris- 
 diction to settle church quarrels, for a religious society incorporated or un- 
 incorporated, is but the trustee for a charity. 
 
 lb.— Keefer v. Emerick, 1873, 5 Leg. Gaz. 117, S. C. 20 Pitts, L. J. 137, 
 Eevg. 2 Leg. Op. 168. Equity will take jurisdiction to settle a dispute be- 
 tween two unincorporated church organizations as to the use of the church 
 edifice. 
 
 lb. — Henry v. Deitrich, 1877, 3 N. 286. Equity is the proper forum in 
 which to adjust church difdculties. There is no adequate remedy at law. 
 
 lb. — ^Rector and Parish. — Batterson v. Thompson, C. P. 1871, 28 Leg. 
 Int. 172, S. C. 8 Phila. 251. Equity has jurisdiction to enforce the rights 
 and obligations arising between a rector and his parish, as the same are gov- 
 erned by the laws of the church. 
 
 Masses. — Rhymer's Ap., 1880, 12 N. 142. A bequest to a church to be 
 expended in masses for the repose of the soul of the deceased is " a charitable 
 or religious use within the act April 26, 1855, p. 1. 332. 
 
 lb. — ^Power of Trustees to Bind. — First Baptist Church v. Caughey, 1877, 
 4 N. 271. Trustees of a church can only bind the church within the exer- 
 cise of their powers. Incurring a debt in rebuilding a meeting house is with- 
 in their power but giving a note therefor is not though the note may be evi- 
 dence. 
 
 lb.— Priest.— Dougherty's Est., O. C. 1878, 5 W. N. C. 556, S. C. 35 Leg. 
 Int. 153, 12 Phila. 70. A bequest to a priest earnestly requesting him to say 
 masses for the soul of the deceased is not a charitable use. 
 
 lb. — ^Restraining Diversion of Branch Church. — Christ Church v. Christ 
 Chapel, C. P. 1880, 8 "W. N. C. 542, S. C. 37 Leg. Int. 272, 14 Phila. 61. A bill 
 by a parent church to restrain the diversion of a branch church property is 
 not an ejectment bill. 
 
 lb. — Right to Property — Suspension of Allegiance. — McAuley's Ap., 
 
CHARITY. 103 
 
 1875, 2 W. N. C. 71. Where a presbytery declared its relations with the 
 synod to be suspended, a church in the presbytery belongs to the faction 
 therein that sides with the presbytery. 
 
 111.— lb.— Ramsey's Ap., 1878, 26 Pitts. L. J. 70. That party in a church 
 <iuarrel, which adheres to the regular order of the church both local and gen- 
 eral, is the one which can hold the church property. 
 
 lb.— lb. — Split in Congregation.— App v. Lutheran Congregation, 1847, 
 G Barr, 201. A trust given by will to a congregation of which testator had 
 been a member, on a split remains with the party adhering to the doctrines 
 and forms of government which prevailed at the time of the testators member- 
 ship. 
 
 lb. — lb. — Kerr's Ap., 1879, 8 N. 97. A faction in a church cannot acquire 
 a right to the property and franchises of the church by a mere decree of the 
 supreme au};hority of the church without showing that the trustees have 
 violated their trust. Any decree by the supreme authority which does not 
 go on this ground is ultra vires. 
 
 lb.— Violation of Trusts— Estoppel. — Jones v. Wadsworth, 1877, 4 W. 
 N. C 514, S. C. 11 Phila. 227. Whereatrusteeandhisco-plaintiffsacquiesce 
 in a use of church property in violation of the trusts on which" it is held they 
 are not estopped from asserting their right to it, but they are estopped from 
 recovering for mesne profits pending litigation, and were charged their own 
 costs though successful. 
 
 College— Partly Free.— Thiel ,Co]lege v. County, 1882, 5 Out. 530. An 
 incorporated college but partly free, and into which no one has an absolute 
 right of admission is not a charity vsrithin the tax law. 
 
 Codicil.— Carl's Ap., 1884, 10 Out. 635. The fact that a will con- 
 taining a charitable bequest has had a codicil added to it within a calendar 
 month of the the testator's decease does not avoid the charitable bequest. 
 
 Education for Ministry.— McMillen's Ap., 1882, 11 W. N. C. 440, S. C. 
 13 Lan. B. 187, Revg. 11 W. N. C. 54. A devise in trust to educate testa- 
 tors' nephew for the Presbyterian ministry and in case he declines to fit 
 himself for the ministry then to the Presbyterian seminary, is not a charit- 
 able bequest. 
 
 Extending Beyond Jurisdiction.— Thompson d. Swoope, 1855, 12 H. 474. 
 A devise to a charity whose sphere of action is not confined to our own State 
 is nevertheless valid. 
 
 Fire Company. — Potts v. Phila. Fireman's Association, C. P. 1871, 28 Leg. 
 Int 396, S. C. 8 Phila. 326. An association for the relief of disabled fire- 
 man, their widows and orphans is a charity and its funds cannot be diverted 
 fmra their proper use. 
 
 lb.— Bethlehem i\ Perseverance Fire Co., 1876, 31 S. 445. A volunteer 
 fire company is a charity and holds its property in trust for the community. 
 
 lb. — ^Thomas v. Ellmaker, 1844, 1 Pars. 98. An incorporated voluntary 
 iire company is a charity, and although because unincorporated it may as to 
 third persons be considered a partnership yet being a charity equity will not 
 ■decree dissolution and a distribution of the assets. 
 
 lb. — Humane Fire Co. 's Ap., 1879, 7 N. 389. A fire company is a chari- 
 table organization and upon disbanding its assets cannot be divided among 
 the members but are held for the trusts for which they were donated. 
 
 Free Asylum With Preference. — Burd Orphan Asylum v. School Dis- 
 trict, 1879, 9 N. 21. A free asylum in which preference is given to those of 
 a certain faith is nevertheless a purely public charity within the meaning 
 of the Constitution exempting such from taxation. 
 
 I'tee Library.- Donohugh's Ap., 3878, 5 N. 306, Affg. 25 Leg. Int. 4; 12 
 Phila. 284. A library where any one may read free, and where anyone may 
 take out books for a small fee, is a charity within the taxing laws though ifc 
 ibe nominally owned by members who can take books out without a fee. 
 
104 CHARITY. 
 
 Gift and Dedication.— Griffitts v. Cope, 1851, 5 H. 96. There is a great 
 difference between a gift of land from motive of charity and a dedication of 
 laud to charitable uses ; the first passes a fee the second a qualified estate. 
 
 Gift of Personalty One Month Prior to Death.— McGlade's Ap., 1882, 
 11 W. N. C. 257. A fully executed gift of personalty to a charity is valid 
 though made within a calendar month of the donor's death. 
 
 Hospital. — Delaware v. Sisters of St. Francis, C. P. Delaware, 1878, 2 Del. 
 Co. R. 149. A hospital to the benefits of which the general public has no 
 legal right is not a purely public charity. 
 
 Indefiniteness. — Philadelphia v. Fox, 1870, 14 S. 169. Charities are puS- 
 Kctrusts, in distinction to trusts for particular persons. Indefinitenessisone 
 of the essentials. 
 
 lb. — Lawrence v. Leonard, 1876, 2 N. 206. A testator directed that cer- 
 tain moneys should be put at interest in the county treasury and the income 
 be applied to the poor of a certain township. Held (1) that the bequest was 
 not void for uncertainty, (2) that the county was appointed trustee and conld 
 act. 
 
 lb. — Missionary Society's Ap., 1858, 6 C. 425. A bequest to a charity will 
 not fail for indefiniteness, if a discretion be vested somewhere, even if parol 
 evidence be necessary to ascertain where it be. 
 
 lb. — Zeisweiss v. James, 1870, 13 S. 465. A devise over in remainder for 
 a valid charitable use will not be allowed to fail for want of a trustee, even 
 though the use be so vague that no particular person would have such an in- 
 terest as to demand the execution of it. 
 
 lb. — Beaver v. Filson, 1848, 8 Barr, 327. Religious and charitable uses 
 are favored and will be supported notwithstanding the uncertainty of the 
 trust. , 
 
 Injunction— Corporation Dividing Property. — Mayer v. Society, N. P. 
 1868, 2 Brews. 385. An injunction will be granted restraining the members 
 of a corporation from dividing its property, where a provision in its constitu- 
 tion provides that upon the death of the last member, the property shall go 
 to a certain charity. 
 
 Infidel Society.— Zeisweiss v. James, 1870, 13 S. 465. Act April 26, 1855, 
 allowing the court to administer certain charities, does not include a trust 
 for an "infidel society." 
 
 Library— Direction to Exclude Books.— Manners v. Philadelphia Li- 
 brary, 1880, 12 N. 165. A direction that the trustees of a public library shall 
 not exclude new books, because they are contrary to the present tenets of 
 science, morals and religion, is a negative direction only, and does not make 
 the use an immoral one. Even if the direction were positive it is but a con- 
 dition subsequent and the court on the principle of cypres would disregard 
 the direction without striking down the trust. 
 
 One Month Prior to Death. — Manners i;. Philadelphia Library, 1880, 12 
 N. 165. Act April 26, 1856, does not prohibit a change of investment with- 
 in a month of testator's death, if the will giving the property to a charity 
 was made previously. 
 
 lb.— McLean v. "Wade, 1861, 5 Wr. 266. A legacy to a church is a "re- 
 ligious or charitable use," within the meaning of act April 26, 1855, and void 
 if not made one calendar month before testator's death. 
 
 lb.— Shultz's Ap., 1876, 30 S. 396. A bequest to a friend, no trust being 
 expressed, but upon the confidence that he would apply it to certain charities 
 is not void if made within a calendar month of the testator's death, nor is 
 there any enforceable trust in the legatee. 
 
 lb.— Hegarty's Ap., 1874, 25 S. 503. A devise to a charity made within 
 a month of the testator's death is not cured by the fact that no caveat or ac- 
 tion is entered for five years. 
 
CHARITY. 105 
 
 Parties Creating.— Schnorr's App., 1870, 17 S. 138. A charitable use 
 may be created by one or many donors. 
 
 Perpetuity.— Yard's Ap., 1870, 14 S. 95. A charity may be a perpetuity. 
 
 Sajring Masses.— Power's Est., O. C. 1878, 5 W. N. C. 59. A bequest of 
 money to be expended in saying masses for the repose of testator's soul is not 
 void lif made within a calendar month of his decease. 
 
 Savings Bank.— West's Ap., 1870, 14 S. 186. A savings bank is not a 
 charity, and the acts April 26, 1855, and April 17, 1869, relating to escheats 
 do not apply. 
 
 Shade Trees.— Cresson's Ap., 1858, 6 C. 437. A legacy in trust for plant- 
 ing shade trees, especially in situations where citizens are most exposed to 
 the heat of the sun, is a charity. 
 
 School— Directors may Maintain Ejectment.— School Directors v. 
 Dunkleberger, 1847, 6 Barr, 29. School directors may maintain ejectment 
 against one claiming the school by a conveyance made after a dedication, the 
 directors not being chosen under the dedication but under a statute passed 
 subsequently, and acting as such over ttiis school nemine contradicente. 
 
 lb.— Heir-Non-Resident— Injunction.— Pott v. School Directors, 1862, 
 6 Wr. 132. An heir of a grantor of land for a school, not being a resident of 
 the neighborhood is not entitled to an injunction to restrain the trustees in 
 their use of the ground. 
 
 lb.— Name of Testator.— Miller v. Porter, 1866, 3 S. 292. A bequest to 
 found a school which should bear the name of the testator is a charity with- 
 in the act April 26, 1855, sec. 11. Mr. Binney's definition of a charity quali- 
 fied. 
 
 lb.— Non-User.- Wright v. Linn, 1848, 9 Barr, 433. A conveyance to 
 trustees and their successors for a school for the neighborhood is a charity and 
 after acted on is not liable to be defeated by non-user. 
 
 lb.— lb.— Kirk V. King, 1846, 3 Barr, 436. A deed to the "employers of 
 a certain school " cannot carry a fee if the grantees are unincorporated ; it 
 therefore raises a use in the grantor for the grantees not for the public gen- 
 erally. Nor is it such a charity as is not lost by non-user, therefore seven 
 years of non-user held in this case to bar the trust. 
 
 lb. — ^Religious Instruction. — Price v. Maxwell, 1857, 4 C. 23. A devise 
 tx) a school, part of the instruction being religious and sectarian, and open 
 alike to rich and poor, is a devise to a charity. (For Mr. Binney's definition 
 of a charity see this case.) 
 
 lb. — ^Rights of Community Against Incorporators. — Commonwealth v. 
 Jarrett, 1822, 7 S. & E. 460. A minority of the persons in whom school 
 property is vested in trust for the community cannot by associating and pro- 
 curing a charter of incorporation acquire the right to the management of the 
 school in opposition to the majority of those interested. 
 
 lb.— Sale Under Liens— Title.— Philadelphia ». Bicknell, 1860, 11 C. 123. 
 A gift of land to a charity on condition that a school house be built upon it, 
 is not fully ve.sted in the public as long as the property is encumbered with 
 liens incurred in erecting the school house, and a sale under those liens passes 
 a good title as against the public. 
 
 Sale of Property.— Stallman's Ap., 1861, 2 Wr. 200. Trust property for 
 a school " for the neighborhood," was sold and on distribution of the fund 
 part was awarded to the city of Philadelphia which then included part of the 
 neighborhood in which the school had been. Held error, and the trustees un- 
 der the old trust were the ones to preserve it for its proper uses. 
 
 lb.— Breach of Trust.— Barr v. Weld, 1854, 12 H. 84. Where trustees 
 for a school hold land under a conveyance in fee for such trust, a sale of the 
 property and application of the proceeds to the same uses, although a con- 
 version, is not a breach of the trust. 
 
 lb.— Sectarian— Partly Free. —Miller's Ap., 1881, 10 W. N. C. 168. 
 
1 Ofl CHARITY — CHATTELS. 
 
 Property held in trust for a sectarian school where only those pay who are 
 able is not a purely public charity. 
 
 Unincorporated Society — Non-Kesidents. — Evangelical Association's 
 Ap. , 1860, 11 C. 316. A bequest to an unincorporated society is valid though 
 the society be composed in a great measure of non-residents, and the bequest 
 is not for any definite use. 
 
 lb.— Alternative Direction.— Pickering v. Shotwell, 1848, lOBarr, 23. 
 A bequest to an unincorporated society to be used in distributing books among 
 poor people or to support a free school in or near Philadelphia will be sup- 
 ported as a charity. The trustee is capable of taking, and the objects of 
 bounty are sufficiently designated. 
 
 XTnlawM Directions as to Administration. — Philadelphia v. Girard, 
 1863, 9 Wr. 9. A present and executed gift in trust for a lawful charity is 
 not affected by any unlawful directions as to how it shall be administered.. 
 
 CHATTELS. 
 
 Creditor Refusing to Release Securities.— "Ward ». Mooney, C. P. 1881, 
 10 W. N. C. 256. Where a creditor refuses to release security which was 
 given to cover a particular obligation which has been satisfied, a bill in equity 
 lies against him. 
 
 Injunction— Draft— Forged Acceptance. — Conaway v. Haight, c. P. 
 I860, 8 W. N. C. 216. Equity will enjoin the presentation and protest of a 
 draft the acceptance whereon has been forged. 
 
 Jurisdiction — Fraud. ^—Mackintosh v. Tracy, N. P. 1868, 4 Brews. 59, S. 
 V. 4 Leg. Gaz. 114. The fact that a bill alleges fraud does not necessarily 
 give equity jurisdiction ; if the remedy at law is adequate, and especially iJF 
 the fraud relates to chattels, the bill will be dismissed. 
 
 lb.— Beasley v. Allen, C. P. 1882, 12 W. N. C. 90, S. C. 39 Leg. Int. 264, 15 
 Phila. 97. Equity will take jurisdiction of a hill to recover possession of a 
 chattel which has a sentimental value, and if the bill charges fraud a de- 
 murrer on the ground of frivolity will be dismissed. 
 
 lb.— Stocks.— Lank v. Union Steamship Co., N. P. 1864, 21 Leg. Int. 389, 
 S. C. 5 Phila. 499. The rule that equity has no jurisdiction over personal 
 contracts does not include contracts touching stocks having no market value. 
 
 lb.— Transfer of Stock.— Dull v. Culver, C. P. Allegheny, 1876, 24 Pitts. 
 L. J. 86. Equity will not entertain a case for the transfer of stock and pay- 
 ment of damages, the remedy is at law. 
 
 lb.— lb.— Phillips Ap., 1871, 18 S. 130. A bill averred that complainants 
 and defendants were jointly interested in oil lauds and that complainants 
 were to receive a certain amount in stock for affecting a sale of the lands, that 
 the defendants refused to give them the stock but gave its par value. Held 
 by an evenly divided court that equity had jurisdiction. 
 
 Mortgage — ^Leasehold.— Bismark Building Assoc, r. Bolster, 1879, 11 N. 
 123. A mortgage of personalty (a leasehold) must be followed by possession 
 to be valid against creditors. 
 
 lb. — Recording.— Bismark Building Assoc, v. Bolster, 1879, 11 N. 123. 
 A mortgage of an estate for years is not within the act of 1820, and may be 
 recorded at any time within six months. 
 
 Promise to Buy for Defendant.— Keilam v. Kellam, 1880, 13 N. 225. 
 A recovery can be had from one who has promised to bid in for the defend- 
 ant his personal property to be sold although the facts of the case would raise 
 neither a resulting trust nor a trust ex-malefiao. 
 
 Specific Performance— Contract— Actor and Manager.— Ford v. Jer- 
 
CHATTELS — CLEAN HANDS. 107 
 
 mon, D. C. 1865, 22 Leg. Int. 44, S. C. 6 Phila. 6. A contract between an 
 actor and manager for the personal service of the former will not be specific- 
 ally enforced. 
 
 lb.— Attempt to Control Company.— Foil's Ap., 1879, 10 N 435. 
 Eqnity will not decree specific performance of a contract to sell shares of 
 stock where the purpose of the complainant is to get a controlling interest in 
 the company. The object of the bill is against public policy. 
 
 lb.— Jurisdiction— Remedy at Law.— Dietrich v. Tyson, C. P. 1861, 18 
 Leg. Int. 118, S. C. 4 Phila. 352. Equity will decree the transfer of specific 
 shares of stock where by throwing the complainant upon his remedy at law 
 for damages he might lose owing to the financial standing of the defendant, 
 or where the defendant holds as trustee. 
 
 lb. — McGowan r. Remington, 1849, 2 J. 56. Equity will decree the re- 
 turn specifically of chattels where the law affords no adequate redress. 
 
 lb.— Land and Chattels.— Brittain v. Ely., C. P. 1877, 4 "W. N. C, 412. 
 A bill prayed for specific performance of a barter of lands and chattels, the 
 lands being in another State, the court, on motion, refused to enjoin the con- 
 veying of the lands ; but under the prayer for general relief, granted an in- 
 junction restraining the sale of the chattels by defendant. 
 
 lb.— Right to Issue Bonds.— Phila. & Reading E. E. v. Stichter, 1882, 11 
 W. N. C. 325. Equity will under some circumstances decree specific per- 
 formance of a contract concerning personalty ; in this case the action was 
 amicable and solely for the purpose of ascertaining the right of the defend- 
 ant to issue bonds. 
 
 lb.— Title.— aark V. Savings Association, C. P. Schuylkill, 1880, 1 York, 
 L. R. 172. Equity will not compel the transfer of specific shares of stock 
 unless complainant's title is first established at law or is undisputed, he must 
 sue at law for damages. 
 
 Vessel— Co-Owners.— Paynter v. Paynter, C. P. 1870, 27 Leg. Int. 69, S. 
 C. 7 Phila. 336. Equity will restrain the owner of a moiety in a vessel from 
 using the vessel contrary to the wish of the other. 
 
 CHOSE IIV ACTIO?;. 
 
 See Assignment. 
 
 CITIZENS. 
 
 See Parties. 
 
 CITY. 
 
 See Public Acts and Officees ; Injunction, I, F ; I, O. 
 
 CLEAPI HANDS. 
 
 See Equitable Defence. 
 
108 CLOUD ON TITLE — COLLATERAL SECUKITY. 
 
 CLOUD ON TITLE. 
 
 See Title. 
 
 CO-DBFEI«DA2VT. 
 
 See Paeties. 
 
 CO-OW^NER. 
 
 See AccouNl, I, B (b.) J Confidential Relation, IV ; Tenants in Com- 
 mon. 
 
 CO-EXECCTOR. 
 
 See Trusts and Trustees. 
 
 CO-SURETIES. 
 
 See Adjustment, IV ; VIII, B. 
 
 CO-TENANTS. 
 
 See CoNTiDENTLAL Kelation, rv ; Tenants in Common. 
 
 CO-TRUSTEES. 
 
 See Trusts and Teubtees, II, E. 
 
 COLIvATERAL, SECURITY. 
 
 [See Also Generally Debtor and Creditor — Adjustment.] 
 
 Bonds— Payment of on Foreclosure of Mortgage.— Eice's Ap., 1875, 
 29 S. 168. Bonds of a corpOTation pledged by an agent for a loan to him for 
 the company, are not entitled to be paid in full when the mortgage securing 
 them is foreclosed, but only to the extent of the debt tor which they were 
 collateral. 
 
 Identification Necessary.— Kline's Appeal, 1888, 21 "W. N. c. 479. In 
 order to entitle a complainant in a bill in equity to recover bonds which he 
 alleged had been transferred to his bailee as collateral security, it is incum- 
 bent upon him to identify the bonds which he alleges were so hypothecated. 
 
COLLATERAL SECURITY — COMMONWEALTH. 109 
 
 Mortgage as— Suit on.— Smith v. Bunting, 1878, 5 N. 116. One hold- 
 ing a mortgage as collateral security may sue on it and purchase the property 
 at sheriff's sale ; whether or not he holds the land as trustee for his debtor 
 uut decided. 
 
 Mortgage Given by Married Woman.— O'Harau. Baum, 1878, 7 N. 114. 
 A mortgage given by a married woman to one who endorsed her husband's 
 notes is a security for the mortgagee alone, and an assignment by him of the 
 mortgage limits it as a security to the amount he has then actually paid as 
 endorser, and on a reassignment to him the mortgage does not again become a 
 continuing indemnity. 
 
 Statute of Limitations. — Waterman v. Brown, 1858, 7 C. 161. A debt- 
 or's equity to have collateral returned to him upon payment of the debt is 
 barred six years after the debt falls due. 
 
 Sale of— Order of Court.— Phila. Bank v. Aldridge, D. C. 1864, 21 Leg. 
 Int. 236, S. C. 5 Phila. 446. Upon application of a creditor who holds col- 
 lateral, the court will appoint a time for its sale unless sooner redeemed. 
 
 commissiox. 
 
 See EviDEsroK. 
 
 COmmiSSIOBiBR. 
 
 See Evidence. 
 
 comiaissioiois. 
 
 See Teusts and Thustees, II, D. ; Moktqagb, II. 
 
 COMMITTEE. 
 
 See Trusts and Trustees, II. 
 
 COMMON PI^EAS. 
 
 See Jurisdiction. 
 
 COMMONWEAI^TH. 
 
 Defendant in Bill in Equity. — Williamsport R. R. v. Commonwealth, 
 1859 9 C. 288. The Commonwealth cannot be made a defendant to a bill in 
 equity. 
 
 Escheat — Injunction. — Olmstead's Ap., 1878, 5 N. 284. Equity will not 
 enjoin the Commonwealth from proceeding to escheat propert/where all the 
 questions v?ill arise upon a traverse if the escheat be found by the inquest. 
 
 Estoppel— Corporation— Bonus.— Commonwealths. Pittsburg Iron Co., 
 C. P. Dauphin, 1870, 2 Pears. 374. The State is not estopped from denying 
 the existence of a corporation by having received a bonus from it as a cor- 
 poration. 
 
 Mortgage— Judicial Sale— Lien.— Duncan v. Reiff, 1832, 3 P. & w. 3(i8. 
 A mortgage due the Commonwealth is not discharged by any judicial sale, 
 but remains a lien till paid. 
 
110 COMMONWEALTH — CONDITIONAL VBKDICT. 
 
 Preliminary Injunction — Bond. — Commonwealth v. Franklin Coal Co., 
 1853, 9 H. 117. Under act May 6, 1844, no preliminary injunction can be 
 granted at the instance of the Commonwealth, because that act requires a 
 bond to be given, and the Commonwealth can give no bond. 
 
 Set off Against. — Commonwealth v. Matlacfe, 1804, 4 Dall. 303. One 
 saed for a balance of money put into his hands by the State for a special 
 purpose cannot set up that he has expended part of it for other State pur- 
 poses, for this would amount to a cross action agaiiist the State. 
 
 COMPENSATION. 
 
 See Specific Peepobmanck, VIII ; Trust and Teusteb, II D. 
 
 CONDITIONAL SALE. 
 
 See MOETGAGE, XXII. 
 
 CONDITIONS. 
 
 Agreement Enforced.— Clark v. Martin, 1865, 13 Wr. 289. Equity will 
 enforce the substantial elements of an agreement, though it be a condition 
 in law, and even where there has been a release of part of it, equity will en- 
 force the condition in its modified form. 
 
 Charter.— Phila. v. Lombard St. R. E. N. P., 1863, 20 Leg. Int. 173, S. 
 C. 5 Phila. 248. A. condition in a railway charter that the consent of the 
 city should he obtained before constructing the road will he enforced by in- 
 junction. 
 
 Mortgage— Security— Release.— Welch v. Mote, 1880, 8 "W. N. C. 248. 
 Where a mortgage is given to one as security for the performance of an 
 agreement, between the mortgagee and a third person, the release of the 
 third person by the mortgagee, is a release of the mortgage. 
 
 Mortgage — Security — Trustee. — Schuenzel v. German Hospital, C. P. 
 1882, 12 W. N. C. 78, S. C. 39 Leg. Int. 373, 15 Phila. 24'3. Where it appears 
 that a mortgage has been given merely as security for the performance of a 
 certain condition respecting land, equity will, to preserve the rights of all 
 parties, appoint a trustee to take charge of the mortgage and hold it until 
 the condition be fully performed and then cancel it. 
 
 CONDITIONAL VERDICT. 
 
 [See also Ejectment, V.] 
 
 Amended by Supreme Court.— Kinsinger v. Smith, 1880, 13 N. 284. 
 The Supreme Court may amend a judgment on a conditional verdict which 
 has omitted to name a day of payment by inserting a date. 
 
 Assumpsit.— Keller v. Rhodes, 1861, 3 Wr. 513. A conditional verdict 
 allowed to stand in an action of indebitatus assumpsit. 
 
 Costs.— Bradley v. O'Donnell, 1861, 4 Wr. 479. A conditional verdict 
 carries costs. 
 
 Damages.— Decamp v. Fery, 1819, 5 S. & R. 323. In this State, in onler to 
 work out principals of equity, the jury may find damages conditionally, pre- 
 scribing the terms on which they shall be released. 
 
CONDITIONAL VEEDICT. Ill 
 
 Decree— Basis of.— Shaw v. Bayard, 1846, 4 Barr 257. A conditional 
 verdict, like a decree in chancery, should have reference to the status of the 
 parties at the time it is made, and not at the time of suit brought. 
 
 Discretion of Court.- Webster v. Webster, 1866, 3 S. 161. A court may 
 make such orders controlling a conditional verdict as to insure justice to the 
 parties. 
 
 Hjectment— Analogy to a Bill in Eauity.— Biddle v. Moore, 1846, 3 
 Barr 161. An equitable ejectment is in the nature in a bill in equity, and 
 substantial and complete justice will be done by means of a conditional ver- 
 dict. 
 
 lb.— lb.— Coolbaugh v. Pierce, 1822, 8 S. & R. 418. In this State an ac- 
 tion of ejectment approaches very near to a bill in equity, and the verdict 
 of a jury imposing conditions on the party in whose favor it is rendered, 
 performs the office, though imperfectly, of the decree. 
 
 D).— Advances Made by Defendant.— Dickey v. McCullough, 1841, 3 
 W. & S. 88. An ejectment against one who had agreed to advance the 
 money to buy and run property and to reconvey half to plaintiff on being 
 reimbursed by the profits of the land, is in the nature of a bill in equity and 
 the court will settle the account between the parties and enforce its decree 
 by a conditional verdict. 
 
 lb.— Conditions Enforced.— Bear v. Whisler, 1838, 7 W. 144. Where 
 an estate is held upon Condition, the condition may be enforced by means of 
 an action of ejectment and a conditional verdict. 
 
 lb. — ^Mortgage.— Bower v. Fenn, 1879, 9 N. 359. A conditional verdict 
 is not proper in ejectment on a mortgage. 
 
 lb.— Mortgagee in Possession.— Wells v. Vandyke, 1885, 42 Leg. Int. 
 345, S. C. 16 W. N. C. 151. A mortgagor may bring equitable ejectment 
 against a mortgagee in possession, and is entitled to a conditional verdict. 
 
 lb.— Mortgage to Pay Annuity.— Knaub v. Essick, 1834, 2 Watts, 282. 
 Where land is subject to a mortgage conditioned for the payment of an an- 
 nuity, a sheriff's sale does not divest the lien of the mortgage. The proper 
 mode, however, of enforcing such a mortgage is ejectment in which the 
 court will do equity by means of a conditional verdict. 
 
 lb. — Partners. — Lacy v. Hall, 1860, 1 Wr. 360. A partner, the financial 
 manager of a firm, bought in his own name the reversion to lands, a present 
 estate being in the partnership. The lands were improved with partnership 
 funds. On his bringing ejectment, held 1, he was a trustee for his co-part- 
 ner as to a moiety ; 2, he could' not in this action recover half the purchase 
 money under a conditional verdict. He must have an account. 
 
 lb.— Practice— Time.— Connolly v. Miller, 1880, 14 N. 513. The court 
 has the discretion to extend the time allowed for payment in a conditional 
 verdict, rendered in an ejectment to enforce payment of purchase money. It 
 follows that the time for payment having expired, a writ of habere facias 
 possessionem is not of course, but can only issue by leave of court. 
 
 lb.— Specific Performance.— Todd v. Pfoutz, 1801, 3 Y. 177. In eject- 
 ment to enforce specific performance of articles of agreement for the sale of 
 land, the court will do j nstice by means of a cond itional verdict. The Eng- 
 lish authorities are not binding here on account of the rapid advance here 
 of the price of real estate. 
 
 lb. — Time Expires. — Boyd v. McNaughton, 1865, 1 S. 225. After a con- 
 ditional verdict has been rendered in ejectment by the vendor to compel 
 specific performance, the vendee's equity continues as long as the vendor ac- 
 knowledges him his debtor, though the time limited in the verdict has ex- 
 pired. 
 
 lb.— Time Should be Fixed.— Thompson v. McKinley, 1864, 11 Wr. 353. 
 A conditional verdict in ejectment should fix the time when the money 
 should be paid. 
 
112 CONDITIONAI, VEEDICT. 
 
 lb.— Title to Part— Option of Defendant.— Erwin v. Myers, 1863, 10 
 Wr. 96. In equitable ejectment, when the defendant has shown that plain- 
 tifl cannot make title to the whole tract, the former may elect to take title 
 to the part remaining on payment pro tanto, or to rescind the contract ; and 
 in either event the verdict will be moulded to include improvements and 
 waste if the defendant has had possession. 
 
 lb.— Two Tracts.— Eoddy v. Harah, 1869, 12 S. 129. Plaintiflf sold de- 
 fendant two tracts of land at so much per acre and put him in possession. 
 After default in payment he brought ejectment for one of the tracts. Held 
 that the court will so mould the verdict as to administer the equity of the 
 whole contract. 
 
 lb. — ^Verdict Absolute— End of Action. — Arnold v. Fitzgerald, 1874, 
 26 S. 385. After a conditional verdict in equitable ejectment has become 
 absolute and the plaintiff receives again possession, there can be no further 
 action on the contract of sale. 
 
 Defendant's Eo[uity to. — ^Wheeling, Pittsburg & Baltimore E. E. Co. v. 
 Warrell, 1888, 7 Crum. 613. Where a railroad company entered land and 
 under a submission an award of damages was made, which was never paid 
 or secured to be paid ; and where 25 years afterwards the owner of the prem- 
 ises (who had been a part owner when the award was made) brought eject- 
 ment, it was held that the railroad company must show affirmatively its 
 right to possession, and that the statute of limitations did not establish this 
 right ; but that as the award gave the road some equity, the verdict should 
 be a conditional one, the road to have the right to pay debt, interest and 
 c )sts under the original award and so defeat the ejectment. 
 
 Estoppel— Entering Land.— Woodward u. Tudor, 1875, 32 S. 382. 
 Where one induces another to enter with him upon land supposed to be 
 vacant and improve the same, he cannot afterwards set up a superior title in 
 himself, but may recover in ejectment by a conditional verdict one-half the 
 amount he has paid for an outstanding title to complete his own. 
 
 Executor Paying Mortgage. — Veters v. Florence, 1861, 1 Luz. L. Obs. 
 193. Where an executor pays off a mortgage, thinking that he is liable 
 therefor, it is but a mistake of law and equity will not grant relief. Even 
 in ejectment against him he is not entitled to have a conditional verdict 
 given for plaintiff. 
 
 Exchange of Land— Possession by One — Defence. — French v. Seely, 
 1838, 7 W. 231 . A party to an exchange of lands, who has himself got pos- 
 session of the tract coming to him, but has put it out of his power to pufthe 
 other party in possession of the other tract, has no equity to defend against 
 an ejectment, although he has made valuable improvements. He is not 
 even entitled to a conditional verdict. 
 
 Fraud— Executed Contract.— Babcoek v. Case, 1869, 11 S. 427. In an 
 action to rescind a fraudulent contract which has been executed, a condition 
 in the verdict that plaintiff restore the consideration received by him under 
 the contract will do equity. 
 
 Invalid— Partly Executed Verbal Contract.— Irvine v. Bull, 1835, 4 
 W. 287. If a verbal contract for the purchase and sale of land has not been 
 partly executed, a conditional verdict in an action to compel specific per- 
 formance is erroneous and will be set aside. 
 
 Married Woman— Trust.— Lichty v. Hager, 1859, 1 H. 564. Where 
 money left to a married woman, with directions that it be invested in prop- 
 erty for her sole and separate use, is invested in property of greater value 
 than I he amount of the trust fund, her husband supplying the balance of the 
 purchase money, the purchaser of the husband's title therein, is not, upon 
 bringing ejectment, entitled to a verdict for the land subject to the payment 
 of the amount paid by the wife, but the verdict will be for him, subject to 
 be defeated within a certain time, by the payment to him of the amount of 
 purchase money advanced by the husband. 
 
CONDITIONAL VERDICT. 113 
 
 Oral Agreement by Obligor to Become Surety.— Fran tz v. Brown, 
 1830, 1 P. & W. 257. An oral agreement made at the time of the execution 
 of a bind that in case the obligor becomes surety for the obligee the latter 
 shall not be paid, is binding on a subsequent assignee who has made no in- 
 quiry, and in case the obligation for which the defendant has become surety 
 is not yet due, he will be protected by a conditional verdict. 
 
 Payment— Assignment of Plaintiff's Interest. Riffle's Ap., 1869, ,■? 
 Brews. 94. One paying the amount of a conditional verdict and taking an 
 assignment of plaintiff's interest in it gets no right to the judgment for pos- 
 session. That is extinguished by payment. 
 
 Parol Contract— Title.— Gill v. Gill, 1860, 1 Wr. 312. An attempt to 
 settle in an action of ejectment by a conditional verdict, the damages due 
 from one to another for the breach of a parol contract conveying no title, is 
 error. 
 
 Practice — Declaration.— Butcher v. Metts, 1836, 1 M. 153. When a 
 plaintiff in a purely legal action attempts to establish an equitable right, he 
 must draw his declaration in analogy to a bill in equity. If the declaration 
 <loes not set forth the equitable ground for relief a condi^tional verdict can- 
 not stand. 
 
 Practice— Nature of Verdict.— Irvine v. Bull, 1838, 7 Watts,333. Our 
 courts by a conditional verdict accomplish the same result as a chancellor 
 would by decreeing specific performance. To do this the declaration con- 
 tains first, a count setting forth such facts as would move a chancellor, 
 namely, tbe agreement and part performance, and then other counts lor 
 damages for breach of contract, and under this the jury gives damages so 
 large as to make performance preferable, but conditioned to be released on 
 the contract being specifically performed. It is, therefore, relevent to give 
 evidence as to the present value of the land in order that the jury may know 
 for what amount to fix the verdict. 
 
 Proof of all Facts Obligatory.— McCormick v. Crall, 1837, 6 Watts. 207. 
 The use of a conditional verdict is to effect an equity which could not be 
 reached by an ordinary form of verdict, and not to relieve a plaintiff who 
 has not folly proved all the facts of his case. 
 
 Purchase , Completed by Widow — Heirs' Obligation. — Donovan v. 
 Driscoll, 1882, 12 W. N. C. 203, (see also 12 N. 509 ; 8 W. N. C. 369.) Where 
 a vridow completes a purchase commenced by her husband, an heir can re- 
 cover from her only upon repaying her for her expenditures and improve- 
 ments. The court would order a conditional verdict to this effect. 
 
 Referee's Report- Effect of —Heath v. Gardner, 1881, 10 W. N. C. 495. 
 Under act April 6, 1869 (p. 1. 276), a referee in a proper case may file a re- 
 port having the same effect as a conditional verdict. 
 
 Recovery — Release — Title. — Hamm v. Beaver, 1857, 1 Gr. 448. A re- 
 covery in ejectment brought to recover an instalment of purchase money is 
 conditioned on payment of that instalment only, and that being done the 
 recovery is released, but not the whole title unless the purchase money is 
 paid in full. 
 
 Subject Discussed. — Hewitt v. Huling, 1849, 1 J. 27. Conditional ver- 
 dicts discussed and certain changes recommended. 
 
 Specific Performance — Land Included. — Kribbs v. Downing, 1855, i c. 
 399. The condition in a verdict to enforce specific performance may not 
 concern land of the defendant not in dispute. 
 
 lb. — Joint Purchasers. — Crow v. Crow, 1857, 5 C. 216. Although articles 
 of purchase show two to be jointly interested, yet if on the trial the jury find 
 that one is the real purchaser, a conditional verdict specifically enforcing the 
 contract in favor of that one alone is proper. 
 
 Time in— Relief in Equity.- Gnrdonier v. Billings, 1875, 27 S. 498. In 
 a conditional verdict time is of the essence ot the decree, but equity may re- 
 lieve against it. 
 
 8 — EQUITY. 
 
114 CONDITIONAL VERDICT — CONFIDENTIAL KELATION. 
 
 Title— Plaintiff Must Make.— Mathers v. Akewright, 1809,- 2 Bin. 93. 
 If a plaintiff in ejectment is bound in equity to make title to defendant for 
 part of the premises, the court will do equity by entering a verdict for plain- 
 tiff and granting a stay of execution till defendant's title be secured. 
 
 Vendor Entering Land of Vendee.— Chase v. Irvin, 1878, 6 N. 286. 
 Where a vendor intrudes upon the land of his vendee and sets up an adverse 
 title, the vendee may bring ejectment without first tendering the balance of 
 the purchase money, and the court will do justice by means of a conditional 
 verdict. 
 
 lb.— Title— New Trial.— Irvine v. McCollough, 1 Pitts. R. 433, 1858, S. C. 
 6 Pitts. L. J. 29. Where a vendor, after a conditional verdict has been ren- 
 dered against him,becomes unable to make title, it is proper to allow him a 
 new trial after paying all the costs. 
 
 lb. — ^Legal Title — Ejectment. — Thomson v. Carpenter, 1846, 4 Barr.132. 
 A vendor of real estate, under articles stipulating for the payment of the 
 purchase money by instalments, may make use of the legal title to compel 
 performance of the articles by an ejectment and conditional verdict. 
 
 lb. — Purchase ' Money — Tender of Deed. — Lauer v. Lee, 1862, 6 Wr. 
 165. A vendor is entitled to a conditional verdict in a suit to enforce pay- 
 ment of purchase money though he has made no demand nor tendered a 
 deed. 
 
 Vendee — Specific Performance. — Meason v. Kaine, 1869, 13 S. 335. In 
 an action by a vendee against a vendor on an oral contract concerning land, 
 the jury cannot give a conditional verdict to be released on delivery of a 
 deed and thus specifically enforce the agreement. 
 
 lb.— Eights Settled by Assumpsit.— Naftzinger v. Roth, 1880, 12 N. 
 443. The rights of vendor and vendee, under a parol sale, may be settled by 
 assumpsit and a conditional verdict, but the plaintiff must prove the con- 
 tract, the fiilfilment of it and that the cause of action occurred before action 
 brought. 
 
 lb.— Encumbrance.— Roland v. Miller, 1842, 3 W. & S. 390. In an ac- 
 tion on a bond given for purchase money for land, where the defendant sets 
 up that there is an incumbrance on it, it is proper for the jury to give a ver- 
 dict for plaintiff and attach the condition that no execution shall issue till 
 the incumbrance is removed. 
 
 lb.— lb.— Jackson v. Knight, 1842, 4 W & S. 412. Where a vendor, who 
 still holds the title and against whom a judgment has been recovered, sues 
 on a bond given for the purchase money, the proper practice is to direct a 
 conditional verdict for plaintiff with stay of execution until the encnmbrance 
 is removed. 
 
 COKFIDENXIAL RELATION. 
 
 [See also Trusts and Trustees I E (g.)] 
 
 I. In General. 
 11. Attorney and Client. 
 
 III. Assignor and Assignee. 
 
 IV. Co-Tenants. 
 
 V. Debtor and Creditor. 
 VI. Guardian and Ward. 
 VII. Husband and Wipe. 
 
 VIII. MOETQAGOR AND MORTGAGEE. 
 
 IX. Parent and Child. 
 X. Vendor and Vendee. 
 XI. Executors and Administrators. 
 
CONFIDENTIAL RELATION. 115 
 
 I. In General. 
 
 Adopted Child— Nulton's Ap., 1883, 7 Out. 286. A married woman 
 deals at arms length with a child adopted by her husband in which adoption 
 she did not join. 
 
 Burden of Proof— Wistar's Ap., 1867, 4 S. 60. The burden is on one 
 acting in a fiduciary relation to establish the fairness and consideration of 
 any gift received from the beneficiary. 
 
 Co-Sureties. — Shaeflfer V. Clendenin, 1882, 4 Out. 565. Co-sureties stand 
 in a confidential relation to each other, and each is entitled to participate in 
 any indemnity given to the other by the principal, directly or indirectly. 
 
 Crier. — Brotherline v. Swires, 1864, 12 Wr. 68. A crier may purchase at 
 his sale if he give all bidders a fair chance. 
 
 Directors of Corporation. — Ashhurst's Ap., 1869, 10 S. 290. Directors 
 of a corporation in a case demanding prompt action sold the property to 
 themselves at a fair price. Such sale will not be disturbed by equity, either 
 where authorized by the stockholders, or where the sale has been acquiesced 
 in by them. 
 
 lb. — Hammond's Ap. 1889, 8 Crum. 503. The director and treasurer of 
 an insolvent corporation have the right to buy up claims against the company 
 after an assignment by it, with his own money, and is entitled to a pro rata 
 payment thereof by the assignee. 
 
 Endorser of Note.— People's Bank's Ap., 1880, 12 N. 107. An endorser 
 of a note does not stand in such a relation to one about to discount it, that 
 it is fraud in him not to tell that the maker was a minor. Equity, therefore, 
 has no jurisdiction to afford relief against the endorser. 
 
 Insolvent Company— Member of —Porter w. Kinsey, C. P., 1880, 37 Leg. 
 Int. 424. Where a member of an insolvent company refuses to go into a 
 scheme of reorganization, he cannot, after that scheme has been carried out, 
 demand that he be admitted. 
 
 Joint Owners. — Cronister V. Weise, 1839, 8 "Watts, 215. Joint owners of 
 a mortgage (i. e. holders of separate bonds secured by the same mortgage) 
 are not in a confidential relation with respect to each other. 
 
 Landlord and Tenant. — Matthew's Ap., 1883, 8 Out. 444. A tenant who 
 holds a mortgage on the premises demised, cannot enter up judgment and 
 sell the property without notice to his landlord. The relation is a confi- 
 dential one and requires good faith. 
 
 Lunatic— Fraud.— Arnold v. Townsend, C. P., 1880, 37 Leg. Int. 376, S. 
 C. 14 Phila. 216. A deed made by one afterwards adjudged to be a lunatic 
 with lucid intervals, will be set aside if made to one standing in a relation 
 of confidence to him, and on inadequate consideration. 
 
 Mistake. — Hunt v. Moore, 18'45, 2 Barr 105. Although mistakes of law 
 will not be relieved against as such, yet they may give rise to a presump- 
 tion of undue influence or confidence abused, in which case equity will al- 
 ways relieve. 
 
 Partnership.— Westcott v. Tyson, 1861, 2 "Wr. 389. The creditors of an 
 insolvent firm appointed one of the partners agent to wind it up. He, in 
 connection with another, bought in claims against the partnership. Held 
 not to be within the rule that a trustee cannot buy trust property for him- 
 self, and therefore his purchases did not inure to the benefit of the firm. 
 
 lb.— Hall's Ap., 1861, 4 "Wr. 409. Articles of partnership provided that, 
 in the event of either dying,a clerk should be engaged out of his share of thi> 
 profits and the business continue. A partner died and the clerk engaged 
 was one of the executors, who received as his salary one-third of his testa- 
 tor's share in the profits. Held this was not a breach of the trust and he 
 need not account for it. (Woodward and Eeed J. J., dissent.) 
 
116 CONFIDENTIAL RELATION. 
 
 Physician. — Audenreid's Ap., 1879, 8 N. 215. The position of medical 
 adviser is not so confidential that in transactions between him and his 
 patient he must show affirmatively good faith. Having denied fraud in his 
 answer the burden was put on the complainant. 
 
 Principal and Agent.— Grant d. Seitsinger, 1831, 2 P. & W. 525. An 
 agent is not permitted to make a profit out of his principal in his dealings 
 for the latter. They stand in confidential relation to each other. 
 
 lb. — Clerk. — Foxd. Cash, 1849, 1 S. 207. A mere clerk, without any dis- 
 cretion himself, may purchase at a sale by his employer, who is atrustee. 
 
 Sheriff. — Lazarus v. Bryson, 1810, 3 Bin. 54. A sheriff cannot purchase 
 at his own sale ; he is in this respect a trustee. 
 
 Statute of Limitation.— Susquehanna Coal Co. v. Quick, 1869, 11 S. 328. 
 For the' statute of limitation to run between those in direct confidential re- 
 lations, as trustee and cestui que trust, landlord and tenant or mortgagor and 
 mortgagee, the evidence to show a denial of the relation will have to be 
 stronger than in those cases where the relation is less direct and confidential, 
 e. g. co-tenant. 
 
 II. Attorney and Client. 
 
 Collection of Money.— Campbell v. Bogg, 1865, V?. Wr. 524. An at- 
 torney, who collects money for his client, is not a trustee for him, and after 
 six years an action against him cannot be brought. 
 
 Continuance of Relation. — Henry v. Raiman, 1855, 1 C. 354. The con- 
 fidential relation between attorney and client continues after the relation is 
 ended and the former may never purchase a title adverse to that of his client 
 about which he has been employed. 
 
 Contract Between. — Johnson v. Alexander, C. P. Mercer, 1872, 4 Leg. 
 Gaz. 393. An attorney who .seeks to establish a contract with his client 
 must show its perfect fairness and equity. 
 
 Deed to Attorney. — De Camp v. Johnson, 1862, 3 Luz. Leg. Ohs. 42. A 
 deed from a client to his attorney, given by the advice of the latter, cannot 
 stand. 
 
 Deed— Purchasing Outstanding Title. — Smith r. Brotherline, 1861, 13 
 S. 461. An attorney employed to draw a deed stands in a confidential re- 
 lation with his client and is precluded from buying in, for his own use, an 
 outstanding title. 
 
 Judgment — Purchase of — Conniff ;;. Doyle, C. P. Luzeme, 1871, 28 Leg. 
 Int. 230, S. C. 8 Phila. 630. An attorney may buy in a judgment against 
 his client, which he unsuccessfully resisted. 
 
 Letters of Attorney— Purchase of Land.— Brown's Est. 1846, 2 Barr. 
 468. One acting under letters of attorney for all the heirs, cannot, by not 
 redeeming land of the estate sold at treasurer's sale, afterwards buy it for him- 
 self from the treasurer's vendee. He is a trustee for the heirs. 
 
 Limited Employment. — Devinncy v. Norris, 1839, 8 W. 314. An at- 
 torney whose employment extended only to seeing that the condemnation of 
 land was properly made, may purchase the same at the sheriff's sale. 
 
 Nature of Relation.— Lockhard v. McKinley, C. P., 1881, 9 W. N. C. 11. 
 The relation between attorney and client is a confidential one, and all acts, 
 concealments and omissions by the former, which involve a breach of legal 
 or equitable duty or confidence, constitute in equity a fraud. 
 
 Purchasing at Sale. — Leisenring V. Black, 1836, 5 Watts, 303. An at- 
 torney for plaintiff in an execution cannot buy the property for a less sum 
 tlian the judgments of his clients, nor can he purchase in the name of one 
 client. In either case there is a resulting trust. 
 
 lb.— Ground-Rent.— Barrett v. Bamber, 1876, 31 S. 247. An attorney 
 for a trustee of a ground-rent bought in the property at sheriff's sale for less 
 
CONFIDENTIAL RELATION. . . 117 
 
 than the amonnt of the judgment for arrears of rent. Held that he bought, 
 as trustee for the trust estate, and that any claiming under him had con- 
 structive notice from the record that he was trustee. 
 
 Purchase Under Judgment— Option of Client.— Eshleman v. Lewis, 
 1865, 13 Wr. 410. Where an attorney purchases land, under a judgment of 
 his client, the latter can elect to treat him as a trustee or a purchaser. 
 
 Statute of Limitations.— Webster v. Newbold, 1862, 5 Wr. 482. A re- 
 ceipt of fees by one attorney does not render him such a trustee for his col- 
 league as to take the case out of the statute of limitations. 
 
 lb.— McDowell V. Potter, 1848, 8 Barr, 189. The statute of limitations 
 runs in favor of an attorney, who has collected money, from the time that 
 his client knows that he has collected it. 
 
 Title —Purchasing Adverse.— Smith o. Brotherline, 1869, 12 S. 461. 
 One employed and consulted as counsel to draw a deed cannot buy in an 
 outstanding title for his own benefit. 
 
 lb. — Galbraith v. Elder, 1839, 8 W. 81. An attorney who has been con- 
 sulted as to the title of lands cannot afterwards buy for his own benefit an 
 adverse title to the same property. 
 
 What Amounts to the Relation.— Tatham «. Lewis, 1870, 15 S. 65. 
 Defendant purchased land through an attorney who had negotiated a lease 
 of the same tract for the plaintiff but which had not been executed. There 
 had been some talk between the parties as to purchasing it together. Held 
 there was no confidential relation between the parties ; also, that if plaintiff 
 had suffered through the negligence of the attorney he had an adequate 
 remedy at law, and equity had not jurisdiction. Bill dismissed without costs. 
 
 III. Assi8:nor and Assignee. 
 
 For Creditors— Assignee Purchasing.-^Campbell v. McLain, 1865, 1 S. 
 200. An assignee for creditors cannot buy at a'-sheriff's sale under an exe- 
 cution issued by him ; nor" is his title, helped by a confirmation of his re- 
 port charging himself with the amount of the purchase, it not appearing 
 therein that he was the purchaser. 
 
 lb. — Benson v. Adams, 1846, 3 Barr, 228. Where an assignee for creditors 
 buys in land sold by him under a judgment, and the debtor takes possession 
 and after several years sells the same, it is for the jury to decide whether 
 the land was purchased by the assignee for the debtor. 
 
 Mortgage— Set-Off.— Roberts v. Williams, 1882, 11 W. N. C. 337. A 
 mortgagee assigned the mortgage to a trustee and guaranteed its payment. 
 On a sale of the property the trustee bought it in for less than the mortgage 
 debt, then refused to take it, and on a resale the property brought still less. 
 He sued the guarantor for the difference between the second sale and the 
 mortgage. Meld that the difference between the two sales could be set-off 
 
 Patent —Fraud.— Everitt v. Hale, C. P., 1882, 39 Leg. Int. 158; S. C. 
 15 Phlla. 305. Where the assignee of a patent, conspires with a third partj' 
 ,to have a prior patent reissued so as to cut out the one assigned to him, he 
 will be compelled by equity to assign this latter patent to his original as- 
 signor. (Affirmed ; appeal pending IJ. S. S. C.) 
 
 IV. Co-Tenants. 
 
 Assignment of Right of Settlement— Resulting Trust.— Call uWebb, 
 1878, 7 N. 150. Where a settlement right had been sold to a person, the 
 deed containing the stipulation, "provided I, the said grantor, am entitle<l 
 to hold the said tract by my settlement," the fact that one of his heirs bought 
 in a good title to the premises will not raise a resulting trust in favor of the 
 other heirs, and in any event, after thirty-seven years they have no claim. 
 
118 CONFIDENTIAL RELATION. 
 
 Encumbrance — Purchase of.— Edmund's Ap., 1871, 18 S. 24. Although 
 the general rule is, that co-tenants are not in a confidential relation, yet in 
 the present case, one co-tenant, who bbught in an encumbrance, and under 
 it the property was held a trustee for the other (a married woman), the tes- 
 tator, under whom each claimed, having provided another way of getting 
 rid of the encumbrance. 
 
 Purchase by Equitable Tenant in Common.— Ruff v. Wilson, 1872, 22 
 S. 442. Where the act of one in a confidential relation with another bears a 
 rightful construction, that will be put on them. Hence, where an equitable 
 tenant in common buys in an outstanding title, he is presumed to buy it in 
 as trustee pro ianto for his co-tenant. 
 
 lb.— Dickey's Ap., 1873, 23 S. 218. The heirs of a decedent, who had 
 bequeathed property to a charity, entered into an arrangement to break the 
 will as to the bequest and divide the property. The parties were equitable 
 tenants in common and a purchase of the outstanding title by one inured 
 to the rest. 
 
 Purchase by Tenant in Common. — Lloyd v. Lynch, 1857, 4 C. 419. 
 Tenants in common are in such confidential relation that the purchase of an 
 outstanding title by one inures to all. 
 
 Sale Under Lien After Partition— Purchase. — Maul «. Kider, 1865, 1 
 S. 377. Where tenants in common, after a tax has been assessed, partition 
 their land and the whole tract is afterwards sold for the tax mentioned, one 
 of the parties buying in, the title of the purchaser at this sale holds it as 
 trustee as to his co-tenant's part. 
 
 Sale— Purchase After Two Years, — Eeinboth v. Zerbe Eun Co., 1857, 
 5 C. 139. After a treasurer's sale of land owned by tenants in common and 
 the lapse of two years without redemption, one of the former owners may 
 purchase the title without being clothed with a trust for the other. 
 
 V. Debtor and Creditor. 
 
 Account— Collaterals.— McQueen's Ap., 1883, 8 Out. 595. A creditor 
 to whom his debtor has transferred collaterals is liable to the latter in a suit 
 in equity for an account, where, through carelessness or fraud, they have 
 not been made the most of 
 
 Statute of Limitations— Silence of Debtor. — Sankey v. McElevey, 
 1883, 8 Out. 265. The relation of debtor and creditor is not one of confi- 
 dence, so that the mere concealment of the fact of the debt by the debtor 
 will toll the running of the statute of limitations. 
 
 lb.— Stewart v. McBurney, 1886, 43 Leg. Int. 272. A debtor does not 
 stand in such a confidential relation to his creditor that he is bound to tell 
 him of the debt, and unless there is actual misrepresentation there is no 
 such fraud as will stop the running of the statute of limitations. 
 
 VI. Guardian and ^ard. 
 
 Advances by Guardian Ratified,— Killpatrick's Ap., 1886, 3 Amer. 46. 
 Where the advances made by a guardian to his ward, and repairs done by 
 the guardian on the ward's property have been ratified by the court, the 
 guardian is relieved from liahility. 
 
 Conveyance to Secure Ward's Claim— Liability.— Eoyer'sAp., 1849, 
 1 J. 36. A guardian who takes a conveyance of real estate in his own name 
 to secure a debt due his wards, may afterwards, at the option of the wards, 
 be charged with the debt. A guardian charged in this case for a loss result- 
 ing from his supineness. 
 
 Receiving Money After Ward Attains Majority.— Bull v. Towson, 
 1843, 4 W. & S. 557, When a ward comes of age (or, if a female, marries), 
 
CONFIDENTIAL RELATION. 119 
 
 the fiduciary relation of the guardian ceases. If he receives money after 
 that he does so as a mere agent, and a claim against him for it is harred. 
 
 Settlement— Account— Delay.— Maulfair's Ap., 1885, 14 Out. 402. 
 After a delay of nineteen years, a guardian who settled with his ward, sup- 
 posing her to be of age, will not be compelled to file an account unless good 
 cause for the delay be shown. 
 
 lb. — Lewis & Parker v. Browning, 1886, 1 Amer. 493. A full and fair 
 settlement made in good faith between guardian and ward, accompanied by 
 a full release executed under no mistake or misapprehension, may be treated 
 as a waiver of the legal right to an account in the orphan's court, and can- 
 not be impeached by the ward in the common pleas on the ground of mis- 
 representation and fraud. 
 
 VII. Husband and "Wife. 
 
 Anti-nuptial Settlement— Disproportionate.— Bierer's Ap., 1879, 11 
 N. 265. The fact that the provision made for the wife in an anti-nuptial 
 settlement is vastly disproportionate to the husband's means is evidence 
 that there was not the fullest good faith, which there must be between par- 
 ties in such a relation to sustain a contract between them. ' 
 
 lb. — Kline's Est., 1870, 14 S. 122. If the provision for a wife in an anti- 
 nnptial settlement is unreasonably disproportionate to the means of the 
 husband, it casts upon him or those claiming under him the burden of show- 
 ing that there was a full disclosure of his circumstances. 
 
 lb. — Concealment. — Kline v. Kline, 1868, 7 S. 120. Any designed and 
 material concealment between the parties to an anti-nuptial settlement will 
 avoid it. 
 
 Good Faith Must Appear Affirmatively.— Darlington's Ap., 1878, 5 
 N. 512. The relation of husband and wife is a confidential one, and wher- 
 ever the husband claims a benefit arising from any dealings with his wife he 
 must show affirmatively that he acted in good faith, took no advantage of 
 his position, and that the dealings were fair and equitable. 
 
 Husband Violating Trust— Subsequent Conveyance to.— Church v. 
 Church, 1855, 1 C. 278. A husband, who assists in violating a trust for his 
 wife, is not protected in subsequently obtaining a conveyance from one who 
 was a bona fide holder free from the trust. 
 
 Purchase by Wife— Husband Part Owner— Liens.— Swisshelm's Ap., 
 1867, 6 S. 475. A married woman purchased an interest in property of 
 which lier husband was part owner. There were liens on the interest the 
 wife purchased; The husband bought these liens, sold out her interest and 
 bought it in for himself. Held he was a trustee. 
 
 Secret Conveyance Shortly Before Betrothal. — Baird v. Stearne, C. 
 P.. 1882, 12 "W. N. C. 205. A secret conveyance by one a few days before 
 betrothal, but after declarations of an intention to marry, is in fraud of the 
 rights of the intended wife and will be set aside. 
 
 Voluntary Deed by Feme Sole Previous to Marriage.— Eobinson v. 
 Buck, 1872, 4 Leg. Gaz. 101. The execution of a voluntary deed by a feme 
 sole on the morning of her marriage, is prima fade a fraud on her intended 
 husband. 
 
 VIII. lllortsragor and mortgagee. 
 
 Equity of Redemption.— Fraud.-Steinruck's Ap., 1872, 20 S. 289. A 
 mortgagor released the equity of redemption to the mortgagee, and the latter 
 agreed to give the former three years in which to redeem, and also agreed, 
 at the end thereof, to sell at sheriffs sale and arcount to the mortgagor for 
 the surplus over his debt and expenses. Held that the agreement was a 
 mortgage, and the relation being confidential, the sale must be made with 
 
120 COXFIDENTIAI, RELATION. 
 
 strictest good faith. On the sale being misrepresented the amount of the 
 mortgage and the property was bought by one who conveyed to the mort- 
 gagee's wife. Held that the transaction was fraudulent, and that the mort- 
 gagee was a trustee for the mortgagor, who could still redeem. 
 
 Possession — Statute of Limitation. — Koons d. Steele, 1852, 7 H. 203, 
 Possession by a mortgagor is possession by his mortgagee so as to stop the 
 running of the statute of limitations; therefore, where a legal owner sold to 
 one whose title to the land was almost completed by adverse possession and 
 took a mortgage for the purchase money, the adverse holding ceased and the 
 vendee could not afterwards repudiate the sale and mortgage and set up an 
 independent claim on the ground of adverse possession. 
 
 Purchase by Mortgagee.— Blocher v. Blocher, 1854, 1 Pitts. R. 92 ; S. C. 
 1 Pitts. L. .J 182. A mortgagee may buy in the mortgaged property, on his 
 own or another's sale, and not thereby become a trustee or continue the mort- 
 gage. 
 
 What Constitutes the Relation Between.— McHenry's Ap., 1869, 11. 
 S. 432. A sold to B an undivided half of lands, taking a mortgage lor the 
 unpaid purchase money. He leased from B his interest. After the lease 
 wa-s determined and the last instalment on the mortgage overdue and un- 
 paid, A foreclosed the mortgage and bought in the interest of B. In a suit 
 by B against A to enforce a reconveyance, it was held, that there was no such 
 relation of confidence, either as mortgagee, lessee or co-tenant, as prevented 
 A from foreclosing without personal notice, or from purchasing the property 
 at the sale. 
 
 IX. Parent and Child. 
 
 Deed to Parent.— Miskey's Ap., 1883, 40 Leg. Int. 414 ; S. C. 3 Penny. 
 408. A voluntary deed by an intemperate son to his rich father without 
 any provision or power of revocation, and made without legal advice on the 
 part of the son, demands affirmative proof of fairness and genuineness. 
 
 Ejectment — Specific Performance. — Harris t. Richey, 1867, 6 S. 395. 
 In ejectment to enforce specific performance between parent and child, 
 equity requires more strict proof than it would between strangers. 
 
 Specific Performance. — Shirley v. Shirley, 1868, 9 S. 267. Where an 
 eflFort is made to enforce specific performance of a contract made between 
 parent and child, the plaintiff must show that he has been ready, prompt 
 and eager to do his part ; the proof must be stronger than in ordinary cases. 
 
 X. Tendor and Vendee. 
 
 Misreprentation as to Value. — Cumming'sAp., 1871, 17 S. 404. Equity- 
 will not relieve against a contract, where the only misrepresentation alleged 
 is a.s to the value of land, there being no more confidential relation than 
 arises from living in the same house. 
 
 Taking Vendor's Word.— Babcock v. Case, 1869, 11 S. 427. One who 
 holds a treasurer's deed for land situated at a distance, and who represents 
 to one about to buy that he has examined the litle and that it is good, 
 stands in a relation of trust and confidence toward the other who says that 
 if he buys he vpill have to take the former's word for it, and who does so buy. 
 
 Vendees of Same Vendor — Boundaries— Estoppel. — Smiley v. Dixon, 
 1830, 1 P. & W. 439. There is no such privity between two grantees of ad- 
 joining tracts from the same grantor, as estops one, after running a boundary 
 line with the other, from acquiring an outstanding title to the whole. 
 
 Voluntary Deed— Good Faith.— Miskey's Ap., 1883, n Out. 611. One 
 claiming under a voluntary deed, in which there is no power of revocation, 
 must show aflirmatively good faith and no undue influence, especially where 
 the grantor is of feeble mind and the grantee is in his confidence. 
 
CONFIDENTIAL RELATION. 1.21 
 
 XI. Executors and Administrators. 
 
 Administrator as Mortgagee— Purchase of Prior Mortgage.— Dil- 
 worth's Ap., 1884, 32 Pitts. L. J. 261. Where an administrator, who isalso 
 third moi-tgagee of a tract belonging to the estate, buys in the prior mort- 
 gages, and under them the mortgaged property, he is liable to account for 
 any profit made. 
 
 lb— Brother of Decedent.— Parshall's Ap., 1870, 15 S. 224. An ad- 
 ministrator, who is a brother of the deceased, stands in a confidential rela- 
 tion with the widow and children of the latter. 
 
 Purchase by — Discouraging Bidders. — Maye* v. Senyard, 1879, 7 W. 
 N. C. 224. An administrator who has at his own sale discouraged bidders 
 and has had the property bought in for himself, is a trustee however fair 
 the price may have been. 
 
 lb.— By Executor from Trustees Under th,e Will.— Cadbury v. Duval, 
 1849, 10 Barr, 265. An executor may purchase property of trustees ap- 
 pointed by the same will to sell property for the payment of debts. 
 
 lb. — Judgment — Judicial Sale. — Meanor v. Hamilton, 1866, o C. 137. 
 An executor or administrator of an estate with no personal property with 
 which to pay off an incumbrance, may purchase land of the decedent at a 
 judicial sale under the encumbrance. 
 
 lb. — From Executor's Vendee. — Silverthorn i. McKinster, 1849, 2 .1. 
 64. An executor may purchase for himself from his own vendee, there being 
 no fraud, and the fact that he pays in the notes given by that vendee on the 
 first sale, does not alter his standing. 
 
 lb. — ^Ib. — Painter i. Henderson, 1847, 7 Barr, 46. A purchased prop- 
 erty of an administrator ; ten months later the administrator bought the 
 property from A for his own use. There was no evidence of collusion. Held 
 that the administrator had a good title. 
 
 lb.— Insolvent Estate — Judgment. — McKerrahan v. Crawford, 1868, 9 
 S. 390. An executor may purchase for himself a j udgment against the estate 
 if the estate have no funds with which to pay it. 
 
 lb. — Orphans' Court Sale. — ^Lien Creditors. — Hannum's Ap., 1882. 2 
 Penny. 103 ; S. C. 1 Ches. Co. Eep. 362 ; aft'g ibid, 297. An orphans' court 
 sale for the payment of debts will be set aside at the instance of a lien 
 creditor, even after confirmation, when it appears that the administrator was 
 the purchaser, although there was no fraud and the amount realized was 
 sufficient to satisfy all liens. 
 
 lb. — lb. — Armor v. Cochrane, 1870, 16 S. 308. An administrator pur- 
 chased laud of the decedent from one of the heirs to whom it was sold at an 
 orphans' court sale. Held, no trust resulted. 
 
 lb. — Statute of Limitation. — Musselman o. Eshleman, 1849, 10 Barr, 
 394. A purchase by an administrator, at his own sale, must be disaifirmed 
 within twenty-one years or it will stand. 
 
 lb.— Void.— Hallman'sEst.,0. C. 1880, 34 Leg. Int. 169; S. C. 13 Phila.'562; 
 1 Ches. Co. Eep. 141. An executor or trustee cannot purchase at his own 
 sale, either directly or indirectly. The seeming exceptions to the rule dis- 
 cussed. 
 
 lb. — lb. — Fox's Est., 1868, 1 Pears. 449. A sale by an executor, either 
 directly or indirectly to himself, of real or personal property, will be set 
 aside on petition of one interested. 
 
 lb.— lb.— Wallington's Est., 1826, 1 Ash. 307. A purchase by an ad- 
 ministrator at his own sale is void, and if he have disposed of the property 
 he will be charged with the difference between the price he paid and that 
 estimated by the court as a fair one. 
 
 Sale— Executor as Devisee.— Woods v. White, 1881, 1 Out. 222. A 
 devisee of land charged with a legacy, who is also executor, may sell the 
 
122 CONFIDENTIAL EELATION — CONSIDEEATION. 
 
 land and take a purchase money mortgage, and on default sue it out and 
 seU the premises and thereby discharge the legacy. 
 
 lb.— By Executor to Himself.— Bruch v. Lantz, 1830, 2 E. 392. A sale 
 by an executor to himself, though indirectly, is voidable, and the executor 
 takes the estate subject to all the equities with which it was previously 
 clothed. 
 
 Tenant in Common — Co-tenant's Interest.— Alexander i. Kennedy, 
 1859, 3 Gr. 379. An executor of a tenant in common may purchase for 
 himself the co-tenant's interest. 
 
 Widow — Release from. — Cunningham's Ap., 1888, 7 Crum. 464. The 
 relation of trust and confidence between an executor and testator's widow 
 and devisees, puts the burden of proof upon the beneficiaries to show the 
 fairness of a release obtained by the executor from the widow of all her Interest 
 in the estate. 
 
 CONFI.ICXIBJG EQUITIES. 
 
 See Assignment II. 
 
 PUBCHASEE. 
 
 COIKSIDERAXION. 
 
 Adeauacy of— Partition.— Riley v. Buckly, C. P. 1875, 1 W. N. C. 167. 
 A master's sale in partition will not be set aside for slight inadequacy of 
 price, no rule can be fixed, but in this case a sale of a property for $10,500 
 would not be set aside upon bond being given to bid $11,000 for it, and a 
 sale for $1,250 was set aside upon a bond being given to bid $2,500. 
 
 Agreement not to Prosecute.— Second Media Association V. Bullard, C. 
 P. Delaware, 1879, 1 Del. Co. R. 125. A mortgage given by a wife to an 
 association, irom which her husband has embezzled funds, in consideration 
 of her husband not being prosecuted, is valid, the real consideration being 
 the debt. 
 
 Assignee of Mortgage, — Hofisomer v. Smith, C. P. Luzerne, 1882, 1" 
 Kulp. 348 ; S. C. 10 Luz. L. Reg. 121. The assignee of a mortgage in seek- 
 ing to recover thereon, must show the circumstances under which the assign- 
 ment was made and the consideration therefor. 
 
 Deed to Trustees —Absence of— Fellow's Ap., 1880, 12 N. 470. A 
 deed to a trustee for the use of the grantor for life and for his appointees 
 after death is, in the ibsence of fraud, a valid and irrevocable instrument, 
 though made without consideration. 
 
 Failure of. — Watts v. Cummin gs, 1868, 9 S. 84. One defending an action 
 on a note on the ground of failure of consideration is setting up an equity, 
 not defending against one, and must himself make out a case to move the 
 chancellor. 
 
 Notice. — Stewart's Ap., 1881, 2 Out. 377. The fact that the consideration 
 expressed in a deed is " valuable and sufficient,'' and the receipt at the end 
 is for 1100, the property being worth many time^ that, is not sufficient t» 
 put a purchaser on inquiry as to a secret trust. 
 
 Prosecution— Stifling.— Riddle v. Hall, 1881, 3 Out. 116. Where part 
 of a consideration for a mortgage is the stifling of a criminal prosecution 
 the mortgage is void, whether the prosecution is stopped or not. 
 
 Specific Performance — Voluntary Agreement. — Pringle v. Pringle, 
 1868, 9 S. 281. Equity will not enforce an unexecuted voluntary agreement. 
 
CONSIGNEE — CONVERSION. 123 
 
 CONSIGNEE. 
 
 See Peikciple and Agent. 
 
 COPiXEMPX. 
 
 See Attachment II. 
 
 CONTINUING TRESPASS. 
 
 See Injunction, I J. 
 
 CONTRACTS IN RESTAINT OF TRADE. 
 
 See Injunction I L. ; Eesteaint of Tbade. 
 
 CONTRIBUTION. 
 
 See Adjustment, IV. 
 
 CONVERSION. 
 
 I. By Act of the Paeties. 
 II. By Operation op Law. 
 
 I. By Act of ttae Parties. 
 
 Blending Real and Personal Property.— Page's Est., 1874, 25 S. 87. 
 Where a testator blends his real and personal property and gives them as 
 money there is a conversion, though there be no positive direction to sell. 
 
 Conveyance of Land to Wife Entitled to Legacy. — Davis v. Davis, 
 1863, 10 Wr. 342. Where land is conveyed to a trustee for a wife, in place 
 of a legacy she was entitled to, her husband consenting, the latter has no in- 
 terest in the land, and when upon partition being made the legal title in con- 
 veyed to him, he holds as trustee only. 
 
 Direction to Sell— Election— Debts.— Stuck v. Mackey, 1842, 4 W. & 
 S. 192. Where land is ordered to be sold and proceeds given to the chil- 
 dren, it is not subject to the debts of the children until they elect to take as 
 land. 
 
 lb. — Distributee's Election. — Willing v. Peters, 1847, 7 Ban-. 287. One 
 of several distributes of the proceeds of land directed to be sold, cannot elect 
 to take as land so as to give his widow a right of dower. 
 
 lb. — lb. — Simpson v. Kilso, 1839, 8 W, 247. Land directed by a testator 
 to be sold is to be considered as money, and if one entitled thereto elects 
 to take the same as land, he is a purchaser. 
 
 lb.— Partnership Assets.— Rose's Est., 1888, 6 Pa. Co. C.:Rep. 109. Where 
 a testator bequeathed his residuary estate to his executors to pay the income 
 to his widow for life with the remainder to his heirs at law, coupling with 
 
124 OONVEESION. 
 
 the gift a power of isale in the executor for the purpose of paying debts and 
 investing the estate to best advantage, the estate consisting partly of part- 
 nership assets, it was held that a sale by the executor of realty belonging to 
 the estate, worked a conversion. 
 
 Discretion Not to Sell.— Jones v. Caldwell, 1881, 1 Out. 42. The inter- 
 est of an heir in land, which it is directed shall be sold after the life estate 
 of the widow determines, cannot be bound by a judgment, although there 
 is a provision that in case the heirs can agree to a division the executor need 
 not sell. 
 
 lb.— Mortgage of Legatee's Interest.— Gray r. Smith, 1834,3 Watts, 289. 
 There cannot be a valid mortgage of the interest which a legatee has in the 
 proceeds of land directed to be sold for the payment of legacies. 
 
 Election. — Eoss v. Drake, 1860, 1 Wr. .373. A bequest of seven hundred 
 dollars to a son, which, if the son should wish, the executors should invest 
 in land, becomes, on such an election being made, a devise of land. 
 
 lb. — Spangler's Ap., 1855, 12 H. 424. Where real estate has been taken 
 by an heir at the valuation, and his recognizances given to his co-heirs, con- 
 version is complete. 
 
 lb.— Evidence of.— Eice v. Bixler, 1841, 1 W. & S. 445. When a testator 
 devises land to his executor to be sold and the proceeds given to his children, 
 the children have such an interest as to justify them in compromising a 
 boundary, and where they unite in conveying the land to the executor then- 
 deeds are evidence of their elections to take as land. 
 
 Executor Taking Conveyance of Encumbered Land.— Oeslager v. 
 Fisher, 1846, 2 Barr, 461. Where an executor takes a conveyance of land 
 encumbered in favor of the estate, in order to save the debt, he is a trustee 
 for himself as representing the estate, and his act does not work a conversion 
 of the funds of the estate so as to give the heirs a title to the land. There- 
 fore, a subsequent conveyance by the executor conveys a good title. 
 
 Precatory Words.— Philadelphia's Ap., 1886, 17 W. N. C. 472. The 
 words, "I desire that my real estate shall be sold," work a convereion. 
 
 Price of Land Testator Agreed to Sell. — Eangler's Ap., 1846, 3 Barr, 
 377. The price of land agreed to be sold by decedent in his lifetime and 
 afterwards received by his administrator, is personalty. 
 
 Proceeds of Real Estate— Election.— Smith v. Starr, 1837, 3 Whart. 62. 
 Those to whom the proceeds of a sale of real estate are bequeathed, can elect 
 to take the real estate. 
 
 Re-Conversion. — Reed «. Mellor, 1888, 7 Crum. 635. Where, by the terms 
 of a will there is an equitable conversion of the realty into personalty, and 
 the executor instead of selling the land conveys it to the widow, by whom 
 the will provided the proceeds of the land should be held as guardian of the 
 children, the widow has a right to sell the same, and after such a sale, or a 
 miortgage to an outside party, it is too late for the children, who have all 
 become of age, to elect to take the property as land. 
 
 Sole and Separate Use.— Winter's Est., 1889, 46 Leg. Int. 140. Where 
 a trustee under a will is to invest property granted for the sole and separate 
 use of testator's wife, apply the income to the support of the wife during life 
 and divide the remainder among testator's children after the decease of the 
 wife, with the authority, in case the income prove insufScient tor such Sup- 
 port, to convert any portion of said investments and apply the principal to 
 the support of the wife, this does not give the testator's widow an absolute 
 estate to be disposed of during life at her discretiion. 
 
 Specific Purpose- Surplus— Distributees.— Sayer's Ap.,1875, 29 S. 428. 
 After a conversion of land for a specific purpose, the surplus remaining after 
 the purpose is accomplished is distributed as land, but in the hands of the 
 distributees, is money and descends as such. 
 
 Surplus from Sale— Descent.— Hart's Ap., 1848, 8 Barr. 32. An nnex- 
 
COXVKKSIOiSr. 125 
 
 pended balance of funds raised from a sale of the real estate ot a cestui que 
 trust will, on his death, be distributed as land. 
 
 lb.— Warfel v. Calder, 1877, C. P. Lancaster, 8 Lan. Bar, 205. The sur- 
 plus remaining from the proceeds of partnership real estate sold to pay debts 
 descends as real estate. 
 
 II. Bv Operation of I^a^v. 
 
 Act of Feb. 24, 1833— First Transmissionof Proceeds,— Squire's Est., 
 
 O. C. 1879, 8 W. N. C. 220. Act Feb. 24, 1833, s. 33, (conversion) applies 
 to the first transmission of the proceeds only. 
 
 Act of March 29, 1832— Restraint Upon Husband —Hay's Ap., 1866, 
 2 S. 449. Act of March 27, 1832, protecting a wife's interest in real estate, 
 which is coming to her as money, does not prevent a conversion, but only 
 restricts the husband's control over it. 
 
 Administrator's Sale— Deed.— Homer's Ap., 1867, 6 S. 405. An ad- 
 ministrator sold through the orphans' court the interest of his intestate. 
 That interest, on the doctrine of equitable conversion, was personalty. Held 
 tliat his deed under the orphans' court sale was good as an equitable assign- 
 ment. 
 
 Agreement to Sell.— Leiper's Ap., 1860, 11 C. 420. An agreement to 
 sell land works a conversion, and a reoision of the agreement after the death 
 of the vendor, does not work a i-econ version so as to change the right of the 
 parties. 
 
 Application of Proceeds Directed. — Roland v. Miller, 1882, 11 W. N. 
 C. 431 ; S. C. 15 Lan. B. 6. Where there was in a will no devise of real es- 
 tate, but there was a provision that the proceeds of any sale should be 
 equally divided, and a provision to rent for fifteen years, unless in the mean- 
 time it should seem best to sell , it was held that the will worked a conver- 
 sion. 
 
 Contingencies.— Perot's Ap., 1883, 6 Out. 235. Where a will provides 
 for two distinct contingencies, at the testator's death, the question of conver- 
 sion must be determined solely by the directions as to the contingency, 
 which took effect. A direction to keep invested does not work a conversion. 
 
 Descent— Property Charged After First.— Dyer v. Cornell, 1846, 4 
 Barr, 359. Money considered by the court as land loses that character after 
 the first descent. 
 
 lb.— Of Mortgaged Property.— Squire's Est., O. C. 1880, 37 Leg. Int. 15. 
 Where land has descended to a minor, subject to a mortgage under which it 
 is sold, the proceeds are held as money and so descend. 
 
 Direction to Sell.— Parkinson's Ap., 1859, 8 C. 455. The clause, "I do 
 order and direct, authorize and empower my executors to sell all my reales- 
 ' tate," held to.be a conversion out and out. 
 
 lb. — Bright's Ap., 1882, 4 Out. 603. An imperative direction in a will to 
 sell land works a conversion, although the time of the sale is postpoiic-d. 
 
 lb. — Leiper v. Thompson, 1869, 10 S. 177. A devise ot real estate to trus- 
 tees to sell and divide the proceeds upon the youngest child's attaining ma- 
 jority, works a conversion. 
 
 lb.— Anti-Nuptial Will— Widow's Interest.— Perry's Est., 1886, 4 Pa. 
 Co. C. R. 107. In an anti-nuptial will an equitable conversion by a discre- 
 tion to sell real estate and invest in personalty will not under act of April 8, 
 1833, give the widow an absolute instead of a qualified interest, in testator's 
 estate. 
 
 lb. — Condition.^Pyle's Ap. , 1883, 6 Out. 317. A direction to executors 
 to sell as soon as convenient after the death of the life tenant, with a provi- 
 sion that any of his sons may take at a valuation, works a conversion. 
 
126 CONVERSION. 
 
 lb. — lb. — Stoner i>. Zimmerman, 1853, 9 H. 394. A conditional or alter- 
 native direction to sell in a will, does not work a conversion. 
 
 lb.— lb.— McClure's Ap., 1872, 32 S. 414. A direction in a vrill to " sell 
 the land at my wife's decease," works a conversion. 
 1 lb.— lb.— Consent.— Miller's Ap., 1869, 10 S. 404. A direction to sell 
 the property with the consent of my administrator and the rest of my family, 
 does not work a conversion. 
 
 lb. — Discretion. — ^Anewalt's Ap., 1862, 6 "Wr. 414. Where a direction 
 to sell in a will is at all contingent or depends on the discretion of anyone, 
 there is no equitable conversion. 
 
 lb. — lb. — Churchman v. Wright, 1883, 3 Penny. 149. A direction to exe- 
 cutors to sell land whenever they shall be of opinion that it will bring its 
 real value, works a conversion. 
 
 lb.— lb.— Howard's Ap., 1882, 2 Penny. 347. A direction in a will for 
 executors to sell real estate, followed by a direction given them to let it on 
 redeemable ground rents, does not work a conversion. 
 
 lb. — Descent. — Large's Ap., 1867, 4 S. 383. The proceeds of land sold 
 under act April 3, 1851, s. 1., descend as money though for the purposes of 
 the will they may in other respects be treated as real estate. 
 
 lb.— Failure of Purpose.— Hodges' Est., 1888, 45 Leg. Int. 282. Where 
 a testator intends a conversion of his real estate for the purpose of division 
 among charities, and this purpose fails, the land is not deemed converted for 
 other purposes. 
 
 lb.— Gift to Wife.— Williams v. Williams, 1874, 1 W. N. C. 54. A gift 
 in a will to a wife of what she would be entitled to under the intestate laws, 
 followed by a direction to sell the real estate, gives one-third of the whole 
 estate absolutely since the last clause, works a conversion. 
 
 lb.— Legacies— Land Given in Payment of. — Miller v. Commonwealth, 
 1886, 17 W. N. C. 78. Where directions in a will, which work a conversion, 
 are followed by permission to pay the legatees by conveying land of equal 
 Talue in place of money legacies, the conversion nevertheless holds and the 
 legatees take as though they had purchased the land with their legacies. 
 
 lb.— Must be Positive.— Bleight v. Bank, 1848, 10 Barr. 131. To work 
 a conversion, the direction in a deed or vrill must be positive, not discre- 
 tionary. 
 
 lb.— Option Given Heir. — Laird's Ap., 1877, 4 N. 339. An express di- 
 rection by a testator that his real estate be sold works a conversion, although 
 an option is given to one of his sons to take it at an appraisement. 
 I lb.— Surplus.— Wilson V. Hamilton, 1823, 9 S. & R. 424. The residue of 
 the proceeds of land directed by the testator to be sold to pay certain legacies, 
 is real estate and goes to the heir. 
 
 Doctrine of. — Foster's Ap., 1873, 24 S. 391. Conversion is a doctrine of 
 equity and is only admitted to produce equity ; that done reconversion takes 
 place. Therefore, although as to creditors firm land is personalty, as soon as 
 all creditors are satisfied out of the proceeds of that land, the balance is dis- 
 tributable between the partners as real estate. 
 
 lb.— Eckert's Est., O. C. 1878, 5 W. N. C. 451. The distribution as to 
 eonversion between sales of decedent's real estate to pay debts and sales in 
 partition is no longer recognized. 
 
 lb.— Limitation.— Wentz' Ap., 1889, 24 W. N. C. 201. Conversion is a 
 purely equitable doctrine, and as soon as the necessity of the. fiction ceases, 
 conversion ends. Its'purpose is to preserve the inheritable quality of the es- 
 tate, and the limit to which it is confined is the first devolution of title. 
 
 Power to Sell.— Dundas's Ap., 1870, 14 S. 325. Under the act Feb. 24, 
 1834, a power given to executors to sell real estate, works a conversion and 
 breaks the descent. 
 
CONVERSION — CONVEYAXCE. 127 
 
 lb. — Hunt's Ap., 1884, 9 Out. 128. A mere testamentary power of sale 
 of land, does not work a conversion. 
 
 lb.— Act Feb. 24, 1834.— Cheer v. Nicklin, 1863, 9 Wr. 84. Equitable 
 conversion is a question of the intention of the testator. The act Feb. 24, 
 1834 sec. 13, vesting in executors, with a power to sell, the same interest as 
 though the estate were devised to them to be sold, was not intended to work 
 a conversion wherever a naked power of sale is given to the executors. 
 
 lb. — Discretionary. — Peterson's Ap., 1879, 7 N. 397. A discretionary 
 power to sell vested in trustees, does not work an equitable conversion. 
 
 lb. — ^Election. — Burr V. Sien, 1835, 1 "Whart. 252. There was a devise ifi 
 trust for a minor son with a power of sale of the real estate, the trust to 
 end upon the son's becoming of age. The son became of age, the real estate 
 not being sold ; he died soon after having devised the real estate without 
 words of inheritance. Held, 1st. The power to sell worked a conversion 
 and the land became personalty. 2. The son was to be considered as hav- 
 ing elected to take as real estate, therefore, his devisee took but a life estate. 
 
 Purchase of Mortgaged R:operty by Executor.— Johnson v. Bliss, 
 1882, 11 W. N. C. 293. Where an executor buys in mortgaged property in 
 order to save the debt, it works no such conversion that he cannot pass a 
 good title by a sale, although he have not a power of sale. 
 
 Becision of Contract of Sale.: — Leiper v. Irvine, 1856, 2 C. 54. A reci- 
 sion of a contract of sale entered into by the decedent in his lifetime, works 
 a conversion, but does not affect the right of distributees. 
 
 Takes Place When Deed is Made.— Biggert's Est., 1852, 8 H. 17. 
 Where conversion of real estate is by act of the law, the conversion does not 
 take place until the deed is made ; secus as to conversion by act of the par- 
 ties. 
 
 Void Bequest. — Evans' Ap., 1869, 13 S. 183. A bequest to a charity, 
 which provided that land should be sold, but which was void, because made 
 within one month of the death of the testator, nevertheless works a conver- 
 sion. 
 
 Widow Taking Against Will. — Hoover v. Landls, 1874, 26 S. 354. A 
 widow, who elects to take under the will, takes the property as it exists, 
 dehors the will and is not affected by a conversion which the, provisions of 
 the will work. 
 
 CONVEYANCE. 
 
 See Husband and Wife, VII. 
 
 Agreement to Sell— Discharging Claims.— Samuel v. Blaylock, 1873, 
 4 Lan. Bar. 41. Where one holds a legal title under an agreement to 
 sell and discharge certain claims and then divide what remains with another, 
 the latter has no equity to compel a conveyance of half the property to him- 
 self. 
 
 Jurisdiction- District Court— Husband and Wife.— O'Neil v. Hamil- 
 ton, 1862, 8 Wr. 18. A daughter under the will of her father was entitled 
 to land bought by him but not conveyed. She married and the deed was made 
 by the vendor to her husband ; he sold the land to respondent, who had no- 
 tice of all the facts. She brought this bill, praying that her title be quieted, 
 that respondent be declared a trustee and be ordered to convey the legal 
 title to her. Held that the district court had equitable jurisdiction in the 
 matter, and that complainant was entitled to the relief asked. 
 
 lb.— Land in Another County.— Beidler v. Miller, C. P. Berks, 1864, 
 Woodw. Dec. 222. Equity may assume j urisdiction where the relief prayed 
 for is the conveyance of lands in another county. 
 
128 CONVEYANCE — CORPORATION. 
 
 Partition.— Gratz o. Lex; D. C. 1866, 23 Leg. Int. 357 ; S. C. 6 Phila. 183. 
 In partition equity may decree a conveyance of the legal title to the party 
 taking the land, where it may be deemed necessary. 
 
 Trust— Demand on Trustee — Writ in Ejectment. — Caldwell v. Low- 
 den, 1869, 16 Pitts. L. J. pt. II p. 26. Where equity would compel a trus- 
 tee to convey the legal title, a writ in ejectment is sufficient demand. 
 
 lb.— Limited in Remainder.-rStokes's Ap., 1876, 30 S. 337. Where 
 the instrument creating the trust limits the property in remainder, the trus- 
 tees have no duty to perform after the death of the cestui que trust. 
 
 lb.— Passive.— Philadelphia Trust Co.'s Ap., 1880, 12 N. 209. A trust, 
 otherwise passive, will not be supported, because on the happening of a cer- 
 tain contingency the trustee is directed to make a conveyance. 
 
 lb. — lb. — Lavery v. Lavery, N. P. 1871, 1 Leg. Op. 169. A decree will 
 be made ordering a trustee to convey the legal title to the cestui que trust, 
 where the trust is merely nominal and beclouds the title. 
 
 lb.— lb.— Appel's Ap., O. C. 1858, 15 Leg. Int. 13 ; S. C. 3 Phila. 23. The 
 orphans' court may compel a trustee to execute a conveyance of the trust 
 property to those entitled, when the objects ot the trust are all accom- 
 plished. 
 
 lb. — Remainder to Appointees. — Rush v. Lewis, 1853, 9 H. 72. A 
 trust for one for life, with remainder to her appointee, is executed by the 
 appointment and death of the cestui que trust, and a bill in equity by the ap- 
 pointees against the trustees for a conveyance is demurrable on the ground 
 that each conveyance is necessary. 
 
 lb.— Sole and Separate Use.— Fox v. Scott, C. P. 1856, 13 Leg. Int. 268; 
 S. C. 2 Phila. 151. Where one enjoying the benefit of a trust for her sole 
 and separate use becomes discovert, a conveyance of the legal title to her 
 will be decreed. 
 
 lb.— lb.— Lewis v. Eddy, C. P. 1880, 8 W. K. C. 355. Equity will decree 
 that a trustee in a trust, which was created for the sole and separate use of 
 a woman, neither married nor contemplating marriage, shall make her a 
 deed free from all trusts. 
 
 Trustee — ^Foreign. — Vaughn v. Barclay, 1841, 6 Whart. 392. The court 
 can compel a trustee residing in the State to execute a conveyance of lands 
 without the State. 
 
 COPYRIGHX. 
 
 See Injunction, I D. ; Adjustment, II. 
 
 corporaxio:n. 
 
 I. In General. 
 II. Jurisdiction. 
 
 III. Plaintiff. 
 
 IV. Defendant. 
 V. Mortgages. 
 
 I. In Oeneral. 
 
 Actions— Joinder.— Huston v. Sellers, C. P. 1878, 35 Leg. Int. 262 ; S. C. 
 12 Phila. 520. A complainant cannot join in the same bill an individual 
 demand and a demand as a stockholder of a corporation. 
 
COKPOEATION. 1-J9 
 
 Agent of— Duty When Executor Transfers Stock.— Bayard v. Farm- 
 ers' and Mechanics' Bank, 1866, 2 S. 232. An executor is a trustee for collec- 
 tion iind distribution, likewise an assignee for creditors ; but the duty ot an 
 ordinary trustee is custody and management. Therefore, a trustee of the ' 
 former classes has power to transfer stock, but before a trustee of the latter 
 kind should be allowed to transfer stock, the agent should require an exhi- 
 bition of his authority. 
 
 Assent of Member — Estoppel. — Grand Lodge of Workingmen V. Stepp. 
 188H, .3 Penny. 45. A member of a corporation, who assents to an authority 
 not within the scope of the charter, is not estopped from denying it. 
 
 Assignment Bond — Parties. — Bunting v. Camden E. R. 1876, 31 S. 254. 
 A bond ot a corporation is assignable under act May 28, 1715, so as to enable 
 the assignee to sue in his own name. Such bond in equity is assignable 
 by parol delivery merely, but if an obligee is named in the bond, an action 
 on it by the assignee must be in the name of that obligee. 
 
 lb.— Bona Fide Holder.— Wood v. Maitland, C. P. 1873, 5 Leg. Gaz. 348. 
 Where one has taken a transfer of stock belonging to an estate from the exe- 
 cutor as security for his own debt, the assignee is not a bona fide holder, and 
 equity will enjoin a transfer of the stock on the books of the company. 
 
 lb ^Power to Make.— Dana v. Bank of U. S. 1843, 5 W. & S. 223. The 
 
 power to make an assignment for creditors belongs to a corporation, unless 
 it be taken away from it by its charater or other legal proTision. 
 
 Bond— Approval of— What Constitute an.— Nolde v. Madlem, 1887, 4 
 Luz. Leg. Reg. 347. Where a church charter requires trusteed to give bond 
 before assuming the duties of the office, said bond, with security, to be ap- 
 proved by the orphan's court, and the bond and security are approved by one 
 judge but objected to by another, this is not a compliance with the require- 
 ments of the charter. 
 
 Church— Charter.— Larver's Ap., 1874, 32 S. 183. A majority of a 
 church or corporation cannot act against the charter of the corporation. 
 
 Contribution Under Act 1849. — Brinham v. Wellersburg Coal Co., 1864, 
 11 Wr. 43. Stockholders of a corporation, organized under the act of 1849, 
 who have paid debts of the corporation, must enforce contribution under 
 that act, and not through equity. 
 
 Directors — Trustees. — First Nat. Bank v. Gregg, C. p. Allegheny, 1879, 
 27 Pitts. L. J. 26. Directors of a corporation are in a qualified sense trus- 
 tees for its creditors. 
 
 lb.— Adams v. Manning, C. P. Cumberland, 1881, 10 W. N. C. 448. Direc- 
 tors of a corporation are not strictly trustees for the stockholders. 
 
 lb.— Freeman v. Stine, C. P. 1881, 38 Leg. Int. 268 ; S. C. 15 Phila. 37. 
 Directors of a corporation occupy a fudiciary relation to it. 
 
 lb.— Duties of.^— Spering's Ap., 1872, 21 S. 11. Directors of a corporation 
 are not, as to the stockholders, trustees, but mandataries — persons who have 
 gratutiously undertakien to perform certain duties, and who are, therefore, 
 bound to apply ordinary skill and diligence, but no more. 
 
 Dissolution of Charitable.— Humane Fire Co.'s Ap., 1879, 7 N. 389. A 
 Fire company is a charitable organization and upon disbanding its assets 
 cannot be divided among the members, but are held for the trusts for which 
 they were donated. 
 
 Estoppel of State— Bonus.— Com' w'lth v. Pittsburg Iron Co., C. P. 
 Dauphin 1870, 2 Pears. 374. The State is not estopped from denying the 
 existence of a corporation by having received a bonus from it as a corpora- 
 tion. 
 
 Estoppel— Stockholder— Payment of Subscription.— Clark v. Monon- 
 gahela Nav. Co., 1840, 10 Wr. 364. One who has exercised the rights of a 
 stockholder, is estopped from denying his liability as .such on the ground 
 that he has not made the preliminary payment required by the charter. 
 9 — EQUITY. 
 
l;!0 COBPOEATION. 
 
 Injunction by Stockholder— Execution.— Gravenstine's Ap., 1865, r.i 
 Wr. 310. A stockholder cannot successfully invoke equity to enjoin tlie 
 issuing of an execution on a judgment given by a corporation with the con- 
 sent of all the stockholdeis and directors. 
 
 lb.— Minority— Estoppel.— Buckley v. Union Canal Co., N, P. 1858, 15 
 Leg. Int. 212 ; S. C. 3 Phila. 152. "Where the minority of the bondholders 
 of a corporation have stood by while the majority have entered into a scheme 
 of financial management, which promised best for all parties, the former are 
 not in a position to invoke the strong arm of equity to enjoin the latter from 
 carrying out their scheme. 
 
 Notice— President.— First Nat. Bank V. Peisert, 1882, 2 Penny. 277. 
 Knowledge obtained by a bank president in the course of the bank's busi- 
 ness as to the character of a deposit, affects the bank with notice. 
 
 lb.— Director.— Pittsburg Bank V. Whitehead, 1840, 10 W. 397. Knowl- 
 edge of a material fact imparted by a director of a corporation at a regular 
 meeting of the board, is notice to the corporation. 
 
 Parties— Foreign Trustee.— Lehigh Coal Co.'s Ap., 1879, 7 N. 499. A 
 corporation will not be ordered to pay dividends to a foreigner who claims 
 to be the successor in a trust, unless the cestui que trust is made a party and 
 the documents establishing the plaintiflf's right are filed. 
 
 Practice — ^Mismanagement— Master. — Lefiman v. Flanigan, D. C. 1864, 
 21 Leg. Int. 125 ; S. C. 5 Phila. 419. Where a board of directors is charged 
 with mismanagement, the liability of the different members will be deter- 
 mined by reference to a, master. 
 
 Proxy— Trust to Vote Stock.— Vanderbilt v. Bennett, 1887, 6 Pa. Co. 
 C. R. 193. An agreement among stockholders of a railroad company by 
 which the right to vote the stock of the corporation at all meetings is given 
 to the president and directors is void, as opposed to public policy and in con- 
 travertion of the act of February 19,1849. But if this were not so, the agree- 
 ment could operate only as a proxy to the trustees, and hence is revokable 
 at will. 
 
 Purchase by Bondholders of Corporate Property.— Penna. Transpor- 
 tation Go's Ap., 1882, 5 Out. 577. Bondholders and stockholders ma,j unite 
 to buy in the property of a corporation, and get a good title. 
 
 Purchase by Member— Eepresentations. — Densmore Oil Co. ». Dens- 
 more, 1870, 14 S. 43. One owning property may form an association with 
 others and sell it to them at any price he can get, if there be no fraudulent 
 misrepresentations ; but from the time people start to form a company they 
 are in confidential relation with each other, and no one can make a profit off 
 the rest in buying laud for the company. 
 
 Representations— Good Faith. — Short v. Stevenson, 1869. 13 S. 95. Cue 
 forming a company must act with good faith, and his representations to 
 those about to join him must be true. 
 
 Reorganization— Member Refusing Assent to.— Porter v. Kinsey, C. 
 P. 1880, 37 Leg. Int. 424. Where a member of an insolvent company refuses 
 to go into a scheme of reorganization, he cannot, after that scheme has been 
 carried out, demand that he be admitted. 
 
 Stockholders — Liability of — Amer v. Armstrong, 1888, 6 Pa. Co. C. K. 
 392. Where a provision in the charter of a bank makes the stockholders 
 liable to creditors in double the amount of stock held by them, such liability 
 can be enforced as soon as the bank ceases payment, and the statute of limi- 
 tation runs from that date. 
 
 Subrogation— Stockholders.— Butler Co. v. N. W. R. R. C. P., 1870, 18 
 Pitts. L. J. 201. A stockholder cannot be subrogated to the rights of cred- 
 itors against other stockholders to recoup his subscription. 
 
 Trust— Stockholders Dividing the Funds.— Stang's Ap., 1880, 10 W. 
 N. C. 409. Where stockholders divide the funds of a corporation among 
 
COKPOKATION. 131 
 
 themselves, they take it impressed with a trust in favor of all creditors, al- 
 though the demands of the latter are unliquidated. 
 
 Trustee.— Columbia Bridge Co. v. Kline, 1825, Bright. 320, S. C. 4 Clark 
 39 ; 6 Pitts. L. J. 615. A corporation may be a trustee. [See 2 Howard 
 129.] 
 
 lb.— Ex-Maleflcio— Representations.— Bailey's Ap., 1880, 15 N. 253. 
 "Where certain parties, by fraudulently representing that they owned all the 
 stock of a corporation, procured a decree dissolving it and awarding them 
 the assets, they are trustee ex-maleficio for any stockholder not included. 
 
 Unincorporated Society — ^Appointment of Trustee. — Massasoit Tribe 
 (in re.) C. P. 1883, 14 W. N. C. 92. The common pleas will appoint a trus- 
 tee for an unincorporated society without requiring security, upon a petition 
 by the society to that effect. 
 
 II. Jurisdiction. 
 
 Account — Oflcers of Corporations. — Bank of United States v. Biddle, 
 1844, 2 Pars. 31. The equitable jurisdiction in cases of account extends to 
 all cases of agency, e. g. consignees, receivers and of&cers of corporations. 
 
 lb. — Heindel v. Southern Penna. Association, C. P. York, 1884, 3 YorkL. 
 E. 204. A bill filed against a corporation and its directors, praying an ac- 
 count and discovery will be entertained. 
 
 Act June 16, 1836— Supreme Court.— Hays v. Pennsylvania E. E. Co., 
 1851, 5 H. 9. IJnder the act June 16, 1836, the chancery powers of the su- 
 preme court over corporations other than municipal, if not restricted to 
 Philadelphia, are not more extensive elsewhere than those of a court of com- 
 mon pleas. 
 
 Building Association — Dissolution. — Kelly o. Building Asso., C. P. 
 1875, 1 W. N. C. 218. Equity has no jurisdiction to decree dissolution of a 
 building association on the ground that its members have withdrawn. Such 
 proceeding can only be sustained by means of a quo warranto at the suit of 
 the Attorney General. 
 
 Collection of Money— Stockholders— Trust.-Foley v. Tovey, 1867, 4 
 S. 190. Money collected by an unincorporated society for a specific purpose 
 and afterwards paid into the hands of a mere stockholder is still affected 
 with the original trust, and equity has jurisdiction on several grounds, the 
 club being an unincorporated society, the money being trust money and the 
 defendant being a mere staokholder. 
 
 Disputed Election.— Paynter v. Clegg,1873, 2 Post. 4; S.C. 30 Leg. Int. 432; 
 9 Phila. 480. Equity will not assume control of a corporation where there 
 is a dispute as to an election, at least until the term begins and confusion 
 ensues. 
 
 Equity Powers General. — Sarver's Ap., 1874, 32 S. 183. Under act June 
 16, 1836, the equity powers of our courts over corporations other than muni- 
 cipal, are general. 
 
 Injunction Against — New Constitution. — McGeorge v. Hancock steel 
 Co. C. p. Montour, 1875, 32 Leg. Int. 372 ; S. C. 11 Phila. 602. The new 
 constitution does not afiect the jurisdiction of the common pleas in matters 
 of injunction against corporations. 
 
 lb. — Corporation and Individual. — Crawford Co. v. Pittsburg E. E. Co., 
 1858, 8 C. 141. The equity jurisdiction of the supreme court over corpora- 
 tions does not warrant a bill against a corporation and an individual unless 
 such joinder be necessary to do justice in the immediate transaction. 
 
 lb. — Montgomery County. — Cassel v. Jones, 1844, 6 W. & S. 552. Under 
 the act June 16, 1836, the supreme court has not jurisdiction to control a 
 corporation in Montgomery county by injunction. 
 
132 CORPORATION. 
 
 lb. — Municipal Corporations — Supreme Court's Option.— Wheeler v. 
 
 Philadelphia, 1875, 27 S. 338. Under the constitution of 1873, the supreme 
 court has original j urisdiction in equity to restrain municipal ( as well as other) 
 corporations, from doing acts contrary to law and prejudicial to the interest 
 of the community ; but it is optional with the supreme court whether it will 
 entertain the bill originally. 
 
 Payment of Money — Account and Discovery. — Winter v. Bittinger, 
 C. P. York, 1883, 3 York L. R. 203. Equity has jurisdiction of a>bill against 
 a corporation for the payment of money, where an account and discovery are 
 essential. 
 
 Receiver — Remedy at Law. — Gormerly «. Port Richmond B. & L. Asso., 
 C. P. 1876, 3 W. N. C. 11. Equity will not appoint a receiver for an insolvent 
 corporation, the officers being irresponsible ; there is adequate remedy at 
 law. 
 
 Supreme Court. — Commonwealth V. Bauk of Penna., 1842, 3 W. & S. 
 184. The equity jurisdiction of the supreme court over corporations is gen- 
 eral and unlimited, and to be exercised in all the ways peculiar to chan- 
 cery. 
 
 lb. — Baptist Congregation v. Scannel, 1854, 3 Gr. 48. The equity jurisdic- 
 tion of the supreme court over private corporations is general, and does not 
 depend on the question of irreparable injury. 
 
 lb.— Mortgages— Remedy.— McElrath v. Pittsburg R. R., 1867, 5 S. 189. 
 Act April 1 1, 1862, sec. 1, giving the supreme court chancery jurisdiction over 
 corporation mortgages, applies to a mortgage made before its passage, ia 
 which the remedy provided for is by its terms permissive, not exclusive. 
 
 lb.— lb.— Fargo V. Oil Creek R. R. Co., 1875, 32 S. 266. The constitution 
 of 1874 takes from the supreme court jurisdiction to decree a sale of mort- 
 gaged property of a corporation, and the fact that there is also a prayer for 
 an injunction, which relief is but incidental to the other, does not give the 
 supreme court jurisdiction. 
 
 lb.— Municipal Corporation.— Wheeler v. Phila., 1875, 1 W. N. C. 178. 
 The original jurisdiction of the supreme court extends to municipal corpora- 
 tions. 
 
 lb. — Practice — Original. — Buck Mt. Coal Co. i. Lehigh Coal Co., 187S, 
 2 W. N. C. 24 ; 8 Leg. Gaz. 15. The supreme court will not assume original 
 jurisdiction of a bill against a corporation, unless there be presented an affi- 
 davit setting forth the reasons why the bill was not filed in the proper 
 county court. 
 
 lb.— State Constitution.— Hottensteiu v. Clement, 1862, 5 Wr. 502. Out- 
 side of Philadelphia county the only original equity jurisdiction of the su- 
 preme court is over private corporations. 
 
 Tenants in Common— Unincorporated Society.— Kisor's Ap., 1869, 12 
 S. 428. Under a deed of trust, two congregations were to have the use of a 
 lot together, to be divided by referees whenever either party should deem it 
 conducive to its interests. One congregation took exclusive possession. Reld 
 that equity had jurisdiction to right matters, as the parties were members 
 of an unincorporated society and not merely tenants in common. 
 
 III. Plaintiff*. 
 
 Bonds— Purchase of— Application of Purchase Money.— Phila. & Sun- 
 bury R. R. V. Lewis, 1859, 9 C. 33. The purchaser of bonds from a duly 
 authorized officer of a corporation is not bound to see the application of the 
 purchase money. 
 
 Defence — Preliminary Injunction.— Grossman v. Penrose Bridge Co., 
 1856, 2 C. 69. The fact that a preliminary injunction has been granted against 
 
COKPORATION. • 133 
 
 a proposed improvement, is no defence to a suit against one for his subscrip- 
 tion to that object. 
 
 Estoppel— Subscriber.— McCully v. Pittsburg R. R., 1858, 8 C. 25. 
 Where a subscriber to the corporate stock of a new corporation has consented 
 to the refunding of some of the subscriptions and a delay in operations, he 
 is estopped from setting up these matters as a defence to the payment of his 
 subscription. 
 
 lb. — Bavington v. Pittsburg R. R. 1859, 10 C. 360. A certificate presented 
 to the governor and signed by a subscriber to a railroad, setting forth inter 
 alia that he had subscribed for twenty shares, estops him from subsequently 
 setting up that the subscription was conditional. 
 
 Injunction— Execution Creditors— Assigned Property.— Folmer v. 
 Shenandoah Valley Bank, C. P. Schuylkill, 1881, 2 Sch. L. R. 37. Execu- 
 tion creditors of an insolvent corporation, which has made an assignment, 
 will not be restrained from selling the property of the latter on the ground 
 that it may be sacrificed. 
 
 Parties — Trustees — ^Foreign Corporation. — Stewart v. United States 
 Ins. Co., 1839, 9 W. 126. Trustees of a foreign corporation appointed by a 
 court of equity, may maintain an action in their own name on negotiable 
 notes which came into their hands as assets of the corporation. 
 
 Purchase by Members— Confidential Relation.— McElhenny's Ap., 
 1869, lis. 188. A person may sell land to a company of which he is a mem- 
 ber without being obliged to account to the other members for the profit he 
 makes on the sale, even though he misrepresent to them the amount which 
 the land cost him. But when promoters of a company buy to form a com- 
 pany, and their purchases are taken by the company, they are in a position 
 of confidence, and equity will see to it that they do not make a profit off the 
 Company. 
 
 Res Adjudicata — Decree. — Third Reformed Dutch Church's Ap., 1879, 
 7 N. 503. A corporation, which has accepted the benefits of a decree ob- 
 tained by some of its members in a former suit for the corporation, though 
 that suit was not carried on in the name of the corporation, cannot institute 
 a new suit to determine matters which arose in the former suit. The former 
 decree binds the corporation as such. 
 
 Sale — Private Creditor — Injunction. — Oakland K. R. v. Keenan, 1867, 
 6 S. 198. Where a railroad company is interrupted in the exercise of its cor- 
 porate franchises by the levy and sale of a private creditor, he will be re- 
 strained, and the court will, if necessary, deny him the remedial provisions 
 of the act June 16, 1836. 
 
 Stockholder — ^Deposit — Set-off. — Macungie Savings Bank v. Bastian, 
 1881, 10 W. N. C. 71. A depositor in an insolvent bank, who is also a stock- 
 holder, cannot set-off against a call on unpaid stock the amount of his de- 
 posit. 
 
 IV. Defendant. 
 
 Account and Discovery. — Heindel v. Southern Penna. Association C. P. 
 York. 1884, 3 York L. R. 204. A bill filed against a corporation and its di- 
 rectors, praying an account and discovery will be entertained. 
 
 Actions — Parties — Sale of Franchises. — Wellsborough Road v. Griflfci, 
 1868, 7 S. 417. An act of Assembly provided that a sale under a mortgage 
 of the franchises and property of a road company, should pass all the rights 
 and property to the purchaser as fully as if the purchaser were the party 
 mentioned in the charter. An accident occurred after the sale took place. 
 Meld that an action against the company was not well brought, but that it 
 mnst be agalinst the purchaser. 
 
 Amendment — Names of Parties.— Aultman's Ap., 1881, 2 Out. 505. 
 
134 • COEPOEATION. 
 
 Where an original bill against the stockholders of a corporation is by one 
 who avers that he, together with others whom he represents, is the sole 
 cx'editor, an amended bill setting forth the names of all those creditors, and 
 averring that they are stockholders of the corporation who have paid its 
 debts, is rightly allowed. 
 
 Assessments — Creditors. — Germantown R. E. v. Fitler, 1869, 10 S. 124. 
 Equity will compel directors to levy an assessment, or call for a subscription, 
 when its aid is invoked by creditors. 
 
 Charter — Special Eemedy in. — Stump's Ap., 1881, 13 Lan. Bar. 93. A 
 bill in equity will not lie against a corporation where the act of incorpora- 
 tion provides a special remedy, and this, although the corporation is insol- 
 vent. 
 
 Creditor's Bill— Parties.— Sheriff r. Oil Co., C. P. 1868, 25 Leg. Int. 4&, 
 S. C. 7 Phila. 4, 1 Brews. 489. Under act July 18, 1863, the bill must be 
 filed by the creditors in behalf of themselves and others, and the corporation 
 should not be a party defendant. 
 
 lb.— Against Stockholder's of Insolvent.— Bunn's Ap., 1884, 9 Out. 
 49. A bill in equity will lie against the stockholders of an insolvent corp- 
 oration by the creditors thereof, praying an account, a receiver, and that the 
 stockholders make good the debts. 
 
 lb.— lb.— Bicklyi). Paul, C. P. 1885, 2 W. N. C. 301, S. 0. 33 Leg. Int. 22, 
 11 Phila. 256. A bill against the stockholders of an insolvent corporation 
 by a creditor, should make the corporation a party defendant. 
 
 lb. — Directors. — Warner V. Hopkins, 1 Amer. 330. Creditors of a corpora- 
 tion have the right to proceed against the directors of the same for misman- 
 agement of its affairs. 
 
 lb. — Foreign Corporation. — Bank of Virginia v. Adams, 1850, 1 Pars. 
 534. A creditor of a corporation may maintain a bill against the subscribers 
 to its stock (not paid in full) on debts contracted by the company when the 
 directors refuse to call in the unpaid assessments. But not if the corpora- 
 lion is a foreign one. 
 
 Decree — ^Parties. — Lawrence Co. v. Northwestern E. E. Co., 1858, 8 C. 
 144. The Supreme Court, sitting in equity over a corporation, can make no 
 decree against an individual unnecessarily joined with the corporation as a 
 defendant. 
 
 Directors — Bill Against by Partners.— Archer v. Eose, 1869, 3 Brews. 
 264. A firm may maintain a bill against the directors of a corporation, al- 
 though a member of the firm is a director. 
 
 lb.— Selling for Themselves.— Ashhurst's Ap., 1869, 10 S. 290. Di- 
 rectors of a corporation in a case demanding prompt action, sold the prop- 
 erty to themselves at a fair price. Such sale will not be disturbed by equity 
 either when authorized by the stockholders, or where the sale has been ac- 
 quiesced in by them. 
 
 Discovery — Bill of. — Large v. Bristol Transportation Co., 1841, 2 Ash. 
 394. A bill for discovery in aid of execution will lie against a corporation, 
 and it is sufiicient that he is prevented from realizing the fruits of his exe- 
 cution by the interposition of one of the defendants. Such a claim prevents 
 the plaintiff from execution of his judgment within the meaning of the act. 
 
 lb. — Wesley Church v. Moore, 1849, 10 Barr, 273. Discovery can be had 
 against a corporation. 
 
 lb.— Bevans v. The Turnpike, 1849, 10 Barr, 174. Act June 16, 1836, 
 (discovery), includes cases against a corporation, and concering choses in ac- 
 tion. But in the former case the proper practice is to have the sequestrator 
 bring the bill against the officers of the corporatiop. 
 
 lb.— Block i>. Universal Ins. Co., C. P. 1883, 40 Leg. Int. 160. The act 
 allowing a private party to be called as a witness does not interfere with the 
 right of a paity to have a bill of diocovery, especially against a corporation. 
 
OOEPOEATION. 135 
 
 Election Contest.— Sommers v. Neilson, C. p. 1883, 40 Leg. Int. 270. 
 The power that equity exercises over corporations in contests as to elections, 
 is to keep them in obedience to the law of their own organization. 
 
 Eminent Domain— Assignment of Franchises.— Stewart's Ap., 1867, 
 6 S. 413. A corporation not being able to make use of its franchises, as- 
 signed its rights to an individual who constructed the road. Seld that as 
 the corporation had no right to delegate its franchises, the act of the indi- 
 vidual was a nuisance, which would be restrained at the suit of the parties 
 through whose land the road passed. The corporation need not be made a 
 party to the bill. 
 
 Execution— Nulla Bona— Creditor's Remedy.- Bacon v. Morris, 1873, 
 1 Fost. 382, S. C. 30 Leg. Int. 392, 10 Phila. 93. A return of nulla bona to an 
 execution against a corporation is not sufficient to allow the creditor to pro- 
 ceed immediately against the stockholders individually. 
 
 lb.— Wesley Church v. Moore, 1849, 10 Barr, 273. Act June 16, 1836, 
 providing for execution against corporations, applies to decrees in equity as 
 well as to judgments at law. 
 
 Fraud— Transfer of Stock— Negligence.— Penna. E. E. Co.'s Ap. 1878, 
 6 N. 80, rev'g 2 W. N. C. 363. A corporation is a trustee of its stockholders 
 and is bound to proper vigilance and care that they may not be injured by 
 unauthorized transfers of their stock. A power of attorney thirteen years 
 old should be inquired into, but if the negligence of the owner gives the op- 
 portunity of making a fraudulent transfer, the corporation will not be 
 charged with the loss, though the facts should have aroused its officers to 
 inquiry. 
 
 lb.— Liability of Directors.— Leffman v. Flanigan, D. C. 1863, 20 Leg. 
 Int. 148, S. C. 5 Phila. 155. A bill in equity is the proper remedy for de- 
 frauded depositors of a savings fund, and the directors and managers thereof 
 (who are liable as trustees for the proper management of the funds) will be 
 liable, although ignorant of the fact that the company was fraudulently 
 organized. 
 
 Franchises— Forfeit of.— Lejee v. Continental E. E., C. P. 1875, 32 Leg. 
 Int. 386, S. C. 10 Phila. 362. Corporate franchises cannot be declared for- 
 feited by a bill in equity. 
 
 Injunction — Collection of Debts — Fraud. — Eowlands v. Workingmen's 
 Association, C. P. Lackawanna, 1879, 1 Lack. L. Eec. 456. An injunction 
 will not be granted to restrain a building association from collecting debts 
 from its members on the ground that its former officers acted fraudulently, 
 there being no charge against the officers in charge at the time. 
 
 lb. — Creditors Without Liens. — Erie E. E. Co. v. Wilkesbarre Coal 
 Co., N. P. 1812, 29 Leg. Int. 116, S. C. 9 Phila. 262. One claiming to be a 
 creditor of a corporation, but holding no lien, is not entitled to an injunction 
 restraining the corporation from issuing bonds or selling personal property. 
 
 lb.— Directors— Stockholders as Complainants.— Langolf v. Leiber- 
 litch, 1851, 2 Pars. 64. Equity will prevent the trustees or directors of a cor- 
 poration from disposing of the corporate property tor other than corporate 
 purposes. And for this purpose a stockholder may be a party plaintiff against 
 the corporation, and may, where it is impossible or inconvenient to join all 
 the parties aggrieved, sue on behalf of himself and others in the same right. 
 
 lb.— Division of Property— Cfiarity.—Mayer v. Society, N". P. 1868, 2 
 Brews. 385, S. C. 25 Leg. Int. 37; 6 Phila. 502. An injunction will be granted 
 restraining the members of a corporation from dividing its property where a 
 provision in its constitution provides that upon the death of the last mem- 
 ber the property shall go to a certain charity. 
 
 lb. — Expelling Member. — Leech v. Harris, 1868, 2 Brews. 571. An in- 
 junction will be granted restraining a corporation from irregularly expelling 
 a member. 
 
136 CORPORATION. 
 
 lb. — Judgment — Set-off. — Gutteudag v. Lehigh "Valley Iron Co., C. P. 
 Lehigh, 1878, « Luz. L. Reg. 212, S. C. 36 Leg. Int. 323, 14 Phila. 639. Equity 
 will restrain an insolvent corporation from proceeding on a judgment recov- 
 ered before a justice, where it appears that the plaintiff has a greater counter- 
 claim established before a justice, though appealed from. 
 
 lb.— Legislative Authority. — Faust v. Passenger R. R., N. P. 1858, 15 
 Leg. Int. 221, S. C. 3 Phila. 164. Equity will not enjoin » corporation 
 which is acting within the scope of its legislative authority, though without 
 that authority the act complained of would be a n uisance. 
 
 lb. — Municipal Corporation. — Schall v. Norristown, C. P. Montgomery, 
 1875, 6 Leg. Gaz. 157. A municipal corporation, acting in pursuance of a 
 constitutional Jaw, cannot be restrained. 
 
 lb.— lb.— Bevereaux v. Crawford, C. P. Venango, 1879, 27 Pitts. L. J. 22. 
 Equity will restrain a municipal corporation from invading the franchises of 
 a corporation not municipal. 
 
 lb.— Officers.— Tide Water Co. v. Latterfield, 1883, 12 W. N. C. 4.57. 
 Equity will enjoin those who are not prima facie officers from acting as man- 
 agers of a corporation. 
 
 lb. — Organization — Fraud — Mitcheson v. Harlan, C. P. 1859, 16 Leg. 
 Int. 148, S. C. 3 Phila. 385. A court of equity cannot interfere to prevent 
 the organization of a company after letters patent have issued, although 
 grave fraud on the part of the commissioners in the sale of the stock is fully 
 established. 
 
 lb. — Preliminary by Stockholders. — Mott v. Pennsylvania R. R., 1856, 
 6 C. 9. A stockholder cannot have a preliminary injunction to prevent the 
 corporation from doing an act likely to harm it when he is offered indemni- 
 fication from loss. His rights are to be determined on flual hearing. 
 
 lb.— Heceiver— Appointment of— Trustees. — Bloom «. U. S. Banking 
 Co., C. P. 1^7, 4 W. N. C. 138. An insolvent banking company will be 
 restrained from appointing trustees for the purpose of winding up its affairs, 
 and the court will appoint a receiver. 
 
 lb.— Removing Assets.— Matthews v. Trustees, C. P. 1869, 26 Leg. Int. 
 140, S. C. 7 Phila. 270. A corporation may be restrained from carrying its 
 assets out of the state from which it derives its existence. 
 
 lb.— Stockholder's Auxiliary BiU.— Kenton v. Union R. R., 1867, 4 S. 
 401. A stockholder's bill for an injunction will not be considered when not 
 filed" bona fide to restrain the directors, but only in aid of a bill by another 
 to stop a nuisance. 
 
 lb. — Stockholder. — Manderson v. Commercial Bank, 1857, 4 C. 379. A 
 stockholder is entitled to an injunction against the corporation to prevent 
 acts contrary to its charter. 
 
 lb.— Tearing up Road Bound by a Mortgage.— Watt v. Railroad, 1867, 
 1 Brews. 418, S. C. 24 Leg. Int. 269, 6 Phila. 386. A railroad company will be 
 enjoined from tearing up any part of a road covered by a mortgage, thougli 
 it intends appropriating the proceeds from the sale of the materials to the 
 payment of the mortgage. 
 
 lb.— When Granted.— Mcll vain v. Christ Church, C. P. Berks, 1871, 2 
 Woodw. D. C. 293. An injunction may be granted where the facts are dis- 
 puted, if it appears that without the injunction the property of a corporation 
 made up of a large number of scattered individuals, may be turned over to 
 those not its proper custodians. 
 
 Interpleader— Injunction— Mortgage. — Echfelt v. Starr, N. P. 1864, 21 
 Leg. Int. 389, S. C. 5 Phila. 497. Equity will not, at the suit of mortgagees, 
 enjoin judgment creditors from levying on the personal property of a C( m - 
 poration, but allow the interpleader law to be applied. 
 
 Judgment- Sequestration.— Suydam v. N. W. Ins. Co., 1865, 1 S. 3'J4. 
 
CORPOKATION. 137 
 
 Act June 16, 1836 (executions), provides a special remedy in cases of judg- 
 ment against corporations by appointing a sequestrator. This ousts the 
 j urisdiction of chancery in the matter. 
 
 Liability for Transfer — Trustee. — Stockton v. Lehigh Nav. Co., C. P. 
 1880, 9 W. N. C. 110, 37 Leg. Int. 290, 14 Phila. 77. Act May 23, 1874. (P. L. 
 222 (has superseded the rule laid dowu in Bolelin's Est., 25 S. 304, and 
 Bayard v. Bank, 2 S. 235, as to the liability of a corporation in transferring 
 stock which is in the name of a trustee. 
 
 Mortgagee— Bill Pending Lien Holder's Bill.— McGeorge v. Han- 
 cock Steel Co., C. P. Montour, 1875, 32 Leg. Int. 372, S. C. 11 Phila. 602. 
 Our courts will entertain a bill by a mortgagee for a receiver and to prevent 
 ■waste, although there be pending before the district court of the United 
 States a bill to determine the rights of respective lien holders against the 
 mortgagor (a corporation). 
 
 Multifariousness — Series of Transactions.— Adams v. Manning, C. P. 
 Cumberland, 1881, 10 W. N. C. 448. Where several causes of action are 
 joined in one bill, the latter is not multifarious if they arose from a series 
 of transactions forming one course of dealing ; for example, the official con- 
 duct of a board of directors while in office. 
 
 Parties — ^Attorney General.— Philadelphia v. Bridge Co., N. P. 1868, 
 25 Leg. Int. 100, S. C. 6 Phila. 523. None but the Attorney General can call 
 a corporation to account for the performr.nce of its duties. 
 
 lb. — Directors and OfS.cers. — Young o. Allegheny Oil Co., C. p. Veu- 
 ango, 1873, 30 Leg. Int. 13, S. C. 10 Phila. 525. Under act July 18, 1863, a 
 bill in equity, filed to recover from the officers and directors the debts due 
 by the company, should not join the company or its secretary as parties. 
 
 lb. — Director Complainant — Fraud. — Baird v. Midvale Steel Works, 
 C. p. 1877, 34 Leg. Int. 12, S. C. 12 Phila. 255. A bill filed by stockholders 
 against directors and the corporation alleging fraud, is demurable if one of 
 the complainants was a director and participated in the acts complained of. 
 
 lb.— Fraud— Offices.— Hughes v. McMurray, D. C. 1867, 24 Leg. Int. 
 44, S. C. 6 Phila. 200. Where a bill is brought against parties who have 
 formed a company charging fraud and misapplication of funds, the officers 
 of the corporation should be made parties. 
 
 lb. — Stockholders Against Corporation Holding Stock.— Shaer i. 
 Penna. Canal Co., C. P. 1884, 41 Leg. Int. 165. Where a majority of the 
 stock of one corporation is held by another, under a contract, the holders of 
 a minority of the stock of the first, can maintain a bill against the second 
 without having first called upon their own corporation to have the contract 
 enforced. 
 
 ■ lb. — Separate Debts. — Young v. Allegheny Oil Co., C. P. Venango, 1873, 
 30 Leg. Int. 13, S. C. 10 Phila. 525. Under act July 18, 1863, a bill is not 
 multifarious because two creditors with separate debts against the company 
 are joined as plaintifl'. 
 
 Performance of Duties — Bill to Compel. — Buck Mt. Coal Co. v. Lehigh 
 Coal Co., 1865, 14 Wr. 91. A bill to enforce the performance of the public 
 duties of a corporation, cannot be maintained by an individual ; it seems 
 the Attorney General should present the bill on the part of the Common- 
 wealth. 
 
 Purchase — Pool — Trust. — Penna. Transportation Co. v. Pittsburgh iJ. K., 
 C. P. 1881, 11 W. N. C. 35. A purchase of a corporation's property and 
 franchises, by a pool of bondholders, stockholders and creditors, is a fair 
 transaction, and no constructive trust is raised in favor of those outside the 
 jwol. 
 
 lb. — Representations. — Simons i). Vulcan Oil and Mining Co., 1869, 11 
 S. 202. Where parties profess to have acted for a company, and their pur- 
 chases have been accepted on representations that they were made for it, 
 
138 COEPOEATION. 
 
 they cannot, without the fullest disclosures on their part, charge the com- 
 pany with more than the actual price. 
 
 Receiver — Appointment of — Gravenstine's Ap., 1865, 13 Wr. 310. A 
 receiver of a corporation will not he appointed where the corporation is not 
 a party to the bill, or in court under notice for a preliminary injunction. 
 
 Set-off— Treasurer.— Russell v. First Presbyterian Church, 1870, 15 S. 9. 
 A treasurer of a corporation, when sued for money in his hands, cannot set oS 
 his own debt. 
 
 Sheriff's Sale.— Hogg's Ap., 1878, 7 N. 195. A sheriff's sale of the 
 property and franchises of a corporation does not pass the ckoses in action 
 of the corporation. 
 
 Stockholder— Bill by.— Morris v. Stevens, N. P. 1868, 25 Leg. Int. 4, S. 
 C. 6 Phila. 488. A stockholder's bill against a foreign corporation caimot 
 be maintained. 
 
 lb.— O'Eourke v. West Penn Building Asso., C. P. 1879, 8 W. N. C. 176. 
 A building association is no exception to the rule that a shareholder of a 
 corporation cannot sue the company at law, but must file a bill in equity. 
 
 lb.— Against Directors.- Watt's Ap., 1875, 28 S. 370. A stockholder 
 may have a bill against directors, who have fraudulently managed the affairs 
 of the corporation, but it must be brought within six years. 
 
 lb. — Consolidation of Companies. — Phila. & Erie E. E. v. Catawissa 
 E. R. 1866, 3 S. 20. A stockholder of one of several companies, which have 
 consolidated, who has not converted his stock into the consolidated stock, 
 cannot maintain a stockholder's bill. 
 
 v. 9Iortg:ages. 
 
 Action on by Bank— Act 1844.— Fowler r. Scully, 1872, 22 S. 456. 
 Under the National Currency Act June 3,1864, no action can be maintained 
 on a mortgage given to a bank to secure a loan present or future. 
 
 Assignment to Foreign Corporation.— American Slate Co. v. Phillips- 
 burg Bank, 1880, 8 W. N. C. 430. An assignment of a bond and mortgage 
 to a foreign corporation is valid. 
 
 Certificates — Lien Creditors — ^Mistake. — Insurance Co. r. Union Canal 
 Co., 1843, Bright. 48, S. C. 2 Pa. L. J. 65. A corporation having power to 
 borrow money upon a mortgage of its property and franchises, borrowed the 
 money and gave certificates of indebtedness with a marginal note setting 
 forth that the property of the corporation was pledged for this loan. After 
 fifteen years, other creditors having intervened, the certificate-holders prayed 
 equity to decree that they were first-lien creditors. Held, that they were 
 not mortgagees ; that there was no mistake against which equity could re- 
 lieve, and that after fifteen years relief would not be granted against those 
 whose rights had accrued in the meantime. 
 
 Collateral Security— Payment.— Eice's Ap., 1875, 29 S. 168. Bonds of 
 a corporation pledged by an agent for a loan to him for the company, are 
 not entitled to be paid in full when the mortgage securing them is fore- 
 closed, but only to the extent of the debt for which they were collateral. 
 
 Increasing Indebtedness— Bank.— Ahl v. Rhodes, 1877, 3 N. 319. The 
 execution of a mortgage by a bank to secure a creditor, is not an act increas- 
 ing its indebtedness. 
 
 Jurisdiction — Foreclosure— Injunction. — Fargo v. Oil Creek E. E.,1875, 
 1 W. N. C. 611. A bill filed against a corporation asking for a foreclosure 
 of a mortgage and an injunction to prevent a sale of the property, will not 
 be entertained by the Supreme Court, the prayer for the injunction being 
 but incidental to the relief prayed for. 
 
COKPOEATION. 139 
 
 lb.— Swope V. Gettysburg R. R., 1870, 2 Lan. Bar, No. 16, S. C. 2 Leg. 
 Gaz. 226. Act April 11, 1862, P. L. 477, gives the Supreme Court equity 
 jurisdiction over all corporation mortgages. 
 
 Notice— Bank.— Wilson v. McCullough. 1854, 11 H. 440. To aflfect a 
 bank with actual notice of an unrecorded mortgage, such notice must have 
 been brought home to the president or directors, or some officer in charge of 
 loaning upon mortgage. Loof e statements made to the cashier do not amount 
 to notice. 
 
 Power to Sell and Mortgage.- Watts' Ap., 1875, 28 S. .370. A power 
 to sell and lease given to a corporation includes a power to mortgage. 
 
 lb.— To Borrow Money— Preferred Stock.— West Chester R. R. v. 
 Jackson, 1875, 27 S. 321. Where a corporation has power to borrow money 
 on a bond and mortgage, it may issue preferred stock, as that is only a form 
 of mortgage. 
 
 Preferred Stock — ^Dividends. — Com'w'lth v. Reno Co., C. P. Dauphin, 
 1875, 2 Pears. 397. Preferred stock does not so far resemble a mortgage 
 that making dividends upon it will relieve the common stock from taxation 
 as would the payment of interest on the bonds and mortgage. 
 
 Property Bound by.— Robinson v. Atlantic & G. W. R'y Co., 1870, 16 
 S. 160. A mortgage by a corporation of all its property and franchises, in- 
 cludes land owned by it, even if not necessary for the enjoyment of its fran- 
 chises. 
 
 lb.— Sheaff's Ap.,'l867, 5 S. 403. A mortgage of "all the tolls, profits 
 and emoluments " of a corporation includes rents payable to it. 
 
 lb. — Easton's Ap., 1864, 11 Wr. 255. A mortgage on all its property 
 given by a corporation includes lands taken by it but from which the dam- 
 ages have not been assessed ; the mortgage is, however, subject to the pay- 
 mant of the damages. 
 
 lb. — Shamokin R. R. v. Livermore, 1864, 11 Wr. 465. A mortgage given 
 by a railroad on all its "corporate privileges and appurtenances, " does not 
 include town lots owned by it, not indespensible to the exercise of its fran- 
 chise. 
 
 lb. — Western Penna. R. R. v. Johnson, 1868, 9 S. 290. A mortgage given 
 by a railroad on all its property, franchises, &c., does not bind land after- 
 wards taken. 
 
 lb. — Steiner's Ap., 1856, 3 C. 313. In general a mortgage given by a cor- 
 poration does not bind either the tolls or the real estate necessary to the en- 
 joyment of the franchise, but the legislature can direct that a mortgage be 
 given to cover such property, and may also direct the relation that the lien 
 of the mortgage shall ha^'C to other liabilities. 
 
 lb. — St. John's Church v. Steinmetz, 1852, 6 H. 273. A mortgage by a 
 corporation under its seal is a mortgage ot whatever interest it has, and can- 
 not be attacked by the corporation on the ground that it was ultra vires. 
 
 Purchase of Franchise.— Walker v. Whelen, N. P. 1861, 18 Leg. Int. 
 236, S. C. 4 Phila. 389. Where certain of the mortgage bondholders of an 
 insolvent corporation sign the power to one to purchase the franchise, &c., 
 at the judicial sale " for the benefit of the mortgage bondholders," to form 
 a new corporation, all such are entitled to share therein. 
 
 Sale — ^Equity of Redemption. — Commonwealth v. S. & D. River R. Co., 
 1888, 7 Crum. 306. A trustee in a mortgage of the franchises and property 
 of a corporation, executed to secure its bonds and the interest thereon, is the 
 repositorj' of the legal title to the corporate property for all bondholders 
 alike, and in case of default, if the trustee refuse to act, any bondholder 
 may proceed by bill in behalf of himself and others. A judicial sale under 
 act of April 7, 1870, in such case will convey no title to the franchises and 
 property secured by the mortgage, since all the bondholders are equally en- 
 titled to their pro rata share in the distribution ; the sheriff's sale upon a 
 
14U OORPOBATION — COSTS. 
 
 fieri facias passes only such title as the corporation had at the time of the 
 sale. 
 
 Sale to Corporation — Judgment. — Rice's Ap., 1875, 29 S. 168. A pro- 
 moter of a corporation, who was also a large stockholder, sold land to the 
 company and was to receive therefor bonds secured by a second mortgage. 
 Before the mortgage was given judgments were obtained against the com- 
 pany; he therefore refused the bonds and they were disposed of to others. 
 Seld (1), He must show that the sale was made in good taith. (2), He had 
 no equitable claim to the bonds, or equitable lien by virtue of the mortgage. 
 
 Sale of— Jurisdiction— Supreme Court.— MoCurdy's Ap.. 1870, 15 S. 
 290. Act April 11, 1862, (p. 1. 477) authorizes the Supreme Court sitting ia 
 equity to decree a sale under a corporation mortgage. 
 
 Sale at Instance of Mortgagee. — Ashhurst v. Montour Iron Co., 1860, 
 11 C. 30. There is no equity power in this State to decree a sale of mort- 
 gaged premises at the instance of the mortgagee, even though the nominal 
 mortgagee be a trustee for the holders of the bonds secured by the mort- 
 gagee. 
 
 Scire Facias Sur. — Leasure v. Union Mutual Life Ins. Co., 1879, 10 N. 
 491. A foreign corporation may issue a scire facias sur mortgage in the courts^ 
 of this Commonwealth. Quaere, whether it could enforce a mortgage by an 
 ejectment? 
 
 lb. — Expired Charter. — Cooper v Oriental Savings Assoc. 1882, 4 Out. 
 402. Although, in general, a corporation whose charter has expired, cannot 
 issue a scire facias sur mortgage, yet by a special act Philadelphia building 
 and loan associations have the power in order to wind up their affairs, and 
 it makes no difference that the land mortgaged lies without Philadelphia. 
 
 Ultra Vires— Confirmation.— Gordon v. Preston, 1833. 1 W. 385. A 
 mortgage given ultra vires of the directors of a corporation will be considered 
 ratified by the stockholders if not disaffirmed by them, and, in any event, 
 cannot be questioned by a third party; such as a judgment creditor of the 
 corporation. 
 
 Valid Exercise of Power. — McCurdy 's Ap. , 1870, 15 S. 290. A mortgage 
 executed by the directors of a corporation to a trustee, is a valid exercise of 
 a power given a corporation to make a mortgage. 
 
 COSTS. 
 
 Amended Bill. — Salade v. Schooi Directors, 1870, 2 Pears. 51. Where a 
 defendant allows a decree to be enteied against him pro eonfesso on an 
 amended bill, the court will look into the original bill and the master's re- 
 port thereon in order to make the decree, and also the defendent will be 
 charged all costs arising since the amendment. 
 
 lb.— Rose V. Rose, 1852, 1 Phila. 365, S. C. 9 Leg. Int. 102. It is not 
 necessary in our practice to pay costs and furnish an of&ce copy to the op- 
 posite attorney before filing an amendment. 
 
 Amending Decree. — Dundas' Estate, 1888, 45 Leg. Int. 226. A petition 
 to amend a decree, already once amended, the said petition, after a yetir's 
 delay, in fact seeking to reopen the entire contest will not be granted, ai:d 
 the petitioner must pay the costs. 
 
 Answers to Bill of Discovery.— Tenor v. Hntton, 1850, 1 Phila. , s. C. 
 7 Leg. Int. 50. The court struck from the taxation of costs an allowance to 
 defendant for his answer to a bill for discovery. 
 
 Costs — Apportionment of — Baum r. Wicklem, C. P. Berks, 1866, 2 
 Woodw. Dec. 242. Where a bill in equity has been only partially success- 
 ful, the court will apportion the costs. 
 
COSTS. 141 
 
 Attachment for.— Pierce's Ap., 1883, 7 Out. 27. Since the act abolish- 
 ing impri.sonment for debt, a defendant in equity cannot he attached for 
 costs (including master's tee), unless the suit established a breach of trust. 
 
 lb.— Church's Ap., 1883, 7 Out. 263. A defendant may be attached for 
 costs on a decree entered against him in a suit for breach of trust, although 
 the trust arose ei' contractu. 
 
 Attorney's Fee.— McKelvy 's Ap., 1885, 42 Leg. Int. 181. Where money 
 has been collected by a receiver and is in court for distribution, the chan- 
 cellor can fix an attorney's fee and an issue is not necessary. 
 
 lb.— lb.— Lennig v. Lennig, C. P. 1880, 11 W. N. C. 18. Complainant's 
 counsel fee should not be allowed out of ijartnership assets in a bill for the 
 ■winding up of a firm. 
 
 Attorney's Negligerlbe.— Tathem v. Lewis, 1870, 15 S. 65. Defendant 
 purchased land through an attorney, who had negotiated a lease of the same 
 tract for the plaintiff, but which had not been executed. There had been 
 some talk between the parties as to the purchasing of it together. Held there 
 was no confidential relation between the parties ; also, that if plaintiff had 
 suffered through the negligence of the attorney he had an adequate remedy 
 at law, and equity had not jurisdiction. Bill dismissed without casta. 
 
 Auditor — Appeal. — Persch v. Quiggle, 1868, 7 S. 247. An error in award- 
 ing costs by the auditor must be corrected on appeal from his decree, it is too 
 late to object upon taxation of costs after that decree has been confirmed. 
 
 Conditional Verdict.— Bradley v. O'Donnell, 1861, 4 Wr. 479. A con- ' 
 ditional verdict carries costs. 
 
 lb.— Davis r. Coyle, C. P. Venango, 1870, 27 Leg. Int. 70, S. C. 7 Phila. 671. 
 Where costs are not a specific part of a conditional verdict in ejectment, a 
 writ of habere facias posaesmn — will not issue on their non-payment, if the 
 verdict has been complied with. 
 
 Co-Tenants — Account. — Coleman v. Coleman, 1868, 2 Pears. 511. In a 
 bill for an account between co-tenants, the court will not decree costs to be 
 paid by respondents though a decree is entered against them, where it ap- 
 pears that each co-tenant used all he wanted, thinking there was an inex- 
 haustible supply and never expecting to be called to account. 
 
 De Lunatico Inquirendo. — Hassenplug's Ap., 1884, lO Out. 527. ^n 
 proceedings de lunatico inguirendo, the court has the powers of a court of 
 chancery, and under the Act April 16, 1849 (p. 1. 663), may dispose of the 
 costs in such manner as shall seem fit. 
 
 Defense— Failure of.— Coleman v. Brooke, C. P. 1882, 39 Leg. Int. 158, 
 S. C. 15 Phila. 302. Where a defendant in equity has set up a defense in 
 his answer, which fails, he may be charged part of the costs, though he be 
 in the main issue successful. 
 
 Discretion in Taxing.— Winton's Ap., 1878, 6 N. 77, rev'g 8 Leg. Int. 61. 
 Although courts of equity have large discretion in ta,xing costs, attorney's 
 fees and compensation for time expended by the parties are not costs and 
 cannot be imposed on the losing party. If incurred in defending an pstate 
 or the like, they may be taken out of it as " allowances," but not as costs. 
 
 Ib.—Durborrow's Ap., 1878, 6 N. 237. The taxing of costs is discretionary 
 with each court of equity, and each may adopt a fee bill or exercise its dis- 
 cretion as each case arises. 
 
 Ib._Western Iris. Co. v. Fisher. D. C. 1859, 16 Leg. Int. 404, S. C. 3 
 Phila. 547. Equity will exercise its power over costs so as to prevent the 
 annoyance and expense of unnecessary exceptions to answers to interroga- 
 tories. 
 
 Il,__jJeel V. Neel, 1854, 1 Gr. 171. Where there is no fee bill chancery 
 has discretion in the taxation of costs. 
 
 Il5__Gyger's Ap., 1869, 12 S. 73. In equity costs lest in the sound dis- 
 
142 COSTS. 
 
 cretion of the court and do not' always follow the decree. In intricate or 
 doubtful accounts, especially in partnership accounts, the costs are usually 
 divided, or what is the same thing, are taxed on the partnership effects. 
 
 Dismissal of Bill.— Thomson's Ap., 1878, 11 W. N. C. 314. Where a 
 bill in equity charging fraud is dismissed, none of the costs should be put 
 on the defendant. 
 I lb. — O'Hara v. Stack, 1879, 9 N. 477. A defendant in equity cannot com- 
 plain that he has been charged a part of the costs, the decree being that the 
 bill be dismissed, when the ground of the dismissal is that the circumstances 
 of the parties having changed since the filing of the bill, it seems to be better 
 for all concerned to dismiss it. 
 
 lb. — Frank v. Eiegel, C. P. Dauphin, 1869, 2 Pears. 53. Equity may 
 charge the costs on a respondent although the bilHias been dismissed on its 
 merits. 
 
 ^ectment— Mortgagor— Balance Due. — Wharf v. Howell, 1813, 5 Bin. 
 499. A mortgagor may bring ejectment for the mortgaged premises without 
 first tendering the amount due if he thinks the rents and profits received by 
 the defendant equal this amount. In order to do justice between the par- 
 ties it is necessary that the account be brought down to the time of trial, if 
 however, there is still a balance due by him, it seems that he must pay the 
 costs. 
 
 lb. — Agreement to Sell. — Cadwallader v. Berkheiser, 1858, 8 C. 43. 
 Where a defendant in ejectment gives in evidence an agreement to sell the 
 property to him and pays the purchase money into court, the plaintiff is 
 nevertheless entitled to a nominal verdict for damages and his costs. 
 
 Equitable Plaintiff. — Armstrong ». Lancaster, 18.36, 5 W. 68. That a 
 suit is tor the use of an equitable plaintiff is sufficiently shown by so making 
 it ; the title of the latter need not be set forth m the pleadings. The court 
 will undoubtedly search out the real plaintiff in interest and fix on him 
 costs, set-offs and other liabilities. 
 
 Exceptions to Jurisdiction in Answer. — Maguire's Ap., 1883, 6 Out. 
 120. A defendant in equity may either demur to the j urisdiction or except 
 to it in his answer, nor is he liable for costs for taking the latter method of 
 objecting. 
 
 Examiner's Fee— Liability.— Yerkes' Ap., 1884, 14 W. N. C. 510, S. C. 
 41 Leg. Int. 546, 32 Pitts. L. J. 128, reversing 40 Leg. Int. 141. The lower 
 court has not the power to make a successful party pay the examiner's fee 
 unless there is some equitable liability, where that party was not the mov- 
 ing party. 
 
 lb.— Rogers 1). Williams, 1871, 4 Brews. 148, S.C. 1 Camp. 418, 1 Leg. Op. 
 203, 4 Leg. Gaz. 6, 28 Leg. Int. 341, 7 Phila. 123. Printing an examiner's 
 report cannot be taxed as costs in equity. 
 
 lb.— Ohlsen v. Eiehle, C. P. 1884, 15 W. N. C. 437, S. C. 42 Leg. Int. 4. 
 Where a cross bill has been filed and an examiner appointed to take the tes- 
 timony under the two bills, each side must in the first instance pay half 
 the examiner's fee. 
 
 lb. — Nichols D. English, 1869, 3 Brews. 260. Each party must pay the 
 examiner for his ovm depositions. 
 
 .Evidenee—Inadmissable.— Howell's Est., O. C. 1881, 38 Leg. Int. 478, 
 S. C. 14 Phila. 329. The court will not instruct an examiner as to the ad- 
 missability of evidence, but if a party offers witnesses whose testimony is 
 clearly irrelevent he may be charged the costs pro tanto. 
 
 Fee Bill— Orphans' Court.— Drum's Est., 0. C. 1883, 13 W. N. C. 164. 
 The equity fee bill does not apply to orphans' court practice in matters 
 where the custom has always been otherwise ; the rules were only adopted 
 "so far as they were applicable to its practice and proceedings." 
 
 Final Decree.— Wellirer's Ap., 1884, 4 Penny. 180. A final decree im- 
 
COSTS. 143 
 
 posing costs on plaintiff, nnappealed from, cannot be changed by subsequent 
 decrees without the consent of the parties. 
 
 Foreign Decree.— Pearson's Est., 1889, 6 Pa. Co. C. Rep. 298. An action 
 for costs awarded by a final decree of a court of chancery in England may be 
 maintained in this State, although the certified copy of the record does not 
 contain a copy of the bill. 
 
 Judgment— Set-off.— Miles v. Morss, C. P. Lackawana, 1882, 4 L. T. N. 
 S. 5. Costs in one judgment may be set off against another. 
 
 Judgment Before Magistrate. — Magill v. Tomer, 1837, 6 W. 494. A 
 defendant before a magistrate, who has offered to confess judgment for an 
 amount equal to that recovered on appeal, is entitled to have the costs 
 before the magistrate detached from the judgment in the common pleas. 
 
 Master's Fee.— Large v. Davis, C. P. 1882, 12 W. N. C. 33. A plaintiff 
 is liable for a master's fee and must pay it. If in the end he win, he may 
 collect it from the defendant. 
 
 lb. — Thomson's Ap., 1878, 11 W. N. C. 414. The party in whose favor a 
 master makes his report, is in the first instance liable for his fee. 
 
 lb.— Brubaker v. Shirk, 1869, C. P. Lancaster, 1 Lan. Bar, No. 25. The 
 compensation of a master will be regulated according to the time, labor and 
 responsibility. 
 
 lb.— Partition.— Wister v. Foulke, D. C. 1865, 22 Leg. Int. 341, S. C. 6 
 Phila. 26. A master in chancery to effect a sale in partition is not entitled 
 to a commission, but to a fee proportioned to the responsibility and trouble 
 incurred. 
 
 lb.— Devine v. Mundell, C. P. 1883, 13 "W. N. C. 269. The losing party 
 is liable for the master's fee and the winning party cannot be called on to 
 pay it until an attempt has been made to collect it from the other. 
 
 lb.— Lowenstein v. Biernbaum, C. P. 1880, 8 W. N. C. 301. A. plaintiff 
 is liable in the first instance for a master's fee, although his report puts it 
 on the defendant. 
 
 Non-Resident— Practice.— Smoot v. Harrah, C. P. 1878, 5 W. N. C. 147. 
 Where a complainant in equity is a non-resident, the court may, on motion, 
 compel him to enter security for costs, but a rule will not necessarily be dis- 
 charged. 
 
 Partition.— Fidelity Trust Co.'s Ap.,1885, 16 W. N. C. 12. Act April 27, 
 1864, providing that in certain cases costs of partition should be paid by alT 
 the parties in interest, only refers to cases in which some petitioner's interest 
 is very small, and does not include costs incurred in opposing the partition. 
 
 lb.— Monestier v. Monestier,C. P. 1885, 17 W. N. C. 255. The act of 1864 
 allowing counsel fees to be paid out of the fund in cases of partition, has 
 reference only to fees for services rendered for the common benefit. 
 
 Party — Bond. — Kase v. Greenough, 1879, 7 N. 403. Equity may require 
 of one asking to be made a party that he give a bond for costs. It may also 
 fix the master's fee. 
 
 Refusal of.— Beddle's Ap., 1887, 19 W. N. C. 219. Where the decree of 
 a master dismissed the plaintiff's bill with costs, and the court agreed with 
 the master as to the merits of the case in all material points, but entered a 
 decree without costs, such refusal of costs was held error, since, although 
 costs in equity are largely in the discretion of the court, this discretion must 
 be reasonable and not arbitrary. 
 
 Reversal.— Hepburn's Ap., 1870, 18 Pitts. L. J. 75. The Supreme Court 
 •will not reverse the order of the lower court as to costs, unless it is shown 
 that it did not dispose of the costs as it deemed right. 
 
 Scandalous Matter— Losing Party.— Nixon's Est., O. C. 1883, 13 W. 
 N. C. 100. Costs occasioned by scandalous and impertinent matter follow 
 the decision, and are to be charged to the losing party. 
 
144 COSTS— COUKT AND JURY. 
 
 Security for.— Brau v. Evans, 1888, 6 Pa. Co. C. Rep. 19. A defendant 
 in equity cannot be compelled to give security for costs. 
 
 lb.— Non-Resident Complaniant.— Voigt v. Pfaffle, C. P. 1885, 16 W. 
 N. C. 47. A non-resident complainant in possession of the property in dis- 
 pute will be compelled to furnish security for costs. 
 
 lb.— lb.— Benton v. Bryant, C. P. 1876, 2 "W. N. C. 424. Where com- 
 plainant is a non-resident and the master has reported in favor of a decree 
 adverse to him, he will be compelled to enter security for costs. 
 
 Trustee— Dry— Besisting.—Caldwell v. Lowden, 1868, 3 Brews. 63. A 
 cestui que trust may bring ejectment against his trustee in a dry trust. The 
 trustee by disclaiming may save costs, but if he defends he must pay them. 
 
 lb. — Bush's Ap., 1859, 9 C. 85. A trust to secure property to a married 
 woman is executed by the death of her husband, but the trustee by resisting 
 her claim was not charged the costs. 
 
 lb.— Refuses to Make Declaration.— Newmyer's Ap., 1872, 22 S. 121. A 
 party to whom land has been conveyed as trustee for a certain purpose is not 
 justified in refusing to make a declaration of trust for that object by receiv- 
 ing notice to that effect from certain parties interested, and in this case the 
 costs were imposed on him. 
 
 Trust.— Administration of — Butterbaugh's Ap., 1881, 2 Out. 351. The 
 expenses of administering a trust estate must come out of the interest not 
 the principal. 
 
 What is Included in.— Janes's Ap., 1878, 6 N. 428. Where the Supreme 
 Court orders the costs to be paid by one of the parties, the term " costs " in- 
 cludes the fees of a master, though the question of his fees was not raised on the 
 appeal. 
 
 Winning Case— Scandalous Bill. — M'Marray v. Davis, N. P. 1874, l 
 W. N. C. 142. A complainant made to pay his own costs, although a decree 
 was entered in his favor, on the ground that the bill was of such a scandal- 
 ous nature that it should not have been fild. 
 
 lb. — Joice V. Taylor, 1887, 44 Leg. Int. 483. In equity where a party claims 
 $70,000 and is awarded $17,000, he cannot be said to have won the suit so 
 as to place the costs on the other party. 
 
 COUNSEI, FEE. 
 
 See Costs— Teustee, II. I). ; Feb. 
 
 COURT. 
 
 See CoTJET AND Jury ■ Jtteisdiction. 
 
 COURT AND JURY. 
 
 Binding Instructions— Piersoll v. Neill, 1869, 13 S. 420. The jury is to 
 find the facts, the court to decide whether such facts would move a chancel- 
 lor; if it decides not, it can give binding instructions. 
 
 Contribution — Estoppel.— Lewis v. Carstairs, 1843, 5 W. & S. 205. It 
 is a question for the court, whether one who has demanded contribution from 
 a neighbor for laying a drain in alley, is estopped from denying a subse- 
 quent purchaser's right to the use of the alley. 
 
 Equitable Bjectment.— Eobinson v. Buck, 1872, 21 S. 386. In an action 
 
COUKT AND JUKY. 145 
 
 of equitable ejectment the judge is a chancellor and the province of the 
 jury is to assist him as to the credibility of witnesses and iu reconciling con- 
 flicting testimony. 
 
 lb. — Dougan v. Blocher, 1854, 12 H. 28. It is error to submit to a jury a 
 case of equitable ejectment, unless the facts are disputed. The judge is the 
 chancellor, the province of the jury is to decide disputed facts. 
 
 lb.— Kuhn V. Nixon, 1826, 15 S. & R. 118 With us equity and law are 
 convertible terms; the principles of each are to be applied by the jury under 
 the direction of the court. 
 
 lb.— Elbert v. O'Neill, 1883, 6 Out. 302. The court should direct a verdict 
 for defendant in an equitable ejectment whenever the plaintiff does not 
 make out a conceivable case. 
 
 lb. — Todd V. Campbell, 1858, 8 C. 250. The court, in ejectment to try an 
 equitable title, must give binding instructions where the facts alleged would 
 not move a chancellor. 
 
 lb. — Williams v. Bentley, 1857, 5 C. 272. In ejectment to compel specific 
 performance where evidence has been given of material facts, it is error to 
 withdi'aw the case from the jury. 
 
 Equitable Principles Involved.— Faust v. Haas, 1873, 23 S. 295. When 
 a suit at law turns on equitable principles the judge is the chancellor, and 
 the function of the jury is to determine the credibility of the witnesses and. 
 find the facts from conflicting testimony. 
 
 Equity— Common Law Forms.— Church v. Euland, 1870, 14 S. 432. 
 When equity is administered through common law forms, the judge is the 
 chancellor and not the jury, the duty of the latter is similar to that of try- 
 ing feigned issues out of chancery, namely, determining the credibility ot 
 witnesses and deciding on the effect of conflicting testimony. 
 
 Evidence to Raise an Equity.— Noel v. White, 1860, 1 Wr. 514. If in 
 an equitable ejectment there be evidence of a fact raising an equity, the 
 court may submit the evidence of the fact to the jury. Such action is ana- 
 lagons to an issue in chancery. 
 
 Fraud, Accident or Mistake.— Stine v. Shark, 1841, l W. & S. 195. 
 Where fraud or mistake is alleged to change the purport of a solemn instru- 
 ment, the evidence thereof should be clear or the court should not submit it 
 to the jury. 
 
 lb. — Scettiger v. Hopple, 1856, 3 Gr. 54. Courts of law can construe or set 
 aside an instrument, but only equity can reform it. For this purpose oral 
 testimony is sufficient if it be believed by the jury, and if in the opinion of 
 the court it makes out a good case on the ground of fraud, accident or mis- 
 take. 
 
 lb.— Kenny v. McClellan, C. P. Chester, 1870, 27 Leg. Int. 246, S. C. 7 
 Phila. 655. Where in an action at law on a written contract the court is 
 asked to reform the same on the ground of fraud, the finding of facts by the 
 jury is not binding on the conscience of the court. 
 
 lb. — Eowand v. Finney, 1880, 15 N. 192. One can only be relieved from 
 his written agreement by proving fraud, accident or mistake in its precure- 
 ment, and although this may be done by oral evidence that evidence must 
 be clear and indisputable, if it is not the court should not allow it to go to 
 the jury. 
 
 Husband and Wife— Gift.— Conley v. Bentley, 1878, 6 N. 40. Equity 
 will sustain a gift from a husband to his wife if it be found by the j ury that 
 there was no fraudulent intent against creditors. 
 
 Mortgage— Evidence of.— Baisch v. Oabreley, 1871, 18 S. 92. There 
 being in evidence a writing containing a promise to reconvey an estate 
 deeded the day before, besides some evidence of acts of the parties, it was 
 proper for the whole to go to the jury to ascertain whether or not it was a 
 mortgage. 
 
 10 — EQUITY. 
 
146 COUEK AND JUEY. 
 
 lb. — Plumer r. Guthrie, 1874, 26 S. 441. Where the evidence, -which is 
 offered to change a deed absolute on its face into a mortgage, is of facts and 
 circumstances which occurred along time after the original transaction, if it 
 is not sufficient to satisfy the judge as chancellor he should not submit it to 
 the jury. 
 
 lb. — Ehines v. Eaird, 1861, 5 Wr. 256. Where an assignment, on its face 
 absolute, was without consideration, the assignor remained In possession and 
 there were declarations by the transferreetending to show that the convey- 
 ance was conditional, the question whether or not it was a mortgage should 
 go to the jury. 
 
 lb. — Wharf V. Howell, 1813, 5 Bin. 499. , Where a deed absolute on its 
 face is in evidence and also the explanations of the scrivener that it was in- 
 tended for a mortgage, and the fact that there was a great disparity between 
 the price paid and the true value of the land, the question whether or not 
 the instrument is a mortgage is properly left to the jury. 
 
 lb. — Nicolls V. McDonald, 1882. .'5 Out. 514. One who has given a deed 
 absolute on its face, prior to June 8, 1881, may either in an action of eject- 
 ment or a bill in equity offer evidence to prove it a mortgage, which evidence 
 must satisfy the chancellor in either case. 
 
 lb. — De France v. De France, 1859, 10 C. 385. It is for the court to say 
 whether parol testimony is sufficient to convert an absolute deed into a mort- 
 gage. 
 
 lb. — Huoncker v. Merkey, 1883, 6 Out. 462. Where the question is 
 whether a transaction was an absolute conveyance or a mortgage, the evi- 
 dence all being oral, it is not error for the court to charge that, if the jury be- 
 lieves the facts testified to by the defendant (who relies on the parol defeas- 
 ance) are clearly proved, they shall find for him. 
 
 Notice — Evidence. — Fillman v. Divers, 1858, 7 C. 429. Whether cer- 
 tain testimony, if believed, proves notice, is for the jury. • 
 
 lb.— Mutual Insurance Co. v. Power, C. P. 1877, 3 W. N. C. 407. The 
 question whether a prior encumbrancer, who has released part of his security 
 to the prejudice of a junior encumbrancer, had notice of the claims of the 
 latter, should go to the jury under proper instructions. 
 
 Purchase of Land.— Benson v. Adams, 1846, 3 Barr, 228. Where an as- 
 signee for creditors buys in land, sold by him under a judgment, and the 
 debtor takes possession and after several years sells the same, it is for the 
 jury to decide whether the land was purchased by the assignee for the 
 debtor. 
 
 Resulting Trust. — McBarron v. Glass, 1858, 6 C. 133. The court should 
 not permit evidence of a resulting trust to go to the jury, if, in its opinion, 
 the evidence, if true, would not move a chancellor. 
 
 Set-Off— Note.— McGowan V. Budlong, 1875, 29 S. 470. One who gets 
 possession of a worthless note against his creditor may offer it in evidence as 
 a set-off, and it is for the jury to say whether he holds the note as an ex- 
 periment or whether there was an actual transfer. 
 
 Specific Performance— Evidence. — Moore v. Small, 1852, 7 H. 461. In 
 ejectment, to enforce specifically a parol contract for the purchase of land, the 
 only work for the jury is to find material facts, the evidence thereof being 
 conflicting, and to pass upon the credibility of witnesses. 
 
 lb.— Miller v. Hertle, 1866, 3 S. 108. It is for the court to say whether 
 evidence, if true, is sufficient to entitle plaintiff to specific performance. 
 
 Trust Evidence.— Achmntz v. Achmntz, 1858, 2 Pitts. R. .^>8, S. C. 7 
 Pitts. L. .T. 144. Where an attempt is made to establish a trust by declara- 
 tions and actions, the question is for the jury unless the court thinks the 
 evidence entirely insufficient. In this case, or in case the jury find a trust, 
 the Supreme Court may examine into the evidence, but if the jury finds 
 against the trust the Supreme Court will not interfere. 
 
COUET AND JUEY — CBEDITOE'S BILL. 147 
 
 Unconstitutional Remedy.— Haine's Ap., 1873, 23 S. 169. An act di- 
 recting equity practice in certain cases where the remedy is not equitable, is 
 unconstitutional as depriving parties of the right of trial by jury. 
 
 lb. — North Penna. Coal Co. v. Suowden, 1862, 6 Wr. 488. Act April 22, 
 1856, allowing tenants in common of mining rights to come into equity, is 
 unconstitutional so far as it refers to the trial of legal rights, for those must 
 be by jury. 
 
 COVENANT. 
 
 [See also Fobfeituee; Action of, see Equitable Actions.] 
 
 Deed— Consideration— Specific Performance.— Koch's Ap., 1880, 12 
 N. 434. "Where a deed gives rise to an implied covenant which really sup- 
 plies the consideration, and which the grantee breaks, equity will not enforce 
 specific performance nor will it cancel the agreement, but will leave the plain- 
 iiflf to his action for damages. 
 
 lb.— Unrecorded.— Sprague v. Woods, 1842, 4 W. & S. 192. An unre- 
 corded deed upon consideration to a child for the use of the grandchildren, if 
 not good as a conveyance to uses, is as a covenant to stand seized; and deeds 
 from the grandchildren sui juris, pass a title good against their parents. 
 
 Injunction— Assignee of Lease Breaking.— Brolaskey o. Hood, 1866, 
 23 Leg. Int. 222, S, C. 6 Phila. 193. Equity has jurisdiction to restrain an 
 assignee of a lease from breaking the covenants therein contained. 
 
 lb.— Light and Air.— Hummel o. Krautter, C. P. 1885, 42 Leg. Int. 304. 
 Equity vrill enforce by injunction a covenant for light and air. 
 
 Running With Land.— St. Andrew's Church's Ap., 1871, 17 S. 512. A 
 covenant between a grantor and his grantees, all owners of contiguous lots, 
 to the effect that none of the lots should be used for other purposes than 
 dwelling houses and the necessary out houses, is a covenant running with 
 the land, and will be specifically enforced in equity against one attempting 
 to build a church. ^ 
 
 Vendee— Ground Rent.— Penna. Co. v. Lynch, C. P. 1879, 6 W. N. C. 
 446. A vendee under a ground rent deed, who has covenanted to build and 
 who has commenced building, will be enjoined from removing the founda- 
 tion, etc. 
 
 Vendor and Vendee— Assignee.— Hamilton v. Brown, 1851, 6 H. 87. 
 Where a vendor has entered into a covenant to convey and the vendee has 
 assigned his equitable title, and afterwards the vendor did convey to his 
 vendee, the assignee cannot recover against the vendor in a suit to his use on 
 the covenant, although he had given notice to the vendor of the assignment. 
 
 CREDITOR. 
 
 See Debtoe and Ceeditoe. 
 
 CREDITOR'S BII^L. 
 
 See COEPOEATION, IV. 
 
148 CBIMINATION — CY PKES. 
 
 CRimiNAXION. 
 
 See EviDENCi. 
 
 CROSS-BII^L. 
 
 Answer to.— Purvis v. Leech, C. P. 1885, 16 W. N. C. 541. A cross-bill 
 need not be answered until the answer to the original bill has been adjudged 
 sufficient. 
 
 Contents of.— Datz ». Phillips, 1889, 46 Leg. Int. 250. A cross-bill in 
 equity is in the nature of a defence and must therefore be confined to the 
 general matter embraced in the original bill, otherwise it will be dismissed. 
 
 Decree. — Coleman V. ColeraaD, C. P. Dauphin, 1868, 2 Pears. 511. Under 
 Act April 25, 1850, equity in a bill for an account can decree a sum to be 
 paid by one defendant to another defendant without there having been a 
 cross-bill filed. 
 
 Dismissal of I^ectment BUI.— Phipps v. Kent, 1880, 1 Ches. Co. Rep. 
 158. Where a bill has been filed asking for a recission of a conveyance on 
 the ground of fraud, a cross-bill asking that the complainant deliver up pos- 
 session of a part which he still holds, will be dismissed as an ejectment bill 
 and as not growing out of the original bill. 
 
 Exceptions to Answer Dismissed. — Mcllvain v. Market Co. C. P. 
 1875, 2 W. N. C. 208, S. C. 32 Leg. Int. 464, 10 Phila. 371. Where a bill and 
 a cross-bill, taken together, contain all that is necessary to the decision of the 
 cause, exceptions to the answer as being insufficient will be dismissed. 
 
 Injunction by Defendant After Piling.— Brady v. Young, C. P. I860, 
 17 Leg. Int. 149, S. C. 4 Phila. 127. An injunction may be granted on mo- 
 tion of a defendant who has filed a cross-bill. 
 
 Jurisdiction— Objection to After-filing.— Pittsburg R. R. v. Mt. Pleas- 
 ant R. R., 1874, 26 S. 481. Quaere whether after a defendant has filed a 
 cross bill he can object to the jurisdiction of the court? 
 
 Practice — Hearing Both Bills.— Randolph's Ap., 1870, 16 S. 178. 
 Where a cross-bill has been filed it is customary to hear both bills together, 
 and it is not error even to hear the cross bill fi.st if it seems to raise a pre- 
 leminary question. 
 
 Specific Performance — Interpleader. — Decker v. Sterling, C. P. 
 Wyoming, 1880, 3 L. T. N. S. 67. Where two parties had each filed a bill to 
 enforce specific performance against the same person for the same tract, and 
 the defendent admitted his liability to convey to one or the other, the court 
 allowed each complainant to become a defendant in the other's suit. 
 
 When Proper.— Allen v. Long, C. P. Allegheny, 1882, 30 Pitts. L. J. 269. 
 A cross-bill is proper whenever the defendant has equities entitling him to 
 affirmative relief, and in it can be introduced matters which are pleaded at 
 law puis darrein continuance. 
 
 CITRXESY. 
 
 See Husband and Wife, VI. E. 
 
 CY PRBS. 
 
 Definition of Doctrine.— Philadelphia v. Girard, 1863, 9 Wr. 9. Cg 
 pres, as administered in Pennsylvania, is that reasonable doctrine by which a 
 
CY PKKS^DAJIAGES. 149 
 
 well defined charity, or one where the means of definition are given may be 
 enforced in favor of the general intent, even where the mode or means pro- 
 vided for by the donor fail by reason of their inadequacy or unlawfulness. 
 
 Discretion of Trustee.— Dunn's Est., 1881, 10 W. N. C. 313. Prior to 
 act April 26, 1855, an administrator d. b. n. e. t. a. could not exercise a dis- 
 cretionary power of appointment vested in the executor in favor of some 
 charity 
 
 Educational Bequest.— Library.— Dublin Academy {in re), C. P. 1880, 8 
 W. N. C. 564. Where property left for educational purposes, had become use- 
 less tor those purposes on account of free public schools, the court allowed the 
 trustees to rent the property and apply the income in aid of a free library. 
 
 ImmoralBectuest.-Library.— Manners f. Philadelphia Library, 1880, 12 
 N. 165. A direction that the trustee of a public library shall not exclude 
 new books because they are contrary to the present tenets of science, mor- 
 als and religion, is a negative direction only and does not make the use an 
 immoral one. Even if the direction were positive it is but a condition sub- 
 sequent and the court on the principle of cy pres would disregard the direc- 
 tion without striking down the trust. 
 
 Impracticable Direction. — In re Petition of City of Phila., 1868, 2 
 Brews. 462. Where the direction in a will is impracticable the court may 
 apply the doctrine of cy pres to the extent of changing the particular direc- 
 tions if the general Intent is still carried out. Therefore, where trustees 
 were empowered to keep certain coal lands leased but upon leases not ex- 
 ceeding five years, and it was made to appear that such short leases of coal 
 lands was impracticable, the court extended the time to fifteen years. 
 
 Limitation of Doctrine. — Flaherty's Est., 1851, 2 Pars. 186. Our courts 
 will not carry the doctrine of cy pres to the length it has been carried in Eng- 
 land; but whenever there is a main design expressed, the court will so con- 
 trol the means that it may be accomplished. 
 
 Power to Give Effect to. — Methodist Church v. Remington, 1832, 1 
 W. 219. No court in Pennsylvania has the special powers necessary to give 
 effect to the doctrines of cy pres. 
 
 DA9IAOES. 
 
 [See also Adjustment, VII.] 
 
 Injunction— Remedy.— Hotchins v. Rogers, 1888, 22 W. N. C. 80. The 
 remedy for damages caused by an injunction, is upon the injunction bond, 
 Where a recovery is sought outside the bond, plaintiff must show malice and 
 want of probable cause. 
 
 Injunction— Bond— Measure of Damages.— Morgan v. Negley, 1866, 3 
 S. 153. In ascertaining the damages upon an injunction bond where the in- 
 junction was afterwards dissolved, it is error to include the advance in the 
 price of labor, materials, etc., wheretheplaintiflf has no't continued the work 
 but sold his right to another, there being no evidence that the purchasers 
 would have given more for the right had prices continued the same. 
 
 Eight to— Estate not Lien— Western Penna. R. R. v. Johnson, 1868, 9 
 S. 290. A right to damages for land taken by a railroad is an estate, not a 
 lien, and is not discharged by any sale but binds the purchaser. 
 
 Specific Relief Impossible.— Willis v. Darby R. R., C. P., 1878, 6 w. N. 
 C, 473, aff" g 4 W. N. C. 370. Where in equity specific performance is im- 
 possible the court vpill award pecuniary damages. 
 
 lb.— Impracticable.— Mayer D. Simpson, N. P. 1871, 3Lan. Bar, No. 41, 
 S. C. 1 Camp. 406, 4 Leg. Gaz. 1. Equity may give compensation in dam- 
 
150 DAMAGES — DEBTOK AND CREDITOK. 
 
 ages where, after it has assumed jurisdiction, specific relief hecomes imprac- 
 ticable. 
 
 lb. — lb. — Masson's Ap., 1871, 20 S. 26. Whenever equity has jurisdic- 
 tion, if the relief prayed for cannot for some reason be granted, a compensa- 
 tion in damages may be in lieu thereof 
 
 lb.— Inadequate — Mayer v. Simpson, 1872, 4 Brews. 156, S. C. 4 Leg. Op. 
 558. Equity may, having once obtained jurisdiction, enter a decree for 
 damages where the specific relief asked for would do more harm than good. 
 
 DEAD BODV. 
 
 Custody of— Fox V. Gordon, C. P. 1883, 40 Lg. Int. 374, S. C. 11 W. N. 
 C 302. In questions as to the custody of a dead body equity will do what 
 from the circumstances of each case seems just. 
 
 Removal of. — Fox v. Gordon, supra. A husband may have a right to re- 
 move the body of his deceased wife from her mother's lot to another burial 
 ground. 
 
 lb.— Jeffreys v. Pittsburgh, C. P. Allegheny, 14 Lan. Bar, 68, S. C. 30 Pitts. 
 L. J. 21. Courts of equity have power to decree the removal of dead bodies 
 on the petition of the next of kin. 
 
 lb— {In re) Girard, 1851, 5 Clark 68, S. C. 4 Am. L. J. 97. Equity will 
 restrain the removal of a body to a different burying ground at the suit of 
 the relatives of the deceased, but will not interfere if the body has been already 
 removed. 
 
 lb.— Will.— Sampler v. Poulson, et al., 1887, 44 Leg. Int. 16. Where a 
 husband buried his wife in his own lot contrary to the request contained in 
 an alleged will which was never probated, a court of equity will not enter- 
 tain a bill by the mother, father and brother of decedent to enforce such re- 
 quest. 
 
 Right of Burial.— Scott <.. Eiley, C. P., 1883, 40 Leg. Int. 382. Equity 
 will not interfere •to give the right of burial to the next of kin of the de- 
 ceased when it was against the wish of the latter. 
 
 DEATH OF DEFENDANT. 
 
 See Parties; Deceee. 
 
 DEBTOR AND CREDITOR. 
 
 [See also Account I, B (a) ; Adjitstmbnt; Confidential Relation V.] 
 
 Agreement to Purchase for Debtor— Harrison v. Soles, 1847, 6 Barr. 
 393. An oral agreement between a judgment creditor and his defendant, that 
 the former shall purchase the propeity of the latter at sheriff's sale and hold 
 it subject to redemption, will be enforced. 
 
 Assignment — Agreement to Transfer Legacy. — Wylie's Ap., 1879, 
 11 N. 196. An agreement by a debtor to pay ovfer a legacy when he received 
 it is not an equitable assignment, for there is no such assignment as would 
 authorize the executor to pay tlie legacy to the creditors. 
 
 lb. — ^Ejectment— Bruce v. Jennings, C. P. Dauphin, 1870, 1 Leg. Op. 33. 
 Where a debtor has made an assignment, his creditors cannot bring a suit in 
 t.]uity against his debtors. 
 
DEBTOE AND CBEDITOE. 151 
 
 Securities— Distribution.— GraefTs Ap., 1875, 29 S. 146. Where there 
 has been an assignment for creditors the latter are equitable owners and are 
 entitled to pro rata dividends on their claims until they are satisfied without 
 regard to nature and extent of the securities held severally. 
 
 Attachment— Remittance for Payment.— Sharpless v. Welsh, 1803, 4 
 Ball. 279. A remittance made by a debtor for payment of his creditors is a 
 trust fund, and cannot be attached. 
 
 Collateral — Statute of Limitations.— Waterman v. Brown, 1858, 7 C. 
 161. A debtor's equity to have collateral returned to him upon payment of 
 the debt is barred six years after the debt falls due. 
 
 lb.— Time of Sale.— Phlla. Bank v. Aldridge, D. C. 1864, 21 Leg. Int. 
 236, S. C. 5 Phila. 446. Upon application by a creditor who Holds collateral, 
 the court will appoint a time for its sale unless sooner redeemed. 
 
 ConfldentialRelation— Statute of Limitations.— Stewart I). McBumey, 
 1886, 43 Leg. Int. 272. A debtor does not stand in such a confidential 
 relation to his creditor that he is bound to tell him of the debt, and unless 
 there is actual misrepresentation there is no such fraud as will stop the run- 
 ning of the statute of limitations. 
 
 Conveyance to Creditor to Pay Debts. — Moon v. Wheeler, 1880, 8 
 W. N. C. 493. Where a debtor has conveyed property to one of his creditors 
 uiider an agreement with the latter to pay off the liens and reconvey, there is 
 either a valid parol trust or an equity of redemption. 
 
 Corporation— Subscribers.— Bank of Virginia v. Adams, 1850, 1 Pars. 
 534. A creditor of a corporation may maintain a bill against the subscribers 
 to its stock (not paid in full) on debts contracted by the company when the 
 directors refuse to call in the unpaid assessments; but not if the corporation 
 is a foreign one. 
 
 Creditors' Trustees— Purchase by.— Blackmore's Ap., 1884, 4 Penny, 
 33. Where a bankrupt selects two creditors as trustees of a mortgage given 
 to secure creditors, there is no such relation of trustee and cestui que trust as 
 will invalidate the title of said trustees purchasing the mortgaged property 
 at a sale in foreclosure. ' 
 
 Dividend on Whole Debt.— Miller's Est., 1876, 1 N. 113. A creditor 
 may receive a dividend on the whole debt from the insolvent's estate of both 
 the debtor and his surety. 
 
 Distribution— Sheriffs Sale.— Tindle's Ap., 1874, 27 S. 201. On the 
 princinle that a fund raised by a sheriff's sale shall be distributed according 
 to law and equity, the court awarded to a lien creditor a sum which was paid 
 on account by the other claimant under a sheriff's sale to him which he 
 refused to complete, although the second sheriff's sale was under another 
 judgment, and the property brought less than the bid at the first sale. 
 
 Enforcement of Contract by One Not a Party. — Zell's Ap., 1885, 1 
 Amer. 532. One not a party to a contract, made for his benefit, can enlorce 
 his rights in equity against one, a party to the contract, who seeks to appro- 
 priate to the payment of the debt due him, the property provided in said con- 
 tract for the payment of debts, including a debt due him, to the exclusion of 
 the party for whose benefit the con tract was made. 
 
 Estoppel— Assignment for Creditors.— Lane's Ap., 1876, 1 N. 289. 
 Certain creditors signed an agreement of compromise with their debtor that 
 a certain assignment should be made, the agreement to be void unless signed 
 by all the creditors. The assijtument was made (but not recorded) though 
 all the creditors did not sign. Held that a creditor signing the original agree- 
 ment was not estopped from proceeding adversely. 
 
 Fraud — Conveyance — Lien. — Boyle v. Thomas, 1879, 1 Ches. Co. Rep. 
 11'/. A lien creditor, whose lien has attached after a conveyance claimed to 
 he fraudulent, may bring a bill in equity to have the conveyance decreed 
 Toid. 
 
152 DEBTOB AND CBEDITOE. 
 
 Fraudulent Conveyance— Practice. — Girard Nat. Bank's Ap., 1883, 13: 
 W. N. C. 101. A judgment creditor, who thinks that his debtor has fraudu- 
 lently conveyed land, must proceed at law to sell the land and try the title 
 by ejectment — he has no remedy in equity. 
 
 Husband and Wife— Deed of Separation.— Bouslaugh v. Bonslaugh, 
 1828, 17 S. & R. 361. The provisions of a deed of separation between hus- 
 band and wife acted upon for nine years will be enforced against creditors of 
 the former. 
 
 lb.— Mortgage.— White's Ap., i860, 12 C. 134. Equity will not assist a 
 creditor of a husband to enforce the debt against the wife, where, without 
 consideration, she has given him a mortgage, and the same has fairly come 
 back into her hands and been destroyed. 
 
 Injunction— Levy— Averment of Interest. — Walker's Ap., 1886, 2 
 Amer. 579. A court of equity will not restrain a creditor by injunction from 
 levying on land in which he avers that his debtor has an interest. 
 
 lb.— Judgment.— Lebanon Nat. Bank's Ap., 1875, 1 W. N. C. 627. 
 Where a j udgment bond has been given by a debtor to a trustee for his credi- 
 tors, the creditors agreeing that their claims should be paid in certain in- 
 stalments, the court will enjoin creditors from proceeding on the judgment 
 individually against the will of the other creditors and the trustee. 
 
 Land of Debtor's Wife.— Creditor's Funds Used to Improve.— Mc- 
 Crachen v. McCrachen, C. P. Luzerne, 1878, 8 Luz. Rep. 125. Equity has no 
 power to grant a decree which will give to one a part interest in the land of 
 his debtor's wife, said land having been improved with funds boiTOwed by 
 the husband from the complainant. 
 
 Lunatic — Execution Against. — Echstein's Est., 1842, 1 Pars. 59, S. C. 
 
 1 Clark, 224; 2 Pa. L. J. 136. A creditor of a lunatic will be restrained 
 from issuing execution. He must apply to the court to have his claim paid 
 out of the estate. 
 
 Mortgage. — Deed— Relation Must be Proved. — Emery v. Marshall, 
 1885, 42 Leg. Int. 395. Where an attempt is made to convert a deed abso- 
 lute on its face into a mortgage, it must appear that the relation of debtor 
 and creditor existed between the parties. 
 
 lb.— Fraud.— Barrett v. Nealon, 1888, 21 W. N. C. 104. A mortg^e. 
 given to protect the mortgagor's property from certain creditors holding 
 notes upon which the mortgagor was endorser, was fraudulent and void as 
 to other contesting creditors having claims at that time, and a sale under 
 such mortgage passed no title as against them. 
 
 Partner Confessing Judgment. — Gallagher's Ap. 1886, 4 Amer. 353. A 
 partner may confess judgment to firm creditors and pay the same out of his 
 separate estate even though his individual creditors are thereby prevented 
 from collecting their claims. 
 
 lb. — Deceased.— Legal and Fo[uitable Assets. — Sperrj's Est., 1827, 1 
 Ash. 347. In Pennsylvania there is no distinction between legal and equit- 
 able creditors or legal and equitable assets; hence partnership and separate 
 creditors come in equally against the estate of a deceased partner. 
 
 Release to Assignee by all Creditors but One. — Warner's Estate, C. 
 P. 1882, 39 L. T. 198. The release to an assignee for the beneiit of creditor.-;, 
 by all such creditors but one, does not increase the lund for the benefit ot 
 that one and he will be allowed only the distributive share coming to each 
 of said creditors. 
 
 Receiver— Judgment Creditor.— Pollock v. Sunbury R. R., C. P. 1875, 
 
 2 W. N. C. 182. A judgment creditor granted leave to sell property in the 
 hands of a receiver, after he should have petitioned for leave, if the receiver 
 did not satisfy his judgment within sixty days. 
 
 Securities for Several Debts. -Price)). Franklin Fire Ins. Co., C. P. 1883, 
 13 W, N. C. 312. Securities in the hands of a creditor, given severally for 
 
DKBTOE AND CREDITOR — DECEDEXTS' ESTATE. 153 
 
 separate debts, cannot be made each to stand for all the debts, either by- 
 tacking or by way of set-off. 
 
 lb.— Refusing to Release.— Ward v. Mooney, C. P. 1881, 10 W. N. C. 
 256. Where a creditor refuses to release security, which was given to cover 
 a particular obligation which has been satisfied, a bill in equity lies against 
 him. 
 
 Vendor— Creditor of.— Practice.— Page v. Sheriff, C. P. Bradford, 1879, 
 1 C. P. Rep. 13. The ovraer of real estate, who has an equity to prevent the 
 sale of his land by a creditor of his vendor, must enforce it by a suit in 
 equity, he cannot intervene in the judgment. 
 
 What Constitutes the Relation— Deposit of Money.— Pittsburgh 
 Bank v. McMurray, 1881, 2 Out. 538. One with whom money is deposited 
 for investment, who agrees to pay interest on the same until invested, is a 
 debtor and not a trustee. 
 
 DECEDEPiXS' ESTATES. 
 I. Generally. 
 
 II. Jurisdiction. — See Court; Jurisdiction. 
 III. Mortgage. — See Mortgage. V. 
 rV. Set-off. — See Adjustment, VII. 
 V. Specific Performance. — See Specific Performance, VI. 
 
 I. Generally. 
 
 Actions— Letters of Administration. — Lee v. Gibbons, 1826, 14 S. & E. 
 105. Where the property of a decedent has come intq the hands of one who 
 admits that he holds in trust for the children, the latter may (there being 
 BO debts against the estate) maintain an action against him, without first 
 talking out letters of administration. 
 
 Conversion. — Leiper v. Irvine, 1856, 2 C. 54. A recissiou of a contract of 
 sale, entered into by the decedent in his life-time, works a conversion, but 
 does not affect the right of distributees. 
 
 lb. — Rangler's Ap. 1846, 3 Barr, 377. The price of land agreed to be sold 
 by decedent in his lifetime, and afterwards received by his administrator, is 
 personalty. 
 
 Estoppel — Partition. — Dutch's Ap., 1868, 7 S. 461. An heir parti- 
 tioned for partition, took the land at an appraisement, and entered into re- 
 cognisances to secure to other heirs their equal shares. Held he was not 
 estopped from setting up that the other heirs had received advancements. 
 
 Interest on Bond— Orphans' Court. — Yeatman's Ap., 1883, 6 Out. 2f)7. 
 A mortgage creditor of a solvent estate may recover interest on his bond after 
 confirmation of an Orphans' Court sale and until date of payment. 
 
 Family Settlement. — Wilens's Ap., 1884, 9 Out. 121. Family arrange- 
 ments are favorites of equity and if valid will not be disturbed against the 
 objection of any. 
 
 Fraudulent Conveyance. — Independent Saving Fund V. Dillon, C. P. 
 1881, 10 N. W. C. 506. A bill will lie in the common pleas to set aside a 
 fraudulent conveyance by a decedent. 
 
 Lien. — Fowler's Ap., 1878, 6 N. 449. A creditor of a decedent, who has no 
 Hen except that arising from the death of his debtor, may bring a bill in 
 
154 decedents' estate — DECREE. 
 
 equity against one to whom the decedent in his life time had fraudulently- 
 conveyed land. 
 
 Parties. — Ulrich's Ap., 1882, 2 Penny. 455. Administrators, who have 
 obtained an order of court for thesaleof decedent's land, are the proper com- 
 plainants in a bill in equity to compel a third party in whom the legal title 
 is vested to make a conveyance to the purchaser at the sale. 
 
 Trust— Statute of Limitations.— Steel v. Henry, 1840, 9 W. 523. Where 
 a testator devises his real estate to his executors and directs it to be sold and 
 the proceeds applied to the payment of his debts, he thereby creates a trust 
 for the benefit of his creditors and there is no limitation to the lien of their 
 debts as regards the real estate thus devised. 
 
 lb. — Oliver's Ap., 1S82, 5 Out. 299. A debt, which is a trust, does not re- 
 main a lien on the decedent's real estate longer than five years unless re- 
 vived in the statutory way, although it will not be barred from coming in on 
 the personalty. 
 
 Trustee— Contract by Decedent. — Magee v. Magee, 1845, 1 Barr. 405. 
 On the death of one having an agreement to purchase land, the vendor stands 
 as a trustee for the heirs, and any one paying the balance of the purchase 
 money and taking a conveyance of this property in his name takes it as a 
 trustee with respect to the whole title and not merely as to the proportion 
 paid for by the decedent. 
 
 DECLARAXION OF TRUST. 
 
 See Trusts and Teustees. 
 
 DECREE. 
 [Ameitdment op. — See Amendment, III. 
 
 Abatement. — Clark v. Martin, 1865, 13 "Wr. 289. A decree of abatement 
 will be awarded where a defendant has built in violation of a condition after 
 a bill has been filed, and that under the general prayer and vidthout an 
 amendment. 
 
 Accepting Benefits Un^der- Subsequent Suit — Estoppel. — Third 
 Reformed Dutch Church's Ap., 1879, 7 N. 503. A corporation which has ac- 
 cepted the benefits of a decree obtained by some of its members in a former 
 suit for the corporation, though that suit was not carried on in the uame of 
 the corporation, cannot institute a new suit to determine matters whieh arose 
 in the former suit. The former decree binds the corporation as such. 
 
 Bill Dismissed— Account Render at Law— Confession of Judg- 
 ment. — Tutton V. Adams, 1863, 9 Wr. 67. Where a bill in equity has been 
 dismissed, after an action of account render between the same parties has been 
 begun, and after the decree of dismissal, the defendant has confessed judg- 
 ment quod computet, it is too late to plead the equity decree as a bar. 
 
 Conclusive— Against Whom.— Foster v. Barnes, 1876, 31 S. 377. A de- 
 cree of a court of equity, declaring that certain land was firm property and 
 ordering it to be sold to pay firm debts, is not conclusive on a separate judg- 
 ment creditor who was not a party to the equity suit. And in an action by 
 such creditor, who had purchased his creditor's interest under his own judg- 
 ment, the jury having found that the land never was firm property, it was 
 held that he took a good title. 
 
 lb.— How Far.— Taylor «. Cornelius, 1869, 10 S. 187. A decree is con- 
 clusive against a party if adverse to his interest, though it does not name 
 
DECEEE. 155 
 
 Mm. It is conclusive of all questions which might properly have been 
 raised and determined. 
 
 Death of Defendant— Practice.— Bank of United States «. Biddle, 1844, 
 2 Pars. 31. Where one of two co-defendants dies pending a suit in equity, 
 the court can decree as to the survivor, but not as to the deceased until his 
 representatives are brought in. 
 
 Demurrer— Decision on Not Final.— Detrich v. Sharrar, 1880, 14 N. 
 521. A decision on a demurrer is not a decision on the merits of the cause 
 of action, but merely on the way it is set out. Therefore, in a subsequent pro- 
 ceeding on the same cause of action the judgment on the demurrer cannot be 
 given in evidence. 
 
 Dismissal of Bill— Final.— Kelsey v. Murphy, 1856, 2 C. 78. The dis- 
 missal of a bill in chancery is a final decree, and precludes the same parties 
 from afterwards litigating any point which properly arose under the bill. 
 But an action on the case for conspiracy in defrauding one of the price of 
 goods is a different cause of action from a bill to enforce the vendor's lien on 
 the same goods. 
 
 Effect of on One Not a Party.— Pittsburgh E. E. v. Marshall, 1877, 4 
 N. 187. A decree, declaring that a mortgage is a first lien on the property of 
 a railroad, has no force against a lien creditor not a party to the proceeding. 
 
 Estoppel — ^Mortgage— Lien.— Woods t>. Pittsburgh E. R., 1881, 3 Out. 
 101. One having a lien on land which he claims to be a first lien, who is 
 served as a party defendant along with the owner of the land in a suit to have 
 a mortgage declared a first lien and who suffers a decree to be made against 
 him pro eonfesso, is estopped from prosecuting his claim against a purchaser 
 of the land under the mortgage. 
 
 Equitable Title— Specific Performance— Ejectment— Sparks v. Wal- 
 ton, D. C. I860, 17 Leg. Int. 228, S. C. 4 Phila. 93. An equitable title 
 which has failed in a suit in equity for specific performance, cannot after- 
 wards be used as a defence in ejectment. 
 
 Final. — Westcott v. Edmunds, 1871, 18 S. 34. A final decree in equity 
 is a bar to a suit at law, whether commenced before or after equity pro- 
 ceedings, and as such may either be pleaded or given in evidence. 
 
 Fraud In. — Commonwealth v. Trout, 1874, 26 S. 379. A decree cannot be 
 impeached collaterally for fraud in the transaction, but only for fraud in the 
 procuring of the decree. 
 
 Husband and Wife — Collusion. — Eittispaugh v, Lewis, 1883, 7 Out. 1. A 
 vrife filed a bill against her husband and his grantor praying a cancella- 
 tion of the deed, and a decree vesting the prop'ferty in her, which was accord- 
 ingly decreed. Creditors of the husband, whose liens attached while he held 
 the title, and who were not parties to the bill, were not concluded by the 
 decree in a contest with the creditors and grantee of the wife. 
 
 Injunction— -Improper Exercise -of Authority — Eeversal. ^ Ervin's 
 Ap., 1876, 1 N. 188. A preliminary injunction was granted against a de- 
 fendant who was alleged to be a trustee, restraining him from parting with, 
 converting or using any of his property. The Supreme Court, reversed the 
 decree on the ground that it was an unreasonable exercise of equitable 
 powers, whatever the merits of the case appeared to be. 
 
 Injunction— Attachment— Writ of Assistance. — Commonwealth v. 
 Dieffenbach, N. P. 1854, 20 Leg. Int. 140, S. C. 5 Phila. 236. Where de- 
 fendants are enjoined to give up possession of lands which are within the 
 jurisdiction of the court, and an enforcement of the injunction by attach- 
 ment does not avail, the court will direct a writ of assistance to the sheriff. 
 
 Interlocutory Decree.— Appeal of Christy et al., 1885, 14 Out. 538. An 
 order awarding an inquest of partition is an interlocutory decree, and no 
 appeal lies therefrom. But the decree of confirmation entered upon the 
 return of the inquest is final, and may be appealed from by any person 
 interested. 
 
156 DECKEE. 
 
 Tnjuuction.^ — Binett's Ap., 1888, 21 W. N. C. 139. A special injunction 
 having been granted to restrain tlie operators of adjoining coal tracks from 
 extending their operations across the dividing line, was dissolved, on a mo- 
 tion to continue the same, and on appeal. Held, that as this was an interlocu- 
 tory decree, the Supreme Court would not discuss it. 
 
 Issue Out of Chancery. — Saylor'sAp., 1861, 3 Wr. 495. Where an 
 issue is directed out of chancery, and, after verdict, a decree is entered, it is 
 not a valid objection to the latter that the evidence was not returned with 
 the verdict. 
 
 Judgment on Demurrer. — Bishop v. Culver, 1875, 1 W. N. C. 372. A 
 judgment on a demurrer to a bill in equity, for want of proper parties, is not 
 a final decree, and no appeal lies. 
 
 Legal Title— Partition.— Gratz v. Lex, D. C. 1866, 23 Leg. Int. 357, S. 
 C. 6 Phila. 183. In partition, equity may deCree a conveyance of the legal 
 title to the party taking the land, where it may be deemed necessary. 
 
 Opening Appeal. — Roddy's Ap., 1882, 39 Leg. Int. 149. An appeal 
 from the definitive decree or judgment of the common pleas, in cases re- 
 lating to assignees for creditors, must be taken within one year after such 
 decree or judgment, and an application to the court below to open such a de- 
 cree must be by either a bill of review or an application for a re-hearing. 
 
 Orphans' Court Jurisdiction. — Postlethwaite's Ap., 1871, 18 S. 477. 
 The orphans' court, being a court of equity, has complete jurisdiction of 
 any matter presented to it, and can decree in iavor of the respondent, if that 
 is right. 
 
 Partition — ^Parties — Notice. — Thompson v. Stiss, 1867, 6 S. 156. One 
 not named in a petition for partition, and who has no notice of the proceed- 
 ing, is not bound by the decree of the orphans' court. 
 
 Pleading — Action at Law on Foreign Decree. — Evans v. Tatem, 
 1823, 9 S. & R. 252. An action at law can be brought in Pennsylvania on a 
 decree in equity in Tennessee. In such case the plea must be framed to meet 
 the case; nil debet and mil tiel record are both bad on general demurrer. The 
 plea must conclude to the country. 
 
 Pro Confesso— Injunction.— Morris v. Boley, 1875, 1 W. N. C. 303. 
 Where a bill prays for an injunction, and a decree has been taken pro con- 
 fesso, the court will allow the injunction to go out with leave to the defend- 
 ant to move to dissolve the same within a reasonable time (60 days). 
 
 lb.— Collusion.— Ash v. Bowen, C. P. 1873, 30 Leg. Int. 226, S. C. 
 10 Phila. 68. Equity will refuse to enter a decree upon a judgment pro con- 
 fesso which appears to have been collusi vely entered. 
 
 Pro Forma— Appeal.— Morgan's Ap., 1889, 23 W. N. C. 522. The Su- 
 preme Court will not hear a case where the lower court has reversed the 
 findings of a master without giving any reasons for its action. Such action 
 is virtually entering a decree pro forma. 
 
 lb.— When Entered.— Cambers v. Waterman, N. p. 1871, 28 Leg. Int. 
 44 S. C. 8 Phila. 82. Where the opinion of a judge is strongly against a 
 complainant's equity he will enter a decree pro forma, dismissing the bill so 
 that an appeal may be had speedily. 
 
 Relief— Special Order not Prayed for.— Horton's Ap., 1850, 1 H. 66. 
 It is erroneous for the common pleas in equity to make a special order not 
 prayed for in the bill. 
 
 lb.— Extent of —Cumberland Valley Railroad's Ap., 1869, 12 S. 218. A 
 court ol equity will not grant more than is claimed in the bill, whatever a 
 complainant may prove. 
 
 Res-Adjudicata^GeneralEelief — Williams D. Row, 1869, 12 S. 118. 
 A decree in eqnity is conclusive in proceedings at law, if the record of the 
 equity suit shows that the matter in issue is the same. The general prayer 
 
. DECUKE— DEMUEKEB. 157 
 
 for further relief at the end of a bill for discovery must be regarded as refer- 
 able Duly to the purpose of the bill, namely, to effectuate discovery. 
 
 lb.— Final Decree. — City v. Priche, D. C. 1868, 25 Leg. lut. 60, S. C. 6 
 Phila. 578. A final decree in equity by a court of competent jurisdiction ia 
 conclusive on the same question arising between the parties in another court. 
 
 Transfer of —Brooke ». Phillips, 1876, 2 N. 183. Act April 16, 1840, (p. 
 1. 40,), allowing the transfer of judgments does not include decrees. Nor 
 does Act March 29, 1859, (p. 1. 289,) allow such a transfer : it gives decrees 
 in equity for the payment of money the force and effect of judgments as to 
 lien and remval but no further. 
 
 Wrong Reason Given for. — Piper's Ap., 1852, 8 H. 67. A decree if 
 right will not be reversed because the wrong reason was given. 
 
 DEED. 
 
 Essentials to Validity of — Duraind's Ap., 1884, l Crum. 102. Delivery 
 is essential to the validity of a deed. Signing and sealing in cases where there 
 is no consideration, are insufficient to bind the grantor. 
 
 Insane Trustee Making. — Grier's Ap., 1882, 5 Out. 412. A deed made 
 by an insane trustee under order from the orphans' court-is valid. 
 
 Invalid — Declaration of Trust. — Morrison v. Beirer, 1841, 2 W. & S. 81. 
 A deed of bargain and sale, which is invalid for lack of a valuable consid- 
 eration and a competent grantee, may be supported as a declaration of trust. 
 
 Voluntary — Irrevocable.— Fellows' Ap., 1880, 12 N. 470. A deed to a 
 trustee ibr the use of the grantorfor life and for his appointee after death, is, 
 in the absence of fraud, a valid and irrevocable instrument though made 
 without consideration. 
 
 Wien Ordered to be Delivered up. — Mauge v. Guenat, 1841, 6 Whart. 
 141. Equity will only order the title deeds to be delivered up when the 
 party praying relief has possession of the estate. 
 
 DEFECTIVE EXECUTION. 
 
 See Power. 
 
 DEFENCE. 
 
 See Equitable Defence ; Peactice and Pleading ; Teusts and Trus- 
 tees, IV. B. 
 
 DEMURRER. 
 
 Decision on.— Detrich v. Sharrar, 1880, 14 N. 521. A decision on a de- 
 murrer is not a decision on the merits of the cause of action, but merely on 
 the way it is set out. Theretore, in a subsequent proceeding on the same 
 (Siuse of action, the judgment on the demurrer cannot be given in evidence. 
 
 Facts Admitted by.— McDonough v. McDonough, C. p. Luzerne, 1882. 
 1 Kulp. 469, S. C. 10 Luz. L. Reg. 289. Where a child, in whose name the 
 father has taken a deed, demurs to a bill setting forth that he is a trustee 
 
158 DEMUEEEE — DEPOSITION. 
 
 and asking for an account, the presumption that the transaction was a gift 
 cannot be insisted on, as tlie demurrer admits the trust. 
 
 lb.— Manners v. Philadelphia Library, 1880, 12 N. 165. A demurrer ad- 
 mits only those averments in the bill that are explicit and certain. 
 
 lb.— Stockton v. Lehigh Nav. Co. C. P. 1880, 9 W. N. C. 110, S. C. 37 
 Leg. Int. 290, 14 Phila. 88. A demurrer to a bill admits only those facts 
 which are well pleaded, and therefore does not admit that the law of a 
 foreign state is as alleged in a bill which does not set forth the statute. 
 
 General— When Overruled.— Thomas v. Boswell, C. P. 1880, 37 Leg. 
 Int. 147, S. C. 14 Phila. 197. If a plaintiff is entitled to any relief what- 
 ever, a general demurrer must be overruled. 
 
 Injunction — ^Motion to Dissolve — Dorwart v. Reed, 1876. C. P. Lancas- 
 ter, 8 Lan. Bar. 58. A motion to dissolve an injunction made before answer 
 and without affidavits will be treated as a demurrer. 
 
 Jurisdiction. — Maguire's Ap., 1883, 6 Out. 120. A defendant in equity, 
 may either demur to the jurisdiction or except to it in his answer, nor is he 
 liable for cost? for taking the latter method of objecting. 
 
 lb.— Remedy at Law.— Adams -v. Beach, 1850, 1 Phila. 99, S. C. 7 Le^;. 
 Int. 178. If a case is before chancery when the remedy is at law, the 
 remedy is by demurrer and not by objecting to the jurisdiction of the court. 
 
 Multifariousness— Objection to Answer.— Persch v. Quiggle, 1868, 7 S. 
 247. Multifariousness must be demurred to, it is too late to object after 
 answer filed. 
 
 Parties — Nuisance — Injunction. — Cumberland Valley Eailroad Co.'s 
 Ap., 1879, 12 S. 218. One suffering individually no more than does the 
 public generally, has no standing in a court of equity to enjoin the nuisance, 
 and a bill by such an one is demurrable. 
 
 Plea and Demurrer.— Brooke v. Phillips, N. P. 1867, 24 Leg. Int. 132, S. 
 C. 6 Phila. 392. Where there is a plea to the whole of a bill, and a demur- 
 rer to a part thereof, the latter falls. 
 
 Too General Overruled. — Everhart v. Everhart, C. P. Luzerne, 1875, 4 
 Luz. L. Reg. 259. A demurrer which is too general will be overruled, al- 
 though it is good as to part of a bill. 
 
 lb. — To Interrogatories. — Moyer v. Livingood, C. p. Berks, 1870, 2 
 Woodw. Dec. 317. A demurrer to interrogatories that they are " imperti- 
 nent, irrelevant and immaterial, "is too general. 
 
 Uncertainty.— Brady v. Standard Assoc, C. P. 1884, 14 "W. N. C. 419. A 
 demurrer to a bill on the ground of its being uncertain and contradictory, 
 must allege the particular sections in which the faults occur. 
 
 DEPOSIT. 
 
 [See also Trusts, Trustees, II. H.] 
 
 Of Money in Place of Injunction.— McDonough v. Bullock, 1874, 2 
 Pears. 194. Equity may allow a deposit of money in place of an injunc- 
 tion not to remove goods where the latter order would work grave injury. 
 
 DEPOSIXIOBI. 
 
 When Admissible in Subsequent Legal Proceeding. — Galbraith i. 
 Zimmerman, 1882, 4 Out. 374. A deposition of a witness4aken in an equity 
 
DEPOSITION — DISCOVERY. 159 
 
 proceeding, is admissible as evidence in a legal proceeding between one of 
 the parties and the administrator of the other. 
 
 DESCENT. 
 
 Equitable Estate of Vendee— Vincent v. Huff, 1818, 4 S. & E. 298. 
 The equitable estate of a vendee, under articles, follows legal estates in 
 manner of descent. 
 
 Intestacy. — Jerks V. Backhouse, 1803, 1 Bin. 91. A trust estate in Penn- 
 sylvania descends, in case of intestacy, to the heir at commou law. 
 
 Mortgage — ^I^ectment. — Simpson v. Ammons, 1806, 1 Bin. 175. The es- 
 tate of the mortgagee goes to his heirs at death, who are, however, only 
 trustees for the administrator, and the latter has power to bring ejectment 
 in his own name. 
 
 DISCHARGE. 
 
 See Teustee, II, J. 
 
 DISCOVERY. 
 
 I. Generally. 
 II. When Allov(-ed. 
 III. Proceduke. 
 
 I. Generally. 
 
 Act Oct. 13, 1840.— Bank of United States v. Biddle, 1844, 2 Pars. 31. 
 Under act Oct. 13, 1840, both the common pleas and the Supreme Court have 
 equitable jurisdiction in cases of account. This jurisdiction is concurrent 
 ■with the legal remedies, but equity will assume it even though the accounts 
 are all on one side wherever discovery is needed, and in cases of mutual 
 transactions wherever the complication is such that the equitable remedy is 
 more complete. 
 
 Bill as Evidence. — Clark v. Depew, 1855, 1 C. 509. A bill of discovery 
 and defendant's answers thereto are not evidence in his behalf 
 
 Principal and Agent must Answer Fully.— Roberts v. Oberteuffer, 
 D. C. 1887, 14 Leg. Int. 332, S. C. 2 Phila. 366. Where a bill of discovery 
 is filed against both a principal and his agent, both must answer fully. 
 
 lb.— Bank of Kentucky v. Schuylkill Bank, 1846, 1 Pars. 180, S. C. 5 Pa. L. 
 J. 251. Equity will entertain jurisdiction of a bill by a principal against a 
 defaulting agent demanding an account and discovery. 
 
 Production of Books and Papers.— Moiling v. Lehigh Nav. Co., D. C. 
 1874, 31 Leg. Int. 396, S. C. 9 Phila. 223. Act of 1798 relative to production 
 ofbooks and papers intended to supply the power of compelling discovery 
 and should be liberally exercised. 
 
 Relief— General Prayer for.— Williams v. Row, 1869, 12 S. 118. A de- 
 cree in equity is conclusive in proceedings at law, if the record of the equity 
 
160 DISCOVBBY. 
 
 suit shows that the matter in issue is the same. The general prayer fo» 
 farther relief at the end of a bill tor discovery must be regarded as referable 
 only to the purpose of the bill, namely, to effectuate discovery. 
 
 II. 'Wtaen Allowed. 
 
 Contract — Breach — Evidence. — T wells «. Costen, 1849, l Pars. 373. 
 Equity will not entertain a bill of discovery by a plaintiff against a defend- 
 ant to compel the latter to disclose, whether, in a contract entered into be- 
 tween them, he was not the mere agent of a principal not named, in order 
 to enable the plaintiff to maintain an action against the unknown principal 
 for an alleged breach ot the contract. 
 
 Corporation. — Wesley Church v. Moore, 1849, 10 Barr, 273. Discovery can 
 be had against a corporation. 
 
 Defendant Against Plaintiff— Ex-Contractu — Zearing v. Eouch, C. 
 P. Dauphin, 1864, 1 Pears. 251. A bill of discovery will lie by a defendant 
 against the plaintiff in an action ex-contractu. 
 
 Execution— Returned Nulla Bona— Secret Trusts.— Rose v. Lloyd, 
 1843, 1 Clark, 333, S. C. 2 Pa. L. J. 309. Equity will not grant discovery of 
 personal property until an execution has been returned nulla bona, but it will 
 in cases of real estate held for the defendant on secret trusts. 
 
 Facts Only Discoverable. — Shaffer v. Kinkelin, D. C. 1853, 10 Leg. Int. 
 206, S. C. 1 Phila. 465. A bill which seeks not discovery of facts, but of the 
 names of plaintiff's witnesses and the nature of his evidence will be dis- 
 missed. 
 
 Heir in Lifetime of Ancestor. — Keen's Ap., 1869, 10 S. 504. An heir 
 cannot in the lifetime of his ancestor maintain a bill of discovery of facts 
 necessary to establish the title to the estate. 
 
 In Aid of Execution Against Corporation. — Large v. Bristol Trans- 
 portation Co., 1841, 2 Ash. 394. A bill for discovery in aid of execution will 
 lie against a corporation, and it is sufficient that he is prevented from realiz- 
 ing the fruits of his execution by the interposition of one ol the defendants. 
 Such a claim prevents the plaintiff from execution of his judgment within 
 the meaning of the act. 
 
 In Aid of Issue at Law.— Milne's Ap.; 1886. 17 "W. N. C. 559. A bill 
 of discovery will lie to ascertain facts material to the decision of an issue at 
 law, but such a bill will be dismissed where its object could be accomplished 
 by the production of books. 
 
 lb.— Principal and Agent.— Thistle v. Lippincott, C. P. 1883, 14 W. N. 
 C. 139. Where, a principal has sued his agent, and on being ruled to furnish 
 a bill of particulars has filed a bill of discovery, praying that defendant be 
 ordered to make an account of the sales in order to enable him to file his bill 
 of particulars, he is entitled to the discovery on the ground that as the de- 
 fendant is an agent he is bound absolutely to account. 
 
 Injunction — Notice— Removal of Goods. — ^Young v. Salber, C. P. 1876, 
 2 W. N. C. 424. Where, pending an injunction for which the delendant has 
 had no notice, goods are removed, the court will decree that the defendant 
 make discovery as to their whereabouts. 
 
 Interest Must be Shown by Bill.— Collom v. Francis, 1850, 1 Pars. 527. 
 A bill will not lie by one who thinks he has title to land, to compel discov- 
 ery from the defendant, unless his bill exhibits that he has an interest in 
 the subject matter. If the complainant shows no right of action in any 
 court he cannot have discovery in equity. 
 
 Jurisdiction— Act 1S69.— Long o. Russel, N. P. 1873, 5 Leg. Gaz. 33, S. 
 
DISCOVERY. 161 
 
 C. 30 Leg. Int. 37, 9 Phila. 267. Since Act of 1869 allowing parties to testify, 
 it is now no ground for equitable jurisdiction that the defendant's testimony is 
 necessary. 
 
 lb.— District Court.— Clark «. Rush, D. C. 1855, 12 Leg. Int. 255, S. C. 
 1 Phila. 572. The district court has no jurisdiction to £;rant discovery in 
 aid of an execution. 
 
 lb.— lb.— Gouldy V. Gillespie, 1844, 2 Clark, 311, S. C. 4 Pa. L. J. 91. 
 The district court of Philadelphia county has no jurisdiction of a bill of 
 discovery in aid of an execution. 
 
 lb. — Orphans' Court. — Loomis v. Loomis, 1856, 3 C. 233. The orphans' 
 court has all the powers of discovery necessary for the complete exercise of 
 its jurisdiction. 
 
 lb.— Supreme Court.— Davis v. Grerhard, 1840, 5 Whart. 466. Under the 
 several sections of the Act June, 16, 1836, relating to discovery, it is plain 
 that the Supreme Court has not jurisdiction to compel discovery of assets. 
 
 lb.— lb.— Mouge V. Guenat, 1840, 6 "Whart. 141. Act June 16, 1836, s. 
 13, does not give the Supreme Court jurisdiction to grant discovery, except 
 in aid of issues depending. The bill should, therefore, aver that an issue is 
 pending. 
 
 Materiality — Production of Books and Papers. — Campbell v. Knowles, 
 
 C. p. 1879, 36 Leg. Int. 136, S. C. 13 Phila. 163. Equity will not grant an 
 order for the production of books and papers, unless the bill prays for dis- 
 covery of material facts. 
 
 Remedy at Law — Eg.uitable Jurisdiction. — Bank of United States v. 
 Biddle, 1844, 2 Pars. 31. Where equity has acquired jurisdiction on the 
 ground of discovery, it may go on and afford complete relief, though there 
 is a remedy at law, especially if the equitable relief will be more complete, 
 and will prevent multiplicity of suits. 
 
 Bight to Call Opposite Party as Witness— Effect of. — Blocks. Univer- 
 sal Ins. Co., C. P. 1883, 40 Leg. Int. 160. The act allowing the opposite 
 party to be called as a witness, does not interfere with the right of a party 
 to have a bill of discovery, especially against a corporation. 
 
 Statute of Limitations — ^Demurrer. — Brewster v. Brewster, D. C. 1859, 
 16 Leg. Int. 61, S. C. 3 Phila. 355. Where a bill does not allege fraud or 
 violation of a trust, but prays discovery of matters six years old, it is de- 
 murrable. 
 
 lb.— Trustees v. Grubb, D. C. 1862, 19 Leg. Int, 157, S. C. 5 Phila. 41. 
 Although discovery cannot be asked of matters barred by the statute of lim- 
 itations, yet when the bill sets up matter within six years, which makes the 
 plaintiff's case good as a whole, discovery may be had. 
 
 Title to Subject Matter Must te Shown. — Portuondo v. Fannce, C. P. 
 1881, 9 W. N. C. 539. A complainant is not entitled to discovery until he 
 has established his right to the subject-matter in suit. 
 
 Witness — ^Against One who can be Examined as. — Phillips ». Kern, 
 
 D. C. 1865, 22 Leg. Int. 45, S. C. 6 Phila. 9. A bill of discovery will not lie 
 against one who can be examined as a witness. 
 
 III. Procedure. 
 
 Allegations.— Peebles V. Boggs, 1849, 1 Phila. 151, S. C. 8 Leg. Int. 30. 
 A bill for discovery should allege that is is sought in aid of a pending ac. 
 tion at law, and that it is malerial; it need not be alleged that it is necessary, 
 
 BDl Must be Printed.— Etting v. Levy, C. P. 1873, 31 Leg. Int. 148, S. 
 C. 10 Phila. 139. A bill of discovery in aid of execution must be printed. 
 11 — EQ.UITY. . 
 
162 DISCOVEEY. 
 
 / 
 
 Corporation — Sequestrator. — Bevans v. The Turnpike, 1849, 10 Barr, 
 174. Act June 16, 1836 (discovery), includes cases against a corporation, 
 and concerning chases in action. But in the former case the proper practice 
 is to have the sequestrator bring the bill against the officers of the corpora- 
 tion. 
 
 Demurrer to Bill for. — Wlstar v. McManes, 1867, 4 S. 318. A defendant 
 cannot demur to discovery alone when the bill is for relief and for discovery, 
 as incidental to it, except for certain technical reasons not touching the 
 equity of the bill. And it such a demurrer is put in it cannot be sustained 
 by referring it to the whole bill. 
 
 Facts Must be Precisely Stated.— Dull v. Amies, 1837, 2 M. 134. A 
 bill in equity for the discovery of facts material to the just determination of 
 an issue at law, must state the facts with suflScient precision to show their 
 materiality to the determination of the issue at law. 
 
 In Aid of Executions — Allegations.— Commonwealth v. Baker, C. p. 
 1883, 14 "W. N. C. 75. A bill for discovery in aid of execution, which alleged 
 that defendant was cestui que trust of a certain estate under the will of A.B., 
 but that plaintiff was unable to find out anything about it, was dismissed on 
 demurrer, because it was not alleged that the property was sufficient to satisfy 
 the debt, and because on plaintiffs own showing he had a sufficiently accu- 
 rate knowledge of the property. 
 
 lb.— Practice.— Thurlow v. Eightley, 1887, 44 Leg. Int. 155. Where a 
 bill filed under Act of 1836, for discovery only, in aid of execution, and no 
 affirmative relief is asked, the names of the parties, other than the defendant 
 in the execution, should not be placed on the judgment index. The proper 
 practice in such case is for the creditor to levy upon the property and let the 
 sheriff's vendee bring ejectment. 
 
 lb.— lb.— Fulton V. O'Donnell, C. P. 1876, 3 W. N. C. 42. Where a bill 
 prays for discovery in aid of execution it should not be filed as an original 
 bill, but as of the suit in which judgment has been obtained, and the act 
 must be strictly followed. 
 
 In Aid of Issue at Law— Answering.— Bains v. Goldey, 1860, 11 C. 
 51. A bill of discovery in aid of an issue at law must be answered through- 
 out, the defendant cannot deny the principal fact and then decline to 
 answer the others on the ground that they are immaterial. 
 
 Interrogations — What Must be Answered. — Benhert v. Benhert, C. 
 P. 1877, 35 Leg. Int. 16, S. C. 12 Phila. 295. Where a bill is filed for dis- 
 covery in aid of an execution, the defendant must answer expressly and 
 fully all interrogatories material to the issue raised by his answer, but need 
 not answer those immaterial to that issue. 
 
 Notice.— Peebles v. Boggs, 1849, 8 Leg. Int. 30, S. C. 1 Phila. 151. A 
 bill of discovery should be made part of the original action, and, therefore, 
 lihe notice given should be by rule, not by subpoena. 
 
 Levari Facias Sur Mortgage. — Dundas v. Leiper, D. C. 1855, 12 Leg. 
 Int. 255, S. C. 1 Phila. 569. Proceedings on a levari facias sur mortgage 
 will not be stayed to enable executors to apply to the orphans' court for a 
 sale of the property. 
 
 Parties.— Piatt v. Barcroft, D. C. 1860, 17 Leg. Int. 140, S. C. 4 Phila. 67. 
 Where a defendant, in an action at law, files a bill of discovery against the 
 plaintiff and others, who, he claims, should have been plaintiffs, their 
 proper course is to plead or disclaim, but not to demur. 
 
 lb.— Title Shown.— Thurlow v. Brightly, 1887, 44 Leg. Int. 112. In 
 order that the names of the defendants in a bill of discovery in aid of execu- 
 tion should be entered on the judgment index, under Act of June 15^ 1871, 
 sec. 1 (p. 1. 387), it is not necessary that any. real estate should be actually 
 described in the pleadings. It is enough that the title to real estate ap- 
 pears indifferently to be in dispute. 
 
DISCOVBEY — DISCKBTION. 163 
 
 ^oduction of Books and Papers.— Snebley v. Linnell, C. P. 1879, 36 
 Leg. lut. 193, S. C. 13 Phila. 167. The only way of compelling the pro- 
 dnctiou of books and papers in equity is by a prayer for discovery, or by 
 bringing in the adversary as a witness under a subpmna duces tecum. 
 
 Purpose of Must Appear.— Waldron v. Bayard, D. C. 1854, 11 Leg. 
 Int. 79, S. C. 1 Phila. 484. To render interrogatories appropriate, it must 
 appear in the body of the bill for what purpose discovery is sought. 
 
 Service of Bill.— Gouldy v. Gillespie, 1845, 3 Clark, 125, S. C. 4 Pa. L. J. 
 510. A bill of discovery and interrogatories may be served on a defen- 
 dant by leaving a copy at his house, in the presence of an adult member of 
 his family. 
 
 DISCRETION. 
 
 I. Op the Cotjet. 
 II. Of Officees. 
 [See also Teusts and Teustees, II. F.] 
 
 I. Of tbe Court. 
 
 Award— New Trial.— Gray v. Simon, D. C. 1857, 14 Leg. Int. 316, S. C. 
 2 Phila. 348. It is within the discretion ol a chancellor, who awards an 
 issue, to grant a new trial thereon. 
 
 Costs— No Fee-Bill.— Neel v. Neel, 1854, 1 Gr. 171. Where there is no 
 fee bill, chancery has discretion in the taxation of costs. 
 
 Examiner's Report— Opening Evidence After.— Burton's Ap., 1880, 
 12 N. 214. The lower court may, in the exercise of a sound discretion, open 
 evidence after the examiner has made his report, and allow witnesses to cor- 
 rect their evidence where they allege mistakes. 
 
 Issues in Equity. — Genet v. Delaware Coal Co., C. P. Luzerne, 1877, 6 
 Lnz. L. Eeg. 73, S. C. 34 Leg. Int. 356, 13 Phila. 533. Issues in equity are 
 of discretion, and will seldom be granted before a hearing. 
 
 Opening Judgment.— Barley's Ap., 1879, 7 W. N. C. 515, S. C. 8 Luz. L. 
 Eeg. 169. On a rule to open a jndgOient, the court exercises its discretion, 
 as in other cases of an appeal to the equitable powers of the court. 
 
 Eeview by Supreme Court. — Hockemell v, Flickinger, 1879, 7 W. N. 
 C. 515. Act April 4, 1877, giving an appeal from a decree of the lower 
 court, in the matter of opening a judgment, merely gives the Supreme 
 Court the opportunity of reviewing the discretion exercised by the lower 
 court — it does not take away that discretion. 
 
 Set-Off of Judgments.— Windle ». Moore, C. P. 1879, 10 W. N. C. 387, 
 S. C. 1 Ches. Co. Eep. 69. The court will not allow one judgment to be set 
 off against another, unless the circumstances of the case make it an equita- 
 ble exercise of discretion. 
 
 Ib.—Dry V. Filbert, C. P. Berks, 1859, 2 Woodw. Dec. 134. The right of 
 setting off one judgment against another is an absolute one, not dependent 
 on the opinion of the chancellor. 
 
 Specific Performance. — Dalzell v. Crawford, 1849, 1 Pars. 37, S. C. 1 
 Clark. 155; 2 Pa. L. J. 17. Act June 16, 1836, gives the equitabk- 
 right of enforcing contracts specifically, but specific execution is a matter cf 
 discretion, and will only be decreed when the plaintiff shows a case which 
 recommends itself to the conscience of the chancellor. 
 
164 DISCRETION— DISTEICT COUET. 
 
 Trust Fund— Distribution of.— Gowen's Ap., 1884, 10 Out. 288. Where 
 a fund is held in trust for the children of an unmarried party, being 56 years 
 old and childless, and upon her death, without issue, the fund to go to other 
 persons, a court of equity may, upon security being entered by the latter, 
 decree that the fund be distributed among the latter. 
 
 II. Of Officers. 
 
 Control of Officers Empowered With. — Eoumfort v. Harrisburg, C. P. 
 Dauphin, 1871, 12 Pears. 101. Equity will not control officers in the discharge 
 of discretionary duties. 
 
 lb.— Bruner v. Naglee, C. P. 1870, 27 Leg. Int. 196, S. C. 7 Phila. 384. 
 "Where one has a discretion vested in him, the exercise thereof will not be 
 restrained unless it be unwise anil reckless. 
 
 lb.— Fraud.— Brown v. Philadelphia, C. P. 1884, 41 Leg. Int. 242. Equity 
 will not enjoin an officer from exercising a discretion in the absence of fraud. 
 
 lb.— Municipal Authorities — Bids.— Wiggins v. City, 1868, 2 Brews. 
 444. An injunction will not be granted to restrain the city from awarding 
 a contract at the suit of one who, though a lower bidder, had violated cer- 
 tain prescribed conditions about biddings. 
 
 lb. — lb. — Smiths. City, 1867, 2 Brews. 443. An injunction will not be 
 granted to restrain the municipal authorities from awarding acontract to the 
 lowest bidder, because he did not comply with certain technical provisions. 
 
 lb — Municipal Corporation. — Hill v. Commissioners, 1850, 1 Pars. 501. 
 Equity has jurisdiction to restrain municipal corporation, but will not ex- 
 ercise it where such corporation is exercising a discretion within the powers 
 given it. 
 
 lb. — School Directors. — Hughes !). School Directors, C. P. Luzerne, 1879, 
 1 C. P. Eep. 108. Equity will not interfere vrith the discretion of school 
 directors as to location of a building except in a clear case of abuse of 
 power. 
 
 lb.— lb.— Abuse.— Clinton School District's Ap., 1867, 6 S. 315. Where 
 discretionary officers exercise their discretion honestly, equity will not re- 
 strain them; if they a<-t maliciously the remedj' is against them personally. 
 
 Review of -Foster v. Philadelphia, C. P. 1878, 5 W. N. C. 269, 35 Leg. Int. 
 145, 12 Phila. 511. The trustees of the gas works have power to adopt reg- 
 ulations a.s to fixtures and service pipe, and equity vrill not review this dis- 
 cretion if reasonably exercised, especially where the complainant has delibe- 
 rately disregarded it. 
 
 nisinissAi,. 
 
 See Peaotick'and Pleading, I. 
 
 DISS0LVXI09I. 
 
 See Paetneeship. 
 
 mSTRICX COURT. 
 
 See JUEISDICTION. 
 
DOCUMBNTS— EJECTMENT BILL. 165 
 
 DOCV9IENXS. 
 
 See Pbactice and Pleading, III, 
 
 D017BTFVL RIGHT. 
 
 See Injunction, I, B. 
 
 See Husband and "Wife. 
 
 DVRESS. 
 
 See Undue Influence. 
 
 EARMARK. 
 
 Conversion by Executor.— Waterman v. Ellis, 1857, 4 C. 364. The exe- 
 cutor of an executor, who had converted a legacy to his own use, cannot be 
 sued as a trustee, the fund not being capable of identification. 
 
 County Trusts. — Citizens' N. Bank v. Alexander, 1888, 5 Crum. 476. A 
 bank with which money is deposited by a deputy treasurer, is not permitted 
 to apply the same to an over-draft by the county treasurer. The money is 
 not earmarked as county money. 
 
 Guardian and Ward.— MacReynold's Estate, 1888, 6 Pa. Co. C. Eep. 424. 
 Money of a ward, left by a guardian in the hands of his attorney, and in- 
 vested by the latter in his own name, but upon the subsequent declaration 
 that the investment belonged to the ward's estate may, in event of the attor- 
 ney dying insolvent, be reclaimed by the ward. 
 
 Substantial Identification. — Farmers' Nat. Bank v. King, 1868, 7 S. 
 202. Equity will follow a fund for the beneficial owner as long as it can be 
 substantially identified; an earmark is not essential to the recovery. 
 
 Trustee's Investments. — Penn Lodge v. Chalfant, 1880, 1 Chest. Co. 
 Rep. 132. A cestui que trust may claim any investments in the bands of his 
 trustee into which he can trace his money. 
 
 lb. — Eby's Estate, 1888, 5 Lan. L. Rev. 389. A sum of money sought to 
 be reclaimed as trust money, must be specifically shown to belong to the 
 trust. 
 
 EJECTMENT BII^L. 
 
 See Ejectment, I. 
 
16( BfBOTMBHr. ' 
 
 EJECTMENT, 
 
 I. Gknbbally. 
 II. By Vendok. 
 
 III. By Vendee. 
 
 IV. Tendeb. 
 
 V. Of the Veedict and Judgment. 
 
 I. Generally. 
 
 Alley— Injunction.— Clark v. Johnson, C. P. 1875, 1 W. N. C. 183. A 
 bill for an injunction to restrain the stopping up of an alley is really an 
 ejectment bill. 
 
 Cancellation of Deed.— Eichard's Ap., 1882, 4 Out. 51. Where a bill 
 seeks the cancellation of a deed, and a reconveyance ol the property from the 
 sheriff's vendee (the property having been sold under judgments obtained 
 against the grantee), it will be dismissed as an ejectment bill. 
 
 lb.— Injunction.— Trisouit's Ap., 1882, 13 W. N. C. 57. A bill in equity, 
 which seeks to set aside a deed, and also prays for an injunction to restrain 
 defendant from transferring it, is an ejectment bill. 
 
 Charge Upon Land.— Kennedy's Ap., 1874, 32 S. 163. A bill in equity 
 to enforce a charge upon land, namely that plaintiff should have a residence 
 there, is an ejectment bill. 
 
 Church.— Injunction — Jurisdiction. — Gass' Ap., 1873, 23 S. 39. One of 
 two congregations which had built a church together to be used for divine 
 worship only, brought a bill in equity to restrain the other from using it for 
 a Sunday School. Seld that equity had jurisdiction, the parties being un- 
 incorporated societies, and that the bill was not an ejectment bill, but one 
 to prevent a misuse ot the property. 
 
 Ih.— Christ Church v. Christ Chapel, C. P. 1880, 8 "W. N. C. 542, S. C. 37 
 IjCg. Int. 272, 14 Phila. 61. A bill by a parent church to restrain the diver- 
 sion of a branch church property is not an ejectment bill. 
 
 Consideration. — Perry v. Scott, 1865, 1 S. 119. A consideration, which 
 amounts to a covenant, cannot be enforced by ejectment. 
 
 Court and Jury. — Robinson V. Buck, 1872, 21 S. 386. In an action of 
 equitable ejectment, the judge is a chancellor and the promise of the jury is 
 to assist him as to the credibility of witnesses, and in reconciling conflicting 
 testimony. 
 
 lb. — Dougan v. Blocher, 1854, 12 H. 28. It is error to submit to a jury a 
 case of equitable ejectment, unless the tacts are disputed. The judge is the 
 chancellor, the province of the jury is to decide disputed facts. 
 
 lb. — Hess V. Calender, 1888, 21 W. N. C. 375. In an action of ejectment 
 involving an equitable title, the judge acts as chancellor, and it is error fbr 
 him to turn the case over to the jury when he, in good conscience, could not 
 do that which the verdict makes possible. 
 
 lb. — Noel V. White, 1860, 1 Wr. 514. If in an equitable ejectment there 
 be evidence of a fact raising an equity, the court may submit the' evidence 
 of the fact to the jury. Such action is analagous to an issue in chancery. 
 
 lb. — Williams v. Bentley, 1857, 5 C. 273. In ejectment to compel specific 
 performance, where evidence has been given of material facts, it is error to 
 withdraw the case from the jury. 
 
 lb. — Moore v. Small, 1852, 7 H. 461. In ejectment to enforce specifically 
 a parol contract lor the purchase of land, the only work for the jury is to 
 
EJECTMENT. 167 
 
 find material facts, the evidence thereof being conflicting, and to pass upon 
 the credibility of witnesses. 
 
 Defence— Intruder.— Lair v. Hunsicker, 1857, 4 C. 115. An intruder 
 cannot set up as a defence to an ejectment that the plaintiff is a mere trus- 
 tee. 
 
 Equity of Redemption— Purchase of— Costs— Street v-. Sprout, 1836, 
 5 W. 273. A purchaser ot the equity of redemption at sheriff's sale, 
 brought ejectment for possession of the mortgaged premises, Pending trial 
 the mortgage was foreclosed. Held that plaintiff could not recover, but 
 should have costs, because at commencement of suit he had a right to the 
 possession. 
 
 Equitable Defence.— Moody v. Fulmer, 1814, 3 Gr. 17. In Pennsylvania 
 an equitable defence may defeat a plaintiff in an ejectment brought on a 
 legal title. 
 
 Equitable Ejectment.— Hathorn v. Bronson, 1827, 16 S. & E. 269. In 
 Pennsylvania equity is law. The equitable action of ejectment forms a 
 considerable portion of our law. 
 
 Evidence. — Henderson v. Hays, 1834, 2 W. 148. Ejectment in this state 
 is the substitute for a bill in chancery, to enforce specifically a contract for 
 the sale of land; the same principles consequently govern the admission of 
 ■evidence, and only a fair and conscienable bargain will be enforced by the 
 •court. 
 
 lb. — Hess V. Calender, 1888, 5 Crum. 138. A parol contract for the sale of 
 land being void at law, in an action of ejectment to specifically enforce such 
 a contract, the case presented must be involved in no doubt and be suffi- 
 cient to move the conscience of the chancellor. 
 
 lb. — Reno V. Moss, 1888, 5 Crum. 49. The burden of proof is on a 
 plaintiff in ejectment whose title rests upon a, parol contract of sale, to 
 show a complete contract and partial performance including possession, as 
 the action is in the nature of a bill for specific performance. 
 
 lb. —Notice— Practice. —Mulliken v. Graham, 1873,22 S. 484. In 
 ejectment by one claiming a prior equitable title, he may give in his evi- 
 dence without proving that the defendant had notice; that part of his case 
 comes in after the defendant has shown himself a purchaser. 
 
 Facts Necessary to Support. — Edwards «. Morgan, 1882, 4 Out. 330. 
 "Where a plaintiff in ejectment seeks to recover on an alleged equitable title, 
 he must prove his case as clearly as though he were a vendee seeking to en- 
 force specifitally a parol conveyance. 
 
 lb. — Piersoll i). Neill, 1869, 13 S. 420. In an equitable ejectment the 
 plaintiff is bound to present a case which would moye a chancellor. 
 
 lb.— Elbert v. O'Neill, 1883, 6 Out. 302. The court should direct a ver- 
 dict for defendant in an equitabte ejectment whenever the plaintiff does not 
 make out a conscienable case. 
 
 Fixtures. — Barclay's Ap., 1880, 32N. 50. Equity will not interpose where 
 the complaint is that defendant has certain fixtures on the land of complain- 
 ant which he claims to be there by right. Such a bill is one to try title, 
 though the right claimed is but an easement. Neither does the bill show 
 any ground for interposition under the head of continuing trespass. 
 
 Fraudulent Conveyance — Judgment Creditors. — Girard Nationat 
 Bank's Ap., 1883, 13 W. N. C. 101. A judgment creditor, who thinks that 
 his debtor has fraudulently conveyed land, must proceed at law to sell the 
 land and try the title by ejectment; he has no remedy in equity. 
 
 Fraud — ^Becission. — Phipps v. Kent, 1880, l Ches. Co. Eep. 158. Where 
 a bill has been filed, asking for a recission of a conveyance on the ground 
 of fraud, a cross-bill asking that the complainant deliver up possession 
 of a part which he still holds, will be dismissed as an ejectment bill and as 
 not growing out of the original bill. 
 
168 EJECTMENT. 
 
 Injunction to Restrain Action of. —Boyd v. Reid, 1880. l Ches. Co- 
 Rep. 191. A bill asking for an injunction against a party about to com- 
 mence ejectment, is itself an ejectment bill and will be dismissed. 
 
 Injunction— Judgment Creditor.— Reeser v. Johnson, 1874, 26 S. 313. 
 A creditor, who had obtained a judgment against an insolvent debtor be- 
 fore the latter was adjudged a bankrupt, but after an attempt was made to 
 assign for creditors, will not be restrained from selling the real estate under 
 his judgment; he may sell and the validity of his judgment vnll then be 
 tried by ejectment. 
 
 Jurisdiction. — Peebles V. Reading, 1822, 8 S. & R. 484. Ejectment is aa 
 equitable action ; in it our courts are governed by the same rules as a court 
 of chancery, and whenever chancery would execute a trust or decree a con- 
 veyance, the courts of this state, by the instrumentality of a jury, would 
 direct a recovery in ejectment. 
 
 lb.— Merrell v. Merrell, 1888, 5 Kulp, 125, 6 Lan. L. Rev. 17. "Where a 
 vendor conveys title to a third person, who subsequently dies, devising the 
 land to another, this vendee may maintain ejectment upon tendering the 
 balance of the purchase money. • The orphans' court has not exclusive 
 jurisdiction. 
 
 Laches. — Remington v. Irwin, 1850, 2 H. 143. Ejectment to compel «pe- 
 eific performance will not succeed if time be of the essence of the contract 
 and the plaintiff be in fault. 
 
 Legal Title.- Vaughn v. Ledyard, C. P. 1880, 8 W. N. C. 267, S. C. 37 Leg. 
 Int. 62, 14 Phila. 176. Equitable ejectment cannot be maintained against one 
 who has received a conveyance of the legal title. 
 
 Mortgagor. — Mellon v. Lemmon, 1886, 43 Leg. Int. 314. The equitable 
 right of a mortgagor may be enforced by ejectment, in which it becomes the 
 duty of the court and jury to calculate the net profits secured by the mort- 
 gagee in possession and apply it to the debt. 
 
 Mortgagor and Mortgagee.— Wells v. Vandyke, 1885, 42 Leg. Int. 345 
 S. C. 16 W. N. C. 151. A mortgagor may bring equitable ejectment against 
 a mortgagee in possession, and is entitled to a conditional verdict. 
 
 lb. — Conclusiveness of Verdict. — Brown v. Nickle, 1847, 6 Barr, 390. 
 One verdict and judgment in ejectment by a mortgagor against his mort- 
 gagee is not conclusive under the Act April 21, 1846, though the only ques- 
 tion tried was whether the mortgage had been satisfied. 
 
 Notice— Act of April 14, 1851.— Roberts v. Orr, 1867, 6 S. 176. Act 
 April 14, 1851, providing for notice by advestisement in ejectment for un- 
 occupied lands, to enforce specifie performance, must be strictly followed 
 and the record must show that the ejectment was for specific performance. 
 
 Object of Bill.— Long's Ap., 1879, 11 N. 171. Where the main object of 
 a bill is to determine title, it is an ejectment bill although it may incident- 
 ally pray for an account. 
 
 Oil Well — Receiver — Dismissal. — Emerson's Ap., 1880, 14 N. 258. 
 Equity will not entertain an ejectment bill for an oil well, merely because 
 .it might appoint a receiver to work the well lor the successful party least 
 the surrounding wells pump the territory dry. 
 
 Parol Contract. — Pennock v. Freeman, 1833, 1 W. 401. An ejectment to 
 enforce specific performance of a parol agreement touching land is a mere 
 substitute for a bill in equity, and a recovery is a matter of grace and not 
 of right. 
 
 Partners— Purchase of Outstanding Title. — Ome v. Kittanning Coal 
 Co., 1886, 18 W. N. C. 226, Where one of two partners in the purchase of 
 outstanding titles to a tract defrauds the other, by obtaining money for pre- 
 tended conveyances, neither he nor the holder of his title under a sheriff's 
 sale can recover in ejectment against the vendee of the other, who holds the 
 legal title and has possession; first, because complainant does not come with. 
 
EJECTMENT. 16i> 
 
 clean hands, and, second, because the holder of an equitable title can only 
 recover by offering to do all that is incumbent on him, which, in this case, 
 would be the repayment to the other partner of all moneys received from 
 him, except one-half of what was actually expended in purchasing title. 
 
 Purchase Money— Part Performance— Burden of Proof —Walker v. 
 Prance, 1886, 43 Leg. Int. 270. In an action of ejectment to recover bal- 
 ance of purchase money due, if the defendant show a partial failure to per- 
 form on the part of plaintiff, the burden is on the latter to show the imma- 
 teriality of the part not performed. 
 
 Bight of Way— Multiplicity of Suits — Jurisdiction. —Washburn's 
 Ap., 1884, 9 Out. 480. Equity has no jurisdiction to settle disputes as to 
 legal titles or rights of way, although the bill avers that a multiplicity of 
 suits may result. 
 
 Specific Performance or Enforcement of Trust.^Church v. Ruland, 
 1870, 14 S. 432. Ejectment may still be employed as a remedy to compel 
 specific performance of a contract for the sale of land, or to enforce a trust in 
 regard to it. 
 
 Tenant in Common— Mining Bight. — North Penna. Coal Co. v. Snow- 
 den, 1862, 6 Wr. 488. A bill, by an alleged tenant in common, praying 
 that he be reinstated in certain mining rights, will not be entertained by 
 equity. Because, first, his right must be established at law, and, second, it 
 is but an "ejectment bill." 
 
 Title Papers— Order to File.— Treftz v. King, 1873, 24 S. 350. After a 
 court of law has given judgment for plaintiff in an equitable ejectment, it 
 has no power to order the defendant to file the title papers and convey to 
 plaiutifi. Such a remedy belongs exclusively to a court of equity. 
 
 Trustee— Conveyance of Title. — Caldwell v. Lowden, 1869. 16 Pitts. 
 Leg. J. Pt. II, p. 26. Where equity would compel a trustee to convey the 
 legal title a writ in ejectment is sufficient demand. 
 
 lb.— Defence.— Hunt v. Crawford, 1832, 3 P. & W. 426. A trustee may 
 maintain ejectment, and a wrongdoer cannot defend by setting up the title 
 of the cestui que trust. 
 
 lb. — Brolaskey v. McClain, 1869, 11 S. 146. A trustee of real estate may 
 maintain ejectment against any but the cestui que trust. 
 
 II. By Vendor. 
 
 Balance of Purchase Money.— Mitchell v. De Eoche, 1791 l Y. 12 
 Where a vendor has delivered possession on part payment of the purchase 
 money, he can enforce payment of the balance by an action of ejectment. 
 
 Bond. — Megargel v. Saul, 1837, 3 Wh. 19. A vendor who has executed a 
 deed and taken a bond for the purchase money, cannot maintain ejectment 
 against the vendee. 
 
 ■ Burden of Proof. — Hawk v. Greensweig, 1845, 2 Barr, 295. Where a 
 vendor brings ejectment on his legal title, and the vendee defends under the 
 articles of sale, the case is considered as a bill in equity to cancel the agree- 
 ment, and the plaintiff, not the defendant, is the one to show facts which 
 would move a chancellor. 
 
 Decedents' Estates — Parties. — Thompson v. .Adams, 1867, 5 S. 479. 
 Equitable ejectment to enforce payment of purchase money, should be 
 against the heirs of a deceased vendee, not against his administrator. 
 
 Defence — Negligence. — Parcell v. Grosser, 1885, 43 Leg. Int. 77. In eject- 
 ment by a vendor to enforce payment of the balance of purchase money, it 
 is a good defence to show that the vendor, who still held the policies of in- 
 surance, acted so negligently as to allow them to lapse. 
 
170 EJECTMENT. 
 
 lb. — Outstanding Title. — Congregation V. Miles, 1835, 4 W. 146. M 
 ■vendee in possession, under articles of agreement, cannot set up an outstand- 
 ing title as a defence to an action of ejectment to compel the payment of the 
 purchase money. 
 
 H) — Title. — Eussell v. Baughman, 1880, 13 N. 400. A grantee of mineral 
 rights cannot set up an equitable defence to an action of ejectment, when 
 for fifteen years he has neglected to perform his part of the contract, and so 
 complete his title. 
 
 Evidence of Improvements. — Carmalt v. Piatt, 1838, 7 W. 318. In 
 ejectment by the vendor, to enforce the specific performance of the articles on 
 the part of the defendant, evidence by defendant that he has made improve- 
 ments since taking possession is irrelevant, and should not be admitted. 
 
 Judgment between Acts of May 5, 1841, and April 21, 1846.— 
 Waters v. Bates, 1863, 8 Wr. 473. A judgment in an equitable ejectment, 
 obtained between the Acts of May 5, 1841, and April 31, 1846, is conclusive 
 against the vendee who has not proceeded under the later Act. 
 
 Judgment Against One of Several Vendees. — Arnold v. Cessna, 
 1855, 1 C. 34. A judgment in an equitable ejectment against one of two 
 vendees, under articles, will have no effect upon the equitable title of the 
 one not sued. 
 
 Mortgaged Premises. — Thompson v. Adams, 1867, 5 S. 479. A contracted 
 to buy land of B. The land was subject to a mortgage, and on foreclosure A. 
 bought the land. B. then brought ejectment to compel the payment of the 
 balance due him. Seld ejectment would not lie, and if he could recover at 
 all, it mrust be on the ground that the sheriff's deed executed his contract 
 and he could sue on that. 
 
 Purchase Money — Facts Necessary. — ^Williams v. Irwin, 1881, 3 Out 
 37. Where a vendor brings equitable ejectment to collect the purchase 
 money against one not his vendee, he must show that the defendant claims 
 under the vendee. 
 
 lb. — Conclusiveness of Verdict. — -Treaster v. Fleisher, 1844, 7 W. & S. 
 137. An equitable ejectment brought to enforce payment of the purchase 
 money by a vendor against a vendee, is not counted as one of the two eject- 
 ments necessary to conclusively decide the title (Act April 13, 1807) between 
 the parties who claim under different warrants. 
 
 lb.— Tender of Deed.^mith v. Webster, 1834, 2 W. 478. Where a 
 vendor brings equitable ejectment in order to recover the purchase money 
 due from his vendee, he need not prove a previous tender of a deed ; but if he 
 sues directly for the purchase money, such previous tender is necessary to 
 his recovery. 
 
 lb.— Title.— Stokley v. Trout, 1834, 3 W. 163. Under an action of eject- 
 ment by a vendor, under articles to compel the payment of purchase money, 
 it is not essential to the plaintiff's right to recover that he should first show 
 a perfect title to the land in himself ; it lies upon the defendant to show a 
 defect in his title. 
 
 Right to Bring Action.— Wheeling E. E. v. Gourley, 1881, 3 Out. 171. 
 Equitable ejectment cannot be brought by a vendor who has neither posses- 
 sion nor the right of possession. 
 
 Unpaid Purchase Money— Interest.— Moyer «. Garret, 1880, 15 N. 37K. 
 A vendor who has not parted with the legal title, may maintain an action 
 of ejectment to collect interest due on the unpaid purchase money, though 
 the lattter is not due. 
 
 III. By Vendee. 
 
 Non-performance.— Hill v. Oliphant, 1861, 5 Wr. 364. In ejectment by 
 
EJECTMENl. 171 
 
 a vejndee nnder an equitable title plaintiff recovered a conditional vesdjct, 
 but not- perfoiming the condition, judgment was entered for defendants 
 ^Wconclusive. 
 
 Trust— Notice.— Beck v. TThrich, 1851, 4 H. 499. One who has partially 
 completed the purchase of land subject to a trust, before being affected with 
 notice of the same and who afterwards completes the purchase, may, in an 
 equitable action of ejectment brought by the cestui que trust, defend as to so 
 much purchase money as was paid by him before notice of the trust, unless 
 he has been fully compensated by the rents and profits. 
 
 Wrongful Ouster. — D' Arras V. Keyser, 1856, 2 C. 249. ' An equitable 
 owner of land under articles who has has been wrongfully ousted by bis 
 vendor, may bring ejectment without tendering the balance of the purcbase 
 money. The parties are then restored to their contract relation, and aU of 
 them mutnal remedies remain. 
 
 IV. Tender. 
 
 A. In General. 
 
 B. By Vendoe. 
 
 C. By Vendee. 
 
 A, In QeneraJU 
 
 By Defendant — Costs and Damages. — Cadwalader «. Berkheiser, 1858, 
 8 C 43. Where a defendant in ejectment gives in evidence an agreement 
 to sell the property to him, and pays the purchase money into conrtj the 
 plaintiff is nevertheless entitled to a nominal verdict for damages and his 
 costs. 
 
 By PlaintiflF.— Vincent v. Huff, 1818, 4 S. & E. 298. A plaintiff in eqnitr 
 able ejectement cannot recover unless he has paid or tendered the purchaser 
 money. 
 
 lb.— Legal Title — Articles of Agreement.— Devling v. Williamsoa, 
 1840, 9 W. 311. Where an action of ejectment is brougM on a legal title^ 
 and defence is taken under articles of agreement for purchase, the fact that 
 plaintiff has not tendered a deed is not essential. 
 
 Ibi — ^Improvements. ^Moody v. Vandyke, 1811, 4 Bin. 31. It is not 
 necessary before bringing ejectment for the plaintiff to tender the defendant 
 in possession the amount or value of his equitable claim for improvementSj 
 etc. It is better done at the trial, for then only can the exact amount be as- 
 certained. 
 
 Redeeming Mortgage. — Eshbach v. Zimmerman, 1845, 2 Ban, 313. 
 Where an ejectment is in the nature of a bill in chancery to redeem a mort- 
 gage, DO previous tender is necessary. 
 
 B. By Vendor. 
 
 Fraudulent Purchase.— McKennan v. Pry, 1837, 6 W. 138. In 
 ejectment against one who purchased property at a sheriff's sale, under 
 value, by fraudulently circulating the report that he was bidding for the 
 benefit of those now plaintiffs, it is not necessary, first, to tender the money 
 pai<i by him, when the plaintiffs are charging him with fraud, and not as a 
 trustee. 
 
172 EJECTMENT. 
 
 Set-Off. —Heft V. McGill, 1846, 3 Barr, 256. A vendee, under articles, 
 being improperly dispossessed, may bring ejectment without tendering the 
 balance due, and may set off the profits of the estate received by the vendor 
 against that amount. 
 
 C. By Vendee. 
 
 Fraudulent Sale. — Baum v. Dubois, 1862, 7 Wr. 260. Where a vendor, 
 nnder articles of agreement, has subsequently sold and conveyed the land to 
 another, the first vendee is not bound to tender the purchase money before 
 bringing ejectment for the land. 
 
 Specific Performance. — Hall v. Holmes, 1846, 4 Barr, 251. In equita- 
 ble ejectment, to enforce performance by vendee, under articles, a tender of 
 a deed before suit brought, is not necessary. 
 
 v. Of tlie Verdict and Judgrment. 
 
 A. When CoNOLtrsiVE. 
 
 B. Peacticb. 
 
 A. When Conclxisive. 
 
 Act of April 21, 1846— Application of.— Paull v. Oliphant, 1850, 2 H. 
 342. Act April 21, 1846, making judgment on one conditional verdict in 
 ejectment conclusive, applies only to actions brought to enforce the contract, 
 and not to one brought after the purchase money has been paid. 
 
 lb.— Lykens v. Tower, 1856, 3 C. 462. Act April 21, 1846, makes one 
 judgment in ejectment conclusive, only where time becomes of essence in the 
 finding of the jury. 
 
 Consideration— Absolute Verdict.— Patterson v. Wilson, 1852, 7 H. 
 380. Where a consideration for the sale of land is the performance of work 
 by the vendee, the latter is entitled to an absolute verdict on bringing an 
 ejectment for the laud after he has offered to perform the work, and his offer 
 has been refused. 
 
 Equitable Title.— Treftz v. Pitts, 1873, 24 S. 343. One judgment founded 
 npon an equitable title is as conclusive as a decree in equity; and on a second 
 ejectment being brought, it is competent to show by parol evidence that the 
 first was on an equitable title. 
 
 lb. — Meyers v. Hill, 1863, 10 Wr. 9. One verdict and judgment in eject- 
 ment, to compel specific performance, is conclusively only when the equitable 
 title was directly in issue; whether it was or not may be afterwards shown 
 by parol evidence, if the record does not show it. 
 
 lb. — Peterman v. Huling, 1858, 7 C. 432. An ejectment to try an equita- 
 ble title is in the nature of a bill in equity, and one verdict and judgment 
 thereon is conclusive. 
 
 Incomplete Title. — Winpenny V. Winpenny, 1850, 11 N. 440. An action 
 of ejectment between a vendor and vendee, in which the latter relies on an^ 
 incomplete title derived from the former, is equivalent to a bill in equity, 
 and one verdict and judgment thereon is conclusive. 
 
 One Verdict and Judgment. — Stevens v. Church, C. P. Luzerne, 1871, 
 28 Leg. Int. ,260, S. C. 8 Phila. 642. One verdict and judgment is conclusive 
 in equitable ejectment. 
 
EJECTMENT. 173 
 
 Specific Performance.— Coughanour v. Bloodgood, 1856, 3 C. 285. A 
 verdict in ejectment, to enforce specific performance. of a contract of sale, is 
 in the nature of a decree in equity, and prior to Act May 5, 1841, was con- 
 clusive, and that Act did not affect judgments obtained prior to its passage. 
 
 lb.— Seitzinger v. Eidgway, 1840, 9 W. 496. Where ejectment is brought 
 to compel specific execution of a contract for the sale of land, one verdict 
 and judgment thereon is conclusive. 
 
 JS. Practice, 
 
 Conditional Verdict— Biddle v. Moore, 1846, 3 Barr, 161. An equitable 
 ejectment is in the nature of a bill in equity, and substantial and complete 
 justice will be done by means of a conditional verdict. 
 
 lb.— Coolbaugh v. Pierce, 1822, 8 S. & R. 418. In this state an action of 
 ejectment approaches very near to a bill of equity, and the verdict of a jury 
 imposing conditions on the party in whose favour it is rendered, performs 
 the office, though imperfectly, of the decree. <■ 
 
 lb. — Todd V. Bfoutz, 1801, 3 Y. 177. In ejectment to enforce specific per- 
 formance of articles of agreement for the sale of land, the court will do 
 justice by means of a conditional verdict. The English authorities are not 
 binding here on account of the rapid advance here of the price of real estate. 
 
 lb.— Absolute.— Arnold V. Fitzgerald, 1874, 26 S. 385. After a condi- 
 tional verdict in equitable ejectment has become absolute and the plaintiff 
 again recovers possession, there can be no further action on the contract of 
 sale. 
 
 lb.— Advancing Money.— Dickey v. McCullough, 1841, 2 W. & S. 88. 
 An ejectment against one who had agreed to advance the money to buy and 
 run property and to reconvey half to plaintiff on being reimbursed by the 
 profits of the land, is in the nature of a hill in equity and the court will 
 settle the account between the parties and enforce its decree by a condi- 
 tional verdict. 
 
 lb.— Oontuiuation of Equity.— Boyd v. McNaughton, 1865, 1 S. 225. 
 After a conditional verdict has been rendered in ejectment by the vendor to 
 compel specific performance, the vendee's equity continues as long as the 
 vendor acknowledges him his debtor, though the time limited in the verdict 
 has expired. 
 
 lb.— Costs.- Davis v. Coyle, C. P. Venango, 1870, 27 Leg. Int. 70, S. C. 
 7 Phila. 671. "Where costs are not a specific part of a conditional verdict in 
 ejectment, a writ of Jidbere facias possessionem will not issue on their non- 
 payment, if the verdict has been complied with. 
 
 lb.— Estate Held on Condition. — Bear v. Whisler, 1838, 7 w. 144. 
 Where an estate is held upon condition, the condition may be enforced by 
 means of an action of ejectment and a conditional verdict. 
 
 lb.— Mortgage.— Knanb V. Essick, 1834 2 W. 282. Where land is 
 subject to a mortgage conditioned for the payment of an annuity, a sheriff's 
 sale does not divest the lien of the mortgage. The proper mode, however, 
 of enforcing such a mortgage is ejectment in which the court will do equity 
 by means of a conditional verdict. 
 
 lb. — ^Parol Contract. — Irvine v. Bull, 1835, 4 W. 287. If a verbai con- 
 tract for the purchase and sale of land has not been partly executed, a con- 
 'ditional verdict in an action to compel specific performance is erroneous and 
 will be set aside. 
 
 lb. — ^Purchase-Money — Instalment. — Hamm v. Beaver, 1857, l Gr. 448. 
 A recovery in ejectment brought to enforce payment of an instalment of pur- 
 chase-money is conditioned on payment of that instalment only, and that 
 
174 EJECTMENT — ELECTION. 
 
 faeing done the money is released, but not the whole title unless tIie#nT- 
 chase-money be paid in full. 
 
 lb. — ^Ib. — Thompson v. Carpenter, 1846, 4 Barr, 132. A vendor of real 
 estate under articles stipulating for the payment of the purchase money by 
 instalments, may make use of the legal title to compel performance of (the 
 ariiioles by an ejectment and conditional verdict. 
 
 lb.— Title.— Mathers v. Akewright, 1809, 2 Bin. 93. If a plaintiff in 
 ejectment is bound in equity to make title to defendant for part of the 
 premises, the court will do equity by entering a verdict for plaintiff and 
 granting a stay of execution till defendant's title be secured. 
 
 lb.— lb.— Failure to Make.— Erwin «. Myers, 1863, 10 Wr. K. 96. In 
 equitable ejectment when the defendant has shown that plaintiff cannot 
 make title to the whole tract the former may elect to take title to the part 
 rraaaining on payment pro tanto, or to rescind the contract and in either 
 event the verdict will be molded to include Improvements and waste if the 
 defendant has had possession; in fine to do equity. 
 
 lb.- When Decreed.— Webster v. Webster, 1866, 3 S. 161. The moment 
 that an equity appears in an action of ejectment the case assumes the quality 
 of an equity proceeding and a conditional verdict may be directed. 
 
 BISECTION. 
 
 I. GENfeEALLY. 
 
 II. What Constitutes an. 
 III. When it may be Made. 
 rv. When it can be Compelled. 
 
 I. Generally. 
 
 Dower— Devise in Lieu of— Hamilton v. Buckwalter, 1798, 2 Y. 389. 
 Derise to a wife during widowhood is presumed to be in lieu ot dower. 
 
 Judgment after Election.— Brownfield v. Mackey, 1856, 3 C. 320. A 
 judgment entered against one after he was elected to take land, instead of 
 the proceeds of it, as devised to him, binds the land. 
 
 Land Directed to be Sold — Purchaser. — Simpson v. Kelso, 1839, 8 W. 
 247. Land directed by a testator to be sold is to be considered as money 
 and if one entitled thereto elects to take the same as land he is a purchaser 
 
 Land Devised to be Sold — Devisee's Debts. — Stuck v. Mackey, 1842, 4 
 W. & S. 192. Land devised to be sold and the proceeds given to the chil- 
 dren, is not subject to the debts of the children until they elect to take as 
 land. 
 
 Legacy to Debtor.— Zimmerman V. Zimmerman, 1864, 11 Wr. 378. The 
 doctrine of election does not apply to the case where a will providing for a 
 legacy to A. recites in another clause that A. is indebted to the estate in a 
 certain sum, and directs that this debt be paid. 
 
 Notice— Defeating Title.— McAteer v. McMnllen, 1845, 2 Barr, 32. One 
 claiming under a devisee, has notice of a subsequent devise in the same will, ' 
 which, by election, might defeat the title of the first devisee. 
 
 Reasonable Time.— Hoke ». Leman, 1822, 8 S. & E. 248. One who has 
 a right of election, upon his coming ot age, should have a reasonable time in 
 which to execute it. One year is such reasonable time. 
 
BLBCTION. 175 
 
 Taking Against Will— Compensation — Trustee. — Lewis d. Lewis, 
 
 1850, 1 H. 79. A devisee who takes a tract against a will, thereby disap- 
 pointing other devisees, must make compensation to them out of the land de- 
 Tised to himself. And if this land is of less value than that taken from the 
 disappointed devisees, he will be held as a trustee for them. 
 
 Widow Not Affected by Conversion Under Will.— Hoover v. Lan- 
 dis, 1874, 26 S. 354. A widow who elects to take under the will, takes the 
 property as it exists dehors the will, and is not affected by a conversion 
 which the provisions of the will work. 
 
 lb.— Withdrawing Election— Discretion of Judge.— Barry's Est., o. 
 C„ 1880, 37 Leg. Int. 62. Althou h a widow has given notice of her intention 
 to take against the will, it is within the discretion of the auditing judge to 
 permit her to withdraw her election at any time before adjudication. 
 
 lb. — Sequestration— Compensation.— Sandoe's Ap., 1870, 15 s. 314. 
 Where a widow elects to take her thirds, the legacies and devises given to 
 her are sequestered for the benefit of those disappointed by her election. 
 
 II. ^Wbat Constitutes An. 
 
 Acceptance of Husband's Estate— Land Conveyed in Husband's 
 Lifetime. — Leinaweaver v. Stoever, 1841, 1 W. & S. 160. The acceptance by 
 a widow of her share of her deceased husband's estate is not an election such 
 as will bar her from recovering dower out of land aliened by her husband in 
 his lifetime without her joinder. 
 
 Acceptance of Benefits. — Ripple v. Eipple, 1829, 1 E. 386. One having 
 accepted a benefit under an instrument which he might have avoided, is 
 bound by his election. 
 
 lb. — Fulton V. Moore, 1854, 1 C. 468. One taking a benefit under a will 
 elects to aifirm it entire. 
 
 lb. — Preston v. Jones, 1848, 9 Barr, 456. Acceptance of a benefit, under 
 a will, is an election to affirm the whole instrument. 
 
 Bringing Action of Dower.— Wilson v. Hamilton, 1823, 9 S. & R. 424. 
 Bringing an action of dower constitutes an election by the widow, and is 
 final. 
 
 Charge Upon Property Devised — Beneficiary's Request.— Wise v. 
 Rhodes, 1877, 3 N. 402. A wife's will gave property to her sister, charged 
 with the maintenance of testatrix's hubband, who was old and feeble. 'The 
 latter, with a full knowledge of the property, requested the sister to take pos- 
 session, which she did, and discharged her duties for several months. Held, 
 that he had made his election. 
 
 Contract by Widow to Sell Devised Lands.— Elbert v. O'Neil, 1883, 
 6 Out. 302. The fact that a widow has entered into a contract of sale of land 
 devised to her, which contract is not entorceable in equity, does not consti- 
 tute an election to take under the will. 
 
 Conveyance of Legatee's Interest. — Beal v. Stehley, 1853, 9 H. 376. 
 Where the husband of one of three legatees entitled to the proceeds of land 
 directed to be sold, took conveyances of their interests from the other two 
 legatees, the transaction amounts to an election by all to take the property 
 as land, and the husband, therefore, holds two-thirds absolutely and one- 
 third for life. 
 
 Declaration of Intention. — Davis v. Davis, 1863, 10 Wr. 342. Mere 
 declarations of intention will not constitute an election. 
 
 Devise on Condition.— Frederick v. Gray, 1823, 10 S. & R. 182. If one 
 to whom land is devised, on condition of liis releasing a debt due by the tes- 
 tator, receive the debt, the election is complete, and his title to the property 
 is gone. 
 
176 ELECTION. 
 
 Estoppel — Land Devised and Payment Directed. — Thompson ». 
 Thompson, 1847, 7 Barr, 78. Plaintiflfs property was devised to defendant, 
 the will also directing defendant to pay plaintiff $150. Defendant took pos- 
 session, and, after twenty years, conveyed the land, plaintiff joining in the 
 deed. Held, that plaintiff was not hy this estopped from claiming the $150. 
 
 lb.— Representations.— McPherson v. Cuuliff, 1824, 11 S. & E. 422. 
 One who has represented himself to be entitled to property by descent, and 
 thereupon disposes of it, cannot afterwards purchase an outstanding title, 
 deny his heirship, and enforce this latter title against the former one. 
 
 lb .—Interest in Business.— Little's Est., O. C. 1877, 4 W, N. C. 404. 
 One who has taken under a will is not esfopped Irom claiming a half interest 
 in a business, which business the testator bequeaths in his vrill. 
 
 lb.— Knowledge of Facts.— Maple v. Kusart, 1866, 3 S. 348. A hus- 
 band by will directed his wife's land to sold and the proceeds divided, this 
 was done, the wife requesting one of the children to buy it in, and receiving 
 part of the price, though not an election, perhaps, because she was ignorant 
 of her rights, yet it was a plain case of estoppel. 
 
 Evidence— Widow— Knowledge.— Rhode's Est. O. C. 1875, 2 W. N. C. 
 ]88, S. C. 32 Leg. Int. 440, 11 Phila. 103. A vridow's election must be in- 
 telligently made; to establish against her an election by matter in pais there 
 must be conclusive proof. 
 
 Evidence of Election.— Sterr's Est.. O. C. 1879, 7 W. N. C. 35, S. C. 36 
 Leg. Int. 137, 13 Phila. 212. An election may be evidenced by matters in 
 pais. 
 
 lb. — Beatty v. Byers, 1851, 6 H. 105. Lapse of time is no evidence of 
 election. It must be made by an unequivocal act and by all interested. 
 
 lb. — Cox V. Rogers, 1874, 27 S. 160. A widow who was also executrix 
 included in her administration account the item ' ' By balance retained by 
 executrix according to the will," Beld to be unequivocal evidence of an 
 election. 
 
 lb.— Deeds.— Rice v. Bixler, 1841, 1 W. & S. 445. When a testator de- 
 vises land to his executor to be sold, and the proceeds given to his children, 
 the children have such an interest as to justify them in compromising a 
 boundary, and where they unite in conveying the land to the executor, their 
 deeds are evidence of their election to take as land. 
 
 Full Knowledge of Facts.— Duncan v. Duncan, 1798, 2 Y. 302. An 
 election is only determined by explicit acts after a full knowledge of the 
 facts and of the right to choose. 
 
 In Pais. — Dickinson v. Dickinson, 1869, 11 S. 401. An election in pais 
 must be clear and positive to prevent a person from making it in the regular 
 and proper form. 
 
 Lapse of Seventeen Years. — Bradfords v. Kents, 1862, 7 Wr. 474. 
 Where a widow, being also executrix, enjoyed all the advantages the will 
 gave her for seventeen years, she was held to have made her election and to 
 be barred of dower. 
 
 Letter by Widow to Executor.— Greiner's Ap., 1883, 7 Out. 89. A 
 letter addressed to the executor by a widow, declining to take under the 
 will and electing to take under the intestate laws, is a valid election and her 
 rights vest instamter. 
 
 Mere Assent. — Kreiser's Ap., 1871, 19 S. 194. A wife cannot elect to 
 take under the will before her husband dies, unless it be shown that she 
 had full knowledge of the value of the several interests, and that there was 
 no inequality. Nor is an election after the husband's death established by 
 a mere assent, or by receiving a few things under the will before all the cir- 
 cumstances are known. 
 
 Mortgage Upon Land Taken as Personalty. — Sterr's Est., O. C, 1879 
 36 Leg. Int. 226. One who borrows money and gives a mortgage upon 
 land which comes to him as personalty thereby elects to treat it as land. 
 
ELECTION. 177 
 
 Receipt— Estoppel.— Fenstermacher v. Moyer, 1860, 11 C. 354. A re- 
 ceipt given by a legatee to executors " for my inheritance," estops him from 
 claiming against the will. 
 
 Unequivocal Action.— Evans' Ap., 1869, 13 S. 183. An election to take 
 a.s land which the testator has directed should be sold must be by an un- 
 equivocal act in which all interested join. 
 
 Use of Property.— Norris' Est., O. C. Allegheny, 1880, 27 Pitts. L. J. 
 234. Where a widow receives property specifically bequeathed to her with 
 a knowledge of her rights, and uses the same for four years, she is bound by 
 her election. 
 
 Widow Taking Under Will— Other Property.— Carmen's Est., o. C, 
 1881, 11 W. N. C. 95. A widow who takes under a will is not barred from 
 claiming her share under the intestate laws in property not disposed of by 
 the will. 
 
 Widow's Time— Receipt for Interest.— Anderson's Ap., 1860, 12 C. 
 476. Under Act March 29, 1832, a widow has a year in which to make her 
 election. An election in pais can only be made out by unequivocal acts 
 made with the knowledge of her rights. Giving a receipt for |150 " on ac- 
 count of interest from the estate of my deceased husband," does not amount 
 to an election. 
 
 Widow— Irregularity— Estoppel.— Light v. Light, 1853, 9 H. 407. An 
 election by a widow to take under the will, though not made in the statutary 
 way, may, in the absence of misrepresentation, bind her as an estoppel. 
 
 III. ^Wheii it may be Made. 
 
 Conveyance of Part of Premises— Specific Performance — Compen- 
 sation. — Brybee's Ap., 1885, 43 Leg. Int. 47. Where on account of a transfer 
 of a portionof disputed premises to a ftojMt^de purchaser, specific performance 
 becomes impossible, the court will allow the complainant to elect between 
 taking compensation tor the whole tract or to take specifically the part in 
 conveyance and compensation for the balance. 
 
 Devise of Money to be Invested in Land. — Boss v. Drake, 1 Wr. 373. 
 A bequest of seven hundred dollars to a son which, if the son should wish 
 the executors should invest in land, becomes, on such an election being 
 made, a devise of land. 
 
 Estoppel Devise by Widow to Husband's Heirs.— Gable v. Daub, 1861, 
 4 Wr. 217 A vndow sold land which by law belonged to the heirs of her 
 husband, by her will these same heirs were entitled to a share of Jier estate. 
 Held that this election to take under her will, estopped them from contesting 
 the title conveyed by her. 
 
 Husband for Wife.— Shallenberger v. Ashworth, 1855, 1 C. 152. A hus- 
 band may exercise the right of election for his wife, where the proceeds of 
 land are vpilled her. 
 
 No Election— Law Favors Will.— Kennedy v. Johnston, 1870, 15 S. 451. 
 In the case of no election by a widow, the leaning of the law is to the will. 
 If the widow be insane her committee cannot elect for her. It must be 
 done by the court having jurisdiction of her. 
 
 One of Several Distributees— Dower.— Willing v. Peters, 1847, 7 Barr, 
 287. One of several distributees of the proceeds of land directed to be sold, 
 cannot elect to take as land so as to give his widow a right of dower. 
 
 Proceeds of Real Estate— Bequest.— Smith v. Starr, 1837, 3 Whart. 62. 
 Those to whom the proceeds of the sale of real estate is bequeathed, can 
 elect to take the real estate. 
 
 Purchase by Attorney Under Client's Judgment.— Eshleman v. Lewis, 
 
 12— EQUITY. 
 
178 ELECTION. 
 
 IS'jS, 13 Wr. 410. Where an attorney purchases land under ci judgment of 
 his client, the latter can elect to treat him as a trustee or a purchaser. 
 
 Recital in Will— Estoppel. — Burford v. Burford, 1857, 5 C. 221. A 
 recital in a will that " Blackacre has been given to A.," estops one claiming 
 under the will from disputing A's title. 
 
 Widow's Right— Personal.— Crozier's Ap., 1879, 9 N. 384. The request 
 given to a widow to elect to take against her husband's will is a mere per- 
 sonal right and cannot after her death be exercised by her representatives. 
 
 j IV. "Wtien it can be Compelled. 
 
 Derivative Interests. — Lewis !). Lewis, 1859, 9C. 66. A testator devised 
 •in estate he held in tail to a younger son, and an estate he held in fee to 
 the eldest son, with remainder to his children. The latter elected to take 
 against the will. On his death his children claimed both estates on the 
 ground that the doctrine of election does not extend to derivate interests, 
 Held, they also must elect. 
 
 Devise Inconsistent with Dower.— Duncan v. Duncan, 1798, 2 Y. 302. 
 Duncan v. Duncan, 1798, 2 Y. 302. A devise to a widow which is incon- 
 sistent with dower, forces her to elect between the will and her legal 
 dower. Her election must be unequivocally and knowingly exercised; 
 merely receiving specific articles devised her does not bind her. 
 
 Express or Clearly Implied Intention Necessary.— Little's Ap., 1879, 
 36 Leg. Int. 85. A party will not be put to an election under a will, unless 
 snch action be clearly expressed or necessarily implied ; when this is the 
 case he must elect or otherwise make compensation out of what is given to 
 him. 
 
 ' lb. — Penna. Co. v. Stokes, 1869, 11 S. 136. A party will only be put to an 
 election when the intention of the testator to dispose of that which is not 
 his own, is either clearly expressed or necessarily implied. 
 
 lb. — Stoke's Est., 1869, 11 S. 136. To raise an election the instrument 
 must show expressly or by necessary implication a clear intention on the 
 part of the maker to dispose of that which is not his own. 
 
 invalid Will— Jurisdiction— Trust.— Vandyke's Ap.,1869, lo;s. 481. A 
 father gave his personal property to his daughters and his real property, 
 which was in New Jersey, to his sons. The will was invalid according to 
 New Jersey law. Held, that the daughters were put to an election, also that 
 equity had j urisdiction on the ground of a trust. 
 
 Legacy and After-Acquired Real Estate. — Philadelphia r. Davis, 1836, 
 1 Whart. 490. A legatee is not bound to elect between his legacy and after- 
 acquired real estate, which would come to him under the intestate acts. 
 They are not inconsistent rights. 
 
 Trustee and Cestui Que Trust. — Penna. Ins. Co. v. Stokes, 1867, 1 
 Brews. 486. A trustee may bring his cestui que trust into equity and compel 
 him to make an election to which he is put in a will. 
 
 Will Must Raise the Election.— Miller v. Springer, 1871, 20 S. 269. A 
 case of election must be raised by the will itself; outside evidence is not ad- 
 missible. 
 
 Specific Performance.— Findlay v. Keim, 1869, 12 S. 112. In modern 
 practice chancery will generally compel a party seeking specific performance, 
 to elect between his action at law and his suit in equity; this, however, is a 
 rule of discretion, not a hard rule of law. An action of covenant on an 
 agreement to sell land, and an action of ejectment for the land, are not in- 
 consistent remedies between which a plaiutifl must elect. 
 
ELECTIONS— EMINENT DOMAIN. 179 
 
 EI^ECTIOJ«S. 
 
 False Certificate— Injunction.— Miller v. Lowry, C. P., 1863, 20 Leg. 
 Int. 5, S. C. 5 Phila. 202. Equity will restrain one from making use of a 
 false certificate of election in derogation of the rights of another. 
 
 Injunction.— Lavelle ». Phillips, C. P. Luzerne, 1881, 3 L. T. N. S. 169. 
 Although the right to office cannot be tried by injunction, yet a claimant 
 thereto may be restrained from acting contrary to law, an^ prejudicial to 
 the interests of the community. 
 
 Jurisdiction— Constitutionality —Smith v. McCarthy, 1867, 6 S. 359. 
 A bill was filed to prevent the holding of an election, on the ground that the 
 act authorizing it was unconstitutional. Held that equity had no jurisdic- 
 tion. 
 
 lb. — Contested Election. — Hulseman v. Eems, 1861, 5 Wr. 396. In the 
 absence of fraud on the part of the judge who canvasses the election returns, 
 equity will not interfere to annual certificates of election granted by him, 
 but the case must be brought by the forms of a contested election in the 
 ordinary way. 
 
 lb— Returns.— Lawrence v. Knight, C. P. 1861, 18 Leg. Int. 364, S. C. 
 4 Phila. 355. Equity has no power to restrain the prothonotary from trans- 
 mitting election returns regular on their face to the canvassing judges. 
 
 Of&cer Elected — Injunction. — Ewing v. Thompson, 1862, 7 Wr. 372. An 
 officer under a commission issued after a decision of the election in his favor 
 in the quarter sessions, u certiorari having issued, was restrained from ac- 
 tion by preliminary injunction, but on motion (p. 384) the injunction was 
 ■ dissolved, the writ being quashed. 
 
 EMINENT DOMAIN. 
 
 Compensation— Injunction. — Watson v. McKelvey, C. p. Allegheny, 
 1880, 27 Pitts. L. J. 225. Equity will enjoin the taking of land by eminent 
 domain until compensation is made. 
 
 Consequential Injury— Erection of Poles— Injunction.— Berlew v. 
 Electric Illuminating Co. , C. P. Northumberland, 1886, 1 Pa. Co. C. E. 651. 
 Although it appears that the erection of poles in front of private property is 
 an injury, and that no compensation has been made or security entered by 
 the corporation exercising such right, a preliminary injunction will not be 
 granted restraining such work, since the injury is only consequential. 
 
 Execution — Public Real Estate — Injunction. — Moore v. Barrett, D. C. 
 1867, 24 Leg. Int. 61, S. C. 6 Phila. 204. Equity will restrain the issuing 
 of execution against real estate taken for public use. 
 
 Injunction — Supersedeas — Bond — Practice. — New Brighton R. R., in 
 re, C. P. Beaver, 1882, 30 Pitts. L. J. 22. An injunction to restrain a rail- 
 road from constructing its line through a certain tract is no supersedeas to 
 proceedings in the common pleas connected with the filing and approval ol 
 a bond. 
 
 Irreparable Injury— Injunction.— Unangst's Ap., 1867, 5 S. 128. A 
 railroad obtaining a concession to enter on lands, on condition of not inter- 
 fering with a, particular right, an injury to which would be in its nature 
 irreparable, will be restrained from entering in a manner destructive ot the 
 right. 
 
 Mortgaged Property. — Patterson's Case, C. P. Allegheny, 1879, 27 Pitts. 
 L. J. 73. When mortgaged property is taken under the right jof eminent 
 domain, the mortgagee is entitled to the damages to the extent of his debt. 
 
 Public Officers — ^Injunction. — Heston c. Canal Commissioners, 1850, 
 
180 EMINENT DOMAIN — EQUITABLE DEFENCE. 
 
 Bright. 183, S. C. 1 Phila. 29, 7 Leg. Int. 14. An injunction will not be granted 
 against public oflBcers acting under a statute, to restrain tbem from taking 
 private property for public uses until suitable compensation be made, where 
 the statute provides that the damages shall be assessed. 
 
 EQUITABLE ACTIONS. 
 
 Case. — Greenwalt v. Homer, 1820, 6 S. & E. 71. The action of case is 
 founded on the justice and conscience ol the plaintiff's case, and is in the 
 nature of a bill in equity and in eifect is so, therefore, a former recovery, re- 
 lease, or satisfaction, need not be pleaded, but may be given in evidence. 
 
 Covenant. — Nicol r. Carr, 1860, 11 C. 381. An action of covenant by a 
 vendor against a vendee on the articles, is considered an equitable proceed- 
 ing to compel specific performance, and the plaintiff must offer a marketable 
 title. 
 
 Delay— Bill in Equity and Suit at Law. — Monday v. Moore, 1888, 4 
 Montg. Co. L. Eep. 186. A bill in equity and a suit at law may giow out of 
 the same transaction, and a court of law will delay the suit for a reasonable 
 time to enable the plaintiff to conclude the equity suit. 
 
 Husband and Wife.— Miller v. Miller, 1863, 8 Wr. 170. An action be- 
 tween husband and wife will not be sustained in Pennsylvania, except where 
 expressly allowed by statute. 
 
 Legacy. — Seibert V. Butz, 1840, 9 W. 490. An action for a legacy is a 
 substitute for a bill in equity, and is not subject to be defeated by legal 
 technicalities. 
 
 EQUITABLE ASSIGNMENT. 
 
 See Assignment. 
 
 EQUITABLE DEFENCE. 
 
 Bond— Assignment— Set-OfF.—Murry v. Williamson, 1810, 3 Bin. 135. 
 An equitable defense is pleadable in Pennsylvania ; hence the assignee of a 
 bond may set it off in an action against him by the obligor, although he 
 could not maintain an action on it in his own name. 
 
 Clean Hands— Acts of Complainant Contributing to Injury.— Miller 
 
 V. Sellers, C. P. 1871, 1 Camp. 245, S. C. 3 Leg. Gaz. 276, 28 Leg. Int. 276, 
 8 Phila. 286. Where a complainant's wrongful acts have contributed to an 
 injury complained of, he will be denied equitable relief. 
 
 lb.— Account— Recognizance by Heir to.— Commonwealth v. Hautz, 
 1831, 2 p. & W. 333. An equitable defence can only be used by one offering 
 to do equity on his part. Therefore, an heir who takes land under valua- 
 tion, and enters into recognizances to account to his co-heirs for their propor- 
 tion, can offer as a defence to an action on his recognizance, the fact that the 
 land was taken to pay the debts of the ancestor, only on condition of his 
 accounting to the plaintiffs for rents and profits received from it prior to the 
 sale. 
 
 lb.— Application of Purchase-Money— .Mortgage. — Harper r. Jef- 
 fries, 1839, 5 Whart. 26. Defendants purchased land, giving ten bonds of 
 |500 each for the purchase moiiey, to fall due one a year. The property was 
 
EQUITABLE DEFENCE. 181 
 
 already mortgaged for $2,500, and the mortgage recorded, bat defendants 
 did not know of this at the time of purchasing. Defendants had paid off 
 five of the bonds, when the property was sold under the mortgage for $2,500. 
 This was a suit on one of the bonds by an assignee ; the defence was failure 
 of consideration, viz., loss of the land. Held, this defence merely equitable, 
 therefore, the defendants, to avail themselves of it, must show that they had 
 no means of preventing the loss of the property. But at the time of the sale 
 there was due on the tour bonds held by the obligee, enough to satisfy the 
 mortgage; this money should have been applied to the mortgage, then the 
 land would have remained. 
 
 lb. — Compounding a Felony — Steinbaker v. Wilson, C. P. 1870, 1 
 Camp. 76, S. C. 2 Leg. Gaz. 204. Equity will not forbid the collection of a 
 judgment note given to compound a felony, the maker having acted with 
 full knowledge of what he was doing. 
 
 lb.— Conveyance on Condition of Support— Fraud— Costs.— Thall's 
 Ap., 1888, 4 Cram. 425. Where a conveyance was made by an old man to 
 his son-in-law, a part of the consideration being a bond conditioned for the 
 support of the former during life, which by agreement was subsequently 
 changed to an annual cash payment, and the grantor filed a bill in equity to 
 cancel the conveyance, on the ground of fraud, but failed, and was decreed 
 to pay costs, Held, ia a bill in equity by the son-iu-law to have the cash 
 payments under the agreement ' applied in discharge of his claim for costs, 
 that the plaintiff still having title to the home and farm conveyed to him in 
 consideration of his promise of support, a court of equity was not the place 
 to seek relief. 
 
 lb.— Corporation — Mortgage — Over-Issue of Bonds.— Reed's Ap., 
 1888, 7 Crum. 565. A contractor whose work was completed before the re- 
 cording of a trust deed, and who knew that under a trust mortgage, the 
 company had is.sued bonds in excess of the capital stock paid in, being a par- 
 ticipant in the fraud of such issue, may not attack the validity of the mort- 
 gage under Act of March 13, 1873. 
 
 lb.— Discretion of Trustees— Disregard of.— Foster v. Philadelphia, 
 C. P. 1878, 5 W. N. C. 269, S. C. 35 Leg. Int. 45, 12 Phila. 511. The trus- 
 tees of the gas works have power to adopt regulations as to fixtures and ser- 
 vice-pipe and equity will not review this discretion if reasonably exercised, 
 especially where the complainant has deliberately disregarded it. 
 
 lb. — Deed — Alteration of — Arrison v. Harmstead, 1845, 2 Barr, 191. 
 One altering a deed and thereby avoiding it cannot invoke t he aid of equity. 
 
 Ib.'-Ectuitable Title — Contradictory Averments. — Cox v. Cox, 1856, 
 2 C. 375. One seeking to establish an equitable title must not contradict 
 himself. Averring both a resulting trust and a parol gift is inconsistent. 
 
 lb. — ^Tb. — Compensation to Terre Tenant — Mala Fides. — Werkheiser 
 V. Werkheiser, 1832, 3 E. 326. One claiming land under an equitable title 
 will not be permitted to recover, without first doing equity, compensating 
 the terre tenant for improvements made in good faith. If, however, the lat- 
 ter has been guilty of mala fides he is entitled to no relief. 
 
 lb.— Fictitious Interest.— Tilly er v. Hero Jar Co., C. P. 1885, 42 Leg. 
 Int. 150. A defendant in equity cannot set up against the claim of a cor- 
 porator that his interest was not real, but that he was named as such iu 
 order to comply with the law which required a certain number. 
 
 lb. — ^Fraudulent Conveyance — Parol Defeasance. — Perry v. Perry, 
 1874, 1 W. N. C. 23. A party will not be allowed to recover land conveyed 
 absolutely by proving a parol defeasance if the conveyance was in fraud of 
 creditors. 
 
 lb. — Fraudulent Judgment — Relief. — Kunkle's Ap., 1884, 4 Penny. 
 146. The defendant in a judgment which after due deliberation is author- 
 ized to be entered, and with full knowledge of the unlawful character of the 
 transaction, cannot be relieved from it by showing that it was without con- 
 sideration. 
 
183 EQUITABLE DEFENCE. 
 
 lb. — Injunction— Assignment Contravening Statute. — Neveling 
 Wharf Co. v. Neveling, C. P. 1883, 13 W. N. C. 550. Equity will not en- 
 join an assignor of a contract from collecting money due thereunder when 
 the assignment was made in contravention of a U. S. statute, and the as- 
 signee is complainant. 
 
 lb. — lb. — Failure of Illegal Consideration. — McDonald v. Campbell, 
 1872, 3 Crum. 554. Equity will not restrain proceedings on a judgment on 
 the ground that there has been a failure of consideration, where the bill 
 shows that the consideration promised was an illegal one. 
 
 lb. — lb.— Illegal Acts by Both Parties. — Aronheimer v. Stokley, C. P. 
 1876, 2 W. N. C. 723, S. C. 21 Pitts. L. J. 31, 33 Leg. Int. 338, 11 Phila. 
 283. One who asks for an injunction to keep his illegal (frame) buildings 
 from being torn down, has no standing in court, although the act which he 
 asks to be enjoined is also illegal. 
 
 lb. — lb. — Minority AccLuiescing. — Buckley i;. Union Canal Co., N. P., 
 1858, 15 Leg. Int. 212, S. C. 3 Phila. 152. Where the minority of the bond- 
 holders of a corporation have stood by while the majority have entered into a 
 scheme of financial management, which promised best for all parties, the 
 former are not in a position to invoke the strong arm of equity to enjoin the 
 latter from carrying out their scheme. • 
 
 lb.— lb.— Space Allotted for Buildingk,— Neillf. Easby, D. C, 1874, 1 
 W. N. C. 59. Where a rule of the port wardens requires eighty feet between 
 piers, a party will be restrained from building a pier in a manner to leave 
 less than eighty feet, although the complainant, his adjacent pier owner, is 
 the one really at fault in having built his pier crooked. 
 
 lb.— lb.— Trade Mark— Deception.— Phalon v. Wright, C. P., 1864, 21 
 Leg. Int. 116, S. C. 5 Phila. 464. A trade mark which is a deception will 
 not be protected by injunction, howsoever harmless the deception may be. 
 
 lb. — lb.— Violation of Ordinances by Both. Parties.— Phila. & Gray's 
 Perry E. R. v. Phila., C. P. 1876, 3 W. N. C. 639, S. C. 33 Leg. Int. 264, 11 
 Phila, 358. One who is himself violating an ordinance, is in no position to 
 ask equity to enjoin another from doing the same thing. 
 
 lb.— lb.— Wife Guilty of Collusion — Property Liable. — Simpson v. 
 Bates, 0. P., 1873, 5 Leg. Gaz. 219, S. C. 30 Leg. Int. 226, 10 Phila. 66. 
 Equity will interfere to protect a wife's property from levy and sale by her 
 husband's creditors, only where it appears that she has not been guilty of 
 collusion with her husband in holding his creditors at bay, where her title 
 is undisputed, and where the sale would injure it. 
 
 lb. — Partner— Fraudulent Purchase— Recovery.— Grim v. Grim, C. 
 P. 1874, 1 W. N. C. 79. Where one of the members of a firm has fraudu- 
 lently purchased some of the firm's property, and a decree has been entered 
 enjoining him from interfering with the property and appointing a receiver, 
 he will not be allowed to claim from the receiver the amount which he paid 
 on the fraudulent sale. 
 
 lb.— Partner — Purchasing Outstanding Title— Rights of Vendee.— 
 
 Ome V. Kittanning Coal Co., 1886, 18 W. N. C.226. Where one of two part- 
 ners in the purchase of outstanding title to a tract defrauds the other by ob- 
 taining money for pretended conveyances, neither he nor the holder of his 
 title under a sheriifs sale can recover in ejectment against the vendee of 
 the other who holds the legal title and has possession ; (1 ) because com- 
 plainant does not come with clean hands, and (2) because the holder of an 
 equitable title can only recover by oifering to do all that is incumbent on 
 him, which in this case would be the repayment to the other partner of all 
 money received from him except one-half of what was actually expended 
 on purchasing title. 
 
 lb. — ^Party to Agreement to Befraud. — Hershey v. Weiting, 1865, 14 
 A¥r. 240. Equity will not, at the instance of a party to an agreement meant 
 to defraud creditors, rescind the agreement, though there were actual fraud, 
 such an one has no standing in a court of equity. 
 
EQUITABLE DEFENCE. 183 
 
 lb.— Recovery of Securities Deposited to Deceive Commonwealth. — 
 
 Matthew's Ap., 1880, 37 Leg. Int. 157. Equity will not lend its aid to re- 
 cover securities which have been deposited with the treasurer of a corpora- 
 tion in order to deceive the Commonwealth as to the amount of capital stock 
 paid in. 
 
 lb.— Specific Performance — ^Breach of Faith— Remedy at Law. — Pat- 
 terson V. Martz, 1839, 8 W. 374. Equity will not specifically enforce a 
 contract which grew out of a breach of faith, even though the party seeking 
 aid be innocent. He is left to his remedy at law. 
 
 lb. — lb.— Failure of Illegal Consideration. — Kunkle's Ap., 1884,11 
 Out. 308. One who has given his judgment note to another for a considera- 
 tion which was unlawful, will not be assisted in equity upon failure of that 
 consideration. 
 
 lb.— lb. — Faithful Performance by Complainant Necessary. — Ewing 
 ji.Wilcox & Gibbs, C. P. 1885, 42, Leg. Int. 150. Specific performance being of 
 grace, will not be granted where the complainant has not /aitt/M% performed 
 his part, or where the decree would be of greater detriment to the defendant 
 than of benefit to complainant. 
 
 lb. — lb. — Intoxication. — Hanna V. Phillips, 1855, 1 Gr. 253. Specific 
 perform.ance will not be decreed in favor of one who took advantage of the 
 intoxication of another. 
 
 lb— lb. Parol Mortgage Deposit of Title Deed.— Sidney v. Steven- 
 son, C. P. 1876, 33 Leg. Int. 42, S. C. 11 Phila. 178. There cannot in Penn- 
 sylvania be a parol mortgage by deposit of title deeds ; but a complainant 
 cannot invoke the aid of equity in securing a return of the title deeds, 
 "without having first performed his part of the agreement. 
 
 lb —lb.— Withdrawing Opposition to Passage of Statute.— Martin 
 r. Second St. K. R., C. P. 1858, 15 Leg. Int. 405, S. C. 3 Phila. 316. Eqaity 
 will not lend its aid to the enforcement of a contract, the consideration for 
 which was the withdrawal of opposition to the passage of an act of the Legis- 
 lature. 
 
 Consideration— Failure of — Eby v. Elder, 1888, 7 Crum. 342. Where 
 
 a vendee has by a plea of failure of consideration defeated an action on a bond 
 
 given for part of the purchase money, he is not thereby stopped from setting 
 
 up a breach of implied covenant against incumbrances in a scire facias iTpon 
 
 • a mortgage for another part of the purchase money. 
 
 lb. — Stranger to. — Goodrich v. Odenheimer, D. C. 1856, 13 Leg. Int. 52, 
 S. C. 2 Phila. 63. Where one for whose benefit a contract was made, but 
 who was a stranger to the consideration, claims in equity the benefit of the 
 contract, he must be satisfied with such redress as is consistent with the 
 meaning and spirit of the contract. 
 
 Contract— Substantial Compliance.— Gillespie Tool Go. v. Wilson, 1888, 
 8 Crum. 19. One who without excuse has failed to carry out his contract 
 to the letter, will not be permitted to recover on the ground of substantial 
 compliance, even by showing that the departure from the letter of the 
 contract has not injured the defendant. 
 
 Count for Money Had and Received.— Deysher v. Triebel, 1870, 14 S. 
 383. A count for money had and received is always looked upon as governed 
 by equitable principle, and lies only where the defendant ought ex asquo et 
 bono refund the money. 
 
 Ejectment — Specific Performance — Case Necessary. — Workman v. 
 Guthrie, 1857, 5 C. 495. One in possession under a parol contract and de- 
 fending an ejectment, need not make out so strong a case as one seeking to 
 enforce such a contract specifically. 
 
 lb. — Legal Title. — Moody v. Fulmer, 1814, 3 Gr. 17. In Pennsylvania 
 an equitable defence may defeat a plaintiff in an ejectment brought on a 
 legal title. 
 
184 EQUITABLE DEFENCE. 
 
 lb. — Vendor — Outstanding Title. — Congregation v. Miles, 1835, 4 W. 
 14(>. A vendor in possession under articles of agreement .cannot set up aoi 
 outstanding title as a defence to an action of ejectment to compel the pay- 
 ment of the purchase money. 
 
 Exchange of Lands— Failure of Consideration.— French v. Seely, 1838, 
 7 W. 231. A party to an exchange of lands who has himself got possession 
 of the tract coming to him, but has put it out of his power to put the other 
 party in possession of the other tract, has no equity to defend against an 
 ejectment although he has made valuable improvements. He is not even en- 
 titled to a conditional verdict. 
 
 Execution — Injunction Refused. — Kountz». Pittsburg Nat. Bank, C. P. 
 Allegheny, 1877, 25 Pitts. L. J. 127. Equity will not restrain the issuing 
 of execution on a judgment where the equity relied on in the bill could have 
 been set up at the trial as a defence. 
 
 Failure of Consideration. — Assey v. Lieber, 1880, 11 N. 377. Where a 
 vendee attempts to set up as a defence to a purchase money mortgage a 
 failure of the consideration, he must show that the title was positively 
 bad at the time of the sale. 
 
 Denial — Proof. — Sower v. Weaver, 1875. 28 S. 443. Where an equitable 
 defence is set up and the plaintiff denies it on oath, the defendant is in the 
 same position as though he were seeking equitable relief and the answer 
 had denied the facts alleged by him. He must prove them by two wit- 
 nesses. 
 
 Draft — Acceptance — Notice Not to Pay. — Smith v. Plummer, 1839, 5. 
 Wh. 89. Defendant bought goods for A. of plaintiff and drew on A. for the 
 price, A accepted the draft, but before maturity was notified by plaintiff not' 
 to pay it to defendant. Held, that these facts constituted a good equitable 
 defence. 
 
 Injunction to Prevent Ejectment. — Stanton v. Akerley, C. P. Lacka- 
 wanna, 1879, 1 Lack. L. Eec. Equity will not enjoin an action of ejectment 
 at the suit of the defendant if the latter's defence can be pleaded in the 
 ejectment. 
 
 . Nuisance. — Cornell v. Green, 1823, 10 S. & E. 14. One who purchases 
 land affected by an open nuisance, cannot set up its existence as an equit- 
 able defence in an action for the price of the land. 
 
 Parol Agreement — Specific Performance. — Raffensberger v. CuUison, • 
 1857, 4 C. 426. A parol agreement which would be insufficient as a ground 
 to compel specific performance, may, nevertheless, be a good defence against it. 
 
 Plea of Payment — ^Evidence. — Evans v. Mengel, 1845, 1 Barr, 68. The 
 evidence under the plea, payment, etc., musobe such as would move achau^ 
 cellor. 
 
 lb.— lb.— Light V. Stoever, 1824, 12 S. & R. 431. Under the plea of pay- 
 ment, etc., to debt on a bond evidence can be given, showing that the dam 
 of the mill for which the bond was given was so high that it caused an over- 
 flow on another's property, that this was known to plaintiff, and that by 
 fixing the dam the property was depreciated; such evidence is not by way of 
 set-off but is an equitable defence under the plea of payment. 
 
 lb.— lb.— Hawk V. Geddis, 1827, 16 S. & R. 23. Our courts of law, 
 through the instrumentality of a jury, exercise chancery powers, on a plea 
 of payment, etc. Under such plea and notice evidence may be given of any- 
 thing that shows in equity and good conscience that the plaintiff should not 
 recover. 
 
 lb.— lb.— Mortgage.— Robinson V. Eldridge, 1823, 10 S. & R. 140. Under 
 a plea of payment, etc., to a scire facias sur mortgage, evidence can be given 
 of facts showing circumvention and deception in obtaining the mortgage. 
 
 lb.— Scire Facias Sur Mortgage.— Morris v. Buckley, 1824, 11 S. & R. 
 168. Under a plea of payment, etc., to a scire facias sur mortgage for pur- 
 
EQUITABLE DEFENCE— EQUITABLE ESTATE. 185 
 
 chase money, defendant may give in evidence the record of an ejectment 
 brought by him under plaintiff's deed with warranty and judgment against 
 him, though no notice was served on plaintiff. But this is not conclusive on 
 plaintiff, who in rebuttal may show the validity of his title. 
 
 lb.— Set-off.— Balsbaugh v. Frazer, 1852, 7 H. 95. Set-off is allowable 
 under the plea of payment. 
 
 lb.— Surety and Principal.— Holt v. Bodey, 1852, 6 H. 207. The plea 
 of payment is not a proper one where a surety, sued with his principal, in- 
 tends to set up an equitable defence. 
 
 Scire Facias Sur Mechanics' Lien— Material Man as Surety.— Haine 
 V. Dawbach, 1888, 4 Pa. Co. C. R. 633. In a scire facias on mechanics' lien, 
 the fact that the material man is one of the two sureties for the builder who 
 failed to perform his contract, can be interposed as a defence. 
 
 lb.— Sur Mortgage.— Ewart v. Irwin, 1850, 1 Phila. 134, S. C. 7 Leg. Int. 
 134. Any defence to a scire facias sur mortgage may be set up that would be 
 available ia chancery on a bill to foreclose. 
 
 Specific Performance— Plaintiff 's Actions.— Ong v. Campbell, 1837. 6 
 W. 392. It is a valid defence to the specific execution of a contract that the 
 plaintiff has so acted as to induce the other party to presume an abandon- 
 ment. 
 
 lb. — Changes in Property. — Morgan v. Scott, 1856, 2 C. 51. Changes in 
 the property which have arisen since the equitable title passed, are no de- 
 fence to specific performance. , 
 
 lb.— Evidence— Title Deeds.— Murphy v. Richardson, 1857, 4 C. 288, 
 see 13 Leg. Int. 260, 2 Phila. 419. A vendee under articles in defending against 
 specific performance, may give in evidence old deeds establishing an adverse 
 claim to the land, though the same were on record at the time he signed the 
 articles. 
 
 Subscription — Ii^unction Against Proposed Improvement.— Cross- 
 man V. Penrose Bridge Co., 1856, 2 C. 69. The fact that a preliminary in- 
 junction has been granted against a proposed improvement is no defence to 
 a suit against one for his subscription to that object. 
 
 Statute of Limitations— Parol Sale. — Irwin v. Cooper, 1879, 11 N. 298. 
 The statute of limitations is not so inconsistent with an equitable defence as 
 to deprive a party who relies on a parol sale from setting it up. 
 
 Vendee Parting With Land — Failure of Consideration. — McKeen v. 
 Beaupland, 1860, 11 C. 488. A vendee who has received title, and parted 
 with part of the land, cannot set up failure of consideration against an actioa 
 for the purchase money. The defence is equitable, and since the vendee has 
 precluded himself from putting the vendor in statu quo, he cannot set it up. 
 
 Vendor — ^Purchase-Money — Evidence. — Huber v. Burke, 1824, 11 S. & 
 E. 238. If the vendor of land under articles sues for the purchase money 
 before possession is delivered, such action is like a bill in equity and under 
 the plea of payment may be given in evidence every circumstance that would 
 influence a chancellor on a bill for specific performance. 
 
 EQUITABI^E EJECXMENX. 
 
 See Ejectment. 
 
 EQUITABLE ESTATE. 
 
 Action on Surplus Bond— Parties.— Crawford v. Stewart, 1860, 2 Wr. 
 34. An action on a surplus bond given on the purchase of lands at treas- 
 
186 Equitable estate. 
 
 nrei-'s sale, should be against the legal owner of the land without mention' 
 of the equitable owner. The latter can have his rights enforced after judg- 
 ment rendered, by obtaining a stay of execution until an issue to try his 
 rights shall have been determined. 
 
 Consideration — Covenant. — Johnson v. McCue, 1859. 10 C. 180. A 
 covenant to pay an annuity to one on the consideration that he '"has^ tlii.s 
 day made a will devising" certain land to the covenantor, held to vest an 
 equitable title in the covenantor which could be enforced after the other's 
 death. 
 
 Contract for Purchase of Real Estate — Title — Insurance. — Elliott v. 
 Ins. Co., 1888, 2 Crum. 548. The purchaser of real estate by contract is the 
 equitable owner and liable to all loss which may befall the property; where- 
 fore the holder of such property for the purpose of insurance may be said to 
 be vested with the entire and unconditional ownership of the property. 
 
 Creation of— Statute of Frauds. — Murphy v. Hubert, 1847, 7 Barr, 
 400. The creation of an equitable estate in Pennsylvania is not within the 
 statute of frauds, but its conveyance must be by writing. 
 
 Damages — Right to — ^Estate not a Lien. — Western Penna. E. E. v. 
 Johnson, 1868, 9 S. 290. A right to damages for land taken by a railroad is 
 an estate not a lien, and is not discharged by any sale but binds the pur- 
 chaser. 
 
 Dower and Curtesy. — Dubbs v. Dubbs, 1858, 7 C. 149. Equitable es- 
 tates in Pennsylvania are the subject of both dower and curtesy. 
 
 Equitable Owner— Ejectment— Subrogation. — Plinney v. Timmins, C. 
 P. Lackawanna, 1879, 1 C. P. Eep. A creditor of the owner of an equitable 
 estate against whom ejectment had been brought was allowed to satisfy the 
 claim of the plaintiff and be subrogated to his rights. 
 
 lb.— lb.— Ground Rent.— Sergeant v. IngersoU, 1847, 7 Barr, 340. One ,, 
 purchasing a ground rent from an equitable owner must take it subject t*> ajjl 
 equities against the latter. J 
 
 lb.— Insurance.— Penna. Ins. Co. V. Dougherty, 1883, 6 Out. 568. "Jv e 
 equitable owner of property has an insurable interest, and a representatioW 
 thatheis "owner" does not avoid the policy. 
 
 lb.— In Possession— Ground Rent.— Berry v. McMuUen, 1827, 17 S.'& \ 
 E. 84. The equitable owner of land, in possession, is liable in covenant, as 
 assignee, for a ground rent charged thereon, although the legal title is in 
 another, and no trust appears by deed. 
 
 lb. —Widow — Vendor — New Contract — Deed. — Aldrich v. Bailey, 
 1872, 21 S. 246. A widow of an equitable owner of land under articles, ap- 
 plied to the vendor for a new contract, which however was never signed by 
 the vendor, and no purchase money was paid by the widow who continued 
 in possession. Afterwards one of the decedent's children got a deed made 
 to him and paid the balance of the purchase money. Held his title was best. 
 
 EcLuitable Title — Compensation to Terre Tenant. — Werkheiser v. 
 *Verkheiser, 1832, 3 E. 326. One claiming land under an equitable title 
 will not be permitted to recover, without first doing equity, namely, com- 
 pensating the ierre tenant for improvements made in good faith. If, how- 
 ever, the latter has been guilty of mala fides, he is entitled to no relief. 
 
 lb. — Contract of Sale Unexecuted. — Churcher v. Guern.sey, 1861, 3 Wr. 
 84. An unexecuted contract of sale which is forfeited under its conditions, 
 vests no title in the vendee which equity will enforce. 
 
 lb.— Corporation— Land Taken— Mortgage.— Easton's Ap., 1864, 11 
 Wr. 255. A mortgage on all its property given by a corporation includes 
 laud taken by it but for which the damages have not been assessed; the 
 mortgage is, however, subject to the payment of the damages. 
 
 lb. — Ejectment— Estoppel.— Wengert )-. Maulfare, 1858, 1 Pears. 493. 
 A defendant in an ejectment by a vendor who fails to set up an equitable 
 title which he may have, is forever barred from doing it. 
 
EQUITABLE ESTATE. 187 
 
 lb. — Evidence of— Power of Attorney.— Rhine ?;. Robinson, 1856, 3 C. 
 30. An attorney attempted to assign a patent to laud, but signed it "A, 
 att'y for B." Held, thoagh not good at law as an execution of a power to 
 convey the land, yet as it contained an aclcnowledgement of the receipt of 
 the consideration, it would be considered evidence of an equitable title. 
 
 lb. — Judgment Against Vendee. — Carneghan v. Brewster, 1845, 2 Barr, 
 41. A judgment in Pennsylvania binds the equitable interest of a vendee 
 under articles, and on a sheriff's sale of that interest the proceeds are to be 
 distributed according to priority of the liens. 
 
 lb.— Option to Purchase — Legal Title.— Brewer v. Fleming, 1865, 1 S:- 
 102. One having an option to purchaise the equitable titleto land bought 
 in the legal title, and afterwards gave notice under his option that he would- 
 not take the equitable title. Held, that he bad no rights under the equitable 
 title. 
 
 lb.— Patent to Land.— Maclay v. Work, 1812, 5 Bin. 154. One holding 
 land under a patent, is liable to have his title defeated by an imperfect 
 equitable title by settlement and improvement. The important question is 
 not who has the patent, but who ought to have it. 
 
 lb.— Partnership— Land.— Clark's Ap., 1875, 22 S. 142. Where a part- 
 ner contributes real estate as his portion of the capital, the equitable title of 
 tlie land is in the firm. 
 
 lb. — Purchase of— Equities. — Kramer v. Arthurs. 1847, 7 Barr, 165. One 
 . purchasing an equitable title takes it subject to all outstanding claims, legal 
 or equitable, whether he have notice or not. 
 
 lb. — lb. — Chur V. Barnet, 1824, 11 S. & R. 389. One purchasing an equit- 
 able title, takes it subject to all the countervailing equities to which it was 
 subject in the hands of his grantor. Ex gr. one buying an equitable title, 
 does not get a clear legal title by having the legal title afterwards come into 
 his grantor's hands sviject to a mortgage. 
 
 lb.— lb.— Eights Under.— Hutchison v. Kerr, 1883, 14 W. N. C. 39, S. 
 C. 3 Penny. 122, 31 Pitts. L. J. 221. The purchaser of a vendee's equitable 
 title at a sheriff's sale, under a judgment which bound it, is entitled to all 
 the rights of the judgment debtor. 
 
 lb. — ^Purchase From Vendee. — New York Coal Co. v. Plumer, 1880, 15 
 N. 99. One who purchases the equitable title of a vendee takes only what 
 the latter has. although he pays a full price for the land. Although under 
 the articles it would appear that the vendee's title must be complete, since 
 the time for paying the last instalment had passed. 
 
 lb. — ^Purchase of Legal Title— Notice. — Dickinson v. Beyer, 1878, 6 N. 
 274. Where one has an equitable title and purchases the legal title and 
 puts it on record, a purchaser at sheriff 's sale is not bound by any of the 
 equities which attached to the equitable title, for he has no notice of the 
 equitable title. 
 
 lb.— Resulting Trust and Parol Gift.— Cox v. Cox, 1856, 2 C. 375. One 
 seeking to establish an equitable title must not contradict himself. Ave- 
 ring both a resulting trust and a parol gift, is inconsistent. 
 
 lb.- Specific Performance— Ejectment.— Sparks v. Walton, D. C. 1860, 
 17 Leg. Int. 228, S. C. 4 Phila. 93. An equitable title which has failed in a 
 suit in equity for specific performance cannot afterwards be used as a de- 
 fence in ejectment. 
 
 lb. — Tenant Under Purchase From Vendee. — Kellam v. Janson, 1851, 
 5 H. 467. A tenant under a purchaser of a vendee's equitable title has no 
 standing against a purchaser of the vendee's title, under a judgment prior 
 to the sale to his lessor. 
 
 lb. — Trust — Power of Appointment — Conveyance. — McFadden v. 
 Drake, 1875, 29 S. 473. Trustees held land in trust for the separate use of a 
 married woman, and under the further trust to convey the premises as the 
 
188 EQUITABLE ESTATE. 
 
 cestui que trust should appoint. The cestui que trust made a deed of the 
 premises to defendant. Held this was an exercise of the power of appoint- 
 ment, that the defendant had the equitahle title and could compel a convey- 
 ance of the legal title by the trustees. 
 
 lb. — Vendee Under Articles — Insurance. — Chandler v. Commerce Ins. 
 Co., 1878, 7 N. 223. A vendee under articles has "the entire, unconditional 
 and sole ownership of the property " within the meaning of that phrase in 
 insurance policies. 
 
 lb.— lb.— Millville Ins. Co. v. Wilgus, 1878, 7 N. 107. A vendee under 
 articles who has paid paii; of the purchase money, is the sole owner within 
 the meaning of the clauses in policies of insurance. 
 
 lb.— lb.— Sale Under Judgment.— Frick's Ap., 1882, 5 Out. 485. Be- 
 fore a vendee of land under articles had paid any purchase money, the land 
 was sold on a judgment against the vendor for more than the contract price. 
 Held, that the vendee as equitable owner was entitled to that surplus, the 
 liens against the vendor having been satisfied. 
 
 lb.— Verdict and Judgment— IJjectnient.— Taylor v. Abbott, 1861, 5 
 Wr. 352. One verdict and judgment in ejectment is conclusive on an equit- 
 able title, only where the case is such that plaintiff, if he recover, is entitled 
 to a conditional verdict. 
 
 lb.— Warrant and Survey— Patentee.— Gregg v. Patterson, 1844, 9 W. 
 & S. 197. A warrant and survey gives the warrantee an equitable title to 
 the land. A patentee has the legal title, but a warrantee who deserves the . 
 patent can recover from a patentee who is not entitled thereto. 
 
 Equitable Use— Statute of Frauds.— Hogg v. Wilkins, 1854, 1 Gr. 67. 
 An equitable use in land is within the provisions of the statute of frauds. 
 
 Execution— Property Conveyed to Third Party— Vendee's Inter- 
 est. — Roth V. Humrich, 1874, 26 S. 128. A vendee under a verbal contract, 
 ordered the vendor to convey the title to a third person. A judgment was 
 obtained against the vendee and the property levied on. Held that his 
 equity was liable to the execution and passed to the purchaser. 
 
 Fraud— lyectment — Creditorsof Vendee. — Forresters. Hanaway, 1876, 
 1 N. 218. A vendee under articles fearing lest his estate should be swept 
 away by judgment creditors colluded with his vendor, who ejected him and 
 transferred the land to a volunteer. Held that the creditors of the original 
 vendee having bought in his title at sheriff 's sale, were entitled to possession 
 under the same terms as had bound him. 
 
 Husband and Wife— Equitable and Legal Title. — Buttefield's Ap., 
 1874, 27 S. 197. A wife owned the legal estate in land sold by the sheriff 
 and the husband had the equitable. The fund being before the court for 
 distribution, the wife's creditors could go against the fund to the extent of 
 her interest, and the balance went to the husband. 
 
 Judgment Against Equitable Vendee— Priority.— Merkel's Ap., 1881, 
 10 W. N. C. 116, S. C. 13 Lan. B. 190. A judgment recovered against an 
 equitable vendee binds the legal estate the instant it comes into his posses- 
 sion, and is prior to mortgages given on the same day. 
 
 lb. — Against Either Vendee or Vendor. — Catlin o. Robinson, 1834, 2 
 W. 373. Where land hag been sold under articles, a judgment and execu- 
 tion issued against either the vendor or the vendee binds only the interest of 
 each respectively, and a sale thereunder does not affect the title of the other. 
 
 lb.— Against Both Vendee and Vendor.— Chahoon v. HoUenback, 
 1826, 16 S. & R. 425. Judgments against vendor and vendee respectively 
 bind the rights of each in the laud, whether legal or equitable. 
 
 lb.— Binds Equitable Estate.— Shock v. Bankes, 1873, 1 Fost. 218, S. C. 
 20 Pitts. L. J. 191. A judgment in Pennsylvania binds an equitable es- 
 tate. 
 
 lb.— For Purchase Money.— Snyder's Ap., 1879, 10 N, 477. A judg- 
 
EQUITABLE ESTATE. 189 
 
 ment given for the purchase money of land when the deed was delivered (at 
 three in the afternoon) and entered up the next morning, takes precedence 
 of liens on the equitable estate of the vendee. In other words the judgment 
 is entered soon enough to continue the lien tor the purchase money. 
 
 lb.— Mortgage.— Lynch v. Dearth, 1830, 2 P. & W. 101. A judgment 
 against an equitable estate is prior to a mortgage subsequently given for the 
 money used to purchase the legal estate. 
 
 rb.— Payment to Creditors of Equitable Owner.— Stiles v. Bradford, 
 1834, 4 E. 394. In this state a judgment is a lien on the equitable estate of 
 the debtor; therefore where property is sold under a mortgage the surplus 
 will be applied to judgments against the equitable owner of the mortgaged 
 property, and not to judgments against the owners of the legal title, the 
 latter's creditors having notice of the equitable title. 
 
 lb.— Statute of Frauds.— Lloyd's Ap., 1876, 11 N. 485. An equitable 
 estate not enforceable under the statute of frauds is, nevertheless, bound by a 
 judgment recovered against the owner, and the lien attaches to the legal es- 
 tate upon a deed being given, and is prior to a judgment siibsequently entered 
 up on a bond given for the purchase money. 
 
 lb. — Vendee Under Articles- — Episcopal Academy v. Frieze, 1833, 2 W. 
 16. A judgment against a vendee under articles biryis only his equitable 
 interest, and a subsequent conveyance of the legal title to him " subject to 
 the purchase money ' ' continues the grantor's first claim to that amount. 
 
 lb.— Vendee Under Articles— Priority.— Poster's Ap., 1846, 3 Barr, 
 79. A judgment binds the estate of one having articles for the conveyance 
 of land, and if the land is subsequently conveyed, the judgment binds the 
 legal estate and will be prior to a purchase money mortgage which the ven- 
 dor has failed to record within the sixty days allowed. 
 
 Legal Title and Lien on Equitable Title— Sale With Warranty. — 
 Post's Ap., 1861, 3 Wr. 328. One holding a legal title to land and a lien 
 upon an equitable title to the same land, does not lose the latter by convey- 
 ing the former with warranty. There was no merger as the two titles were 
 distinct. 
 
 Lien— Taxes— Vendee Under Articles.- Vanarsdalen's Ap., 1877, 3 
 W. N. C. 463. A lien for unpaid taxes attaches to a fund in the hands of 
 the sheriff, which fund has arisen from a sale of an equitable estate of a ven 
 dee under articles. 
 
 Mechanics' Lien. — Stauffer v. Bowers, 1879, C. P. Lancaster, 11 Lan. Bar, 
 3. A mechanic's lien entered against an equitable estate, binds only it, and 
 survives or falls with it. 
 
 lb. — Keller v. Denmead, 1871, 18 S. 449. A mechanic's lien binds an 
 equitable estate. 
 
 lb.— Against Equitable Estate Binding.— Lyon v. McGuffey, 1846, 4 
 Barr, 126. Under Act April 28, 1840 (mechanics' liens), a mechanic's lien 
 against the equitable estate of one will bind the legal estate when it comes 
 into his possession, and will be prior to a judgment given to secure the pur- 
 chase money, unless that judgment is entered soon enough to show that it 
 and the conveyance were one transaction. 
 
 Mortgage— Extinguishment of— Conditional Verdict.— Maxon's Ap., 
 1874, 25 S. 176. A mortgage of the equitable interest of a vendee under 
 articles is extinguished when the vendor gets a conditional verdict against 
 the vendee in equitable ejectment, and the verdict becomes absolute. 
 
 Mortgaged Premises Sold— Passage of Title.— Stoever v. Eice, 1837, 
 3 "Wh. 21. A sale of mortgaged premises by the sheriff to the mortgagee 
 for a less sum than the debt7 passes to the latter an equitable title, though 
 there is no deed executed and no money actually passes; and there remains 
 no estate in the mortgagor which can be taken by a junior encumbrancer. 
 
 Mortgage— Remainder.— Pratt v. McCawley, 1853, 8 H. 264. One en- 
 
lyi) EQUITABLE ESTATE. 
 
 titled under a deed of trust to an equitable fee simple in remainder, cau 
 charge it with a mortgage in IVe. 
 
 lb.— Vendee Pledging Title.— Fessler's Ap., 1S74, 25 S. 483. A vendee 
 agreed with a third party, that the latter should pay the balance of the pur- 
 chase money and take the title as security until repayed lor his advances. 
 Held to be a mortgage of the vendee's equitable estate. 
 
 tb.— Unrecorded Defeasance— Judgment.— Directors of the Poor v. 
 Royer, 18GJ, 7 Wr. 146. An absolute deed recorded, with a separate de- 
 feasance not recorded, the grantee having a power of sale at the direction of 
 the grantor, is plainly a mortgage, and the equity of redemption is bound by 
 a judgment. 
 
 Notice — By Strangers. — Butcher v. Yocum, 1869, 11 S. 168. Notice of 
 an equitable interest is equally valid whether coming from the party inlor- 
 ested or from a stranger, provided that in the latter case it be of a character 
 likely to gain credit. 
 
 lb.— Title.— Ross v. Baker, 1873, 22 S. 186. A., being the equitable 
 owner of land sold his right to B. The deed was afterwards made to A. and 
 judgment recovered against him. At a sheriff's sale under the judgment, 
 notice of B. 's title bound the purchaser. 
 
 lb. — lb.— Cherry v. Robinson, 179."), 1 Y. 521. The purchaser of an ap- 
 parently good legal title takes free of an equitable title of which he had no 
 notice. 
 
 Purchaser— Legal Title not Recorded.— Morrison v. Funk, 1854, 11 H. 
 421. One purchasing an equitable estate does not take paramount to the legal 
 estate which is not recorded. 
 
 Recording Acts— Equitable Titles.— Bellas r. McCarty. 1840. 10 W. 13. 
 Equitable titles are within the recording acts of Pennsylvania. 
 
 Statute of Frauds. — Shorfstall u. Adams, 1858, 2 Gr. 209. Equitable es- 
 tates are within the statute of frauds. 
 
 lb. — Smith V. Spencer, 1876, 2 W. N. C. 515. An equitable interest in 
 land is within the statute of frauds. 
 
 lb. — Meason v. Kaine, 1869, 13 S. 335. An equitable interest is an inter- 
 est in land within the words and spirit of the statute of frauds. 
 
 Trust — Fee Simple. — Ivory v. Burns, 1867, 6 S. 300. A conveyance in 
 trust will carry a fee without words of limitation. 
 
 lb. — Freyvogle v. Hughes, 1867, 6 S. 228. A trust deed transferred to the 
 cestui que trust the whole beneficial interest in the fund but without any 
 limiting words. Held that the cestui que trust took an equity in fee simple. 
 
 lb. — For Wife — Sheriff's Sale — Defence. — Cowperthwaite r. Bank of 
 Carbondale, 1883, 6 Out. 397. In ejectment by a purchaser at sheriff's sale 
 of a husband's interest in .property, the wife has a good defence if she can 
 prove that she told the plaintiff of her equitable title and he promised to 
 protect her, whereupon she induced others not to bid against him. 
 
 Trustee— Judgment Against.— Drysdale's Ap., 1850. 3 H. 457. A judg- 
 ment against a trustee for himself and others binds his equitable interest. 
 
 Vendee— Insurance.— Reynolds v. state Ins. Co., 1856, 2 Gr. 326. A 
 vendee under articles, in insuring, must disclose his interest, and cannot in- 
 sure for more than the amount of the purchase money paid. 
 
 lb.— Under Articles— Descent.— Vincent o. Huff. 1822, 8 S. & R. 381. 
 The equitable estate of a vendee vinder articles follows legal estates in man- 
 ner of descent. 
 
 lb.— lb.— Ashland v. Fire Ins. Co., 1888, 45 Leg. Int. 65. An equitable 
 title acquired by means of articles of agreement, renders the vendee the 
 owner of the property so far as the insurance is concerned. 
 
 lb. — Judgment. — Vierheller's Ap., 1854, 12 H. 105. A sale under a 
 judgment against a vendee under articles passes only his ecjuitable estate. 
 
EQUITABLE ESTATE — EQLTTABLE LIEN. 191 
 
 unless the judgment be by the vendor for the purchase money when the 
 sheriff's vendee obtains a clear title. 
 
 lb. — lb. — Water's Ap., 1860, 11 C. 533. A judgment against the equita- 
 ble estate of a vendee under article attaches to, and binds the legal estate 
 immediately upon the deed being delivered. 
 
 lb.— Lien— Mortgage.— Campbell's Ap., 1860, 12 C. 247. A lien on the 
 equitable estate of a vendee is postponed to a purchase money mortgage, 
 given at the time the conveyance is executed. 
 
 lb.— Sheriff 'S Sale.— Bradley r. O'Donnell, 1858, 8 C. 279. A sheriff's 
 sale of the equitable interest in land of a vendee under articles, passes only 
 that vendee's interest, though the judgment on which it is sold be one re- 
 covered on a note given by him for part of the purchase money. Such sale 
 does not affect the vendor's title. 
 
 lb.— Sale of Interest— Priority.— Auwerter v. Mathiot, 1823, 9 S. & R. 
 397. The equitable estate of a vendee under articles may be sold by his 
 judgment creditors, and the latter's claim to the proceeds is better than that 
 of the vendor. 
 
 Vendor— Contract— Judgment.— Siter's Ap., 1856, 2 C. 178. Judg- 
 ments recovered against one who has contracted to sell his land, bind the 
 land only to the extent of the unpaid purchase money; any surplus which 
 the land may bring at sheriff's sale goes to the equitable owner, the vendee 
 under the articles. 
 
 lb.— Purchase of Estate— Judgment.— Graff v. Kelly, 18C2, 7 "Wr. 
 260. Where a vendor under articles, on the failure of his vendee to pay the 
 first instalment of purchase money due, recovers judgment against him and 
 becomes purchaser of his estate at sheriff 's sale, he cannot afterwards enforce 
 payment of the balance of the purchase money from the vendee or his es- 
 tate. 
 
 lb. — Taking Bond — Purchase — Judgment. — Chew v. Mather, 1830, 1 
 P. & W. 474. Where a vendor who has taken a bond for the purchase 
 money, but has not given a deed, enters j udgment thereon and sells the land 
 and becomes the purchaser for an amount less than the judgment, the entire 
 judgment is equitably extinguished. 
 
 EQUITABL,E INTER.ESX. 
 
 See Equitable Estate. 
 
 EQUITABLE LIEN. 
 
 Agent— Trustee— Mortgage— Equity of Redemption.— Frazer v. Hal- 
 lowell, 1805, 1 Bin. 126. One, who as agent for another has taken a mort- 
 gage in his own name and has purchased the equity of redemption, is really 
 a trustee for his principal and has a lien on the laud for money advanced to 
 him. 
 
 Covenant in Deed— Personal Liability.— Hepburn v. Snyder, 1846, 3 
 Barr, 72. Equitable liens are not allowed in Pennsylvania; therefore a cove- 
 nant in a deed that the grantor holds the estate charged with certain debts 
 of the grantor creates only a personal liability. 
 
 Creation and Divestment of— Sheriff 's Sale.— Heister v. Green, 1864, 
 12 Wr. 96. Parties may, by express words, create equitable liens on land, 
 but not by mere recitals. And even where such lien is created it is divest«d 
 by a sheriff 's sate, unless it be incapable of val nation or expressly created to 
 run with the land. 
 
192 EQUITABLE LIEN. 
 
 Deed Subject to Mortgage.— Pierce )). Gardner, 1876, 2 N. 211. A 
 clause in a deed " subject to a mortgage, etc.," there being no mortgage at 
 most creates but an equitable lien which is discharged by a subsequent 
 sheriff 's sale. 
 
 lb.— Subject to Payment of Purchase-Money.— Eichelberger v. Gitt, 
 1883, 8 Out. 64. A deed of land subject to the payment of $1,000, the pur- 
 chase money, creates a lien which binds a subsequent grantee 
 
 Judgment by Vendee to Vendor— Priority.— Zelgler's Ap., 1871, 19 S. 
 471 . A judgment given by the vendee to his vendor for the purchase money, 
 is preferred to prior liens upon the vendee's equitable estate. 
 
 Mortgages— Agreement to Execute. — Selden's Ap., 1873, 24 S, 323. A. 
 was about to convey to B, property under an agreement that B. would give a 
 certain mortgage upon it. B. executed two mortgages on the property. The 
 first was executed before the deed was delivered, and recorded after delivery 
 of the deed, the second was invalid because defectively acknowledged. The 
 second mortgage was the one which B. had agreed to give. Seld that neither 
 was a legal lien, but that in equity the second was entitled to priority. 
 
 Part Payment— Performance Impossible.— Kohl v. Harting, 1839, 8 
 W. 329. One making part payment on a contract for the sale of land 
 which vendor cannot perform, has an equitable lien to the amount of his 
 payment which, when the land is sold, is transferred to the proceeds out of 
 which it must be satisfied. 
 
 Pledge of Partner's Interest.— Collin's Ap., 1883, 11 Out. 590. There 
 may in equity, be a valid pledge of a partner's interest in a prospective firm. 
 
 Purchase Money Due.— Irvine «. Campbell, 1813, 6 Bin. 118. The 
 vendor of land has an equitable lien for the purchase money against the pur- 
 chaser and all claiming under him with notice. 
 
 lb. — Lentniyer v. Mittomer, 1847, 5 Barr, 403. Unpaid purchase money 
 is not a lien on land in Pennsylvania, unless secured by some of the common 
 forms of encumbrance. 
 
 lb. — Commonwealth.— McKennan V. Donghinan, 1830, 1 P. & W. 417. 
 Unpaid purchase money due the Commonwealth, is an encumbrance for 
 which a grantee can defend the payment of bonds given one for an unen- 
 cumbered title. 
 
 Surety— Legacy to Principal.— Bredin v. Neal, 1831, 3 P. & W. 190. A 
 debt paid out of the estate of a surety is an equitable lien upon a legacy 
 given to the principal debtor, although the legacy has been assigned 
 
 Trustee for Husband and Wife— Liabilities Assumed. — Eaybold v. 
 Raybold, 1853, 8 H. 308. A trustee for husband and wife has no equitable 
 Hen for liabilities assumed for the former without the assent of the latter. 
 
 Trustee Using Trust Funds on His Estate— Resulting Trust.— Cross' 
 Ap., 1881, 1 Out. 471. The factthat a trustee uses trust funds forimproving 
 his estate, does not give rise to either a resulting trust or an equitable lien. 
 A resulting trust can only arise at the inception of title, and an equitable 
 lien is unknovm in Pennsylvania jurisprudence. 
 
 Vendor Having Parted With Title.— Stephens' Ap., 1860, 2 Wr. 9. A 
 vendor, after he has parted with his title, has no lien for his purchase money. 
 
 Vendor's Lien for Loan to Vendee. — Wright v. Craighead, 1877, 4 W. 
 N. C. 51. A vendor obtained on his own credit a loan for his vendee, which 
 under the agreement was to be a lien on the land, Held, that this was so 
 near the same thing as a lien for the purchase money, that in an ejectment 
 brought the chancellor would so consider it. 
 
 Widow's Interest— Agreement.— Dexter's Ap., 1876, 31 S. 403. An 
 •agreement sealed and recorded by all the parties in interest, that the widow's 
 interest should remain charged on the land creates a valid encumbrance 
 whatever it be called. 
 
EQUITABLE LIEN — ESTOPPEL. 193 
 
 EeiJIXABLE OWNER. 
 
 See Equitable Estate. 
 
 BQVIXABI.E PLEAS. 
 
 See Equitable Defence. 
 
 EQUITABLE mORTGAGE. 
 
 See MOETGAGE, MOETGAGOK AND MOETGAGEB. 
 
 EQUITABLE TITLE. 
 
 See Equitable Estate 
 
 ESCHEAT. 
 
 Jurisdiction— iDJUIlction.— Olmsted's Ap., 1878, 5 W. N. C. 258. There 
 is no equitable jurisdiction in this State to restrain proceedings in escheat. 
 
 Trust— Expiration of.— Commonwealth V Naile, lS79, 7 N. 429. Under 
 Act December 16, 1869, when a trust has expired and no one claims the bene- 
 ficial interest it may be escheated. 
 
 ESCROW^. 
 
 Jurisdiction— Conditions of.— Baum's Appeal, 1886, 3 Amer. 58. A bill 
 in equity -will lie to compel the delivery of a deed held in escrow, where the 
 grantee has done all in his power to fulfil the condition of its delivery, and 
 the fulfilling ot it was prevented solely by act of the grantor. 
 
 ESTOPPEL. 
 
 I. In Geneeal. 
 II. Essential Elements Constituting Equitable. 
 
 III. Knowledge ok Ignoeance of the Tkuth. 
 
 IV. Eepeesentations and Deolaeations. 
 V. Encoueagement. 
 
 VI. Silence. 
 VII. Married Women. 
 
 13 — EQUITY. 
 
194 ESTOPPEL. 
 
 I. In General. 
 
 Accepting Proceeds of Sale.— Stroble v. Smith, 1839, 8 w. 280. One 
 who accepts part of the proceeds of a sheriff 's sale is estopped from denying 
 its validity. 
 
 Administrator— Account— Creditors.— Siebert v. Linkand, C. P Alle- 
 gheny, 1879, 26 Pitts. L. J. -137. Where an administrator who was also 
 devisee, sold his land for a fair price and accounted for its price, creditors 
 who received credits in this account are estopped from going against the land 
 in the hands of the purchaser. 
 
 Agent of Insurance Company-Declarations— Policy.— Waynesboro' 
 Mutual Fire Ins. Co. a. Conover, 1882, 39 Leg. Int. .54. A policy of insur- 
 ance contained a provision that no suit should be brought upon it after a 
 given period from the time of fire, and that none of its stipulations should be 
 waived but by the written consent of the president and secretary. A gen- 
 eral agent of this company suggested to the assured that he forbear to sue as 
 the payment would be made amicably. Held that such acts would not estop 
 the company from enforcing the stipulations of the contract. 
 
 Amicable Partition. — Root v. Crock, 1847, 7 Barr, 378. Those joining 
 in an amicable partition are estopped from afterward disturbing the bound- 
 aries fixed thereby. 
 
 Ante-Nuptial Will.— Lant's Ap., 1880, 14 N. 279. A will made by a 
 woman jnst before marriage under an agreement with her intended husband, 
 though revoked In law by the marriage, will be enforced in equity as an 
 antenuptial contract, which is binding on the husband by the principle of 
 estoppel if not otherwise. 
 
 Assignee of Chose in Action— Eciuities.— Edgar v. Kline, 1847, 6 Barr, 
 327. An assignee of a chose in action takes subject to all existing equities be- 
 tween the original parties, unless the obligee or payee has estopped himself 
 from making defence by his declarations; but the assignee cannot avail him- 
 self of such an estoppel unless he be an assignee for value. 
 
 Assignee of Mortgage — ^Equities.— Bank v. Thomas, 1887, 19 W. N. C. 
 575. The assignee of a mortgage, unless the mortgagor is estopped from the 
 defence, holds it subject to all equities with which it was affected iu the 
 hands of the mortgagor. 
 
 lb. — Notice.' — Ashton's Ap,, 1873, 23 S. 153. An assignee of a mortgage 
 takes it subject to all equities between the original parties unless he be a 
 purchaser without notice and the mortgagor has estopped himself by a certi- 
 ficate of no set off. A subsequent assignee with notice claiming under such 
 an assignee gets the latter's title. 
 
 Assigning a Title— Setting Up Superior One. — Kennedy v. Skeer- 
 1834, 3 W. 95. One who has assigned one title is estopped from setting up 
 a better one against any person claiming under his grantee. 
 
 Assisting Work — Damages. — Woodward v. Webb, 1870, 15 S. 254. One 
 who assists in the work of building a dam on another's land, is not estopped 
 from claiming damages from the overflowing of his land in consequence of 
 the dam. 
 
 Attorney and Client — ^Mortgage — Lien. — Trust "Co. ■■». Simon, D. C, 
 1862, 19 Leg. Int. 292, S. C. 5 Phila. 65. The fact that the attorney of a 
 purchaser at sheriff's sale of mortgaged property, had in a previous conver- 
 sation with the mortgagee stated that the sale would not discharge the mort- 
 gage, is not sufficient to preserve the lien against the purchaser, when it was 
 in fact divested. 
 
 Auditor— Presenting Claim Before. — National Gas Co. 's Ap., 1881, 1 
 Penny. 100. One who has presented his claim to an auditor is estopped 
 from setting up the fact that the fund has not been paid into court. 
 
 lb. — lb. — Henneigh v. Kramer, 1865, 14 Wr. 530. One participating in 
 
ESTOPPEL. 195 
 
 proceedings before an auditor, and exceptions thereto, is estopped from deny- 
 ing his authority. 
 
 Averments in a PetiKLon— Title.— Garber v. Doersom, 1887, 2 Cftim. 
 162. The averments of a petition filed in a judicial proceeding relating to 
 the title ot property, will estop the petitioner from showing in a subsequent 
 proceeding involving the same subject matter, a title different from that he 
 formerly averred. 
 
 Award Given in Evidence— Questioning its Validity.— Martin v. 
 Ives, 1828, 17 S. & E. 365. Giving an award in evidence by way of set-off, 
 estops the party from afterwards denying its validity. 
 
 Bond— Promise of no Set-Oflf.— Henniss v. Page, 1837, 3 Wh. 275. A 
 bond given by way of final settlement of mutual claims, and which the ob- 
 ligor promises shall be paid at maturity, and that he will not procure a set- 
 oft, must be paid, and a set-off will not be allowed. 
 
 Borrowing Money From Society— Ultra Vires Acts.— McLean v. Man, 
 D. C, 1877, 1 W. N. C. 8. One who has borrowed money from a society is 
 estopped from setting up that it was ultra vires, and so defeating payment. 
 
 Certificate of no Defence— Assigned Judgment.— Scott's Appeal, 1889, 
 6 Lan. L. Rev. 175. The defendant in a confessed judgment which was as- 
 signed, is estopped from setting up a defence after giving to the assignee a 
 certificate of no defence, unless it can be shown that the assignment was 
 colorable. * 
 
 Certificate Signed in Blank— Pledgee for Valiie.— Burton's Ap., 1880, 
 12 N. 214. One who has left certificates of stock assigned in blank with his 
 brother, is estopped from setting up his ownership against an innocent 
 pledgee for value, though the brother has transferred them to secure his own 
 debt. 
 
 Church— Sale of Property— Title.— St. Bartholomew Church V. Wood, 
 1876, 30 S. 219. Church property was sold by the sheriff, inquisition and 
 condemnation having been waived by the officers without authority. The 
 church, without giving notice of any claim on their part, allowed the pur- 
 chaser to sell to another innocent party who made valuable improvements 
 and to whom the officers delivered possession. Held that the chiirch was es- 
 topped from setting up the want of authority in their officers and the conse- 
 quent invalidity of the title that passed. 
 
 City — Satisfaction of Claim Entered of Record. — Lawrence v. City, 
 C. P., 1884, 14 W. N. C. 421. The city is estopped by an entry of satisfac- 
 tion of a claim of record. 
 
 Conduct Binding.— Reel v. Elder, 1869, 12 S. 308. Where one by his 
 words or conduct induces another to believe in the existence of a certain state 
 of things and to act on that belief so as to alter his previous position , he is 
 estopped from setting up a different state of things. 
 
 Contract— Enjoyment— Disputing Title. —Dyer v. Walker, 1861, 4 Wr. 
 157. One who enters into an enjoyment of a right under a contract with the 
 supposed owner, is estopped trom disputing the latter's title, unless the de- 
 fect alleged have hindered the enjoyment of the right 
 
 lb.— Subscriber — Payments. — Pittsburgh R. R. v. Stewart, 1861, 5 Wr. 
 54. A subscriber who under a special arrangement may pay either in goods 
 or cash, makes his first payment in cash, is not estopped from setting up 
 the contract as to the balance. 
 
 lb.— To Sell Land— Partial Title— Trustee.— Tyson v. Passmore, 1845, 
 2 Barr, 122. One contracting to sell a tract of land, but being able to make 
 title to but a part of it, will be held a trustee as to the rest upon acquirii:;; 
 title to it. 
 
 Conveyance— Ground Rent— Recording— Municipal Claim.— Saltci- 
 V. Reed, 1850, 3 H. 260. Where one who conveys land on a ground rent 
 neglects to record his deed, he is estopped from claiming title against a pur- 
 
196 ESTOPPEI,. 
 
 chaser of his grantee's title at a sale made upon a municipal claim twenty- 
 three years later, the claim having been filed against the grantee as owner 
 or reputed owner. » 
 
 lb.— No Title — Subsequently Acquired Title.— McWilliams v. Nisly, 
 1816, 2 S. & E. 507. One who conveys land to which he has no title is es- 
 topped from setting up a title which he afterwards acquires. 
 
 Consideration — Necessity For. — Shafer v. Linnard, C. P. 1885, 42 Leg. 
 Int. 192. One who has not parted with what would be a valuable consider- 
 ation cannot assert an equitable estoppel. 
 
 Contractor— Death of— New Agreement.— Billings' Ap., 1884, 10 Out. 
 558. Where upon the death of a contractor all the parties interested agree 
 that the work shall be continued by another, they are estopped from after- 
 wards setting up that the contract was terminated by the death of the con- 
 tractor. 
 
 Court and Jury. — Brubaker V. Okeson, 1860, 12 C. 519. Whether certain 
 conversations amount to an estoppel is for the jury. 
 
 lb. — Contribution for Laying Drain. — Lewis v. Corstain, 1843. 5 W. & 
 S. 205. It is a question for the court whether one who has demanded con- 
 tribution from a neighbor for laying a drain in alley is estopped from deny- 
 ing a subsequent purchaser's right to the use of the alley. 
 
 lb.— Practice.— Berg v. McClafferty, 1888, 21 Y- N. C. 547. Where the 
 facts stated in a point which the court is asked to affirm, tended to establish 
 an estoppel and the facts were properly left to the j ury, it is error for the 
 court absolutely to refuse the point. 
 
 Cross-Bill Filed.— Pittsburgh R. R. v. Mt. Pleasant R. E., 1874, 26 S. 
 481. Qusere, whether after a defendant has filed a cross bill he can object to 
 the jurisdiction of the court ? 
 
 Damages — Acceptance of— Change in Road. — Campbell's Appeal, 
 1888, 22 W. N. C. 81. Where a man accepts damages awarded by a jury of 
 view, he has lost his right to maintain a bill in equity subsequently, for the 
 purpose of j-estraining the railroad company from claiming the site of the 
 public road on which his property abuts, on the ground of special injury, 
 when the said change was clearly indicated at the time of the assessment of 
 damages. In such case, however, as the master found the change of site not 
 a strict recessity, the company was decreed to pay tie costs. 
 
 lb.— Standing by While Way is Opened.— Pittsburgh v. Scott, 1845, 1 
 Barr, 309. Where one owning property petitioned, with others, for a way, 
 was one of the committee of city councils that superintended the opening, 
 and stood silently by while the city made valuable improvements without 
 asserting in any manner his claim for damages, although the act authorizing 
 the way to be laid out made ample provision in this respect, he is estopped 
 from asserting his title to the property. 
 
 Debtor and Creditor— Securities— Testimony.— Ayers v. Wattson, 
 1868, 7 S. 360. A debtor in an action on one security testified immaterially 
 that the creditor held another security. Held that the debtor was not es- 
 topped in a subsequent action on the other security from denying that it 
 existed. 
 
 Declaration of no Set Off.— Robertson v. Hay, 1879, 10 N. 242. Where 
 one executes a bond and mortgage together with a certificate of no defence 
 and places the papers in the hands of a broker under certain instructions, 
 the mortgagor is estopped from setting up a defence against one to whom 
 the broker has assigned the mortgage although the broker has acted fraudu- 
 lently and has appropriated the money to his own use. 
 
 lb.— Griffiths V. Sears, 1886. 17 W. N. C. 468. A declaration of no set-off 
 given to an intended purchaser of a mortgage operates in favor of subsequent 
 assignees only when they have no notice — either actual or constructive — of 
 facts impeaching the declaration. 
 
KSTOPPEL. 197 
 
 Decree— Claiming Rights Under— Attacking.— Baily r. Baily, 1863, 8 
 Wr. 274. Ote claiming his rights acq^uired by a decree of court, Is estopped 
 from subsequently attacking that decree. 
 
 Deed— Descriptive Recital.— Muhlenberg v. Druckenmiller, 1883, 7 
 Out. 613. A recital in a deed which is merely descriptive does not amount 
 to an estoppel. 
 
 lb.— Parties Affected— Allen v. Allen, 1863, 9 Wr. 468. A recital in a 
 deed is not an estoppel in favor of a third person unless he has been misled 
 by it. 
 
 lb.— Void as Conveyance.— Walker v. Walker, 1870, 17 S. 185. A deed 
 void as a conveyance may nevertheless, if acted on, pass title in equity as 
 an estoppel. 
 
 lb.— Words of Inheritance— Covenant of Warranty.— Shaer v. Gal- 
 braith, 1847, 7 Barr, 111. Although a deed without words of inheritance 
 in the granting clause is not enlarged by a covenant of warranty in fee sim- 
 ple, yet such covenant does operate as an estoppel upon the grantor and 
 those with notice of the deed. 
 
 Defendant at Law — ^Injunction — Practice. — Hestonville E. R. v. 
 Shields, 1869, 3 Brews. 257. A defendant at law may come into equity and 
 ask for an injunction restraining the suit, after he has pleaded or filed his 
 affidavit of defence. 
 
 Defence— Promissory Notes— Subsequent Action on Notes.— Kiem 
 V. Ainsworth, 1880, 14 N. 310. Where under a plea of accord and satisfac- 
 tion a defendant has offered in evidence certain notes which he has given 
 plaintiff, he is estopped from setting up any defence to the notes in a subse- 
 quent action upon them. 
 
 Deposit by Deceased Wife— Husband — Administrator.— McDermott 
 V. Miners' Savings Bank, 1882, 4 Out. 285. A husband informed a bank not 
 to pay out any money which his wife, prior to her death had deposited for 
 him, the bank informed him that part of it was deposited in the wife's name 
 and he accordingly had an administrator of the wile appointed who drew 
 the money. Held that the husband was estopped from suing the bank for 
 this amount. 
 
 Disclaimer of Title.— Helser v. McGrath, 1866, 2 S. 531. A disclaimer 
 of title only works an estoppel when acted on. 
 
 Distributees Presenting Claims — Withdrawal. —Rhodes' Est., 1869, 
 C. P. Lancaster, 1 Lan. Bar, No. 28. Where one of two distributees who 
 had presented a claim against an estate, was induced to withdraw it by the 
 promise of the other that he would not present his claim, the latter is notes- 
 topped. 
 
 Dividends on Voidable Assignments. — Adlum v. Yard, 1829, 1 R. 163. 
 A creditor who receives a dividend under a voidable assignment thereby 
 confirms it, and cannot afterwards question its validity. 
 
 Dividends— Stock Transferred to Another.— Wright's Ap., 1882, 3 
 Out. 425. An estoppel will arise only in favor of one ignorant of his rights. 
 Therefore where a company pays dividends to one who knows that his stock 
 has been transferred, no estoppel can arise in favor of the stockholder. 
 
 Ejectment — Improvements After One Verdict — Mistake. — Irwin i. 
 Nixon, 1849, 1 J. 419. Where one claiming title has lost in one action of 
 ejectment and stands by while improvements are made by a bona fide pur- 
 chaser on the strength of the decision, he is estopped from claiming those 
 improvements though he recover in the second ejectment. He is estopped 
 by the mistake of himself and his counsel, when he fails to discover in the 
 first action the true legal principles applicable to his case. 
 
 lb. —Written and Oral Agreement.— McReynolds v. McCord, 1837, G 
 W. 288. A plaintiff in ejectment who has asserted a written agreement 
 under which he claims title, is not thereby estopped from asserting another 
 and independent oral agreement. 
 
198 ESTOPPEL. 
 
 Election— Accepting Benefits.— Ripple v. Eipple, 1829, l E. 386. One 
 having accepted a benefit under an instrument which he might have avoided 
 is bound by his election. 
 
 Endorsement— Notice— Practice.— Dunn's Ap., 1879, 9 N. 367. One is 
 not estopped by an endorsement which he has made on a bond, but which is 
 not noted on the judgment index when the bond is entered up. 
 
 Evidence— Family Book— Objections— Subsequent Issue.— Oiler v. 
 Bonebrake, 1870, 15 S. 339. One who has resisted the admission as evidence 
 of a book as a, "family book," is not thereby estopped from offering the 
 book in ^idence on an issue to try whether it is a "family book." 
 
 Exchange — Improvements — Ejectment — Injunction — Jurisdic- 
 tion. — Big Mountain Improvement Co.'s Ap., 1867, 4 S. 361. Complainant 
 entered upon land under a parol promise of exchange and made improve- 
 ments with the knowledge of the owner. Held that the owner was estopped 
 from denying the complainant's right, and that on bill filed an injunction 
 vrill be granted to restrain the defendant from bringing ejectment. The fact 
 that complainant may have an equitable defence to such an action is not 
 such an adequate remedy at law as ousts the jurisdiction of equity. 
 
 Executors Dividing Trust Fund — Interest of Legatee. — Weldy's Ap., 
 1883, 6 Out. 454. Where executors divide the trust fund between them, and 
 a legatee receives her interest from one executor for many years, she is not 
 estopped from claiming it from the other upon the insolvency of the one who 
 has been paying it to her. It is not a case of the liability of a co-executor 
 for the default of his associate, for each is in default. 
 
 lb.— Title.— Miller v. Springer, 1871, 20 S. 269. The testator's executor 
 had been his attorney and had all along treated certain property devised by 
 the testator as belonging to the testator. Held he was estopped from setting 
 up title in himself. 
 
 Family Settlement. — Simpson's Ap., 1848, 8 Barr, 199. Where a widow 
 has ratified a family compromise by accepting a payment of her shtje there- 
 under, she is estopped from claiming her dower. 
 
 Forgery — Delay. — Zell's Ap., 1883, 7, Out. 344. One who discovers that 
 his name has been forged to an instrument, is not estopped from setting up 
 the defence of forgery by not immediately seeking out the holder and in- 
 forming him of the fact. 
 
 Former Recovery — Must be Pleaded. — Long v. Long, 1836, 5 W. 102. 
 A former recovery on the same cause of action must be pleaded in order to 
 act as an estoppel. 
 
 Fraudulent Conveyance— Party Denying Validity. — French v. Mehan, 
 1867, 6 S. 286. One a party to a conveyance in fraud of creditors is estop- 
 ped from denying its validity, as are also those claiming under him. 
 
 lb.— Exemption.— Dieffenderfer v. Fisher, 1859, 3 Gr. S. C. 2 Luz. L. 
 Ob. 289. A debtor who has conveyed his property in fraud of creditors, is 
 estopped from claiming thereout his three hundred dollars exemption. 
 
 Gift on Creditor— Title.— Miller v. Miller, 1868, 10 S. 16. A father who 
 gives land to his son under an agreement of support which was performed, 
 is estopped from setting up an after-discovered title. 
 
 Grantees of Same Grantor — ^Purchase of Outstanding Title.— Smiley 
 
 1'. Dixon, 1830, 1 P. & W. 417. There is no such privity between two gran- 
 tees of adjoining tracts from the same grantor, as estops one after running a 
 boundary line with the other, from acquiring an outstanding title to the 
 whole. 
 
 Guarantor — Defence— Notice — Set Off. — Ayres «. Findley, 1845, 1 
 Barr, 501. If the guarantor of a note has notice, of an action by his guaran- 
 tee against the maker, he is estopped from making defence to an action on 
 his guaranty in case the judgement in the action on the note was for defendant. 
 
 Guardian and Ward— Settlement.— Commonwealth o. Woltz, 1849, 10 
 
ESTOPPEL. 199 
 
 Barr, 527. A ward after coining of age settled with his guardian and gave 
 a receipt. The guardian died and his administrators distributed his estate 
 ■without taking refunding bonds, the ward not having objected to his settle- 
 ment with the guardian. Seld the ward was not estopped from proceeding 
 against the administrators. The doctrine of equitable estoppel discussed at 
 length. 
 
 lb.— Applying to Wrong Court— Account Filed in Proper Court.— 
 
 McClure v. Commonwealth, 187-5, 30 S. 167. A guardian was appointed by 
 the wrong orphans' court, hut settled his account in the right one. In an 
 action on his bond, Sdd that both he and his sureties were estoppfed from 
 denying the validity of the bond. 
 
 Husband and Wife— Ante-Nuptial Deed— Revocation.— Hideli's Ap., • 
 1880, 9 W. N. C. 212. A husband who has in one suit attempted to have a 
 deed made by his wife before marriage revoked, and has failed, is concluded 
 from bringing aHother suit, claiming that it was made in fraud of his marital 
 rights. 
 
 lb.— Erecting Fixtures on Wife's Mortgaged Property— Notice. — 
 Buck's Ap., 1882, 2 Penny. 327. A husband who has erected trade fixtures 
 on his wife's land which she has previously mortgaged, and who gives no 
 notice of his claim at a sale under the mortgage, cannot claim them after 
 tjje sale. 
 
 lb.— Trading Under Wife's Name.— Young «. Young, 1883, 15 W. N. C. 
 416. A husband who has been engaged with his wife in business under the 
 name of the latter, she being a feme sole trader, is estopped from denying 
 that she is the real owner of the business. 
 
 Illegal Ordinance— Not Opposing Passage of —Barton v. Pittsburgh, 
 1870, 4 Brews. 373. One who was in a position to prevent an illegal ordi- 
 nance from being passed and who kept silent, is so far estopped that he can- 
 not ask the court to grant a preliminary injunction against the enforcement 
 of it. 
 
 Ii^unction — Officers of Unincorporated Society — Irregular Proceed- 
 ings. — Lowry v. Eead, 1870, 3 Brews. 452. Equity will enjoin the suspen- 
 sion of an officer of an unincorporated society by irregluar proceedings, and 
 the fact that the suspended member has acquiesced does not estop other 
 members who are thereby injured from applying for the injunction. 
 
 lb — Opening Street — Damages. — Hortoru. Cunningham. C. P., 1874,'l 
 W. N. C. 17. An injunction will not be granted to restrain the opening of 
 a street in a certain way, when it appears that the plan now objected to had 
 been before the jury assessing damages, and that complainants had then re- 
 <5eived the damages awarded. 
 
 Insurance Company— Assessment— Validity of Policy.— Somerset 
 Ins. Co. V. Lepley, 1862, 3 Luz. L. Obs. 52. Where a mutual insurance 
 company lays an assessment on the note of a member who has suffered a 
 loss (which is known to the company), it is estopped from denying the vali- 
 dity of his policy. 
 
 Insurance Policy Conditioned on Signing.— Universal Fire Ins. Co. v. 
 Block, 1885, 4 Leg. Int. 46. Where it is expressed in an insurance policy 
 that it is not valid "until countersigned by A. B.," the company is estopped 
 from contesting the validity of a policy thus countersigned in the hands of 
 one who has paid the premium in good faith to A. B. 
 
 Interpleader— Fraud— Levy and Suit on Notes.— Craver v. Miller, 
 1870, 15 S. 456. Creditors who attacked a conveyance as fraudulent, both 
 levied on the property and attached the notes given for its payment. ITeld 
 that the latter action did not estop them in an interpleader issue under the 
 former. 
 
 Judgment Debtor— New Judgment Notes— Defence.— Schenck's Ap., 
 1880, 13 N. 37. Where a judgment debtor has given new judgment notes in 
 order to get a stay of execution, he is estopped from afterwards setting up 
 the defence of fraud to the first judgment. 
 
'200 ESTOPPEL. 
 
 Judgment for Future Advances— Statement of Amount Due.— Ter- 
 
 Hoven v. Kerns, 1845, 2 Barr, 96. One having a judgment to cover luture 
 advances, who, in order to enable his defendant to raise more money, gives a 
 statement of the amount then due, is estopped from afterwards claiming be- 
 yond that amount. 
 
 lb.— One Not Bound— Proceeds of Sale.— Smith v. Warden, 1852, 7 H. 
 424. One not bound by a j udgment, but who nevertheless receives his share 
 of the proceeds of a sale under it, is estopped from denying the title of the 
 purchaser. 
 
 lb. — Stay of Execution— Failure of Consideration. — Riegel v. Wilson, 
 
 1869, 10 S. 388. A defendant in a judgment which had been entered by 
 default, pleaded freehold and obtained a stay of execution. This did not 
 estop him from afterwards setting up a failure of consideration. 
 
 Judicial Sale — Irregularity — Improvements. — Hamilton v. Hamilton, 
 1846, 4 Barr, 193. One consenting to arrangements made in regard to a 
 judicial sale, and receiving her part under it and standing by while the pur- 
 chaser made valuable improvements, is estopped from asserting her title. 
 
 Jurisdiction— Refusal to Answer Interrogatories — Defence.— Eaysor 
 V. Hoke, 1879, 2 Pears. 362. Where an administrator refused to answer in- 
 terrogatories because the justice of the peace had no jurisdiction, he is not 
 estopped from setting up his defence to the account. 
 
 Laches or Non-User by the Public. — Commonwealth v. Moore, 1884, 4 
 Kulp, 71. Mere laches or non-user of a public road by the public and the 
 adverse possession of the same for twenty-one years by another will not es- 
 top the public from reasserting their rights. 
 
 lb. — Improvements on Adjoining Land. — Leibig v. Ginther, 1873, 1 
 Post. 203, S. C. 4 Leg. Gaz. 245. One who stands by while defendant 
 greatly improves his own land and makes no objection that it will damage 
 him, cannot ask equity to remove the structure, but must be satisfied with 
 his legal remedy. 
 
 Landlord Claiming Property of Tenant. — Edwards' Ap., 1884, 9 Out. 
 103, aflfg. S. C. 13 W. N. C. 111. One who has claimed the property of his 
 tenant which has been taken by the sheriff, is estopped from coming in on 
 the fund as a creditor of the tenant. 
 
 Levying on Partnership Stock as Such. — Eogne's Ap., 1876. 2 N. 101, 
 One who has levied on the stock of a partnership as partnership stock, is es- 
 topped from setting up before the auditor that there is no partnership, so as 
 to claim under a prior levy against the person who, according to his claim, 
 was the firm. 
 
 Lien Creditors — Agreement— Decedents' Estates— Schroeder's Est., 
 
 1870, O. C. Berks, 2 Woodw, Dec. 290. Where lien creditors made an ar- 
 rangement with a purchaser at orphans' court sale and the administrator to 
 leave their liens on the land sold, they cannot upon subsequently losing 
 them come upon the administrator who has conveyed to the purchaser with- 
 out demanding that portion of the purchase money represented by the liens. 
 
 License Coupled With Interest.— Huff v. McCauley, 1866, 3 S. 206. 
 The law that a license becomes irrevocable when coupled with an interest, 
 rests upon the doctrine of estoppel. 
 
 Licensee of Patent — Denying Validity.— Patterson's Ap., 1882, 3 Out. 
 521. The licensee of a patent is estopped from denying its validity as long 
 as be uses it, unless the court has refused to enjoin those infringing it. 
 
 Lien of Mortgage— Revival. — Cleary v. Kennedy, C. P. 1885, 42 Leg. 
 Int. 286, S. C. 16 W. N. C. 313. The lien of a mortgage which has been , 
 discharged by a sale under a prior incumbrance, revives upon the property 
 again coming into the hands of the mortgagor. 
 
 Loan to Improve Wife's Property. — Thompson v. Thompson, 1876, 1 
 N. 378. One who lent money to a husband to use in completing a purchase 
 
ESTOPPEL. 201 
 
 for his wife is estopped from claiming that the judgment given therefor is 
 a lien on this (the wife's) property. 
 
 Lunatic— Improvements— Compensation.— Rogers v. Walker, 1847, 6 
 Barr, 371. A lunatic may recover land conveyed by him without restoring 
 the purchase money or compensating for improvements. The conveyance 
 was void, and, as to the improvements, the lunatic could hot be estopped, 
 not being capable of knowing his rights. 
 
 Member of Board Owning Securities— Non-Assent.— Love v. Phila. & 
 B, E. E. Co., 1888, 21 W. N. C. 573. A member of a board is not estopped 
 from proceeding in his individual right as a holder of a company's securities 
 by the fact that he was a member of the board at the time a plan of reor- 
 ganization was passed, but to which he did not give Lis assent 
 
 Mistake in Levy— Title.— McLaughlin «. Shields, 1849, 2 J. 283. Mere 
 acquiescence in a sale under a mistaken levy, does not estop the defendant 
 from setting up his title. 
 
 lb.— Mortgage— Wentz's Ap., 1881, 10 "W. N. C. 284, S. C. 13 Lan. Bar. 
 81. Evidence of a mistake in the description of property covered by a re- 
 corded mortgage is inadmissible against a subsequent judgment creditor, as 
 to the property intended to be covered. 
 
 lb.— Mutual.— Plumer's Ap., 1881, 11 W. N. C. 144. An estoppel can- 
 not arise from a mutual mistake of law. 
 
 lb. — Of Surveyor — Purchase by Heir.— Lawrence «i. Luhr, 1870, 15 S. 
 236. Where a surveyor in locating a warrant, by mistake located it on an 
 adjoining tract, atkd afterwards himself bought this adjoining tract, and the 
 mistake was not discovered until both titles had passed into other hands, it 
 was held that there having been neither fraud nor positive acts, there could 
 be no estoppel, and that therefore, the title derived through the one who 
 made the erroneous survey was, the valid one. 
 
 lb.— Of Vendor— Improvements.— Willis v. Swartz, 1857, 4 C. 413. A 
 vendor who selling part of a larger tract stakes it off, cannot after it is buil t 
 upon, recover back an excess included by his own mistake. 
 
 Money in Court — Removal in Part — Award. — Bonder's Ap., 1868, 7 
 S. 498. One taking money out of court which belongs to him without dis- 
 pute, is not estopped from contesting an award of the rest to another party. 
 
 Mortgage — ^Agreement to Deduct From Purchase Money. — Jermon 
 V. Lyon, 1886, 31 S. 108. An orphans' court sale under the Price Act dis- 
 charges a mortgage, but an agreement made before the deed is acknowledg.id, 
 to the effect that the mortgage shall remain a lien and its amount be de- 
 ducted from the purchase money binds the party making it, and those claim- 
 ing under him, who have taken expressly subject to the mortgage by way of 
 estoppel. 
 
 lb.— Certificate of, no Defence.— Hutchison v. Hill, 1879, 10 N. 253. A 
 mortgagor who delivers to the mortgagee a certificate of no defence, is es- 
 topped from setting up against a purchaser that there was fraud in obtain- 
 ing the mortgage. 
 
 lb.— lb.— Promissory Note.— Jeffers v. Gill, 1879. 10 N. 290. One who 
 ■leaves a mortgage with a certificate of no defence, and a promissory note 
 in the hands of the same creditor as security for the same debt, may be 
 called on to pay the debt twice over. 
 
 lb.— Declaration of no Set-off.— Gill v. Hutchinson, 1879, 7 W. N. C. 
 545. A mortgagor who gives a certificate of no defence to the mortgagee at 
 the time the mortgage is executed, is estopped from setting up against one 
 who has purchased the mortgage, that there was fraud in obtaining the 
 mortgage, or that the mortgagee misappropriated the proceeds obtained from 
 its sale. 
 
 lb.— Recitals In— Parties Affected.— Sunderlin v. Struthers, 1864, 11 
 Wr. 411. Eecitals in a mortgage do not estop those joining in the mortgage 
 
202 ESTOPPEL. . 
 
 in favor of a third person, whose interest was acquired before the mortgage 
 was on record. 
 
 lb.— Sale of Part of Property.— Calder v. Chapman, 1866, 2 S. 359. A. 
 bought a tract of land except the "factory lot." He afterwards gave a 
 mortgage on the whole tract. He then bought the "factory lot," after 
 which judgments were recovered against him. Held that the purchaser of 
 the " factory lot " under the judgment got a good title. There was no es- 
 toppel in the case. 
 
 lb.— Sheriff 's Sale— Different Comities.— Menges v. Oyster, 1842, 4 w. 
 & S. 20. A sheriff 's sale upon a mortgage confers title only as to the part 
 of the premises within his county, nor is there any estoppel by the mort- 
 gagor advertising in good faith, that the land in both counties was to be sold 
 and in afterwards giving up the possession and looking after the payment of 
 the liens out of the purchase money. 
 
 Mortgagee— Non-Payment of Interest.— Pennsylvania Hospital v. 
 Gibson, 1839, 2 M. 324. A mortgagee, by not Insisting on a forfeiture on 
 account of non-payment of interest, does not preclude himself from insist- 
 ing on it upon the opportunity again arising. 
 
 Mortgagee's Parol Agreement to Purchase— Trustee Ex Male- 
 facio. — ^Yeager's Ap., 1882, 4 Out. 88. Where one of three joint mortgagees 
 bought in the property under a parol agreement with his fellows, and one of 
 the latter when called on to furnish his third of the purchase money declined, 
 saying that he was making other arrangements for the payment of his share 
 whereupon the other two divided the expence, the one declining cannot after- 
 wards enforce the parol contract. 
 
 Mortgagor and Mortgagee— Policy of Insurance —Earnest v. Hos- 
 kins. 1882, 4 Out. 551. A mortgagor is not estopped from setting up a de- 
 fence which he had against the mortgagee, by giving the assignee of the 
 mortgage his policy of insurance on the property with a power of attorney 
 to collect in case of loss. 
 
 lb— Certificate of no Set-off.— Scott v. Sadler, 1866, 2 S. 211. . A mort- 
 gagor who has given a certificate of no set-off, and that the whole amoontis 
 due, must pay the full amount to an assignee who purchased on the faith of 
 the certificate though he bought it at a discount, an d it had really been paid. 
 
 lb. — Scire Facias Defence— Erection. — Steinhauer v. Witman, 1815, 1 
 S. & R. 438. A mortgagor is not estopped from showing as defence to a scire 
 facias, an eviction by a title paramount of part of the mortgaged premises. 
 
 Notice — Improvements — Title. — Walker v. Quigg, 1837, 6 W. 87. 
 One buying a title with notice that it is not complete, takes it subject to 
 whatever may turn up, and cannot even claim compensation for improve- 
 ments from those who have stood by while he was making them without as- 
 serting their right. 
 
 Nuisance— Defence to Pajrment for Land.— Cornell v. Green, 1823, 10 
 S. & E. 14. One who purchases land affected by an open nuisance, cannot 
 set up its existence as an equitable defence in an action for the price of the 
 land. 
 
 Obligor— Bond— Assignee— Defenee.—Weaver v. Lynch, 1855, 1 C. 449. . 
 To estop the obligor of a bond from setting up a defence against the assignee, 
 there must be shown not only that he told the assignee that there was node- 
 fence, but also that the assignee is not a volunteer. 
 
 lb.— In Bill.— Jean v. Herrold, 1860, 1 Wr. 150. An obligor in a single 
 bill with warrant of attorney, is not precluded from setting up a defence, 
 unless his acts have constituted an estoppel. 
 
 lb.— Statement of no Defence.— McMull en v. Wenner, 1827, 16 S. &E. 
 18. statements by an obligor of a bond in the presence of an intended as- 
 signee that he has no defence binds him. • 
 
 Parol License— Expenditure.— Kay v. Penna. R. R., 1870, 15 S. 269. 
 
ESTOPPEL. 203 
 
 Parol license, followed by expenditure, will estop one even as to land, with- 
 oat lapse of time. 
 
 Partition— Petition for— Boundaries.— Ormsby v. Ihmsen, 1859, 10 c. 
 462. Where one petitioning for partition of a tract describes the boundaries, 
 this partakes somewhat of the compromise ol a doubtful right, and if acted 
 on by the defendants constitutes an estoppel in pais. 
 
 Parting With Ownership— Purchaser.— Wood's Ap., 1880, 11 N. 379. 
 One who has clothed another with all the indicia of ownership of property, 
 is estopped from claiming it against one, who has in good faith, and for 
 value, purchased from the apparent owner. 
 
 lb.— Sale of Interest— Sheriff 's Vendee— Notice.— Wylie's Ap., 1879, 
 9 N. 210. A partner who has sold out to his copartner, has no right to an 
 account with the sheriff's vendee of the latter's interest on the ground that 
 the full price of his interest has not been paid, he having given no prior no- 
 tice of his claim. 
 
 Partners— Judgment— Conduct.— Patterson v. Lytle, 1849, 1 J. 53. P. 
 & L. were partners; D had a judgment against them and levied with P.'s 
 direction on goods ojf A. in L. 's hands. P. purchased them for |500, L. giv- 
 ing notice that they were A.'s, P. also paid A. for them. On account each 
 claimed to be allowed |500 as having satisfied a firm debt with his own 
 funds. Held P. was not estopped by his action from disputing that the 
 goods were L. 's and should therefore receive the credit. 
 
 lb. — Judgment that Two are not — Subsequent Suit. — Hayes v. 
 Gudykunst, 1849, 1 J. 221. A judgment for defendants in a suit against two 
 partners, rendered on the point that they were not partners, estops either of 
 them from setting up the partnership in a subsequent suit against one sep- 
 arately. 
 
 Partnership — Judgments. — Kneib v. Graves, 1872, 22 S. 104. Plain- 
 tiff had obtained a judgment which bound separately only a portion of the 
 members of the firm. In a suit against a member not so bound, the latter 
 pleaded the other judgment as a former recovery. Held this did not estop 
 him from contesting execution against him personally on the other judgment. 
 
 Partial Payment on Judgment Note— Balance. — King v. Morris, 1874, 
 1 W. N. C. 45. A part payment on a judgment entered on a judgment note 
 in order to secure an extention, does not estop the debtor from contesting the 
 balance. 
 
 Pass— Biding on Employe's— Damages.— Buffalo E. E. v. O'Hara, 
 1882, 3 Penny. 190. One who rides on an employe's pass, is not estopped in 
 an action for damages for an injury received by an accident from denying 
 that he is an employ^. 
 
 Payor— Note— Set-off.— Louden u. Tiffany, 1843, 5 W. & S. 367. The 
 payor in a sealed note which reads "without defalcation for value received," 
 etc., may make use of a set-oft. 
 
 Personalty or Realty. — Earley v. Withers, 1864, 1 Pears. 248. An en- 
 gine fastened to the soil is part of the realty, but when the parties have 
 treated it as personalty they are estopped from denying it. 
 
 Petition Under Ordinance— Questioning Constitutionality.— Stranb 
 V. City of Allegheny, 1881, 29 Pitte. L. J. 309. One who has petitioned that 
 work done under an ordinance should be done a certain way, and has had 
 his petition granted, is estopped from afterwards setting up that the ordi- 
 nance is unconstitutional. 
 
 Possession by Permission — Ejectment.— Swartz v. Swartz, 1846, 4 
 Barr, 353. One allowing another to hold possession as part owner with him 
 of a mill site, to erect a mill and make other expensive improvements, is 
 estopped from ejecting him from possession. 
 
 Possession — Notice — Title.— Patton v. Borough of Hollidaysburg, 1861, 
 4 Wr. 207. Possession is notice of whatever title the possessor has; and one 
 
204 ESTOPPEI/. 
 
 is not estopped by subsequently receiving a deed, from setting up a prior 
 paTol title of which his possession was notice; the two titles are not incon- 
 sistent. 
 
 Post-Nuptial Settlement.— Campbell's Ap., 1876, 30 S. 298. For a 
 post-nuptial settlement to be binding, it must be unexceptionable on equit- 
 able grounds and the case must contain such elements of equitable estoppel 
 as would result in an injury to some interested party. 
 
 President of Two Roads— Acts of.— Pennsylvania E. E.'s Ap., 1876, 
 30 S. 265. A junction railroad was projected and built by the appellant and 
 other roads. The road lay through the property of the airpellant. The 
 president of the appellant was the president of the junction railroad. Held 
 that no acts of its president could estop the appellant from claiming its own 
 property. 
 
 Principal Receiving Agent's Vouchers— Bvidence.—Scott v. Strawn, 
 1877, 6 W. N. C. 132, S. C. 25 Pitts. L. J. 158. Where parties have settled 
 with their agent and received from him vouchers which they lose, they are 
 estopped from requiring him in a subsequent suit to give even secondary 
 evidence thereof. 
 
 Promise by Son— Partial Fulfilment.— Brooke's Ap., 1885, 15 W. N. 
 C. 537. A promise by an only son to his mother on her death bed, reduced 
 to writing and signed by him, she not having executed a will, that he would 
 pay the interest of a certain sum to her sister and the principal to the sister's 
 heirs, is binding on him either as a trust or by way of estoppel, after he has 
 handed over the memorandum to the sister and paid her the interest until 
 her death. 
 
 Purchasing a Second Time— Title.— Cooper v. Bnshley. 1872, 22 S. 
 252. One who has purchased the same land twice at treasurer's sale, and 
 the second time has received the redemption money, is not estopped Irom 
 setting up his title under the first sale. 
 
 Purchaser at Sheriff's Sale — ^Admissions. — Shearer v. Woodbum, 
 1849, 10 Barr, 511. A purchaser at sheriff's sale, is not estopped by the 
 prior admissions of the party whose title he buys. 
 
 lb. — Defective Mortgage. — National Transit Co. v. Weston, 1888, 6 
 Crum. 485. Where property is sold under a judgment sur mechanic's lien 
 and is bought in by a stranger, a subsequent sale under a mortgage which 
 bound the property at the first sale, does not convey a title which the first 
 purchaser is estopped from contesting, in event of the mortgage being de- 
 fective. 
 
 lb. — Wrong Tract. — Hiester v. Laird, 1841, 1 W. & S. 245. A pur- 
 chaser at sheriff's sale who mistakingly takes possession of the wrong tract, 
 is not estopped from asserting his right to that which he did purchase. 
 
 Purchase by Administrator— Wrong Tract. — Hays v. Heidelberg, 
 1848, 9 Barr, 203. A purchase by an administrator of defendant at a 
 sheriff 's sale, in trust for the creditors of the estate, is void against them if 
 they choose to disaffirm it, and the fact that one affirms it does not estop him 
 from afterwards proceeding against the property, if other creditors do not 
 af&im, as that is an implied condition of his affirmation. 
 
 Purchase by Agreement— Title.— Eupp v. Orr, 1858, 7 C. 517. Two 
 parties agreed that each should buy in a title to certain land and then di- 
 vide it. Held that the one getting the good title was estopped from setting 
 it up against the other. 
 
 lb.— Declarations as to Purpose— Rents and Profits— Tender.— Rog- 
 ers V. Johnson, 1871, 20 S. 224. Defendant bought plaintiff 's land at tax 
 Bale, plaintiff called on him to see about redeeming it, and the latter said 
 that he bought it to save it for the family and would return it on repayment. 
 These facts estopped defendant from claiming the land after the time for re- 
 demption had past, and the rents and profits having satisfied his claim he 
 could be ejected without any tender first being made. 
 
ESTOPPEL. 205 
 
 lb.— Subject to Mortgage.— Crooks v. Douglass, 1867, 6 S, 51. One 
 "bviyiag land expressly subject to a mortgage which would otherwise be dis- 
 cha,rged, who thereby gets the property for the value of the land less the 
 mortgage, is equitably estopped from denying that the mortgage is a valid 
 lien. 
 
 Receipt for Inheritance.— Fenstermacher v. Moyer, 1860, 11 C. 354. A 
 receipt given by a legatee to executors "for my inheritance," estops him 
 from claiming against the will. 
 
 lb.— From Mortgagee to Mortgagor— Money Paid on Faith of.— Por- 
 ter V. Megargel, 1884, 15 W. N. C. 388. A receipt from a mortgagee to a 
 mortgagor for the sum due on the mortgage, may be explained or contra- 
 dicted between the parties but not as against one who has advanced money 
 on the faith thereof. 
 
 Release— Devise on Condition.— McDonald's Estate, 1888, 5 Pa. Co. C. 
 Eep. 221. Where a son was given the privilege of taking real estate at an ap- 
 praised value, on condition that he pay a certain amount to testator's widow 
 and remainder to his children, and he did so, obtaining a release in full eie- 
 cuted by the children, Held the children were not estopped from claiming 
 their share of the amount due at the mother's death, as against judgment 
 creditors of the son. 
 
 Rebuilding Burned Edifice — Notice.— Cumberland R. R. v. McLana- 
 han, 1868, 9 S. 23. A warehouse of a railroad having burned down was 
 erected on its old site which was the land of the plaintiff. Held, that as he 
 knew of its being rebuilt and gave no notice he was estopped. 
 
 Right of Way— Erection of Wall.— Arnold v. Cornman, 1865, 14 Wj-. 
 361. One claiming a right of way, is estopped from asserting it by permit- 
 ting the owner of the servient tenement to erect a wall across it without pro- 
 testing in any way. 
 
 Sale — Stipulation for Excess — Bond and Mortgage. — Neil v. Thomp- 
 son, 1835, 4 W. 405. The vendor of a tract for a certain price with a stipu- 
 lation for the same rate as to any excess there might prove to be, is not es- 
 topped from suing for the price of the excess which was found to exist by 
 liaving given a deed and received a bond and mortgage for the purchase 
 money. 
 
 Service— Acceptance— Want of Jurisdiction. — Fulmer v. Kinsey, 
 1888, 5 Pa. Co. C. Eep. 426. A non-resident defendant, having been sued 
 before a justice of the peace with a long summons instead of a short sum- 
 mons, as required by Act of July 12, 1842 § 26, is not estopped by acceptance 
 of service from setting up want of jurisdiction in the justice, in case no ap- 
 pearance has been made. 
 
 Securities — Wrongful Pledge of— Notice. — Appeal of First Nat. Bank 
 of Allegheny, 1887, 19 W. N. C. 310. "Where securities were pledged by an 
 executor for a loan to be used for other purposes than that of administration 
 and the pledgee had actual or conatructive notice of the same, the pledgee 
 cannot hold the securities as against the beneficiaries under the will . But 
 where the executor is himself a beneficiary, the pledgee may particijiate as 
 beneficiary to the extent of the share of the wrong doing executor in the 
 securities pledged. 
 
 Sheriff— Trustee.— Robins v. Bellas, 1834, 2 W. 359. A sheriff who sells 
 land on a venditioni exponas is not thereby estopped from setting up the title 
 in himself as a trustee of the defendant in the execution. 
 
 Stockholders— Exercising Bights of —Clark v. Monongahela Nav. Co., 
 1840, 10 W. 364. One who has exercised the rights of a stockholder is es- 
 topped from denying his liability as such on the ground that he has not made 
 the preliminary payment required by the charter. 
 
 Statute of Frauds— Title.— Miranville v. Silverthorn, 1864, 12 Wr. 147. 
 One .cannot be estopped from asserting his title to land by a contract void by 
 the statute of frauds. 
 
206 ESTOPPEL. 
 
 Statute of Limitations— Debtor not Objecting to Account.— Verrier 
 
 V. Guillors, 1881, 1 Out. 63. The mere fact that a debtor receives an account 
 without making any objection, does not estop him from afterwards setting 
 up the statute of limitations. 
 
 Subscription to Stock. — Beil's Appeal, 1886, 5 Amer. 88. ■ One who sub- 
 scribes to the stock of a company ior the purpose of its organization, and the 
 company becomes incorporated after paying for one share of stock and 
 transferring the other, is estopped from denying his contract. 
 
 lb.— Admission.— Graff v. Pittsburgh R. R. Co., 1858, 7 C. 489. An ad- 
 mission by one that he has subscribed to an enterprise on the faith of which 
 others .subscribe, estops him from afterwards denying it. 
 
 Surety — Petition to Defend. — Lockwood v. Commonwealth, 1882, 12W. 
 N. C. 451. One who has on his own petition been allowed to defend in an 
 action on a bond, on the ground that he was a surety therein, is estopped, 
 judgment having been entered therein, from afterwards denying its validity. 
 
 Swearing to Ownership. — Garber v. Doersom, 1887, 20 W. N. C. 194. A 
 defendant havijag, in asworn petition, alleged the goods in controversy to be 
 the property of his sou, is estopped from asserting ownership in them when 
 trover is brought against him by the sheriff's vendee of the son's interest. 
 
 Tenant Denying Landlord's Title.— Reith v. Reith, C. P. 1883, 13 W. 
 N. C. 435. A tenant is estopped from denying his landlord's title, though 
 he avers that he himself purchased the property and signed the lease under 
 threats. 
 
 lb.— Surplus of Sale— Illegal Distress. —Ingram v. Hartz, 1864, 12 Wr. 
 380. A tenant by receiving the surplus produced on a distress and sale, is 
 not estopped from bringing an action for illegal distress. 
 
 Terra-Tenant Promising to Pay Judgment — Sale. — Rudy's Ap., 1880, 
 9 W. N. C. 308. A terre tenant who has promised to pay ■a judgment against 
 his vendor which formerly bound the land, but which had not been revived 
 against him, is not estopped by that promise from claiming as his own the 
 fund raised on a sale under another lien as against this creditor 
 
 Title— Dispute— Other Tracts.— Washabaugh v. Entriken, 1860, 12 C. 
 513. Asserting title to a portion of a tract about which there is no dispute, 
 works no estoppel as to the other part. 
 
 lb.— Of Record.— Knouff v. Thompson, 1851, 4 H. 357. One whose title 
 is on record cannot suffer by not asserting it, even though there be a similar- 
 ity of names which makes the case in favor of the estoppel somewhat 
 stronger. 
 
 lb. — Purchase Pending Feigned Issue. — Moore v. Whitney, 1872, 1 
 Fost. 1, S. C. 4 Leg. Op. 513. Pending the trial of a feigned issue, the goods 
 were levied on as the property of defendant and purchesed by the plaintiff 
 in the issue. Held that this estopped him from contesting the defendant's 
 title. 
 
 lb. — Setting up a Second. — Moncure v. Hanson, 18.50, 3 H. 385. The 
 rule that one having set up one title which turns out to be defective cannot 
 set up another, applies only where the latter was in himself at the time he 
 gave notice of the first. 
 
 lb.— Sheriff's Sale— Notice.— Hill v. Epley, 1858, 7 C. 331. One whose 
 title is on record, is not estopped by not giving notice of it at a sheriff'ssale 
 at which he was present. 
 
 Titles— Inconsistent.— Keely v. Ahers, 1827, 16 S. & R. 281. One who 
 gives a settlor notice of his title cannot, upon that title failing, set up an- 
 other and inconsistent one. 
 
 Tort — Promise to Pay Damages. — Armstrong v. Levan, 1885, 43 Leg. 
 Int. 76. A promise to pay damages caused by a tort, made within six years, 
 when relied upon acts as an estoppel. 
 
 Trial— Merits— Questioning Regularity.— Sherwood v. Yeomans, 1881, 
 
ESTOPPEL. 207 
 
 2 Out. 453. Where, after a cause has been marked settled, the court at the 
 instance of the plaintiff compels the defendant to go to trial, the latter is net 
 estopped by offering evidence as to the merits at the trial, from setting up 
 the irregularity of the proceeding. 
 
 lb. — Set-off. — Simpson v. Lapsley, 1846, 3 Barr, 459. A party is not es- 
 topped from recovering any part of a claim of over |100, because in a former 
 action against him by the defendant before a justice oi the peace he refused 
 to set off any item of this account. 
 
 lb. — ^Ib. — Herring v. Adams, 1843, 5 W. & S. 459. One sued before a 
 justice who has a set-off within the latter's jurisdiction and does not use it, 
 cannot afterwards use it. 
 
 lb. — lb. — Bitzer v. Killinger, 1863, 10 Wr. 44. A, defendant who has used 
 a set-off before arbitrators from whose award plaintiff appealed, is not es- 
 topped from using it in another action, instead of on the appeal of the first. 
 
 lb.— lb.— Bindley's Appeal, 1887, 19 "W. N. 6. 18. M. obtained judgment 
 against B. whereupon the latter filed a petition alleging that L. had recovered 
 a judgment against him upon an award by a referee which was properly pay- 
 able by M. , and praying that the amount of L. 's judgment should be credited 
 upon the judgment obtained by M. B. did not set this up upon trial of the 
 cause, nor had M. agreed to the trial of L. 's claim before a referee. _Seld 
 the tacts did not present a proper case for equitable interference. 
 
 Trustee and Cestui Que Trust — Set-off— Notice. — Mackey v. Coates, 
 1872, 20 S. 350. A trustee was sued by a stranger for the trust fund, tlie 
 former defeated recovery on the ground of set-off, which he afterwards ad- 
 mitted had been paid. SelcT that the cestui que trust was not concluded by 
 the suit, because, 1, he had not been notified of it, and, 2, the trustee had not 
 acted bona fide. 
 
 Trustee — Commissions. — ^Wade's Est., O. C. Lancaster, 1879, 11 Lan. 
 Bar, 47. A trustee is not estopped from claiming commissions on his final 
 account by not claiming them 'each year. 
 
 lb.— lb.— Informal Settlement.— Wister's Ap., 1878, 5 N. 160. A 
 trustee by not claiming commissions at informal settlements, is not estopped 
 ftom claiming them on his final account. 
 
 lb. — Consenting to Violation of Trust — Churcli. — Jones v. Wadsworth, 
 1877, 4 W. N. C. 514, affg. 11 Phila. 227, 239, 33 Leg. Int. 390, 416. Where 
 a trustee and his co-plaintiffs acquiesce in a use of church property in viola- 
 tion of the trusts on which it is held, they are not estopped from asserting 
 their rights to it. but they are estopped from recovering for mesne profits 
 pending litigation, and were charged their own costs though successful. 
 
 lb. — Second Husband. — Scnoch's Ap., 1859, 9 C. 351. A second hus- 
 band who at his own request has been substituted as trustee for his wife in a 
 trust created for her first coverture, and on being divorced has settled his ac- 
 count, is estopped from claiming the property under his marital rights on 
 the ground that the trust ceased with the first coverture. 
 
 Vendee — Equitable Ejectment — ^Articles of Sale.— Piper v. Sloneker, 
 1853, 2 6r. 113. A vendee who has defended an equitable ejectment by re- 
 lying on the articles of sale, cannot afterwards set up that the articles were 
 previously rescihded. 
 
 Vendor and Vendee— Covenant to Discharge a Mortgage.— Williams 
 V. Mullan. 1886, 1 Crum. 337. A vendor who has covenanted to discharge a 
 mortgage which he did not do, but on the other hand gave notice of it at a 
 sheriff's sale of the property on a judgment against his vendee, at which 
 sale he became the purchaser, is not estopped from comingin on the fund by 
 proving certain claims which he had against the vendee. 
 
 lb.— Judgment Creditors.— Water's Ap., 1860, 11 C. 523. A vendor 
 having a judgment against the equitable estate of his vendee, is estopped 
 from setting it up against subsequent judgment creditors, by reciting in his 
 
208 ESTOPPEL. 
 
 deed that the purchase money has been paid and that he releases to the ven- 
 dee all his estate, right, title, interest, claim, etc. This is an estoppel in 
 pais, not by deed. 
 
 Vendor— Agreement to Sell Complete Title.— Clark v. Martin, 1865, 
 l;i Wr. 299. A vendor who agrees to sell a complete title when he has less 
 than that, will, on his becoming possessed of the outstanding titles, he com- 
 pelled by decree to convey to his yendee, and this conveyance will enure to 
 the benefit of a mortgagee of the vendee. 
 
 Water Eent— Payment of for Two Houses.— Harrisburg's Ap., 1884, 
 11 Out. 102. One who has constructed adjoining houses in such a manner 
 that one hydrant supplies both with water, and yet who has for many years 
 paid the water rent which would be due if each house had a separate hydrant, 
 has no standing in equity (whatever be his legal rights), when, upon his re^ 
 fusal to continue paying water rent for each house, the water is turned off. 
 
 Widow Approving Order of Court for Partition.— Young v. BabUon, 
 1879, 10 N. 280, rev'g 26 Pitts. L. J. 149. A widow who endorses and ap- 
 proves of record an order of court for partition and agrees that it shall be 
 confirmed, is estopped from afterwards setting up an adverse title to the land. 
 
 lb. — ^Election. — Light v. Light, 1853, 9 H. 407. Au election by a widow 
 to take under the will, though not made in the statutory way, may, in the 
 absence of misrepresentation, bind her as an estoppel. 
 
 lb. — lb.— Ignorance.— Maple v. Kusart, 1866, 3 S. 348. A husband by 
 will directed his wife's land to be sold and the proceeds divided, this was 
 done, the wife requesting one of the children to buy it in, and receiving part 
 of the price, though not an election perhaps, because she was ignorant of her 
 rights, yet it was a plain case of estoppel. 
 
 lb.— Life Estate- Payments.— Troxell v. Crane Iron Co., 1862, 6 Wr. 
 513. A widow had a life estate in certain mining rights and her son the re- 
 mainder, her son, with her consent, sold the right to a company for a fixed 
 toll. This the company paid to either the son or the mother as was most 
 convenient. Held the mother had done nothing to estop her from claiming 
 the rent for her life, and upon notice it must be so paid. 
 
 Will— Land of Another Devised — Payment Directed. — Thompson v. 
 Thompson, 1847, 7 Barr, 78. Plaintiff's property was devised to defendant 
 the will also directing defendant to pay plaintiff $150. Defendant took pos- 
 session and after twenty years conveyed the land, plaintiff joining in the 
 deed. Seld that plaintiff was not by this estopped from claiming the $150. 
 
 lb. — Recital in. — Burford v. Burford, 1857, 5 C. 221. A recital in a wUl 
 that "black acre has been given to A.," estopA one claiming under the will 
 from disputing A.'s title. 
 
 Witness — Calling Interested. — McBride's Estate, 1887, 4 Pa. Co. C. Rep. 
 564. When one calls an interested witness and examines him, he is estop- 
 ped from excepting to the admission of the testimony of this witness when 
 called by the other side. 
 
 Ib.^Incompetent Permitted to Testify. — Nolan v. Sweeny, 1875, 30 
 S. 77. A plaintiff was permitted to testify (an exception not being allowed) 
 concerning a transaction, the other party being dead. Held, that he was es- 
 topped from objecting to the competency of the wife of the Other party. 
 
 lb.— Partner Objected to— Questioning Partnership. — Kelly v. Eich- 
 man, 1838, 3 Wh, 419. A defendant who has objected to a witness as being 
 a partner of plaintiff and whose objection has been sustained, is estopped in 
 a subsequent action by the plaintiff and witness as partners from setting up 
 that there is no partnership. 
 
ESTOPPEL. 209 
 
 II. Bssential Elements Constituting: Equitable. 
 
 . Admission.— Eldred «. Haglett, 1858, 9 C. 307. The essentials of an es- 
 toppel in pais are, 1, a former admission clearly inconsistent with the evi- 
 dence offered, 2, that the other party has acted on the admission, and, 3, will 
 he harmed if another state of facts he set up. If any element is wanting 
 there is no estoppel. In this case the plaintiff acted before the admission 
 was made. 
 
 Against Truth.— Rhodes v. Childs, 1870, 14 S. 18. Estoppels are odious 
 in law, and in equity when against truth will not be allowed. 
 
 Avails Only Those Effected.— Miles v. Miles, 1844, 8 W. & S. 135. An 
 estoppel can only avail one who has been affected by the act which consti- 
 tutes it. 
 
 lb.— Reid V. Anderson, 1888, 6 Lan. L. Rev. 26, S. C. 4 Montg. Co. L. 
 Rep. 193. No one can set up an estoppel unless he himself is affected by 
 the act which gives rise to the estoppel. 
 
 Intention. — Kirk v. Hartman, 1869, 13 S. 97. An intention to deceive is 
 not an essential of an estoppel. 
 
 Misleading.— Hawkins Ap. C. P. Berks, 1871, 2 Woodw. Dec. 395. An es- 
 toppel in pais will only operate in favor of one who has been misled, and 
 that fact must be proved. 
 
 lb. — Epley v. Witherow, 1861, 1 Luz. L. Obs. 76. There can be no estop- 
 pel in pais unless there has been some action or word which has misled. 
 
 Mutuality.— Longwell v. Eentley, 1855, 3 Gr. 177. Estoppels must be 
 mutual. 
 
 Operation of— Parties Affected.— Cuttle v. Brockway, 1858, 8 C. 45. Es- 
 toppels operate only betweon parties and privies, and the party who pleads 
 it must he one adversely affected. 
 
 Truth of Facts the Issue.— Paup v. HuUubush, C. P. York, 1881, 2 
 York L. R. 51. Estoppel cannot take place where the truth of the facts is 
 by the party to be estopped made the very issue to be tried. 
 
 III. Kno'wledg'e or Igfuorance of ttie Xrutli. 
 
 Admission. — Wright's Ap., 1882, 39 Leg. Int. 170> A party is not estop- 
 ped by his own admissions, unless another person, ignorant of the truth, has 
 been induced by them to alter his condition. 
 
 Acts Done in Ignorance. — Newman v. Edwards, 1859, 10 C. 32. Acts 
 (lone in ignorance of one's rights, will only estop in favor of supervening 
 rights resting on them. 
 
 Bad Title — Encouragement. — McCormick v. McMurtrie, 1835, 4 W. 
 192. One who knows that he is getting a bad title, cannot set up an estop- 
 pel against one who encouraged him to get it. 
 
 Declarations. — Harlan v. Harlan, 1850, 3 H. 507. Declarations made in 
 ignorance of one's rights under the law, in the absence of proof that he in- 
 tended to relinquish those rights, will not estop. 
 
 Forged Notes— Payment of Same.— Cohen -d. Teller, 1880, 12 N. 123. 
 One who has paid notes which he knew were forgeries, is not thereby estop- 
 ped from setting up that defence on similar notes. 
 
 Inducing One to Purchase — Adverse Title. — Putran v. Tyler, 1888, 2 
 Crum. 571. One who by positive acts has induced another to purchase land 
 of which he himself is the true owner, is thereafter estopped from setting up 
 his title against the purchaser, even though he acted in good faith and in 
 ignorance of his rights. 
 
 14 — EQUITY. 
 
210 ESTOPPEL. 
 
 Knowledge— Representations— Silence.— Smith v. McNeal, 1871, 18 S. 
 164. Estoppels arise when one misrepresents the truth, or by wilful silence 
 misleads another,, not having knowledge of a particular fact, into error or 
 loss, or induces him to do what he would not have done if he had known 
 the truth, and where injury would ensue from permitting the misleading 
 party to allege the truth. 
 
 Knowledge Presumed. — Perrine v. Holcomb, C. P. Luzerne, 1874, 3 Lnz. 
 L. Reg. 32. There can be no estoppel in favor of one who knew or should 
 have known the true facts of the case. 
 
 ■ Mistake— Encouragement.— Paul v. Squibb, 1849, 2 J. 296. A party 
 acting in ignorance of the law but with good faith will not be estopped, un- 
 less actually encouraging the other party to act. 
 
 Sheriff's Sale— SUenee.— Jackson v. Morter, 1876, 1 N. 291. A defend- 
 ant, who, knowing that a fraud had been practiced on him whereby his 
 property was sold, was nevertheless present at the sheriff's sale and said 
 nothing rmtil after the deed was acknowledged, is estopped by his silence. 
 
 Widow's Interest— Assent to Sale.— Taggert's Ap., 1882, 3 Out. 627. 
 A wife elected to take against a will which gave her such interest as the in- 
 testate law would have done, and provided that when any land was sold her 
 third should remain a charge unless she expressed her intention otherwise. 
 Land was sold, nevertheless, under these conditions. Afterwards, the children 
 wishing to sell the entire land, the executor sold the whole title, one-third 
 to remain a charge. The widow was present and made no objections to the 
 terms of the sale. Held that she was estopped from enforcing partition. 
 
 TV. Representations and Declarations. 
 
 Boundaries. — Gratz v. Beates, 1863, 9 Wr. 495. Declarations written or 
 verbal by an owner of land as to the boundaries, are evidence to prove an 
 estoppel. 
 
 Claim on a Judgment.— Gray's Ap., 1881, 10 "W. N. C. 458. One who 
 represents to another that his claim on judgment against a third party 
 amounts to only so much, will not be allowed to claim more, in case this 
 person has acquired subsequent liens on the faith of this representation. 
 
 Contract — Advances— Promissory Note. — Hite Natural Gas Co.'sAp., 
 1888, 3 drum. 436. Where a company issued a certificate for the informa- 
 tion of all persons dealing with, the company, containing the express state- 
 ment that A. had obtained the right of way for said company and had re- 
 ceived in jiayment a certain amount in cash and a given number of shares 
 of stock of the company, and A. contracted with a third party to furnish 
 material for the said company, and gave in payment his notes secured by 
 the deposit of equal amount of the company's stock, and two hundred addi- 
 tional shares upon the fulfilment of the contract, and their notes were ac- 
 cepted by the said company subject to its contract with A. Held in a bill 
 in equity to compel the company to deliver the stock to the holder of the 
 notes, that the company could not set up the defence of advances already 
 made in excess of tlie contract obligations to A., nor the fact that A. had 
 failed to procure the right of way. 
 
 Fraud— Inducements. — Pendleton v. Eichey, 1858, 8 C. 58. One who 
 has fraudulently induced another to do acts which otherwise would work an 
 estoppel, is not himself allowed to insist on it. 
 
 Grantee Making.— Mowry's Ap., 1880, 13 N. 376. A grantee who has 
 represented that the conveyance was made to him to save it from the 
 grantor's creditors, is estopped from claiming title against those who, on the 
 faith of his representations, have lent money to the grantor. 
 
ESTOPPEL. •,'- 1 1 
 
 Injury. — Sitting's Ap., 1851, 5 H. 211. Misrepresentations which do not 
 iiyure do not estop. 
 
 Judgment Note.— Wilcox v. Rowley, 1887, 20 W. N. C. 269. A party 
 about to take an assignment of a judgment note applied to the maker rela- 
 tive to the same and was informed that the note was good. On the faith of 
 this representation the party took the note and subsequently assigned it to a 
 third party. Held that as against the party to whom the above statements 
 were made and his assignee, the defendant was estopped from setting up the 
 failure of the original consideration of the note. 
 
 Land Included.— Buchanan V. Moore, 1825, 13 S. & R. 304. If a defend- 
 ant at the time of a sale of his lands by the sheriff, represents to a bidder 
 that certain land is included in the levy, and that bidder becomes the pur- 
 chaser, the tract so represented passes to him, as against the defendant, al- 
 though not included in the levy. 
 
 Lease by one in Possession. — Berridge v. Glassey, 1887, 20 W. N. C. 50. 
 If one in possession of land under claim of title is induced to accept a lease 
 through misrepresentation, fraud or trick of the lessor, or through a mutual 
 mistake of the facts by both parties, the lessee is not subsequently estopped 
 from setting up a title in himself superior to that of the lessor. 
 
 Mine— Other Information.— Weist v. Grant, 1872, 21 S. 95. One bar- 
 gained to buy a mine if the report of a selected assayer should be satisfac- 
 tory; on that report he bought it. Held that he was estopped from setting 
 up representations which had been made by the vendor as to the richness of 
 the mine. 
 
 Misleading.— Mecouch v. Loughery, C. P. 1878, 35 Leg. Int. 222, S. C. 12 
 Phila. 416. A declaration to become an estoppel must mislead, if made to 
 one who knew the truth it will not estop. 
 
 Mortgage — Declaration of no — Set-off. — Levy v. Preston, C. P. 1875, 
 1 "W. N. C. 159. A mortgagor is estopped by a declaration of no set-oflf of 
 the same date as the assignment of the original mortgage. 
 
 lb. — Green's Ap., 1881, 1 Out. 342. A "first mortgage" in this state 
 means a first lien, and one selling a mortgage represented to be a " first morg- 
 gage," will not be allowed afterwards, to set up a prior lien. 
 
 Not Acting on. — Heaton V. Findlay, 1849, 2 J. 304. Declarations by one 
 who afterwards purchases a property at sheriff's sale, that a certain fixture 
 belonged to another, does not estop him from claiming the fixture after the 
 sale, no one having acted on his declaration. 
 
 lb. — Ream v. Harnish, 1863, 9 Wr. 376. Declarations which were not 
 made to the defendant and on which the latter did not act, will not estop the 
 plaintiff. 
 
 Payor of Bill.— Elliott v. Callan, 1829, 1 P. & W. 24. A payor of a sin- 
 gle bill, is estopped by a declaration to one about to become assignee thereof 
 that he will pay it. 
 
 Principal and Surety— Judgment. — Lloyd v. Barr, 1849, 1 J. 41. In 
 an action by a surety who has paid the debt against the principal, the latter 
 is concluded by the judgment against him and the surety as to every fact 
 necessarily adjudicated in that cause. 
 
 Sale— Purchase of Outstanding Title.— McPberson v. Cunliff. 1824, 11 
 S. & R. 422. One who has represented himself to be entitled to property by 
 descent and thereupon disposes of it, cannot afterwards 'purchase au out- 
 standing title, deny his heirship and enforce this latter title against the 
 former one. 
 
 To One Afterwards Purchasing.— Keating v. Orne, 1874, 27 S. 89. Orn- 
 about to buy land and hearing that plaintiif had a claim to part of it. asked 
 him about it without disclosing that he intended to purchase. Plaintiff re- 
 plied that he believed he had a claim to part of it, but it didn't amount to 
 much and he didn't intend to give the owner much trouble about it. Seld 
 that there was no estoppel. 
 
212 ESTOPPEL. 
 
 v. Encourag:etnent. 
 
 Administrator— Purchase of Title by.— Miller's Ap., 1877, 3 N. 391. 
 
 One who actively persuades another to purchase a title from a third party, is. 
 estopped from setting up a claim to the land afterwards, though he acted in 
 good faith and ignorance of his rights. 
 
 Confidence in Title.— Ackla v. Ackla* 1847, 6 Barr, 228. If by decep- 
 tive acts one gives other reasons to confide in a title, he will be estopped 
 liom afterwards impeaching it to their injury, although it cannot be showsi 
 that they relied on this confidence. 
 
 Easement. — Lewis v. Carstairs, 1840, 6 Whart. 193. Less than twenty 
 years use of an casement may give the party using it a right to it, when the 
 owner, by positive acts of acquiescence, encourages an innocent purchaser to 
 purchase the property to which the easement appears to be appurtenant. 
 
 Entry and Improvements on Land.— Woodward v. Tudor, 1876, 32 S 
 382. One who encourages another to enter upon and improve land in com- 
 mon with himself which he supposes is vacant, is estopped from afterwards 
 denying his title, but may. recover in ejectment by a conditional verdict one- 
 half the amount he has paid for an outstanding title to complete his own. 
 
 lb.— Sale— Lease.— Cambria Iron Co. v. Tomb, 1864, 12 "Wr. 387. Where 
 a brother and sister acquired title to land by entry and improvement, and 
 the brother sold the land to one from whom he afterwards took a lease un- 
 der which the sister consented to take possession, the latter is not estopped. 
 
 Executor de Son Tort— ^Heirs. — Nass v. Vanswearingen, 1823, 10 S. & 
 R. 144. The purchaser of land at a sale under a judgment against an' exe- 
 cutor de son tort who has, after his purchase, taken possession and made im- 
 provements, may hold it against the heirs who urged that the sale should be 
 made. 
 
 Improvements. — McKnight v. Pittsburgh, 1879, 10 N. 273. One who as- 
 sists and encourages improvements made by a city, is estopped from setting 
 up that the work was done without authority. 
 
 lb.— Act of Assembly — Constitutionality. — Jurhursts v. Allegheny, 
 1880, 14 N. 437. One who actively promotes an improvement made under 
 an Act of Assembly, is estopped from denying the constitutionality of the 
 Act. 
 
 lb.— Title.— McKelvey v. Truby, 1842, 4 W. & S. 323. Encouragement 
 given to one improving land as his own, by one holding a better title but in 
 ignorance of it, works an estoppel. 
 
 Mortgagor — Assignment — Set-off. — Leedom v. Lombaert, 1876, 30 S. 
 381. A mortgagor encouraged a party to take an assignment of the mort- 
 gage, but did not expressly say there was no defence or set-off. Seld that 
 he was estopped irom setting up a defence. 
 
 lb.— Validity of Mortgage.— McCullough <•. Wilson, 1853, 9 H. 436. 
 Where the mortgagors (husband and wife) induce one to pwchase the mort- 
 gage, they are estopped from afterwards setting up that it was invalid. 
 
 Passage *of Ordinance — Constitutionality.— Bidwell v. Pittsburgh, 
 1877, 4 N. 412. • One who was active in procuring the passage of an ordi- 
 nance, and who acted as commissioner under it, is estopped from question- 
 ing its constitutionality. 
 
 Sheriff's Sale— Interest Sold.— Willing v. Brown, 1822, 7 S. & R. 467. 
 One who is the prime mover in a sheriff's sale of his own and another's title, 
 is estopped from setting up that no venditioni exponas had issued on the judg- 
 ment against him and that, therefore, his interest was not sold. 
 
 lb. — Regularity. — Spragg v. Shriver, 1855, 1 C. 282. A defendant whose 
 property is being sold at sheriff's sale and who induces one to purchase it, 
 cannot after the confirmation of the sale and payment and distribution of 
 the money, set up any irregularity in the proceedings. 
 
ESTOPPEL. 213 
 
 Street Improvements— Assessment.— Ferson's Ap., 1880, 15 N. 140. 
 One who has taken an active part in having a street improved, and has been 
 one of those appointed to attend it, is estopped from questioning an assess- 
 ment laid on his property. 
 
 yi. Silence. 
 
 Actions— Praud.—Harris v. Stevens, C. P. Luzerne, 1872, 1 Luz. L. Eeg. 
 588. Silence will only raise an estoppel where it is a fraud, but actions work 
 estoppels though the party be ignorant of his rights. 
 
 lb. — Beaupland v. McKeen, 1857, 4 C. 124. Silence estops only where it 
 is fraudulent. But positive acts done in good faith will estop one", if relied 
 on by the party whose title the other seeks to defeat by a better. 
 
 Encouragement and.— Folk v. Beidelman, 1837, 6 W. .339. Mere silence 
 by one who sees others improving his property, vrill not estop him from 
 ejecting thein, but if he encourages them in the expenditure of money on Ms 
 land, he will be equitably estopped. 
 
 Fraud. — Chapman v. Chapman, 1868, 9 S. 214. Positive acts estop one 
 not knowing his rights, if they mislead others. But silence only estops 
 when a fraud, namely, wilful silence when the^^e is a duty to speak. 
 
 lb. — Davidson v. Barclay, 1869, 13 S. 406. Silence estops only where it 
 is a fraud. 
 
 Ignorance.— Millingar v. Sorg, 1867, 5 S. 215, vid. 11 S. 471. One may 
 be equitably estopped by his silence, even where he is ignorant of his rights 
 if it be of a positive effect in misleading others. 
 
 Improvements. — "Woods v. Wilson, 1860, 1 Wr. 379. One who knowing 
 Ms rights lies by many years, though aware that others, ignorant of his 
 rights, are improving the property, will be estopped by his silence. 
 
 lb. — Sale.— Carr V. Wallace, 1838, 7 W. 394. One who knowing his owii 
 rights in a tract of land, stands by and sees another purchase another title 
 to the same, thinking it to be good, and expend money thereon, will not be 
 permitted to assert his title. 
 
 lb.— Vendor Silent.— Quay v. Hartman, C. P. Chester, 1879. 1 Ghes. 
 Co. Rep. 486. A vendor who permits his vendee to rent to one who makes 
 extensive improvements, is estopped on rescinding the contract of sale from 
 interfering with the lessee. 
 
 Knowledge.— Larkin's Ap., 1861, 2 Wr. 457, rev'g 17 Leg. Int. 229, 4 
 Phila. 95. Silence does not operate as an estoppel in favor of one knowing 
 the facts. 
 
 Married Woman. — Wagner's Ap., 1881, 2 Out. 77. Silence will not es- 
 top a married woman in a transaction between her husband and a stranger, 
 in a case where she gets an advantage through a mistaken conception of her 
 liitle by the stranger, there having been no inquiry made of her. 
 
 Obligor of Bond — Assignment. — Decker v. Eisenhauer, 1830, 1 P. & W. 
 476. Where the obligor of a bond silently stands by while it is assigned he 
 is estopped from afterwards setting up any defence which then existed, 
 whether his silence proceeded from ignorance or design. 
 
 One in Possession.-^Covert v. Irwin, 1817, 3 S. & R. 283. One in pos- 
 session pf land being sold by the sheriff as the property of another, who 
 says nothing while others represent him to be the tenant of the defendant, 
 is estopped from setting up his title. 
 
 Representative Silent— Encumbered Title Sold.— Johnson's Est., o. 
 C. 1882, 39 Leg. Int. 169, S. C. 15 Phila. 543. Where the representative of 
 an estate stands by and hears an auctioneer for the orphans' court erroneously 
 state that the property will be sold free of incumbrances, he is not in a posi- 
 tion to force the title bound by a mortgage on the purchaser. 
 
21-4 ESTOPPEL. 
 
 Sale of Property— Notice.— Epley v. Witherow, 1838, 7 W. 163. One 
 who stands by and sees his property sold as the property of another, is es- 
 topped from setting up his title against an innocent purchaser, but if the 
 latter had sach notice as he was bound to respect, he loses his character as 
 an innocent purchaser. 
 
 When Operative.— McGregor v. Sibley, 1871, 19 S. 388. One cannot set 
 up the silence of another as an estoppel, unless he has been misled thereby 
 and has acted to his predjudice. 
 
 VII. married Women. 
 
 Actions of. — McClure v. Donthitt, 1847, 6 Barr, 416. A feme covert can- 
 not act so as to affect her property unless it is settled to her separate use, 
 therefore she is not subject to estoppels. 
 
 Alleging Coverture After Denial. — Leiper's Ap., 1885, 42 Leg. Int. 
 664. A married woman is not estopped from alleging her coverture by her 
 former denial of it. 
 
 Assignment — Contesting Validity of — Fryer v. Eishell, 1877, 3 N. 
 521. Equity will not permit a married woman who has received a full con- 
 sideration for her property to contest the validity of her assignment. 
 
 Bond — Defence. — Quinn's Ap., 1878, 5 N. 447. A married woman is not 
 estopped by her declaration that there is no defence to a bond which she has 
 given. 
 
 Contract — Invalid. — Innis v. Templeton, 1880, 14 N. 262. A contract 
 of a married woman which is invalid as a contract, cannot be virtually en- 
 forced by applying the doctrine of estoppel. 
 
 Conveyance by. — Glidden v. Strupler, 1866, 2 S. 400. A married woman 
 can convey her property only in the statutory way, and equity follows the 
 law on this point and will not give effect to such conveyance under any of 
 its principles, e.g., estoppel. 
 
 lb. — ^Money Received by Husband.— Confer v. Baker, 1872, 4 Leg. Op. 
 465. Where the conveyance of the land of a married woman has been void 
 as against herself, the fact that her husband received the purchase money 
 does not estop her. 
 
 Declaration of no Set-off. — Gilmore v. Boyd; C. F. Lackawanna, 1881, 
 4 L. T. N. S. 1. A married woman will be estopped by a declaration of no 
 set-off to a mortgage. 
 
 lb.— Holz V. Beldin, C. P. 1877, 4 W. N. C. 573. A declaration of no set- 
 off by a married woman to one about to take an assignment of a mortgage 
 on her property estops her. 
 
 lb.— Jamison v. McClure, D. C. 1874, 1 W. N. C. 120. A sealed declara- 
 tion of set-off, given by a married woman to an assignee of a mortgage on 
 lier property after the assignment, estops her from setting up a defence. 
 
 Deed Not Acknowledged — Annuity.— Clark r. Thompson, 1849, 2 J. 
 274. A feme covert who did not acknowledge a deed, but who, after her hus- 
 band's death, received for three years the annuity under it, is not estopped 
 from asserting her title. 
 
 Defective Joinder— Curtesy.— Houk v. Ritter. 1874, 22 Pitts. L. J. 33. 
 A husband whose joinder in his wife's deed is defective, is not estopped 
 from claiming his curtesy, by the fact that the wife received a note on him 
 for the purchase money. 
 
 Exemption— Laches.— Cowley's Ap., 1887, 20 W. N. C. 28. A widow 
 who refused to have anything to do with her husband's estate, stating that 
 it would have to be sold to pay his debts, and who consented to the appoint- 
 
ESTOPPEL. 215 
 
 ment of an administrator, cannot, after sale of the estate, claim her exemp- 
 tion. 
 
 lb.— lb.— Pratt's Estate, 1888, 23 W. N. C. 543. A delay of five years in 
 claiming a widow's exemption, will be deemed a waiver of the right. 
 
 Family Settlement— Dower.— Simpson's Ap., 1848, 8 Barr, 199. Where 
 a widow has ratified a family compromise by accepting a payment of her 
 share thereunder, she is estopped from claiming her dower. 
 
 Fixtures- Erection of by Husband.— Buck's Ap., 1882, 2 Penny. 327. 
 A husband who has erected trade fixtures on his wife's land which she has pre- 
 viously mortgaged, and who gives no notice of his claim at a sale under the 
 mortgage, cannot claim them after the sale. 
 
 Interest in Land.— Davidson's Ap., 1880, 14 K. 394. The interest of a 
 married woman in land cannot be divested by force of an estoppel. 
 
 Joining ta Conveyance— Trust.-Klein v. Caldwell, 1879, 10 N. 140. A 
 wife by joining with her husband in the conveyance of land, does not thereby 
 extinguish a mortgage on the land which is held in trust for her, nor does 
 her declaration that she is satisfied with the sale work an estoppel. 
 
 Joining in Mortgage.— Becher v. Werner, 1881, 2 Out. 555. A married 
 woman is not estopped by joining in a mortgage that she need not have 
 signed. 
 
 Liability of.— Grim's Ap., 1884, 15 W. N. C. 273, S. C. 42 Leg. Int. 204. 
 In matters as to which a married woman is affected with no disability she 
 may be estopped. 
 
 Minor. — Williams v. Baker, 1872, 21 S. 476. A feme covert who is under 
 age, is not estopped by any act of hers or any act of her husband on her 
 behalf. 
 
 Loan to Husband. — Thompson v. Thompson, 1876, 1 N. 378. One who 
 lends money to a husband to use in completing a purchase for his wife, is 
 estopped from claiming that the judgment given therefor is a lien on this 
 (the wife's) property. 
 
 Mortgage— Joint Owners.— Hatz's Ap., 1861, 4 Wr. 209. A married 
 woman holding, through a trustee, a mortgage on land of her husband be- 
 <ame, with the latter, a joint owner ot the land, and the two joined in a 
 mortgage to secure his creditor. Held she was not estopped from setting up 
 her mortgage. 
 
 Partition— Order of Court.- Young v. Babilon, 1879, 10 N. 280, rev'g 
 26 Pitts. L. J. 149. A widow who endorses and approves of record an order 
 of court for partition and agrees that it shall be confirmed, is estopped ii-om 
 afterwards setting up an adverse title to the land. 
 
 Recording Conveyance— Creditors.— Feig v. Meyers, 1882, 6 Out. 10. 
 A wife is not estopped from setting up her title against her husband's cred- 
 itors by not recording it, 'although there were other things which would lead 
 one to think that the husband was owner. 
 
 lb. — lb. — Morris v. Ziegler, 1872, 21 S. 450. A wife who has received a 
 <5onveyance from her husband, is not estopped, by simply not recording it, 
 from setting it up against her husband's subsequent judgment creditors. 
 
 Representations as to Coverture. — Keen v. Coleman, 1861, 3 Wr. 299. 
 A married woman who executes a deed, on representing that she is single, 
 is not thereby estopped. Legal incapacity cannot be removed by fraudulent 
 represen tations. 
 
 lb. — Leiper's Ap., 1885, 42 Leg. Int. 364. A married woman is not es- 
 "topped from alleging her coverture by her former denial of it. 
 
 Silence. — ^Wagner's Ap., 1881, 2 Out. 77. Silence will not estop a mar- 
 ried woman in a transaction between her husband and a stranger, in a case 
 where she gets ' an advantage through a mistaken conception of her title by 
 the stranger, there having been no inquiry made by her. 
 
216 ESTOPPEL — EVIDENCE. 
 
 Trust Deed by— Contesting.— Bigham's Appeal, 1889, 8 Crura. 262, 
 see also Bigham v. Hewner, 23 W. N. C. 84. A woman, just before her mar- 
 riage, made a deed of trust giving up all right on her part to alien the prop- 
 erty, except by appointment in her will. The trustee accepted, but after 
 her marriage, a decree was entered on petition of the trustee with a concur- 
 ring answer signed by husband and yfite, under which the property was re- 
 conveyed to the wife treed of all trusts. Forty years later, the trustee and 
 husband having just died, the wife appealed from the old decree. Held 
 that she was estopped from asserting the invalidity of the decree. 
 
 Trust — Exemption — Tenant of Purchaser.— Fillman v. Divers, 1858, 
 7 C. 429. A feme covett cestui que trust is not estopped from setting up the 
 trust by having claimed $300 exemption at the sheriff's sale of the trust es- 
 tate (her husband being trustee), and by afterwards becoming the tenant of 
 the purchaser. This, however, was strong evidence against her. 
 
 Vendor and Vendee— Mortgage. — Pittsburgh Ins. Co. «. Groves, 1872, 
 3 Crum. 401. One who has sold land, the title being taken by a wife, while 
 the husband gave a bond for the purchase money, is not estopped from claim- 
 ing that his judgment on the bond binds the land against a subsequent 
 mortgagee in which mortgage both husband and wife join. 
 
 EVIUENCE. 
 
 [See Adjustment, VII. 0. (b) Answer; Election II. Peodtjction of 
 Books and Papebs, see Practice and Pleading, III.] 
 
 Admissibility of Examiner— Petition.— Collins' Est., 0. C. 1876, 2 W. 
 N. C. 430. The court will not entertain petitions for instructions to an ex- 
 aminer as to the admissibility of evidence. 
 
 Answer— Responsive. — Hayes' Ap., 1889, 1 Crum. 110. Where a bill 
 alleges a trust in certain lands alleged to have been acquired in a joint pur- 
 chase, the evidence of the plaintiff alone corroborated by proof of payment 
 of one-half the purchase money, will not overcome a responsive answer sup- 
 ported by a disinterested witness. 
 
 Burden of Proof— Consideration— Failure of — Watts v. Cummings, 
 1868, 9 S. 84. One defending an action on a note on the ground of failure 
 of consideration is setting up an equity, not defending against one, and 
 must himself make out a case to move the chancellor. 
 
 lb.— Fiduciary .Relation. —Wistar's Ap., 1867, 4 S. 60. The burden is 
 on one acting in a fiduciary relation to establish the fairness and considera-" 
 tion of any gift received from the beneficiary. 
 
 lb.— Interpleader — Parties..— Tremont Coal Co. v. Manly, 1869, 10 S. 
 384. In a sheriff 's interpleader the claimant is properly the plaintiff and 
 has the burden of proof 
 
 lb. — Replication. — Naglee's Est., 1866, 2 S. 154. A replication puts in 
 issue the averments of the answer, and throws upon the respondent the 
 burden of proving them. 
 
 lb.— Equitable Defence. — Sower v. Weaver, 1875, 28 S. 443. Where an 
 equitable defence is set up and the plaintiff denies it on oath, the defendant 
 is in the same position as though he were seeking equitable relief and the 
 answer had denied the facts alleged by him. He must prove them by two 
 witnesses. 
 
 lb.— Case.— Green wait v. Horner, 1820, 6 S. & E. 71. Whatever will in 
 equity and conscience, according to existing circumstances, preclude the 
 plaintiff from recovering, may, in case, be given in evidence by the defendant 
 
KVIDENOE. 217 
 
 under the general issue, because the plaintiff must recover on the justice 
 and conscience of his own case, and on that only. 
 
 Commission to Take Testimony— Patterson v. Greenland, 1860, 1 Wr. 
 510. A commission to take testimony must so describe the commissioners 
 that they may be found and identified. 
 
 lb.— Frank tJ.Colhoun, 1868, 9 S. 381. The authority of the court to ap- 
 point a commissioner to take testimony is an equity power. The commis- 
 sioner may administer oaths. 
 
 Crimination— Answer Involving.— Bank of United States v. Biddle, 
 1844, 2 Pars. 31. A party in equity need not answer any question which 
 tends to criminate him, but he must answer the other questions that are not 
 open to that objection. 
 
 Injunction— Criminal Matter.— Campbell v. Scofield, C. P. Luzeme, 
 1872, 1 Luz. L. Reg. 508, S. C. 20 Pitts. L. J. 28. Equity will not grant an 
 ibjunction in matters which are of a criminal nature. 
 
 lb. — ^Ib. — Officers of a Municipality. — Stewart v. Seranton, C. p. Lack- 
 awanna, 1880, 2 L. T. N. S. 151. Equity will not restrain the officers of a 
 municipality from performing their duties, on the ground that they are act- 
 ing contrary to law, if they are liable criminally for so acting. 
 
 Production of Documents — Practice.— O'Connor «. Tack, 1868, 2 Brews. 
 407. Where a defendant does not demur to a bill charging fraud, but denies 
 it and says that certain memoranda and accounts will establish his innocence, 
 he cannot object to an order for the production of those documents, although 
 there is pending an indictment against him. 
 
 When a Valid Objection to Evidence. — Phila. v. Keyser, C. P. 1873, 5 
 Leg. Gaz. 165, S. C. 30 Leg. Int. 168, 10 Phila. 50. It is no objection to equit- 
 able jurisdiction where fraud is charged and discovery prayed for, that the 
 defendant may criminate himself, unless an indictment is actually pending, 
 or at least that there is reasonable probability that one will be preferred. 
 
 Cross-Examination of Defendant. — Whitaker v. Focht, C. P. 1885, 16 
 "W. N. C. 19. A complainant in equity can call one of several defendants 
 for cross-examination. 
 
 , Documentary — ^Informal Conveyance. — Phillips v. Swank, 1888, 5 
 Crum. 76. Ii; is error to exclude a paper purporting to be a conveyance of 
 land, because of the omission of the word "heirs." 
 
 lb. — Lost Deed. — Richard's Appeal, 1888, 7 Crum. 547. When a record 
 has been lost memoriter proof of its contents will be permitted to be given 
 Ijy one who has read the record, or otherwise had actual knowledge of it. 
 The evidence of a witness not so qualified is incompetent and will not be 
 treated as an injunction affidavit. 
 
 Declarations of Owner That He is Trustee.— Gibblehouse v. Strong, 
 1832, 3 R. 437. Declarations by the legal owner of land that he is merely 
 trustee for another, may be given in evjdence, although at the time of the 
 trial the party having made them is within reach of the court. 
 
 Defeasance — Parol Evidence. — Burger v. Dankel, 1882, 4 Out. 113. 
 To convert a deed absolute on its face into a mortgage by a parol defeas- 
 ance, it is essental to prove that the latter was entered into at the time of 
 the original transaction, and its existence and terms must be established to 
 tlie satisfaction of the court, the jury's province being only to find disputed 
 facts. The proof may, however, rest entirely on facts and circumstances. 
 
 lb. — SnbseoLUent to Mortgage. — Umbenhower v. Miller, 1882, 5 Out. 
 71. A written defeasance of later date than the mortgage, may be given in 
 evidence and parol evidence offered to show that it was executed at the same 
 time as the deed. 
 
 Demurrer. — ^Facts Admitted by. — Stocktons. Lehigh Nav. Co., c. P. 
 igSO, 9 W. N. C. 110, 37 Leg. Int. 290, 14 Phila. 88. A demurrer to a bill 
 admits only those facts which are well pleaded, and therefore does not ad- 
 
218 EVIDENCE. 
 
 mit that the law of a foreign state is as alleged in a bill which does not set 
 forth the statute. 
 
 lb. — Gift — Trustee.— McDonough v. McDonongh, C. P. Luzerne, 1882, 1 
 Kulp, 489. Where a child in whose name a father has taken a deed, 
 demurs to a bill setting forth that he is a trustee and asking for an account, 
 the presumption that the transaction was a gift, cannot be insisted on as the 
 demurer admits the trust. 
 
 Deposition — Admissibility — Parties. — Galbraith v. Zimmerman, 1882, 
 4 Out. 374. A deposition of a witness taken in an equity proceeding, is ad- 
 missible as evidence in a legal proceeding between one of the parties and the 
 administrator of the other. 
 
 Discovery— Bill of.— Phillips v. Kem, D. C. 1865, 22 Leg. Int. 45, S. C. 
 6 Phila. 9. A bill of discovery will not lie against one who can be examined 
 as a witness. 
 
 lb. — ^Answers. — Clark v. Depew,fl855, 1 C. 509. A bill of discovery and 
 defendant's answers thereto are not evidence in his behalf. 
 
 Ejectment— Second Suit— Equitable Title.— Treftz v. Pitts, 1873, 24 
 S. 343. One ejectment lounded upon an equitable title Is as conclusive as a 
 decree in equity, and on a second ejectment being brought, it is competent 
 to show by parol evidence, that the first was on an equitable title. 
 
 lb.— Facts Raising Equity.— Noel v. White, 1860, 1 Wr. 514. If in an 
 equitable ejectment there be eviedence of a fact raising an equity, the court 
 may submit the evidence of the fact to the jury. Such action is analogous 
 to an issue in chancery. 
 
 Election.— Rhode's Est., O. C. 1875, 2 W. N. C. 188, S. C. 32 Leg. Int. 
 440, 11 Phila. 103. A widow's election must be intelligently made ; to es- 
 tablish against her an election by matter in vais there must be conclusive 
 proof 
 
 lb.— Sterr's Est., O. C. 1879, 7 W. N. C. 35, S. C. 36 Leg. Int. 137, 13 
 Phila. 212. An election may be evidenced by matters in pais. ' 
 
 lb. — Beatty v. Byers, 1851, 6 H. 105. Lapse of time is no evidence of 
 election. It must be made by an unequivocal act, and by all interested. 
 
 lb. — Cox V. Rogers, 1874, 27 S. 160. A widow who was also executrix in- 
 cluded in her administration account the item, "by balance retained by exe- 
 cutrix according to the will." Seld to be unequivocal evidence of an elec- 
 tion. 
 
 lb. — Rice V. Bixler, 1841, 1 W. & S. 445. Where a testator devise land 
 to his executor to be sold and the proceeds given to his children, the chil- 
 dren have such an interest as to justify them in compromising a boundary, 
 and where they unite in conveying the land to the executor, their deeds are 
 evidence of their election to take as land. 
 
 Examiner— Report Filed.— Kressler v. Williams, C. P. 1877, 5 W. N. C. 
 97. After an examiner has filed his report in court, he cannot go on and 
 take testimou3' unless ordered by the court so to do, and the court will not 
 make the order except on motion supported by affidavit. 
 
 lb.— lb.— Corrections.— Burton's Ap., 1880, 12 N. 214. The lower court 
 may, in the exercise of a sound discretion, open evidence after the examiner 
 has made his report, and allow witnesses to correct their evidence where they 
 allege mistakes. 
 
 lb.— OroSS-Examination.— Dunlap v. Williams, C. p. 1881, 11 W. N. C. 
 76. An examiner should not allow a second witness to be examined until 
 the cross-examination of the first is completed. 
 
 Injunction Affidavit— Death of Defendant. — Buchanan «. Streper, C. 
 p. 1878, 5 W. N. C. 289. An injunction affidavit by complainant is admis- 
 sible, although the other party to the arrangement set forth therein be dead. 
 
 Judgment on Scire Facias— Ejectment.— Blythe «. McClintic, 1821, 7 
 
EVIDBJSrCE. 219 
 
 S. & R. 341. Where a scire facias has been issued on a mortgage, judgment 
 obtained and the property sold, evidence is not afterwards admissible in 
 ejectment to show satisfaction of the mortgage prior to the judgment on the 
 scire facias. 
 
 Master — After Starting to Make Up Report. —Patterson v. Patterson, 
 C. P. Dauphin, 1872, 2 Pears. 170. A master may, in his discretion, receive 
 evidence after he has started to make up his report. 
 
 lb.— Report of Facts Found.— Winter v. Newell, 1865, 13 Wr. 507. A 
 report of a- master is not evidence per se of facts found by him against one not 
 a party to the bill. 
 
 Mortgagee — Assignment of Mortgage. — Shrom v. Williams, 1862, 7 
 Wr. 520. In scire facias sur mortgage, by an assignee of the mortgage, the 
 original mortgagee is a competent witness for the mortgagor to prove partial 
 failure ol consideration and that the assignee took with notice of this, al- 
 though the witness was the endorsee of a promissory note which the mortgage 
 had been given to secure. 
 
 Mortgagee — Prior Mortgage. — Enters v. Peres, 1830, 2 E. 279. A sub- 
 sequent mortgagee is not a competent witness for defendant in a suit on a 
 prior mortgage. But if the suit be on the accompanying bond, his interest, 
 which is contingent, affects only his credibility. * 
 
 Mortgagees Out of State.— Brewer's Ap., 1883, 8 Out. 417. Under Act 
 March 31, 1823 (P. L. 216), providing for the satisfaction of mortgages by the 
 common pleas, where they liave been paid and the mortgagees have removed 
 from the State, it is necessary to show more than that at the time of the hear- 
 ing the mortgagee resided outside the state. 
 
 Motion to Strike Out Testimony— Master.— Dotterer v. Saxton, C. P. 
 1875, 1 W. N. C. 218. A petition to the court asking for an order on the 
 master to strike out certain testimony is premature. It has never been the 
 practice to hear exceptions to a master's rulings piecemeal in this way. 
 
 Notice — Assignment of Mortgage. — Philips v. Bank of Lewiston, 1852, 
 6 H. 394. The assignment of a mortgage when recorded is notice, and a 
 copy of the record is evidence. The assignee is not affected with any equity 
 which may subsequently arise between the original parties. 
 
 Orphans' Court — Secondary Evidence.— Sterrett's Ap., 1831, 2 P. & 
 W. 419. The orphans' court, being a court of equity, may, if it think proper, 
 receive secondary evidence. 
 
 Party to Record— Competency.— Pusey v. Wright, 1858, 7 C. 387. A 
 party to the record is not a competent witness in equity. 
 
 Pertinent Matter.— Hays v. Dicken, C. P. Allegheny, 1881, 2 Sch. L. E. 
 160 S. C. 28 Pitts. L. J. 145. Only matters pertinent to the bill and answer 
 can be inquired of. 
 
 Refusal to Answer Complainant on Cross-Examination. — Tetlow «. 
 Savournai, 1881, 11 W. N. C. 191. Where a complainant has refused to 
 answer a question put in cross-examination before an examiner, the proper 
 practice is to apply for a rule to strike out the deposition because of his re- 
 fusal to answer. 
 
 Resulting Trust— Agreement— Receipt.— Harrold v. Lane, 1866, 3 S. 
 268. Evidence of an arrangement between heirs that one should buy in the 
 property for all, supported by a receipt given by the one for money received 
 from one of the other " to be accounted for in settlement of the real estate " 
 establishes a resulting trust. 
 
 lb. ^Prima Facie Case. — Baumgardner v. Shoff, 1878, 10 Lan. Bar, 51. 
 
 Where a plaintiff in ejectment has established a prima facie case of a result- 
 ino' trust, it is error to rule out evidence tending to sustain the trust. 
 
 Rule to Close Testimony— Suspension.— Lloyd v. Swain, C. P. 1875, 2 
 AV N C 94. Equity will suspend a rule entered on a defendant to close 
 tes'timonj in thirty days where the plaintiff has been two years in taking his. 
 
220 EVIDENCE. 
 
 Sufficiency of— Equitable Defense.— Morris v. Shakespeare, 1888, 31 
 W. N. C. 564. The evidence necessary to support an equitable defence to a 
 contract under seal, miist be such as would justify a chancellor in entering 
 a defence for the cancellation of the contract. 
 
 Trustee— Books of— Hollenshead V. Allen, 1851, 5 H. 275. The books 
 of one claimed to be a trustee are admissible as evidence to establish the 
 trust. 
 
 Vendor— Ejectment -Burden of Proof— Title.— Stokleyu. Trout, 1834. 
 3 W. 163. Under an action of ejectment by a vendor under articles to com- 
 pel the payment of purchase money, it is not essential to the plaintiff's 
 right to "recover that he should first show a perfect title to the land in him- 
 self ; it lies upon the defendant to show a defect in the title. 
 
 Witness Compelled to Attend.^Hook's Est., O. C. 1880, 9 W. N. C. 
 320. A witness will be compelled to attend before an examiner at the in- 
 stance of either party until his deposition has been completed and signed. 
 
 Witness— Competency of— Cestui ijue Trust — Assignment.— Hoak v. 
 Hoak, 1836, 5 W. 80. A cestui que trust is not made a competent witness in 
 an action aifecting the trust fund by an absolute assignment of the fund to 
 a third person if the assignment be made on insufficient consideration. 
 
 lb. — Martin v. McCord, 1836, 5 W. 493. A former cestui que trust, but 
 whose interest is all gone, is a competent witness to establish the trust. 
 
 lb.— lb.— Mortgagor— Terre Tenant.— Hartz v. Woods, 1848, 8 Barr, 
 471. A mortgagor who has confessed judgment on a scire facias, is not a 
 competent witness against a lerre tenant who is defending. 
 
 I lb.— lb. — Mortgagor and Mortgagee.— Espy v. Allison, 1840, 9 W. 
 462. Both mortgagor and mortgagee are incompetent witnesses to prove 
 that a bond secured by the mortgage has been satisfied in a suit between a 
 purchaser of the property under a subsequent mortgage and the assignee of 
 the bond. 
 
 lb. — lb.— Mortgage Without Warranty. — Perkins v. Johnson, 1852, 7 
 H. 510. A scire facias ou a mortgage given without warranty and without 
 a bond, is purely a proceeding in rem, and the mortgagor having conveyed 
 the land is a competent witness. 
 
 lb.— lb.— Terre Tenant.— Hansen v. Lutz, 1853, 8 H. 284. In an ac- 
 tion by a mortgagee against a terre tenant holding subject to the mortgage, 
 the mortgagor, being the obligor on the accompanying bond, is not a com- 
 petent witness to prove that the mortgage is unpaid. 
 
 lb.— lb.— Trustee.— Brown v. Downing, 1818, 4 S. & E. 494. One pur- 
 chasing land as trustee for another, to whom he afterwards conveys the legal 
 title, is a competent witness to prove the trust. 
 
 lb.— lb. — Trustee Lessor of Plaintiff in Ejectment.— Drum v. Simp- 
 son, 1814, 6 Bin. 478. A trustee who is the lessor of the plaintiif in eject- 
 ment is a competent witness for defendant. Declarations made .to the trus- 
 tee after the execution of the deed of trust, but before the trust was ac- 
 cepted by the trustee, are admissible in evidence to show the terms of the 
 trust. 
 
 lb. — lb.— Trustee Releasing Commissions. — King v. Cloud, 1848, 7 
 Barr, 467. A trustee who has released his right of commissions and who has 
 been indemnified against the costs, is a competent witness in an actiim 
 touching the trust property, although he appears as the legal plaintiff in the 
 same. 
 
 lb.— lb. — Use Plaintiff Administrator.— Hoopes v. Beale, 1879, 9 N. 
 82. If the use plaintiff is an administrator, the defendant cannot testify 
 concerning transactions which occurred between himself and the decedent. 
 
EXAMINER. 2-il 
 
 [See also, Fee ; Mastee.] 
 
 Duties of— Admissibility of Evidence.— City of Phila. v. Trustees. C. 
 P. 1883, 12 W. N. C. 568, S. C. 40, Leg. Int. 78. An examiner's duties are 
 ministerial, he therefore cannot decide on the admissibility of evidence. 
 
 Examination and Cross-Examination — Practice. — Dunlap v. Williams, 
 C. P. 1881, 11 W. N. C. 76. An examiner should not allow a second witness 
 to be examined until the cross-examination of the first is completed. 
 
 Examiner and Master — Appointment of at Same Time.— Pritchett v. 
 Schafer, C. P. 1876, 2 "W. N. C. 317, S. C. 33 Leg. Int. 112, 11 Phila. 166. It 
 is irregular to appoint a person examiner and master at the same time. 
 
 Instructions to.— Howell's Est., 0. C. 1881, 38 Leg. Int. 478, S. C. 14 
 Phila. 329. The court will not instruct an examiner as to the admissibility 
 of evidence, but if a party offers witnesses whose testimony is clearly irrele- 
 vant, he may be charged the costs pro tanto. 
 
 lb.— Collin's Est., O. C. 1876, 2 W. N. C. 430. The court will not enter- 
 tain petitions for instructions to an examiner as to the admissibilit.y of evi- 
 dence. 
 
 lb.— Hunt's Est., O. C. 1879, 8 W. N. C. 45. The court will not entertain 
 a petition for instructions to an examiner as to the admissibility of evidence. 
 
 Powers— Account and Release. — Dampf's Ap., 1884, 10 Out. 72. 
 Where a bill- asks an account, and the defendant partner sets up a release, it 
 is proper for the court to direct the examiner to take testimony only as to the 
 liability to account. 
 
 lb. — ^Enlargement of. — Bridesburg Co. v. Lehigh Iron Co., C. P. Lehigh, 
 
 1884, 14 W. N. C. 304. In a proper case the court may extend an exami- 
 ner's powers to the right to pass upon questions of admission or exclusion 
 of evidence. 
 
 lb.— lb.— O'Malley v. O'Malley, C. P. 1881, 10 W. N. C. 32. The court, 
 upon application setting forth that much Impertenent and scandalous evi- 
 dence was being offered before an examiner, gave the latter the powers of a 
 master. 
 
 lb. — ^Limiting Cross-Examination. — City of Phila. v. McManes, C. P. 
 
 1885, 42 Leg. Int. 160. An examiner in equity cannot limit the cross-ex- 
 amination of a witness. 
 
 Refusal to Answer Before — Practice. — Titlow v. Savoumai, 1881, 11 
 W. N. C. 191. Where a complainant has refused to answer a question put 
 on cross-examination before an examiner, the proper practice is to apply for 
 a rule to strike out the deposition because of his refusal to answer. 
 
 Refusal to Appoint. — Randolph's Ap., 1870, 16 S. 178. Where no re- 
 plication has been filed, it is not error to refuse to appoint an examiner. / 
 
 Report Filed — Subsequent Testimony. — Kressler v. Williams, c, P. 
 1877, 5 W. N. C. 97. After an examiner has filed his report in court, he 
 cannot go on and take testimony unless ordered by the court so to do, and 
 the court will not make the order except on motion supported by affidavit. 
 
 Summons — One Privileged From Service.— Huddeson v. Prizer, D. C. 
 1872, 29 Leg. Int. 188, S. C. 9 Phila. 65. One attending an equity case be- 
 fore an examiner, is privileged from the service of summons. 
 
 When Appointed.— Bauer v. Seeger, C. P. 1874, 1 W. N. C. 98. Where 
 after bill and answer filed the facts seem at all complicated or voluminous, 
 the proper practice is to appoint an examiner and master. 
 
 lb.— Trustee Applying for Advice.— 7» re Petition of City oi Phila., 
 1868, 2 Brews. 462. It is proper for a trustee to apply by petition for ad- 
 vice and direction. The proper practice is to refer the petition to an exami- 
 ner who will take testimony as to the facts set forth in the petition. 
 
222 EXAMINEE — EXPECTANCY. 
 
 Witness Compelled to Attend.— Hook's Est., O. C. 1880, 9 W. N. C. 
 320. A witness will be compelled to attend before an examiner at the in- 
 stance of either party, until his deposition has been completed and signed. 
 
 EXCHANOB. 
 
 [See also Statute of Fbadds.] 
 
 Estoppel— Injunction— Ejectment.— Big Mountain Improvement Co.'s 
 Ap., 1867, 4 S. 361. Complainant entered upon land upon a parol promise 
 of exchange and made improvements with the knowledge of the owner. 
 Held that the owner was estopped from denying the complainant's right, and 
 that on bill filed an injunction would be granted to restrain the defendant 
 from bringing ejectment. The fact that complainant may have an equitable 
 defence to such an action is not such an adequate remedy at law as ousts the 
 jurisdiction of equity. 
 
 Statute of Frauds— Possession.— Moss v. Culver, 1870, 14 S. 414. There 
 is no difference between a parol sale or exchange of lands as to the requi- 
 sites to take them out of the statute of frauds, except, in the latter case, if it 
 be proved that one party took possession, proof of possession by the other 
 party does not have to be so clear. 
 
 EXECUTION. 
 
 See Peoceedings at Law; op Powee, See Power. 
 
 EXECUXOR. 
 
 See Trusts and Teustees, II; Confidential Eelaiion, XII. 
 
 EXEMPTION. 
 
 See Husband and Wife, 
 
 EXPECTANCY. 
 
 Agreement Between Agent and Principal.— East Lewisburg Co. v. 
 Marsh, 1879, 10 N. 96. Where an agreement is made that an agent shall 
 turn over to a debtor of the principal, the amounts that may come into the 
 former's hands from the business, equity will support the contract, as an as- 
 signment of an expectancy, namely as a binding present contract to assign 
 whenever there is anything to assign. 
 
 Assignment — ^Form Immaterial! — Soley's Est., O. C. 1884, 41 Leg. Int. 
 468, S. C; 15, W. N. C. 351. An expectancy may be equitably assigned and 
 the form of the assignment is immaterial. 
 
 lb.— Liens— Relief. —Woodward's Est., 1882, 1 Ches. Co. Eep. 417. An 
 heir may assign his expectancy, and liens entered after his ancestor's death 
 and before transfer do not affect the previous assignment. Equity will re- 
 lieve against a bargain of this kind if there has been surprise, fraud or in- 
 
BXPKCTANCY — FEE. 223 
 
 adequacy of price, but if the latter is the only ground the heir must offer to 
 return what he received on making the contract. 
 
 Mortgage— By Heir— Death.— Barger's Ap., 1882, 4 Out. 239. Where 
 an heir who would have no vested interest unless he lived seven years mort- 
 gaged his interest, whatever it was, and died before it vested in him, the 
 mox'tgagee took nothing. 
 
 lb.— By Married Woman.— Bayler -v. Commonwealth, 1861, 4 Wr. 37. 
 A conveyance of an expectancy is recognized in equity, but where a married 
 woman, without receiving any consideration, mortgaged her expectancy to 
 secure her husband's creditors, equity will not lend its aid to enforce it. 
 
 lb. — lb. — Dorris v. Erwin, 1882, 5 Out. 339. A married woman cannot 
 give a mortgage which will bind an expectancy or contingent interest in 
 property, although she has a present interest. 
 
 Settlement Binding. — ^Wilson's Est., 1845, 2 Barr, 325 An expectation 
 by a devisee may be bound by a settlement in equity. 
 
 Specific Performance— Consideration.— Power's Ap., 1869, 13 S. 443. 
 Equity will enforce a sale of an expectancy if made on a valuable consid- 
 eration. 
 
 FACTS. 
 
 Master's Finding of. — Kisojr's Ap., 1869, 12 S. 428. The finding of facts 
 by a master, sanctioned by the approval of the court below, will not be set 
 aside except for plain error. 
 
 lb.— Conflicting Testimony.— SprouU's Ap., 1872, 21 S. 137. Where a 
 master's report has been confirmed by the lower court the Supreme Court 
 will not reverse, on the ground that the testimony was conflicting and ap- 
 pears rather against the finding of facts. 
 
 lb. — Party Wall. — Parry V. Sensenig, 1880, C. P. Lancaster, 12 Lan. Bar, 
 89. Where in a suit in equity the matter in dispute was whether or not a 
 wall was a party wall, the master having reported that it stood on the land 
 of both parties but having said nothing as to its being a party wall, the 
 court dissolved an injunction previously granted to restrain its being torn 
 down. 
 
 Questions of, Should be Referred.— Clark's Ap., 1869, 12 s. 447. An 
 injury is not irreparable if there be an adequate remedy at law. Removal 
 of ordinary hotel fixtures is not an irreparable injury. Questions of fact 
 ought to be referred to a master. 
 
 KAMII^Y SETTLEMENT. 
 
 See Spbcipic Peeformanck 
 
 FEE. 
 [See also Moetgage II.] 
 
 Contingent. — Patten «>. Wilson, 1859, 10 C. 229. An agreement between 
 attorney and client that the tormer should have $100 out of the verdict to 
 be obtained, is an equitable assignment of that amount and is good against 
 a subsequent attaching creditor of the client. 
 
224 FEE. 
 
 Fee Bill.— Drum's Est., 0. C. 1883, 13 W. N. C. 164. The equity fee bill 
 does not apply to orphans' court practice in matters where the custom has 
 always been otherwise; the rules were only adopted " so far as they were ap- 
 plicable to its practice and proceedings." 
 
 lb. — Neel V. Neel, 1854, 1 Gr. 171. Where there is no fee bill, chancery 
 has discretion in the taxation of costs. 
 
 Of Attorney— Fixed.— Freeman v. Shreve, 1878, 5 W. N. C. 246. "Where 
 an attorney has agreed to conduct a case for a fixed fee and has received the 
 same, he is not entitled in addition to a fee allowed to his client as solici- 
 tor's costs. 
 
 lb.— Fund Liable.— Winton's Ap., 1878, 6 N. 77. Although courts of 
 equity have large discretion in taxing costs, attorney's fees and compensa- 
 tion for time expended by the parties are not costs and cannot be imposed 
 on the losing party. If incurred in defending an estate or the like, they may 
 be taken out of it as " allowances ' ' but not as costs. 
 
 lb.— lb.— Partnership.— Lennig v. Lennig, C. P. 1881, 11 W. N. C. 18. 
 Complainant's counsel fee should not be allowed out of partnership assets in 
 a bill for the winding up of a firm. 
 
 lb.— Lunatic— Burns' Case, 1888, 6 Pa. Co'. C. Rep. 159. The estate of 
 a lunatic is liable for counsel fees of counsel for both the lunatic himself and 
 for the petitioner. 
 
 lb. — ^Receiver. — McKelvy's Ap., 1885, 42 Leg. Int. 181. Where money 
 has been collected by a receiver and is in court for distribution, the chan- 
 cellor can fix an attorney's fee and an issue is not necessary. 
 
 lb.— Trustee.— Dougherty's Appeal, 1887, 20 W. N. C. 29. A charge for 
 professional services rendered by an attorn ey-at-law, to a trustee improperly 
 appointed in resisting a successful application for the discharge of such 
 trustee, is not properly payable out of the trust fund. 
 
 Of Examiner.— Sugden v. Sugden, 1888, 23 W. N. C. 136. Where a 
 plaintiif on whose behalf an examiner has taken testimony, has paid the 
 examiner for his part of the work, he may rule the examiner to fill an ac- 
 count, though the defendant has not paid his share. 
 
 lb.— Yerkes' Ap., 1884, 14 W. N. C. 510. S. C. 41 Leg. Int. 546, 32 Pitts. 
 L. J. 128, reversing 40 Leg. Int. 141. The lower court has not the power to 
 make a successful pany pay the examiner's fee, unless there is some equit- 
 able liability, where that party was not the moving party. 
 
 lb.— Rogers v. Williams, 1871, 4 Brews. 148, S. C 1 Camp. 418, 1 Leg. Op. 
 203, 4 Leg. Gaz. 6, 28 Leg. Int. 341, 7 Phila. 123. Printing an examiner's 
 report cannot be taxed as costs in equity. 
 
 lb.— Ohlsen v. Riehle, C. P. 1884, 15 W. N. C. 437, S. C. 42 Leg. Int. 4. 
 Where a cross bill has been filed and an examiner appointed to take the tes- 
 timony under the two bills, each side must in the first instance pay half the 
 examiner's fee. 
 
 lb. — Nichols V. English, 1869, 3 Brews. 260. Each party must pay the ex- 
 aminer for his own depositions. 
 
 lb.— Shillingford v. Church, C. P. 1884, 15 W. N. C. 437. An examiner 
 who -had held twenty meetings, at thirteen of which testimony had been 
 taken amounting to ten thousand words, allowed a fee of two hundred 
 dollars. 
 
 lb.— Irrelevent Matter.— Soley's Est., 0. C. 1876, 3W. N. C. 80. An 
 ex.iminer's fee will not be reduced because he took down prolix and irrele- 
 vent testimony; he had no alternative. 
 
 lb.— Refusal to Fjle Report.— Huddy v. Caldwell, C. P. 1879, 6 W. N. 
 C. 448. A master or an examiner has no right to hold his report as security 
 for his fee. He may be ruled to file the same, and if he neglects so to do, 
 or files an unfinished report he will forfeit all compensation. 
 
FEE — FORFEITURE. 325 
 
 lb,— lb..— Steffee v. Kerr, C. P. Berks, 1866, 2 Woodw. Dec. 171. An ex- 
 amiDer is an officer of the court and cannot retain his report as security for 
 his fee. 
 
 Of Master.— Middleton v. B. & M. y. Co., 1887, 44 Leg. Int. 366. A 
 master's compensation should be measured by the standard of judicial sal- 
 aries. , 
 
 lb. — ^Totten's Ap., 1861, 4 Wr. 385. Allowance of fees to a master is dis- 
 cretionaoy with the court appointing him and not reviewable. And though 
 his appointment was made somewhat irregularly, yet it cannot be objected 
 to by the party at whose request it was made. 
 
 lb.— O'Neill V. Duff, C. P. 1876, 33 Leg. Int. 408, S. C. 11 Phila. 245. A 
 master's fee of $125 sustained as reasonable in a bill for an account. 
 
 lb.— Large v. Davis, C. P. 1882, 12 W. N. C. 33. A plaintiff is liable for 
 a master's fee and must pay it. If in the end he win, he may collect it from 
 the defendant. 
 
 lb.— Thomson's Ap., 1878, 11 W. N. C. 414. The party in whose favor a 
 master makes his report, is in the first instance liable for his fee. 
 
 lb.— Brubaker v. Shirk, 1869, C. P. Lancaster, 1 Lau. Bar, No. 25. The 
 compensation of a master will be regulated according to the time, labor and 
 responsibility. 
 
 lb.— Wister v. Foulke, D. C. 1865, 22 Leg. Int. 341, S. C. 6 Phila. 26. A 
 master in chancery to effect a sale in partition is not entitled to a commis- 
 sion, but to a fee proportioned to the responsibility and trouble incurred. 
 
 lb.— Devine v. Mundell, C. P. 1883, 13 W. N. C. 269. The losing party 
 is liable for the master's fee and the winning party cannot be called on to 
 pay it until an attempt has been made to collect it from the other. 
 
 lb.— Lowenstein v. Biernbaum, C. P. 1880, 8 "W. N. C. 301. A plaintiff 
 is liable in the first instance for a master's fee, although his report puts it on 
 the defendant. 
 
 PE9IE SOLE TRADER. 
 
 See Husband and Wife, II. 
 
 FIXTURES. 
 
 See MOETQAGE, X. 
 
 FORFEITURE. 
 
 Fixtures. — Meigs's Ap., 1867, 12 S. 28. During the war the United 
 States erected barracks on the commons of York. It is now attempted to 
 restrain their removal by the United States on the ground that they have be- 
 come part of the land. Held that there was no evidence that the United 
 States had forfeited its property, and that in any event it was not the pro- 
 vince of equity to enforce forfeitures. 
 
 Jurisdiction of Supreme Court.— Pittsburgh E. R. Co. v. Mt. Pleasant 
 R. E., 1874, 26 S. 481. Independently of Act April 10, 1869, the Supreme 
 Court has jurisdiction to relieve against forfeiture. 
 
 Laches— Stock of Company.— Witte v. People's Co., 1873, 1 Post. 252. 
 
 15 — EQUITY. 
 
226 FOKFEITUKE. 
 
 Equity will not relieve one against a regular forfeiture of stock to a company 
 where the complainant's laches gave rise to it. 
 
 Landlord and Tenant— Not Enforcing Kights. Times Co. v. Siebreoht, 
 C. P. 1882, 39 Leg. Int. 98, S. C. 15 Phila. 235. Where a landlord and ten- 
 ant have not acted strictly up to their respective rights, equity will not al- 
 low one of them to enforce a forfeiture under the strict terms thereof. 
 
 lb. — Rent. — Brown v. Vandergrift, 1875, 30 S. 142. A clause in a lease 
 providing for a forfeiture in case the rent is not paid promptly will not be re- 
 lieved against. It is not a forfeiture contrary to equity, but protects the 
 equity of the lessor against the laches of the lessee. 
 
 Lease— Sheriff's Vendee of.— Kemble v. Grafif, D. C. 1867, 24 Leg. Int. 
 148, S. C. 6 Phila. 402. Equity will relieve a sheriff's vendee of a lease 
 from forfeiture thereunder. 
 
 Mortgage— Interest.— Gulden v. O'Byrne, D. C. 1868, 25 Leg. Int. 212, 
 S. C. 7 Phila. 93. A stipulation in a mortgage that on default of payment 
 of interest the principal shall fall due is not a forfeiture, and will not be re- 
 lieved against in equity. 
 
 lb. — lb.— Pennsylvania Hospital v. Gibson, 1839, 2 M. 324. A mort- 
 gagee by not insisting on a forfeiture on account of non-payment of interest, 
 does not preclude himself from insisting on it upon the opportunity again 
 arising. 
 
 lb.— lb. — Action on Lien Pending.— Stephenson v. Carpenter, 1876, 1 
 N. 515. A purchase money mortgage provided that in case default should 
 be made in the payment of any instalment the principal should become 
 due. Held that pending an action on a prior lien which, by the terms of the 
 sale was to be borne by the vendor, the vendee need not pay instalments as 
 they fell due, and equity would not allow the penalty prescribed to be in- 
 flicted. 
 
 lb.— -lb.— Demand.— Gaskill v. Scheuerle, C. P. 1875, 2 W. N. C. 156. 
 A demand of the interest due on a mortgage within the thirty days of grace, 
 is not a prerequisite to an enforcement oi a forfeiture of the principal. 
 
 lb.— lb.— Notice.— Gerke V. Jacoby, C. P. 1879, 7 W. N. C. 438. It is 
 no defence to a scire facias sur mortgage brought on default of interest, that 
 the mortgagee had agreed verbally to give notice when interest was due and 
 had not done so. 
 
 lb.— lb.— lb.— Procedure.— Pancoast v. Haas, C. P. 1875, 1 W. N. C. 
 264. A clause in a mortgage making it fall due on non-payment of interest 
 is in the nature of forfeiture or penalty, and the party desiring to avail him- 
 self of it must proceed strictly in every way; he should notify the terre ten- 
 ant that he intends to insist upon a strict performance of the condition. 
 
 lb.— lb.— Tender.— Hughes v. Snyder, C. P. 1875, 2 W. N. C. 65. Where 
 the thirty days of grace in the payment of interest on a mortgage expire on 
 Sunday, a tender on Monday will save a forfeiture. 
 
 Hailroad— Construction of, Within Time Stated.— Oil Creek R. K. v. 
 Atlantic E. E., 1868, 7 S. 65. One railroad contracted to build another in 
 consideration of having a lease thereof for ninety-nine years, and contracted 
 to have it done by a certain time, there being a stipulation that there should 
 be a forfeiture of rights if the road was not finished at the time stated, it 
 was not quite finished at that time but was within two months of it. Held 
 equity would not decree a forfeiture. 
 
 Stock — Instalments on— Laches. — Germantown E. R. v. Fitter, 1869, 
 10 S. 124. A charter of a corporation provided that if instalments on stock 
 were not paid at certain times such stock would be forfeited. Held that 
 equity would not relieve against such a forfeiture, especially where the com- 
 plainant had not presented his claim for several years, during which time 
 the stock had become valuable. 
 
 Time— Essence of Contract.— Becker v. Smith, 1868, 9 S. 469. Equity 
 
FOEFEITURB— FRAUD. 227 
 
 ■will not relieve against a stipulation for performance at a day where it is of 
 the essence of the contract, and not in the nature of a penalty. 
 
 lb.— Immaterial— Damage.— Haverstick v. Erie Gas Co., 1857, 5 C. 254. 
 Equity regards the time of the performance of a covenant as immaterial 
 ■where no special damage is done, and the covenantee has not seriously 
 urged performance. 
 
 FRAUD. 
 
 [See also Equitable Defence; Estoppel.] 
 
 I. In General. 
 II. What Constitutes. 
 
 III. Jurisdiction. 
 
 IV. Proof of. 
 V. Remedy. 
 
 I. In Oeneral. 
 
 Corporation — Director Complainant. — Baird v. Midvale Steel Works, 
 C. P. 1877, 34 Leg. Int. 12, S. C. 12 Phila. 255. A bill filed by stockhold- 
 ers against directors and the corporation alleging fraud, is demurrable if 
 one of the complainants was a director and participated in the acts con- 
 plained of. 
 
 lb.— Parties.— Hughes v. MoMurray, D. C. 1867, 24 Leg. Int. 44, S. C. 6 
 Phila. 200. Where a bill is brought against parties who have formed a com- 
 pany chargina; fraud and misapplication of funds, the ofiSeers of the corpor- 
 ation should be made parties. 
 
 Decree. — Commonwealth v. Trout, 1874, 26 S. 379. A decree cannot be 
 impeached collaterally for fraud in the transaction, but only for fraud in the 
 procuring of the decree. 
 
 Demurrer.— Worthington v. Tisdall, C. P. 1877, 34 Leg. Int. 114, S. C. 
 12 Phila. 187. A bill alleging fraudulent disposition of moneys committed 
 to the care of the defendant and praying for an account, in which, the neces- 
 sity for discovery is manifest, is not demurrable. 
 
 Fraudulent Purchase.— McKennan v. Pry, 1837, 6 W. 138. In ejeci> 
 ment against one who purchased property at a sheriff's sale, under value, by 
 fraudulently circulating the report that he was bidding for the benefit of 
 those now plaintiffs, it is not necessary first to tender the money paid by 
 him, vvhen the plaintiffs are charging him with fraud, and not as a trustee. 
 
 Mortgage — Defence. — Bonesteel v. Sullivan, 1883, 8 Out. 9. A defend- 
 ant in a mortgage is not permitted to set up an attempted fraud on his cred- 
 itors as a defence to the mortgage. 
 
 lb. — Husband and Wife. — Killinger ». Reidenhauer, 1821, 6 S. & R. 
 531. A mortgage given by a husband in fraud of his wife is void as to her 
 and as to creditors, but not as to the husband. 
 
 lb.— Married Woman— Representations.— Cridgeu. Hare, 1881,2 Out. 
 561. It is a good defence to a mortgage given by a married woman on h< r 
 separate estate that she was induced to give it by false representations, 
 whether or not the mortgage had anything to do with them. , 
 
 Note— Bona Fide Assignee.— Taylor v. Gitt, 1849, lO Barr, 428. The 
 
228 FKAUD. 
 
 bona fid^ assignee of a sealed note in a contest with the obligee lor the 
 amount of the note is not affected -with a fraud between the obligee and the 
 first assignee. 
 
 P^rtneisMp — Purchase by Partner. — Grim v. Grim, C. P. 1874, 1 W. 
 N. C. 79. Where one of thg member? of a firm has fraudulently purchased 
 some of the firm property, and a decree has been entered enjoining him from 
 interfering -with the property and appointing a receiver, he will not be al- 
 lowed t» claim from the receiver the amount which he paid on the fraudu- 
 lent sale. 
 
 Puffing — Vendee's Bight Confirmed. — Backinstoss v. Stabler, 1859, 9 
 C. 251. Although the employment of a puffer at an orphan's court sale of 
 land is ground to set aside the sale, yet it will not effect the right of the 
 vendee after confirmation, receipt of the deed, and possession taken. 
 
 Transfer of Stock— Negligence,— Penna. R. E. Co.'s Ap., 1878, 5 N. 80, 
 rev'g 2 W. N. C. 363. A corporation is a trustee of its stockholders and is 
 bound to proper vigilance and care that they may not be injured by un- 
 authorized transfers ot their stock. A power ot attorney thirteen years old 
 should be inquired into, but if the negligence of the owner gives the oppor- 
 tunity of making a fraudulent transfer, the corporation will not be charged ' 
 with the loss, though the facts should have aroused its ofSoers to inquiry. 
 
 II. "What Constitutes. 
 
 Administrator — Purchase by at Own Sale. — Wallington's Est., 1826, 
 I Ash. 307. A purchase by an administrator at his own sale is void, and if 
 he have disposed of the property he will be charged with the difference be- 
 tween the price he paid and that estimated by the court as a fair one. 
 
 Ante-Nuptial Agreement — Insolvency.— Kline's Est., 1870, 14 S. 414. 
 If the provision for a wife in an ante-nuptial settlement is unreasonably 
 disproportionate to the means of the husband, it casts upon him or those 
 claiming under him the burden of showing that there was a full disclosure 
 of his circumstances. 
 
 lb.— Conveyance.— Baird v. Stearne, C. P. 1882, 12 W. N. C. 205. A 
 secret conveyance by one a few days before betrothal but after declajations 
 of an intention to marry, is in fraud of the rights of the intended wife and 
 will be set aside. 
 
 lb.— Deed by Married Woman.— Duncan's Ap., 1862, 7 Wx. 67. A 
 trustj deed e.xecuted by a woman for herself two days before her intended 
 marrige and without the consent of her intended husband, is a. fraud on 
 him and equity will rescind the conveyance. 
 
 lb:— lb.— Belt V. Ferguson, 1859, 3 Gr. 289. A deed of trust for her sepa- 
 rate use made by a woman about to be married, is a fraud on her intended 
 husband. 
 
 lb. — Settlement.— Kline v. Kline, 1868, 7 S. 120. Any designed and 
 material concealment between the parties to an ante-nuptial settlement will 
 avoid it. ■ 
 
 lb.— Voluntary Deed.— Robinson v. Buck, 1872, 4 Leg. Gaz. 101, aff'g 28 
 Leg. Int. 221, 8 Phila. 37. The execution of a voluntary deed by a feme sole 
 on the morning of her marriage, is prima facie a fraud on her intended hus- 
 band. 
 
 Attorney and Client — Deed.— DeCamp v. Johnson, 1862, 3 Lnz. L. Obs. 
 42. A deed from a client to his attorney given by the advice of the latter 
 cannot stand. 
 
 lb.— Lockhard v. McKinley, C. P. 1681, 9 W. N. C. 11. The relation be- 
 tween attorney and client is a confidential one, and all acts, concealments 
 
FKAUD. 229 
 
 and omissions by the fornlfer 'which involve a breach of legal or equitable 
 duty bf oobfidence constitutes, in equity, a ft-aud. 
 
 batching Bargains— Enforcement.— Jordan v. McClure, 1878, 4 N. 495. 
 Equity will enforce the conveyance oi" an expectancy if made on sufficient 
 cbnsideTatlon. 
 
 lb. — ^Husband and Wife. — Bayler v. Commonwealth, 1861, 4 Wr. 37. A 
 conveyance of an expectancy is recognized in equity, but where a married 
 woman, without receiving any consideration, mortgaged her expectancy to 
 seciire her husband's creditors, equity will not lend its aid to enforce it. 
 
 lb.— Belief— Consideration.— Lardner's Est., O. C. 1885, 42 Leg. Int. 
 152, S. C. 16 W. N. C. 51. The holder of an expectancy who has improvi- 
 dently bartered it may avoid the contract on the ground of inadequacy of 
 consideration. 
 
 lb.— lb.— Woodward's Est., 1882, 1 Ches. Co. Eep. 417. An heir may as- 
 sign his expectancy, and liens entered after his ancestor's death and before 
 transfer do inot affect the pre^iious assignment. Equity will relieve against 
 a bargain of this kind if there has been surprise, fraud or inadequacy of 
 price, but if the latter is the only ground the heir must offer to return what 
 he received on making the contract. 
 
 lb.— lb.— Bogle's Est., O. C. Dauphin, 1880, 9 "W. N. C. 256. Equity will 
 relieve an heir against an unfair sale of his patrimony not yet due him, 
 thoilgh he be sid juris. 
 
 lb.— lb. — Trust. — Price's Ap., 1867, 4 S. 472. One aui juris assigned his 
 expectancy in an estate, the assignee died twenty-one years after the assign- 
 ment, and the expectancy came due five years after that. The assignor im- 
 mediately presented his claim. Meld, though he was barred by laches trom 
 asking equity to rescind his contract, that the auditor having found that the 
 assignment was in trust, he could recover on compensating the trustee. 
 
 Consideration.— Hughes' Estate, 1888, 6 Pa. Co. C. Eep. 168. Where a 
 party gratuitously gave a judgment note to operate as a legacy, and the payee 
 died first, an assignment by the heir of the payee for an insignificant pro- 
 portion of the amount of the note will not be disturbed in the absence of 
 evidence showing fraud or mistake. 
 
 Conveyance to Wife— Creditors.— Littlefield's Ap., 1884, 4 Penny. 
 372. Where a man conveyed property to his wife, and at the time was pos 
 sessed of five times the amount of his liabilities in addition to the transfer, 
 the creditors of the husband cannot reach the property as no evidence of 
 fraud appears. 
 
 > Conveyance Innocently Made. — Bugbee's Ap., 1885, 43 Leg. Int. 47. 
 One who has been innocently led into making a conveyance, the efect of 
 which has been to defraud creditors, may have relief in equity. 
 
 Debtor and Creditor — Statute of Limitations — Concealment.-^an- 
 key «. McElevey, 1883, 8 Out. 265. 'The relation of debtor and cfeditor is 
 not one of confidence, so that the mere concealment of the fact of the debt 
 by the debtor will toll the running of the statute of limitations. 
 
 Deed — Prior Agreement Carried Out.— Hollenback's Ap., 1888, 6 
 Crum. 322. A deed executed in pursuance of a prior agreement, and sub- 
 mitted to counsel for examination, will not be reformed without the clearest 
 evidence of fraud, accident or mistake, and an answer responsive to such 
 allegations will stand unless overcoine by the testimony of two witnesses, or 
 of one witness and coroborating circumstances. 
 
 Estoppel — Silence. — Harris V. Stevens, C. P. Luzerne, 1872, 1 Luz. Leg. 
 Reg. 588. Silence will only raise an estoppel where it is a fraud, but ac- 
 tions work estoppels though the party be ignorant of his rights. 
 
 Executor Attacking Previous Gift of Testator.— Gross' Estate, 1888, n 
 Pa. Co. C. Rep. 113. Although an executor may attack previous gifts of his 
 testator on the ground of fraud as to creditors, yet where the gifts were 
 
230 FRAUD. 
 
 articles of small intrinsic value given by a husband, a professional man, to 
 his wife, vphen he vpas insolvent, or where they aggregated but an inconsid- 
 erable amount and there is no evidence that there was an intention to defeat 
 creditors, no presumption of traud arises, and the gifts will not be disturbed, 
 lb. — Sale to Himself. — Fox's Est., 1868, 1 Pears. 449. A sale by an exe- 
 cutor, either directly or indirectly, to himself of real or personal projjerty, 
 will be set aside on petition of one interested. 
 
 ■ lb. — lb. — Bruch V. Lantz, 1830, 2 E. 392. A sale by an executor to him- 
 self, though indirectly, is voidable, and the executor takes the estate subject 
 to all the equities with which it was previously clothed. 
 
 Fixture — Severance— Judgment Creditor. — Witmer's Ap., 1863, 9 Wr. 
 455. The severance of a fixture by a judgment debtor so as to prefer a sub- 
 sequent judgment creditor to a prior one is a fraud, which equity will stop 
 by inj unction ; whether equity has, on the the petition of a mere j udgment 
 creditor, power to enjoin it on the ground that it is waste, not decided. 
 
 Husband and Wife— Gift— Professional Men.— Gross' Estate. 1888, 45 
 Leg. Int. 224. In the case of a professional man whose profession was his 
 capital, long illness will be sufficient to rebut the presumption of fraud in 
 making gifts to his wife, when his property did not prove sufficient to pay 
 his debts. 
 
 lb.— Liens on Land Conveyed.— Nippes' Ap., 1874, 25 S. 472. A lien 
 on the land conveyed is not such a debt as avoids a conveyance by a husband 
 to his wife. 
 
 Lunatic— Arnold V. Townsend, C. P. 1880, 37 Leg. Int. 376, S. C. 14 
 Phila. 216. A deed made by one afterwards adjudged to be a lunatic with 
 lucid intervals, will be set aside if made to one standing in a relation of con- 
 fidence to him and on inadequate consideration. 
 
 Principal and Surety. — Wesley Church v. Moore, 1849, 10 Barr, 273. 
 To leave a surety in the lurch because there is no legal obligation resting on 
 the principal, is such constructive fraud as is relieved against in equity. 
 
 Mortgage in Fraud of Creditors.— Barrett v. Nealon, 1888, 21 W. N. 
 C. 104. A mortgage, given to protect the mortgagor's property from certain 
 creditors holding notes upon which the mortgagor was endorser, was fraudu- 
 .lent and void as to other contesting creditors having claims at that time, and 
 a sale under such mortgage passed no title as against them. 
 
 PufS.ng. — Donaldson v. MoRoy, 1811, 1 Browne, 346. Puffing at asherifi^'s 
 sale avoids it. 
 
 lb. — Staines v. Shore, 1850, 4 H. 200. A sale at auction will be set aside 
 if it be made to appear that a puffer was employed by the seller to bid for 
 him, and it is not material that the property brought no more than its real 
 value. 
 
 lb. — Backinstoss v. Stabler, 1859, 9 C. 251. Although the employment of 
 a puffer at an orphans' court sale of land is ground to set aside the sale, yet 
 it will not elfect the right of the vendee after confirmation, receipt of the 
 deed, and possession taken. 
 
 lb.— Schug's Ap., 1883, 14 W. N. C. 49, S. C. 32 Pitts. L. J. 19. Puffing 
 by an auctioneer invalidates a sale although not authorized by the vendor. 
 
 lb. — Yerkes v. Wilson, 1870, 32 S. 9. Puffing at an auction is such a fraud 
 on the purchaser as avoids the sale. 
 
 Keformation— Conflicting Testimony. — Kenny v. McClellan, C. P. 
 Chester, 1870, 27 Leg. Int. 246, S. C. 7 Phila. 655. Equity will not reform 
 a written contract upon conflicting evidence of fraud or mistake. 
 
 Representations — Executed Contract. — Graham v. Pancoast, 1858, 6 
 C. 89, Nace v. Boyer, id. 99. Equity will not rescind an executed contract 
 on the ground of fraudulent representations unless the parties stand in some 
 confidential relation. There must be actual fraud or plain mistake. What 
 is such fraud discussed. 
 
PHAUD 231 
 
 lb.— Married Woman — Deed— Cancellation. — Jewiett v. Lineberger, 
 1887, 3 Cram. 157, S. C. 16 Pitts. L. J. 133. Equity will order the deed of 
 a married woman to be delivered up and cancelled where the justice before 
 whom her separate acknowledgment was taken made false representations 
 to her in order to secure a first lien on the land in the hands of the grantee. 
 Resulting Trust— Parol Contract.— Haines v. O'Conner, 1840, 10 W. 
 313. Breach of a parol contract for the sale of land is not such mala fides 
 as will raise a resulting trust. 
 
 lb. — lb. — Robertson v. Robertson, 1839, 9 "W. 32. In all cases of fraud 
 there is a resulting trust by operation of law, but the mere breach of a parol 
 contract concerning land is not legal fraud. 
 
 Settlement of Claim — Balance of Money. — Gandolfo v. Wood, 1864, 1 
 Pears. 269. Where money is placed in the hands of a person in order to set- 
 tle a claim, and the claim is settled for a less sum, the person himself retain- 
 ing the balance, equity has jurisdiction of the case. 
 
 Sheriff's Sale— Mere Talk at.— Sergeant v. Ford, 1841, 2 W. & S. 122. 
 Mere talk at a sheriff's sale by one who is not acting either in the interest 
 of the defendant or the purchaser, does not amount either to notice or fraud. 
 lb.— Representations — Trustee Ex malefacio. — Powers. Thorp, 1879, 
 11 N. 346. One who by his representations at a sheriff's sale is enabled to 
 get the property at a low price, will not be allowed to profit by his own 
 fraud but will get only the title that he gave notice was being sold. 
 
 Silence. — Robinson v. Justice, 1830, 2 P. & W. 19. Silence is only Iraud- 
 ulent when intentional. 
 
 Trade Name. — Piper v. Laughman, 1888, 6 Pa. Co. C. Rep. 232. Fraud 
 will not be imputed from the fact that miners of coal sell the same under the 
 name of coal mined in an adjoining colliery from which the trade name is 
 derived, providing it is essentially the same kind of coal. 
 
 Trust— Act of April 22, 1856.— Christy v. Sill, 1880, 14 N. 380. Act 
 April 22, 1856, Sec. 6, applies to cases of trusts arising from actual fraud. 
 These are not within the exception. 
 
 lb. — ^For Children. — Ressler v. Witmer, 1860, 1 Pears. 174. Where a 
 j)erson gave to another certain property to hold as trustee for his children, 
 and after the death of the former it was needed for payment of his debts, 
 this is such a case of fraud and trust as comes within equity jurisdiction. 
 
 Trustee— Purchase by— Consideration.— Bixler v. Kunkle, 1828, 17 S. 
 & R. 298. A purchase by executors and trustees of the interest of the cestui 
 que irustent (who are absent) will be closely watched, and if for inadequate 
 consideration will be set aside as fraudulent and void. 
 
 Il,._Ilj._Peters v. Kerper, C. P. 1878, 5 W. N. C. 523, S. C. 35 Leg. Int. 
 180, 12 Phila. 410. A trustee who purchases property at his own sale is a 
 trustee for the partife interested, and is not protected by the statute until 
 five years after the right or equity accrues to those whom he has defrauded. 
 lb.— Sale by, to Relations.— Lamberton v. Smith, 1825, 13 S. & R. 309. 
 Sales by trastees to their near relatives are always suspicious. 
 
 lb.— Ex malefacio— Facts Necessary to Create.— Kimmel v. Smith, 
 1887, 2 Crura. 183. The fraud which will convert the purchaser of land at a 
 sheriff's sale unto a trustee ex malefacio of the debtor, must have been 
 fraud existing at the time of the sale, by which title was procured and must 
 be clear, explicit and unequivocal. 
 
 lb.— lb.— Notice.— Rider V. Maul, 1871, 20 S. 15. A. and B. purchased 
 land under articles, A. gave B. the money to pay the taxes; B. did not pay 
 them, and the land was sold for them. B. purchased from the purchaser at 
 the tax sale, and having fraudulently got possession of the original articles 
 had them cancelled and new ones made to himself alone. B. thrtn went into 
 possession, made improvements, sold part of the land and procured a deed 
 to be made to him and recorded. Held, that there was a trust arising from 
 
232 FRAUD. 
 
 a fraud and therefore excepted out of the Act April 22, 1856, Sec. 6, and that 
 the facts in evidence were not notice of the fraud, nor would they have led 
 to its discovery by reasonable diligence. 
 
 lb.— lb.— Parol Promise.— Salter v. Bird, 1883, 7 Out. 436. A trust 
 cannot be established by parol promises on the part of the grantee after the 
 conveyance to him; his promises must have been the inducement of the con- 
 veyance in order that the breaking of them shall raise a trust. 
 
 lb.— lb.— Promise to Buy for Another. — Wolford v. Herrington, 1877, 
 5 N. 39. A promise by one that he will purchase land for another atsheriff 's 
 sale, is only binding when the one to whom the promise is made has an in- 
 terest in the property. 
 
 Weakness of Intellect. — Dokerty v. Gordon, C. P. Luzerne, 1876, 5 tuz. 
 L. Reg. 233, S. C. 4 Scr. L. T. 11. The mere fact that a person is of weak 
 imderstanding if there be no fraud or surprise, is no ground for equity to 
 grant relief from his own contracts. 
 
 III. Jurisdiction. 
 
 Averments Should be Precise. — Marr's Ap., 1875, 28 S. 66. General 
 averments of fraud in a bill in equity are not sufficient ; there must be par- 
 ticular acts of fraud alleged and also damage resulting therefrom. 
 
 lb.— Baird v. Hamm', C. P. 1870, 27 Leg. Int. 317, S. C. 7 Phila. 436 ; 1 
 Leg. Op. 17. The averments of fraud in a bill seeking to set aside a sale 
 on the ground of fraud must be certain and specific. 
 
 lb.— Gutekunst v. Eathbone Oil Co., D. C. 1867, 24 Leg. Int. 44, S. C. 6 
 Phila. 199. Where a bill charges fraud the points should be stated precisely 
 and not left to inference. 
 
 lb.— Mc Andrew v. McAndrew, 1886, 3 C. P. Rep. 174. There must be a 
 distinct averment of fraud in the bill, based upon the proper information, in 
 order to call upon the defendant to answer. An averment of what the de- 
 fendant or informant said is not sufficienl . 
 
 Contrivance and Combination. — Gray v. Simon, D. C. 1855, 12 Leg. Int. 
 62, S. C. 1 Phila. 5.51. Where fraud is charged and it is stated to have been 
 done by contrivance and combination, equity has jurisdiction. 
 
 Conveyance to Defraud Creditors. — Sheehan v. Gough, 1888, 5 Kulp. 
 116. Equity has jurisdiction to set aside a conveyance made with intent to 
 defraud creditors, and to decree a sale of the land for the payment of their 
 debts. 
 
 General Allegations.— Fisher v. Walter, 1886, 3 C. P. Rep. 161. A bill 
 in equity will not lie for moneys wrongfully collected; the remedy is at law; 
 nor will equity grant relief upon the general allegation of fraud, without 
 the specification of the facts relied upon. 
 
 Husband andWife— Gift.— Ressler v. Witmer, 1859, 1 Pears. 174. Where 
 property is given away in order to deprive a wife of her share, it is such a 
 case of fraud as gives equity complete jurisdiction. 
 
 lb.— lb.— Intention.— Conley v. Bentley, 1878, 6 N. 40. Equity will 
 sustain a gift from a husband to his wife if it be formed by the jury that 
 there was no fraudulent intent against creditors. 
 
 Money Obtained on Fraudulent Judgment. — City v. Kensington Turn- 
 pike Co., C. P. 1881, 10 W. N. C. 357. Equity has jurisdiction to compel a 
 restoration of money obtained under a judgment at law alleged to have been 
 fraudulently obtained, although that judgment has been affirmed on a 
 certiorari. 
 
 Mortgage— Ground Bent — Conspiracy.— Schoening v. Speck, C. P. 
 
FRAUD. 2U3 
 
 1879, 8 W. N. C. 44. Equity will take cognizance of a bill filed by a mort- 
 gages, alleging that the mortgagor is conspiring with the holder of a prior 
 ground rent in order to have the property sold out thereunder and the mort- 
 gage thus discharged. 
 
 Partners— Amicable Settlement.— Shirk's Ap., 1869, 3 Brews. 119. 
 Equity will not entertain a bill for an account between partners where they 
 have amicably settled their afi'airs and given mutual receipts, save for fraud, 
 misrepresentation or mistake. 
 
 Principal and Agent— Compromise of a Claim. — Gandolfo v. Hood, 
 C. P. Dauphin, 1864, 1 Pears. 269. An agent who compromises a claim 
 against his principal and keeps the balance, commits such a fraud as is cog- 
 nizable in equity and the statute o^ limitations runs only from its dis- 
 covery. 
 
 Priority of Contract— Sheriff 's Sale— Judgment.— Winter's Ap., 1869. 
 11 S. 278. It was agreed between a judgment creditor and his debtor, that 
 the land of the latter should be sold at sheriff's sale and be bought in by 
 the former at a low price and the judgment thereupon satisfied. The land 
 was so sold to the creditor who did not satisfy the judgment but assigned it 
 to a third party who collected it off of plaintiff who was the surety. In a 
 suit by the surety against the creditor it was held that there was no privity 
 of contract. The. bill further alleged that complainant had been informed 
 by defendant of the agreement, and consequently did not attend the sale 
 and bid to the amount of the judgment as he otherwise would have done; 
 but the bill did not allege any fraudulent combination, misrepresentation or 
 deceit. Held that if the complainant suffered loss it was damnum absque 
 injuria, and even had the bill alleged a fraudulent combination, etc. , the 
 remedy would be at law. 
 
 Remedy at Law. — Johnson v. DeCamp, C. P. Erie, 1862, 3 Luz. L. Obs. 
 38. It is enough to give equity jurisdiction in oases of fraud or account that 
 the equitable remedy is more prompt and thorough than that at law. 
 
 lb.— Mackintosh v. Tracy, N. P. 1868, 4 Brews. 59, S. C. 4 Leg. Gaz. 114. 
 The fact that a bill alleges fraud does not necessarily give equity j urisdic- 
 tiou; if the remedy at law is adequate, and especially if the fraud relates to 
 clmttels, the bill will be dismissed. 
 
 lb.— Beasley v. Allen, C. P. 1882, 12 "W. N. C. 90, S. C. 39 Leg. Int. 264, 
 15 Phila. 97. Equity will take jurisdiction of a bill to recover possession of 
 a chattel which has a sentimental value, and if the bill charges fraud a de- 
 murrer on the ground of frivolity will be dismissed. 
 
 lb.— Lightner v. Penna. Co., C. P. 1884, 4l' Leg. Int. 386. Where the re- 
 lief prayed for is damages and the transactions are not complicated, the fact 
 that fraud is charged will not give equity jurisdiction, but if the transactions 
 were between partners and their accounts must be looked into, equity will 
 hear the case. 
 
 lb. — Fraudulent Conveyance. — Independent Saving Fundi;. Dillon, C. 
 P. 1881, 10 N. W. C. 506. A bill will lie in the common pleas to set aside a 
 fraudulent conveyance by a decedent. 
 
 lb.— Use of Fraudulent Instrument.— Batdorf v. Albert, 1868, 9 S. 59. 
 Law as administered in Pennsylvania, is as ef&cient to prevent the fraudu- 
 lent use of an instrument as equity_is to restrain it. 
 
 Eepresentations as to Value.— Mears v. Muirhead, C. P. 1875, 1 W. N. 
 C. 481. Misrepresentations as to the value of property sold do not per sc 
 amount to such fraud as will give .equity jurisdiction. 
 
 Supreme Court.— Patterson v. Sohoyer, 1840, 10 W. 333 The Supreme 
 Court has not equitable jurisdiction in the case of fraud. 
 
 lb.— Crawford Co. ». Pittsburgh R. R. Co., 1858, 8 C. 141. The Supreme 
 Court sitting in ianc has no original equity jurisdiction over fraud. 
 
 Will— Preventing the Making of.— Daingerfield v. Grooihe, C. P. 1876, 
 
234 FEAUD. 
 
 2 W. N. C. 710. Equity has jurisdiction of a bill charging fraud in prevent- 
 ing the making of a will and asking that the defendant be declared a trustee 
 for the intended beneficiaries. 
 
 IV. Proof of. 
 
 Character of Evidence Necessary to Reform Instrument.— Stine v. 
 Shark, 1841, 1 W. & B. 195. Where fraud or mistake is alleged to change 
 the purport of a solemn instrument, the evidence thereof should be clear or 
 the court should not submit it to the jury. 
 
 Confession of Judgment— Equitable Title — Creditors.— Miles v. Lewis 
 and BaiTowman, 1887, 19 W. N. C. 263. Where the holder of the legal title 
 and the holder of the equitable title to land agree to enter an amicable ac- 
 tion of ejectment and the owner of the equitable title confesses judgment in 
 the same in consequence of unpaid purchase money, the creditor who is 
 thereby prevented from collecting his claim against the owner of the equit- 
 able title, must prove according to the rules of evidence applicable to ac- 
 tions at law that the confession of judgment was intended to detraud 
 creditors. 
 
 Finding of Facts.— Kenny v. MoClellan, C. P. Chester, 1870, 27 Leg. Int. 
 246, S. C. 7 Phila. 655. Where in an action at law on a written contract the 
 court is asked to reform the same on the ground of fraud, the finding of facts 
 by the jury is not binding on the conscience of the court. 
 
 Husband and Wife— Good Faith.— Darlington's Ap., 1878, 5 N. 512. 
 The relation of husband and vrife is a confidential one, and wherever the 
 husband claims a benefit arising from any dealings with his wife he must 
 show affirmatively that he acted in good faith, took no advantage of his 
 position and that the dealings were fair and equitable. 
 
 Oral Evidence— Keformation and Cancellation.— Lippincott v. Whit- 
 mare, 1877, 2 N. 244. Wherever equity would set aside or reform a written 
 instrument on the ground of fraud, accident or mistake, oral evidence is ad- 
 missible (except in the case of commercial paper) to contradict or deny its 
 uerms. 
 
 lb — Scettiger v. Hopple, 1856, 3 Gr. 54. Courts of law can construe or 
 set aside an instrument, but only equity can reform it. For this purpose 
 oral testimony is sufficient if it be believed by the jury, and if in the opin- 
 ion of the court it makes out a good case on the ground of fraud, accident or 
 mistake. 
 
 lb. — Rowand v. Finney, 1880, 15 N. 192. One can only be relieved from 
 his written agreement by proving fraud, accident or mistake in its procure- 
 ment, and although this may be done by oral evidence that evidence must 
 be clear and indisputable ; if it is not the court should not allow it to go to 
 the jury. 
 
 Partnership— Recession of Sale— Laches.— Geddes' Ap., 1876, 30 S. 
 442. One partner sold out his interest in the firm to his co-partner and after 
 nearly six years asked to have the contract rescinded on the groun d of fraud. 
 Held, that after that lapse of time he must prove the fraud most conclusively, 
 and the master having found the price but slightly inadequate and that the 
 seller had full access to examine the affairs of the firm decided that the fraud 
 was not proved. , 
 
 Presumption and Proof. — Rice v. Rice, C. P. Luzerne, 1876. 5 Luz. L. 
 Reg. 207. Although the rule is that fraud must be proved, yet fraud is not 
 a single act but a conclusion from a course of action, and in equity it may 
 in certain cases be presumed. 
 
 Presumption of— Inadequacy of Price. — Schatz v. Kirker, 1886, 17 W. 
 
FEAUD. 235 
 
 N- C. 43. Inadequacy of price without more does not raise a presumption 
 of fraud where real estate is sold. 
 
 Sale of Consigned Goods.— Harper v. Kean, 1824, 11 S. & E. 280. A 
 defendant may prove by way of set-ofl that he consigned certain goods to 
 plaintiff which were to be sold and applied on the claim in suit, and that 
 plaintiff fraudulently caused the goods to bring less than their value ; upon 
 proving this he is entitled to set off the full value of the goods. 
 
 Trust— Parol Evidence.— McGinity -u. McGinity, 1869, 13 S. 38. Parol 
 evidence of negotations prior and leading to a written contract are inadmis- 
 sible to vary it, and can only be shown to prove a trust or fraud when it is 
 clearly established that they continued the same up to the time of executing 
 the instrument. 
 
 Trustee— Commissions.— Greenfield's Est., 1850, 2 H. 489. A provision 
 in a declaration of trust by one old and infirm, that certain trustees are to 
 be liberally compensated whether they act or not is void unless it is affirma- 
 tively proven that the grantor made this provision without being influenced 
 by the trustees. 
 
 Weakness of Intellect — ^Executed Contract. — Aiman v. Stout, 1860, 6 
 Wr. 114. Mental weakness which will authorize equity to rescind an exe- 
 cuted contract, must amount to an inability to comprehend the contract. 
 There must also be evidence of imposition or undue influence. 
 
 v. Remedy. 
 
 Cancellation — ^mistake — Testimony Closed. — Edwards v. Brightly, 
 1887, 44 Leg. Int. 132. A bill filed for the surrender and cancellation of an 
 instrument, alleged to have been procured by fraud, cannot be sustained on 
 the ground of mistake after all the testimony has gone in. 
 
 Collusion— Purchase — Ejectment — Tender.— Miles v. Lewis and Bar- 
 Towman, 1886, 5 Amer. 580. Where the owners of the legal and equitable 
 titles to land collude to defraud a creditor of the latter, the purchaser at 
 sheriff's sale of the interest of the owner of the equitable title may main- 
 tain an action of ejectment against the owner of the legal title without ten- 
 dering the purchase money due to the latter. 
 
 Conveyance — Cross-Bill — ^Recission. — Phippsu. Kent, 1880, 1 Ches. Co. 
 Rep. 158. Where a bill has been filed, asking for a recission of a conveyance 
 on the ground of fraud, a cross-bill asking that the complainant deliver up 
 possession of a part which he still holds, will be dismissed as an ejectment 
 bill and as not growing out of the original bill. 
 
 lb. — Judgment Creditors. — Girard National Bank's Ap., 1883, 13 W. N. 
 C. 101. A judgment creditor, who thinks that his debtor has fraudulently 
 conveyed land, must proceed at law to sell the land and try the title by 
 ejectment; he has no remedy in equity. 
 
 lb. — ^Lien. — Boyle V. Thomas, 1879, 1 Ches. Co. Rep. 117. A lien cred- 
 itor, whose lien has attached after a conveyance claimed to be fraudulent, 
 may bring a bill in equity to have the conveyance decreed void. 
 
 Decree — Impeaching Collaterally. — Commonwealth v. Trout, 1874, 26 
 S. 379. A decree cannot be impeached collaterally for fraud in the transac- 
 tion, but only for fraud in the procuring of the decree. 
 
 Executed Contract— Failure of Consideration.— Rockafellow v. Baker, 
 1861, 5 Wr. 319. An executed contract will only be rescinded in equity for 
 fraud or palpable mistake. Failure of consideration is not enough. 
 
 Injunction — Officers. — Brown v. Philadelphia, C. P. 1884, 41 Leg. Int. 
 242. Equity will not enjoin an officer from exercising a discretion in the 
 absence of fraud. 
 
236 FBAUD. 
 
 Issue Awarded. — Janney «. Imperial Oil Co., D. C. 1867, 24 Leg. lut. 
 149, S. C. 6 Phila. 261. "Where fraud is alleged in the bill and denitsa in the 
 ainswer and not established to the satisfaction of the court an issue *ill be 
 awarded. 
 
 Judgment — Injunction. — Hopkinson «. Mortimer, D. C. 1874, X W. N. 
 C. 139. Where a bill charges very grave fraud in obtaining a judgment, 
 execution thereon will be enjoined by a preliminary injunction tml'eiss the 
 answer of the defendant is explicit in denial and shows how the debt was 
 contracted. 
 
 lb.— Opening of— English's Appeal, 1888, 45 Leg. Int. 314. A judglBent 
 given in an amicaMe settlement will not be opened except npon clear, pre- 
 cise and indisputable evidence of fraud. 
 
 Partnership— Due Bill— Laches.— Iredell v. Klemm, 1887, 19 W. iST. C- 
 539. Where a partner abstracted a sum of money from the firm in conse- 
 quence of which a dissolution was agreed upon, the partner accepting a due 
 bill for his interest in thf coDcern, part of the consideration being ttait the 
 affair should not be made public ; and the co-partners subsequently reifised 
 to pay the due bill giving the partner the alternative Of exposure in surren- 
 dering the due bill, it was Held on a bill in equity filed seven years there- 
 after that the culpability of the plaintiff and his laches were sufficient to re- 
 fuse him relief. 
 
 Partnership — Injunction — Excess of Share in Profits Withdrawn.— 
 Moir V. Emerick, 1887, 3 Montg. C!o. L. Hep. 161. A partner who draws 
 more than his share of the profits from the firm assets will be restrained by 
 injunction, and in such case the partnership will be dissolved upon applica- 
 tion and a receiver appointed. 
 
 Patrimony— Sale of Expectant.— Bogle's Est., O. p. Dauphin, 18^0, 9 
 W. N. C. 256. Equity will relieve an heir against an unfair sale of his pat- 
 rimony not yet due him though he be sui juris. 
 
 Purchase— Inducements— Mortgage.— Rice v. Olin, 1S75, 29 S. 391. 
 One who has been fraudulently induced to purchase land and who gives a 
 mortgage for the purchase money, may, on discovering the fraud, r^cind 
 the contract or defend an action on the mortgage. 
 
 Kecission — Inadequacy of Consideration.- Davidson v. Little, 1853, 10 
 H. 245. Equity will not rescind an executed contract foi gross inadequacy 
 of price alone, although that might be ground for refusing to Specifically en- 
 force it. 
 
 iRepresentation as to Value— Specific Performance.— Holmes' Ap., 
 1874, 27 S. 50. Equity will not decree specific performance in favor of a 
 vendor of land if he has made material misrepresentations concerning it. 
 
 Representations — Confidential Relation. — Babcock v. Case, 1869, 11 
 S. 427. The vendor of land (situated thirty miles from the place of the 
 sale) represented to the vendee that the title was good, and that Vendee 
 would have to take his TVord for it. Held that the relation was one of trust 
 and confidence and that the vendor was bound to represent the facts as they 
 existed. In general a plaintiff is not entitled to a rescission of an executed 
 contract on the ground of fraud, without first tendering a restoration of the 
 consideration, but this is not necessary if the consideration be worthless. 
 
 Statute of Frauds — Preliminary Injunction. — Whetham v. Cljrde, C. 
 P. 1870, 1 Camp. 53, S. C. 2 Leg. Gaz. 109, 1 Lan. B. No. 46. Equity will 
 not protect by a preliminary decree, one who claims title to land uilder a 
 parol agreement, it not being clearly shown that part of the purchase money 
 was paid or that there was fraud. 
 
 Statute of Limitations— Resulting Trust.— Maul v. Elder, 1868, 9 S. 
 167. Under Act April 22, 1856, limiting to five years, after a fraud is 
 discovered, the enforcing of a trust resulting from the fraud, putting a deed 
 on record is not notice to one not hound to search for it. 
 
 lb. — Running of — Laches. — Bank of United States u. Biddle, 1844, 2 
 
PEAUD — QBNI5KAL RELIEF. 287 
 
 Pars. 31. In all cases except those of fraud and technical trusts, equity fol- 
 lows the law in applying the statute of iimitations. In cases of fraud the 
 statute only commences to ruu when the fraud is fully discovered; but in 
 every case equity abhors stale claims. 
 
 Transfer of Stock— Collateral Security for Pre-existing Debt.— Len- 
 
 nard's Appeal, 1886, 21 W. N. C. 40. C. obtained a certificate of stock from 
 P., and fraudulently appropriated it to his own use. He pledged part of it 
 to D. as collateral security tor a pre-existing debt, D. giving him time on 
 the strength of it. D. accepted the collateral in good faith without knowl- 
 edge of the fraud. C. was insolvent at the time P. filed a bill in equity to 
 recover his stock and obtained a decree. 
 
 Trustee— Purchase at Own Sale.— Webb v. Dietrich, 1844, 7 W. & S. 
 401. The rule that a trustee shall not purchase at his own sale is one of 
 public policy and will be enforced whether there be fraud or not. 
 
 lb.— Morrell v. Trotter, C. P. 1882, 12 W. N. C. 143, S. C. 14 Lan. B. 91, 
 39 Leg. Int. 256, 15 Phila. 201. A trustee who buys at his own sale is pro- 
 tected after six years although the cestui que trust did not discover the fraud 
 immediately. 
 
 Vendor Under Articles Selling.— Baum v. Dubois, 1862, 7 Wr. 260. 
 Where a vendor, under articles of agreement, has subsequently sold and 
 conveyed the land to another, the first vendee is not bound to tender the 
 purchase money before bringing ejectment for the land. 
 
 Voluntary Deed— Minor Arriving at Age— Cancellation.— Kelly's 
 Ap., 1881, 2 Sch. L. E. 85. Equity will order to be cancelled, voluntary 
 deeds which defendants have procured from one just come of age, although 
 the latter has not given up possession. 
 
 Weakness of Intellect— Misrepresentations— Title.— Meurer'sAp., 
 1888, 4 Crum. 118. In a bill in equity the complainant charged that 
 he was the leeitimate son and sole, heir at law of a decedent; that the de- 
 tendant was the illegitimate son of the plaintiff's mother but not of the 
 plaintiff's father and both had been brought up iri the same family; that by 
 fraudulent advantage taken of the plaintiff's ignorance and mental weak- 
 ness and by fraudulent misrepresentations, the defendant had obtained from 
 the plaintiff his title to the real estate of his deceased father. SCeld it was 
 not error to decree the cancellation of the conveyances; that the defendant 
 should forthwith deliver up possession of the real estate to the plaintiff, and 
 that an ^count should be taken of the rents, issues and profits.. 
 
 FUTURE ADVANCES. 
 
 See MOETGAGE, XII. 
 
 OARI9ISHEE. 
 
 See Adjustment, VII; B. 
 
 GElVERAIv RELIEF. 
 
 See Relief. 
 
238 GOODWILL — HUSBAND AND WIFE. 
 
 GOOD-WIL.L. 
 
 See Injunction, I, L. 
 
 GRADB CROSSIIVG. 
 
 See Injunction, I, G. 
 
 GROtWD RBXX. 
 
 See Adjustment, VII; Equitable Estate. 
 
 GRAXTOR AXn GRA9IXEE. 
 
 See Vendoe and Vendee. 
 
 GVARDIAX AXD IVARD. 
 
 See Confidential Relation, VI; Teusts and Teustkes. 
 
 HIGHWAY. 
 
 See Injunction, I, H. & I. 
 
 HUSBAND ANO "WIFE. 
 
 See also Adjustment, VII; Confidential Relation, VII; Election; Es- 
 toppel, VII; Injunction, I, N; Moetgage, XIII; Trusts and Teus- 
 TBES, I, A (b) (e) (d) (g), C, D; II K; Specific Peefoemance, V, XI. 
 I. In Genbeal. 
 II. Feme Sole Tradee. 
 
 III. Ante-Nuptial Settlement. 
 
 IV. PosT-NuPTiAL Settlement. 
 V. Dowee. 
 
 VI. Sole and Separate Use. 
 
 A. Essentials to Validity of. 
 
 B. Power of Disposition. 
 
 C. Liabilities of. 
 
 D. Termination of. 
 
 E. Curtesy. 
 
 VII. Conveyances, Transfers, Purchases and Judg- 
 ments Between. 
 VIII. Articles of Separation. 
 
HUSBAND AND WIFE. 239 
 
 I. In Oeneral. 
 
 Acknowledgement— Conclusiveness as to Age.— Ledger Building 
 Assoc. V. Cook, 1879, 6 W. N. C. 428, S. C. 26 Pitts. L. J. 199. The certifi- 
 cate of an officer wlio takes the acknowledgment of a married woman to a 
 mortgage that she is of full age is not conclusive. 
 
 Assignment— Collateral Security.— Walker v. Coover, 1870, 15 S. 430. 
 A verbal assignment of bonds to a married woman as collateral security, she 
 thereby undertaking to pay certain of the assignor's debts, is valid as against 
 attaching creditors. 
 
 lb.— Slaymaker v. Bank of Gettysburg, 1849, 10 Barr, 373. Stock be- 
 queathed to a married woman and over which her husband has exercised no 
 acts of ownership, will not pass by a general assignment for creditors made 
 by the latter. 
 
 lb.— Legacy ofWife. — Skinner's Ap., 1847, 5 Barr, 262. An assign- 
 ment by a husband of all his personal property which he is in any manner 
 entitled to, be the same in possession or action, does not include an oul^ 
 standing legacy to his wife. 
 
 lb. — ^Non-Joinder. — Stoops v. Blackford, 1856, 3 C. 213. An assignment 
 of a mortgage by a married woman without her husband's joining is void. 
 
 lb. — Of Mortgage. — Moore v. Cornell, 1871, 18 S. 320. An assignment 
 of a mortgage by a married woman, her husband joining, but she herself not 
 acknowledging it, is void and will not be received as evidence. 
 
 lb. — Of Policy of Insurance. — Insurance Co. V. Brown et at, 1888, 5 
 Lan. L. Rev. 394. An assignment of a life insurance policy taken out by a 
 wife on her husband's life, for her sole use, or in case of her death before 
 her husband, then for the use of her children, is void as to the children. 
 
 lb.— lb.— Consideration.— Bond v. Ins. Co., D. C. 1873, 30 Leg. Int. 
 304, S. C. 9 Phila. 149. An assignment by a married woman and her hus- 
 band without any consideration moving to the wife of part of a policy of 
 life insurance held by the wife on the life of her husband, may be sustained 
 in equity. 
 
 Bill by Husband Against Wife.— Lynch v. Lynch, C. P. 1885, 16 W. 
 N. C. 178. A bill may be filed by a husband against his wife. 
 
 Business — Use of Wife's Property in. — Gross v. Reddig, 1863, 3 Luz. 
 L. Obs. 133. Where a wife's property has been used by her husband in his 
 business for many years, she has no remedy even in equity against creditors. 
 
 Contract— Estoppel.— Melroy v. Melroy, 1889, 6 Pa Co. C. Rep. 419. A 
 contract to sell goods to a married man upon an agreement that the wife would 
 pay for them with moneys coming to her, is void and cannot be enforced 
 upon the principle of estoppel. 
 
 Conversion — Death of Wife— Payment Into Court. — Commonwealth 
 V. Haffey, 1847, 6 Barr, 348. Where land of a feme coveH has been converted 
 by partition and acceptance at a valuation, but her share not recovered dur; 
 ing her lifetime, it will be ordered into the orphans' court where under the 
 Act of 1832, the husband can only receive it by giving security to keep the 
 principal intact for her heire. 
 
 lb.— Williams u. Williams. 1874, 1 W. N. C. 54. A gift in a will to a 
 •wife of what she would be entitled to under the intestate laws, followed by 
 a direction to sell the real estate, gives one-third of the whole estate abso- 
 lutely, since the last clause works a conversion. 
 
 lb.— Widow Taking Against Will.— Hoover v. Landis. 1874, 26 S. 354. 
 A widow, who elects to t^ke under the will, takes the property as it exists, 
 dehors the will and is not affected by a conversion which the provisions of the 
 will work. 
 
 Court and Jury— Acknowledgment.— Hecter v. Glasgow, 1875, 29 S. 
 79. Whether an acknowledgment by a married woman of her mortgage is 
 Talid is for the jury. 
 
840 HUSBAND AJfD WIFE. 
 
 Desertion by Husband— Property of Wife.— Rees v. Waters, 1839, 9 
 W. 90. Neither equity nor law will aid a husband who has deserted his 
 wife in gaining possession of her property, whether real property or choses in 
 action which he has not previously reduced to possession. 
 
 Exemption — Mortgage of Husband— Priority of Liens. — Nerpel's 
 Ap., 1879, 10 N. 334. A widow cannot claim her exemption out of the pro- 
 ceeds of a sheriff's sale of land in preference to a mortgagee of her husband. 
 
 Fixtures — Erection of on Wife's Land.— Buck's Ap.,1882, 2 Penny, 
 327. A husband who has erected trade fixture^ on his wife's land which 
 she has previously mortgaged, and who gives no notice of his claim at a sale 
 under the mortgage, cannot clame them after the sale. 
 
 Injunction— Execution.— Boyle v. Eamsey. N. P. 1870, 1 Camp. 45, S. 
 C. 3 Leg. Gaz. 73. Equity will not enjoin the sale of a wife's real estate on 
 an execution issued against the husband except in a very clear case. 
 
 Jurisdiction. — Gleghome v. Gleghome, .1888, 3 Crum. 383. Whether 
 there is jurisdiction in equity of a bill filed by a wife to recover an alleged 
 loan of her separate estate to her husband, not decided. 
 
 Liquor— Under Influence of— Deed Set Aside.— Sharp v. Phila. Trust 
 Co., C. p. 1875, 1 W. N. C. 480. Equity will set aside a deed made by one 
 under the influence of liquor and which is predj udicial to his vrife's interests. 
 
 Mortgage— Husband Mortgagee— Satisfaction.— McKinney «. Hamil 
 ton, 1865, 1 S. 63. A mortgage given to secure part of the purchase money 
 of a vidfe's separate estate sold by her, named the husband as one of the 
 mortgagees. Held that payment to him would not satisfy the mortgage, and 
 also that an entry of satisfaction by him was without effect. 
 
 Ne Exeat, Writ of.— Drausfield v. Drausfteld, C. P. 1866, 23 Leg. Int. 
 '229, S. C. 6 Phila. 143. A writ of ne exeat will be granted at the instance 
 of a married woman against her husband who is about to depart with her 
 property. 
 
 Power — Defective Execution of — Desilver's Est. , 0. C. 1884, 41 Leg. 
 Int. 274. Equity will not favor a second husband who comes into court 
 under the first husband's will to ask that a defective execution of a power 
 be aided. 
 
 Priority— Purchase From Wife— Husband's Creditors.— Lyon's Ap„ 
 
 1877, 4 W. N. C. 349. A bona fide purchaser or mortgagee from a wife has an 
 equity superior to that of the creditors of the husband, in fraud of whom 
 the husband has conveyed to his wife. 
 
 Purchaser- Husband as — Secret Trusts. — McKee •</. Jones, 1847, 6 
 Barr, 425. A husband is not such a purchaser that upon marriage he takes 
 the lands of the wife clear of secret trusts. 
 
 Settlement— Equity to.— Miller's Est., 1826, 1 Ash. 323. Our courts 
 ' have no power to compel a husband or his creditors who are reaching after 
 the wife's property to make a settlement upon her. 
 
 lb.— lb.— Yohe V. Barnet, 1808, 1 Bin. 358. It is to be regretted, but is 
 nevertheless the fact, that our courts have no power to insist on a provision 
 for the wife when the husband reduces her choses in action to possession. 
 
 Title— Notice.— Earnest V. Cuthbertson, 1875, 6 W. N. C. 199. The re- 
 cord of a title in a husband does not bind one with notice of any equities in 
 the wife. 
 
 II. Feme Sole Trader. 
 
 Agreement Touching Land — Specific Performance.— Ewing's Ap., 
 1882, 15 Lan. B. 25, S. C. 12 Lnz. L. Reg. 47, .30 Pitts. L. J. 245, 1 Del. Co. 
 Rep. 602. Equity will specifically enforce against a feme sole trader an 
 
HUSBAND AND WIPE. 241 
 
 agreement made by her touching her land, which is not signed by her hus- 
 band nor separately acknowledged by herself. 
 
 Business— Husband Engaged With Wife in— Estoppel.— Young ?>. 
 Young, C. P. 1884, 15 W. N. C. 416. A husband who has been engaged with 
 his wife in business under the name of the latter, she being a fane sole trader, 
 is estopped from denying that she is the real owner of the business. 
 
 Mortgage. — Foreman v. Hosier, 1880, 13 N. 418. A woman who had 
 been deserted by her husband and declared a feme sole trader, mortgaged her 
 property as the wife of another man with whom she was living and he 
 joined in the mortgage. Held that as she had power to mortgage she was 
 bound by this instrument. 
 
 III. Ante-Piuptial Settlements. 
 
 Administration — Wife's Bight of. — Seiber's Ap., 1881, 1 Penny. 191. 
 An ante nuptial settlement by which for a certain consideration, a woman 
 relinquishes all other claim to her prospective husband's property, does not 
 conclude her right to administer. 
 
 After-Acquired Property.— Eahe v. Real Estate Bank, 1880, 15 N. 128. 
 An ante-nuptial agreement will not be construed to embrace after-acquired 
 property, unless it contain express reference to such property within its pro- 
 visions. 
 
 Burden of Proof.— Shea's Ap., 1888, 6 Cram. 303. Where in a pro- 
 ceeding by a widow for an assignment of dower, an ante-nuptial contract by 
 which an interest in the estate of her future husband was relinquished, is 
 set up in defence, the burden of proof is on the defendant to show that no 
 advantage was taken of the relation of confidence existing between the 
 parties. 
 
 Conveyance — Revocation. — Eussell's Ap., 1874, 25 S. 269. A woman 
 in contemplation of marriage made a conveyance of her property in 
 trust, in which there was no power of revocation. She survived her 
 husband and desired to make other disposition of her property than 
 that provided for in the trust. Held, that as in the settlement the set- 
 tlor had evidently not foreseen the present contingency (namely, that she 
 should survive her husband without issue) the mistake was one of fact and 
 equity would seize upon it to re-in vest her with the right to her property. 
 
 Fraud.— Smith's Est., O. C. 1886, 18 "W. JST. C. 140. The fact that an 
 ante-nuptial settlement is claimed by a husband and found with his papers 
 after his death, is not sufficient evidence of fraud as to set it aside for his 
 widow. 
 
 lb. — Belt V. Ferguson, 1859, 3 Gr. 289. A deed of trust for her separate 
 use made by a woman about to be married, is a iraud on her intended hus- 
 band. 
 
 Intention.— Madeira's Ap., 1886, 17 W. N. C. 202. Where an ante- 
 nuptial contract has not been properly executed owing to delicacy on the 
 part of the intended wife and the intention is clear, equity will regard the 
 intention as executed. 
 
 Parol — Chattels Reserved. — Gackenbach v. Biouse, 1842, 4 W. & 8. 
 546. A parol ante-nuptial contract reserving to the wife her chattels is bind- 
 ing. ' 
 
 lb.— Hunt's Ap., 1882, 14 Lan. B. 87, S. C. 3 York L. E. 129. An oral 
 ante-nuptial contract must be established by clear and convincing proof ; 
 a slight preponderance of testimony is not sufficient. 
 
 Policy of Insurance.— Madeira's Est., O. C. 1884, 15 W. N. C. 318. A 
 
 16 — EQUITY. 
 
242 ItUSBAND AND WIFE. 
 
 policy of insurance taken out by one for his intended wife but not assigned 
 to her, was held valid as an ante-nuptial settlement. 
 
 Power to Dispose of Real Estate.— AVhite v. Hart, 1793, 1 Y. 221. The 
 courts will enforce the provisions of an ante-nuptial settlement giving power . 
 to the wife to dispose of her real estate by will. 
 
 Release by Wife— Exemption.— Tiernan v. Binns, 1879, 11 N. 248. A 
 clause is an ante-nuptial contract whereby" the woman relinquirhes all in- 
 terest of any kind whatever that she might have in the estate of her intended 
 husband, debars her irom claiming the three hundred dollars allowed by law. 
 
 Sole and Separate Use — Contemplation of Marriage. — Ash v. Bowen, 
 1873, 1 Fost. 407, S. C. 5 Leg. Gaz. 219, 30 Leg. Int. 416, 10 Phila. 96. A 
 settlement by a woman for her own separate use followed by a marriage 
 within a year, is conclusive proof that the settlement was made in contem- 
 plation of marriage. 
 
 When Sustained.— Smith's Est., O. C. 1886, 43 Leg. Int. 99. In the ab- 
 sence of all evidence of fraud or imposition, an ante-nuptial settlement 
 which expresses that it is made with full knowledge of the facts will not be 
 set aside, although its provisions for the wife appear disproportionate to the 
 estate of the husband. 
 
 lb. — Ludwig's Ap., 1882, 5 Out. 535. An ante-nuptial settlement giving 
 the wife a comfortable living during widowhood and a decent Christian 
 burial, sustained in the absence of fraud and concealment. 
 
 Wife a Minor. — Whichcote v. Lyle, 1857, 4 C. 73. An ante-nuptial set- 
 tlement is binding upon the husband both as to real and personal estate, 
 though the wife at that time was a minor. 
 
 Will as an. — Lants' Ap., 1880, 14 N. 279. A will made by a woman jnst 
 before marriage under an agreement with her intended husband, though 
 revoked in law by the marriage, will be enforced in equity as an ante- 
 nuptial contract, which is binding on the husband by the principle of estoppel 
 if not otherwise. 
 
 IV. Post-:Xuptial Settlements. 
 
 Attempt to Break.— Simpson v. Breokenridge, 1858, 8 C. 287. Equity 
 will not permit a husband who has made a settlement for his vrife, after- 
 wards to break it down. 
 
 Consideration.— Duffy v. Ins. Co., 1844, 8 W. & S. 413. A post-nuptial 
 contract between husband and wife will be carried into eifect in equity, and 
 cannot be attacked by creditors unless made without consideration. Where 
 the subject matter of the contract was the land of the wife and under the 
 settlement the creditors of the husband got more than his life estate was 
 worth, it was held that there was sufficient consideration. 
 I lb. — Burkholder's Ap., 1884, 9 Out. 31. A post-nuptial contract made to 
 isettle differences which had caused a separation between the husband and 
 wife is founded on sufficient consideration and will be enforced. 
 
 Estoppel — Title — Recording — Creditors. — Feig v. Meyers, 1882, 6 Out. 
 10. A wife is not estopped from setting up her title against her husband's 
 creditors by not recording it, although there were' other things which would 
 lead one to think that^he husband was owner. 
 
 Solvency of Husband. — Larkin o. McMullin, 1865, 13 "Wr. 29. A posi^ 
 nuptial settlement whether made directly or by the intervention of a trustee 
 is valid if at the time the husband be solvent, and whether it be fraudulent 
 when made just before embarking in some hazardous business is for the jury 
 to determine. 
 
HUSBAND AND WIFB. 243 
 
 Validity of.— Hammett V. Hammett, 1876, 3 "W. N. C. 189. A post- 
 nuptial settlement made by a wife in favor of her husband, will be avoided 
 in equity upon the death of the latter unless supported by some equitable 
 considerations or statutory provisions. 
 
 When Sustained. — Townsend v. Maynard, 1R63, 9 "Wr. 198. A reason- 
 able settlement by a solvent husband on his wife will be sustained. 
 
 lb. — Campbell's Ap., 1876, 30 S. 298. For a post-nuptial settlement to be 
 binding, it must be unexceptionable on equitable grounds, and the case 
 must contain such elements of equitable estoppel as would result in an in- 
 jury to some interested party. 
 
 lb. — Coates V. Gerlach, 1862, 8 Wr. 43. Equity will sustain contracts (in 
 this case a deed) between husband and wife, making a reasonable provision 
 for the latter, if not in fraud of creditors. 
 
 "V. I>o-wer. 
 
 Administrator's Right to Account of Rents and Profits.— Paul ». 
 Paul, I860,- 12 C. 270. The administrator of a widow is entitled in equity 
 to an account of the rents and profits of her dower which she had demanded, 
 though the same had never been assigned to her. 
 
 Compromise — Ratification. — Simpson's Ap., 1848, 8 Barr., 199. Where 
 a widow has ratified a family compromise by accepting a payment of her 
 share thereunder she is estopped from claiming her dower. 
 
 Election. — Leinaweaver v. Stoever, 1841, 1 W. & S. 160. The acceptance 
 by a widow of her share of her deceased husband's estate, is not an election 
 sucli as will bar her from recovering dower out of land aliened by her hus- 
 band in his lifetime without her joinder. 
 
 Jurisdiction. — Brown's Ap., 1877, 3 N. 457. Act March 17, ls45, con- 
 fers upon the common pleas equity jurisdiction in all cases of dower and 
 partition. 
 
 lb.— MnrriU's Ap., 1885, 42 Leg. Int. 455, S. C. 16 W. N. C. 491. The 
 common pleas has jurisdiction of a bill asking for an assignment of dower. 
 
 lb.— Robins v. Green, D. C. 1874, 1 W. N. C. 143. Since Act April 20, 
 1869, the common pleas has not jurisdiction of a bill to charge dower. 
 
 lb. — Estoppel. — Kelso's Ap., 1882, 6 Out. 7. A widow may bring a bill 
 in equity in the common pleas against a purchaser at the sale of an assignee 
 in bankruptcy of her husband, to enforce her dower, and she is not estopped 
 by her representations while covert to the" intending purchaser that she will 
 not claim her dower. 
 
 Parties.— Drum v. Wartman, C. P. 1865, 22 Leg. Int. 237, S. C. 6 Phila. 
 45. In a bill for dower it is error to join the executor with the heir as a 
 co-defendant. 
 
 Stipulation not to Claim— Estoppel.— Heller's Ap., 1887, 1 Crura. 534. 
 Where the children of an intestate decedent amicably partitioned the lands 
 of the latter, agreeing to pay his widow a certain sum annually, providing 
 she would not claim her common law dower, and expressly stipulating that 
 in event of her claiming dower the payments should cease, and the widow 
 died without claiming her dower, it was Held that her administrator might 
 file a bill in equity to recover her dower from a purchaser of said lands at 
 sheriff's sale, since neither the agreement itself nor the widow's declaraticn 
 to the defendant before he purchased the land that she wanted nothing, were 
 sufficient to create an estoppel. 
 
244 HUSBAND AND WIFE. 
 
 VI. Sole and Separate Use. 
 
 A. Essentials to Validity of. 
 
 Acquisition of— Intervention of Trustees.— Vance v. Nagle, 1871, 20 
 S. 176. A wife with her husband's consent can, in equity, acquire separate 
 property without the intervention of trustees. 
 
 Contemplation of Marriage.— Harris' Est., O. C. 1859, 16 Leg. Int. 13, 
 S. C. 3 Phila. 326. A trust for the separate use of women neither married 
 nor in contemplation of marriage falls. 
 
 lb.— Lewis V. Eddy, C. P. 1880, 8 W. N. C. 355. Equity will decree that 
 a trustee in a trust, which was created for the sole and separate use of a 
 woman, neither married nor contemplating marriage, shall make her a deed 
 free from all trusts. 
 
 lb.— Wells V. McCall, 1870, 14 S. 207. A trust for a feme sole in imme- 
 diate contemplation of marriage is active, and valid without a recital of the 
 intended marriage. Such trust ceases upon the death of her husband and 
 does not revive upon a second marriage. 
 
 lb.— Beran's Est., O. C. 1882, 14 Lan. B. 147. A trust for the sole and 
 separate use of an infant aged ten years will be considered executed. 
 
 lb. — The expression "immediate contemplation of marriage " means that 
 the marriage must be in immediate view and with a particular person. 
 
 lb. — McBride v. Smythe, 1867, 4 S. 245. A trust for the sole and separate 
 use of a woman can only be created where she is either married or in con- 
 templation of marriage. 
 
 lb. — Whichcote v. Lyle, 1857, 4 C. 73. A trust will not he sustained for 
 the separate use of a woman neither married nor contemplating marriage. 
 
 lb.— Neale's Ap., 1883, 8 Out. 214. Even since Act June 4, 1879, (P. L. 
 88,) declaring that every will shall speak from the death of the testator, 
 directions for the creation of a separate use to hold good must be made for 
 one married or in contemplation of marriage at the time the will was exe- 
 cuted, and the mere fact that the beneficiary is married at the date of the 
 testator's death will not help the case. 
 
 lb.— Pickering v. Coates, C. P. 1873, 30 Leg. Int. 225, B. C. 10 Phila. 65. 
 Where the onlj' intention of a testator who makes a trust for his daughters 
 seems to be to jirotect it from their husbands, the trust will fall unless the 
 daughters be covert or in contemplation of marriage. 
 
 lb. — Ogden's Ap., 1872, 20 S. 501. An active trust for a cestui que trust 
 sui juris to accomplish a lawful object will be sustained; but where the only 
 object disclosed is to protect the. estate from the control of a husband, there 
 being no marriage contemplated, the trust will fall. 
 
 lb. — Snyder's Ap., 1880, 11 N. 504. A separate use can be created only 
 for a woman married or in contemplation of marriage at the time the trast 
 is created. Therefore a direction in a will that upon the youngest daughter 
 coming of age, the property shall be divided and settled for the separate use 
 of his several daughters, will not operate to create a separate use for any un- 
 married at the time ot the testator's death whatever their conditions may be 
 when the provisions of the will are ready to take effect. 
 
 Intention. — Morrison v. Dollar Savings Bank, 1879, 36 Leg. Int. 215. Any 
 words are sufficient to support a trust for sole and separate use which ex- 
 press the intention to vest such an estate; but the words "not to be liable 
 for the debts of her said husband " Held without more not to support such a 
 trust. 
 
 Invalid— Trust Supported for Next Generation. — Delbert's Ap. No. 1, 
 1877, 2 N. 462. Where the intent of a testator is to create a separate use 
 for his daughter who is unmarried for life, and also to preserve the estate for 
 
HUSBAND AND WIFE. 245 
 
 the next generation, the trust will be sustained for the latter purpose, al- 
 though the provisions for the spearate use are invalid. 
 
 Minors.— Hughes' Est., O. C. 1879, 7 W. N. C. 539. A trust in favor of 
 minors and upon the youngest reaching twenty-one years of age, to be set- 
 tled in such way that the share of each shall be for his or her sole and sep- 
 arate use is valid. 
 
 Mortgage— Husband's Interest.— Cochran v. O'Hem, 1842, 4 W. & S. 
 95. A mortgage by husband and wite of property devised to a wife for her 
 sole and separate use and then to her children, with a life estate given to the 
 husband in case he survived his wife, is good only as to the husband's in- 
 terest. 
 
 Trust— Passive.— Rea v. Girard Trust Co., C. P. 1885, 42 Leg. Int. 152, 
 S. C. 16 W. N. C. 48. A trust for a feme sole to permit her to take, receive 
 and enjoy the rents and income for her sole and separate use, so that the 
 same shall not be in the power or liable for the debts of any future husband, 
 with a limitation to her appointees or right heirs is a passive trust. 
 
 Trustee not Named.— Gamble's Est., O. C. 1878, 36 Leg. Int. 5, S. C. 13 
 Phila. 198. Where an estate is given to a married woman for her sole and 
 separate use, a trust is created although no trustee be named. 
 
 lb. — Vamer's Ap., 1875; 30 S. 140. A devise to a married daughter for 
 her sole and separate use without control of her husband no trustee being 
 named, is a trust which equity will support by appointing a trustee. 
 
 Sufficiency of Directions to Create. — Renge v. Killner, 1882, 3 Out. 
 460. A gitt in a will to a married daughter with a direction that it should 
 not be controlled by her husband and that he should not inherit unless it 
 there should be no child living, does not create a separate use. 
 
 lb. — Springer v. Arundel, 1870, 14 S. 218. A trust to a feme sole ior ter 
 separate use, the trustees to collect the income and pay it over to the cestui 
 que trust without control of any husband she might take, etc., is active and 
 vrill be supported, especially as the cestui que trust was married a few days 
 after the will. 
 
 lb.— Residuary Estate.— Bond's Estate, 1889, 46 Leg. Int. 139. Where 
 u testatrix directs her executor to pay a share of the residuary estate to a 
 married woman for her sole and separate use, a trust is created which is valid 
 during the continuance of the coverature. 
 
 Words Sufficient.— Snyder v. Snyder, 1849, 10 Barr, 423. The words 
 " for her own proper use," in a conveyance to a woman give her a separate 
 use. 
 
 lb.— Eastwick's Est., O. C. 1880, 8 W. N. C. 503. S. C. 37 Leg. Int. 83, 13 
 Phila. 350. The words " for the sole use, etc.," are sufficient to raise a sole 
 and separate use. 
 
 lb. — Skinner v. Bradford, 1835, 1 M, 52. A devise to a daughter so that 
 she shall receive the interest, and appointing a trustee does not create a 
 trust for her sole and separate use but goes to her husband. 
 
 B. Power of Disposition, 
 
 Act of 1848.— Twining's Ap., 1881, 1 Out. 36. Act of 1848, conferred 
 upon married women no powers over their separate uses which they did not 
 before possess. 
 
 Conveyance.— Wright v. Brown, 1863, 8 Wr. 224. Real estate held by a 
 married woman for her sole and separate use, cannot be conveyed by her un- 
 less that power is expressly given her by the instrument creating the estate. 
 The Act of 1848 has not changed the rule in this respect. 
 
 lb.— Husband Joining— Ejectment.— Heath v. Knapp, 1846, 4 Barr, 228. 
 
246 HUSBAND AND WIFE. 
 
 A devise to '' my daughter for her sole and separate use," and a subsequent 
 conveyance by the daughter and her husband, vest the legal title in the 
 grantee and no one beside the daughter can set up her equitable against him 
 in ejectment. 
 
 lb.— No Restriction on Sale.— Haines v. Ellis, 1855, 12 H. 253. A con- 
 veyance directly to a married woman, her heirs and assigns for her own sep- 
 arate use imposes no restriction on her right to sell. 
 
 Interest of Beneficiary. — Schafer v. Eneu, 1867, 4 S. 304. A trust for 
 the sole and separate use of a married womafi for life, after her death the 
 trustees to convey to her children, gives her no interest which she can de- 
 vise or which descends to her heirs. 
 
 Instrument— Provisions in Govern. — Thomas v. Folwell, 1836, 2 Wh. 
 11. A feme covert has only those powers over her separate estate which are 
 given her by the deed. 
 
 lb. — Withington's Ap., 1859, 8 C. 419. ■ The power of a feme covert over 
 an estate settled to her separate use are only those granted in the instru- 
 ment itself, and are not enlarged by an annexed covenant by the intended 
 husband not to interfere. 
 
 lb.— Penna. Co. v. Foster, 1860, 11 C. 134. Act ipril 11, 1848, Sec. 6, does 
 not alter the rule that the only powers of a feme covert over an estate set- 
 tled to her separate use are those given in the grant. 
 
 lb. — ^Mistake in Deed. — Rogers v. Sniith, 1846, 4 Barr, 93. A married 
 woman under a trust for her sole and separate use has only the powers ex- 
 pressly granted, and equity will not reform the deed on the ground of mis- 
 take so as to increase her control except on the most overwhelming proof. 
 
 Mortgage for Husband's Debts. — Black v. Galway, 1854, 12 H. 18. A 
 
 wife may sell or mortgage her separate property for her husband's debts, as 
 before the Act of 1848, and she may add a covenant that the scire facias 
 shall issue immediately on default of payment. 
 
 Mortgage — Fraudulent Acknowledgment. — Michener v. Cavender, 
 1861, 2 Wr. 334. A mortgage of a wife's separate estate, regular on its face, 
 but the acknowledgment of which was fraudulent, she not having appeared, 
 is invalid though the mortgagee have no notice of the fraud. 
 
 lb.— In Excess of Power.— Maurer's Ap., 1878, 5 N. 380. Where a 
 deed creating a separate use for a married woman gives her a general power 
 to sell and a power to mortgage to a certain extent, a mortgage to a greater 
 extent is invalid hut will be sujiported pro tanto in equity to the amount of 
 benefit that the money received for it did to her estate. 
 
 Purchase Money Partly Husband's— Ejectment— Trust.— Lichtyu, 
 Hager, 1859, 1 H. 564. Where money left to a married woman, with direc- 
 tions that it be invested in property for her sole and separate use. is invested 
 in property of greater value than the amount of the trust fund, her husband 
 supplying the balance of the purchase money, the purchaser of the hus- 
 band's title therein, is not, upon bringing ejectment, entitled to a verdict 
 /nr the land subject to the payment of the amount paid by the wife, but the 
 verdict will be for him, subject to be defeated within a certain time, by the 
 li:ivment to him of the amount of purchase money advanced by the hus- 
 band. 
 
 Title— Marketable — Conveyance of Trust Estate.— Wetherill «. 
 Mucke, 1850, Bright. 135. A feme covert who has power to convey her sep- 
 arate estate for the purpose of investing the proceeds in more beneficial se- 
 curity, cannot convey it to her sou for one dollar and other valuable consid- 
 eration; at least the son has not a marketable title. 
 
 Trust — Active. — Dunn's Ap., 1877. 4 N. 94. A married woman and her 
 husband executed a deed of her-separate property to trustees for the uses (1) 
 ii> pay the income to her or her appointee during her life, with the provision 
 1 hat it should not be liable for her debts or to the control of her present or 
 any future husband; (2) upon her death to pay the principal as she should 
 
HUSBAND AND WIFE. 347 
 
 direct. Held that the trust was active apart from the clause excluding the 
 husband's control, and that it did not fall upon her being divorced. 
 
 Trustee— Deed to.— McMullin v. Beatty, 1867, 6 S. 389. A deed to a 
 trustee for the sole and separate use of A. for life and then to her heirs their 
 heirs and assigns, gives A. no power to dispose of her equitable estate by 
 deed. 
 
 lb.— Transferring Mortgage to Secure Husband's Debts.— Hatz's Ap. , 
 1861, 4 Wr. 209. A transfer of a mortgage by the trustee of a married 
 woman without her consent, as security for her husband's debts, is invalid. 
 
 Specific Performance — I^ectment — Acknowledgment. — Eumfelt v. 
 Clemens, 1864, 10 Wr. 455. . Articles of agreement for the sale of the sepa- 
 rate estate of a married woman are void unless separately acknowledged by 
 her, and although possession has been taken thereunder and the purchase 
 money paid she can recover in ejectment. 
 
 C. LiiaMUUes of. 
 
 Executrix — Devastavit Committed by Husband.— Calhoun's Ap., 
 1861, 3 Wr. 218. An executrix is liable in her separate estate for a devas- 
 tavit committed by her husband who assumed the management of the es- 
 tate, but this being an equitable principle is only applied when the equities 
 of the case demand it. 
 
 Husband's Debts — Chattels Purchased With Wife's Funds. — Yardley 
 V. Eaub, 1839, 5 Whart. 117. Furniture in atavern belonging to a husband 
 purchased with the income of a " separate use " trust for the >viiie, cannot be 
 taken for the husband's debts. 
 
 Injunction — Execution. — Allen v. Gordon, 1869, 3 Brews. 543, S. C. 26 
 Leg. Int. 189, 7 Phila. 280. A creditor of a husband will not be restrained 
 from selling the wife's property where her separate estate is not clearly dis- 
 closed in the pleading. 
 
 lb.— lb.— Hoffner v. Girard Nat. Bank, C. P. Delaware, 1881, 1 Del. Co. 
 E. 182, 187. Equity will not ordinarilly restrain one from levying on and 
 selling an imaginary interest of his debtor in any property; but where the 
 property is the wife's and her title is not in any way disputed an inj unction 
 may be granted. 
 
 lb.— lb.— Bell V. Savage, C. P. Berks, 1862, 1 Woodw. Dee. 30. Equity 
 vrill only restrain the sale of property claimed by the wife, for the debts of 
 her husband where she makes out a clear case. 
 
 lb.— lb.— Allen V. Benners, G. P. 1873, 30 Leg. Int. 76, S. C. 10 Phila. 10. 
 The property of a married woman will be protected from sale as the property 
 of her husband where her title is clear and undoubted. 
 
 lb.— lb.— Smith V. Schmidt, C. P. 1870, 1 Camp. 58, S. C, 2 Leg. Gaz. 
 124. Unless a wife makes out a very clear case her property will not be pro- 
 tected by injunction from a sale under an execution against her husband. 
 
 lb.— lb.— Simpson v. Bates, C. P. 1873, 5 Leg. Gaz. 219, S. C. 30 Leg. Int. 
 226, 10 Phila. 66. Equity will interfere to protect a wife's property from 
 levy and sale by her husband's creditors, only where it appears that she has 
 not been guilty of collusion with her husband in holding his creditors at 
 bay, where ber title is undisputed, and where the sale would injure it. 
 
 ib.— lb.— Spangler v. Wolf, C. P. York, 1880, 1 York L. E. 89. An in- 
 junction will be granted to protect the personal property of a married woman 
 from sale by her husband's creditors as his property. 
 
 Ib.— Ib.— Dyer r. People's Bank, D. C. 1874, 31 Leg. Int. 28, S. C. 9 
 Phila. 159. A married woman's property will not be protected from sale on 
 an execution against her husband where the answer of the creditor denies 
 her title. 
 
248 HUSBAND AND WIFE. 
 
 Mortgage— Defence— Misrepresentations.— Cridge v. Hare, 1881, 2 
 Out. 561. It is a good defence to a mortgage given by a married woman on 
 her separate estate that she was induced to give it by false representations, 
 whether or not the mortgagee had anything to do with them. 
 
 Tort— Judgment Against Both.— Pullen v. Eainhard, 1836, 1 Wb. 514. 
 Property held for the sole and separate use of a married woman, cannot be 
 taken in execution under a judgment recovered against herself and her hus- 
 band in an action of tort. 
 
 D. Terfnlnation of. 
 
 Discoverture. — Megargee v. Naglee, 1870, 14 S. 216. A trust for the Bole 
 and separate use of a married woman becomes executed on the death of 
 lier husband. 
 
 lb. — Hepburn's Ap., 1870, 18 Pitts. L. J. 7.5. A separate use ends with 
 coverture. 
 
 lb.— Fox V. Scott, C. P. 1856, 13 Leg. Int. 268, S. C. 2 Phila. 151. Where 
 one enjoying the benefit of a trust for her sole and separate use becomes dis- 
 covert, a conveyance of the legal title to her will be decreed. 
 
 lb. — Hamersley o. Smith, 1838, 4 Whart. 126. A trust for the sole and 
 separate use of a married woman ceases upon discoverture, and is not re- 
 vived on a second marriage. 
 
 lb. — Clause for Continuance After, Void. — Harrison v. Brolaskey, 1853, 
 8 H. 299. A clause in a declaration of trust for a fe^ne covert providing for 
 the continuance of the trust after her husband's death is a nullity, and she 
 is entitled to the principal upon the happening of that event. 
 
 lb.— Second Marriage.— Rea «. Cassell, C. P. 1879, 36 Leg. Int. 157, S. 
 C. 13 Phila. 159. A trust for the separate use of a married woman falls upon 
 the death of her husband and does not revive on a second marriage. 
 
 Divorce. — Koeuig's Ap., 1868, 7 S. 352. Where a trust created by will 
 appears to be for a special purpose, e. g. to protect it from the husband of 
 the cestui que trvst, it will be determined whenever the trust is no longer 
 necessary to secure the special object, whatever be the estate limited to fiie 
 trustees, or the nominal duration of the trust, and although there be still 
 nominal active duties for the trustee. Therefore a sole and separate use for 
 a daughter to last until her husband's death will be terminated by divorce. 
 
 Life Estate.— Moss' Est., O. C. 1882, 11 W. N. C. 306. Where'an estate 
 is given to trustees "to receive and pay over " the income for the separate 
 use of a married woman for life with remainder to her heirs in fee simple, 
 the trust is valid for life though her coverture sooner determine. 
 
 E. Curtesy. 
 
 Husband Entitled to. — Ege v. Medlar, 1877, 1 N. 86. A husband is 
 entitled to curtesy in an estate settled to the sole and separate use of his 
 wife unless a contrary intention clearly appears in the instrument creating 
 the trust. 
 
 lb. — Rank v. Rank, 1888, 5 Crum. 191. A trust for the separate use of a 
 daughter, without more, does not deprive the husband of his right as tenant 
 by the curtesy, or as distributee in his deceased wife's property. Much less 
 will he be so deprived where the estate granted is a fee " exclusively of her 
 husband." 
 
 Husband not Entitled to.— Eigler v. Cloud, 1850, 2 H. 361. There is 
 no curtesy in a separate use trust. 
 
HtJSBAND AND WIFE. 249 
 
 lb.— Stokes V. McKibbin, 1850, 1 H. 237. A husband is not entitled to 
 his curtesy in a estate held for the sole and separate use of his wife. 
 
 lb.— Cochran v. O'Hern, 1842, 4 W. & S. 95. There is no curtesy in a 
 trnst for the sole and separate use of a wife. 
 
 Husband as Trustee— Account.— Fidelity Trust Co. v. Morris, c. P. 
 1884, 14 W. N. C. 225, S. C. 41 Leg. Int. 74. A bill in equity for an account 
 will lie against one who is a trustee of reality for his wife for life, and then 
 to her children, who has himself taken the profits after his wife's death, 
 supposing that he was entitled as tenant by the curtesv. 
 
 Mortgage.— Sheppen's Ap., 1876, 30 S. 391. A wife's separate estate was 
 mortgaged and the husband received and used the money. His wife died 
 and the property was sold under the mortgage, the claimants for the surplus 
 were the huisband's creditors and the wife's heirs. ffe!d that the creditors 
 could only claim through the husband, and that as he had already received 
 what was equal to his curtesy, the fund should go to the heirs of the wife. 
 
 Second Marriage. — Freyvogle v. Hughes, 1867, 6 S. 228. A separate 
 use trust is not revived on a second marriage. The second husband has 
 thCTefore his curtesy. 
 
 VII* Con-veyances, Transfers, Purchases and Judg- 
 ments Bet-ween. 
 
 Accident Insurance. — Williams' Ap., 1884, 41 Leg. Int. 386, S. C. 15 
 W. N. G. 89. Where a husband purchased an accident insurance and handed 
 the ticket over to his wife saying, if he died she would be that much better 
 off, it was Jield not to constitute a good assignment as against creditors. 
 
 Assignment — lb.— Trough's Est., 1874, 25 S. 115. A husband executed 
 an assignment of his policy of insurance to one in trust for his wife, but 
 never delivered it. Seld that it was good neither as an assignment nor as a 
 declaration of trust. 
 
 Cancellation— Creditor's Liens — Collusion. — Eittispaugh v. Lewis, 
 1883, 7 Out. 1. A wife filed a bill against her husband and his grantor 
 praying a cancellation of the deed, and a decree vesting the property in her, 
 which was accordingly decreed. Creditors of the husband, whose liens at- 
 tached while he held the title, and who were not parties to the bill, were 
 not concluded by the decree in a contest with the creditors and grantee of 
 the wife. 
 
 Compelling Transfer by Husband — Injunction — Decree. — Wheeloek 
 V. Wheeloek, C. P. Wyoming, 1874, 1 C. P. Rep. 87. In equitable proceed- 
 ings by a wife to compel her husband to transfer to her real estate, the court 
 will enjoin the tenant from paying rent to the husband, but will not make 
 a preliminary decree as to the possession. 
 
 Confession of Judgment by Husband. — Rose v. Latshaw, 1879, 9 N. 
 938. A husband may confess a valid judgment to his wife without the in- 
 tervention of trustees. 
 
 Conveyance by Wife— Estoppel.— Glidden v. Strupler, 1866, 2 S. 400. 
 A married woman can convey her property only in the statutory way and 
 equity follows the law on this point and will not give effect to such convey- 
 ance under any of its principles, e. g. estoppel. 
 
 lb.— From Husband to Wife— Fraud— Mortgage.— Williams v. Davis, 
 1871, 19 S. 21. A mortgage on property conveyed by a husband to his wife 
 is not such a debt of the husband as makes the conveyance fraudulent as 
 to creditors. 
 
 lb.— lb.— lb.— Littlefield's Ap., 1884, 4 Penny. 372. Where a man 
 conveyed property to his wife, and at the time was possessed of five times 
 
250 HUSBAND AND WIFE. 
 
 the amount of his liabilities in addition to the transfer, the creditors of the 
 husband cannot reach the property as no evidence of fraud appears. 
 
 lb.— lb.— Lien.— Nippes' Ap., 1847, 25 S. 473. A lieu on the land con- 
 veyed is not such a debt as avoids a conveyance by a husband to his wife. 
 
 lb.— lb.— Trust— Mortgage.— Warden v. Lyons, 1888, 3 Crura. 396. A 
 husband deeded property to a third party in trust for the veife of the grantor 
 and for her sole and separate use, stipulating that the said party should con- 
 vey to the vfife the within described premises by a sufficient deed in fee 
 simple, which was done. Subsequently husband and wife joined in amort- 
 gage thereof. Held that alter the conveyance to her from the third party, 
 the wife was seized of an absolute estate in fee simple, freed from the trust 
 and unimpressed with the sole and separate use and the premises were 
 bound by the mortgage. 
 
 Deed From Husband to Wife.— Peuna. Salt Co. v. Neel, 1866, 4 S. 9. A 
 deed from a man and wife directly to the wile and for her own use will be 
 sustained in Pennsylvania on equitable principles even in a common law 
 action. 
 
 lb. — Consideration. — Stickney v. Borman, 1845, 2 Barr, 67. Equity vrill 
 not support a deed from husband to wife, where there is no consideration 
 and the husband at the time was largely indebted. 
 
 lb.— lb.— Bedell's Ap., 1878, 6 N. 510. Equity will support a deed from 
 a husband to his wife where the consideration is clearly established. 
 
 lb.— Fraud Upon Creditors.— Thompson v. Allen, 1883, 13 W. N. C. 
 253, S. C. 40 Leg. Int. 261. Equity will sustain a deed directly from husband 
 to wife if not made in fraud of creditors. 
 
 Gift. — Conley v. Bentley, 1878, 6 N. 40. Equity will sustain a gift from 
 a husband to his wife if it be found by the jury that there was no fraudu- 
 lent intent against creditors. 
 
 Husband Purchases Mortgage — Cannot Claim Interest.— Pennock v. 
 Imbrie. D. C. 1858, 15 Leg. Int. 140, S. C. 3 Phila. 140. A man who being 
 in possession of his wife's land buys in a mortgage thereon cannot claim in- 
 terest on the same, because a tenant for life in possession is bound to keep 
 down encumbrances. 
 
 Judgment Given by Husband to Wife.— Shade v. Shade, 1860, 5 Clark, 
 493, S. C. 8 Am. L. Reg. 754. In Pennsylvania a judgment given by a hus- 
 band to his wife is supported on equitable principles. 
 
 Land of Debtor's Wife — Creditor's Funds Used to Improve.— Mc- 
 
 Crachen v. McCrachen, C. P. Luzerne, 1878, 8 Luz. Rep. 125. Equity has 
 no power to grant a decree which will give to one a part interest in the land 
 of his debtor's wife, said land having been improved with funds borrowed 
 by the husband from the complainant. 
 
 Mortgage. — Eillinger v. Reidenhauer, 1821, 6 S. & E. 53. A mortgage 
 given by a husband in fraud of his wife is void as to her and as to creditors, 
 but not as to the husband. 
 
 lb. — Defence. — Cridge -o. Hare, 1881, 2 Out. 561. It is a good defence to 
 a mortgage given by a married woman on her separate estate that she was 
 induced to give it by false representations, whether or not the mortgage had 
 anything to do with them. 
 
 Purchase by Husband for Wife— Resulting Trust.— Earnest's Ap.. 
 1884, 10 Out. 310, Eev'g. 13 W. N. C. 464. Where a husband pays for 
 property and has it conveyed to his wife, there is no presumption of a re- 
 sulting trust, and the one alleging it must prove it. 
 
 Relation Between. — Darlington's Ap., 1879, 5 N. 512. The relation of 
 husband and wife is a confidential one and wherever the husband claims a 
 benefit arising from any dealings with his wife he must show affirmatively 
 that he acted in good faith, took no advantage of his position and that the 
 dealings were fair and equitable. 
 
HUSBAND AND WIFE^ILLUSOEY APPOINTMENTS. 251 
 
 Trust of Wife's Choses in Action.— Siter v. Jordon, 1834, 4 E. 468. An 
 assignment by husband of his wife's choses in action to a trustee for her use, 
 is such an act as equity will support as a reduction into possession so as to 
 defeat the claims of a second husband. 
 
 VIII. Articles of Separation. 
 
 r 
 
 Acting Upon. — Hutton v. Hutton, 1846, 3 Barr, 100. Deeds between 
 husband and wife for separation when acted on, will not be violated after- 
 wards by a court. Such contract is sustained in equity without the inter- 
 vention of trustees. 
 
 lb.— Bouslaugh V. Bouslaugh, 1828, 17 S. & E. 361. The provisions of a 
 deed of separation between husband and wife acted upon for nine years will 
 be enforced against creditors of the former. 
 
 Acquiring Separate Property.— McKennan v. Phillips, 1828, 6 Wh. 
 572. Although equity will not decree a separation between husband and 
 wife, yet where the parties have themselves carried it' into effect, equity will 
 hold that the wife can acquire separate property without the intervention of 
 trustees. 
 
 Creditors.— Agnew v. Frost, C. P. 1886, 43 Leg. Int. 128. Articles of 
 separation acted upon by the parties are valid against subsequent creditors. 
 
 Dower. — Dillinger's Appeal, 1860, 11 C. 357. An agreement contained 
 in articles of separation, that in consideration of the provision contained 
 therein for the wife she would not claim any dower at any time thereafter, 
 is binding on the wife in equity. 
 
 Specific Performance of.— Lehr v. Beaver, 1844, 8 W. & S. 102. An 
 agreement of separation between a husband and wife, giving to the latter 
 half the unpaid purchase money of lauds of the wife formerly sold by the 
 husband, will be enforced. 
 
 lb.— Trustee Refusing to Sign.— Smith v. Knowles, 1853, 2 Gr. 413. 
 Equity will not specifically enforce tripartite articles of separation signed by 
 the husband and wife, but which for a technical objection the trustee has re- 
 fused to sign. 
 
 Trustees — ^Intervention of. — Bowers v. Clark, D. C. 1855, 12 Leg. Int. 
 176, S. C. 1 Phlla. 561. The provisions of an agreement for separation be- 
 tween husband and wife will be enforced in Pennsylvania though made with- 
 out the intervention of a trustee. 
 
 When Valid.— Hitner's Ap., 1867, 4 S. 110. Deeds for separation of 
 husband and wife are valid and effectual both at law and in equity, pro- 
 vided their object be actual and immediate and not for a contingent or future 
 separation. 
 
 IGXORAIVCE. 
 
 See Mistake. 
 
 It,l,lTSOirY APPOINXMEIVX. 
 
 Doctrine of.— Graef v. DeTurk, 1863, 8 Wr. 527. The doctrine of illusory 
 appointments is not adopted in Pennsylvania. 
 
 Honest Exercise of Discretion.— Pulpress «. African M. E. Church, 
 1864, 12 Wr. 204. Where a discretion is given trustees to distribute the 
 fund among a certain class, a court of equity will not interfere as long as it 
 is honestly exercised, even though some of the class get nothing. 
 
252 IMPROVEMANTS^ — INJUNCTION. 
 
 imPROVEinENXS. 
 
 Conveyance in Good Faith.— Skiles' Ap., 1885, 16 W. N. C. 246. One 
 taking iu good faith a conveyance from an insolvent grantee, tie considera- 
 tion being natural love and affection, who makes improvements is entitled 
 to be reimbursed. 
 
 Set-oflf— Mesne Profits— Noble v. Biddle, 1876, 33 S. 430. In an action 
 for mesne profits the defendant may set off only those improvements that 
 are of advantage to the plaintiff. 
 
 lb. — lb. — Walker v. Humbert, 1867, 5 S. 407. Improvements made by 
 one co-tenant may be defalked in an action for mesne profits by the other. 
 
 IPIDEX. 
 
 See Notice, II, E. 
 
 INFANT. 
 
 See Trusts and Trustees, II, I. 
 
 INJUNCTION. 
 
 1. When Granted and When Eefused. 
 
 A. In General. 
 
 B. Corporation — See supra A ; infra P ; S. 
 
 C. Doubtful Eight. 
 
 D. Nuisance. 
 
 E. Trade Mark. 
 
 F. Public Works. 
 
 G. Public Acts and Officers. 
 H. Eail roads. 
 
 I. Highways — See supra J) ; H. 
 J. Taxation. 
 K. Trespass. 
 
 L. Continuing and Irreparable Injury. 
 M. Contracts in Restraint of Trade. 
 N. Property of Married Women. 
 O. Proceedings at Law. 
 P. Municipal Corporations. 
 Q. Partnership. 
 R. School Directors. 
 S. Unincorporated Associations. 
 T. Water Rights. 
 U. Waste. 
 V. Ancient Lights. 
 W. Party Wall. 
 X. Mandatory Injunction. 
 Y. Perpetual Injunction. 
 
INJUNCTION. 253 
 
 II. Peaotice. 
 
 A. In General. 
 
 B. Motion for Preliminary Injunction. 
 (a.) Generally. 
 
 (b.) Injunction Affidavits. 
 
 C. Motion to Dissolve. 
 (a.^ Generally. 
 (b.) Affldavite. 
 
 A. In General. 
 
 Account Pending.— New Jersey Coal Co. v. Barnes, C. P. Luzerne, 1876, 
 6 Luz. L. Reg. 43. A complainant in a bill for an account filed a petition 
 setting forth that the defendant was indebted to him and was about to sell a 
 certain tract of land in order to get his property beyond the jurisdiction of 
 the court, the answer denied the indebtedness, and it was undisputed that 
 the tract in question was not bound with any trust for the complainant; an 
 injunction was therefore refused. 
 
 Alley— Erection of Stable.— Oberly v. Hapgood. 1886, 3 Luz. Leg. Reg. 
 234. An injunction will not be granted to restrain the erection of a stable 
 upon an alley designated as such in the official map of the town, but which 
 had never been opened by the municipal authorities. 
 
 lb.— Disputed Title.— "Washbume's Ap., 1884, 41 Leg. Int. 410, S. C. 1.5 
 W. N. C. 101, 32 Pitts. L. J. 354. Equity will not enjoin the use of an 
 alley until the legal right has been determined at law. 
 
 Artificial Light— Act April 29, 1874— Parties.— Electric Co. v. Light, 
 Heat & Motor Co., 1886, 4 Kulp, 47. An injunction will not lie under Act 
 of April 29, 1874, to restTain individuals from furnishing artificial light, this 
 Act gives an exclusive right to companies chartered under it only as against 
 other companies. Foreign corporations not complying with statutory re- 
 quirements will be enjoined. 
 
 lb.— Electric Light Company. — Electric Co. v. Heat & Power Co., 1886, 
 4 C. P. Rep. 18. An injunction will not lie by a company claiming the exclu- 
 sive privilege of furnishing electricity to a certain city under Act of 29 April 
 1874, to restrain another corporation from furnishing electric light to the 
 same city. 
 
 lb.— lb.— Scranton E. L. Co. ;■. Scranton I. H. & P. Co., 1888, 7 Crum. 
 I.'jC An injunction will not lie by a light and heat company incorporated 
 with exclusive privileges respecting the lighting of a certain city, to restrain 
 an illuminating company from furnishing electric light to the same city, 
 where, by the terms of the complainant's charter, electric light is not speci- 
 fied. Every intendment will be. made against the granting of a monopoly. 
 
 lb. — Gas Company. — Waddington v. Allegheny Heating Co., 1888, 6 Pa. 
 Co. C. Rep. 96. An injunction will be granted against a natural gas Cdinpany 
 incorporated under the Act of May 29, 1885, restraining it from shutting off 
 the gas where parties have refused to pay excessive rates for gas, the com- 
 pany having secured a monopoly by terms made with competing companies. 
 
 lb.— lb.— Sewickley Borough v. Gas Company, 1888, 6 Pa. Co. C. Rep. 9!). 
 An injunction will lie upon a bill supported by affidavits, which allege that 
 a natural gas company incorporated under Act of May 29, 1885, contracted 
 to furnish gas at a given price for a given time, and that in violation of their 
 ciintract excessive rates were demanded which, if not paid, would cause tlie 
 company to shut off the gas. 
 
 lb.— lb.— Gas Co. 0. Pittsburgh, 1887, 17 Pitts. L. J. (N. S.) 240. Where a 
 natural gas company chartered under Act of 29 May 1885, obtained the legal 
 riwht to enter a city, the municipal authorities will be restrained from mak- 
 
264 INJUNCTION. 
 
 ing more than reasonable regulations with reference to the exercise of that 
 right, and cannot limit the time at which the laying of pipes shall be done. 
 
 Assessment — Foot Front Rule of. — Shoemaker v. Harrisburg, 1887, 4 
 C. P. Eep. 113. Assessment, by foot frontage on the streets improved is a rea- 
 sonable exercise of the taxing power and not in contravention of Sec. 1, Art. 
 IX, of the Constitution, and an injunction will not lie to prevent improve- 
 ments made upon this basis. 
 
 I lb. — lb. — Pittsburgh's Ap., 1888, 3 Crum. 458. A municipal claim for 
 lien was filed in 1877 for street improvements made under the Penn Avenue 
 Act of April 2, 1870, P. L. 796. On a bill filed by the owner in 1887, for a 
 [cancellation of the lien and an injunction, on the ground of the unconstitu- 
 Itionality of the foot-front rule of assessment adopted uuder said Act, it ap- 
 pearing, however, that the work charged for had actually been done and the 
 lien entered therefor, that the plaintiif 's property had been greatly increased 
 in value thereby, and that he had neither contributed nor oftered to contri- 
 bute to the cost of the benefits received, it was held that he had no ground 
 for equitable relief. 
 
 Bill — Defect in — Amendment. — Commonwealth v. Pittsburgh, &c., i;. 
 K., 1854, 12 H. 159. Amendable defects in a bill will not defeat the granting 
 of a preliminary injunction. 
 
 Borough — Besolutions of— Acting Under — Fraud.— Grayson v. Gas 
 Company, 1886, 4 Luz. Leg. Eeg. 41. An injunction will be granted to re- 
 strain one from proceeding under a resolution of a borough council, the pas- 
 sage of which was obtained by fraud or misrepresentation. 
 
 Boycotting. — Brace v. Evans, 1888, 5 Pa. Co. C. Eep. 163. An injunc- 
 tion will be granted to restrain parties from inj uring complainant by boy- 
 cotting. 
 
 Brick-Kiln— Remedy at Law.— Huckenstine's Ap., 1871, 20 S. 102. 
 An injunction against a brick-kiln as injuring a vineyard and residence re- 
 fused, and the party left to his remedy at law. 
 
 Bridge — Repairing and Rebuilding — Damages. — Eiddle v. Commis- 
 sioners, 1884, 3 P. C. C. 598. An injunction will lie by a property owner 
 whose property is likely to be damaged, to restrain the county commission- 
 ers empowered under Act of April, 1843, to repair bridges, from constructing 
 new ones. 
 
 Building Association — ^Fraud. — Eowlands v. Workingmen's Associa- 
 tion, C. P. Lackawanna, 1879, 1 Lack. L. Eec. 456. An injunction will not 
 be granted to restrain a building association from collecting debt off its mem- 
 bers, on the ground that its former owners acted fraudulently, there being 
 no charge against the officers in charge at the time. 
 
 Building Line — ^Encroachment. — City of Phila. v Johnson, C. P. 1876, 
 2 W. N. C. 533. Where a building on a street on which a new line has been 
 fixed is being reconstructed and an entirely new front put in, an injunction 
 will be granted to restrain an encroachment on this new line, although the 
 old building encroached thereon. 
 
 Business— Removing to Another Town. — Bird's Ap., 1879, 10 N. 68. 
 Equity will not enjoin a party from removing shops from one town to an- 
 other, on the ground that in former dealings between the complainant and 
 defendant there had been some talk to the effect that they would not be re- 
 moved. Even if there had been an express contract to that effect proved a 
 chancellor would be loth to enforce it when it appeared that the business 
 could be better prosecuted elsewhere. 
 
 Chancery Powers— Cancellation.— Batdorf v. Albert, 1868, 9 S. 59. 
 Law, as administered in Pennsylvania, is as efficient to prevent the fraudu- 
 lent use of an instrument as equity is to restrain it. 
 
 Chartered Rights.— West Phila. E. E. v. Dougherty, C. P. 1876, 3 W. N. 
 C. 62. Equity will enjoin one from interfering with chartered rights al- 
 though the defendant is acting under a license from the city. 
 
INJUNCTION. 255 
 
 Changing Possession of Property.— Kutz v. Heller, C. P. Schuylkill, 
 1880, 1 Sch. L. R. 357. A preliminary injunction the eifeet of which is to 
 take property out of the possession of one party and put it in that of an- 
 other will not be granted. 
 
 lb.— Kutz )). Hepler, C. P. Schuylkill, 1880, 1 Sch. L. R. 357. A preli- 
 minary injunction, the effect of which is to take property out of the posses- 
 sion of one party and put it in that of another will not be granted. 
 
 City— Dedication of Square.— Holmes v. Pittsburgh, 1888, 18 Pitts. L. 
 J. (N. S.) 494. Where a square has been dedicated to public use upon an 
 official plan of a city, and has been so used by the public for the purpose for 
 which it was dedicated, the city will be restrained from appropriating it for 
 any other purpose. 
 
 Collateral Security— Set-off.— Yarnall v. Sfcilz, C. P. 1876, 3 W. N. C. 
 12. Equity will not intervene to prevent a sale of stock, pledged as colla- 
 teral, on the allegation that a set-off exists, the set-off being uncertain in 
 amount. 
 
 Commission— Acting Under.— Rink v. Barr, C. P. 1880, 8 W. N. C. 302, 
 S. C. 37 Leg. Int. 32, 14 Phila. 154. Equity has no power to restrain one 
 from acting under a commission lawfully given him. 
 
 Compensation— Laying Gas Pipes.— Sterling's Ap., 1886, 1 Amer. 35. 
 Equity will enjoin a corporation from laying gas pipe in the land of another 
 before providing for compensation. 
 
 lb.— Watson V. McKelvey, C. P. Allegheny, 1880, 27 Pitts. L. J. 22."^. 
 Equity will enjoin the taking of land by eminent domain until compensa- 
 tion is made. 
 
 Consequential Injury — ^Erection of Poles. — Berlew v. Electric Illumi- 
 nating Co., C. P. Northumberland, 1886, 1 Pa. Co. C. Rep. 651. Although 
 it appears that the erection of poles in front of private property is an in- 
 jury, and that no compensation has been made' or security entered by the 
 corporation exercising such right, a preliminary injunction will not be 
 granted restraining such work as the injury is only consequential. 
 
 Constitutionality— Ordinances.— Butler's Ap., 1873, 23 S. 448. The 
 enforcing of an ordinance that is unconstitutional will be enjoined. 
 
 Corporation — Clmrch — Jurisdiction.— Gass' Ap., 1873, 23 S. 39. One 
 of two congregations which had built a church together to be used for divine 
 worship only, brought a bill in equity to restrain the other from using it for 
 a Sunday School. Held that equity had jurisdiction, the parties being un- 
 incorporated societies, and that the bill was not an ejectment bill, but one 
 to prevent a misuse of the property. 
 
 lb.— And Individual.— Crawford Co. v. Pittsburgh R. R. Co., 1858, 8 C:. 
 141. The equity jurisdiction of the Supreme Court over corporations does 
 not warrant a bill against a corporation and an individual unless such join- 
 der be necessery to do justice in the immediate transaction. 
 
 lb. — Creditors Without Liens. — Erie R. R. Co. v. Wilkesbarre Coal Co., 
 N. P. 1812, 29 Leg. Int. 116, S. C. 9 Phila. 262. One claiming to be a cred- 
 itor of a corporation, but holding no lien, is not entitled to an injunction re- 
 straining the corporation from issuing bonds or selling personal property. 
 
 lb. — ^Directors — Stockholders as Complainants. — Langolf v. Leiber- 
 litch, 1851, 2 Pars. 64. Equity will prevent the trustees or directors of a 
 corporation from disposing of the corporate property for other than corpor- 
 ate purposes. And for this purpose a stockholder may be a party plaintiff 
 against the corporation, and may, where it is impossible or inconvenient to 
 join all the parties aggrieved, sue on behalf of himself and others in the 
 same right. 
 
 lb. — Dividing Stock. — Barge's Ap., 1886, 43 Leg. Int. 154. Equity will 
 enjoin the owner of stock in a corporation from dividing it up and putting 
 it in the names of others, in order to sell to these others certain rights which 
 belonged to stockholders. 
 
256 INJUNCTION. 
 
 lb.— Division of Property— Charity.— Mayer v. Society, N. P. 1868, 2 
 Brews. 385, S. C. 25 Leg. Int. 37, 6 Phila. 502. An injunction will be 
 granted restraining the members of a corporation from dividing its property 
 where a provision in its constitution provides that upon the death of the last 
 member the property shall go to a certain charity. 
 
 lb.— Expelling Member. — Leech v. Harris, 1868, 2 Brews. 571. An in- 
 junction will be granted restraining a corporation from irregularly expelling 
 a member. 
 
 lb. — Eminent Domain. — Hesperheide's Ap., 1884, 4 Penny. 71. 
 Where a lessor company possessed the right of eminent domain and the 
 lessee company likewise had power to enter and occupy lands of individuals 
 or of company's on making payment therefor or going security according to 
 law, an injunction will not be granted to restrain the lessee from occupying 
 complainant's land. 
 
 lb. — ^Irreparable Injury. — Unangst's Ap., 1867, 5 S. 128. A railroadob- 
 taining a concession to enter on lands, on condition of not interfering with 
 a particular right, an injury to which would be in its nature irreparable, 
 will be restrained from entering in a manner destructive of the right. 
 
 lb. — Judgment — Set-off. — Guttendag v. Lehigh Valley Iron Co., C. P. 
 Lehigh, 1878, 8 Luz. L. Eeg. 212, S. C. 36 Leg. Int. 323, 14 Phila. 639. 
 Equity will restrain an insolvent corporation from proceeding on a judgment 
 recovered before a justice, where it appears that the plaintiff has a greater 
 counter-claim established before a justice, though appealed from. 
 
 lb. — ^Legislative Authority. — Faust v. Pa.ssenger R. E., N. P. 1858, 15 
 Leg. Int. 221, S. C. 3 Phila. 164. Equity will not enjoin a corporation which 
 is acting within the scope of its legislative authority, though without that 
 authority the act complained of would be a nuisance. 
 
 lb. — Montgomery County. — Cassel v. Jones, 1844, 6 W. & S. 552. Under 
 the act June 16, 1836, the Supreme Court has not jurisdiction to control 
 a corporation in Montgomery county by injunction. 
 
 lb. — Minority — Estoppel. — Buckley «. Union Canal Co., N. P. 1858, 15 
 Leg. Int. 212, S. C. 3 Phila. 152. Where the minority of the bondholders 
 of a corporation have stood by while the majority have entered into a scheme 
 of financial management, which promised best for all parties, the former are 
 not in a position to invoke the strong arm of equity to enjoin the latter from 
 carrying out their scheme. 
 
 lb. — ^New Constitution. — McGeorge v. Hancock Steel Co., C. P. Mon- 
 tour, 1875, 32 Leg. Int. 372, S. C. 11 Phila. 602. The new Constitution does 
 not affect the jurisdiction of the common pleas in matters of injunction 
 against corporations. 
 
 lb.— Oficers.— Tide Water Co. v. Latterfield, 1883, 12 W. N. C. 457. 
 Equity will enjoin those who are not prima facie officers from acting as man- 
 agers of a corporation. 
 
 lb. — Organization — Fraud. — Mitcheson v. Harlan, C. P. 1859, 16 Leg. 
 Int. 148, S. C. 3 Phila, 385. A court of equity cannot interfere to prevent 
 the organization of a company after letters patent have issed, although grave 
 fraud on the part of the commissioners in the sale of the stock is fully es- 
 tablished. 
 
 lb.— Preliminary by Stockholders. — Mott v. Pennsylvania E. R., 1858, 
 6 C. 9. A stockholder cannot have a preliminary injunction to prevent the 
 corporation from doing an act likely to harm it when he is oflered indemni- 
 fication from loss. His rights are to be determined on final hearing. 
 
 lb.— Receiver— Appointment of— Trustees.— Bloom v. U. S. Banking 
 Co., C. p. 1877, 4 W. N. C. 138. An insolvent banking company will be re- 
 strained from appointing trustees for the purpose of winding up its affairs, 
 and the court will appoint a receiver. 
 
 lb. — Removing Assets. — Matthews r. Trusteee, C. P. 1869, 26 Leg. Int. 
 
INJUNCTION. 2.j7 
 
 140, S. C. 7 Pbila. 270. A corporation may be restrained from carrying its 
 assets out of the state from which it derives its existence. 
 
 lb.— Stockholder's Auxiliary Bill.— Kenton v. Union R. E., 1867, 4 S. 
 401. A stockholder's bill for an injunction will not be considered when not 
 jfiled bona fide to restrain the directors, but only in aid of a bill by another 
 to stop a nuisance. 
 
 rb.— Stockholder.— Manderson v. Commercial Bank, 1857, 4 C. 379. A 
 stockholder is entitled to an injunction against the corporation to prevent 
 acts contrary to its charter. 
 
 lb. — ^Tb. — Violation of Charter — Parties — Damage. — Knhn v. Acad- 
 emy of Music, C. P. 1884, 15 W. N. C. 251. A stockholder is entitled to an 
 injunction against the corporation for a violation of its charter without proof 
 of special injury. 
 
 lb. — Tearing up Road Bound by a Mortgage. — "Watt v. Eailroad, 1867, 
 1 Brews. 418, S. C. 24 Leg. Int. 269, 6 Phila. 386. A railroad company will 
 be enjoined from tearing up any part of a road covered by a mortgage, 
 though it intends appropriating the proceeds from the sale of the materials 
 to the payment of the mortgage. 
 
 lb. — ^Violation of Constitution. — Commonwealth v. South Penn R. R., 
 Same v. Beach Creek E. E., C. P. Dauphin, 1886, 1 Pa. Co. C. R. 214, 223. 
 Equity will at the suit of the Commonwealth restrain a corporation from 
 acting in violation of the Constitution. In this case the act complained of 
 was the purchase of a competing line. 
 
 lb.— 'When Granted.— Mcllvain v. Christ Church, C. P. Berks, 1871, 2 
 Woodw. Dec. 293. An injunction may be granted where the facts are dis- 
 puted, if it appears that without the injunction the property of a corpora- 
 tion made up of a large number of scattered individuals, may be turned 
 over to those not its proper custodians. 
 
 Covenant — ^Assignee of Lease Breaking. — Brolaskey v. Hood, 1860, 23 
 Leg. Int. 222, S. C. 6 Phila. 193. Equity has jurisdiction to restrain an as- 
 signee of a lease from breaking the covenants therein contained. 
 
 Debtor and Creditor — Averring Interest — Levy. — Walker's Ap., 
 1886, 2 Amer. 579. A court of equity will not restrain a creditor by injunc- 
 tion from levying on land in which he avers that his debtor has an interest. 
 
 Discretion— Borough.— Blitz v. Ashland, 1887, 3 Pa. Co. C. Eep. 412. 
 Equity will not interfere by injunction to compel a borough to exercise a 
 qualified use of a system of drainage, though its unqualified use causes in- 
 jury to health and property. 
 
 Drain Pipe — Dedication of Alley. — McElhone's Ap., 1888, 3 Cram. 
 600. A bill in equity will not lie to restrain a lot owner from laying a, 
 drain pipe to connect with a public sewer, though an alley which had been 
 dedicated unrestrictedly by parol for the common benefit of the lots and had 
 been used continuously and notoriously for more than thirty years. 
 
 Easement— Remedy at Law. — Pusey v. Wright, 1858, 7 C. 387. An in- 
 junction will not be granted to restrain the use of an easement granted by 
 complainant, when the only damage alleged is the breach of conditions sub- 
 sequent, there is adequate remedy at law. 
 
 Ejectment — Joint Tenants. — Buchanan v. Streper, C. p. 1878, 5 W. N. 
 C. 289. Pending an ejectment between the joint occupants of property, the 
 defendant will be enjoined from ejecting the plaintiff from his customary 
 occupation although the answer denies his whole equity. 
 
 Ejectment Bill.— Boyd v. Eeid, 1880, 1 Ches. Co. Eep. 191. A bill ask- 
 ing for an injunction against a party about to commence ejectment, is itself 
 an ejectment bill and will be dismissed. 
 
 lb.— Ib.-Cancellation of Deed.— Triscuit's Ap., 1882, 13 W. N. C. 57. 
 A bill in equity, which seeks to set aside a deed, and also prays for an in- 
 junction to restrain defendant from transferring it, is an ejectment bill. 
 
 17 — EQUITY. 
 
258 INJUNCTION. 
 
 Eminent Domain— Natural Gas Company.— Carothers' Ap., 1888, 
 3 Crum. 468. A company engaged in the supply of natural gas for fuel, 
 having, among other privileges in its charter, the power to act as a purchaser 
 and as such to buy, maintain or manage, in its own name or otherwise, any 
 work, public or private, whichjmay tend or be designed to improve, increase, 
 facilitate or develop trade, travel, transportation and conveyance of freight, 
 live stock, passengers, or any other traffic, with power to enter upon and oc- 
 cupy lands of individuals or companies on making payment thereof or giv- 
 ing security according to law, has the right of eminent domain and may 
 take land for the purpose of the natural gas business. 
 
 Equitable Title— Sale of Wall— Notice.— Heimbach's Ap., 1887, 19 
 W. N. C. 69. A. purchased from B. the right to use a certain brick wall 
 abutting his premises and affixed thereto a wooden structure. The premises 
 and wall were sold to C, with no notice of the above sale of the wall, the 
 latter not having been recorded. C. sold to F. to whom formal notice of the 
 agreement concerning the wall was given subsequently to the articles of 
 agreement for purchase. Held P. was entitled to an injunction to restrain 
 A. from using the wall. 
 
 Erection of Buildings— Breach, of Covenant. — Lafferty's Ap., 1887, 
 20 W. N. C. 36. A bill in equity will not lie for an injunction to restrain 
 parties who have purchased land subject to a ground rent covenanting to 
 erect buildings thereon, but who instead thereof proceeded to remove clay 
 from Eaid lot, without alleging a breach of covenant. 
 
 Essentials of. — Hagner V. Heyberger, 1844, 7 W. & S. 104. Our power 
 to grant injunctions extends only to acts contrary to law, it is not sufficient 
 that they are contrary to equity. 
 
 lb. — Crellin v. Schafer, 1886, 4 Kulp, 211. A preliminary injunction will 
 only be granted where the plaintiff shows an immediate danger of irrepara- 
 ble injury. 
 
 Clear Right.— Kennedy v. Burgin, C. P. 1853, 10 Leg. Int. 114, S. C. 1 
 Phila. 441. It must be a very clear right that the court will protect by 
 preliminary injunction. 
 
 Fence — Tearing Down. — Shell v. Kemmerer, C. P. Dauphin, 1877, 2 
 Pears. 293, S. C. 34 Leg. Int. 410, 13 Phila. 502. An injunction will not be 
 granted to prevent the tearing down ot a fence already torn down. 
 
 Fixture— Removal of, by Assignment — ^Mortgage. — McMullen «. Har- 
 bert, C. P. 1869, 26 Leg. Int. 173, S. C. 7 Phila. 325. The assignee of a 
 mortgage will be restrained from removing fixtures. 
 
 Health— Board of.— Wistar v. Addicks, r». C. 1873, 30 Leg. Int. 248, S. 
 C. 9 Phila. 145. Equity will not restrain the action of the board of health, 
 the complainant having an adequate remedy at law. 
 
 Insolvency of Defendant. — Heilman v. Union Canal Co., 1860, 1 Wr. 
 100. An injunction will not be granted on the ground that the defendant is 
 insolvent and that therefore a recovery in damages will be worthless. 
 
 Insolvent Company— Transferring Assets.— Hile Natural Gas Co.'s 
 Ap., 1888, 3 Crum. 454. An injunction will lie to restrain an insolvent com- 
 pany from transferring its assers to a new company in order to defeat cred- 
 itors. 
 
 Laches— Merits.— Parker «. Spillin, C. P. 1873, 30 Leg. Int. 52, S. C. 10 
 Phila. 8. Whatever be the merits of the case, a complainant who has slept 
 on his rights for several years will not he granted a preliminary injunction. 
 
 lb.— Remedy at Law.— Seal v. Northern E. R. 1868, 1 Pears. 547. An 
 injunction will not be granted even in favor of a feme covert who has slept 
 on her rights for fifteen years, especially when there is a legal remedy. 
 
 Landlord and Tenant— Adverse Claimant. — Phila. Trust Co. v. Kelley, 
 C. P. 1881, 10 W. N. C. 173. Equity will not enjoin a tenant from surren- 
 dering the possession to an adverse claimant. 
 
INJUNCTION. 259 
 
 lb.— Removing Personal Property.— Jackson's Ap., 1887, 3 Montg. Co. 
 L. Eep. 99. An injuuction will not be granted to restrain a tenant from re- 
 moving personal property on the allegiition that it is being done to prevent 
 the landlord from collecting rent when due by distraint. 
 
 Legal Right— Illegal Exercise of.— Erie Canal Co. v. Walker, 1857, 5 
 C. 170. A party will be enjoined from enforcing a legal right in an illegal 
 or lawless manner. 
 
 Liquors— Illegal Sale of.— "Wishart v. Newhall, 1887, 4 Pa. Co. C. Eep. 
 141. An injunction to restrain the illegal sale of liquors under Act of May 
 13, 1887, can only be maintained by one showing some special private in- 
 jury or by the attorney general or district attorney. 
 
 Mines— Filling With Water.— P. & R. Coal Co. v. Taylor, 1873, 1 Fost. 
 361. The owner of an upper level of collieries restrained from stopping 
 work and letting his mines fill with water until the owner of the lower col- 
 lieries can get apparatus ready to pump it out. 
 
 lb.— Shaft— Breaker.— Blewit v. Smith, 1887, ,4 C. P. Eep. 1. Although 
 under Act 30 June 1885, a shaft cannot be sunk within two hundred feet of 
 the breaker, yet where the breaker was erected before the act and is des- 
 troyed by fire, a biU in equity will not lie to prevent its re-erection. 
 
 Mortgage — Purchase Under Terms of— Sale. — Hausermau v. Millett, 
 C. P. 1876, 2 W. N. C. 570. The holder of a bond and mortgage who has 
 bid in the mortgaged property for more than the amount of the mortgage, 
 but who has refused to comply with the sale will be enjoined from proceed- 
 ing to sell other property. 
 
 Mortgagee— Tendering Amount of Mortgage.— Hartman v. Qu^y, 
 1881, 1 Chcs. Co'. Eep. 487. A mortgagee will be restrained at the instance 
 of the subsequent lessee from selling the property, upon the latter tendering 
 the amount of the mortgage. 
 
 Multiplicity of Suits. — Pettinger v. Kennedy, C. P. Luzerne, 1873, 2 
 Lnz. L. Eeg. 131. Equity will not generally interfere by injunction unless 
 the matter be one where it would have j urisdiction for purposes of relief, but 
 it may do so to prevent irreparable injury or multiplicity of suits. 
 
 National Bank Ofa.cers. — Allen's Ap., 1888, 4 Crum. 192. The power 
 of Congress to create a complete system for the government of national 
 banks, being conceded, a disqualification may not be imposed upon an officer 
 of such an institution by an act of the State Legislature where none has been 
 imposed by an act ot Congress. 
 
 Natural Support.— Wier's Ap., 1874, 32 S. 203. One will be enjoined 
 from so excavating his land as to deprive his neighbor of natural support. 
 
 Object of— Relations in Statu Quo.— Schlecht's Ap., 1869, 10 S. 172. 
 A preliminary decree granting an injunction and appointing a receiver, will 
 be made only when the object is to keep things in statu quo, it vpiU not be 
 made when one is in possession under a prima facie title. 
 
 lb.— lb.— Audenried v. P. & E. E. E. Co., 1871, 18 S. 370. A preliminary 
 injunction is to prevent the circumstances from changing until the rights are 
 settled, it is only granted on a clear showing by the complainant, a prelim- 
 inary injunction is never mandatory but simply preventive. 
 
 lb.— lb.— Allen v. Sheetz, C. P. 1876, 2 W. N. C. 424. The ofSce of a 
 preliminary injunction being to keep matters in statu quo, one will not be 
 granted to restrain parties from interfering with the digging of clay. 
 
 Ofice— Two Bodies Claiming.— Kerr v. Trego, 1864, 11 Wr. 292, S. C. 
 Bright Elec. Cas. 632, 20 Leg. I. 36, 52, 5 Phila. 224, 229. The remedy by 
 injunction extends to all acts contrary to law for which the law furnishes no 
 adequate remedy. Therefore either of two bodies, each claiming to same 
 Office, may apply for an injunction to restrain the other from a usurpation <;f 
 powers to which that body is not legally entitled. 
 
 Ordinance— Storage of Oil.— Scran ton v. Oil Co., 1888, 3 L. L. Eev. 277. 
 
260 INJUNCTION. 
 
 Equity will enforce by injunction an ordinance passed by councils in pur- 
 suance of an Act of Assembly providing the storage of oil in excess of two 
 barrels without jjermission of city authorities. 
 
 Parties. — Sparhawk v. Union R. E., 1867, 4 S. 401. For equity to inter- 
 vene to restrain acts predjudicial to the interests of the community the bill 
 must be filed by the Attorney General. 
 
 lb. — Affecting Those not Named. — Long v. Dickinson, C. P. 1873, 31 
 Leg. Int. 36, S. C. 10 Phila. 108. An injunction acting on parties not named 
 in the bill cannot be granted. 
 
 Patent— Infringement— Award— Centennial Commission.— Siegart r. 
 Meinhard, C. P. 1877, 3 W. N. C. 541. The centennial commission restrained 
 from issuing an award to an infringer of a patent. 
 
 Principal and Surety— Circuity of Action. — Riegel v. Eiegel, C. P. 
 1884, 14 W. N. C. 303. A principal cannot enjoin his creditor from proceed- 
 ing against the surety, merely because he him.self has a good defence. 
 
 Purchase— Secret Equities— Notice. — Scott v. Burton, 1840, 2 Ash. 312. 
 A preliminary injunction ■will not be granted to enforce a right resting in 
 parol, against a bona fide purchaser, with showing clearly that he took with 
 notice. Caveat emptor does not refer to latent equities. 
 
 lb. — Sheriff's Sale — ^Possession. — Brady v. Weightman, C. P. 1871, 1 
 Camp. 347, S. C. 3 Leg. Gaz. 389, 28 Leg. Int. 396, 8 Phila. 332. Equity will 
 not enjoin a purchaser at sheriff's sale from recovering possession thereof 
 in the manner prescribed by the Acts of Assembly. 
 
 Quia Timet— Title— Cloud on.— Morris v. Boley, 1875, 1 W. N. C. 303. 
 Where there is a cloud upon a title caused by an old patent improvidently 
 granted or obtained by fraud and which has been revoked, it is proper for 
 the parties owning the land to apply for an inj unction against the parties 
 claiming under the patent, to restrain them from in any way asserting their 
 title to the premises. 
 
 Res Adjudicata.— Franuenthal's Ap., 1882, 4 Out. 290. Where a de- 
 fendant in a judgment has had his rule to stay the execution discharged, he 
 cannot go into equity to have the execution restrained by injunction, the 
 matter is res adjudicata. 
 
 lb. — Gardinier's Ap., 3879, 8 N. 528. Where the court has discharged a 
 rule to show cause why the plaintiff in the action should not be restrained 
 from issuing a certain writ, equity, on the ground that it is res adjudicata, 
 will refuse to grant the same injunction on a bill being filed tor that pur- 
 pose. 
 
 Eights — statutory or Contractual— Damage.— Attorney General v. 
 Lombard St. R. E., C. P. 1875, 1 W. N. C. 489, S. C. 7 Leg. Gaz. 213, 32 
 Leg. Int. 238, 10 Phila. 352. When public or private rights secured either 
 by statute or contract are invaded, no question of the amount of damage is 
 raised but simply one of right, therefore there can be no necessity for a trial 
 at law and an injunction will be granted. 
 
 Sale — Agreement — ^Mortgage. — McCarthur v. Ashmead, 1868, 2 Brews. 
 533, aff'g. in 17 S. Ash. v. McC. Where a purchaser at sheriff's sale has 
 agreed to take subject to a mortgage which would otherwise be discharged, 
 and has thereby obtained the property at a cheap price he will be restrained 
 from paiting with the property until the validity of that mortgage is tested, 
 although he denies the agreement in his answer. 
 
 Specific Performance.— Phila. & R. R. R. v. Phila., N. P. 1870, 27 Leg. 
 Int. 316, S. C. 8 Phila. 112. Specific performance of a contract cannot be 
 enforced by preliminary inj unction. 
 
 lb.— Mistake.— Mayer V. Fritsch, 1873, 1 Fost. 193. Equity will refuse 
 to specifically enforce' by preliminary injunction an agreement which was 
 founded evidently on mutual mistake. 
 
 Statute — Proceedings Under. — Bitzer v. Breneman, C. P Lancaster, 
 
INJUNCTION. 261 
 
 1878, 9 Lan. Bar. 182. Equity will not enjoin proceedings under a statute 
 on the sole ground that it is arbitrary and harsh in its pi;ovisions. ' 
 
 Stock Pledged— Restraining Transfer of— Jeane's Ap., 1887, 1 Crum- 
 573. Shares of stock were pledged to secure payment of loans from a dis- 
 counting firm on notes, reciting the pledge and authorizing the sale of 
 same without furthernotice upon non-payment of notes at maturity The 
 shares proved to be stock fraudulently overissued by the ofScers of the com- 
 pany who were compelled by order of court to substitute genuine ones 
 therefore. Held that the holders of the notes had the right to sell the stock 
 at public or private sale upon dishonor of the notes without notice to re- 
 deem or notice of the sale and that the substitution of genuine shares for the 
 fraudulent ones pledged did not affect this right. 
 
 Third Parties— Injury to.— Mochetts v. Hodges, 1867, l Brews. 313, S. 
 C. 24 Leg. Int. 41, 6 Phila. 296. An injunction will not be granted to se- 
 cure the rights of a complainant where it would create a dead lock in busi- 
 ness whereby innocent third persons would be injured. 
 
 Title.— Kelly v. Long, C. P. 1870, 27 Leg. Int. 108, S. C. 7 Phila. 455. 
 An injunction will not be granted where the complainant's right has not 
 been established at law and the proofs in equity seem to be against it. 
 
 lb.— Neal's Est., O. C, 1885, 42 Leg. Int. 237. The orphans' court will 
 not grant an injunction where the petitioner's title to the property in ques- 
 tion is not manifestly superior to that of the respondent. 
 
 lb.— McDonald v. Bromley, C. P. 1867, 24 Leg. Int. 157, S. C. 6 Phila. 
 302. An injunction will not Ije granted restraining one from building over 
 a disputed boundary line. The right must be first established at law. 
 
 Tolls— Act of Assembly. — Commonwealth v. Plank Road Co., 1860. 11 
 C. 152. An injunction will not lie to restrain the collection of tolls by a 
 company, when there is an Act of Assembly giving a special remedy in such 
 case. 
 
 Trustee— Improper Exercise of Authority Against— Reversal.— Er- 
 rin's Ap., 1876, 1 N. 188. A preliminary injunction was granted against a 
 defendant who was alleged to be a trustee, restraining him from parting 
 with, converting or using any of his property. The Supreme Court reversed 
 the decree on the ground that it was an unreasonoble exercise of equitable 
 powers, whatever the merits of the case appeared to be. 
 
 Vendee — Covenant of, not to Build. — Penna. E. R. Co. v. Pittsburgh 
 Elevator Co., 1865, 14 Wr. 499. A vendee who has covenanted in the deed 
 not to build beyond a certain line, will be restrained by injunction from 
 violating the agreement. 
 
 B. Doubtful Right. 
 
 AfB.davitS — ^Doubt Raised by. — Germantown Water Co. V. McCallum. 
 C. P. 1862, 3 Luz. L. Obs. 36. A preliminary injimction will not be granted 
 when the affidavits raise a doubt as to the cause of the evil. 
 
 lb.— lb.— Park Coal Co. v. O'Donnell, C. P. Luzerne, 1875, 4 Luz. L. Reg. 
 127 S. C. 22 Pitts. L. J. 157. A preliminary injunction will not be granted 
 where it is necessary to decide the relative truth of the affidavits. 
 
 Damages for Breach of Contract.— Jordon «. Woodhouse, C. P. Lu- 
 zerne, 1876, 5 Luz. L. Reg. 141. Where there are disputes as to the terms 
 of a contract equity will not interfere by granting a preliminary injunction, 
 especially if it appear that the question is simply one of damages for breach 
 of contract. 
 
 Easement.— Sitting's Ap., 1884, 9 Out. 531. Equity will sometimes pro- 
 tect an easement by preliminary injunction where the right is disputed, in 
 order to keep things in statu quo until the rights are decided. 
 
2G2 INJUNCTION. 
 
 Fatal to Injuncion.— Philadelphia's Ap., 1875, 28 S. 33. In a bill foraa 
 injunction, the fact that the right is doubtful is fatal to the bill. 
 
 lb.— Brader's Est., O. C Luzerne, 1882, 11 Luz. L. Reg. 129, S. C. 3 York L. 
 Eeg. 77. Where a complainant's right under a contract is doubtful, he is 
 not entitled to a preliminary injunction. 
 
 lb.— Hey V. Estabrook, C. P. 1884, 15 W. N. C. 222. A preliminary in- 
 junction will not be granted when the right rests upon disputed facts. 
 
 lb. — Parry's Ap., 1882, 14 Lan. B. 21. An injunction will not be granted 
 to protect a right entirely legal which has not been established at law. 
 
 lb. — Public Inconvenience. — Fisher v. York Water Co., C. p. York, 
 1880, 1 York L. R. 83. A preliminary injunction will not be granted which 
 will produce serious public inconvenience, when the material facts are at all 
 in doubt. 
 
 Remedy at Law.— Schroder's Ap., 1875, 1 W. N. C. 528. Where the 
 rights of parties under a lease are doubful owing to a change of circum- 
 stances, equity will not interfere by injunction but will relegate them to 
 their remedy at law. 
 
 Fixtures— Security.— Milliken v. Rhodes, C. P. 1875, 1 W. N. C. 325. 
 An injunction will not be granted to restrain a tenant from removing fix- 
 tures where his answer denies the facts set forth in the bill, but in this case, 
 there seeming to be considerable doubt as to some facts, the court required 
 the defendant to enter security. 
 
 Laches.— Bedford v. Potter, C. P. 1872, 29 Leg. Int. 341, S. C. -9 Phila. 
 560. A preliminary injunction will not be granted one who has been guilty 
 of some laches and whose rights are not undisputed. 
 
 Nature of Injunction. — Mammoth Vein Coal Co.'s Ap., 1867, 4 S. 183. 
 A preliminary injunction is entirely a preoentive remedy, it will not be 
 granted when there is a dispute as to rights, and then only to prevent irre- 
 parable injury. 
 
 Nuisance— Private Way. — King v. MeCully, i860, 2 Wr. 76. An in- 
 junction to keep open a private way will not be granted if the right is doubt- 
 ful, until it be established by law. 
 
 Statutory Rights.— Moore v. Green St. E. E., C. P. 1858, 15 Leg. Int. 
 318, S. C. 3 Phila. 210. Equity will not interfere by preliminary injunction 
 where complainant's rights rest upon the construction of a doubtful statute. 
 
 lb.— Cooper V. Second St. R. R., C. P. 1858, 15 Leg. Int. 357. S. C. 3 
 Phila. 262. A preliminary injunction will not be granted where the facts 
 relied on by the complainant are disputed and his right under a statute 
 doubtful. 
 
 C. Corporation. 
 
 See SuPEA, A. 
 
 jD. Nuisance. 
 
 Bay Window.— Reimer's Ap., 1882, 4 Out. 182. An injunction will be 
 t! ranted to restrain the erection of a second story bay window beyond the 
 building line. 
 
 lb.— Commonwealth v. Harris, C. P. 1881, 10 W. N. C. 10. The court en- 
 joined the erection of a bay window encroaching on the highway, though it 
 was sanctioned by a special ordinance of councils. 
 
 lb.— Commonwealth v. Reimer, C. P. 1882, 39 Leg. Int. 108. The con- 
 struction of projecting windows from an upper story which encroach beyond 
 the t»nilding line will be restrained by injunction, and the councils of the 
 city of Philadelphia have no authority to grant special licenses for the erec- 
 tion of such windows. 
 
 lb. — Commonwealth v. Suesserott, 1888, 5 Pa. Co. C. Rep. 1. The en- 
 
INJUNCTION 263 
 
 croaehment of a house on a, public highway, to be remedied by process of 
 injunction, must be really an obstruction to the free use of it, and not merely 
 technically So. 
 
 lb.— Wilson V. Strawbridge, C. P. 1877, 4 W. N. C. 35. The court will 
 not enjoin the erection of a bay window sanctioned by a special ordinance of 
 councils. 
 
 lb.— Sutton V. Eshleman, C. P. Lancaster, 1871, 2 Lan. Bar, No. 12. A 
 bill by a neighbor for an injunction to restrain the building of a bay win- 
 dow which projected into the highway dismissed. 
 
 lb.— Horner v. Craig, C. P. 1875, 2 W. N. C. 11. Equity will not enjoin 
 one from erecting a bay window at the suit of a private party not specially 
 injured, particularly when the window is not an obstruction to the passage. 
 
 lb.— Neill V. Gallagher, C. P. 1874, 1 W. N. C. 99, S. C. 31 Leg. Int. 388. 
 A preliminary injunction to restrain the erection. of a bay window which 
 covered a space claimed to have been dedicated to the public, not granted, 
 the case being a doubtful one. 
 
 Blacksmith Shop.— Raub v. Taraany, 1873, 1 Post. 80, S. C. 5 Luz. L. 
 Eeg. 114. A blacksmith shop is not per se a nuisance. 
 
 Bowling Alley.— Briggs v. Vottler, C. P. 1877, 4 W. N. C. 272. A bowl- 
 ing alley in a quiet neighborhood will be enjoined as a nuisance. 
 
 Building — Erection Continued Conditionally.— Sellers v. Penna. R. E. 
 Co., C. P. 1875, 1 W. N. C. 295, S. C. 32 Leg. Int. 106. The court, when ap- 
 plied to to grant an injunction restraining the erection ot a building which 
 it is alleged will become a nuisance, may allow the construction to go on 
 under terms imposed by it with the understanding that if the building 
 turns out to be a nuisance a mandatory injunction will be granted to remove 
 the same. 
 
 Cess-Pool.— Haugh's Ap., 1883, 6 Out. 42. The use of a cess-pool in the 
 suburbs of a city will be restrained by injunction when it contaminates a 
 neighbor's well, although the neighbor might get his water from the city 
 works and abandon his well. 
 
 Church Bells.— Harrison v. St. Mark's Church, C. P. 1877. 3 "W. N. C. 
 384, S. C. 34 Leg. Int. 76, 222, 12 Phila. 259. The ringing of church bells 
 enjoined at the suit of the neighbors. 
 
 Coal Burning — Bituminous. — Galbraith v. Oliver, 1867, 3 Crura. 78. 
 The burning of bituminous coal in a steam mill surrounded by dwellings 
 will be enjoined. 
 
 Cornice Overhanging Adjacent Property.— Overhaltzer v. Daily Times, 
 1886, 2 Montg. Co. L. Rep. 169. In a case where the owner of one of two 
 adjacent properties between whose premises there was a partition wall, built 
 a cornice overhanging his neighbor's property, an injunction was refused on 
 condition that within ten days the defendant filed a declaration that the 
 projection was not erected under any adverse claim of right, and that it 
 shonld be removed when the space should be required for the use of the 
 plaintiff. 
 
 Criminal Law. — Campbell ». Schofield, 1872, 3 Crum. 443. Equity may 
 restrain an illegal act on the ground of its being a nuisance, but not on the 
 simple ground that it is illegal, for it has to do only with civil cases. 
 
 Damages. — Grey v. Ohio R. R., 1856, 1 Gr. 412. Equity will not enjoin 
 a nuisance where damages will compensate, nor will it where the inconven- 
 iences arising from the injunction will be greater than those arising from the 
 nuisance. 
 
 Dumping. — Mulvany v. Kennedy, 1856, 3 C. 44. Dumping earth on the 
 land of another is not an "irreparable injury." There is an adequate 
 remedy at law. 
 
 Explosives. — Booth V. Russell, 1887, 3 Montg. Co. L. Rep. 131. An injunc- 
 tion will not lie to prevent the storagre of explosives in a magazine eon- 
 
204 INJUNCTION. 
 
 strncted twelve years before and used during that time without complaint. 
 It would be otherwise if the nuisance were threatened instead of existing for 
 so long a time. 
 
 Fine Dust.— Richardson v. Oberholtzer, C. P. 1876, 2 W. N. C. 332. A 
 tenant of one floor enjoined at the suit of a tenant of the floor next above 
 from carrying on a business which produced a great quantity of fine dust. 
 
 Frame Building.— Horstmann v. Young, C. P. 1879, 7 W. N. C. 309, S. 
 C. 36 Leg. Int. 328, 13 Phila. 19. There being in Philadelphia an ordinance 
 prohibiting the erection of frame buildings except sheds for the temporary 
 storage of merchandise, an injunction was granted against the erection of a 
 large shed for the storage of lumber in a lumber yard, which it would seem 
 was a nuisance pe>- se. 
 
 lb.— Reading v. Maurer, 1889, 4 C. P. Rep. 282. Act of April 11, 1872, 
 prohibiting the erection of frame structures in certain sections of the city of 
 Reading was not repealed by the Municipal Act of 1874. 
 
 Gold Beater.— Wallace v. Aner, C. P. 1875, 7 Leg. Gaz. 214, S. C. 32 Leg. 
 Int. 238, 10 Phila. 356. Equity will restrain a gold beater irom carrying on 
 his business in a quiet neighborhood. 
 
 Highway.— Wilkesbarre's Ap., 1882, 2 Kulp, 156, 11 Luz. L. Reg. 209, 
 rev'g 8 id. 191. Equity will not enjoin the removal by a city of certain posts 
 which are within the limits of a road as laid out by the quarter sessions. 
 
 Jurisdiction.— Hieskell v. Gross, 1869, 3 Brews. 430, S. C. 26 Leg. Int. 397, 
 7 Phila. 317. In cases of private nuisance, equity will not interfere by in- 
 junction unless (1) the nuisance be clearly proved, (2) the injury complained 
 of is irreparable, (3) no adequate remedy exists at law. 
 
 Lawful Business — ^Unreasonable Hours. — Dennis v. Eckhardt, 1862, 3 
 Gr. 390. Equity will restrain the carrying on of a lawful business at such 
 unreasonable hours as render it a nuisance. 
 
 lb.— Young V. Elkins, C. P. 1881, 38 Leg. Int. 204, S. C. 15 Phila, 27. 
 Equity will not restrain the carrying on of a legal and necessary business, 
 on the ground that the danger from fire is thereby made greater to the 
 neighboring houses. 
 
 Laundry.— Warwick v. Wah Lee, C. P. 1874, 22 Pitts. L. J. 27, S. C. 31 
 Leg. Int. 268, 10 Phila. 160. Equity will restrain the running of a Chinese 
 laundry in such a way as to become a nuisance. 
 
 Mill Dam— Ice Gorge.— New Castle City v. Raney, 1888, 6 Pa. Co. C. Rep. 
 87. A mill dam in a citv which causes ice gorges and cousequen t inundations is 
 a nuisance which will be restrained by injunction. The fact that sewers 
 and water closets empty in the dam will not of itself warrant the removal, 
 if the natuie of the pollution can be ascertained, since the parties contribut- 
 ing to it should be enjoined. 
 
 Noise.— Burke v. Myers, C. P. 1880, 10 W. N. C. 481. The carrying on 
 of a noisy business in a quiet neighborhood during nights and Sundays will 
 be enjoined. 
 
 lb.— Dillon V. States, C. P. 1880, 11 W. N. C. 18. Equity will enjoin the 
 running of noisy machinery at night where there are surrounding dwellings. 
 
 lb. — Dallas V. Dec. Art Club, 1887, 44 Leg. Int. 512. An injunction will 
 lie to restrain parties from making unusual and disturbing noises if they are 
 regularly and presistently made, and are of a character calculated to ser- 
 iously affect the comfort of a man's household and the peace and health of 
 his family. 
 
 lb.— McCaffrey's Ap.^ 1884, 41 Leg. Int. 418, S. C. 15 W. N. C. 12, 32 
 Pitts. L. J. 352, aff'g 40 Leg. Int. 404. The court refused to enjoin a large 
 printing establishment in the center of a city, the evidence as to the noise 
 and damage sustained by the defendant being conflicting. 
 
 lb.— Appeal of the Art Club, 1888, 22 W. N. C. 76. If noise is such a» 
 to destroy the comfortable enjoyment of one's home a court of equity will 
 interfere to prevent it. 
 
INJUNCTION. 265 
 
 Injury Which Injunction Would Cause.— Richards' Ap., 1868, 7 s. 
 105. An injunction will not be granted where greater injury would be done 
 thereby than by refusing it, although the matter complained of may be a 
 nuisance. 
 
 Oil— Storage of.— Shaw v. Transit Co., 1887, 4 Pa. Co. C. Eep. 363. A 
 preliminary injunction will not lie to restrain the erection of iron tanks for 
 the storage of oil on premises adjoining a mill property. 
 
 Parties.— Mechling V. Kittanning Bridge Co., 1856, 1 Gr. 416. A public 
 nuisance will only be restrained on a public complaint, but where a private 
 party suffers special damage he has a standing as complainant. 
 
 lb.— Cramp v. Neafie, C. P. 1875, 3 W. N. C. 300. A bill brought by ■■<■ 
 private citizen alleging that defendant blocked up the highway so that com- 
 plainant could not get to his house, sustained. 
 
 lb.— Cumberland Valley Railroad Co.'s Ap., 1869, 12 S. 218. One suffer- 
 ing individually no more than does the public generally, has no standing in 
 a court of equity to enjoin the nuisance and a bill by such a one is demur- 
 rable. 
 
 lb.— Peterson v. Navy Yard R. R., C. P. 1863, 20 Leg. Int. 4, S. C. 5 
 Phila. 199. Equity will not, on the complaint of a private person, enjoin a 
 railway from occupying the street of a city. 
 
 lb.— Times Publishing Co. ii.Ladomus, C. P. 1877, 3 W. N. C. 557, S. C. 33 
 Leg. Int. 130, 11 Phila. 339. An individual suffering special damage has a 
 standing to have an encroachment upon the highway enjoined. 
 
 lb.— Cox V. Philadelphia R. E., C. P. 1881, 10 "W. N. C. 553. Equity will 
 grant a special injunction to restrain the obstruction of a street, at the suit 
 of a private citizen who is specially damaged thereby, and who so alleges in 
 his bill. 
 
 lb.— Cox'g Ap., 1883, 11 W. N. C. 571. An obstruction to the highway 
 cannot be remedied by a bill in equity by a, private individual; for the 
 public nuisance the remedy is by the Attorney General, for the private in- 
 convenience the remedy is at law. 
 
 lb.— Phila. V. Thirteenth St. R. R., C. P. 1871, 28 Leg. Int. 164, S. C. 8 
 Phila. 648. The city is a competent party to a bill to restrain an illegal use 
 of one of its streets. 
 
 lb. — Commonwealth v. Kepner, 1859. 1 Pears. 182. A perpetual injunc- 
 tion will be granted against erecting a public house in a public street. The 
 proper complainant is the Commonwealth ex relatione the Attorney General 
 and those citizens especially injured^ and the proper defendants are the offi- 
 cers of the borough who have authorized the erection of the nuisance and 
 who are about to execute the ordinance. 
 
 lb.— Shipley v. Continental E. R., C. P. 1879, 36 Leg. Int. 450, S. C. 13 
 Phila. 128. A private citizen upon showing special damage and a clear case 
 is entitled of right to a preliminary injunction restraining the construction 
 of a street railway. 
 
 lb. — Smith V. Cummings, 1851, 2 Pars. 92. A bill to enjoin a public nui- 
 sance may be filed by the public authorities of a municipal corporation, or 
 by numerous individuals who are hurt thereby, or by a single individual in 
 case of specific damage to his person or property. 
 
 lb.— Wilkesbarre v. Troxell, C. P. Luzerne, 1876, 5 Luz. Leg. Reg. 133, S. 
 C. 3Scr. L. T. 81, 33 Pitts. L. J. 201. Equity will, at the suit of the city, 
 enjoin one who is encroaching on the highway beyond an established build- 
 ing line. 
 
 lb. — Perry v. Maurer, C. P. Luzerne, 1876, 5 Luz. L. Eeg. 97. Where a 
 public nuisance is no more damaging to a complainant than to the public 
 generally, his bill must be determined. 
 
 lb.— Eckert 1). Federal St. E. R., C. P. Allegheny, 1880, 3 Sch. L. R. 1S8, 
 
266 INJUNCTION. 
 
 S. C. 27 Pitts. L. J. 202. Private citizens who are specially injured may 
 have a railroad restrained from acting without authority. 
 
 lb.— Phila. & Gray's Ferry R. R. ).. Phila., 1876, 2 W. N. C. 639, S. C. 33 
 Leg. Int. 264, 11 Phila. 358. Private citizens cannot come into equity with 
 a bill to restrain a public nuisance without averring special damages. 
 
 lb. — Rhea v. Forsyth, 1860, 1 Wr. 503. An injunction will not be granted 
 to restrain a private nuisance unless the complainant's rights have been es- 
 tablished at law or are not denied. 
 
 lb.— Thirteenth St. E. R. v. Lombard St. R. R., C. P. 1875, 1 W. N. C. 
 492. Special damage must be clearly proven to induce a chancellor, at the 
 suit of a private party, to enjoin an unauthorized obstruction upon a public 
 highway. 
 
 Planing Mill.— Rhodes V. Dunbar, 1868, 7 S. 274. Complainants asked 
 the court to enjoin the erection of a planing mill in a district occupied 
 largely by residences, and likely to be entirely so occupied, if this mill were 
 hot erected. Their grounds for an injunction were, 1, smoke, soot and dust; 
 2, danger from fire. Injunction refused on the grounds, 1, that the nuis- 
 ances of smoke, soot and dust could be obviated by using different fuel; 2, 
 that the apprehension of danger from fire was too remote; 3, and generally 
 people who live in a, city must put up with some inconveniences whidh 
 must there exist. 
 
 . Pollution of Air. — Roberts V. Thomas, C. P. Delaware, 1881, 13 Lau. Bar, 
 63, 1 Del. Co. R. 89, 2 Sch. L. E. 151. Equity will restrain a trade which 
 pollutes the air and is offensive to the sensitive and weak though not so to 
 the rebust. 
 
 Powder Magazine.— Wier's Ap., 1873, 24 S. 230. The erection of a 
 powder magazine restrained in a neighborhood not at the time thickly set- 
 tled but fast building up. 
 
 lb. — Dilworth's Ap., 1879, 10 N. 247. The erection of a powder store- 
 house not enjoined, the situation being in a wild part of Allegheny county 
 not near any important road and in a position not likely to be soon built up, 
 although there were as many houses in the vicinity as in Wier's Ap., in 
 which the injunction was granted. 
 
 Prayers. — Smith v. Cummings, 1851, 2 Pars. 92. A preliminary injunc- 
 tion to restrain a nuisance will sometimes be granted without a trial at law, 
 if it per se injurious to health and property and this special relief has been 
 prayed. 
 
 Purpresture.- Phila. v. Thirteenth St. R. R., C. P. 1871, 1 Camp. 163, S- 
 C. 3 Leg. Gaz. 156. Equity will enjoin the erection of a purpresture. 
 
 Quia Timet. — Hough v. Doylestown, 1870, 4 Brews. 333. An injunction 
 will not be granted in cases of prospective nuisance, unless the complainant 
 clearly prove that irreparable injury will result and he apply promptly for 
 his relief. 
 
 Railroad— Private.— McCandless' Ap., 1871, 20 S. 210. A private rail- 
 road is a nuisance which will be enjoined and abated. 
 
 Remedy at Law.— Frankford Turnpike Co.'s Ap., 1881, 11 W. N. C, 184, 
 Rev'g 3 W. N. C. 270, 34 Leg. Int. 5. An injunction refused where a nui- 
 sance was proved on the ground that there was an adequate remedy at law. 
 
 Right of Way— Interruption of — Hugus v. Lauer, 1882, 40 Leg. Int. 
 59. Equity will enjoin the interruption of a right of way. 
 
 Shed. — Zimmerman v. Saam, 1888, 46 Leg. Int. 5. A shed without any 
 walls whatever, but consisting of a mere roof over a yard supported by 
 posts, is not within the purview of the ordinance of Philadelphia City Coun- 
 cils of April 11, 1863. 
 
 Slaughter House.— Schandein v. Bach, C. P. 1881, 11 "W. N. C. 202. A 
 preliminary injunction granted against one who kept, slaughtered and 
 smoked hogs m a neighborhood taken up with dwellings, although the affi- 
 davits were contradictory. 
 
INJUNCTION. 267 
 
 Smoke.— Biddle v. McCracken, C. P. 1883, 13 W. N. C. 514. A factory 
 in a porlion of a city used almost exclusively for dwellings, restrained from 
 bnmiug up its shavings and thereby causing a dense smoke. 
 
 Steam Boiler. — Carpenter V. Cummings, C. P. 1856, 13 Leg. Int. 76, 8. 
 C. 2 Phila. 74. Equity will not restrain the use of a properly constructed 
 steam boiler in a dense part of the city. 
 
 Stone Quarry. — Sayer v. Johnson, 1887, 4 Pa. Co. C. Rep. 360. An in- 
 junction will lie to restrain a defendant from so operating a stone quarry by 
 blasting, etc., that pieces of rock are thrown into the pnblic road and upon 
 the premises of plaintiff, to the great danger of the plaintiff and his family. 
 
 Title. — Hacke's Ap., 1882, 5 Out 245. A nuisance arising from obstruct- 
 ing a highway will, if clearly proved, be enjoined, even before the right has 
 been established at law. 
 
 lb. — Penna. Lead Co.'s Ap., 1880, 15 N. 116. A business which is a 
 dangerous nuisance, the injury from which is continuous and irreparable, 
 will be enjoined in a clear case, although the plaintiff has not first estab- 
 lished his right at l?w. 
 
 E. Trade Marie, 
 
 Contract— Damages.— Gillis v. Hall, 1869, 2 Brews. 342, S. C. 1 Camp. 
 124, 3 Leg. Gaz. 36, 28 Leg. Int. 45, 8 Phila. 231, 27 Leg. Int. 302, 7 Phila. 
 422. Equity will enjoin the infringment of a trade mark, and will enforce 
 a covenant not to use the same name although the contract between the 
 parties stipulates what the damages shall be in case it is broken. 
 
 Copyright— Name of Play.— Shook v. Wood, C. P. 1875, 32 Leg. Int. 
 264. S. 0. 10 Phila. 373. Equity will protect the title of a copyrighted play 
 though the body of the plays be different. 
 
 lb.— Publishing Lectures.— Miller's Ap., 1884, 15 W. N. C. 27, S. C. 42 
 Leg. Int. 228. Equity will enjoin the publication by a student of an 
 epitome of the lectures of a professor under the latter's name. 
 
 Doubtful Facts.— Morse V. Morrell, C. P. 1874, 1 W. N. C. 80, S. C. 31 
 Leg. Int. 380, 10 Phila. 168. A preliminary injunction refused on a com- 
 plaint for an infringment of a trade mark in a case which the court said 
 seemed to be on the border line. 
 
 Fraud of Original. — Palmer v. Harris, 1869, 10 S. 156. Counterfeiting a 
 trade mark will not be restrained where the latter is itself a fraud. 
 
 General Resemblance. — Eowlej v. Houghton, D. C. 1868, 2 Brews. 303, 
 S. C. 25 Leg. Int. 333, 7 Phila. 39. A trade mark will be protected by in- 
 junction from a copy of such general resemblance as is calculated to deceive. 
 
 lb.— Morse v. Conwell, C. P. 1875, 2 W. N. C. 12. "Rising moon" and 
 device thereof, enjoined as an infringment of " Rising Sun." 
 
 lb.—T>a.j V. Walls, C. P. 1877, 34 Leg. Int., 418, S. C. 12 Phila. 274. A 
 complainant is entitled to an injunction against one whose imitation of the 
 former's trade mark is calculated to deceive. , 
 
 Label.— Colladay D. Baird, C. P. I860, 17 Leg. Int. 365, S. C. 4 Phila. 139. 
 One who has made uses of and given value to a certain label or trade mark 
 will be protected in its use from infringment by others. 
 
 lb.— Ferguson r. Mills, C. P. 1869, 26 Leg. Int. 4, S. C. 7 Phila. 253. A 
 label with a symbol not indicative of the origin or ownership of goods will 
 not be protected by injunction. 
 
 Ilj—Witthans ii. Wallace, C. P. 1876, 2 W. N. C. 610. Imitation of a 
 label enjoined where the colors, designs and words were all a little different 
 but the general effect similar. 
 
268 INJUNCTION. 
 
 Name of Defendant.— Pratt's Appea:l, 1887, 44 Leg. Int. 24. An in- 
 junction will lie to restrain the use of a trade mark on which the defendant 
 has his own name, the trade mark appearing in other respects the same as 
 that owned by plaintiff. 
 
 Partnership Name.— McNair v. Cleave, C. p. 1873, 31 Leg. Int. 212, S. 
 C. 10 Phila. 155. Equity will not protect the assumed name of a partner- 
 ship, which is itself a deception making the partnership appear to be a cor- 
 poration. 
 
 Protection of — Winsor v. Clyde, C. P. 1872, 4 Leg. Gaz. 169, S. C. 29 
 Leg. Int. 172, 9 Phila. 513. Equity will protect property in a trade's names 
 and devices. 
 
 Identity of Names.— Rogers v. Eogers, C. P. 1883', 40 Leg. Int. 294. One 
 wUl be restrained from using his own name in a certain business where it 
 appears that the defendant went into the business for the purpose of getting 
 the advantage derived from the reputation of another bearing the same name. 
 
 Intention. — Pratt's Appeal, 1 888, 2 Crum. 401. In a proceeding to en- 
 join the use of a trade mark, if the defendant's device is in imitation of 
 that of the plaintiff, and calculated to deceive and mislead the public, that 
 the defendant had no intention so to deceive and mislead is immaterial. 
 
 Sign.— Colton v. Thomas, 1868, 2 Brews. 308, S. C. 26 Leg. Int. 5, 7 Phila. 
 257. Equity will restrain one from using such signs and cards as will de- 
 ceive the unwary and thus deprive another of his business. In this case the 
 words "late with " were printed in such small letters as to be unnoticeable, 
 while the old firm name was large and bold. The injunction was granted. 
 
 Use of Word.— Wamsutta Mills v. Allen, C. P. 1878, 6 W. N. C. 189, S. 
 C. 35 Leg. Int. 410, 12 Phila. 535. An injunction granted to restrain the 
 use of the word " Wamyesta" as an infringment of the word " Wamsutta." 
 
 lb.— Sheppard v. Stuart, C. P. 1879, 7 W. N. C. 498, S. C,36 Leg. Int. 34, 
 13 Phila. 117. The use of the term " new excelsior " enjoined as against 
 the word " excelsior" in the same branch of trade. 
 
 lb.— Wehn V. Krause, C. P^ 1878, 5 W. N. C. 272. An injunction granted 
 against the use of a word which the complainant had coined (Lithogen) al- 
 though claimed to have become a generic term. 
 
 lb.— Bamett v. Kent, C. P. 1880, 8 "W. N. C. 355. Equity will not enjoin 
 the use of non-distinctive word and sign (diamond) in a trade mark, es- 
 jiecially where that word and sign have been used in the trade before the 
 complainant adopted it. 
 
 Unintentional Infringement. — Seltzer v. Powell, C. P. 1871, 28 Leg. Int. 
 308, S. C. 8 Phila. 296. Equity will not interfere where a trade mark has 
 been unwittingly infringed before it has become generally knovni to the 
 trade. 
 
 F. Public Works. 
 
 After Commencement.— Wheeler v. Rice, N. P. 1871, 4 Brews. 129, S. 
 C. 8 Phila. 115, 28 Leg. Int. 212, 3 W. N. C. 333. Equity cannot restrain a 
 public work which has been begun, however slight the work already done. 
 
 Bridge— Eepairing.—Flanagan v. Phila., N. p. 1870, 27 Leg. Int. 316, S. 
 G. 8 Phila. 110. Repairing a bridge is such a public work as cannot he stop- 
 ped by injunction. 
 
 lb.— lb.— Phila. & Reading R. R. v. Phila., C. P. 1871, 28 Leg. Int. 276, 
 S. C. 8 Phila. 284. The repairing of a bridge is such a public work as can- 
 not be stopped by injunction.. 
 
 Case Must be Clear. — Wlieeler ». Rice, 1877, 2 N. 232. An injunction to 
 
INJUNCTION. 269 
 
 arrest a great public work already begun will not be granted except in a very 
 clear case ; especially is this so under the Act April 8, 1846 [P. L. 272.] 
 
 Damage. — Cameron Furnace Co. v. Penna. Canal Co., C. P. Dauphin, 
 1874, 2 Pears. 208. A private privilege must give way to a public improve- 
 ment. The owner cannot ask for an injunction but must have viewers ap- 
 pointed and get damages. 
 
 Execution — Public Real Estate — Injunction. — Moore v. Barrett, D. C. 
 1867, 24 Leg. Int. 61, S. C. 6 Phila. 204. Equity will restrain the issuing of 
 execution against real estate taken for public use. 
 
 Parties.— West Phila. E. E. V. Perkins, 1873, 4 Brews. 173, rev'g 30 Leg. 
 Int. 100. An injunction cannot issue at the suit of a private party to re- 
 strain public commissioners from removing that property to commence a 
 public improvement. 
 
 lb.— Architect.— "Windrim V. Phila., C. P. 1871, 1 Camp. 311, S. C. 3 
 Leg. Gaz. 358, 28 Leg. Int. 348, 8 Phila. 361 ; See 4 Leg. Gaz. 86, 29 Leg. 
 Int. 84, 9 Phila. 550. Equity will not enjoin the erection of a public work 
 at the suit of the architect who has not been paid, especially where his right 
 seems doubtful. 
 
 Public Koad— Act 1846— Damages.— Wolbert v. Philadelphia, 1865, 12 
 Wr. 439. Act April 8, 1846, forbidding equity from granting an injunction 
 against the erection of public works authorized by the Legislature, until the 
 question of damages is settled at law, applies to the laying out of a public 
 park. 
 
 Street Cleaning.— City Sewage Co. v. Board of Health, C. P. 1871, 1 
 Camp. 402, S. C. 3 Leg. Gaz. 424. Cleaning the streets is not a public work 
 such as equity cannot check by injunction. 
 
 lb.— Grading.— Eidge Ave. E. E. I.. City of Phila., C. P. 1873, 30 Leg. 
 Int. 148, S. C. 10 Phila. 37. A street railway is not entitled to stop by in- 
 junction the changing of the grade of a street which it occupies; such change 
 is possibly a public work, and in any event there is an adequate remedy at 
 law. 
 
 lb. — Opening. — Keene V. Borough of Bristol, 1856, 2 C. 46. A municipal 
 corporation about to open a street will he enjoined until it furnish security 
 for damages, where it aflSrmatively appears that the power of taxation is 
 inadequate to satify these demands. 
 
 Suspending Before Answer Filed. — Elmslie v. Canal Co., 1839, 4 Whart. 
 424. Except in very peculiar circumstances an injunction to suspend a pub- 
 lic work vnll not be granted before the answer is in. 
 
 G. Public Acts and Officers. 
 
 [See also infra P. ] 
 
 Appointment Illegal.— Updegraff v. Crans, 1864, 11 Wr. 103. A bill in 
 equity will not lie to restrain parties from entering upon official duties un- 
 der an alleged illegal appointment. The proper practice is to wait until 
 they attempt to exercise the duties of the contested office and then proceed 
 at law by a writ of quo warranto. 
 
 Bridge — ^Injury to Property. — Delaware Co.'s Appeal, 1888, 4 Crum. 
 159. A bill in equity will not be sustained by a land owner against county 
 commissioners to restrain the latter from erecting a bridge, on the ground 
 that the same would be injurious to his property. 
 
 Building— Erection of— Bowers v. Wright, C. P. 1877, 4 W. N. C. 460. 
 The erection of a building which has not been approved by the building in- 
 spector will be enjoined, although its erection is authorized by councils 
 which approved its plans. 
 
270 INJUNCTION. 
 
 Discretion — ^Paving. — Woodward v. City of Wilkesbarre, 1886, 4 Kulp, 
 125. Where by Act of April 3, 1867, discretion is vested in the corporate 
 officers of a municipality to pave any street in a manner they may deem 
 proper, an injunction will not issue to control that discretion. 
 
 lb.— Brown v. Philadelphia, C. P. 1884, 41 Leg. Int. 242. Equity will not 
 enjoin an officer from exercising a discretion in the absence of fraud. 
 
 Election. — Ewing v. Thompson, 1862, 7 Wr. 372. An officer under a com- 
 mission issued after a decision of the election in his favor in the quarter ses- 
 sions, a eertiorari having issued, was restrained from action by preliminary 
 injunction, but on motion (p. 384) the injunction was dissolved, the writ 
 being quashed. 
 
 lb.— False Certificate.— Miller v. Lowry, C. P. 1863, 20 Leg. Int. 5, S. 
 C. 5 Phila. 202. Equity will restrain one from making use of a false certi- 
 ficate of election in derogation of the rights of another. 
 
 Lavelle v. Phillips, C. P. Luzerne, 1881, 3 L. T. N. S. 169. Althongb the 
 right to office cannot be tried by injunction, yet a claimant thereto may be 
 restrained from acting contrary to law, and prejudicial to the interests of the 
 community. 
 
 Liquor License. — Irwin v. McCallin, C. P. Allegheny, 1881, 28 Pitts. L. 
 J. 323. Where a county treasurer is about to issue liquor licenses, those al- 
 leging that he has no right so to do, should ask for an injunction. 
 
 Municipality— OfS.cers of— Criminal Liability.— Stewart v. Scranton, 
 C. P. Lackawanna, 1880, 3 L. T. N. S. 151. Equity will not restrain the 
 officers of a municipality from performing their duties, on the ground that 
 they are acting contrary to law if they are liable criminally for so acting. 
 
 Office— Title to.— Van Storch i'. Evans, 'C. P, Luzerne, 1878, 7 Luz. L. 
 Reg. 137. Qui) warranto is the specific remedy to test title to an office; a bill 
 for an injunction must be dismissed. 
 
 Park— Pollution of Schuylkill.— City v. Carmany, C. P. 1886, 18 W. N. 
 C. 152. The commissioners of Fairmount park suing in the name of the 
 City of Philadelphia have a right to maintain a bill praying that a business 
 which pollutes the waters of the Schuylkill be enjoined. Under circum- 
 stances of this case the injunction was granted. 
 
 Private Property Taken for Public Use. — Heston v. Canal Commis- 
 sioners, 1850, Bright. 183, S. C. 1 Phila. 29, 7 Leg. Int. 14. An injunction 
 ■will not be granted against public officers acting under a statute, to restrain 
 them from taking private prope-'ty for public uses until suitable compensa- 
 tion be made, where the statute provides that the damages shall be assessed. 
 
 Public Road.— W. & N. B.. E. E. v. Supervisors, 1888, 4 Pa. Co. C. Rep. 
 588. An injunction will lie by a railroad company to restrain supervisors 
 authorized to open a public road, from digging away embankments or in- 
 juring the abutments of a railroad constructed or in the process of construc- 
 tion. 
 
 Remedy at Law. — Hagner v. Heyberger, 1844, 7 W. & S. 104. An in- 
 junction will not be granted to restrain a public officer from exercising his 
 duties on the ground that he is not entitled to the office. The proper remedy 
 is quo warranto. 
 
 lb. — Gilroy's Ap., 1882, 4 Out. 5. A bill praying an injunction by one 
 claimant for office against another is not proper practice. Quo warranto is 
 the exclusive remedy. 
 
 Tax — Judgments and Mortgages.- Steinman v. Lancaster, 1870, C. P. 
 Lancaster, 2 Lan. Bar, No. 14. An official will be restrained from collect- 
 ing any other than a state tax on judgments or mortgage. 
 
 lb. — Commissioners — Unseated Lands. — Everhart v. Varscoy, 1884, 4 
 Kulp, 435. An injunction will not lie to compel commissioners who have 
 bid in unseated lands sold for taxes under Act of 1815, to permit the redemp- 
 
INJUNCTION. 371 
 
 tion of the land, unless the full amount of county, road, school and poor 
 taxes assessed upon the same have been tendered within the time allotted for 
 redemption. 
 
 H. Railroads. 
 
 Bridge— Destruction of.— McGee's Appeal, 1886, 4 Amer. 471. An in- 
 junction will not lie to restrain a railroad company from destroying a bridge, 
 a part of a public street, which a municipality by a contract with said com- 
 pany under an Act of Assembly, had agreed to vacate, on the ground that 
 the street had not been vacated by a formal ordinance of the council of such 
 municipality, for equity considers that as done which ought to have been 
 done. 
 
 lb.— Swinging.— Penna. Canal Co. v. P. & E. E. E., C. P. Dauphin, 1879, 
 2 Pears. 354. A railroad company will be enjoined from putting a swinging 
 bridge over a canal but three leet from the water. 
 
 Change in Location of Road.— Gallagher v. Fayette E. E. Co., 1860, 2 
 Wr. 102. Where a railroad company is progressing with its work in a differ- 
 ent direction from that agreed upon with an adjacent landowner, the law 
 affords an adequate remedy and an injunction will not be granted. 
 
 Charter.— Edgewood E. E.'s Ap., 1875, 29 S. 357. Equity has jurisdic- 
 tion to inquire whether a railroad chartered under the Act of 1868 possesses 
 the franchises which it claims and exercises, if not it will be enjoined from 
 further exercising them. 
 
 Consent of Councils.— Huey V. Union Pass. Ey. Co., C. P. 1886, 18 W. 
 N. C. 26. An injunction was asked for against the laying of a street railway 
 on the ground that consent of councils to the use of the street had been ob- 
 tained by means of a petition to which signatures had been obtained by 
 fraud. The court held the matter under advisement ior a few days and then 
 refused the injunction on the ground that no steps had been taken before 
 councils to have leave revoked. 
 
 lb. — Williamsport E. E. Co. v. Williamsport, 1888, 5 Crnm. 1. An in- 
 junction will not lie to restrain a company, chartered subsequent to 1857, 
 from extending its main line and branches through the streets of a city with- 
 out the consent of councils. 
 
 Curtilage. — Damon's Ap., 1888, 4 Crum. 287. The prohibitive words 
 of I 10, Act of Feb. 19, 1849 [P. L. 83], forbidding railroads from passing 
 through any dwelling house, etc., embrace sufficient curtilage necessary to 
 the enjoyment of the house; but land 100 feet from and not within the same 
 inclosure as the dwelling, free access being uninterfered with is not included 
 in the prohibition. 
 
 sb. — Swift & Given's Appeal, 1 Amer. 516. "Where an Act of Assembly 
 prohibits a corporation from passing through any dwelling house without 
 consent of occupant, the restriction includes some curtilage connected there- 
 ■With. The exact extent ot that curtilage can only be determined by what 
 in a particular case may be necessary to a reasonable enjoyment of the house 
 as a dwelling. 
 
 ' Discretion.— Appeal of Manheim Township, 1888, 22 W. N. C. 149. A 
 bill in equity will not lie to restrain a railroad from exercising its discretion 
 in changing the site of a portion of a public road under Act of February 19, 
 1849. 
 
 Perry-Wharf.— Jones' Ap., 1881, 29 Pitts. L. J. 96. Equity will not 
 enjoin the building of a railroad in such a manner as to stop the using of a 
 ferry wharf during high water (perhaps ten days in a year). 
 
 Foreclosure.' — Rothschild V. Rochester & Pittsburgh R. R., C. P. Elk, 
 1886 1 Pa. Co. C, Rep. 620. Where lines of railroad in Pennsylvania and 
 
272 INJUNCTION. 
 
 New York have been consolidated, and by proceedings in New York new 
 stock and bonds issued and tlie road foreclosed, the courts of Pennsylvania 
 will appoint a receiver for the part in this State and grant a preliminary in- 
 junction restraining the vendees under the foreclosure suit from interfering 
 until the rights of the parties shall have been determined. 
 
 Grade Crossing.— Baltimore R. R. Co.'s Ap., 1881, 10 W. N. C. 530. Act 
 April 19, 1871, {P. L. 1361), makes it the duty ot courts of equity to restrain 
 the crosssng at grade of one railroad by another if there be any practical 
 method of avoiding such crossing. 
 
 lb. — Taking Property of Other Road.— Sharon Railway Co.'s Ap., 
 1888, 7 Crum. 533. The right to cross the tracks of a railroad does not carry 
 with it the right to appropriate the lands or right of way of said company. 
 
 lb.— Pittsburgh Junction R. Co.'s Ap., 1886, 7 Crum. 511. An in- 
 junction will lie to restrain a railroad company from running its line through 
 the yard of another company and crossing the yard-tracks and switches of 
 this older company. 
 
 Highway.— Schwenk v. Penna. E. R., 1883, 2 Ches. Co. E. 177. A rail- 
 road will be restrained from unreasonably interfering with or encroaching 
 ou a public highway at its crossing. 
 
 lb.— Jarden v. P. W. & B. E. E., 1838, 3 Wh. 502. An act opening a street 
 also gave a railroad the right to lay their tracks thereon, it being made the 
 duty of the railroad to grade the street. The railroad company entered 
 upon private lands where the street was to be for the purpose of surveying 
 and grading. Seld that the court would grant an injunction to restrain 
 them from so doing until the street was regularly opened by the county com- 
 missioners. 
 
 Interfering With Use of —Farmer's E. E. v. Eeno E. E., 1866, 3 S. 
 224. On a motion that detendants be enjoined against using a railroad or 
 interfering with complainant's use of it, a preliminary injunction vrill not 
 be granted, the sole object of such an order is to preserve the subject of the 
 controversey in the condition in which it was when the order is made. 
 
 Location of Boad. — Anspach v. Mahanoy E. E., N. P. 1864, 21 Leg. Int. 
 212, S. C. 5 Phila. 491. A railroad company will not be restrained as to the 
 location of its road unless it be shown that the rights of others are wantonly 
 or capriciously disregarded. 
 
 Parties— Street Railway.— Shipley v. Continental R. R., C. P. 1879, 36 
 Leg. Int. 450, S. C. 13 Phila. 128. A private citizen upon showing special 
 damage and a clear case of right, is entitled to a preliminary injunction re- 
 straining the construction of a street railway. 
 
 lb.— Eokert v. Federal St. E. R., C. P. Allegheny, 1880, 2 Sch. L. R. 188, 
 S. C. 27 Pitts. L. J. 202. Private citizens who are specially injured may 
 have a railroad restrained from acting without authority. 
 
 Sale of— Deed in Conflict With Grantee's Bights. — Keim v. Phila., 
 1886, 2 Pa. Co. C. Rep. 49. The estate of a railroad company in land con- 
 vej'ed to it, its successors, etc., as long as used for the purposes of a railroad, 
 is such that although the grantor, having the reversion, executes a deed of 
 dedication, the construction of a street or grade across the road-bed thereon, 
 will be restrained by injunction, until security for damages has been given 
 to the company. 
 
 Sheriff's Sale — Mortgage. — Loudensohlager v. Benton, 1861, 3 Gr. 384, 
 S. C. 18 Leg. Int. 196, 4 Phila. 382. Equity will restrain a sheriff's sale of 
 the equipments of a railroad until it can be ascertained whether they are 
 covered by a mortgage, but will allow the lien of the fi. fa. to continue. 
 
 Siding. — Pennsylvania R. R. Co.'s Ap., 1886, 5 Amer. 514. A railroad 
 company will be restrained by an injunction from constructing or maintain- 
 ing a track, siding or other structure upon a public street, unless the privi- 
 lege is granted by the Legislature in plain words or by necessary implication. 
 
INJUNCTION. 273 
 
 lb, — Norristown v. P. E. R. Co., 1886, 3 Montg. Co. L. Rep. 5. An injunc- 
 tion will not lie to prevent a railroad company from constructing such appur- 
 tenances as are implied from the right to lay their tracks. A siding is such 
 an appurtenance and may be constructed if done without needless and 
 wanton injury to the public highway. 
 
 Turnpike— Tolls.— Phila.& Reading E. Co. 'sAp., 1888, 5 Crum. 90. Where 
 a railroad company has purchased a turnpike for the purpose of using it to 
 complete their road, an injunction will lie to restrain the company from con- 
 tinuing to manage the turnpike as such and to charge tolls. 
 
 Two Companies on Same Street. — Norristown Co. o. Citizen's Co., 1887, 
 3 Montg. Co. L. Rep. 119. Where two companies have received authority to 
 lay tracks on a particular street, the one first to act will not be enjoined 
 from using any location it may select upon such street. But the company 
 will be restrained from connecting its track with the track of the other, or 
 from running its cars over the tracks of the other. 
 
 Unloading Cars.— Rust v. Penna. R. R., C. P. 1885, 16 W. N. C. 286. A 
 railroad company will be enjoined from unloading its cars upon the streets 
 along which it passes. 
 
 I. Highways. 
 
 [See also supra D. H.] 
 
 Blocking.— Second St. R. R. v. Morris, C. P. 1871, 1 Camp. 295, S. C. 3 
 Leg. Gaz. 334, 28 Leg. Int. 332, 8 Phila. 304. Equity will not enjoin the 
 temporary blocking of a street by the hauling of heavy articles. 
 
 lb. — ^Parties. — Seitz v. Lafayette Traction Co., 1888, 5 Pa. Co. C. Rep. 
 469. An injunction will not lie to enjoin the obstruction of a public street, 
 at the suit of a private citizen who shows no personal injury ; nor will the 
 fact that one of the plaintiffs in a bill for an injunction is a stockholder in a 
 corporation which has received specific injury, entitle him to maintain the 
 suit in his individual capacity under Act of June 19, 1871, f 1. 
 
 Encroachment. — Wilkes-Barre V. Coalville E. R., C. P. Luzerne, 1875, 4 
 Luz. L. Reg. 279, S. C. 7 Leg. Gaz. 397. Equity will enjoin an encroach- 
 ment on the highway. 
 
 lb. — Parties,— Wilkes-Barre v. Troxell, C. P. Luzerne, 1876, 5 Luz. L. 
 Reg. 133, S. C. 3 Scr. L. T. 81, 23 Pitts. L. J. 201. Equity will, at the suit 
 of the city, enjoin one who is encroaching on the highway beyond an estab- 
 lished building line. 
 
 Illegal Use of.— Phila. v. Thirteenth St. R. R., C. P. 1871, 28 Leg. Int. 
 164, S. C. 8 Phila. 648. The city is a competent party to a bill to restrain 
 an illegal use of one of its streets. 
 
 jr. Taaoation. 
 
 Assessment— Failure to Appeal From.— Harris r. McHale, C. P. 
 Schuylkill, 1878, 1 Lack. L. Rec. 215, 1 Sch. L. R. 30. Equity will not en- 
 join the collection of a tax against one who has failed to appeal from the as- 
 sessment. 
 
 lb. Van Nort's Ap., 1888, 6 Crum. 118. An injunction will not lie 
 
 bv a tax payer to restrain the collection of taxes, on the ground that the re- 
 turn by the assessor is erroneous, he himself having refused to make a re- 
 turn. There is an ample remedy at law by an appeal to the commissioners. 
 
 18— EQUITY. 
 
274 INJUNCTION. 
 
 lb. — ^Irregularity. — ^Van Storoh v. Scrantoo, 1887, 4 C. p. Rep. 94. An in- 
 junction will not lie to restrain the collection of taxes upon the mere state- . 
 ment of the assessors that they copied their assessments, instead of making 
 them on personal knowledge. 
 
 lb.— Unjust.— Crist V. Morris, C. P. 1876, 33 Leg. Int. 256, S. C. 11 Phila. 
 357. Equity will not enjoin the collection of a mercantile tax on the ground 
 that it is unjustly assessed. 
 
 Bonds.— D., L. & W. E. E. V. Scranton, 1888, 5 Pa. Co. C. Eep. 437. An 
 injunction will lie to restrain the collection of taxes levied to pay interest 
 on increased municipal indebtedness, where an ordinance has been passed to 
 raise money by the issue of bonds and no bonds have been issued. 
 
 Charity— Act of May 14, 1874. — ^Academy v. Receiver of Taxes, 1887, 
 4 Pa. Co. C. Rep. 66. An injunction will lie to restrain the receiver of taxes 
 from collecting a tax assessed on an academy which receives compensation 
 from a majority of its profits for instruction given along with its free profits. 
 
 Constitutionality. — Scranton's Ap., 1886, 3 C. P. Rep. 147. An injunc- 
 tion will lie to restrain the collection of taxes under Act of March 18, 1875, 
 containing a provision excepting from its operation cities which do not ac- 
 cept its provisions, since this is in contravention of Art. 3, Sec. 7, of Const, 
 of 1874. 
 
 lb.— Hardship.— Triff v. School District, C. P. Luzerne, 1877, 8 Lan. Bar, 
 157, S. C. 6 Luz. L. Reg. 30. Equity will not enjoin the collection of a tax 
 which is not unconstitutional on account of irregularlity or hardship. 
 
 Disbursement.— Truesdell's Ap., 1868, 8 S. 148. Equity will not re- 
 strain the collection of a tax because errors exist in the disbursement which 
 the tax is to meet. 
 
 Illegality.— O'Hara V. Miller, C. P. Luzerne, 1882, 1 Kulp, 288, S. C. 10 
 Luz. L. Reg. 27. Equity has jurisdiction to restrain the collection of an 
 illegal tax. 
 
 lb. — Remedy at Law. — Kershaw v. Water Department, C. P. 1885, 15 
 W. N. C. 415. Equity will not enjoin a branch of the government from col- 
 lecting a tax which may be illegal; the remedy is to pay under protest and 
 sue at law. 
 
 lb. — Delaware Canal Co. v. School District, C. P. Luzerne, 1878, 7 Luz. 
 L. Reg. 93. "Whenever a tax is illegal or irregular, the remedy of the tax- 
 payers is to file a bill for an injunction. 
 
 lb. — McClintock v. Remwel, 1887, 4 Kulp, 327. In cases in which there 
 is no jurisdiction in tax officers to assess and levy taxes on land, equity will 
 interfere, and there need be no appeal to the board of revision. 
 
 lb.— Woolsey v. Durkin, C. P. Luzerne, 1878, 7 Luz. L. Reg. 97. Where 
 a levy and assessment are not in strict accordance with the act authorizing 
 them the collection of the tax will be enjoined. 
 
 Land of Gas Company.— City of Pittsburgh's Ap., 1889, 8 Crum. 374. 
 Equity will enjoin a city from assessing a tax upon the pipes of a gas com- 
 pany laid in the streets, either as land or as part of the company's capital 
 stock. 
 
 Land of Water Company. — Roaring Creek Water Co. V. Commissionera, 
 1888, 6 Pa. Co. C. Rep. 473. An injunction will not lie to prevent the col- 
 lection of taxes assessed upon land purchased by a water companj for the 
 future extension of its business. 
 
 Notice— Non-Resident.— Miller v. Gorman. 1861, 2 Wr. 309. Where no 
 notice or opportunity has been given by the supervisors to non-residents to 
 work out their road tax, an injunction will be granted to restrain the collec- 
 tion of the tax by suit. 
 
 Parties. — Mott v. Pennsylvania R. R. Co., 1858, 6 C. 9. A taxpayer has 
 a standing in court to prevent the state from bartering away its power of 
 taxation. 
 
INJUNCTION. 275 
 
 lb.— "Wheeler v. Phila., 1875, 1 W. N. C. 205. The right of a taxpayer 
 to proceed in equity to test the validity of a law authorizing an assessment 
 of taxes or an expenditure of public money is well established. 
 
 lb.— Molntyre v. Perkins, C. P. 1873, 2 Luz. L. Eeg. 161. Taxpayers 
 have always a standing in courfjfto restrain the public servants from spend- 
 ing money in ways contrary to law. 
 
 lb.— Sank V. Philadelphia, 1871, 4 Brews. 133, S. C. 8 Phila. 117, 28 Leg. 
 Int. 316, 1 Camp. 259, 3 Leg. Gaz. 313. Taxpayers may maintain a bill to 
 enjoin the city takipg action under a void ordinance. 
 
 lb.— Phila. V. Cochran, 1877, 4 W. N. C. 222, S. C. 34 Leg. Int. 160, 24 
 Pitts. L. J. 150. An injunction will not Issue at the suit of a city against 
 its own officers to restrain the collection of a State tax, the State not being a 
 party to the bill. 
 
 lb. — Multiplicity of Suits.— Delaware E. E. V. Broderick, C. P. Luzerne, 
 1876, 5 Luz. Leg. Eeg. 101. Equity will only enjoin the collection of a tax 
 in order to prevent multiplicity of suits or the clouding of a title. 
 
 lb.— lb.— Sallade v. School Directors, 1869, 2 Pears. 48. The illegal col- 
 lection of a tax may be restrained at the suit of many where one would be 
 left to his legal remedy. 
 
 Be-assessment. — Eeynolds v. Gilchrist, 1885, 4 Kulp, 189. When a re- 
 assessment of land was made because it was alleged the land had increased 
 in value by being sold in lots, an injunction was granted to restrain the as- 
 sessment from being acted upon. 
 
 Ketums. — Pauli v. Seward, 1887, 4 C. P. Eep. 37. An injunction will lie 
 to restrain the collection of taxes under Act of June 30, 1885, when plain- 
 tiff made return in due time after receipt of assessor's blank, but assessor 
 refused to receive the same, having already returned his books with an esti- 
 mated assessment against the plaintiff. 
 
 lb.— Albright v. Van Nort, 1887, 4 C. P. Eep. 138. The discretion of an 
 assessor making a return after the failure of a taxable to do so under Act of 
 June 30, 1885, must be duly exercised or it will be illegal. 
 
 Sale — Irregular Warrant. — Shoemaker v. Murray, C. P. Dauphin, 1860, 
 1 Pears. 279. Equity will not restrain a tax collector from selling property 
 under what is claimed to be an irregular warrant. The remedy is trespass. 
 
 lb.— Remedy at Law.— Mudey's Ap., 1879, 1 Sch. L. E. 26. Equity 
 will not interfere to prevent a tax sale where all the proceedings have been 
 regular; the remedy at law is adequate. 
 
 Unauthorized. — Conuer's Ap., 1883, 7 Out. 356. An injunction will be 
 granted to restrain the imposition of a greater tax than authorized by the 
 legislature, or to restrain the collection of a tax for a purpose not authorized. 
 
 lb.— St. Clair School Board's Ap., 1873, 24 S. 252. Equity will restrain 
 the collection of a tax levied in excess of authority, but not on a showing 
 that other money has been collected and squandered. 
 
 K. Trespass. 
 
 Coal Lands— Threatened.— Munson v. Tryon, D. C. 1867, 24 Leg. Int. 
 76, S. C. 6 Phila. 395. Where one in possessi(jn of coal lands is threatened 
 with acts of trespass and waste by another claiming title, an injunction is 
 the proper remedy. 
 
 Irreparable Injury.— Wilkes-Barre Coal Co. V. Elliott, C. P. Luzerne, 
 1873, 2 Luz. Leg. Eeg. 31. Equity will not interfere by preliminary injunc- 
 tion to restrain an alleged trespass unless the title of the complainant be 
 clear and a strong case of irreparable mischief be made out. 
 
276 INJUXCTION. 
 
 Permanent Nature of— Masson's Ap., 1871, 20 S. 26. A trespass of a 
 permanent nature will be restrained by injunction. 
 
 Repeated.— Sunderland v. Whiteside, C. P. 1870, 1 Lan. Bar, No. 38. 
 Equity will enjoin against a constantly occurring trespass. 
 
 lb. — Sheetz's Ap., 1860, 11 C. 88. Our courts have jurisdiction to restrain 
 by injunction repeated acts of trespass. 
 
 lb.— Sunderland v. Whiteside. C. P. 1870, 27 Leg. Int. 12, S. C. 7 Phila. 
 Zoo. Equity will enjoin repeated and continued acts of trespass. 
 
 i. Continuing and Irreparable Injury. 
 
 Advantages and Inconvenience. — Denehey v. Harrisburg, C. P. Dau- 
 phin, 1878, 2 Pears. 330. Equity will not enjoin what is a great advantage 
 to many and a slight inconvenience to a few. 
 
 Compensation^nadequacy of. — New Boston Coal Co. v. Pottsville 
 Water Co., 1867, 4 S. 164. A preliminary injunction should only be granted 
 in cases where there would be an inability to afford compensation for the 
 wrong which would ensue it the injunction were not granted. 
 
 Damages Conjectural. — Commonwealth ■(■. Pittsburgh, etc., E. E., 1854, 
 12 H. 159. An injunction will be granted to protect a right although it ap- 
 pears that but little injury is done, if that mj ury is of a continuing charac- 
 ter and estimable only by conjecture. 
 
 Essentials in Granting.— Kelly v. City of Phila., C. P. 1878, 35 Leg. 
 Int. 274, S. C. 12 Phila. 423. Where a complainant asks for a special in- 
 junction he must show that in case it is not granted he will suffer irrepara- 
 ble injury. 
 
 Ib.^Sparhawk v. Union R. E., 1867, 4 S. 401. Equity will not restrain 
 an act illegal merely; there must also be irreparable mischief occasioned 
 by it. 
 
 lb. — ^Clark's Ap., 1869, 13 S. 447. Injunction is a remedy in equity to 
 restrain or prevent such acts of wrong as would, if done, result in irrepar- 
 able injury to the property of the complainant. 
 
 lb.— Easton v. Railway Co., 1887, 3 Pa. Co. C. Eep. 639. To entitle a 
 party to a preliminary injunction, it must appear clearly that the act com- 
 ijlained of is without right and works a detriment. 
 
 lb. — Brown's Ap., 1869, 12 S. 17. When the terms and obligations of a 
 contract are in dispute a preliminary injunction should not be granted. Mis- 
 chief or damage which is susceptible of compensation in damages is not irre- 
 parable. 
 
 Illegality.— Erie E. E. V. Casey, 1856, 2 C. 287. An injunction will only 
 be granted to restrain an illegal injury. 
 
 Public Nuisance. — Bunnell's Ap., 1871, 19 S. 59. Our courts will re- 
 strain a public nuisance only where the right is clear and the injury is irre- 
 parable. 
 
 M. Contracts in Restraint of Trade. 
 
 Advertising Removal— Sale of Good Will.— Hall's Ap., 1869, 10 S. 
 458. Equity will restrain one who has sold his good wijl from advertising 
 that he has removed to another location. 
 
 Essentials of Contract.— MoClurg's Ap., 1868, 8 S. 51. Equity will 
 •specifically enforce by injunction a contract in restraintof trade which is par- 
 tial, reasonable and upon a valuable consideration. 
 
IXJUXCTION. 277 
 
 Establishing Relative in Business.— Carroll ». Hickey, C. P. 1875, 1 W. 
 N. C. 198, 32 Leg. Int. 50, 10 Phila. 108. One having agreed not to carry- 
 on a certain trade in a certain neighborhood will be restrained from setting 
 up his minor nephew in the business and himself doing the work for a salary. 
 
 lb. — ^Harkinson's Ap., 1875, 28 S. 196. One who for a valuable consider- 
 ation had agreed not to follow a certain business within certain limits, set 
 her son up in the business in her own property and gave him the benefit of 
 her advice. There was no proof of special damage, and from the testimony 
 it was doubtful whether the mother had any interest in the business, there- 
 fore an injunction was refused. 
 
 Manufacture of Ochre in Lehigh County.— Smith's Appeal., 1887, 4 
 Lnz. L. Eeg. 125. A bill in equity will lie to restrain one agreeing' not to 
 engage in the manufacture of ochre in the county of Lehigh or elsewhere, 
 from cajrying on the business in the county of Lehigh. 
 
 Publishing Newspaper. — Given v. Given, 1886, 3 Luz. L. Eeg. 289. A 
 bill in equity will lie to restrain one who has contracted not to engage in the 
 business of publishing a newspaper in a particular borough for five years 
 from violating his contract. 
 
 Remedy — ^Injunction Proper — Smithes Ap., 18§6, 3 Amer. 579. An 
 injunction is the proper remedy to restrain one from engaging in a busi- 
 which he, for a valuable consideration, had covenanted not to engage in "iu 
 Lehigh county or elsewhere." 
 
 Specific Performance— Eemedy at Law.— Parker v. Graham, 1850, 1 
 Pars. 476. Equity will not generally specifically enforce contracts touching 
 personal estate. But if the remedy at law is totally inadequate it will. 
 Therefore where one has sold his good will in a business and agreed not to 
 carry on the same business within a certain distance, which restraint is rea- 
 sonable, equity vrill grant specific execution by restraining the latter from 
 violating his contract. 
 
 Spirit of Agreement Enforced. — Lukens v. Kelley, C. P. 1857, 14 Leg. 
 Int. 348, S. C. 2 Phila. 380. Where one has agreed not to carry on the 
 tailoring business within a certain city, equity will enforce the spirit of the 
 agreement by enjoining him from selling cloths in a store in which tailoring 
 is also carried on. 
 
 N. Property of Married, Women. 
 
 Answer— Denial of Title.— Dyer v. People's Bank, D. C. 1874, 31 Leg. 
 Int. 28, S. C. 9 Phila. 159. A married woman's property will not be pro- 
 tected from sale on an execution against her husband where the answer of 
 the creditor denies her title. 
 
 Contract of Sale. — Saeger's Ap., 1880, 15 N. 479. Equity will restrain 
 the sale of a wife's property for her husband's debt where the right to sell 
 depends on a contract, and under the terms of the contract the right is gone. 
 In such case the remedy at law is inadequate. 
 
 Execution Against. — Hunter's Ap., 1861, 4 Wr. 194. Since Act April 
 1848, providing that a married woman's property "shall not be subject to lev;/ 
 and execution for the debts" of her husband, a levy on her property for such 
 purpose is an act contrary to law and will be restrained by injunction. 
 
 Ilj._Bell V. Savage, C. P. Berks, 1862, 1 "Woodw. Dec. 30. Equity will 
 only restrain the sale of property claimed by the wife for the debts of her 
 husband where she makes out a clear case. 
 
 Tt. Lyon's Ap., 1869, 11 S. 15. Where creditors of a husband purchase 
 
 a mortgage against the land of his wife, and issue execution on it for the 
 purpose of securing their judgments against the husband, equity will re- 
 
278 INJUNCTION. 
 
 strain their proceedings and compel tliem to accept the money due on the 
 mortgage. 
 
 lb.— Hoffner v. Girard Nat. Bank, C. P. Delaware, 1881, 1 Del. Co. E. 
 • 182, 187. Equity will not ordinarily restrain one from levying on and sell- 
 ing an imaginary interest of his debtor in any property; but where the pro- 
 perty is the wife's and her title is not in any way disputed an injunction 
 may be granted. 
 
 lb.— Spangler v. Wolf, C. P. York, 1880, 1 York L^ R. 89, S. C. 2 Sch. L. 
 R. 74. An injunction will be granted to protect the personal property of a 
 married woman from sale by her husband's creditors as his property. 
 
 lb.— Walker's Ap., 1886, 2 Amer. 579. A sale of a wife's land by the 
 husband's creditor may be enjoined, inasmuch as a sale would be in viola^ 
 tion of a clear and express statutory prohibition. 
 
 lb.— Smith II. Schmidt, C. P. 1870, 1 Camp. 58, S. C. 2 Leg. Gaz. 124. 
 Unless a wife makes out a very clear case her property will not be protected 
 by injunction from a sale under an execution against her husband. 
 
 lb.— Simpson v. Bates, C. P. 1873, 5 Leg. Gaz. 219. S. C. 30 Leg. Int. 226, 
 
 10 Phila. 66. Equity will interfere to protect a wife's property from levy 
 and sale by her husband's creditors, only where it appears that she has not 
 been guilty of collusion with her husband in holding his creditors at bay, 
 where her title is undisputed, and where the sale would injure it. 
 
 lb.— Boyle V. Ramsey, N. P. 1870, 1 Camp. 45, S. C. 2 Leg. Gaz. 73. 
 Equity will not enjoin the sale of a wife's real estate on an execution issued 
 against the husband except in a very clear case. 
 
 lb.— Allen v. Gordon, 1869, 3 Brews. 543, S. C. 26 Leg. Int. 89, 7 Phila. 
 280. A creditor of a husband will not be restrained from selling the wife's 
 property where her separate estate is not clearly disclosed in the pleadings. 
 
 Husband Entering Home. — Bell v. Bell, 1887, 4 Kulp, 378. A married 
 woman must show more than mere right of property in order to obtain an 
 injunction restraining her husband from entering her house. 
 
 Husband Selling and Encumbering Estate.— Lutz v. Lutz, 1886, 4 
 Luz. L. Reg. 131. A preliminary injunction will not be granted at the in- 
 stance of a wife, to prevent her husband from selling or encumbering his real 
 or personal estate, even though it appear that his intention is to desert his 
 family. 
 
 Judgments— Confession of— Fraud.— Black v. Black, 1888, 5 Pa. Co. C. 
 Rep. 356. An injunction will lie by a married woman to restrain execution 
 on judgments confessed by her husband, through conspiracy with the plain- 
 tiff, to deprive the wife of her dower rights and maintenance and to prevent 
 the collection of a forfeited recognizance against the husband. 
 
 Laches. — Seal v. Northern E. E., 1868, 1 Pears. 547. An injunction will 
 not be granted even in favor of a feme covert who has slept on her rights for 
 fifteen years, especially where there is a legal remedy. 
 
 Sole and Separate Use — Trust — Ejectment. — Thompson's Ap., 1884, 
 
 11 Out. 559. Equity will protect a married woman from ejectment brought 
 by one who has purchased her separate property on an execution against 
 lier husband, where it appears that the ejectment is not bona fide but in 
 the nature of a trust to compel the wife to pay her husband's debt. 
 
 Title, Disputed.— Winch's Ap., 1869, 11 S. 424. When the title of 
 wife is disputed, creditors of her husband have a right to proceed against the 
 property and sell whatever interest the husband has therein, and it is error 
 for equity to assume jurisdiction and enjoin such proceedings. Equity will 
 restrain a creditor in the use of legal process only where the proceedings are 
 plainly unjust and calculated to injure another. 
 
 lb.— Undisputed.— Allen v. Benners, C. P. 1873, 30 Leg. Int. 76, S. C. 10 
 Phila. 10. The property of a married woman will be protected from sale as 
 llif property of her husband where her title is clear and undoubted. 
 
INJUNCTION. 279 
 
 Transfer— Compelling— Payment of Rents.— Wheelock v. Wheelnck, 
 C. P. Wyoming, 1874, 1 C. P. Rep. 87. In equitable proceedings by a wife 
 to compel her husband to transfer to her real estate, the court will enjoin the 
 tenant from paying rent to the husband, but will not make a preliminary 
 decree as to the possession. 
 
 O. Proceedings at Law. 
 
 Alleging Interest— Levy.— Wiser's Ap., 1881, 9 "W. N. C. 508. Equity 
 has no jurisdiction to restrain a creditor from levying on land in which he 
 claims his debtor has an interest. 
 
 Answer— Allegations Denied by.— Ashton v. Parkinson, C. P. 1870, 1 
 Camp. 99, S. C. 2 Leg. Gaz. 412, 28 Leg. Int. 5, 8 Phila. 3.38. Equity will 
 not enjoin the collection of a debt where the facts of the bill are denied by 
 the answer. 
 
 Assignment— Execution Creditors— Assigned Property.— Folmer v. 
 Shenandoah Valley Bank, C. P. Schuylkill, 1881, 2 Sch. L. R. 37. Execu- 
 tion creditors of an insolvent corporation, which has made an assignment, 
 will nut be restrained from selling the property of the latter on the ground 
 that it may be sacrificed. 
 
 lb. — Judgment Creditor.— Reeser v. Johnson, 1874, 26 S. 313. A cred- 
 itor, who had obtained a judgment against an insolvent debtor before the 
 latter was adjudged a bankrupt, but after an attempt was made to assign for 
 creditors, will not be restrained from selling the real estate under his judg- 
 ment; he may sell and the validity of his judgment will then be tried by 
 ejectment. 
 
 Claims Less Than $5.33.— Wolf v. Schleiflfer, 1868, 2 Brews. 563. Equity 
 will not enjoin the defendants from bringing suits because the amount of 
 each claim is less than |5.33. There is a remedy by certiorari. 
 
 Clear Case. — Hartnack v. James, C. P. 1871, 1 Camp. 364, S. C. 3 Leg. 
 Gaz. 391, 28 Leg. Int. 380, 8 Phila. 317. Equity will enjoin proceedings at 
 law only in a very clear and urgent case. 
 
 Contract— Rescission.— Babcock v. Case, 1869, 11 S. 427. After a verdict 
 for plaintifif in a suit to rescind a fraudulent contract which has been exe- 
 cuted, equity can restrain execution until plaintiff restores the considera- 
 tion, if it appears that such restoration ought to be made. 
 
 Execution. — Taylor's Ap., 1880, 12 N. 21. Equity will not restrain an 
 execution creditor from selling any property that he may think belongs to 
 the debtor, unless he is clearly and undeniably proceeding against right and 
 justice, to abuse the process of the law to the injury oi' another. 
 
 lb. — Given's Ap., 1888, 6 Crnm. 260. Although an injunction will lie 
 restraining the execution of a judgment where the defendant has had no day 
 in court, yet where pending an appeal from a decree erroneously dismissing 
 a bill in equity, the plaintiff proceeded by rule and obtained an order open- 
 ing the judgment, the decree will be affirmed. 
 
 lb.— Act of June 16, 1836. — Gilder v. Merwin, 1841, 6 Wh. 522. 
 Under the Act June 16, 1836, Sec. 13, the Supreme Court has no power to 
 grant an injunction against issuing execution on a regular judgment, because 
 such execution is not an act " contrary to law." 
 
 lb. — Ec[uitable Defence. — Lebanon Mutual Ins. Co. V. Erb, C. P. Centre 
 Co., 1885, 16 W. N. C. 113. Whether or not equity will enjoin an execution 
 depends on the circumstances of each case. It will not be done where the 
 complainant could have used his equity as a defence in the action at law 
 from which the execution springs. 
 
 lb— Interpleader— Mortgage.— Echfelt i. Starr, N, P. 1864, 21 Leg. 
 
280 INJUNCTION. 
 
 Int. 389j S. G. 5 Phila. 497. Equity will not, at the suit of mortgagees, en- 
 join judgment creditors from levying on the personal property of a corpora- 
 tion, but allow the interpleader law to be applied. 
 
 lb-— Judgment.— Lebanon Nat. Bank's Ap., 1875, 1 W. N. C. 627. Where 
 a judgment bond has been given by a debtor to a trustee for his creditors, 
 the creditors agreeing that their claims should be paid in certain instalments, 
 the court will enjoin creditors from proceeding on the judgment individually 
 against the will of the other creditors and the trustee. 
 
 lb. — Levy — Averment of Interest. — Walker's Ap., 1886, 2 Amer. 579. 
 Afourt of equity will not restrain a creditor by injunction from levying on 
 land in which he avers that his debtor has an interest. 
 
 lb.— Partnership.— Kapp v. Hains, 1878, 5 W. N. C. 489. Equity will 
 not restrain a judgment creditor from issuiag execution thereon, on the 
 ground that his debtor is his partner and between them there exists an open 
 account. 
 
 lb. — lb. — McDowell's Ap., 1889, 8 Amer. 381. Where a contractor enters 
 into an agreement with a third party who is to furnish most of the funds for 
 the carrying out of the contract, which agreement contains mutual cove- 
 nants, and the third party after a time breaks his covenant to furnish money 
 but the other party fulfils his part and finishes the work, the latter can 
 maintain a bill in equity to enjoin proceedings at law in which the other is 
 seeking to collect his full share ol the profits from the party for whom the 
 work was done. But as he failed to rescind the contract with promptness, 
 he is not entitled to claim that none of the profits shall go to his partner. 
 The latter Is entitled to his share less any loss incurred by his breach of 
 contract. 
 
 lb. — Prior Mortgage Creditor — Personalty. — Bergey v. Kline, 1888, 4 
 Montg Co. L. Rep. 160. An injunction will lie to prevent the sale of manure 
 heaped up on a farm under a writ of fieri facias, such sale predjucing the 
 rights of a prior mortgage creditor. 
 
 Habere Facias Possessionem. — Fox v. Watts, N. P. 1870, 1 Camp. 81, 
 S. C. 2 Leg. Gaz. 209. Equity will not restrain the execution of an habere 
 facias possessionem issued under a judgment ol the Supreme Court. 
 
 Irreparable Mischief.— Brown's Ap., 1870, 16 S. 155. Equity cannot re- 
 straiu regular legal proceeding on the ground of irreparable mischief. 
 
 Judgment— Day in Court.— Cheyney v. Wright, C. P. 1870, 27 Leg. Int. 
 21, S. C. 7 Phila. 431. Proceedings on a judgment will not be enjoined 
 where the complainant has actually had a day in court. 
 
 lb.— Irregularity.— Eyster's Ap., 1870, 15 S. 473. A bill in equity will 
 not lie to restrain a judgment creditor from proceeding on his judgment on 
 the ground that the judgment is irregular. The remedy is at law. 
 
 Lunatic— Creditors. — Eckstein's Est., 1842, 1 Pars. 59. A creditor of a 
 lunatic will be restrained from issuing execution. He must apply to the 
 court to have his claim paid, out of the estate. 
 
 Magistrate— Possession of Real Estate. — Williams v. Enterprise B. & 
 L. Assoc, C. p. Lackawanna, 1883, 5 L. T. N. S. 141. An injunction will 
 not be granted to stay proceedings before a magistrate under the law to ob- 
 tain possession of real estate purchased at sheriff's sale. 
 
 Mechanics' Lien— Lessee.— Houston's Ap., 1878, 6 W. N. C. 162. Where 
 a mechanic has filed a lien against a tenant who holds an improvement lease 
 and threatens to sell the property thereunder, equity will restrain him at 
 the suit of the owner, 
 
 lb.— Mortgage.— Deacon V. Harris, C. P. 1880, 8 W. N. C. 403, S. C. 37 
 Leg. Int. 222, 14 Phila. 59. One who has a mechanics' lien is entitled to a 
 decree enjoining a mortgagee who was given mortgages witliout considera- 
 tion which were made to cut out mechanics' liens, from assigning the same. 
 
 Mortgage— Affidavits.— Longstreth v. Thornton, C. P. 1880. 9 W.N. C. 
 
INJUNCTION. 281 
 
 206. Execution -will not be stayed on a judgment entered on a bond and 
 warrant, because in a suit on the accompanying mortgage there has been filed 
 a sufficient affidavit of defence, unless the facts presented in that affidavit 
 convince the conscience of the court sitting as a chancellor. 
 
 lb.— Judgment Creditors— Interpleader.— Eckfelt v. Starr, N. P. 1864, 
 21 Leg. Int. 389, S. C. 5 Phila. 497. Equity will not, at the suit of mort- 
 gagees, enjoin judgment creditors from levying on personal property of a 
 corporation but allow the interpleader law to be applied. 4 
 
 lb.— Purchase— Notice.— Gordon v. Baugher, C. P. 1875, 2 W. N. C. 14. 
 A mortgagee who, with knowledge that his mortgagor was a naked trustee, 
 having bought in the property under the mortgage without notice to the real 
 owner, and having obtained a justice's judgment of possession against the 
 latter, will be enjoined from further proceedings to obtain nossession. 
 
 Bemedy at Law.— Erie Canal Co. v. Lowrie, 1858, 5 Clark, 464, S. C. S 
 Am. L. Reg. 750. Equity will not enjoin proceedings at law. when they 
 present an adequate remedy in themselves. 
 
 lb.— Appeal.— Pine Knot Coal Co. v. Keugardt, 1873, 1 Post. 143. Equity 
 will not restrain a party acting in accord with his legal right, where if there 
 be injury done, there is a remedy by appeal. 
 
 Sheriff's Sale.— Wiser's Ap., 1880, 8 "W. N. C. 354, S. C. 2 Sch. L. R. 
 246. Equity will not enjoin a sheriff's sale of property on the ground that 
 the debtor has no interest or title therein. 
 
 Sheriff's Vendee— Distress.— Williams v. Flood, C. P. 1875, 1 W. N. C. 
 199. An inj unction will not be granted to restrain a sheriff 's vendee from 
 levying a distress for rent against the defendant who has remained in pos- 
 session. 
 
 Tacking— Mortgage.— Rose v. Hillary, C. P. 1875, 1 W. N. C. 200. A 
 mortgagee who has been tendered his full debt will be restrained from sell- 
 ing on the mortgage although he has other claims. 
 
 Technical Defence.— Appeal of City of Pittsburgh, 1888, 45 Leg. Int. 
 248. An injunction will not lie to restrain proceedings in law when the bill 
 shows merely the complainant's technical defence at law. There must be 
 some equities which could not be asserted at law. 
 
 Usury. — Sallade v. Albertson, 1873, 1 Post. 75. Equity will enjoin one 
 seeking to collect usurious interest by legal means. 
 
 P. Municipal Corporations. 
 
 Awarding Bids.— Safford v. Pittsburgh, 1888, 6 Pa. Co. C. Rep. 107. An 
 injunction will lie to restrain a city from awarding bids to any but the lowest 
 bidder when the integrity of the lowest bidder, his skill and qualification 
 are not questioned, and where the only element in the decision is that a 
 particular kind of article will cost less for repairs and is better understood 
 by the employees of the city. 
 
 lb. — Constitutional Bight. — Schall v. Norristown, C. P. Montgomery, 
 1875, 6 Leg. Gaz. 157. A municipal corporation, acting in pursuance of a 
 constitutional law, cannot be restrained. ' 
 
 Contracts — Illegal. — Boies v. Scranton, C. P. Lackawanna, 1888, 1 Lack. 
 L. Rec. 261, S. C. 1 L. T. N. S. 54. Equity will restrain a municipality 
 feom paying orders which it has issued on illegal contracts, as long as the 
 orders remain in first hands. 
 
 Corporation. — Devereaux V. Crawford, C. P. Venango, 1879, 27 Pitts. L. 
 J. 22. Equity will restrain a municipal corporation from invading the 
 franchises of a corporation not municipal. 
 
282 INJUNCTION. 
 
 Culverts. — Goalden v. Scranton, 1886, 3 Luz. L. Reg. 340. A municipal 
 corporation will be enjoined from collecting surface waters into an artificial 
 channel and discharging them upon private land without compensation first 
 paid or secured. 
 
 lb. — Appeal of City of Scranton, 1888, 6 Crum. 97. An injunction will 
 not lie to restrain a tounicipality from the reconstruction and enlargement 
 of a culvert across a street, upon the bill ot a property owner who alleges 
 th^t the increased force and volume of water will injure his lot. 
 
 Individuals' Rights — Encroacliment. — Matthews i;. Scranton, C. P. 
 Luzerne, 1878, 7 Luz. L. Reg. 108, 127. Equity will restrain a municipal 
 corporation from encroaching on the rights of individuals. 
 
 Jurisdiction— Supreme Court's Option.— Wheeler v. Philadelphia, 1875, 
 27 S. 338. Under the Constitution of 1873, the Supreme Court has original 
 jurisdiction in equity to restrain municipal (as well as other) corporations, 
 from doing acts contrary to law and prej udicial to the interest of the com- 
 munity; but it is optional with the Supreme Court whether it will entertain 
 the bill originally. 
 
 Ordinances.— Williamsport v. McFadden, C. P. 1884, 15 W. N. C. 269. 
 Equity will not lend its aid to enforce by injunction the ordinance of a 
 municipal corporation, restraining a certain act unless that act is shown to 
 be a nuisance per se. 
 
 Parties — Boundaries. — Pittsburgh's Ap., 1875, 29 S. 317. A private 
 citizen may maintain a bill against a city about to extend its boundaries 
 without authority. 
 
 lb. — ^Elected Councilmen. — Ayers' Appeal, 1889, 7 Crum. 266. An in- 
 junction will not be granted to restrain councilmen of a city of the first class 
 from continuing to perform their functions until their term has expired, upon 
 the complaint of parties elected to said offices under Act of May 24, 1887. 
 This act is inoperative in a city of the fifth class having a single branch 
 council, until the expiration of the terms of all councilmen in office at the 
 date of the approval of the act. 
 
 Q. Pa/rtnership. 
 
 Affidavits— Allegations Denied in.— App v. Collins, C. P. 1874, l w. 
 N. C. 6). A preliminary injunction against a firm will not be granted in 
 favor of one claiming to be a partner where the affidavit of defendants deny 
 that he is a partner. 
 
 Bank Cashier— Act of March 31, I860.— Appeal of Allen et at., 1888, 
 2 W. N. C. 136. The sixty-fourth section of the State Penal Code of March 
 31, I860 (P. L. 399), providing that it shall be a misdemeanor for a bank 
 ca.shier to engage in any other business has no application to cashiers of 
 national banks, and an injunction will lie by a continuing and liquidating 
 partner of a firm to restrain a party attempting to interfere with said partner 
 and cashier on that ground. 
 
 Dissolution — Parties. — Simms v. Bronse, C. P. 1873, 30 Leg. Int. 84, S. 
 C. 10 Phila. 13. The prayer of one claiming to be a partner and asking for 
 a receiver and an injunction, will not be granted unless he can show himself 
 to be actually a partner. 
 
 Mortgaged Property — Sale.— Stanhope v. Suplee, 1868, 2 Brews. 455. 
 Equity will restrain one partner at the suit of his associate from removing 
 machinery necessary to the business, but will not decree a sale of mortgaged 
 property without hearing from the mortgagee. 
 
 Receiver. — Sloan v. Moore, I860, 1 Wr. 217. Equity will appoint a re- 
 ceiver and restrain a partner from interfering with him, where the partner- 
 
INJUNCTION. 283 
 
 silip is nearing its limit, and the partners cannot agree upon a dissolution 
 and the business (publication of a paper) will be hurt greatly by being in- 
 terrupted. 
 
 lb.— Page V. Vankirk, 1866, 1 Brews. 282, S. C. 24 Leg. Int. 28, 6 Phila. 
 264. Equity has jurisdiction of a bill praying for an injunction and a re- 
 ceiver for a partnership although the articles provide for six months' notice of 
 dissolution and a reference to arbitrators. 
 
 R. School Directors. 
 
 Bonds— Issue of— Limit.— Appeal of Hutchinson, 1884, 4 Penny. 84. 
 An injunction will be granted at the instance of taxpayers of a sub-school 
 district whose indebtedness shall not, by Act of Assembly, exceed |50,000, 
 to restrain the issue of bonds representing an indebtedness in excess of that 
 limit. 
 
 Consolidation of Districts.— Engle v. Eeichard, 1887, 4 Kulp, 361. An 
 injunction was granted to restrain the directors of the three independent 
 school districts of the city of Wilkes-Barre from consolidating under Act of 
 May 28, 1887. 
 
 Discretion of.— Hughes v. School Directors, 1889, 5 Kulp, 229. Equity 
 will not interfere by injunction with the discretion of a school board as to 
 the erection of a building in place of one burned, unless a very clear case of 
 abuse is made out. Affidavits in support of the injunction must be specific 
 and positive. 
 
 Expelling Members. — Lewis v. Benedict, C. P. Lackawanna, 1883, 5 L. 
 T. N. S. 55. An injunction will not be granted to restrain a board of school 
 controllers from expelling one of its members; the remedy is at law. 
 
 Statutory Remedy.- Price v. School Controllers, C. P. Lackawanna, 
 1878, 1 Lack. Bar, 47. Equity will enjoin school directors against illegal 
 acts, although there be a penalty affixed to the statute prohibiting them. 
 
 Taxation.— Matthews v. City of Scranton, 1878, 1 La«k. L. Rec. 199. An 
 injunction will not be granted to restrain a municipal corporation in the per- 
 formance of its ordinary and necessary duties, including the levying and 
 collection of taxes. 
 
 lb.— Van Storch v. School District, 1887, 4 C. P. Rep. 99. The Act of May 
 23, 1874, is not unconstitutional as producing local results. It is an option 
 to those school districts operating under previous special legislation to retain 
 such special legislation or come in under the general law. An injunction 
 will not lie to restrain the collection of taxes under this act, therefore. 
 
 lb.— Jones v. Gilroy, C. P. Lackawanna, 1882, 13 Lan. Bar, 207, S. 0. 4 
 L. T. N. S. 89. One school board cannot restrain, by injunction, another 
 school board from collecting a tax, the remedy is by quo warranto. 
 
 lb. — Collector — Appointment of — Locust Mt. Coal Co. v. Curran, 1874, 
 2 Fost. 249, S. C. 31 Leg. Int. 334, 3 Luz. Leg. Reg. 193, 6 Lan. B. No. 20, 
 6 Leg. Gaz. 334, 10 Phila. 543. In an equity proceeding to restrain the col- 
 lection of a school tax, the court will not inquire into the validity of the ap- 
 pointment of the collector and will only restrain where the tax is illegal. 
 
 S. Unincorporated Association. 
 
 Collection of Debts — Fraud. — Rowlands v. Workingmen's Association, 
 C. P. Lackawanna, 1873, 1 Lack. L. Rec. 456. An injunction will not be 
 granted to restrain a building association from collecting debts from its 
 
'iM INJUNCTION. 
 
 members on the ground that its former officers acted fraudulently, there 
 being no charge against the officers in charge at the time. 
 
 DiscontinuinglBranch of Business.— Keller v. Northern Liberty Assoc, 
 C. P. 1876, 2 W. N. 6. 365. Equity will not enjoin an incorporated associ- 
 ation for profit from discontinuing a branch of its business. 
 
 Expelling Member.— Powell v. Abbott, C. P. 1880, 9 W. N. C. 231. 
 Equity has jurisdiction to restrain the unlawful suspension of a member of , 
 an uiiincorporated society. 
 
 lb.— Metropolitan Base Ball Club v. Simmons, C. P. 1885, 17 "W. N. C. 
 153, S. C. 42 Leg. Int. 521, 1 Pa. Co. C. Eep. 134. Equity will enjoin an un- 
 incorporated association from expelling a member without notice and trial, 
 although there are no assets belonging to the association. 
 
 T, Water Rights. 
 
 A^acent Owners — Springs. — Lyte v. Herr, 1884, 4 Penny. 262. Where 
 the owner of tract No. 1 had the right to the use of a spring on No. 2, that 
 the owner of No. 2 could not be enjoined from digging a well on his own 
 land, although he may in some unknown way, interfere with the flow of 
 water to the reserved spring. 
 
 Protection of. — Reynolds v. Baylor, C. P. Lackawanna, 1882, 4 L. T. N. 
 S. 185. Equity will protect water rights by a preliminary injunction. 
 
 lb.— Bolton V. Schwartz, 1888, 4 Montg. Co. L. Eep. 198. Equity will 
 assume jurisdiction of a case where the complaint charges injuries and 
 threatened injuries from an unlawful interference with a water course. 
 
 Water Bent — Purchase.— Girard Ins. Co. v. Philadelphia, 1879, 7 N. 
 393. One purchasing property subject to back water rent cannot obtain 
 relief in equity by means of an injunction to restrain the city from turning 
 off the water on the ground that there was a statutory provision for the en- 
 forcement of the payment of water rents, which the water officials had 
 neglected to make use of against the former owner. 
 
 Water Supply Company— Turning off Supply.— Trimmer v. Water 
 Co., 1886, 4 Kulp, 293. Where the charter of a corporation provides that 
 the company shall not charge any private family more than ten dollars per 
 annum for water or the use thereof, an injunction will be granted restraining 
 the company from shutting off the supply because more than one faucet i» 
 Dsed. 
 
 lb.— lb.— Earley's Ap., 1888, 6 Crum. 496. Where a county has the 
 right to take water from a certain spring by means of pipes laid, the owners 
 of the land will be restrained from interfering with the commissioners who 
 enter the land for the purpose of repairing the pipes and increasing the 
 supply. 
 
 lb. — lb. — Brumm's Ap., 1888, 22 W. N. C. 137. A purchaser at a 
 sheriff's sale of a property supplied with water, has no equity to restrain a 
 private water company from cutting off the water supply in order to enforce 
 payment of arrears of water rent due prior to the date at which the pur- 
 chaser obtains possession of the property. 
 
 lb.— Dill V. Haugh, C. P. 1880, 9 W. N. C. 417. Equity will protect, by 
 injunction, a well of water although in a place where there are water works. 
 
 lb. — Lybe's Ap., 1884, 10 Out. 626. An injunction will not be granted to 
 restrain one from digging a well on his own land and to compel him to fill 
 it up, on the ground that it cuts off the supply of water from a spring some 
 forty feet distant on an adjoining owner's land. 
 
INJUNCTION. 285 
 
 U, Waste. 
 
 Cutting Timber.— Smith's Ap., 1871, 19 S. 474. Cutting timber by a 
 vendor after he has sold to a vendee is veaste and will be restrained. 
 
 lb.— Kerns v. Harbison, 1882, 1 Ches. Co. Rep. 506, 3 York L. E. 154. A 
 preliminary injunction to restrain the cutting of timber will not be granted, 
 the title being in dispute. 
 
 Interest— Limited.— Jones v. Whitehead, 1847, 1 Pars. 304, S. C. 4 Clark, 
 330, 2 Am. L. J. 6. Equity will not only enjoin the commission of waste 
 which works lasting injury to the inheritance, but will also prevent one hav- 
 ing but a limited interest in land from doing acts contrary to good husband- 
 ary, though they perhaps work no irreparable injury to the freehold. 
 
 Jurisdiction.— Denny V. Brunson, 1857, 5 C. 382. Our equity jurisdic- 
 tion under the Act of 1836, extends to granting injunctions to prevent waste. 
 
 lb.— Weaver v. Morris, C. P. Delaware, 1882, 1 Del. Co. R. Equity has 
 jurisdiction to stay waste by injunction. 
 
 Mortgagor and Mortgagee.— Martin's Ap., 1887, 3 Montg. Co. L. Eep. 
 75. An injunction will lie to restrain the mortgagor from committing waste 
 by digging and removing sand and stone from the mortgagee's premises. 
 
 One in Possession.— Liminger's Ap., 1884, lO Out. 398. Equity will 
 not often enjoin one in possession and acting under a claim of right from 
 committing waste. 
 
 Quia Timet— Bills.— Ingles v. Beemer, C. P. Lackawanna, 1883, 5 L. T. 
 N. S. 63. It is the province of equity to prevent evil as well as to remedy it. 
 
 Title. — Delaware R. R. r. Schorl Coal Co., C. P. Lackawanna, 1879, 1 
 Lack. L. Rec. 461. An injunction will be granted to restrain waste in a coal 
 mine till the title has been settled. 
 
 lb.— Brown v. Hoyt, C. P. Lackawanna, 1880, 2 L.,T. N. S. 145. Equity 
 will not enjoin the cutting of timber where the real question at issue is title 
 to land which is disputed. 
 
 lb.— Phila. V. Griscom, C. P. Schuylkill, 1864, 21 Lee. Int. 380, S. C. 5 
 Phila. 532. Equity will not enjoin one in possession from committing waste 
 where ejectments are pending and the title is in dispute. 
 
 lb.— Insolvency.— Echert v. Ferst, 1873, 1 Post. 329, S. C. 5 Leg. Gaz. 
 349, 30 Leg. Int. 352, 10 Phila. 514. One without color of title will be re- 
 strained trom cutting the timber on complainant's timber land, especially 
 where the former is insolvent. 
 
 Y. Ancient lAghts. 
 
 Covenant for.— Hummel v. Krautter, C. P. 1885, 42 Leg. Int. 304. Equity 
 will enforce by injunction a covenant for light and air. 
 
 Implied Grant. — Rennyson's Ap., 1880, 13 N. 147. Where a grantor 
 retains in his possession land over which come light and air to the windows 
 of the house conveyed, there is no implied grant of light and air which equity 
 will enforce by restraining the grantor from building. 
 
 Interference With.— McDonald v. Bromley, C. P. 1867, 24 Leg. Int. 157^ 
 S. C. 6 Phila. 302. Equity will not enjoin the interference with "ancient 
 lights;" 
 
 Parties.— Blanchard v. Reyburn, C. P. 1875, 1 W. N. C. 529, S. C. 32 Leg. 
 Int. 239, 10 Phila. 427, 7 Lan. B. 66. Equity will not enjoin the erection of 
 a building at the suit of a private party when the only special injury shown 
 is the interception of light and air, the English doctrine as to these ease- 
 ments not being recognized here. 
 
286 INJUNCTION. 
 
 Preliminary Injunction— Prescriptive Eight.— Biddle v. Ash, 1838f 2 
 Ash., 211. A complainant is certainly not entitled to a preliminary injunc- 
 tion against one who is about to move his building to the line of the street, 
 on the ground that he has acquired, by prescription, a right of way and 
 ancient lights over the strip not previously occupied. Quasre, whether he 
 will get a final decree in his favor upon proving the facts alleged? 
 
 W. Party Wall, 
 
 Alley— Practice— Multifariousness.— Meyer v. Young, C. P. 1878, 7 
 W. N. C. 60. A bill prayed that a defendant be enjoined from closing up 
 an alley by building on It. After a preliminary injunction had been granted 
 the bill was amended by setting forth that the foundation of the wall of the 
 building was half on plaintiff's land but that the wall itself was not a party 
 wall and had windows in it, and prayed that it be made a party wall; on de- 
 murrer it was held that the bill as amended was not multifarious. 
 
 Laches — Knowledge. — Mayer's Ap., 1873, 23 S. 164. In putting up a 
 party wall it projected too far over complainant's land, but he, knowing it, 
 built against it and did nothing till both buildings were under roof. Held 
 that he would be relegated to his remedy at law, and that the wall would 
 not be ordered down. 
 
 lb. — Mistake. — Sutcliff v. Isaacs, 18.50, 1 Pars. 494. Equity will not re- 
 strain the erection of a party wall where the surveyor has located it, on the 
 ground that the surveyor made a mistake. His decision should have been 
 appealed from. At any rate the party in this case having waited until two 
 stories were built is barred by laches. 
 
 Non-Continuous.— McCall's Ap., 1885, 16 W. N. C. 95. An injunction 
 will not be granted to restrain the erection of a party wall which is not con- 
 tinuous. Such a wall Inay be erected. 
 
 lb.— McCall V. Barrie, C. P. 1884, 15 W. N. C. 28. Equity wiU not en- 
 join the erection of a party wall because it is not continuous and of uniform 
 height. 
 
 Sign on.— Wistar v. Am. Baptist Pub. Co., C. P. 1876, 2 W. N. C. 333. 
 An injunction issued to restrain the painting of a sign on a party wall. 
 
 Windows.— Van Syckel v. Tryon, D. C. 1867, 24 Leg. Int. 140, S. C. 6 
 Phila. 401. . Equity will enjoin the building of a party wall with windows 
 in it. 
 
 lb. — ^Vollmer's Ap., 1868, '11 S. 118. A party wall with windows is a nui- 
 sance which equity will restrain. 
 
 X Mandatory Injunction. 
 
 Interlocutory Application.— Iron & Coal Co. v. Coal Co., 1887, 4 C. p. 
 Eep. 129. An order in the nature of a mandatory injunction will not be 
 granted in an interlocutory application. 
 
 Nuisance— Abatement.— Perry v. Pass. E. Co., 1888, 4 Kulp, 519. A 
 mandatory injunction to abate a nuisance is a matter of grace and will only 
 be granted in cases of immediate and irreparable mischief. 
 
 Preliminary Hearing.— Loughlin v. Atlantic E. R, c. P. 1882, 11 w. 
 N. C. 463, S. C. 39 Leg. Int. 168. A mandatory injunction will not be 
 granted at a preliminary hearing. 
 
 lb.— Scott V. McCleister, C. P. 1882, 12 W. >r. C. 236. A mandatory in- 
 
INJUNCTION. 287 
 
 junction refused on preliminary hearing although the act complained of was 
 an undoubted trespass. 
 
 Public Road.— Pottsgrove r. R. R. Co., 1886, 2 Montg. Co. L. Rep. 153. Af- 
 quiescenoe for a long time whilst a railroad company was at great expense, 
 changing the location of a public road will estop the public authorities from 
 compelling, by mandatory injunction, the undoing of the work. 
 
 Remedy at Law. — Whitman v. Shoemaker, C. P. Dauphin, 1878, 2 Pears. 
 320. Equity cannot under a bill for an injunction, order the defendant to 
 put back what he has already removed. The remedy is at law. 
 
 What is a. — Mocanaqua Coal Co. v. Northern R. R., N. P. 1872, 4 Brews. 
 158, S. C. 9 Phila. 250, 29 Leg. Int. 45. An injunction to restrain a company 
 from refusing to do a certain thing is mandatory, and will not, except in 
 very special cases be granted on a preliminary hearing. 
 
 T. Perpetual Injunction, 
 
 Clergyman — Installation.— Woodside's Ap., 1884, 4 Penny. 124. a 
 
 perpetual injunction will be granted to restrain a clergyman regularly called 
 to a church but never regularly installed, from preaching in said church iu 
 violation of resolutions passed by the church and acceded to by the general 
 synod. 
 
 Highway — Parties. — Commonwealth V. Kepner. C. P. Dauphin, 1859, 1 
 Pears. 182. A perpetual injunction will be granted against erecting a public 
 house in a public street. The proper complainant is the Commonwealth ex 
 relatione the Attorney General and those citizens especially injured, and the 
 proper defendants, are the officers of the borough who have authorized the 
 erection of the nuisance and who are about to execute the ordinance. 
 
 Supreme Court Dissolving Preliminary. — Times Publishing Co. v. 
 Ladomus, C. P. 1877, 5 W. N. C. 33, S. 0. 34 Leg. Int. 133, 12 Phila. 451. 
 The common pleas granted a perpetual injunction in a case where the prelim- 
 inary injunction had been dissolved by the Supreme Court. 
 
 When Granted. — Commonwealth V. Rush 1850, 2 H. 186. Our chancery 
 powers are sufficient to grant a perpetual injunction where the nuisance 
 threatened would be irreparable. 
 
 Stockholder.— Gravenstine's Ap., 1865, 13 Wr, 310. A stockholder can- 
 not successfully invoke equity to enjoin the issuing of an execution on a 
 judgment given by a corporation with the consent of all the stockholders 
 and directors. 
 
 II. Practice 
 
 A. m General. 
 
 Appeal.— Hilblsh V. Catherman, 1869, 10 S. 444. A decree granting or 
 refusing a preliminary injunction is interlocutory and cannot be appealed 
 from except when it grants the injunction, when an appeal lies under Act 
 February 14, 1866, P. L. 28. 
 
 lb.— Lyon's Ap., 1869, 11 S. 15. An appeal from a preliminary injunc- 
 tion must be decided on the state of the case at the time the injunction was 
 granted. 
 
 lb.— Kraft's Ap., 1880, 13 N. 449. The Supreme Court will hear appeals 
 from decrees relating to preliminary injunctions whenever sitting. The 
 proper practice is to have the cases certified to the district in which the court 
 is sitting and the prothonotary -will then place it on the list. 
 
288 INJUNCTION. 
 
 lb.— Receiver.— Sohlecht's Ap., 1869, lO S. 172. A decree granting an 
 injunction and appointing a receiver is a unit and the Supreme Court has 
 power to reverse it as such. 
 
 lb.— Binett's Ap., 1888, 21 W. N. C. 139. A special injunction having 
 been granted to restrain the operators of adjoining coal tracks from extend- 
 ing their operations across the dividing line, was dissolved, on a motion to 
 continue the same, and on appeal. JSeZrf, that as this was an interlocutory 
 decree, the Supreme Court would not discuss it. 
 
 lb. — Supersedeas. — Gyger's Ap., 1885, 15 W. N. C. 513. An appeal 
 (under Act June 12, 1879, P. L 177) from a decree refusing a preliminary 
 injunction does not suspend the proceedings in the suit. Therefore the Su- 
 preme Court will not pass upon the appeal where it has been pending long 
 enough to have brought the case to a conclusion on its merits. 
 
 lb.— lb.— New Brighton K. E., in re. C. P. Beaver, 1882, 30 Pitts. L. J. 
 22. An injunction to restrain a railroad from constructing its line through 
 a certain tract is no supersedeas to proceedings in the common pleas con- 
 nected with the filing and approval of a bond. 
 
 lb. — ^Bond — ^Affidavit of Defence. — Calhoun v. Monongahela Building 
 Assoc, 1883, 8 Out. 392. The aflSdavit-of-defence law does not apply to a 
 suit on a bond given by an unsuccessful complainant in equity on the grant- 
 ing of a preliminary injunction. 
 
 lb.— Smith V. Harley, D. C. 1874, 1 W. N. C. 111. An injunction bond is 
 not within the af&davit-of-defence law. 
 
 lb.— Damages.— Hotchins v. Eogers, 1888, 22 W. N. C. 80, The remedy 
 for damages caused by an injunction is upon the injunction bond. Where 
 a recovery is sought outside the bond, plaintiff must .show malice and want 
 of probable cause. 
 
 lb. — lb. — Morgan v. Negley, 1866, 3 S. 153. In ascertaining the damages 
 upon an injunction bond where the injunction was afterwards dissolved, it 
 is error to include the advance in th^ price of labor, materials, etc., where 
 the plaintiff has not continued the work but sold his right to anolher, there 
 b*eing no evidence that the purchasers would have given more for the right 
 had prices continued the same. 
 
 lb. — Large v. Steer, 1888, 6 Crum. 30. The dismissal of a bill without 
 prejudice is not equivalent to a decision on the merits, nor such a final de- 
 termination of the cause as will fix the liability of the surety on the bond. 
 
 lb. — ^Defence.^ — Large v. Steer, 1888, 6 Crum. 30. Where an action is 
 brought upon an injunction bond, the fact that the defendant in the bill has 
 begun an action of ejectment for the property in dispute cannot be set up as 
 a defence. 
 
 Continue — Motion to — Affidavits. — Flynn r. Enterprise Building Assoc, 
 C. P. Luzerne, 1877, 6 Luz. L, Reg. 133. Affidavits in support of a bill will 
 not be allowed to be read in support of a motion to continue a preliminary 
 injunction, unless fraud is charged in the bill and the affidavits have been 
 filed before the answer. 
 
 Counter AfSdavits.- Dreydoppel v. Young, C. P. 1880, 1 Sch. L. R. 322, 
 S. C. 37 Leg. Int. 397, 14 Phila. 226. A preliminary injunction will not 
 necessarily be dissolved on an answer being filed. As regards the injunction 
 the answer is but an affidavit and counter affidavits may be filed. 
 
 lb. — ^Lessig V. Langton, 1850, Bright. 191. Where a defendant has filed 
 his answer before the motion for a preliminary injunction is heard, there can 
 be no counter affidavits except in cases of waste and some eases of account 
 between prrtners : but if he resist the motion by affidavits, his answer not 
 being in, the case is difterent. • 
 
 lb.— Penna. Coal Co. v. Kelley, C. P. Luzerne, 1884, 2 Knlp. 41, S. C. 11 
 Luz. L. Reg. 49. Although it is now allowed that counter«affidavits maybe 
 read in contradiction of an answer, the court will not assume to decide dis- 
 puted facts unless the proof furnished by the affidavits admits of no doubt. 
 
INJUNCTION. 2S9 
 
 Disobedience.— Bulloch v. McDonougli, C. P. Dauphin, 1874, 2 Pears. 
 195. A party who meddles with property under the control of an injuuc- 
 tion is guilty of contempt of court, and a judge upon proof thereof will Is- 
 ,sae an attachment forthwith, which attachment runs throughout the State. 
 
 lb.— Straeters' Est., O. C. Luzerne, 1884, 2 Kulp, 288, S. C. 12 Luz. L. 
 Eeg. 77. One who disoheys an injunction of which he has actual notice does 
 so at his peril although he has not been regularly served therewith. 
 
 lb.— Ehrgood v. Ehrgood, C. P. Lackawanna, 1881, 3 L. T. N. S. 206. 
 Upon rule by plaintiff, an attachment will issue against a defendant who 
 has disobeyed an injunction. See also Commonwealth ex rel., Keely v. Per- 
 kins, 1889, 9 Crum. 36. 
 
 Ferry Grant — Allegations in Defence. — Douglass' Ap., 1888, 3 
 Crum. 65. Defendants in a bill to restrain interference with ferry rights 
 granted under the Act of March 14, 1850 (P. L. 202), have under said act no 
 standing to allege that grantee has not complied with the terms of his grant. 
 
 Force of Preliminary Injunction.— Pittsburgh E. E. Co. v. Mt. Pleas- 
 ant K. E., 1874, 26 S. 481. A preliminary injunction has, during its lile, 
 the same force as a final one, and may be pleaded in abatement. 
 
 Foreign State Attachment— Pleading.— Lowry v. Lumbermen's Bank, 
 1841, 2 W. & S. 210. Where a foreign attachment has been begun in an- 
 other State and an injunction granted by a court of chancery of that State, 
 forbidding the garnishee to pay the defendant in the attachment, if the lat- 
 ter be sued in this State by the defendant he can plead such injunction in 
 abatement but not in bar. 
 
 Landlord and Tenant— Sub-letting— Allegations.— Pfund v. Herlinger, 
 C. P. 1872, 4 Leg. Gaz. 65, S. C. 30 Leg. Int. 84, 10 Phila. 13. Equity will 
 not enjoin a tenant from sub-letting contrary to the terms of his lease where 
 the bill does not aver injury to the complainant. 
 
 Multifariousness — ^Privity Between Parties. — Cumberland Valley K. 
 E.'s Ap., 1869, 22 S. 218. The charging of two sources of right does not 
 render a bill multifarious. Where there is privity between plaintiffs and de- 
 fendants, several causes of injunction which co-relate to the same general 
 matter or spring from a common cause may undoubtedly be joined. 
 
 Notice— Removal of Goods.— Young v. Salber, C. P. 1876, 2 W. N. C. 
 424. Where, pending an injunction for which the defendant has had no 
 notice, goods are removed, the court will decree that the defendant make 
 discovery as to their whereabouts. 
 
 Order of Inspection — ^Demurrer. — Wilson v. Keely, 1888, 45 Leg. Int. 
 114. A bill for an injunction to restrain defendant from assigning or remov- 
 ing a certain patent, the half interest in which had been assigned to plaintiff, 
 and praying tor an order to inspect said patent, was demurred to on ground 
 of laches and want of a sufiHoient description, the demurrer was overruled 
 and the order for inspection to determine the rights of the parties granted. 
 
 Parties — Gas Company. — Sewickley Borough v. Gas Co., 1888, 6 Pa. Co. 
 C. Eep. 99. A bill in equity asking tor an injunction to restrain a gas com- 
 pany from shutting off the supply of gas may be filed by a borough and indi- 
 viduals jointly. 
 
 Pendency of Bill in Another State.— Ealph r. Brown, 1842, 3 W. & S. 
 395. The pendency of a bill in equity in another State for discovery of the 
 debtor's goods and for an injunction to prevent him from disposing of them, 
 cannot be pleaded in abatement of a subsequent suit in this State on same 
 cause of action. 
 
 Proceedings at Law— Rule to Open Judgment.— Kelly v. Phila. Rid- 
 ing Club, C. P. 1876, 2 W. N. C. 584. Where judgment has been entered 
 against a lessee under the ejectment clause, if there has not been compliance 
 with all the forms, the proper practice is a rule to open the judgment, and a 
 bill in equity to restrain proceedings under the judgment will not lie. 
 
 19 — EQUITY. 
 
290 INJUNCTION. 
 
 School Board— Tax — Amendment to Bill. — Forward School District's 
 Ap., 3867, 6 S. 318. Complainant petitioned a judge to restrain the 
 school directors from levying a tax, and asking for a rule to show cause why 
 she should not be exonerated. The order was made and the next term she 
 presented a more elaborate petition, and the court granted an injunction, at 
 the same time telling her to amend by filing a paper stating that she claimed 
 the relief from the equity side of the court. Meld to be irregular. 
 
 Trade Mark.— Desmond's Ap., 1883, 7 Out. 127. A bill filed to restrain 
 the infringement of a trade mark must aver a similarity. 
 
 lb. — Jurisdiction. — Dixon Crucible Co. v. Guggenheim, 1869, 2 Brews. 
 321, S. C. 27 Leg. Int. 300, 7 Phila. 408. The jurisdiction of equity to re- 
 strain the infringement of trade marks, depends on the injury to the person 
 not on the deception practiced on the public. 
 
 Wording of Injunction — Surplusage. — Barclay v. Wiekman, C. P. 1875, 
 1 W. N. C. 523. Where an injunction is granted ''as prayed for," and the 
 writ contains at tlie end the printed words ' ' until further order of the court, " 
 these will be rejected as surplusage if inconsistent with the body of the in- 
 junction. 
 
 B. Motion, for Preliminary Injunction 
 (a.) Generally. 
 
 Answer^AUegations of Bill Denied by. — Whelen v. Billings, C. P. 
 1875, 2 W. N. C. 12. A prayer for an injunction to restrain one who claimed 
 bonds from advertising that the same were stolen, denied the answer alleg- 
 ing that the complainants were not holders without notice. 
 
 lb.— lb.— Lynch v. Jennings, C. P. 1879, 6 W. N. C. 500. Where an 
 answer effectually denies the equity of a plaintiff's bill, a preliminary in- 
 junction will not be granted. 
 
 Bar— Preliminary Injunction May be Pleaded in. — Pittsburgh E. K. 
 V. Mt. Pleasant E. E., 1874, 26 S. 481. A preliminary injunction has all the 
 force of a final one while it lasts, and may be pleaded in bar to an action on 
 the same subject. 
 
 Continuing Work Sought to be Bnjoined. — Warren E. E. u. Clarion 
 Land Co., 1867, 4 S. 28. Where defendants in equity proceed with their 
 work against which an inj unction is asked, they proceed at their perU, evea 
 though a preliminary injunction has been denied. 
 
 Cross-Bill Filed— Motion of Defendant— Injunction by Defendant 
 After Filing.— Brady v. Young, C. P. 1860, 17 Leg. Int. 149, S. C. 4 Phila. 
 127. An injunction may be granted on motion of a defendant who has filed 
 a cross-bill. 
 
 Evidence— Conflicting— Before Answer Filed.— Eailroad Co. v. Eail- 
 road Co., 1887, 4 C. P. Eep. 193. A special injunction will not be granted be- 
 fore answer and proofs, where the evidence of complainant's rights is con- 
 flicting. 
 
 lb.— Death of Defendant— Buchanan v. Streper, C. P. 1878, 5 W. N. C. 
 289. An injunction lifSdavit by complainant is admissible although the 
 other party to the arrangement set forth therein be dead. 
 
 lb. — Oral. — Creitor v. Schafer, 1886, 4 Kulp, 211. In a motion for a pre- 
 liminary injunction, oral testimony of defendant taken by consent of both 
 parties will be given same effect as though presented in the form of an e.v 
 parte affidavit. 
 
 Notice.— Houston V. Heverin, C. P. Delaware, 1881, 1 Del. Co. E. 154, 2 
 Sch. L. E. 222. Although a preliminary injunction to restrain a business 
 
, INJUNCTION. 291 
 
 alleged to be a nuisance be not granted, yet the bill gives the defendant 
 notice that thereafter be must proceed at his peril. 
 
 Object of Preliminary.— Heckscher v. Sheafer, C. P. Schuylkill, 1880, I 
 Sch. L. E. 285. The object of a preliminary injunction is to prevent the 
 further perpetration of wrong, not to decide any question of right. 
 
 Prayer.— Cumberland Valley E. E.'s Ap., 1869, 12 S. 218. An injunction 
 will not ordinarily be granted under a prayer for general relief but must be 
 specially prayed. 
 
 Right of Way.— Jones v. Park, C. P. 1874, 1 W. N. C. 71. A bill to re- 
 strain one from disturbing a right of way, was met by pleas denying the 
 easement. The court retained the bill and directed the plaintiff to first es- 
 tablish his right at law after which he could go on with the bill. 
 
 Supreme Court— Nisi Prius.— P. & E. E. E. Co. v. Street Eailway Co., 
 1859, 9 C. 82. A preliminary injunction before the Supreme Court must be 
 first heard before the judge at nisi prius. 
 
 lb.— One Judge of, Cannot Grant. — Eiley v. Ellmaker, 1841, 6 Wh. 
 546. Under the Act June 16, 1836, one judge of the Supreme Court cannot 
 grant an injunction. It can only be done by the court sitting in banc, and 
 .after notice of the motion. 
 
 Title.— Fitzpatrick v. Childs, 1866, 2 Brews. 365, S. C. 23 Leg. Int. 197, 
 6 Phila. 135. To obtain au injunction in a case in which the plaintifl 's 
 right rests on his title^ the title should be set out particularly. 
 
 (6) Injunction Affidavits. 
 
 Allegations of Bill Denied by.— Carpenter v. Burden, 1843, 2 Pars. 24. 
 It is a general rule that if the answer or affidavit of the defendant deny the 
 material allegations of the bill a prtliminary injunction will not be granted, 
 whatever be the number and strength of the counter affidavits of the plain- 
 tiff. 
 
 Ib.^pringbrook E. E. v. Bryan, C. P. Luzerne, 1875, 4 Luz. L. Eeg. 117. 
 An injunction will not be granted to protect from anticipated injuries where 
 the affidavits of defendant deny that injuries will happen. 
 
 lb.— Bolton et aL v. Schwartz Hal., 1887, 3 Montg. Co. L. Eep. 191. Where 
 every allegation in a motion for a preliminary injunction is denied by affi- 
 davits of the defendant the injunction will be refused, 
 
 lb.— DeKalb v. Gindele, C. P., 1874, 1 W N. C. 79. A preliminary injunc- 
 tion will not be granted when the defendant's affidavits deny the material 
 allegations of the bill. 
 
 lb.— Orth V. Carston, C. P. 1875, 1 W. N. C. 199. A preliminary injunc- 
 tion will not be granted when the facts and equities of the bill are denied 
 by the defendant's affidavits. 
 
 lb. — Butler V. Farr, C. P. 1874, 1 W. N. C. 11. A preliminary injunction 
 will not be granted where the defendant's affidavits deny the plaintiff's 
 Statements. 
 
 Answer— Allegations of Bill Denied by.— Huston v. Huston, C. P. 
 1874, 1 W. JSr. C. 26. A preliminary injunction will not be granted when 
 the answer of the defendants denies the facts alleged by the bill and the 
 weight of the affidavits is in his favor. 
 
 lb.— Treated as Affidavit.— Deschamps v. Second St. E. E., C. P. 1858, 
 15 Leg. Int. 371, S. C. 3 Phila. 279. An answer filed upon notice for a 
 special injunction will be treated as an affidavit. 
 
 lb.— Dreydoppel v. Young, C. P. 1880, 1 Sch. L. E. 322, S. C. 37 Leg. Int. 
 397, 14 Phila. 326. A preliminary injunction will not necessarily be dis- 
 
293 IXJUXCTIOX. 
 
 solved on an answer being filed. As regards the injunotion the answer is 
 but an affidavit, and counter affidavits may be filed. 
 
 Counter AfldavitS.— Philadelphia V. Crump, 1866, 1 Brews. 320. A bill 
 to restrain a purpresture can be filed by a municipal corporation or a private 
 individual, but a preliminary injunction will not be granted unless his right 
 is clear. It being a case of nuisance, affidavits counter to the answer may 
 be read. 
 
 lb. — Lessig V. Langton, 1850, Bright. 19. Where a defendant has filed his 
 answer before the motion for a preliminary injunction is heard, there can be 
 no counter affidavits except in cases of waste and some cases of account be- 
 tween partners, but if he resist the motion by affidavits, his answer not be- 
 ing in, the case is different. 
 
 Death of Defendant.— Buchanan v. Streper, C. P. 1878, 5 W. N. C. 289. 
 An injunction affidavit by complainant is admissible although the other 
 party to the arrangement set forth therein be dead. 
 
 Dismissing Bill on Strength of — Buck Mountain Coal Co.'s Ap., 1878, 
 .-> W. N. C. 309, S. C. 27 Pitts. L. J. 176, rev'g 5 Luz. L. Reg. 51, 8 Leg. Gaz. 
 70. It is improper to dismiss a bill on the strength of affidavits alone, be- 
 fore the defendant has filed an answer or demurrer. 
 
 Jurisdiction — Orphans' Court.— Light v. Light, O. C. Lebanon, 1884, 1 
 Pa. Co. C. Eep. 21. It seems that under Act of May 19, 1874, the orphans' 
 courts in counties of over 150,000 inhabitants have power to grant injunc- 
 tions; certainly, however, injunctions will not be granted unless injunction 
 affidavits are filed in the regular way. 
 
 Lost Deed — Evidence of not Treated as Af&davit. — Eichard's Ap., 
 1888, 7 Crum. 547. When a record has been lost memoriter proof of 
 its contents will be permitted to be given by one who has read the record, or 
 otherwise had actual knowledge* of it. The evidence of a witness not so 
 qualified is incompetent and will not be treated as an injunction affidavit. 
 
 Necessity for. — Kincaid's Ap., 1870, 16 S. 411, A preliminary injunc- 
 tion should not be granted upon a bill sworn to and filed unless accompanied 
 by injunction affidavits. 
 
 lb. — Gilroy's Ap., 1882, 4 Out. 5. A preliminary injunction should not 
 be granted except on affidavits setting out the facts averred in the bill; a 
 mere general affidavit to the truth of the bill is insufficient. 
 
 lb. — Stine V. Atkins, 1872, 1 Post. 41. A preliminary injunction ought 
 not to be issued on the sworn bill alone ; there should be affidavits of facts. 
 
 lb. — ^Motion to Continue. — Gratz v. Perseverance Hose Co., C. P. 1874, 
 1 W. N. C. 12. On a motion to continue a preliminary injunction no ctate- 
 nients will be heard denying the defence set up in the answer, unless em- 
 bodied in an affidavit. 
 
 lb.— lb.— Trenwith v. Dealy, C. P. 1878, 35 Leg. Int. 68, S. C. 12 Phila. 
 387. If the affidavits presented at the argument of a motion to continue a 
 special injunction raise a doubt as to the rights of the complainant the mo- 
 tion will be refused. 
 
 When Received. — Smith v. Cummings, C. P. 18.">1, 2 Pars. 92. It is per- 
 haps the general practice on motions for preliminary injunctions to hear only 
 the bill and answer, but affidavits have been received in cases of waste, nui- 
 sance and wherever it is alleged that irreparable injury would be done. 
 
 lb.— Loughery v. Mcllvaine, C. P. 1871, 1 Camp. 239, S. C. 3 Leg. Gaz. 
 •lo2, 28 Leg. Int. 252, 8 Phila. 278. Where a bill does not present a case en- 
 titled to a preliminary injunction the affidavits will not be considered. 
 
ixjuNCTiox. _ 293 
 
 C. liotioii to Dissolve. 
 (a) Generally. 
 
 Answer Denying Allegations in Bill— Sigle v. Turnpike, 1886, 3 Luz. 
 L. Beg. 258. An answer denying the material allegations of the bill is 
 sufficient ground for dissolving a preliminary injunction. 
 
 lb.— Noble V. Becker, 1869, 3 Brews. 550. Where an answer has been 
 filed which is responsive to the bill and denies its material facts, a motion 
 to dissolve a preliminary injunction will be granted. 
 
 Corporation— Election.— Carpenter v. Burden, 1843, 2 Pars. 24. A pre- 
 liminary injunction against the officers of a corporation was dissolved on an 
 election being held and the defendants being elected by a large majority. 
 
 Ex Parte — ^Not of Course. — McCall v. Barrie, C. P. 1884, 14 W. N. C. 
 .419. The granting of an ex parte injunction is not of course, but this is only 
 done in cases of emergency. There must be a motion by ' complainant to 
 continue it within five days or it falls, and the defendant may move to dis- 
 solve it before that time. 
 
 Irreparable Injury— Compensation in Money.— Turnpike v. Lebanon 
 Steam Co., 1888, 5 Pa. Co. C. Rep. 354. Where it appears on a hearing of a 
 preliminary injunction, on an allegation of irreparable injury, that the in- 
 jury proposed can be compensated in money, the injunction will be dissolved. 
 
 Party Wall— Appeal.— Magrath v. Cooper, C. P. 1881, 10 W. N. C. 173. 
 A preliminary injunction to restrain one from tearing down a party wall 
 will not be dissolved pending an appeal from the decision of the building 
 inspector. 
 
 Physician— Contract not to Practice— Note— Maturity. — Gaul v. 
 Hofftuan, 1888, 5 Pa. Co. C. Rep. 355. An injunction granted to restrain a 
 physician from practicing medicine within prescribed limits in violation of 
 his contract, and to prevent the negotiation of a promissory note being the 
 consideration of the contract, will be dissolved upon the maturity ot the 
 note as to its negotiation, but will be continued otherwise, although the note 
 has not been paid. 
 
 Prosecute— Failure to, After Special Granted.- White v. Schleet, 
 C. P. 1880, 9 W. N. C. 77, 37 Leg. Int. 298, 14 Phila. 88. A special injunc- 
 tion which has not been prosecuted for a year will on motion be dissolved. 
 
 When Entertained.— Heyl v. City, 1874, 2 Fost. 72, S. C. 31 Leg. Int. 
 53, 10 Phila. 112. A motion to dissolve a preliminary injunction (not ex 
 parte) will not be entertained until answer filed. 
 
 (6) Affidavits. 
 
 Allegations Must be Denied. — O'Hara v. Horn, C. P. Luzerne, 1876, 7 
 Lan. Bar, 181, S. C. 5 Luz. L. Reg. 67. A preliminary injunction will not 
 be dissolved unless the answer or affidavits of the defendant deny all the 
 material allegations of the bill. 
 
 lb. — Delaware Canal Co. 'O. School District, C. P. Lucerne, 1878, 7 Luz. 
 L. Reg. 107. S. C. 2 L. T. N. S. 1, 33 Leg. Int. 349, 11 Phila. 587. i mo- 
 tion to dissolve a preliminary injunction will not be successful unless the 
 answer and affidavits deny every material fact of the bill. 
 
 Answer— Responsive — Counter Affidavits. — Barrett v. Workingmen's 
 Building Assoc, C. P. Luzerne, 1878, 7 Luz. L. Reg. 143. On a motion to 
 dissolve a preliminary injunction if the allegations of the answer are respon- 
 sive to the bill they must prevail, although counter affidavits may be read. 
 
 Denial of Facts by.— Holl v. Holl, 1851, 5 Clark. 108, S. C. 4 Amer. L. 
 J. 224. Equity will dissolve an injunction on an affidavit denying the facts 
 and the equity on which it has been granted. 
 
294 INJUNCTION AFFIDAVITS — INTEEPLEADEK. 
 
 lb.— General.— Galland ;,■. Butler Coal Co., 1887, 4 Kulp, 406. An in- 
 junction will not be dissolved upon the general denial by affidavit of the 
 equity of the plaintiff's bill, without a denial of the facts constituting that 
 equity. 
 
 INJCBJCTION AFFinAVIXS. 
 
 See Injunction, II, A. (b); B. (b). 
 
 See Notice II. 
 
 IKJSOI^VENCY. 
 
 See Adjustment VII. 
 
 IBJSPECTIOI**— ORDER FOR. 
 
 « 
 See Discovery II. 
 
 INSURANCE. 
 
 See Equitable Estate, Mortgage, Mortgagor and Mortgagee. 
 
 INSURANCE POIvICY. 
 
 See Assignment. 
 
 INXERPLEADER. 
 
 Oorporation— Stockholders— Issue.— Phila. Nat. Bank v. Henry, 0. p. 
 1883, 13 W. N. C. 128. A corporation on filing a bill showing that two 
 parties claimed stock in it, one under an assignment and the other under a 
 will, prayed that the parties interplead. The prayer was granted, and on 
 motion of one of the defendants an issue was granted to try the validity of 
 the assignment. 
 
 lb.— Judgment Creditors— Interpleader.— Eckfelt v. Starr, N. P. 1864, 
 21 Leg. Int. 389, S. C. 5 Phila. 497. Equity will not, at the suit of mort- 
 gagees, enjoin judgment creditors from levying on personal property of a cor- 
 poration but allow the interpleader law to be apnlied. 
 
INTOXICATION — IBREPAEABLE INJUEY. 295 
 
 Jurisdiction.— Dohnert's Ap., 1870, 14 S. 311. Act June 16, 1836 (P. L. 
 790), gives our courts jurisdiction in bills of interpleader strictly so called 
 (when the party applying claims no interest in the subject matter), but not 
 in bills in the nature of a bill of interpleader when the party applying is 
 interested. 
 
 lb. — Cases not Beached by Statute.— Penn Mutual Ins. Co. v. Watson, 
 C. p. 1877, 3 W. N. C. 513. Equity has jurisdiction to order parties defend- 
 ant to interplead in cases not reached by the statutory remedy. 
 
 Plaintiff— Must Show Ignorance of Rights of Parties.— Jordan's Ap., 
 1881, 10 W. N. C. 37. A plaintiff in a bill of interpleader must show that 
 he is ignorant of the rights of the parties he calls on to interplead, or at 
 least that there is such a doubt as to which one is entitled to the money that 
 he would not be safe in paying it to either. 
 
 Service— Act of April 6, 1859.— Kildare v. Armstrong, C. P. 1886, 18 
 W. N. C. 114. The Act of April 6, 1859, providing for serving parties out- 
 .side the state does not apply to a case where a garnishee asks that such 
 parties be brought in to interplead with the attaching creditor. 
 
 When Bill of Lies.— Phila. Savings Fund v. Clark. C. P. 1881, 11 "W. N. 
 C. 118, S. C. 39 Leg. Int. 4, 15 Phila. 289. A bill of interpleader will not 
 he where the party holding the fund may be discharged from all liability by 
 payment to one of the claimants. 
 
 lb. — Bridesburg Manufacturing Co.'s Ap., 1884, 10 Out. 275. One claim- 
 ing to be a stockholder but whose liability is not exactly determined cannot 
 maintain a bill of interpleader; in this case the only controversy touch- 
 ing the plaintiff was whether or not he was liable for interest on the sum in 
 his hands. 
 
 INTOXICATION. 
 
 See Repoemation. 
 
 IRRBPARABLE IBIJUKY. 
 
 [See also Injunction I, L.] 
 
 Relief— Injunction.— Pettinger v. Kennedy, C. P. Luzerne, 1873, 2 Luz. 
 L. Keg. 131. Equity will not generally interfere by injunction unless the 
 matter be one where it would have jurisdiction for purposes of relief, but it 
 may do so to prevent irreparable injury or multiplicity of suiljs. 
 
 Title— Injunction.— Wilkes-Barre Coal Co. v. Elliott, C. P. Luzerne, 
 1 873, 2 Luz. Leg. Reg. 31. Equity will not interfere by preliminary injunc- 
 tion to restrain an alleged trespass unless the title of the complainant be 
 clear and a strong case of irreparable mischief be made out. 
 
 What Constitutes.— Gorrell v. Murphy, C. P. Columbia, 1871, 1 Camp. 
 495, S. C. 3 Leg. Gaz. 305. As a general rule damage is not irreparable 
 which admits of compensation in a single action. 
 
 lb. — Frear v. Casterlin, C. P. Luzerne, 1877, 6 Luz. Leg. Reg. 111. Divert- 
 ing a stream is an irreparable injury. 
 
 lb. — Brown's Ap., 1869, 12 S. 17. Mischief or damage which is suscepti- 
 iie of compensation iu damages is not irreparable. 
 
-296 ISSUE — JOINT TENANTS. 
 
 ISSUE. 
 
 Appeal. — Baker v. Williamson, 1845, 2 Barr, 116. In all cases where an 
 issue is directed out of chancery, no right of error lies; the remedy is by ap- 
 peal from the final decree. 
 
 lb. — Reed's Ap., 1872, 21 S. 378. Where an issue has been directed out 
 of chancery no right of error lies until a final decree has been entered. When 
 the decree has been entered it is necessary to take an appeal from the decree 
 and also a writ of error to the judgment in the issues. 
 
 lb. — Shaeffer's Ap., 1882, 4 Out. 379. A preliminary injunction was not 
 interfered with on appeal in a case where since it was granted there had been 
 ample time to obtain a final decree. 
 
 Assignment — Interpleader.— Phila. Nat. Bank v. Henry, 1883, 13 W. 
 N. C. 128. A corporation on filing a bill showing that two parties claimed 
 stock in it, one under an assignment and the other under a will, prayed that 
 the parties interplead. The prayer was granted and on motion of one of the 
 defendants an issue was granted to try the validity of the assignment. 
 
 Discretion. — Shoemaker's Est., 1869, 3 Brews. 312. The awarding of an 
 issue out of equity is a matter of discretion but should not be done unless 
 some material fact of which there is prima facie proof is in dispute. 
 
 lb.— Baker's Ap., 1868, 9 S. 313. Under Act March 29, 1832, Sec. 55, the 
 granting of an issue is discretionary, with the orphans' court. 
 
 lb. — Sheetz's Ap., 1860, 11 C. 88. The granting of an issue in equity is 
 a matter of discretion with the lower court and not reviewable. 
 
 Master — Facts Found by. — Lower v. Wightman, N. P. 1873, 5 Leg. 
 Gaz. 45. After a master has made a finding of facts it is too late to ask for 
 an issue. 
 
 Orphans' Court Appeal — Practice. — Commonwealth v. The Judges, 
 1846, 3 Clark, 510, S. C. 6 Pa. L. J. 190. The orphans' court being a court 
 of equity, no writ of error lies to the proceedings on an issue directed there- 
 out to the common pleas. 
 
 Verdict — Conclusiveness of— Decree. — Saylor d. Hicks, i860, 12 C. 392. 
 A verdict in an issue out of equity, no decree having been entered, is not 
 conclusive on the parties on a trial at law. 
 
 lb.— lb.— lyectment.- Long's Ap., 1879, 11 N. 171. Where after two 
 ejectments have been tried, an ejectment bill is brought and the parties 
 agree to submit the determination of facts to an issue before a jury, the de- 
 termination of that issue is conclusive and not merely advisatory. 
 
 lb. — lb. — Bailroad — Appraisement. — Gieen St. R. R. v. Moore, 1870, 
 14 S. 79. Where a bill was filed to restrain a railroad from proceeding until 
 it complied with an appraisement that had been made against it, the court 
 ordered the parties to enter an amicable action to try the effect of the find- 
 ing by the appraisers, it was held that this was not an issue to enlighten the 
 conscience of the chancellor but a remission of the plaintiffs to a court of 
 law, the decision of which was binding. 
 
 lb.— Withdrawing Bill After.— Saylor's Ap., 1861, 3 Wr. 495. A com- 
 plainant is not permitted to withdraw his bill on paying costs after an issue 
 has been directed and a verdict had against him. The defendant is entitled 
 to a decree which will give to the verdict conclusiveness. 
 
 JOINT TENANTS. 
 See Tenants in Common. 
 
JOINT TEUSTEES — JUDGMENT. 297 
 
 JOINT TRUSTEE^. 
 
 See Tbusts and Trustees. 
 
 JOINT MORTGAGORS ANO MORTGAGEES. 
 
 See Mortgage, Mortgagor and Mortgagee. 
 
 JUDGE. 
 
 See Jurisdiction II. 
 
 JUDGMENT. 
 
 [See al-so Adjustment VII, A. ; Appeal. ] 
 
 Confession of— Eqtuitable Title— Creditors.— Miles v. Lewis and Bar- 
 rowman, 1887, 19 W. N. C. 263. Where the holder of the legal title and the 
 holder of the equitable title to land agree to enter an amicable action of 
 ejectment and the owner of the equitable title confesses judgment in the 
 same in consequence of unpaid purchase money, the creditor who is thereby 
 prevented from collecting his claim against the owner of the equitable title, 
 must prove according to the rules of evidence applicable to actions at law 
 that the confession of judgment was intended to defraud creditors. 
 
 De Terris. — Duncan V. Drury, 1848, 9 Barr, 332. One of two owners of 
 a mortgaged tract paid off the mortgage. Held it did not merge in his es- 
 tate, but that he could proceed on it and have judgment de terris, the mort- 
 gage keeping its original priority. 
 
 Ejectment. — Waters v. Bates, 1863, 8 Wr. 473. A judgment in an equit- 
 able ejectment, obtained between the Acts of May 5, 1841, and April 21'. 
 1846, is conclusive against the vendee who has not proceeded under the 
 later act. 
 
 lb. — Arnold v. Cessna, 1855, 1 C. 34. A judgment in an equitable eject- 
 ment against one of two vendees, under articles, will have no effect upon the 
 equitable title of the one not sued. 
 
 Entering Fending Injunction. — Rothenhausler v. Rothenhausler, C. p. 
 1879, 6 W. N. C. 560. A judgment entered pending an injunction will be 
 stricken off. 
 
 Execution — Injunction. — Given v. Kein, 1887, 4 Pa. Co. C. Rep. 389. A 
 bill in equity to declare a judgment void and restrain the execution of it. 
 will not be entertained before the refusal or discharge of a rule to open the 
 judgment. 
 
 Foreign.— Melloy «. Burtis, 1888, 4 Pa. Co. C. Rep. 613. A plaintiff 
 against whom a judgment for costs has been entered is not entitled to set-off 
 of the judgment of a court of another State against the firm of which the 
 defendant is a member. 
 
 Fraudulent— Relief —Kunkle's Ap.. 1884, 4 Penny. 146. The defend- 
 ant in a judgment which after due deliberation is authorized to be entered, 
 and with full knowledge of the unlawful character of the transaction, can- 
 not be relieved from it by showing that it was without consideration. 
 
Z9B JUDGMENT. 
 
 Husband and Wife.^hade v. Shade, 1860, 5 Clark, 493, S. C. 8 Am. L. 
 Reg. 754. In Pennsylvania a judgment given by a husband to his wife is 
 supported on equitable principles. 
 
 Mortgage — Stockholders — Building Association — Damages. — 
 Strohen v. Franklin Saving Loan Assoc, 1886, 5 Amer. 275. In entering 
 judgment against a borrowing stockholder, in favor of an insolvent building 
 association, on a mortgage given to secure the payment of a loan, damages 
 should be assessed by charging the dei'endant with the sum actually received 
 on the mortgage, and interest on the same, and crediting him with all ac- 
 tual payments and interest. But his payments upon his stock, assigned as 
 collateral security for the payment of the mortgage, should not be credited 
 on the mortgage as either principal or interest. 
 
 lb.— Two Mhils Against One not a Party. — Huckenstein v. Love, 
 1882, 39 Leg. Int. 119. In a suit on a mortgage, a judgment upon two 
 returns of ni/iil against one who is not a party to the mortgage, is erroneous 
 and should be stricken oflf. 
 
 Municipal Lien— Priority.— Hagemann's Ap., 1878, 7 N. 21. An as- 
 signment of a judgment recovered on a municipal lien carries with it the 
 priority which it possessed in the hands of the municipality. 
 
 Note— Endorsement of and Discount. — Mififlin Co. Bank's Ap., 1881, 2 
 Out. 150. The bona fide assignee of a judgment given by a maker of a 
 promissory note to the endorser has an equity superior to that of one who 
 discounts the note. 
 
 Opening— Cross Demands.— Stroud's Ap., 1885, 16 "W. N. C. 119. A 
 judgment will not be opened in order to let in cross demands that have 
 arisen since the judgment was entered. 
 
 lb. — Kneedler's Ap., 1880, 8 W. N. C. 97. On appeal from a decree re- 
 lative to the opening of a judgment, the only question is whether or not 
 there was a rightful exercise of the discretion or equitable power vested in 
 the lower court. 
 
 lb. — Lamb's Ap., 1879, 8 N. 407. No appeal lies from a refusal to open a 
 judgment which has been revived by agreement in an amicable scire facias, 
 though the judgment were originally entered on a judgment note. 
 
 lb.— Glaub's Ap., 1882, 11 W. N. C. 297. No appeal lies from a refusal to 
 open a judgment revived by scire facias and two returns of nihil, though the 
 judgment were originally entered on a judgment note. 
 
 lb.— Barley's Ap., 1879, 7 W. N. C. 515, S. C. 8 Luz. L. Eeg. 169. On a 
 rule to open a judgment, the court exercises its discretion, as in other cases 
 of an appeal to the equitable powers of the court. 
 
 lb. — ^Res Adjudicata.— Wistar v. McManes, 1867, 4 S. 318. Judgments 
 were entered upon warrants of attorney for that purpose. Defendant ap- 
 plied to have them opened, but this was denied. Held, he is not barred from 
 coming into equity for relief, since he had no chance to defend when the 
 judgments were entered, and as to the motion to open the judgment that is 
 merely matter of grace, hence his rights had not been adjudicated. 
 
 lb.— Luzerne B. & S. As^oc. v. Engle, 1888, 5 Kulp, 105. A court in the 
 exercise of its equitable powers may open a judgment where justice requires 
 it, and the complainant is not guilty of laches. 
 
 lb.— Set-off.— Shisler v. Brennen, C. P. 1874, 1 W. N. C. 3. A judgment 
 will not be opened in order to let the defendant claim a set-off. 
 
 lb.— Usurious Interest.— Warren's Ap., 1886, 43 Leg. Int. 324. A judg- 
 ment will be opened to let the defendant show that plaintiff purchased it at 
 a discount or that it was given for usurious interest. 
 
 Partner Confessing Judgment.— Gallaghe-'s Ap., 1886, 4 Amer. 353. 
 A partner may confess judgment to firm creditors and pay the same out of 
 his separate estate even though his individual creditors are thereby prevented 
 irom collecting their claims. 
 
JUDGMENT CEEDITOB— JURISDICTION. 299 
 
 Preferences— Judgments Prior to Assignment.— Blakey's Ap., 1848, 
 7 Barr, 449. Act April 17, 1843, prohibiting assignments with preferences 
 does not apply to judgments given ten days before the assignment. 
 
 Purchase of.— Conniff v. Doyle, C. P. Luzerne, 1871, 28 Leg. Int. 230, S. 
 C. 8 Phila. 630. An attorney may buy in a judgment agamst his client, 
 which he unsuccessfully resisted. 
 
 lb.— Option of Client.— Eshleman V. Lewis, 1865, "13 Wr. 410. Where 
 an attorney purchases land, under a judgment of his client, the latter can 
 elect to treat him as a trustee or a purchaser. 
 
 Prior Release— Notice.— Mellon's Ap., 1880, 15 N. 475. The assignee 
 of a judgment is not affected by a prior release of the lien of the judgment 
 upon a certain tract of which he had no notice. 
 
 Security for Pre-existing Debt— Recording.— Pratt's Ap., 1875, 27 S. 
 378. An assignment of a judgment as security for a pre-existing debt after 
 the bond and warrant have been assigned to another person but not recorded, 
 does not give the former an equity superior to that of the latter because it is 
 not a purchase "for value." 
 
 Several Partial Assignments.— Moore's Ap., 1879, 11 N. 309. Where 
 fractional parts of a judgment are assigned at different times, the rights of 
 the several assignees are equal. 
 
 When Void.— Worman V. Wolfersberger, 1852, 7 H. 59. An amicable 
 judgment given to a bona fide debtor by one in failing circumstances, is not 
 avoided by the Act of 1819, there being no assignment for creditors made. 
 
 lb. -Act of April 16, 1849.— Hutchinson's Ap., 1852, 8 H. 63. Act 
 April 16, 1849, Sec. 4, does not avoid a j udgment gi ven to a So»a.jSrfe creditor 
 by one contemplating an assignment for creditors even though the assignment 
 follow. 
 
 lb.— lb.— Morgan's Ap., 1852, 8 H. 152. Act April 16, 1849, does not 
 avoid a judgment obtained by default as fraudulent, because other suits 
 started the same time were defended. 
 
 lb.— lb. — ^Assignment. — Breading V. Boggs, 1852. 8 H. 33. A judgment 
 cannot be avoided under the Act of 1849, if no assignment follow. 
 
 lb.— Insolvent Debtor.— Summer's Ap.. 1851, 4 H. 169. Act April 16, 
 1849, J 4, means that judgments given to evade the Act ot April 17, 1843, are 
 void, if at the time the debtor knew himself to be insolvent. 
 
 JVDGItlETVX CREDITOR. 
 
 See PUECHASEE. 
 
 JURISDICTION. 
 
 See also Account, I; Adjustment, VII C (d); Chancery Powers; Cor- 
 poration, II; Decedents' Estates, II; Fraud, III; Partnership, III; 
 SPBcfpic Performance, III; Unincoepoeated Association. 
 
 I. In General. 
 II. Court and Jury. 
 
 A. In General. 
 
 B. Common Pleas. 
 
 C. Orphans' Court. 
 
 D. Supremo Court. 
 
 E. District Court. 
 
300 JURISDICTION. 
 
 I. In General. 
 
 Arbitrators— Disagreement.— Boswell's Ap., 1883, 31 Pitts. L. J. 192. 
 Where matters in dispute are left to three arbitrators and no two of them 
 can agree, one of the parties may seek relief by a bill in equity. 
 
 lb. — Striking Off Award— Rehearing.— Morgan's A p., 1885, 14 Out. 
 271. A bill in equity to obtain a rehearing of a matter for the purpose of 
 striking off an award of arbitrators, the same having already been considereii 
 under a rule granted by a court of competent jurisdiction, will not be sus- 
 tained upon the allegation of mistake of fact and law by the arbitrators. 
 The only way to correct errors of this kind is by appeal. 
 
 Chattels — Return of.— McGowan v. Eemington, 1849, 2 J. 56. Equity 
 will decree the return specifically of chattels where the law affords no ade- 
 quate redress. 
 
 Church. — Eoshi's Ap., 1871, 19 S. 462. Equity has jurisdiction to settle 
 church quarrels, for a religious society, incorporated or unincorporated, is but 
 the trustee for a charity. 
 
 lb.— Keefer o. Emerick, 1873, 5 Leg. Gaz. 317, S. C. 20 Pitts. L. J. 137, 
 Eevg. 2 Leg. Op. 168. Equity will take jurisdiction to settle a dispute be- 
 tween two unincorporated church organizations as to the use ol the church 
 edifice. 
 
 lb. — Henry v. Deitrich, 1877, 3 N. 286. Equity is the proper forum in 
 which to adjust church difficulties. There is no adequate remedy at law. 
 
 Construction of Instrument. — Eeese's Ap., 1888, 7 Cram. 392. Where 
 the question is as to the construction of certain instruments assigning 
 patents and inventions, equity will assume jurisdiction in awarding an 
 injunction and decreeing specific performance. 
 
 Contribution— Stockholders. — Brinham u. Wellersburg Coal Co.. 1864, 
 11 Wr. 43. Stockholders of a corporation organized under the Act of 1849, 
 who have paid debts of the corporation must enforce contribution under that 
 act and not through equity. 
 
 Cross Bill — Objection — After-filing. — Pittsburgh E. E. v. Mt. Pleasant 
 E. E., 1874, 26 S. 481. Qusere whether after a defendant has filed across 
 bill he can object to the jurisdiction of the court? 
 
 Creditor's Bill.— Cornell & Michler's Ap., 1886, 4 Amer. 162. Cred- 
 itors of an incorporated company who have exhausted their remedy at law, 
 can proceed in equity against a stockholder for his unpaid subscription to the 
 company's stock. See Stang's Appeal, 10 W. N. C. 409. 
 
 Councils— Legality of Conditions Imposed by — Gas Company. —Ap., 
 of the City of Pittsburgh, 1886,' 5 Amer. 5. A court of equity has jur- 
 isdiction to determine what conditions imposed by councils of cities on 
 natural gas companies properly incorporated are illegal, and to restrain said 
 cities from enforcing them. 
 
 Dam.— Eeid v. Anderson, 1888, 6 Lan. L. Eev. 26, S. C. 4 Montg. Co. L. 
 Eep. 193. Quxre whether a dam across a creek which unlawfully swells 
 back water over adjoining lands, is a proper question for equitable inquiry ? 
 
 Damages to Land Pending Bill for Possession. — Head v. Meloney, 
 1886, 1 Amer. 99. An action at law cannot be maintained to recover dam- 
 ages done to land pending a bill between the parties to determine the right 
 to the possession of the land. Equity had complete jurisdiction and the decree 
 is therefore conclusive. 
 
 Decedents' Estates — Assignment— Legatee. — McMurray v. Davis, 
 1878, 5 W. N. C. 305. The common pleas has jurisdiction of a bill against 
 an executor by a legatee to declare void an assignment by the latter to the 
 former of all his interest in a legacy, although a petition by the complainant 
 to have the executor account has been dismissed. One action is against the 
 executor individually, the other against him as executor. 
 
JUEISDICTION. 
 
 :;oi 
 
 lb— Legacy.— Fidelity Co.'s Ap., 1889, 3 Out. 443. The common plena 
 has jurisdictiou of a bill in equity by a legatee against an executor to com- 
 pel the payment of the legacy where the only question is whether the legatee 
 has brought himself with the conditions of the will. 
 
 lb.— lb.— Charged on Land.— Brotzman's Ap., 1888, 45 Leg. Int. 314. 
 A bill in equity in a common pleas court will not lie to recover a legacy 
 charged upon real estate. 
 
 lb.— Orphans' Court— SBecific Performance.— Cobb v. Burns, 1869, 11 
 S. 278. The orphans' court has exclusive jurisdiction in the matter of de- 
 creeing specific performance of the contracts of decedents for the sale of land. 
 
 lb.— Specific Performance.— Myers v. Black, 1851, 5 H. 193. Under 
 Act February 24, 1834, S. 15, the orphans' court has exclusive jurisdiction in 
 decreeing specific performance of the contracts of decedents. 
 
 lb.— lb.— Porter v. Dougherty, 1855, 1 C. 405. The orphans' court has 
 exclusive jurisdiction in enforcing specifically the contracts of decedents. 
 
 Tb.— Widow— Election— Post-Nuptial Settlement.— Campbell's Ap., 
 1876, 30 S. 298. A widow elected not to take under her husband's will which 
 was made in purauance of a post-nuptial settlement. 8he filed a bill against 
 bis executors asking that the settlement be rescinded on the ground of fraud. 
 ffeld, that although the orphans' court would have had jurisdiction over the 
 settlement had it been set up against her in the distribution, that the com- 
 mon pleas had concurrent jurisdiction. 
 
 lb. — lb.— Partition.— Ceilings v. Dougherty, C. P. Luzerne, 1873, 1 Scr. 
 L. T. 9. Equity has no jurisdiction to set out the interest of a widow under 
 the intestate act or to decree partition. 
 
 Discovery— Act 1869.— Long v. Russel, N. P. 1873, 5 Leg. Gaz. 33, S. 
 C. 30 Leg. Int. 32, 9 Phila. 267. Since Act of 18G9 allowing parties to tes- 
 tify, it is now no ground for equitable jurisdiction that the defendant's tes- 
 timony is necessary. 
 
 lb.— Materiality— Production of Books and Papers.— Campbell v. 
 Knowles, C. P. 1879, 36 Leg. Int. 136, S. C. 13 Phila. 163. Equity will not 
 grant an order for the production of books and papers, unless the bill prays 
 for discovery of material facts. 
 
 lb. — ^Remedy at Law. — Bank of United States V. Biddle, 1844, 2 Pars. 
 31. Where equity has acquired jurisdiction on the ground of discovery, it 
 may go on and afibrd complete relief, though there is a remedy at law, es- 
 pecially if the equitable relief will be more complete, and will prevent mul- 
 tiplicity of suits. 
 
 lb.— Eight to Call Opposite Party as Witness— Effect of —Block r. 
 Universal Ins. Co., C. P. 1883, 40 Leg. Int. 160. The act allowing the op- 
 posite party to be called as a witness, does not interfere with the right of a 
 party to have a bill of discovery, especially against a corporation. 
 
 lb.— Statute of Limitations — Demurrer. — Brewster v. Brewster, D. C. 
 1859, 16 Leg. Int. 61, S. C. 3 Phila. 355. Where a bill does not allege fraud 
 or violation of a trust, but prays discovery of matters six years old, it is de- 
 murrable. 
 
 lb.— lb.— Trustees i>. Grubb, D. C. 1862, 19 Leg. Int. 157, S. C. 5 Phila. 
 41. Although discovery cannot be asked of matters barred by the statute 
 of limitations, yet when the bill sets up matter within six years, which 
 makes the plaintifi"s case good as a whole, discovery may be had. 
 
 lb. — Title to Subject Matter Must be Shown.— Portuondo v. Faunce, 
 C. P. 1881, 9 W. N. C. 539. A complainaijt is not entitled to discovery until 
 he has established his right to the subject-matter in suit. 
 
 lb.— Witness— Against One who can be Examined as.— Phillips v. 
 Kern, D. C. 1865, 22 Leg. Int. 45, S. C. 6 Phila. 9. A bill of discovery will 
 not lie against one who can be examined as a witness. 
 
302 JUKISDIOTION. 
 
 Draft— Forged Acceptance.— Cona way v. Haight, C. P. 1680, 8 "W. N. 
 C. 216 Equity will enjoin the presentation and protest of a draft the ac- 
 ceptance whereon has been forged. 
 
 Election— Constitutionality.— Smith v. McCarthy, 1867, 6 S. 359. A 
 bill was filed to prevent the holding of an election, on the ground that the 
 act authorizing it was unconstitutional. Held that equity had no jurisdic- 
 tion. 
 
 lb. — Contested. — Hulseman V. Rems, 1861, 5 Wr. 396. In the absence 
 of fraud on the part of the judge who canvasses the election returns, equity 
 "will not interfere to annul certificates of election granted by him, but the 
 ■ case must be brought by the forms of a contested election in the ordinary 
 -way. 
 
 lb.— Returns.- Lawrence v. Knight, C. P. 18G1, 18 Leg. Int. 364, S. C. 
 4 Phila. 355. Equity has no power to restrain the prothonotary from trans- 
 mitting election returns regular on their face to the canvassing judges. 
 
 Escheat.— Olmsted's Ap., 1878, 5 W. N. C. 258. There is no equitable 
 jurisdiction in this State to restrain proceedings iu escheat. 
 
 Escrow — Deed in— Conditions of.— Baum's Ap., 1886, 3 Amer. 58. 
 A bill in equity will lie to compel the delivery of a deed held in escrow, 
 where the grantee has done all in h:s power to fulfil the condition of its de- 
 livery, arid the fulfilling of it was prevented solely by act of the grantor. 
 
 Fraud— Making Will— Trustee.— Daingerfield i. Groome, C. P. 1876, 2 
 "W. N. C. 710. Equity has jurisdiction of a bill charging fraud in prevent- 
 ing the making of a will and asking that the deleudant be declared a trustee 
 for the intended beneficiaries. 
 
 Husband and Wife — Loan — Separate Estate.— Gleghorne r. Gleghorne, 
 
 1888, 3 Crum. 383. Whether there is jurisdiction in equity of a bill filed by 
 a wife to recover an alleged loan of her separate estate to her husband, not 
 decided. 
 
 Insanity — Power of Judge.— Meum's Ap., 1888, 45 Leg. Int. 291. A 
 judge has no power pending a suit, to assume jurisdiction and determine the 
 fact of the insanity of one of the parties thereto. 
 
 Judgment Opening — Schwartz's Ap., 1888, 45 Leg. Int. 298. An appeal 
 vrill not lie to open a judgment confessed in an amicable action of eject- 
 ment. 
 
 Landlord and Tenant— Act of 1863. — Reynolds v. Davis, C. P. Luzerne, 
 1882, 1 Kulp, 342, S. C. 10 Luz. L. Reg. 112. Equity is without jurisdic- 
 tion to restrain proceedings under the Landlord and Tenant Act of 1863. 
 
 Legislature— Power of, to Enlarge Equity.— Haine's Ap., 1873, 1 Post. 
 86. The Legislature can only give equity jurisdiction in cases where there 
 exists equitable ground for relief. 
 
 Mortgage— Satisfaction of. — Walsh v. Leonard, C. P. Luzerne, 1878, 8 
 Luz. L. Reg. 282. Equity has jurisdiction to decree the satisfaction of a 
 mortgage fully paid but remaining unsatisfied. 
 
 Objection to — When Raised. — Adams' Ap., 1886, 3 Amer. 449. Want 
 of jurisdiction in equity may not be taken advantage of after a volun- 
 tary proceeding to a hearing on the merits. The question whether a court 
 of equity has j urisdictiou or not must be determined by what appears on the 
 face of the bill itself. 
 
 lb.— lb.— Wiser's Ap., 1881. 9 W. N. C. 508. An objection to jurisdic- 
 tion may be taken at the final hearing. 
 
 Partition— Title.— Murcen v. Jackson, 1885, 3 Pa. Co. C. Rep. 387. A 
 court of equity has no j urisdictiou to decree partition when there are con- 
 jflicting claims to the title, and some of the defendants are not entitled to 
 purports. 
 
 Partnership — Secret Assignment. — McCutcheon ?>. Ackland, C. P. Ches- 
 
JUEISDICTION. 303 
 
 ter, 1880, 1 Ches. Co. Rep. 82. One partner, his co-partner not being ab- 
 sent, cannot make a secret assignment tor creditors, and equity having got 
 hold of the case will wind up the partnership and award damages. 
 
 Patent Eight— Sale of.— Bakewell v. Keller, C. P. 1881, 11 W. N. C. 
 300, S. C. 29 Pitts. L. J. 301. Our equity courts have no jurisdiction to de- 
 cree the sale of a patent right to satisfy a judgment. 
 
 Practice— Account. — Corbett v. Lewis, 1860, 3 S. 322. By an agreement 
 between A. and B., B. was to work up the timber on A.'s land, and when he 
 had worked up enough to pay A. for one-third of the land, he was to have 
 a deed made for that amount; A. in tlie meantime to have full power and 
 discretion over the sale of the timber. Held B. could not retain the timber 
 on the strength of his equitable title when he thought he had paid for his 
 third, but must bring an action for an account or a bill in equity and estab- 
 lish his rights. 
 
 lb. — Demurrer. — Maguire's Ap., 1883, 6 Out. 120. A defendant in equity, 
 may either demur to the jurisdiction or except to it in his answer, nor is he 
 liable for costs for taking the latter method of objecting. 
 
 lb.— Exceptions to Jurisdiction in Answer.— Maguire's Ap., 1883, 6 
 Out. 120. A defendant in equity may either demur to the jurisdiction or 
 except to it in his answer, nor is he liable for costs for taking the latter 
 method of objecting. 
 
 Quia Timet. — Ingles v. Beemer, C. P. Lackawanna, 1883, 5 L. T. N. S. 
 63. It is the province of equity to prevent evil as well as to remedy it. 
 
 Relief.— Henry v. Deitrich, C. P. Lancaster, 1876, 7 Lan. Bar, 185. Where 
 equity has obtained jurisdiction on one matter it may retain it generally if 
 there be no adequate remedy at law. 
 
 Remedy at Law— Contract — Damages. — Appeal of Brush Electric Co. 
 et al., 1886, 4 Amer. 585. Where damages sustained can better be ascer- 
 tained by a master than by a jury in a case in which the performance of a 
 contract is in issue, then the remedy at law is not complete, adequate and 
 satisfactory and a bill in equity will lie. 
 
 lb.— lb.— Railroad and Individual.— Pittsburgh & Connellsville E. R. 
 Co.'s Ap., 1882, 39 Leg. Int. 414. An agreement by a party with a railroad 
 company that former should build atelegraph line for the company which they 
 were to maintain and pay one-half of the receipts to him, and the company 
 did so pay for nine years and then excluded all business from the line, does 
 not present a case for equitable jurisdiction since there is an ample remedy 
 at law. 
 
 lb.— Deed— Fraud.— Girard Nat. Bank of Phila. v. Maguire, C. P. 1882, 
 39 Leg. Int. 168. The validity of a deed alleged to be fraudulent as to 
 creditors can be tested by a sheriff's sale and an action of ejectment, so a 
 bill in equity will not lie, there being an adequate remedy at law. 
 
 lb.— Discretion. — Bierbower V. Laird, 1834, 11 Out. 15. Where equity 
 proceedings are more convenient and equitable relief more adequate it is in 
 the discretion of the court to sustain a bill though there be a legal remedy. 
 
 lb.— Extension of —Wesley Church v. 'Moore, 1849, 10 Barr, 273. An 
 extension of a legal remedy does not supplant an equitable one. 
 
 lb.— Highway— Repairing.— Township of Concord's Ap., 1879, 36 Leg. 
 Int. 384. Equity will not compel one bound to repair a highway to perform 
 that duty. There is an adequate remedy at law. 
 
 Specific Performance— Land in Another County.— Beidler v. Miller, 
 C. P. Berks, 1864, Woodw. Dec. 222. Equity may assume jurisdiction where 
 the relief prayed for is the conveyance of lands in another county. 
 
 Transfer of Stock.— Dietrich «. Tyson, C. P. 1861, 18 Leg. Int. 118, S. 
 C. 4 Phila. 352. Equity will decree the transfer of specific shares of stock 
 where by throwing the complainant upon his remedy at law for damages he 
 might lose owing to the financial standing of the defendant, or where the 
 defendant holds as trustee. 
 
304 JURISDICTION. 
 
 lb.— Lank v. Union Steamship Co., N. P. 1864, 21 Leg. Int. 389, S. C. 5 
 Phila. 499. The rule that equity has no jurisdiction over personal contracts 
 does not include contracts touching stocks having no market value. 
 
 lb.— Dull V. Culver, C. P. Allegheny, 1876, 24 Pitts. L. J. 86. Equity , 
 will not entertain a case for the transfer of stock and payment of damages, 
 the remedy is at law. 
 
 lb. — Phillips' Ap., 1871, 18 S. 130. A bill averred that complainants and 
 defendants were jointly interested in oil lands and that complainants were 
 to receive a certain amount in stock for affecting a sale of the lauds, that the 
 defendants refused to give them the stock hut gave its par value. Held by 
 an evenly divided court that equity had jurisdiction. 
 
 Trust— Will.— Norris v. Parrel, C. P. 1876, 2 W. N. C. 423. The com- 
 mon pleas has no jurisdiction of a bill filed to determine what trusts created 
 by a will are valid, and whether or not they are charged on the land. 
 
 Unincorporated Beneficial Society — ^Regularity of Proceedings.— 
 Sperry's Appeal, 1887, 1 Crum. 391. Equity has j urisdiction to inquire into 
 the regularity of the proceedings under the constitution and by-laws of an 
 unincorporated beneficial society, to determine whether or not a member has 
 been wrongfully suspended. The merits of what has passed into judgment 
 in a regular course of proceedings will not be inquired into and if irregular 
 ties existed but were examined by the complainant at the time, equity will 
 not grant relief. 
 
 lb. — Andriessen's Ap., 1889, 8 Crum. 303. Where new parties take 
 shares upon the increase of the capital of an unincorporated association and 
 it i.i subsequently ascertained that false representations had been made 
 which induced these subscriptions, a bill in equity is the proper remedy as 
 the parties are really partners and the remedy at law inadequate. 
 
 Venue— Local and Transitory Actions— Nuisance. — Morris v. Rem- 
 ington, 1849, 1 Pars. 387. The distinction between local and transitory ac- 
 tions applies in equity. Therefore a bill will not be entertained in Philadel- 
 phia county to restrain the commission of a nuisance affecting the plaintiff 's 
 land in a neighboring county, although the bill was served on the defendant 
 in Philadelphia county. 
 
 II. Court and Jury. 
 
 A. In General. 
 
 Account— Sheriff 'S Sale.— Bryan v. Dailey, C. P. 1880, 37 Leg. Int. 322, 
 S. C. 14 Phila. 90. A purchaser at sheriff 's sale of an interest in a partnership 
 who wishes an account must proceed in the court in which the sale was made. 
 
 Ejectment. — Peebles V. Reading, 1822, 8 S. & R. 484. Ejectment is an 
 equitable action; in it our courts are governed by the same rules as a court 
 of chancery, and whenever chancery would execute a trust or decree a con- 
 veyance, the courts of this State, by the instrumentality of a jury, would 
 direct a recovery in ejectment. 
 
 lb.— Merrell v. Merrell, 1888, 5 Kulp, 125, 6 Lan. L. Rev. 17. Where a 
 vendor conveys title to a third person, who subsequently dies, devising the 
 land to another, this vendee may maintain ejectment upon tendering the 
 balance of the purchase money. The orphans' court has not exclusive juris- 
 diction. 
 
 Ground Rent.— Cuthbert v. Kuhn, 1837, 3 Wh. 357. Where a portion 
 <>r premises subject to a ground rent is taken by the Commonwealth, equity 
 lii\s jurisdiction to apportion the rent, but the proportions must be settled by 
 a jury. 
 
JUEISDICTION. 305 
 
 Injunction— Co-ordinate Court.— Fallon v. Remington, C. P. 1881, lO 
 W. N. C. 119, 38 Leg. Int., 76, 15 Phila. 272. The court will not grant an 
 injunction restraining a party from issuing process out of a court of co-ordi- 
 nate jurisdiction possessing equal equity powers. 
 
 lb.— Hetzell V. Bentz, C. P. 1871, 28 Leg. Int. 188, S. C. 8 Phila. 261. 
 Equity will not enjoin the enforcement of a judgment in a co-ordinate court, 
 where the complainant might have made use of his equitable defence. 
 
 lb.— McNair v. Cleave, D. C. 1874, 31 Leg. Int. 228, S. C. 9 Phila. 212. 
 One court will not ordinarily entertain a motion for a preliminary injunc- 
 tion which has been refused by a co-ordinate court. 
 
 Order at Chambers.— Erie E. E. v. Casey, 1856, 2 C. 287, see 1 Gr, 274. 
 A judge at chambers has power to make such order in equity preparatory to 
 ii, hearing, as he may think proper; but as the Act of May 6, 1844, requires 
 security to be given in all cases where an injunction is granted, he must be 
 careful, in the absence of security, to issue an order admonitory only and not 
 mandatory. 
 
 Reversal— Lower Court as Master.— Baltimore E. R. Co.'s Ap., 1881, 
 10 W. N. C. 530. The finding of the lower court sitting as a master on the 
 question of fact as to the practicability of avoiding the crossing of two rail- 
 roads at grade will not be reversed except for palpable error. 
 
 B. Common Pleas. 
 
 Annuity. — Brotzman's Ap., 1888, 4 Crum. 645. A bill in equity will not 
 lie in a common pleas court to enforce the payment for annuity charged 
 upon real estate of a testator. The orphans' court has exclusive jurisdiction. 
 
 Assignment of Mortgage.— Weiman v. Karch, 1888, 5 Pa. Co. C. Rep. 
 203. The court of common pleas has no jurisdiction to decree the assign- 
 ment of a mortgage, under Act of 1885, where all the parties in interest in 
 the lands so encumbered do not join in the application. 
 
 Distribution of Trust Fund — Heirs of Cestui Que Trust. — Johnson's 
 Est., 1836, 2 Wh. 120. In 1835 the common pleas had no jurisdiction to de- 
 cree distribution of a trust fund among the heirs of the cestui gue trust. 
 
 Dower — Sum in Lieu of —Borland v. Murphy, 1877, 4 W. N. C. 472. 
 The common pleas has power in equity to award a sum in lieu of dower and 
 charge it on land. 
 
 lb— Murrill's Ap., 1885, 42 Leg. Int. 455, S. C. 16 "W. N. C. 491. The 
 common pleas has jurisdiction of a bill asking for an assignment of dower. 
 
 lb.— Eobins v. Green, D. C. 1874, 1 W. N. C. 143. Since Act April, 20, 
 1889, the common pleas has not jurisdiction of a bill to charge dower. 
 
 lb.— Estoppel.— Kelso's A))., 1882, 6 Out. 7. A widow may bring a bill 
 in equity in the common pleas against a purchaser at the sale of an assignee 
 ,in bankruptcy of her husband, to enforce her dower, and she is not estopped 
 by her representations while covert to the intending purchaser that she will 
 not claim her dower. 
 
 Jurisdiction — Concurrent — Testamentary Trusts.— Seibert's Ap., 
 1852, 7 H. 49. In all cases of testamentary trusts except where the execu- 
 tor is trustee ratione officii, the orphans' court and the common pleas have 
 concurrent jurisdiction. 
 
 lb.— Dower and Partition— Act March 17, 1845.— Brown's Ap., 1877, 
 3 N. 456. Act March 17, 1845, confers upon the common pleas equity juris- 
 diction in all cases of dower and partition. 
 
 lb —lb.— Act April 20, 1869.— Robins r. Green, D. C. 1874, 1 W. N. C. 
 143. Since Act April 20, 1869, the common pleas has no jurisdiction of a 
 bill to charge dower. 
 
 20— EQUITY. 
 
306 JUBISHICTION. 
 
 lb.— Ib.^Feme Covert.— Eurson's Ap., 1853, 10 H. 164. Under Act 
 April 2.5, 1850, Sec. 11, the common pleas has no power to appoint a trustee 
 for a feme covert married before the Act of 1848. 
 
 lb.— Injunction Against Corporations— Constitution.— McGeorge v. 
 Haacock Steel Co., C. P. Montour, 1875, 32 Leg. Int. 373, S. C. 11 Phila. 
 602. The new Constitution does not affect the jurisdiction of the common 
 pleas in matters of injunction against corporations. 
 
 lb. — Injunction Against Officers of Commonwealth.— Philadelphia v. 
 
 Mackey, C. P. Dauphin, 1876, 2 Pears. 406. It is doubtful if the common 
 pleas has jurisdiction to restrain officers of the Commonwealth. 
 
 lb.— Legatee Against Executor.— Fidelity Co.'s Ap., 1889, 3 Out. 443. 
 The common pleas has jurisdiction of a bill in equity by a legatee against 
 an executor to compel the payment of the legacy when the only question is 
 whether the legatee has brought himself with the conditions of the will. 
 
 lb.— lb.— McMurray v. Davis, 1878, 5 W. N. C. 305. The common pleas 
 has jurisdiction of a bill against an executor by a legatee to declare void an 
 assignment by the latter to the former of all his interest in a legacy, al- 
 though a petition by the complainant to have the executor account has been 
 dismissed. One action is against the executor individually, the other against 
 him as executor. 
 
 Fraudulent Conveyance of Decedent. — Independent Saving Fund r, 
 Dillon, C. P. 1881, 10 W. N. C. 506. A bill will lie in the common pleas to 
 set aside a fraudulent conveyance by a decedent. 
 
 Injunction— Proceedings in Other Courts— Kraft v. Penna. R. E.,' C. 
 P. 1879, 8 W. N. C. 13. The several courts of common pleas of Philadel- 
 phia will decline to grant injunctions which interfere with proceedings in 
 the other courts. 
 
 Interlocutory Decree. — Roth v. McClelland, 1837, 6 AV. 68. A court of 
 law has no power to declare that the requirements of an interlocutory decree of 
 chancery have been satifled, especially where the question arises collaterally. 
 
 Mortgagee — Injunction by Executor of Mortgagor.— Grice v. Kinsev, 
 
 1877, 4 W. N. C. 208, aff'g 3 W. N. C. 211. Where a first mortgagee is pro- 
 ceeding in the common pleas that court will not restrain him at the suit of 
 the mortgagor's executor who is proceeding in the orphans' court to have a. 
 sale of the propertj', nor will the latter court order a sale, that being the 
 only debt. 
 
 lb. — Orphans' Court — Interference With. — Loomis ;-. Loomis, 1856, 3 
 C. 233. The common pleas has no equity power to interfere with the or- 
 phans' court in the exercise of its exclusive jurisdiction. 
 
 Ib.---Removal of —Stevenson's Ap., 1871, 18 S. 101. Act April 9, ISfiS 
 (P. L. 785), authorizing the common pleas to remove trustees is directory 
 merely. 
 
 lb.— Sale ot Trust Property.— Sharp's Pet., C. P. 1866, 23 Leg. Int. 
 412, S. C. 6 Phila. 153. Act April 18, 1853, empowers the courts of common 
 pleas in its discretion to decree a sale of trust property; but one will not be 
 decreed to the cestui que trust except on clear proof that it will be a benefit 
 to the estate. 
 
 . lb. — Specific Performance of Contract of Decedent. — Warfel v. Calder, 
 C. P. Lancaster, 1877, 8 Lan. Bar, 205. The common pleas has no jurisdic- 
 tion to decree specific performance of the contract of a decedent. 
 
 lb.— lb.— Brady )). Shisler, C. P. 1874, 1 W. N. C. 97. A decree of spe- 
 cific performance will not be entered in the common pleas against a defend- 
 ant who dies while an appeal is pending in the Supreme Court. 
 
 lb.— Trusts— Validity of, Under Will.— Xorris v. Farrel, C. P. 1876, 2 
 W. N. C. 423. The common pleas has no jurisdiction of a bill filed to de- 
 termine what trusts created by a will are valid, and whether or not they are 
 charged on the land. 
 
JUEISDICTION. ^^"^ 
 
 Nisi Prius— Removal of Cases— Equity Cases Included.— Kersey Oil 
 Co V Oil Creek R. E., 1877, 3 W. N. C. 288. The clause m the new Consti- 
 tution providing for the removal of nisi prius cases to the common pleas in- 
 cluded equity cases. 
 
 Port Wardens.-Bailey v. Fitzpatrick, N. P. 1871, 28 Leg. Int 77, SC. 
 8 Phila. 93. Equity will not interfere in a case which should go before tne 
 port wardens; the remedy is by appeal to the common pleas. 
 
 Trustees— Appointment of.— Conrad ex parte, 1841, 2 Ash. 527. The 
 common pleas has jurisdiction where a trustee dies, to appoint a successor. 
 
 lb.— lb.— Acts April 14, 1828, and June 14, 1836.— Carlisle's Ap.* 
 1840, 9 W., 331. Acts April 14, 1828, and June 14, 1836, authorizing the 
 common pleas to appoint a trustee upon the application of the cestui que trust, 
 apply to cases in which the trustee has some active duty to perform; but 
 Iwhei-e he is merely the holder of a legal title, and that title by his death be- 
 comes vested in the heir at law, the intent of the donor is sufficiently carried 
 out and an appointment by the court would be unauthorized. 
 
 lb.— lb.— Olewine's Ap., 1842, 4 W. & S. 492. Under the Act April 14, 
 1828, the common pleas has no power to appoint a trustee on the death of an 
 executor who was trustee virtute officii. The administrator d. b. n. is the 
 successor. 
 
 lb.— lb.— Commonwealth v. Barnitz, 1840, 9 W. 252. A direction in a 
 will which makes executors trustees applies in like manner to tteir succes- 
 sors (administrators c. t. a. d. b. n.) and the common pleas has no power to 
 appoint a trustee in place of the executors who renounce. 
 
 lb. — Control Over. — Potts iti re, 1826, 1 Ash. 340. The common pleas 
 has exclusive control of trustees whether they were appointed by will or 
 otherwise. 
 
 lb.— lb.— Weiskettles' Apr, 1883, 7 Out. 522. The common pleas have 
 large discretionary powers over trustees, especially assignees for creditors, 
 the exercise of which will not, except for manifest abuse, be modified or re- 
 versed by the Supreme Court. 
 
 lb. — Coxe V. Bank of Penna., 1858, 6 C. 516. The equity jurisdiction over 
 trusts does not include assignees for creditors, that belongs exclusively to the 
 law side of the common pleas. 
 
 lb.— Testamentary— Act April 26, 1855.— Mann r. Mullin, 1877, 3 N. 
 297. Act April 26, 1855, empowering courts of common pleas to act as tes- 
 tamentary trustees applies to a case where the will making such appointment 
 was made before the act was passed, but the testator did not die until after- 
 wards. 
 ' lb.— lb.— Act June 14, 1836.— Anderson v. Hengey, 1879, 7 W. N. C. 
 39, S. C. 26 Pitts. L. J. 107. Act June 14, 1836, did not take away the jur- 
 isdiction of the common pleas over such testamentary trusts as were then 
 under its care. 
 
 ' lb.— Unincorporated Association — Control Over. — Brown v. Griffin, 
 C. P. 1884, 14 W.N. C. 358, vide. 13 W. N. C. 91 The common pleas has 
 jurisdiction over an unincorporated association which is' itself under the en- 
 tire control of a superior organization. 
 
 lb.— Widow— Assignee's Sale— Dower.— Kelso's Ap., 1882, 6 Out. 7. 
 A widow may bring a bill in equity in the common pleas against a purchaser 
 at the sale of an assignee in bankruptcy of her husband, to enforce her dower 
 and she is not estopped by her representations while covert to the intending 
 purchaser that she will not claim her dower. 
 
 lb.— Widow Taking Against Will.— Campbell's Ap., 1876, 30 S. 29^^. 
 A widow elected not to take under her husband's will which was made in 
 pursuance ot a post-nuptial settlement. She filed a bill against his execu- 
 tors asking that the settlement be rescinded on the ground of fraud. Held 
 that although the orphans' court would have had jurisdiction over the settle-- 
 
308 JUEISDICTION. 
 
 ment had it been set up against her in the distribution, that the common 
 pleas had concurrent jurisdiction. 
 
 C. Orphans' Court. 
 
 Adjustment. — Gerhard's Est., C. P. Montgomery, 1872, 4 Leg. Gaz. 74. 
 The orphans' court marshals and distributes assets according to principles of 
 ■equity. 
 
 Discovery — lb. — Loomis r. Loomis, 1856, 3 C. 233. Tlie orphans' court 
 lias all the powers of discovery necessary for the complete exercise of its 
 jurisfliction. 
 
 Equity Jurisdiction — Distributees — Trustee ex Malefacio.— Dundas' 
 Est., O. C. 1871, 28 Leg. Int. 204, 8 Phila. 598. The orphans' court has no 
 general equity jurisdiction, therefore a bill by one distributee against an- 
 other to whom he has sold his interest, claiming that the latter is a trustee 
 c.c malefacio must be brought in the common pleas. 
 
 Executor Trustee Virtute Officii— Exclusive Jurisdiction.— Wapple's 
 
 Ap., 1873, 24 S. lUO. Where an executor is appointed trustee virtute officii 
 the orphans' court has exclusive jurisdiction; where he is appointed nomina- 
 tive the common pleas and orphans' court have concurrent jurisdiction. 
 
 Morgan's Ap., 1885, 14 Out. 271. Where an administratrix is authorized 
 by the orphans' court to mortgage the estate of a decedent, a bill in equity 
 will not lie to attach such mortgage in any other courts. The want of con- 
 firmation of the mortgage may be taken advantage of by application to the 
 orphans' court or by appeal to the Supreme Court. 
 
 Power of Court— Maintenance. — Fnrness's Est., 0. C. 1884. 41 Leg. 
 
 Int. 175. S. C. 14 W. N. C. 391. Under Act of 1853, the orphans' court has 
 jurisdiction to allow support to minors out of a fund which is to accumulate 
 for their children. 
 
 Specific Performance— Contract to Devise Lands.— Brinker v. Brinker, 
 
 1847, 7 Barr, 53. The orphans' court can specifically compel the perform- 
 ance of a contract to devise lands. Such case is not well brought in the 
 common pleas. 
 
 lb. — Decedent's Contract. — Lowry v. Lowry, C. P. 1873, 31 Leg. Int. 4, 
 
 S. C. 10 Phila. 105. A residuary devisee has no standing in the common 
 pleas to compel specific performance of a contract of decedent, he must pro- 
 ceed in the orphans' court. 
 
 lb.— lb.— Walker's Ap., 1884, 32 Pitts. L. J. 173. The orphans' court 
 has no jurisdiction to specifically enforce a contract between a decedent and 
 another which, besides being an agreement to convey, involved questions of 
 trust and account. 
 
 Surviving Partners.— Miller r. Coffman, C. P. 1885, lew. N. C. 423. A 
 surviving partner cannot file a bill against the executor of a deceased part- 
 ner claiming that the latter has never divided the profits. He must first 
 himself wind up the partnership, and if it appears that the estate of the 
 deceased partner is a debtor to the firm proceed in the orphans' court. 
 
 Trusts— Exclusive Jurisdiction. — Innes' Est., 1838, 4 Wh. 179. Act 
 .Tune 14, 1836, Sec. 15 (trusts), vested iu the orphans' court exclusively the 
 jurisdiction of trusts created by will where the executor or administrator 
 was trustee. The early statutes conferring on the common pleas jurisdiction 
 in cases of trusts fnlly reviewed. 
 
 lb.— Testamentary.— Brown's Ap., 1849, 2 J. 333. The orphans' court 
 has concurrent jurisdiction with the common pleas over all testamentary 
 trusts. 
 
JUEISDICTION. 309 
 
 2>. Supreme Court. 
 
 Account— Concurrent With Legal Remedies.— Bank of United States 
 V. Biddle, 1844, 2 Pars. 31. Under Act June 13, 1840, both the commou 
 pleas and the Supreme Court have equitable jurisdiction in cases of account. 
 This jurisdiction is concurrent with the legal remedies but equity will as- 
 sume it even though the accounts are all on one side wherever discovery is 
 needed and in cases of mutual transactions wherever the complication is 
 such that the equitable remedy is more complete. 
 
 Bill Pending in Common Pleas.— Cleveland E. R. v. Erie, 1855, 3 C. 
 381 (see 1 Gr. 212). The Supreme Court will refuse jurisdiction of an equity 
 case where there is a bill pending, in the common pleas. 
 
 Corporation— Mortgage.— McCurdy's Ap., 1870, 15 S. 290. Act April 
 11, 1862 (P. L. 477), authorizes the Supreme Court sitting in equity to decree 
 a sale under a corporation mortgage. 
 
 lb.— Foreclosure— Injunction.— Fargo v. Oil Creek R. E., 1875, 1 W. N. 
 C. 611. A bill filed against a corporation asking for a foreclosure of a mort- 
 gage and an injunction to prevent a sale of the property, vrill not be enter- 
 tained by the Supreme Court, the prayer for the injunction being but inci- 
 dental to the relief prayed for. 
 
 Discovery. — Davis v. Gerhard, 1840, 5 Wh., 466. Under the several 
 sections of the Act June 16, 1836, relating to discovery, it is plain that the 
 Supreme Court has not jurisdiction to compel discovery of assets. 
 
 lb.— lb.— Mouge V. Guenat, 1840, 6 Wh., 141. Act June 16, 1836, S. 
 13, does not give the Supreme Court jurisdiction to grant discovery, except 
 in aid of issues depending, The bill should, therefore, aver that an issue is 
 pending. 
 
 Forfeiture.— Pittsburgh R. R. Co. V. Mt. Pleasant R. R., 1874, 26 S. 481. 
 Independently of Act April 10, 1869, the Supreme Court has jurisdiction to 
 relieve against forfeiture. 
 
 Landlord and Tenant.— Appeal of Pitts., etc.. Drove Yard Co., 1889, 8 
 Crum. 250. The Pennsylvania courts have not general chancery powers and 
 the Supreme Court will dismiss a bill for want of jurisdiction although the 
 question be not raised by the parties. Such a case is presented where a 
 tenant seeks to restrain his landlord from putting.him out of possession. 
 
 E. District Court. 
 
 Discovery— District Court.— Clark v. Rush, D C. 1855, 12 Leg. Int. 
 255, S. C. 1 Phila. 572. The district court has no jurisdiction to grant 
 discovery in aid of an execution. 
 
 lb.— Gouldy V. Gillespie, 1844, 2 Clark, 311, S. C. 4 Pa. L. J. 91. 
 The district court of Philadelphia county has no jurisdiction of a bill of dis- 
 covery in aid of an execution. 
 
 lb.— Simes v. Everson, 1863, 10 Wr. 304. The district court of Allegheny 
 county has equity jurisdiction to compel a redelivery of a note given to the 
 defendants under an arrangement that on a certain contingency it should be 
 surrendered, the contingency having arisen. 
 
 lb.— Dundas v. Leiper, D. C. 1855, 12 Leg. Int. 255, S. C. 1 Phila. 572. 
 The district court has no jurisdiction to grant discovery in and of an exe- 
 cution. 
 
 Husband and Wife.— O'Neil v. Hamilton, 1862, 8 Wr. 18. A daughter 
 under the will of her father was entitled to land bought by him but not con- 
 veyed. She married and the deed was made by the vendor to her husband ; 
 he sold the land to respondent, who had notice of all the facts. She brought 
 this bill, praying that her title be quieted, that respondent be declared a 
 
310 JDEISDICTIUX — J [JBY — LACHES. 
 
 trustee and be ordered to convey the legal title to her. Held that the dis- 
 trict court had equitable jurisdiction in the matter, and that complainant 
 was entitled, to the relief asked. 
 
 JURY. 
 
 See JUEISDICTION, II. 
 
 Answer— Exceptions to Insufficiency of. — Schooly v. Shoemaker, 1887, 
 4 Kulp, 345. An answer may be excepted to for insufficiency, but a plain- 
 tiff forfeits this right of laches. 
 
 Cestui que Trust in Remainder. — Montgomery's Ap., 1875, 1 W. K C. 
 279. Laches will not be imputed to a cestui que trust in remainder during the 
 existence of the life estate. 
 
 Check— Delay in Presentation of. — Kilpatrick v. B. & L. Ass'n, 1888, 
 4 Crum. 30. A mortgage debtor to a building and loan association caused 
 the check of his agent for which he had supplied the funds to be passed, un- 
 der the direction of the association's secretary, to its solicitor, as on account 
 of the debt, which check became worthless by reason of the delay of the so- 
 licitor in presenting it for payment; Held, that as between the debtor and 
 the association, the latter should bear the loss thus occasioned. 
 
 Decedent's Estate — Auditor's Report — Surcharging. — Fidelity Com- 
 pany's Ap., 1886, 5 Amer. 157. "Where the report of an auditor awarding 
 the estate of a decedent to the latter's brother as heir-at-law was not filed 
 for nineteen years after the award was made, this negligence cannot be taken 
 advantage of by an alleged collateral heir seeking to surcharge the brother's 
 estate with the amount of the award on the ground that he was not the 
 legitimate heir-at-law. The complainant has been guilty of gross laches. 
 
 lb.— Distribution.— Mackey's Estate, 1887, 20 W. N. C. 144. A distri- 
 butee who has agreed that the personal estate may be used in preparing the 
 realty may not, after a lapse of five years from the date of the award to 
 her, obtain an order to pay when the administrator is engaged in settling up 
 the estate. 
 
 lb. — Mortgage — Partition. — Appeal of Leibert, 1888, 4 Crum. 525. 
 Where, in a proceeding in partitioii, one of the heirs of an intestate dece- 
 dent obtained land bound by a mortgage and for thirteen years treated the 
 mortgage as a personal obligation by paying interest on it. Equity will 
 compel the payment of the same out of the personal estate long since in the 
 hands of distributees. 
 
 Equity of Redemption. — Casey v. Allegheny E. E., 1875, 2 W. N. C. 
 1 90. A mortgagor's equity of redemption is barred by not making a claim 
 for eighty years. 
 
 Equitable Rights— Purchase.— Gonzalus v. Hoover, 1820, 6 S. & E. 118. 
 A purchaser from one having a patent of lands does not take the title free 
 from all adverse claims. But one having an equitable right in the land by 
 prior settlement must be careful that he does not by laches injure an inno- 
 cent purchaser, lest he himself lose his right to such a one. 
 
 Evidence— Trust. — McKee r. Jones. 1847, 6 Barr, 425. It is not error to 
 admit evidence explaining seeming laches in enforcing a trust. 
 
 Exemption— Widow's —Sculler's Estate, 1887, 5 Pa. Co. C. Eep. 188. 
 If a widow be guilty of laches she will be deprived of her statutory exemp- 
 tion. 
 
LACHES. 311 
 
 Forfeiture.— Times Co. v. Siebrecht, C. P. 1882, 39 Leg. Int. 98, S. C. 15 
 Phila. 235. "Where a landlord and tenant have not acted strictly up to their 
 respective rights, equity will not allow one of them to enforce a forfeiture 
 under the strict terms thereof. 
 
 Fraud— Stockholders.— Andriessen's Ap., 1889, 8 Crum. 303. Where 
 parties who have been induced to become stockholders in an unincorporated 
 association by fraudulent representations of the old management, take no 
 steps to obtain relief until for years after their discovery of the fraud, their 
 right is barred by laches. 
 
 Improvements on Adjoining Land.— Leibig v. Ginther, 1873, 1 Fost. 
 203; S. C. 4 Leg. Gaz. 245. One who stands by while defendant greatly im- 
 proves his own land and makes no objection that it will damage him, cannot 
 ask equity to remove the structure, but must be satisfied with his legal 
 remedy. 
 
 Injunction. — Seal v. Northern E. R., 1868, 1 Pears. 547. An injunction 
 will not be granted even in favor of a feme covert who has slept on her rights 
 for fifteen years, especially where there is a legal remedy. 
 
 lb.— Bedford v. Potter, C. P. 1872, 29 Leg. Int. 341, S. C. 9 Phila. 560. A 
 preliminary injunction will not be granted one who has been guilty of some 
 Inches and whose rights are not undisputed. 
 
 lb.— Parker v. Spillin, C. P. 1873, 30 Leg. Int. 52, S. C. 10 Phila. 8. 
 Whatever be the merits of the case, a complainant who has slept on his 
 rights for several years will not be granted a preliminary injunction. 
 
 lb.— Disputed Right.— Bedford V. Potter, C. P. 1872, 29 Leg. Int. 341, S. 
 C. 9 Phila. 560. A preliminary injunction will not be granted one who has 
 been guilty of some laches and whose rights are not undisputed. 
 
 lb.— Special— Failure to Prosecute.— White v. Schlect, C. P. 1880, 9 W. 
 N. C. 77, S. C. 37 Leg. Int. 290, 14 Phila. 77. A special -injunction which 
 has not been prosecuted for a year will on motion be dissolved. 
 
 Mortgage — Satisfaction of, Entered— Conclusiveness. — Brown i>. 
 Henry, 1884, 10 Out. 262. An entry ot satisfaction of a mortgage on the 
 margin- of the record and attested by the recorder is not conclusive as against 
 the mortgagee, even in favor of a bona fide purchaser, and it may be shown 
 that the entry was made by an unauthorized person upon the record of the 
 wrong mortgage. And in this case there was laches on the part of the mort- 
 gagee. 
 
 Party Wall— Injunction— Mistake.— Sutchiflf v. Isaacs, 1850, 1 Pars. 
 494. Equity will not restrain the erection of a party wall when the sur- 
 veyor has located it, on the ground that the surveyor made a mistake. His 
 decision should have been appealed from. At any rate the party in this 
 case having waited until two stories were built is barred by laches. 
 
 lb.— Knowledge.— Mayer's Ap., 1873, 23 S. 164. In putting up a party 
 wall it projected too far over complainant's land, but he, knowing it, built 
 against it and did nothing till both buildings were under roof Held that 
 he would be relegated to his remedy at law, and that the wall would not be 
 ordered down. 
 
 Partition — Mortgage — Recognizance.- Seibert's Appeal, 1888, 45 Leg. 
 Int. 315. The lieu of the recognizance in the orphans' court on partition 
 proceedings, is not merged in a judgment obtained in the common pleas in 
 an action upon one of the books secured by the recognizance. 
 
 Public Road— Non-Used by the Public— Commonwealth v. Moore, 
 1884, 4 Kulp, 71. Mere laches or non-user of a public road by the public 
 and the adverse possession of the same for twenty-one years by another will 
 not estop the public from reasserting their rights. 
 
 Relief Denied.— Wetham v. Penna. & N. Y. R. R., 1873, 5 Leg. Gaz. 78, 
 S. C. 4 Leg. Op. 575, 28 Leg. Int. 77, 8 Phila. 92. Great delay is a bar to 
 equitable relief 
 
31"2 LACHES. 
 
 « 
 
 Review— Bill of— Administrators.— Wistar's Estate, 1882, 39 Leg. Int. 
 265. A bill for review of the adjudication of the account of an administra- 
 tor must allege that distribution has not yet been made and delay will be 
 fatal to such bill. 
 
 Sheriff's Sale— Agreement for Redemption. — Graham ?•. Donaldson, 
 1836, 5 W. 451. A purchaser at sheriff's sale agreed, before buying, to hold 
 it for the defendant who could redeem by repayment of debt, interest, costs, 
 etc. Held that after ten years of inaction the defendant's right was barred. 
 
 Specific Performance.— Tarr v. Glading, 18.52, 1 Phila. 370, S. C. 9 Leg. 
 Int. 110. Specific performance denied where the complainant had been un- 
 able to make title for a year, and in the meantime the defendant had put 
 his capital elsewhere. 
 
 lb. — Remington v. Irwin, 1850, 2 H. 143. Ejectment to compel specific 
 performance will not succeed if time be of the essence of the contract and the 
 plaintiff be in fault. 
 
 lb.— Jones V. Jones, C. P. Delaware, 1874, H2 Leg. Int. 199, S. C. 11 Phila. 
 559. Specific performance will not be decreed in favor of one who has him- 
 self been guilty of laches in fulfilling his part of the agreement. 
 
 lb. — Porter v. Dougherty, 1855, 1 C. 405. Laches is a bar to u suit for 
 specific performance, especially where the rights of third parties have arisen. 
 
 lb. — Callen v. Ferguson, 1857, 5 C. 247. One guilty of laches will not be 
 entitled to specific performance, especially if in the meantime other rights 
 have arisen. 
 
 lb. — Townsend v. Lewis, 1860, 11 C. 125. Where time does not appear to 
 be of the essence of a contract and there has been no inequitable delay, 
 equity will specifically enforce an agreement in favor of one who is partly 
 answerable for the delay. 
 
 lb. — Miller v. Henlan, 1865, 1 S. 265. Equity will not decree specific 
 performance where plaintiff has been guilty of laches, and there has beeu 
 such a change of circumstances as would render such a decree a great hard- 
 ship to the other party. 
 
 lb. — Dauchy v. Pond, 1839, 9 W. 49. Time may be made of the essence 
 of a contract for the sale of land so that one making default cannot after- 
 wards have specific performance of the contract although it had been pre- 
 viously performed in part. 
 
 lb.— Ziegler v. Houtz, 1841, 1 "W. & S. 533. One who has been guilty of 
 laches, and whose acts were such as were calculated to induce the other 
 party to presume an abandonment of the contract cannot havb specific exe- 
 cution thereof. 
 
 lb. — Richards v. Elwell, 1864, 12 Wr.4661. A vendee in possession and 
 in no default is not barred from having specific performance by not applying 
 for it at once, nor need his possession be as strict as is required under the 
 Statute of Limitations. 
 
 lb. — Cadwalader's Ap,, 1868, 7 S. 158. One who contracts to convey what 
 he has not, will not, after twenty years, be entitled to specific performance on 
 asserting that he may now he able to fulfil his part of the contract. 
 
 lb. — Moss' Ap., 1862, 7 "Wr. 23. A stockholder agreed to sell his stock 
 for a certain sum and transfer it as paid for. After fifty years equity would 
 not specifically enforce the agreement. 
 
 lb. — Patterson v. Wartz, 1839, 8 W. 374. Laches on the part of the plain- 
 tiff is an impregnable bar to specific performance. 
 
 lb. — DuBois V. Baum, 1864, 10 Wr. 537. Where a vendee not in posses- 
 sion lies by for several years, the land in the meantime becoming more valu- 
 able, he loses his equity for specific performance. 
 
 lb. — Washabaugh t:. Staufi'er, 1874, 32 S. 497. A vendee who has once re- 
 fused to take the land, although told by vendor that he would be held to 
 
LACHES. 313 
 
 his purchase, cannot after two yearis, during which time the land has been 
 resold, come into equity for specific performance. 
 
 State Claim.— Holmes' Ap., 1875, 29 S. 279. A state claim is regarded 
 With disfavor by equity. 
 
 Statute of Limitations— Running of— Bank of United States v. Biddle, 
 1844, 2 Pars.. 31. In all cases, except those of fraud and technical trusts, 
 equity follows the law in applying the statute of limitations. In cases of 
 fraud the statute only commences to run when the fraud is fully discovered, 
 but in every ease equity abhors stale claims. 
 
 lb.— Bank of Gettysburg v. Thompson, 1857, 2 Luz. L. Obs. 90. One 
 who has slept on his rights until his claims would have been barred at law 
 cannot find relief in equity. 
 
 lb.— Decree.— Neeley's Ap., 1877, 4 N. 387. A bill will not lie to en- 
 force a decree made twenty-five years before, especially when the rights of 
 third parties have intervened. 
 
 lb. -Trust.— Mellish's Est., 1850, 1 Pars. 482. Although the statutes of 
 limitittion do not apply in equity to those direct technical trusts exclusively 
 cognizable there, yet it does not follow that such a trust will be enforced 
 after a lapse of time, for equity turns away from stale claims. 
 
 lb.— lb. — Evans' Ap., 1876, 31 S. 278. A resulting trust in personalty 
 may be barred by less than six years laches, as where the cestui que trust, 
 knowing the facts has by his conduct induced the belief that he waived the 
 fraud. 
 
 Subrogation.- Gring's Ap., 1879, 8 N. 336. Subrogation will not be 
 allowed one who is guilty of laches as against those who are injured by such 
 laches. 
 
 lb.— Creditors in Attachment.— Mechling's Ap., 1888, 22 w. N. c. 
 138. Where a/, fa. and attachment had been issued by a creditor, a second 
 creditor issued a second fi. fa. and attachment, and after the first had been 
 satisfied, a third creditor issued his attachment, the second creditor peti- 
 tioned to be subrogated to the rights of the first creditor. Held that as the 
 subrogation would prejudice the rights of the third creditor and the peti- 
 tioner had been guilty of laches, the petition would not be granted. 
 
 lb.— Subsequent Creditors.— Douglass' Ap. , 1864, 12 "Wr. 223. Subro- 
 gation is but an equity, and is nothing more after a decree of subrogation 
 has been made, and may be lost by laches. One neglecting to assert his 
 right cannot after four years come upon a fund in the hands of a sheriff 
 against subsequent creditors. 
 
 lb.— Vendor and Vendee.— Bonhaw's Estate, 1883, 4 Kulp, 457. A 
 vendee whose land has been sold to pay the judgment debt of his vendor, 
 wiU be subrogated to the rights of the plaintiff in the judgment, provided 
 he is not guilty of laches as against a subsequent judgment creditor of the 
 vendor. 
 
 Trust- Ex Maleficio. — Graham v. Donaldson, 1836, 5 W. 451. A pur- 
 chase of defendant's property at sheriff's sale by the request of defendant 
 and for the defendant i. e. giving him the right to redeem, raises a trust ex 
 malefkio in that it may keep others from bidding. But the right of the 
 eeslui que trust may be barred by laches as where he stands by for fourteen 
 years as in this case. 
 
 lb. — ^Resulting. — Hassler V. Bitting, 1861, 4' "Wr. 68. After twenty-four 
 year's laches in asserting a resulting trust, and during all that time assent- 
 ing to another agreement, a court of equity will not consider the case. 
 
 lb.— Transfer of Stock.— Halsey v. Tate, 1866, 2 S. 311. To assert 
 after sixty years that a transfer 'of stock was in trust, is a stale claim. 
 
 Will— Precatory Words.— Kennedy ?>. Kennedy, 1874, ] W. N. C. 33. 
 Equity will not move to enforce a clause in a will expressing the desire of 
 the testator that his daughter should have a home in the mansion house, 
 when she has neglected to avail herself of her right for three years. 
 
314 LANDLOED AND TBN ANT. 
 
 LATVDLOEILD ANii* TENANT. 
 
 Adverse Claimant.— Phila. Trust Co. «. Kelley, C. p. 1881, 10 W. N. C. 
 173. Equity will not enjoin a tenant from surrendering the possession to an 
 adverse claimant. 
 
 Injunction— Fixtures.— Milliken v. Rhodes, C. P. 1875, 1 W. N. C. 325. 
 An injunction will not be granted to restrain a tenant from removing fix- 
 tures where his answer denies the facts set forth in the hill, but in this case 
 there seeming to be considerable doubt as to some facts the court required 
 the defendant to enter security. 
 
 lb.— Mechanic's Lien.— Houston's Ap., 1878, 6 W. N. C. 162. "Where a 
 mechanic has filed a lien against a tenant who holds an improvement lease 
 and threatens to sell the property thereunder, equity will restrain him at the 
 suit of the owner. 
 
 lb.— Sheriff's Vendee— Distress.— Williams v. Flood, c. P. 1875, i w. 
 N. C. 199. An injunction will not be granted to restrain a sherift's vendee 
 from levying a distress for rent against the defendant who has remained in 
 possession. 
 
 Landlord Claiming Property of Tenant. — Edwards' Ap., 1884, 9 Out. 
 103, affg. S. C. 13 W. N. C. 111. One who has claimed the property of his 
 tenant which has been taken by the sheriff, is estopped from coming in on 
 the fund as a creditor of the tenant. , 
 
 Lease— Assignee of— Jurisdiction.— Brolaskey v. Hood, C. P. 1866, 23 
 Leg. Int. 222, S. C 6 Phila. 193. Equity has jurisdiction to restrain an as- 
 signee of a lease from breaking the covenants therein contained. 
 
 lb.— Instalments— Sale— Relief.— Merrill v. Trimmer, 1886, 2 Pa. Co. 
 C. Rep. 49. A lease provided that upon five days' failure to pay monthly 
 instalments of rent, the rent for the whole term should heeome instantly due 
 and payable. After sheriff's sale in the second month of the year, the land- 
 lord claimed to be paid the whole of the current year's rent. Held that 
 equity would relieve the lessee against the severe penalty and forfeiture, and 
 therefore the landlord was allowed only the amount of rent already accrued. 
 
 lb.— Mortgage— What is Construed.— Halo v. Schick, 1868, 7 S. 319. 
 A debtor leased premises to his creditor for a term certain, the rent to be ap- 
 plied on the debt, and the lessee covenanting to surrender possession at the 
 end of the term. Held not to be a mortgage. 
 
 lb.— Mortgage— Instalments— Scire Facias.— Hosie v. Gray, 1872, 21 
 S. 198.' A leasehold mortgage provided that on any instalment not being 
 paid a scire facias should issue. Held that the scire facias might issue when 
 that contingency happened, although np statute provided that a scire facias 
 could issue on a leashold mortgage. 
 
 lb.— lb.— Priority.— Mcllvain v. Barton, C. P. Delaware, 1883, 2 Del. Co. 
 R. 1. A mortgage on a leasehold, the lessee having an option of buying 
 which he exercises is postponed to a prior mortgage on the fee subject to 
 which the lessee takes title. 
 
 lb —lb.— Recording.— Hosie v. Gray, 1872, 21 S. 198. A leasehold mort- 
 gage is good between the parties if not recorded until after five days as com- 
 manded by statute. 
 
 lb.— lb.— lb.— Ladley v. Creighton, 1872, 20 S. 490. Act April 27. 1855, 
 s. 8, (P. L. 368,) requiring a mortgage of a leasehold interest to be placed on 
 record together with the lease, is substantially complied with by appending a 
 copy of the lease as a schedule and referiing to the lease itself recording 
 with a prior mortgage. 
 
 lb.— Mortgagor— Foreclosure.— McCall r. Lenox, 1823, 9 S. & E. 302. 
 A lease made by a mortgagor after the mortgage and before judgment on the 
 accompanying warrant is avoided by foreclosure. 
 
LA^-DLOl£D A.Xl) TJiXAXT. :jl5 
 
 lb.— Of Railroad— Powers Under.— Lewis n. Ger., Nor. & Phoenixville 
 E. R. Co., C. P. 1882, 39 Leg. Int. 13. Where a railroad corporation has 
 under Its charter, the right to appropriate property but has no authority to 
 lease such right, the lessee of said corporation cannot exercise such a power 
 no matter how ample the terms of the demise may be. 
 
 lb.— lb.— Bitteubender v. Sunbury R. R. Co., 1861, 4 Wr. 269. A lease 
 of one railroad to another in trust to pay debts is au assignment for creditors 
 and void so far as it contains preferences. 
 
 lb.— lb.— Gratz V. Penna. E. E. Co., 1862, 5 Wr. 447. A lease by one 
 railroad to another oi all its property, the rent to be 30 per cent, of the gross 
 earnings, which per cent, was to be applied first to taxes and interest on 
 bonds, is not an assignment for creditors with preferences. 
 
 lb.— Rent.— Brown c. Vandergrift, 1875, 30 S. 142. A clause in a lease 
 providing for a forfeiture in case the rent is not paid promptly will not be re- 
 lieved against. It is not a forfeiture contrary to equity, but protects the 
 equity of the lessor against the laches of the lessee. 
 
 lb.— Sheriff's Vendee of.— Kemble v. Grafi; D. C. 1867, 24 Leg. Int. 
 148, S. C. 6 Phila. 402. Equity will relieve a sheriff's vendee of a lease 
 from forfeiture thereunder. 
 
 Lessee— Injunction— Remedy at Law.— Western Union Telegraph Co. 
 V. Reading E. E., C. P. 1872, 4 Leg. Gaz. 364. Equity will not restrain a 
 lessee of a line of telegraph from using it otherwise than as contracted for, 
 there is au adequate remedy at law. 
 
 Mortgage— Proceedings at Law— Tender. — Hartman v. Quay, 1881, 1 
 Ches. Co. Eep. 487. A mortgagee will be restrained at the instaoce of a sub- 
 sequent lessee from selling the property, upon the latter tendering the amount 
 of the mortgage. 
 
 lb. — Matthew's Ap., 1883, 8 Out. 444. A tenant who holds a mortgageon 
 the premises demised, cannot enter up judgment and sell the property with- 
 out notice to his landlord. The relation is a confidential one and requires 
 good faith. 
 
 Mortgagor and Mortgagee— Landlord— Trust.— O'Harra v. Baylis, D. 
 C. 1859, 16 Leg. Int. 69, S. C. 2 Phila. 357. Where a landlord becomes a 
 mortgagee in provision of his tenant's household, he cannot be held answer- 
 able without proof that the mortgage debt has been paid or that he has 
 abused the trust. 
 
 lb.— Relation of — Kunkle v. Wolfersberger, 1837, 6 W. 126. The rela- 
 tion of landlord and tenant is not inconsistent with that of mortgagor and 
 mortgagee. The fact therefore that the mortgagor rents of the mortgagee 
 for a stipulated sum and for a term certain does not rebut the fact that .the 
 original transaction was a mortgage. 
 
 lb.— lb.— Trespassers— Rent.— Myers .;. White, 1829, 1 E. 353. Ten- 
 ants under a mortgagor cannot be treated as trespassers by the mortgagee, 
 nor can the latter demand the rent of them as there is no privity, the mort- 
 gage being looked on as a mere security. 
 
 Notice^Title. — Hottenstein v. Lerch, 1882, 8 Out. 454. The possession 
 of one other than the owner of the recorded title is notice of his own title 
 and that of his landlord. 
 
 Rent — ^Husband and Wife. — Wheelock v. Wheelock, C. P. Wyoming, 
 1874, 1 C. P. Rep. 87. In equitable proceedings by a wife to compel her 
 husband to transfer to her real estate, the court -svill enjoin the tenant from 
 paying rent to the husband, but will not make a preliminary decree as to the 
 p -ssession. 
 
 Rent Charge— Mortgage of — Weidner v. Foster, 1830, 2 p. & W. 23. A 
 m)rtgage of a rent charge is a security only, and the tenant is safe in pay- 
 ing the rent to the mortgagor, unless the mortgagee demands payment to 
 liimself. 
 
316 LANDLOED AND TENANT — LIEN. 
 
 Sale by Tenant— Notice.— Matthew's Ap., 1883, 8 Out. 444. A tenant 
 ■who holds on the premises demised, cannot enter up judgment and sell the 
 property without notice to his landlord. The relation is a confidential one 
 and requires good faith. 
 
 Specific Performance— Option to Purchase.— Murill's Ap., 1882, 13 
 W. N. C. 44, S. C. 14 Lan. B. 165. A lessee who has an option to purchase 
 may, on exercising his option, enforce his right by means of a bill for speci- 
 fic performance. 
 
 Sub-letting— Allegations. — Pfund v. Herlinger, C. P. 1872, 4 Leg. Gaz. 
 65, S. C. 30 Leg. Int. 84, 10 Phila. 13. Equity will not enjoin a tenant from 
 sub-letting contrary to the terms of hi^ lease where the bill does not aver in- 
 jury to the complainant. 
 
 Subrogation— Assignee.— Keely v. Cassidy, 1880, 12 N. 318. The 
 sureties of an assignee for creditors who have had to make good his account 
 and out of which advanced sum a landlord has been paid, are not entitled 
 to subrogation to the rights of the landlord, the debtor having been adjudged 
 a bankrupt. 
 
 Title— Denial of Landlord's— Mistake.— Mays ». Dwight, 1876, 1 N. 
 462. On the ground of a mutual mistake of fact, equity vrill relieve a 
 lessee though his defence by a denial of the lessor's title. 
 
 lb. — ^Remedy at Law. — Vanarsdalen v. Whitaker, 1874, 2 Fost. 203, S. 
 C. 31 Leg. Int. 196, 10 Phila. 153. Equity will not interfere in a proceed- 
 ing by a landlord to obtain possession from the tenant on the ground that 
 the latter has the title, lor if he has, he may set it upon a legal defence. 
 
 L,AKD "WARRANT. 
 
 See Trusts and Trustees, I. B. (g.); J. 
 
 LATERAL SUPPORT. 
 
 See Injunction. 
 
 LEASE. 
 See Landlord and Tenaxt. 
 
 LIABILITY. 
 
 See Trusts and Trustees, II. L. 
 
 LIEN. 
 
 [See also Equitable Lien.] 
 Adjustment— Act of April 22, 1836.— Phelps' Ap., 1881, 2 Out. 546. 
 
 Act April 22, 1856, P. L. 534, providing^ manner in which one having liens 
 
IJEN. 317 
 
 on several properties shall be controlled, must be strictly followed, and no 
 other remedy is allowed. 
 
 lb.— Mortgage— Notice.— Robeson's Ap., 1888, 21 W. N. C. 159. A. 
 was the owner of a tract of land subject to the lien ot certain judgments 
 and to a subsequent mortgage to B. duly recorded. He subsequently be- 
 came the owner of a second tract upon which the above judgments became, 
 by revival, a lien, A. afterwards executed a mortgage on this second tract to 
 C. Both tracts were sold under executions issued on said judgments, and 
 the proceeds of the first proved insuifioient to pay the liens thereon. B. 
 thereupon claimed to be subrogated to the rights of the judgment creditors 
 against the proceeds of the second tract, in priority to C.'s mortgage. Held 
 that at the time C. took his mortgage, B.'s right of subrogation had already 
 accrued and that C. must be presumed to have had notice from the record 
 thereof, and that B. was entitled to the subrogation claimed. 
 
 lb.— Prior Lien Creditors.— McGinnis' Ap., 1850, 4 H. 445. Subroga- 
 tion will not be allowed where it conflicts with the rights of others. There- 
 fore one having a lien on one tract will not be subrogated to the rights of 
 one having a lien on two, when there are lien creditors on the other tract 
 prior to him. 
 
 lb.— lb. — McCormick v. Irwin, 1860, 11 C. 111. When a surety inter- 
 venes for the purpose of obtaining time for the principal, a prior surety will 
 have the same right of subrogation against him as against the principal. 
 
 lb.— lb.— Yerkes' Ap., 1844, 8 W. & S. 224. A. had a prior lien on lot 
 No. 1. B. on lot No. 2. By mistake A. was paid first from lot No. 2. Held 
 that B. could not be subrogated to A.'s right against lot No. 1. 
 
 lb. — lb. — Dunn V. Olney, 1850, 2 H. 219. A. has a first lien against 
 property No. 1 and B. a second lien. As to property No. 2 their positions 
 are reversed. The purchasers of property No. 1 agree with A. that if he 
 will release his lien on No. 1, they will make his lien against No. 2 as good 
 as a first lien. No. '.I being sold and A. not getting payment asked to be 
 subrogated to B. 's judgment against No. 1. Held, not a pure case of subro- 
 gation, but owing to the agreement equity would be done by allowing it. 
 
 lb.— Release.— Lowry v. McKinney, 1871, 18 S. 294. After part of a 
 tract of land subject to a lien is sold, a release of the lien as to the remain- 
 der discharges the part sold also. 
 
 lb.— Sale— Judgment Creditor— Title.— Nailer «. Stanley, 1823,10 S. 
 & R. 450. A sale by a judgment creditor of a part of a tract bound by a 
 judgment, conveys a good title to the grantee if the remaining tract is suf- 
 ficient to discharge the lien. 
 
 lb.— Subsequent Lien Creditor.— Sheffy's Ap., 1881, 1 Out. 317. Where 
 a lien has been discharged by a debtor or one standing in his shoes, a subse- 
 quent lien creditor cannot be subrogated to the rights ot the one paid. 
 
 lb.— lb.— Lloyd v. Galbraith, 1858, 8 C. 103. The right of subrogation 
 only prevails where both funds are in the hands of a common debtor, or, if 
 the luuds belong to different persons, where the one not taken is primarily 
 liable: therefore if one of two tracts subject to a lien he conveyed, and after- 
 wards another lien be entered against the tract remaining, this lieu creditor 
 has no right to subrogation when the other makes his debt out of this tract. 
 
 lb.— lb.— Delaware Canal Co.'s Ap., 1561, 2 Wr. 512. The right of sub- 
 rogation of a second lien creditor having a lien upon but one of two funds 
 of his debtor, exists against subsequent creditors of the debtor as well as 
 against the debtor himself. 
 
 lb.— lb — Blich V. Weller, C. P. Luzerne, 1882, 3 York L. R. 206. A third 
 lien creditor has no standing in court to compel a first lien (fl."editor to accept 
 payment from him and to assign his judgment to him. 
 
 Fund in Sheriff's Hands. --Bank of Penna. v. AVinger, 1829, 1 R. 295. 
 There Is no equity which requires a lien creditor to satisiy his claim out ot 
 funds in the sheriff's hands, he may pass it without affecting his security. 
 
318 LIEN. 
 
 Legal Title and Lien on Equitable Title— Sale With Warranty.— 
 
 Post's Ap., 1861, 3 Wr. 328. One holding a legal title to land and a lien 
 upon an equitable title to the same land, does not lose the latter by convey- 
 ing the former with warranty. There was no merger as the two titles were 
 distinct. 
 
 Liens not Revived. — Grove v. Latshaw, 184G, 3 Barr, 141. Where part 
 of the purchase money of land is a bond given to be applied to discharging 
 the liens upon that land and the liens are not revived, the lien creditors can- 
 not claim the benefit of the bonds. 
 
 Lien of Junior Encumbrancer.— Allegheny Nat. Bank's Ap., 1871, 2 Leg. 
 Op. 88, S. C. 19 Pitts. L. J. 74. A creditor who has two funds shall not go 
 against the one whicli is the exclusive resource of another debtor, without 
 subrogating the latter to the fund upon which his own lien was exclusive. 
 
 Lost Lien.— Gorton v. Stone, C. P. Luzerne, 1882, 1 Knlp, 245, S. C. 9 
 Luz. L. Reg. 289. Subrogation will not be allowed in favor of one who has 
 once had a lien on the fund he now seeks to charge and has lost it. 
 
 Mechanic's Lien. — Stauflfer v. Bowers, C. P. Lancaster, 1879, 11 Lan. Bar. 
 3. A mechanic's lien entered against an equitable estate, binds only it, and 
 survives or falls with it. 
 
 lb. — Keller v. Denmead, 1871, 18 S. 449. A mechanic's lien binds an 
 equitable estate. 
 
 lb.— Against Eq.uitable Estate Binding.— Lyon v. McGuffey, 1846, 4 
 Barr, 126. Under Act April 28, 1840 (mechanics' liens), a mechanic's lien 
 against the equitable estate of one will bind the legal estate when it comes 
 into his possession, and will be prior to a judgment given to secure the pur- 
 chase money, unless that judgment is entered soon enough to show that it 
 and the conveyance were one transaction. 
 
 lb. — ^Rent. — McQuaide v. Stewart, 1864, 12 Wr. 198. Claims arising under 
 separate covenants cannot be set off against each other. Therefore in an 
 action to enforce a mechanic's lien, on a house built by the plaintiff under 
 an agreement by which he was also to be tenant for a number of years, a set- 
 off of rent was not allowed. 
 
 lb. — Gable v. Parry, 1850, 1 H. 180. There can be no set-off against a 
 set-off. A contractor being jointly sued with an owner on scire facias sur 
 mechanics' lien may set off a debt due him by the plaintiff. 
 
 Mortgage — Judgment. — Ranch v. Dech, 1887, 1 Crum. 160. Where the 
 lien of a judgment obtained on a mortgage has been discharged by a judicial 
 sale, it will not be revived by the fact tliat the mortgagor subsequentl}' ac- 
 quired title to the premises, through the purchaser at said sale. 
 
 lb.— lb.— Sale.— Ruth & Stoner's Ap., 1888, 20 W. N. C. 375. A. exe- 
 cuted a mortgage upon his property and subsequently a judgment was en- 
 tered against him and execution was issued against the mortgaged premises. 
 The mortgagee obtained a judgment upon a bond for the same amount as 
 the mortgage and issued execution before the sale of the premises. The 
 premises were sold to the mortgagee, his lien going on account of the pur- 
 chase money. To the second writ the sheriff returned "'same as to first 
 writ." Held that as the judgment under which the second writ was sold 
 was for the debt secured by the mortgage, and as by the returns the court 
 would infer that the sale had occurred under both writs, the sherift''s return 
 was proper. 
 
 lb.— Leasehold— Sale.— Gill v. Weston, 1885, 43 Leg. Int. 175. A lease- 
 hold mortgagee properly recorded is not discharged by a sale under subse- 
 quent liens. 
 
 lb.— Orphan^' Court Sale.— Kennedy v. Whalen, 1885, 5 Kulp, 35. An 
 equitable, unrecorded mortgage is divested by an orphans' court sale for the 
 •payment of a debt, the lien of which attached prior to the mortgage. 
 
 lb.— Restriction of Lien.— Robison v. French, 1S88, 22 W, N. C. 143. 
 
LIEN. 319 
 
 Where a bond and warrant of attoroey given with a mortgage containing the 
 following limitation: " The above warrant of attorney not to take ellect ex- 
 cept in default of payments, as provided in mortgage accompanying this 
 bond, and to be confined in the premises described," it is not error to enter 
 a general judgment on the warrant when the lien thereof is expressly re- 
 stricted " to premises described in the mortgage." 
 
 lb.— Taxes— Priority.— Ansproch & Stanton's Ap., 1886, 2 Amer. 27. 
 Under the Act of April 1, 1873, relating to a lien of taxes on real estate in 
 Delaware county, a prior mortgage will be postponed to the payment of 
 taxes assessed on the mortgaged premises subsequently to the mortgage. 
 
 lb.— Unrecorded— Assignee for Creditors.— Mellon's Ap., 1858, 8 C. 
 121. An unrecorded mortgage is a valid lien against the property in the 
 hands of an assignee for creditors. 
 
 Payment by Junior Lien Creditor.— Gratz v. Farmers' Bank, 1836, 5 
 W. 99. A junior lien creditor who pays off a prior lieu is not entitled to 
 subrogation against the surety in the latter. 
 
 Purchase Subject to a Lien.— Cxearhart v. Jordan, 1849, 1 J. 32.5. Where 
 two parties purcha,se a tract subject to a lien, each is a principal as to his 
 share of the lien and a surety as to his co-owner's share and the right of sub- 
 rogation is governed accordingly. 
 
 Belease. — Snyder v. Crawford, 1881, 2 Out. 414. A lien creditor may re- 
 lease part of the tract bound without losing his claim to the rest unless he 
 have actual notice that the part not released has been conveyed and is warned 
 not to do anything by which the rights of these grantees may be diminished. 
 
 Sale— Title.— Philadelphia v. Bicknell, 1860, 11 C. 123. A gift of land 
 io a charity on condition that a school house be built upon it, is not fully 
 vested in the public as long as the property is encumbered with liens incur- 
 red in erecting the school house, and a sale under those liens passes a good 
 title as against the public. 
 
 Sheriff's Sale — Testamentary Provisions — Mortgage.— Strauss' Ap., 
 1865, 13 Wr. 353. Parties may as between themselves and their privies 
 created by clear and express words liens upon land but these are discharged 
 by a sheriff's sale unless in the nature of testamentary provisions for a wife 
 or children, or are incapable of valuation or are expressly created to run 
 with the land. A mortgage subsequent to such lien is also discharged by 
 such sale. 
 
 Taxes— Vendee Under Articles.— Vanarsdalen's Ap., 1877, 3 W. N. V. 
 463. A lien for unpaid taxes attaches to a fund in the hands of the sheriff, 
 which fund has arisen from a sale of an equitable estate of a vendee under 
 articles. 
 
 Vendor and Vendee — Judgment — Priority.— Bowser's Ap., 1889, 5 
 Out. 466. A vendor who gets judgment on his contract and sells the ven- 
 dee's interest thereunder, sells all the title that he himself has. His lien, 
 the vendor's, is discharged and is prior to all other liens against the vendee. 
 
 lb. — Mechanic's Lien. — Weaver v. Lutz, 1883, 6 Out. 593. A sale under 
 a mechanic's lien entered against the vendee as contractor and the vendor as 
 owner for a hon.se built by a vendee in possession under articles carries the 
 whole title to the property. 
 
 lb.— Mortgage.— Kinports v. Boynton, 1888, 91 W. N. C. 437. The in- 
 terest which remains in the vendor of land by articles of sale, pending pay- 
 ment of the purchase money, is such an estate in land as may be conveyed or 
 mortgaged and is subject to the lien of a judgment recovered against the 
 vendor. 
 
 lb.— Purchase Money— Bond and Surety.— Kauffelt v. Bower, 1891, 7 
 S. & R. 64. Where an absolute conveyance of land is made and a bond 
 with a surety taken for the balance of the purchase money, there is no ven- 
 dor's lien even as against a judgment creditor who had notice that the pur- 
 chase money was still unpaid. 
 
320 LIEN— LIS PENDENS — LUNATIC. 
 
 lb.— lb.— Stoufifer V. Coleman, 1794, 1 Y. 393. A vendor who has taken 
 bonds for the purchase money and who keeps the title papers, has a lien for 
 the purchase money against the vendees and those with notice. 
 
 lb.— lb.— Notice.— Neagley's Est., O. C. Dauphin, 1878, 2 Pears. 309. 
 A vendor has no lien for the purchase money, though the estate passes into 
 the hands of one with actual notice. 
 
 Waiver of Exemption.— Pittman's Ap., 1864, 12 Wr. 315. Where a 
 first lien is with waiver of exemption and a second lien is without such 
 waiver, the latter creditor can compel the former to proceed first against the 
 $300. 
 
 When Lien Discharged-— Dodson's Est., O. C. York, 1889, 6 Pa. Co. C. 
 Eep. 617. In a sale of real esta,te by an assignee under an order of the 
 court, a lien will not be discharged unless the creditor had notice of the in- 
 tention to apply for the order of sale. 
 
 LIS PENDEIVS. 
 
 Certiorari — Koad Case. — City of Phila. r. Kensington Turnpike Co., C. 
 P. 1881, 38 Leg. Int. 251. A decision by the supreme court upon a certiorari 
 from the quarter sessions in a road case, has no effect on a bill in equity 
 pending in the common pleas. 
 
 Life Insurance Policy. — Eaessler v. Temperance Mutual, 1887, 4 Lan. L. 
 Kev. 233. The pendency of a bill in equity to cancel a policy of insurance 
 cannot be pleaded in a common law action to enforce the payment of the 
 policy. 
 
 LUIVAXIC. 
 
 Chancellor— Power of, to Institute Inquiry. — Menver's Ap., 1888, 4 
 Crum. 115. A court of equity in Pennsylvania has no power, at the in- 
 stance of a third person, to institute a summary inquiry and adjudge a party 
 to a pending suit a lunatic. 
 
 Claim— Validity of— Ascertainment.— Eogers' Ap., 1888, 4 Crum. 178. 
 It is the undoubted right of a lunatic debtor as well as his creditor to have 
 the validity of the claim and its amount ascertained by due course of law. 
 
 Committee of^Sureties — Death. — Commonwealth ck re?, i;. Parke, 1888, 
 6 C. C. Eep. 144. In case of the death of one of the sureties on a bond of a 
 committee in lunacy, and a new bond is presented and approved, it is not 
 the practice to allow the prior bond to be withdrawn. 
 
 Debts of-Order of Court.— Rogers' Ap., 1888, 45 Leg. Int. 316. A man 
 ill prison for a crime, sued on a writ of habeas corpus; physicians examined 
 the defendant and these facts led to a proceeding de lunaiico inquirendo. The 
 charges of the physician cannot be paid by order of court, as they have no 
 precedence over other debts. 
 
 Execution Against. — Echstein's Est., 1842. 1 Pars. 59, S. C. 1 Clark, 
 224, 2 Pa. L. J. 136. A creditor of a lunatic will be restrained from issuing 
 execution. He must apply to the court to have his claim paid out of the 
 estate. 
 
 Exceptions to account. — Halsey's Ap., 1888.5 Crum. 209. Exceptions 
 to the final account ol a committee of lunacy will not be sustained when they 
 ccmsist of a collateral attack upon the finding of the inquisition as to certain 
 members of the lunatic's family. Tlie fact that the court was not informed 
 of the illegitimacy of these members will not be taken into account.- 
 
LUNATIC — MECHANIC'S LIEN. 321 
 
 Improvements— Compensation.— Rogers v. Walker, 1847, 6 Barr, 371. 
 A lunatic may recover land conveyed by him without restoring the purchase 
 money or compensating for improvements. The conveyance vpas void, and, 
 as to the improvements, the lunatic could not be estopped, not being capa- 
 ble of knowing his rights. 
 
 Notice— Proceedings de Lunatico Inquirendo.— Moore v. Hershey, 
 1879, 7 W. N. C. 478. Quiere whether proceedings de lunatico inquirendo, are 
 constructive notice to one taking a promissory note that the maker is a 
 lunatic. 
 
 Powers of Court.— Hassenplug's Ap., 1884„10 Out. 527. In proceedings 
 df, lunatico inquirendo, the court has the powers of a court of chancery, and 
 linder the Act April 16, 1848 (P. L. 663), may dispose of the costs in such 
 manner as shall seem lit. 
 
 Set-oflf.— Beale u. Coon, 1834, 9 W. 183. One who has purchased goods 
 from a committee of a lunatic cannpt set oif a claim which he has against 
 the lunatic himself. 
 
 Trust— Corpus and Income of.— Earp's Est., 1851, 2 Pars. 178. Where 
 a cestui que trust has been declared a lunatic and a committee appointed, the 
 trustee is still entitled to hold the corpus of the estate. The committee is 
 entitled only to the income. 
 
 Trustee.— Ey rich V. Hetrick, 1850, 1 H. 488. A lunatic may be trustee. 
 
 Weakness of Intellect — Misrepresentations — Title. — Menrer's Ap., 
 1888, 4 Crura. 118. In a bill in equity the complainant charged that he was 
 the legitimate son and sole heir-at-law of a decedent; that the defendant was 
 the illegitimate son of the plaintiff's mother but not of the plaintiff's 
 father and both had been brought up in the same family; that by fraudulent 
 advantage taken of the plaintiff's ignorance and mental weakness, and by 
 fraudulent misrepresentations, the defendant had obtained from the plain- 
 tiff his title to the real estate of his deceased father. Held it was not error 
 to decree the cancellation of the conveyances; that the defendant should 
 forthwith deliver up possession of the real estate to the plaintiff, and that an 
 account should be taken of the rents, issues and profits, 
 
 MAINTENANCE. 
 
 See AcCUMttLATION, III. 
 
 MANDATORY INJUNCTION. 
 
 See Injunction, I., X. 
 
 MARRIED WOMEN. 
 
 See Husband and Wife ; Injunction, L, N. 
 
 MECHANIC'S I.IEN. 
 
 See Lien ; Moetgage, Moetgagoe and Moetgagee, XVII., C. 
 21 — equity; 
 
322 MAEKETABLE TITLE. 
 
 3IARKEXABLE TITLE. 
 
 • Assignee for Creditors— Vendee.— Adams v. Humes, 1840, 9 W. 305. 
 A vendee of the assignee for creditors of the owner is not bound to take an 
 unmarketable title. 
 
 Birth of Children.— List v. Rodney, 1877, 2 N. 483. The court decided 
 that a title was not marketable which might be defeated by the birth of 
 children to a woman seventy-five years of age. 
 
 Building.— Lesley v. Morris, D. C. 1873, 30 Leg. Int. 108, S. C. 9 Phila. 
 110. A title burdened with a building is not marketable. 
 
 Building Restrictions.— Ander's Est., O. C. 1878, 5 W. N. C. 78, S. C. 
 35 Leg. Int. 68, 12 Phila. 45. A vendee will not be compelled to take a 
 title clogged with unreasonable building restrictions. 
 
 Bncumbrance. — Nicol v. Carr, I860, 11 C. 381. An encumbrance upon 
 an otherwise good title makes it unmarketable. 
 
 Equitable and Legal Estate. — Tiernan v. Roland, 1850, 3 H. 429. A 
 vendor, at the time of the contract which he here attempts to enforce speci- 
 fically, had an equitable estate under articles with the right to acquire the 
 legal estate, this he did and tendered the conveyance. Held, the title was 
 marketable. 
 
 Ground Rent— Doubt.— McCarthy v. Winslow, C. P. 1875, 1 W. N. C. 
 515. A vendee will hot be compelled to take property if it is doubtful 
 whether or not it is subject to a ground rent. 
 
 lb. — Mitchell v. Steinmetz, 1881, 1 Out. 251. For a ground rent to be 
 marketable it must issue out of land with a marketable title. 
 
 Hand Money. — Herzberg v. Irwin, 1879, UN. 48. A suit brought on 
 articles of agreement to recover the hand money and compel the execution 
 of a mortgage is virtually a bill for specific performance and the title ten- 
 dered must be marketable. 
 
 Leaning of the Court.- Dalzell v. Crawford, 1842, 1 Pars. 37, S. C. 1 
 Clark, 155. A title to which there were some objections which the court 
 thought were unsound held to be marketable though admitted to be a close 
 case. 
 
 lb. — Doebler's Ap., 1870, 14 S. 9. A court of equity on a bill to compel 
 specific performance of a contract of sale of land will never compel a pur- 
 chaser to accept a title which is in the least degree doubtful. 
 
 Life Estate and Remainder.— Smith v. Coyle, C. P. 1875, 1 W. N. C. 
 370. Where there was a devise before 1793 to A. for life, remainder to her 
 issue living at her death, and if she shall die without issue, to B. in fee, a 
 title derived from the issue of A. after her death is marketable. 
 
 Litigation. — Ferguson's .ip., 1867, 6 S. 487. Equity will not specifically 
 enforce a contract when the title attempted to be forced upon the vendee 
 may be thereafter contested by one who is not then before the court and 
 whose interest, therefore, cannot be determined. 
 
 lb. — Swane v. Lyon, 1871, 17 S. 436. A title which exposes the vendee 
 to litigation is not marketable. 
 
 lb.— Outstanding Unrecorded Paper Title. — Speakman v. Forepaugh, 
 1863, 8 Wr. 363. The only cloud on a title was, that there was an out- 
 standing unrecorded paper title. It was admitted that the vendee would 
 only be affected by having had notice, and that there was no constructive 
 notice, but the fact that he might be open to litigation on the ground of 
 actual notice was enough to make the title unmarketable. 
 
 Married Woman— Judgment— Sheriff's Vendee.— Swayne v. Lyons, 
 1870, 18 Pitts. L. J. 212. The title of a sheriff 's vendee of a property sold 
 under a judgment again.st a married woman in which her liability Is ques- 
 tionable, is not marketable. 
 
MABKBTABLE TITLE. 323 
 
 Master's Report— Kelly's Est., O. C. 1876, 2 "W. N. C. 431. The 
 orphans' court ■will not compel a purchaser at its sale to complete his pur- 
 chase when the master reports that the title is bad. 
 
 Misdescription in Bill— Partnership.— Wood v. Cunningham, N. P. 
 1874, 1 W. N. C. 143. A partner- bought in real estate of the firm at a 
 public sale. There was a misdescription in the bills as to liens and fixtures. 
 Held that on paying the costs of the sale he would be relieved. 
 
 Mortgage— Payment of— Hebrew Society V. Bussier, 1875, 1 W. N. C. 
 161. A mortgage given for the purchase of property with a cloud on the 
 title and to be paid when the title is perfected, must be paid when the 
 statute of limitations has barred all adverse claims. 
 
 Orphans' Court.- DeHaven's Ap., 1884, 32 Pitts. L. J. 140. The 
 orphans' court has full power over its own sales and should not force a dis- 
 puted title on an unwilling purchaser. 
 
 Partnership— Assignment.— Tolmar v. Greer, C. P. 1870, 27 Leg. Int. 
 389, S. C. 7 Phila. 453. Where an assignee for creditors of a partnership 
 has sold land which was used as partnership property, his vendee will not be 
 compelled to accept unless the title of the partnership is clearly made out. 
 
 Partition.— Swain v. Fidelity Trust Co., 1867, 4 S. 455. A title* which 
 depends upon a partition irregular as to certain minors who are still such, is 
 not marketable, such as equity will decree a purchaser to take. 
 
 Part Payment of Purchase Money — Proof — Kostenbader v. Spotts, 
 1876, 30 S. 430. A vendee who has paid part of the purchase money which 
 he wishes to recover, on the ground^that the title is unmarketable, must show 
 greater clouds upon the title than he would be obliged to were'he defending 
 against specific pertbrmance. 
 
 Sheriff's Deed — ^Misdescription. — Middleton v. Middleton, 1884, 10 
 Out. 252. An error in the described courses of land con veyed by sheriff's 
 deed, which can be corrected by other descriptive matter in the deed so as to 
 define the tract conveyed with reasonable certainty, does not prevent the 
 deed from vesting a marketable title. 
 
 lb.— Misdescription.— Middleton v. Middleton, 1884, 15 W. N. C. 309. 
 The fact that a sheriff's deed in a claim of title misdescribes somewhat the 
 land conveyed does not make a title unmarketable if the misdescription is 
 easily remedied by a reference to other deeds. 
 
 Statute of Limitations.— Shober v. Dutton, N. P. 1866, 23 Leg. Int. 84, 
 S. C. 6 Phila. 185. A title depending for its validity on the statute of limi- 
 tations may be marketable. 
 
 lb. — Green u. Fricker, 1844, 7 W. & S. 171. A mortgage due for mOre 
 than twenty years terms no defence to an action to recover the, purchase 
 money of land covered by it. 
 
 lb.— Mortgage— Release.— Bratt v. Eby, 1871, 17 S. 396. A marketable 
 title may depend on the statute of limitations, but the court being divided 
 on the point whether or not a mortgage was included in the Act April 27, 
 1855, S. 7 (P. L. 369), providing that ground rents and other charges shall 
 be presumed released if not claimed for twenty-one years, it was held that a 
 title subject to a mortgage not released although not claimed for thirty 
 years, was not marketable. 
 
 lb.— Unsatisfied Mortgage.— Simpson v. Broomall, C. p. Delaware, 
 1882, 1 Del. Co. E. 229, S. C. 3 York L. R. 85. Equity will not compel oi e 
 to take a title on which there are unsatisfied mortgages, though over twenty 
 years old. 
 
 What is a.— Kostenbader v. Spotts, 1876, 30 S. 430. A marketable title 
 is one which the court warrants. 
 
 Will— Title Derived Through.— Anshutz v. Miller, 1876, 31 S. 212. A 
 devise was to A. for life then to his widow for life, then to B. and if B.'s 
 mother survived her she was to have the income during life, all the parties 
 
324 MAKKETABLE TITLE — MASTER. 
 
 mentioned together with B.'s father joined in a conveyance. Held that the 
 title was marketable. 
 
 lb.— lb.— Harmon's Ap., 1875, 2 W. N. C. 62. A title which was devised 
 through a widow whose title rested on her husband's will which devised the 
 land to his wife for life, remainder to his children for life, remainder to their 
 children in fee, the last devise being followed by the words ' ' I give and be- 
 queath the same to my beloved wife," is unmarketable. 
 
 ' MARSHALLIIVG ASSETS. 
 
 See Adjustment, VI. 
 
 MASTER. 
 
 [Fee of, See Fee.] 
 
 I. In General. 
 II. Practice. 
 
 I. In Oeneral. 
 
 Auditor— Distribution of Fund by. — Eice v. Southern Penna. Iron Co., 
 1874, 2 Fost. 19, S. C. 6 Leg. Gaz. 1. 31 Leg. Int. 9 Phila. 294. An auditor 
 appointed to distribute a fund rais d by a sale must distribute it to the 
 parties entitled under the decree. 
 
 lb.— Finding of Facts by.— Milligan's Ap., 1881, 10 "W. N. C. 203. An 
 auditor's iinding of facts will be reversed by the supreme court (though af- 
 firmed by the court below) where there is no evideuce to support it or the 
 finding is based on deduction from other facts. 
 
 lb.— lb.— Schepper's Ap., 1889, 23 W. N. C. 570. Where an auditor has 
 found facts from contradictory evidence and the lower court has reversed his 
 awardwithout showing in what it was erroneous, the supreme court will 
 reverse the judgment of the lower court, there being nothing to sustain it. 
 
 lb. — lb.— Harman's Ap., 1889, 9 Crum. 624. An auditor's finding of facts 
 are entitled to the same weight as the verdict of a jury, and will not be set 
 aside except for reasons moving a judge to grant a new trial. 
 
 lb.— Should Report Facts Only.— Wesco's Ap., 1866, 2 S. 195. An 
 auditor should report facts, not the testimony. 
 
 Il,._Weigllt of Facts.— Hindman's Ap., 1877, 4 N. 466. Facts reported 
 by an auditor which rest directly upon the testimony are entitled to great 
 weight, but facts which are mere references from other facts are more liable 
 to be set aside 
 
 Authority of.— Everhart v. Everhart, C. P. Luzerne, 1884, 2 Kulp, 358, 
 S. C. 12 Luz. L. Reg, 167. The recommitment to a master of his report for- 
 a .special purpose does not give him authority to open the whole case. 
 
 lb.— Burton v. Peterson, 0. P. 1877, 4 W. N. C. 526. A master to whom 
 testimony has been referred into orders to state the facts, cannot take addi- 
 tional testimony. 
 
MASTER. 325 
 
 lb.— Relief.— Morio's Ap., 1884, 41 Leg. Int. 85, Rev. 40 Leg. Int. 24. 
 A master has no authority to decide questioM not raised by the pleadings, 
 or to grant relief different from that prayed for, where the prayer of the 
 bill fails. 
 
 FindiagS of Fact.— Kutz's Ap., 1882, 4 Out. 75. Findings of fact by a 
 master, approved by the lower court, will not be set aside as a general rule, 
 even where the merits appear to be on the other side, but if the findings are 
 based on inferences from facts, tliey have not the same weight. 
 
 lb.— Cake's Ap., 1885, 42 Leg. Int. 464, S. C. i6 W. N. C. 489. Where the 
 findings of a master are inferences from facts, they are more liable to be re- 
 versed than when the facte formed are found as facts not as inferences. 
 
 lb.— Kisor's Ap., 1869, *12 S. 428. The finding of facte by a master, sanc- 
 tioned by the approval of the court below, will not be set aside except for 
 plain error. 
 
 lb.— Conflicting Testimony.— SproulPs Ap., 1872, 21 S. 137. Where a 
 master's report has been confirmed by the lower court the supreme court will 
 not reverse, on the ground that the testimony was conflicting and appears 
 rather against the finding of facts. 
 
 lb.— Party WalL— Parry V. Seusenig, C. P. Lancaster, 1880, 12 Lan. Bar. 
 89. Where in a suit in equity the matter in dispute was whether or not a 
 wall was a party wall, the master having reported that it stood on the land 
 of both parties but having said nothing as to its being a party wall, the com-t 
 dissolved an injunction previously granted to restrain ite being torn down. 
 
 lb.— Morgan's Ap., 1887, 19 W. N. C. 19. Thesupreme court will not re- 
 verse the master and court below on questions of fact, unless clear error be 
 pointed out. 
 
 lb. — Building Ass'n v. Mayer, 1888, 4 Montg. Co. L. Rep. 155. A mas- 
 ter's finding of facts will not be disturbed unless clearly unsupported by the 
 testimony. 
 
 lb.— Reid V. Anderson, 1888, S' Lan. L. Rev. 26, S. C. 4 Montg. Co. L. 
 Rep. 193. A master's finding of facte will only be disturbed when clearly 
 unwarranted by the evidence. 
 
 lb.— Lower Court as Master.— Baltimore R. R.'s Ap., 1881, 10 W. N. 
 C. 530. The finding of the lower court sitting as a master on the question 
 of fact as to the practicability of avoiding the crossing of two railroads at 
 grade will not be reversed except for palpable error. 
 
 lb.— McCay v. Black, C. P. Delaware, 1879, 36 Leg. Int. 471. The facts 
 found by a master will not be set aside unless they are plainly inconsistent 
 with the evidence from which he deduced them. 
 
 lb. — -Appeal of Bugbee, 1885, 14 Out. 331. The finding of a master that 
 a young man described as "of less than average Intelligence and capacity," 
 was not implicated iu a scheme devised and carried out by his father and 
 uncle to defraud both his own and his father's creditors, will not be dis- 
 turbed unless there is direct evidence to correct the master of error. 
 
 lb.— Credulity of.— Dellinger's Ap., 1872, 21 S. 425. Where a que.';- 
 tion of fact depended on the credibility of a witness, the finding of the mas- 
 ter will not be disturbed except for plain mistake. 
 
 lb.— Fraud.— Crowell v. James, 1875, 2 W. N. C. 176. Where a master 
 leporte that no fraud existed it will take very clear evidence thereof to over- 
 throw his report. 
 
 lb.— Mortgage— Parol Evidence.-rLogue's Ap., 1883, 8 Out. 136. Tlic 
 rule that deeds made before 1881, can be shown to be mortgages by pan 1 1 
 applies to sheriff's deeds, and the finding of a master "that the evidenic 
 preponderated strongly in favor of the plaintiff, and established beyond any 
 reasonable doubt to the master's satisfaction that the transaction was a 
 mortgage" affirmed by the lower court will not be disturbed except for 
 flagrant mistake. 
 
326 • MASTER. 
 
 Divided Court.— Madlem's Ap., 1883, 7 Out. 584. A master's report 
 stands, when on exception the common pleas judges are equally divided. 
 
 Partition— Sale in.— Fourth Baptist Church V. Bailie, C. P. Allegheny, 
 1881, 13 Lan. Bar, 131, S. C. 3 Scr. L. T. 169. A sale of real estate by a 
 master in chancery will be set aside before confirmation by the court upon a 
 better bona fide bid being made. 
 
 lb.— lb.— Riley v. Buckley, C. P. 1875, 1 W. N. C. 167. A master's sale 
 in partition will not be set aside for slight inadequacy of price, no rule can 
 be fixed, but in this case a sale of property for $10,500 would not be set 
 aside upon bond being given to bid $11,000 for it, and a sale for $1,250 was 
 set aside upon a bond being given to bid $2,500. , 
 
 Reference to— When Made.— Clark's Ap., 1869, 12 S. 447. An injury 
 is not irreparable if there be an adequatp remedy at law. Eemoval of ordi- 
 nary hotel fixtures is not an irreparable injury. ^Questions of fact ought to 
 be referred to a master. 
 
 II. Practice. 
 
 Appeal— Irregularity.— Hedge & Horn's Ap., 1869, 13 S. 273. Bill in 
 equity for an account, answer denying the allegations, no replication but 
 case without more went to a master who, it seems also acted as examiner, 
 and the whole case came up on his report. Held to be very irregular, but 
 there being no objection in the court below the supreme court can disre- 
 gard it. 
 
 Argument on— Report Omitted.— Wilbur's Ap., 1881, 10 W. N. C. 101. 
 The supreme court will not hear an appeal from a pro forma decree of the 
 common pleas confirming a master's report without argument, although both 
 parties are anxious that the cause be heard in this way. 
 
 Dismissal of Master.- Gibbons' Ap., 1883, 8 Out. 587. A master ap- 
 pointed by equity in proceedings in partition cannot be dismissed on an ex 
 parte hearing of a petition by one party in interest. 
 
 Duty of —Wilson V. Corson, C. P. 1874, 1 W. N. C. 98. Where a suit for 
 an account is referred to a master the proper practice is for him to report on 
 the liability of the parties to account and then to state the account. 
 
 Failure to Appoint.— Penna. E. R. Co.'s Ap., 1883, 13 W. N. C. 173. 
 The supreme court will not hear an equity case on bill, answer and report by 
 an examiner, where there has been no reference to a master and the lower 
 court has not made a special finding of facts. 
 
 Fee of.— Wingett's Estate, 1888, 6 Pa. Co. C. Rep. 383. Where a master is 
 appointed in case of an assignment, under the Act of February 17, 1876, the 
 party having him appointed is liable in the first instance tor his fee, but may 
 recover it in case the costs are imposed upon the respondent. 
 
 lb.— Retaining Depositions. — Melvin v. Handley, 1888, 4 C. P. Rep. 
 235. An examiner may not retain deposition which he has taken in order 
 to compel payment of his fee. 
 
 Partition— Sale in— Searches.— Newell «. Clark, C. P. 1884, 15 W. N. 
 G. 157. A master appointed to make u, sale in partition should take out 
 searches. 
 
 Reference to. — Herdic's Ap., 1868, 8 S. 211. Where a case is heard upon 
 hill, answer and evidence there shoufd be a reference to a master, but where 
 the opinion of the lower court contains a lull statement of the facts the de- 
 fect is not fatal. 
 
 lb. — Backus' Ap., 1868, 8 S. 186. Where an equity case turns upon cir- 
 cuuLstanees which involve a variety of facts, it should be referred to a mas- 
 ter to report the facts. 
 
MASTEE— MAXIMS. 327 
 
 lb.— Mener v. Mener, C. P. 1885, 16 W. N. C. 540. The court -tnll upon 
 petition and proof of the property of a complainant, hear a cause without 
 reference to a master, the testimony having been taken by a master. 
 
 lb.— Partnership.— Christy's Ap., 1879, ll N. 157. Where the prayers 
 in a partnership bill are for account and contribution, and one of the defend- 
 ants denies that he was a partner, the proper practice is to make a special 
 reterence to a master to determine his liability before examining into the 
 accounts, and although a general reference was made in this case, since the 
 master only reported on the one point of liability the reference would be 
 ■considered as amended and the proceedings regular. 
 
 lb.— Report.— Phillips' Ap., 1871, 18 S. 130. A court of equity may apr 
 point a master when it pleases. The master is to take the evidence, report 
 the same clearly, give his opinion of the law and report what he thinks a 
 proper decree. His report is not conclusive but should carry weight as he 
 has had all the parties before him. 
 
 Keplication— Report Filed.— Fleming's Ap., 1870, 17 S. 18. A replica- 
 tion filed nunc pro tunc after a master has made his report cures the defect. 
 
 Reopening Case. — Shea's Ap., 1888, 6 Crum. 303. A decree will not 
 be reversed because of the refusal of the master and court below to reopen 
 the case and admit testimony which could have been adduced during the 
 trial. 
 
 Report.— Morocco Co. v. Walton, 1886, 2 Montg. Co. L. E. 191. The report 
 of a master should contain a brief statement of the facts found, without the 
 testimony upon which they are based or the reasons for his conclusions. 
 When acting as master and examiner, separate reports should be filed, but 
 at the same time. 
 
 lb.— Agnew V. Whitney, C. P. 1876, 33 Leg. Int. 139, S. C. 11 Phila. 298. 
 A master's report should first recite the issue; second, determine the facts to 
 be found from the evidence; third, the law arising upon the findings and 
 fourth the form of decree. 
 
 lb. — Reference Back. — Wagner t>. Goodwin Co., 1886, 2 Pa. Co. C. Eep. 
 113. The court will not refer a report back to a master to find specific facts. 
 
 lb. — Should Contain Facts. — Eauck v. Eutt, C. P. Lancaster, 1878, 9 
 Lan. Bar, 186. A master should report facts, not the evidence in toto. 
 
 Statement of Facts — Presentation of — Baumgardner v. Fasppel, C. P. 
 Lancaster, 1872, 4 Lan. Bar, 13. It is proper practice before a master for 
 •each person to present a written statement of the facts which he relies on be- 
 fore adducing testimony. 
 
 Testimony Sent to Master — ^Further Evidence. — Freeman v. Stine, C. 
 P. 1879, 36 Leg. Int. 422. A defendant will not be allowed to present 
 further evidence after the testimony has been sent to a master. 
 
 niAXIMS. 
 
 Clean Hands.— Lewis & Nelson's Ap., 1870, 17 S. 153. The maxim that 
 he who comes into equity must come with clean hands has reference to 
 wiliul misconduct touching the matter in litigation. 
 
 Equality is Equity.— Lewis' Ap., 1879, 8 N. 509. A devise of '' a part " 
 •of the estate is not void for uncertainty, but on the principle that equality 
 is equity, the devisee will receive one-half of the estate there being one 
 other claimant. 
 
 That Done Which Ought to be Done.— Wescottw. Edmunds, 1871, 18 S. 
 Si. When nothing remains for a trustee to do but convey to the beneficiary, 
 the trust is at an end, for equity considers that as done which ought to be 
 idoiie. 
 
328 MAXIMS — MEBQEE. 
 
 Vigilantibus Non Dormientibus Leges Subveniunt.— Slemmer's Ap., 
 1868, 8 S.- 168. The maxim, vigilantibua non dormientibus leges subveniunt, ap- 
 plies in equity. 
 
 IHERGER. 
 
 Devisee Charged With Legacy— Conveyance.— Pennock v. Eagles, 
 
 1883, 6 Oat. 290. The devisee of property charged with a legacy had a 
 vested right in the legacy the possession of which was contingent on the 
 legatee's dying without issue. Held there could be no merger during the life 
 of the legatee, therefore the devisee, having conveyed the land during the 
 legatee's life, became entitled to the legacy upon her death without issue. 
 
 Equity of Redemption— Purchase of, by First Mortgagee.— Helm- 
 bold V. Man, 1839, 4 Wh. 410. One owning a first mortgage bought the 
 equity of redemption. Held that the fact that there was a second mortgage 
 showed that it was for the interest of the purchaser that his estates should 
 not merge, his mortgage was therefore kept alive and subsisted against one 
 to whom he made a regular conveyance of the land, parol evidence being 
 admitted to show that it was the intention that the grantor's mortgage 
 should remain a lien. 
 
 Ground Rent and Equity of Redemption. — Cook v. Brightly, 1864, lo 
 Wr. 439 . Where the ground rent and the equity of redemption of the fee 
 came into the same hands there is no merger in law because of the outstand- 
 ing title of the mortgagee, and none in equity because it would be contrary 
 to the interest of the party. 
 
 lb.— Failure of Title.— Wilson v. Gibbs, 1857, 4 C. 151. Equity will 
 prevent the merger of a ground rent in the fee when the title to the latter 
 fails, although the rent was bought in for the purpose of extinguishment. 
 
 Heirs — Legacy Charged on Land. — Pennock v. Eagle, 1883, 2 Ches. Co. 
 
 E. 34, affirming 1 Ches. Co. E. 452. One of four heirs sold to his brother 
 his interest, on which a legacy was charged the interest to the legatee for 
 life and at her death the principal to her heirs, after the conveyance the 
 legatee died and the grantor was one of her heirs. Held that his estates had 
 not merged and therefore he was entitled to his share of the legacy. 
 
 Hasband and Wife— Purchase Money Mortgage. — Abbott v. Kasson, 
 1872, 22 S. 183. A. sold to B. for a gross sum, land subject to a mortgage, 
 and took a mortgage for the whole purchase money. B. paid the prior mort- 
 gage and had it assigned to his wife. The land came back into A.'s posses- 
 sion. Held that A. must pay the mortgage to B. 's wife, as there had been 
 no merger. 
 
 Joint Mortgagees. — Wallace v. Blair, 1854, 1 Gr. 75. Where one of two 
 joint mortgagees purchases the premises under a subsequent judgment, his 
 two initials do not merge, and the mortgage is not extinguished. 
 
 Joint Owners of Mortgage— Payment by One.— Duncan v. Drury, 
 
 1848, 9 Barr, 332. One of two owners of a mortgaged tract paid ofiF the 
 mortgage. Held, it did not merge in his estate but he could proceed on it. 
 and have judgment de terris, the mortgage keeping its original priority. 
 
 Legal and Equitable Estates. — Pennington v. Coates, 1840, 6 Wh. 277. 
 In no instance can a legal estate merge in an equitable ownership, viz: such 
 an inceptive title as a purchaser at sheriff's sale has before paying the pur- 
 chase money and receiving the deed. 
 
 Mortgage and Fee — Subsequent Creditors.— Lovrein <;. Humboldt 
 Trust Co., 1886, 17 W. N. C. 487. Equity will not prevent a merger of a 
 mortgage and the lee where there are subsequent creditors who would be 
 affected. 
 
MBEGEE — MISTAKE. 32t> 
 
 Pnrcliase by Mortgagpe.— Crawford v. Boyer, 1850, 2 H. 380. Where a 
 first mortgagee buys in the property at a sale under a junior encumbrance, 
 he cannot credit the amount of his mortgage on the bid, for the sale is, by 
 the Act of 1830, subject to the mortgage. 
 
 lb. — Brown v. Simpson, 1834, 2 W. 233. Where the record shows that 
 mortgaged premises have been bought in by the mortgagee, a purchaser of 
 the property takes discharged of the mortgage. 
 
 Securities — ^Equities. — Reed v. Defebaugh, 1855, 12 H. 495 A merger 
 of a simple in a higher security does not per se extinguish equities peculiar 
 to the former. 
 
 Tenants in Common — Mortgage by— Purchase of Share of. — Wat- 
 son's Ap., 1879, 9 N. 426. Two who were tenants in common gave' a mort- 
 gage and el&v"en bonds to A. A. assigned some of them to B. and some to 
 appellant. A. then bought the interest of one of the tenants in common 
 and agreed to indemnify him against the mortgages. A. then bpught in the 
 bonds he had assigned to B. and afterwards reassigned them to the appellee. 
 Held that the reassignment to A. after he became a co-tenant with the mort- 
 gagor did not satisfy those bonds. The parties were not partners and subro- 
 gation existed between them. 
 
 What is a Ground Eent.— Charnley v. Hansbury, 1850, 1 H. 16. A 
 purchase of a ground rent by one who has made a parol contract for the sale 
 of the property subject to it is not a merger. 
 
 When Permitted. — Dougherty v. Jack, 1836, 5 W. 456. Equity will not 
 permit a merger except where it is perfectly indifferent to the party in whom 
 the interests have united. 
 
 lb. — Richards v. Ayres, 1841, 1 W. & S. 485. Merger depends generally 
 on the intent of the party to be affected, and his intent to prevent merger 
 will be presumed where merger is against his interest. 
 
 lb. — Moore v. Harrisburg Bank, 1839, 8 W. 138. A mortgage will not 
 merge with the fee when both come into the same hands if it is for the 
 benefit of the owner to keep them separate. He may indeed issue a scire 
 facias on the mortgage and sell the property claiming from the proceeds his 
 mortgage. 
 
 MESNE PROFITS. 
 See Vendob and Vendee. 
 
 MINOR. 
 
 See GtTAEDiAN AND Waed ; Paeent and Child. 
 
 MISREPRESENTATION. 
 
 See Feaud ; Estoppel, IV. 
 
 MISTAKE. 
 
 I. Gbneeally. 
 II. Of Law. 
 III. Of Pact. 
 IV. Mutual Mistake. 
 
330 
 
 I. Generally. 
 
 Bond for Purchase Money.— Jenks n. Fritz, 1844, 7 W. & S. 201. Equity- 
 will relieve a defendant from paying a bond given for purchase money of 
 land on proof of a mistake in the amount. 
 
 Cancellation — Testimony Closed. — Edwards v. Brightly, 1887, 44 Leg. 
 Int. 132. A bill filed for the surrender and cancellation of an instrument, 
 alleged to have been procured by fraud, cannot be sustained on the ground 
 of mistake after all the testimony has gone in. 
 
 Carelessness— Contract— Intention. — Thompson «. Pittston Coal Co., 
 N. P. 1870, 27 Leg. Int. 85, S. C. 7 Phila. 617. It is no defence to an action 
 for specific performance that the defendant through his own carelessness en- 
 tered into a contract dififerent from his intention. 
 
 Corporation — Mortgage— Certificates — Equities. — Insurance Co. v. 
 Union Canal Co., 1843, Bright. 48, S. C. 2 Pa. L. J. 65. A corporation hav- 
 ing power to borrow money upon a mortgage of its property and franchises 
 borrowed the money and gave certificates of indebtedness with a marginal 
 note setting forth that the property ot the corporation was pledged for this 
 loan. After fifteen years, otner creditors having intervened, the certificate 
 holders prayed equity to decree that they were first lien creditors. Held 
 that they were not mortgages; that there was no mistake against which- 
 equity would relieve, and that after fifteen years relief would not be granted 
 against those whose rights had accrued in the meantime. 
 
 Description of Property.— Wentz's Ap., 1881, 10 W. N. C. 284, S. C. 13 
 Lan. Bar, 81. Evidence of a mistake in the description of property covered 
 by a recorded mortgage is inadmissible against a subsequent judgment 
 creditor, as to the property intended to be covered. 
 
 Discharge of Liens — Sheriff's Sale. — Cummings' Ap., 1854, 11 H. 509. 
 Courts will relieve against a bid at a sheriff 's sale before acknowledgment 
 of the deed by one mistaken as to the discharge of the heirs. 
 
 Husband and Wife— Wills— Signing Wrong.— Alter's Est., Eegister's 
 Ct., 1870, 1 Camp. 72, S. C. 2 Leg. Gaz. 196. A court of chancery has no 
 power to rectify a mistake where a husband and wife made mutual wills 
 and each signed the wrong one. 
 
 Jurisdiction. — Gilder v. Mirwill, 1841, 6 Wh. 522. The equity juris- 
 diction in cases of fraud, accident, mistake and account given by the Act 
 June 13, 1840, extends only to cases of actual fraud, accident, mistake and 
 account. 
 
 Mortgage— Satisfaction— Security.— West's Ap., 1879, 7 N. 341. A 
 mortgage which was given as security for certain notes and which was 
 marked satisfied under the mistaken belief that the notes were all paid, is 
 between the parties still a security for the notes remaining unpaid. 
 
 Omission— Accidental in Instrument.— Gump's Ap., 1870, 15 S. 476. 
 An accidental omission from a writing comes under the head of mistake and 
 falls within the jurisdiction of a court of equity. 
 
 Reformation — Evidence. — Lippincott v. Whitman, 1877, 2 N: 244. 
 Wherever equity would set aside or reform a written instrument on the 
 ground of fraud, accident or mistake, oral evidence is admissible (except in 
 the case of commercial paper) to contradict or deny its terms. 
 
 lb. — ^Ib. — Scettiger v. Hoppel, 1856, 3 Gr. 54. Courts of law can construe 
 or set aside an instrument but only equity can reform it. For this purpose 
 oral testimony is sufficient if it be believed by the j ury and if in the opinion 
 of the court it makes out a go(;d case on the ground of fraud, accident or 
 mistake. 
 
 lb.— Proof Necessary.— Edmonds' Ap., 1868, 9 S. 220. Written instru- 
 ments will be reformed in equity on the ground of mistake only when the 
 
MISTAKE. 331 
 
 mistake is clearly proved, if the evidence is loose and admits of contrary 
 presumptions, relief will not be granted. 
 
 Remedy— Rescission.— Harlan v. Lehigh Coal Co., 1860, 11 C. 287. The 
 remedy under a contract entered into by mistalsie is rescission, not the mak- 
 ing of new terms by the court. 
 
 Revocation— Power of.— Rick's Ap., 1884, 41 Leg. Int. 367. An im- 
 provident deed of trust will be set aside where it appears that the party was 
 informed that she could not include a power of revocation. 
 
 Uncertainty— Risk.— Ashcom v. Smith, 1830, 2 P. & "W. 211. Equity 
 will not, on the ground of mistake, relieve one suffering from the event of 
 an uncertain contract, each party to which acted as though content to run 
 the chance. 
 
 II. Of Law. 
 
 Cancellation of Bonds— PaymenA by Sheriff— Cross v. Stahlman, 1862, 
 7 Wr. 129. A mortgagee cancelled the bonds on receiving payment by the 
 sheriff. But the sheriff recovered the money, the payment having been 
 made under a mistake of the law. Held the mortgagee could recover on the 
 mortagage. 
 
 Ejectment— Improvements After One Verdict.— Irwin v. Nixon, 
 1849, 1 J. 419. Where one claiming title has lost in one action of ejectment 
 and stands by while improvements are made by a bona fide purchaser on the 
 strength of the decision, he is estopped from claiming those improvements 
 though he recover in the second ejectment. He is estopped by the mistake 
 of himself and his counsel, when he fails to discover in the first action the 
 true legal principles applicable to his case. 
 
 Execution— Mortgage— Payment.— Peters v. Florence, 1861, 2 Wr. 194. 
 An executor who pays a mortgage given by his wife (the testatrix) under the 
 mistaken idea that the duty devolved upon him cannot get relief in equity, 
 for his mistake is one of law. 
 
 Married Woman — ^Reformation— Proof— Rogers v. Smith, 1846, 4 
 Barr, 93. A married woman under a trust for her sole and separate use has 
 only the powers expressly granted, and equity will not reform the deed on 
 the ground of mistake so as to increase her control except on the most over- 
 whelming proof. 
 
 Misdescription. — Lies v. Stub, 1837, 6 W. 48. A misconception of one's 
 right under a will is not such a mistake as will move equity to set aside aa 
 agreement among heirs. Such agreement is somewhat of the nature of a 
 compromise of doubtful claims. 
 
 Mutual. — Heacock v. Fly, 1850. 2 H. 540. Equity will relieve where 
 money is Daid on a contract under the mutual mistake of the law. 
 
 lb. — Plumer's Ap., 1881, 11 W. N. C. 144. An estoppel cannot arise from 
 a inutual mistake of law. 
 
 Partnership — Policy of Insurance. — Beeber v. Thomas & Co., 1887, 4 
 Lan. L. Rev. 250. Where by mistake, a partner who owned property indi- . 
 vidually, obtained insurance upon it in the firm name, the policy although 
 void if the company exercise their right of declaring it so, is valid if the 
 company waive their right and demand assessments due. 
 
 Release— Undue Influence.— Whelen's Ap., 1872, 20 S. 410. Equity 
 will relieve against a mistake of law where full explanation and information 
 have not been given and where by undue influence one has been pressed to 
 release a right which he did not fully comprehend. 
 
 Relief. — Hunt v. Moore, 1845, 2 Barr, 105. Although mistakes of law 
 will not be relieved against as such, yet they may give rise to a presumption 
 
332 MISTAKE. 
 
 of undue influence or confidence abused, in which case equity will, always 
 relieve. 
 
 lb.— Refused.— McAninth V. Laughlin, 1850, 1 H. 370. No relief will 
 be granted where parties have entered into a covenant under a mistake of 
 the legal effect of facts which were themselves mutually understood. 
 
 When Relieved Against.— Good «. Herr. 1844, 7 W. & S. 253. In the 
 absence of fraud, misrepresentation or surprise, equity will not relieve 
 against a mistake of law. 
 
 III. Of Fact. 
 
 Accidental Omission. — Torrenstein v. Biernbaum, C. P. 1880, 8 W. N. 
 C. 301. An amendment to a decree will always be allowed if a clause which 
 if requested would have been inserted as a matter of course if asked for at , 
 the hearing has been omitted. 
 
 Discharge of Mortgage — Orphans' Court.- Penn Building Assoc. 's Ap., 
 1876, 32 S. 330^ The orphans' court before confirmation of a sale made by 
 its order has power to release one who thinking a first mortgage would be 
 discharged has bid the full value of the land. 
 
 Description in Mortgage.— Wentz's Ap., 1881, 10 W. N. C. 284, S. C- 
 13 Lan. Bar. 81. Evidence of a mistake in the description of property cov- 
 ered by a recorded mortgage is inadmissible against a subsequent judgment 
 creditor, as to the property intended to be covered. 
 
 Essentials of Contract.— Miles v. Stevens, 1846, 8 Barr, 21, Aff'g 3 
 Clark, 434, 5 Pa. L. J. 513. A contract entered into under a mistaken im- 
 pression, that facts essential to the contract did exist, or, which is the same 
 thing, would afterwards exist, and they were prevented by causes over 
 ■which the parties had no control, it is relievable against in equity. 
 
 Improvements. — Willis v. Swartz, 1857, 4 C. 413. A vendor who selling 
 part of a larger tract stakes it off, cannot after it is built upon, recover back 
 an excess included by his own mistake. 
 
 Judgment — Lien — Mortgage-^Satisfaction. — Clow v. Darby Coal Co., 
 1881, 2 Out. 433. One, who under a mistaken belief that a judgment was 
 no longer a lien, had a mortgage marked satisfied which he might have had 
 assigned to him, has no equity as against a surety to be relieved against the 
 mistake of satisfying the mortgage. 
 
 Levy — Title. — McLaughlin v. Shields, 1849, 2 J. 283. Mere acquiescence 
 in a sale under a mistaken levy, does not estop the defendant from setting 
 up his title. 
 
 Misconception of Law — Administrator.— Gross v. Leber, 1864, 11 Wr. 
 520. Equity will relieve against a mistake of fact arising out of a miscon- 
 ception of the law, e. g. where an administrator thinking that he succeeded 
 to the office of trustee which his intestate held, gave a bond for the amount 
 of the trust estate. 
 
 Mortgage — Satisfaction — Notes.— West's Ap., 1879, 7 N. 341. A mort- 
 gage which was given as security for certain notes and which was marked 
 satisfied under the mistaken belief that the notes were all paid is between 
 the parties still a security for the notes remaining unpaid. 
 
 lb.— Of Wrong Lot.— Ross et al. V. City of Phila., 1886, 5 Amer. 222. 
 
 A. purchased from B. a municipal corporation, a certain lot of land, giving 
 in part payment thereof a mortgage upon the same. By mistake possession 
 was taken of another lot belonging to B. upon which A. erected a building. 
 
 B. by mistake rented the second lot to C. and C. by mistake occupied the 
 first lot. A. having neglected to pay the mortgage, B. issued a scire facias 
 on it. Held that B. was entitled to recover the full amount of the mortgage 
 for the rent derived by the city was not derived from the mortgaged lot, al- 
 though that was the one occupied by C. 
 
MISTAXE — MORTGAGE, MOKTGAGOE AND MORTGAGEE. 333 
 
 Revocation— Power of. — Russell's Ap., 1874, 25 S. 269. A woman in 
 contemplation of marriage made a conveyance of her property in trust, in 
 which there was no power of revocation. She survived her hnshand and 
 desired to make other disposition of her property than that provided for in 
 the trust. Held, that us in the settlement the settler had evidently not for- 
 seen the present contingency (namely, that she should survive her husband 
 without issue), the mistake was one of fact and equity would size up on it 
 to reinvest her with the right of her property. 
 
 Surveyor— Purchase by Heir.— Lawrence v. Luhr, 1870, 15 S. 236. 
 Where a surveyor i;i locating a warrant, by mistake located it on an adjoin- 
 ing tract, and afterwards himself bought this adjoining tract, and the mis- 
 take was not discovered until both titles had passed into other hands, it was 
 held that there having been neither fraud nor positive acts, there could be no 
 estoppel, and that therefore, the title derived through the one who made the 
 erroneous survey was the valid one. 
 
 IV. Mutual Mistake. 
 
 Conjecture. — Watts v. Cummings, 1868, 9 S. 84. Where parties have 
 presupposed facts or rights to exist as the basis of their proceedings, which 
 did not, it is a mutual mistake which will be relieved against. But a mis- 
 take in a matter of conjecture only the parties take the risk. 
 
 Conveyance — Building. — Babcook v. Day, 1883, 8 Out. 4. A conveyance 
 of land made upon the mutual mistake that certain buildings were situated 
 thereon should be rescinded at the suit of the vendee. 
 
 lb.— Title— Bond— Defence.— Goeffel v. Sage, 1887, 2 Crum. 298. A 
 mutual mistake between vendor and vendee whereby a parcel of land to 
 which the vendor had no title was conveyed to the vendee, a bond for the 
 same being given by the latter to the former, can be set up as a defence 
 against the payment of the bond. 
 
 Encumbrance on Land— Rescission.— Tenbrooke v. Jahke, 1875, 2TS. 
 392. Equity relieves against mutual mistake as to encumbrances on land 
 sold by rescinding the contract not by allowing. the vfendee to keep the land 
 without jKiying jthe price. 
 
 Lessor and Lessee. — Mays v. Dwight, 1876, 1 N. 462. On the ground 
 of a mutual mistake of fact equity will relieve a lessee from a lease though 
 his defence be a denial of the lessor's title. 
 
 Tax Deed— Title.— Goettel r. Sage, 1887, 20 W. N. C. 285. Where A. 
 and B. claimed title to a lot by a tax deed and C. purchased the same with- 
 out a warrant of title accepting a quit-claim deed, and it was subsequently 
 discovered that the said lot had never been own^d by the party as whose it 
 was, sold for taxes to A. and B. it was Held that C. was entitled to ^recover 
 back his purchase money on the ground of mutual mistake. 
 
 MORTGAGE, MORTGAGOR AlVD MORTGAGEE. 
 
 See also Adjustment, Assignment, Confidential Relation, VIII ; Coe- 
 poBATioN, V ; Estoppel, I ; VII. 
 
 I. In General. 
 II. Attorneys' Commissions. 
 
 III. Bond and Mortgage. 
 
 IV. Building Association. 
 
334 MOETQAGE, MOETGAGOB AND MOETGAGEE. 
 
 V. Decedents' Estates. 
 
 VI. DiSTKIBUTIOSr. 
 
 VTI. DisoHAEGB OP Lien of Moetgage. 
 VIII. Equity of Redemption. 
 IX. Exemption. 
 X. Fixtures. 
 
 XI. FOEEOLOSUEE. 
 
 XII. FuTUEE Advances. 
 XIII. Husband and Wife. 
 ^ XIV. Notice. 
 
 XV. Peesonal Liability op Vendee. 
 XVI. Peactice. 
 
 A. In General. 
 
 B. Actions. 
 
 (a.) Generally. 
 (b.) Scire Facias. 
 
 1. Generally. 
 
 2. Defence. 
 
 3. Issuing. 
 
 4. Judgments. 
 
 5. Parties. 
 
 6. Pleading. 
 
 7. Service. 
 
 C. Evidence. 
 XVII. Peioeity OF Liens. 
 
 A. In General. 
 
 B. Judgments. 
 
 C. Mechanics' Liens. 
 
 D. Purchase Money. 
 
 E. Eecording. 
 
 XVIII. Purchase Money Moetgages. 
 XIX. Recording. 
 
 XX. Eights and Duties of Moetgagob and Moetgagee. 
 XXI. Satisfaction op Mortgage. 
 XXII. What Constitutes a Mortgage. 
 
 I. In Gene^ jii. 
 
 Acknowledgment— Act of May 5, 1854. — Joumeay v. Gibson, 1867, 6 
 S. 57. Act May 5, 1854, validating previous defective acknowledgments, 
 applies to mortgages and makes such mortgages valid against prior pur- 
 chases. 
 
 Act of June 8, 1881 — Prospective Only.— Umbenhower v. Miller, 1882, 
 5 Out. 71. Act June 8, 1881, prohibiting parol defeasances is prospective 
 only. 
 
 Adjustment— Note and Mortgage— Proceeding on Both.— Morris v. 
 Olwine, 1854, 10 H. 441. A note was secured by a mortgage. The mort- 
 gagor assigned for creditors. Held that the mortgagee could claim his pro 
 rata share under the assignment and proceed at tlie same time on his mort- 
 gage, and the fact that the latter is foreclosed before his pro rata share is 
 paid, will not alter his rights. 
 
MOBTGAGE, MOETGAGOE AND MORTGAGEE. 335 
 
 Assignee of Mortgage— Estoppel.— Bark v. Thomas, 1887, 19 W. N. C. 
 B'JS. The assignee of a mortgage, unless the mortgagor is estopped from the 
 defence, holds it subject to all equities with which it was affected in the 
 hands of the mortgagor. 
 
 Cancellation— Consideration— Quia Timet.— Miller v. Schlegel, u. P. 
 1881, 10 W. N. C. 522. Equity will order a mortgage which is without con- 
 sideration to be delivered up and the record cancelled, at the prayer of one 
 who has become a purchaser of the property and who fears that they will 
 be enforced against him. 
 
 , Cancellation — Death of Mortgagee. — Biddle v. Lewis, C. P. 1884, 15 
 I W. N. C. 379. After a mortgage was recorded but before the loan was paid 
 over, the mortgagee died, and his executors refused to pay over the money or 
 to cancel the mortgage. The court ordered the mortgage cancelled. 
 
 lb. — Jurisdiction — Quia Timet.— Buchanan v. Noel, C. P. 1878, 35 Leg. 
 Int. 490, S. C. 12 Phila. 431. The equitable jurisdiction of our courts in 
 bills in the nature of a bill quia timet is limited, and will not be stretched to 
 include the cancelling of a mortgage claimed to be a forgery, especially when 
 it is considered that under the Act March 27, 1862, complete equitable relief 
 can be granted. 
 
 Chattel Mortgage— Possession.— Roberts' Ap., 1869, 10 S. 400. Chattel 
 mortgages, possession remaining in the mortgagor, are void against creditors. 
 
 Cloud on Title. — Simpson v. Broomall, C. P. Delaware, 1882, 1 Del. Co. 
 S. 229, S. C. 3 York L. E. 85. Equity will not compel one to take a title on 
 which there are unsatisfied mortgages though over twenty years old. 
 
 lb. — Hebrew Society v. Bussier, 1875, 1 W. N. C. 161. A mortgage given 
 for the purchase of property with a cloud on the title and to be paid when 
 the title is perfected, must be paid when the statute of limitations has barred 
 all adverse claims. 
 
 Collateral Security. — Smith v. Bunting, 1878, 5 N. 116. One holding a 
 mortgage as collateral security may sue on it and purchase the property at 
 sheriff's sale, whether or not he holds the land as trustee for his debtor not 
 decided. 
 
 lb. — ^Indorsement. — Lancaster Co. N. Bank's Ap., 1888, 7 Crum. 31. 
 A mortgage absolute on its face given as collateral security for the indorse- 
 ment of a note of same date and for indorsements of any other notes or the 
 renewal of notes thereafter endorsed, covers a renewal of a note first in- 
 dorsed prior to the date of the mortgage. 
 
 Consideration — Validity 'of. — Pearce et ux. v. Wilson et al., 1885, 1 
 Amer. 14. A mortgage whose consideration in whole or in part is the 
 stifling of a prosecution for a conspiracy to defraud, and for embezzlement 
 as a bank officer is void. 
 
 Conversion— Land Taken as Personalty.— Sterr's Est., O. C. 1879, 36 
 Leg. Int. 226. One who borrows money and gives a juortgage upon land 
 which comes to him as personalty thereby elects to treat it as land. 
 
 Corporation — Power of, to Mortgage.— Gordon v. Preston, 1833, 1 W. 
 385. > power given to a corporation "'to sell and dispose of" lands, in- 
 cludes a power to mortgage them. 
 
 lb. — Over-Issue of Bonds. — Eeed's Ap., 1888, 7 Crum. 565. A contrac- 
 tor whose work was completed before the recording of a trust deed, and who 
 knew that under a trust mortgage, the company had issued bonds in excess 
 of the capital stock paid in, being a participant in the fraud of such issue, 
 may not attack the validity of the mortgage under Act of March 13, 1873. 
 
 Costs— Assignment — Suit — Title. — Eisner v. Ruegenberg, 1886, 2 Pa. 
 Co. C. Rep. 89. A mortgagee who assigns his mortgage and afterwards at 
 the request of the assignee brings suit on it in his own name, cannot be 
 made to pay the costs of a second sheriff's sale by the purchaser for the pur- 
 pose of making good the title. 
 
336 MOBTGAGE, MOETGAGOE AND MOETGAGEE. 
 
 Defeasance— Agent. — Gratz v. Phillips, 1830, l P. & "W. 333. An agent 
 who has acted as such in commercial matters for thirty years but without a 
 power of attorney cannot make a defeasance that will bind his principal. 
 
 Ejectment— Court and Jury— Profits.— Mellon v. Lemmon, 1886, 1 
 Amer. 56. Where a mortgagor brings ejectment against a mortgagee in 
 possession, it is for the jury to find whether the profits of the land have re- 
 deemed the mortgage. 
 
 Entry— Oondition Broken— Act of 1856.— Ballentine v. White, 1874, 
 27 S. 20. Act April 23, 1856, S. 6, limiting entry after condition broken to 
 five years, has no application to mortgages. 
 
 lb. — Estoppel. — Crooks v. Douglass, 1867, 6 S. 51. One buying land ex- 
 pressly subject to a mortgage which would otherwise be discharged, who 
 thereby gets the property for the value of the land less the mortgage, is 
 equitably estopped from denying that the mortgage is a valid lien. 
 
 lb. — Assignment — Set-off. — Leedom n. Lombaert, 1876, 30 S. 381. A 
 mortgagor encouraged a party to take an assignment of the mortgage, but 
 did not expressly say there was no defence or set-off. Held that he was es- 
 topped from setting up a defence. 
 
 lb.— Validity of Mortgage.— McCuUough v. Wilson, 1853, 9 H. 436. 
 Where the mortgagors (husband and wife) Induce one to purchase the mort- 
 gage, they are estopped Irom afterwards setting up that it was invalid. 
 
 lb. — Sale — Defective Mortgage.— National Transit Co. v. Weston, 1888, 
 6 Crum. 485. Where property is sold under a judgment sur mechanic's lien 
 and is bought in by a stranger, a subsequent sale under a mortgage which 
 bound the property at the first sale, does not convey a title which the first 
 purchaser is estopped from contesting, in event of the mortgage being de- 
 fective. 
 
 Declaration of no— Set-off.- Levy v. Preston, C. P. 1875, 1 W. N. C. 
 159. A mortgagor is estopped by a declaration of no set-off' of the same 
 date as the assignment of the original mortgage. 
 
 lb. — Green's Ap., 1881, 1 Out. 342. A "first mortgage" in this state 
 means a first lien, and one selling a mortgage represented to be a " first mort- 
 gage," will not be allowed afterwards, to set up a prior lien. 
 
 Forfeiture— Interest.— Thouron v. Goodwin, D. C. 1874, 1 W. N. C. 95^ 
 A payment of interest on a mortgage after forfeiture has accrued from de- 
 fault in interest will not relieve unless accepted by the creditor. 
 
 lb.— D).— Gulden v. O'Byme, D. C. 1868, 25 Leg. Int. 212, S. C. 7 Phila. 
 93. A stipulation in a mortgage that on default of payment of interest the 
 principal shall fall due is not a forfeiture, and will not be relieved against in 
 equity. 
 
 lb. — lb. — Pennsylvania Hospital v. Gibson, 1839, 2 M. 324. A mortgagee 
 by not insisting on a forfeiture on account of non-payment of interest, does 
 not preclude himself from insisting on it upon the opportunity again arising. 
 
 lb. — lb.— Action on Lien Pending.— Stephenson v. Carpenter, 1876, 1 
 N. 515. A purchase money mortgage provided Ijhat in case default should 
 be made in the payment of any instalment the principal should become due. 
 Held that pending an action on a prior lien which, by the terms of the sale 
 was to be borne by the vendor, the vendee need not pay instalments as they 
 fell due, and equity would not allow the penalty prescribed to be inflicted. 
 
 lb.— lb.— Demand.— Gaskill «. Schenerle, C. P. 1875, 2 W. N. C. 156. A 
 demand of the interest due on a mortgage within the thirty days of grace, 
 is not a prerequisite to an enforcement of a forfeiture of the principal. 
 
 lb.— lb.— Notice —Gerke v. Jacoby, C. P. 1879, 7 W. N. C. 438. It is no 
 defence to a scire facias sur mortgage brought on default of interest, th.it tha 
 mortgagee had agreed verbally to give notice when interest was due and had 
 not done so. 
 
MORTGAGE, MORTGAOOK AND MORTGAGEE. 337 
 
 lb.— lb.— lb.— Procedure.— Pancoast v. Haas, C. p. 1875, 1 W. N. C. 
 264. A clause in a mortgage making it fall due on non-payment of interest 
 is in the nature of forfeiture or penalty, and the party desiriug to avail him- 
 self of it must proceed strictly in every way; he should notify the ierre teit- 
 ant that he intends to insist upon a strict performance of the condition. 
 
 lb. —lb.— Tender.— Hughes v. Snyder, C. P. 1875, 3 W. N. C. 65. Where 
 the thirty days of grace in the payment of interest on a mortgage expire on 
 Sunday, a tender on Monday will save a forfeiture. 
 
 Fraudulent Mortgage.— Barratt v. Nealon, 1888, 4 Crum. 171. A bond 
 and mortgage, though in part securing an actual debt, both intended to cover 
 the property of the obligor from the reach of certain persons only who held 
 his indorsements is fraudulent and void and assailable by all his creditors 
 existing at the time of the transaction. 
 
 Injunction— Sheriff's Sale.— Loudenschlager v. Benton. 1861, 3 Gr. 384, 
 S. C. 18 Leg. Int. 196, 4 Phila. 382. Equity will restrain a sheriff's sale of 
 the equipments of a railroad until it can be ascertained whether they are 
 <»vered by a mortgage, but will allow the lien of the fi. fa. to continue. 
 
 lb.— Tendering Amount of Mortgage.— Hartman v. Quay, 1881. 1 
 Ches. Co. Rep. 487. A mortgagee will be restrained at the instance of the 
 subsequent lessee from selling the property, upon the latter tendering the 
 amount of the mortgage. 
 
 Investments— Arrears.— Huey's Est., 1880. l Ches. Co. Rep. 170. A 
 trustee who invests in bonds and mortgages, the interest on which is in 
 aiTears, will be chargeable for loss. 
 
 lb.— Bonus Mortgages.— Girard Life Ins. Co.'s Ap., 1883, 40 Leg. Int. 
 1 12. A trustee who invested trust funds in " bonus mortgages ' ' charged 
 with the loss. 
 
 lb.— Trusts*. —Barton's Est., O. C. 1882, 11 W. N. C. 561. A trustee 
 who invests in mortgagSB without submitting them to court will be charged 
 with loss. 
 
 Judgment— Restricting Lien of.— Allison v. Wilson, C. P. 1876, 2 w. 
 N. C. 629. Where judgment has been entered upon a bond accompanying a 
 mortgage, equity has no power to restrict its operation to the property covered 
 by the mortgage although that would be ample security. 
 
 lb. — lb. — Irwin V. Shoemaker, 1844, 8 W. & S. 75. It is competent to 
 restrict the lien of a judgment entered upon a bond and mortgage given by 
 the vendee for the purchase money of the land sold, to that land, by proof 
 of an oral contract to that effect made at the time the mortgage was given. 
 
 Jurisdiction.— Brailley V. Chester Valley R. R., 1860, 12 C. 141. Equity 
 has no jurisdiction over mortgages as such alone. 
 
 lb.— Assignment of Mortgage.— Weiman v. Karch, 1888, 5 Pa. Co. C. 
 Rep. 203. The court of common pleas has no jurisdiction to decree the as- 
 signment of a mortgage, under Act of 1885, where all the parties in interest 
 in the lands so encumbered d© not join in the application. 
 
 lb. — Ground Beni — Conspiracy. — Schoening v. Speck, C. P. 1879, 8 W. 
 N. C. 44. Equity will take cognizance of a bill filed by a mortgagee, alleg- 
 ing that the mortgagor is eonspiring with the holder of a prior ground rent 
 in order to have the property sold out thereunder and the mortgage thus dis- 
 charged. 
 
 Leasehold — Forfeiture. — Becker v. Werner, 1881, 2 Out. 555. Mort- 
 gaging a leasehold is within a clause of forfeiture in the lease prohibing the 
 transfer thereof. 
 
 Lex Loci Contractus. — Mills «. Wilson, 1878, 7 N. 118. A mortgage 
 executed in Kansas on Pennsylvania property and negotiated here is a Penn- 
 sylvania contract and cannot carry more than six per cent, interest. 
 
 Maxim— Conditional Sale.— Rankin v. Mortimere, 1838, 7 W. 372. A 
 
 82 — EQUITY. 
 
338 MOETGAGE, MOETGAGOE AND MOKTGAGEE. 
 
 stipulation in a mortgage that if the money is not paid on a certain day the 
 deed is to be absolute, is void. Once a mortgage always a mortgage. 
 
 Months. — Brudenell v. Vaux, 1794, 2 D. 302. The six months prescribed 
 by the Legislature within which mortgages must be recorded are calendar 
 months not lunar. 
 
 Notes— Security for Payment — Renewal. — Ayres v. Wattson, 1868, 7 
 S. 360. A mortgage given to secure the payment of certain notes is not 
 security for their renewal. 
 
 Parol Mortgage— Sheriff's Sale.— Mode's Ap., 1813, 6 W. & S. 280. 
 Prior to the Act of 1830 no agreement or understanding at a sheriff's sale 
 could continue the lien of a mortgage against a subsequent purchaser even 
 though he had notice. To allow this would be virtually to allow a mortgage 
 to be created by parol. 
 
 lb. — Possession. — Bowers v. Oyster, 1831, 3 P. & W. 239. A parol morl^ 
 gage of land with possession taken passes no estate in the land and is not 
 valid. 
 
 Partition— Owelty.— Reed i>. Fidelity Co., C. P. 1883, 13 W. N. C. 268. 
 One who in partition takes land and pays over the owelty to one of the 
 former tenants in common is not chargeable to a mortgagee of that tenant's 
 share. 
 
 Payment on Account to Attorney. — McMahon v. Bardinger, 1886, 18 
 W. N. C. 112. Payments on account of a mortgage to the attorney who 
 acted for the holder in having mortgage assigned to latter and afterwards in 
 suing it out, sustained the jury having considered these facts as suflacient to 
 support a finding that the attorney was authorized to collect. 
 
 Payment — When can be Made. — Patterson v. Judge, C. P. 1885, 17 W. 
 N. C. 127. "Where a mortgage is payable "in one year from date," it can 
 be paid at any time during the year. 
 
 lb. — lb. — Horstman v. Gerker, 1865, 13 Wr. 282. A mortgage "payable 
 in five years" is payable at any time -within the five years. 
 
 Power of Sale— Trust.— Zaue ii. Kennedy, 1873, 23 S. 182. A power of 
 sale is well executed by a sale to one m trust to mortgage the property. 
 
 Power to Sell and Mortgage— Exhaustion of — Asay v. Hoover, 1846, 
 5 Barr, 21. A power to sell, mortgage or devise in fee is not exhausted by a 
 mortgage, the estate may be devised subject to the mortgage. 
 
 Preferred Stock — Power to Issue. — "West Chester R. R. u; Jackson, 
 1875. 27 S. 321. Where a corporation has power to borrow money on bond 
 and mortgage, it may issue preferred stock, as that is only a form of mort- 
 
 Purchase — Judgment — Act of June 21, 1843. — Tyrone R. R. ». Jones, 
 1875, 29 S. 60. Act Jan. 21, 1843, P. L. 368, protects debts incurred on the 
 construction of a railroad from a mortgage given afterwards, and suit having 
 been brought on the debts prior to a sale under the mortgage the purchaser 
 under the latter was bound by the judgment subsequently obtained on the 
 suits. 
 
 Railroad— General Mortgage by— Rolling Stock.— P., W. &B. E. E. 
 V. Woelpper, 1870, 14 S. 366. A mortgage by a railroad of all its road, 
 property, rights, etc. . then held or thereafter to be acquired, includes rolling 
 stock, etc., afterwards acquired. 
 
 lb.— Mortgage— Validity of— Contractors.— ShamokinE. E. o Malone, 
 1877, 4 N. 25. By Act Jan. 21, 1843 (P. L. 367), a mortgage given on a 
 railroad on which contractors are at work is void as to the claims of the con- 
 tractors. 
 
 Receipt — Contradiction— Estoppel.— Porter v. Megargel, 1884, 15 "W. 
 N. C. 388. A receipt from a mortgagee to a mortgagor for the sum due on 
 the mortgage may be explained or contradicted between the parties but not 
 as against one who has advanced money on the faith thereof. 
 
MORTGAGE, MORTGAGOE AND MORTGAGEE. 339 
 
 Release— Parol Consideration.— Aclda v. Aclda, 1847, 6 Barr, 228. A 
 mortgage may be released by parol if for a consideration. 
 
 lb.— Seal.— Wentz V. Dehaven, 181.5, 1 S. & R. 312. A written release of 
 a mortgage attested by two witnesses is valid though not under seal. 
 
 Statute of Frauds.— Gross v. Eeinhard, C. P. 1884, 14 W. N. C. 224. A 
 mortgage is not a conveyance of land within the statute of frauds. 
 
 Statute of Limitations.— Michener «. Michener, 1886, 17 W. N. C. 266. 
 Where neither the principal nor interest of a mortgage has been demanded 
 for twenty years, the statute of limitations is a bar. 
 
 lb.— Defence.— Green v. Fricker, 1844, 7 W. & S. 171. A mortgage due 
 for moi e than twenty years forms no defence to an action to recover the pur- 
 chase money of land covered by it. 
 
 lb.— Note.— McKee's Est., O. C. Allegheny, 1883, 30 Pitts. L. J. 393. 
 Although a note secured by a mortgage is barred yet the debt as evidenced 
 by the mortgage may be collected. ' 
 
 Tacking.— Parker v. Jaeoby, 1860, 3 Gr. 300. Tacking is not a part of 
 Pennsylvania law. 
 
 lb.— Diflferent Transactions.— Keesey v. Noedel, C. P. York, 1881, 2 
 York L. E. 165. A mortgage given as security in one series of transactions 
 cannot be stretched to cover other accounts. 
 
 Tax — County— Money in Other States. — ^Delaware Co. v. Thomas, C. 
 p. Delaware, 1883, 1 Del. Co. R. 197. Money invested in mortgages in an- 
 other state is liable to county taxes here. 
 
 lb.— Injunction. — Steinman v. Lancaster, C. P. Lancaster, 1870, 2 Lan. 
 Bar. No. 14. An official will be restrained from collecting any other than a 
 state tax on judgments or mortgages. 
 
 Taxation. — Susquehanna Canal Co. v. Commonwealth, 1872, 22 S. 72. A 
 loan secured by a mortgage on property in this state is taxable here although 
 the bonds are held by non-residents. 
 
 lb.— Act of April 4, 1868.— Westmoreland Co. v. Fries, 1875, 30 S. 51. 
 Act April 4, 1868, exempts from taxation for other than state purposes all 
 mortgages. 
 
 Taxes.— CI opton v. P. & R. R. E., 1867, 4 S. 356. A provision in a mort- 
 gage that the mortgage debt shall be paid "without any deduction, defalca- 
 tion or abatement for any taxes whatsoever," refers only to taxes levied on 
 the land and not to those levied on the debt as a chose in action. 
 
 Title— Sheriff 's Sale,— Dehaven v. Landell, 1858, 7 C. 15. The title of 
 a purchaser at a sheriff's sale under a mortgage relates back to the date of 
 the mortgage. 
 
 lb.— Subsequently Acctuired.— Rank «. Dauphin Coal Co., 1852, 1 Pears. 
 453. A good title which comes into a mortgagor's hands after he has given 
 a mortgage enures to the benefit of the mortgagee. 
 
 Trust— Execution.— Youngman V. Elmira etc. R. R.,'1870, 15 S. 278. If 
 a mortgage create a trust and provide that the power of sale is to be exe- 
 cuted in certain contingencies, it is for equity to decide whether thecontin- 
 gencies have arisen, and if so, the court at the instance of a cestui que trust 
 will control, restrain and direct the trustee. 
 
 Trust Funds— Bonus Mortgages.— Girard Trust Co.'s Ap., 1883, 13 W. 
 N. C. 367. "Bonus mortgages" are not proper investments for trust funds. 
 
 Trust— Power of Sale.— Bradley v. Chester Valley R. R. Co., 1860, V.l 
 C. 141. A power of sale in a mortgage is valid, and if the mortgage is given 
 to one in trust for bond holders, these latter stand in the relation of cestvi. 
 que trmtent, and may in equity ask that the trustee be compelled to execute 
 the power. 
 
 lb.— Power to Mortgage— Creditors. — Magvaem. Pennock, 1853, 2Gr. 
 89. An authority vested in a trustee to mortgage the trust property in order 
 
340 MOETGAQE, MOETGAGOE AND MORTGAGEE. 
 
 to pay debts is well executed by a mortgage of the property to the creditors 
 theniselves. 
 
 lb.— Power Under— Proceeds.— McAleer'sAp., 1881, 3 Out. 138. Where 
 a trustee executes a mortgage solely by virtue of the power to sell conferred 
 upon him by the deed of trust, the proceeds of the sale under said mortgage 
 over and above the amount of the mortgage are subject to the same trust us 
 was the land. 
 
 Usury — Auditor— Subsequent Creditors.— Building Assoc, v. O'Comior, 
 D. C. 1859, 16 Leg. Int. 300, S. C. 3 Phila. 453. A mortgage may be im- 
 peached for usury before an auditor by subsfequent judgment creditors. 
 
 Validity of Mortgage— Who May Attack.— Glass v. Gilbert, 1868, 8 
 S. 266. The validity of a mortgage and proceedings thereunder cannot be 
 questioned by one not connected with the mortgagor's title in any manner. 
 
 IIo Attorney's Coxninissions. 
 
 Stipulation in, Mortgage for— Percentage Allowed. — Eobinson v. 
 Loomis, 1865, 1 S. 78. A stipulation in amortgage for five per cent, attor- 
 ney's fees is valid. 
 
 lb.— lb.— Carroll Building Assoc, v. Hams, C. P. 1886, 18 W. N. C. 80. 
 An attorney's commission stipulated for in a mortgage cannot be taxed aa 
 costs where the jury have disallowed it as part of the claim. 
 
 lb.— lb.— Sloan V. Garren, C. P. 1879, 36 Leg. Int. 276, S. C. 13 Phila. 63. 
 A five per cent, attorney's fee for collecting a mortgage of $3,000 allowed, a^ 
 provided in the mortgage itself, where it appeared that a sale would he 
 necessary. 
 
 lb.— lb.— Ins. Co. V. Shields, C. P. 1878, 35 Leg. Int. 170, S. C. 12 Phila. 
 407. The court will so control the assessment of damages in case of judg- 
 ment on a mortgage stipulating for an attorney's fee as to do equity. 
 
 lb.— lb.— Terry v. Slemmer, C. P. 1881, 11 W. N. C. 155. A stipulation 
 in a $3,0U0 mortgage lor five per cent, attorney's commissions is reasonable. 
 
 lb.— lb.— Ilennig „•. Biederwolf, C. P. 1879, 36 Leg. Int. 392, 13 Phila. 
 05. An attorney's commission of five per cent, allowed on a mortgage of 
 $3,000. 
 
 lb.— lb.— Souder v. Moore, C.P. 1887, 17 W. N. C. 400. Where default 
 has occurred and a scire facias has issued on a mortgage containing an allow; 
 ance for counsel fee, and then an extension is given reserving the question 
 of counsel fee, a reasonable one will be allowed. 
 
 lb.— lb.— Wain V. Massey, C. P. 1879, 7 W. N. C. 312. The court re- 
 duced attorney's commissions on a mortgage of $90,000 from three per cent. 
 as provided for, to one and a-half per cent. 
 
 lb.— lb.— Maitland v. Daly, C. P. 1878, 6 W. N. C. 31. A stipulation in 
 a mortgage of $14,000 for five per cent, attorney's commissions is reasonable 
 and will not be construed a penalty. 
 
 lb.— lb.— Gordon v. Hutchins, 1869, 16 Pitts. L. J. Pt. 11. p. 48. Where 
 a confession of j udgment on a mortgage includes a stipulation for expenses 
 of collection or an attorney's fee, it must be a reasonable amorfnt. 
 
 lb.— lb.— Bedell v. McOormick, 1888, 45 Leg. Int. 454. Five per cent, 
 attorney's fee on a mortgage of $3,000 was not considered an exc&ssive pen- 
 alty, and the fact that the plaintiff in the proceedings was the attorney hiinr 
 .self made no difference. 
 
 lb.— lb.— Popham V. Naples, C. P. 1884, 15 W. N. C. 350. A clause in a 
 mortgage given by husband and wife on the latter's real estate providing for 
 an attorney's fee for collecting is binding. 
 
3I0KTGAGE, MORTGAGOR AND MORTGAGEE. 341 
 
 lb.— lb.— Daly V. Maitland, 1879, 30 Leg. Int. 85. The court will con- 
 trol the amount of attorney's commifssion in a mortgage. In this case re- 
 duced from five per cent, to two per cent, on a mortgage tor $14,000. 
 
 lb.— lb.— Imler v. Imler, 1880, 13 N. 372. It is proper to allow the whole 
 attorney's fee stipulated for in a mortgage (if it be reasonable) although the 
 bulk of the mortgage debt was'paid voluntarily and only a small sum con- 
 tested. 
 
 lb.- lb. — Daly v. Maitland, 1879, 7 N. 384. Where a mortgage provides 
 for an attorney's fee for collection, the amount named is a penalty, not liqui- 
 dated damages, and may be reduced in the discretion of the court. 
 
 lb. — lb. — Franklin v. Kurtz, 1889, 6 Lan. L. Rev. 115. A stipulation in 
 a mortgage that in case of default all costs and expenses should be collected 
 in an action of scire facias, includes a reasonable attorney's fee. 
 
 lb.— lb.— Faulkner v. "Wilson, 1876, 3 W. N. C. 339, 33 Leg. Int. 336, 124 
 Pitts. L. J. 33. Attorney's commissions provided for in a mortgage belong 
 to the mortgagee not to his attorney. 
 
 lb.— lb.— Landis v. Aldrich, C. P. 1880, 9 W. N. C. 192. Attorney's 
 commissions of five per cent, for collection of a mortgage reduced to two per 
 cent, where the terre tenant was a widow in poor circumstances. 
 
 lb.— lb.— Eeed v. "Worthington, 1880, 9 W. N. C. 192. Although a mort- 
 gage of $4,000 stipulated for five per cent, attorney's commissions the court 
 reduced the commissions to |150. 
 
 III. Bond and Mortgage. 
 
 Bid— Credit.— Wells v. Vandyke, 1884, 15 W. N. C. 160. A mortgagor 
 is entitled to credit for a bid made by the mortgagee on a sale of the prop- 
 erty nnder the bond accompanying the mortgage although the bond being 
 void the sale passed no title. 
 
 Collateral Security— Payment of, on Foreclosure of Mortgage — 
 
 Rice's Ap. , 1875, 29 S. 168. Bonds of a corporation pledged by an agent for 
 a loan to him for the company, are not entitled to be paid in full when the 
 mortgage securing them is foreclosed, but only to the extent of the debt for 
 which they were collateral. 
 
 Default in Interest — Proceeding on Mortgage.— Whitecar v. Morrell, 
 1850, 1 Phila. 44, S. C. 7 Leg. Int. 42. A provision in a bond that the 
 principal shall become due whenever the interest is in default twenty days, 
 does not in the event of the interest becoming in default twenty days, 
 authorize the issuing of a scire facias on the accoinpanying mortgage before 
 a year after default. 
 
 lb.— lb.— Walker v. Tracey, 1851, 1 Phila. 225, S. C. 8 Leg. Int. 130. A 
 condition in a bond that on default in the interest the principal shall become 
 due does not alter the rights of the mortgagor to his year and a day on the 
 mortgage. 
 
 In Blank— Defence.— Miller v. Krause, C. p. Berks, 1862, 1 Woodw. 
 Dec. 100. One who executes a bond and mortgage in blank and places it in 
 the hands of an agent for sale cannot set up as a defence that it was pur- 
 thased at les* than par. 
 
 Inconsistency Between. — Eagle Beneficial Society's Ap., 1874, 25 S. 
 226. Between the original parties the bond is the principal debt; but as to 
 others the mortgage governs, therefore where the bond called for silver and 
 the mortgage for "lawful money of the United States " the vendee of the 
 mortgagor could pay in currency. 
 
 Proceeds of Sale Under— Costs.— Larimer's Ap., 1853, 10 H. 41. The 
 proceeds of property sold undera judgment on one of the bonds secured by 
 
343 MOETGAGE, MOKTOAGOE AND MORTGAGEE. 
 
 mortgage, go to the payment of bonds not yet due, and exceptions to sncli a 
 report of distribution are so wanting in "probable cause" as to throw the 
 costs thereof on to the exceptant. 
 
 Purchase Money— Interest.— Mathias v. Superior Iron Co., 1871, 20 S. 
 160. Defendant purchased property for a certain price, agreeing to assume 
 a mortgage for $3U0, 000 as part of the pri^ and pay the bonds secured 
 thereby which bore eight per cent, interest. It afterwards appeared that the 
 vendor had not issued all the bonds. Meld that the vendee must pay the 
 vendor eight per cent, on those not issued. 
 
 Satisfaction — Evidence.— Fleming v. Parry, 1854, 12 H. 47. An ac- 
 knowledgment of satisfaction of a mortgage and entry of the same of record, 
 is only prima fade evidence between the parties of satisfaction of an accom- 
 panying bond. 
 
 Separate Remedies.— Phila. & Balto. E. E. v. Johnson, 1867, 4 S. 127. 
 Where the bond and the mortgage securing it provide for separate remedies 
 they coexist. And if they should be inconsistent the bond is the debt and 
 the mortgage but the security. 
 
 IV. Building: Association. 
 
 Adjustment — Assignment of Stock.— Kelly v. Accommodation Saving 
 Fund, N. P. 1857, 14 Leg. Int. 49, S. C. 2 Phila. 237. Where one has both 
 given a mortgage and assigned his stock to secure a loan by a building as- 
 sociation, the stock must bear its pro rata share of the debt. And the whole 
 cannot be collected out of the land. 
 
 Amount Recoverable. — Kuppert v. Guttenberg Building Assoc, 1858, 6 
 C. 465. A building association can recover no more on a mortgage given it 
 than the sum actually loaned. 
 
 lb. — Act of April 12, 1859. — Link v. Germantown Building Assoc, 
 1879, 8 N. 15. Aet April 12, 1859, does not permit an unincorporated build- 
 ing association to recover more on its mortgages than the money actually ad- 
 vanced and legal interest thereon, and this is equally true as against a terre 
 tenant who has purchased subject to the mortgage. 
 
 lb.— Married Woman.— Tanner's Ap , 1880, 14 N. 118. The ruling that 
 a building association cannot recover from a married woman more than the 
 sum borrowed with legal interest does not extend to the husband who joins 
 with the wife and receives the full benefit of the loan. 
 
 ib.— lb.— Walbach jj. Lehigh Building Assoc, 1877, 3 N. 211. Where a 
 married woman gives a mortgage to a building .association to secure payment 
 of a loan, together with fines, premiums and dues, the association can re- 
 cover from her only the amount actually loaned. 
 
 Ejectment — Verdict — Sheriff's Sale. — Fredericks v. Corcoran, 1882, 4 
 Out. 413. A building association loaned money to A. by completing a pur- 
 chase for him and taking title as security. The sheriflF's vendee of A.'s in- 
 terest brought ejectment against the association. Held that he was entitled 
 to an absolute verdict. 
 
 Husband and Wife.— Association e. Steele, C. P. 1881, 11 W. N. C. 204, 
 14 Laii. B. 26. A moitgage given by husband and wife to a building as- 
 sociation to secure a loan and also the dues is valid and binds the married 
 woman. 
 
 Ib.— Wiggins' Ap., 1882, 12 W. N. 0. 209. Though a mortgage given by 
 a married woman to a building association be not binding on her, yet it is 
 binding on her husband who has joined with her. 
 
 Ib. — Bond. — Wiggins' Ap.. 188J, 3 Out. 155. A husband who execntesa 
 bond accompanying a mortgage which his wife gives a building association 
 is liable thereon although his wife is not liable on the mortgage. 
 
MORTGAGE, MOETGAGOE AND MOBTGAGEE. 343 
 
 lb. — Separate Estate. — Juniata Building Assoc. 0. Mixell, 1877, 3 N. 
 
 313, S. C. 9 Lan. Bar, 56. A wile by uniting with her husband may give a 
 valid mortgage to a building association on her separate property to secure 
 her husband's liabilities. 
 
 lb.— lb.— Building Assoc, v. Rice, C. P. 1880, 8 W. N. C. 12. The mort- 
 gage of a married woman given to a building association does not bind her 
 separate estate unless made to enable her to improve the same. 
 
 Taxation of Mortgages. — Abbott v. Building Assoc, C. P. Delaware, 
 1883, 1 Del. Co. E. 292, 398. Building association mortgages are not taxable 
 for state purposes. 
 
 Stockholder — Judgment — Damages. — Strohen v. Franklin Saving Loan 
 Assoc, 1886, 5 Amer. 275. In entering judgment against a borrowing 
 stockholder, in favor of an insolvent building association, on a mortgage 
 given to secure the payment of a loan, damages should be assessed by charg- 
 ing the defendant with the sum actually received on the mortgage, and in- 
 terest on the same, and crediting him with all actual payments and interest. 
 But his payments upon his stock, assigned as collateral security for the pay- 
 ment ot the mortgage, should not be credited on the mortgage as either 
 principal or interest. 
 
 Use After Payment.— Loan Co. v. Everham, D. C. 1862, 2 Leg. L. Obs. 
 
 314. After payment to a building association of a loan secured by mort- 
 gage, the mortgage may be used to enforce payment of monthly dues on the 
 shares. 
 
 Usury.— Rowland's Est., C. P. Delaware, 1882, 1 Del. Co. E. 98. It is 
 usury for an unincorporated building association to deduct premiums from 
 the principal of a mortgage. 
 
 lb.— Defence.— Fisher v. Kahlnan, D. C. 1858, 15 Leg. Int. 325, S. C. 3 
 Phila. 213. A terre tenant may take advantage of the defence of usury to a 
 building association mortgage. 
 
 lb. — What Constitutes. — Delaware Building Assoc, v. Keller, C. P. 
 1875, 2 W. N. C. 29. A mortgage to a building association is not usurious 
 because the mortgagor has not received the full face value of the mortgage, 
 the difference is in the nature of a premium. 
 
 When Mortgage is Extinguished. — Everham v. Oriental Loan Assoc, 
 1864, 11 Wr. 352. A mortgage given to an association to secure a loan and 
 also as security for future dues, is not extinguished by a repayment of the 
 loan. 
 
 V. Decedents' Estates. 
 
 Debt. — Cadmus v. Jackson, 1866, 2 S. 295. A mortgage on property of a 
 decedent at the time of his death, but having been given by his grantor, is a 
 debt of the decedent. 
 
 lb.— Kirk's Est., O. C. 1879, 36 Leg. Int. 436, S. C. 13 Phila. 276. A 
 testator may by his will make a mortgage not created by him his own debt. 
 
 Fraud— Who May Set Up.— Williams v. Williams, 1859, 10 C. 312. An 
 administrator of one of the parties to a mortgage claimed to be fraudulent 
 cannot set up the fraud. He does not represent the creditors for this and 
 the time for them to come in is on the distribution of the proceeds of the 
 sale of the land. 
 
 Fund Liable. Leibert's Ap., 1888, 4 Crum. 525. A debt of an intes- 
 tate secured by a mortgage is payable like all other debts of the intestate, 
 out of his personal estate exclusively in the first instance, although the 
 mortgage Is a lien upon the land of which the intestate died seized. But 
 where the heir takes'the property so bound, at a certain valuation, he can- 
 not, after a lapse of thirteen years, enforce payment out of the personal 
 ■estate. 
 
344 MORTGAGE, MOETGAGOB AND MOKTGAGEE. 
 
 lb. — Ruston V. Ruston, 1796, 2 Y. 54. The personal estate of a testator 
 shall go to ease his land of mortgages as against residury legatees, but not 
 as against specific legatees. 
 
 lb. — Mansell's Est., 1849, 1 Pars. 367. A bond and mortgage given to se- 
 cure the widow's interest by an heir who takes land at an appraisement is. 
 payable after his decease out of his personal estate. 
 
 lb. — Hirst's Ap., 1880, 11 N. 491. A devisee of land which came into the 
 testator's hands under and subject to a mortgage, takes the land subject to 
 the mortgage and cannot call upon the personal estate to pay it. 
 
 lb. — Moore's Ap., 1879, 7 N. 450. The clause in a deed " under and sub- 
 ject to a mortgage " does not create a personal liability on the grantee to pay 
 the mortgage. The debt, therefore, after his death is not payable out of his 
 personalty but out of the land. 
 
 Injunction — Omhans' Court and Common Pleas. — Grice v. Kinsey, 
 1877, 4 W. N. C. 208, aflf'g 2 W. N. C. 211. Where a first mortgagee is 
 proceeding in the common pleas, that court will not restrain him at the suit 
 of the mortgagor's executor who is proceeding in the orphans' court to have 
 a sale of the property, nor will the latter court order a sale that being the 
 only debt. 
 
 Interest— Death of Mortgagee.— Bouillou's Est., C. P. 1880, 9 W. N. 
 C 14. The death of a mortgagee and the neglect to take out administration 
 does not stop the running of interest on the mortgage. Act April 3, 1851, pro- 
 viding for payment into court gives the mortgagor his remedy. 
 
 Inventory. — Gallagher's Est., 1874, 26 S. 296. A mortgage should be 
 included in an inventory. 
 
 Specific Performance— Parties. — Alexander's Ap., 1887, 20 W. N. C. 
 284. D. agreed to sell X. a tract of land reserving certain mining privileges, 
 D. received a part of the purchase money and gave a receipt stating that the 
 money had been paid by X.'s sister and that X. was to execute a bond 
 and mortgage to her for the amount advanced. D. paid the interest on thia 
 amount for some time. The heirs of X. filed a bill for specific performance. 
 Held the sister should have been made a party and the complainants were 
 not entitled to performances until the above-mentioned bond and mortgage 
 were executed. 
 
 lb.— Purchase Money.— Corkin v. Blake, D. C. 1860, 17 Leg. Int. 20, S. 
 C. 4 Phila. 10. A bill in equity will lie against an administrator (husband 
 of the decedent) to specifically enforce an agreement made between com- 
 plainant and decedent that the latter should execute a bond and mortgage to 
 secure the unpaid purchase money due on land conveyed by the complainant 
 to the decedent. 
 
 Specialty Creditor— Recording.— Adams' Ap., 1830, 1 P. & W. 447. A 
 mortgage put on record after the mortgagor's death does not thereby give the 
 mortgagee any greater rights against the estate. He is but a specialty 
 creditor. 
 
 Set-Off— Chattels-Possession.— Kater v. Steinrnck, 1861, 4 Wr. 501. 
 The mortgagee of chattels has no claim on them after the mortgagor's death, 
 and if he takes possession of them after the mortgagor's death under a 
 clause allowing him to take possession on default being made, he is liable to 
 trover by the administrator nor can he set off his debt in that action. 
 
 VI. Distribution. 
 
 Husband and Wife.— Sheppen's Ap., 1876, 30 S. 391. A wife's separate 
 estate was mortgaged and the husband received and used the money. His 
 wife died and the property was sold under the mortgage, the claimants for 
 the surplus were the husband's creditors and the wife's heirs. Held that the 
 
MORTGAGE, MOETGAGOE AND jrOETGAGEE 345 
 
 ereditors could only claim through the husband, and that as he had already 
 received what was equal to his curtesy, the fund should go to the heirs of 
 the wife. 
 
 Land Subject to Judgment.— Devor's Ap., 1850, 1 H. 413. Land was 
 subject to a judgment, an undivided half of it was subject to a subsequent 
 mortgage. There were other later liens. In distributing the proceeds of a 
 sheriff's sale of the land, it was held that the mortgage was entitled to go 
 against the whole fund left after the judgment was satisfied. 
 
 Parties. — Housekeeper's Ap., 1865, 13 Wr. 141. The heirs of a mort- 
 gagor have no standing in court upon distribution of the proceeds raised by 
 a sale. 
 
 Preferences. — Perry's Ap., 1854, 10 H. 43. To secure a debt four mort- 
 gages were given, payable in one, two, three and four years. The first was 
 assigned and afterwards the others to different persons. On distribution of 
 the proceeds of sale of the land, it was held there was no preference. 
 
 Prior Judgment.— Lindley v. Neville, 1825, 13 S. & E. 227. A mort- 
 gagee can claim the balance of proceeds from a sale of land under a prior 
 judgment. 
 
 Sequestration — Liens. — Bank o. Patterson, 1848, 9 Barr, 311. A mort- 
 gage creditor whose lien would not be discharged by a sale under a judg- 
 ment is not entitled to the fund arising from sequestration of the land under 
 the judgment. 
 
 Trustees. — Yamal's Ap., 1846, 3 Barr, 363. Where a mortgage is given 
 to trustees to secilre creditors, the trustees are the proper parties to distri- 
 bute the money raised on it, and it is error for the court to distribute it. 
 
 VII. Biscliarge of r,ien of mortgage. 
 
 Act of April 6, 1830— Proceeds— Title.— Shultze v. Diehl, 1830, 2 P. & 
 W. 273. Act April 6, 1830. (Lien of mortgages not discharged, etc.,) not 
 applied to a case, where without notice of this Act, passed but four days be- 
 fore the mortgagees gave notice that they would claim the proceeds of the 
 sale' to satisfy their debt. The purchaser took a clear title. 
 
 Agreement. — Schall's Ap., 1861, 4 Wr. 170. Land subject first, to a 
 widow's statutory dower, second, to a mortgage, third, to a mortgage, was 
 sold under the first mortgage, there being a written agreement to take sub- 
 ject to the other two claims. Held to be a binding agreement, statutory 
 dower being an interest in land not a lien. 
 
 lb.— Mode's Ap., 1843, 6 W. & S. 280. Prior to the Act of 1830 no 
 agreement or understanding at a sheriff's sale could continue the lien of a 
 Mortgage against a subsequent purchaser even though he had notice. To 
 allow this would be virtually to allow a mortgage to be created by parol. 
 
 Assignment— Mechanic's Lien— Release.— Mcllvaln v. Mutual Assur. 
 Co., 1880, 12 N. 30. An assignee of a mortgage released a part of the 
 premises 'from the lien at the time that a building was just being finished 
 on the other part. Held that he was not prejudiced as against the mechanic's 
 lien because he had not received notice, the fact of the building being notice 
 only to purchasers. But after receiving notice of the lien a release of a part 
 still remaining would discharge the lien in the proportion that the part dis- 
 charged bears to the amount incumbered at the time the notice was given. 
 
 Bonds— Sale Under.— McGrew v. McLanahan, 1829, 1 P. & W. 44. A 
 sale of mortgaged premises upon a judgment on one of several bonds se- 
 cured by the mortgage, discharges the whole mortgage though it be not due. 
 
 15. — 15. — Corporation. — Commonwealth v. S. & D. R. R. R. Co., 1888, 
 45 Leg. Int. 387 . Where there has been a default in the payment of interest 
 
346 MORTGAGE, MOETGAGOB AND MOKTGAGEE. 
 
 on coupon bonds of a corporation and judgment is obtained, upon which the 
 franchises, right of way and property of the corporation are sold, the pur- 
 chaser takes title to the same subject to the lieu of the mortgage of which 
 debt the bonds were a part. 
 
 Deed Absolute on Face— Surety. — Miller v. Musselman, 1841, 6 Wh. 
 354. A lien which was uncertain in amount was not discharged by judicial 
 sale even before the Act of 1830. But a mortgage given to a surety was 
 discharged by such sale prior to 1830 if absolute on its face. 
 
 EcLuitable Interest — Conditional Verdict.— Maxon's Ap., 1874, 25 S. 
 176. A mortgage of the equitable interest of a vendee under articles is ex- 
 tinguished when the vendor gets a conditional verdict against the vendee in 
 equitable ejectment, and the verdict becomes absolute. 
 
 Estoppel.— Woods v. Pittsburgh E. R., 1881, 3 Out. 101. One having a 
 lien on land which he claims to be a first lien, who is served as a party de- 
 fendant along with the owner of the land in a suit to have a mortgage de- 
 clared a first lien and who suffers a decree to be made against him pro con- 
 fesso, is estopped from prosecuting his claim against a purchaser of the land 
 under the mortgage. 
 
 Foreclosure— Three Bonds.— Berger v. Hester, 1840, 6 Wh. 210. A 
 mortgage given to secure the payment of three bonds payable at different 
 dates, is iully discharged by a foreclosure under the first bond before the 
 others become due. 
 
 Judicial Sale— Lien.— Duncan v. Eeifif, 1833, 3 P. & W. 368. A mort- 
 gage due the Commonwealth is not discharged by any judicial sale, but re- 
 mains a lieu till paid. 
 
 Judgment on Bond— Part Satisfaction. — Lyons v. Ott, 1840, 6 Wh. 
 163. A mortgage is not discharged by having judgment entered on the ac- 
 companying bond, and partly satisfied by a levy and sale of personalty, and 
 a levy on the land followed by a return that the profits for seven years would 
 satisfy the judgment, but on which no Kberari issued. 
 
 Judgment on Note— Sale.— Dougherty's Ap., 1875, 1 W. N. C. 593. A 
 sale of property under a judgment obtained on a note secured by mortgage 
 discharges the mortgage. 
 
 lb. — Bittinger's Ap., 1878, 6 W. N. C. 231. A sale of mortgaged premises 
 under a judgment obtained on a note given for interest on the fir.st mortgage, 
 discharges the lien of the mortgage although the record does not show for 
 what the note was given. 
 
 Leasehold — ^Rent. — Miner's Bank v. Heilner, 1864, 11 Wr. 452. A mort- 
 gage of a leasehold interest is within the provisions of the Act of April 6, 
 1830, and the rent is not a prior lien the existence of which will discharge 
 the mortgage on a sale of the term under a junior encumbrance. 
 
 lb.- Subsequent Mortgage. — Gill v. Weston, 1885, 43 Leg. Int. 175. A 
 leasehold mortgage properly recorded is not discharged by a sale under sub- 
 sequent liens. 
 
 Mechanic's Lien— Sheriff's Sale — ^Evidence.— Harper's Ap., 1877, 4 
 W. N. C. 49. A mortgage is discharged by a sheriff's sale when there is a 
 prior mechanic's lien thereon which is regular on its face, and evidence de- 
 hors the record is not admissible to show that the mechanic's lien is invalid 
 and so to charge the purchaser with the mortgage. 
 
 lb. — Subsequent Judgment. — Goepp ;;. Gartizer, D. C. 1859, 16 Leg. Int. 
 37, S. C. 3 Phila. 335. A mortgage second to a mechanic's lien is discharged 
 by a sale under a subsequent judgment unless the mechanic's lien be invalid 
 on its face 
 
 Mistake— Lots not Included by.— Miller's Ap., 1892, 11 W. N. C. 506. 
 Where a mortgagee issues a scire facias on his mortgage and by a mistake of 
 the prothonotary all the lots covered by the mortgage are not included, and 
 those sold do not discharge the debt, the balance due remains a lien as 
 against subsequent judgment creditors. 
 
MORTGAGE, MOEffGAGOR AND MORTGAGEE. 347 
 
 Notice.— Schryock v. Jones, 1853, 10 H. 303. The sheriff having in his 
 hands two writs of vend. ex. sold the property. The owner of a first mort- 
 gage upon which one of the writs issued gave notice that it was sold subject 
 to the mortgage. The sheriff returned the sale as under the the other writ. 
 Held the mortgag was not discharged. 
 
 lb. — ^Recording. — Eeading v. Hopson, 1879, 9 N. 494. A purchaser of 
 property at sheriff's sale is not allowed to show by parol that a mechanic's 
 lien on the property, though entered after a mortgage was recorded, was for 
 work done previously and, therefore, such a prior lien as would discharge 
 the mortgage. 
 
 lb.— Release.— Mcllvain v. Mutual Assur. Co., 1880, 12 N. 30. An as- 
 signee of a mortgage released a part of the premises from the lien at the 
 time that a building was j ust being finished on the other part. Held that 
 he was not prejudiced as against the mechanics' lien because he had not re- 
 ceived notice, the fact of the building being notice only to purchasers. But 
 after receiving notice of the lien a release of a part still remaining would 
 discharge the lien in the proportion that the part discharged bears to the 
 amount incumbered at the time the notice was given. 
 
 lb. — ^Ib.^ — ^Schrack v. Shriner, 1882, 4 Out. 451. "Where a mortgagee exe- 
 cutes a release of part of the mortgaged premises, the other part having been 
 previously sold, he does not thereby discharge the lien on the part sold un- 
 less he has notice of the fact and that the vendee has paid full value and ex- 
 pects the balance to discharge the mortgage. If the vendee has given such 
 notice to the mortgagee he is surely protected. 
 
 lb.— Sheriff's Sale.— Ashmead V. McCarthnr, 1871, 17 S. 326. Where it 
 is distinctly understood at a sheriff's sale that the property is sold subject 
 to a mortgage, the purchaser will so hold it, although it afterwards appear 
 that the mortgage was not a first lien. The parties may contract for a rule 
 differing from a mere result of law. 
 
 lb. — Unrecorded Mortgage. — Hibberd v. Bovier, 1855, l Gr. 266. An 
 unrecorded mortgage which will be discharged by a sheriff's sale cannot 
 come in upon the proceeds as against subsequent judgment creditors, but if 
 it is a first lien, notice at the sale binds the purchaser and he takes subject 
 to it. 
 
 Orphans' Court Sale,— Penn Building Assoc. 's Ap., 1876, 32 S. 330. A 
 sale by order of orphans' court for payment of debts does not discharge a 
 first mortgage though it is included in the schedule of debts. 
 
 lb. — Cadmies v. Jackson, 1866, 2 S. 295. An orphans' court sale for pay- 
 ment of debts divests a mortgage. 
 
 lb. — Moore v. Shultz, 1850, 1 H. 98. A mortgage is discharged by a sale 
 ordered by the orphans' court for the payment of debts. 
 
 lb.— Jackson v. Dickerson, X>. C. 1864, 21 Leg. Int. 96, S. C. 5 Phila. 356. 
 Where a mortgage has been paid out of the proceeds of an orphans' court 
 sale the mortgage is discharged at least as to the party receiving the money. 
 
 lb.— Bloomer's Est., O. C. 1875, 2 W. N. C. 68, S. C. 32 Leg. Int. 378, 11 
 Phila. 92. The lien of a mortgage is not discharged by an orphans' court 
 sale. 
 
 lb.— Metz's' Est., 0. C. Schuylkill, 1880, 1 Soh. L. E. 224. An orphans' 
 court sale does not discharge the lien of a first mortgage, though it be im- 
 properly included in the schedule of debts for which the sale was ordered. 
 
 lb.— Girard Trust Co, v. Farmer's Nat. Bank, 1868, 7 S. 388. A first 
 mortgage is discharged by a sale in partition in the orphans' court. 
 
 Payment. — Commonwealth v. Wilson, 1859, 10 C. 63. A judgment ob- 
 tained on a bond secured by mortgage is not entitled to payment out of the 
 proceeds of a sheriff's sale which does not discharge the mortgage. Thia 
 was the law before the Act April 16, 1845, S. 5, so declared it. 
 
 lb.— Dry Trust— Equities.— Workmen's Saving Fund's Ap., 1878, 6 W. 
 
'MH MORTGAGE, MORTGAGOR AND MORTGAGEi:. 
 
 N. C. 141. Where a mortgage has been paid and assigned to a dry trustee, 
 equity will not consider it discharged if there be some equity to be protected . 
 
 lb.— lb.— Lost Bond.— Hodgdon v. Naglee, 1843, 5 W. & S. 217. A pay- 
 ment of the mortgage debt by a mortgagor to the mortgagee is an extin- 
 guishment thereof, although the accompanying bond has been previously a.>- 
 signed for value, unless the assignee has given notice of his claim. There- 
 fore it is no defence to an action by the mortgagee that the bond is lost and 
 no indemnity has been tendered. 
 
 lb.— To Attorney.— Pratt v. Eby, 1871, 17 S. 396. A payment of a 
 mortgage to the person who signed the mortgage as attorney for the mort- 
 gagee is not a discharge of the mortgage. 
 
 lb.— To, Trustee.— Bowes v. Seeger, 1844, 8 "W. & S. 222. Payment by a 
 mortgagor to one of two joint trustees to whom the mortgagee has assigned 
 the mortgage is a valid discharge. 
 
 Partition— Act of March 26, 1867.— Wright v. Viewers, 1876, 31 S. 122. 
 Even since the Act March 26, 1867, a sale of property in partition discharges 
 a mortgage on a co-tenant's share and substitutes his share of the proceeds 
 as the mortgagee's security. 
 
 Protection — Taxes. — Fisher v. Jackson, 1882, 14 Lan. B. 6. The lien of 
 a mortgage is not protected by Act of 1867, where there is a lien for taxes at 
 the time the mortgage is given. 
 
 Purchase—Agreement. — Wager v. Chew, 1850, 3 H. 323, One purchas- 
 ing property at a sherift 's sale cannot be charged with a lien discharged by 
 the same unless it be shown that he was permitted to buy the property on 
 condition of his assuming it. 
 
 lb. — By Mortgagee — Merger. — Brown v. Simpson, 1834, 2 W. 233. 
 Where the record shows that mortgaged premises hav^ been bought in by 
 the mortgagee, a purchaser of the property takes discharged of the mortgage. 
 
 Prior G-round Rent— Sale Under. — Eushton«. Lippincott, 1888, 4 Cram. 
 12. A sheriff's sale of real estate on a judgment in covenant for ground 
 rent reserved, discharges a mortgage upon the premises subsequent to the 
 ground rent deed. 
 
 Prior Judgment— Sale Under.— Fleck v. Zillhaver, 1887, 2 Crum. 213. 
 Where a husband aad wife are seized of land by entireties and the husband 
 survives the wife, a sheriff's sale of the land upon a judgment against the 
 husband will discharge a mortgage executed by the husband and wife after 
 the entry of the judgment. 
 
 Prior Mortgage — Sale Under. — Presbyterian Corporation V. Wallace, 
 1831, 3 E. 109. A sale under a judgment of premises covered by a prior 
 mortgage, discharges the mortgage though not yet due. 
 
 lb. — lb. — Clarke v. Stanley, 1849, 10 Barr, 472. A second mortgage is 
 discharged by a sale under a prior mortgage whether the mortgage be fore- 
 closed by a scire facias or the first mortgage proceed upon his bond obtaining 
 judgment thereon even after the second mortgage. 
 
 Purchase Money. — Pease v. Hoag, C. P. Crawford, 1875, 7 Lan. Bar, 49, 
 S. C. 22 Pitts. L. J. 161, 32 Leg. Int. 220, 11 Phila. 549. Where two pur- 
 chase money mortgages are given on the same day, one saying it js subject 
 to the other, the latter is not discharged by a sale under the former. 
 
 Receipt by Attorney of Record.— Thomas v. Jarden, 1868, 7 S. 331. A 
 receipt by an attorney of record to the sheriff for the purchase money of 
 land sold on proceedings on a mortgage, is a discharge pro tcmto of the 
 mortgage. 
 
 Recognizance in Orphans' Court— Act April 6, 1830. — Sheaffer's Es- 
 tate, 1886, G Pa. Co. C. Rep. 147. Where unencumbered real estate is sold and 
 the purchaser gives a recognizance in the orphans' court to secure the inter- 
 ests of the widow and heirs of the vendor, and the vendee subsequently 
 conveys to a third party taking a purchase money mortgage, this latter party 
 
MORTGAGE, MORTGAGOR AND MORTGAGEE. 349 
 
 afterwards conveying to a fourth also taking a purchase money mortgage, 
 and jndgraents are recovered against the last vendee who executes an as- 
 signment for creditors under which the property is sold, the lien of the prior 
 mortgages is not discharged since they are merely security for the debts. 
 Act of April 6, 1830. The lien of the recognizance is however discharged. 
 
 Recording— Judgments Same Day.— Richey's Ap., 1888, 22 W. N. 
 C. 154. Where a mortgage is recorded, and several judgments entered 
 against the mortgagor on the same day, a subsequent sale discharges the 
 mortgage as it is not "prior to all other liens, except other mortgages, ground 
 rents, and purchase money due the Commonwealth." 
 
 Release. — Matlack's Ap.. 1844, 7 W. & S. 79. Where a mortgagee exe- 
 cutes a general release of all his claims in order to come in under an assign- 
 ment for creditors he loses the lieu of his mortgage. 
 
 lb.— Assignee to Purchaser— Title of Subsequent Assignees.— Mc- 
 Dowell 11. Jones, 1884, 4 Penny. 460. A. executed a mortgage to B., who 
 assigned the same to C. as collateral security for a note given in payment of 
 a loan made by C. to B., which assignment was not under seal and never re- 
 corded. A. subsequently conveyed the land bound by the mortgage to D., 
 who obtained a release of the lien of the mortgage from C, for a money con- 
 sideration fully paid. D. took possession and made improvements. Judg- 
 ment had in the meantime been entered by C. on the bond, and satisfied of 
 record. One year after the release given by C. to D. had been executed, A. 
 executed an exactly similar bond and mortgage, assigned it to B., who ob- 
 tained mooey on it from E. E.'s assignee entered j udgmeut on the bond 
 and sold the land. Held that D. had taken a good title before E.'s assignee 
 had acquired any rights, since by the valid equitable assignment of the bond 
 and mortgage, C. was the only party capable of executing a release of the 
 lien whereby the title became vested in D. freed from the mortgage. 
 
 Sale — Collateral — Debt. — Germania Building Assoc, v. Neill, 1880, 12 
 N. 322. Where a creditor holds two mortgages on the same property and 
 also collateral for the debt, a sale under the second mortgage to the creditor 
 frees the land from the lien of the first but does not discharge the debt it 
 was given to secure or release the collateral. 
 
 lb.— On Judgment.— Pierce v. Potter, 1838, 7 W. 475. A sale of mort- 
 gaged property under a judgment recovered on the bond accompanying the 
 mortgage is a discharge of the lien of the mortgage. 
 
 lb.— Part Satisfaction.— Pierce v. Potter, 1838, 7 W. 475. The sale of 
 land upon a judgment recovered on a debt secured by mortgage is an ex- 
 tinguishment of the lien of the mortgage, but if sold for less than the mort- 
 gage debt it is not such an extinguishment thereof as will enable the mort- 
 gagor to coerce an entry of satisfaction on the mortgage. , 
 
 lb. — Subject to Mortgage. — Tower's Appropriation, 1845, 9 W. & Si 
 103. Land may be sold by the sheriff subject to a second mortgage if so 
 agreed at the time of the sale, and none can object except prior lien cred- 
 itors whose claims may not be satisfied out ot the smaller fund thus obtained. 
 
 lb.— lb —Pierce v. Gardner, 1876, 2N. 211. A clause in a deed "subject 
 to a mortgage, etc.," there being no mortgage at most, creates but an equit- 
 able lien which is discharged by a subsequent sheriff's sale. 
 
 Satisfaction— Judgment and Sale.— Pierce v. Potter, 1838, 7 W. 475. 
 The sale of land upon a judgment recovered on a debt secured by mortgage 
 is an extinguishment of the lien of the mortgage, but if sold for less than 
 the mortgage debt it is not such an extinguishment thereof as will enable 
 the mortgi^or to coerce an entry of satisfaction on the mortgage. 
 
 lb.— Leech v. Bousal, D. C. 1874, 31 Leg. Int. 184, S. C. 9 Phila. 204. An 
 entry of satisfaction of a mortgage by the recorder on certificate from the 
 district court that the judgment thereon has been satisfied, does not disr 
 charge its lien, if the satisfaction of the judgment was not made by the 
 party at the time holding the mortgage. 
 
350 MORTGAGE, MOETGAGOK AND MOETGAGEE. 
 
 Security— Release.— Welch v. Mote, 1880, 8 AV. N. C. 248. Where a 
 mortgage is given to one as security for the performance of an agreement, 
 between the mortgagee and a third person, the release of the third person 
 by the mortgagee is a release of the mortgage. 
 
 Security — Trustee. — Schuenzel r. German Hospital, C. P. 1882, 12 W. 
 N. C. 78, S. C. 39 Leg. Int. 373, 15 Piiila. 243. Where it appears that a 
 jmortgage has been given merely as security for the performance of a certain 
 [condition respecting land, equity will, to preserve the rights of all parties, 
 I appoint a trustee to take charge of the mortgage and hold it until the condi- 
 ( tion be fully performed and then cancel it. 
 
 Subseciuent Judgment— Sale Under.— Willord v. Norris, 1829, 2 E. 56, 
 S. C. 1 P. & W. 480. A mortgage is discharged by a sale of the mortgaged 
 premises under a subsequent judgment. 
 
 lb. — Kuhn's Ap., 1745, 2 Barr, 264. A first mortgage is not discharged 
 by a sale under a subsequent judgment although judgment has been en- 
 tered up on the accompanying bond and warrant. 
 
 lb. — Presbyterian Corporation v. Wallace, 1831, 3 R. 109. A sale of part 
 of mortgaged premises under a subsequent judgment discharges the mort- 
 gage pro tanto, the whole debt is not charged on the part unsold. 
 
 lb. — Fisher v. Counard, 1882, 4 Out. 43. A mortgage will be divested by 
 a sherifif' s sale under a jsmior encumbrance, where municipal liens or liens 
 of taxes had been entered up prior to the recording of the mortgage. 
 
 lb. — Whitehead v. Purnell, 1840, 2 M. 434. A sale under a junior en- 
 - cumbrance passes a clear title to the purchaser where the prior lien is a judg- 
 ment entered on a bond accompanying a mortgage. 
 
 lb. — Helfrich v. Weaver, 1869, 11 S. 385. If a mortgage is prior to all 
 other liens except a widow's interest under the intestate acts, it will not be 
 discharged by a sheriff's sale on a subsequent judgment. 
 
 lb.— Sensenig v. Thompson, 1874, 2 Fost. 13, 21 Pitt.s. L. J. 79. Amort- 
 gage which is prior to all liens except a widow's interest charged on the land 
 is not divested by a sheriff's sale. 
 
 lb. — Wert's Ap., 1870, 1 Leg. Op. 33. Where a mortgage is prior t« all 
 other liens except a fixed charge not itself divested by a sheriff's sale, the 
 fact that there are arrearages due on this fixed charge vrill not divest the 
 mortgage. 
 
 lb — Rhein Building Assoc, v. Lea, 1882, 4 Out. 210. In Philadelphia the 
 lien of a mortgage is not discharged by a sale under a junior encumbrance, 
 although a municipal lien or a lien for taxes had been entered up before the 
 mortgage was recorded. 
 
 lb.— Stackpole v. Glassford, 1827, 16 S. & R. 163. A mortgage is not dis- 
 charged by a sale of the premises under a subsequent judgment, where the 
 jury finds that the land was sold subject to the mortgage. 
 
 Ib.^Hoover v. Shields, 1830, 2 P. & W. 135. The lieu of a mortgage is 
 , discharged by a sale under a subsequent judgment. 
 
 lb. — Kurtz's Ap., 1856, 2 C. 465. A mortgage on land subsequent to the 
 lien of a widow's third is discharged by a sale under a subsequent judg- 
 ment. 
 
 lb.— Febeiger v. Craighead, 1796, 4 D. 151, S. C. 2 Y. 42. A mortgage 
 is not discharged by a sale under a subsequent judgment. 
 
 lb. — Keen v. Swayne, 1803, 3 Y. 561. Quxre, whether a sale under a 
 subsequent mortgage or judgment discharges the lien of a prior mortgage or 
 judgment? 
 
 lb.— Lea v. Brown, C. P. 1881. 9 W. N. C. 418, 38 Leg. Int. 42, 15 Phila. 
 220. A mortgage in Philadelphia county is not discharged by a sale under 
 a subsequent judgment although there be a prior lien for taxes. 
 
 lb. — Wentz's Ap., 1870, 15 S. 306. A mortgage given on land subject to 
 
MORTGAQB, MOKTGAGOE AND MORTGAGEE. 351 
 
 a widow's third is not discharged by a sale on a subsequent judgment, al- 
 though the widow's interest be at the time in arrears. 
 
 lb.— Title.— Eidgway v. Longaker, 1852, 6 H. 215. A sale of mortgaged 
 premises under a judgment obtained upon the debt for which the mortgage 
 was given passes a clear title. 
 
 Subsectuent Mortgage.— Strauss' Ap., 1865, 13 Wr. 353. Parties mny, 
 as between themselves and their powers, create, by clear and express words, 
 liens upon land, but these are discharged by a sheriif' s sale unless in the na- 
 ture of testamentary provisions for a wife or children, or are incapable of 
 valuation, or are expressly created 4o run with the land. A mortgage subse 
 quent to such lien is also discharged by such sale. 
 
 ' Tax Claim.— Smaltz v. Donohugh, 1881, 11 W. N. C. 219. A mortgage 
 is prior to a tax claim subsequently filed against property in Philadelphia 
 county, if the latter be not registered within a year after they are assessed. 
 
 Tax Sale. — Cadmus v. Jackson, 1866, 2 S. 295. A sale for tax is assessed 
 alter the mortgage was given does not divest it. 
 
 lb. — Fager v. Campbell, 1836, 5 W. 287. A sale of unseated lands for 
 taxes divests the lien of a mortgage. 
 
 VIII. Equity of Redemption. 
 
 Act of April 9, 1830.— Garro v. Thompson, 1838, 7 W. 416. The sub- 
 stance of the Act of April 9, 1830, is that no more than the equity of re- 
 demption shall be sold on an execution against the mortgagor. 
 
 Ejectment — ^Possession— Satisfaction. — Heermaus v. Stephens, C. P. 
 Lackawanna, 1881, 3 L. T. N. S. 81. A mortgagee may maintain ejectment 
 against the holder of the equity of redemption, and he will be entitled to 
 retain the possession until the mortgage is satisfied. 
 
 Parol Agreement to Buy in.— Kelleny v. Smith, 1859, 9 C. 158. A 
 verbal agreement by a mortgagee to buy in the equity of redemption about 
 to be sold by the sherifl, and hold the whole title as security for this sum 
 and the other, is not valid either as a trust or a mortgage. 
 
 Power of Court to Limit.— Bagley v. Wallace, 1827, 16 S. & E. 245. In 
 giving a mortgagee judgment in ejectment the court has no power to limit 
 the right of redemption to one year, this is contrary to the Act of 1705. (Sm. 
 L. 59.) 
 
 Sale— Proceeds— First Mortgage.— Bratton's Ap., 1848, 8 Barr, 164. 
 A first mortgagee cannot claim payment out of the proceeds of a sale under 
 a subsequent judgment, since only the equity of redemption is sold. 
 
 Trust— Laches. — Graham V. Donaldson, 1836, 5 W. 451. A purchaser at 
 sheriff's sale agreed before buying to hold it for the defendant who could 
 redeem by repayment of debt, interest, costs, etc. Held that after ten year.s 
 of inaction the defendant's right was barred. 
 
 Release. — Caverow v. Mutual Life Ins. Co., 1866, 2 S. 287. A deed abso- 
 lute on its face but against which there is an unrecorded defeasance, be- 
 comes absolute iu fact upon the mortgagor's releasing his equity of re- 
 demption. 
 
 Purchase From Assignee in Bankruptcy. — Bryar's Ap., 1885, 1 
 Amer. 81. A purchaser of land from an assignee in bankruptcy, subject to 
 a mortgage given by the bankrupt, takes, as respects the bankrupt, his equity 
 of redemption and nothing more. His bid was in addition to the debts se- 
 cured by the mortgages. If the purchaser now purchases the mortgages he 
 frees the bankrupt from all liability for their payment and can collect no 
 part thereof out of the other property of the bankrupt. A mortgage does 
 not necessarily merge or become extinct by being united in the same person 
 
352 MOKTGAGE, MOKTGAGOB AND MOETGAGBE. 
 
 ■with the fee. When a person becomes entitled to an estate subject to a 
 charge lor his own benefit, he may take the estate and keep up the charge. 
 The test in this case is the actual or presumed intention of the parties in 
 whom the estates are united. 
 
 IX. Exemption. 
 
 Act of 1849.— Gangwere's Ap., 1860, 12 C, 466. The exemption law of 
 1849, does not apply to a mortgage. 
 
 Levari Facias.— Morgan v. Nond, 1851, 1 Phila. 250, S. C. 8 Leg. Int. 
 158. Exemption cannot be claimed out of funds raised by a levari Jaciasmr 
 mortgage. 
 
 lb.— Craig V. Craig, C. P. 1875, 1 W. N. C. 613. A mortgagor cannot 
 claim exemption out of the proceeds of the mortgaged premises sold under a 
 levari facias. 
 
 lb.— Saving Fund v. Creighton, D. C. 1858, 15 Leg. Int. 53, S. C. 3 Phila. 
 58. Where land is sold under a levari the mortgagor is not entitled to ex- 
 emption out of the balance remaining after satisfying the mortgage, ' 
 
 Waiver— Extent of.— Building Association v. Schott, C. P. 1878, 6 W. 
 N. C. 399. A waiver of exemption in a mortgage will not be eonstrued to 
 extend to personalty. 
 
 Widow's. — Kauflfman's Ap., 1886, 2 Amer. 645. A widow is not entitled 
 to exemption out of a fund raised by a sale of mortgaged premises as against 
 the mortgagee. 
 
 lb. — Nerpel's Ap., 1879, 10 N. 334. A widow cannot claim her exemp- 
 tion out of the proceeds of a sheriff's sale of land in preference to a mort- 
 gagee of her husband. 
 
 X. Fixtures* 
 
 Severed and Sold— Defence.— Hoskins v. Woodward, D. C. 1861, 1 Leg. 
 L. Obs. 142. A mortgagee may recover in replevin from a vendee of the 
 mortgagor, fixtures severed and sold, and the defendant cannot set up that 
 they are not personalty since as to him the severance was complete. 
 
 Subsequent Annexation. — Roberts v. Dauphin Bank, 1852, 7 H. 71. 
 Fixtures annexed after a mortgage has been given are bound by it. 
 
 What Pass as. — Voorhis v. Freeman, 1841, 2 W. & S. 136. Necessary 
 machinery in a mill, whether in place or not, passes to the mortgagee under 
 a mortgage including "building, apparatus, etc." 
 
 lb. — Morris' Ap., 1879, 7 N. 368. A mortgage of real estate Bsed as a 
 manufacturing establishment includes all the machinery used ttierein whether 
 detached or not. 
 
 XI. Foreclosure. 
 
 Equity of Eedemption.— Drexel v. Canal Co., N. p. 1868, 25 Leg. Int 
 44, 60, S. C. 6 Phila. 503. Where a bill is filed 1o foreclose a mortgage for 
 non-payment of the interest on the bonds a reasonable time will be allowed 
 the defendants to redeem. 
 
MORTGAGE, MOETGAGOE AND MOETGAGEE. 353 
 
 Injunction Against City— Water Rent.— Girard Life Ins. Co. v. Phila- 
 delphia, 1879, 7 N. 393, S. C. 7 W. N. C. 69. A mortgagee purchasing the 
 mortgaged premises at a sheriff's sale under a foreclosure cannot have the 
 city restrained from turning off the water to enforce payment of arrears of 
 water rent. 
 
 Judgment— Sheriff's Sale.— West Branch Bank v. Chester, 1849, 1 J. 
 282. A sheriff's sale of mortgaged premises upon a judgment for interest 
 due upon a mortgage not yet due is a foreclosure of the mortgage with all its 
 incidents. 
 
 Lease— Avoided by.— McCall v. Lenox, 1823, 9 S. & R. 302. A lease 
 made by a mortgagor after the mortgage and before judgment on the accom- 
 panying warrant, is avoided by foreclosure. 
 
 Purchase by Mortgagee— Consideration.— Blythe v. Eichards, 1823, 
 10 S. & R. 261. A mortgagee may purchase the mortgaged premises at the 
 foreclosure sale though for less than the mortgage money and costs. 
 
 Set-Off— Rent.— Scott v. Fritz, 1866, 1 S. 418. A mortgagee became 
 tenant of the grantee of the mortgaged premises, held in an action to fore- 
 close the mortgage, the grantee not being a party, rent due by the mortgagee 
 to him could not be set off by the mortgagor against the mortgaged debt. 
 
 Waiver of Year.— Huling v. Drexell, 1838, 7 W. 126. The year's grace 
 given to a mortgagor by the Act of 1705, being for his benefit, may be waived 
 by him, therefore, a stipulation in a mortgage that, on failure to pay interest, 
 the mortgage may be sued out immediately, is lawful, and an agreement 
 that mortgagee shall also recover costs and damages is not usurious. 
 
 Waiving Regularity of Proceedings. — Wilson c. McCuUough, 1852, 7 
 H. 77. A scire facias sur mortgage is a proceeding in rem, and the mortgagor 
 cannot waive regular proceedings so as to pass a title to the purchaser at 
 sheriff's sale, the levari facias having issued without judgment first obtained. 
 
 XII. Future Advances. 
 
 Assignee With Notice— Consideration.— Muiiison's Est., 1871, 18 s. 
 212. Where one gives a mortgage to another without any money passing, 
 but that the latter may raise money on it for the mortgagor, such mortgage 
 is a lien only from the time of advances made, and an assignee of the mort- 
 gagee with notice of the want of consideration stands in the position of the 
 mortgagee. 
 
 Discounts— Bond — Security. — Mitchell v. Coombs, 1880, 15 N. 430. 
 Where a bond accompanied by a mortgage has been paid the latter cannot 
 be kept alive as against judgment creditors in order to secure future dis- 
 counts. 
 
 lb.— Extent of Security.— Bank of Commerce's Ap., 1863, 8 Wr. 423. A 
 mortgage given to secure future discounts, etc., protects, as against a subse- 
 quent lien, only as to discounts, etc., made before this lien attached, unless 
 it be proved that a liability incurred thereafter was merely a renewal of one 
 which the mortgage secured. 
 
 Husband and Wife.— Haffey v. Carey. 1873, 23 S. 431. A wife, her hus- 
 band joining, may mortgage her property to secure future advances to be 
 made to her husband. 
 
 Joint Mortgagors. — Irwin v. Tabb, 1828, 17 S. & R. 419. A mortgage 
 was given to three absent debtors in specified proportions to secure advances 
 made by them, nothing was said in it as to future advances. One of the 
 mortgagees had not at that time made advances equal to his share of the 
 mortgage, but did soon afterwards. Held that he, nevertheless, stood on the 
 same footing with the others. 
 23 — EQUITY. 
 
354 MORTGAGE, MORTGAGOR AND 3I0KTGAGEE. 
 
 Mechanic's Lien— Sheriff's Sale.— Reed v. Kemble, C. P. Delaware, 
 1883, 15 Lan. B. 19. Siuce Act June 8, 1881, a mortgage given to secure 
 fdture advances and purchase money is wholly divested by a sheriff's sale if 
 mechanic's liens have intervened. 
 
 Priority of Liens. — Bank of Montgomery County's Ap., 1860, 12 C. 170. 
 A mortgage given to secure future advances protects the advances only as 
 they are made, and other liens are prior to advances made after them. But 
 a mortgage given to secure future liabilities or advances which are contracted 
 for at the time, protects such advances from the date of the mortgage. 
 
 lb. — Moroney's Ap., 1855, 12 H. 372. A mortgage to secure future ad- 
 vances is a valid lien Irom date of record though on its face it is an ordinary 
 mortgage. 
 
 lb. — Parker v. Jaooby, 1860, 3 Gr. 300. A mortgage given partly to se- 
 cure future advances which the mortgagee is not bound to make takes rank 
 as to any advances made according to their date. 
 
 Validity. — Stewart V. Stocker, 1832, 1 W. 135. A valid mortgage may 
 be given for a debt due or to protect against a contingent liability or to secure 
 future advances. 
 
 lb. — Conditions of. — Garher V. Henry, 1837, 6 W. 57. A mortgage to 
 secure future advances must contain all the information requisite to enable 
 one acting with ordinary diligence to ascertain the extent of the encum- 
 brance. 
 
 lb. — ^Endorsement of Notes. — Lyle v. Ducomt, 1813, 5 Bin. 585. A 
 mortgage given to secure one who is to give notes in the future is valid 
 against subsequent encumbrancers, and also protects the mortgagee on his 
 endorsement of other notes although the agreement to extend the mortgage to 
 cover the endorsement of notes was made after the second incumbrance at- 
 tached. 
 
 lb.— National Bank.— "Woods v. Peoples' National Bank, 1876, 2 N. 57. 
 A mortgage to secure future advances given to a national bank is vitra vires 
 and therefore void. * 
 
 What Constitutes a Mortgage for— Trust.— Myers' Ap., 1862, 6 Wr. 
 518. A deed to a creditor to satisfy his debt and allowing him to pay other 
 debts and mark them to his use, with power to collect the rents and profits 
 and apply the same to the debts of the grantor, with a defeasance on his 
 being repaid all his advances is a mortgage to secure future advances and 
 not a deed of trust, hence the mortgage cannot be charged with rents never 
 received by him. 
 
 XIII. Husband and "Wife. 
 
 Acknowledgment. — James v. Lyon, 1803, 3 Y. 471. A mortgage given 
 by a married woman and her husband, on her land, but not acknowledged 
 by her, does not bind the land after her husband's death. 
 
 lb.— Defective.— McGeary's Ap., 1872, 22 S. 365. A mortgage given by 
 husband and wife on property really the husband's, though in the wife's 
 name, is good against the husband though defectively acknowledged by the 
 wife. 
 
 rb.-^Ib. — Postens V. Marcy, C. P. Luzerne, 1875, 4 Luz. L. Reg. 38. 
 There can he a recovery on a mortgage regularly executed by a man on his 
 own property though his wife joined and her execution was irregular. 
 
 Alleging Ignorance. — Dundore v. Hollman, 1882, 2 Penny. 480. In a 
 suit on a mortgage given by a husband and wife on property in which they 
 were jointly interested, the wife cannot, after the death of the husband, 
 prove that she was told by her husband and the justice within the hearing 
 of the mortgagee that her interest would not be bound. 
 
MOETGAGE, MOKTGAGOE AND MORTGAGEE. 355 
 
 Assignee in Bankruptcy— Merges— Title.— Bryar's Ap., 1886, 17 W. 
 N. C. 65. One who has a title which came through an assignee in bank- 
 ruptcy may buy a mortgage on the property, and then buy in the property 
 again under his mortgage so as to cut out the wife. The mortgage does not 
 merge in the fee. 
 
 Assignnient. — Moore v. Cornell, 1871, 18 S. 320. An assignment of a 
 mortgage by a married woman, her husband joining, but she herself not 
 acknowledging it, is void and will not be received as evidence. 
 
 lb. — O'Hara v. Baum, 1878, 7 N. 114. A mortgage given by a married 
 woman to one who endorsed her husband's notes is a security for tlie mort- 
 gagee alone, and an assignment by him of the mortgage limits it as a 
 security to the amount he has then actually paid as endorser, and on a re- 
 assignment to him the mortgage does not again become a continuing in- 
 demnity. 
 
 Collateral Security. — O'Hara i;. Saum, 1878, 7 N. 114. A mortgage 
 given by a married woman to one who endorsed her husband's notes is a 
 security for the mortgagee alone, and an assignmen t by him of the mortgage 
 limits it as a security to the amount he has then actually paid as endorser, 
 and on a reassignment to him the mortgage does not again become a con- 
 tinuing indemnity. 
 
 Consideration. — White's Ap., 1860, 12 C. 134. Equity will not assist a 
 creditor of a husband to enforce the debt against the wife, where, without 
 consideration, she has given him a mortgage, and the same has fairly come 
 back into her hands and been destroyed. 
 
 Default— Stipulation for Fee.— Schalck v. Pnlrk, 1873, 1 Fost. 236. A 
 married woman cannot bind herself by a clause in a mortgage stipulating 
 for a collection fee if she defaults. 
 
 Defective Execution.— Butterfield's Ap., 1874, 27 S. 197. A judgment 
 recorded on a mortgage given by a wife alone is conclusive and cures the de- 
 fective execution. 
 
 Defence— Payment to Husband. — Danbert v. Eckert, 1880, 13 N. 255. 
 It is no defence to a regular mortgage given by a husband and wile on the 
 latter's land to set up that the money was paid to the husband, for if she 
 consented to such payment it would be good. 
 
 Desertion. — Ardin v. Udderzook, 1880, 1 Ches. Co. Rep. 142. The mort- 
 gage of a married woman executed without her husband's joining is good if 
 the jury find that the husband had previously deserted her. 
 
 lb.— Act of May 4, 1855.— Duquesne Savings Bank's Ap., 1880, 15 N. 
 298. Act May 4, 1855, J 2, does not render a mortgage void which is given 
 by a husband on his own land after he has deserted his wife. It applies to 
 her estate. 
 
 Dower. — Scott v. Crosdale, 1791, 2 D. 127. A sale of land under a mort- 
 
 ■ gage given by the husband alone, bars a wife's dower. 
 
 I Ejectment — Defence. — Goncher v. Hembold, 1833, 1 M. 407. It is 
 
 , I a good defence to an ejectment by a mortgagee on a purchase money mort- 
 
 ' ' gage that the title sold was one conveyed to plaintiff by a husband and wife 
 
 V and the trustee of the latter which the trustee had held for the wife and on 
 
 her death for her issue, issue being less, having been living at the time of 
 
 the conveyance and being still alive. 
 
 Estoppel. — Hatz's Ap., 1861, 4 Wr. 209. A married woman holding 
 throilgh a trustee, a mortgage on land of her husband became with the latter 
 a joint owner of the land, and the two joined in a mortgage to secure his 
 creditor. Held, she was not estopped from setting up her mortgage. 
 
 Expectancy. — Dorris v. Erwin, 1882, 5 Out. 239. A married womai 
 cannot give a mortgage which will bind an expectancy or contingent interoRt 
 in property, although she has a present interest. 
 
 Fraud. — Williams v. Davis, 1871, 19 S. 21. A mortgage on property con- 
 
356 MOBTGAGE, BIOETOAOOK AND MUETGAGEE. 
 
 veyed by a husbantl to his wife is not such a debt of the husband as makes 
 the conveyance fraudulent as to creditors. 
 
 lb. — Killinger r. Eeidenhauer, 1821, 6 S. & E. 531. A mortgage given by 
 a husband in fraud of his wife is void as to her and as to creditors, but not 
 as to tlie husband. 
 
 lb. — Cridge v. Hare, 1881, 2 Out. 561. It is a good defence to a mortgage 
 given by a married woman on her separate estate that she was induced to 
 give it by false representations, whether or not the mortgage had anything 
 to do with them. 
 
 Fraudulent Acknowledgment.— Michener v. Cavender, 1861, 2 \Vr. 334. 
 A mortgage of a wife's separate estate, regular on its face, but the acknowl- 
 edgment of which was fraudulent, she not having ajipeared, is invalid 
 though the mortgagee have no notice of the fraud. 
 
 Husband's Interest. — Cochran v. O'Hern, 1842, 4 AV. & S. 95. A mort- 
 gage by husband and wife of property devised to a wife for her sole and 
 separate use and then to her children, with a life estate given to the hus- 
 band in case he survived his wife, is good only as to the husband's interest. 
 
 Joinder— Interest.— Conrad v. Shomo, 1863, 8 Wr. 193. The tact that a 
 husband joins with his wife in giving a mortgage to secure the balance of 
 purchase money of land purchased by her, gives him no interest in the land. 
 
 lb.— Of Husband. — Hogenbaoh V. Phillips, 1886, 2 Amer. 284. A married 
 woman may bind her real estate by mortgage duly executed and acknowl- 
 edged when her husband joins therein. This she may do whether it be to 
 secure the payment of a debt due by herself, or by her husband, or by a 
 stranger. 
 
 lb.— Of Wife.— Walker v. Rohrwasser, C. P. Lackawanna, 1881, 3 L. T. 
 N. S. 197. A wife need not join in the execution of a mortgage by her hus- 
 band on his lands. 
 
 Life Estate— Power to Mortgage.— Edmonson i. Nichols, 1853, 10 H. 
 74. An estate given by a testator to his wife with power '"to mortgage if 
 she needs," and after her death to his son, gives her power to mortgage 
 the fee. 
 
 Misrepresentation. — Manufacturers' Nat. Bank's Ap., 1882, 2 Penny. 
 374. A wife who has received a mortgage from her husband in exchange for 
 a mortgage given by her to his creditors is not estopped by his misrepresen- 
 tations to subsequent creditors as to the amount of eucumbrances on his 
 property. 
 
 Notice. — Stephen's Ap., 1878, 6 N. 202. A record of a mortgage is notice 
 to a married woman. 
 
 Payment — Injunction. — Lyon's Ap., 1869, 11 S. 15. Where creditors of 
 a husband purchase a mortgage against the land of his wife and issue exe- 
 cution on it for the purpose of securing their judgments against the hus- 
 band, equity will restrain their proceedings and compel them to accept the' 
 money due on the mortgage. 
 
 Pending Divorce.— Becht r. Hill, D. C. 1874, 1 W. N. C. 130. A sheriff's 
 sale on a mortgage given by a husband pending divorce, the wife having 
 given notice to the mortgagee that her earnings had in part paid for the 
 property, will not be set aside. 
 
 Practice— Opening Judgment— Dower.— McClurg v. Schwartz, 1878. c 
 N. 521. Where a husband gives a mortgage upon his property and permits 
 judgment to be recovered on it so as to bar his wife's dower by a sheriff's 
 sale, the wife can apply to the equity side of the court to open the judgment 
 and let her into a (lel'encc, but cannot enforce her equity by applying to 
 the law side to set aside the judgment on the ground of irregulaiities in its 
 entry. 
 
 Purchase by Husband— Interest— Honsel's Estate, 1887, 3 Pa. Co. C. 
 Eep. 416. Wliere a husband purchases a mortgage executed by his wife, 
 
MOKTOAGE, JIORTGAGOE AND MORTGAGEE. 357 
 
 whicli is a lien on her real estate in their joint occupancy, the running of 
 interest thereon is suspended during his life, and cannot be recovered by his 
 representations after his death. 
 
 Purchase Money— Bond.— Shnyder v. Noble, 1880, 13 N. 286. A bond 
 and mortgage given by a married woman to secure the purchase money of 
 an estate conveyed to her is valid against the property. 
 
 lb.— lb.— Chase v. Hubbard, 1881, 3 Out. 226. A bond given by a 
 married woman with a purchase money mortgage may be enforced against 
 her as to the land in question. 
 
 lb.— In- Name of Wife Alone.— Glass v. Warwick, 1861, 4 "Wr. 140. A 
 purchase money mortgage given by a married woman in her own name alone, 
 enforced in equity "so as to prevent great injustice." 
 
 lb.— Personal Liability of Wife.— Sawtelle's Ap., 1877, 3 N. 306. A 
 bond and mortgage given by a married Avoman for the purchase money of 
 land do not bind her personally, but may be enforced against the land on 
 the equitable ground that she will not be allowed to keep both the price and 
 the land. 
 
 Reduction to Possession.— Miller's Est., 1826, 1 Ash. 323. A husband 
 who buys in property covered by a mortgage given to his wife and another 
 while she was sole, and who takes it subject to all prior encumbrances, does 
 not thereby reduce into possession his wife's share of the mortgage. 
 
 Release. — Trimble v. Reis, 1860, 1 "Wr. 448. A mortgage given to hus- 
 band and wife on the sale of the wife's land and to secure the purchase 
 money, cannot be released by the husband. 
 
 Satisfaction— Bond— Assignment.— Hughes to use v. Torrence, 1886, 
 1 Amer. 611. Where a mortgagee is satisfied and the payment of a debt 
 is admitted by the mortgagee, the bond remaining unsatisfied being held in 
 fact to secure an unpaid portion of the claim, and the judgment obtained 
 on the bond is assigned to the defendant's wife, the latter will be entitled to " 
 participate in the proceeds of an assignee's sale of the estate, although hav- 
 ing joined in the general warranty deed to the party as whose property the 
 law was sold by the assignee. 
 
 Separate Acknowledgment.— Singer Co. v. Rook, 1877, 3 N 442. As 
 to a bona fide mortgagee for value, the magistrate's certificate of the separate 
 acknowledgment of a married woman to the mortgage of her separate estate 
 is conclusive of every material fact stated therein. 
 
 lb.— Huflfnagle v. Etter, C. P. Dauphin, 1879, 2 Pears. 350. Ajndgment 
 obtained on the mortgage of a married woman, regular on its face, will not be 
 opened on the afiidavit of her husband, or possibly of herself, to the effect 
 that there was no separate acknowledgment. 
 
 lb. — Graham v. Long, 1870, 15 S. 383. The land of a feme covert cannot 
 be charged with a trust or a parol defeasance unless accompanied with a 
 separate acknowledgment as required by statute. 
 
 Separate Estate — Pre-existing Debt. — Oppenheimer v. Wright, 1884. 
 10 Out. 569. A mortgage given by a married woman on her separate estate 
 to secure a preexisting debt of her husband is valid, and will not be set 
 aside upon the uncorroborated testimony of the wife as to fraud and misrep- 
 resentation. 
 
 lb. — Provisions. — Galway V. Black, 1854, 12 H. 18. A married woman 
 may give a valid mortgage upon her separate' estate to secure a debt due by 
 her husband and covenant therein that on default*a scire facias may issue 
 forthwith. 
 
 lb.— Power to Mortgage.— Grosser V. Horning, 1881, 10 W. N. C. 463. 
 A power to give a mortgage for purchase money contained in a sale and 
 separate use, does not confer the power to give a bond and warrant. 
 
 lb. — lb. — Maurer's Ap., 1878. 5 N. 380. Where a deed creating a separate 
 use for a married woman gives her a general power to sell and a power to 
 
358 MORTGAGE, MORTGAGOR AND MORTGAGEE. 
 
 mortgage to a certain extent, a mortgage to a greater extent is invalid but 
 will be supported pro tanto in equity to the amount of benefit that the money 
 received for it did to her estate. 
 
 lb.— Purchase by Husband.— Kern v. Murphy, 1837, 2 M. 157. The 
 fact that a husband joins with his wife and her trustee for her sole and 
 separate use in a mortgage of the property does not prevent him from buy- 
 ing in the property on a sale under the mortgage. 
 
 Trust. — Warden v. Lyons, 1888, 3 Crum. 396. A husband deeded prop- 
 erty to a third party in trust for the wife of the grantor and for her sole and 
 separate use, stipulating that the said party should convey to the wife the 
 within described premises by a sufficient deed in fee simple, which was done. 
 Subsequently husband and wife joined in a mortgage thereof Held that 
 after the conveyance td her from the third party, the wife was seized of an 
 absolute estate in fee simple, freed ffom the trust and unimpressed with the 
 sole and separate use and the premises were bound by the mortgage. 
 
 Validity. — Jamison v. Jamison, 1838, 3 Wh. 457. A mortgage of a wife's 
 real estate signed and properly acknowledged by both husband and wife, is 
 valid even when, given for the husband's debt. 
 
 lb.— To Secure Husband's Debt.— Hammett v. Bull, C. P. 1870, 18 
 Pitts. L. J. 169, S. C. 27 Leg. Int. 41, 8 Phila. 29. A mortgage given by a 
 wife to secure a debt due by her husband will be invalid if the creditor has 
 not acted in good faith with her. 
 
 XIV. Notice. 
 
 Agreement that Mortgage Should Remain. — Roberts v. Williams, 
 1840, 5 Wh. 170. An oral agreement made at the time of a sheriflF's sale of 
 land between a mortgagee and one who contemplated purchasing the prop- 
 erty, to the effect that the mortgage might remain on the land, is not bind- 
 ing upon one who derived title from the purchaser at the sheriff's sale with- 
 out notice of the agreement. 
 
 Assignment— Recording — Act of April 9, 1849. — Pepper's Ap., 1875, 
 27 S. 373. Under Act April 9, 1849, S. 14, recording an assignment of a 
 mortgage is notice, though the act provides that assignments may be recorded 
 not that they shcdl be. 
 
 lb. — lb. — Philips V. Bank of Lewistown, 1852, 6 H. 394. The assignment 
 of a mortgage when recorded is notice, and a copy of the record is evidence. 
 The assignee is not affected with any equity which may subsequently arise 
 between the original parties. 
 
 lb.— lb.— Neide v. Pennypacker. D. C. 1872, 30 Leg. Int. 4, S. C. 9 PhUa. 
 86. The record of an assignment of a mortgage is notice to purchasers. 
 
 lb.— Sheriff's Sale.— Commonwealth v., Watmough, 1849, 2 J. 316. An 
 assignee of a mortgage (by a separate instrument) has no claim on the sheriff 
 who, without receiving notice of the assignment, pays over the proceeds of a 
 sale of the property to the mortgagee. 
 
 lb.— Assignment.— Burns v. Ashton, 1873, 20 Pitts. L. J. Ill, S. C. 4 
 Lan. B. No. 43, 4 Leg. Op. 559, rev'g 4 Brews. 151, S. C. 1 Camp. 417, 4 Leg. 
 Oaz. 6. An assignee of a mortgage who relies on a declaration of no set-off 
 given to a prior assignee must show that either he or some assignee through 
 whom he claims, was assignee for value and without notice. 
 
 EcLUities — Secret. — Sweetzer v. Atterbury, 1882, 4 Out. 18. A bona fide 
 mortgagee of a title clear on its face is not affected by secret equities of 
 which he has no notice. 
 
 lb. — lb. — Martin v. Jackson, 1856, 3 C. 504. Notice of a secret equity 
 given to a purchaser at sheriff's sale on a mortgage does not effect him un- 
 less the mortgagee had previous notice thereof. 
 
MORTGAGE, MORTGAGOR AND MORTGAGEE. 359 
 
 lb.— lb.— Landell's Ap., 1884, 9 Out. 152. Property sold by the sheriflF 
 under a judgment recovered on a mortgage, passes to the purohasef dis- 
 charged of all equities of which the mortgagee had no notice. 
 
 lb. — Superior. — Sellers v. Benner, 1880, 13 N. 207. A purchaser who has 
 bought from a mortgagor and mortgagee, has paid the full purchase money 
 and has received a deed with warranty in which the mortgage is not men- 
 tioned has a superior equity to one who has subsequently bought the mort- 
 gage without malcing any inquirys. 
 
 Insurance — Policy of— Cancellation. — Mueller v. South Side Ins. Co., 
 1878, 6 N. 399. Where a policy of insurance is issued for the benefit of a 
 mortgagee, notice of cancellation of the policy may be sent to him and need 
 not be given to the mortgagor. 
 
 Judgment— Outstanding Liens.— Day v. Day, 1883, 3 Penny. 294. 
 AVhere a deed is made from a mortgagor to a mortgagee in which the latter 
 covenants to pay the outstanding judgment notes which the mortgage had 
 been given to secure, a purchaser of the property has notice of these out- 
 standing liens although the mortgage has been satisfied of record. 
 
 Payment After Assignment. — Horstman v. Gerker, 1865, 13 Wr. 282. 
 A mortgagor who pays the mortgage debt to the mortgagee, not having 
 notice of a prior assignment of the mortgaged, is nevertheless discharged. 
 
 Possession. — Coble v. Nonemaker, 1875, 28 S. 501. A chattel mortgage 
 without posession taken holds against a purchaser for value but with notice. 
 
 lb.— Equity of Redemption— Title.— Plumer v. Robertson, 1820, 6 S. & 
 R. 179. Possession by one who is a mortgagee under a recorded mortgage, 
 and who is also the purchaser of the equity of redemption under article not 
 recorded, is notice only of his title as mortgage (though it is not customary 
 for a mortgagee to have possession,) even where there is a rumor in the 
 neighborhood of his second title. 
 
 Recording.— City Nat. Bank's Ap., 1879. 10 N. 163. Where a deed and 
 a mortgage are given on the same day and recorded at the same time, it is suf5S- 
 cient to put a purchaser on inquiry that the mortgage is for purchase money. 
 
 lb. — Evans v. Jones, 1792, 4 Y. 172. The recording of a mortgage is 
 constructive notice to all the world. 
 
 lb. — McLanahan v. Reeside, 1840, 9 W. 508. The registry of a mortgage 
 to be notice must exhibit It as a whole; therefore the registry of an agree- 
 ment made between a vendor and vendee to the effect that the unpaid pur- 
 chase money should continue a lien on the land, will not protect the vendor 
 against subsequent judgment creditors. 
 
 lb.— Acknowledgment.— Angler v. Schieffelin, 1872, 22 S. 106. The 
 acknowledgment of a mortgage purported to have been in Erie county but 
 was signed by a justice of Crawford county. Seld that tbe record of the 
 mortgage was notice as it was entitled to record. 
 
 lb.— Fixtures— Machine Shop.— Hoskin v. Woodward, 1863, 9 Wr. 42. 
 A mortgage of a machine shop includes all necessary fixtures, and, the mort- 
 gage being recorded, a purchaser of one of the machines takes it with notice 
 of the mortgage. 
 
 lb.— Married Woman.— Stephen's Ap., 1878, 6 N. 202. A record of a 
 mortgage is notice to a married woman. 
 
 lb. — Possession. — Johnson v. McCurdy, 1877, 2 N. 282. A. executed a 
 mortgage to B. and recorded it. A. kept possession of it and had B. assign 
 it for value to the plaintiff, and afterwards, but before the assignment was 
 recorded, A. sold the land to the defendant. Seld that the defendant took 
 subject to the mortgage. 
 
 lb.— Under Articles of Confederation.— Parker v. Wood, 1789, 1 D. 
 437. A mortgage which was recorded just after the Declaration of Inde- 
 pendence by the former officer in the old recording fiffice, held good, although 
 the officer had no standing under the new government. 
 
360 MOETGAOE, MOKTCiAljOK AND MOKTGAGEE. 
 
 Scire Facias— Pendency of.— Anderson v. Love, 1883, 31 Pitts. L. J. 136. 
 The pendency of a scire facias sur mortgage is notice to one purchasing the 
 land pending the trial. 
 
 lb.— Settlement.— Saurman v. Binder, 1862, 7 Wr. 209. The record of a 
 scire facias sur mortgage was marked "settled by the parties," but the subse- 
 quent purchaser took the land with notice that the mortgage was not settled, 
 , the record therefore did not help his case. 
 
 Title— Court and Jury. — Crosland v. Saving Fund, 18S8, 6 Crum. 65. 
 Where the question of title is involved in a case in which a mortgagee may 
 have had constructive notice of the same, it is for the jury to determine 
 whether the building was fairly capable of a separate occupancy and whether 
 the means of access to it were such as to be apparent to an observer that it 
 consisted of two houses. 
 
 Unrecorded Mortgage.— TJhler v. Hutchinson, 1854, 11 H. 110. The 
 holder of an unrecorded mortgage cannot by giving notice of it at a sheriff's 
 sale upon a subsequent judgment bind the estate in the hands of the pur- 
 chaser. 
 
 lb. — Jaques v. Weeks, 1838, 7 W. 261. A purchaser with actual notice 
 of a prior unrecorded mortgage is bound by it, but a judgment creditor and 
 the purchaser at a sale on a judgment are not, for a judgment has been held 
 prior to an unrecorded mortgage, and if the purchaser were not protected it 
 would take away from the value of the judgment. 
 
 lb. — Stroud V. Lockhart, 1797, 4 D. 153. A purchaser having actual no- 
 tice of an unrecorded mortgage is bound to pay the same. 
 
 lb.— Steckel v. Desh, 1882, 12 W. N. C. 130. A purchaser from one whose 
 deed is unrecorded is affected with notice of an unrecorded mortgage men- 
 tioned therein. 
 
 lb.— Judgment.— Stradlingi). Henck, D. C. 1857, 14 I^g. Int. 212 S. C. 
 2 Phila. 302. One who takes a judgment note which he afterwards enters 
 ■up, and under the judgment buys in the property against which it is a 
 lien, is not bound by an unrecorded mortgage of which he had no notice at 
 the time of taking the note. 
 
 lb.— Sheriff's Sale.— Solms v. McCuUough, 1847, 5 Barr, 473. Notice of 
 an nnreoorded mortgage given at a sheriff's sale binds the purchaser. 
 
 lb.— Subsequent Mortgagee.— Hulett v. Mutual Life Ins. Co., 1886, 4 
 Amer. 143. Under the recording Act of March 18, 1775, unrecorded deeds 
 conveying land to a party are void as against a subsequent mortgagee with- 
 out notice. 
 
 XV. Personal Liability of Vendee. 
 
 Agreement— Subsequent Vendee.— Samuel v. Peyton, 1879, 7 N. 4,"., 
 Where one grantee of mortgaged premises has taken free from personal 
 liability for a mortgage (by agreement with the mortgagee) the grantees 
 who follow him in line of title are not personally liable although the 
 deeds' to them contain the under and subject clause. 
 
 Express Assumption.— Girard Life Ins. Co. v. Stuart, 1878, 5 N. 89. A 
 grantee is only personally liable for a mortgage on the land granted to him 
 when be expressly assumes it, or where it forms part of the price or consid- 
 eration for the land. 
 
 lb. — Burke v. Gummey, 1865, 13 Wr. 518. A vendee who takes expressly 
 subject to a mortgage is personally liable for any deficiency that may arise 
 on the land being sold. 
 
 lb.— Kelly v. Walden, D. C. 1864, 21 Leg. Int. 23G S. C. 5 Phila. 440. 
 Equity will comppl a vendee to pay a mortgage -=ubject lo which he took the 
 property. 
 
MOETGAQE, MORTGAGOR AND MORTGAGEE. 3G1 
 
 . Taxes.— King v. Mount Vernon Assoc, 1884, 10 Oat. 65. One who takes 
 a conveyance of mortgaged premises after the taxes have been assessed for 
 that year against his grantor is not accountable lor them to the mortgagee 
 who pays them after buying in the property for a price less than his mort- 
 gage. 
 
 "Under and Subject" Clause.— Thomas v. Wiltbank, 1879, 6 "W. N. c. 
 477, S. C. 26 Pitts. L. J. 131. The "under and subject" clause in a convey- 
 ance of mortgaged premises does not, as regards the mortgagee, make the 
 grantee personally liable for the mortgage debt. 
 
 lb.— Stokes V. Williams, 1879, 6 W. N. C. 473, aff'g 4 W. N. C. 370. One 
 who takes a conveyance of mortgaged property for a special purpose, and 
 after that purpose has been accomplished reconveys the same, is not person- 
 ally lialile for the mortgage debt by reason of the "under and subject" 
 clause being in the deed under which he held. 
 
 lb.— Ross ('. Hanna, C. P. 1875, 2 W. N. C. 222. A purchaser who takes 
 property under and subject to a mortgage makes the debt his own, and is 
 personally liable. 
 
 lb.— airard Life Ins. Co. v. Addicks, C. P. 1877, 5 W. N. C. 75, S. C. 35 Leg. 
 Int. 17, 12 Phila. 490. A vendee of land "under and subject" to a mort- 
 gage can escape personal liability for the mortgage by showing by parol that 
 it was agreed between him and the mortgagor that he should not be so liable 
 although the suit is by an assignee of the mortgage. 
 
 lb. — Green v. Rick, 1888, 6 Crnm. 130. "Where a deed recites that the 
 property is conveyed " under and subject " to the lien of a mortgage, there 
 is no covenant on tlie part of the grantee to indemnify the grantor against 
 the mortgage debt. 
 
 lb.— Paul V. Casselberry, 1880, 8 W. N. C. 334. In the absence of an 
 agreement to that effect one taking property "under aud subject" to amort- 
 gage is not personally liable therefor. 
 
 lb.— Maule )■. Ardley, 1845, 3 Clark. 28, S. C. 4 Pa. L. J. 356. Whether 
 an indenture by which the vendee takes land "under and subject" to a 
 mortgage is a covenant of indemnity only as between vendor and vendee, or 
 whether it is a covenant by the vendee to pay the mortgage at all events not 
 decided. 
 
 XVI. Practice. 
 
 A. In General. 
 
 Acknowledgment — Judgment— Ejectment.— Michaelis v. Brawiiy, 
 
 1884, 15 W. N. C. 505. After judgment on a scire facias sur mortgage the 
 mortgagor cannot set up in tlie ejectment that the mortgage was not properly 
 acknowledged by one of the parties, a married woman. 
 
 Attachment.— Custer v. Nice, C. P. 1882, 12 W. N. C. 268. A mortgage, 
 which is in the hands of, a third party as security for a claim held against 
 defendant which has been satisfied, cannot be attached by plaintiff in the 
 hands of this third person as garnishee. 
 
 Declaration of no Set-oflf— Ground Rent.— Bradley v. Franck, 1886, 2 
 Pa. Co. C. Eep. 537. A mortgage gi\'en to a ground rent landlord to secure 
 the performance of an agreement foi- the erection of houses upon the premises, 
 may after performance of agreement, be revised by a certificate of no set-off 
 given to an assignee in consideration of the satisfaction of a judgment 
 against the property. 
 
 ' Decree — Receiver. — Darling v. Wyoming Coal Co., C. P. Luzerne, 1881, 
 2 Kulp, 14 , 11 Luz. L. Reg. 183. Where a decree in equity has been made 
 
362 MORTGAGE, MOETGAGOK AND MOETGAGEB. 
 
 recognizing the right of a party to foreclose his mortgage without delay, the 
 subsequent appointment of a receiver will not abrogate this decree. 
 
 Execution— Growing Crops.— Myers v. "White, 1829, i R. 353. A pro- 
 ceeding on a mortgage is a proceeding in rem, therefore growing crops can- 
 not be levied on, being personal property. 
 
 Executor Paying Mortgage. — Veters v. Florence, 1861, 1 Luz. L. Obs. 
 193. Where an executor pays off a mortgage, thinking that he is liable 
 therefor, it is but a mistake of law and equity will not grant relief. Even 
 in ejectment against him he is not entitled to have a conditional verdict 
 given for plaintiff. 
 
 Husband and Wife— Receipt.— Gray's Ferry B. A. v. Carre, C. P. 1881, 
 38 Leg. Int. 42. Where land belonging to a married woman is sold under 
 a mortgage to the mortgagee, the sheriff must take his receipt as purchase 
 money though there are prior judgments against the husband. 
 
 Jurisdiction — Sale— Corporation. — McCurdy's Ap., 1870, 15 S. 290. 
 Act April 11, 1862 (P. L. 477), authorizes the Supreme Court sitting in equity 
 to decree a sale under a corporation mortgage. 
 
 Inquisition.— Naples v. Minier, 1832, 3 P. & W. 475. The fact of there 
 being a mortgage on land levied on does not do away with the necessity of 
 an inquisition. 
 
 Master— Question not Raised by Pleadings. — Morio's Ap. 1884, 4 
 Penny. 398. Where the question was whether a mortgage given by a re- 
 mainder man to the life tenant was fraudulent as to the wile of the remain- 
 der man and the bill further alleged waste on the part of the life-tenant but 
 contained no prayer to restrain it or for general relief, it was error in the 
 master, after finding the testimony insufficient to support the charge of fraud 
 and waste, to decide another question not raised by the pleadings, as to the 
 amount for which the morlgage could be held. 
 
 Motion to Strike Out Testimony — Master. — Dotterer v. Saxton, C. P. 
 1875, 1 W. N. C. 218. A petition to the court asking for an order on the 
 master to strike out certain testimony is premature. It has never been the 
 practice to hear exceptions to a master's rulings piecemeal in this way. 
 
 Orphans' Court— Order of— Morgan's Ap., 1885, 43 Leg. Int. 282. A 
 mortgage given under order of the orphans' court for payment of debts is 
 not binding on the heir unless regularly returned and confirmed. 
 
 Partnership— Property— Sale.— Stanhope v. Suplee, 1868, 2 Brews. 455. 
 Equity will restrain one partner at the suit of his associate from removing 
 machinery necessary to the business, but will not decree a sale of mortgaged 
 property without hearing from the mortgagee. 
 
 Reconveyance.— Kenton v. Vandergrift, 1862, 6 Wr. 339. Where a con- 
 veyance absolute on its face has been adjudicated a mortgage, equity will, on 
 payment having been made, decree a reconveyance. 
 
 Stay— Unsatisfied Mortgage. — Mutual Saving Fund V. Ball, C. P. 
 Schuylkill, 1881, 2 Sch. L. R. 203. The sale (if land under a mortgage will 
 not be stayed in order that an orphans' court sale may be made, when the 
 latter would not ;iffect the mortgage. 
 
 lb.— Waiver.— Duerr v. Wiederhold, C. P. Schuylkill, 1881, 2 Sch. L. E. 
 32. The intention of a mortgagor to waive the year's stay given by the Act 
 of 1705 must clearly apjjear. 
 
 lb.— lb.— Griffith V. Nolen, D. C. 1875, 1 W. N. C. 158. A waiver of the 
 year's stay in a mortgage is valid. 
 
 lb.— lb.— Kelly's Est., C. P. Delaware, 1882, 14 Lan. B. 51, S. C. 1 Del. 
 Co. Rep. 288. The usual provision in- Pennsylvania mortgages waiving all 
 stays, is a waiver of the twelve month stay provided by the Act of 1705, and 
 of the equitable usage but not of future stay laws, such as Act of March 23, 
 1877. 
 
MOBTGAGE, MOETGAGOB AND MOETGAGEE. 363 
 
 lb.— Longstreth v. Thornton, C. P. 1880, 9 W. N. C. 206. Execution will 
 not be stayed on a judgment entered on a bond and warrant, because in a 
 •suit on the accompanying mortgage there has been filed a sufficient affidavit 
 of defence, unless the facts presented in that affidavit convince the con- 
 science of the court sitting as a chancellor. 
 
 B. Actions. 
 (a.) Generally. 
 
 Amicable Action — Description in Agreement. — Burdick v. Norris, 
 1833, 2 W. 28. In an amicable action upon a recorded mortgage the fact 
 that the agreement to appear and confess judgment does not describe the 
 mortgage or the land is not fatal, if there be an appearance by the defend- 
 ant and confession of judgment, and if the levari facias thereupon recites the 
 mortgage and particularly describes the land. 
 
 Arbitration— Award— Appeal— Notice.— Connelly v. Arnold, 1837, 6 
 W. 312. If arbitrators, to whom an action on a mortgage is submitted un- 
 der the Act of 1810, include in their award other claims of the mortgagee 
 against the mortgagor without the former's express assent, and their award 
 does not exceed the amount claimed by the mortgagee, he will not be barred 
 from recovering these other claims because not appealing from the former de- 
 cision. He was only bound to look to the amount of the award and that 
 gave him no notice of the fact that other claims had been considered. 
 
 Assumpsit — ^Parol Guarantee. — Overton v. Tracey, 1826, 14 S. & E. 311. 
 An action of asswmpait may be maintained upon a verbal guarantee of a 
 mortgage made by the assignor at the time of the assignment. 
 
 lb.— Surplus of Sale.— Stoerer V. Stoerer, 1823, 9 S. & R. 434. Asmmpsit 
 lies for the surplus arising from a sale by a mortgagee under a power to sell 
 after a certain time and apply the proceeds to the debt, if there is no ex- 
 press agreement to pay over the surplus. 
 
 Bond— Debt.— Scott v. Fields, 1838, 7 W. 360. An action of debt does 
 not lie upon a mortgage containing no express covenant to pay, although it 
 refers to a bond which it is given to secure. If there is a bond with such a 
 mortgage any action in personam must be upon that. 
 
 lb.— Defence— Notice.— Gulp v. Fisher, 1833, 1 W. 494. Where a mort- 
 gagor conveys the mortgaged premises and gives a bond of indemnity 
 against the mortgage, and the mortgage is afterwards enforced without 
 notice to him, he is, in an action against him on his bond, entitled to set up 
 any defence that he could have set up against the mortgage. 
 
 Corporation — Beceiver. — McGeorge v. Hancock steel Co., C. P. Mon- 
 tour, 1875, 32 Leg. Int. 372, S. C. 11 Phila. 602. Our courts will entertain 
 a bill by a mortgagee for a receiver and to prevent waste although there be 
 pending before the District Court of the United States a bill to determine 
 the rights of respective lienholders against the mortgagor (a corporation). 
 
 Covenant. — Wilson xj. Brechemin, 1846, Bright. 445. Covenant will not 
 lie against the assignee of the mortgagor. 
 
 Dower — Becording. — ^McClurg v. Schwartz, 1878, 6 N. 521. Where a 
 husband gives a mortgage upon his property and permits judgment to be re- 
 covered on it so as to bar his wife's do wer by a sheriff 's sale, the wife can 
 apply to the equity side of the court to open the judgment and let her into 
 a defence, but cannot enforce her equity by applying to the law side to set 
 aside the judgment on the ground of irregularities in its entry. 
 
 Ejectment— Instalments.— Smith v. Shuler, 1824, 12 S. & R. 240. A 
 mortgagee may bring ejectment on a mortgage payable in instalments, on de- 
 limit being made in any payment h6 need not wait till the whole is due. 
 
364 MOETGAGE, JIORTGAGOE AND MOETGAGEE. 
 
 ■ lb. — Eshbach v. Zimmerman, 1845, 2 Barr, 313. Where an ejectment is 
 in the nature of a bill in chancery to redeem a mortgage, no previous tender 
 is necessary. 
 
 lb. — Simpson v. Ammons, 1806, 1 Bin. 175. The estate of the mortgagee 
 goes to his heirs at death, who' are, however, only trustees for the adminis- 
 trator, and the latter has power to bring ejectment in his own name. 
 
 lb. — Wharf r. Howell, 1813, 5 Bin. 499. A mortgagor may bring eject- 
 ment for the mortgaged premises without first tendering the amount due if 
 he thinks the rents and profits received by the defendant equal this amount. 
 In order to do j ustice between the parties it is necessary that the account be 
 brought down to the time of trial, if however, .there is still a balance due by 
 him, it.seems that he must pay the costs. 
 
 . lb. — lb. — Mortgage. — Bower v. Fenn, 1879, 9 N. 359. A conditional 
 verdict is not proper in ejectment on a mortgage. 
 
 lb.— Mortgagee in Possession.— Wells v. Vandyke, 1885, 42 Leg. Int. 
 345, S. C. 16 W. N. C. 151. A mortgagor may bring equitable ejectment 
 against a mortgagee in possession, and is entitled to a conditional verdict. 
 
 lb. — Mortgage to Pay Annuity.— Kuaub v. Essick, 1834, 2 W. 282. 
 Where land is subject to a mortgage conditioned for the payment of an an- 
 nuity, a sheriff's sale does not divest the lieu of the mortgage. The proper 
 inode, however, of enforcing such a mortgage is ejectment in which the court 
 will do equity by means of a conditional verdict. 
 
 lb. — Mellon u. Lemmop, 1886, 43 Leg. Int. 314. The equitable right of a 
 mortgagor may be enforced by ejectment, in which it becomes the duty of 
 the court and jury to calculate the net profits secured by the mortgagee in 
 possession and apply it to the debt. 
 
 Mortgagor and Mortgagee. — Wells v. Vandyke, 1885, 42 Leg. Int. 345 
 S. C. 16 W. N. C. 151. A mortgagor may bring equitable ejectment against 
 a mortgagee in possession, and is entitled to a conditional verdict. 
 
 ' lb. — Conclusiveness of Verdict. — Brown v. Nickle, 1847, 6 Barr, 390. 
 One verdict and judgment in ejectment by a mortgagor against his mort- 
 gagee is not conclusive under the Act April 21, 1846, though the only ques- 
 tion tried was whether the mortgage had been satisfied. 
 
 lb. — Thompson v. Adams, 1867, 5 S. 479. A. contracted to buy land of 
 
 B. The land was subj ect to a mortgage, and on foreclosure A. bought the 
 laud. B. then brought ejectment to compel the payment of the balance diie 
 him. Held ejectment would not lie, and if he could recover at all, it must 
 be on the ground that the sheriff's deed executed his contract and he could 
 sue on that. 
 
 '. Levari Facias— Judgment.— Stuckert v. Ellis, 1840, 2 M. 433. A levari 
 against but one property where the judgment on the scire facias sur mortgage 
 was against several is irregular and, together with the sale under it, will be 
 set. aside. 
 lb.— Stay— Tender.— Ins. Co. v. Roberts, N. P. 1868, 25 Leg. Int. 28, S. 
 
 C. 6 Phila. 516. A tender of payment of a mortgage to an attorney in the 
 case is no cause for staying a levari facias. 
 
 ■ Ib.^Ib.- Dundas v. Leiper, D. C. 1855, 12 Leg. Int. 255, S. C. 1 Phila. 
 569. Proceedings on a levari Jacias sur mortgage will not be stayed to ena- 
 ble executors to apply to the orphans' court for a sale of the propertj'. 
 
 Personal Action— Promise to Pay.— Baum v. Tonkin, 1886, 17 W. N. 
 C. 535. Although no personal action can be maintained upon a mortgage 
 Which contains no express promise to pay, yet such action may be main- 
 tained upon a contemporaneous parol promise. 
 
 Proceeding Directly on Mortgage. — Lewis v. Germania Savings Bank, 
 1880, 15 N. 86. A mortgagee may proceed directly on the mortgage although 
 it has sued the original mortgagor and .the money is in court and awarded 
 to him. 
 
MOKTGAGE, MOETGAGOR AND MORTGAGEE. 365 
 
 Railroad— Contractor— Act of April 4, 1862.— Shamokin R. R. v. 
 Malone, 1877, 4 N. 25. A bill in equity will lie by a contractor against the 
 purchasers of a railroad under a nlortgage made while lie was working under 
 his contract, the Act April 4, 1862 (P. L. 235) not applying. 
 
 Relief.— Win ton's Ap., 1881, 1 Out. 385. "Where on a bill by a vendor 
 equity has obtained jurisdiction of a case and has decreed that the convey- 
 ance was but a mortgage, it can do complete justice by ordering the prop- 
 erty to be sold or the rents to be paid to the vendee to be applied on the 
 original decree. The proper practice in such a case is for the defendant to 
 present a petition in the nature of a supplemental bill setting forth that he 
 has tendered a re-conveyance on re-payment but that complainant has not 
 b en ready to do his part. 
 
 Road Law. — Road in Upper Dublin, 1880, 13 N. 126. A mortgagee may, 
 perhaps, by a proper petition, bring his case before a road jury in such way 
 as to get it on the record. 
 
 Waste.— Heffner v. Miller, C. P. 1882, 12 W. N. C. 219. A mortgagee 
 can maintain trespass quare clausum fregit against a mortgagor in possession 
 who commits acts in the nature of waste after the mortgage is due and un.- 
 paid. 
 
 (b.) Scire Facias. 
 1. Generally. 
 
 Attacking Proceedings Collaterally.— Hartman v. Ogborn, 1867, 4 S. 
 120. A scire facias sur mortgage is principally a proceeding in rem and only 
 so far in personam as it is directed to the mortgagor and those under him, 
 which entitles them to notice (or two nihils); therefore the validity of the 
 proceeding cannot be attacked collaterally on the ground of the disability of 
 the mortgagor (a feme covert). 
 
 Bail in Error. --Hosie v. Gray, 1873, 23 S. 502, S. C. 4 Brews. 127. In a 
 scire facia.'! sur mortgage bail in error need not be in double the amount of the 
 verdict but in a sum sufficient to cover the costs. 
 
 Bond and Mortgage — Interest. — Montgomery Agricultural Society v. 
 Francis, 1883, 7 Out. 378. The holder of one of several bonds secured by a 
 mortgage to a trustee, may sue for back interest before the principal is due, 
 although the mortgage contains a stipulation that on default in the interest 
 the mortgagee shall at the request of any bondholder issue a scire facias to 
 collect the interest for all bondholders. 
 
 Costs— Fund Liable.— Wickersham v. Fetrow, 1847, 5 Barr. 260. The 
 costs in scire facias sur mortgage must come out of the land, and a terre 
 tenant being permitted on petition to come in and defend, is not personally 
 liable therefor in the absence of an express stipulation. 
 
 Ejectment — Remedy. — Martin v. Jackson, 1856, 3 C. 504. The remedy 
 of scire facias on a mortgage does not exclude the remedy of ejectment. 
 
 Jury— Finding of— Set-off.— Cooch v. Noble, C. P. Schuylkill, 1881, 2 
 Sch. L. R. 330. Where in the trial of a scire facias sur mortgage the jury 
 find a sum due the defendant, there ha\ing been no plea of set-off, the court 
 will not order a new trial but will strike off that part awarding a sum to the 
 defendant. 
 
 Payment Into Court. — Pennock v. Stewart, 1883, 8 Out. 184. Under 
 Act April 3, 1851, (P. L. 871) a mortgagor may, pending a scire facias sur mort- 
 gage and at any time before judgment, pay into court the amount claimed by 
 mortgagee, principal, interest and costs to date, and have the mortgage 
 satisfied. 
 
366 MORTGAGE, MORTGAGOR AND MOETGAGBB. 
 
 lb.— Stay.— DoiTow V. Kelly, 1785, 1 D. 142. The court will stay the 
 proceedings on a scire facias sur mortgage upon payment into court of prin- 
 cipal, interest and costs, although there exists a simple contract debt between 
 the same parties which was contracted after the mortgage. 
 
 Prior Mortgage. — Enters o. Peres, 1830, 2 R. 279. A subsequent mort- 
 gagee is not a competent witness lor defendant in a suit on a prior mortgage. 
 But if the suit be on the accompanying bond, his interest, which is conting- 
 ent, affects only his credibility. 
 
 Process — Stay. — Drexel v. Miller, 1865, 13 Wr. 246. A scire facias sur 
 mortgage is "process" within the meaning of the stay law for soldiers, and 
 the mortgagor can claim the benefit of that law though he has sold the land. 
 
 Recognizance — ^Waiver of Error. — Brown v. Lovrein, 1877, 4 W. N. C. 
 538, S. C. 35 Leg. Int. 134. A recognizance for a writ of error to a judg- 
 ment on a scire facias sur mortgage must cover both debt and costs. 
 
 Record — Defective Instrument. — Tryon v. Munson, 1874, 27 S. 250. A 
 mortgage given on warrants specified them as those on the annexed list. The 
 mortgage was recorded without the list. Held that though the mortgage 
 might be a defective instrument the record was good and the scire facias was 
 not upon an unrecorded mortgage. 
 
 Two MMls.— Stevens v. North Penna. Coal Co., 1860, 11 C. 265. Two 
 nihils on writs of scire facias sur mortgage, one returnable to an intermediate 
 return day and Dhe other to the first of the next term, are good. 
 
 Venue— Foreclosure — Boundaries.— Cromwell v. McCalmont, 1814, 1 
 S. & R 126. A special act provided that certain mortgaged lands should, 
 on default being 'made, be foreclosed "in the county where the lands shall 
 lie." The boundaries of the counties having been changed it was held that 
 the writ must be brought in the county which then embraced the lands. 
 
 Waiver — Equity of Redemption. — Plumer t. Robertson, 1820, 6 S. & 
 E. 179. Where a mortgagee in possession, who is also the purchaser of the 
 equity of redemption under articles not recorded, proceeds under a scire 
 facias to foreclose the mortgage, he does not thereby waive his right under 
 the articles. 
 
 8. Defence. 
 
 Afidavit of —Trust Co. ?>. Kneedler, C. P. 1878, 5 "W. N. C. 492, S. C. 35 
 Leg. Int. 29, 12 Phila. 499. A scire facias sur mortgage is not a case requir- 
 ing an affidavit of defence. 
 
 lb.— Assignment — Recording. — Marsh r. ^ith, 1844, 2 Clark, 217. S. 
 C. 3 Pa. L. J. 489. One suing as assignee of a mortgage is entitled to judg- 
 ment for want of an affidavit ot defence although a copy of the assignment 
 is not filed, and the assignment was never recorded. 
 
 lb. — Consideration. — Bruner «. Wallace, 1877, 4 W. N. C. 53. An affi- 
 davit of defence to a mortgage which sets up that the mortgagor never re- 
 ceived the full amount named in the mortgage is insufficient. 
 
 lb.— Fraud.— Wister v. PoUitt, 1888, 5 Pa. Co. C. Rep. 192. It is suffi- 
 cient in an affidavit of defence to a sci. fa. sur mortgage to allege that the 
 mortgage had never been acknowledged or delivered by the defendant, and 
 was admitted to record on a false and fraudulent acknowledgment. 
 
 lb — Instrument for Payment of Money.— Fidelity Trust Co. v. Miller, 
 C. P. 1877, 5 W. N. C. 191. A mortgage unaccompanied with a bond is not 
 an instrument for the payment of money within the affidavit of defence 
 law. 
 
 lb.— lb.— Fidelity Ins. Co. v. Miller, 1879, 8 N. 26. A mortgage which 
 contains no express promise to pay but only recites the indebtedness is not 
 an instrument for the payment of money within the affidavit of defence law. 
 
MOBTGAGB, MOBrOAGOE AND MORTGAGEE. 367 
 
 lb— Judgment— Title.— Knupp i>. Krugel, C. P. 1877, 34 Leg. Int. 58, 
 S. C. 13 Phila. 174. An af&davit denying that the mortgagor had title to 
 the land when the mortgage was given will not prevent judgment being en- 
 tered on the scire facias. 
 
 Agreement — Rescission. — Welch v. Mole, 1880, 37 Leg. Int. 333. Where 
 a mortgage is given as security for the performance of an agreement between 
 the mortgagee and a third person, the rescission of the agreement is a good 
 defence to an action on the mortgage. 
 
 ' Application of Purchase Money. — Morris v. Barnard, C. P. 1884, 15 
 W. N. C. 79. It is no defence to the payment of a mortgage that the agent 
 into whose hands the mortgagor placed it to be sold has embezzled the 
 money. 
 
 Assignment — Declaration of no Set-off. — Twitchell v. McMurtrie, 
 1875, 27 S. 383. In a scire facias sur mortgage by an assignee declarations 
 of the mortgagors of no set-oflf were filed with a copy of the mortgage. The 
 mortgagors denied ever having made them. Held that the affidavit set up 
 a good defence, and quaere whether the declarations could be considered at 
 this stage of the cause ? 
 
 lb.— Filing Copy.— Hummel v. Siddal, C. P. 1876, 33 Leg. Int. 426, S. C. 
 11 Phila. 308. It is no defence to a mortgage on the part of the ierre tenant 
 that no copy of the assignment thereof to plaintiff was filed. 
 
 Consideration- Failure of— Set-off. — Thomas «;. Harris, 1862, 7 Wr. 231. 
 A defence to a scire facias sur mortgage for purchase money was that there 
 had been failure of consideration, in that dower had been recovered off him. 
 Held that dower should not have been recovered, therefore he got a good 
 title and second he could not be allowed set-off of money paid under a valid 
 judgment. 
 
 Defence. — Bonesteel v. Sullivan, 1883, 8 Out. 9. A defendant in a mort- 
 age is not permitted to set up an attempted fraud on his creditors as a de- 
 fence to the mortgage. 
 
 lb.— Assignment.— Seidel v. Clark, C. P. 1881. 10 W. N. C. 138, S. C. 14 
 Lan. B. 104. The failure of an assignee of a mortgage to comply with an 
 agreement made by him with his assignor cannot be set up by the mortgagor 
 in a suit on the mortgage by the assignee. 
 
 lb. — Misrepresentations. — Cridge v. Hare, 1881, 2 Out. 561. It is a 
 good defence to a mortgage given by a married woman on her separate es- 
 tate that she was induced to give it by iaise representations, whether or not 
 the mortgagee had anything to do with them. 
 
 lb. — Obligor Becoming Surety for Assignee.— Frantz v. Brown, 1828, 
 17 S. & R. 287. It is a good defence against the assignee of a bond, that be- 
 fore maturity and without knowledge of the assignment the obligor becan.a 
 sureiy for the assignee and has since been obliged to discharge this obligation 
 
 lb.— Usury.— Hunter v. Campbell, D. C. 1874, 1 W. N. C. 109. Usury 
 in the original transaction is a good defence to a mortgage even in the hands 
 of an assignee. 
 
 Ejectment — Possession.— Poyntell v. Spencer, 1847, 6 Barr, 254. Long 
 continued possession under a mortgage and improvements, in the meantime 
 the mortgagee having been ejected, and the mortgagor taken a lease from 
 the real owner, enables the mortgagor to defend against the mortgage with- 
 out giving up possession. 
 
 Infant.— Love v. Dobson, C. P. 1877, 35 Leg. Int. 102, S. C. 12 Phila. 241, 
 10 Lan. Bar. 88. A terre tenant cannot defend a scire facias sur mortgage by 
 setting up that the mortgagor was an infant. 
 
 Mechanic's Lien.— McAdam v. Bailey, 1852, 1 Phila. 297, S. C. 9 Leg. 
 Int. 30. A mortgagee who took his mortgage after a building was com- 
 menced is entitled to defend in a scire facias on the mechanic's lien as terre 
 tenant. 
 
368 MORTGAGE, MOKTGAOOE AND MOETGAGEB. 
 
 Misrepresentation. — Stoddart v. Robinson, 18G7, 4 S. ;^86. It is no de- 
 fence to a mortgage that the party gave it on false representations made by 
 a third party, if the mortgagee had not knowledge of these things. 
 
 Notes. — Brown v. Scott, 1865, 1 S. 357. The fact that a mortgagor has 
 given his notes to the mortgagee for the mortgage debt is no defence by the 
 ierre tenant to a scire facias sur mortgage. 
 
 Purchase Money— Sale in Parcels— Title.— Fisk v. Duncan, 1876, 2 N. 
 196. A contract for the sale of a large tract of land was executed by con- 
 veying it in three parcels and taking a mortgage for the unpaid purchase 
 money on one of these tracts. Held that the purchaser could not set up as a 
 defence to this mortgage that the title to the other two lots had failed. 
 
 lb.— Title Papers.— Mallery v. Pearson, 1843, 1 Clark, 317, S. C. 2 Pa. 
 Ij. J. 298. An aifidavit of defence to a scire facias on a purchase money 
 mortgage, setting forth that the mortgagee (vendor) had at the time ot the 
 sale promised to secure for the defendant the title papers but had not done 
 so, whereby, the defendant had missed a good sale, ia sufficient. 
 
 Kemedy at Law.— Young v. Hoffman, C. P. 1875, 1 W. N. C. 198. The 
 owner of a lot upon which there is a mortgage which he believes is fraudu- 
 lent as to him has a remedy at law, and cannot invoke the aid of equity. 
 
 Sale— Setting Aside— Proceeding on Bond and Mortgage.— Green 
 Hill Assoc. V. Stoup, D. C. 1874, 1 W. N. C. 2. A sale of mortgaged prop- 
 erty will not be set aside on the ground that it was made under a judgment 
 entered on the bond after the defendant had put in an affidavit of defence to 
 a scire facias ou the mortgage unless a defence on the merits is made out by 
 the depositions. 
 
 Title— Want of.— Hersey v. Turbett, 1856, 3 C. 418. A mortgagor can- 
 not set up want of title as a defence to a scire facias on a mortgage given for 
 the purchase money, unless at the time the mortgage was given there was 
 some special agreement relative to an outstanding title. 
 
 Usury. — Huckenstein r. Love, 1881, 2 Out. 518. A mortgagor has a right 
 to set up the defence of usury although the property has passed into other 
 hands. 
 
 lb. — Lennig's Ap., 1880, 12 N. 301. A second mortgagee cannot set up 
 before an auditor appointed for distribution of a fund, that the first mort- 
 gage, under a judgment upon which the property was sold, was usurious, 
 without showing that a fraud was intended on him. 
 
 3. Issuing. 
 
 Agreement to Postpone Last Payment.— Wallace v. Hnssey, 1869, 13 
 S. 24. An agreement that the last payment on a mortgage shall be post- 
 poned is a mere covenant and not part of the mortgage, hence the issuing of 
 a scire facias need not be postponed until a year after the time fixed in the 
 agreement. 
 
 Dower. — Smyser v. Brooks, C. P. Dauphin, 1863, 1 Pears. 228. A mort^ 
 gage given to secure dower should not be sued out until a j'ear after the 
 death of the widow. 
 
 Foreign Corporation. — Leasure v. Union Mutual Life Ins. Co., 1879, 10 
 N. 491. A foreign corporation may issue a scire facias sur mortgage in the 
 courts of this Commonwealth. Quxre, whether it could enforce a mortgage 
 by an ejectment? 
 
 Forfeiture — Default in Payment of Interest.— Dunn w. Lewis, C. P. 
 1882, 40 Leg. Int. 14. Unless expressly so stated default in payment of in- 
 terest on a mortgage is not such a breach of a condition as warrants the issu- 
 ing of a scire facias before a year has expired. 
 
MORTGAGE, MOETGAGOE AND MORTGAGEE. 369 
 
 Instrument Under Seal. — Spencer v. Haynes, C. P. 1877. 4 W. N. C. 
 152, S. C. 34 Leg. Int. 140, 12 Phila. 452: Although an instrament not 
 under seal may be an equitable mortgage, a scire facias cannot be issued 
 thereon. 
 
 Iteasehold — Instalments. — Hosie v. Gray, 1872, 21 S. 198. A leasehold 
 mortgage provided that on any instalment not being paid a scire facias 
 should issue. Held that the scire facias might issue when that contingency 
 happened, although no statute provided that a scire facias could issue. 
 
 Payment — Demand. — Mutual Saving Fund V. Hennsbnrg, C. P. Schuyl- 
 kill, 1881, 2 Sch. L. E. 150. Where there is no date of payment specified 
 in a mortgage it is due upon demand and a scire facias may issue a year and 
 a day thereafter. 
 
 Time of— Alias.— Schwartz V. McClurg, C. P. Allegheny, 1878, 25 Pitts. 
 L. J. 185. It is not necessary that an alias scire facias sur mortgage should 
 issue to a different term from that to which the first issued. 
 
 4. Judgments. 
 
 Bail — Appeal.— Koecker v. Fidelity Co., 1883, 7 Out. 331. To remove 
 the judgment entered on a scire facias aur mortgage to the Supreme Court on 
 writ of error bail in double the amount of the judgment must be entered. 
 
 Bond and Mortgage — Proceeding on Both.— Hicks v. Funston, C. P. 
 1878, 5 "W. N. C. 428. Where an affidavit of defence has been filed in an 
 action on a mortgage, the plaintiff cannot without discontinuing this suit 
 enter up judgment on his bond and warrant accompanying the mortgage; 
 
 lb.— lb.— Setting Aside Judgment.— McGinley v. Eeilley, C. P. 1875, 
 1 W. N. C. 360. Where a mortgagee has entered up judgment on the ac- 
 companying bond and issued execution thereon, this will be set aside if he 
 afterwards proceed on the mortgage. 
 
 lb.— lb.— IIJ.— Rees V. Rees, C. P. 1875, 1 W. N. C, 457. A judgment 
 which has been entered on a bond and warrant pending proceedings on an 
 accompanying mortgage will on motion be set aside. 
 
 Fieri Tacias — Levari Facias. — McClelland v. Devilbiss, C. P. Franklin, 
 1886. 1 Pa. Co. C. Rep. 613. Where a judgment is confessed upon a sci. fa. 
 sur mortgage and> an agreement filed that a fi. fa. may issue thereon and the 
 mortgaged premises sold thereunder, the court will construe it to mean that 
 a lev. fa. should be issued and will set aside a fi. fa. as improper. 
 
 Interest on. — Mohn -v. Heister, 1837, 6 W. 53. A mortgagee is entitled 
 to interest on the judgment on the scire facias (for principle and interest) up 
 to the time of the sale and confirmation, even though the levari /acias recited 
 only the amount of the original debt and interest from the time it was due. 
 
 Lien. — Helmbold v. Man, 1839, 4 Wh. 410. Judgment on a scire facias 
 sur mortgage creates no lien. The lien is created by the mortgage. There- 
 fore if the judgment expires the lien of the mortgage is not gone. The only 
 use of a judgment on the scire facias is to give the mortgagee execution im- 
 mediately when he wants it. 
 
 Parties.— Dutil v. Sully, 1881, 9 W. N. C. 573. A judgment tor want of 
 an affidavit of defence against the executor of a terre tenant who before his 
 death had been admitted to defend in a suit on a mortgage, is irregular. 
 
 Regularity of Proceedings. — Haupt v. Davis, 1875, 29 S. 238. A scire 
 facias sur mortgage was issued in Allegheny county returnable the first Mon- 
 day of December and was returned nihil. An alias was issued returnable 
 the first Monday of February and likewise returned nihil. Judgment by 
 default was taken after the first Monday of March. Seld that the proceed- 
 ings were regular. 
 
 24 — EQUITY. ^ 
 
370 MOETGAQE, MOKTGAGOR AND MORTGAGEE. 
 
 lb. — Revival — Lien. — Worman's Ap. 1885, 14 Oat. 25. An amicable 
 scire facias to revive a judgment which erroneously gives the date of entry 
 of the original judgment and vfhich makes a slight change in the spelling of 
 the defendant's name will not continue the lien of the original judgment as 
 against subsequent lien creditors. 
 
 Title. — Warder v. Tainter, 1835, 4 W. 270. A sale on a judgment in scire 
 facias sur mortgage after two nihils conlers a good title although it afterwards 
 appear that the mortgagor was dead before the writs issued. 
 
 lb.— Regularity.— Evans v. Meylert. 1852, 7 H. 402. A sale of land on 
 a scire facias sur mortgage passes a good title if the judgment on the scire 
 fadas was valid, although a subsequent judgment to revive was irregular, 
 the original judgment being still a lien. 
 
 Two Nihils — Affidavit of Defence. —Stevens v. North Penna. Coal Co., 
 1860, 11 C. 265. Judgment entered in scire facias sur mortgage, there being 
 two returns of nihil as to the mortgagor and no sufficient affidavit of defence 
 by the ierre tenant who appeared, is general, whatever the reason assigned 
 for it. 
 
 lb.— Appearance by Mortgagor and Terre Tenant— Confession of 
 Judgment. — Cooper V. Borrall, 1849, 10 Barr, 491. In scire facias on a mort- 
 gage there were two returns of nihil as to the mortgagor, and appearance by 
 the terre tenant, the latter agreed to confess judgment and on the back of 
 this agreement counsel for mortgagee endorsed an order to enter this judg- 
 ment and issue a levari. Held the judgment entered was against the mort- 
 gagor as well. 
 
 lb. — Huckenstein v. Love, 1882, 39 Leg. Int. 119. In a suit on a mort> 
 gage, a, judgment upon two returns of nihil against one who is not a party 
 to the mortgage, is erroneous and should he stricken off. 
 
 5. Fwrties. 
 
 Assignment— Use of Assignor's Name.— Pryor v. Wood, 1858, 7 c. 
 143. After an assignment of a mortgage duly executed and recorded, there 
 is no such title left in the assignor as permits the use of his name as nominal 
 plaintiff. 
 
 lb. — Levy V. Levy, 1875, 28 S. 507. A suit on a chose in action which 
 has been assigned must be brought in the name of the holder of the legal 
 title. 
 
 lb.— Aldricks v. Higgins, 1827, 16 S. & E. 212. A sealed letter of credit 
 is not assignable so as to allow the assignee of the one having given credit, 
 to sue in his own name. 
 
 lb.— Coffey V. Whit«, C. P. 1884, 14 W. N. C. 108, S. C. 41 Leg. Int. 15. 
 An equitable assignee of a chose in action not assignable at law may main- 
 tain an action thereon in the name of the legal owner without the latter's 
 consent. 
 
 lb. — Sellers v. Cooper, 1872, 3 Leg, & Ins. E. 01. The assignee of a chose 
 iu action may maintain assumpsit in his own name on an express promise to 
 pay ; but he must set forth in his declaration the original consideration. 
 
 lb. — Pahnestock v. Schoyer, 1839, 9 W. 102. The assignee of a bill drawn 
 for specific articles cannot sue in his own name. 
 
 lb.— Faull V. Tinsman, 1859, 12 C. 108. The only effect of Act May 28, 
 1815, is to allow the assignee of a chose in action to sue in his own name, it 
 does not give him a title free from equities existing between the original 
 parties at the time of the assignment. 
 
 lb. — Partridge v. Partridge, 1860, 2 Wr. 78. An assignment of a mort- 
 gage not under seal, without witnesses or acknowledgment, and not recorded. 
 
MORTGAGE, MOETGAGOE AND MORTGAGEE. 371 
 
 can only be sustained as an equitable assignment, and the assignee cannot 
 sue on it in his own name. 
 
 Decedents' Estates.— Towne v. Birchall, C. P. 1875, 2 W. N. C. 304. 
 The executors of a deceased trustee are proper parties to sue out a mortgage. 
 
 lb. — Chambers v. Carson, 1836, 2 Wh. 365. In a scire facias sur mortgage 
 against an executor it is not necessary to make the widow and heirs parties. 
 
 lb.— Ground Rent.— Rushton v. Lippincott, 1887, 44 Leg. Int. 228. 
 "Where a judgment was recovered against an administrator for arrears of 
 ground rent, and the land subject to a mortgage sold, title passed to pur- 
 chaser without a scire facias to bring in the heirs. 
 
 lb — Mortuus Est.— Blanchard v. Koller, C. P. 1878, 5 "W. N. C. 362, S. 
 C. 35 Leg. Int. 170, 12 Phila. 408. "Where there is a return of mortuus est as 
 to the mortgagor on a scire facias sur mortgage, the personal representatives 
 should be made parties although the terre tenant has been served. 
 
 lb. — ^Purchase Money. — Brooks v. Smyser, 1864, 12 "Wr. 86. A mort- 
 gage given to an administrator for the purchase money of property of the 
 estate cannot be sued on by Ms executors. 
 
 lb.— Service.— Hunsecker V. Thomas, 1879, 8 N. 154, 6 W. N. C. 570. 
 "Where after service on the mortgagor and judgment on the mortgage, the 
 mortgagor dies it is not necessary to call in his personal representatives by 
 scire facias before taking out execution. 
 
 lb.— Two Nihils.— Taylor V. Young, 1872, 21 S. 81. Two returns of nihil 
 to successive writs of scire facias sur mortgage are equivalent to scire facias, 
 whether the mortgagor be living or dead. And after judgment regularly 
 obtained it is not necessary to bring in the heirs before execution where the 
 death of the mortgagor is suggested. 
 
 Dismissal of Bill — Account. — Danzeisen's Ap., 1873, 23 S. 65. Equity 
 will not dismiss a bill charging that defendant is a trustee, when he is not 
 such but a mortgagee, if the same liability to account exists. 
 
 Damages to Land not Taken — Railroad. — Knoll i;. Railway Co., 1888, 
 6 Crum. 467. A mortgagee out of possession cannot maintain an action 
 against a railroad company for injury done the mortgaged property, the 
 property not having been taken by the railroad. 
 
 Garnishee — Judgment — Recording. — Rushton v. Rowe, 1870, 14 S. 63. 
 One who has recovered judgment against a mortgagee as garnishee for a 
 claim against the mortgagor, can issue a scire facias on the mortgage in the 
 mortgagee's name. 
 
 Proceedings Must be Against Principal.— Maus v. "Wilson, 1850, 3 H. 
 148. Proceedings on a mortgage executed b^ an agent must be against the 
 principal or they will convey no title. 
 
 Sale — Purchaser — ^Pending Suit. — Huckenstein v. Love, 1881, 2 Out. 
 518. Where mortgaged property is sold under a subsequent lien pending 
 suit on the mortgage and after issue joined the purchaser should not be 
 made a party. 
 
 Terre Tenant— Naming one as— Evidence. — Mutual Saving Fund v. 
 Ball, C. P. Schuylkill, 1881, 2 Sch. L. R. 203. Naming one as terre tenant 
 in a scire facias sur mortgage is not sufficient ; there must be some evidence to 
 support it. 
 
 6, Pleading. 
 
 Amendment. — Swatara Building Assoc, v. Foley, C. P. Dauphin, 1876, f! 
 Pears. 265. An amendment may be allowed to a scire facias on a building; 
 association mortgage after a trial upon the merits, judgment, a motion 1o 
 open, and credits allowed. 
 
372 MORTGAGE, MOBTGAGOE AND MOETGAGEE. 
 
 Averments— Acknowledgment.— Miner v. Graham, 1855, 12 H. 491. A 
 scire facias mir mortgage need not set out that the mortgage was not ac- 
 knpwledged, and even though it were not acknowledged the irregularity is 
 cured by a judgment on the scire facias. 
 
 lb.— Cause of Action.— Lewis v. Flatty, 1887, 4 C. P. Rep. 176. In 
 proceedings upon a mortgage the scire facias takes the place of a declaration 
 and in order to entitle the plaintiff to judgment, a good cause of action must 
 he shown. 
 
 lb.— Debt Due— Levari Facias.— Rhodes v. Reed, 1879, 8 N. 436. Where 
 a scire facias issued on a precipe which refers to the record of the mortgage, 
 and judgment is entered thereon, a levari facias may issue although the 
 scire facias contains no averment as to the time when the debt was due. 
 
 lb. — Security for Dues and Interest. — Swift v. Allegheny B. & L. 
 Assoc, 1876, 1 N. 142. A sci.re facias sur mortgage must show on its face a, 
 cause of action, therefore where a mortgage was given as security for dues 
 and interest, a. scire facias thereon merely avering that the amount of the 
 mortgage remains unpaid is defective. 
 
 Nul Tiel Record.— Frear v. Drinker, 1848, 8 Barr, 520. The plea of nul 
 Hel record to a sHre facias sur mortgage is a nullity. 
 
 Pas^nent.— Robinson r. Eldridge, 1823, 10 S. & R. 140. Under a plea of 
 payment, etc. , to a scire facias sur mortgage, evidence can be given of facts 
 showing circumvention and deception in obtaining the mortgage. 
 
 7. Service. 
 
 Terre Tenants.— Clark v. McClimmons, 1881, 30 Pitts. L. J. 43. It is 
 not necessary to serve a scire facias sur mortgage on t«rre tenants or give them 
 notice thereof * 
 
 lb.— Mather v. Clark, 1833, 1 W. 291. The only effect of not serving a 
 terre tenant in scire facias sur mortgage, is that upon ejectment by the pur- 
 chaser at sheriff's sale he can set up any defence that he could have made to 
 the scire facias if served. 
 
 lb. — Cowan V. Getty, 1836, 5 W. 531. A service of a scire facias sur mort- 
 ffage on the tenant of an assigujp of the mortgagor will not bind the assignee, 
 who may make the same defence to an ejectment by the purchaser at the 
 sheriff's sale as he could have made to the scire facias. 
 
 lb. — Mevey's Ap., 1846, 4 Barr, 80. The only effect of not serving the 
 ierre tenants in scire facias sur mortgage is that they can set up against the 
 purchaser at sheriff's sale any defence they had to the mortgage. 
 
 lb.— Smyser v. Brooks, C. P. Dauphin, 1863, 1 Pears. 228. No notice of 
 ii, mire facias sur mortgage need be given the terre tenants. 
 
 lb.— Pardee r. Green, C. P. Luzerne, 1884, 2 Kulp, 432, S. C. 12 Luz. L. 
 Keg. 264. It is not necessary to serve a terre tenant with notice of a scire 
 jKcias sur mortgage, but the latter may come in on his own petition or may 
 make his defence in ejectment. 
 
 Widow and Heirs.— Wallace v. Blair, 1854, 1 Gr. 75. The only effect of 
 not serving a scire facias sur mortgage upon the heirs of the deceased mort- 
 gagor is that not having had their day in court they are not precluded from 
 defending in the ejectment subsequently brought by the purthaser. ^ 
 
 lb. — Hare v. Mallock, 1836, 1 M. 268. Notice need not be given to widow 
 and heirs in a scire facias sur mortgage against the executors of the mort- 
 gagor. 
 
MORTGAGE, MORTGAGOR AND MORTGAGEE. 373 
 
 C. Evidence. 
 
 Admissions.— Hoffman v. Lee, 1834, 3 W. 289. The admissions of the 
 mortgagor as to the amount due on the mortgage are not admissible on the 
 trial of a scire facias sur mortgage against his assignee, for such proceeding i.s 
 against the land only and in it the mortgagor, having assigned, could not be 
 
 lb. — Judgment and Mortgage.— Maze v. Burke, C. P. 1878, 35 Leg. Int. 
 396, S. C. 12 Phila. 335. Where the liens of a mortgage and a subsequent 
 judgment have been transferred from one property to another and entered on 
 the same day, the admission of the judgment creditor that the mortgage 
 was to retain its priority is sufScient proof of the fact. 
 
 lb.— Consideration.— Mackey v. Brownfield, 1825, 13 S. & R. 239. The 
 admissions of a mortgagee that the mortgage was for more than the mort- 
 gagor had received, can be given as evidence in defence to a scire fadaa 
 upon it. 
 
 Assignment — Guarantee. — Strawn v. Shank, 1885, 42 Leg. Int. 434. 
 The testimony of an assignor of a mortgage who has guaranteed its payment 
 is admissible for the mortgagor. 
 
 lb. — Original Mortgage. — Shrom r. Williams, 1862, 7 Wr. 520. In scire 
 facias sur mortgage by an assignee of the mortgage the original mortgagee i.s 
 a competent witness for the mortgagor to prove partial failure of considera- 
 tion and that the assignee took with notice of this, although the witness was 
 the endorsee of a promissory note which the mortgage had been given to 
 secure. 
 
 lb. — Eecording. — Philips v. Bank of Lewiston, 1852, 6 H. 394. The as- 
 signment of a mortgage when recorded is notice, and a copy of the record is 
 evidence. The assignee is not affected with any equity which may subse- 
 quently arise between the original parties. 
 
 Certified Copy. — Curry v. Eaymond, 1857, 4 C. 144. A certified copy of 
 a mortgage duly recorded is as good evidence as the instrument itself. 
 
 lb. — Of Record. — Lancaster v. Smith, 1871, 17 S. 427. A mortgagee can 
 sue on a mortgage not in his actual possession, and an exemplification of the 
 record is as good evidence as the mortgage. 
 
 Deed Absolute on Its Face.— Baisch v. Oabreley, 1871, 18 S. 92. There 
 being in evidence a writing containing a promise to reconvey an estate deeded 
 the day before, besides some evidence of acts of the parties, it was proper for 
 the whole to go to the jury to ascertain whether or not it was a mortgage. 
 
 lb. — Plumer v. Guthrie, 1874, 26 S. 441. Where the evidence, which is 
 offered to change a deed absolute on its face into a mortgage, is of facts and 
 circumstances which occurred a long time after the original transaction, if it 
 is not sufficient to satisfy the judge as chancellor he should not submit it to 
 the jury. 
 
 lb. — Rhines v. Baird, 1861, 5 Wr. 256. Where an assignment, on its face 
 absolute, was without consideration, the assignor remained in possession and 
 there were declarations by the transferee tending to show that the convey- 
 ance was conditional, the question whether or not it was a mortgage should 
 go, to the jury. 
 
 It). -Wharf V. Howell, 1813, 5 Bin. 499. .Where a deed absolute on its 
 face is in evidence and also the explanations of the scrivener that it was in- 
 tended for a mortgage, and the fact that there was a great disparity between 
 the price paid and the true value of the land, the question whether or not 
 the instrument is a mortgage is properly left to the jury. 
 
 lb. — Nicolls B. McDonald, 1882, 5 Out. 514. One who has given a deed 
 absolute on its face, prior to June 8, 1881, may either in an action of eject- 
 
374 MORTGAGE, MOBTGAGOU AND MOETGAGEE. 
 
 ment or a bill in equity offer evidence to prove it a mortgage, vchich evidence 
 must satisfy the chancellor in either case. 
 
 lb. — De France v. De France, 1859, 10 C. 385. It is for the court to say 
 whether parol testimony is sufficient to convert an absolute deed into a mort- 
 gage. 
 
 lb. — Huoncker v. Merkey, 1883, 6 Out. 462. "Where the question is whether 
 a transaction was an absolute conveyance or a mortgage, the evidence all be- 
 ing oral, it is not error for the court to charge that, if the jury believes the 
 facts testified to by the defendant (who relies on the parol defeasance) are 
 clearly proved, they shall find for him. 
 
 Merger— Collateral Suit. — Murray v. Weigle, 1888, 3 Crum. 159. A 
 mortgage is merged in a judgment entered in a sdre facias thereon, and in 
 a collateral suit such judgment is conclusive upon the grantor of the mort- 
 gage as to the amount due. 
 
 Mortgagor Non Compos.— Mills v. Slork, C. P. 1880, 9 W. N. C. 379. A 
 mortgagor is entitled to show that he was non compos at the time the mort- 
 gage was executed without first proving either fraud or notice to the present 
 holder of the mortgage. 
 
 Parol— Deed Absolute on Pace.— Rynd v. Old, D. C. Allegheny, 1869, 
 16 Pitts. L. J. Pt. II. 273. It is competent to show that a deed absolute on 
 its face was made in pursuance of a prior agreement and was to be a security 
 for certain debts and therefore that it is only a mortgage. 
 
 lb. — Hoopes V. Beale, 1879, 9 N. 82. Parol evidence is admissible even 
 against the assignee of a mortgage to prove that it was agreed between the 
 original parties that the mortgagor should not be personally liable on the 
 mortgage. 
 
 lb.— Purchase Money.— Speckner's Est., C. P. Carbon. 1882, 1 Kulp, 17, 
 S. C. 9 Luz. L. Reg. 17. The fact that a mortgage was given for purchase 
 money may be shown by parol. 
 
 Unrecorded Mortgage. — Crosland «. Saving Fund, 1888, 6 Crum. 65. 
 Where the question is as to the validity of an unrecorded mortgage and the 
 grantor is the chief witness in favor of the mortgagee, it is competent to ad- 
 mit the acts and declarations of the grantor and others acting for him in con- 
 tradiction of evidence tending to show collusion in an attempt to defraud the. 
 mortgagee. 
 
 Witnesses — Competency of.— Hartz v. Woods, 1848, 5 Barr, 471. A 
 mortgagor who has confessed judgment on a scire facias, is not a competent 
 witness against a ierre tenant who is defending. 
 
 lb. — Espy V. Allisop, 1840, 9 W. 462. Both mortgagor and mortgagee are 
 incompetent witnesses to prove that a bond secured by the mortgage has 
 been satisfied in a suit between a purchaser of the property under a subse- 
 quent mortgage and the assignee of the bond. 
 
 lb. — Perkins v. Johnson, 1852, 7 H. 510. A scire facias on a mortgage 
 given without warranty and without a bond, is purely a proceeding in rem, 
 and the mortgagor having conveyed the land is a competent witness. 
 
 lb. — Hansen v. Lutz, 1853, 8 H. 284. In an action by a mortgagee against 
 a terre tenant holding subject to the mortgage, the mortgagor, being the obli- 
 gor on the accompanying bond, is not a competent witness to prove that the 
 mortgage is unpaid. 
 
 lb. — Shrom v. Williams, 1862, 7 Wr. 520. In scire facias sur mortgage, by 
 an assignee of the mortgage, the original mortgagee is a competent witness 
 for the mortgagor to prove partial failure of consideration and that the as- 
 signee took with notice of this, although the witness was the endorsee of a 
 promissory note which the mortgage has been given to secure. 
 
MOETGAQB, MOETQAGOR AND MORTGAGEE. 375 
 
 XVII. Priority of I^iens. 
 
 A. In General. 
 
 Agreement as to.— Eigier v. Light, 1879, 9 N. 235. An agreement that 
 one of two mortgages given at the same time should he prior to the other 
 ■will be enforced between the parties though the other be first recorded. 
 
 Agreement to Execute.— Selden's Ap., 1873, 24 S. 323. A. was about 
 to convey to B. property under an agreement that B. would give a certain 
 mortgage upon it. B. executed two mortgages on the property. The first 
 was executed before the deed was delivered, and recorded after delivery of 
 the deed ; the second was invalid because defectively acknowledged. The^ 
 second mortgage was the one which B. had agreed to give. Held that neither 
 was a legal lien, but that in equity the second was entitled to priority. 
 
 Date of Sale.— Clark v. Stanley, 1849, 10 Barr, 472. The time at which 
 the standing of a mortgage (whether under the Act of 1830 or not) is to be 
 determined is the day of the sale. 
 
 Municipal Lien.— City of Pittsburgh's ApJ, 1861, 4 Wr. 45S. A munici- 
 pal lien for grading filed under .the Acts April 18, 1857, is not prior of right 
 to a mortgage previously given and recorded. 
 
 Order of Priority.— Wilcocks v. Wain, 1824, 10 S. & E. 380. In distri- 
 buting the proceeds of a debtor's mortgaged property, the liens were in 
 point of time (1) a private judgment, (2J the mortgage, (3) a judgment to 
 the United States. Held that the same order prevailed in point of right. 
 
 lb. — Manufacturers' & Mechanics' Bank v. Bank of Penna., 1844, 7 W. & 
 S. 335. The priority in time of liens against A. was in this order. 1st, an 
 unrecorded mortgage, 2d, a recorded mortgage with notice of the other, 
 3d, a judgment. Held that they should be satisfied in that order because 
 the judgment was bound by the prior recorded mortgage, and that in turn 
 could only claim under the first mortgage. 
 
 Owelty. — McCandless' Ap., 1881, 2 Out. 489. Owelty which is awarded 
 upon a partition ol land, is a prior lien on the purport on which it is charged, 
 to a mortgage of the undivided interest of the tenant given before the parti- 
 tion. ' 
 
 lb. — Allegheny Nat. Bank's Ap. , 1881, 3 Out. 148. Owelty in partition is a 
 prior lien on the purport on which it is charged to a mortgage given by the 
 tenant before partition on his undivided interest in the property. 
 
 Partnership. — Irwin v. Bidwell, 1872, 22 S. 244. A mortgage given to 
 one partner on the partnership property for capital invested puts him in no 
 better position, for, as to creditors it is void, and he has the same lien as to 
 his copartners without the mortgage. 
 
 Purchaser— Superior Equity. — Sellers v. Benner, 1880, 13 N. 207. A 
 purchaser who has bought from a mortgagor and mortgagee, has paid the 
 full purchase money and has received a deed with warranty in which the 
 mortgage is not mentioned has a superior equity to one who has subsequently 
 bought the mortgage without making any inquiry. 
 
 B. Judgments. 
 
 Lien of— Date.— De Witt's Ap., 1874, 26 S. 283. The lien of a judgment 
 recovered on a mortgage relates back to the date of the mortgage, and when 
 the mortgage has been satisfied but the judgment related back to it, a pur- 
 chaser takes subject to the lien. 
 
376 MORTGAGE, MOETGAGOR AND MORTGAGEE. 
 
 lb.— lb.— LyDch V. Dearth, 1830, 2 P. & W. 101. A judgment against an 
 equitable estate is prior to a mortgage subsequently given for the money 
 used to purchase the legal estate. 
 
 Entered Same Day as Mortgage.— Hendrickson's Ap., 1855, 12 H. 363. 
 Where a judgment and a mortgage (not for purchase money) are entered the 
 same day, the rule is to treat the liens as commencing simultaneously. 
 
 lb.— Doolittle v. Beary, D. C. 1857, 14 Leg. Int. 316, S. C. 2 Phila. 354. 
 A mortgage and a judgment entered on the same day are of equal lien. 
 
 lb. — Claason's Ap., 1853, 10 H. 359. When a mortgage recorded and a 
 judgment entered on the same day, they are payable pro rata. 
 
 lb. — Magaw V. Garrett, 1855, 1 C. 319. A mortgage (not for purchase 
 money) entered the same day as a judgment, is discharged by a sale under 
 a subsequent lien. 
 
 Former Owner. — Byers v.- Hoch, 1849, 1 J. 258. A mortgage on land 
 bound by a j adgment recovered against a former owner is not a first lien 
 vrithin the Act of 1830, but is discharged. 
 
 Guaranty by Mortgagee. — Moore's Ap., 1844, 7 W. & S. 258. A gaai- 
 anty given by a mortgagee to a subsequent judgment creditor of the mort- 
 gagor, is a personal guaranty merely and does not give the judgment cred- 
 itor any claim to the mortgage. A subsequent assignee of the mortgage takes 
 it as prior to the judgment. 
 
 Subsequent- Leasehold Mortgage. — Sturtevant's Ap., 1859, 10 C. 149. 
 Under Act April 27, 1855, Sec. 8. authorizing mortgages of leasehold interests, 
 if the lease be not recorded with the mortgage the lien will be postponed to 
 a subsequent judgment. 
 
 Taxes. — Gormley's Ap., 1856, 3 C. 49. A mortgage is a prior lien to taxes 
 assessed after it is given. 
 
 lb.— Act of April 1, 1873.— Anspach's Ap., 1886, 2 Amer. 27. Under 
 the Act of April 1, 1873, relating to a lien of taxes on real estate in Dela- 
 ware county, a prior mortgage will be postjjoned to the payment of taxes as- 
 sessed on the mortgaged premises subsequently to the mortgage. 
 
 lb. — Sale. — Perry v. Brinton, 1850, 1 H. 202. A first mortgage is not dis- 
 charged by a sale lor taxes, the judgment therefor being recovered subse- 
 quent to the mortgage. 
 
 Unrecorded — Judgment Creditor — Notice. — Hulings v. Guthrie, 1846, 
 4 Barr, 123. A judgment is a prior lien to a f)rior unrecorded mortgage even 
 though the judgment creditor have notice. 
 
 C. Mechanics' XAen. 
 
 Advance Money Mortgage— Recording.— Nixon v. Coffin, 1879, 6 W. 
 N. C. 489. An advance money mortgage given in good faith and recorded 
 before the commencement of work is superior to the claims of mechanics and 
 material men. 
 
 Beginning Work— Recording.— Parrish's Ap., 1876, 2 K. ill. The lien 
 of a mortgage is subsequent to a mechanic's lien where the work was com- 
 menced in the shops of the mechanic before the mortgage was recorded al- 
 though no work was done on the ground until after the lien of the mortgat;e 
 attached. 
 
 lb.— lb. — Mitchel u. Evans, 1814, 2 Browne, 329. A mortgage not re- 
 corded within six months is postponed to a mechanic's lien properly filed al- 
 though the mortgage was first recorded and the mechanic commenced his. 
 work before the six months allowed for recording the mortgage had run. 
 
MORTGAGE, MOETQAGOK AND MOBTGAGEE. 377 
 
 . Building — Erection Subsequent to Mortgage. — Lyle v. Ducomb, 1813, 
 5 Bin. 585. The lien of a mortgagee on buildings erected after the execu- 
 tion of the mortgage is superior to that of the material men who constructed 
 the buildings. 
 
 lb. — lb. — Leib v. Bean, 1828, 1 Ash. 207. A mortgage given on land pre- 
 vious to the commencement of a building, has priority to the liens of the 
 mechanics who worked on the building. A sheriff's sale under the mort- 
 gage divests all liens. 
 
 lb. — Finished. — Thomas' Ap., 1874, 26 S. .SO. A mortgage given when a 
 building is finished to enable mechanics' liens to be discharged and the 
 building altered so as to accomplish its original object is prior to liens ac- 
 quired by the mechanics altering it. 
 
 lb.— Unfinished.— American Fire Ins. Co. v. Pringle, 1815, 2 S. & K. 138. 
 The lien of material men and mechanics for supplies furnished and work 
 done after an unfinished building had been sold and a mortgage taken for 
 the purchase money, is prior to the mortgage though the latter%e recorded 
 immediately. 
 
 Ib.^ — lb. — Hahn's Ap., 1861, 3 "Wr. 409.' A mortgage given while abuild- 
 ing is in course of erection is subsequent to a mechanic's lien duly filed 
 though such filing be after the mortgage was given and recorded. 
 
 Consideration.— Deacon v. Harris, C. P. 1880, 8 W. N. C. 403, S. C. 37 
 Leg. Int. 222, 14 Phila. 59. One who has a mechanic's lien is entitled to a 
 decree enjoining a mortgagee who was given mortgages without consideration 
 which were made to cut out mechanics' liens, from assigning the same. 
 
 Separate Tracts — Several Mortgages.— Starr c. Ferguson, C. P. 1874, 
 
 1 W. N. C. 87. A number of smaller mortgages given upon separate parts 
 of a large tract in substitution for a large purchase money mortgage thereon, 
 according to an agreement made at the time of the purchase, stand in its 
 place and are prior in right to intervening mechanics' liens. 
 
 D. Purchase Money. 
 
 Conveyance Between Three Parties. — City Nat. Bank's Ap., 1879, 10 
 N. '163. A. sold to B. under articles and B. to C. To save expense the deed 
 was made by A. to C, and C. gave A. a mortgage lor the amount due by B., 
 and B. gave a mortgage for the remaining sum due him. Held that A. 's 
 mortgage was the first lien. 
 
 Equitable O'wrner. — Cake's Ap., 1854, 11 H. 186. A purchase money 
 mortgage duly recorded is prior to a judgment obtained against the holder 
 of the equitable title under articles before the deed was delivered. 
 
 Equitable Estate.— Weldon v. Gibson, D. C. 1856, 13 Leg. Int. 340, S. C. 
 
 2 Phila. 176. A mortgage given to a third person by a vendee at the time of 
 a .purchase of lands, for the amount of the purchase money, is entitled to 
 priority over liens which had previously attached to his equitable estate. 
 
 ]Two — Discharge. — Dugan v. American Life Ins. Co., 1866, 2 S. 2.i3. 
 Purchase money mortgages given at the same ptirchase and each recorded 
 within sixty days are equal liens whatever be the intention of the parties 
 and a sale under one discharges the other, but to have such effect they must 
 have been given between the same parties and on the same sale. 
 
 .B. Recording. 
 
 After Six Months. — Bonder v. Morrow, 1859, 9 C. 83. Neither a deed 
 nor a mortgage by the same owner were put on record within six months. 
 Meld that the first one recorded had priority. 
 
378 MORTGAGE, MORTGAGOE AND MORTGAGEE. 
 
 Indexing.— Wyoming Nat. Bank's Ap., 1882, 11 W. N. C. 567, 30 Pitts. 
 L. J. 50. If a mortgage is left for record and actually recorded it will not 
 be postponed by the circumstance that the recorder has failed to index it. 
 
 lb. — Thompson v. Hay, C. P. Luzerne, 1862, 3 Luz. L. Obs. 75. A mort- 
 gage defectively indexed is not notice, and consequently the mortgagee is 
 postponed to a subsequent judgment creditor. 
 
 lb.— Judgment Note— Assignment.— Fraley's Ap., 1874, 26 S. 42. One 
 who held a judgment note and had entered judgment thereunder, assigned 
 to different parties, first the note and afterwards the judgment, the latter 
 assignment was first recorded. Held that it was prior in right. 
 
 Notice.— Lahr's Ap., 1879, 9 N. 507, 1 L. T. N. S. 271. An unrecorded 
 mortgage can only be sustained against a subsequent judgment creditor by 
 showins; that the latter had actual notice of it before he contracted the debt 
 on which the judgment was afterwards obtained. 
 
 Possession— Decedent's Estates. — Nice's Ap., 1867, 4 S. 200. A de^t 
 secured by an unrecorded mortgage without possession taken under it in the 
 lifetime of the decedent (the mortgagor) has no precedence over the general 
 debts, in fact is not a lien against creditors whether they had notice of it or 
 not. 
 
 Title Papers. — Evans V. Jones, 1792, 1 Y. 172. Quiere whether a first 
 mortgage not yet recorded will be postponed to a second mortgage given 
 within six months, when the title papers have been left with the mortgagor? 
 
 XVIII. Purcliase Money mortsrascs. 
 
 [See also Supra XVII, D.] 
 
 Contemporaneous Mortgage.— Hillary v. Parvin, D. C. 1857, 14 Leg. 
 Int. 308, S. C. 2 Phila. 346. As against a vendor who receives a purchase 
 money mortgage, another mortgage given at the same time and really for die 
 same purpose, will come in pro rata, although as against an assignee of the 
 first mortgage the will might be different. 
 
 Estate Liable on.— Wolfe's Ap., 1885, 14 Out. 126. Where the vendee; 
 of an oil lease executed a mortgage to the vendor for the unpaid purchase 
 money of the same and upon the sale of the mortgaged premises under asci. 
 fa. failed to realize the entire claim, he is not precluded from pursuing the 
 estate of the debtor for the unpaid residue providing the evidence shows the 
 contract to have been executed and not merely executory. 
 
 Evidence. — Baum v. Tonkin, 1885, 43 Leg. Int. 262. Where a mortgage 
 has been given to secure balance of purchase money due, but no bond or 
 other evidence of indebtedness has been given, the mortgage and articles of 
 agreement may be given in evidence to show the amount due in an action of 
 debt for the balance of purchase money. 
 
 lb.— Parol.— Eldridge v. Christy, D. C. 1860, 17 Leg. Int. 236, S. C. 4 
 Phila. 102. The lien of a purchase money mortgage is not affected by the 
 fact that it is not mentioned in the deed which passed at the same time. 
 
 lb.— lb.— Albright v. Lafayette Building Assoc, 1883, 6 Out. 411. A 
 mortgage not purporting to be a purchase money mortgage on its face may 
 often be proved to be such by parol evidence and vine versa ; but where the 
 recitals in a mortgage and the name of the mortgagee would lepd one to 
 think that the mortgage was not for purchase money, a mortgagee whose 
 mortgage was recorded before this one is protected from such evidence offered 
 to affect his rights. 
 
MOETGAGK, MOETGAGOR AND MORTGAGEE. 379 
 
 Instalments — Trust — Death of Cestui Que Trust. — Dinsmore v. Big- 
 gert, 1848, 9 Barr, 133. A trustee entered into articles for the sale of land 
 to B. the purchase money to be paid in instalments to the cestui que trust, and 
 "if she should out-live the payments on the purchase money an annuity was 
 to be paid her till death. lu pursuance of these articles a mortgage was 
 drawn up. The cestui que trust died before all the purehaae money was paid, 
 and it was contended that the mortgagee was absolved from further pay- 
 ment. Held otherwise. 
 
 Notice — Priority. — Stickel v. Desh, 1882, 2 Penny. 303. A purchaser 
 from one whose deed shows by the receipt at the foot that its consideration 
 was a purchase money mortgage, takes subject to that mortgage although it 
 has not been recorded. 
 
 Protection.— Erb v. Myers, C. P. 1886, 43 Leg. Int. 238. A mortgage 
 given for purchase money is protected as such though bearing date after the 
 deed and containing no recital that it is given to secure purchase money. 
 
 Purchase by Vendor — Balance.— Wolfe's Ap., 1885, 42 Leg. Int. 436, 
 S. C. 16 W. N. C. 251. Where a vendor has passed his whole title to his 
 vendee and has taken a mortgage for part of the purchase money, he may, 
 upon afterwards buying in the property under the mortgage for less than the 
 amount of the mortgage recover the balance from his former vendee. 
 
 Two Mortgages.— Norris v. Brady, D. C. 1861, 18 Leg. Int. 140, S. C. 4 
 Phila. 287. Where a grantee gives two mortgages, the amount of the two 
 being twice the price of the land, and one was recorded the day after the 
 other, it was held that there was nothing to show that they were for pur- 
 chase money. 
 
 Title— Doubtful.— Massey V. Turbill, C. P. 1875, 2 W. N. C. 200. The 
 fact that one has received a doubtful title is no defence to a purchase money 
 mortgage which he has given thereon. 
 
 XIX. Recording^. 
 
 [See also Supra XVII, E.J 
 
 Act of 1820.— Bismark Building Assoc, v. Bolster, 1879, 11 N. 123. A 
 mortgage of an estate for years is not within ihe Act of 1820, and may be re- 
 corded at any time within six months. 
 
 Assignment.— Craft v. Webster, 1833, 4 E. 242. It seems that the assign- 
 ment of a mortgage need not be recorded. It is not within the Act of March 
 18, 1775. In fact, viewing a mortgage as a bare security it is not necessary 
 that an assignment of it be in writing. It is not an interest in land within 
 the statute of frauds. 
 
 lb.— Sharpe v. Hutchinson, C. P. Luzerne, 1882, 1 Kulp, 405, S. C. 10 Luz. 
 L. Reg. 193, 13 Lan. B. 62, 2 Sch. L. R. 281. An assignment on the back 
 of a bond accompanying which is a mortgage, is an assignment of the mort- 
 gage and should be recorded. 
 
 lb. — Dubois' Ap., 1861, 2 Wr. 231. An assignment to a creditor of all the 
 debts due to the assignor, on account of a debt due to the assignee, carries 
 with it a mortgage which secures a debt due the assignor. Such assignment 
 need not be recorded. 
 
 lb.— Goff V. Denny, D. C. 1857, 14 Leg. Int. 132, S. C. 2 Phila. 275. An 
 assignee of a mortgage is not bound to record his assignment. 
 
 Da,te— Acknowledgment. —Solms «. McCulloch, 1847, 5 Barr, 473. 
 Quxrr' whether a mortgage dated after the date of the acknowledgment is 
 tiie subject of record. 
 
380 MORTGAGE, MORTGAGOE AND MORTGAGEE. 
 
 lb.— Conclusiveness.— Parke v. Neely, 1879, 9 N. 52. The record of a 
 mortgage is not conclusive evidence of the date of the mortgage, and where 
 a purchase money mortgage vras recorded sixty-two days after the date on its 
 face, hut it appeared that the ackdovcledgment had been taken but two days 
 before recording and that the alderman before whom it was taken was one 
 of the witnesses there, were sufiicient facts to put one on inquiry as to the 
 real date of the mortgage. 
 
 lb.— lb.— Musser v. Hyde, 1841, 2 W. &. S. 314. Where the recorder en- 
 dorses one date on the back of a mortgage and another on the record of it, 
 the latter is conclusively the true date. 
 
 Defeasance. — Jaques v. Weeks, 1838, 7 W. 261. Where a mortgage con- 
 sists of a deed and a separate defeasance, the recording of the deed alone has 
 no effect and the whole is but an unrecorded mortgage. 
 
 lb. — Paige v. Wheeler, 1879, 11 N. 283. A defeasance may be recorded in 
 any book in the recorder of deed's ofiSce. 
 
 lb. — Separate. — Friedley v. Hamilton, 1827, 17 S. & R. 70. A mortgage 
 in which the defeasance is on u, separate paper, is not recorded unless JoWt 
 papers are recorded. 
 
 lb. — lb. — Copman v. Baccastow, 1877, 3 N. 363. Where a mortgage con- 
 i^ists of an absolute deed and a separate defeasance, and the former is re- 
 corded but the latter not, the mortgage is unrecorded. 
 
 lb. — Unrecorded. — Manufacturers' & Mechanics' Bank v. Bank of Penna., 
 1844, 7 W. & S. 335. Where the defeasance of a mortgage is on a, separate 
 paper and is not recorded, the effect is an unrecorded mortgage. 
 
 Judgment Creditor.— Semple v. Burd, 1821, 7 S. & R. 286. A mortgage 
 not duly recorded is postponed to a subsequent judgment creditor. 
 
 Laches. — Burke V. Allen, 1802, 3 Y. 351. A mortgagee who has not re- 
 corded his mortgage within six months cannot, by afterwards recording it, 
 defeat any rights which may have accrued to a third person who has not also 
 been guilty of laches. 
 
 Leasehold— Act of April 27, 1855.— Ladley v. Creighton, 1872, 20 S. 490. 
 Act April 27, 1855, Sec. 8 (P. L. 368) requiring a mortgage of a leasehold 
 interest to be placed on record together with the lease, is substantially complied 
 with by appending a copy of the lease as a schedule and referring to the 
 lease itself recorded with a prior mortgage. 
 
 Lien — When Begins. — Brooke's Ap., 1870, 4 S. 127. A mortgage is re- 
 corded and its lien commences the moment it is left for record and is en- 
 dorsed by the recorder. 
 
 lb. — ^Ib. — Wood's Ap., 1876, 1 N. 116. When a mortgage is entered in a 
 book in the recorder's office as having been left for record its lien begins. 
 
 Months.— Brudenell v. Vaux. 1794, 2 D. 302. The six months prescribed 
 by the legislature within which m^ortgages must be recorded are calendar 
 months not lunar. 
 
 Purchaser. — Earnest v. Cuthbertson, 1875, 6 W. N. C. 199. A mortgagee 
 is a purchaser within the meaning of the recording acts. 
 
 Unrecorded — Interest Never Paid. — McCmden's Est., D. C. 1878, 35 
 Leg. Int. 153, S. C. 12 Phila. 69. An unrecorded mortgage twenty-five years 
 old found among the papers of a decedent on wliich no interest was ever de- 
 manded or collected will not be enforced. 
 
 lb.— Trust— Knowledge of Cestui Que Trust.— Murphy v. Nathans, 
 1864, 10 Wr. 508. Where a mother purchases land and takes title in the 
 name of her daughter if the land be subject to au unrecorded mortgage of 
 which the daughter had knowledge but not the mother, the mortgage will 
 con tin ae a lien on the land. 
 
 lb. — Validity of. — Ijcvinz v. Will, 1788, 1 D. 431. A mortgage not re- 
 corded within six months is nevertheless good against the mortgagor. 
 
MORTGAGE, MOETGAGOK AND MOETGAGEK. 381 
 
 lb. — lb. — Britton's Ap., 1863, 9 Vfr. 172. An unrecorded, mortgage is 
 good against a subsequent judgment creditor who had notice of it before the 
 debt was contracted, for which the judgment was obtained. 
 
 lb. — lb. — Tryon v. Mun.gou, 1874, 27 S. 250. An unrecorded mortgage is 
 good against the heirs of the mortgagor. 
 
 lb.— McLaughlin v. Imsen, 1877, 4 N. 364. An unrecorded mortgage 
 binds the land in the hands of the heirs of the mortgagor. 
 
 XX. Rigftits and Duties of Mortsragor & M.ortgasce. 
 
 Account.— Talbot's Ap., 1885, 2 Ches. Co. E. 413, affirming iM 57. A 
 mortgagor or a grantor in a deed of trust is not liable to account for rents 
 and profits if he retain possession. 
 
 Agreement to Purchase — Trust. — Dollar Savings Bank v. Bennett, 1874, 
 26 S. 402. An agreement between a mortgagee and mortgagor that the 
 former in selling the land will buy it in and afterwards sell part of it to 
 satisfy his debt and reconvey the balance is nudum pactum and raises no trust 
 or enforceable contract. 
 
 Application of Purchase Money.— Bilyeu v. Gerstley, C. P. 1886, 43 
 Leg. Int. 26. A trustee of a mortgage who buys in the property at a sale 
 under the mortgage, holds as per.sonalty and may sell without there being 
 any liability to see to the application of the purchase money. 
 
 Assignment. — Morris v. Olwiue, 1854, 10 H. 441. A note was secured by 
 a mortgage. The mortgagor assigned for creditors. Held that the mortgagee 
 could claim his pro rata share under the assignment and proceed at the same 
 time on his mortgage, and the fact that the latter is foreclosed before his pro 
 rata share is paid, will not alter his rights. 
 
 Bid— Title.— Wells v. Vandyke, 1884, 15 W. N. C. 160. A mortgagor is 
 entitled to credit for a bid made by the mortgagee on a sale of the property 
 under the bond accompanying the mortgage although the bond being void 
 the sale passed no title. 
 
 lb.— Stoever v. Eice, 1837, 3 Wh. 21. A sale of mortgaged premises by the 
 sheriff to the mortgagee for a less sum than the debt, passes to the latter an 
 equitable title, though there is no deed executed and no money actually 
 passes, and there remains no estate in the mortgagor which can be taken by 
 a junior encumbrancer. 
 
 Chattels — Possession. — Fry v. Miller, 1863, 9 Wr. 441. A chattel mort- 
 gage is valid if the mortgagee take such possession as is consistent with the 
 character of the things mortgaged. 
 
 Contribution — Sale in Parcels. — Carpenter v. Koons, 1852, 8 H. 222. 
 Where land subject to a mortgage is sold in different parcels and at different 
 times by the sheriff they are equally liable under the mortgage. 
 
 Consideration— Mechanic's Lien— Injunction —Deacon v. Harris, C. 
 •P. 1880, 8 W. N. C. 403, S. C. 37 Leg. Int. 232, 14 Phila. 59. One who has 
 a mechanic's lien is entitled to a decree enjoining a mortgagee who was 
 given mortgages without consideration ^vhich were uuidu to cut oiit mechanic's 
 liens, from assigning the same. 
 
 Defence— Terre Tenant— Mistake in Name.— Wilson v. Jones, C. P. 
 1878, 6 W. N. C. 157. A slight mistake in the proper name of a mortgagor 
 as written in a mortgage is no ground of defence by a terre tenant. 
 
 Eminent Domain. — Patterson's Case, C. P. Allegheny, 1879, 27 Pitts. L. 
 J. 73. When mortgaged property is taken under the right of eminent do- 
 main, the mortgagee is entitled to the damages to the extent of his debt. 
 
382 MOKTGAGE, MOETGAGOE AND MOETGAGBE. 
 
 Estoppel— Eriction by Paramount Title— Purchase Money.— Stein- 
 
 hauer v. Witman, 1815, 1 S. & R. 438. A mortgagor is not estopped from 
 showing as defence to a scire facias an eviction by a title paramount of part 
 of the mortgaged premises. 
 
 Execution— Mortgagee's Interest. — Rickert v. Madeira, 1829, 1 R. 325. 
 A mortgagee's interest cannot be taken in execution. 
 
 Expiration— Payment Before.— Kohler's Petition, C. P. 1881, 9, W. N. 
 
 C. 527. A mortgage payable "in five years" cannot he paid off before the 
 expiration of that term unless the mortgagee agrees thereto. 
 
 Fraudulent— Validity of— Gill «. Henry, 1880, U N. 388. A mortgage 
 given to defraud creditons is neverthele-ss valid against the mortgagor es- 
 pecially if it finds its way into innocent hands. 
 
 Grantor — Interest. — Anderson v. Griffith, 1882, 1 Ches. Co. Rep. 447. 
 One who guarantees the assignee of a mortgage that part of it shall be paid 
 is liable for the interest pro tanto. 
 
 Improvements by Mortgagee.— Harper's Ap., 1870, 14 S. 315. The 
 general rule is that a mortgagee will be allowed for necessary repairs but not 
 for improvements, but where both parties understood the transaction as an 
 absolute sale, it seems reasonable and just to include in the account improve- 
 ments made in good faith by the mortgagee in possession when supposing 
 himself to be the absolute owner. 
 
 Injunction — Waste. — Martin's Ap., 1887, 3 Montg. Co. L. Rep. 75. An 
 inj unction will lie to restrain the mortgagor from committing waste by dig- 
 ging and removing sand and stone from the mortgagee's premises. 
 
 lb.— Sale.— Hauserman i. Millett, C. P. 1876, 2 W. N. C. 570. The 
 holder of a bond and mortgage who has bid in the mortgaged property for 
 more than the amount of the mortgage, but who has refused to comply with 
 the sale will be enjoined from proceeding to sell other property. 
 
 Instalments — Default. — Robinson v. Loomis, 1865, 1 S. 78. A proviso 
 in a mortgage payable in instalments that on default a scire facias should 
 issue "for thewhole amount at such time remaining unpaid," makes, on de- 
 fault, all instalments collectible, future as well as past. 
 
 Insolvent Mortgagor— Cut Timber— Title.— Angler v. Agnew, 1881, 2 
 Out. 587. The vendee of cut timber from an insolvent mortgagor acquires a 
 good title against the mortgagee. 
 
 Insurable Interest. — Gtrevemeyer v. Southern Mutual Fire Ins. Co., 1869, 
 12 S. 340. A mortgagee has an insurable interest. 
 
 Insurance— Holding as Security — Premium. — Hollis v. Spring Garden 
 Ins. Co., C. P. 1878, 35 Leg. Int. 290, S. C. 12 Phila. 821. A mortgagee 
 holding a permanent insurance as security is entitled to the return premium 
 upon the property being sold for less than the mortgage debt. 
 
 lb.— Sale— Return Premiums.— Rafsnyder's Ap., 1879, 7 N. 436. A 
 mortgagee to whom a permanent insurance has been assigned as security is 
 entitled to the return premium on a sale being made of the mortgaged 
 premises which puts an end to the insurable interest of both himself and 
 the mortgagor. 
 
 Judgment— Attacking.— Association v. Magnire, C. P. 1875, 1 W. N. C._ 
 613. A mortgagee cannot attack a judgment against his mortgagor. 
 
 lb.— lb.— CoUey v. Latimer, 1819, 5 S. & R. 210. Where a judgment has 
 
 been entered on a mortgage on two nihils it cannot be impeached by the 
 
 ' mortgagor in an action of ejectment brought by the purchaser on the mor1> 
 
 gage, although it may appear from the evidence that the mortgagor was in 
 
 possession of the land at the time of the issuing of both writs. 
 
 Landlord — Mortgagee in Possession — Payment. — O'Harra »>. Baylis, 
 
 D. C. 1859, 16 Leg. Int. 69, S. C. 3 Phila. 357. Where a landlord becomes 
 a mortgagee in possession of his tenant's leasehold, he cannot be held an- 
 
MOETGAGB, MOETGAGOK AND MOETGAGEB. 383 
 
 swerable without proof that the mortgage debt has been paid or that he has 
 abused the trust. 
 
 lb.— Trespass.— Myers v. White, 1829, 3 R. 353. Tenants under a mort- 
 gagor cannot be treated as trespassers by the mortgagee, nor can the latter 
 demand the rent of them as there is no privity, the mortgage being looked 
 on as a mere security. 
 
 Leasehold— Act of April 27, 1855.— Gill v. Weston, 1385, U Out. 313. 
 A leasehold mortgage under the Act of 27th of April 1855, is given the same 
 force and effect as a mortgage of real estate, and personal property embraced 
 in such mortgage cannot be renewed by the lessee and mortgagor, and if re- 
 nevfed may be followed by the mortgagee wherever found, notwithstanding 
 the mortgage be not yet due. 
 
 lb. — Improvements— Covenant not to Assign. — Luckenbach v. Briok- 
 enstein, 1843, 5 W. & S. 145. A mortgage of improvements on a leasehold 
 estate by the lessee to his lessor under a lease containing a covenant not to 
 assign, is valid against creditors. 
 
 Lunatic— Cook v. Parker, D. C. 1861, 18 Leg. Int. 53, S. C. 4 Phila. 265. 
 A mortgage by a lunatic cannot be enforced even when his lunacy is confined 
 to one channel and does not impair his power to transact business. 
 
 Mistake — Record — Revival. — Reap v. Battle, 1887, 4 Kulp, 455. Where, 
 in consequence of a mistake, the record failed to disclose the revival of a 
 judgment, an innocent mortgagee will not be made to suffer. 
 
 Orphans' Court Sale— Purchase— Interest.— Terry's Est., 0. C. 1878, 
 33 Leg. Int. 461, S. C. 13 Phila. 298. A purchaser of property at orphans' 
 court sale subject to a mortgage takes subject to accrued interest thereon. 
 
 Parties — Account. — Land's Ap., 1886, 2 Amer. 456. Where a mortgagor 
 or trustee is liable to account to three jointly and not to either severally, a 
 bill in equity for an account filed by one alone should be dismissed for want 
 of proper parties. 
 
 lb.— Damage.— Schuylkill Nav. Co. v. Thoburn, 1821, 7 S. & R. 411. The 
 mortgagor is the one entitled to sue for damages caused by the exercise of 
 the right of eminent domain. The mortgagees cannot interfere before judg- 
 ment. They might, perhaps, claim afterwards by a motion to take the 
 money out of court. 
 
 lb. — Partition. — Long's Ap., 1874, 27 S. 151. A mortgagee of an undi- 
 vided interest is not entitled to be made a party in the partition. And after 
 partition his mortgage follows his mortgagor's separate share. 
 
 Partners— Infant.— Smith v. Eisenlord, D. C. 1857, 14 Leg. Int. 316, S. 
 C. 2 Phila. 353. A mortgage given by partners, one of whom is an infant, 
 is void as to the latter and good as to the others. 
 
 Personal Liability. — Baum v. Torkin, 1885, 14 Out. 572. A mortgage, 
 nnless it contains an express covenant to that effect, is not an instrument 
 which imparts any personal liability for the money it secures. The mere 
 taking of a mortgage does not necessarily operate as an extinguishment of 
 the claim it secures. 
 
 Possession. — Fluck v. Replogle, 1850, 1 H. 405. A mortgagee can recover 
 possession from the mortgagor. 
 
 lb. — Adverse. — Martin v. Jackson, 1856, 3 C. 514. For adverse posses- 
 sion to be efficacious against a mortgagee, it must be clear, distinct and 
 unequivocal. 
 
 lb. — Conditions. — Soper •u. Guernsey, 1872, 21 S. 219. A mortgagee 
 cannot recover possession before condition broken where there is a stipulation 
 to the contrary, or where the intention of the parties appears otherwise. 
 
 lb. — ^Mortgagee in. — Wilson v. Shoenberger, 1859, 10 C. 121. A mort- 
 gagee in possession has no rights against a purchaser under a prior judg- 
 ment. 
 
384 MOKTGAGE, MOETGAGOE AND MOETGAGEE. 
 
 lb— Right to.— Hirst's Est., O. C. 1881, 38 Leg. Int. 276. The English 
 doctrine that a mortgagee is entitled to possession and mesne profits is 
 adopted in this State only where there is no express or implied contract to 
 the contrary. 
 
 lb. — Waste. — Givens V. McCalmont, 1835, 4 W. 460. A mortgagee in 
 possession is chargeable with waste. He will also be charged rent for the es- 
 tate as it was when he took it, and if he has made improvements he will be 
 charged rent for them after they have paid for themselves. 
 
 Principal and Surety— Joint Owners.— Stroud v. Casey, 1856, 3 C. 471. 
 Where adjoining owners give a joint mortgage on their two properties and 
 one afterwards conveys to the otlier for a nominal consideration there is no 
 evidence that the latter is surety for the former. The presumption is that 
 they are equally liable. 
 
 Purchase — Confidential Relation — Foreclosure.— McHenry's Ap., 
 1869, 11 S. 432. A. sold to B. an undivided half of lands taking a mortgage 
 for the unpaid purchase money. He leased from B. his interest. After the 
 lease was determined and the last instalment on the mortgage overdue and 
 unpaid, A. foreclosed the mortgage and bought in the interest of B. In a 
 suit by B. against A. to enforce a reconveyance it was !ield, that there was 
 no such relation of confidence either as mortgagee, lessee or co-tenant as 
 prevented A. from foreclosing without personal notice, or from purchasing 
 the property at the sale. 
 
 lb.— Terre Tenant— Estoppel.— Schnepf's Ap., 1864, 11 Wr. 37. A 
 purchaser of mortgaged premises who, being the terre tenant, has had an op - 
 portunity to defend a scire facias on the mortgage, is concluded by the ver- 
 dict upon it, as are his mortgagees. 
 
 Rent Charge.— Weidner V. Foster, 1830, 2 P. & "W. 23. A mortgage of a 
 rent charge is a security only, and the tenant is safe in paying the rent to 
 the mortgagor, unless the mortgagee demands payment to himself. 
 
 Sale — Part of Land Subject to Mortgage.— Martin's Ap. 1882, 39 
 Leg. Int. 236. Where a party sells part of real estate subject to mortgage 
 or judgments, that remaining in his hands if of sufficient value, must free 
 the whole charge of such mortgage or judgment. 
 
 lb.— Sheriff's— Subject to Lien.— Zeigler's Ap., 1860, 11 C. 173. The 
 courts will enforce an express condition made at the time of a sherifi''s sale 
 that the purchaser shall take subject to the lien of a mortgage which would 
 otherwise be discharged. 
 
 Sheriff— Payment by Mistake.— Cross v. Stahlman, 1862, 7 Wf. 129. A 
 mortgagee cancelled the bonds on receiving payment by the sheriff. But 
 the sheriff recovered the money, the payment having been made under a 
 mistake of the law. Held the mortgagee could recover on the mortgage. 
 
 Statute of Limitations. — Frear v. Drenker, 1848, 8 Barr, 520. The ad- 
 missions of the mortgagor that the debt is unpaid will avail against the tsrre 
 tenants, there being no evidence that they were at the time parties in interest. 
 
 Taxes— Mortgagee in Possession. — Shoemaker v. Bank, C. P. 1881, 39 
 Leg. Int. 81, S. C. 15 Phila. 297. A mortgagee in possession must pay cur- 
 rent taxes. 
 
 lb.— lb.— Shoemaker v. Commonwealth, 1881, 11 W. N. C. 284. A mortr- 
 gagee in possession must pay current taxes. 
 
 Tender— Ejectment— Account.— Wharf v. Howell, 1813, 5 Bin. 499. A 
 mortgagor may bring ejectment for the mortgaged premises without first 
 tendering the amount due if he thinks the rents and profits received by the 
 defendant equal this amount. In order to do justice between the parties it 
 is necessary that the account be brought down to the time of trial. 
 
 lb. — Interest. — German Fair Hill Building Assoc, v. Metzgar, C. P. 1876, 
 3 W. N. C. 204. Bringing suit on a mortgage does not relieve the mortgagee 
 of the duty of tendering interest thereon when the same falls due. 
 
MORTGAGE, MOETGAGOE AND MORTGAGEE. 385 
 
 lb. — Pleading. — Lanning V. Smith, 1841, 1 Pars. 13. A mortgagor who 
 files a bill against his mortgagee, must oflfer to pay debt iuterest and costs 
 and pray especially for a decree allowing him to redeem. It will not be 
 made under a general prayer for relief. 
 
 Title— Mistake as to Property.— Green v. Scarlett, 1858, 3 Gr. 228. 
 Where a mortgage sued out to judgment a scire facias on one mortgage and 
 by mistake another property on which he held a similar mortgage was sold, 
 the purchaser got no title. 
 
 Trustee— Sale.— Wood v. Allabach, C. P. Luzerne, 1882, 1 Kulp, 391, S. 
 C. 10 Luz. L. Eeg. 180. The fact that a mortgagor is a trustee does not 
 affect the right of the mortgagee to sell out the interest of the former. 
 
 lb.— Surcharging.— Supplee's Est., O. C. 1886, 1 Pa. Co. C. Eep. 458. A 
 trustee under a will who has been allowed payments of interest on a mort- 
 gage on the trust estate, and who pays off the same when it shoul d have 
 been paid by the personal estate of the testator, will be surcharged with the 
 latter amount but not with the amounts paid for interest and allowed, and 
 will be allowed commissions and expenses. 
 
 Usury. — Turner p. Calvert, 1824, 12 S. & R. 46. A mortgagee who has 
 secured an usurious mortgage is entitled to recover thereon the amount actually 
 loaned with legal interest. 
 
 Warrants— General. — Tryon v. Munson, 1874, 27 S. 250. One who had 
 taken out an, indescriptive warrant gave a mortgage on " all those lands sur- 
 veyed or about to be surveyed under the warrants." Held that the mort- 
 gage bound the lands when surveyed. 
 
 XXI. Satisfaction of Mortg-age. 
 
 Act of April 13, 1791.— Henry V. Sims, 1835, 1 Wh. 187. Act April 13, 
 1791, which provides for entering satisfaction of a judgment for debt or 
 damages, extends to a judgment upon a scire facias sur mortgage for the 
 amount due upon the mortgage. 
 
 Act of March 31, 1823— Out of State.— Brewer's Ap., 1883, 8 Out. 417. 
 Under Act March 31, 1823 (P. L. 216), providing for the satisfaction of mort- 
 gages by the common pleas, where they have been paid and the raortgagee.s 
 have removed from the State, it is necessary to show more than that at the 
 time of the hearing the mortgagee resided outside the State. 
 
 Agreement as to Widow's Share — Purchase Money.— My ton's Ap., 
 1883, 3 Penny. 211. An agreement was.made between an administrator, the 
 widow and the purchaser of property of the estate who had given a morl^ 
 gage to secure a balance of the purchase money, to. the eifect that the share 
 of the widow should remain ju the hands of the purchaser who should pay 
 her the interest for life and the principal on her death to those entitled, the 
 administrator thereupon entered satisfaction of the mortgage referring to 
 this agreemeiit, nineteen years afterwards the purchaser made an assignment 
 for creditors and in a contest between the widow and the creditors it was 
 held in the lower court that the mortgage should be reinstated as to her 
 share and this was affirmed by a divided court. 
 
 Advances on Second Mortgage — Promise. — Brewer's Ap., 1884, 42 
 
 IjCg. Int. 47. Where one has advanced money on a second mortgage on the 
 promise that a first mortgage shall be satisfied equity will compel satisfac- 
 tion. 
 
 Amount of Payment. — Bedford Street Mission (in re), C. P. 1874, 1 W. 
 N. C. 100. One wishing a mortgage marked satisfied must pay enough into 
 court to cover the whole amount then due and whatever costs and interest 
 may accrue pending a jury trial which the mortgagee may demand. 
 25— EQUITY. 
 
386 MOETGAGE, MOETGAGOE AiSfD MORTGAGEE. 
 
 Assignment — Choses in Action— Commission. — Theyken v. Howe Co., 
 1885, 42 Leg. Int. 405, S. C. 16 W. N. C. 421. Where one takes an assign- 
 ment of a mortgage under an agreement that commissions due by him to the 
 mortgagor shall be applied thereon, the mortgage is in equity satisfied pro 
 tanio, and a subsequent assignee takes it subject to such equity. 
 
 Bill for — Averments. — Owens v. Owens, C. P. Susquehanna. 1879, 1 C. 
 P. Rep. 15. A bill for the satisfaction of a mortgage must set forth who is 
 the legal holder and that tended of the legal charges has been made to the 
 mortgagee, besides the fact of tender of payment and refusal. 
 
 Bond— Judgment. — Morris v. Brady, 1840, 5 Wh. 541. The entry of 
 satisfaction of a judgment on a bond secured by mortgage on a like bond 
 being given by the grantee of the. mortgaged premises sulaject to the mort- 
 gage does not invalidate the mortgage. 
 
 Conveyance— Release.— Blim v. "Wilson, D. C. 1862, 19 Leg. Int. 324, S. 
 C. 5 Phila. 78. A mortgagor -who has conveyed the mortgaged premises and 
 who has executed a release of all his claims against the mortgagee is, never- 
 theless, entitled to have satisfaction of the mortgage entered upon paying 
 the mortgagee the consideration which actually passed at the time the mort- 
 gage was given, though that amount be less than the face of the mortgage. 
 
 Damages for not Entering. — Haubert v. Haworth, 1875, 28 S. 78. A 
 mortgagor, the mortgage being paid, may recover damages from the mort- 
 gagee for not entering satisfaction of record. 
 
 Entering.— Day v. Day, 1883, 41 Leg. Int. 289. The fact that there is 
 an entry ot satisfaction to a mortgage does not protect one purchasing the 
 property. He should demand to seethe accompanying securities. 
 
 lb.— Mistake.— Brown v. Henry, 1884, 41 Leg. Int. 195, S. C. 15 W. N. 
 C. 385, 31 Pitts. L. J. 483. The mistaken entry of satisfaction of a mort- ■ 
 gage on the record is not an actual satisfaction. 
 
 Evidence. — Brown v. Henry, 1884, 10 Out. 262. An entry of satisfaction 
 of a mortgage on the margin of the record and attested by the recorder is 
 not conclusive as against the mortgagee, even in favor of a tona fide pur- 
 chaser, and it may be shown that the entry was made by an unauthorized 
 person upon the record of the wrong mortgage. And in this case there was 
 laches on the part of the mortgagee. 
 
 Fraud by Agent. — Lancaster v. Smith, 1871, 17 S. 427. A mortgagee is 
 not bound by a fraudulent entry of satisfaction by his agent, if he has done 
 nothing to also mislead an innocent purchaser. 
 
 Husband and Wife.— McClaughry v. McClaughry, 1888, 6 Crura. 477. A 
 mortgage securing a sum payable yearly during life to the mortgagee and an- 
 other sum yearly payable to his wife after his death, may not be satisfied in 
 full by the mortgagee himself. 
 
 lb. — McKinney v. Hamilton, 1865, 1 S. 63. A mortgage given to secure 
 part of the purchase money of a wife's separate estate sold by her, named 
 the husband as one of the mortgagees. Held that payment to him would 
 not satisfy the mortgage, and also that an entry of satisfaction by him was 
 •without effect. 
 
 Insurance — Beceipt. — Louden v. "Waddle, 1881, 2 Out. 242. Quiere, 
 whether an insurance by a mortgagee of his interest in the premises mort- 
 gaged is an Insurance of his debt, and, therefore, whether in case of loss, a 
 receipt by him of that amount from the insurance company is a satisfaction 
 of the mortgage ? 
 
 Jurisdiction. — "Walsh v. Leonard, C. P. Luzerne, 1878, 8 Luz. L. Reg. 
 282. Equity has jurisdiction to decree the satisfaction of a mortgage fully 
 paid but remaining unsatisfied. 
 
 Loss of Mortgage.— McMullin's Pet., C. P. 1875, 1 "W. N. C. 403. The 
 court upon application by a mortgagee and the owner of land setting forth 
 that an old mortgage which had been satisfied was lost but not marked 
 
MORTGAGE, MORTGAGOR AND MORTGAGEE. 387 
 
 satisfied, ordered publication of notice to all parties interested therein before 
 satisfaction would be ordered to be marked on the record. 
 
 lb.— Barnes' Petition, C. P. 1879, 7 W. N. C. 128. In proceedings to ob- 
 tain satisfaction of lost mortgages the court will not allow publication to be 
 dispensed with, on motion of all the parties before the court, since it is in- 
 tended to benefit parties who have not had notice. 
 
 Mistake. — Binney's Ap., 1887, 1 Crum. 188. An executor had power to 
 satisfy a certain mortgage, but by mistake satisfied a different one. The 
 purchaser of the property upon which the wrongly satisfied mortgage was 
 alien, without notice of the mistake, cannot file a bill in equity to recover 
 damages for the mistake out of the estate of said executor. 
 
 lb.— Brown v. Binney, C. P. 1886, 43 Leg. Int. 118, S. C. 17 W. N. C. 
 401, 1 Pa. Co. C. E. 432. Where a mortgagee by mistake enters satisfaction 
 of the wrong mortgage, that act is such a fraud upon innocent parties who 
 subsequently suffer that the statute of limitations does not begin to run 
 until the fraud is discovered. 
 
 Order of Orphans' Court.— Kelly's Est., O. C. 1877, 4 W. N. C. 576. 
 Where a mortgage had been given under an order of the orphans' court, but 
 after it was recorded and before the coijsideration was paid the mortgagee re- 
 fused to take it because of prior encumbrances, the court refused to order it 
 to be satisfied, the mortgagee having incurred expenses. 
 
 Parties Entitled to. — Assurance Co. v. Power, C. P. 1877, 34 Leg. Int. 
 408, S. C. 12 Phila. 377. Under Act April 3, 1851 (P. L. 871) the mortgagor 
 is the only one entitled to pay the amoOnt of the mortgage into court and 
 a decree of satisfaction entered, the terre tenant is not authorized to do it by 
 the act. 
 
 Parting With Interest. — Roberts v. Hafstead, 1848, 9 Barr, 32. An en- 
 try of satisfaction by a mortgagee after he has parted with his interest will 
 not harm a prior purchaser of that interest as against the mortgagor. 
 
 Payment Into Court.— Hofmann's Est., 0. C. 1884, 14 W. N. C; 563. 
 Payment of the amount of a mortgage into court and a decree for satisfac- 
 tion thereof will not be allowed if there is a dispute as to whether the mort- 
 gage is yet due. 
 
 Proof— Coates v. Roberts, C. P. 1857, 14 Leg. Int. 77, S. C. 2 Phila. 244. 
 Equity will not decree a mortgage to be satisfied however old it be, unless 
 proved to have been paid. 
 
 lb.— Ex Parte.— Gnnther's Petition, C. P. 1880, 9 W. N. C. 191. Under 
 Act June 11, 1879, the court ordered the cancellation of an old mortgage on 
 ex parte proof, the mortgagee (an association) having been many years out of 
 existence and its principal officers dead. 
 
 lb.— lb.— Broomall's Est., 1883, 2 Ches. Co. E. 133, 1 Del. Co. R. 548. 
 One petitioning ex parte to have an old mortgage marked satisfied, must 
 prove either actual payment or such lapse of time as presumes payment. 
 
 XXII. ^Vliat Constitutes a lUortsase. 
 
 Advances to Vendee. — May v. Fepler, 1874, 6 Leg. Gaz. 196. An agree- 
 ment under which one advances to a vendee under articles the money with 
 which to complete the purchase, and as security for repayment takes title in 
 his own name, constitutes a mortgage. 
 
 Agreement— Defeasance— Usury.— Paige v. Wheeler, 1879, 11 N. 283. 
 In an action on a paper which purports to be an agreement for the purchase 
 of land, the defendant may show by parol that it is but a defeasance to a 
 deed made by him the same day, and that the transaction was put into this 
 form to evade the usury laws. 
 
388 MOETGAGE, MOETGAGOU AND MOETGAGEE. 
 
 lb.— Judgment Creditor— Trust.— Walsh v. Rice, C. P. Lackawanna, 
 1878, 1 Lack. L. Rec. 62. An agreement by a jadgment creditor to buy in 
 his debtor's property and hold it as security for reimbursement creates a trust 
 or mortgage which equity will enforce. 
 
 lb. — ^Parol — Consideration. — Bennett v. Dollar Savings Bank, 1878, 6 N. 
 382. A parol agreement without consideration that a mortgagee would sell 
 the land, buy it in and hold it as security for his original debt and i;(i.sts 
 raises neither a trust or a mortgage. 
 
 lb. — Part Payment. — Houser v. Lament, 1867, 5 S. 311. A. bought land 
 at orphans' court sale under an agreement to let B. have it upon paying him 
 what it cost him. B. made a part payment, and A. mshing to realize con- 
 veyed to C. for the amount due by B. Held C. 's estate was but a mortgage. 
 
 lb. — Purchase Money. — Fessler's Ap., 1874, 25 S. 483. A vendee agreed 
 with a third party, that the latter should pay the balance of the purchase 
 money and take the title as security until repaid for his advances. Held 
 to be a mortgage of the vendee's equitable estate. 
 
 lb.— Reconveyance.— Stafford v.. Wheeler, 1880, 12 X. 462. Where a 
 debtor conveys his property by absolute deed to one who promises to satisfy 
 the debts and reconvey the property upon being reimbursed, the Act of l^f-jC 
 does not apply since even if the transaction raises a trust and not a mortgage, 
 it is a resulting trust and within the exception. 
 
 lb. — lb. — Stoever v. Stoever, 1823, 9 S. &R. 434. A written agreement, 
 made the same day as a deed, reciting that the latter ^^ as given for a certain 
 debt due from the grantor to the grantee, and stipulating that the grantee 
 will not sell or mortgage the property for three years and three months and 
 will then deliver up the deed on receiving the amount due on the debt, and 
 providing that if it so happens that the property has to be sold within that 
 time, the amount of the debt shall first come out of the proceeds, and the 
 balance shall be paid to the mortgagor, or the deficit be made up by him — 
 converts the deed into a mortgage. But if the debt is about equal to the 
 value of tlie premises, and the property is not redeemed in the stipulated 
 time, and the grantor brings ejectment on which judgment is entered by 
 agreement which also provides that the grantor shall have another period in 
 which to redeem, and in default of that the judgment is to be executed, and 
 the grantor fails to redeem, whereupon the judgment is executed and the 
 grantee takes possession and makes improvements, the grantor acquiescing, 
 the mortgage is virtually foreclosed and the equity of redemption gone. 
 
 lb. — lb. — Kelly c. Thompson, lS:iS, 7 W. 401. An agreement to recon- 
 vey on repayment of the purchase money and interest within one year, made 
 five days after an absolute deed, does not convert the transaction into a mort- 
 gage in the absence of proof that it was so intended originally, there being 
 evidence that the money passing was a fair price for the land. 
 
 lb.— Eedemption.— Allegheny E. E. i. Casey, 1875. 29 S. 84. A debtor 
 conveyed all his land to his creditor under an agreement or trust that they 
 should be valued, and all but twice the amount of the debts should be re- 
 >nveyed to the debtor, that the creditor should patent the land and convey 
 liack to the debtor half the land, it being farther provided that after this 
 last division the debtor might have thirty days to redeem the whole by pay- 
 ing his debts and costs in full. Hdd to be an absolute conveyance in satis- 
 faction of the debts and not a mortgage. The power of redemption was but 
 a check given to the debtor on a false valuation. 
 
 lb.— lb.— Hiester v. Maderia, 1842, 3 W. & S. 384. An agreement be- 
 tween plaintiff and defendant at a sheriff's sale that the property should be 
 struck down to the former, and that the defendant should have three months 
 within which to redeem the same by paying the debt and costs is a mortgage. 
 
 lb.— Trustee's Sale.— ^IcClurken ». Thompson, 1871, 19 S. 305. A. held 
 land as trustee for certain creditors, offered it at public s;ile, but declined 
 the price bid unless he could have the right to redeem it within a year. The 
 
MOKTGAGE, 3IOKTGAGOB ASP MOKTGAGEE. o-fV 
 
 deed ami the agreement were executed the same day. Held that they con- 
 stimted a mortgage. 
 
 Articles to Give Deed.— Brown i. NTickle, 1S47, 6 Barr, 390. Articles 
 to give a deed in two yeais on payment of $140. with an undated agreement 
 on the back (with the same witnesses) that the rendee would cancel the 
 articles on being lepaid the amount paid by him and interest within two 
 yeais, hdd to constitate a mortgage. 
 
 Assignment of Articles of Sale.— Guthrie r. Kahle, l>ti:i. 10 Wr. 331. 
 One holding article of sale for undated land, assigned the same as secnrity. 
 there being a separate paper in the nature of a defeasauce. The assignee 
 paid taxes, etc., and recovered &om a trespa^er for cutting timber. Held 
 that he was a mortgagee in posession and must account for profits including 
 this recoTerr. and therefore the mortgagor had no action against the tr^- 
 posser. 
 
 lb. — Secnrity. — Corpman r. Backestow, C. P. Danphin. 1S71, 2 Feais. 
 199. An assignment of a deed of land as collateral security is a mortgage. 
 
 lb. — lb. — Rnsseirs Ap., 1S.5<). 3 H. 319. An assignment to secure a debt 
 of the rights of a rendee under arricles, is a mortgage of his interest in the 
 land and if not recorded will be postponed to snbeeqaeDt judgments. 
 
 lb- — lb. — ^Kenports r. Boynton, ISt-. 5 Crnm. 306. An alignment by a 
 vender of the purchase money mortgage tt^ether with all his interest and 
 I^^ estate in the land as collateral seturity creates but a mortgage, which, 
 howcTer, is liable to the lien of a judgment, and the holder of the judg- 
 ment may reTive against the land- 
 
 1b. — tiaSlsSer. — Longhery s Ap., IS^, 37 Leg. Int. 341. Where one to 
 -whom a bond and mortgage have been assigned hand them back to the as- 
 signor with some verbal tinderstanding, but afterwards testifies that he in- 
 tended it as an absolute transfer it will so operate. 
 
 Burden of Proof — Haines r. Thompson, 1~72, 2(3 S. 434. A. agreed tii 
 buy property of B. The deed was tendered and reftised. A year later it 
 was again tendered and accepted and the same day an agreement signed to 
 allow the vendor to repurehas-- within four years at an advance oi $"2,000. 
 proridfd the property is not previoas'.y sold. The evidence was to the efiect 
 tiiat the purchase money was equal to the value of the land. Hdd that the 
 burden of proof was upon one claiming that the papers constituted a mort- 
 ga^ 
 
 Chattels — Secording. — Clow r. Woods. 1519, 5 S. & E. 275. A mort- 
 gage of chattels is fiaadnlent and void against a bona fide creditor when the 
 mortgage is not recorded, the mortgagor remains in possession and no de- 
 livery actual or symbolical took place. 
 
 CSonditional Sale. — Eandom i. .Schwartz. 179.5, 1 Y. 579. A mortgage 
 can only be turned into a conditional sale by clear proof or necesary impli- 
 cation that such was the intention of the parties. 
 
 lb. — John's Ap., l^So. 6 Out. 59. An in.strnment executed by a bnsband 
 to his wife selling her his interest in a certain estate with the privilege of 
 lepnichasing it at her death i.s not a mortgage but a conditional sale which 
 cannot be redeemed except on the happening of the event st ipnlated. 
 
 lb. — McClint.Tck t. McCUntock, 1869. 3 Brews. 76. One who completes a 
 jHuchase for another under an agreement that on being repaid he will convey 
 tD him the title holds as mortgagee only. 
 
 Conveyance as Security. — Danzissen's Ap., 1S73, 23 S. 65. A convey- 
 ance as security is a mortgage, although the mortgagee was to procure tu 
 money which w;is to be applied to the mortgagor's debts, at a future time 
 and ftom a third person, ' 
 
 lb.— Agreement to Pay Debts.— Sweitzers Ap., 1S72. 21 S. 264. .\ 
 eonveyance of land to one tn raise money on and pay off the debts of the 
 pastor and to reconvey within a definite time upon being reimbnised, is 
 
390 MOKTGAGE. MOETQAGOB AND MOETGAGEE. 
 
 a mortgage although the transfer was effected by means of a sheriff's sale 
 and the agreement rested in parol. 
 
 lb. — Kellum v. Smith, 1859, 9 C. 158. A conveyance to a creditor to secure 
 him both as to the present debt and as to future advances is but a mortgage. 
 
 lb. — McKinney v. Kheem, C. P. Venango, 1872, 4 Leg. Gaz. 85. A con- 
 veyance of land abf^olute on its face but for the purpose of security is a mort- 
 gage, and even when followed by a parol sale of the equity of redemption is 
 not a binding conveyance unless the latter sale has been taken out of the 
 statute of frauds by part performance. 
 
 Covenant to Reconvey. — Colwell v. Woods, 1834, 3 W. 189. A sale of 
 land in fee simple with a covenant to reconvey in a year on payment of 
 principal and interest and the first vendee not to have possession is a mortgage 
 and not a conditional sale. 
 
 lb.— Debtor and Creditor.— Callahan's Est., 0. C. 1880. 9 W. N. C. 253, 
 S. C. 37 Leg. Int. 434, 13 Phila. 381. A conveyance by a debtor to a cred- 
 itor in extinguishment of a debt is not turned into a mortgage by a promise 
 to reconvey, but if it is also stated to be as security for an outstanding obli- 
 gation the presumption that the transaction is a mortgage is conclusive. 
 
 Deed Absolute on Face. — Stewart's Ap., 1881, 2 Out. 377. A deed ab- 
 solute on its face will not be decreed a mortgage on ■ the testimony of the 
 complainant alone, contradicted by the defendant although the consideration 
 is inadequate. 
 
 lb. — Consideration. — Frick's Ap., 1878, 6 N. 327. An absolute deed 
 vpas made to one who executed an instrument declaring that the considera- 
 tion which he had paid was the money of certain creditors of the grantor 
 aud that he would make a deed to them when required. Held that the deed 
 was absolute. 
 
 lb.— Lance v. Lehigh Coal Co., C. P. 1883, 40 Leg. Int. 278. A deed ab- 
 solute on its face will not be turned into a mortgage or a trust by proof of 
 friendly relations existing between the parties thereto and that the grantee 
 expressed an intention to benefit the other in case he made a profit. 
 
 lb.— Parol Evidence.— Todd v. Campbell, 1858, 8 C. 250. To change an 
 absolute deed into a mortgage by parol proof, evidence must be given of 
 facts and circumstances which show such an intention to have existed. Mere 
 declarations are only sufficient when they prove such facts. 
 
 lb.— lb.— Maffitt V. Eynd, 1871, 19 S. 380. Act April 22, 1856. does not 
 prohibit the changing by parol evidence of a deed absolute on its face into a 
 mortgage. 
 
 lb.— lb.— Perry v. Perry, 1874, 6 Lan. B. 113, S. C. 31 Leg. Int. 372, 22 
 Pitts. Leg. J. 62, 2 Scr. L. T. 17. A deed absolute on its face may be shovm 
 by parol to be a mortgage. 
 
 lb.— Pre-existing Debt.— Null et al. v. Fries, 1885, 14 Out. 521. An ab- 
 solute conveyance of land in consideration of a ^pre-existing indebtedness 
 may be shown to have been intended as a mortgage if the debt survive. The 
 mere fact that the grantee executed articles of agreement giving grantor an 
 option to repurchase is insufiBcient if the debt has been cancelled. 
 
 lb. — Shreve v. Wheeler, 1880, 38 Leg. Int. 23. A conveyance absolute on 
 its face by one who holds the legal title to one who has advanced money to 
 a third person who was the real owner, accompanied by a verbal promise to 
 convey to this third person upon payment of the debt is a mortgage. 
 
 Deed and Defeasance.— Wilson v. Shoenberger, 1858, 7 C. 295. It is a 
 conclusion of law that a transaction consisting of a deed and a defeasance 
 executed on the same day is a mortgage. 
 
 lb. — Directors of the Poor v. Royer. 1862, 7 Wr. 146. An absolute deed 
 recorded, with a separate defeasance not recorded, the grantee having a power 
 of sale at the direction of the grantor, is plainly a mortgage, and the equitj 
 of redemption is bound by a judgment. 
 
MOETGAGE, MOETGAGOE AND MOKTGAGKK. 391 
 
 lb. — Eeitenbaugh v. Ludwick, 1858, 7 C. 131. Parol evidence is admissi- 
 ble to show that a deed and a defeasance of even date (though the latter was 
 really executed a mouth after the former) constitute a mortgage. Semhle 
 even that the evidence was unnecessary. Likewise it is proper to show by 
 parol that a paper on its face a release of the equity of redemption, was in- 
 tended only to preserve certain rights of third persons, and upon proof it 
 will be so limited in efifect. 
 
 Deed as Security. — Winton v. Mott, C. P. Luzerne, 1875, 4 Luz. L. Reg-. 
 71, S. C. 2 Scr. L. T. 57. A deed of land given as security for a debt is in 
 equity a mortgage though it be expressed that it is not redeemable. 
 
 Deed Prior to 1881.— Logue's Ap., 1883, 8 Out. 136. The rule that 
 deeds made before 1881, can be shown to be mortgages by parol applies to 
 sheriff's deeds, and the finding of a master's ' ' that the evidence preponder- 
 ated strongly in favor of the plaintiff, and established beyond any reason- 
 able doubt, to the master's satisfaction, that the transaction was a mortgage" 
 affirmed by the lower court will not be disturbed except for flagrant mistake. 
 
 Defeasance. — Kerr v. Gilmore, 1837, 6 W. 405. Where a deed and a de- 
 feasance are executed between the same parties on the same day before the 
 same witnesses is always a mortgage, although as in this case, the deed was 
 drawn and delivered before the defeasance was spoken of. 
 
 lb.— Consideration — Laches. — Dimond v. Enoch, 1798, Add. 356. 
 Where a sale is made and possession taken under it, and on another paper a 
 defeasance is executed conditioned on the payment of a bond within five 
 months, the court will not strain hard to construe the transaction, a mortgage, 
 especially when the price paid was a fair one and performance was not ten- 
 dered for ten years. 
 
 lb. — ^Evidence. — Sankey V. Hawley, 1888, 3 Crum. 30. Since the Act of 
 June 8, 1881, P. L. 84, a written defeasance, signed by the grantee but un- 
 acknowledged and unrecorded, though contemporaneous with the execution 
 and delivery of a deed absolute on its face, will not be admitted to convert 
 such deed into a mortgage. 
 
 lb. — ^Form of. — Pearce et ux. v. Wilson et al., 1885 , 1 Amer. 14. A con- 
 veyance of land with an agreement, condition or stipulation incorporated 
 therein that on payment of the money the same shall become null and void 
 or cease and determine, or become of no effect, or that the estate granted 
 shall be reconveyed, is a mortgage, and the form of defeasance if in writing, 
 is immaterial. 
 
 lb.— Redemption.— Johnston v. Gray, 1827, 16 S. & E. 361. A defeas- 
 ance with the word "assigns" struck out, namely giving the mortgagor and 
 his executors only the power of redemption, is inconsistent with the nature 
 of a mortgage and the restriction is void. 
 
 lb. — Penna. Co. v. Austin, 1862, 6 Wr. 257. To turn an absolute sale into 
 a mortgage there must be a defeasance of some kind proved, and that defeas- 
 ance must be to the grantor. 
 
 lb. — Pearson v. Sharp, 1886, 5 Amer. 259. Although a deed may on its 
 face appear to be indefeasible an oral defeasance may by proper proof be es- 
 tablished. 
 
 Deposit of Deeds.— Edwards v. Trumbull, 1865, 14 Wr. 509. Where 
 title deeds are deposited with one to whom is given a blank power of attor- 
 ney to sell the land, and this person executes a paper in the nature of a de- 
 feasance and afterwards fills up the blank in the power of attorney to a 
 third person and has a conveyance made to himself, the whole transaction 
 constitutes a mortgage. 
 
 lb. — Luch's Ap. , 1863, 8 Wr. 519. The following instrument was recorded 
 in a deed book: "I have this day left with A. B. a deed for black aCre as 
 collateral security * * * and promising should I fail to pay the note to 
 make A. B. a deed to black acre." Held to be a mortgage, and, therefore, an 
 unrecorded mortgage, its record in the "deed book" being a nullity. 
 
392 MORTGAGE, MOBTGAGOIt AND MOUTGAGEB. 
 
 Equity of Redemption.— Harper's Ap., 1870, 14 S. 315. An agreement 
 to allow the vendor of real estate to redeem within three years hy the pay- 
 ment of |500 plus the price, made contemporaneously with the sale, makes 
 the whole transaction a mortgage and the mortgagor's right is not barred at 
 the end of nine years, the Act of April 22, 1856, not applying. 
 
 Evidence. — McGinity V. McGinity, 1869, 13 S. 38. In cases where a re- 
 sulting trust or the conversion of a deed into a mortgage is attempted to be 
 made out by parol evidence the evidence must be such as would satisfy the 
 conscience of a chancellor. 
 
 lb.— For Jury.— Odenbaugh v. Bradford, 1870, 17 S. 96. Evidence that 
 defendant promised to hold land as security only and that the land was 
 -worth two or three times as much as the consideration, sufficient to allow a 
 case to go to the jury to find whether a deed absolute on its face was in 
 reality a mortgage. 
 
 lb.— Parol.— De France v. De France, 1859, 10 C. 385. A deed fourteen , 
 years old and absolute on its face not converted into a mortgage by loose con- 
 versations about reconveyance, where, at the time it was executed the grant«e 
 declared he would have nothing to do with a mortgage, although the consid- 
 eration was only one-third of the value. 
 
 lb.— lb.— Hariley's Ap., 1883, 7 Out. 23. A deed made prior to 1881 may 
 be turned into a mortgage by parol proof which is clear, precise and indubit- 
 able, and. parol proof may be such although there is contradictory evidence. 
 
 lb. — Hamet v. Dundas, 1846, 4 Barr, 178. A judgment given by the 
 vendor at the time of a conveyance of the same amount as is mentioned in 
 the deed, is strong evidence that it is a mortgage. 
 
 lb. — Kuukle V. ^Volfersberger, 1837, 6 W. 126. A conveyance on its face 
 a mortgage cannot be turned into a conditional sale by extrinsic proof. 
 
 lb. — Kuutzler v. Eick, 1881, 1 Penny. 500. As against a purchaser at 
 sheriff's sale of a vendee's interest it takes the most explicit proof to turn 
 that interest into that of a mortgagee. 
 
 Intention — Security. — Appeal of William L. Lance, 1886. 2 Amer. 456. 
 "Where the intent is merely to pass property as a pledge for the payment of 
 a debt, the transaction may be regarded as a mortgage, but not so when the 
 grantee has the power to sell the premises, though the proceeds are to be ap- 
 plied on the indebtedness. 
 
 Interest in Land. — Berryhill v. Kirohner, 1880, 15 N. 489. A mortgage 
 by one who has no interest in land but the bare legal title is good for nothing. 
 
 Landlord and Tenant.— Kunkle v. Wolfersberger, 1837, 6 W. 126. The 
 relation of landlord and tenant is not inconsistent with that of mortgagor 
 and mortgagee. The fact therefore that the mortgagor rents of the mi>rt- 
 gagee for a stipulated sum and for a term certain does not rebut the fact that 
 the original transaction was a mortgage. 
 
 Lease. — Halo v. Schick, 1868, 7 S. 319. A debtor leased premises to his 
 creditor for a term certain, the rent to be applied on the debt, and the lessee 
 covenanting to surrender possession at the end of the term. Held not to be 
 a mortgage. 
 
 lb. — Bismark Building Assoc, v. Bolster, 1879, 11 N. 123. A mortgage of 
 personalty (a leasehold) must be followed by possession to be valid against 
 creditors. 
 
 Legatee's Interest. — Gray v. vSmith, 1834, 3 W. 289. There cannot be a 
 valid mortgage of the interest which a legatee has in the proceeds of land 
 directed to be sold for the payment of legacies. 
 
 Maxim. — Random v. Schwartz, 1795, 1 Y. 579. Once a mortgage always 
 a mortgage. 
 
 Power to Sell.— Lance's Ap., 1886, 17 W. N. C. 513. Where a grantee 
 has a power to sell the property for the purpose of paying the debt to him- 
 
MORTGAGB, MORTGAGOR AND MOETGAQEB — MUTUALITY. 393 
 
 self and also other liens there is no presumption of a mortgage and the trust, 
 if any, attaches to the proceeds. 
 
 Relation Must be Proved. — Emery v. Marshall, 1885, 42 Leg. Int. 39.'., 
 Where an attempt is made to convert a deed absolute on its face into a mort- 
 gage, it must appear that the relation of debtor and creditor existed between 
 the parties. 
 
 Bemainder. — Pratt v. McCawley, 1853, 8 H. 264. One entitled under a 
 deed of trust to an equitable fee simple in remainder, can charge it with a 
 mortgage in fee. 
 
 Seal.— Spencer v. Hayues, C. P. 1877, 4 W. N. C. 152, S. C. 34 Leg. Int. 
 140, 12 Phila. 452. Although an instrument not under seal may be iin 
 equitable mortgage, a scire facias cannot be issued thereon. 
 
 lb. — Woods V. Wallace, 1853, 10 H. 171. A mortgage without a seal is 
 valid, nor can it be changed by verbal evidence into a conditional sale. 
 
 Support— Estate Upon Condition.— Soper v. Guernsey, 1872, 21 S. 219. 
 A mortgage given to secure support to the mortgagee is more properly an es- 
 tate upon condition, and the support failing the estate of the mortgagor fails. 
 
 Title Deeds— Delivery of.— Shitz v. Dieffenbach, 1846, 3 Barr, 233. An 
 equitable mortgage by delivery of the title deeds is no more than a parol 
 mortgage and is not valid in Pennsylvania. 
 
 Title— Endorser of Notes.— Merkel's Ap., 1881, 10 W. N. C. 116, 13 
 Lan. B. 190. Where the legal title is conveyed to one who has endorsed 
 notes for the person who could claim a conveyance the title of the former is 
 that of a mortgagee only. 
 
 Trust.— Payne v. Patterson, 1874, 27 S. 134. After the plaintiff's land 
 had been sold by the sheriff, he got a friend of his to take the land off the 
 purchaser's hands and agree to reconvey to him (the plaintiff) upon receiv- 
 ing the price and interest. Held there was nothins; to raise either a trust or 
 a mortgage. 
 
 lb. — Hewitt V. Huling, 1849, 1 J. 27. A deed to A. for the use of B. upon 
 B.'s paying a certain sum, is not strictly a mortgage but a trust in which 
 the cestui que trust and trustee stand in exactly the same position as mort- 
 gagor and mortgagee with the same rights and remedies. 
 
 imiLXIKARIOUSlVESS. 
 
 See Practice and Pleading IV. 
 
 MUI^XIPLICITY OF SUITS. 
 See Jurisdiction. 
 
 MUXUALIXY. 
 
 Specific Performance. — Mason v. Kaine, 1869, 13 S. 335. One of Ihe 
 fundamental principles of equity (which is a part of our law) is that in 
 bills for specific performance there must be mutuality of remedy. 
 
 lb.— Dornan's Est., O. C, 1876, 2 W N. C. 522. Equity will not specifi- 
 cally enforce an agreement in favor of one who was not herself bound thereby. 
 
394 MUTUALITY — NOISE. 
 
 lb.— Monopoly— Restraint of Trade.— Philips v. Mining Co., N. P. 
 1870, 27 Leg. Int. 35, S. C. 7 Phila. 619. Equity will not specifically en- 
 force a contract wanting in mutuality, nor one creating a monopoly or re- 
 straint of trade. 
 
 lb.— Vendor and Vendee. — Finleyri. Aiken, 1854, 1 Gr. 83. A vendor 
 is entitled to specific performance against his vendee, the remedy is mutual. 
 
 Statute of Frauds.— Bush v. National Oil Eefining Co., 1875, C. P. 1 W. 
 N. C. 297. The fact that one has expended money on the faith of a verbal 
 promise to give a lease for five years, will not take it out of the statute of 
 frauds since there is no mutuality of remedy. 
 
 Trust.— Mason v. Kaine, 1870, 17 S. 126. Where the act of April 22, 
 1856, would bar a cestui que trust's right to enforce a trust, it will also bar 
 the trustee from enforcing the trust by suing for the purchase money which 
 the cestui que trust was to pay. 
 
 lb. — Tenants in Common. — McMurray's Ap., 1882, 5 Out. 421. Aparol 
 agreement between tenants in common that one shall buy in the property 
 as trustee for the others, which others shall assume certain liens, and upon 
 their payment be entitled to an absolute conveyance of a designated share, 
 constitutes a valid trust enforceable by either party against the other. 
 
 MUPflCIPAL CORPORATIONS. 
 
 See Injunction P. 
 
 NE EXEAT, 'WRIT OE. 
 See Husband and "Wife I. 
 
 I«E"W^ MATTER. 
 
 See Amendment II. 
 
 NE'W PARTY. 
 
 See Amendment II. 
 
 NISI PRIITS. 
 
 See Jurisdiction. 
 
 NOISE. 
 
 See Injunction ID. 
 
NOTICE. 395 
 
 NOTICE. 
 
 [See also Adjustment VII C (c) ; Assignment I, II ; Moetqage VII, 
 
 XIV ; PUKCHASEK III.] 
 
 I. In General. 
 II. What Amounts to Sufficient. 
 
 A. Generally. 
 
 B. Inquiry. 
 
 C. Lis Pendens. 
 
 D. Possession. 
 
 E. Eecording. 
 
 r. Outstanding Title and Encumbrances. 
 
 I. In Oeneral. 
 
 Actual and Constructive. — Speer v. Evans, 1864, 11 Wr. 341. One 
 having actual notice cannot complain of the want of constructive notice. 
 
 Bill in EcLuity — Appearance — Practice. — Shea v. Burke, C. P. Lu- 
 zerne, 1874, 3 Luz. L. Reg. 242. A bill in equity is irregular which omits 
 the notice on the back to appear within fourteen days. 
 
 Decedent's Estates— Husband and Wife— Trust.— Bigley et al. v. 
 Jones, trustee, 1886, 4 Amer. 511. Where lands of a decedent were sold by 
 order of court in proceedings in partition, and were purchased by the hus- 
 band of one of the heirs, who paid the purchase money less the amount his 
 wife was to receive, and the latter executed a release to the master who 
 made a deed to the husband alone. Held that a trust resulted in favor of 
 tlie wife to the extent of her interest in said real estate, (b) A mortgagee 
 of real estate, the title of which is regular on its face, is not affected by any 
 secret trust or equity of which he had n.) notice. 
 
 lb.— Pledge— Trust.— Wood v Ellis, C. P. 1878, 5 W. N. C. 427. One who 
 redeems for an executor stock belonging to the estate pledged by theexecutor 
 with a broker, and himself takes a pledge of the stock, is bound with notice 
 that the executor is pledging the assets of the estate to meet his own debts, 
 and cannot recover on his security. 
 
 Discovery— Removal of Goods. — Young v. Salber, C. P. 1876, 2 W. N. 
 C. 424. Where, pending an injunction for which the defendant has had 
 no notice, goods are removed, the court will decree that the defendaut make 
 discovery as to their whereabouts. 
 
 Ejectment— Act of April 14, 1851.— Roberts v. Orr, 1867, 6 S. 176. 
 Act April 14, 1851, providing for notice by advertisement in ejectment for 
 unoccupied lands, to enforce specific performance, must be strictly followed 
 and the record must show that the ejectment was for specific performance. 
 
 lb. — ^Practice. — Mnlliken V. Graham, 1873, 22 S. 484. In ejectment by 
 one claiming a prior equitable title, he may give in his evidence without 
 proving that the defendant had notice ; that part of his case comes in after 
 the defendant has shown himself a purchaser. 
 
 Evidence— Mechanic's Lien— Recording.— Beading v. Hopson, 1879, 
 9 N. 494. A purchaser of property at sheriff's sale is not allowed to show 
 by parol that a mechanic's lien on the property, though entered after a mort- 
 gage was recorded, was for work done previously, and therefore such a prior 
 lien as would discharge the mortgage. 
 
39() NOTICE. 
 
 Foreclosure — Parties. — ^Youngmau v. Elmira, &c., R. R., 1870, 15 S. 
 278. Encumbrancers who become such during the foreclosure of a mort- 
 gage, are not necessary parties to the bill for foreclosure, and yet are bound 
 by the decree, for they have notice. 
 
 Injunction— Taxation— Non-Eesident.— Miller v. Gorman, 1861, 2 Wr. 
 309. Where no notice or opportunity has been given by the supervisors to 
 non-residents to work out their road tax, an injunction will be granted to 
 restrain the collection of the tax by suit. 
 
 Judgments— Recording — Index— Priority. — Bichel'sAp., 1883, 2Ches. 
 Co. R. 213, S. C. 15 W. N. C. 234, affirming Perkins v. Nichols, 1 Ches. Co. R. 
 88. Between two judgment creditors, in the entry of both of whose judg- 
 nients the defendant's middle initial is omitted, the fact that the second is 
 indexed with the middle letter will not give him priority. 
 
 Knowledge of Agent.— Hood v. Pahnestock, 1839, 8 W. 489. Knowl- 
 edge obtained by one before he became another's agent, does not bind the 
 principal. 
 
 Mortgage — Defence. — Gulp v. Fisher, 1833, 1 W. 494. Where a mort- 
 gagor conveys the mortgaged premises and gives a bond of indemnity against 
 the mortgage, and the mortgage is afterwards enforced without notice to 
 him, he is, in an action against him on his bond, entitled to set- up s.ny de- 
 fence that he could have set up against the mortgage. 
 
 Principal and Agent. — Phillipsburg Savings Bank's Ap., 1881, 10 W. N. 
 C. 265. Where a mortgage is made to one who assigns it immediately to 
 another, which latter is really the lender of the money, the former is not 
 such an agent of the latter that notice to him binds this latter. 
 
 Priority of Liens— Judgment— Date.— De Witt's Ap., 1874, 26 S. 283. 
 The lien of a judgment recorded on a mortgage relates back to the date of 
 the mortgage, and when the mortgage had been satisfied but the judgment 
 related back to it, a purchaser takes subject to the lien. 
 
 Promissory Note — Antecedent Debt. — Bardsley v. Delp, 1879, 7 N. 
 420. One who receives a promissory note for an antecedent debt, takes it 
 discharged of all eq^uities between the original parties of which he had no 
 notice. 
 
 Purchaser— Assignment— Executor.— Parrish v. Brooks, 1872, 4 Brews. 
 154. One who in a private matter takes an assignment of stock from an ex- 
 ecutor as such, takes it with notice of equities. 
 
 lb. — Equitable Title. — Rhines v. Baird, 1861, 5Wr. 256 Qwaire, whether 
 a purchaser of an equitable title takes it subject to equities of which he has 
 no notice. 
 
 Tb. — Judgment. — Leonard's Appeal, 1880, 13 N. 168. A party about to 
 buy a judgment against one who has assigned for creditors, takes it with 
 constructive notice of facts which an inquiry of the assignee would have 
 disclosed. 
 
 lb.— Trust— Knowledge of Cestui que Trust.— Murphy v. Nathans, 
 1864, 10 Wr. 508. Where a mother purchases land and takes title in the 
 name of her daughter, if the land be subject to an unrecorded mortgage of 
 which the daughter had knowledge, but not the mother, the mortgage will 
 continue a lien on the land. 
 
 lb. — Unrecorded. — Muse v. Lettermau, 1825, 13 S. & E. 167. A judg- 
 ment creditor who buys in property on a sale under his judgment, takes it 
 subject to an unrecorded prior mortgage, notice of which was given by the 
 sheriff. In ejectment by the mortgagee against him such notice can be 
 given in evidence. 
 
 lb. — Sheriff's Sale. — Stewart v. Freeman, 1854, 10 IT. 116. A purchaser 
 of land at sheriff's sale is protected against an unrecorded conveyance by 
 the defendant, of which he had no notice, the defendant not having parted 
 ■with his possession. 
 
NOTICE. 397 
 
 lb.— Trust.— Dunning v. Reese, 1886, 4 Kulp, 168. The rule that if the 
 first purchaser has no notice, a second purchaser from him holds the land 
 discharged of a trust, even though he had notice, applies to a purchase at 
 . sheriff's sale under a mortgage. 
 
 Purchaser from Beneficiary. — Mellon v. Eeed, 1888, 8 Crum. 1. One 
 who purchases an interest in land from a beneficiary under a will, is affected 
 with notice of the provisions of the will, especially when the beneficiary is 
 not in possession. i 
 
 Recording— Conveyance— Mistake.— Sliffter v. Eetzloff, 1888, 20 W. 
 N. C. 303. A. conveyed one-half of a certain lot to B. , which deed was duly 
 recorded. It was subsequently discovered that the lot conveyed included 
 land upon which A. had buildings. By articles of agreement then entered 
 into it was declared that such portion of the land was not included in the 
 deed. These articles were never recorded. B. failed and C. purchased the 
 one-half lot from the assignee at public sale. C. brought ejectment against 
 A. for the land covered by the buildings. Held he might recover in the ab- 
 sence of notice. 
 
 SheriflPs Sale.— Barnes V. McClinton, 1831, 3 P. & W. 67. Notice given 
 at a sheriff's sale to one about to purchase or to his attorney, that another 
 than the defendant claims the land binds the purchaser, if it comes from a 
 source entitled to credit. 
 
 Trust — Conveyance. — Ker w. Kitchen, 1851, 5 H. 433. One having con- 
 structive notice of a trust who takes a conveyance in fee with a covenant 
 for quiet enjoyment, cannot, upon discovering the trust, defend against an 
 action for the purchase money, there being no breach of the covenant. 
 
 Usury — Assignment.— Duquesne Bank's Ap.. 1873, 24 S. 426. An as- 
 signee of a usurious mortgage is in no better position than the mortgagee, 
 with a certificate of no defence, if the assignee had notice of the usury. 
 
 Will— Defeating Title.— McAteer v. McMuUen, 1845, 2 Barr, 32. One 
 claiming under a devisee has notice of a subsequent devise in the same 
 will, which, by election, might defeat the title of the first devisee. 
 
 II. 'What Amounts to Sufficient. 
 
 A Generally. 
 
 Bank — Knowledge of President. — First Nat. Bank v. Peisert, 1882, 2 
 Penny. 277. Knowledge obtained by a bank presidenl; in the course of the 
 bank's business as to the character of a deposit, affects the bank with notice. 
 
 City— Obstructions.— McLaughlin v. Corry, 1875. 2 "W. N. C. 101. A 
 city will be charged with constructive notice of an obstruction in a high- 
 way which is of such long duration as to be generally observable. 
 
 Contempt.- Young r. Salber, C. P. 1876, 2 W. N. C. 394. An attach- 
 ment for contempt will not be granted against one who has had no notice 
 of the continuance of a special five day injunction. 
 
 lb.— Witthaus v. Wallace, C. P. 1876, 2 W. N. C. 618, S. C. 23 Pitts. L. 
 J. 199. An injunction havinjj been granted against a label similar in gen- 
 eral effect though slightly different in name, design and color, the defend- 
 ant is in contempt if he changes the color slightly and goes on with the busi- 
 ness. 
 
 Conveyances- Ground Rent.— McSurgg v. Morton, 1861, 3 Wr. 31. 
 The record of the conveyances of the land charged with ground rent being 
 of a separate estate, and not in the line of title of the owner of the rent, is 
 not notice to him. 
 
398 NOTICE. 
 
 Corporation— Knowledge of Director. — Pittsburgh Bank v. White- 
 head, 1840, low. 397. Knowledge of a material fact imparted by a di- 
 rector of a corporation at a regular meeting of the board, is notice to the 
 corporation. 
 
 Corporation— Stockholder — Title to Land.— Union Canal Co. v. Loyd, 
 1842, 4 W. & S. 393. One who is a stockholder in a corporation is not af- 
 fected with notice that it claims title to land. 
 
 Easement— Open Enjoyment of. — Randall v. Silverthom, 1846, 4 Barr, 
 173. The purchasers of a servient tenement take it subject to the easement, 
 the owner of the dominant tenement (who previously owned both) being in 
 open and notorious enjoyment of it. 
 
 Injunction. — Houston v. Heverin, G. P. Delaware, 1881, 1 Del. Co. R. 
 154, S. C. 2 Sch. L, R. 222. Although a preliminary injunction to restrain a 
 business alleged to be a nuisance be not granted, yet the bill gives the de- 
 fendant notice that thereafter he must proceed at his peril. 
 
 Levy and Sale. — Bechtel v. Hoffman, C. P. Berks, 1861, 1 Woodw. Dec. 
 130. A levy and sale of land appearing of record, is notice at least to parties 
 and privies. 
 
 Mortgage— Purchase-Money— Receipt — Recital] in. — Erb v. Myers, 
 C. P. 1886, 43 Leg. Int. 238, S. C. 18 W. N. C. 197. A recital in the re- 
 ceipt at the end of a deed that part of the purchase money is secured by 
 mortgage, is notice of a purchase-money mortgage. 
 
 lb. — lb. — Stickel V. Desh, 1882, 2 Penny. 303. A purchaser from one 
 whose deed shows by the receipt at the foot that its consideration was a 
 purchase- money mortgage, takes subject to that mortgage although it has 
 not been recorded. 
 
 Principal and Agent — Renting Lands— Title. — Lewis v. Bradford, 
 1840, 10 W. 67. The agent of the vendor for renting the land is such a 
 source that notice from him as to defects in the title binds the purchaser. 
 
 Purchaser — Certificate. — Walsh v. Stille, 1842, 2 Pars. 17. A purchaser 
 of stocks from one designated on the certificates " trustee " who makes no 
 inquiry as to the real ownership, stand only in the shoes of his vendor. The 
 form of the certificate was sufficient notice. 
 
 lb. — Fraudulent Conveyance— Deed Showing. — Johnson ». Harvey, 
 1830, 2 P. & W. 82. Where a deed in the chain of title shows that the con- 
 sideration of a conveyance from father to son was the payment of the judg- 
 ment creditors of the former and support for his life, a purchaser takes with 
 notice of the fraud on creditors. 
 
 lb. — Mortgagor and Mortgagee— Notes.— Day v. Day, 1883, 3 Penny. 
 294. Where a deed is made from a mortgagor to a mortgagee, in which the 
 latter covenants to pay the outstanding judgment notes which the mort- 
 gage has been given to secure, a purchaser of the property has notice of 
 these outstanding liens, although the mortgage has been satisfied of record. 
 
 Patent — Conclusiveness. — Woods v. Wilson, i860, 1 Wr. 379. A patent 
 though not conclusive against a prior title, is not, on account of its inconclu- 
 siveness, notice of a prior title. 
 
 Partition— Parties— Decree.— Thompson v. Stitt, 1867, 6 S. 156. One 
 not named in a petition for partition, and who has no notice of the proceed- 
 ing, is not bound by the decree of the orphans' court. 
 
 Partners- Trust Fund.— Guillou v. Peterson, 1879, 8 N. 163. Where a 
 partner lends the securities of a trust estate, of which he is trustee, to the 
 firm, and the fii-m converts them, the firm is liable to the cestui que trust, 
 and one who as to the partners is a mere special partner, but to the world a 
 general partner, is also liable to the cestui que trust, for the notice which the 
 trustee had of his limited liability does not in such a case bind the cestui 
 que trust. 
 
NOTICE. 399 
 
 Party Wall.— Hemboch's Ap, 1887, 44 Leg. Int. 112. A. and B. owned 
 adjoining lots. A.nbuilt a brick building on his lot, the wall extending up 
 to B. 's line but not over it. Half of tliis wall was sold to B. by an unsealed 
 paper. B. built a frame building on his lot and fastened it to the said wall 
 by iron spikes. A. 's property was sold by sheriff to C. without notice of 
 sale of wall. C. sold to D., who, before delivery of deed, was notified of B.'s 
 claim to the wall. B. took down the wooden building and erected brick 
 dwelling, using contested wall. D. filed a bill for relief^ which was granted 
 on ground that the frame building was not sufficient to put the parties on 
 notice 
 
 Proceedings de Lunatico Enquirendo.— Moore v. Hershey, 1879, 7 W. 
 N. C. 478. Qussre, whether proceedings de lunatico enquirendo, are construct- 
 ive notice to one-taking a promissory note that the maker is a lunatic. 
 
 Rumors. — Kerns v. Swope, 1833, 2 W. 75. Vague remarks by strangers 
 respecting defects in a title do not amount to notice. 
 
 ■ lb. — Mulliken v. Graham, 1873, 22 S. 484. Vague reports of strangers 
 are not notice, but information derived through one entitled to credit, is 
 notice, although he be not himself interested. 
 
 Secret Equities. — Scott v. Burton, 1840, 2 Ash. 312. A preliminary in- 
 junction will not be granted to enforce a right resting in parol, against a 
 bona fide purchaser, with showing clearly that he took with notice. Caveat 
 emptor does not refer to latent equities. 
 
 lb. — Stewart's Ap., 1881, 2 Out. 377. The fact that the consideration ex- 
 pressed in a deed is " valuable and sufficient," and the receipt at the end is 
 for $100, the property being worth many times that, is not sufficient to pat 
 a purchaser on inquiry as to a secret trust, 
 
 Taxes— Payment of.— Morey v. Herrich, 18)1, 6 H. 123. Mere assess- 
 ment and payment of taxes is not notice of an equity in land. 
 
 Trust— Purchase — Confidential delations. — Barrett v. Bamber, 1876, 
 31 S. 247. An attorney for a trustee of a ground rent bought in the prop- 
 erty at sheriff's sale for less than the amount of the judgment for arrears of 
 rent. Held that he bought as trustee for the trust estate, and that any claim- 
 ing under him had constructive notice from the record that he was trustee. 
 
 lb. — Deed— Recital in. — Kaine v. Denniston, 1853, 10 H. 203. A recital 
 in a deed made for a nominal consideration, that it is made in pursuance 
 and fulfilment of a trust reposed in the grantor by the grantee, is not no- 
 tice of a trust for any other person than the grantee himself. 
 
 Unincorporated Association — Knowledge of Member. — Stockdale v. 
 Keyes, 1875, 2 W. N. C. 201. Knowledge of member and director of an un- 
 incorporated association is notice to the latter though fraudulently con- 
 cealed. 
 
 JB. Inquiry. 
 
 Antedated Deed.— McCandless v. Blakeley, 1882, 12 W. N. C. r>10. The 
 mere fact that a deed is antedated will not put a subsequent grantee upon 
 inquiry as to the existence of an equitable title in the grantee prior to the 
 true date of the deed. 
 
 Facts — Putting One On. — Arthurs v. Bascom, 1871, 19 Pitts. L. J. 9. 
 "Whatever should put a party on inquiry amounts to notice, provided that 
 Inquiry would lead to knowledge. 
 
 lb. — Maul V. Eider, 1868, 9 S. 168. "Whatever puts one on inquiry 
 amounts to notice, provided inquiry becomes a duty, and, if prosecuted with 
 ordinary diligence, would lead to knowledge. 
 
 lb.— City Nat. Bank's Ap., 1879, 10 N. 163. "Where a deed and a mort- 
 
400 NOTICE. 
 
 gage are given on the same day and recorded at the same time, it is suffi- 
 cient to put a purchaser on inquiry that the mortgage is for purchase money. 
 
 lb.— Cohen's Ap., 1882, 11 Luz. L. Eeg. 13, S. C. 2 Knlp, 1, 29 Pitts. L. 
 J. 187. Whatever puts a party upon inquiry amounts to notice, provided 
 inquiry becomes a duty, and if reasonably pursued would lead to knowledge. 
 
 lb.— Lodge V. Simonton, 1831, 2 P. & W. 439. Whatever puts a party ■ 
 upon inquiry amounts to notice, provided inquiry becomes a duty, and witli 
 ordinary diligence would lead to actual knowledge. 
 
 Fraud.— Bryan's Ap., 1882, 5 Out. 389. A devisee had land sold by the 
 sheriif in order to divest a legacy, he afterwards procured a reconveyance 
 and then mortgaged to one having no actual notice of the fraud. Held that 
 the latter was not put on inquiry by the chain of title. 
 
 Recording — Judgment. — Kirk's Ap., 1878, 6N. 243. Where the record 
 of a judgment shows a special assignment to an attorney, and a general re- 
 lease of its lien by him with the stipulation that it is not satisfied, it is 
 enough to put a purchaser upon inquiry. 
 
 lb.— Mortgage— Date.— Parke v. Neeley, 1879, 9 N. 52. The record of 
 a mortgage is not conclusive evidence of the date of the mortgage ; and 
 where a purchase-money mortgage was recorded sixty-two days after the 
 date on its face, but it appeared that the acknowledgment had been takea 
 but two days before recording, and that the alderman before whom it was 
 taken was one of the witnesses, there were sufficient facts to put one on in- 
 quiry as to the real date of the mortgage. 
 
 C. Lis Pendetis. 
 
 Certiorari — Boad Case. — City of Phila. «. Kensington Turpike Co, C. P. 
 1881, 38 Leg. Int. 251. A decision by the Supreme Court upon a eerliorari 
 from the quarter sessions in a road case, had no effect on a bill in equity 
 pending in the common pleas. 
 
 Doctrine of. — Dovey's Ap., 1881, 1 Out. 153. The doctrine of ?w pendens 
 does not stand on the ground of notice, but on the principle that, pending 
 litigation, one of the parties cannot give rights to others which prejudice 
 his antagonist. 
 
 Ib.^Application o£ — Smuller v. Wilson, C. P. Dauphin, 1858, 1 Pears. 
 134. The doctrine of notice by lis pendens is not often applied in this State. 
 
 lb. — Choses in Action. — Diamond v. Lawrence Co., 1860, 1 Wr. 353. 
 The doctrine of lis pendens is applicable to choses in action as well as title to 
 real estate, and includes suits in equity as well as at law. Such suit is 
 notice after service of the siihi)oena. 
 
 Easement. — Walker v. Butts, 1795, 1 Y. 221. One purchasing land 
 pending an action to charge it with an eassment, takes subject to the ease- 
 ment. * 
 
 Ejectment. — Bolin v. Connelly, 1873, 23 S. 336. One purchasing land 
 for which an ejectment is pending, the action being indexed under Act 
 April 22, 1856, takes it with notice {pendente lite) and another ejectment 
 concludes him, being the second. 
 
 Foreclosure— Parties. — Youngman v. Elmira, &c., E. E., 1870, 15 S. 
 278. Encumbrancers who become such during the foreclosure of a mort- 
 gage, are not necessary parties to the bill for foreclosure, and yet are bound 
 by the decree, for they have notice. 
 
 lb. — Life Insurance Policy. — Raessler v. Temperance Mutual, 1887, 4 
 Lan. L. Rev. 233. The pendency of a bill in equity to cancel a policy of 
 insurance cannot be pleaded in a common law action to enforce the payment 
 of the policy. 
 
NOTICE. 401 
 
 Lunacy. — Moore V. Hershey, 1879, 9 N. 196. A lis penrlens is undoiibt- 
 cdly constructive notice in questions of title and property, V>ut that it should 
 be so, as to a man's mental condition, is very much to be doubted. 
 
 Partition. — Balrd v. Corwin, 1851, 5 H. 462. One receiving a convey- 
 ance of an heir's interest after partition commenced, need not receive notice 
 as to further proceedings. Lis pendens is notice of itself. 
 
 Promissory Note.— Kieffer v. Ehler, 1852, 6 H. 388. The doctrine of 
 lis pendens does not apply where a promissory note has been negotiated by 
 the payee after his creditor has served an attachment on the maker of the 
 note. 
 
 Scire Facias.— Anderson v. Love, 1883, 31 Pitts. L. J. 136, 137. The 
 pendency of a scire facias aur mortgage is notice to one purchasing the land 
 pending the trial. 
 
 JO. Possession. 
 
 Distinct and Notorious. — Mechan v. "Williams, 1864, 12 Wr. 238. Pos- 
 session to be notice of title must be notorious and unequivocal at the time 
 of the purchase by the party to be affected, mere occasional entries for min- 
 ing coal and the like do not amount to notice. 
 
 lb — Sailor v. Hertzog, 1838, 4 Wh. 259. Distinct and unequivocal pos- 
 session of land is notice to one dealing with the title of whatever claim the 
 possession may have. 
 
 Equitable Title.— Eowe v. Eeam, 1884, 14 W. N C. 293, S. C. 41 Leg. 
 Int. 136. Possession of land by one not in the line of title, is notice of his 
 equitable title to a purchaser or mortgagee 
 
 lb. — Declarations of Occupant.— Keel er r. Vantuyle, 1847, 6 Barr. 
 250. 'Possession is not notice of an equitable title where the possessor de- 
 clares that he owns no land. 
 
 Inquiry. — Jamison v Dimock, 1880, 14 N. 52. A purchaser is charged 
 with constructive notice of the rights of one in possession of whom he makes 
 no inquiry. 
 
 lb. — Leach v. Ansbacher, 1867, 5 S. 85. "Where one purchasing land 
 knows that the one in possession is there under a lease, he need inquire no 
 further. 
 
 lb.— Fraud.— Appeal of ToUes, 1885, 14 Out. 331. Possession of land by 
 a third person is sufficient to put an intended purchaser to a reasonable in- 
 quiry. But neither such possession nor notice from those in possession that 
 they had a suspicion of fraud in the title, is suflSoient to put such purchasejr 
 on inquiry as to the fact that the conveyance to his proposed grantor had 
 been fraudulently obtained, and was intended as a security for a debt made 
 in this form to defraud creditors. 
 
 Intruder. — "Wright v. "Wood, 1854, 11 H. 120. The possession of an in- 
 truder is not notice of the title of a stranger. 
 
 Joint — By Widow and Children. — Jackson v. McFadden, 1877, 4 "W. 
 N. C. 539. Joint possession of land by a widow and children of a decedent, 
 is constructive notice to a purchaser from the widow (who holds a deed) of 
 the title of the children. 
 
 Occupant's Title.— Harris r. Bell, 1823, 10 S. & E. 39. Possession is 
 notice of such title as the party may have. 
 
 lb.— McCulloth V. Cowher, 1843, 5 W. & S. 427. Possession of land is 
 notice of whatever title the occupant may have, unless he have a title on 
 record. 
 
 26 — EQUITY. 
 
492 NOTICE. 
 
 lb. — Woods D. Farmere, 1838, 7 W. 382. Possession of land is notice of 
 the possessor's title, whatever it be, unless he has registered some title, in 
 ■which case his possession will be held to apply to that only. 
 
 lb. — ^Hottensteiu v. Lerch, 1882, 8 Out. 454. The possession of one other 
 than the owner of the recorded title, is notice of his own title and that of 
 his landlord. 
 
 Puichase from One in. — Hood v. Fahnestock, 1845, 1 Barr, 470. Where 
 one buys land from a grantee, the grantor being in possession by his ten- 
 ants, he is affected with notice that the former grant was fraudulent and 
 void. 
 
 lb. — Sergeant v. Ingersoll, 1850, 3 H. 343. One contracting for an estate 
 with a party not in actual possession, purchases at his peril as to secret 
 equities. 
 
 lb. — Kerr v. Day, 1850, 2 H. 112. Where a purchaser buys land from 
 one not in possession, he has notice of any title the possessor may set up. 
 
 Sale — Representation — Estoppel. — Covert v. Irwin, 1817, 3 S. & B. 283. 
 One in possession of land being sold by the sheriff as the property of another, 
 who says nothing while others represent him to be the tenant of the defend- 
 ant, is estopped from setting up his title. 
 
 Secret Trust.— Scott v. Gallagher, 1826, 14 S. & E. 333. One purchas- 
 ing bona fide the legal title is not affected by a secret trust of which he has 
 not direct, express and positive notice. The possession and apparent own- 
 ership of the cestui que trust is not such notice. 
 
 E. Recording. 
 
 Acknowledgment— Mortgage. — Augier v. Schieffelin, 1872, 22 S. 106 
 The acknowledgment of a mortgage purported to have been in Erie county, 
 but was signed by a justice of Crawford county. Held that the record of the 
 mortgage was notice, as it was entitled to record. 
 
 lb.— Defective.— Barney V. Sutton, 1833, 2 W. 31. The record of a deed 
 lacking an acknowledgment, is not notice. 
 
 lb. — lb. — Heister «. Fortner, 1809, 2 Bin. 40. A defective acknowledged 
 deed is not constructive notice, although properly recorded. 
 
 Assignment. — Neede v. Pennypacker, D. C. 1872, 30 Leg. Int. 4, S. C. 
 9 Phila. 86. The record of an assignment of a mortgage is notice to pur- 
 chasers. 
 
 lb. — Judgment. — Henry V, Brothers, 1864, 12 Wr. 70. An assignment 
 on record of a judgment is not constructive notice thereof to the debtor. 
 
 lb. — ^Tb. — Eldred v. Hazlett, 1860, 2 Wr. 16. An assignment of a judg- 
 ment on the record is constructive notice to defendant as well as to others. 
 
 lb. — lb. — Bylin v. Eeichard, 0. P. Luzerne, 1872, 5 Lan. Bar. 17. An 
 entry on the record of a j udgment ' ' assigned to A. B. , " is not notice to the 
 debtor. 
 
 lb.— Sale.— Johnson V. McCurdy, 1877, 2 N. 282. A. executed a mort- 
 gage to B. and recorded it. A. kept possession of it and had B. assign it 
 lor value to the plaintiff, and afterwards, but before the assignment was 
 recorded, sold the land to the defendant, Seld that the defendant took sub- 
 ject to the mortgage. 
 
 Books — Kecorded in. — Glading v. Frick, 1878, 7 N. 460. In the absence 
 of statutory requirements, a recorder may record an instrument in any of 
 the books kept by him. 
 
 Conveyance After Deeds Recorded. — Grifan v. Henderson, 1871, 20 S. 
 275. A land company granted the land in dispute in 1808, and the same 
 
NOTICE. 403 
 
 land in 1816. In 1844 the second title came back into the company, all the 
 deeds were put on record. In 1851 the first title came into defendant's pos- 
 session and all the deeds were recorded. In 1854 the company conveyed to 
 plaintiff. Held plaintiff had constructive notice of defendant's title. 
 
 Conveyance— Index.— Schell v. Stein, 1874, l W. N. C. 69. A record 
 of a conveyance is notice if indexed in the particular book in which it is re- 
 corded, though admitted from the general index. 
 
 lb.— lb.— McHenry v. Stockwell, C. P. Delaware, 1883, 2 Ches. Co. E. 
 173, S. C. 2 Del. Co. R. 57. A deed properly recorded is constructive notice, 
 although not indexed in the name of the grantor. 
 
 Dedication of Land— Secretary of Commonwealth. — Davis u. Selden, 
 1857, 5 C. 316. A record of dedication of land in the office of the Secretary 
 of the Commonwealth is not notice to a bona fide purchaser. 
 
 Deed Executed Out of State.— Green «. Drinker, 1844, 7 W. & S. 440. 
 A deed executed and acknowledged outside this State, but recorded vrithln 
 the State, is not notice. 
 
 Deed— Memorandum Attached to. — McKean Co. v. Mitchell, 1860, 11 
 C. 269. A memorandum attached to a deed and recorded, but not entitled 
 to record because not acknowledged, is not constructive notice. 
 
 Docket— Memorandum.— Barlow v. Beall, 1852, 8 H. 178. The memo- 
 randum on the margin of the docket giving defendant's name, is not a part 
 of the record, therefore one purchasing from the vendee of the sheriff, who 
 was the attorney for the plaintiff iu the execution, is not affected with 
 notice of the trust. 
 
 Instrument Entitled to, Left with Recorder. — Croll v. Thomas, 1879, 
 7 "W. N. C. 138. An instrument entitled to record is notice under the law 
 from the time it is left with the recorder. 
 
 Judgment— Index. — Hamilton's Ap., 1883, 7 Out. 368. A judgment 
 against a firm indexed in the firm name, is not notice. 
 
 lb. — lb. — King V. King, 1883, 2 Ches. Co. K. 45. A judgment against 
 I. M. Indexed as J. T. M, is not constructive notice. 
 
 Lien— Unrecorded— Attorney and Client.— Smith's Ap., 1864, 11 Wr. 
 128. To affect a party with notice of an unrecorded lien, lie must have 
 actual notice, and notice to his attorney or one who afterwards becomes such, 
 is insufficient. 
 
 Mechanic's Lien— Initials.— Stott v. Irwin, 1883, 2 Ches. Co. R. 137. 
 A mechanic's lien entered up against a defendant without inserting his 
 middle initial, will be postponed to subsequent liens properly entered. 
 
 Mortgage. — Evans v. Jones, 1792, 1 Y. 172, The recording of a mort- 
 gage is constructive notice to all the world. 
 
 lb. — Fixtures. — Hoskin v. Woodward, 1863, 9 Wr. 42. A mortgage of a 
 machine shop includes all necessary fixtures ; and a mortgage being re- 
 corded, a purchaser of one of the machines takes it with notice of the mort- 
 gage. 
 
 lb. ^Index.— Wyoming Nat. Bank's Ap., 1882, 11 W. N. C. 567, S. C. 30 
 Pitts. L. J. 50. If a mortgage is left for record and actually recorded, it 
 will not be postponed by the circumstance that the recorder has failed to 
 index it. 
 
 lb.— lb.— Thompson v. Hay, C. P. Luzerne, 1862, 3 Lnz. L. Obs. 75. A 
 mortgage defectively indexed is not notice, and consequently the mortgagee 
 is postponed to a subsequent judgment creditor. 
 
 lb. — Purchase-Money — Agreement. — McLanahan v. Eeeside, 1840, 9 
 W. 508. The registry of a mortgage, to be notice, must exhibit it as a 
 whole ; therefore the registry of an agreement made between a vendor and 
 vendee, to the effect that the unpaid purchase-money should continue a lien 
 on the land, will not protect the vendor against subsequent judgment 
 creditors. 
 
404 NOTICE. 
 
 lb. — Receipt. — Steckel v. Desh, 1882, 2 Penny. 303. A purchaser (rom 
 one whose deed shows by the receipt at the foot that its consideration was 
 a purchase-money mortgage, takes subject to that mortgage, although it has 
 not been recorded. 
 
 lb.— Married Woman.— Stephens' Ap., 1878, 6 N. 202. A record of a 
 mortgage is notice to a married woman. 
 
 lb. — Recording— Discharge of Lien— Brownhock v. Ozias, 1-887, 2 Crum. 
 87. Where a mortgage executed in 1829 was assigned in 1855, and the as- 
 signment not recorded until 1883, and in the meantime the mortgaged pfop- 
 ■erty was sold by order of the orphans' court, the purchaser paying interest 
 ■on it, and subsequently conveying to another with the clause " subject to 
 the payment of a certain mortgage," and the latter purchaser continued to 
 piiy interest thereon until he conveyed the property, witliout reciting the 
 cluirge, accepting in- payment a purchase money mortgage, under which the 
 property was again sold in 1878. JFTeld that the charge in the first deed was 
 insufficient to affect the final iiurchaser with notice that the mortgage had 
 been kept alive. 
 
 lb. — Unrecorded. — Solms v. McCuUoch, 1847, 5 Barr, 473. Notice of an 
 unrecorded mortgage given at a sheriff's sale, binds the purchaser 
 
 lb.— lb.— Lahr's Ap., 1879, 9 N. 507, 1 L. T. N. S. 271. An unrecorded 
 mortgage can only be sustained against a subsequent judgment creditor by 
 showing that the latter had actual notice of it before he contracted the debt 
 on which the judgment was afterwards obtained. 
 
 Possession — Sheriff's Sale. — Goundie v. Northampton Water Co., 1847, 
 7 Barr, 233. One claiming land under a conveyance, and who has put his 
 deed on record before a subsequent deed is recorded, need not give notice 
 of his title to those in possession under the latter deed, or at a sheriff's sale 
 of that title. 
 
 Sheriff's Sale.— Moyer v. Schick, 1846, 3 Barr, 242. Notice of an un- 
 recorded conveyance given at a sheriff's sale, will affect the purchaser. 
 
 Statute of Limitations.— Maul i,. Eider, 1868, 9 S. 167. Act April 22, 
 1856, S. 6, limiting to five years, after a fraud is discovered, the enforcing 
 of a trust resulting from the fraud, putting a deed on record is not notice to 
 one not bound to search for it. 
 
 Two Grantees. — lightner r. Mooney, 1840, 10 W. 407. Where there 
 are separate grantees from the same vendor, neither of whom has put his 
 title on record within the six months allowed by law, the one who first puts 
 on record the title from the original vendor is preferred, and possession 
 taken under either title, or recording subsequent conveyances in the line 
 of either title does not alter this rule. 
 
 Unrecorded Deed and Mortgage.— Stickel v. Desh, 1882, 12 W. N. C. 
 1 30. A purchaser from one whose deed is unrecorded, is affected vrith notice 
 of an unrecorded mortgage mentioned therein. 
 
 Vague Description. — Banks v. Ammon, 1856, 3 C. 172. The record of 
 a deed in which the description is vague and indefinite, is not notice to a 
 subsequent purchaser that he is buying the same land. 
 
 Wrong County.— Kerns «. Swope, 1833, 2 W. 75. A deed recorded in 
 the wrong county is not constructive notice. 
 
 F. Outstanding Title and JEncwmbrances. 
 
 Rumors of — Fickes v. Ersick, 1828, 2 R. 165. If land is sold under an 
 execution, -without mention being -made by the sheriff of any encumbrance, 
 no loose talk among the bystanders as to a mortgage, will affect the pur- 
 chaser with it. 
 
NOTICE— OliLKJOli AND OBLIGEE. 405 
 
 . lb. — Miller v. Creason, 184:5, 5 W. & S. 281. Vague information of an 
 outstanding title furnished by one not interested is not notice. 
 
 lb. — Kerns v. Swope, 1833, 2 W. 75. Vague remarks by strangers re- 
 specting delects in a title do not amount to notice. 
 
 lb: — MuUiken v. Graham, 1873, 22 S. 484. Vague reports of strangers 
 are not notice, but information derived through one entitled to credit, is 
 notice, although he be not himself interested. 
 
 Ibi — Boggs V. Varner, 1843, 6 W. & S. 469. A bona* fide purchaser for a 
 valuable consideration is not to be affected by loose and vague evidence of 
 the existence of a prior title, if the former owner has neglected to record it. 
 
 Ibv — Jaques v. Weeks, 1838, 7 W. 261. Notice of a mere rumor of an out- 
 standing title does not make one a purchaser with notice so as to charge 
 him therewith. 
 
 KJUISANCE. 
 
 [See INJTTNCTION ID.] 
 
 Defenca to Payment for Land.— Cornell v. Green, 1823, 10 S. & E. 14. 
 One who purchases land aifected by an open nuisance, cannot set up its ex- 
 istence as an equitable defence in an action for the price of the land . 
 
 Individual Affected No More Than Public— Injunction.— Cumber- 
 land Valley Railroad Co.'s Appeal, 1879, 12 S. 218. One suffering individ- 
 ually no more than does the public generally, has no standing in a court of 
 equity to enjoin the nuisance, and a bill by such an one is demurrable. 
 
 Municipal Corporation — Atterney General. — Commissioners v. Long, 
 1845, 1 Pars. 143. A municipal corporation may be the complainant in a 
 suit in equity to suppress a nuisance. The Attorney General need not be 
 a party. 
 
 Public Nuisance— Private Citizen— Special Damage.— Philadelphia 
 and Gray's Ferry E. E. v. Philadelphia, 2 W. N. C. 39, S. C!. 33 Leg. Int. 
 64, 11 Phila. 358. Private citizens cannot come into equity with a bill to 
 restrain a public nuisance without avering special dainage. 
 
 lb.- Private Individual— Damage.— Perry v. Maurer, C. P. Luzerne, 
 1876, 5 Luz. L. Eep. 97. Where a public nuisance is no more damage to a 
 complainant than to the public generally, his bill must be dismissed. 
 
 lb.— lb.— Attorney General.— Cox's Ap., 1882, 11 W. N. C. 571. An 
 obstruction to the highway cannot be remedied by a bill in equity by a pri- 
 vate individual ; for the public nuisance the remedy is by the Attorney 
 General ; for the private inconvenience the remedy is at law. 
 
 lb.— Public Authorities— Private Party. -Smiths. Gumming, 1851, 2 
 Pars. 92. A bill to enjoin a public nuisance may be filed by the publi<t 
 authorities of a municipal corporation, or by numerous individuals who arc 
 hurt thereby, or by a single individual in case of special damage to his per- 
 son or property. 
 
 OBLIGOR AXD OBL,IO£E. 
 
 See also Adjustment VII B. (a. ) 
 * 
 Defence— Assignment— Estoppel of Obligor.— Decker v. Eisenhauer, 
 1836, 1 P. & W. 476. Where the obligor of a bond silently stands by while 
 it is assigned, he is estopped from afterwards setting up any defence which 
 then existed, whether his silence proceeded from ignorance or design. 
 
406 OBLIGOR AND OBLIGBK — OKPHAKS' COURT. 
 
 lb.— lb.— Jean v. Herrold, 1860, 1 Wr. 150. An obligor in a single bill 
 with warrant of attorney, is not precluded from setting up a defence, unless 
 his acts have constituted an estoppel. 
 
 lb.— Bond— Assignee— Defence— Estoppel.— Weaver v. Lynch, 1855, i 
 C. 449. To estop the obligor of a bond from setting up a defence against the 
 assignee, there must be shown not only that he told the assignee that there 
 was no defence, but also that the assignee is not a volunteer. 
 
 Defence, Statement of no.— McMuUen v. Weuner, 1827, 16 S. & E. 18. 
 Statements by an obligor of a bond in the presence of an intended assignee 
 that he has no defence bind him. 
 
 JointObligors— Subrogation.— Buchanan's Est., 1883, 2 Ches. Co. R. 
 74, S. C. 15 Lan. B. 6. Where one of two joint obligees pays a debt which 
 the other was liable for in the first instance, and takes an assignment of the 
 instrument evidencing it, he is entitled to subrogation, but the transaction 
 is not considered an equitable assignment. 
 
 lb. — lb. — Greiner's Est., 1834, 2 W. 414. A surety who pays a debt is 
 entitled to subrogation to the securities, but a joint obligor is not ; he has 
 only his action for contribution. 
 
 OIL. 
 
 [See Injunction ID.] 
 
 ORDER. 
 
 [See Assignment I ; Dkceee.] 
 
 OFFICER. 
 
 [See Public Acts and Officers ; Injunction IP.] 
 
 ORPHANS' COURT. 
 
 [See also Issue ; Jurisdiction IIC ; Mortgage, &c. VII.] 
 
 I. In General. 
 II. Specific Performance. 
 III. Trusts and Trustees. 
 
 I. In General. 
 
 Appeal— Partition.— Gesell's Ap., 1877, 3 N. 238. No appeal lies from 
 an order of the orphans' court awarding an inquest in partition ; it is not 
 a definitive decree. 
 
 Appeal— Practice.— Commonwealth 0. The Judges, 1846, 3 Clark, 510, 
 S. C. 6 Pa. L. J. 190. The orphans' court being a court of equity, no writ 
 of error lies to the proceedings on an issue directed thereout to the common 
 
orphans' court. 407 
 
 Bill— Form of— Merits.— Stockton's Ap., 1870, 14 S. 58. The orphans' 
 ■court is a court of equity, and looks not at the form of a complaint but at 
 its merit. 
 
 Decree— Effect of— Parties— Notice. — Thompson ». Stiss, 1867, 6 S. 
 156. One not named in a petition for partition, and who has no notice of 
 the proceeding, is not bound by the decree of the orphans' court. 
 
 Guardian— Orphans' Court.- McCormick v. O'Rorke, c. P. 1875, 2 w. 
 N. C. 109. Where a guardian has obtained the discharge of another guar- 
 dian in the orphans' court on condition that he should settle an account, he 
 cannot then go into equity and pray for an account therein against this 
 same discharged trustee. 
 
 Jurisdiction— Extent of — Courtright's Est., 0. C. 1885, 16 W. N. C. 
 443. Under act May 19, 1874, giving the orphans' court power to grant in- 
 junctions, that court has no wider jurisdiction in that matter than have the 
 courts of common pleas. 
 
 lb. — Postlethwaite's Ap., 1871, 18 S. 477. The orphans' court, being a 
 court of equity, has complete jurisdiction of any matter presented to it, 
 and can decree in favor of the respondent, if that is right. 
 
 lb.— Dimock's Est., 1845, 3 Clark, 317, S. C. 5 Pa. L. J. 961. The or- 
 phans' court may exercise such chancery powers over sales under their order 
 as a chancellor would over sales made by a master appointed by him. 
 
 lb. — ^Remainderman Against Executor. — Mackinson v. Mackinson, 
 1854, 2 G. 286. 'The common pleas has no jurisdiction of a bill by a re- 
 mainderman against the executor of a life tenant to compel him to satisfy 
 arrearages of ground rent which accrued during the estate of the life ten- 
 ants ; the remedy is in the orphans' court. 
 
 Legacies Charged on Land. — Pierce v. Livingston, 1875, 30 S. 99. Act 
 February 24, 1834, S. 59, gives the orphans' court the powers of a court of 
 equity over legacies charged on land. 
 
 Marshalling Assets. — Gerhard's Est., C. P. Montgomery, 1872, 4 Leg. 
 Gaz. 74. The orphans' court marshals and distributes assets according to 
 principles of equity. 
 
 Mortgage. — Morgan's Ap., 1885, 43 Leg. Int. 283. A mortgage given, 
 under order of the orphans' court for payment of debts is not binding on 
 the heir unless regularly returned and confirmed. 
 
 lb.— Kelly's Est., O. C. 1877, 4 W. N. C. 576. Where a mortgage had 
 been given under an order of the orphans' court, but after it was recorded 
 and before the consideration was paid the mortgagee refused to take it be- 
 cause of prior encumbrances, the court refused to order it to be satisfied, the 
 mortgagee having incurred expenses. 
 
 Nature of. — Dundar's Ap., 1870, 14 S. 325. The orphans' court within 
 the limits of its jurisdiction, is strictly a court of equity, proceeding by pe- 
 tition and answer, and enforcing its decrees by attachment, sequestration 
 or execution, as the case may require. 
 
 lb. — Willard's Ap., 1870, 15S. 265. Theorphans' court in matters within 
 its jurisdiction, proceeds on the same principles as a court of chancery. 
 
 lb.— Woodward's Ap., 1861, 2 Wr. 322. The orphans' court is a court of 
 equity, and when it has before it the accounts of several parties with refer- 
 ence to the same estate, it will do justice, and is not bound by the techni- 
 <al rules of law. 
 
 lb.— Willard's Ap., 1870, 5 S. 265. The jurisdiction of the orphans' 
 court is entirely statutory, nor can consent give jurisdiction. It does not 
 extend to settling the matters that arise under a will which are brought be- 
 fore it in the form of a bill in equity. 
 
 lb. — Steffy's Ap., 1874, 26 S. 94. The orphans' court is a courtof equity, 
 and the proper practice in proceedings therein is by bill, answer, etc. 
 
408 OKPHANS' (!OUET. 
 
 Power, Extent of— Odd Fellow's Savings Bank's Ap., 1889, 8 Crum. 
 356. Act May 19, 1874, giving the orphans' court power to issue injunc- 
 tions is declaratory only, and the court can not only restrain the sale and 
 transfer of assets of the decedent's estate, but having the case in its grasp- 
 may duly administer justice in accordance with estaVjlished equitable rules. 
 
 lb. — Commonwealth v. Easer, 1869, 12 S. 436. The orphans' court is 
 armed with the powers of a court of equity to reach the consciences of par- 
 ties, guardians, sureties and everybody else having any knowledge of the 
 accounts or doings of the guardian, and can compel a production of books 
 and papers having relevancy to the matter of the trust, and then, alter a 
 settlement according to equity in such cases, it can enforce its decrees by 
 sequestration as well as by common law writs of execution. 
 
 lb.— To Order Sale.— Spencer v. Jennings, 1889, 8 Crum. 184. The or- 
 phans' court of the domicil of the decedent, is the only one with power 
 to order the sale or mortgage of real estate belonging to his estate therein 
 situate. 
 
 Recognizance— Act April 6, 1830.— Sheaffer's Estate, 1886, 6 Pa. Co. 
 C. Rep. 147. Where unencumbered real estate is sold and the purchaser 
 gives a recognizance in the orphans' court to secure the interests of the 
 widow and heirs of the vendor, and the vendee subsequently conveys to a 
 third party taking a purchase money mortgage, this latter party afterward.s 
 conveying to a fourth also taking a purchase money mortgage, and judg- 
 ments are recovered against the last vendee who executes an assignment lor 
 creditors under which the property is sold, the lien of the prior mortgages 
 IS not discharged since they are merely security for the debts. Act of April 
 6, 1830. The lien of the recognizance is however discharged. 
 
 Sale— Lien of Mortgage.— Bloomer's Est., 0. C. 1875, 2 W. N. C. 68, 
 S. C. 32 Leg. Int. 378, 11 Phila. 92. The lien of a mortgage is not dis- 
 charged by an orphans' court sale. 
 
 lb — Order for — Definitive Decree. — Robinson's Ap., 1871, 19 Pitts. L. 
 
 J. 40. An order for the sale of real estate, granted by the orphans' court, 
 is not a definitive decree. 
 
 lb. — lb. — lb. — Snodgrass' Ap., 1880, 15 N. 420. A decree of the orphans' 
 court ordering a sale of decedent's real estate to pay his debts, is not a 
 definitive decree, therefore no appeal lies. 
 
 lb.— lb.— lb.— Gesell's Ap. , 1877, 3 N. 238. No appeal lies from an order 
 of the orphans' court awarding an inquest in partition, it is not a defini- 
 tive decree. 
 
 lb.— Power Over.— DeHaven's Ap., 1884, 32 Pitts. L. J. 140. The or- 
 phans' court has full power over its own sales, and should not force a dis- 
 puted title on an unwilling purchaser. 
 
 lb. —Setting Aside— Lien Creditors.— Hannum' sAp., 1882, 2 Pennv, 
 102, S. C. 1 Ches. Co. Rep. 362 ; aff'g ibid, 297. An orphans' court sale 
 for the payment of debts will be set aside at the instance of a lien creditor, 
 even after confirmation, when it appears that the administrator was the 
 purchaser, although there was no fraud and the amount realized was suffi- 
 cient to satisfy all liens. 
 
 Secondary Evidence.— Sterrett's Ap., 1731, 2 P. & W. 419. The or- 
 phans' court, being a court of equity, may, if it think proper, receive sec- 
 ondary evidence. 
 
 Vendor and Vendee — Overpayment.— Ake's Ap., 1873, 1 Fost. 295. 
 The orphans' court has no jurisdiction to compel the estate of a deceased 
 vendor to repay a vendee an overpayment made by the latter to the dece- 
 dent in his lifetime. 
 
OEPHAKS' COUET. 409 
 
 II. Specific Perforiuance. 
 
 Attachment.— Chess' Ap., 1846, 4 Barr, 52. The orphans' court has 
 the authority of a court of chancery to decree, and, by necessary implica- 
 tion, to enforce by attachment, specific performance of a contract, 
 
 lb.— Boyle's Est., 0. C. Luzerne, 1884, 2 Kulp, 229, S. C.14Lan. B. 141, 
 11 Luz. L. Reg. 301. The orphans' court may decree specific performance 
 against a purchaser at its own sale, and enforce the decree by attachment. 
 
 Death of Defendant.— Finley v. Aiken, 1854, 1 Gr. 83. Where one of 
 the defendants in a case for specific performance is dead, the sole jurisdic- 
 tion is with the orphans' court. 
 
 lb.— Completion of His Part.— Yunck's Est., O. C. 1878, 35 Leg. Int. 
 431, S. C. 12 Phila. 151. The orphans' court has no jurisdiction to compel 
 specific performance by a vendee of a contract for the purchase of land from 
 one now dead, if the latter has completed his part. 
 
 Decedents' Contract.— Walker's Ap., 1884, 32 Pitts. L. J. 173. The 
 orphans' court has no jurisdiction to specifically enforce a contract between 
 a decedent and another, which besides being an agreement to convey, in- 
 volved questions of trust and account. 
 
 Decree— Notice. — West Hickory Association v. Reed, 1875, 30 S. 28. A 
 decree of specific performance by the orphans' court, where a decedent had 
 contracted to sell his land, is valid without notice to the widows and heirs. 
 
 Executors- Power in Will.— Bell's Ap., 1872, 21 S. 465. The orphans' 
 court has exclusive jurisdiction of cases of specific performance of sales of 
 land made by executors under a power in the will. 
 
 Interference by Court of Equity.— Bickley v. Biddle, 1859, 9 C. 276. 
 The orphans' court has full equity power over its sales, and equity will not 
 interfere in these matters to decree specific performance. 
 
 Overpayment by Vendee— Surplus.— Ake's Ap., 1873, 24 S. 116. The 
 orphans' court within its limited jurisdiction is a court of equity as to prin- 
 ciples and practise ; but it is not possessed of that general equity jurisdic- 
 tion which permits it, wl^en once rightfully possessed of a cause, to make 
 a complete end of the controversy. Therefore, in decreeing specific per- 
 formance it cannot, in case the vendee has overpaid the vendbr, order the 
 surplus to be repaid. 
 
 Partition.— Hove's Est., O. C, 1875, 32 Leg. Int. 135, S. C. 11 Phila. 63. 
 The orphans' court can enforce specific performance by the purchaser at a 
 sale under proceedings in partition. 
 
 Partnership— Death of Partner.— Wiley's Ap., 1877, 3 N. 270. Spe- 
 cific performance of the contract of partners, one of whom has died, should 
 be sought in the equity side of the common pleas, not in the orphans' court. 
 
 Principles Governing. — Brady's Ap., 1870, 16 S. 277. In proceedings 
 in the orphans' court to compel specific performance, the same principles 
 govern as in other courts of equity. 
 
 lb.— Brady's App., 1870, 16 S. 277. The orphans' court in decreeing spe- 
 cific performance of the contracts of decedents, acts entirely as a court of 
 equity. 
 
 Purchase— Title— Master's Report.— Kelly's Est., o. C. 1876, 2W. N. 
 C. 431 . The orphans' court will not compel a purchaser at its sale to com- 
 plete the purchase when the master reports that the title is bad. 
 
 Siesin of Decedent.- Bunn's Est., O. C. Luzerne, 1882, 1 Kulp, 205. 
 That a defendant's testator in a petition for specific performance in the or- 
 phans' court did not die siesed, does not oust the jurisdiction of the or- 
 phans' court. 
 
410 OBPHANS' COUET. 
 
 Title— Disputed.— De Haven's Ap., 1884, 33 Pitts. L. J. 140. The or- 
 phans' court has full power over its own sales, and should not lorce a dis- 
 puted title on an unwilling purchaser. 
 
 Trust— Account.— Walker's Ap., 1884, 32 Pitts. L. J. 173. The or- 
 phans' court has no jurisdiction to specifically enforce a contract between a 
 decedent and another, which besides being an agreement to convey, in- 
 volved questions of trust and account. 
 
 III. Xrusts and Trustees. 
 
 Act of June I4th, 1836.— Baird's Case, 1841, 1 W. & S. 288. Under the 
 act June 14, 1836, S. 15, the only case in which the orphans' court has ex- 
 clusive j uri&diction over a trustee, is where an exeeutor is appointed such 
 virtuti officii. 
 
 Control Over. — Bayley's Ap., 1869, 10 S. 354. The orphans' court as to 
 its jurisdiction over executors and trustees, is a court of equity. 
 
 lb. — Chew v. Chew, 1857, 4 C. 17. The orphans' court will not control 
 trustees in the exercise of a discretionary power in the absence of bad faith. 
 
 Principal and Agent — Account.— Delbert's Ap. No. 2, 1877, 2 N. 468. 
 One who has acted as agent for a trustee cannot, after the death of the 
 latter, be cited to account in the orphans' court. 
 
 Reconveyance — Conditional Agreement. — Walker's Ap., 1884, 41 
 Leg. Int. 387. Where a decedent has held property under a trust with a con- 
 ditional agreement to reconvey, the orphans' court has not jurisdiction to 
 decree the conveyance. 
 
 Sale— Wife Bidding at.— Dundas's Ap., 1870, 14 S. 325. The orphans' 
 court can permit the wife of a trustee to bid at his sale, but the sale will be 
 closely scrutinized, and in this case the trustees were surcharged the differ- 
 ence between the price paid and the value of the property at the time. 
 
 Testamentary Trustees— Control Over. — Hutchinson''s Ap., 1876, 11 
 N. 509. The orphans' court has power to control , testamentary trustees in 
 the exercise of their powers over real and personal estate. 
 
 lb.— lb.— Ebert's Ap., 1840, 9 W. 300. Act June 14, 1836, S. 15, giving 
 the orphans' court exclusive jurisdiction over trusts declared by will and 
 vested in the executor, does not apply to a trust vested by the will in A., 
 who, in another part of the will, is appointed executor. 
 
 lb. — lb. — Wheatley v. Badger, 1848, 7 Barr, 459. A. by a will was ap- 
 pointed " my executor and trustee." Held that his trusteeship was not mr- 
 tuli officii ; hence the orphans' court had no j urisdiction over the trust. 
 
 lb.— lb.— Eckles v. Stewart, 1866, 3 S. 460. Where heirs make a family 
 arrangement whereby the admistrator becomes their trustee, they cannot 
 proceed against him in the latter capacity in the orphans' court. 
 
 lb.— Settlement of Account.— Wimmer's Ap., 1835,1 Wh. 96. The 
 orphans' court has power to compel the settlement of his accounts by a tes- 
 tamentary trustee. 
 
 Trust— Minor's Support.— Furness' Est., O. C. 1884, 41 Leg. Int. 175. 
 S. C. 14 W. N. C. 391. Under act of 1853, the orphans' court has jurisdic- 
 tion to allow support to minors out of a fund which is to accumulate for 
 children. 
 
 " For the practice of the orphans' court in all its branches, see " Rhone's Or- 
 phans' Court Practice," 
 
PARENT AND CHILD — PARTIES. 411 
 
 PARENT AXD CHILD. 
 
 [See Confidential Eelations, IX.] 
 
 PAROI^ SALE. • 
 [See PowEE IV ; Statute of Frauds.] 
 
 PAROL TRUST. 
 
 [See Trusts and Trustees I B.] 
 
 PARTIES. 
 
 [See also Assignment IT ; Injunction I.D.H ; Mortgage, &(■. XVI. i;. 
 
 (b. 5.)] 
 
 Account— Joint Liability.— Land's Ap., 1886, 2 Amer. 456. Where a 
 mortgagor or trustee is liable to account to three jointly and not to either 
 severally, a bill in equity for au account filed by one alone should be dis- 
 missed for want of proper parties. 
 
 Acts Affecting the Community— Attorney General.— Sparha-wk v, 
 Union E. E., 1867, 4 S. 401. For equity to intervene to restrain acts preju- 
 dicial to the interests of the community, the bill must be filed by the At- 
 torney General. 
 
 Amendment— "To Use.''— Seibert v. Seibert, 1888, 1 Brews. 531. A 
 suit in equity should not be brought ' ' to use, ' ' but this defect is amend- 
 able. 
 
 Assignee for Creditors. — Brown v. Gray, C. P. Luzerne, 1884, 2 Kulp, 
 136. Where a complainant assigns for creditors his assignee need not be 
 made a party. 
 
 Association— Member— Services. — Price v. Spencer, C. P. 1873, 30' 
 Leg. Int. 76, S. C. 9 Phila., 281 ; see 27 Leg. Int. 4, S. C. 7 Ph. 179. In 
 equity a person may recover compensation for .services rendered under aeon- 
 tract with an association of which he was himself a member. 
 
 Borough and Individuals— Gas Company.— Sewickley Borough v. Gas 
 Co., 1888, 6 Pa. Co. C. Rep. 99. A bill in equity asking for an injunction 
 to restrain a gas company from shutting off the supply of gas, may be filed 
 by a borough and individuals jointly. 
 
 Cause of Action. — Young's Ap., 1883, 3 Penny. 463. It is notsufiacient 
 to enable parties to join in a bill in equity that each has sustainad the same 
 kind of injury if the cause of complaint is separate and distinct. 
 
 lb.— Injunction— Consectuential Damages.— Minnig v. New York R. 
 E., C. P. Erie, 1882, 11 W. N. C. 297. Several parties who own lots in 
 severalty cannot join in a bill in equity for au injunction against a railroad 
 to compel it to enter security for consequential damages to them before lo- 
 cating its road on adjoining land. 
 
 lb.— Misrepresentation— Remedy at Law.— Lungren «. Pennell, 1881, 
 10 W. N. C. 297. ■yV^here several parties have each a separate cause of action 
 
412 PARTIES, 
 
 on the ground of misrepresentations made to them severally with reference 
 to a common enterprise, and the circumstances of the several misrepresenta- 
 tions dififer, and there is an ascertained legal measure of damages applicable 
 to each, they should not be joined in a bill in equity, since the remedy is 
 at law and the bill would be multifarious; but it seems that an objection 
 at final hearing is too late. 
 
 Cestui que Trust— Corporation— Foreign Trustee.— Lehigh Coal Co. 's 
 Ap., 1879, 7 N. 499. A corporation will not be ordered to pay dividends to 
 a foreigner who claims to be the successor in a trust, unless the cestui que 
 trust is made a party, and the documents establishing the plaintiff's right 
 are filed. 
 
 Company— Bill Against Directors and Officers— Joinder of Secre- 
 tary. —Young «. Allegheny Oil Co., C. P. Venango, 1873, 30 Leg. Int. 13, 
 S. C. 10 Phila. 525. Under act July 18, 1863, a bill in equity, filed to re- 
 cover from the officers and directors the debts due by the company, should 
 not join the company or its secretary as parties. 
 
 Corporation— Act of July 18, 1863.— Sheriff v. Oil Co., C. P. 1868, 25 
 Leg. Int. 45, S. C. 7 Phila. 4, 1 Brews. 489. Under act July 18, 1863, the 
 bill must be filed by the creditors in behalf of themselves and others, and 
 the corporation should not be a party defendant. 
 
 lb.— Attorney General.— Philadelphia v. Bridge Co., N. P. 1868, 25 
 Leg. Int. 100, S. C. 6 Phila. 52:1 None but the Attorney General can 
 call a corporation to account for the performance of its duties. 
 
 lb.— lb.— Performance of Duties— Bill to Compel. — Buck Mt. Coal 
 Co. V. Lehigh Coal Co., 1865, 14 Wr. 91. A bill to enforce the performance 
 of the public duties of a corporation, cannot be maintained by an individ- 
 ual ; it seems the Attorney General should present the., bill on the part of 
 the Commonwealth. 
 
 lb.— Commonwealtll — Constitution. — Commonwealth v. South Penna. 
 E. E. ; Same v. Beach Creek E. E., C. P. Dauphin, 1886, 1 Pa. Co. C. Eep. 
 214, 223. Equity will at the suit of the Commonwealth restrain a corpora- 
 tion from acting in violation of the Constitution. 
 
 lb.— Officers-Fraud.— Hughes v. McMurray, D. C. 1867, 24 Leg. Int. 44, 
 S. C. 6 Phila. 200. Where a bill is brought, against parties who have formed 
 a company, charging fraud and misapplication of funds, the officers of the 
 corporation should be made parties. 
 
 lb.— Public Duties.— Buclf Mt. Coal Co. v. Lehigh Coal Co., 1865, 14 
 "Wr. 91. A bill to enforce the performance of the public duties of a corpo- 
 ration, cannot be maintained by an individual ; it seems the Attorney Gen- 
 eral should present the bill on the part of the Commonwealth. 
 
 Creditor'sBill— Multifariousness.— Sheriff v. Oil Co., C. P. 1868, 25 
 Leg. Int. 45, S. C. 7 Phila. 4, 1 Brews. 489. A creditor's bill which joins 
 defendants, some of whom 'are liable to one plaintiff only, and some only 
 for independent wrongs, is multifarious. 
 
 Death of a Defendant — Decree. — Bank of United States v. Biddle, 
 1844, 2 Pars. 31. Where one of two defendants dies pending a suit in 
 equity, the court can decree as to the survivor, but not as to the deceased 
 until his representatives are brought in. 
 
 Decedents' Estates. — Thompson v. Adams, 1867, 5 S. 479. Equitable 
 ejectment to enforce payment of purchase money, should be against the 
 heirs of a deceased vendee, not against his administrator. 
 
 Decree— Parties Aflfectetl by.— Petitt i. Baird, C. P. 1873, 30 Leg. Int. 
 208, S. C. 10 Phila. 57. All parties who will be affected by a decree in 
 equity must be joined. 
 
 Discovery— Unknown Principal.— Twells v. Costere, 1849, 1 Pars. 373. 
 Equity will not entertain a bill of discovery by a plaintifl against a defend- 
 ant to compel the latter to disclose, whether, in a contract entered into be- 
 
PARTIES. . 413 
 
 tween them, he was not the mere agent oi a principal not named, in order 
 to enable the plaintiff to maintain an action against the unknown principal 
 Jor an alleged breach of the contract. 
 
 Dower.— Drum v. Wartmau, C. P. 1865, 22 Leg. Int. 237, S. C. 6 Phila. 
 45. In a bill for dower it is error to join the executor with the heir as a 
 co-defendant. 
 
 Easement — Stranger Impairing.— Mulvaney v. Kennedy, 1856, 2 C. 
 44. Where a third per.son impairs an easement which complainant had on 
 the land of respondent, a bill will not lie against the respondent alone, the 
 third person must be a party. 
 
 Encumbrancers — Foreclosure. — Youngman v. Elmira, &c., R. R., 1870, 
 15 S. '278. Encumbrancers who become such during the foreclosure of a 
 mortgage, are not necessary parties to the bill for foreclosure, and yet are 
 bound by the decree, for they have notice. 
 
 Equity— Care of Court.— Ford v. Terry, C. P. 1884, 41 Leg. Int. 174. 
 The only care of a court of equity about parties is to have them all before 
 it, it makes no difference whether they are made plaintiffs or defendants. 
 
 Heirs of Mortgag'ee. — Housekeeper's Ap., 1865, 13 Wr. 141. The heirs 
 of a mortgagor have no standing in court upon distribution of the proceeds 
 raised by a sale. 
 
 iBJunctions— Buildings— Private Party. — Blauchard v. Reyburn, C. 
 p. 1875, 1 W. N. C. 529, S. C. 33 Leg. Int. 239, 10 Phila. 427, 7 Lan. B. 66. 
 Equity will not enjoin the erection of a building at the suit of a private 
 party when the only special injury shown is the interception of light and 
 air, the English doctrine as to these easements not being recognized here. 
 
 lb. — Affecting Those not Named.— Long v. Dickinson, C. P. 1873, 31 
 Leg. Int. 36, S. C. 10 Phila. 108. An injunction acting on parties not named 
 in the bill cannot be granted. 
 
 Joinder of Parties.— Petitt v. Baird, C. P. 1873, 30 Leg. Int. 208, S. C. 
 10 Phila. 57. All parties who will be affected by a decree in equity must 
 be joined. 
 
 Joint Plaintiflfs— Individual Interest.— Cumberland Valley R. R.'s 
 Ap., 1869. 12 S. 218. A bill in equity by several will be dismissed as to 
 any who have not an individual interest. 
 
 lb.— Common Enterprise— Several Misrepresentations. — Lungren v. 
 Pennell, 1S81, 10 W. N. C. 297. "Where several parties have each a separate 
 cause of action on the ground of misrepreseutations made to them severally 
 with reference to a common enterprise, and the circumstances of the several 
 misrepresentations differ, and there is an ascertained legal measure of dam- 
 ages applicable to each, they should hot be joined in a bill in equity, since 
 the remedy is at law, and the bill in equity would be multifarious ; but it 
 seems that an objection at iinal hearing is too late. 
 
 lb. — Non-Joinder of Others— Decedents' Estates.— Stewart's Ap., 
 1876, 32 S. 323. Where three of six heirs join in a bill against the admin- 
 istratrix, they are entitled to have their rights declared though thi other 
 are not parties. 
 
 lb. — Owners in Severalty. — Minnins; ». New York R. R., C. p. Erie, 
 1882, 11 W. N. C. 297. Several parties who own lots in severalty cannot 
 join in a bill in equity for an injunction against a railroad company, to 
 compel it to enter security for consequential damages to them, before locat- 
 ing its road on adjoining land. 
 
 lb.— Sufficient Cause.— Young's Ap. , 1883, 3 Penny. 463. It is not suf- 
 ficient to enable parties to join in a bill in equity that each has sustained 
 the.same kind of injury, if the cause of coihplaint is separate and distinct. 
 
 LegalPlaintiff— Beneficial Owner. —Ross r. Barker, 1836, 5 W. 391. 
 A beneficial owner may maintain ejectment in the name of a nominal war- 
 
414 PAETIES. 
 
 rantee, ignorant both of the action and of the trust, no more being required 
 than to disclose the name of the actual party. 
 
 Legal and Equitable Plaintiffs — Title.— Berks County v. Levan, 1878, 
 6 W. N. C. 63. Where in a suit on a bond the legal and equitable plain- 
 tiffs both join, it is not necessary for the latter to show title unless it be- 
 comes necessary for him to meet some deience, which though good against 
 the legal plaintiff will not avail against himself. 
 
 Lunacy — Trustee— Account. — Kuhler v. Hoover, 1846, 4 Barr, 331. 
 Where the next of kin of a cestui que trust of weak intellect cite a trustee 
 to account, the proceedings will be sustained by considering the next of 
 kin, as next friends appointed by the court to act. 
 
 Minors. — Williams v. Leech, 1857, 4 C. 89. The fact that minors were 
 improperly joined as defendants to a bill in equity does not affect it. 
 
 Mortgage— Assignor— Nominal Plaintiff.— Pryor v. Wood, 1858, 7 C. 
 142. After an assignment of a mortgage duly executed and recorded, there 
 is no such title lett in the assignor as permits the use of his name as nomi- 
 nal plaintiff. 
 
 Mortgagee — Partition. — Long's Ap., 1874, 37 S. 151. A mortgagee of 
 an iin divided interest is not entitled to be made a party in the partition. 
 And after partition his mortgage follows his mortgagor's separate share. 
 
 Mortgagor— Eminent Domain— Damages.— Schuylkill Nav. Co. v. 
 Thoburn, 1821, 7 S. & B. 411. The mortgagor is the one entitled to sue for 
 damages caused by the exercise of the right of eminent domain. The mort- 
 gagees cannot interfere before j udgment. They might, perhaps, claim after- 
 wards by a motion to take the money out of court. 
 
 Multifariousness— Eights not Identical.— Bright i;. McCullough, C. P. 
 Schuylkill, 1880, 1 Sch. L. B. 281. A bill is not multifarious on account 
 of the parties thereto, even though their rights are not identical, if they 
 have arisen out of one or the same transaction or series of transactions form- 
 ing one course of dealing and tending to the same end. 
 
 Nominal Plaintiff— Set-off.— Thompson v. McClelland, 1857, 5 C. 475. 
 Set-off is allowable between the nominal plaintiff and the defendant, wliere 
 the action is on a non-negotiable instrument. 
 
 Non-resident— Costs.— Smoot v. Harrah, C. P. 1878, 5 W. N. C. 147. 
 Where a complainant in equity is a non-resident, the court may, on motion, 
 compel him to enter security for costs, but a rule will not necessarily be 
 discharged. 
 
 Nuisance— Public— Philadelphia & Gray's Ferry B. B. v. Phila., 1876, 
 2W. N. C. 639, S. C. 33 Leg. Int. 264, 11 Phila. 358. Private citizens can- 
 not come into equity with a bill to restrain apublic nuisance without aver- 
 ring special damages. 
 
 lb.— lb.— Cox's Ap., 1882, 11 W. N. C. 571. An obstruction to the high- 
 way cannot be remedied by a bill in equity by a private individual ; for the 
 public nuisance the remedy is by the Attorney General, for the private in- 
 convenience the remedy is at law, 
 
 lb. — lb. — Smith II. Gumming, 1851, 2 Pars. 92. A bill to enjoin a public 
 nuisance may be filed by the public authorities of a municipal corporation, 
 or by numerous individuals who are hurt thereby, or by a single individual 
 in case of special damage to his person or property. 
 
 lb. — lb. — Perry v. Maurer, C. P. Luzerne, 1876, 5 Leg. L. Reg. 97. 
 Where a public nuisance is no more damaging to a complainant than to the 
 public generally, his bill must be dismissed. 
 
 lb. — lb. — Commissioners v. Long, 1845, 1 Pars. 143. A municipal cor- 
 poration may be complainant in a suit in equity to suppress a nuisance. 
 The Attorney General need not be a party. 
 
 Ofacer— Quo Warranto.— Campbell v. Taggart, C. P. 1875, 2 W. N. C. 
 
PAEIIES. 415 
 
 93, S. C. 32 Leg. Int. 396, 10 Phila. 443. A bill cannot be maintained by 
 a citizen against an oflScer, first, becaase the bill should be by the Attorney 
 General, and second, because quo warranto is the proper remedy. 
 
 Ordinance, Operation of— Citizens— Injunction. — Lauk v. Philadel- 
 phia, N. p. 1871, 1 Camp. 259, S. C. 3 Leg. Gaz. 313, 4 Brewst. 133, 28 L. 
 I. 316, 8 Phila. 117. There is no doubt of the right ol citizens to join in a 
 bill to prevent the operation of an ordinance. 
 
 Partition — Mortgagee. — Long's Ap., 1874, 27 S. 151. A mortgagee of 
 an undivided interest is not entitled to be made a party in the partition. 
 And after partition his mortgage follows his mortgagor's separate share. 
 
 lb. — lb.— Stewart v. Allegheny Bank, 1882, 5 Out. 342. A mortgagee of 
 an undivided interest in land has no standing to be made a parry in parti- 
 tion. 
 
 Partnership — Unsettled Account. — Altera Brooke, N. P. 1872, 29 Leg. 
 Int. 117, S. C. 9 Phila. 258. A bill for an account will not lie by a creditor 
 who seeks to attach a partner's interest in an unsettled partnership. 
 
 lb.— Receiver .—Simms v. Brouse, C. P. 1873, 30 Leg. Int. 84, S. C. 10 
 Phila. 13. The prayer of one claiming to be a partner and asking for a re- 
 ceiver and an injunction, will not be granted unless he can show himself to 
 be actually a partner. 
 
 lb.— lb.— Leavey v. Jenkins, C. P. 1884, 15 W. N. C. 124. A receiver 
 need not be made a party to an action against the partnership for a de))t 
 contracted before he was appointed. 
 
 Public Work — Il^unction — Architect. — Windrum v. Philadelphia, C. 
 p. 1871, 1 Camp. 311, S. C 3 Leg. Gaz. 358. Equity will not enjoin the 
 erection of public work at the suit of the architect who has not been paid, 
 especially where his right seems doubtful. 
 
 Plaintiff and Defendant.— Archer v. Rose, 1869, 3 Brews. 264. A firm 
 may maintain a bill against the directors of a corporation, although a mem- 
 ber of the firm is a director. 
 
 Plaintiff or Defendant.— Ford v. Terrj, C. P. 1884, 41 Leg. Int. 174. 
 The only care of a court of equity about parties is to have them all before 
 it, it makes no difierence whether they are made plaintiffs or defendants. 
 
 Private Citizens — Street Railway. — Shipley v. Continental R. R., C. 
 P. 1879, 36 Leg. Int. 450, S. C. Phila. 128. A private citizen upon showing 
 special damage and a clear case of right, is entitled to a preliminary injunc- 
 tion restraining the construction of a street railway. 
 
 lb.— Eckert*. Federal Street R. E., C. P. Allegheny, 1880, 2 Sch. L. R. 
 188, S. C 27 Pitts. L. J. 202. Private citizens who are specially injured 
 may have a railroad restrained from acting without authority. 
 
 lb. — City — ^Boundaries. — Pittsburgh's Ap., 1875, 29 S. 317. A private 
 citizen may maintain a bill against a city about to extend its boundaries 
 without authority. 
 
 Private Parties — Buildings — ^Ziyunction. — Blanchard «. Reybum, C. 
 P. 1875, 1 W. N. C. 529, S. C. 32 Leg. Int. 239, 10 Phila. 427, 7 Lan. B. 
 66. Equity will not enjoin the erection of a building at the suit of a pri- 
 vate party, when the only special injury shown is the interception of light 
 and air, the English doctrine as to easements not being recognized here. 
 
 Receiver.- Nail v. Ewing, C. P. 1878, 6 "W. N. C. 32. A receiver ap- 
 iwinted by another State with a right to sue in his own name, cannot so sue 
 here. 
 
 Sale — ^Purchaser — Pending Suit. — Huckenstein v. Love, 1881, 2 Out. 
 518. Where mortgaged property is sold under a subsequent lien pending 
 suit on the mortgage, and after issue joined the purchaser should not he 
 made a party. 
 
 Specific Performance— Orphans' Court. —Aushutz's Ap., 1859, 10 c. 
 
416 PARTIES. 
 
 375. Upon proceedings in the orphans' court by the administrator of the 
 yendor to enforce specifically a contract to sell land, both parties being dead 
 and intestate, due notice should be given to the administrator of the ven- 
 dor, to the heirs of the vendee, and to all persons deriving title from them 
 or interested in the contract ; also as a matter of security to the heirs of the 
 vendor. 
 
 lb.— lb.— Auder's Est., O. C. 1877, 4 W. N. C. 382, S. C. 34 Leg. Int. 
 3.54, 12 Phila. 28. All parties in interest must be made parties to a peti- 
 tion in the orphans' court for a specific performance of a decedent's contract. 
 
 lb.— Transfer of Contract.— Scholl v. Schoener, C. P. Berks, 1864, 1 
 Woodw. Deo. 200. Where a bill sets forth a transfer of a contract from 
 complainant to defendant under an agreement that the latter would trans- 
 fer it to anyone to whom the complainant might sell it, and prays for spe- 
 cific performance by compelling defendant to transfer to a third party, the 
 latter is a necessary party. 
 
 lb. — Two Complainants. — Decker v. Sterling, C. P. Wyoming, 1880, 3 
 L. T. N. S. 67. Where two parties had each filed a bill to enforce specific 
 performance against the same person for the same tract, and the defendant 
 admitted his liability to convey to one or the other, the court allowed each 
 complainant to become a defendant in the other's suit. 
 
 Substitution— Supplemental Bill.— Rauck o. Eutt, 1876, C. P. Lan- 
 caster, 8 Lan. Bar, 134. In equity there may be a substitution of complain- 
 ants without filing a supplemental bill. 
 
 Supreme Court — Jurisdiction. — Hottenstein v. Clement, 1860, 3 Gr. 
 316. In cases between individuals the Supreme Court has no original equity 
 jurisdiction outside of Philadelphia county. 
 
 Taxpayer.— Wheeler V. Philadelphia, 1875, 1 W. N. C. 205. The right 
 of a taxpayer to proceed in equity to test the validity of a law authorizing 
 an assessment of taxes or an expenditure of public money is well estab- 
 lished. 
 
 Tenants in Common — Supplemental Bill. — Coursin's Ap., 1875, 29 S. 
 220. One of several tenants in common of a boat brought a bill against his 
 co-tenants, who had sold the boat to one of their number, for a receiver and 
 an account, and to restrain them from breaking up the boat. A prelimi- 
 nary injunction was denied, the boat broken up and a new company formed 
 out of some of his old co-tenants and others, and a new boat built. The 
 plaintiff filed a supplemental bill alleging that he was part owner of the new 
 boat, and asking that a trust be decreed. This bill was against the same de- 
 fendants as the other. Held "that it was demurrable because it included 
 those not part owners of the new boat, and excluded some who were such. 
 (2.) That the supplemental bill on its merits should be dismissed. (3.) 
 That the original bill showed a good cause of action and an account was de- 
 creed. 
 
 Trust— Trustee.— McClurg's Est., O. C. Allegheny, 1875, 22 Pitts. L. J. 
 133. Applications respecting the disposition, custody and management of 
 trust estates should be instituted by the trustee, and the courts should not 
 recognize the cestui que trust in such matters. 
 
 lb. — Stock.— Lehigh Nav. Co.'s Ap., 1879, 7 N. 499. One representing 
 himself to be the successor in a trust created in another State, is not enti- 
 tled to have stock in the trust estate in a corporation transferred to him 
 without making the cestui que trust a party, and producing the papers show- 
 ing his title to the office of trustee. 
 
 Trust — Account — Exceptions to— Interest.— Hartman's Ap., 1879, 9 
 N. 203. Where part of the interest of a trust fund is payable to a son, and 
 the whole of it is payable to him after he marries, and on his death the 
 principal is to go to his children, if any, otherwise to his brothers and sis- 
 ters ; a brother has sufficient interest to except to the account of the trus- 
 tee, the son being over fifty and unmarried. 
 
PAETIES. 417 
 
 Trustees— Foreign Corporation. Stewart v. United States Ins. Co., 
 1839, 9 W. 126. Trustees of a foreign corporation appointed by a court of 
 equity, may maintain an action in their own name on negotiable notes 
 which came into their hands as assets of the corporation. 
 
 Trustee de son Tort — Parties Interested. — Delbert's Ap., No. 3, 1877, 
 4 W. N. C. 294. A bill against a trustee de son tort for an account is defect- 
 ive if all the parties interested are not made parties or are not represented 
 by a trustee. 
 
 Trustee and Cestui que Trust.— Chambersburg Ins. Co. v. Smith, 1849, 
 1 J. 120. A cestui qne trust may sue in the name of the trustee without the 
 latter's consent. 
 
 lb. — lb. — Agent.— Mathews V. Stevenson, 1847,. 6 Barr, 496. An action 
 to enforce a debt against a trust estate, created by an agent appointed under 
 the trust, should make the trustee and cestui que trust parties as well as the 
 agent. 
 
 Trustee — Ejectment. — Conukelton v. Everts, 1803, 3 Y. 570. The heirs 
 of a surviving trustee may maintain ejectment not adverse to the interests 
 of the cestui que trust. 
 
 lb. — lb.— Cooper V. Henderson, 1813, 6 Bin. 189. Trustees can support 
 ejectment in their own names without disclosing their character on the 
 record. 
 
 Fd. — Judgment — Revival. — Bowers v. Harner, D. C. 1858, 15 Leg. Int. 
 150, S. C. 3 Phila. 146. As against the cestui que trust it is not necessary to 
 make the trustee a party to a writ to revive the lien of a judgment. 
 
 lb. — Mortgagee. — Danzeisen's Ap., 1873, 23 S. 65. Equity will not dis- 
 miss a bill charging that defendant is a trustee, when he is not such, but a 
 mortgagee, if the same liability to account exists. 
 
 lb.— Shares of Stock. — Jamison v. Stewart, C. P. 1880, 37 Leg. Int. 
 273, S. C. 14 Phila. 134. Where a trustee held stock belonging to several 
 parties to whom advances had been made by complainant, and some of whom 
 refused to pay the advances, it was held that a bill filed against the trustee 
 and those stockholders only who refuse^ to pay was demurrable, and that 
 all the stockholders should be joined. 
 
 lb.— lb.— Dietrich v. Tyson, C. P. 1861, 18 Leg. Int. 118, S. C. 4 Phila. 
 352. Equity will decree the transfer of specific shares of stock where by 
 throwing the complainant upon his remedy at law for damages he might 
 lose, owing to the financial standing of the defendant, or where the defend- 
 ant holds as trustee. 
 
 lb.— Virtute Olficii.— Stockton V. Lehigh Nav. Co., C. P. 1880, 9 W. N. 
 C. 110, S. C. 37 Leg. Int. 90, 14 Phila. 88'. A trustee created \>j will mrtute 
 officii has a standing in a court of equity tocompel theperformanceof aduty 
 owing to him in his capacity of trustee. 
 
 Use Plaintiff.— Montgomery v. Cook, 1837, 6 W. 238. A use plaintiff 
 need show no right in himself, but only the right of the legal plaintiff. 
 
 lb. — Eeigart v. Elmaker, 1820, 6 S. & E. 44. It is not necessary for a use 
 plaintiff to appear on the record, but if he does the court will recognize him 
 as such. 
 
 lb. — Montgomery v. Cook, 1837, 6 W. 238. It is not necessary for a use 
 plaintiff to show his title in the first instance. 
 
 lb.— Tilden v. Evans, T>. C. 1858, 15 Leg. Int. 133, S. C. 3 Phila. 124. 
 The equitable owner of a judgment may treat it as his own, though it be 
 not marked to his use on the record. 
 
 lb.— Mnrtland v. Taylor, 1882, 14 Lan. B. 163. The court has nothing 
 to do with the equitable plaintiff unless some defence is shown as against 
 him. 
 
 27 — EQUITY. 
 
418 PAETIBS — PARTITION. 
 
 lb.— Hartley v. Eeading, 1887, 44 Leg. Int. 512. The equitable plaintiff 
 is considered, the substantial plaintiff, even though his name does not ap- 
 pear in the record. 
 
 lb. — ^Assignee for Creditors. — Memphis R. E. o. Wilcox, 1864, 12 Wr. 
 161. Where one has assigned a claim in trust for creditors, it is not- neces- 
 sary that he should in suing thereon set out the use plaintiff and the trust. 
 
 lb.— Bill of Exchange— Set-off.— Hodge v. Comly, 1838, 2 M. 286. The 
 drawer of a bill of exchange may set off against it a claim which he has 
 against the real owner of it, whoever is the nominal plaintiff. 
 
 lb.— Judgment — Conclusiveness. — Peterson v. Lothrop, 1859, 10 C. 
 223. Where there is a use plaintiff the judgment is conclusive against him 
 only. 
 
 lb.— lb.— Satisfaction.— McClurg v. Wilson, 1862, 7 Wr. 439. A judg- 
 ment having been obtained in the name of a legal plaintiff without any re- 
 maining interest in the matter, he ordered that it be marked satisfied. The 
 equitable plaintiff brought his bill in equity, asking that the entry of satis- 
 faction be stricken off and the defendant ordered to pay the same to the 
 complainant. So decreed. ♦ 
 
 lb. — Negligence— Insurance Company. — Kennebec Ice Co. v. Wil- 
 mington E. E., C. p. 1883, 13 W. N. C. 160, S. C. 15 Lan. B. 15. An insu- 
 rance company which pays a loss may sue, in the name of the loser, a party 
 whose negligence caused the loss, without the loser's consent. 
 
 lb. — Recognizance — Official Bond. — Commonwealth v. Lightner, 1845, 
 9 W. & S. 117. In an action by the Commonwealth on a recognizance or 
 official bond, it is no defence to prove that the use plaintiff is not entitled 
 to the money ; the right to the money will be determined after it is re- 
 covered. 
 
 lb.— Set-off.— Passmore v. Ins. Co. of Penna., 1822, 8 S. & E. 66. A suit 
 was brought by P. & B. to the use of P. It was afterwards marked to the 
 use of S. Beld that in equity a set-off which would have been allowed 
 against P. would be allowed against S. 
 
 lb. — lb. — ^Armstrong v. Lancaster, 1836, 5 W. 68. That the suit is for 
 the use of an equitable plaintiff is sufficiently shown by so marking it ; the 
 title of the latter need not be set-off in the pleadings. The court will un- ' 
 doubtedly search out the real plaintiff in interest and fix on him costs, set- 
 offs and other liabilities. 
 
 lb. — Trespass.— Miller v. Zufall, 1886, 3 Amer. 317. An equitable es- 
 tate in land will support an action of trespass without the use of the name 
 of the party holding the legal title. 
 
 PARTITION. 
 
 [See Orphans' Court II.] 
 
 Amicable Partition— Estoppel. — Eoot v. Crock, 1847, 7 Barr, 378. 
 Those joining in an amicable partition are estopped from afterwards dis- 
 turbing the boundaries fixed thereby. 
 
 Costs— Act of 1864.— Fidelity Trust Co.'s Ap., 1885, 16 W. N. C. 12. 
 Act April 27, 1864, providing that in certain cases costs of partition should 
 be paid by all the parties in interest, only refers to' cases in which some pe- 
 titioner's interest is very small, and does not include costs incurred in op- 
 posing the partition. 
 
 Counsel's Fees.— Monestier v. Monestier, C. P. 1885, 17 W. N. C. 255. 
 The act of 1864 allowing counsel fees to be paid out of the fund in cases of 
 
PARTITION. 419 
 
 -partition, has reference only to fees for services rendered for the common 
 lienefit. 
 
 Decree— Effect of— Wittmer v. Bauer, C. P. 1884, 14 W. N. C. 304. 
 A decree of partition in equity gives the parties a good and sufficient title to 
 their allotted parts, and deeds from the master are not necessary. 
 
 lb.— Legal Title.— Gratz v. Lex, D. C. 1866, 23 Leg. Int. 357, S. C. 6 
 Phila. 183. In partition equity may decree a conveyance of the legal title 
 to the party taking the land where it may be deemed necessary. 
 
 Jurisdiction.— Kennedy v. Kennedy, 1862, 7 Wr. 413. Equity has juris- 
 diction in cases of partition, and vfhere there has been a parol partition and 
 long acquiescence, equity may quiet the enjoyment of such estates, the case 
 l)eing analagons to a bill of peace. 
 
 Master— Dismissal of.— Gibbon's Ap., 1883, 8 Out. 587. A master ap- 
 pointed by equity in proceedings in partition cannot be dismissed on an 
 ex parte hearing of a petition by one party in interest. 
 
 Master— Sale— Searches.— Nevfell v. Clark, C. P. 1884, 15 W. N. C. 
 157. A master appointed to make a sale in partition should take out 
 searches. 
 
 lb— lb.— Setting Aside.— Eiley v. Buckley, C. P. 1875, 1 W. N. C. 167. 
 A master's sale in partition vrill not be set aside for slight inadequacy of 
 price, no rule can be fixed, but in this case a sale of property for $10,500 
 would not be set aside upon bond being given to bid |11,000 for it, and a 
 sale for $1,250 was set aside upon a bond being given to bid $2,500. 
 
 lb.— lb.— Fourth Baptist Church v. Bailie, C. P. Allegheny, 1881, 13 Lan. 
 Bar, 131, S. C. 2 Scr. L. T. 169. A sale of real estate by a master in chan- 
 cery will be set aside before confirmation by the court upon a better bona 
 fide bid being made. 
 
 Mortgagee— Liability to, of One Taking Land.— Eeed v. Fidelity Co., 
 C. P. 1883, 13 W. N. C. 268. One who in partition takes land and pays 
 over the owelty to one of the former tenants in common, is not chargeable 
 to a mortgagee of that tenant's share. 
 
 lb. — Parties. — Stewart V. Allegheny Bank, 1882, 5 Out. 342. A mort- 
 gagee of an undivided interest in land has no standing to be made a party 
 in partition. 
 
 lb. — lb. — Long's Ap., 1874, 27 S. 151. A mortgagee of an undivided in- 
 terest is not entitled to be made a party in the partition. And after parti- 
 tion his mortgage follows his mortgagor's separate share. 
 
 Order of Court— Widow— Estoppel.— Young v. Babilon, 1879, 10 N. 
 280, rev'g 26 Pitts. L. J. 149. A widow who endorses and approves of record 
 an order of court for partition, and agrees that it shall be confirmed, is es- 
 topped from afterwards setting up an adverse title to the land. 
 
 Orphans' Court- Specific Performance.— Hore's Est., o. C. 1875^ 32 
 Leg. Int. 135, S. C. 11 Phila. 63. The orphans' court can enforce specific 
 performance by the purchaser at a sale under proceedings in partition. 
 
 Owelty— Payment to Tenant— Mortgagee.— Reed v. Fidelity Co., C. 
 P. 1883, 13 W. N. C. 268. One who in partition takes land and pays over 
 the owelty to one of the former tenants in common, is not chargeable to a 
 mortgagee of that tenant's share. 
 
 Petition for— Boundaries— Compromise— Estoppel in pais.— Ormsby 
 «. Ihmsen, 1859, 10 C. 462. Where one petitioning for partition of a tract 
 describes the boundaries, this partakes somewhat of the compromise of a 
 doubtful right, and if acted on by the defendants constitutes an estoppel in 
 pais. 
 
 _ Recognizance — Merger. — Seibert's Appeal, 1888, 45 Leg. Int. 315. The 
 Jien of the recognizance in the orphans' court on partition proceedings, is 
 not merged in a judgment obtained in the common pleas in an action upoi) 
 one of the books secured by the recognizance. 
 
420 PARTITION— PAETNKESHIP. 
 
 Sale Under Lien After Partition— Purchase.— Maul r. Kider, 1865, 1 
 S. 377. Where tenants in common, after a tax has been assessed, partition 
 their land, and the whole tract is afterwards sold for the tax mentioned, 
 one of the parties buying in the title of the purchaser at this sale, holds it 
 as trustee as to his co-tenants' part. 
 
 Sale— Discharge— Mortgage— Act of March 26, 1867.— Wright v. 
 Vickers, 1876, 31 S. 122. Even since the Act of March 26, 1867, a sale of 
 property in partition discharges a mortgage on a co-tenant's share, and sub- 
 stitutes his share of the proceeds as the mortgagee's security. 
 
 Title— Conflict in.— Murcen v. Jackson, 1885, 3 Pa. Co. C. Rep. 387. A 
 court of equity has no jurisdiction to decree partition when there are con- 
 flicting claims to the title, and some of the defendants are not entitled to 
 purports. 
 
 Title.— Swain v. Fidelity Trust Co., 1867, 4 S. 455. A title which de- 
 pends upon a partition irregular as to certain minors who are still such, is 
 not marketable, such as equity will decree a purchaser to take. 
 
 When Decreed. — Old Man's Home V. Pennsylvania Institution, C. P. 
 1882, 12 W. N. C. 488. Where a petitioner's right to half a tract is ad- 
 mitted, partition will be decreed, although thd title to the other half is 
 Toeing contested between others. 
 
 lb. — Hayes' Ap., 1889, 1 Crum. 110. Although it is a general rule of 
 «quity as well as law, that one cannot maintain proceedings in partition 
 without showing an undisputed title, yet where questions of equitable 
 titles and defences arise, a bill will be entertained praying for a determina^ 
 tion of the rights of parties, and if partition is one of the rights it will be 
 > granted, but the bill must be so framed as to disclose its real object. 
 
 PARTNER. 
 
 [See Paeinership.] 
 
 Account IB. (c), 11 A.B. ; Adjustment IB., IV, VI, VII B., (a) ; VIII 
 F. ; Assignment II. 
 
 PARTNERSKIP. 
 
 [See also Account I B. (c), II A. B. ; Adjustment IB. IV, VI, VII B. (a), 
 VIII F. ; Coeporation IV ; Equitable Defence ; Injunction I E.Q. ; 
 Orphans' Cottet II.] 
 
 I. In General. 
 II. Account. See Account IB. (c.) 
 
 III. Dissolution. 
 
 IV. Jurisdiction. 
 V. Receiver. 
 
 VI. Sale. 
 
 For the general principles of Partnership Law in Pennsylvania sec ' ' Murphy 
 «m Partnership." 
 
PAKTNEESHIP. 421 
 
 I. In General. 
 
 Act June 2, 1874— Construction of.— Suedder v. Wire Co., 1888, 5 Pa. 
 C!o. C. Eep. 418. The provisions of the Act of June 2, 1874, in regard to 
 the formation of limited partnerships, must be strictly complied with, and 
 in the absence of such compliance, the subscribers become general partners. 
 
 Action Against— Appointment of Receiver— Defence.— Van Dusen 
 V. Blake & Walton, 1887, 20 W. N. C. 45. The appointment of a receiver 
 of a partnership is no defence to a suit against it on its previously incurred 
 obligation. 
 
 Action— Right to Maintain. — Archer v. Eose, 1869, 3 Brevrs. 264. A 
 firm may maintain a bill against the directors of a corporation, although 
 one of the firm is a director. 
 
 Assignment by Partner— Power to Bind. — Sweigart's Estate, 1889, 6 
 Lan. L. Rev. 185. A partner may bind his firm by an assignment in his 
 individual name. 
 
 lb.— For Creditors.— Gregory's Ap., 1884, 15 W. N. c. 525. An assign- 
 ment for creditors by one partner is not a waiver of his right to have firm 
 creditors first satisfied out of firm assets. 
 
 lb.— Secret Assignment by Partner. — McCutcheon v. Ackland, 1880, 
 1 Ches. Co. Eep. 82. One partner, his co-partner not being absent, cannot 
 make a secret assignment for creditors, and equity having got hold of the 
 case will wind up the partnership and award damages. 
 
 lb.— Purchaser Under— Title.— Vol mar v. Greer, C. P. 1870, 27 Leg. 
 Int. 389, S. C. 7 Phila. , 453. Where an assignee for creditors of a partner- 
 ship has sold land which was used as partnership property, his vendee will 
 not be compelled to accept unless the title of the partnership is clearly 
 made out. 
 
 BUI— Allegation of Partnership Need Not be in Detail.— White v. 
 Judge, C. P. 1874, 1 W. N. C. 87. A bill setting forth a partnership and 
 asking for an account is not demurrable, because it sets out a continuance 
 of the partnership without specifying when made, how long to last or the 
 consideration. 
 
 lb.— Averment of Partnership.— Hudson v. Barrett, 1850, 1 Pars. 414. 
 In a bill for an account it is sufficient to aver a partnership in existence and 
 its commencement, without loading the record with manner in which it had 
 been continued. 
 
 Confession of Judgment. — Separate Estate.— Gallagher's Ap., 188(!. 
 4 Amer. 35.). A partner may confess judgment to iirm creditors and pay 
 the same out of his separate estate, even though his individual creditors are 
 thereby prevented from collecting their claims. 
 
 Contribution.— Clark v. Martin, C. P. 1878, 6 W. N. C. 30. The right 
 of contribution among co-defendants where one pays the debt, does not exist 
 between partners. 
 
 lb. — Surety. — Christy's Ap., 1879, 11 N. 157. A suit by a surety for a 
 partnership to enforce contribution from one alleged to be a partner, is a 
 proper eiise for equity. 
 
 Conversion. — Foster's Ap., 1873, 24 S. 391. Conversion is a doctrine of 
 equity, and isonly admitted to produce equity ; that done re-conversion takes 
 place. Therefore, although as to creditors, money obtained from the sale oT 
 land is personalty, yet as soon as all creditors are satisfied out of the pro- 
 ceeds of that land, the balance is distributed between the partners as real 
 estate. 
 
 Counsal's Fee- Winding Up.— Lennig «. Lennig, C. P. 1881, 11 W. N. 
 C. 18. Complainant's counsel fee should not be allowed out of partnership 
 assets in a bill for the winding up of a firm. 
 
423 PAErNERSHIP. 
 
 Creditors— Equities— No Partnership. —Worthington's Est., C. P. 
 1875. 2 W. N. C. 199. If there is no partnership firm, creditors can have no 
 preference, for their equities depend on the equities of the partners. 
 
 Due Bill— Laches.— Iredell v. Kremm, 1887, 19 W. N. C. 539. Where 
 a partner abstracted a sum of money from the firm in consequence of which 
 a dissolution was agreed upon, the partner accepting a due bill for his in- 
 terest in the concern, part of the consideration being that the affair should 
 not be made public ; and the co-partners subsequently refused to pay the 
 due bill, giving the partner the alternative of exposure in surrendering the 
 due bill, it was held on a bill in equity filed seven years thereafter that the 
 culpability of the plaintiff and his laches were sufficient to refuse him re- 
 lief. 
 
 Eciuity of Partners— Creditors.— Brown v. Beecher, 1888, 5 Crum. 590. 
 The equity of a partner and the consequent equity of the partner's creditor 
 to have partner.ship assets applied to partnership debts, cannot be defeated 
 by the fact that the creditor's bond and judgfienfc are entered against the 
 firm as individuals, nor by the fact of the assignment of the partnership in- 
 terest without the consent of the co-partner, to a surety on the partnership 
 bond. 
 
 Estoppel— Judgment— Conduct.— Patterson v. Lytle, 1849, 1 J. 53. P. 
 and L. were partners, D. had a judgment against them and levied with P.'s 
 direction on goods of A. in L.'s hands. P. purchased them for $500, L. giv- 
 ing notice that they were A.'s, P. also paid A. for them. On account each 
 claimed to be allowed $500 as having satisfied a firm debt with his own 
 funds. Held P. was not estopped by his action from disputing that the 
 goods were L. 's and should therefore receive the credit. 
 
 Executor of Deceased Partner— Employment of— Trust.— Hall's 
 Ap., 1861, 4 Wr. 409. Articles of partnership provided that, in the event 
 of either dying, a clerk should be engaged out of his share of the profits 
 and the business continue. A partner died and the clerk engaged was one 
 of the executors, who received as his salary one-third of his testator's share 
 in the profits. Held this was not a breach of the trust, and he need not ac- 
 count for it. (Woodward and Reed JJ., dissent.) 
 
 Fraudulent Purchase— Recovery.— Grim v. Grim, C. P. 1874, 1 W. N, 
 C. 79. Where one of the members of a firm has fraudulently purchased 
 some of the firm's property, and a decree has been entered enjoining him 
 from interfering with the property and appointing a receiver, he will not be 
 allowed to claim from the receiver the amount which he paid on the fraud- 
 ulent sale. 
 
 Injunction— Acts Contrary to Law. — Stockdale v. TJllery, 1860. 1 Wr. 
 486. The power of our courts to grant injunctions to restrain acts contrary 
 to laio, includes acts contrary to equity, which is a part of our law, e. (/., to 
 restrain a partner who is about to pledge for his own debts negotiable 
 paper which he holds for the benefit of the firm. 
 
 lb.— Excess of Share in Profits Withdrawn. — Moir v. Emerick, 1887, 
 3 Montg. Co. L. Rep. 161. A partner who draws more than his share of 
 the profits from the firm assets will be Restrained by injunction, and in such 
 ease the partnership will be dissolved upon application and a receiver ap- 
 l)ointed. 
 
 lb.— Share of Profits.- McDowell's Ap., 1889, 8 Amer. 381. Where 
 a contractor enters into an agreement with a third party who is to furnish 
 most of the funds for the carrying out of the contract, which agreement 
 contains mutual covenants, and the third party after a time breaks his 
 covenant to furnish money, but the other party fulfils his part and finishes 
 the work, the latter can maintain a bill in equity to enjoin proceedings 
 at law in which the other is seeking to collect liis full share of the profits 
 from the party for whom the work was done. But as he failed to rescind 
 the contract with promptness, he is not entitled to claim that none of the 
 
PARTNERSHIP. 423 
 
 "profits shall go to his partner. The latter is entitled to his share less any 
 loss incurred by his breach of contract. 
 
 lb.— Judgment Creditor.— Rapp v. Hains, 1878, 5 "W. N. C. 489. Equity 
 will not restrain a judgment creditor from issuing execution thereon, on the 
 ground that his debtor is his partner, and between them there exists an 
 open account. 
 
 lb.— Removal of Business Property.— Stanhope u. Suplee, 1868, 4 
 Brews. 100. Equity will restrain one partner at the suit of his associate 
 from removing machinery necessary to the business, but will not decree a 
 sale of mortgaged property without hearing from the mortgagee. 
 
 Insolvent Partner.— Wood v. Cunningham, C. P. 1877, 5 W. N. C. 189. 
 When one of the members of a firm is insolvent and indebted to the firm, 
 equity will require the others to make up his indebtedness to the firm pro 
 rata with their interest in the firm. 
 
 Insurance in Firm's Name — Private Property. — Beeber „. Thomas & 
 Co., 1887, 4 Lan. L. Rev. 250. Where, by mistake, a partner who owned 
 property individually, obtained insurance upon it in the firm name, the 
 policy, although void if the company exercise their right of declaring it so, 
 is valid if the company waive their right and demand assessments due. 
 
 Judgment that Two are not Estopped— Subsequent Suit. — Hayes v. 
 Gudykunst, 1849, 1 J. 221. A judgment for defendants in a suit against 
 two partners, rendered on the point that they were not partners, estops 
 either of them from setting up the partnership iu a subsequent suit against 
 one separately. 
 
 Judgments Extinguishment — Individual and Partnership Mort- 
 gage. — Vandike's Ap., 1868, 7 S. 9. A. gave B. a mortgage on his interest 
 in land, it not appearing that it was partnership property. Afterwards A. 
 and C, partners, gave B. a mortgage on the whole land, and A. also con- 
 fessed a judgment to B., as collateral for this mortgage. The land wassold 
 under both writs and did not quite pay both mortgages. Held that the 
 judgment was not extinguished. 
 
 Judgments Estopped. — Kneib v. Graves, 1872, 23 S. 104. Plaintiff had 
 obtained a judgment which bound separately only a portion of the members 
 -of the firm. In a suit against a member not so bound, the latter pleaded 
 liie other judgment as a former recovery. Held this did not estop him from 
 contesting execution against him personally on the other j udgment. 
 
 Judgment — Security. — Vandike's Ap., 1868. 7 S. 9. A. gave B. a mort- 
 gage on his interest in land, it not appearing that it was partnership prop- 
 erty. Afterward A. & C. partners gave B. a mortgage on the whole land, 
 and A. also confessed a judgment to B. as collateral for this mortgage. The 
 land was sold under both writs and did not quite pay both mortgages. Held 
 that the judgment was not extinguished. 
 
 Liability— Trust Funds— Notice.— Guillou v. Peterson, 1879, 8 N. 163. 
 Where a partner lends the securities of a trust estate, of which he is trustee, 
 to the firm, and the firm converts them, the firm is liable to the cestui gue 
 frust. 
 
 Mortgage— Infant.— Smith v. Eisenlord, D. C. 1857, 14 Leg. Int. 316, 
 S. C. 2 Phila. 353. A mortgage given by partners, one of whom is an in- 
 fant, is void as to the latter and good as to the others. 
 
 lb.— To Partner— Partnership Property.— Irwin v. Bidwell, 1872, 
 22 S. 244. A mortgage given to one partner on the partnership property for 
 capital invested, puts him in no better position, for, as to creditors it is void, 
 and he has the same lien as to his co-partners without the mortgage. 
 
 Pledge of Partner's Interest.— Collins' Ap., 1883, ll Out. 390. There 
 may in equity be a valid pledge of a partner's interest m a prospective firm. 
 
 Purchase by Partner Appointed Agent to Wind Up.— Westcott *. 
 Tfyson, 1861, 2 Wr. 389. The creditors of an insolvent firm appointed one 
 
424 PARTNISESHIP. 
 
 of the partner's agents to wind it up. He, in connection with another, bought 
 in claims against the partnership. Held not to be within the rule that a 
 trustee cannot buy trust property for himself, and therefore his purchases 
 did not inure to the benefit of the firm. 
 
 lb.— Fraud— Receiver.— Grim o. Grim, C. P. 1874, 1 W. N. C. 79. 
 Where one of the members of a firm has fraudulently purchased some of the 
 firm property, and a decree has been entered enjoining him from interfering 
 with the property and appointing a receiver, he will not be allowed to claim 
 fiom the receiver the amount which he paid on the fraudulent sale. 
 
 lb.— By Partner — Reversion— Improvements, Partnership Funds. 
 Lacy V. Hall, 1860, 1 Wr. 360. A partner, the financial manager of a firm, 
 bought in his own name the reversion to lands, a present estace being in 
 the partnership. The lands were improved with partnership funds. On 
 his bringing ejectment, held, 1, he was a trustee for his co-partner as to a 
 moiety ; 2, he could not in this action recover half the purchase money 
 under a conditional verdict. He must have an account. 
 
 lb.— Of Outstanding Title— Ejectment— Fraud— Rights of Ven- 
 dee.— Orne V. Kittanning Coal Co., 18S6, 18 W. N. C. 226. Where one 
 of two partners in the purchase of outstanding title to a tract defrauds 
 the other by obtaining money for pretended conveyances, neither he nor 
 the holder of his title under a sheriff's sale can recover in ejectment against 
 the vendee of the other who holds the legal title and has possession; (1) 
 because comiilainant does not come with clean hands, and (2) because the 
 holder of an equitable title can only recover by offering to do all that is in- 
 cumbent on him, which in this case would be the repayment to the other 
 partner of all money received from him except one-half of what was acittaHy 
 expended on purchasing title. 
 
 Real Estate as Portion— Title— Land.— Clark's Ap., 1875, 22 S. 142. 
 Where a partner contributes real estate as his portion of the capital, the 
 equitable title of the land is in the firm. 
 
 Receiver— Appointment. — Simms v. Brouse, C. P. 1873, 30 Leg. Int. 
 84, S. C. 10 Phila. 13. The prayer of one claiming to be a partner and 
 asking for a receiver and an injunction, will not be granted unless he can 
 show himself to be actually a partner. 
 
 lb. — Action Against the Partnership— Party. — Seavey v. Jenkins. C, 
 P. 1884, 15 W. N. C. 124. A receiver need not be made a party to an action 
 against the partnership for a debt contracted before he was appointed. 
 
 Sale— Rescission— Fraud — Laches.— Geddes' Ap., 1876, SOS. 442. One 
 partner sold out his interest in the firm to his co-partner, and after nearly 
 six years asked to have the conti-act rescinded on the ground of fraud. Held, 
 that after that lapse of time he must prove the fraud most conclusively, and 
 the master having found the price but slightly inadequate, and that the 
 seller had full access to examine the affairs of the firm, decided that the 
 fraud was not proved. 
 
 Set-off— Consent of Partners.— Montz v. Morris, 1879, 8 N. 392. A 
 member of a firm may, in an action against him individually, set off a debt 
 due the firm by proving the account of the other partners. It is not neces- 
 sary to have an assignment of the claim. 
 
 Special Partner— Liability— Trust Funds— Notice.— Guillou v. Peter- 
 son, 1879, 8 N. 163. Where a partner lends the securities of a trust fund, 
 of which he is trustee, to the firm, and the firm converts them, one who as 
 to the partners is a mere special partner, but to the world a genera] part- 
 ner, is also liable to the cestui que trust, for the notice which the trustee had 
 of his limited liability does not in such a case bind the cestui que trust. 
 
 Specific Performance— Death of Partner.— Wiley's Ap., 1877, 3 N. 
 270. Specific performance of the contract of partners, one of whom has 
 died, should be sought in the equity side of the common pleas, not in th,e, 
 orphans' court. 
 
PAETNKESHIP. 425 
 
 Surviving Partner— Suit by— Set-off.— Wain v. Hewes, 1820, 5 S. & 
 E, , 46S. In a suit by a surviving and insolvent partner, the partnership not 
 being settled, the defendant cannot set off a personal claim vphich he holds 
 against the plaintiff. 
 
 Unincorporated Voluntary Fire Oompany—Cliarity.— Thomas v. 
 Ellmaker, 1844, 1 Pars. 98. An unincorporated voluntary fire company is 
 a charity, yet because unincorporated it may, as to third persons, be con- 
 sidered a partnership. 
 
 Use Plaintiff— Judgment Against Firm — Set-off. — Stout v. Moore, C. 
 P. 1879, 7 W. N. C. 456. A use plaintiff in a judgment recovered against 
 a firm may set it off against a judgment recovered against him by a mem- 
 ber of the iirm. 
 
 II. Account. 
 
 Amicable Settlement— Ectuity, BiU in.— Shirk's Ap., 1869, 3 Brews. 
 119. Equity will not entertain a bill for an account between partners where 
 they have amicably settled their affairs and given mutual receipts, save for 
 firaud, misrepresentation or mistake. 
 
 BiU for— Certificates of Counsel— No Remedy at Law.— Bachman r. 
 Einhorn, C. P. 1878, 5 W. N. C. 250, S. C. 35 Leg. Int. 120, 12 Phila. 391. 
 A bill for an account between partners does not, in Philadelphia county, 
 have to be accompanied with certificate of counsel that the law affords no 
 adequate remedy. 
 
 lb.— Contribution— Practice.— Christy's Ap., 1879, 11 N. 157. Where 
 the prayers in a partnership bill are for account and contribution, and one 
 of the defendants denies that he was a partner, the proper practice is to 
 make a special reference to a master to determine his liability before ex- 
 amining into the accounts, and although a general reference was made in 
 this case, since the master only reported on the one point of liability the 
 reference would be considered as amended and the proceedings regular. 
 
 lb.— Everhart v. Everhart, C. P. Luzerne, 1874, 3 Luz. L. Reg. 59. A 
 bill in equity for settlement of a partnership account must be accompanied 
 by a certificate of counsel, otherwise jt will be dismissed upon objection 
 being taken at any stage of the proceedings. 
 
 lb.— lb.— Prayer for Dissolution.— Von Tagen v. Roberts, C. P. Dau- 
 phin, 1872, 2 Pears. 137. A bill for an account between partners need not 
 contain a prayer for dissolution. 
 
 Creditor.— Alter v. Brooke, N. P. 1872, 29 Leg. Int. 117, S. C. 9 Phila. 
 258. A bill for an account will not lie by a creditor who seeks to attach a 
 partner's interest in an unsettled partnership. 
 
 Dissolution— Renewal of Lease.— Johnson's Appeal, 1886, 5 Am. 129. 
 Where after dissolution of a partnership, one of the partners secures for 
 himself without the permission of his co-partner, a renewal of the lease of 
 premises in which the business of the partnership has been carried on, he 
 will be compelled to account for the value of the renewal,* in a settlement 
 of the partnership business. 
 
 Profit Outside Firm Business.— Waring v. Cram, 1850, l Pars. 516. A 
 partner will be compelled in equity to account to his co-partners for any 
 money made outside the firm business by the use of either the capital of the 
 firm or his own time, energy and skill. But where a partner deliberately 
 withdraws from a firm and engages in business for himself the remedy is 
 at law. 
 
 Sale of Interest— Sheriff's Vendee— Notice.— Wylie's Ap., 1879, 9 N. 
 210, A partner who has sold out to his co-partner, has no right to an ac- 
 
426 PAETNERSHIP. 
 
 count with the sheriff's vendee of the latter's interest on the ground that 
 the full price of his interest has not been paid, he having given no priot no- 
 tice of his claim. 
 
 III. Dissolution. 
 
 Agreement in — Guaranty. — Molntire's Appeal, 1888, 3 Crum. 421. 
 Where in articles of co-partnership A- was to put in so much capital and 
 was then guaranteed a certain percentage of the profits by B., one of the 
 partners. An agreement by a third party in articles of dissolution and set- 
 tlement to make A. whole upon his capital stock according to the articles 
 of co-partnership, does not include the above guaranty, the latter having 
 been a mere personal liability. 
 
 Charity. — Thomas v. EUmaker, 1844, 1 Pars. 98. An unincorporated 
 voluntary fire company is a charity, and although because unincorporated 
 it may as to third persons be considered a partnership, yet being a charity 
 equity will not decree dissolution and a distribution of the assets. 
 
 Discretion. — Slemmer's Ap., 1868, 8 S. 168. Equity has wide discretion 
 in the matter of dissolution of partnership. It will decree dissolution where 
 serious differences have arisen between the partners which make it impos- 
 sible to carry on the business with comfort and profit. A receiver will not 
 be appointed where such action is more hurtful than beneficial. In this 
 case the partners are allowed to bid for the business. 
 
 Injunction — Receiver.- Page v. Vankirk, 1866, 1 Brews. 282. EqniW 
 has jurisdiction of a bill praying for an injunction and a receiver for a part- 
 nership, although the articles provide for six months' notice of dissolution 
 and a reference to arbitrators. 
 
 When Decreed. — Gowan v. Jeffries, 1840, 2 Ash. 296. Charges by on6 
 partner against his co-partner, of mismanagement, of insolvency of the part- 
 nership, and of a want of fair and perfect books, if established, justify the 
 court in decreeing dissolution. 
 
 lb. — Slemmer's Ap., 1868, 8 S. 168. Equity will decree dissolution where 
 serious differences have arisen between the partners which make it impossi- 
 ble to carry on the business with comfort and profit. 
 
 lb. — Drawing in Excess. — Moir v. Emerick, 1887, 3 Montg. Co. L. Rep. 
 161. A partner who draws more than his share of the profits from the 
 firm's assets, will be restrained by injunction, and in such case the partner- 
 ship will be dissolved and a receiver appointed. 
 
 IV. Jurisdiction. 
 
 Action on Case.— Crow v. Green, 1886, 1 Amer. 637. An action on tlife 
 case by a partner against his co-partner for damages, to which the plaintiff 
 would be obliged to contribute, cannot be sustained. Bill in equity or ac- 
 count rendered are the only remedies. 
 
 Articles— Provision in.— Clarke's Ap., 1884, 11 Out. 436. Where arti- 
 cles of partnership provided that any partner could assign his interest in 
 the firm, and that his assignee and the remaining partners should hold him 
 harmless, a partner who has retired, but who has not been held harmless, 
 has an adequate remedy at law and cannot bring a bill in equity for an ac- 
 count and receiver. 
 
 Contribution— Surety.— Christy's Ap., 1879, 11 N. 157. A suit by a 
 surety for a partnership to en force contribution from one alleged to be a part- 
 ner is a proper case for equity. 
 
. PAETNEKSHIP. ' 427 
 
 Specific Performance.— Wiley's Ap., 1877, 3 N. 270. Specific perform- 
 ance of the contract of partners, one ot whom has died, should be sought in 
 the equity side of the common pleas, not In the orphans' court. 
 
 Usury.— Sterrett 11. Jamison, C. P. Indiana, 1886, 17W.N. C. 347. Where 
 the only matter to be settled between partners is the recovery of usurious 
 interest paid by one to the other, a bill in equity will not lie. 
 
 V. Receiver. 
 
 Assets.— Rushton V. HarriDgton, C. P. 1874, 1 W. N. C. 79. A receiver 
 is entitled to all the assets of a firm, even commendatory letters to one of 
 the members. 
 
 Co-traders. — McDonough v. Bulloch, C. P. Dauphin, 1874, 2 Pears. 191. 
 Equity cannot appoint a receiver or take an account between co-traders who 
 are not partners. 
 
 Partner Appointed.— Warren v. Stagner, C. P. 1879, 7 W. N. C. 127. 
 Where it appeared that one of the partners would be entitled to nearly the 
 whole sum that would be realized from the assets, and there was no evi- 
 dence to impeach his integrity, the court appointed him receiver. 
 
 When Appointed. — Savage v. Weber, 1888, 5 Kulp, 91. In a motion 
 for the appointment of a receiver before heariug, the plaintiff must show a 
 clesiT prima facie right, with such attending circumstances of danger or prob- 
 able loss, as will move the conscience of a chancellor to interfere. 
 
 lb.— Simms v. Brouse, C. P. 1873, 30 Leg. Int. 84, S. C. lOPhila. 13. The 
 prayer of one claiming to be a partner and asking for a receiver and an in- 
 junction, will not be granted unless he can show himself to be actually a 
 partner. 
 
 lb.— Curtis V. Hale, C. P. 1875, 1 W. N. C. 371. Where articles of co- 
 partnership provide for winding it up, equity will not interfere by appoint- 
 ing a receiver. ^ 
 
 lb.— McGlensey v. Cox, 1852, 1 Phila. 387, S. C. 9 Leg. Int. 134, 5 Clark, 
 203, 1 Amer. L. Reg. 34. One who has purchased a partner's interest in a 
 firm which is immediately dissolved, is not "of course" entitled to a re- 
 ceiver. 
 
 lb.— Hilborn v. Covenant Publishing Co., C. P. 1883, 12 W. N. C. 548. 
 Upon a bill filed by creditors of a limited partnership, a receiver may be 
 appointed. 
 
 lb.— Hofl'man v. Steinbeisser, C. P. 1881, 11 W. N. C. 383. A receiver to 
 wind up a partnership will not be appointed when the firm assets are in the 
 hands of one of the partners for that purpose by agreement, unless it be 
 proved that he is abusing the trust. 
 
 lb.— Leimbach v. Leisner, C. P. 1875, 1 W. N. C. 199. Where one part- 
 ner has secretly agreed to sell the business to another, and the partnership 
 is insolvent, the court will appoint a receiver on the complaint of the oth'fer 
 }»artner. 
 
 lb.— Keller v. Young, C. P. Lancaster, 1869, 1 Lane. Bar No. 26. Tfae 
 appointment of a receiver should only be made where the plaintiff's equities 
 Will entitle him to a dissolution, and it should never be done before answer, 
 except upon affidavits establishing, without doubt, the facts set forth. 
 
 lb.— After Dissolution.— Firklestein v. Firklestein, 1887, 4 Kulp, 329. 
 An account and receiver will not be allowed after the dissolution of a part- 
 nership, because a partner has not been indemnified against the indebtfed- 
 ileSs of the firm, when the articles of dissolution contained no covenant ior 
 indemnity. 
 
428 PABTNEESHIP— PATENTS. 
 
 lb.— Defence.— Van Dusen V. Blake & Walton, 1887, 20 W. N. C. 45. 
 The appointment of a receiver of a partnership is no defence to a snit against 
 it, or its previously incurred obligation. 
 
 lb. — Il^unction. — Seibertu. Seibert, 1868, 1 Brews. 531. A partner who 
 has been excluded irom the firm is entitled to a receiver and^junction. 
 
 lb. — Practice. — Monroe v. Thompson, C, P. Lackawanna, 1 Lack. L. 
 Eec. 323. Equity may appoint a receiver for a partnership before appear- 
 ance entered and answer filed, but will only exercise this power in an ex- 
 treme case. 
 
 lb. — lb. — Gowan v. Jeffries, 1840, 2 Ash. 296. In a bill to wind up a 
 partnership already dissolved, the appointment of a receiver is practically 
 a matter of course, but where the bill asks for dissolution and a receiver, 
 the receiver will only be appointed when the affidavits and bill make out a 
 case, which if established, will compel the court to decree dissolution. 
 
 VI. Sale. 
 
 Decree — ^Mortgaged Property. — Stanhope v. Suplee, 1868, 2 Brews. 400. 
 Equity will restrain a partner at the suit of his associate from removing ma- 
 chinery necessary to the business, but will not decree a sale of mortgaged 
 property without hearing from the mortgagee. 
 
 PART PERFORMANCE. 
 
 [See Statute of Frauds.] 
 
 PARTY WALL. 
 [See Facts ; Injunction I W., II C. (a) ; Laches. 
 
 PATENTS. 
 
 Conclusiveness— Notice. — Woods v. Wilson, 1860, 1 Wr. 379. A patent 
 though not conclusive against a prior title, is not, on account of its incon- 
 clnsiveness, notice of a prior title. 
 
 Fraud in Reissue.— Everitt v. Hale, 0. P. 1882, 39 Leg. Int. 158, S. C. 
 15 Phila. 305. Where the assignee of a patent conspires with a third party 
 to have a prior patent reissued, so as to cut out the one assigned to him, he 
 will be compelled by equity to assign this latter patent to his original as- 
 signor. (Affirmed ; appeal pending U. S. S. C.) 
 
 Jurisdiction. — Slemmer's Ap., 1868, 8 S. 155. State courts either at law 
 or in equity may enforce a contract or trust, the subject matter of which is 
 a patent right, where the validity of a patent is not directly in question, 
 or where even that arises ex necessitate by way of defence to the action. 
 
 lb. — Slemmer's Ap., 1868, 8 S. 155. State courts sitting in equity can- 
 not decree assignment of a patent on the ground that it was issued to the 
 wrong party. 
 
PATENTS— PAYMENT. 429 
 
 lb.— Decree— Sale— Bakewell v. Keller, C. P. 1881, 11 W. N. C. 300, 
 S. C. 29 Pitts. L. J. 301. Our equity courts have no jurisdiction to decree 
 the sale of a patent right to satisfy a judgment. 
 
 Land— Defeating Title. ^Maclay v. Work, 1812, 5 Bin. 154. One hold- 
 ing land under a patent, is liable to have his title defeated by an imperl'ect 
 equitable title by settlement and improvement. The important question is 
 not who has the patent, but vrho ought to have it. 
 
 Set-off— Note.— Bradley v. Dubois, C. P. 1878, 6 W. N. C. 109. In an 
 action on a note given for a patent-right, damages arising from the plain- 
 tiff's interfering with a sale of an interest thereof by the defendant cannot 
 be set off. 
 
 PAYME3VX. 
 
 [See also Adjustment II ; Equitable Defence ; Mobtgage, &c. VII, 
 XVI B. (b 6) ; Practice and Pleading V.] 
 
 Attorney, Authority of— McMahon v. Bardinger, 1886, 18 W. N. C. 
 112. Payments on account of a mortgage to the attorney who acted for the 
 holder in having mortgage assigned to latter and afterwards in suing it out, 
 sustained the jury having considered these facts as sufficient to support a 
 findiog that the attorney was authorized to collect. 
 
 Conditional Verdict— Assignment of Plaintiff's Interest.— Riffle's 
 A'p., 1869, 3 Brews. 94. One paying the amount of a conditional verdict 
 and taking an assignment of plaintiff's interest in it, gets no right to the 
 judgment for possession. That is extinguished by payment. 
 
 Mortgage Money— When can be Made. —Patterson v. Judge, C. P. 
 1885, 17 W. N. C. 127. Where a mortgage is payable " in one year from 
 date," it can be paid at any time during the year. 
 
 lb. — lb.— Horstman v. Gerker, 1865, 13 Wr. 282. A mortgage "payable 
 in five year. ' ' is payable at any time within the five years. 
 
 lb.— Into Court.— Hofman's Est., 0. C. 1884, 14 W. N. C. 563. Pay- 
 ment of the amount of a mortgage into court and a decree for satisfaction 
 thereof, will not be allowed if there is a dispute, as to whether the mortgage 
 is yet due. 
 
 lb.— Life-Tenant.— Wandell's Est., 0. C. 1S83. 13 W. N. C. 143. Where 
 a life-tenant pays off a mortgage the presumption is that she intended the 
 satisfaction to result to the benefit of the remaindermen, her children, and 
 there will be no subrogation. 
 
 Notice. — Buchanan v. Taylor, C. P. 1793, Add. 155. A debtor who has 
 actual notice that a judgment against him has been pledged to another, 
 pays the plaintiff at his peril, although the assignment was not techi)ically 
 legal in form. 
 
 lb. — lb. — Guthrie v. Bashline, 1855, 1 C. 80. Payment of a judgment to 
 the original plaintiff after notice (actual or constructive) of its assignment, 
 is not good against the assignee. 
 
 lb. — lb. — Bury V. Hartman, 1818, 4 S. & E. 175. A payment made by 
 an obligor of a bond to the obligee without notice of a prior assignment of 
 the bond is good against the assignee. 
 
 Void — ^Payment to Assignee.— Hoffman v. Hoke, 1888, 7 Crum. 377. 
 Where a beneficiary with an insurable interest has assigned a policy of in- 
 surance to one without such interest, the assignment being illegal and void, 
 and the company has paid to the assignee, the administrator of the assured 
 cannot recover the money paid to defendant. 
 
430 PAYMENT — PETITION. 
 
 Voluntary Payment — Relief. — Dawson •». Insurance Co., 1888, 46 Leg. 
 Jnt. 4. Where a company resolved to increase its capital stock and offered 
 the same to the stockholders at par, with an additional sum for the privi- 
 lege of purchasing the same, and in event of the entire increase not being 
 so disposed of by a certain day, the remainder to be sold at auction, it was 
 ^Id that the payment of the bonus by a stockholder under protest was an 
 involuntary payment, which equity would cause to be refunded in an action 
 for money had and received. 
 
 PKACE, BILL OF. 
 
 Husband and Wife.— O'Neil v. Hamilton, 1862, 8Wr. 18. A daughter 
 under the will of her father was entitled to land bought by him but not 
 surveyed. She married and the deed was made by the vendor to her hus- 
 band. He sold the land to respondent who had notice of all the facts. She 
 brought this bill, praying that her title be quieted, that respondent be de- 
 clared a trustee and be ordered to convey the legal title to her. Hdd that 
 the district court had equity jurisdiction in the matter and that complain- 
 ant was entitled to the relief asked. 
 
 PEIIPEXUAXIOIV OF TESTIMONY. 
 
 [See also Practice and Pleading I.] 
 
 Requisites.— Settlebone v. L. V. Co., 1883, 4 Kulp, 349. A bill to per- 
 petuate testimony must state specifically the subject matter of the contro- 
 versy, and the facts upon which plaintiff wishes to examine witnesses. It 
 such plaintiff is in position actively to assert his right, either In law or 
 equity, such bill will not lie. 
 
 PERSOIVAL ESTATE. 
 [See Adjustment V.] 
 
 PERPETUITIES. 
 
 [See PowEB II ; Tbust and Trustees I B. (e.)] 
 
 Destructible Life Estate— Power of Appointment.— Mifflin's Appeal, 
 1888, 6 Crum. 205. A life estate granted with power ot appointment, and 
 likewise power to sell or mortgage, is destructible, and a testamentary ap- 
 pointment by the life-tenant to her children with power of appointment in 
 each cliild and limitations over, is not an infringement of the rule against 
 perpetuities. 
 
 PETITION. 
 
 [See Practice and Pleading I.] 
 
 Act of June 16, 1836— Averments in Petition. — Ex parte Mortpn, 
 1837, 3 Wht. 170. A petition under the act of June 16, 1836 (Trusts), ougjit 
 
PETITION— POWER. 431 
 
 to set forth the nature and ground of the claim, so that it may appear upon 
 the record what was asked and what was done. But the Supreme Court 
 ^11 not reverse a decree upon a petition deficient in this respect, when it 
 ^(ppeairs that there being other proceedings in the same matter^ the lower 
 court was cognizant of all the facts. 
 
 PHILADELPHIA . 
 
 [See SUPEEME COUET.] 
 
 PHYSICIAN. 
 
 [See Injunction II C. (a.)] 
 
 PLANING miLL. 
 
 [See Injunction ID.] 
 
 PLEADING. 
 
 [See Practice and Pleading.] 
 
 POSSESSION. 
 
 [See Estoppel I ; Mortgage, &c. XX ; Notice II D. ; Statute of 
 
 Frauds.] 
 
 POST-NUPTIAL SETTLEMENT. 
 
 [See also Estoppel I. ] 
 
 POViTER. • 
 
 I. In General. 
 II. Op Appointment. See Perpetuity. 
 
 III. Of Revocation. 
 
 IV. Of Sale. 
 
 I. In General. 
 
 Corporation— To Borrow Money— Preferred Stock.— West Chester 
 R. R. V. Jackson, 1875, 27 S. 321. Where a corporation has power to bor- 
 row money on a bond and mortgage, it may issue preferred stock, as that is 
 only a form of mortgage. 
 
432 POWEE. 
 
 lb.— Sale and Mortgage.— Watt's Ap., 1875, 28 S. 370, A power to 
 sell and lease given to a corporation includes a power to mortgage. 
 
 Defect in. — Pepper's Will, 1850, 1 Pars. 436. The provisions of the 
 statute of Elizabeth as to charitable uses are part of our common law. There- 
 fore where a will giving property to a charity is valid as a will, but as an 
 appointment does not conform exactly to the power given to the testator, 
 nor refer to it, equity will aid the defect in favor of the charity. 
 
 Discretionary. — Lantz v. Boyer, 1876, 31 S. 325. Under act Feb. 24, 
 1834, S. 67, any power, discretionary or otherwise, to sell land, given to 
 executors with a view to distribution among legatees, is a power virtute oj- 
 ficii and may be exercised by an administrator c. i. a. 
 
 lb.— Executor— Control Over.— William's Ap., 1873,238. 249. An ex- 
 ecutor and trustee in whom is vested a discretion, will not be controlled in 
 his exercise of it by equity, unless it appears that he is defeating the object 
 of the trust. The fact that he had promised the' testator to exercise it in a 
 certain way, does not make him incompetent. 
 
 Execution of.— Wynkoop v. Wynkoop, C. P. 1881, 38 Leg. Int. 149. 
 Where one owning both an interest and a power executes a deed reciting 
 the power, although not expressing any intention to execute it, which in- 
 tention may however be gathered from attendant circumstances, it will be 
 held that the power is executed. 
 
 lb.— Defective.— Desilver's Est., O. C. 1884, 41 Leg. Int. 274. Equity 
 will not favor a second husband who comes into court under the first hus- 
 band's will to ask that a defective execution of a powier be aided. 
 
 lb.— Evidence of— Power of Attorney.— Ehine v. Eobinson, 1856, 3 C. 
 30. An attorney attempted to assign a patent to land, but signed it "A., 
 att'y for B." Held, though not good at law as an execution of a power to 
 convey the land, yet as it contained an acknowledgment of the receipt of 
 the consideration, it would be considered evidence of an equitable title. 
 
 lb.— Valid.— McCurdy's Ap., 1870, 15 S. 290. A mortgage executed by 
 the directors of a corporation to a trustee, is a valid exercise of a power 
 given a corporation to make a mortgage. 
 
 Mortgage under Power — Proceeds. — McAleer's Ap., 1881, 3 Out. 138. 
 Where a trustee executes a mortgage solely by virtue of the power to sell 
 conferred upon him by the deed of trust, the proceeds of the sale under said 
 mortgage over and above the amount of the mortgage are subject to the 
 same trust as was the land. 
 
 New Uses— Charity Trustees. — Brown 71. Lutheran Church, 1854, 11 
 H. 495. Trustees for a charity have no power to create new uses, but a rati- 
 fication by the beneficiaries makes such act valid. 
 
 Reformation.— Lee v. Frich, C. P. 1875, 2 W. N. C. 11. Equity cannot 
 refornt a deed of trust by inserting therein a power, there having been no 
 mistake or accident in the legal sense, although all the parties in interest 
 are desirous of making the change. 
 
 Sole and Separate Use— Mortgage.— Grosser v. Homung, 1881, 10 W. 
 N. C. 463. A power to give a mortgage for purchase money contained in a 
 sole and separate use, does not confer the power to give a bond and warrant. 
 
 Testamentary— Execution of— Surviving Executor.— Philadelphia 
 Trust Co. V. Lippincott, 1884, 10 Out. 295. A testamentary power vested 
 in two or more executors may be well executed by the sole survivor, al- 
 though the will directs that in case any of the executors do not act "it 
 shall be the duty " of the acting executors to fill the vacancy by appoint- 
 ment. 
 
 To Mortgage. — Edmonson v. Nichols, 1853, 10 H. 74. An estate given 
 by a testator to his wife with power "to mortgage if she needs," and after 
 her death to his son, gives her power to mortgage the fee. 
 
POWEE. 433 
 
 lb.— Gordon v. Preston, 1833, 1 W. 385. A power given to a corporation 
 " to sell and dispose of" lands, includes a power to mortgage them. 
 
 To Trade— Trustee.— Matthews v. Stephenson, 1847, 6 Barr, 496. A 
 power given to a trustee to trade with property for the benefit of the cestui 
 ^ue trust, implies a power to contract debts. 
 
 What is a. — Bingham's Ap., 1870, 14 S. 345. A power is a trust lodged 
 in the donee. 
 
 lb.— Virtute Officii.— Lantz v. Boyer, 1876, 31 S. 325. Under act Feb- 
 ruary 24, 1834, S. 67, any power, discretionary or otherwise, to sell land 
 given to executors with a view to distribution among legatees, is a power 
 virtute officii, and may be exercised by an administrator cum testamento an- 
 nexo. 
 
 II. Of Appointment. 
 
 Estate Taken.— Pepper's Appeal, 1888, 5 Crum. 235. Where an es- 
 tate is limited by will of a testator to a class of which A. is the only mem- 
 ber, and where a trust has not been created, and the donee of the power of 
 appointment is not authorized to appoint a forfeitable estate, an appoint- 
 ment conveys an absolute estate. 
 
 Execution of.— Neilson's Est., O. C. 1886, 17 W. N. C. 326, S. C. 43 Leg. 
 Int. 119. Where a person is given full power to dispose of certain property 
 among a certain class, and in his disposition does not give to each member 
 of that class, the disposition is not a good execution of the power. 
 
 lb. — Moss V. Pennsylvania Ins. Company, C. P. 1877, 4 W. N. C. 3.58. A 
 ■will bequeathing all the testator's property, "no matter from what soufce 
 I have derived it," is a valid execution of a power of appointment. 
 
 lb. — Construction of Instrument. — Thomson v. Garwood, 1837, 3 Wh. 
 287. Where a general power of appointment has been executed, the inten- 
 tion of the party executing the power is to be sought in the instrument by 
 which the appointment is made, and the construction of that instrument 
 can not be affected by any clauses in the instrument by which the power 
 was created. 
 
 lb.— Will.— Fry's Est., C. P. 1876, 33 Leg. Int. 238, S. C. 11 Phila. 305. 
 A will executed before a deed of trust is not a good exercise of a power of 
 appointment reserved in the deed. 
 
 Extent of.— Horwitz V. Norris, 1865, 13 Wr. 213. A power of appoint- 
 ment among children does not authorize a general or partial appointment to 
 grandchildren. 
 
 Husband and Wife.— McClintock v. Cowen, 1865, 13 Wr. 256. Where 
 a deed of trust for the wife gave a general power of appointment to the hus- 
 band, but this clause was added, " But in case the wife should survive the 
 husband, then in trust for the wife, her heirs, &c." It was held that the 
 power did not arise unless the husband survived the wife. 
 
 Interest of Appointees.— Freedley's Ap., 1869, IDS. 344. A testator 
 devised a sum to A. in trust for and to be divided amongst his nine chil- 
 dren in such manner and at such times as he sees fit. Held not to be a strict 
 trust, but a confidence that in the end A. would distribute the fund among 
 his children. The children, therefore, have no claim on the income, but 
 may demand that A. give security for the principal. (Read J. dissents.) 
 
 Perpetuity— Construction— First Instrument.— Smith's Ap., 1879, 7 
 N. 492. Te determine whether the exercise of a power of appointment 
 creates a perpetuity, the appointment and the instrument creating the 
 power must be read as one instrument, and if under the disposition made 
 by the two papers the rule might have been broken (the appointment being 
 28 — EQUITY. 
 
434 POWER. 
 
 to a class), the appointment is void, though in fact all the appointees were 
 alive when the first instrument took effect. 
 
 Trust — Power not Implied in. — Stahl i>. Crouz, 1845, 1 Barr, 111. A 
 provision in a trust for a married woman that itshall be subject to her order 
 only, gives her no right to dispose of it by an appointment in the nature of 
 a will. 
 
 Uses— Kevoking and Appointing new. — Hoover v. Samaritan Society, 
 1839, 4 Wh. 445. A power to revoke uses and to appoint and declare new 
 ones, may be executed by one and the same instrument, unless such execu- 
 tion is expressly prohibited in the deed creating the power. 
 
 III. Of Revocation. 
 
 Absence of. — Fellows ». Heermans, C. P. Luzerne, 1878, 8 Luz. L. Keg. 
 35, S. C. 36 Leg. Int. 451. Where one makes a conveyance of land in trust, 
 there being no fraud or jnisrepresentatiou, and the instrument not being in 
 its nature testamentary, he will not be allowed to revoke it, there being no 
 power of revocation reserved in the deed. 
 
 lb.— Good Faith. — Miskey's Ap., 1883, 11 Out. 611. One claiming under 
 a voluntary deed in which there is no power of revocation, must show af- 
 firmatively good faith and no undue influence, especially where the grantor 
 is of feeble mind and the grantee is in his confidence. 
 
 lb.— Reformation.— Mausbach v. Meyer, C. P. 1885, 16 "W. N. C. 241. 
 Where a person creates a trust in his own favor without any power of revo- 
 cation, the court will upon his application revoke it, there being no objec- 
 tioti from any source. 
 
 Death of Trustee.— Wilson v. Stewart, D. C. 1858, 15 Leg. Int. 52, S. 
 C. 3 Phila. 51. A power to sell lands executed by trustees, is not necessa- 
 rily revoked by the death of one of them. 
 
 Improvident Deed. — Rick's Ap., 1884, 41 Leg. Int. 367. An improvi- 
 dent deed of trust will he set aside where it appears that the party was in- 
 formed that she could not include a power of revocation. 
 
 Trust and Will.— Taylor V. Smiley, C. P. 1880, 9 W. N. C. 30, S. C. 37 
 Leg. Int. 282, 14 Phila. 76. A deed of trust containing a power of revoca- 
 tion may be revoked by a will containing no reference to the power. 
 
 IV. Of Sale. 
 
 Discretionary— Exercise of— Trustee.— Cresson jr. Ferree, 1872, 20 S. 
 446. A discretionary power of sale was given to trustees. ITeld this could 
 be exercised by those appointed in their stead by the orphans' court under 
 the act AprU 22, 1846, S. 1, P. L. 483. 
 
 lb.— lb.— Chew V. Chew, 1857, 4 C. 17. The orphans' court wiU not 
 control trustees in the exercise of a discretionary power in the absence of 
 bad faith. 
 
 lb.— Survival of.— Dorff's Ap., 1881, 10 W. ISr. C. 335. A discretionary 
 power of sale given to executors survives to an administrator d, b. n. c. t. a. 
 
 Execution — Parol Sale. — Silverthorn ' v. MoKinster, 1849, 2 J. 67. A 
 general power to sell given by a will may bo well executed by a parol sale. 
 
 lb. — Agreement. — Marvine ». Drexel, 1871, 18 S. 362. A. having a con- 
 tract to buy land assigned it to B,, under an agreement that on a resale 
 whenever B., "as owner," should see fit, A. should have one quarter of the 
 
POWBK — PEACTICK AND PLEADING. 435 
 
 profits ; in the meantime A. paid interest on one quarter thopurchase money. 
 B. died, having directed his executors to sell whenever they thought propKi-. 
 Equity will restrain them from exercising this right contrary to the spirit 
 of the agreement, and having taken hold of the case will do justice by ap- 
 pointing a receiver to sell it. 
 
 lb.— Compellmg.— Wells v. Sloyer, 1841, 1 Clark, 516, S. C. 3 Pa. L. J. 
 203. A power to sell coupled with a trust may be executed after the time 
 limited by the will has passed, and if the trustee refuses to carry it out, 
 equity wUl see that it is executed. 
 
 lb. — ^Ib., — Miller v. Meetch, 1848, 8 Barr, 417. A direction to executors 
 to sell real estate for the payment of debts within a certain time, is not a 
 mere naked power but a trust, and therefore inoperative, and equity will 
 compel an execution even after the time appointed by the testator. 
 
 Executors— Jurisdiction.— Bell's Ap., 1872, 21 S. 465. The orphans' 
 court has exclusive jurisdiction of cases of specific performance of sales "f 
 land made by executors under a power in the will. 
 
 Execution — Specific Performance. — Philadelphia and Reading E. E. r. 
 Lehigh Navigation Co., I860, 12 C. 204. Although equity will not decree 
 specific execution of a contract not conformable to the power under which 
 it is made, nor change it so as to be conformable to the power, yet if it is 
 substantially a performance, equity does not allow small matters to inter- 
 fere when compensation can be made. 
 
 lb. — Time. — Phillips V. Zerbe Run Co., 1855, 1 C. 56. A conveyance in 
 trust to sell the land within two years and pay a creditor the balance in 
 trust for the grantor, is not ended by the fact that no sale is made during 
 the two years. 
 
 Injunction. — Bancrofts. Ashhurst, 1860, 2 Gr. 513. A trustee in a deed 
 of trust in the nature of a mortgage with a power of sale, will not be re- 
 strained from using it, since it is irrevocable. 
 
 Mortgage.— Fidelity Trust Co. v. Wurfflein, 1884, 15 W. N. C. 28, afl'g 
 S. C. 14 W. N. C. 76. A power to sell includes a power to mortgage. 
 
 lb. — McAleer's Ap., 1881, 3 Out. 138. Where a trustee executes a mort- 
 gage solely by virtue of the power to sell conferred upon him by the deed 
 of trust, the proceeds of the sale under said mortgage over and above the 
 amount of the mortgage, are subject to the same trust as was the land. 
 
 Sell and Mortgage— Exhaustion of. — Assay v. Hoover, 1846, 5 Barr, 
 21. A power to sell, mortgage or devise in fee is not exhausted by a mort- 
 gage, the estate may be devised subject to the mortgage. 
 
 Trust. — Zane v. Kennedy, 1873, 23 S. 182. A power of sale is well exe- 
 cfated by a sale to one in trust to mortgage the property. 
 
 rO'WER OF ATTORNEY. 
 
 [See Assignment I, II, III.] 
 
 PRACTICE AK» PL,EAI»ING. 
 
 See Account II A. ; Adjustment VII C ; VIII A. ; Amendment II, III : 
 Answer ; Appeal ; Appeaeanob ; Assignment IV ; Attachment 
 IV ; Chaeity I C. ; Coepoeation III, IV ; Costs ; Couet and Jury ; 
 Ceoss-Eill ; Decree ; Demueeee ; Discoveey III ; Discretion 1 ; 
 Ejectment V ; Equitable Actions ; Equitable Defence ; Injuni- 
 TioN II; Issue; Judgment; Master II; Moetgage, Mortqaqok 
 
 AND MOETGAGKE XVI A. B. (b. 6) ;. ORPHANS' COURT ; PAETIES. 
 
436 PRACTICE AND PLEAniNO. 
 
 I. In General. 
 II. Bill of Keview. 
 
 III. Books and Papers, Production of. 
 
 IV. Multifariousness. 
 T. Pleadings. 
 
 "VI. Belief. 
 VII. Statute of Limitations. 
 
 I. In General. 
 
 Abatement— Plea in — Proceedings at Law.— Brooke v. Phillips, N 
 P. 1867, 24 Leg. Int. 132, S. C. 6 Piiila. 392. A pending suit at law is noi 
 pleadable in abatement of an equity suit, nor is a plea of a pending equity 
 suit good unless it sets forth that the whole relief sought in the pre.sent case 
 can be had in the one pleaded. 
 
 Act June 16, 1836— Averments in Petition. — Ex parte Morton, 1837, 
 3 Wh. 170. A petition under the act of June 16, 1836 (Trusts), ought to 
 set forth the nature and ground of the claim, so that it may appear upon 
 the record what was asked and what was done. But the Supreme Court 
 will not reverse a decree upon a petition deficient in this respect when it 
 appears that there being other proceedings in the same matter the lower 
 court was cognizant of all the facts. 
 
 lb. — Supreme Court— Bill and Subpoena. - .Ex parie Hnssey, 1836, 2 
 "VVhart. 330. The proper proceedings under the act June 16, 1836, S. 13 
 (giving the Supreme Court equitable jurisdiction over trusts), is by bill and 
 subpoana and not by petition. 
 
 Action at Law on Foreign Decree. — Evans v. Tatem, 1823, 9 S. & e. 
 :352. An action at law can be brought in Pennsylvania on a decree in equity 
 in Tennessee. In such case the plea must be framed to meet the case ; nil 
 debet and nul tiel record are both bad on general demurrer. The plea must 
 conclude to the country. 
 
 Actions — ^Injunction — Judgment Creditor.— Dent v. Ross, I860, 11 C. 
 
 337. An owner of land who has an equity to restrain a judgment creditor 
 of a former owner from proceeding against the land, must do so by bill in 
 equity and not by a rule in a suit at law between the other parties. 
 
 Amendment to Bill — School Board- Tax. — Forward School District's 
 Ap., 1867, 6 S. 318. Complainant petitioned a judge to restrain the school 
 directors from levying a tax. and asking for a rule to show cause why she 
 should not be exonerated. The order was made and the next term she pre- 
 sented a more elaborate petition, and the court granted an injunction, at 
 the same tipie telling her to amend by filing a paper stating that she claimed 
 the relief Irom the equity side of the court. Held to be irregular. 
 
 lb. — Substance and Form — Supreme Court.— Darlington's Ap., 1878, 
 .'S jST. 512. A bill may be amended when before the Supreme Court, if it 
 has substance to amend it by, and is only defective in form. 
 
 Answer— When Conclusive. — Appeal of Rowley et al., 1886, 5 Am. 155. 
 An answer responsive to the bill is conclusive except when overcome by the 
 testimony of two witnesses, or one witness and corroborating facts equiva- 
 lent to a motion. See Eaton's Appeal, 16 P. P. S. 483 : Cresson's Apneal, 
 10 N. 168. 
 
 Answer of Co-Defendant— Evidence. — Eckman v. Eckman, 1867, 5 S. 
 269. Where one defendant in equity claims through his co-defendant, the 
 answer of the latter is evidence against the former ; and the same rule ap- 
 plies to joint tenants, but not to tenants in common. 
 
PRACTICE AND ]"LEA])INO. 437 
 
 Ante-Nuptial Settlement— Enforcement of.— "White v. Hart, 1793, 1 
 Y. 221. 1*116 courts will enforce the provisions of an ante-nuptial settlement 
 giving power to the wife to dispose of her real estate by will. 
 
 Appeal — Joint. — Adamson-s Ap., 1885, 14 Out. 462. Separate and in- 
 dependant claimants on a fund realized by a sherifif's sale of personal 
 property, have no right to appeal jointly from a decree j}( distribution. 
 
 lb.— Set-off.— Horton v. Miller, 1863, 8 Wr. 256. A party aggrieved by 
 a decision affecting equitable set-off, should appeal, not take out a writ of 
 error. 
 
 Appearance and Answer— Estoppel— Waiver of Jurisdiction.— 
 Loan Association v. Mayer, 1888, 45 Leg. Int. 246. An appearance or an- 
 swer is a waiver of jurisdiction when it is in the nature of an estoppel. 
 
 ApDlication^Time of Sale. — Philadelphia Bank v. Aldridge, D. C. 
 1864, 21 Leg. Int. 236, S. C. 5 Phila. 446. Upon application by a creditor 
 who holds a collateral, the court will appoint a time for its sale unless 
 sooner redeemed. 
 
 Assistance — Writ of. — Commonwealth t Dieffenbach, N. P. 1854, 3 Gr. 
 368, S. C 3 Luz. L. Obs. 402. Where a decree of equity is that lauds in 
 the county be delivered, a writ of assistance to the sheriff is a matter of 
 course which the prothonotary may issue. 
 
 Attachment Against Witness — Discretion. — Eobb v. Pepper, C. P. 
 1882, 39 Leg. Int. 229. In equity it is a matter within the discretion of 
 the court to permit an attachment to issue against a witness without pre- 
 vious service of the rule upon him. 
 
 lb.— Service.— Robb v. Pepper, C. P. 1882, 11 W. N. C. 497. In chan- 
 cery an attachment may issue although there has been no personal service 
 on the party. 
 
 Auditor— Authority of— Money in Court.— Souder's Ap., 1868, 7 S. 
 498. Money being in court and before an auditor for distribution, he may 
 determine not only to what lien the money should be appropriated, but 
 also who is the owner of that lien. Being a court of equity it may compre- 
 hend and decide all incidental matters. In such case, however, an issue 
 may be demanded. 
 
 lb.— lb.— Collateral Attacks.— Mechley's Ap., 1883, 6 Out. 536. An 
 auditor for distribution may determine collateral attacks by creditors on 
 judgments, in which it is alleged the defendant was a party to the fraud, 
 but not those in which the fraud was perpetrated by the plaintiff against 
 the defendant. 
 
 lb. — lb. — Mortgagee. — Association v. McBonald, D. 0. 1864, 21 Leg. 
 Int. 224, S. C. 5 Phila. 442. The question whether a mortgagee made an 
 agreement postponing his mortgage in favor of one about to be created, is a 
 proper one for an issue before an auditor. 
 
 lb. — lb. — ^Registry Evidence. — McElrath v. Pittsburgh and Stenben- 
 ville E. R., 1871, 18 S. 37. An auditor appointed to distribute money under 
 a decree of the court is right in rejecting all evidence except that tending 
 to show who are those named by the decree. 
 
 lb. — lb. — Hermstead's Ap., 1869, 10 S. 423. An auditor made a report 
 finding facts, but stating that he had not been requested to take down the 
 testimony. Held, that the case should be sent back to him to take down 
 the testimony, and that his action did not prejudice either party. 
 
 lb.— lb.— Irregular Judgment.— Edward's Ap , 1870, 16 S. 89. An 
 auditor in distributing funds cannot disregard an irregular judgment. 
 
 lb.— lb.— Second National Bank's Ap., 1877, 6 N. 153. An auditor can- 
 not inquire into the validity of a judgment valid on its face, but may hear 
 evidence tending to show its payment. 
 
 lb.— lb.— Orphans' Court.— McGettrich's Ap., 1881, 2 Out. 9. An au- 
 ditor under the orphans' court to distribute the proceeds from the sale of a 
 
438 PRACTICE AND PLEADING. 
 
 decedent's real estate among his heirs, has jurisdiction to inquire into the 
 validity of a deed under which a stranger claims an heir's share. 
 
 lb.— Assignment— Adverse Claimants.- Okies' Ap., 1844, 9 W. &S. 
 156. An auditor appointed to settle the account of an assignee for creditois 
 cannot consider the claim of one claiming adversely. 
 
 lb.— lb.— Williams' Ap., 1882, 13 W. N. C. 217. An auditor appointed 
 to settle the accounts of the assignee for creditors, cannot entertain the claim 
 of one who does not come in under the assignment. 
 
 lb. — Fees. — Snyder's Ap., 1867, 4,S. 67. An allowance by the auditor 
 and lower court of three per cent, commissions to the executor for selling 
 real estat«, will not he disturbed in the Supreme Gonrt without strong af- 
 lirmative evidence. Counsel fees and auditor's fees remarked on. 
 
 lb.— lb. — Fitzsimmon's Ap., 1846, 4 Barr, 248. An auditor is entitled 
 to compensation for distributing a fund in court. 
 
 lb.— lb.— Who Must Pay.— St. Joseph's Orphan Asylum's Ap., 1861. 2 
 Wr. 535. An auditor's fee mugt be paid by the party at whose instance he 
 was appointed, though at the conclusion of the controversy such fee may be 
 taxed as costs against the losing party. 
 
 lb. — Issue may be Granted by.— Goodwin v. Sheppard, C. P. 1859, 16 
 Leg. Int. 221, S. C. 3 Phila. 441. Where there is a distinct allegation of 
 fraud and collusion between mortgagors and mortgagee, an auditor may 
 giant an issue to try the bona fides of the mortgage. 
 
 lb.— Must Consider Claim.- Geist's Ap., 1883, 8 Out. 351. An auditor 
 for distribution cannot recognize or pass upon claims presented which are 
 hostile to the assignment under which he was appointed. 
 
 lb. — Non-presentation of Claim.- McLelian's Ap., 1856, 2G. 463. One 
 who does not present his claim before an auditor has no standing to except 
 to his report. 
 
 lb.— Report— Attack of— Collaterally.— Finnel v. Breer, 1876, 31 S. 
 362. The report of an auditor for distribution cannot be attacked collater- 
 ally as to any matters which could have properly come before him for de- 
 cision. 
 
 lb.— lb.— Of Assignee Confirmed- Other Claimants. — Wylie's Ap., 
 1879, 11 N. 196. Where the report of an assignee for creditors has been 
 confirmed, and an auditor appointed to make distribution, the latter has no 
 powers to hear the claims of others than creditors. 
 
 lb.— Keversal of Finding by Supreme Court.— Rudy's Est., 1876, 2 
 W. N. C. 674. The Supreme Conrt will hardly reverse the findings of fact 
 by an auditor, the same having been confirmed by the lower court. 
 
 lb.— lb. — Coke's Ap., 1885, 14 Out. 65. The report of an auditor upon 
 a question of fact, approved by the court below, may be set aside by the 
 Supreme Court when the questions decided are inferences from clearly proven 
 fact, or conclusions from reasoning, and the Supreme Court is of the opinion 
 that the auditor was in error. 
 
 lb.— lb.— Miller's Ap., 1883. 6 Out. 544. The finding of facts by an au- 
 ditor reversed in the Supreme Court, although sanctioned by the lower 
 (»urt. 
 
 Averments in a Petition^Title— Estoppel.— Garber v. Doersom, 1887, 
 i Crum. 162. The averments of a petition filed in a judicial proceeding re- 
 lating to the title of property, will estop the petitioner from showing in a 
 subsequent proceeding involving the same subject matter, a title different 
 from that he formerly averred. 
 
 BiU in Kftuity — Injunction.— Dent v. Ross, 1860, 11 C. 337. An ovmer 
 of land who has an equity to restrain a j udgment creditor of a former owner 
 from proceeding against the land, must do so by bill in equity, and not by 
 a rule in a suit at law between the other parties. 
 
PEACTICE AND PLEADING. 439 
 
 lb.— Stockholders Against Corporation Holdiner Stock.— Shaer v. 
 Penna. Canal Co., C. P. 1884, 41 Leg. Int. 165. Where a majority of the 
 iitock of one corporation is held by another, under a contract, tjtie holders of 
 a minority of the stock of the first, can maintain a bill against the second 
 without having first called upon their own corporation to have the contract 
 enforced. 
 
 lb.— lb.— For Discovery— Certificate of Counsel— Amendment.— 
 
 Dick's Ap., 1884, 10 Out. 589, S. C. 42 Leg. Int. 69. A bill which prays for 
 an injunction to restrain the defendants from making certain machinery, 
 for discovery, and for an account, must be accompanied with a certificate 
 of counsel that there is no adequate remedy at law ; but it is error lor 
 the court to refuse to allow such a certificate to be filed nunc pro tunc by 
 way of amendment, though the case has been before a master. 
 
 lb.— For Account— Release— Examiner— Dampfs Ap., 1884, 10 Out. 
 72. Where a bill asks an account, and the defendant partner sets up a re- 
 lease, it is proper for the court to direct the examiner to take testimony 
 only as to the liability to account. 
 
 lb.— By Defendant— Pleading.— Piatt v. Barcroft, D. C. I860, 17 Leg. 
 Int. 140, S. C. 4 Phila. 67. Where a defendant, in an action at law, files a 
 bill of discovery against the plaintiff and othets, who, he claims, should 
 have been plaintiffs, their proper course is to plead or disclaim, but not to 
 demur. 
 
 lb.— Title Shown.— Thurlow v. Brightly, 1887, 44 Leg. Int. 112. In 
 order that the names of the defendants in a bill of discovery in aid of exe- 
 cution should be entered on the j udgment index, under act of June 15, 1871, 
 sec. 1 (P. L. 387), it is not necessary that any realestate should be actually 
 described in the pleadings. It is enough that the title to real estate ap^ 
 pears indifferently to be in dispute. 
 
 Bill to Perpetuate Testimony. — Pettebone v. L. V. Coal Co., 1883, 4 
 Kulp, 349. A bill to perpetuate testimony must state specifically the subject 
 matter of the controversy, and the facts upon which plaintiff wishes to ex- 
 amine witnesses. If such plaintiff is in position actively to assert his right," 
 either in la w or equity, such bill will not lie. (See 353. ) 
 
 Building Association — Shareholder — Action.— O'Eourke v. West 
 Penn Building Association, C. P. 1879, 8 W. N. C. 176. A building asso- 
 ciation is no exception to the rule that a shareholder of a corporation cannot 
 sue the company at law, but must file a bill in equity. 
 
 Certificate of Counsel— Allowed After Demurrer.— Thomas v. Hall, 
 0. P. Dauphin, 1869, 2 Pears. 64. Under act October 13, 1840, a bill in 
 equity should be accompanied with the certificate of counsel that there is 
 no adequate remedy at law, but the certificate may be allowed after de- 
 murrer. 
 
 lb.— Bill not Demurrable for Want of —Ward v. Mooney, C. P. 1881,, 
 10 W. N. C. 256. A bill is not demurrable because unaccompanied with 
 certificate of counsel that there is no adequate remedy at law. 
 
 lb.— Injunction— Account — Amendment.— Dick's Ap., 1884, lo Out. 
 589, S. C. 42 Leg. Int. 69. A bill which prays for an injunction to restrain 
 the defendants from making certain machinery, for discovery, and for an 
 accc ant, must be accompanied with a certificate of counsel that there is no 
 adequate remedy at law ; but it is error for the court to refuse to allow such 
 a certificate to be filed nunc pro tunc by way of amendment, though the 
 case has been before a master. 
 
 lb.— Partners.— Backman V. Einhorn, C. P. 1878, 5 W. N. C. 250, S. C. 
 35 Leg. Int. 120, 12 Phila. 391. A bill for an account between partners does 
 not in Philadelphia county have to be accompanied with certificate of coun- 
 sel that the law affords no adequate remedy. 
 
440 PRACTICE AND PLEADING. 
 
 Choses in Action— Assignment — Action. — Sellers v. Cooper, 3 Leg., 
 and Ins. R. 61. The assignee of a c/tose inaction may maintain assumpsit 
 in his own name on an express promise to pay ; but he must set forth in 
 his declaration the original consideration. 
 
 Common Counts.— Deysher v. Triebel, 1870, 14 S. 383. A count for 
 money had and received has always been looked upon as governed by equi- 
 table principles, and lies only where the defendant ought ex aeque et boiu> 
 to refund the money. 
 
 Costs— Appeal. — Joyce v. Taylor, 1885, 44 Leg. Int. 482. Where the 
 terms of a decree were "the costs of this appeal," the party was chargeable 
 ■with the costs or appeal only. Not with the other costs in the suit. 
 
 Cross-Bill — Hearing. — Randolph's Ap., 1870, 16 S. 178. Where a cross- 
 bill has been filed it is customary to hear both bills together, and it is not 
 error even to hear the cross-bill first if it seems to raise a preliminary ques- 
 tion. 
 
 Decree — Joint — Corporation. — Appeal of McCarty et al., 1885, 14 Out. 
 
 379. In a suit by a receiver against the former officers and directors of an 
 insurance company for misappropriation of the funds of the company, it is 
 proper to render a joint decree against all the defendants. 
 
 lb.— Answer— Denial* of Indebtedness.— Koons v. Bute, C. P. 1856, 
 
 13 Leg. Int. 317, S. C. Phila. 170. Where an answer admits facts which 
 show the defendant to be an accounting party, a positive denial of indebt- 
 edness will not prevent a decree to account. 
 
 De Lunatico Inquirendo— Powers of Court. — Hassenplug's Ap., 1884, 
 10 Out. 527. In proceedings de lunatico inquirendo, the court has the pow- 
 ers of a court of chancery, and under the act April 16, 1848 (P. L. 663), may 
 dispose of the costs in such manner as shall seem fit. 
 
 Demurrer — Remedy at Law. — Adams v. Beach, 1850, 1 Phila. 99, S. C. 
 7 Leg. Int. 178. If a case is before chancery when the remedy is at law, 
 the remedy is by demurrer and not by objecting to the jurisdiction of the 
 court. 
 
 Dismissal of Bill. — Danzeisen's Ap., 1873, 23 S. 65. Equity will not 
 dismiss a bill charging that defendant is a trustee, when he is not such but 
 a mortgagee, if the same liability to account exists. 
 
 lb. — Complainant Without Consent. — Gravenstine's Ap., 1865, 13 Wr. 
 310. A party made a complainant in a bill in equity without his consent, 
 is entitled to have the bill dismissed as to him. 
 
 lb. — Master's Report Advising. — Nece v. Pruden, C. P. 1871, 1 Camp. 
 137, S. C. 3 Leg. Gaz. 94, 23 Leg. Int. 100, 8 Phila. 350. Where a master 
 has reported that a bill should be dismissed, the court will not refer the case 
 back to the examiner to take additional testimony, except in cases of plain 
 mistake. 
 
 lb.— Laches.— Wiison v. Rusling, C. P. 1879, 36 Leg. Int. 124, S. C. 13 
 Phila. 48. A bill will not necessarily be dismissed because the complain- 
 ant has not moved for a year. 
 
 lb.— lb.— Gordon v. Beyer, C. P. 1884, 41 Leg. Int. 165. Where a bill 
 ■was filed in 1858, the master's report and exceptions thereto in 1872, and 
 the exceptions argued in 1884, after the master was dead and some of the 
 evidence and many of the vouchers lost, the bill was dismissed. 
 
 Ejectment — Trustee. — Cooper v. Henderson, 1813, 6 Bin. 189. Trustees 
 can support ejectment in their own nan\es without disclosing their character 
 on the record. 
 
 lb. Purchase Money— Part Performance— Burden of Proof.- 
 
 Walker v. France, 1886, 43 Leg. Int. 270. In an action of ejectment to 
 recover balance of purchase money due, if the defendant shows a partial 
 failure to perform on the part of plaintiff', the burden is on the latter tO' 
 show the immateriality of the part not performed. 
 
PRACTICE AND PLEADING. 441 
 
 Error— Conditional Ejectment— Parol Contract— Title.— Gill v. Gill, 
 1860, 1 Wr. 312. An attempt to settle in an action of ejectment by a con- 
 ditional verdict, the damages due from one to another for the breach of a 
 parol contract conveying no title, is error 
 
 lb. — Facts Establishing Estoppel— Jury.— Berg v. McClaiferty, 1888, 
 21 W. N. C. 547. Where the facts stated in a point which the court is 
 asked to affirm, tended to establish an estoppel and the facts were prop- 
 erly left to the jury, it is error for the court absolutely to refuse the point. 
 
 Foreign Decree— Action on. — Evans v. Tatem, 182:^, 9 S. & E. 252. An 
 action at law can be brought in Pennsylvania on a decree in equity in Ten- 
 nessee. In such case the plea m-ust be framed to meet the case ; nil debet 
 and nul iiel record are both bad on general demurrer. The plea must con- 
 clude to the country. 
 
 Husband and Wife— Petition for Dismissal — Signing.— Pryor v. 
 Pryor, 1888, 5 Kulp, 55. Where a bill in equity brought by husband and 
 wife is sought to be dismissed, the petition for dismissal should be signed 
 by both husband and wife. 
 
 Impertinence and Surplusage.— Insurance Co. v. Bauer, D. C. 1873, 
 30 Leg. Int. 304, S. C. 9 Phila. 147. The 4th and 8th equity rules as to 
 exceptions to a bill for impertinence and surplusage are to be construed to- 
 gether. 
 
 Injunction — Public Improvement. — West Phila. R. R. v. Perkins, 1873, 
 
 4 Brews. 173, rev'g 30 Leg. Int. 100. An injunction cannot issue at the 
 suit of a private party to restrain public commissioners from removing that 
 property to commence a public improvement. 
 
 lb.— lb.— Windrim v. Phila., C. P. 1871, 1 Camp. 311, S. G. 3 Leg. Gaz. 
 3,58, 28 Leg. Int. 348, 8 Phila. 361. See 4 Leg. Gaz. 86, 29 Leg. Int. 84, 9 
 Phila. 550. Equity will not enjoin the erection of a public work at the suit 
 of the architect who has not been paid, especially where his right seems 
 doubtful. 
 
 Interpleader — Garnishee. — Hamilton v. Hitner, 1887, 3 McL. R. 95. 
 A bill in equity by a garnishee to compel parties to interplead, will lie 
 when the interests are numerous and the ganiishee disclaims title. 
 
 Irreparable Injury. — Johnson v. Kier, 1870, 3 Crum. 204, S. C. 17 Pitts. 
 L. J. 904. It is not enough for a bill to allege irreparable injury, it must 
 set out the facts and let the court judge. 
 
 Issue — Assignee for Creditors. — Frank's Ap., 1868, 9 S. 19,0. An issue 
 in the settlement of the accounts of an assignee for creditors is not demand- 
 able of right. 
 
 Judgment— Want of Proper Parties.— Bishop v. Culver, 1875, 1 W. 
 H. C. 272. A judgment on a demurrer to a bill in equity for want of proper 
 parties is not a final decree, and no appeal lies. 
 
 lb.— Executor— Affidavit of Defence.— Dutil v. Sully, 1881, 9 W. N. 
 C. .573. A judgment for want of an affidavit of defence against the execu- 
 tor of a ierre tenant who before his death had been admitted to defend in a 
 suit on a mortgage, is irregular. 
 
 lb. — Pasrment Under Compulsion— Effect of —Fleming v. Beaver, 
 1826, 2 R. 128. Actual payment discharges a judgment at. law, but not in 
 equity, if justice so requires, and the party making it does so under com- 
 pulsion and not voluntarily. 
 
 Jurisdiction— Exceptions to, in Answer— Costs.— Maguire's Ap., 
 1883, 6 Out. 120. A defendant in equity may either demur to the jurisdic- , 
 tion or except to it in his answer, nor is he liable to costs for taking the 
 latter method of objecting. 
 
 lb.— Waiver of— Loan Association v. Mayer, 1888, 45 Leg. Int. 346. 
 A appearance or answer is a waiver of jurisdiction when it is in the nature 
 of an estoppel. 
 
442 PKACHCE AND PLEADING. 
 
 Jury— Release by Prior Encumbrancer.— Mutual Assurance Co. ». 
 Power, C P. 1877, 3 W. N. C. 407. The question whether a prior encum- 
 brancer who has released part of his security to the prejudice of ajunior en- 
 cumbrancer, had notice of the claims of the latter should go to the jury 
 under proper instructions. 
 
 Master— Further Evidence.— Freeman «. Stine, C. P. 1879, 36 Leg. 
 Int. 422. A defendant will not be allowed to present farther evidence after 
 the testimony has been sent to a master. 
 
 Tb.— Question not Raised by Pleadings— Error. — Morio's Ap., 1884, 4 
 Penny. 398. Where the question was whether a mortgage given by a re- 
 mainder man to the lite tenant was fraudulent as to the wife of the remain- 
 der man, and the bill further alleged waste on the part of the life-tenant, 
 but contained no prayer to restrain it or for general relief, it was error in 
 the master, after finding the testimony insufadent to support the charge of 
 fraud and waste, to decide another question not raised by the pleadings, as 
 to the amount for which the mortgage could be held. 
 
 lb. — Special Reference to— Partnership.— Christy's Ap., 1879, 11 N. 
 1.57, S. C. 27 Pitts. L. J. 233. "Where the prayers in a partnership bill are 
 for account and contribution, and one of the defendants denies that he was 
 a partner, the proper practice is to make a special reference to a master, to 
 determine his liability before examining into the accounts ; and although a 
 general reference was made in this case, since the master only reported on 
 the one point of liability, the reference would be considered as amended and 
 the proceedings regular. 
 
 Mortgage — Amicable Action — Description. — Burdick v. Norris, 1833, 
 2 W. 28. In an amicable action upon a recorded mortgage, the fact that 
 the agreement to appear and confess judgment does not describe the mort- 
 gage or the land is not fatal, if there be an appearance by the defendant 
 and confession of judgment, and if the levari facias thereupon recites the 
 mortgage and particularly describes the land. 
 
 Mortgagor— Estoppel— Eviction by Paramount Title.— Steinhaner 
 ■V. Witman, 1815, 1 S. & R. 438. A mortgagor is not estopped from showing 
 as defence to a scire facias an eviction by a title paramount of part of the 
 mortgaged premises. 
 
 New Party — Service on. — Spangler's Ap., 1870, 14 S. 387. Complain- 
 ant, learning from the answer that respondent was acting for another party, 
 moved to amend by making this person a party. This was allowed by the 
 court, and a replication ordered to be filed nunc pro tunc, and the inj unction 
 granted, the new party not having been legally served. Held this was ir- 
 regular. 
 
 lb.— Statute of Limitation— Creditor's BiU.— Evans' Ap., 1876, 31 S. 
 278, aflfg 1 W. N. C. 127. Where new parties are added to a bill by amend- 
 ment, as regards the statute of limitations they are to be considered as be- 
 ginning their action at the time of the amendment, except in the case of 
 creditor's bills filed for "themselves and others who may come in." 
 
 lb.— After Six Years.— Harrison v. St. Marks Church, C. P. 1884, 14 W. 
 N. C. 387, S. C. 41 Leg. Int. 44. An amendment of new parties plajntiffto 
 a bill allowed after the defendant had, for six years, acquiesced in a pie- 
 liminary injunction, and was moving to have the case finally disposed of. 
 
 lb.— Trustee.— Stevenson V. Matthews, 1848, 9 Barr, 316. Aftera jndg- 
 ment against a trust fund has been reversed for want of proper parties, it is 
 proper (owing to our equitable principles), to allow the trustee to be made 
 a party defendant by amendment. 
 
 Notice— Discovery -Rule.— Peebles v. Boggs, 1849, 1 Phila. 151, S.C. 
 8 Leg. Int. 30. A bill of discovery should be made part of the origioal 
 action, and therefore the notice given should be by rule, not by subpoena. 
 
 lb —Of Decree— Specific Performance.— Pennell v. Goodman, C. P. 
 
PBACTICK AND PI.BADING. 443 
 
 1875, 1 W. N. C. 469. It is not necessary to its enforcement that a defend- 
 ant, should have notice of the entering of a decree for specific performance. 
 
 Nuisance— Parties— Averments.— Philadelphia and Gray's Perry E. 
 li, V. Philadelphia, C. P. 1876, 2 W. N. C. 689, S. C. 33 Leg. Int. 264, 11 
 Phila. 358. Private citizens cannot come into equity vpith a bill to restrain 
 a public nuisance without averring special damage. 
 
 Office— Claimant for— Quo Warranto.— Gilroy's Ap., 1882, 4 Out. 5. 
 A bill praying an injunction, by one claimant of office against another, is 
 not proper practice. Quo warranto is the exclusive remedy. 
 
 Opening Judgment— Dower.— McClurg v. Schwartz, 1878, 6 N. 521. 
 Where a husband gives a mortgage upon his property and permits judgment 
 to be recovered on it so as to bar his wife's dower by a sheriff's sale, the 
 wife can apply to the equity side of the court to open the judgment and let 
 her into a defence, but cannot enforce her equity by applying to the law 
 side to set aside the judgment on the ground of irregularities in its entry. 
 
 Orphans' Court— Jurisdiction.— Steffy's Ap., 1874, 26 S. 94. The or- 
 phans' court is a court of equity, and the proper practice in proceedings 
 therein is by bill, answer, etc. 
 
 Parties— Corporation— Receiver.— Gravenstine's Ap., 1865, 13 Wr. 310. 
 A receiver of a corporation will not be appointed where the corporation is 
 not a party to the bill, or in court under notice for a preliminary injunction. 
 
 lb.— Trustee— Discharge.— Morrow's Est., O. C. 1884, 41 Leg. Int. 428, 
 S. C. 15 W. N. C. 240. A petition for discharge as a trustee should not be 
 joined with one for discharge as executor. 
 
 lb. — Surplusage. — Eauck v. Rutt, 1876, C. P. Lancaster, 8 Lan. Bar. 134. 
 In equity there may be a substitution of complainants without a supple- 
 mental bill. 
 
 Partnership— Bill for an Account — Certificate of Counsel.— Bach- 
 man V. Einhorn, C. P. 1878, 5 "W. JST. C. 250, S. C. 35 Leg. Int. 120, 12 Phila. 
 
 391. A bill for an account between partners does not in Philadelphia county 
 have to he accompanied with certificate of counsel that the law affords no 
 adequate remedy. 
 
 lb.— lb.— Everharti). Everhart, C. P. Luzerne, 1874, 3 Luz. L. Reg. 59. 
 A bill in equity for settlement of a partnership account must be accompa- 
 nied by a certificate of counsel, otherwise it will be dismissed upon objec- 
 tion being taken at any stage of the proceedings. 
 
 lb. — Receiver. — Baxter v. Buchanan, 1869, 3 Brews. 435, S. C. 26 Leg. 
 Int. 389, 7 Phila. 315. A receiver will not be appointed where the partner- 
 ship is denied. 
 
 lb. — Set-off— Consent of Co-partners.— Montz v. Morris, 1879, 8 N. 
 
 392. A member of a firm may, in an action against him individually, set 
 off a debt due the firm by proving the assent of the other partners, it is not 
 necessary to have an assignment of the claim. 
 
 Pajrment into Court— Mortgage.— Hoffmann's Est., O. C. 1884, 14 W. 
 N. C. 563. Payment of the amount of a mortg^e into court and a decree 
 for satisfaction thereof, will not be allowed if there is a dispute as to whether 
 the mortgage is yet due. 
 
 lb.— lb.— Pennock v. Stewart, 1883, 8 Out. 184. Under act April 3, 1851 
 (p. L. 871), a mortgagor may, pending a scire facias sur mortgage, and at 
 any time before judgment, pay into court the amount claimed by mortgagee, 
 principal, interest and costs to date, and have the mortgage satisfied. 
 
 lb.— Part Entitled to.— Assurance Co. *. Power, C. P. 1877, 34 Leg. 
 Int. 408, S. C. 12 Phila. 377. Under act April 3, 1851 (P. L. 871), lihe 
 HMWtgagor is the only one entitled to pay the amount of the mortgage into 
 court and a decree of satisfaction entered, the ierre tenant is not authorized 
 to do it by the act. 
 
444 PBAOTICE AND PLEADING. 
 
 Petition— Specific Performance— Averments— Amendment.— Chess' 
 Ap., 1864, 4 Barr, 52. A petition praying for a decree of specific perform- 
 ance of a contract for the purchase of land, should state cither that the pe- 
 titioner has performed the agreement on his part, or that he is willing iind 
 ready to perform it, but an omission to make such an allegation is a defect 
 in form merely, and may be amended. 
 
 Process— Service.— Eby's Ap., 1872, 20 S. 311. Act April G, 1859, P. 
 L. 387, providing for service of process in equity suits on parties outside the 
 jurisdiction, only applies where the subject matter of the suit is within the 
 jurisdiction. 
 
 lb.— lb.— Outside Jurisdiction.— Coleman's Ap., 1874, 2.5 S. 441. Act 
 April 0, 1859 (P. L. 387), authorizing service of process in equity cases on 
 defendants outside the jurisdiction, is confined to two cases: (1) Where 
 the subject matter in dispute is within the jurisdiction, in which case the 
 decree shall bind that only ; and (2) where the Stctive defendant has been 
 actually served within the jurisdiction. 
 
 Public Acts and Officers— Borough Indebtedness— Action.— Bor- 
 ough of Gilberton, in re., C. P. Schuylkill, 1879, 1 Seh. L. E. 11. All mat- 
 ters of indebtedness arising when a new borough is erected, should be ad- 
 justed by a petition in equity. 
 
 Purchase— Railroad— Contractor- Mortgage — Action.— Shamokin 
 E. E. V. Malone, 1877, 4 N. 25. A bill in equity will lie by a contractor 
 gainst the purchasers of a railroad under a mortgage made while he was 
 working under his contract, the act April 4, 1862 (P. L. 235), not applying. 
 
 Rescission of Sale — Fraud — Averments. — Baird r. Hamm, C. P. 1870, 
 1 Leg. Op. 17. To rescind a sale on the ground of fraud the bill must con- 
 tain specific allegations thereof. 
 
 Recovery— Grounds of — Greenwalt v. Horner, 1820, 6 S. & R.71 What- 
 ever will in equity and conscience, according to existing circumstances, pre- 
 clude the plaintiff from recovering, may, in case, be given in evidence by 
 the defendant uader the general issue, because the plaintilfmust recover on 
 the justice and conscience of his own ease, and on that only. 
 
 Reference to Master— Mismanagement of Directors.— Leffman v. 
 Flanigan, D. C. 1864, 21 Leg. Int. 125, S. C. 5 Phila. 419. Where a board 
 of directors is charged with mismanagement, the liability of the different 
 members will be determined by reference to a master. 
 
 Remedy at Law— Objection, when Taken.— Bank of Kentucky v. 
 Schuylkill Bank, 1847, 1 Pars. 180, S. C. 5 Pa. L. J. 251. An objection to 
 a bill in equity that there is an adequate remedy at law, must be taken be- 
 fore answering on the merits. 
 
 Scire Facias— Levari Facias.— Rhodes v. Seed, 1879, 8 N. 436. Where 
 a scire facias Issued on prsecipe which refers to the record of the mortgage, 
 and judgment is entered thereon, a levari facias inaj issue although the fcire 
 facias contains no averment as to the time when the debt was due. 
 
 Specific Performance— Interpleader.— Decker v. Sterling, C. P. Wyo- 
 ming, 1880, 3 L. T. N. S. 67. Where two parties had each filed a bill to 
 enforce specific performance against the same persons for the same tract, and 
 the defendant admitted his liability to convey to one or the other, the court 
 allowed each complainant to become a defendant in the other's suit. 
 
 Statute of Frauds.— Smith v. Spencer, 1876, 2 W. N. C. 515. A com- 
 plainant may rely on the bar of the statute of frauds in the assertion of ;i 
 title. 
 
 Stay of Execution. — Cherry V. Eobinson, 1795, 1 Y. 521. A^ equity 
 would decree an inj unction after three (rials in ejectment resulting in a ver- 
 dict for the same title, so the courts of Pennsylvania would stay further 
 proceedings by their summary power. 
 
 Surety— Contribution— Partnership.-Christy's Ap., 1879, 11 N. 157. 
 
PEACTICE AND PLEADING. 445 
 
 A suit \>y a surety for a partnership to enforce contribution from one al- 
 leged to be a partner, is a proper case for equity. 
 
 Tender— Mortgagor and Mortgagee.— Lanning v. Smith, 1841, 1 Pars. 
 13. A mortgiigor who files a bill against his mortgagee, must offer to pay 
 debt, interests and costs, and pray especially for a decree allowing him to 
 redeem. It will not be made under a general prayer for relief. 
 
 lb. ^Ib.— Hoffmann's Est., 0. C. 1884, 14 W. N. C. 563. Payment of 
 the amount of a mortgage into court, and a decree for satisfaction thereof, 
 will not be allowed if there is a dispute as to whether the mortgage is yet 
 due. 
 
 Title— Setting Out— Injunction.— Fitzpatrick v. Childs, 1866, 2 Brews. 
 365, S. C. 23 Leg. Int. 197, 6 Phila. 135. To obtain an injunction in a case 
 in which the plaintiff's right rests on his title, the title should be set out 
 particularly. 
 
 Trustee— Appearance.— Miller's Est., 0. C. 1881, low. N. C. 81. Act 
 June 14, 1836, S. 33, provides that the common pleas shall obtain the ap- 
 pearance of a trustee in the same way as does the orphans' court, namely 
 (by act March 29, 1832, S. 57), by a citation, aliafi citation and publication. 
 
 Use Plaintiff— Assignment for Creditors.— Memphis R. R. v. Wilcox, 
 1864, 12 Wr. 161. Where one has assigned a claim in trust for creditors, it 
 is not necessary that he should in suing thereon set out the use plaintijfif 
 and the trust. 
 
 lb. — Witness. — Gamble v. Hepburn, 1879; 9 N. 439. If the use plain- 
 tiff be dead the defendant is not a competent witness with regard to occux- 
 lences in the lifetime of the former. 
 
 Verdict, Nature of— Conditional.— Irvine v. Bull, 1838, 7 Watts, 333. 
 Our courts by a conditional verdict accomplish the same result as a chan- 
 cellor would by decreeing specific performance. To do this the declaration 
 contains first, a count setting forth such facts as would move a chancellor, 
 namely, the agreement and part performance, and then other counts for 
 damages for breach of contract, and under this the jury gives damages so 
 large as to make performance preferable, but conditioned to be released on 
 the contract being specifically performed. It is, therefore, relevant to give 
 evidence as to the present value of the land in order thatthe jury may know 
 for what amount to fix the verdict. 
 
 lb.— lb.— Time— Expiration.— Connolly v. Miller, 1880, 14 N. 513. The 
 court has the discretion to extend the time allowed for payment in a condi- 
 tional verdict, rendered in an ejectment to enforce payment of purchase 
 money. It follows that the time for payment having expired, a writ of 
 habere faeias possessionem is not of course, but can only issue by leave of 
 court. 
 
 Writ of Error— Appeal to Order Opening Judgment.— Scott's Ap., 
 1889, 8 Crum. 155. Where a judgment has been opened and the issue tried, 
 the plaintiff may, with his writ of error, take also an appeal to the order 
 opening the judgment, and if the appeal be sustained the trial of the issue 
 has been rendered abortive. 
 
 II. Bill of K.eview^. 
 
 Averments in Petition.— Hattrick's Est.. 0. C. 1879, 8 W. N. C. 130. 
 A petition for a bill of review must state specifically the error alleged. 
 
 lb. — Cramp's Ap., 1876, 31 S. 90. A petition for a bill of review must 
 set firth the error complained of, namely, a substantial error of law appear- 
 ing on the record or newly-discovered evidence. 
 
 Errors of Fact.— Smith's Est , 1886, 4 Kulp, 177. A petition for re- 
 
446 PRACTICE AND PLEADING. 
 
 ■view of a decree for specific performance will not be granted to correct al- 
 leged errors of fact, that could have been established on the trial of the case 
 by the exercise of due diligence. 
 
 Jurisdiction. — Bennison V. Goehring, 1847, 6 Barr, 402. A bill of re- 
 view for errors on the face of the record cannot be heard by an inferior tri- 
 bunal after an affirmance by the Supreme Court of a final decree. 
 
 Leave of Court.— Fidelity Ins. Co. v. Gould, C. P. 1883, 12 W. N. C. 
 63. A bill of review, the ground of which is not error of law on the face of 
 the decree, cannot be filed without leave of court first obtained. 
 
 lb.— Fidelity Ins. Co. v. Gould, C. P. 1882, 39 Leg. Int. 272, S. C. 15 
 Phila. 336. A bill of review filed without special leave will be taken off 
 the files unless the chancellor, iu his discretion, allows it to remain as a 
 petition for a review. 
 
 When Granted.— Smith's Est., 1887, 4 Kulp, 238. A bill of review 
 will s.)metimes be granted upon the ground of surprise and after-discovered 
 testimouv. 
 
 III. Boolss and Papers, Production of. 
 
 Act of 1798.— Moelling v. Lehigh Nav. Co., D. C. 1874. 31 Leg. Int. 
 396, S. C. 9 Phila. 223. Act of 1798 relative to production of books and 
 papers intended to supply the power of compelling discovery, and should be 
 liberally Exercised. 
 
 lb.— Examiner.— Levick v. Deffely, 1883, 13 "W. N. C. 59. Act Febru- 
 ary 27, 1798, cannot be used to compel the production of books before an 
 examiner. 
 
 Attachment. — Monroe v. Mechanics' Building Association, C. P. 1883, 
 14 W. N. C. 106. An attachment will not issue against one subpoenaed to 
 produce books and papers before an examiner. The proper practice is for 
 the examiner to file a report of the facts, and thereupon for the party de- 
 serving it to ask for an order of court directing that they be produced. 
 
 Defence Alleging Memoranda— Production of Documents.— O'Con- 
 nor V. Tack, 1868, 2 Brews. 407. Where a defendant does not demur to a 
 bill charging fraud, but denies it and says that certain memoranda and ac- 
 counts will establish his innocence, he cannot object to an order for the pro- 
 duction of those documents, although there is pending an indictment against 
 him. 
 
 Interrogatories — Answer. — Werne v. Bemers, D. C. 1859, 11 Leg. Int. 
 78, S. C. 1 Phila. 482. A formal interrogatory as to books and papers can- 
 not be met with an answer that the respondent is not aware of having at 
 present any books and papers in his possession or control which are mate- 
 rial to complainant's case, or which do not relate exclusively to the proof 
 in his own case. 
 
 Prayer for Discovery. — Campbell v. Knowles, C. P. 1879, 36 Leg. Int. 
 136, S. C. 13 Phila. 163. Equity will not grant an order for the production 
 of books and papers unless the bill prays for discovery of material facts. 
 
 ProcedTire.— Snebley «. Linnell, C. P. 1879, 36 Leg. Int. 193, S. C. 13 
 Phila, 167. The only way of compelling the production of books and papers 
 in equity is by a prayer for discovery, or by bringing in the adversary ■as a 
 witness under a subpoma duces tecum. 
 
 Trust— Fraud— Demurrer— Answer.— O'Connors. Tack, 1868, 2 Brews. 
 407. Where a defendant does not demur to a bill charging fraud, but de- 
 flies it and says that certain memoranda and accounts vrill establish his in- 
 nocence, he cannot object to an order for the production of those documents, 
 although there is pending au indictment against him. 
 
PRACTICE AND PLEADING. 447 
 
 IV. -Multifariousness. 
 
 Creditors with Separate Debts— Corporation.— Young v. Allegheny 
 Oil Co., C. P. Venango, 1873, 30 Leg. Int. 13, S. C. 10 Phila. 525. Under 
 act Jul.y 18, 1863, a bill is not multifarious because two creditors with sepa- 
 rate debts against the company are joined as plaintiffs. 
 
 Creditor's Bill.— Sheriff v. Oil Co., C. P. 1868, 25 Leg. Int. 45, S. C. 7 
 Phila. 4, 1 Brews. 480. A creditor's bill which joins defendants, some of 
 whom are liable to one plaintiffonly, and some only for independent wrongs, 
 is multifarious. 
 
 Damurrer. — Klein v. Commercial Nat. Bank, 1887, 44 Leg. Int. 144. The 
 defect of multifariousness in a bill should be taken advantage of by de- 
 murrer. 
 
 lb.— Objection to Answer.— Persch u. Quiggle, 1868, 7 S. 247. Multi- 
 fariousness must be demurred to, it is too late to object after answer filed. 
 
 Individual and Stockholder's Demands.— Huston v. Sellers, C. P. 
 1878, 35 Leg. Int. 262, S. C. 12 Phila. 520. A complainant cannot join- in 
 the same bill an individual demand and a demand as a stockholder of a 
 corporation. 
 
 Misrepresentations — Eiemedy at Law.— Lungreu v. Pennell, 1881, lo 
 W. N. C. 297. Where several parties have each a separate cause of action 
 on the ground of misrepresentations made to them severally with reference 
 to a common enterprise, and the circumstances of the several misrepresen- 
 tations differ, and there is an ascertained legal measure of damages appli- 
 cable to each, they should not be joined in a bill in equity, since the 
 remedy is at law and the bill would be multifarious ; but it seems that an 
 objection at final hearing is too late. 
 
 Multiplicity of Suits. — Philadelphia V. Trustees of Gas Works, C. P. 
 1882, 12 W. N. C. 477, S. C. 38 Leg. Int. 450, 15 Phila. 51. A bill which 
 embraces a subject on which might be brought many suits, is not necessarily 
 multifarious. 
 
 Object of Bill. — Trustees v. Heermans, C. P. Luzerne, 1882, 1 Kulp, 
 469, S. C. 10 Luz. L. Eeg. 283. If the object of a bill is not single, it is 
 multifarious. 
 
 Owners in Severalty— Consequeiitial Damages. — Minnig v. New 
 York R. R., C. P. Erie, 1882, 11 W. N. C. 297. Several parties who own 
 lots in severalty cannot join in a bill in equity for an injunction against a 
 railroad to compel it to enter security for consequential damages to them 
 before locating its road on adjoining land. 
 
 Parties — Same Transaction. — Bright v. McCullough, C. P. Schuylkill, 
 1880, 1 Sch. L. R. 281. A bill is not multifarious on account of the parties 
 thereto, even though their rights are not identical, if they have arisen out 
 of<one and the same transaction or series of transactions forming one course 
 of dealing and tending to the same end. 
 
 lb.— lb.— Brady v. Shissler, C. P. 1871, 1 Camp. 395, S. C. 28 Leg. Int. 
 404, 8 Phila. 333. Where several apparently distinct matters arise out of, 
 and are dependent upon a contract, they are properly joined in one bill. 
 
 lb.— lb. — Young's Ap., 1883, 3 Penny. 463. It is notsufficient to enable 
 parties to join in a bill in equity that each has sustained the same kind of 
 injury, if the cause of complaint is separate and distinct. 
 
 Trustee Ex Malefacio and Guardian.— Fitzpatrick v Breen, C. P. 1876, 
 3 W. N. C. 475. A bill against the same person as trustee ex malefacio and 
 as guardian, is not necessarily multifarious. 
 
 Trustee— Fraud.— Philadelphia v. McManes, C. P. 1883, 39 Leg. Int. 
 382, S. G. 15 Phila. 104. Where a bill charges all the trustees of a certain 
 trust with fraud, it is not rendered multifarious on account of special alle- 
 
448 PKACTICE AND PLEADING. 
 
 gations against some of the defendants individually, the fraud complained 
 of having all arisen out of the same general course of action. 
 
 Various Matters Properly Joined. — Cumberland Valley Railroad Co.'s 
 Ap., 1869, 12 S. 218. The various matters alleged in a bill are like counts 
 in a narr., which, if all good and not misjoinders, though variant in their 
 •ontents, will support a judgment. 
 
 v. Pleadinsfs. 
 
 Action on the Case— Former Recovery— Evidence. — Greenwalt v. 
 Horner, 1820, 6 S. & R. 71. The action of case is founded on the justice 
 and conscience of the plaintiff's case, and is in the nature of a bill in equity, 
 and in effect is so ; therefore, a former recovery, release or satisfaction, need 
 not be pleaded, but may be given in evidence. 
 
 Alternative— Averments— Demurrer.— Spering v. Smith, N. P. 1868, 
 2.5 Leg. Int. 148, S. C. 6 Phila. 524. Where a bill charges in the alterna- 
 tive if either averment shows a cause not entitling the complainant to equita- 
 ble relief, the bill is demurrable. 
 
 Averments— Demurrer. — Barry v. McAvoy, C. P. 1873, 30 Leg. Int. 
 424, S. C. 10 Phila. 99. A bill which complains of the infringement of a 
 right, must clearly set forth the existence of the right, or it will be demur- 
 rable. 
 
 Bar, Plea in.— Philadelphia v. Trustees of Gas Works. C. P. 1882, 12 W. 
 N. C. 477, S. C. 38 Leg. Int. 450, L^ Phila. 51. After a' general demurrer 
 has been overruled, defendant will not be permitted to file a plea in bar, 
 where, under the equity rules, the matters set up as a defence can be in- 
 sisted on in an answer. 
 
 Bill— Attorney not Signing— Demurrer. — Everhart v. Everhart, C. P. 
 Luzerne, 1874, 3 Luz. L. Eeg. 55. It is not a ground for demurrer that the 
 solicitor of complainant has not signed the bUl. 
 
 lb.— As Evidence— Admissible to Prove Pedigree. — Owens v. Daw- 
 son, 1832, 1 W. 149. A bill in chancery cannot be given in evidence in an 
 action of assumpsit, as an admission of facts by the complainant therein, 
 except to prove pedigree, and then only where the party offering the evi- 
 dence derives or claims title in some manner under some one of the parties 
 in the former chancery suit. 
 
 lb. — Dismissal— Mispleading.— Cumberland Valley E. R.'s Ap., 1869, 
 12 S. 218. A bill will not be dismissed for mispleading if complainants 
 sustain any one charge which, if charged singly, would have entitled them 
 to relief. 
 
 lb.— Notice on, to Appear.— Shea v. Burke, C. p. Luzerne, 1874, 3 Luz. 
 L. Eeg. 242. A bill in equity is irregular which omits the notice on the 
 back to appear within fourteen days. 
 
 lb.— Showed Certain Facts.— Winebrenner v. Colder, 1862, 7 Wr. 244. 
 A bill in equity should contain facts, not evidence. 
 
 rb.—Unprinted— Injunction.— Schreiner v. Stickler, C. P. 1875, 1 W. 
 N. C. 522. An injunction may be granted on a, written bill, if accompanied 
 by a certificate of counsel that there was not time to print. 
 
 lb.— lb.— Snyder v. Pullinger, 0. P. 1876, 2 W. N. C. 463. Anunprinted 
 bill unsupported by an affidavit of poverty, will be dismissed, and will not 
 be reinstated, together with an injunction granted thereon, upon motion 
 to that effect. 
 
 Declaration— Assignee— Chose in Action. — Sellers u. Cooper, 3 Leg. 
 & Ins. E. 61. The assignee of a chose in action may maintain assumpsit in 
 
PRACTICE AND PLEADING. 449 
 
 his own name on an express promise to pay ; but he must set forth in his 
 declaration the original consideration. 
 
 lb.— Eciuitable Right.— Butcher V. Metts, 1836, 1 M. 153. When a 
 plaintiff in a purely legal action attempts to establish an equitable right, 
 he must draw his declaration in analogy to a bill in equity. If the decla- 
 ration does not set forth the equitable ground for relief a conditional ver- 
 dict cannot stand. 
 
 lb. — Irvine v. Bull, 1838, 7 Watts, 323. Our courts, by a conditional 
 verdict, accomplish the same result as a chancellor would by decreeing spe- 
 cific performance. To do this the declaration contains first a count setting 
 forth such facts as would move a chancellor, namely, the agreement and 
 •part performance, and then other counts for damages for breach of contract, 
 and under this the jury give damages so large as to make performance pre- 
 ferable but conditioned to be released on the contracts being specifically per- 
 formed. It is, therefore, relevant to give evidence as to the present value 
 of the land in order that the jury may know for what amount to fix the 
 verdict. 
 
 Defence— Specific Performance— Plaintiflf's Actions.— Ong v. Camp- 
 bell, 1837, 6 W. 392. It is a valid defence to the specific execution of a 
 contract that the plaintiff has so acted as to induce the other party to pre- 
 sume an abandonment. 
 
 lb.— Changes in Property:- Morgan v. Scott, 1856, 2 C. 51. Changes 
 in the property which have arisen since the equitable title passed, are no 
 defence to specific performance. ' 
 
 lb.— Ejectment— Equitable Title— Specific Performance,— Sparks 
 V. Walton, D. C. 1860, 17 Leg. Int. 228, S. C. 4 Phila. 93. An equitable 
 title which has failed in a suit in equity for specific performance, cannot af- 
 terwards be used as a defence in ejectment. 
 
 lb.— Evidence— Title Deeds.— Murphy v. Richardson, 1857, 4 C. 288, 
 see 13 Leg. Int. 260, 2 Phila. 419. A vendee under articles in defending 
 against specific performance, may give in evidence old deeds establishing 
 an adverse claim to the land, though the same were on record at the time 
 he signed the articles. 
 
 . Demurrer— Jurisdiction.— Maguire's Ap., 1883, 6 Out. 120. A defend- 
 ant in equity, may either demur to the jurisdiction or except to it in his 
 answer, nor is he liable for costs for taking the latter method of objecting. 
 
 Discovery — Demurrer. — Wistar v. McManes, 1867, 4 S. 318. A defend- 
 ant cannot demur to discovery alone when the bill is for lelief and for dis- 
 covery, as incidental to it, except for technical reasons not touching the 
 equity of the bill. And if such a demurreu is put in it cannot be sustained 
 by referring it to the whole bill. 
 
 Hearing— Setting Down— Taking Testimony.— Sterr's Est., O. C. 
 1879, 7 W. N. C. 35, S. C. 36 Leg. Int. 137, 13 Phila. 212. Where a plain- 
 tiff after filing a replication, set a case down for argument without afford- 
 ing an opportunity to take testimony, the hearing is on bill and answer 
 alone. 
 
 Impertinent and Scandalous Matter— Answer. — Marshall's Est., O. 
 C. 1883, 40 Leg. Int. 279. An answer traversing the allegations of a bill, 
 and declaring them to be wilfully and knowingly false, is not necessarily 
 scandalous or impertinent. 
 
 Nunc pro Tunc — Replication. — Fleming's Ap., 1870, 17 S. 18. A repli- 
 cation filed nuncpro tunc after a master has made his report, cures the defect. 
 
 Overruling Demurrer. — Barbey's Ap. 1888, 4 Crum. 413. Under 
 
 the Equity Eules, ? 31, a defendant in equity may plead or demur to the 
 
 whole bill, or to part of it, or he may demur to part, plead to another part 
 
 and answer to the residue ; but he may not plead or answer and demur also 
 
 29 — EQUITY. 
 
450 PEACTICB AND PLEADING. 
 
 to the whole bill or to the same part of it, as in such case the answer over- 
 rules the demurrer. 
 
 Overruling Demurrer and Plea.— "Wolf v. Eynn, 1888, 5 Kulp, 5. A 
 plea to the whole bill overrules a demurrer to the whole bill, and a plea to 
 part overrules a demurrer to that part. 
 
 Overruling Plea. — Anderson v. Audenried, N. P. 1871, 28 Leg. Int. 140, 
 S. C. 8 Phila. 98. A plea in equity will be overruled unless it tend to 
 shorten the controversy. 
 
 Payment— Evidence.— Evans v. Mengel, 1845, 1 Barr, 68. The evidence 
 under the plea, payment, etc. , must be such as would move a chancellor. 
 
 lb.— lb.— Light V. Stoever, 1824, 12 S. & E. 431. Under the plea of pay-- 
 ment, etc., to debt on a bond evidence can be given, showing that the dam 
 of the mill for which the bond was given was so high that it caused an over- 
 flow on another's property, that this was known to plaintiff, and that by 
 fixing the dam the property was depreciated ; such evidence is not by way 
 of set-off, but is an equitable defence under the plea of payment. 
 
 lb.— lb.— Hawk V. Geddis, 1827, 16 S. & R. 23. Our courts of law, 
 through the instrumentality of a jury, exercise chancery powers, on a plea 
 of payment, etc. Under such plea t.nd notice evidence may be given of any- 
 thing that shows in equity and good conscience that the plaintiff should not 
 chase money, defendant may give in evidence the record of an ejectment 
 brought by him under plaintiff's deed with warranty and judgment against 
 him, though no notice was served on plaintiff. But this is not conclusive 
 on plaintiff, who in rebuttal may show the validity of his title. 
 
 lb.— Set-off.— Balsbaugh u. Frazer, 1852, 7 H. 95. Set-off is allowable 
 under the plea of payment. 
 
 lb.— Surety and Principal.— Holt v. Bodey, 1852, 6 H. 207. The plea 
 of payment is not a proper one where a surety, sued with his principal, in- 
 tends to set up an equitable defence. 
 
 Payment into Court— Mortgage.— Hofmann's Est., O. C. 1884, 14 W. 
 N. C. 563. Payment of the amount of a mortgage into court and a decree 
 for satisfaction thereof, will not be allowed if there is a dispute as to whether 
 the mortgage is yet due. 
 
 Kesponsive Answers— Husband and Wife. — Gleghome's Ap., 1888,' 
 20 W. N. C. 482. A bill was filed by a wife against her husband alleging 
 a loan of money ; the averring that the money was a gift was held responsive 
 to the bill. 
 
 Rule to Reply— Time of Granting.— Purvis v. Luch, C. P. 1885, 16 W. 
 N. C. 541, A rule to reply to an answer should not be entered until the 
 twenty days allowed tor exceptions to the answer have expired. 
 
 lb. — Jones V. Park, C. P. 1874, 1 W. N. C. 17. A notice to complainant 
 that the case has been set down for a hearing, on bill and plea, supported 
 by an answer, amounts to a rule on him to reply in ten days, and after that 
 time he will not be allowed to reply. 
 
 Signing Bill— Demurrer. — Everhart v. Everhart, C. p. Luzerne, 1874, 
 3 Luz. L. Eeg. 55. It is not a ground for demurrer that the solicitor of 
 complainant has not signed the bill. 
 
 Special Leave— More than One Plea.— Hogan v. Ashton, N. P. 1868, 
 25 Leg. Int. 28, S. G. 6 Phila. 517. More than one plea to a biU in equity 
 cannot be filed by a defendant without special leave of court. 
 
 Striking off— Demurrer and Pleas. — Underwood v. Warner, D. C. 1859, 
 16 Leg. Int. 173, S. C. 3 Phila. 414. Where three pleas and a demurrer re- 
 lating to the same matter are filed with leave of court, the pleas will be 
 stricken off. 
 
 Supplemental Answer— Time.— Olin v. Day, 1886, 2 Pa. Co. C. Rep. 
 57. It is not too late to file a supplemental answer after a master and ex- 
 aminer has been appointed, and evidence taken on the part of the com- 
 plainant. 
 
PEACTIOE AND PLEADING— PEECATOEY WOEDS. 451 
 
 \1. Relief. 
 
 Different from that Prayed for.— Words v. McMillan, O. C. Allegheny, 
 1885, 32 Pitts. L. J. 363. Where the evidence shows a grouud for relief 
 different from that alleged in the bill, the proper practice is to amend the 
 bill, otherwise the relief cannot be granted. 
 
 Mispleading.— Cumberland Valley E. E.'s Ap., 1869, 12 S. 218. A bill 
 will not be dismissed for mispleading if complainants sustain any charge 
 which, if charged singly, would have entitled them to relief 
 
 Mortgage— Supplemental Bill.— Winton's Ap., 1881, 1 Out. 385. 
 Where on a bill by a vendor equity has obtained jurisdiction of a case, and 
 has decreed that the conveyance was but a mortgage, it can do complete jus- 
 tice by ordering the property to be sold or the rents to be paid to the vendee 
 to be applied on the original decree. The proper practice in such a case is 
 for the defendant to present a petition in the nature of a supplemental bill 
 setting forth that he has tendered a reconveyance on repayment, but that 
 complainant has not been ready to do his part. 
 
 Special Order. — Horton's Ap., 1850, l H, 66. It is erroneous for the 
 common pleas in equity to make a special order not prayed for in the bill. 
 
 Summary. — Goodonier V. Billings, 1875, 27 S. 498. Motions in the lower 
 court for summary equitable relief are within their discretion, and will not 
 be returned to the Supreme Court. 
 
 When Granted.— Delaware Canal Co. v. Penna. Coal Co., 1853, 9 H. 131. 
 Equity will not grant relief under the general prayer unless (1) such relief 
 be consistent with the relief specially prayed for ; (2) the allegations of the 
 bill under which general relief might be granted have been made for this 
 purpose and not as strengthening the special prayer ; (3) the facts must be 
 stated with suflScient precision to enable the court to make a specific decree. 
 
 VII. Statute of imitations. 
 
 BiU— Facts Alleged in.— Gaudolfo v. Hood, C. P. Dauphin, 1864, 1 
 Pears. 269. A bill should set out all the facts necessary to show that the 
 claim is not barred by the statute of limitations. 
 
 Master.— Blockwell v. Ace, 1886, 3 C. P. Eep. 177. The statute of lim- 
 itations may be pleaded before a master if the facts developed make it then 
 pertinent. 
 
 Plea, Answer or Demurrer.— Hayes' Ap., 1886, 3 Amer. 380. 
 Equity will not grant relief in a case which from lapse of time would be 
 barred at law. Lapse of time as a bar to an action may be taken advantage 
 of by demurrer or by way of plea or answer. 
 
 Set-off.— Wisecarver v. Kincaid, 1876, 12 N. 100. A plea of set-oflf or 
 notice of set-off under a plea of payment, etc., stops the running ol the stat- 
 ute of limitations against the set-ofl. 
 
 PRECAXORV "WORDS. 
 
 [See Teusts and Tetjstees I B. (f).] 
 
453 PBEFEBENCES — PEINCIPAL AND AGENT. 
 
 PREFERENCES. 
 
 [See Assignment fob Ceeditoes V.] 
 
 PREIylMINTARY IKf JUNCTION. 
 
 [See Injunction.] 
 
 PRINCIPAL AND AGENT. 
 
 [See Also Adjustment II.] 
 
 Account— Orphans' Court!— Delbert's Ap. No. 2, 1877, 2 N. 468. An 
 agent for a trustee cannot, after the death of the trustee, be cited to account 
 in the orphans' court. 
 
 Agent's Knowledge. — Hood v. Pahnestock, 1839, 8 "W. 489. Knowledge 
 obtained by one before he became another's agent does not bind the prin- 
 cipal. 
 
 lb.— lb.— Phillipsburg Savings Bank's Ap., 1881, 10 W. N. C. 265. 
 Where a mortgage is made to one who assigns it immediately to another, 
 which latter is really the lender of the money, the former is not such an 
 agent of the latter that notice to him binds this latter. 
 
 Compromise of a Claim — Balance — Fraud. — Gaudolfo v. Hood, C. P. 
 Dauphin, 1864, 1 Pears. 269. An agent who compromises a claim against 
 his principal and keeps the balance, commits such a fraud as is cognizable 
 in equity, and the statute of limitations runs only from its discovery. 
 
 Discovery.— Thistle u. Lippincott, C. P. 1883, 14 W. N. C. 139. Where, 
 a principal has sued his agent, and on being ruled to furnish a bill of par- 
 ticulars has filed a bill of discovery, praying that defendant be ordered to 
 make an account of the sales in order to enable him to file his bill of par- 
 ticulars, he is entitled to the discovery on the grormd that as the defendant 
 is an agent he is bound absolutely to account. 
 
 lb.— Principal and Agent must Answer Fully.— Roberts v. Oberteuf- 
 fer, D. C. 1887, 14 Leg. Int. 332, S. C. 2 Phila. 366. Where a bill of dis- 
 covery is filed against both a principal and his agent, both must answer 
 fully. 
 
 lb.— Bank of Kentucky v. Schuylkill Bank, 1846, 1 Para. 180, S. C. 5 Pa. 
 L. J. 251. Equity will entertain jurisdiction of a bill by a principal against 
 a defaulting agent demanding an account and discovery. 
 
 Estoppel— Principal Receiving Agent's Vouchers— Evidence. — 
 Scott V. Strawn, 1877, 6 W. N. C. 132, S. C. 25 Pitts. L. J. 158. Where 
 parties have settled with their agent and received from him vouchers which 
 they lose, they are estopped from requiring him in a subsequent suit to give 
 even secondary evidence thereof. 
 
 Jurisdiction— Account— Consignees.— Bank of United Stages v. Bid- 
 die, 1844, 2 Pars. 31. The equitable jurisdiction under act October 13, 
 1840, in case of account extends to all cases of agency, e. g.. consignees, re- 
 ceivers and oflicers of corporations. 
 
 lb. — ^Discovery. — Bank of Kentucky v. Schuylkill Bank, 1846, 1 Pars. 
 180, S. C. 5 Pa. L. J. 251. Equity will entertain jurisdiction of a bill by 
 a principal against a defaulting agent demanding an account and discovery. 
 
PRINCIPAL AXD AGENT. 453 
 
 Mortgage— Attachment— Creditors.— Johnson's Ap., i860, IWr. 268. 
 A mortgage given by a principal to his factors to secure a running account 
 cannot be attached by a subsequent judgment creditor; nor has the latter 
 any equity to compel the application of payments by the mortgagor to the 
 debts secured by the mortgage when they are unsecured debts between the 
 same parties. 
 
 Notice— Acts of Agent— Purchaser.— Lewis v. Bradford, 1840, 10 W. 
 67. The agent of the vendor for renting the land is such a source that no- 
 tice fl-om him as to defects in the title binds the purchaser. 
 
 lb.— Assignee of Mortgage.— Phillipsburg Savings Bank's Ap., 
 1881, 10 W. N. C. 265. Where a mortgage is made to one who assigned it 
 immediately to another, which latter is really the lender of the money, the 
 former is not such an agent of the latter that notice to him binds this latter. 
 
 lb.— Knowledge.— Hood v. Fahnestock, 1839, 8 W. 489. Knowledge 
 obtained by one before he became another's agent, does not bind the prin- 
 cipal. 
 
 Parties— Mortgage— Proceedings on.— Mans v. Wilson, 1850, 3 H. 148. 
 Proceedings on a mortgage executed by an agent, must be against the prin- 
 cipal, or they will convey no title. 
 
 Profit by Agent.— Grant v. Seitsinger, 1831, 2 P. & W. 525. An agent 
 is not permitted to make a proiit out of his principal in his dealings for the 
 latter. They stand in coniidential relation to each other. 
 
 lb.— Clerk.— Fox v. Cash, 1849, 1 S. 207. A mere clerk, without any 
 discretion himself, may purchase at a sale by his employer, who is a trustee. 
 
 Set-off— Undisclosed Principal.— Hart v. Serrill, C. P. 1875, 1 W N. 
 C. 472. Where an undisclosed principal sues on a contract made by his 
 agent, any set-off which the defendant has against the agent may be used 
 against the plaintiff. 
 
 Specific Performance— Authority of Agent.— Twitchell v. Philadel- 
 phia, 1859, 9 C. 212. To enforce specifically a contract for the sale of lands 
 made by an agent, the agent must have been "lawfully authorized by 
 writing." 
 
 Trust— Statute of Limitations.— Fleming r. Culbert, 1864, 10 Wr. 498. 
 An investment of moneys by an attorney in fact, instead of paying them 
 over to his principal, is a breach of duty for which an action will lie, and, 
 therefore, not a trust within the exception to the statute of limitations. 
 
 Undisclosed Principal— Action.— Hart v Serrile, C. P. 1875, 1 W. N. 
 C. 472. Where an undisclosed principal sues, on a contract made by his 
 agent, a set-off which the defendant has against the agent may be used 
 against the plaintiff. 
 
 lb. — ^Ib. — Parker v. Donaldson, 1841, 2 W. & S. 9. A purchaser from an 
 agent not knowing him to be such, may, in an action for the price by the 
 principal, set off a debt due himself by the agent. 
 
 lb.— Frame v. Wm. Penn Coal Co., 1881, 1 Out. 309. A defendant when 
 sued by an undisclosed principal, may set off claims which he has against 
 the agent with whom he dealt as a principal. 
 
 Undisclosed Principal — Discovery from Agent. — Twells v. Costere, 
 1849, 1 Pars. 373. Equity will not entertain a bill of discovery by a plain- 
 tiff against a defendant to compel the latter to disclose, whether in a con- 
 tract entered into between them, he was not the mere agent of a principal 
 not named, in order to enable the plaintiff to maintain an action against 
 the unknown principal for an alleged breach of contract. 
 
454 PEINCIPAL AND SURETY. 
 
 PRINCIPAL AND SURETY. 
 
 [See also ACCOUNT II B. ; Adjustment I C, IV, VII A., B. (a), VIII B.] 
 
 Account, Action for. — Belsterling v. Prowayyan, C. P. 1865, 22 Leg. 
 Int. 229, S. C. 6 Phila. 40. Where an assignee for creditors and one of his 
 sureties files a bill against the other surety, who has funds of the estate in 
 his possession, for an account, the bill will be sustained. 
 
 lb.— Ashtou V. Bayard, C. P. 1872, 4 Leg. Gaz. 101, S. C. 29 Leg. Int. 
 100, 9 Phila. 527. A surety on a due bill may maintain a bill in equity 
 for an account. 
 
 Assignee of Judgment— Equities.— Miflin Co. Bank's Ap., 1881, 2 
 Out. 150. The bona fide assignee of a judgment given by a principal to his 
 surety, takes it free from the equities of the creditor to have the judgment 
 applied to the debt. 
 
 Contribution — PartnersMp. — Christy's Ap., 1879, 11 N. 157. A suit 
 by a surety for a partnership to enforce contribution from one alleged to be 
 a partner, is a proper case for equity. 
 
 lb. — Co-Sureties — Indemnity. — Sheaffer v. Clendenin, 1882, 4 Out. 565. 
 Co-sureties stand in a confidential relation to each other, and each is enti- 
 tled to participate in any indemnity given to the other by the principal, 
 directly or indirectly. 
 
 Discharge. — Cordons. McCarty, 1838, SWhart. 407. Ifa release on a bond 
 be obtained by the fraud of the obligor, and the obligee waits several years 
 before bringing suit, during which time the obligor becomes insolvent, the 
 surety not being a party to the fraud, nor knowing of it, is in equity dis- 
 charged. 
 
 Eqaitable Lien— Payment by Surety — Legacy to Principal. — 
 
 Bredin v. Neal, 1831, 3 P. & W. 190. A debt paid out of the estate of a 
 surety is an equitable lien upon a legacy given to the principal debtor, al- 
 though the legacy has been assigned. 
 
 Estoppel— Holding Out as Principal.— "Wolff ti. Stover, 1884, 15 "W. N. 
 C. 390. One who appears in a judgment as a principal and who pays it 
 after a stay of execution, will not be allowed to show himself to be only a 
 surety in order to be subrogated against the one giving bond for the stay. 
 
 lb.— Gosweiler's Est., 1831, 3 P. & W. 200. One who has for eight years 
 allowed himself to appear on the record as the principal debtor, will not OB, 
 discharging the judgment be subrogated against one who appeared to be 
 surety, although in reality the principal, where other creditors of the lattes: 
 have intervened. 
 
 lb. — Defence — Notice— Set-off. — Ayres v. Findley, 1845, l Barr, 501- 
 If the guarantor of a note has notice of an action by his guarantee against 
 the maker, he is estopped from making defence to an action on his guaranty 
 in case the judgment in the action on the note was for defendant. 
 
 lb.— Action by Surety — Judgment.— Lloyd v. Barr, 1849, 1 J. 41. I» 
 an action by a surety who has paid the debt, against the principal, the lattei 
 is concluded by the judgment against him and the surety as to every facV 
 necessarily adjudicated in that cause. 
 
 lb. — Petition to Defend. — Lockwood v. Commonwealth, 1882, 12 W. N. 
 C. 451. One who has on his own petition been allowed to defend in an 
 action on a bond, on the ground that he was a surety therein, is estopped, 
 judgment having been entered therein, from afterwards denying its validity 
 
 Evidence— Joint Owners— Payment. —Stroud v. Casey, 1856, 3 C. 471. 
 Where adjoining owners give a joint mortgage on their two properties and 
 one afterwards conveys to the other for a nominal consideration, there is no 
 
PEINCIPAL AND SUEBTY. 455 
 
 evidence that the latter is surety for the former. The presumption is that 
 they are equally liable. 
 
 Extent of Guaranty in Partnership Articles of Dissolution.— Mc- 
 Intire's Ap., 1888, 3 Crum. 421. Where in articles of copartnership A. wag 
 to put in so much capital, and was then guaranteed a certain percentage of 
 the profits by B., one of the partners. An agreement by a third party in 
 the articles of dissolution and settlement to make A. whole upon his capital 
 stock according to the articles of copartnership, does not include the above 
 guaranty, the latter being a mere personal liability. 
 
 Fraud— Absence of Legal Obligation.— Wesley Church v. Moore, 1849, 
 10 Barr, 273. To leave a surety in the lurch because there is no legal dblU 
 gation resting on the principal in such constructive fraud as is relieved 
 against in equity. 
 
 Injunction— Proceedings Against Surety— Defence.— Eiegel «).Eiegel, 
 C. P. 1884, 14 W. N. C. 303. A principal cannot enjoin his creditor from 
 proceeding against the surety merely because he himself has a good de- 
 fence. 
 
 Insolvent Co-Surety— Subrogation.— Hess' Est., 1871, 19 S. 272. One 
 of two co-sureties paid the debt and sued the other surety for his share. 
 This latter was insolvent. The auditor reported a dividend on one-half the 
 principal debt. Held that in Pennsylvania a surety was entitled to subro- 
 gation against his co-surety to all the rights of the creditors. Therefore 
 the dividend should be on the whole claim. 
 
 Misrepresentation by Principal— Effect of —Dayton's Est., 1887, 4 
 Kulp, 451. No misrepresentation by a principal can liTnit or qualify the 
 express language of a bond on which one is surety. 
 
 Mortgage Given to Surety— Right of Third Party.— Brien v. Smith, 
 1845, 9 W. & S. 78. A mortgage given to a surety to indemnify him, will 
 pass to a third person who pays the debt on the faith of it as security. The 
 contingency for which the mortgage was given has practically happened. 
 
 Mortgagee, Guaranty by— Subsequent Judgment Creditor— Effect 
 
 of. — Moore's Ap., 1844, 7 W. & S. 298. A guaranty given by a mortgagee 
 to a subsequent j udgment creditor of the mortgagor, is a personal guaranty 
 merely, and does not give the judgment creditor any claim to the mortgage. 
 A subsequent assignee of the mortgage takes it as prior to the judgment. 
 
 Oral Agreement by Obligor to Become Surety — Effect of— Subse- 
 quent Assignee. — Frantz V. Brown, 1830, 1 P. & W. 257. An oral agree- 
 ment made at the time of the execution of a bond that in ease the obligor 
 becomes surety for the (fcligee the latter shall not be paid, is binding on a 
 subsequent assignee who has made no inquiry, and in case the obligation 
 for which the defendant has become surety is not yet due, he will be pro- 
 tected by a conditional verdict. 
 
 Relief. — Pleasonton's Ap., 1874, 25 S. 344. Equity will often relieve 
 a surety when it would not a principal 
 
 Set-off.— Hollister v. Davis, 1867, 4 S. 508. Where a plaintiff sues a 
 principal and his sureties, a debt due by plaintiff to the principal alone may 
 be set off. 
 
 lb.— Seybert v. Hicks, C. P. Luzerne, 1882, 1 Kulp, 45, S. C. 9 Luz. L. 
 Reg. 49. In a suit on a note against a principal and surety, the latter may 
 set off a joint note made by the plaintiff and another. 
 
 lb. — Domestic Sewing Machine Co. v. Saylor, 1878, 5 N. 287. Where one 
 who is a surety snes the creditor on another claim, the defendant may set 
 off the indebtedness of the principal. 
 
 lb. — Beaver v. Beaver, 1854, 11 H. 167. A surety of a defendant who has 
 paid the claim after the latter's death, can set it off in a suit against him 
 by the administrator for a claim which accrued in decedent's lifetime, even 
 though the estate be insolvent. 
 
456 PKINCIPAL AND STJEBTY. 
 
 lb. — Dorsheimer v. Bucher, 1821, 7 S. & R. 9. One who, after a testa- 
 tor's death, has, as surety, paid the latter's bond, may set it oflf a^.ainst a 
 judgment recovered against him by the executor, provided it does not in- 
 terfere vpith the claims of the creditors of the same class. 
 
 lb.— Gunn V. Dickey, C. P. 1884, 14 W. N. C. 374. One who has become 
 surety on a writ of error being entered, is entitled to set off a judgment 
 against the plaintiff in favor of the defendant, the judgment having been 
 affirmed and a judgment entered against him on the i-eoognizance. 
 
 Subrogation— Liability to Pay not Sufficient.— Ins. Co. of N. A. r. 
 Fidelity Title & Trust Co., 1884, 46 Leg. Int. 261. Subrogation will only 
 be allowed when there has been an actual payment by one occupying the 
 relation of surety. Mere liability to pay does not raise the equitable right. 
 
 lb. — Warren v. Sennett, 1846, 4 Barr, 114. One going surety for a debtor 
 by taking his property under an agreement that the debtor might redeem 
 it within a certain time, cannot on paying the debt and becoming absolute 
 owner of the land be subrogated to the rights of the creditor against the 
 debtor. 
 
 lb.— Compulsory.- "Ward's Ap., 1882, 4 Out. 89. The estate of a surety 
 having paid the debt under compulsion is entitled to subrogation. 
 
 lb.— Must Evidence Intention. — Rittenhouse v. Levering, 184.3, 6 AV. 
 & S. 190. A surety who pays the debt is not ijiso facto subrogated to the 
 rights of the creditors ; and if he does nothing to manifest his intention of 
 relying on the security before that security runs out, he can only proceed 
 against his principal for money had and received. 
 
 lb. — Administrator. — Appeal of Miskimins, 1886,4 Am. 533. An ad- 
 ministrator who paid debts and had the mortgages against the real property 
 of decedent satisfied, then obtained a further order forihe sale of real es- 
 tate upon which he never acted, cannot come into a common pleas court to 
 be subrogated to the rights of creditors whose debts he has satisfied. 
 
 lb.— Loan on a Judgment Note.— Owen's Ap., 1882, 11 W. N. C. 488. 
 "Where a surety pays a claim with money loaned to him on his judgment 
 note, the surety thereon being his principal in the debt paid by him, he is 
 entitled to subrogation. 
 
 lb.— Co-Surety for Consideration.- Himes v. Keller, 1842, 3 "W. & S. 
 401. A surety who pays the debt is not entitled to subrogation against a 
 co-surety who had become co-surety for a consideration, where there are 
 creditors of the latter who would be injured thereby. 
 
 lb.— Co-Surety.— Heafier v. Boyer, C. P. York, 1880, 1 YorkL. R. 161. 
 In the absence of any special arrangement between co-sureties, if one pays 
 the debt he is entitled to be subrogated to all the rights of the creditor as 
 well against his co-surety as against the principal. 
 
 lb. — lb. — Croft I'. Moore, 1840, 9 "Watts, 451. One of several joint sureties 
 who pays the debt of their principal may be subrogated to the rights of the 
 creditor in order to enforce contribution from his co-sureties. 
 
 lb. — lb. — "Wright V. Grover, 1876, 1 N. 80. A co-surety who has discharged 
 the debt may be subrogated to the rights of the creditor in order to enforce 
 contribution from his co-surety. 
 
 lb. — Conveyance Subject to the Lien.— Owen's Ap., 1882, 11 "^". N. 
 C. 488. One who appears on the judgment docket as a principal may, on 
 paying the judgment and proving himself to be a surety, assert his right to 
 subrogation against alienees of the real estate of the principal therein who 
 have taken conveyances while the judgment was a lien. 
 
 lb.— New Trustee.— John's Est., C. P. 1883, 2 Ches. Co. R. 77. A surety 
 who has paid the sum due by a trustee, will on petition be subrogated by a 
 decree to all the rights of a new trustee against the old. 
 
 lb.— Stay of Execution.— Pott v. Nathans, is41, 1 "W. & S. 155. A 
 surety who has paid a debt is entitled to subrogation against one who has 
 given his note therefor in order to obtain a stay of execution. 
 
PRINCIPAL AND SURETY — PROCBSS. 457 
 
 lb. — lb. — Lathrop's Ap., 1845, 1 Barr, 512. One who becomes surety for 
 stay of execution, and who has to pay the judgment, is not entitled to sub- 
 rogation as against subsequent judgment creditors. 
 
 lb.— Subsequent Creditor.— Armstrong's Ap., 1843, 5 W. & S. 352. A 
 surety for stay of execution who afterwards discharges the judgment, is not 
 entitled to subrogation as against subsequent lien creditors. 
 
 Trust— Compensation.— Hemphill's Est., D. C. 1872, 3 Leg. Op. 365, 
 S. C. 29 Leg. Int. 300, 9 Phila. 486. One per cent, upon the corpus of a 
 trust estate is the established rate of compensation for the risk incurred 
 upon a suretyship for a trustee. 
 
 PRIORITY. 
 
 [See Adjustment IB.] 
 
 PROCEEDIIKGS AT LA^V. 
 
 [See also Injunction O.] 
 
 Injury — Appeal. — Pine Knot Coal Co. v. Nengardt, 1873, 1 Fost. 143. 
 Equity will not restrain a party acting in accord with his legal right, where 
 if there be injury done there is remedy by appeal. 
 
 Jurisdiction— Sheriffs Deed— Acknowledgment.— Stephens v. Forsyth, 
 1850, 2 H. 67. A bill prayed for an order on the common pleas to have a 
 sheriffs deed acknowledged not granted. Chancery has no power over law, 
 it simply makes orders in personam which the party may break at his peril. 
 
 Set-off— Determination of.— Laughlin v. Finley, C. P. 1878, 5 W. N. 
 C. 144. Equity will not ordinarily restrain a party from issuing execution 
 at law, in order to await the determination in equity of a mere set-off, but 
 may do so in case of insolvency or fraud. 
 
 Tax Sale.— Mudey's Ap., 1879, 1 Sch. L. E. 26. Equity will not inter- 
 fere to prevent a tax sale where all the proceedings have been regular ; the 
 remedy at law is adequate. 
 
 PROCESS. 
 
 Civil— Stay of Execution.— Clark v. Martin, 1865, 13 Wr. 299. Process 
 which is issued in execution of a decree in equity is ' ' civil process, ' ' within 
 the meaning of the " stay law. " 
 
 Service— Absent Parties. — Coleman's Ap., 1874, 25 S. 441. Act April 
 6, 1859, P. L. 387, authorizing service of process in equity cases on defend- 
 ants outside the jurisdiction, is confined to two cases : (1) where the sub- 
 ject matter in dispute is with the jurisdiction ; in which case the decree 
 shall bind that only, and (2) where the active defendant has been actually 
 served within the jurisdiction. 
 
 lb.— lb.— Eby's Ap., 1872, 20 S. 311. Act April 6, 1859, P. L. 387, pro- 
 viding for service of process in equity suits on parties outside the jurisdic- 
 tion, applies where the subject matter of the suit is within the jurisdiction. 
 
458 PEODUCTION OF BOOKS AND PAPKES — PEOMISSOEY NOTE. 
 
 PRODVCXIOX OF BOOKS AlVD PAPERS. 
 
 [See Peaotice and Pleading III.] 
 
 PROMISSORY ikote:. 
 
 [See also Adjustment VII B. (a) ; Puechasee.] 
 
 Assignee — Non-Negotiable Note — Eciuities. — White t). Heylman, 1859, 
 10 C. 142. The assignee of a non-negotiable note takes it subject to exist- 
 ing equities between the original parties. 
 
 lb.— Judgment by Maker— Equities.— Mifflin Co. Bank's Ap., 1881, 2 
 Out. 150. The bona fide assignee of a judgment given by a maker of a 
 promissory note to the endorser has an equity superior to that of one who 
 discounts the note. 
 
 Discharge— Judgment on Note— Sale. — Dougherty's Ap., 1875, 1 W. 
 N. C. 593. A sale of property under a judgment obtained on a note se- 
 cured by mortgage discharges the mortgage. 
 
 lb. — Bittinger's Ap., 1878, 6 "W. N. C. 231. A sale of mortgaged prem- 
 ises under a judgment obtained on a note given for interest on the first 
 mortgage, discharges the lien of the mortgage, although the record does not 
 show for what the note was given. 
 
 Endorser, Relation of, to Discounter. — People's Bank's Ap., 1880, 12 
 N. 107. An endorser of a note does not stand in such a relation to one 
 about to discount it, that it is fraud in him not to tell that the maker was 
 a minor. Equity, therefore, has no jurisdiction to afford relief against the 
 endorser. 
 
 Equitable Assignment.— Caldwell v. Harlupee, 1871, 20 S. 74. A. held 
 a mortgage in trust for creditors. B. , one of the creditors, was indebted to 
 A. B. gave C. a note to A,, reading: "Please pay C. the amount due 
 us." This A. refused to do, claiming that he had a right to retain it for 
 his debt. Seld that the note constituted an equitable assignment and that 
 C. could recover from A. 
 
 Estoppel— Defence — Evidence — Promissory Notes — Subsequent 
 Action on Notes. — Kiem v. Ainsworth, 1880, 14 N. 310. Where under at 
 plea of accord and satisfaction a defendant has offered in evidence certain 
 notes which he has given plaintiff, he is estopped from setting up any de- 
 fence to the notes in a subsequent action upon them. 
 
 lb.— Forged Notes— Pajrment of Same.— Cohen v. Teller, 1880, 12 N. 
 123. One who has paid notes which he knew were forgeries, is not thereby 
 estopped from setting up that defence on similar notes. 
 
 lb.— Judgment Note— Original Consideration.— Wilcox v. Rowley, 
 1887, 20 W. N. C. 269. A party about to take an assignment of a judg- 
 ment note applied to the maker relative to the same, and was informed that 
 the note was good. On the faith of this representation the party took the 
 note and subsequently assigned it to a third party. Held that as against 
 the party to whom the above statements were made and his assignee, the 
 defendant was estopped from setting up the failure of the original consid- 
 eration of the note. 
 
 lb.— Payor of Bill.— Elliott v. Callan, 1829, 1 P. & W. 24. A payor of 
 a single bill is estopped by a declaration to one about to become assignee 
 thereof that he will pay it. 
 
 Holder— Antecedent Debt— Equities,— Bardsley v. Delp, 1879, 7 N. 
 
PKOMISSOEY NOTE— PUBLIC IMPROVEMENTS. 459 
 
 420. One who receives a promissory note for an antecedent debt, takes it 
 discharged of all equities between the original parties of which he had no 
 notice. 
 
 lb.— Securities.— Harmony Bank's Ap., 1882, 5 Out. 428. The holder 
 of a promissory note is entitled to the securities given by the maker to the 
 endorser, but he cannot obtain any rights thereunder which the surety did 
 not himSelf possess. 
 
 Injunction— Draft— Forged Acceptance.— Conway v. Haight, c. P. 
 1880, 8 W. N. C. 216. Equity will enjoin the presentation and protest of 
 a draft the acceptance whereon has been forged. 
 
 Lis Pendens.— Kieflfer v. Ehler, 1852, 6 H. 388. The doctrine of lis pen- 
 dens does not apply where a promissory note has been negotiated by the 
 pa Tee after his creditor has served an attachment on the maker of the note. 
 
 Payment by Accommodation Endorser after an Assignment. — 
 Broughs' Est., 1872, 21 S. 460. Accommodation endorsers who pay a note 
 of their principal after he has assigntd for creditors are not entitled to any 
 dividend. The payee's dividend is on the whole debt, and after he has 
 been wholly paid the endorsers can be subrogated to his rights. 
 
 Renewal— Mortgage Given— Security.— Ayres v. Wattson, 1868, 7 S. 
 360. A mortgage given to secure the payment of certain notes is not secu- 
 rity for their renewal. 
 
 Set-off— Note with Warrant of Attorney.— McCorkle v. Davis, C. P. 
 Chester, 1878, 1 Ches. Co. Eep. 30. A promissory note with warrant of at- 
 torney, not being negotiable paper, is liable in the hands of an assignee to 
 any set-oflf existing between the original parties. 
 
 lb. — Independent Undertaking. — Tracy v. Pomeroy, 1888, 21 W. N. 
 C. 332. Where a party binds himself by a separate obligation at the in- 
 stance of the obligee, to pay whatever sum, not exceeding $500, said obligee 
 may fail to collect upon a promissory note, and the collaterals held there- 
 for, this is an independent undertaking on the part of the obligor, and when 
 compelled to pay in accordance with his contract, he has no claim on col- 
 laterals by subrogation or otherwise, if the suit upon the note has been 
 prosecuted with due diligence. 
 
 lb.— Payor of Sealed Note.— Louden o. Tiffany, 1843, 5 W. & S. 367. 
 The payor in a sealed note which reads " without defalcation for value re- 
 ceived," etc., may make use of a set-off. 
 
 lb.— Worthless Note— Evidence. — McGowan v. Budlong, 1875, 29 S. 
 470. One who gets possession of a worthless note against his creditor may 
 offer it in evidence as a set-off. and it is for the jury to say whether he holds 
 the note as an experiment or whether there was an actual transfer. 
 
 Subrogation — Joint Endorser. — West Branch Bank v. Armstrong, 1861, 
 4 Wr. 278. Joint endorsers of negotiable paper are not entitled to subro- 
 gation as against each other. 
 
 PUBLIC ACTS A1V» OFFICERS. 
 
 [See Injunction I G.] 
 
 PUBI^IC IMPROVEMENTS. 
 
 [See Adjustment VII B (b.)] 
 
460 PUBLIC OFFICEES— PURCHASE. 
 
 PUBLIC OFFICERS. 
 
 [See Injunction I G.] 
 
 PUBLIC WORKS. 
 
 [See Injunction I E., I F.] 
 
 PUFFING. 
 
 [See Feaud.] 
 
 PURCHASB. 
 
 [See also Adjustment I B. Sale.] 
 
 Equitable Lien— Unpaid Purchase Money.— Irvine v. Campbell, 1813, 
 6 Bin. 118. The vendor of land has an equitable lien for the purchase 
 money against the purchaser and all claiming under him with notice. 
 
 lb. — Lentmyer v. Mittomer, 1847, 5 Barr, 403. Unpaid purchase money 
 is not a lien on land in Pennsylvania, unless secured by some of the com- 
 mon forms of encumbrance. 
 
 Equitable Ejectment — Facts Necessary. — Williams v. Irwin, 1881, 3 
 Out. 37. Where a vendor brings equitable ejectment to collect the pur- 
 chase money against one not his vendee, he must show that the defendant 
 claims under the vendee. 
 
 lb.— Conclusiveness of Verdict.— Treaster v. Fleisher, 1844, 7 W. & 
 S. 137. An equitable ejectment brought to enforce payment of the purchase 
 money by a vendor against a vendee, is not counted as one of the two eject- 
 ments necessary to conclusively decide the title (Act April 13, 1807) between 
 the parties who claim under different warrants. 
 
 lb.— Tender of Deed.— Smith v. Webster, 1834, 2 W. 478. Where a 
 vendor brings equitable ejectment in order to recover the purchase money 
 due from his vendee, he need not prove a previous tender of a deed ; but if 
 he sues directly for the purchase money, such previous tender is necessary 
 to his recovery. 
 
 lb.— Title.— Stockley v. Trout, 1834, 3 W. 163. Under an action of 
 ejectment by a vendor, under articles to compel the payment of purchase 
 money, it is not essential to the plaintiiFs right to recover that he should 
 first show a perfect title to the land in himself : it lies upon the defendant 
 to show a defect in his title. 
 
 Claim by Municipal Corporation.— Farley's Ap., 1884, 15 W. N. C. 
 67. A municipal corporation has no power to purchase an outstanding 
 judgment against its creditor even for the purpose of a set-off. 
 
 Unpaid Purchase Money— Commonwealth— Defence.— McKennan v. 
 Doughinan, 1830, 1 P. & W. 417. Unpaid purchase money due the Com- 
 monwealth is an encumbrance for which a grantee can defend the pay- 
 ment of bonds given one for an unencumbered title. 
 
PUECHASE MONEY— PUECHASK MONEY MOETGAGB. 461 
 
 PURCHASE MONEY— APPLrlCATION OF. 
 
 Corporation — 0£B.cer of. — Philadelphia and Sunbury E. E. v. Lewis, 
 1859, 9 C. 33. The purchaser of bonds from a duly authorized officer of a, 
 corporation, is not bound to see to the application of the purchase money. 
 
 Decedents' Estates.— McCartney's Est., 0. C. 1886, 43 Leg. Int. 98, S. 
 C. 18 W. N. C. 51. Where a sale is made for the express purpose of paying 
 debts, or of paying legacies alone (the land being charged with debts), there 
 is no liability on the part of the purchaser to see to the application of the 
 purchase money. 
 
 Mortgage. — Towers v. Tuscarora Academy, 1848, 8 Barr, 297. A sheriffs 
 vendee is concluded by a decree which distributes funds to subsequent liens, 
 the auditor having reported that it was agreed that a mortgage should re- 
 main ; and a volunteer under him stands in his shoes. It is a sheriffs ven- 
 dee's business since the act of 1830, to look to the application of the pur- 
 chase money in court. 
 
 lb.— Morris v. Barnard, C. P. 1884, 15 W. N. C. 79. It is no defence t© 
 the payment of a mortgage that the agent into whose hands the mortgagor 
 placed it to be sold has embezzled the money. 
 
 lb.— Becher's Est., 0. C. 1880,_9 W. N. C. 128. A mortgagor who pays 
 off a mortgage to the executor of the mortgagee, is not bound to look to the 
 ^ application of the money, although the will of the mortgagee throws that 
 • iiurden on him. 
 
 lb.— Estoppel.— Morris v. Barnard, 1884, 15 "W. N. C. 79. It is no de- 
 fence to the payment of a mortgage that the agent in whose hands the mort- 
 gagor placed it to be sold has embezzled the money. 
 
 Trustee. — Pennsylvania Co. v. Austin, 1862, 6Wr. 257. One purchasing 
 from a trustee is not bound to see to the application of the purchase money, 
 and is not chargeable with the fraud of the trustee of which he had no 
 notice. 
 
 lb.— Dalzell V. Crawford, 1842, 1 Pars. 37, S. C. 1 Clark, 155, 2 Pa. L. J. 
 17. A purchaser from a trustee with power to sell, need not look to the ap- 
 plication of the purchase money. 
 
 lb.— Purchase by— Application of Purchase Money.— Bilyeu w. Gerst- 
 ley, C. P. 1886, 43 Leg. Int. 26. A trustee of a mortgage who buys in the 
 property at a sale under the mortgage, holds as personalty and may sell 
 without there being any liability to see to the application of the purchase 
 money. 
 
 PURCHASE MONEV MORXGAGE. 
 
 [See Mortgages, &c., XVII D. ; XVIII.] 
 
 Administrator — Action on. — Brooks v. Smyser, 1864, 12 Wr. 86. A 
 mortgage given to an administrator for the purchase money of property of 
 the estate cannot be sued on by his executors. 
 
 Agreement. — Fessler's Ap., 1874, 25 S. 483. A vendee agreed witli a 
 third party that the latter should pay the balance of the purchase money 
 and take the title as security until repaid for his advances. Held to be ;i, 
 mortgage of the vendee's equitable estate. 
 
 lb.— Agreement as to Widow's Share.- Myton's Ap., 1883, 3 Pennv. 
 211. An agreeiraent was made between an administrator, the widow and 
 the purchaser of property of the estate who had given a mortgage to secure 
 
46S PnECHASE MONEY MOETGAGE — PUBCHASEE. 
 
 a balance of the purchase money, to the effect that the share of the widow 
 should remain in the hands of the purchaser who should pay her the inter- 
 est for life and the principal on her death to those entitled, the administra- 
 tor thereupon entered satisfaction of the mortgage referring to this agree- 
 ment ; nineteen years afterwards the purchaser made an assignment for 
 creditors, and in a contest between the widow and the creditors it was held 
 in the lower court that the mortgage should be reinstated as to her share, 
 and this was afdrmed by a divided court. 
 
 Decedent's Estate— Liability— Gould's Est,, 0. C. 1879, 6 "W. N. c. 
 562. Where a decedent bought property in his lifetime and created thereon 
 a purchase money mortgage, which property his executor sells ' ' under and 
 subject " to the mortgage, the mortgage will be compelled to go against the 
 land first on the equitable principle of marshaling of assets. 
 
 Defence— Sale in Parcels— Title.— Fisk v. Duncan, 1876, 2 N. 196. A 
 contract for the sale of a large tract of land was executed by conveying it in 
 three parcels and taking a mortgage for the unpaid purchase money on one 
 of these tracts. Seld that the purchaser could not set up as a defence to 
 this mortgage that the title to the other two lots had failed. 
 
 lb.— Title Papers.— Mallory v. Pearson, 1843, 1 Clark, 317, S. C. 2 Pa. 
 L. J. 298. An affidavit of defence to a scire facias on a purchase money 
 mortgage, setting forth that the mortgagee (vendor) had at the time of the 
 sale promised to secure for the detendant the title papers, but had not done 
 so, whereby the defendant had missed a good sale, is sufficient. 
 
 Evidence— Parol.— Speckner's Est., C. P. Carbon, 1882, 1 Kulp, 17, S. 
 C. 9 Luz. L. Eeg. 17. The fact that a mortgage was given for purchase 
 money may be shown by parol. 
 
 Married Women— Bond.— Shnyder v. Noble, 1880, 13 N. 286. A bond 
 and mortgage given by a married woman to secure the purchase money of 
 an estate conveyed to her is valid against the property. 
 
 lb.— lb.— Chase v. Hubbard, 1881, 3 Out. 226. A bond given by a mar- 
 rid woman with a purchase money mortgage may be enforced against her 
 as to the land in question. 
 
 lb.— In Name of Wife Alone.— Glass v. Warwick, 1861, 4 Wr. 140. A 
 purchase money mortgage given by a married woman in her ovm name 
 alone, enforced in equity "so as to prevent great injustice." 
 
 lb.— Personal Liability of Wife.— Sawt»aie's Ap., 1877, 3 N. 306. A 
 bond and mortgage given by a married woman for the purchase money of 
 land, do not bind her personally, but may be enforced against the land on 
 the equitable ground that she will not be allowed to keep both the price 
 and the land. 
 
 PURCHASER. 
 
 [See also Adjustment I B. ; Estoppel I ; Notice D E & F ; Orphans' 
 CoTJET I, II ; Sale ; Vendoe and Vendee.] 
 
 I. In Geneeal. 
 
 II. Foe Value. 
 
 III. Notice. 
 
 IV. Sheeiff's Sale. 
 
 I. In General. 
 
 Assignment— Conditioned on Release— Protection of Purchaser- 
 Johns V. Bolton, 1849, 2 J. 339. An assignment for creditors stipulating 
 
PUECHASEE. 463 
 
 for a release and excepting household furniture and goods exempt from exe- 
 cution is voidable. But purchasers under it before avoided are protected. 
 
 Assignment by Executor — Equities. — Parrishu. Brooks, 1872, 4 Brews. 
 154. One who in a private matter takes an assignment of stock from an 
 executor as such, takes it with notice of equities. 
 
 I Assignee of Judgment — One Discounting Note. — Mifflin Co. Bank's 
 Ap., 1881, 2 Out. 150, S. C. 1 Penny. 233. The hona fide assignee of a judg- 
 ment given by a maker of a promissory note to the endorsee, has an equity 
 superior to that of one who discounts the note. 
 
 lb. — Negligence of Cestui que Trust.— McClelland v. Myers, 1838, 7 
 W. 160. Although the assignee of a judgment is but an equitable assignee 
 and must take subject to secret trusts, yet if the cestui que trust has by his 
 BegUgence made the loss possible, he must bear it. 
 
 lb.— Notice.— GauUagher v. Caldwell, 1853, 10 H. 300. Where the as- 
 signee of a judgment fails to give notice of it to the defendant, he will be 
 bound by a release obtained for a valuable consideration by the defendant 
 from the plaintiff. 
 
 lb.— Of part of Judgment— Recording.— Fisher v. Knox, 1850, 1 H. 
 622. If an assignee of part of a judgment leave the bond on which it was 
 recovered in the hands of his assignor, and fails to note on the record the 
 assignment, he will be postponed t» a subsequent assignee of the whole 
 bond for value and without notice. 
 
 Confidential Relation— Foreclosure.— McHenry's Ap., 1869, 11 S. 432. 
 A. sold to B. an undivided half of lands taking a mortgage for the unpaid 
 purchase money. He leased from B. his interest. After the lease was de- 
 termined and the last instalment on the mortgage overdue and unpaid, A. 
 foreclosed the mortgage and bought in the interest of B. In a suit by B. 
 against A. to enforce a reconveyance, it was held that there was no such re- 
 lation of confidence either as mortgagee, lessee or co-tenant as prevented A. 
 from foreclosing without personal notice, or from purchasing the property 
 at the sale. 
 
 Estoppel- Purchasing a Second Time— Title.— Cooper v. Bushley, 
 1872, 22 S. 252. One who has purchased the same land twice at treasurer's 
 sale, and the second time has received the redemption money, is not es- 
 topped from setting up his title under the first sale. 
 
 lb.— Terre Tenant.— Schnepf's Ap., 1864, 11 Wr. 37. A purchaser of 
 mortgaged premises who, being the terre tenant, has had an opportunity to 
 defend a scire facias on the mortgage, is concluded by the verdict upon it 
 as are his mortgagees. 
 
 Evidence— Parol— Mistake in Description.— Wentz's Ap., 1881, lo 
 W. N. C. 284, S. C. 13 Lan. B. 81. It may not be proved by parol that 
 there is a mistake in the description of the property covered by a mortgage, 
 so as to throw the latter upon other property bound by subsequent liens. 
 
 Husband — Secret Trusts. — McKee v. Jones, 1847, 6 Barr, 425. A hus- 
 band is not such a purchaser that upon marriage he takes the lands of the 
 wife clear of secret trusts. 
 
 Husband and Wife— Position of Purchaser— Purchase Money 
 Partly Husband's— Ejectment— Trust.— Lichty v. Hager, 1859, l H. 564. 
 Where money left to a married woman, with directions that it be invested 
 in property tor her sole and separate use, is invested in property of greater 
 value than the amount of the trust fund, her husband supplying the balance 
 of the purchase money, the purchaser of the husband's title therein, is not, 
 upon bringing ejectment, entitled to a verdict for the land subject to the 
 payment of the amount paid by the wife, but the verdict will be for him, 
 subject to bei defeated within a certain time, by the payment to him of the 
 amount of purchase money advanced by the husband. 
 
 lb.— Priority— Purchase from Wife— Husband's Creditors.— Lyon's 
 
464 PUBCHASEB. 
 
 Ap., 1877, 4 W. N. C. 349. A bona fide purchaser or mortgagee from a wife 
 has an equity superior to that of the creditors of the husband, in fraud of 
 whom the husband has conveyed to his wife. 
 
 Injunction — Possession. — Brady v. Weightman, C. P. 1871, l Camp. 
 347, S. C. 3 Leg. Gaz. 389, 28 Leg. Int. 396, 8 Phila. 332. Equity will not en- 
 join a purchaser at sheriff's sale from recovering possession thereof in the 
 manner prescribed by the acts of Assembly. 
 
 Judgment— Lien.— De Witt's Ap., 1874, 26 S. 283. The lien of a judg- 
 ment recorded on a mortgage relates back to the date of the mortgage, and 
 when the mortgage has been satisfied, but the judgment related back to it, 
 a purchaser takes subject to the lien. 
 
 lb.— Payment of, After Notice. — Guthrie v. Bashline, 1855, 1 C. 80. 
 Payment of a judgment to the original plaintiff after notice (actual or con- 
 structive (of its assignment, is not good against the assignee. 
 
 lb.— Note— Assignment of Note and Judgment.— Praley's Ap., 1874, 
 26 S. 42. One who held a judgment note and entered j udgment thereunder, 
 assigned to different creditors just the note and afterwards the judgment, 
 the latter assignment was first recorded. Held that it was prior in right. 
 
 Mortgage— Property Subject to— Orphans' Court.— Terry's Est., O. C. 
 1878, 36 Leg. Int. 461, S. C. 13 Phila. 298. A purchaser of property at 
 orphans' court sale subject to a mortgage takes subject to accrued interest 
 thereon. 
 
 Mortgagee's Receipt — Evidence — Third Party. — Porter v. Megargel, 
 1884, 15 W. N. C. 388. A receipt from a mortgagee to a mortgagor for the 
 sum due on the mortgage, may be explained or contradicted between the 
 parties, but not as against one who has advanced money on the faith thereof. 
 
 Mortgagor and Mortgagee— Superior Equity.— Sellers v. Benner, 
 1880, 13 N. 207. A purchaser who has bought frgm a mortgagor and mort- 
 gagee, has paid the full purchase money and has received a deed with war- 
 ranty in which the mortgage is not mentioned, has a superior equity to one 
 who has subsequently bought the mortgage vrithout making any inquiry. 
 
 Promissory Note— Assignment— Equities.— Downey v. Tharp, 1869, 
 13 S. 322. One who takes a sealed note overdue takes the risk of equities 
 between the maker and payee, but not between the maker and any subse- 
 quent assignee. 
 
 Recording Acts — Mortgagee. — Earnest v. Cuthbertson, 1875, 6 W. N. 
 C. 199. A mortgagee is a purchaser within the meaning of the recording 
 acts. 
 
 Sale to Corporation— Judgment. — Rice's Ap., 1875, 29 S. 168. A pro- 
 moter of a corporation, who was also a large stockholder, sold land to the 
 company and was to receive therefor bonds secured by a second mortgage. 
 Before the mortgage was given judgments were obtained against the com- 
 pany ; he therefore refused the bonds and they were disposed of to others. 
 Held (l) He must show that the sale was made in good faith. (2) He had 
 no equitable claim to the bonds, or equitable lien by virtue of the mortgage. 
 
 Set-off— Parting with Ownership.— Wood's Ap., 1880, il N. 379. 
 One who has clothed another with all tlje indicia (?) of ownership of property, 
 is estopped from claiming it against one, who has in good faith, and for 
 value, purchased from the apparent owner. 
 
 lb.— Purchaser of Judgmenj; Pending Suit. — ^Mervine v. Greble, 1849, 
 2 Pars. 271. Where a defendant in a judgment pending a writ of error pur- 
 chased a judgment against the plaintifi, he cannot set it off against a bona 
 fide assignee of the judgment after it was affirmed who took it without no- 
 tice of the setKiff. Mutual demands do not per se extinguish each other. 
 
 lb.— Purchasers at Tax Sale.— Irish v. Johnston, 1849, 1 J. 483. Set-off 
 under our act is allowed only between those in privity of contract ; there- 
 fore, in an action against a purchaser at a tax sale to recover the amount of 
 
PURCHASER. 465 
 
 his bid over and above the taxes, the defendant cannot set off arrears of 
 ground rent -which the use plaintiff (the former owner) should have paid. 
 The only privity is that of estate. 
 
 Statute of Elizabeth.— Lancaster ^^ Dolan, 1829, 1 E. 231. One taking 
 a mortgage in satisfaction of a prior debt is a purchaser within the meaning 
 of the statute of Elizabeth. 
 
 Two Assignments.— McLean's Ap., 1883, 7 Out. 255. Where an heir 
 was entitled to one-eighth part of a mortgage, and first assigned |2,000 out 
 of the same, and afterwards the balance, it was held that the first assignees 
 were entitled to be first paid. 
 
 Unseated Land— Taxes— Deduction.— Owens v. Salter, 1861, 2 Wr. 
 211. A purchaser of unseated land on which are unpaid taxes, may pay the 
 same and defalk such payment from the mortgage given for the purchase 
 money. 
 
 Vendor and Vendee— Trust. — Lee v. Tiernan, 1798, Add. 348. One 
 selling land and receiving the price is a trustee for the buyer until the title 
 be conveyed. The trust is not destroyed by a subsequent sale and convey- 
 ance to a third person unless it be bona fide. 
 
 Volunteer — Sheriff's Vendee— Distribution.— Towers v. Tuscarora 
 Academy, 1848, 8 Barr, 297. A sheriffs vendee is concluded by a decree 
 which distributes funds to subsequent liens, the auditor having reported 
 that it was agreed that a mortgage should remain ; and a volunteer under 
 him stands in his shoes. It is a sheriff's vendee's business since the act of 
 1830, to look to the application of the purchase money in court. 
 
 lb. — Trusts. — Sadler's Ap., 1878, 6 N. 154. A volunteer takes an estate 
 subject to all trusts which are attached 'to it, though the fund has gone 
 through many changes. 
 
 II. Kor ITalue. 
 
 Bonds — Assignment as Collateral for Pre-existing Debt.— Pitts- 
 burgh E. E. V. Barker, 1857, 5 C. 160, rev'g 15 Leg. Int. 261. One who 
 takes an assignment of bonds from the officer of a corporation as collateral 
 security for a pre-existing debt due to himself by that officer, is under the 
 necessity of proving a new consideration, although the officer was the au- 
 thorized agent of the corporation to negotiate the bonds. 
 
 Consideration — Proof of Payment. — Lloyd u. Lynch, 1857, 4 C. 419. 
 One claiming to be a bona Ude purchaser discharged of a former secret trust 
 must prove afiirmatively apart from the recital in his deed that he has paid 
 the consideration. 
 
 Mortgage— Assignment — Declaration of no Set-off. —Burns v. Ash- 
 ton, 1873, 20 Pitts. L. J. Ill, S. C. 4 Lan. B. No. 43, 4 Leg. Op. 559, rev'g 
 4 Brews. 151, S. C. 1 Camp. 417, 4 Leg. Gaz. 6. An assignee of a mortgage 
 who relies on a declaration of no set-off given to a prior assignee, must show 
 that either he or some assignee through whom he claims, was an assignee 
 for value and without notice. 
 
 Notice. — Withins v. Anderson, 1849, 1 J. 399. A purchaser for value 
 will not be charged with a secret trust unless he have notice thereof, actual 
 or constructive. 
 
 lb.— Actual Payment.— Griffiths v. Sears, 1886, 2 Amer. 523. To en- 
 title one to the protection of a 6ona /de purchaser for value without notice, 
 the consideration must have been actually paid before notice was received. 
 If the payment were by note or mortgage, due diligence must be used in 
 stopping payment of the same, and in case the consideration is only partly 
 paid when notice is received the assignee is protected only pro tanto. 
 30 — EQUITY. 
 
466 PURCHASEE. 
 
 lb. — Direct and Actual. — Yocum v. Morris, D. C. 1859, 16 Leg. Int. 
 173, S. C. 3 PMla. 414. A purchaser for a valuable consideratlou of the 
 legal title from a trustee can only be affected by direct and actual notice of 
 the trust. 
 
 lb. — Consideration— Acknowledgment. — Pryor v. "Wood, 1858, 7 C. 
 142. An acknowledgment in an assignment of a mortgage twenty-one 
 years old, that the consideration was paid is sufficient evidence to establish 
 that the assignee paid a consideration and therefore in the absence of notice 
 he took discharged of all secret trusts. 
 
 lb.— Outstanding Title.— Chadwick v. Phelps, 1863, 9 Wr. 105. A 
 vendee who before he has paid any purchase money is affected with notice 
 of an outstanding title and afterwards completes his purchase is not a bona 
 fide purchaser. 
 
 lb.— Secret Equities.— Bai-nes u, McClinton, 1831, 3 P. & W. 67. No- 
 tice given at a sheriff's sale to one about to purchase or to his attorney, that 
 another than the defendant claims the land binds the purchaser, if it come 
 from a source entitled to credit. 
 
 Trust— AssignmentandNotice.—Martin'sAp., 1883, 31 Pitts. L. J. 213. 
 Any one who takes an assignment of trust property from one known to be a 
 trustee, takes it subject to the trust. 
 
 Trust Funds.— Harrisburg Bank v. Tyler, 1842, 3 W. & S. 373. Trust 
 money may be followed and a trust enforced against anyone taking itvrith- 
 out consideration or with notice. 
 
 Trust Notice.— Garrard v. Pittsburgh R. E. Co., 1857, 5 C. 144. See 1 
 Crum. 378. A bona fide purchaser who takes property discharged of a trust 
 is one who gives a valuable consideration, and is not affected with notice 
 of the trust either actual or constructive. 
 
 Vendor and Vendee.— Weakness of Vendor's Title. — Jackson v. 
 McGinness, 1850, 2 H. 331. A vendee who has paid no purchase money 
 and has made no improvements cannot in an ejectment by his vendor set 
 up any weakness in the latter's title ; nor does a purchaser for value from 
 him stand in a different position. 
 
 III. :Notice. 
 
 Easement. — Randall v. Silverthon, 1846, 4 Barr, 173. The purchasers 
 of a servient tenement take it subject to the easement, the owner of the 
 domineut tenement (who previously owned both) being in open and no- 
 torious enjoyment of it. 
 
 Ejectment— Purchase Money. — Beck v. Uhrich, 1851, 4 H. 499. One 
 vrho has partially completed the purchase of land subject to a trust, before 
 being affected with notice of the same and who afterwards completes the 
 purchase, may, in an equitable action of ejectment brought by the cestui 
 que trust, defend as to so much purchase money as was paid by him before 
 notice of the trust, unless he has been fully compensated by the rents and 
 profits. 
 
 Equitable Estate — Legal Title not Recorded.— Morrison v. Funk, 1854, 
 11 H. 421. One purchasing an equitable estate does not take paramount to 
 the legal estate which is not recorded. 
 
 Equitable Title.— Asch v. Mcllvaine, D. C. 1862, 19 Leg. Int. 180, S. 
 C. 5 Phila. 45. A purchaser with notice of an equitable title in another 
 acquires no title against the creditors of the latter. 
 
 lb. Possession.— Keeler v. Vantnyle, 1847, 6 Barr, 250. Possession 
 
 is not notice of an equitable title where the possessor declares that he owns 
 no land. 
 
PUBCHASBB. 467 
 
 lb.— Eowe V. Eeam, 1884, 14 W. N. C. 293, S. C. 41 Leg. Int. 136. Pos- 
 session of land by one not in the line of title, is notice of his equitable title 
 to a purchaser or mortgagee. 
 
 lb. — Ehines «. Baird, 1861, 5 Wr. 256. Quagre, whether a purchaser of 
 an equitable title takes it subject to equities of which he has no notice ? 
 
 Fraudulent Conveyance. — Johnson v. Harvey, 1830, 2 P. &W. 82. 
 Where a deed in the chain of title shows that the consideration of a con- 
 veyance from father to son was the payment of the judgment creditors of 
 the former and support for his life, a purchaser takes with notice of the 
 fraud on the creditors. 
 
 Judgment — Assignment for Creditors. — Leonard's Ap., 1880, 13 N. 
 168. A party about to buy a judgment against one who has assigned for 
 creditors takes it with constructive notice of facts which an inquiry of the 
 assignee would have disclosed. 
 
 Liens Outstanding— Notice.— Day i). Day, 1883, 3 Penny. 294. Where 
 a deed is made from a mortgagor to a mortgagee, in which the latter cove- 
 nants to pay the outstanding judgment notes which the mortgage has been 
 given to secure, a purchaser of the property has notice of these outstanding 
 liens, although the mortgage has been satisfied of record. 
 
 Lis Pendens — Notice. — Walker v. Butts, 1795, 1 y. 22i. One purchas- 
 ing land pending au action to charge it with an easement takes subject to 
 the easement. 
 
 Loose Talk at Sheriff's Sale.— Fickes o. Ersiok, 1828, 2 E. 165. If 
 land is sold under an execution, without mention being made by the 
 sheriff of any incumbrance, no loose talk among the bystanders as to a 
 mortgage will affect the purchaser with it. 
 
 Mortgage— Notice — Receipt in Deed. — Stickel ii. Desh, 18«2, 2 Penny. 
 303. A purchaser from one whose deed shows by the receipt at the foot 
 that its consideration was a purchase-money mortgage, takes subject to 
 that mortgage although it has not been recorded. Erb v. Myers, C. P. 
 1886, 43 Leg. Int. 238, S. C. 18, W. N. C. 191. 
 
 Partition — ^Notice— Lis Pendens.— Baird v. Corwin, 1857, 5 H. 462. 
 One receiving a conveyance of an heir's interest after partition commenced, 
 need not receive notice as to further proceedings. Lis pendens is notice of 
 itself 
 
 Purchase Money Paid. — Arthurs v. Bascom, 1871, 19 Pitts. L. J. 9. 
 A purchaser without notice of secret equities is protected only to the extent 
 oi the amount of purchase money paid. 
 
 Recording Deed and Mortgage. — City National Bank's Ap., 1879, 10 
 N. 163. Where a deed and a mortgage are given on the same day and re- 
 corded at the same time, it is sufficient to put a purchaser on inquiry that 
 the mortgage is for pui'chase money. 
 
 Secret Trust.— Scott v. Gallagher, 1826, 14 S. & E. 333. One purchas- 
 ing bona fide the legal title is not affected by a secret trust of which he has 
 not direct express and positive notice. The possession and ownership of 
 the cestui que trust is not such notice. 
 
 Scire Facias.— Anderson V. Love, 1883, 31 Pitts. L. J. 136, 137. The 
 pending of a scire facias sur mortgage is notice to one purchasing the land 
 pending the trial. 
 
 Secret Equities. — Stewart's Ap., 1881, 2 Out. 377. The fact that the 
 consideration expressed in a deed is " valuable and sufficient," and the re- 
 ceipt at the end is for flOO, the property being worth many times that, is 
 not sufficient to put a purchaser on inquiry as to a secret trust. 
 
 Sheriffs' Sale.— Smith v. Probst, 1819, 5 S. & E. 223. A purchaser of 
 land at sheriff's sale takes the legal estate of the defendant discharged from 
 secret trusts of which no notice is given till after acknowledgment of the 
 sheriff's deed. 
 
468 PUECHASKR. 
 
 lb.— Barnes v. McClinton, 1831, 3 P. & W. 67. Notice given at a sheriffs' 
 sale to one about to purchase or to his attorney, that another than the de- 
 fendant claims the land binds the purchaser, if it comes from a source en- 
 titled to credit. 
 
 Stock From Executor— Equities.— Parrish v. Brooks, 1872, 4 Brews. 
 154. One who in a private matter takes an assignment of stock from an 
 executor as such, takes it with notice of the equities. 
 
 StockCertificate— Trust.— Walsh «. Stille, 1842, 2 Pars. 17. A pur- 
 chaser of stock from one designated on the certificate " trustee " who makes 
 no inquiry as to the real ownership, stands only in the shoes of his vendor. 
 The form of the certificate being sufficient notice. 
 
 Subsequent Purchaser— Trust.— Dunning «. Eeese, 1886, 4 Kulp, 168. 
 The rule thai if the first purchaser has no notice, a second purchaser from 
 him -holds the land discharged of a trust, even though he had notice, ap- 
 plies to a purchase at sheriff's sale under a mortgage. 
 
 Taxes, Payment of— Eauity.— Morey v. Herrich, 1851, a H. 123. 
 Mere assessment and payment of taxes is not notice of an equity in land. 
 
 Title— incomplete on Face.— Reed v. Dickey, 1834, 2 W. 459. One 
 purchasing a title incomplete on its face takes it subject to all equitie.s, 
 cuveat emptor is the rule. 
 
 Trust.— Bracken v. Miller, 1842, 4 W. & S. 103. A purchaser without 
 notice takes title from a trustee discharged of the trust, and that good title 
 goes to a, purchaser from him who had notice of the crust on the first con- 
 veyance. 
 
 lb. — Trefts V. King, 1851, 6 H. 157. One completing a purchase, begun 
 by another as trustee, with notice of the trust, takes subject to it. 
 
 lb — Notice. — Sill v. Swackhammer, 1883, 7 Out. 7. A judgment cred- 
 itor of a trustee in a secret trust who buys in the property under his own 
 judgment takes subject to the trust if he have actual or constructive notice 
 of it at any time before the sale. 
 
 Trustee.— Walsh v. Stille, C. P. 1842, 2 Ches. Co. E. 427. A purchaser of 
 trust property from a trustee is himself a trustee if he takes with notice. 
 
 lb— Certificate of Stock.— Walsh v. Stille, 1843, 3 Pars. 17. A pur- 
 chaser of stocks from one designated on the certificates a "trustee" who 
 makes no inquiry as to the real ownership, stands only in the shoes of his 
 vendor. The form of the certificate was sufficient notice. 
 
 Unrecorded Mortgage. — Muse v. Letterman, 1825, 13 S. & R. 167. A 
 judgment creditor who buys in property on a sale under his judgment 
 takes it subject to an unrecorded prior mortgage, notice of which was given 
 by the sheriff. In ejectment by the mortgagee against him such notice can 
 be given in evidence. 
 
 IV. Slieriffs' Sale. 
 
 Estoppel— Wrong Tract.— Hiester v. Laird, 1841, 1 W. & S. 245. A 
 purchaser at sherift's sale who mistakingly takes possession of the wrong 
 tract, is not estopped from asserting his right to that which he did pur- 
 chase. 
 
 lb — Admissions. — Shearer V. Woodburn, 1849, 10 Barr, 511. A pur- 
 chaser at sheriff's sale is not estopped by the prior admissions of the party 
 whose title he buys. 
 
 Fraud — Trustee. — Haines v. O'Connor, 1840, 10 W. 313. A purchaser at 
 sherift's sale who through fraud is declared a trustee, holds for the benefit 
 of the debtor as well as the creditors if the former is not a party to the 
 fraud. 
 
PHECHASER— QUIA TIMET. 469 
 
 Interest of Vendee.— Kuntzler v. Rick, 1881, 1 Penny. 500. As against 
 a purchaser at sherift's sale of a vendee's interest it takes the most explicit 
 proof to turn that interest into that of a mortgage. 
 
 Mechanic's Lien.— Heading v. Hopson, 1879, 9 N. 494. A purchaser ot" 
 property at sherift's sale is not allowed to show by parol that a mechanics' 
 ien on the property, thou gh entered after a mortgage was recorded, was 
 for work done previously, and therefore such a prior lien as would discharge 
 the mortgage. 
 
 Mortgaged Property— Position of Purchaser.- DollarSavingsBank 
 V. Burns, 1878, 6 N. 491. A purchaser at sheriff's sale of property subject 
 to a mortgage makes the debt his own and cannot upon discharging it take 
 an assignment of the bond and mortgage and enforce them against the 
 original mortgagor. 
 
 Oral Agreement.— Roberts v. Williams, 1840, 5 Wh. 170. An oral 
 agreement made at the time of a sheriff's sale of land between a mortgagee 
 and one who contemplated purchasing the property, to the effect that the 
 mortgage might remain on the land, is not binding upon one who derived 
 title from the purchaser at the sherilf's sale without notice of the agree- 
 ment. 
 
 Secret Trusts.— Zeidler «. Phila. Tr. Co., C. P. Lackawanna, 1879, 1 L. 
 T. N. S. 107. A purchaser of property at sheriff's sale takes discharged of 
 secret trusts. 
 
 Set Off.— Peck V. Whitaker, 1883, 7 Out. 297. A purchaser at sheriff's 
 sale who refuses to comply with his bid and is sued for the difference lost 
 on a resale, cannot set off a judgment which he holds against the judgment 
 debtor. 
 
 Unrecorded Deed. — Stewart v. Freeman, 1854, 10 H. 116. A purchaser 
 of land at sheriff's sale is protected against an unrecorded conveyance by 
 the defendant, of which he had no notice, the defendant not having parted 
 with his possession. 
 
 QUIA TIMET.. 
 
 Agreement Concerning Lands— Cloud on Title — Allegation.— 
 Meck's Ap., 1881, 1 Out. 313. There must be an allegation of fraud, acci- 
 dent or mistake, in order to render a bill quia timet a proper remedy to set 
 aside an agreement concerning lands, on the ground that it is a cloud on 
 the title of the plaintiff. 
 
 Answer— Subject Matter— Defendant.— Grove v. Barclay, 1874. 1 W. 
 N. C. 635. The defendant in his answer must either admit or deny his in- 
 terest in the subject matter. 
 
 Averment of Possession. — McAndrew v. McAndrew, 0000, 3 C. P. 174. 
 In the absence of an averment of possession on the part of the plaintiff, a 
 bill quia timet will not be sustained. 
 
 Delivery in Escrow— Recording— Cloud on Title.— Eckman v. Eck- 
 man, 1867, 5 S. 269. A deed made in the course of a proposed family ar- 
 rangement, and only delivered in escrow, and yet by some means getting 
 recorded, is such a cloud on the grantor's title that the family arrangement 
 failing, equity would decree its cancellation, quia timet. 
 
 Executor, Application of, to. — Sim's Adm'ru. Chew el al., 1827, 15 R. 
 & R. 197. Where A. as administrator of C. was liable for a devastavit, to 
 parties entitled under E.'s will, and as on recovery against him, the bond 
 of indemnity given to F. would be forfeited, A. would be entitled, on the 
 principles of quia timet, to retain funds in his hands to satisfy a debt due to 
 the estate of E. 
 
470 QUIA TIMET. 
 
 Husband and Wife— Sale by Husband.— O'Neil v. Hamilton, 1862, 8 
 Wr. 18. Equity yvill entertain a bill enjoining a sale, quieting the posse.s- 
 sion, where a husband obtains the legal title to his wife's lands, and con- 
 veys to a mala fide purchaser with notice, and will declare him a trustee for 
 her, and compel a conveyance of the legal title. 
 
 Injunction— Sheriff's Sale— Mechanic's Lien.— Houston, Smith & 
 Co.'s Ap., 1878, 6 W. N. C. 162. A sheriflfs sale under a mechanic's claim, 
 where the owner is not named, and is without notice, will be enjoined in 
 equity as a cloud upon the title. 
 
 lb.— Title— Cloud on.— Morris V. Boley, 1875, 1 W. N. C. 303. Where 
 there is a cloud upon a title caused by an old patent improvideutly granted 
 or obtained by fraud and which has been revoked, it is proper for the parties 
 owning the land to apply for an injunction against the parties claiming 
 under the patent, to restrain them from in any way asserting their title to 
 the premises. 
 
 Jurisdiction— Cloud on Title.— Kel ley's Ap., 1881, 38 Leg. Int. 350. 
 Where the bill sets up a trust, fraud, spoliation of deeds, imposing upon a 
 minor, and inability to suit at common law, equity will entertain a bill to 
 remove a cloud on title. 
 
 lb.— Clouds on Title.— Bull's Ap., 1886, 3 Amer. 510. The jurisdiction 
 to remove clouds from title is. an independent head or source of equitable 
 jurisdiction, and does not require to be accompanied with fraud, accident 
 or mistake, trust or account, or any other basis of equitable relief. 
 
 lb. — Mortgage — Forgery.— Buchanan v. Noel, C. P. 1878, 35 Leg. Int. 
 490, S. C. 12 Phila. 431. The equitable jurisdiction of our courts in bills 
 in the nature of a bill quia timet is limited, and will not be stretched to in- 
 clude the cancelling of a mortgage claimed to be a forgery, especially when 
 it is considered that under the act March 27, 186'3, complete equitable re- 
 lief can be granted. 
 
 lb.— Oil Lease— Void.— Mehaffey's Ap., 1884, 4 Penny. 502. A void oil 
 lease (the land being vacated) will be ordered to be delivered up to be can- 
 celled as a cloud upon title. 
 
 Mortgage — Cancellation— Consideration. — Miller v. Schlegel, C. P. 
 1881, 10 W. N. C. 522. Equity will order a mortgage which is without 
 consideration to be delivered up and the record cancelled, at the prayer of 
 one who has become a purchaser of the property and who fears that they 
 will be enforced against him. 
 
 Nuisance— Prospective Injunction.— Hough v. Doylestown, 1870, 4 
 Brews. 333. An injunction will not be granted in case of prospective nui- 
 sance, unless the complainant clearly prove that irreparable injury will re- 
 sult and he apply promptly for his relief. 
 
 Outstanding Mortgage— Cancellation. — Clark v. Gibfon, 1881, low. 
 N. C. 522. Where an outstanding mortgage is given without consideration, 
 and negotiated to one who bad knowledge of the facts, it will be decreed to 
 be cancelled as a cloud on the title of a purchaser at a sheriff's sale. 
 
 Perpetuation of Testimony— Feme Covert — Objection. —Couch v. 
 Sutton et al., 1854, 1 Gr. 114. It is too late to make objection where testi- 
 mony is offered to be read which has been perpetuated, on a bill against a 
 feme covert, with reference to her lands, the husband not being a party. 
 
 Province of Equity. — Ingles v. Beemer, C. P. Lackawanna, 1883, 5 L. 
 T. N. S. 63. It is the province of equity to prevent evil as well as to 
 remedy it. 
 
 Statutory Remedy.— Buchanan V. Noel, 1878, 35 Leg. Int. 490. Where 
 a statutory remedy is provided the bill will not lie. 
 
QUO WARBANTO— RAILROAD. 471 
 
 QUO WARRANTO, 
 
 Appointment— Illegal.— Updegrafif v. Craus, 1864, 11 Wr. 103. A bill 
 in equity will not lie to restrain parties from entering upon official duties 
 under an alleged illegal appointment, the proper practice is to wait until 
 they attempt to exercise the duties of the contested office, and then proceed 
 at law by a writ quo warranto. 
 
 Exclusive Remedy.— Gilroy's Ap., 1882, 4 Out. 5. A bill praying an 
 injunction, by one claimant for office against another, is not proper practice. 
 Quo warranto is the exclusive remedy. 
 
 lb.— Officer— Citizen.— Campbell v. Taggart, C. P. 1875, 2 W. N. C. 93, 
 S. C. 32 Leg. Int. 396, 10 Phila. 443. A bill cannot be maintained by a 
 citizen against an officer ; first, because the bill should be by the Attorney 
 General ; and, second, because quo warranto is the proper remedy. 
 
 Tax — School Board. — Jones v. Gilroy, 1882, C. P. Lackawanna, 13Lan. 
 Bar, 207, S. C. 4 L. T. N. S. 89. One school board cannot restrain by in- 
 junction another school board from collecting a tax, the remedy is by quo 
 warranto. 
 
 Trustee — Information Against— Church.— Commonwealth v. Arrison, 
 1826, 15 S. & E. 127. The court may in its discretion allow an Information 
 in the nature of a quo warranto against persons acting as trustees of an in- 
 corporated church. 
 
 RAIl^ROAD. 
 
 [See also Injunction I H. ; Landlord and Tenant.] 
 
 Crossing— Act of June 19, 1871.— Northern Central R. R.'s Ap., 1883, 
 7 Out. 621, S. C. 40 Leg. Int. 328, 32 Pitts. L. J. 48. Under act June 19, 
 1871, P. L. 288, giving equity jurisdiction in cases of railroad crossings, the 
 province of the court is to examine the facts and determine whether or not 
 a crossing above or below grade is reasonably practicable. 
 
 lb.— lb.— Baltimore & Philadelphia E. E. v. P., W. & B. E. E., C. P. 
 1885, 42 Leg. Int. 425. Under act June 19, 1871 (P. L. 1361), giving equity 
 jurisdiction to settle disputes where two railroads cross, although the rights 
 of the one first on the ground are to be first considered, yet a decree will be 
 made inflicting a comparatively slight injury upon that company where 
 otherwise the other company would be put to serious injury and expense. 
 
 lb.— lb.— Baltimore E. E.'s Ap., 1881, 30 W. N. C. 530. Act April 19, 
 1871 (P. L. 1361), makes it the duty of courts of equity to restrain the 
 crossing at grade of one railroad by another, if there be any practical method 
 of avoiding such crossing. 
 
 Injunction — Private Citizens. — Eckert v. Federal Street E. E., C. P. 
 Allegheny, 1880, 2 Sch. L. E. 188, S. C. 27 Pitts. L." J. 202. Private citi- 
 zens who are specially damaged may have a railroad restrained from acting 
 without authority. 
 
 lb.— Siding.— Pennsylvania E. E. Co.'s Ap., 1886, 5 Amer. 514. A rail- 
 road company will be restrained by an injunction from constructing or main- 
 taining a track, siding or other structure upon a public street, unless the 
 privilege is granted by the Legislature in plain words or by necessary im- 
 plication. 
 
 lb.— Norristown v. P. E. E. Co., 1886, 3 Montg. Co L. Eep. 5. An in- 
 junction will not lie to prevent a railroad company from constructing such 
 
472 EAILEOAD— BKCEIVEE. 
 
 appurtenances as are implied from the right to lay their tracks. A siding 
 is such an appurtenance and may be constructed if done without needless 
 and wanton injury to the public highway. 
 
 lb.— Street Railroad— Private Citizen.— Shipley «. Continental E. i;.. 
 C. P. 1879, 36 Leg. Int. 450, S. C. 13 Phila. 128. A private citizen upon show- 
 ing special damage and a clear case of right, is entitled to a preliminary in- 
 injunction restraining the construction of a street railroad. 
 
 Mortgage by— Rolling Stock.— P., W. & B. R. E. v. Woelpper, 1870, 
 14 S. 366. A mortgage by a railroad of all its road, property, rights, etc., 
 then held or thereafter to be acquired, includes rolling stock, etc., after- 
 wards acquired. 
 
 RAILROAD CONTRACXOR. 
 
 [See Mortgage, &c. XVI B. (a. )] 
 
 RECEIVER. 
 
 [See also Partnership V.] 
 
 I. In General. 
 II. When Appointed. 
 
 I. In General. 
 
 Action by.— NaU v. Ewing, C. P. 1878, 6 "W. N. C. 32. A receiver ap- 
 pointed by another state with a right to sue in his own name, cannot so 
 sue here. 
 
 Appointment of— Effect on Vested Rights.— Elliott v. Penna. Coal 
 Co., C. P. Lackawanna, 1880, 2 L. T. N. S. 243. The appointment of a re- 
 ceiver has no effect on rights which were before vested. 
 
 lb.— Out of Jurisdiction.— Bagby v. Atlantic E. E., 1878, 5 N. 291, S. C. 
 5 W. N. C. 263. The appointment of a receiver by the courts of another 
 state will be recognized by our courts and effect given to it in all cases 
 ■which do not affect the rights of our own citizens. 
 
 Continuing Business. —McCay's Ap., 1881, 1 Del. Co. E. 69. A re- 
 ceiver appointed to wind up a business has no authority to make new pur- 
 chases and continue the business. 
 
 Distribution — Attorney's Fee. — McKelvy's Ap., 1885, 42 Leg. Int. 
 181. Where money has been collected by a receiver and is in court for dis- 
 tribution, the chancellor can fix an attorney's fee and an issue is not neces- 
 sary. 
 
 Duties of— Sale.— Givin v. Givin, C. P. 1870, 1 Camp. 48, S. C. 2 Leg. 
 Gaz. 85, 1 Lan. Bar. 43. A receiver may apply to the court for directions, 
 but when ordered to sell real estate he must look to the details and collect 
 the price. 
 
 Liability of —McCoy v. Black, C. P. Delaware, 1879, 36 Leg. Int. 471. A 
 receiver who does not follow the line marke'd out by the decree will be per- 
 sonally responsible although he acts under the advice of counsel. 
 
RECEIVER. 473 
 
 lb.— For Interest.— Wallace's Ap., 1877, 3 M. C. 468. Where a receiver, 
 owing to a complication of suits, has been unable to pay out money, he 
 should not be charged interest thereon, it not being proven that he used it 
 personally. 
 
 Parties.— Seavey v. Jenkins, C. P. 1884, 15 W. N. C. 124. A receiver 
 need not be made a party to an action against the partnership for a debt 
 contracted before he was appointed. 
 
 Partner Appointed.— Warren v. Staguer, C. P. 1879, 7 W. N. C. 127. 
 Where it appeared that one of the partners would be entitled to nearly the 
 whole sum that would be realized from the assets, and there was no evi- 
 dence to impeach his integrity, the court appointed him receiver. 
 
 Partnership— Action Against— Party.— Sea vy v. Jenkins, C. P. 1884, 
 15 W. N. C. 124. A receiver need not be made a party to an action again.st 
 the partnership for a debt contracted before he was appointed. 
 
 ro.— Suit in Firm Name.— Yeager v. Wallace, 1863, 8 Wr. 294. A re- 
 ceiver of a partnership must bring trover in the firm's name. 
 
 Property in Hands of— Execution.— Robinson B. Ohio R. R., 1861,2 
 drum. 257, S. C. 8 Pitts. L. J. 410, 1 Luz. L. Obs. 330. Property in the 
 hands of a receiver appointed by chancery cannot be seized and sold under 
 an execution at law. 
 
 Eight to Assets.— Eushton v. Harrington, C. P. 1874, 1 W. lir. C. 79. 
 A receiver is entitled to all the assets of a firm, even commendatory letters 
 to one of the members. 
 
 Eight to Sue.— Singerly v. Fox, 1874, 25 S. 112, S. C. 2 Post. 546, Leg. 
 Gaz. 38, 21 Pitts. L. J. 114. A receiver has no legal title to the assets he is 
 appointed to collect and cannot maintain trover without authority from the 
 court, but as to goods which he has once reduced to possession the case is 
 different. 
 
 lb.— Mccarty's Ap., 1885, 43 Leg. Int. 186, S. C. 17 W. N. C. 182. It is 
 proper for the receiver of a corporation to bring suit against the ofScers who 
 have wrongfully appropriated the money of the company ; and it is no de- 
 fence that there are no debts. 
 
 II. 'When Appointed. 
 
 Account — Trustee — Insolvent Banking Co.— Fidelity Co. v. Huber, 
 C. P. 1879, 7 W. N. C. 278, S. C. 36 Leg. Int. 164, 13 Phila. 52. In a bill 
 for an account by a trustee against a de facto trustee who has in his posses- 
 sion cash, government bonds and other personal securities, the court will 
 appoint a receiver. 
 
 Act of Assembly Authorizing — Insolvency.— Seitzinger «. Decem- 
 ber Oil Co., 1873, 1 Fost. 234. Where an act of Assembly authorized the 
 court to appoint a receiver of a company which was to be wound up when- 
 ever it should appear that it was insolvent, the court will not act until the 
 insolvency is established, filing a bill alleging it is but the beginning. 
 
 Assets in Hands of Trustees. — Philadelphia v. Trustees of Gas Works, 
 C. P. 1882, 12 W. N. C. 477, S. C. 38 Leg. Int. 450, 15 Phila. 51. A re- 
 ceiver will not be appointed where funds are in the hands of a regularly 
 constituted board of trustees. 
 
 Before Hearing. — Sorrgeu. Weber, 1888, 5 Kulp, 91. In a motion for 
 the appointment of a receiver -before hearing, the plaintiff must show a clear 
 prima facie right, with such attending circumstances of danger or probable 
 loss as will move the conscience of a chancellor to interfere. 
 
 Bill' by Creditors.— Hilborn v. Covenant Publishing Co., C. P. 1883, 12 
 
474 REOEIVEE. 
 
 W. N. C. 548. Upon a bill filed by creditors of a partnership, limited, a 
 receiver may be appointed. 
 
 Bill to Wind Up Partnership.— Gowau !>. Jeffries, 1840, 2 Ash. 296. 
 In a bill to wind up a partnership already dissolved, the appointment of a 
 receiver is practically a matter of course, but vphere the bill asks for disso- 
 lution and a receiver, the receiver vfill only be appointed where the affi- 
 davits and bill make out a case, which, if established, will compel the court 
 to decree dissolution. 
 
 Clear Right.— Oil Co. v. Petroleum Co., N. P. 1868, 25 Leg. Int. 93, S. 
 C. 6 Phila. 521. A receiver will not be appointed where the right to be 
 protected is not clearly established. 
 
 lb.— Chicago Oil Co. v. V. S. Oil Co., 1868, 7 S. 83. One asking to have 
 a receiver appointed must show a clear right, for it is a strong measure and 
 will not be exercised doubtingly. 
 
 Contract to Purchase—Assignment.— Marvine v. Drexel, 1871, 18 S. 
 362. A. having a contract to buy land assigned it to B. under an agree- 
 ment that on a resale whenever B., "as owner," should see fit, A. should 
 have one-fourth of the profits. In the meantime A. paid interest on one- 
 fourth the purchase money. B. died having directed his executors to sell 
 whenever they thought proper. Held, equity would restrain them from ex- 
 ercising this right contrary to the spirit of the agreement, and having taken 
 hold of the case would do justice by appointing a receiver to sell it. 
 
 Corporation. — Gravenstine's Ap., 1865, 13 Wr. 310. A receiver of a cor- 
 poration wUl not be appointed when the corporation is not a party to the 
 bill, or in court under notice for a preliminary injunction. 
 
 lb. — Remedy at Law. — Gormerly v. Port Richmond B. &. L Asso., C. 
 P. 1876, 3 W. N. C. 11. Equity will not appoint a receiver for an insolvent 
 corporation, the officers being irresponsible ; there is adequate remedy at 
 law. 
 
 Insolvent Banking Co. — Trustees.— Bloom v. U. S. Banking Co., C. P. 
 1877, 4 W. iST. C. 138. An insolvent banking company will be restrained 
 from appointing trustees for the purpose of winding up its affairs, and the 
 court will appoint a receiver. , 
 
 Decedents' Estates— Power of Sale. — Marvine u. Drexel, 1871, 18 S. 
 362, S. C. 5 Leg. Gaz. 29. A. having a contract to buy land assigned it to 
 B. under an agreement that under a resale whenever B. , "as owner, ' ' should 
 see fit, A. should have one-quarter of the profits ; in the meantime A. paid 
 interest on one-quarter the purchase money. B. died, having directed his 
 executors to sell whenever they think proper. Equity will restrain them 
 from exercising this right contrary to the spirit of the agreement, and having 
 taken hold of the case will do j ustice by appointing a receiver to sell it. 
 
 Injury to Business.— Slemmer's Ap., 1868, 8 S. 168. Equity has wide 
 discretion in the matter of dissolution of partnerships. It will decree dis- 
 solution where serious differences have arisen between the partners which 
 make it impossible to carry on the business with comfort and profit. A re- 
 ceiver will not be appointed where such action is more hurtful than benefi- 
 cial. In this case the partners are allowed to bid for the business. 
 
 Injury to Property.— Sloan v. Moore, 1860, 1 Wr. 217. Equity will ap- 
 point a receiver and restrain a partner from interfering with him, where the 
 partnership is nearing its limit, and the partners cannot agree upon a dis- 
 solution, and the business (publication of a paper) will be hurt greatly by 
 being interrupted. 
 
 Insolvency— Savings Bank. — Scrantou Trust Co. v. Clark, 1879, L. T. 
 N. S. 287. The court cannot appoint a receiver to wind up an insolvent 
 savings bank. 
 
 Partner Excluded. — Seibert v. Seibert, 1868, 1 Brews. 531. A partner 
 who has been excluded from the firm is entitled to a receiver and injunction. 
 
KECEIVER — EECONVEESION. 475 
 
 Partner Holding Assets Under Agreement. — Hofifman v. Steinbeis- 
 ser^ C. P. 1881, 11 W. N. C. 383. ' A receiver to wind up a partnership will 
 not be appointed when the firm assets are in the hands of one of the part- 
 ners for that purpose by agreement, unless it be proved that he is abusing 
 the trust. 
 
 Partnership— Denial of. — Baxter v. Buchanan, 1869, 3 Brews. 435, S. 
 C. 26 Leg. Int. 389, 7 Phila. 315. A receiver will not be appointed where 
 the partnership is denied. 
 
 lb. — Moir v. Emerick, 1887, 3 Montg. Co. L. Eep. 161. A partner who 
 draws more than his share of the profits from the firm's assets will be re- 
 strained by injunction, and in such case the partnership will be dissolved 
 and a receiver appointed. 
 
 lb.— Simms v. Brouse, C. P. 1873, 30 Leg. Int. 84, S. C. 10 Phila. 13. The 
 prayer of one claiming to be .a partner and asking for a receiver and an in- 
 j unction, will not be granted unless he can show himself to be actually a 
 partner. 
 
 lb. — Slemmer's Ap., 1868, 8 S. 168. A receiver will not be appointed in 
 a suit for dissolution of a partnership where such action is more hurtful 
 than beneficial. 
 
 lb.— Provision in Articles.— Curtis v. Hale, C. P. 1875, 1 W. N. C. 371. 
 Where articles of co-partnership provide for winding it up, equity will not 
 interfere by appointing a receiver. 
 
 lb.— Purchaser of Interest.— McGlensey ,1. Cox, 1852, 1 Phila. 387, S. 
 C. 9 Leg. Int. 134, 5 Clark, 203, 1 Am. Leg. Reg. 34. One who has purchased 
 a partner's interest in a firm which is immediately dissolved, is not, " of 
 course," entitled to a receiver. 
 
 lb. — Refusal of Surviving Partner to Proceed.— Holdeu v. McMakin, 
 1847, 1 Pars. 270. Chancery will appoint a receiver to settle the affairs of 
 a partnership where the surviving partner neglects or refuses to proceed 
 within a reasonable time. 
 
 lb. — Secret Agreement to Sell Interest. — Leinbach v. Leisner, C. P. 
 1875, 1 W. N. C. 199. Where one partner has secretly agreed to sell the 
 business to another, and the partnership is insolvent, the court will ap- 
 point a receiver on complaint of the other partner. 
 
 Pending Suit.— McFadden V. Nolan, C. P. 1882, 39 Leg. Int. 118, S. C. 
 15 Phila. 187. Pending a dispute as to title to a mill, the court appointed 
 a receiver to take care of it until the dispute was determined, it being 
 shown that the property would greatly deteriorate if neglected. 
 
 lb.— Dunlap V. Eiddell, C. P. McKean, 1879, 7 W. N. C. 466. The court 
 appointed a receiver to take charge of oil-producing territory pending an 
 ejectment. 
 
 lb.— Enterprise Transit Co.'s Ap., 1880, 9 W. N. C. 925. Equity has no 
 jurisdiction to appoint a receiver to take charge of oil wells and work them 
 for the benefit of the mining party in a pending ejectment. 
 
 RESCISSION. 
 
 [See Feaud V ; Eefoemation III.] 
 
 RECOKVERSIOIV. 
 
 [See CONVEESION I.] 
 
476 EBCOED AND KECORDING — EBFOEMATION. 
 
 RECORD AX» RECORDIXO. 
 
 [See Estoppel VII ; Notice II E. ; Mortgage VII, XIV, XVI B. (b 1), 
 XVII E. ; XIX.] 
 
 REDUCTIOPi TO POSSESSIOI>( OE WIFE'S 
 CHOSES IBi ACTIOX. 
 
 [See Husband and Wife VII ; Mortgage, &c. XIII.] 
 
 REFERENCE. 
 
 [See also Arbitration, Arbitrators.] 
 
 Contract for.— White v. Davis, C. P. 1883, 14 W. N. C. 59. After an 
 equity case had been referred to an examiner the parties, by a writing, re- 
 ferred it to referees whose decision was to be final ; upon application to the 
 court to set aside the reference, the court held that the contract was irrevoc- 
 able. 
 
 Master, — Herdio's Ap., 1868, 8 S. 211. Where a case is heard upon bill, 
 unswer and evidence there should be a reference to a master, but where the 
 opinion of the lower court contains a full statement of the facts the defect is 
 not fatal. 
 
 lb. — Backus' Ap., 1868, 8 S. 186. Where an equity case turns upon cir- 
 cumstances which involve a variety of facts, it should be referred to a mas- 
 ter to report the facts. 
 
 lb.— Mener v. Mener, C. P. 1885, 16 W. N. C. 540. The court will upon 
 petition and proof of the property of a complainant, hear a cause without 
 reference to a master, the testimony having been taken by a master. 
 
 lb.— Partnership.— Christy's Ap., 1879, 11 N. 157. Where the prayers 
 in a partnership bill are for account and contribution, and one of the defend- 
 ants denies that he was a partner, the proper practice is to make a special 
 reference to a master to determine his liability before examining into the 
 accounts, and although a general reference was made in this case, since tlie 
 master only reported on the one point of liability the reference would be con- 
 sidered as amended and the proceedings regular. 
 
 lb. — Report. — Phillips' Ap., 1871, 18 S. 130. A court of equity may ap- 
 point a master when it pleases. The master is to take the evidence, report 
 the same clearly, give his opinion of the law and report what he thinks a 
 proper decree. His report is not conclusive but should carry weight as he 
 has had all the parties before him. 
 
 REFORniAXIO?!., 
 
 I. In General. 
 
 II. CANCELLATIC)N. 
 
 III. Kescission. 
 
JRKFOEMATION. 477 
 
 I. In General. 
 
 Act of May 25, 1878— Certificate of Acknowledgment. — Saving 
 Fund V. Sowers, 1888, 5 P. C. C. 129. The object of the Act of May 25, 1878, 
 was to provide a way by which a certificate of acknowledgment, defective in 
 its statement of facts, might be reformed, and to prevent a party who resists 
 this to assail and have set aside that part of the certificate which is good. 
 
 Evidence. — Lippincott v. Whitman, 1877, 2 N. 244. Wherever equity 
 would set aside or reform a written instrument on the ground of fraud, acci- 
 dent or mistake, oral evidence is admissible (except in the case of commer- 
 cial paper) to contradict or deny its terms. 
 
 lb. — Scettiger v. Hoppel, 1856, 3 Gr. 54. Courts of law can construe or 
 set aside an instrument but only equity can reform it. For this purpose oral 
 testimony is sufficient if it be believed by the jury and if in the opinion of 
 the court it makes out a good case on the ground of fraud, accident or mis- 
 take. 
 
 lb. — Conflicting Testimony.— Kenny v. McClellan, C. P. Chester, 1870, 
 27 Leg. Int. 246, S. C. 7 Phila. 655. Equity will not reform a written con- 
 tract upon conflicting evidence of fraud or mistake. 
 
 lb.— Proof Necessary.— Edmunds' Ap., 1868, 9 S. 220. Written instru- 
 ments will be reformed in equity on the ground of mistake only when the 
 mistake is clearly proved, if the evidence is loose and admits of contrary pre- 
 sumptions, relief will not be granted. 
 
 Exchange — Substitution. — McCann v. Pickup, C. P. 1885, 42 Leg. Int. 
 286. Equity will not first reform an alleged agreement in writing for an ex- 
 change by substituting one property for another and then decree specific per- 
 formance of the exchange as reformed. 
 
 Mistake— Clerical Error— Bond.— Clement's Ap., 1882, 2 Penny. 313. 
 Equity will reform a bond where there is a. manifest clerical error m mak- 
 ing the penaltj $8 instead of $800. 
 
 lb. — ^Fee Simple Deed. — -Doyle v. Hoderlock and Osborne, 1884, 4 Kulp 
 257. Where a contract for a conveyance of land to a trustee stipulates for 
 a fee simple, and where there is no evidence of a charge of intention, a deed 
 not conveying the estate so intended, by reason oi the omission of technical 
 terms, will be reformed on the ground of mutual mistake. 
 
 Surrender— Deposit of Deed as Security. — Sidney v. Stevenson, C. P. 
 1876, 8 Leg. Gaz. 37. Equity will not compel the surrender of a deed de- 
 posited as security unless the complainant has satisfied the debt. 
 
 Trust— Power.— Lee v. Prick, C. P. 1875, 2 W. N. C. 11. Equity can- 
 not reform a deed of trust by inserting therein a power, there having been 
 neither mistake or accident in the legal sense, although all the parties in in- 
 terest are desirous of making the change. 
 
 lb.— lb.— McFarland's Ap., 1886, 17 W. N. C. 443, Aff'g. 1 Pa. Co. R. E. 
 195. Where a woman in contemplation of marriage has created for herself 
 a trust which inadvertantly contained no power of revocation, and yet the 
 plain intention was only to create a trust during coverture. Equity will 
 reform the instrument by inserting such a power. 
 
 Voluntary Deed from Son to Father.— Miskey's Ap., 1883, 40 Leg. 
 Int. 414, S. C. 3 Penny. 408. A voluntary deed by an intemperate son to 
 his rich father, without any provision for support or any power of revoca- 
 tion, and made without legal advice on the part of the son, demands affir- 
 mative proof of fairness and genuineness. 
 
478 BEPOEMAIION. 
 
 II. Cancellation. 
 
 Cloud on Title.— DuU's Ap., 1886, 3 Amer. 510. A. was in possession of 
 certain real estate for which he had title. B. held a recorded butinvalied tax 
 deed for the same and asserted his title though he brought no action. The 
 evidence of the invalidity of B.'s title rested wholly in parol. Held, that a 
 court of equity had jurisdiction to remove the cloud from A.'s title by de- 
 creeing the surrender and cancellation of B.'s tax deed. 
 
 lb.— Meck's Ap., 1881, 1 Out. 313, S. C. 10 W. N. C. 397, A party who has 
 entered into an agreement with another whereby the latter has taken pos- 
 session of the land of the former, cannot, in the absence of fraud, accident or 
 mistake, ask equity to order the instrument to be cancelled on the ground 
 that it is a blot on his title. This is merely a forerunner to get the way clear 
 for an ejectment. 
 
 Covenant— Remedy at Law.— Koch's Ap., 1880, 12 N. 434, S. C. 9 W. 
 N. C. 343. Where a deed gives rise to an implied covenant, which really 
 supplies the consideration and which the grantee breaks, equity will not en- 
 force specific performance nor will it cancel the agreement but will leave the 
 plaintiff to his action for damages. 
 
 Fraud — Pending Ejectment. — Edmunds v. Brightly, 1887, 44 Leg. Int. 
 132. When a deed alleged to be fraudulent is sought to be cancelled, relief 
 cannot be afforded, so long as an action in ejectment is pending with regard 
 to the title contained in the deed. 
 
 Jurisdiction — Common Pleas.— Gruschio v. Ley, 1852, 1 Phila. 383, S. 
 C. 9 Leg. Int. 130. The common pleas has equity power to decree the can- 
 cellation of a deed and appoint a master to draw a new one, all the parties 
 agreeing. 
 
 Lease— Conditional. — Mehaffey's Ap., 1884, 4 Penny. 502. Where a 
 lease was executed for the sole purpose of mining for petroleum, with the 
 agreement that diligent search should be made by the lessee, and if no oil 
 should be found and the land be abandoned, the lease should be null and 
 void, and after search the land was abandoned, a court of equity will require 
 the lease to be given up for cancellation. 
 
 Married Woman— False Representations. — Jewett v. Lineberger, 
 1869, 3 Crum. 157, S. C. 16 Pitts. Leg. Int. 133. Equity will order the deed 
 of a married woman to be delivered up and cancelled where the justice be- 
 fore whom her separate acknowledgment was taken made false representa- 
 tions to her in order to secure a first lien on the land in the hands of the 
 grantee. 
 
 Practice — Averment of Possession. — McAndrew v. McAndrew, 1886, 3 
 C. P. E. 174. Where the plaintiff does not aver possession, or where it may 
 fairly be inferred that the defendant is out of possession, a bill in equtity to 
 cancel a conveyance will not be sustained. 
 
 Specific Performance Discretion.— Stewart's Ap., 1875, 28 S. 88, S. 
 C. 7 Lan. Bar. 42, 2 W. N. C. 218, 4 Luz. L. R. 236, 7 Leg. Gaz. 182, 22 
 Pitts. L. J. 180. A chancellor will not order an instrument to be de- 
 livered up and cancelled in all cases where specific performance of the cdu- 
 tract would be denied, but only in his discretion, when he thinks that the 
 existence of the instrument may operate as a hardship upon the plaintiff. 
 
 III. Rescission. 
 
 Cloud on Title. — Kostenbader v. Spotts, 1876, 30 S. 430. A vendee who 
 has paid part of the purchase money which he wishes to recover on the 
 
EBFOEMATION — RELEASE. 479 
 
 ground that the title is unmarketable, must show greater clouds upon the 
 title than he would be obliged to were he defending against specific perform- 
 ance. 
 
 Contract at End.— Wilson v. Getty, 1868, 7 S. 266. Equity will decree 
 rescission of a contract and order the papers to be cancelled where it appears 
 plainly that the contract is at an end, and that the papers ought not to be 
 used by the party holding them. 
 
 Exchange.— Bond v. Marston, G. P. 1876, 2 W. N. C. 724. Equity has 
 jurisdiction of a bill setting forth that defendant did not convey what he 
 agreed to In their agreement to exchange lands, and praying that the agree- 
 ment be rescinded and the deeds delivered up. 
 
 Executed Contract— Inadequacy of Price.— Kelley's Ap. , 1885, 42 Leg. 
 Int. 312. Equity will not rescind an executed contract ou the sole ground 
 of Inadequacy of price. 
 
 Fraud, Accident or Mistake — Evidence. - Ro wand v. Finney, 1880, 1.5 
 N. 192. One can only be relieved from his written agreement by proving 
 traud, accident or mistake in its procurement, and although this may be done 
 by oral evidence, that evidence must be clear and indisputable. If it is not, 
 the court should not allow it to go to the jury. 
 
 Jurisdiction — Orphans' Court — Bill of Review. — Weyand v. Weller, 
 1861, 3 Wr. 443. The orphans' court has no jurisdiction to entertain a pe- 
 tition or bill for the rescission of a contract of a decedent which it has pre- 
 viously decreed shall be specifically performed, but which has never been 
 carried into execution. A bill of review is the only remedy. 
 
 Parol Contract— Possession — Improvements. — McGibbeny «. Bur- 
 master, 1866, 3 S. 332. A parol contract precise as to terms and subject, 
 under which possession has been taken, and improvements made, will not be 
 rescinded. 
 
 Release — Cestui que trust.— Shartel's Ap., 1870, 14 S. 25. Releases 
 from cestui que tmstent to their trustees without a regular settlement of their 
 accounts, are looked upon with a jealous eye ; but to set them aside, over- 
 reaching fraud or mistake must be shown. 
 
 Undue Influence. — Hetrick's Ap., 1868, 8 S. 477. A contract made by 
 one old and feeble, who has no one to advise him, will be rescinded by equity 
 if there is circumstance, however slight, which will warrant it, but where 
 there is no proof of undue influence or of fraud and the other party has lived 
 up to the contract there is no ground on which to base a rescission. 
 
 Voluntary Deed — Intoxication. — Clifton v. Davis, 1842, 1 Pass. 31. 
 Equity will set aside a voluntary deed made by one under the influence ol 
 liquor if no one is prejudiced by such decree. 
 
 RELHASE. 
 
 [See also Adjustment I. A. B. ; VI. Assignment foe Ceeditoes, Mort- 
 gage.] 
 
 Annuitant. — Addams v. Hefferman, 1840, 9 Watts, 529. An annuity 
 was charged on two separate lots, the annuitant released one of them. This 
 was not a release even pro ianio of the other. The latter descended to sev- 
 eral heirs one of whom was the annuitant, held the land was discharged pm 
 tanto. 
 
 Assignee of Judgment. — Notice.— Gallagher v. Caldwell, 1853, 10 H. 
 300. Where the assignee of a judgment fails to give notice of it to the de- 
 fendant he will be bound by a release obtained for a valuable consideration 
 by the defendant from the plaintiff. 
 
480 BELEASE — BELIEF. 
 
 Assignee to Purchaser— Title of Subsequent Assignees.— Mcrowell 
 V. Jones, 1884, 4 Penny. 460. A. executed a mortgage to B., who assigned 
 the same to C. as collateral security for a note given in pajment of a loan 
 made by C. to B. , which assignment was not under seal and never recorded. 
 A. subsequently conveyed the land bound by the mortgagee to D., who ob- 
 tained a release of the lien of the mortgage from C, for a money considera- 
 tion fully paid. D. took possession and made improvements. Judgment 
 had in the meantime been entered by C. on the bond, and satisfied of record, 
 One year after the release given by C. to T>. had been executed, A. executed 
 an exactly similar bond and mortgage, assigned it to B., who obtained 
 money on it from E. E.'s assignee entered judgment on the bond and sold 
 the land. Held that D. had taken a good title before E. 's assignee had ac- 
 quired any rights, since by the valid equitable assignment of the bond and 
 mortgage, C. was the only party capable of executing a release of the lien 
 whereby the title became vested in D. freed from the mortgage. 
 
 Co-executors — Compromise of Claim. — DeHaven «. Williams, 1876, 30 
 S. 480. Where co-executors have deposited money in a bank to their joint 
 credit as executors, one executor, the bank having failed, cannot bind the es- 
 tate by signing an agreement of compromise. 
 
 Consideration, Parol. — Ackla v. Ackla, 1847, 6 Barr, 228. A mortgage 
 may be released by. parol if for a consideration. 
 
 Deed, Absolute— Unrecorded Defeasance— Mortgagor's Release. — 
 
 Caverow v. Mutual Life Ins. Co., 1866, 2 S. 287. A deed absolute on its 
 face but against which there is an unrecorded defeasance, becomes absolute 
 in fact upon the mortgagor's releasing his equity of redemption. 
 
 Lien. — Lowry V. McKinney, 1871, 18 S. 294. After part of a tract of land 
 subject to a lien is sold, a release of the lieu as to the remainder discharges 
 the part sold also. 
 
 lb.— Creditor— Release.— Snyder r. Crawford, 1881, 2 Out. 414. A lien 
 creditor may release part of the tract bound without losing his claim to the 
 rest unless he have actual notice that the part not released has been conveyed 
 and is warned not to do anything by which the rights of these grantees may 
 be diminished. 
 
 lb.— Mortgagee, Assignment for Creditors — Release. — Matlack'sAp., 
 1844, 7 W. & S. 79. Where a mortgagee executes a general release of all 
 his claims in order to come in under an assignment for creditors he loses the 
 lien of his mortgage. 
 
 Mortgage — ^Husband and Wife — Release. — Trimble v. Eeis, 1860, 1 
 Wr. 448. A mortgage given to husband and wife on the sale of the wife's 
 land and to secure the purchase money, cannot be released by the husband. 
 
 Seal. — Wentz V. Dehaven, 1815, 1 S. & R. 312. A written release of a 
 mortgage attested by two witnesses is valid though not under seal. 
 
 TJndue Influence.— Whelen's Ap., 1872, 20 S. 410. Equity will relieve 
 against a mistake of law where full explanation and information have not 
 been given and where by undue influence one has been pressed to release 
 a right which he did not fully comprehend. 
 
 RELIEF. 
 
 [See also Account B ; Peactice and Pleading VI.] 
 
 Compensation — Specific Performance. — Shafer v. Shafer, 1885, 42 Leg. 
 Int. 522. Compensation may be decreed in place of specific performance 
 when complainant is entitled to the latter, but such relief is impossible or 
 impracticable ; but not when the case of the complainant is not made out. 
 
RELIEF — KEMKDY AT LAW. 481 
 
 General Prayers.— Passyunk Building Association's Ap., 1877, 3 N. 441. 
 A bill prayed (1) that the treasurer of an association be decreed to account 
 to the association and to pay it whatever might be due ; (2) that the asso- 
 ciation pay certain sums to the plaintiff ; (3) general relief. The decree 
 was that the treasurer personally pay the plaintiff. Held not a proper de- 
 cree under the prayers. 
 
 lb. — Slemmer's Ap., 1868, 8 S. 155. Under the prayer for general relief, 
 such relief may be granted as is agreeable to the case made in the bill, 
 though different from that specifically prayed for. 
 
 lb. — Thomas v. Ellmaker, 1844, 1 Pars. 98. Under the general prayer, 
 no relief can be granted which is inconsistent with the special prayers. 
 
 lb. — Delaware Canal Co. v. Pennsylvania Coal Co., 1853, 9 H. 131. 
 Equity will not grant relief under the general prayer unless (1) such relief 
 be consistent with the relief specially prayed for ; (2) the allegations bf the 
 hill under which general relief might be granted, have been made for this 
 purpose and not as strengthening the special prayer ; (3) the facts must be 
 stated with sufficient precision to enable the court to make a specific decree. 
 
 Jurisdiction— Discovery.— Bank of United States ii. Biddle, 1844, 2> 
 Pars. 31. Where esquity has acquired jurisdiction on the ground of dis- 
 covery, it may go on and afford complete relief, though there is remedy at 
 law, especially if the equitable relief will be more complete, and will pre- 
 vent multiplicity of suits. 
 
 lb.— Trespass.— Allison's Ap., 1874, 27 S. 221. Where equity has ac- 
 quired jurisdiction by granting an injunction to stay waste and continued 
 trespass, it will settle the entire controversy by assessing the damages for 
 the trespass already committed. 
 
 Mistake of Law— Undue Influence— Belief.— Hunt v. Moore, 1845, 2 
 Barr, 105. Although mistakes of law will not be relieved against as such, 
 yet they may give rise to a presumption of undue influence or confidence 
 abused, in which case equity will always relieve. 
 
 Specific Performance— Damages. — Willis v. Darby E. R., C. P. 1878, 
 6 W. N. C. 461. Where in equity, specific performance is impossible the 
 court will award pecuniary damages. 
 
 lb.— lb.— Hully V. Havens. C. P. Luzerne, 1874, 3 Luz. L. Reg. 185. 
 Damages arising from a defendant's breach of contract are not always re- 
 coverable in a suit to enforce it specifically. 
 
 Supplemental Bill.— Winton's Ap , 1881, l Out. 385. Where on a bill 
 by a vendor equity has obtained jurisdiction of a case and has decreed that 
 the conveyance was but a mortgage, it can do complete justice by ordering 
 the property to be sold or the rents to be paid to the vendee to be applied 
 on the original decree. The proper practice in such a case is for the de- 
 fendant to present a petition in the nature of a supplemental bill setting 
 forth that he has tendered a re-conveyance on re-payment, but that com- 
 plainant has not been ready to do his part. 
 
 When Refused.- McAninch v. Laughlin. 1850, 1 H. 370. No relief will 
 he granted where parties have entered into a covenant under a mistake of 
 the legal effect of iacts which were themselves mutually understood. 
 
 [See Assignment foe Creditors VI.] 
 
 REMEDY AX LAW. 
 
 [See also FRAnn III ; Injunction" I B D G- O X, II A. ; Jurisdiction I ; 
 Mortgage, &c. XVI B2.] 
 31 — equity. 
 
482 REMEDY AT LAW. 
 
 Borrower — Trustee.— Abbott «. Reeves, 1865, 13 Wr. 494. Equity will 
 compel a borrower from a trustee to specifically return the loan, though the 
 contract, apart from the parties to it, was one exclusively enforceable at 
 law. 
 
 Inadequacy of. — Bank of Virginia V. Adams, 1850, 1 Pars. 534. Equity 
 will take cognizance of a suit where from the nature and complications of 
 •the case, justice can best be done in equity, although a remedy exists at 
 law. 
 
 lb.— Doubt as to.— Wier V. Mundeir, 1869, 3 Brews. 594. Equity will 
 not decline jurisdiction where it is doubtful whether the law can afford 
 adequate relief. 
 
 Injunction— School Directors — Statutory Penalty. — Price v. Control- 
 lers,, C. P. Lackawanna, 1878, 1 Lack. Bar. 47. Equity will enjoin school 
 directors against illegal acts, although there be a penalty affixed to the 
 statute prohibiting them. 
 
 lb.— Tax.— Hewitt's Ap., 1878, 7 jST. 55. A bill filed to restrain the col- 
 lection of a tax alleged to be illegal, will be dismissed if the complainant.^ 
 . have an adequate remedy at law. 
 
 Jurisdiction — Damages. — Bank of Kentucky r. Schuylkill Bank, 1840, 
 1 Pars. 180, 5 Pa. L. J. 251. Where from the complication and magnitude 
 of a case, and the number of interests involved, the remedy at law would 
 be neither plain, prompt, adequate, practical, nor suflScient, and wpuld in- 
 volve a multiplicity of suits, equity will entertain jurisdiction although 
 the fruits of the controversy can only be compensation in damages. 
 
 Parties— Citizen Against Officer.— Campbell v. Taggart, C. P. 1875, J 
 W. N. C. 93, S. C. 32 Leg. Int. 396, 10 Phila. 443. A bill cannot be main- 
 tained by a citizen against an officer, first, because the bill should be by 
 the Attorney General, and, second, because quo warranto is the proper 
 remedy. 
 
 Partner— Account and Receiver. — Clark's Ap., 1884, 11 Out. 436, S. C. 
 42 Leg. Int. 363. Where articles of partnership provided that any partner 
 could assign his interest i» the firm, and that his assignee and the remain- 
 ing partners should hold him harmless, a partner who had retired, but who 
 has not been held harmless, has an adequate remedy at law and cannot 
 bring a bill in equity for an account and receiver. 
 
 Practice— Demurrer.— Ward v. Mooney, C. P. 1881, 10 W. N. C. 256. 
 A bill is not demurrable because unaccompanied with certificate of counsel 
 that there is no adequate remedy at law. 
 
 Specific Performance — Life Insurance.— Nestil ». Knickerbocker Ice 
 Co., C. P. 1877, 34 Leg. Int. 240, S. C. 12 Phila. 477. Equity will dismiss 
 a bill praying for specific performance of a contract to insure a life, on the 
 ground of an adequate remedy at law. 
 
 lb.— Payment of Purchase Money.— Dech'sAp., 1868, 7S. 467. Where 
 there is nothing in the circumstances of a case requiring the aid of phancery 
 to give effect to a contract, and the bill for specific performance is simply 
 to enforce payment, of the purchase money, it will be dismissed. 
 
 lb.— lb.— Kauff'man's Ap., 1867, 5 S. 383. The price of land contracted 
 to be sold was to depend on a certain contingency. The contingency having 
 happened the vendor brought a bill in equity for specific performance. Held 
 the agreement being for the payment of money only the complainant had 
 an adequate remedy at law. 
 
 Statutory Remedy.— Patterson v. Lane, 1860, 11 C. 275. The fact that 
 there is an adequate statutory remedy at law is a bar to proceedings in 
 equity. 
 
 Title.— Spangelberger v. Leger, C. P. Luzerne, 1884, 2 Kulp, 29, S. C. 
 4 Luz. L. Reg. 36. Equity will not take jurisdiction of a question of title 
 where there is an adequate remedy at law. 
 
RENEWAL OF LEASE— EKPLICATION. 483 
 
 RENEWAI, OF" I.EASE. 
 [See Teusts and Tkustbes.] 
 
 REKfT. 
 [See Landlord and Tenant.] 
 
 RENT, APPORXIOJfMENT OF. 
 
 [See Adjustment, III ; VII B. (a).] 
 
 REB{X CHARGI^. 
 
 [See Landlord and Tenant.] 
 
 REPLEVIN. 
 
 [See also Adjustment VII, B (a.) Set Off.] 
 
 Amendment— Evidence— Relief Other than Prayed for.— Woods v. 
 McMillan, O. C. Allegheny, 1885, 32 Pitts. L. J. 363. "Where the evidence 
 shows a ground for relief diiferent from that alleged in the hill, the proper 
 practice is to amend the hill, otherwise the relief cannot be granted. 
 
 Claim Under Contract— Set Off— Keplevin.— Peterson v. Haight, 1837, 
 3 Wh. 150. In replevin founded on distress for rent, set-off is inadmissible, 
 but the tenant may default from the rent damages sustained by a breach of 
 the covenants in the lease by the landlord. 
 
 Evidence— Eepairs-Set Off— Replevin.— Phillips v. Monges, 1838, 4 
 Wh. 226. In replevin founded on a distress for rent, evidence that the 
 premises were untenable for want of repairs promised by the landlord, can- 
 not he introduced by way of set-off unless the promise to repair formed part 
 of the consideration of the lease. 
 
 Judgment— Agreement After— Set OflF— Replevin.— Kennedy v. Ken- 
 nedy, 1861, 5 Wr. 185. Plaintiff in replevin having recovered judgment, 
 entered into an agreement with defendant to appraise the goods and take 
 them as satisfaction j)r-o tanto. The plaintiff afterwards refused to fulfil this 
 agreement. Meld any claim defendant might have under the contract could 
 not be set off against the judgment. 
 
 REPLICATION. 
 
 [See Answer ; Practice and Pleading V.] 
 
484 EEPEESENTATION— BESTS. 
 
 REPRESENT AXIOBf. 
 
 [See Estoppel IV ; Fraud I ; II ; III ; V.] 
 
 RES ADJUDICAXA. 
 
 [See Injunction I. A.] 
 
 RESTRAINT OF TRADE. 
 
 [See also Injunction I N.] 
 
 Bond — Assignee — Penalty. — Reece t>. Hendricks, C. P. 1870, 1 Camp. 
 79, 2 Leg. Gaz. 204. Equity will not specifically enforce a bond given in 
 restraint of trade in favor of the assignee of the obligee, although it contains 
 a penalty. 
 
 Injunction — Agent for.Certain District. — Ewing«. Wilcox Sewing Co. 
 C. P. 1880, 9 W. N.. C. 272. An appointment of an agent into the exclusive 
 agency for a certain district is such an agreement in restraint of trade as 
 equity will enforce by injunction. 
 
 Ilj._-When Granted.— McClurg's Ap., 1868, 8 S. 51. Equity will specifi- 
 cally enforce by injunction a contract in restraint of trade which is partial, 
 reasonable and upon a valuable consideration. 
 
 lb.— When Not Granted.— Eckhart v. Gerlach, C. P. 1878, 35 Leg. Int. 
 314. S. C. 12 Phila. 530. Equity will not specifically enforce an agreement 
 for a reasonable restraint of trade by enjoining the defendant from breaking it. 
 
 Neighborhood.— MoNutt v. McEwen, C. P. 1875, 1 W. N. C. 552, S. C. 
 .'51 Leg. Int. 53, 10 Phila. 112. Where an agreement in restraint of trade 
 uses the word neighborhood equity will construe it strictly. 
 
 Personal Estate.— Parker v. Graham, 1850, 1 Pars. 476. Equity will 
 not generally specifically enforce contracts touching personal estate. But if 
 the remedy at law is totally inadequate it will. Therefore, where one has 
 sold his good will in a business and agreed not to carry on the same busi- 
 ness within a certain distance, which restraint is reasonable, equity will 
 grant specific execution by restraining the latter from violating his contract. 
 
 Physician.— Bett's Ap., 1881, 10 W. N. C. 431. Equity will specifically 
 enforce a contract by one physician with another not to practice within cer- 
 tain limits. 
 
 When Contrant Not Enforced.— Keeler v. Taylor, 1866, 3 S. 467. 
 Equity will not specifically enforce a contract in restraint of trade where the 
 terms are at all hard or complex ; such decrees are of grace. 
 
 lb.— Philips V. Mining Co. N. P. 1870, 27 Leg. Int. 35, S. C. 7 Phila. 619. 
 Equity will not specifically enforce a contract wanting in mutuality nor one 
 creating a monopoly or restraint of trade. 
 
 RESTS. 
 
 Disregarded in Pennsylvania.- Graver's Ap., 1865, 14 Wr. 189. Rests 
 are ejitirely disregarded in this state. Nor is a trustee who mixes trust 
 funds with his own always chargeable with six per cent, interest but only 
 with what he received. 
 
KESULTING TEUST — REVIEW, BILL OF. 4S5 
 
 RESUI^XING XRUSX. 
 
 [See Trust and Trustees I C (9.)] 
 
 IIEVIE"W, BILL OF. 
 
 [See also Practice and Pleading II.] 
 
 Decree.— Costen's Ap., 1850, 1 H. 292. A bill of review to inquire into 
 the correctness of a decree reversing a decree below, will not be granted on 
 the allegation that there were facts not brought before the court, which 
 would have shown the decree below to have been correct, these facts having 
 been known at the time of the hearing. 
 
 Discretion in Granting.— Hamill's Ap., 1879, 7 N. 363. The granting 
 or refusing of a bill of review on the ground of after-discovered evidence is 
 within the discretion of the lower court. 
 
 Guardian's Account.— Milligan's Ap., 1876, 1 N. 389, S. C. 24 Pitts. L. 
 J. 130. A bill of review to a, guardian's account, rendered two years after 
 the ward came of age, will not be granted at the instance of the minor when 
 the only reason alleged was that in the account the guardian who stood in 
 kico parentis claimed credit for the support and education of the ward. 
 
 Orphans' Court.— Green's Ap., 1868, 9 S. 235, S. C. 3 Brews. 66. Bills 
 of review in the orphans' court are governed by the same rules as in regular 
 courts of chancery. They are demandable of right ; 1, for error of law ap- 
 pearing in the body of the decree ; 2, for new matter which has arisen since 
 the decree. As a matter of discretion with the chancellor .they may be 
 granted for subsequently discovered evidence. 
 
 lb.— Act of October 13, 1840.— Whelen's Ap., 1872, 20 S. 410. Act 
 October 13, 1840, made a bill of review a matter of right in the orphans' 
 court, except where distribution had been made under the decree. Held 
 that in the latter case if equity demanded a bill of review, the court could 
 grant it in its discretion. 
 
 lb.— lb.— Riddle's Est., 1852, 7 H. 431. Act October 13, 1840, directs 
 the orphans' court on bills of review to act as would a court of chancery, 
 therefore such bill can only be entertained for mistake of law appearing on 
 the face of the decree, or for new matter which has arisen since the decree. 
 
 lb.— Executor's Account.— LeMoyne's Ap., 1883, 8 Out. 321. A peti- 
 tion for a rehearing or review of an executor's account is substantially a bill 
 of review, and is governed by the same rules. 
 
 lb.— Rescission of Contract.— Weyand ». Weller, 1861, 3 Wr. 443. The 
 orphans' court has no jurisdiction to entertain a petition or bill for the res- 
 cission of a contract of a decedent, which it has previously decreed shall be 
 specifically performed, but which has never been carried into execution. A 
 bill of review is the only remedy. 
 
 lb.— Time of Granting— Mistake.— Steininger's Ap., 1857, l Crum. 
 343, S. C. 4 Pitts. L. J. 717. It is proper for the orphans' court to allow 
 a bill of review three months after entrance of a final decree, where a plain 
 mistake of law appears upon comparing the decree with the bill on which 
 it is founded. 
 
 Time of Granting.— Littleton's Ap., 1880, 12 N. 177, S. C. 9 W. N. C. 
 188. A bill of review will not be granted except within the time allowed 
 for writs of error, 
 
486 REVIEW, BILL OP — SALE. 
 
 lb. — Bagg'sAp., 1862, 7 Wr. 512. A bill of review cannot be brought 
 more than five years after final decree (act October 13, 1840, S. 1), and a 
 special act extending the time is void. 
 
 When Granted.— Rittenhouse's Est. , 1847, 1 Pars. 313. A bill of review 
 ■will only be granted for error of law appearing on the face of the decree, or 
 for such after discovered facts as could not have been discovered at the hear- 
 ing, and which in all probability might change the result of the issue. 
 
 When Refused.— Conrad v. Conrad, C. P. 1872, 4 Leg. Gaz. 140, S. C. 29 
 Leg. Int. 141, 9 Phila. 510. A bill of review will not be allowed on an 
 agreement being found, there having been no proof of diligent search at the 
 final hearing followed by an offer to prove its contents. 
 
 lb. — Stevenson's Ap., 1858, 8 C. 318. A bill of review is only allowed 
 on equitable principles, and will not be allowed where it is shown that 
 justice has been done, though not in legal form. 
 
 lb. — Yeager's Ap., 1859, 10 C. 173. A bill of review is never allowed for 
 formal errors, or on strict law and against equity. 
 
 lb.— Russell's Ap., 1859, 10 C. 258. If a bill of review does not show 
 such a case as equity would relieve, it will be dismissed without reference 
 1() a master or auditor. 
 
 REVOC AXIOM 
 
 [See Power IIL] 
 
 RITL,B IN SHELIvY'S CASE. 
 
 Equitable Estate.— Little v. Wilcox, 1888, 21 "W. N. C. 215. . An equi- 
 table estate for life with a remainder of the legal estates to the heirs of the 
 life tenant, will not merge so as to vest a fee or a fee tail in the life tenant 
 under the Rule in Shelly's Case. 
 
 RUIZES. 
 
 Equity — 4th and 8th. — Insurance Co. v. Bauer, D. C. 1873, 30 Leg. Int. 
 304, S. C. 9 Phila. 147. The 4th and 8th equity rules as to exceptions to a 
 bill for impertinence and surplusage are to be construed together. 
 
 SAI^E. 
 
 [See also Adjustment I A ; Coepoeation III, V ; Estoppel I ; Injunc- 
 tion II, HO; Landloed and Tenant ; Lien ; Marketable Title ; 
 Mortgage, &c. I, VII, VIII, XVI B (b 2) ; Notice E ; Orphans' 
 Court I, II ; Partnership ; Power IV ; Purchase ; Purchaser ; 
 Trusts and Trustees ; Vendor and Vendee. 
 
 I. In General. 
 II. Sheriff's Sale. 
 III. Trust and Trustees. 
 
487 
 
 I. In Oeneral. 
 
 CharityLands— Sale for Liens— Title.— Philadelphia r. Bicknell, I860, 
 11 C. 193. A gift of land to a charity on condition that a school house be 
 built upon it, is not fully vested in the public as long as the property is en- 
 cumbered with liens incurred in erecting the school house, and a sale under 
 those liens passes a good title as against the public. 
 
 Eqiuity of Kedemption.— Commonwealth V. S. & D. River R. Co., 1888, 
 7 Crum. 306. A trustee in a mortgage of the franchises and property of a 
 corporation, executed to secure its bonds and the interest thereon, is the 
 repository of the legal title to the corporate property for all bondholders 
 alike, and in case of default, if the trustee refuse to act, any bondholder 
 may proceed by bill in behalf of himself and others. A judicial sale under 
 act of April 7, 1870, in such case will convey no title to the franchises and 
 property secured by the mortgage, since all the bondholders are equally en- 
 titled to their pro rata share in the distribution ; the sheriff's sale upon a 
 fieri facias passes only such title as the corporation had at the time of the 
 sale. 
 
 Estoppel— Possession, Party in.— Covert v. Irwin, 1817, 3 S. & E. 283. 
 One in possession of land being sold by the sheriif as the property of another, 
 who says nothing while others represent him to be the tenant of the defend- 
 ant, is estopped from setting up his title. 
 
 lb.— Widow's Interest— Assent to Sale. — Taggart's Ap., 1882, 3 Out. 
 627. A wife elected to take against a will which gave her such interest as 
 the intestate law would have done, and provided that when any land was 
 sold her third should remain a charge unless she expressed her intention 
 otherwise. Land was sold, nevertheless, under these conditions. After- 
 wards, the children wishing to sell the entire land, the executor sold the 
 whole title, one-tfiird to remain a charge. The widow was present and 
 made no objections to the terms of the sale. Held that she was estopped 
 from enforcing partition. 
 
 Executor as Devisee— Discharge of Legacy.— Woods v. White, 1881, 
 1 Out. 222. A devisee of land charged with a legacy, who is also executor, 
 may sell the land and take a purchase money mortgage, and on default sue 
 it out and sell the premises and thereby discharge the legacy. 
 
 Executor to Himself. — Bruch v. Lantz, 1830, 2 R. 392. A sale by an 
 executor to himself, though indirectly, is voidable, and the executor takes 
 the estate subject to all the equities with which it was previously clothed. 
 
 Injunction— Irregular Warrant.— Shoemakers. Murray, C. P. Dauphin, 
 1866, 1 Pears. 279. Equity will not restrain a tax collector from selling 
 property under what is claimed to be an irregular warrant. The remedy is 
 trespass. 
 
 lb.— Remedy at Law.— Mudey's Ap., 1879, 1 Sch. L. R. 26. Equity 
 will not interfere to prevent a tax sale where all the proceedings have been 
 regular ; the remedy at law is adequate. 
 
 Judgment Creditor — Title — Discharge of Lien.— ISTailer v. Stanley, 
 1823, 10 S. & R. 450. A sale by a judgment creditor of a part of a tract 
 bound by a judgment, conveys a good title to the grantee if the remaining 
 tract is sufficient to discharge the lien. 
 
 Master's Sale — Setting Aside. — Fourth Baptist Church V. Bailie, C. P. 
 Allegheny, 1881, 13 Lan. Bar, 131, S. C. 2 Scr. L. T. 169. A sale of real 
 estate by a master in chancery will be set aside before confirmation by the 
 court upon a better honafide bid being made. 
 
 lb.— lb.— Riley «. Buckley, C. P. 1875, 1 W. N. C. 167. A master's sale 
 in partition will not be set aside for slight inadequacy of price, no rule can 
 "be fixed, but iu this case a sale of property for $10,500 would not be set 
 
aside upon bond being given to bid $11,000 for it, and a sale for $1,250 was 
 set aside upon a bond being given to bid $2,50i). 
 
 Order of Court.— Philadelphia Bank v. Aldridge, D. C. 1864, 21 Leg. 
 Int. 236, S. C. 5 Phila. 446. tjpon application of a creditor who holds col- 
 lateral, the court will appoint a time for its sale unless sooner redeemed. 
 
 Parcels— Mortgage. — Fluch v. Eeplogle, 1850, 1 H. 405. When a mort." 
 gaged tract is sold in parcels the parcels are liable for the mortgage debt in 
 the inverse order in which they are sold. 
 
 Part of Land Subject to Mortgage— Effect of.— Martin's Ap., 1882, 
 39 Leg. Int. 236. Where a party sells part of real estate subject to mort- 
 gage or judgments, that remaining in his hands, if of sufficient value, must 
 free the whole charge of such mortgage or judgment. 
 
 Power to Order — Mortgagee. — Ashhurst v. Montour Iron Co., 1860, 11 
 C 30. There is no equity power in this State to decree a sale of mortgaged 
 premises at the instance of the mortgagee, even though the nominal mort- 
 gagee be a trustee for the holders of the bonds secured by the mortgagee. 
 
 Pufltog. — Donaldson v. McEoy, 1811, 1 Browne, 346. Puflfing at a sheriff's 
 sale avoids it. 
 
 lb. — Staines v. Shore, 1850, 4 H. 200. A sale at auction will be set aside 
 if it be made to appear that a puifer was employed by the seller to bid for 
 him, and it is not material that the property brought no more than its real 
 value. 
 
 lb. — Bacljinstoss v. Stabler, 1859, 9 C. 251. Although the employment 
 of a puffer at an orphans' court sale of land is ground to set aside the sale, 
 yet it will not effect the right of the vendee after confirmation, receipt of the 
 deed, and possession taken. 
 
 lb.— Schug's Ap., 1883, 14 W. N. C. 49, S. C. 32 Pitts. L. J. 19. Puffing 
 by an auctioneer invalidates a sale although not authorized by the vendor. 
 
 lb. — Yerkes v. Wilson, 1870, 32 S. 9. Puffing at an auction is such a 
 fraud on the purchaser as avoids the sale. 
 
 Purchase at Orphans' Court Sale— Specific Performance.— Boyle's 
 Est., O. C. Luzerne, 1884, 2 Kulp, 229; S. C. 11 Luz. L. Reg. .'JOl, 14 Lan. 
 B. 124. The orphans' court may decree specific performance against a pur- 
 chaser at its own sale and enforce the decree by attachment. 
 
 Receiver— Duties of.— Givin v. Givin, C. P. 1870, 1 Camp. 48, S. C. 2 
 Leg. Gaz. 85. A receiver may apply to the court for directions, but when 
 ordered to sell real estate he must look to the details and collect the price. 
 
 lb.— Judgment Creditor.— Pollock «. Sunbnry R. R., C. P. 1875, 2 W. 
 N. C. 182. A judgment creditor granted leave to sell property in the hands 
 of a receiver, after he should have petitioned for leave, if the receiver did 
 not satisfy his judgment within sixty days. 
 
 Rescission— Bill.— Baird v. Hamm, C. P. 1870, 1 Leg. Op. 17. To res- 
 scind a sale on the ground of fraud, the bill must contain specific allega- 
 tions thereof. 
 
 School Property.— Stallman's Ap., 1861, 2 Wr. 200. Trust property for 
 a school "for the neighborhood," was sold, and on distribution of the fund 
 part was awarded to the city of Philadelphia which then included part of 
 the neighborhood in which the school had been. Held error, and the tnis- 
 tees under the old trust were the ones to preserve it for its proper uses. 
 
 Tenant, Judgment and sale by— Notice.— Matthew's Ap., 1883, 8 
 Out. 444. A tenant who holds on the premises demised, cannot enter up 
 judgment and sell the property without notice to his landlord. The rela- 
 tion is a confidential one and requires good faith. 
 
 Title— Estoppel — Judgment Sur Mechanics' Lien — Purchase by 
 Stranger— Subsequent Sale Under— Defective Mortgage.— National 
 Transit Co. v. Weston, 1888, 6 Crum. 485. Where property is sold under a 
 judgment sur mechanics' lien and is bought in by a stranger, a subsequent 
 
SALE. 489 
 
 sale under a mortgage which bound the property at the first sale, does not 
 convey a title which the first purchaser is estopped from contesting, in event 
 of the mortgage being defective. 
 
 Trustees— School— Breach of Trust.— Barr v. Weld, 1854, 12 H. 84. 
 Where trustees for' a school hold land under a conveyance in fee for such 
 trust, a sale of the property and application of the proceeds to the same 
 uses, although a conversion, is not a breach of the trust. 
 
 II. SberilTs Sale. 
 
 Account— Purchaser of Partnership Interest.— Bryan ». Dailey, C. P. 
 1880, 37 Leg. Int. 322, S. C. 14 Phila. 90. A purchaser at sheriff's sale of au 
 interest in a partnership who wishes an account must proceed in the court 
 in which the sale was made. 
 
 Agreement to Purchase— Trust.— Hogg v. Wilkins, 1854, 1 G. 67. An 
 agreement between a purchaser at sheriff's sale and the defendant that the 
 former will hold for the latter raises a trust only when used as an induce- 
 ment to deter others from bidding. 
 
 Bidder— Trust.— Cook v. Cook, 1871, 19 S. 443. A bidder at a sheriff's 
 sale stated to other bidders that he was buying the property in for his brother, 
 the defendant ; the others thereupon stopped bidding. Held that the 
 evidence established a trust for the brother. 
 
 Building Association— Loan— Ejectment— Verdict. — Fredericks r. 
 Corcoran, 1882, 4 Out. 413. A building association loaned money to A. by 
 completing a purchase for him and taking title as security. The sheriff's 
 vendee of A.'s interest brought ejectment against the association. JECeld 
 that he was entitled to an absolute verdict. 
 
 Chose in Action— Corporation.— Hogg's Ap., 1878, 7 N. 195. A sheriff's 
 sale of the property and franchises of a corporation does not pass the choses 
 in action of the corporation. 
 
 Distribution— Lien Creditor.— Tindle's Ap., 1874, 27 S. 201. On the 
 principle that a fund raised by a sheriffs sale sliall be distributed according 
 to law and equity, the court awarded to a lien creditor a sum which was paid 
 on account by the other claimant under a sherifTs sale to him which he re- 
 fused to complete, although theseeond sheriff'ssale was under another judg- 
 ment, and the property brought less'lhan the bid at the first sale. 
 
 lb.— Set-Off— Judgment.— Cornwell's Ap., 1844, 7 W. & S. 305. In the 
 distribution of the proceeds of a sheriflTs sale the court will not exercise its 
 equitable power of set-off unless the mutual claims have -been reduced to 
 judgment. 
 
 lb.— Subrogation.— Indiana County Bank's Ap., 1880, 14 N. 500. Subro- 
 gation will not be allowed in the distribution of funds arising from sheriff's 
 sales wheYe the right to it did not appear at the time of the sale. 
 
 Ejectment— Sheriff's Vendee— Building Association.— Fredericks v. 
 Corcoran, 1882, 4 Out. 413. A building association loaned money to A. by 
 completing a purchase for him and taking title as security. The sheriff's 
 vendee of A.'s interest brought ejectment against the association. Held that 
 he was entitled to an absolute verdict. 
 
 Estoppel— Party in Possession— Silence.— Covert v. Irwin, 1817, 3 S. 
 & R. 283. One in possession of land being sold by the sheriff as the property 
 of another, who says nothing while others represent him to be the tenant of 
 the defendant, is estopped from setting up his title. 
 
 lb— Prime Mover— Interest Sold.— Willing v. Brown, 1822, 7 S. & R. 
 467. One who is the prime mover in a sheriff's sale of his own and another's 
 title, is estopped from setting up that no venditioni exponas had issued on the 
 judgment against liim and that, therefore, lii6 interest was not sold. 
 
490 SALE. 
 
 lb. — Silence. — Jackson v. Morter, 1876, 1 N. 291. A defendant, who, 
 knowing that a fraud had been practiced on him whereby his property was 
 sold, was nevertheless present at the sheriff's sale and said nothing until 
 after the deed was aclcnowledged, is estopped by his silence. 
 
 Execution— Sale— Sheriff's Return.— Ruth & Stoner's Ap., 1888, 20 W. 
 N. C. 375. A. executed a mortgage upon his property and subsequently a 
 judgment was entered against him and execution was issued against the 
 mortgaged premises. The mortgagee obtained a judgment upon a bond for 
 the same amount as the mortgage and issued execution before the sale of 
 the premises. The premises were sold to the mortgagee, his lien going ou 
 account of the purchase money. To the second writ the sheriff returned 
 " same as to first writ." Held that as the judgment under which the second 
 writ was sold was for the debt secured by the mortgage, and as by the re- 
 turns the court would infer that the sale had occurred under both writs, the 
 sheriff's return was proper. 
 
 Express Condition— Enforcement of— Purchase Subject to Lien. — 
 Zeigler's Ap., 1860, 11 C. 173. The courts will enforce an express condi- 
 tion made at the time of a sheriffs sale that the purchaser shall take subject 
 to the lien of a mortgage which would otherwise be discharged. 
 
 Injunction, Ground for.— Wiser's Ap., 1880, 8 W. N. C. 354, S. C. 2 Sch. 
 L. R. 246. Equity will not enjoin a sheriff's sale of property on the ground 
 that the debtor has no interest or title therein. 
 
 lb.— Purchaser from Sheriff— Distress— Eent.— Williams v. Flood, C. 
 P. 1875, 1 W. N. C. 199. An injunction will not be gi-anted to restrain a 
 sheriffs vendee from levying a distress for rent against the defendant who 
 has remained in possession. 
 
 lb.— Railroad Equipments— Lien.— LoudenschlagerB. Benton, 1861, 3 
 Gr. 384, S. C. 18 Leg. Int. 196, 4 Phila. 382. Equity will restrain a sheriffs 
 sale of the equipments of a railroad until it can be ascertained whether they 
 are covered by a mortgage, but will allow the lien of a^^. fa. to continue. 
 
 Irregularity- Setting up after Sale, &c.— Spragg v. Shiiver, 1855, 1 
 C. 282. A defendant whose property is being sold at sheriffs sale and who 
 induces one to purchase it, cannot after the confirmation of the sale and pay- 
 ment and distribution of the money, set up any irregularity in the proceed- 
 ings. 
 
 Liens, Creation of— Testamentary Provisions— Mortgage. — Strauss' 
 Ap., 1865, 13 Wr. 353. Parties may as between themselves and their privies 
 created by clear and express words liens upon land but these are discharged 
 by a sheriffs sale unless in the nature of testamentary provisions for a wife 
 or children, or are incapable of valuation or are expressly created to lun 
 with the land. A mortgage subsequent to such a lieu is also discharged by 
 such Sftle. 
 
 Married Women— Resulting Trust.— First National Bank of Carbon- 
 dale V. Cowperthwaite, 1881, 10 W. N. C. 532. No resulting trust will 
 arise in favor of the wife of the judgment debtor at a sheriff's sale, from a 
 promise made to her by the purchaser that he will purchase it for her. 
 
 Mortgage— Discharge— Mechanic's Lien— Evidence.— Harper's Ap., 
 1877, 4 W. N. C. 49. A mortgage is discharged by a sheriff's sale when 
 there is a prior mechanic's lien thereon which is regular on its face, and evi- 
 dence dehors the record is not admissible to show that the mechanic's lien 
 is invalid and so to charge the purchaser with the mortgage. 
 
 Notice— Mere Talk at.— Sergeant «. Ford, 1841, 2W. &S. 123. Mere 
 talk at a sheriff's sale by one who is not acting either in the interest of tha 
 defendant or the purchaser, does not amount either to notice or fraud. 
 
 Parol Mortgage.— Mode's Ap., 1843, 6 W. & S. 280. Prior to the act of 
 1830 no agreement or understanding at a sheriff's sale could continue the 
 lien of a mortgage against a subsequent purchaser even though he had notice. 
 To allow this would be virtually to allow a mortgage to be created by 
 parol. 
 
SALE. 491 
 
 Partnership Purchaser— Account.— Bryan v. Dailey, C. P. 1880, 37 Leg. 
 Int. 322, S. C. 14 Phila. 90. A purchaser at sheriff's sale of an interest in a 
 partnership who wishes an account must proceed in the court in which the 
 sale was made. 
 
 Payment by Mistake — Recovery by Mortgagee.— Cross v. Stahlman, 
 1862, 7 Wr. 129. A mortgagee cancelled the bonds on receiving payment 
 by the sheriff. But the sheriff recovered the money, the payment having 
 been made under a mistake of the law. Held the mortgagee could recover 
 on the mortgage. 
 
 Priority of Contract— Damnum Absque Injuria— Judgment. — Win- 
 ter's Ap., 1869, 11 S. 278. It was agreed between a judgment creditor and 
 his debtor, that the land of the latter should be sold at sheriff's sale and be 
 bought in by the former at a low price and the j udgment thereupon satisfied. 
 The land was so sold to the creditor who did not satisfy the judgment but 
 assigned it to a third party who collected it of plaintiff who was the surety. 
 In a suit by the surety against the creditor it was held that there was no 
 privity of contract. The bill further alleged that complainant had been in- 
 formed by defendant of the agreement, and consequently did not attend the 
 sale and bid to the amount of the judgment as he otherwise would have 
 done ; but the bill did not allege any fraudulent combination, misrepresen- 
 tation or deceit. Held that if the complainant suffered loss it was damnum 
 absque injuria, and even had the bill alleged a fraudulent combination, etc. , 
 the remedy would be at law. 
 
 Promise to Purchase for Another — Trust.— Schumacher v. Wurtz, C. 
 P. Schuylkill, 1879, 1 Sch. L. E. 166. A promise to purchase at a sheriff's 
 sale for the benefit of the defendant in the execution will not without more 
 make the purchaser a trustee 
 
 Representations — Trustee Ex malefacio. — Power v. Thorp, 1879, 11 
 N. 346. One who by his representations at a sheriff's sale is enabled to get 
 the property at a low price, will not be allowed to profit by his own fraud 
 but will get only the title that he gave notice was being sold. 
 
 Sale in Parcels. — Mevey's Ap., 1846, 4 Barr. 80. The sheriff in selling 
 lands mortgaged should sell in parcels as it will bring the most, and will be 
 directed by the court to sell in the order in which the tracts should contri- 
 bute to the lien, if there are such equities in the case. (See note p. 88. ) 
 
 Sheriff. — Lazarus v. Bryson, 1810, 3 Bin. 54. A sheriff cannot purchase 
 at his own sale ; he is in this respect a trustee. 
 
 Title. — Dehaven v. Landell, 1858, 7 C. 15. The tttle of a purchaser at a 
 sheriff's sale under a mortgage relates back to the date of the mortgage. 
 
 lb. — Subsequently Acquired. — Eank». Dauphin Coal Co., 1852, 1 Pears. 
 453. A good title which comes into a mortgagor's hands after he has given 
 a mortgage enures to the benefit of the mortgagee. 
 
 Trustee— Ex malefacio.- Faust v. Haas, 1873, 1 Post. 73. Where after 
 the defendant's attorney has bid in the property at a sheriff's sale, a stranger 
 gets the title conveyed to him by fraud and false representations he will be 
 a trustee ex malefado. 
 
 Venditioni Exponas— Estoppel— Trustee.— Robins v. Bellas, 1834, 2 
 W. 359. A sheriff who sells land on a venditioni exponas is not thereby es- 
 topped from setting up the title in himself as a trustee of the defendant in 
 the execution. 
 
 III. Trusts and Trustees. 
 
 Act of April 28, 1876.— Haldeman v. Young, 1884, 11 Out. 324. Act April 
 28, 1876 (P. L. 50), validating certain sales made by persons in a fudiciary 
 capacity in whose appointment some defect or irregularity existed, does not 
 Kelp a sale made by a trustee appointed by a court which had no jurisdiction. 
 
492 SALE — SAVINGS BANK. 
 
 Judgment Creditor— Agreement by. — Walsh v. Rice, C. P. Lacka- 
 wanna, 1878, 1 Lack. L. Eec. 62. An agreement by a judgment creditor to 
 buy in his debtor's property and hold it as security for reimbursement creates 
 a trust or mortgage which equity -will enforce. 
 
 Jurisdiction— Common Pleas— Act of April 18, 1853— Trust Pro- 
 perty.— Sharp's Pet. C. P. 1866, 23 Leg. Int. 412, S. C. 6 Phila. 153. Act 
 April 18, 1853, empowers the court of common pleas in its discretion to de- 
 cree a sale of trust property ; but one will not be decreed to the cestui que 
 ti-ust except on clear proof that it will be a benefit to the estate. 
 
 Relatives— Sale to.— Lamberton v. Smith, 1825, 13 S. & E. 309. Sales 
 by trustees to their near relatives are always suspicious. 
 
 Treasurer's Sale — Agreement.— Stewart «. Brown, 1816, 2 S. & E. 461. 
 One who purchases land at a treasurer's sale under agreement with another 
 that they should be equally concerned in the purchase, will not be permitted 
 to deny the trust. 
 
 Permission to bid. — Dundas' Est., 16 W. N. C. 458. Where a trustee 
 has been given permission to bid at his own sale (conducted by a master 
 appointed by the court) and none of the parties in interest have objected at 
 the time, the sale will be confirmed unless a better iona fide bid is made to 
 the court. 
 
 Promise— Squatter.— McCulloch r. Coulter, 1843, 5 W. & S. 427. One 
 who promises a squatter to give him a portion of the land if he will not bid 
 against him becomes a trustee. 
 
 Promise to Purchase for Another. — Blaich v. Bixenstein, C. P. 1875. 
 2 W. N. C. 301. A promise by a creditor to a debtor by means of which he 
 is able to buy in the latter's property does not raise a trust according to the 
 parol promise. 
 
 Purchase by Trustee. — Choopenning's Ap., 1858, 8 C. 315. A trustee 
 without funds of the trust estate in his hands may purchase the property of 
 his cestui que trust at an adverse judicial sale which it was not within his 
 power to avert. 
 
 lb.— Campbell v. Penna. L. Ins. Co., 1836, 2 Whart. 53. The rule that 
 a purchase of the trust estate by the trustee may be avoided by the cestui que 
 trust, extends to judicial officers and all persons who in any way have a 
 concern in the disposition and sale of the property of others. 
 
 SATISF- ACTION. 
 
 [See also Moetgage, &c.. Ill, VII, XIII, XXI.] 
 
 Mortgage. — Kinley v. Hill, 1842, 4 W. & S. 426. If a mortgage given 
 as security for a debt is satisfied by the principal debtor, it is extinguished 
 and assignment of it to a surety to secure other claims carries no title. 
 
 Striking Out— Judgment— Use Plaintiff.— McCleeryij. Wilson, 1862, 7 
 Wr. 439. A judgment having been obtained in the name of a legal plaintiff 
 without any remaining interest in the matter, he ordered that it be marked 
 satisfied. The equitable plaintiff brought his suit, asking that the entry of 
 satisfaction be stricken out and the defendant ordered to pay the same to 
 the complainant. So decreed. 
 
 SAVIIVGS BAXK. 
 
 [See Chabity II.] 
 
SCANDALOUS MATTEB— SCIKK FACIAS. ' 493 
 
 SCAIVDALOUS MATTER. 
 
 [See also Costs ; Peacticb and Pleading.] 
 
 Answer.— Marehall's Est., 1883, 40 Leg. Int. 279. An answer travers- 
 ing the allegations of a bill and declaring them to be wilfully and knowingly 
 false is not necessarily scandalous or impertinent. 
 
 Equity Rules. —Insurance Co. v. Bauer, D. C. 1873, 30 Leg. Int. 304. S. 
 C. 9 Phila. 147. The fourth and eighth equity rules as to exceptions to a 
 bill for impertinence and surplusage are to be construed together. 
 
 SCHOOL. 
 
 [See Charity II.] 
 
 SCHOOI. DIRECTORS. 
 
 [See Injunction IE.] 
 
 SCHOOL TAX. 
 
 [See Adjustment VII, B. (h).] 
 
 SCIRE FACIAS. 
 
 [See also Moetgage, &c , XIV.] 
 
 Corporation — Expired Charter. — Cooper v. Oriental Savings Assoc. 1882, 
 4 Out. 4C2. Although, in general, a corporation whose charter has expired, 
 cannot issue a scire facias sur mortgage, yet by a special act Philadelphia 
 building and loan associations have the power in order to wind up their 
 affairs, and it makes no difference that the land mortgaged lies without Phila- 
 delphia. 
 
 Defence— Sur Mortgage.— Ewart v. Irwin, 1850, 1 Phila. 134, S. C. 7 
 Leg. Int. 134. Any defence to a scire facias sur mortgage maybe set up that 
 would be available in chancery on a bill to foreclose. 
 
 Foreign Corporation. — Leasure v. Union Mutual Life Ins. Co., 1879, 10 
 N. 491. A foreign corporation may issue a scire facias sur mortgage in the 
 courts of this commonwealth. Qusere, whether it could enforce a mortgage 
 by an ejectment ? 
 
 Mechanics' Lien— Material Man as Surety.— Haineu. Dawbach, 1888, 
 4 Pa. Co. C. E. 633. In a scire facias on mechanic's lien, the fact that the 
 material man is one of the two sureties for a builder who failed to perform 
 his contract, can be interposed as a defence. 
 
 Notice— Pendency of— Anderson v. Love, 1883, 31 Pitts. L. J. 136. The 
 pendency of scire facias sur mortgage is notice to one purchasing the land pend- 
 ing the trial. 
 
494 • SCIEB FACIAS — SBPAEATION, ABTICLBS OF. 
 
 lb.— Settlement.— Sanrman 0. Binder, 1863, 7 "Wr. 209. The record of 
 a scire f ados sur mortgage vras marked " settled by the parties," but the anb- 
 sequent purchaser took the land with notice that the mortgage was not set- 
 tled, the record therefore did not help his case. 
 
 SECREX EQiriXV. 
 
 [See Assignment II ; Puechaser.] 
 
 SECURITY. 
 
 [See Debtok and Ceeditoe, Moetgagb, &c. VII.] 
 
 SECtTRIXY FOR COSTS. 
 
 ' [See Costs.] 
 
 Non-Resident.— Smoot v. Harrah, C. P. 1878, 5 W. N. C. 147. Where 
 a complainant in equity is a non-resident, the court may on motion compel 
 him to enter security for costs, but a rule will not necessarily be discharged. 
 
 SEPARATE ACKNO'WI^EOGMEBfT. 
 
 [See Husband and Wife. Mobtgage XIII.] 
 
 SEPARATE ESTATE. 
 
 [See Mortgage XIII.] 
 
 SEPARATE REMEDIES. 
 
 [See Moetgage, &c. III.] 
 
 SEPARATE USE. 
 [See Husband and Wipe VI.] 
 
 SEPARATION, ARTICI^ES OF. 
 
 [See Husband and Wife VIII.] 
 
SEQUESTRATION — SET OFF. 495 
 
 SEQVESXItAXIOlV. 
 
 [See Adjustment VII, B. (a.)] 
 
 Liens. — Bank v. Patterson, 1848, 9 Barr, 311. A mortgage creditor whose 
 lien would not be discharged by a sale under a judgment is not entitled to 
 the fund arising from sequestration of the land under the judgment. 
 
 Loan by Defendant.— Beeler v. Turnpike Co., 1850, 2 H. 162. In a suit 
 for tolls accruing after sequestration of the assets of a turnpike company, 
 the defendant cannot set off a claim for a loan made by him before the se- 
 questration. 
 
 SERVICE. 
 
 [See also Attachment IV ; Discoveky ; Estoppei, I ; Examiner ; In- 
 terpleader ; Mortgage, &o. XVI, B. (b. 5, 7.) Process; Peactiob 
 AND Pleading.] 
 
 Actof 1859.— Building Assoc, v. Mayer, 1888, 4 Montg.'Co. L. Eep. 155. 
 A principal defendant under act of April 6, 1859, is one who is a necessary 
 party to the bill, or one who will be affected by the decree. That portion of 
 said act which refers to tlie service of a bill in equity upon non-residents, de- 
 clared unconstitutional. 
 
 lb.— Kildare v. Armstrong, C. P. 1886, 18 W. N. C. 114. The act of April 
 6, 1859, providing for serving parties outside the state, does not apply to a 
 case where a garnishee asks that such parties be brought in to interplead 
 with the attaching creditor. 
 
 SEX OFF. 
 
 [See also Adjustment VII, a. ; Equitable Defence ; Mortgage, &c. 
 XI ; Practice and Pleading VII ; Principal and Agent ; Princi- 
 pal AND Surety ; Promissory Notes.] 
 
 Assignment for Creditors— Assignor's claim for Services.— Foulk's 
 Est., 1876, C. P. Lancaster, 7 Lan. Bar, 194. Where an assignor for creditors 
 was indebted to his assignee before the assignment, and after it, the assignee 
 hired him in the management of the trust. The former claim may be set 
 off against the claim for services. 
 
 Bank Gamisbee— Unmatured Notes. — Jones v. Manufacturers' Bank, 
 C. p. 1881, 10 W. N. C. 102. A bank which has been made garnishee in an 
 attachment against a depositor cannot set off unmatured notes which it has 
 discounted for him. 
 
 lb.— lb.— Manufacturers' Nat. Bank v. Jones, 1882, 2 Pa. 377. A bank 
 which is garnishee cann ot set off the amount of a note not yet due discounted 
 by it for the debtor, although the latter is insolvent. 
 
 Bill of Exchange— Nominal Plaintiff.— Hodge v. Comly, 1838, 2 M. 286. 
 The drawer of a bill of exchange may set off against it a claim which 
 he has against the real owner, whoever is the nominal plaintiff. 
 
496 SET OFF. 
 
 Chattels— Possession— Trover by Mortgagor's Administrator.— 
 Kater v. Steinruck, 1861, 4 Wr. 501. The mortgagee of chattels has no claim 
 on them after the mortgagor's death, and if he takes possession of them after 
 the mortgagor's death under a clause allowing him to take possession, on 
 default being made, he is liable to trover by the administrator nor can he 
 set off his debt in that action. 
 
 Committee of Lunatic— Purchaser from.— Beale v. Coon, 1834, 3 W. 
 183. One who has purchased goods from a committee of a lunatic cannot set 
 off a claim which he has against the lunatic himself. 
 
 Courts Equitable Doctrine. — Morgan v. Bank of North America, 1822, 
 8 S. & R. 73. Courts of law in Pennsylvania apply the equitable doctrines 
 of set-off. 
 
 lb. — Morrison v. Moreland, 1826, 15 S. & E. 61. It seems that our courts 
 under their equitable powers would allow a set-off which accrued after suit 
 brought, if plaintiff has agreed that it should be used as such. 
 
 lb.— Frantz v. Brown, 1830, 1 P. & "W. 257. Set-off, originally, was noth- ' 
 ing more than an equitable defence, which the legislature has thought fit, in 
 plain and simple cases, to subject to the jurisdiction of the courts of common 
 law, reserving to chancery its original jurisdiction of cross demands which 
 do not fall within the statute. Our courts, owing to the equitable principle 
 with which our law is tinctured, can go beyond the simple cases provided 
 for by statutes, and do justice by means of a conditional verdict. 
 
 Declaration of no Set-OfF.— Henniss v. Page, 1837, 3 "VVh. 275. A bond 
 given by way of final settlement of mutual claims, end which the obligor 
 promises shall be paid at maturity, and that he will not procure a set-off, 
 must be paid, and a set-off will not be allowed. 
 
 lb. — Estoppel. — Eobertson v. Hay, 1879, 10 N. 242. Where one executes 
 a bond and mortgage together with a certificate of no defence, and places the 
 l^apers in the hands of a broker under certain instructions, the mortgagor is 
 estopped from setting up a defence against one to whom the broker has assign- 
 ed the mortgage although the broker has acted fraudulently and has appro- 
 priated the money to his own use. 
 
 lb. — Intended Purchaser of Mortgage — ^Notice. — Griflaths v. Sears, 
 1886, 17 W. N. C. 468. A declaration of no set-off given to an intended pur- 
 chaser of a mortgage operates in favor of subsequent assignees only when they 
 have no notice — either actual or constructive — of facts impeaching the de- 
 claration. 
 
 lb. — Mortgagor— Declaration of no.— Levy v. Preston, C. P. 1875, 1 W. 
 N. C. 159. A mortgagor is estopped by a declaration of no set-off of the 
 same date as the assignment of the original mortgage. 
 
 lb.— Green's Ap., 1881, 1 Out. 342. A "first mortgage" in this state 
 means a first lien, and one selling a mortgage represented to be a " first mort- 
 gage. ' ' will not be allowed, afterwards, to set up a prior lien. 
 
 lb.— Action before Arbitrators.— Bitzer v. Killinger, 1863, 10 Wr. 44. 
 A defendant who has used a set-off before arbitrators from whose award 
 plaintiff appealed, is not estopped from using it in another action, instead 
 of on the appeal of the first. 
 
 lb.— Action before Justice.— Simpson v. Lapsley, 1846, 3 Barr. 459. A 
 party is not estopped from recovering any part of a claim of over $100, be- 
 cause in a former action against him by the defendant before a justice of the 
 peace he refused to set off any item of this account. 
 
 lb. — lb. — Herring v. Adams, 1843, 5 W. & S. 459. One sued before a jus- 
 tice who has a set-off within the latter's jurisdiction and does not use it, 
 cannot afterwards use it. 
 
 Judgments.— Windle v. Moore, C. P. 1879, 10 W. N. C. 387, S. C. 1 Ches. 
 Co. 69. The court will not allow one judgment to be setoff against another, 
 unless the circumstances of the case make it an equitable exercise of dis- 
 cretion. 
 
SET OFF. 497 
 
 lb.— Dry v. Filbert, C. P. Berks, 1859, 2 Woodw. Dec. 134. The right of 
 setting off one judgment agsiust another is an absolute one, not dependent 
 on the opinion of the chancellor. 
 
 lb.— Discretion of Court.— Wiadle v. Moore, C. P. 1879, 10 W. N. C. 
 387, S. C. 1 Ches. Co. 69. The court will not allow one judgment to be set 
 off against another unless the circumstances of the case make it an equitable 
 exercise of discretion. 
 
 lb.— Writ of Error.— Wellock v. Cowan, 1827, 16 S. & R. 318. No writ 
 of error lies to an order made in the lower court allowing one judgment to 
 he set-off against another. 
 
 lb.— lb.— Remedy.— Horton v. Miller, 1863, 8 Wr. 256. Where there 
 has been au application to the court to set off one judgment against another 
 the remedy of the party aggrieved by the decree is by appeal, not by writ of 
 error. 
 
 lb.— Equitable Interference.— Bindley 's Ap., 1887, 19 W. N. C. 18. 
 Jl. obtained judgment against B. whereupon the latter filed a petition 
 alleging that L. had recovered a judgment against him upon an award by a 
 referee which was properly payable by M., and praying that the amount of 
 L.'s judgment should be credited upon the judgment obtained byM. B. did 
 not set this up upon trial of the cause, nor had M. agreed to the trial of L.'s 
 claim before a releree. Held the facts did not present a proper case for equit- 
 able interference. 
 
 Mesne Profits.— Noble v. Biddle, 1876, 32 S. 430. In an action for mesne 
 profits the defendant may set off only those improvements that are of ad- 
 vantage to the plaintiff. 
 
 lb. — Walker v. Humbert, 1867, 5 S. 407. Improvements made by one co- 
 tenant may be defaulted in an action for mesne profits by the other. 
 
 Mortgagor and Mortgagee— Rent.— Scott u. Fritz, 1866, 1 S. 418. A 
 mortgagee became tenant of the grantee of the mortgaged premises, held in 
 an action to foreclose the mortgage, the grantee not being a party, rent due 
 by the mortgagee to him could not be set off by the mortgagor against the 
 mortgaged debt. 
 
 Non-Negotiable Instrument — Nominal Plaintiff. — Thompson v. Mc- 
 Clelland, 1857, 5 C. 475. ■ Set-oft is not allowable between the nominal 
 plaintiff and the defendant where the action is on a non-negotiable instru- 
 ment. 
 
 Note— Worthless — Possession— Evidence. — McGowan v. Budlong, 
 1875, 29 S. 470. One who gets possession of a worthless note against his 
 creditor may offer it in evidence as a set-off, and it is for the jury to say 
 whether he holds the note as an experiment or whether there was an actual 
 transfer. 
 
 Oflcial- Private Debt.— Wilson v. Lewistown, 1841, 1 W. & S. 428. 
 One sued in an official capacity cannot set off a private debt. 
 
 lb.— Fields V. Kershaw, C. P. Delaware, 1881, 13 Lan. Bar, 68, S. C. 1 
 Del. Co. R. 103. A treasurer of a beneficial society cannot set off against 
 the lund in his hands private claims which he has against the society. 
 
 lb. — Russell V. First Presbyterian Church, 1870, 15 S. 9. A treasurer of 
 a corporation when sued for money in his hands cannot set off his own debt. 
 
 Party Aggrieved— Appeal. — Horton v. Miller, 1863, 8 Wr. 256. A 
 party aggrieved by a decision affecting an equitable set-off should appeal, 
 unt take out a writ of error. 
 
 Purchaser from Committee of Lunatic— Beale v. Coon, 1834, 2 W. 133. 
 One who has purchased goods from a committee of a lunatic cannot set off a 
 claim which he has against the lunatic himself. 
 
 lb.— From Insolvent after Assignment.— Boinod v. Pelosi, C. P. 1788, 
 2 Dall 43. One purchasing goods of an insolvent after insolvency, 
 
 32 — EQUITY. 
 
498 SET OFF — SETTLEMENT, WIFE'S EQUITY TO A. 
 
 though not from the assignee, cannot set off a debt due him by the insolvent, 
 against the price of the goods. 
 
 Eecognizance— Equities.— Keagy 'v. Comwlth., 1862, 7 Wr. 70. A. 
 having given his recognizance an favor of B. bought a judgment against him. 
 C. afterwards bought B.'s rights under the recognizance. Held that A. could 
 set off the j udgment against C. since the transfer of a chose in action is sub- 
 ject to the equities then existing. 
 
 State, Setoff Against— Payment for Specific Purposes. — Common- 
 wealth i;. Matlack, 1804, 4 Dall. 303. One sued for a balance of money put 
 into his hands by the State for a special purpose cannot set up that he has 
 expended part ot it for other State purposes, for this vrould amount to a cross 
 action against the State. 
 
 Treasurer — Corporation. — Russell v. First Presbyterian Church, 1870, 
 15 S. 9. A treasurer of a corporation, when sued for money in his hands, 
 cannot set off his own debt. 
 
 Two Defendants.— Stewart v. Coulter, 1824, 12 S. & E. 252. One of 
 two defendants may set off a debt due him alone by the plaintiff. 
 
 lb. — Crist V. Brindle, 1828, 2 R. 121. In a suit against two, a debt due 
 to one may be set off if he be the real debtor and the other his surety. And 
 this, although the suit is by the executor, and both the debt and the set-off 
 accrued in the lifetime of the testator. 
 
 Use Plaintiff. — Armstrong v. Lancaster, 1836, 5 W. 68. That a suit is 
 for the use of an equitable plaintiff is sufficiently shown by so marking it, 
 the title of the latter need not be set off in the pleadings. The court wUl 
 undoubtedly search out the real plaintiff in the interest and fix on him costs, 
 set-offs and other liabilities. 
 
 lb.— Passmore v. Ins. Co. of Penna., 1822, 8 S. & E. 66. A suit was 
 brought by P. and B. to the use of P. it was afterwards marked to the use 
 of S. Held that in equity a set-off which would have been allowed against 
 P. would be allowed against S. 
 
 Vendee, Dispossessed— Ejectment by— Profits.— Heft v. McGUl, 1846, 
 3 Barr. 256. A vendee, under articles, being improperly dispossessed, may 
 bring ejectment without tendering the balance due, and may set off the 
 profits of the estate received by the vendor against that amount. 
 
 SETTI^EMENT, ANTE-XUPXIAl,. 
 
 [See Husband and Wife III.] 
 
 SETTLEMENT, POST-PfUPTIAI,. 
 
 [See Husband and Wife IV.] 
 
 SETTLEMENT, "WIFE'S EQUITY TO A. 
 
 [See also Husband and Wife I, IV.] 
 
 Courts— Power to Order.— Miller's Est, 1826, 1 Ash. 323. Our courts 
 have no power to compel a husband or his creditors who are reaching after 
 the wife's property to make a settlement upon her. 
 
SBTTLEMKNT, WIFffJS BQUITY TO A— SILENCE. 
 
 lb.— lb.— Yohe V. Bamet, 1808, 1 Bin. 358. It is to be regretted, but 
 is nevertheless the fact, that our courts have no polteeS: to insist on a pro- 
 vision for the wife when the husband reduces her choscs in action to posses- 
 sion. 
 
 Voluntary-Motive.— Geiger's Est., 1887, S'W. K. C. 114. The non- 
 appearance of any motive for making an irrevocable gift may be tatamount 
 to active proof of mistake, and equity would reform the instrument guided 
 by the intention of the grantor in making the settlement. 
 
 SEVERA'toM.ITY. 
 
 [See SPEciric PEEroEMANCE I.] 
 
 SBELLV'S CASE. ] 
 
 [See IJULE IN Shelly's Case ; Trust.] 
 
 SHERIFF. 
 
 [See Sale II ; Confidential Relations I ; Estoppel I. ] 
 
 ■J.,'. 1 V: SHERIFF'S DEED. ^ 
 
 [See Maeketablb Title; Sale II.] ' " '^ 
 
 SHERIFF'S HAXDS, FUNDS iM- 
 
 [See Lien.] , 
 
 SHERIFF'S SALE. ,\< / 
 
 .1' { 
 [See Adjustment VII A ; VIII A ; Equitable Statute-; Sale II.] 
 
 SIGPI. 
 
 [See Injunction E (Trade Mark.)] 
 
 -'; > SII<EI«CE. 4 
 
 [See Feaud II ; Estoppel VI.] 
 
500 SLAUGHTEE HOUSE — SPECIFIC PEEFOEMANCE. 
 
 [See Injunction ID.] 
 
 SMOKE. 
 
 [See iNJUNpiiON I D.] 
 
 SOLE TRADER. 
 
 [See Husband and Wife II.] 
 
 SOLE AKJU SEPARATE USE. 
 [See Husband and Wife VI.] 
 
 SPECIFIC PERFORMANCE. 
 
 {See also Jurisdiction II C ; Laches ; Mutuality ; Orphans' Court 
 II ; Parties ; Statute of Frauds II, III ; Peincipal and Agent ; 
 PuEOHASBE ; Vendor and Vendee.] 
 
 I. In General. 
 II. Essentials in Obtaining. 
 
 III. Jurisdiction. 
 
 IV. Laches. 
 
 V. Makbibd Women. 
 VI. Orphans' Court. 
 YII. Practice. 
 VIII. Relief. 
 IX. Remedy at Law. 
 X. Restraint of Trade. 
 XI. Wife not Signing. 
 
 I. In Oeneral. 
 
 Act of June, 1836.— Discretion.— Dalzell )=. Crawford, 1842, 1 Pars. 37. 
 S. C. 1 Clark, 155, 2 Pa. L. J. 1 7. Act June 16, 1836, gives the equitable 
 right of enforcing contracts specifically, but specific execution is a matter of 
 discretion, and will only be decreed when the plaintiff shows a case which 
 recommends itself to the conscience of the chancellor. 
 
SPECIFIC PBEFOBMANCE. 501 
 
 Administrator, Bill Against— Unpaid Purchase Money.— Corkin v. 
 Blake, D. C. 1860, 17 Leg. Int. 20, S. C. 4 Phila. 10. A,bill in equity will 
 lie against an administrator (husband of the decedent) to specifically en- 
 force an agreement made between complainant and decedent, that the lat- 
 ter should execute a bond and mortgage to secure the unpaid purchase 
 money due on land conveyed by the complainant to the decedent. 
 
 lb.— Death of Parties— Notice.— Anshutz Ap., 1859, 10 C. 375. Upon 
 proceedings in the orphans' court by the administrator of the vendor to en- 
 force specifically a contract to sell laud, both parties being dead and intes- 
 tate, due notice should be given to the administrator of the vendee, to the 
 heirs of the vendee, and to all persons deriving title from them or interested 
 in the contract ; also as a matter of security to the heirs of the vendor. 
 
 Authority of Agent— Statute of Frauds— Vague Contract.— Par- 
 rish V. Koons, 1844, 1 Pars. 78. Specific performance of a contract for the 
 sale of land will not be decreed where the only writing in the case is vague 
 and uncertain, and was signed by an agent for one of the parties whose au- 
 thority was not in writing. The plaintiff cannot in such a case rely on the 
 defendant's answer as satisfying the statute of frauds. 
 
 Bankrupt— Statutory Provision— Limitation.— Roflf's Ap., 1887, 2 
 Crum. 310. Section 5057 Eev. St. U. S. providing: "No suit, either at 
 law or in equity, shall be maintained in any court between an assignee in 
 bankruptcy and a person claiming an adverse interest touching any property 
 or rights of property transferable to or vested in such assignee, unless 
 brought within two years from the time when such action accrued for or 
 against such assignee," is a complete bar to a bill by an assignee in bank- 
 ruptcy, filed more than two years after his appointment to enforce the 
 specific performance of the bankrupt contract, although not specially set up 
 in the answer as a defence to the action. 
 
 Barter of Land and Chattels— Foreign State.— Brittain r. Ely, C. P. 
 1877, 4 W. N. C. 412. A bill prayed for specific performance of a barter of 
 lands and chattels, the lands being in another State, the court, on motion, 
 refused to enjoin the conveying of the lands ; but under the prayer for gen- 
 eral relief, granted an injunction restraining the sale of the chattels by de- 
 fendant. 
 
 Breach of Faith— Contract Arising from.— Patterson v. Martz, 1839, 
 8 W. 374. Equity will not specifically enforce a contract which grew out of 
 a breach of faith, even though the party seeking aid be innocent. He is left 
 to his remedy at law. 
 
 Contract Under Power— Substantial Performance. — Philadelphia and 
 Reading R. R. .v. Lehigh Navigation Co., 1860, 12 C. 204. Although equity 
 will not decree specific execution of a contract not conformable to the power 
 under which it was made, nor change it so as to be conformable to the 
 power, yet if it is substantially a performance, equity will not allow smaller 
 matters to interfere when compensation can be made. 
 
 Court— Evidence.— Miller v. Hertle, 1866, 3 S. 108. It is for the court 
 to say whether evidence, if true, is sufdcient to entitle plaintiff to specific 
 performance. 
 
 Death of Defendant.— Brady v. Shisler, C. p. 1874, 1 "W. N. C. 97. A 
 decree of specific performance will not be entered in the common pleas 
 against the defendant who dies while an appeal is pending in the Supreme 
 Court. 
 
 Decedent's Contract— Parties.— Ander's Est., o. C. 1877, 4 W. N. c, 
 382, S. C. 34 Leg. Int. 354, 12 Phila. 28. All parties in interest must be 
 made parties to a petition in the orphans' court for specific performance of 
 a decedent's contract. 
 
 Deed in Escrow.— Baum's Ap., 1886, 17 W. N. C. 525, S. C. 43 Leg. Int. 
 299. Equity will compel the delivery of a deed held in escrow, upon per- 
 formance of the condition upon which it was to be delivered. 
 
502 SPECIFIC PERFORMANCE. 
 
 Definite Contract— Charity.— McLain v. School Directors, 1865, l' S. 
 196. To grant specific performance equity requires the contract to be proved 
 with defiuiteness, but where the performance is demanded for a charity, if 
 the boundaries are reasonably certain, equity will act. 
 
 Discretion.— Freetley v. Barnhart, 1865, 1 S. 979. Specific performance 
 rests in the sound discretion of the chancellor, whatever be the legal rights 
 of the parties. 
 
 Election of Plaintiff— Discretion— Inconsistent Eemedies.— Findlay 
 V. Keim, 1869, 12 S. 112. In modern practice chancery will generally com- 
 pel a party seeking specific performance to elect between his action at lavit 
 and his suit in equity ; this, however, is a rule of discretion, not a hard 
 rule of law. An action of covenant on an agreement to sell land, and an 
 action of ejectment for the land, are not inconsistent remedies between 
 which a plaintiff must elect. . . , i • 
 
 Enforcement of Trust.— Church v. Ruland, 1870,' 14 S.'432. Ejectment' 
 may still be employed as a remedy to compel specific petformknce of a con-; 
 tract for the sale of laud, or to enforce a trust in regard to it. 
 
 Equitable Title, Failure of— Ejectment.— Sparks v. Walton, D. C. 
 1860, 17 Leg. Int. 228, S. C. 4 Phila. 93. An equitable title which has 
 failed in a suit in equity for specific performance, cannot afterwards be used 
 as a defence in ejectment. 
 
 lb. — Murray v. Ellis, 1886, 2 Am. 485. An action to recover purchase 
 money on articles of agreement lor the conveyance of land i^ in the nature 
 of a bill for specific performance, and hence when the legal title to such 
 land is outstanding in a naked trustee, the equitable title being vested inj 
 the vendor, such action cannot be maintained by the vendor, as his title is. 
 not marketable. 
 
 lb. — Tender. — Orne v Kittanning Coal Co., 1886, 4 Amer. 179. A ven- 
 dee holding an equitable title cannot enforce specific performance with 
 payment or a previous tender of the purchase money due. It is otherwise 
 if, the owner of the equitable title has once been fairly put into possession 
 and is misled therefrom by force or fraud of the vendor. 
 
 Executory Contract — Proof — Pussell )!. Ehodes, C. P. 1856, 13 Leg. 
 
 Int. 316, S. C. 2 Phila. 165. Equity will not specifically enforce an execu- 
 tory contract which is not clearly proved. 
 
 Expectancy, Sale of an— Consideration.— Power's Ap., 1869, 13 S. 
 443. Equity will enforce a sale of an expectancy it made on a valuable 
 consideration. 
 
 Family Settlement.— "Wistar's Ap., 1876, 30 S. 484, S. C. 2 W. N. C:' 
 613. Equity leans in favor of family compromises or settlements, but will 
 only specifically enforce them when (1) they are fair ; (2) the minds of the 
 parties have met on all the material points, and (3) they are complete set- 
 tlements and do not leave questions open for litigation. 
 
 Husband and Wife — Tripartite Articles of Separation— Trustee 
 Refusing to Sign. — Smith v. Knowles, 1853, 2 Gr. 413. Equityi.will not 
 specifically enforce tripartite articles of separation signed by the husband 
 and wife, but which, for a technical objection, the trustee has refused to 
 «ign. ' ' I , 
 
 lb.— Agreement to Separate.— Lehr u. Beaver, 1844, 8W. &S. 102. 
 Au agreement of separation between a husband and wife, giving to the latr- 
 ler half the unpaid purchase money of lands of the wife formerly sold by 
 the husband, will be enforced. 
 
 Injunction, Preliminary.— Phila. & R. E. R. v. 'Phila., N. P. 1870, 27 
 Leg. Int. 316, S. C. 8 Phila. 112. Specific performance of a contract cannot 
 be enforced by preliminary injunction. 
 
 '. InsufS.cient Description— Possession.— Troup v. Troup, 1878, 6 N. 149. 
 A chancellor will decree specific performance of a written contract for the 
 
SPECIFIC PERFORMANCE. 508 
 
 sale of land in which the descriptidn of the land is insuflScient, where a 
 tract which falls within the description has been taken and occupied by the 
 vendee. 
 
 Intoxication.— Hanna i;. Phillips, 1855, IGr. 253. Specific performance 
 will not be decreed in favor of one who took advantage of the intoxication 
 of another. 
 
 Judgment Creditors— Contract to Attack Title.— Weaver's Ap., 1886, 
 5 Am. 59. Where A. & B., two judgment creditors of the same defendant 
 C, ageeed in writing to attack the title of the sheriffs'vendee of C.'s real 
 estate, and j;he agreement provided that if the suit was successful and the 
 amount recovered was sufficient to pay costs, expenses and both judgments, 
 that A. should pay B.'s judgment out of the proceeds. The amount recov- 
 ered was sufficient, but A. refused to pay, alleging no consideration for th? 
 agreement. Held, a bill in equity would .lie to compel a specific perform- 
 ance of the contract. 
 
 Jurisdiction— Orphans' Court — Decedent's Contracts.— Porter vl 
 Dougherty, 1855, 1 C. 405. The orphans' court has exclusive jurisdictioi^ 
 in enforcing specifically the contracts of decedents. 
 
 lb.— Orphans' Court— Decedent's Contract.— Cobb v. Burns, 1869, H 
 S. 278. The orphans' court has exclusive jurisdiction in the matter of der 
 creeing specific performance of the contracts of decedents for the sale of land* 
 
 lb. — Common Pleas— Contract of Decedent. — Warfel v. Calder, C. P. 
 Lancaster, 1877, 8 Lan. Bar, 205. The common pleas has no jurisdiction 
 to decree specific performance of the contract of a decedent. 
 
 lb.— lb.— lb.— Appeal.— Brady V. Shisier, C. P. 1874, 1 W. N. C. 97. A. 
 decree of specific performance will not be entered in the common pleas 
 against a defendant who dies while an appeal is pending in the Supreme 
 Court. 
 
 lb. — Land in Another County.— Beidler «. Miller, C. P. Berks, 1864, 
 Woodw. Dec. 222. Equity may assume jurisdiction where the relief prayed 
 for is the conveyance of lands in another county. 
 
 Jury, Province of— Evidence.— Moore v. Small, 1852, 7 H. 461. In 
 ejectment, to enforce specifically a parol contract for the purchase of land, 
 the only work for the j ury is to find material facts, the evidence thereof 
 being conflicting, and to pass upon the credibility of witnesses. 
 
 Life Insurance. — Nestel i)."Knickerbocker Ins. Co., C. P. 1877, 34 Leg,' 
 Int. 240, S. C. 12 Phila. 477. Equity will dismiss a bill praying for specific 
 performance of a contract to insure a life on the ground of an adequate rem- 
 edy at law. 
 
 Location of land— Uncertainty.— Lee's Ap., 1882, 12 W. N. C. 183. 
 Specific performance of a contract for the sale of land will not be decreed 
 where the location of the land is uncertain and cannot be fixed. 
 
 Married Woman — Contract — Separate Acknowledgment. — Eumfelt 
 V. Clemens, 1864, 10 Wr. 455. Articles of agreement for the sale of the sepsf 
 rate estate of a married woman are void unless separately acknowledged by 
 her, and although possession has been taken thereunder and the purchase 
 money paid she can recover in ejectment. 
 
 Master's Order— Partnership Account— Purchaser of Interest. — 
 AUen V. Hill, C. P. 1867, 1 W. N. C. 167. A master appointed to settle a 
 partnership account does not go out of his province when he reports that an 
 order be made on a purchaser of the firm's real estate either to complete the 
 sale or give up the possession. 
 
 Misrepresentation. — Fisher v. Worrall, 1843, 5 W. & S. 478. A vendor 
 who has made a misrepresentation of an ocult quality in land, although he 
 made it in ignorance of the truth, cannot enforce specific performance of the 
 contract. 
 
 lb. — Cortelyon's Ap., 1883, 6 0. 576. Specific performance of a written 
 
504 SPECIFIC PKEFORMANCE. 
 
 contract of very general terms open to more than one construction will not 
 be decreed, where the testimony shows that the vendor and vendee had dif- 
 ferent understandings at the time it was executed. 
 
 Mutual Mistake — Preliminary Injunction. — Mayer v. Fritsch, 1873, 
 1 Fost. 193. Equity will refuse to specifically enforce by preliminary in- 
 junction an agreement which was founded evidently on mutual mistake. 
 
 Option to Perform. — Andrews o. Bell, 1867, 6 S. 343. One having an 
 option to fulfil his part of a contract by a payment in money or in goods, 
 who delays payment until a material change of circumstances has been pro- 
 duced, cannot come into equity and get a specific execution of the contract. 
 
 lb.— Murill'sAp., 1882, 12 W. N. C. 44, S. C. 14 Lan. Bar. 165. A lessee 
 who has an option to purchase may, on exercising his option, enforce his 
 right by means of a bill for specific performance. 
 
 Parent and Child— Contract.— Shirley v. Shirley, 1868, 9 S. 267. Where 
 an effort is made to enforce specific performance of a contract made between 
 parent and child, the plaintiff must-show that he has been ready, prompt 
 and eager to do his part ; the proof must be stronger than inordinary cases. 
 
 lb.— Deed to Parent.— Miskey's Ap., 1883, 40 Leg. Int. 414 ; S. C. 3 
 Penny. 408. A voluntary deed by an intemperate son to his rich father 
 without any provision or power of revocation, and made without legal ad- 
 vice on the part of the son, demands affirmative proof of fairness and gen- 
 uinene.ss. 
 
 lb. — Ejectment. — Harris V. Richey, 1867, 6 S. 395. In ejectment to en- 
 force specific performance between parent and child, equity requires more 
 strict prool than it would between strangers. 
 
 Partnership Contract— Death of Partner.— Wiley's Ap., 1877, 3 X. 
 270. Specific performance of the contract of partners, one of whom has died, 
 should be sought in the equity side of the common pleas, not in the orphans' 
 court. 
 
 lb.— Trust -Injunction.— Blaylock's Ap., 1873, 23 S. 146. An agree- 
 ment was made between partners whereby a special partner was to buy in 
 firm property about to be sold by the sheriff and, after discharging certain 
 liens, hold it in trust for the other partners. The special partner had an 
 agent buy it in for him and was about to sell it when this bill was filed 
 asking that the sale be enjoined. Held, that the only equity that com- 
 plainants had was to enforce their agreement by having the legal title vested 
 in the special partner as trustee. 
 
 Personal Property— Contracts relating to Bonds.— Phila. & Reading 
 R. R. !■. Stichter, 1882, 11 W. N. C. 325. Equity will, under some circum- 
 stances, decree specific performance of a contract concerning personalty : in 
 this case the action was amicable and solely for the purpose of ascertaining 
 the right of the defendant to issue bonds. 
 
 Personal Services— Actor and Manager. — Ford v. Jermon, D. C. 1865, 
 22 Leg. Int. 44, S. C. 6 Phila. 6. A contract between an actor and manager 
 for the personal service of the former will not be specifically enforced. 
 
 Public Policy— Sale of Stock.— Foil's Ap., 1879, lO N. 435. Equity 
 will not decree specific performance of a contract to sell shares of stock where 
 the purpose of the complainant is to got a controlling interest in the company. 
 The object of the bill is against public policy. 
 
 Purchase Money. — Bowser r. Cessna, 1S69, 12 S. 148. An action for the 
 whole purchase money in a contract of sale would be an enforcement of 
 specific performance. 
 
 Reformation — ^Exchange. — McCann v. Pickup, C. P. 1885, 42 Leg. Int. 
 286. Equity will not first reform an alleged agreement in writing for an 
 exchange by substituting one property for another and then decree specific 
 performance of the exchange as reformed. 
 
 Representation as to Value. — Holmes' Ap., 1874, 27 S. 50. Equity 
 
SPECIFIC PKEFOEMANCE. 505 
 
 will not decree specific performance in favor of a vendor of land if he has 
 made material misrepresentations cpncerning it. 
 
 Restraint of Trade— Penalty. — Eeece v. Hendricks, C. P. 1870, 1 Camp. 
 79, S. C. 2 Leg. Gaz. 204. Equity will specifically enforce a bond given in 
 restraint of trade in favor of the assignee of the obligee, although it contains 
 a penalty. 
 
 Severability. — Temple v. McConkey, 1857, 1 Crum. 367. A vendee under 
 articles of three lots cannot without the vendor's consent sever the con- 
 tract, therefore his vendee of one of the lots cannot compel specific perform- 
 ance against the original vendor. 
 
 Stock, Contract to Sell Shares of— Public Policy — ^Attempt to Con- 
 trol Company. — Foil's Ap., 1879, 10 N. 435. Equity will notdecree specific 
 performance of a contract to sell shares of stock where the purpose of the 
 complainant is to get a controlling interest in the company. The object of 
 the bill is against public policy. 
 
 lb.— Transfer of Specific Shares of— Title.— Clark v. Savings Associa- 
 tion, C. p. Schuylkill, 1880, 1 York L. R. 172. Equity will not compel the 
 transfer of specific shares, of stock unless complainant's title is first estab- 
 lished at law or is undisputed, he must sue at law for damages. 
 
 lb. —Corporation— Trust. — Goodwin Co.'s Ap., 1888, 2 Crum. 514. 
 Though, generally, performance of an ordinary contract for the sale of chat- 
 tels will not be enforced in equity, yet where in a contract for the sale of 
 stock in a private or business corporation, the transfer is subject to a trust 
 imposed by the contract, and the facts are such that a remedy at law for 
 damages would be inadequate and impracticable, equity will decree specific 
 performance. 
 
 Tenant in Common— Behavior of Vendor.— Dech's Ap., 1868, 7 S. 467. 
 Where a tenant in common has sold his interest and before giving up pos- 
 session has so behaved as to render the relation of the proposed vendee with 
 his co-tenant unpleasant, equity will not decree specific performance. 
 
 Tender of Deed. — Hall v. Holmes, 1846, 4 Barr, 251. In equitable ejects 
 ment, to enforce performance by vendee, under articles, a tender of a deed 
 before suit brought is not necessary. 
 
 Title— Conditional Release.— Bonner v. Herrick, 1881, 3 Out. 220. A 
 vendee who has contracted for a clear title and who after waiting a year has 
 declared it his intention to rescind the contract, will not be compelled to 
 accept one with a conditional release of certain liens, provided certain others 
 are paid by him out of the purchase money. 
 
 Transfer of Stock.— Dietrich v. Tyson, C. P. 1861, 18 Leg. Int. 118, S. 
 C. 4 Phila. 352. Equity will decree the transfer of specific shares of stock 
 by throwing the complainant upon his remedy at law for damages he might 
 lose owmg to the financial standing of the defendant, or where the defend- 
 ant holds as trustee. 
 
 lb.— Vendor not Owning.— Ley v. Huber, 1834, 3 "W. 367. Equity will 
 not compel a vendee to accept a title of which the vendor was not the owner 
 at the time of the contract, or at least had not the legal or equitable means 
 of making himself so. 
 
 Unexecuted— Voluntary Agreement.— Pringle v. Pringle, 1868, 9 S. 
 281. Equity will not enforce an unexecuted voluntary agreement. 
 
 Vendor — Performance by. — Larison v. Burt, 1842, 4 W. & S. 27. A 
 vendor who is not in default and who cannot be put in statu quo is entitled 
 to specific performance. 
 
 Voluntary Deed— Unexecuted Contract.— Carhart's Ap., 1875, 28 S. 
 100, S. C. 1 W. N. C. 476, 7 Leg. Gaz. 237. Equity will not enforce an 
 unexecuted voluntary contract. 
 
506 SPECIFIC PEEFOEMANCE. 
 
 II. Essentials in Obtaining. 
 
 •It 
 
 Ambiguity.— Kraher V. Nes, C. P. York, 1882, 3 York L. R. 123. Equity 
 will not specifically enforce a contract of ambiguous meaniftg. 
 
 Clean Hands.— Ewing's Ap., 1886, 43 Leg. Int. 354,' S. C. 18 W. N. C. 
 29. "Where one who has taken an agency for an article and agreed to devote 
 his time and energy to sell the same within an exclasive territory, and has 
 subsequently also taken the agency for a rival article, whereupon the sales 
 of the first fall ofl", he is not in a position to demand specific performance of 
 the original agreement, the defendant having revoked the Agency. 
 
 Clear Contract. — Hammer v. McEldowney, 1863 ,10 Wr. 334. A con- 
 tract will not be enforced in equity unless its terms be clear and capable of 
 ascertainment from the instrument itself. Therelbre equity refused to en- 
 force a contract ' ' for the sale of the houses on A street. ' ' 
 
 Equity and Fairness. — Brady's Ap., 1870, 16 S. 277. A chancellor will - 
 not grant specific performance if he feels that the facts do not establish a 
 case of equity and fair dealing. 
 
 lb.— Mutuality.— Greenlee v. Greenlee, 1853, 10 H. 225. To entitle a 
 party to specific performance of a contract for the sale of land, an express 
 contract must be proved, which is conscionable upon a suflScient considera- 
 tion, and mutually binding. If the contract is a parol one, part performance 
 must also be proved. 
 
 Grood Faith. — Backus' Ap., 1868, 8 S. 186. Specific performance will 
 not be granted where it appears that the method of fixing the terms of the 
 contract, as prescribed in the contract, have not been fully and fairly carried 
 out. 
 
 lb.— Marketable Title— Mitchell, v. Steinmetz, 1881, 1 Out. 251, S. C. 10 
 "W. N. C. 43, 12 Lan. Bar. 201, 28 Pitts. L. J. 454. Specific performance vrill 
 only be decreed in favor of a vendee who has a marketable title and who has 
 acted in good faith. 
 
 lb.— Misrepresentation. — Lynch's Ap., 1881, 1 Out. 349. One who has 
 not himself dealt in good faith cannot invoke the aid of equity, therefore one 
 who buys the mining rights in certain lands saying that he does it so as to 
 be able to purchase the surface and not be bothered with prospectors, cannot 
 on the ground of misrepresentation as to the presence of the coal have the 
 contract rescinded. 
 
 lb. — Title. — Moss V. Hanson, 1851, 5 H. 379. Specific performance of a 
 contract for the sale of lands will be decreed on the application of the vendor, 
 if he is able to make a good title at any time before the decree is entered, 
 unless he made the contract in bad faith knowing that he had no title and 
 no means of acquiring it. 
 
 Laches— Payment— Compensation.— Greaves v. Gamble, C. P, 1869, 
 Camp. 1, S. C. 1 Leg. Gaz. 3. Equity will not refuse specific performance if 
 there has been a slip in payment as to time which can be compensated 
 
 Mutuality. — Bodine V. Glading, 1853, 9 H. 50. Specific performance 
 will not be granted unless the defendant could also compel it under the con- 
 tract. Mutuality is essential. 
 
 lb.— Freeman v. Stokes, C. P. 1877, 4 W. N. C. 459, S. C. 34 Leg. Int. 248, 
 12 Phila. 219. Equity will not specifically enforce a contract in favor of one 
 who was not himself bound by the contract. 
 
 Time — ^Part Performance. — Dauohy v. Pond, 1839, 9 W. 49. Time may 
 be made of the essence of a contract for the sale of land so that one making, 
 default cannot afterwards have specific performance of the contract although 
 it had been previously performed in part. 
 
 Title— Clear Before Suit.— Moronly v. Townsend, D. C. 1864, 21 Leg: 
 Int. 37, S. C. 5 Phila. 357. Where a vendor sues for specific performance, 
 he cannot recover unless his title was " clear " before suit brought. 
 
SPECIFIC PEEFORMANCB. 507 
 
 lb.— Doubtful.— Speakman v. Forepaugh, 1863, 8 Wr. 363. Equity will 
 not compel a vendee to take a doubtful title. 
 
 Two Writings.— Jones v. Fennel, D. C. 1855, 12 Leg. Int. 43, S. C. 1 
 Phila. 539. Equity will specifically enforce a contract for the sale of lands 
 although its terms have to be gathered from two writings, one signed by each 
 party to the sale, if its terms are sufSciently clear to make it safe for the 
 court to enforce it without risk of injustice to either party. 
 
 Uncertain and Contradictory Agreement.— Merrill's Ap., 1885, 16 W. 
 N. C. 346. Specific performance will not be decreed of an agreement uncer- 
 tain and contradictory in its terms. 
 
 III. Jurisdiction. 
 
 [See also I, ante.'] 
 
 Allegheny County— Note— Contingency.— Simes v. Everson, 1863, 10 
 Wr. 304. The district court of Allegheny county has equity jurisdiction 
 to compel a redelivery of a note given to the defendants under an arrange- 
 ment that on a certain contingency it should be surrendered, the contingency 
 haviiig arisen. 
 
 Decedent's Contract— Act of February 24, 1834.— Myers v. Black, 
 1851, 5 H. 193. Under Act February 24, 1834, S. 15, the orphans' court has 
 exclusive jurisdiction in decreeing specific performance of the contracts of 
 debedents. 
 
 Executor— Power in Will.— Mussleman's Ap., 1870, 15 S. 480. Equity 
 has no jurisdiction to decree specific performance of a sale by an executor 
 jinder a power in the will. 
 
 Supreme Court— Original.— Sunbury E. R. v. Cooper, 1859, 9 C. 278. 
 The Supreme Court in banc has no original equity jurisdiction to compel spe- 
 cific performance. The case, if in Philadelphia, must be first heard at nisi 
 prius. 
 
 IV. Laches. 
 
 Bar to Recovery.— Alexander's Ap., 1888, 45 Leg. Int. 283. Specific 
 performance of a contract will not be decreed in favor of one in default or who 
 has been guilty of Iciches. 
 
 Exchange of Lands.— Alexander's Ap., 1888, 3 Crum. 610. Equity will 
 not decree specific performance of a contract for the exchange of lands against 
 a party, who, at the time appointed for the performance, was r^ady and will- 
 ing, and in favor of a party who was not only in default but never offered to 
 perform according to the termsof his contract, and whose laches rendered per- 
 formance on his part impossible. 
 
 Payment — Omission. — Greaves v. Gamble, C. P. 1869, 1 Camp. 1, S. C. 
 1 Leg. Gaz. 3. Equity will not refuse specific performance if there has been 
 a slip in payment as to time which can be compensated. 
 
 Vendor's Lifetime— Three Years After Decease.— Foster's Est., 1889, 
 46 Leg. Int. 17. Specific performance is not granted of right, but of grace ; 
 and where no steps had been taken by the purchaser during the lifetime of 
 the vendor, nor for three years after the latter's decease the decree was re- 
 fused. 
 
508 SPECIFIC PERFOEMANCE. 
 
 v. married 'Women. 
 
 [See also I, ante. J 
 
 Jurisdiction. — Dankel d. Hunter 1869,118.382. A court of equity has 
 jurisdiction to decree specific performance of a married woman's contract tor 
 the sale of land if made in the manner prescribed by statute. 
 
 Mutuality. — Tarr V. Scott, 1867, 4 Brews. 49. A feme covert cannot 
 maintain a bill for specific performance. The remedy must be mutual. 
 
 Separate Acknowledgment. — Eoseburgh v. Sterling, 1856, 3 C. 292. 
 Specific performance of the contract of a feme covert to sell land will not be 
 decreed unless the contract was separate acknowledgment. 
 
 VI. Orphans' Court. 
 
 [See also Orphans' Court II.] 
 
 Jurisdiction. — ^Weller v. Weyand, 1853, 2 Gr. 103. The orphans' court 
 has exclusive jurisdiction of the specific enforcement of the contracts of 
 decedents. 
 
 lb.— Walker's Ap., 1884, 41 Leg. Int. 387. Where a decedent has held 
 property under a trust with a conditional agreement to reconvey, the 
 orphans' court has not jurisdiction to decree the conveyance. 
 
 lb. — McFarson's Ap., 1849, 1 J. 503. Theorphans' court, which has juris- 
 diction of the account of a decedent's administrator, has cognizance of a peti- 
 tion to enforce specific performance of contracts made by the decedent for 
 the sale or conveyance of his lands, wherever situated. 
 
 lb. — Hall's Ap., 1886, 2 Am. 42. Equity has jurisdiction to establish 
 a right under a will and to compel the performance by the executors of 
 their duties incident to that right ; and the fact that in an adjudication of 
 the orphans' court, the executors were accountants and the legatees, under 
 the will were acceptants, does not estop the beneficiary from proceeding in 
 equity to establish his rights and to compel their performance. 
 
 lb.— Yunck's Est., O. C. 1878, 35 Leg. Int. 431, S. C. 12 Phila. 151. The 
 orphans' court has no jurisdiction to compel the specific performance by a 
 vendee of a contract for the purchase of land from one now dead, if the latter 
 has completed his part. 
 
 lb.— Lowry v. Lowry, C. P. 1873, 31 Leg. Int. 4, S. C. 10 Phila. 105. A 
 residuary devisee has no standing in the common pleas to compel specific 
 performance of a contract of a decedent, he must proceed in the orphans' 
 court. 
 
 lb. — Brinker v. Brinker, 1847, 7 Barr, 53. The orphans' court can spe- 
 cifically compel the performance of a contract to devise lands. Such case is 
 not well brought in the common pleas. 
 
 lb. — McFarson's Ap., 1849, 1 J. 503. The orphans' court, which has juris- 
 diction of the account of a decedent's administrator, has cognizance of a 
 petition to enforce specific performance of contracts made by the decedent 
 for the sale or conveyance of his lands wherever situated. 
 
 Notice— Parties. — AnshutzAp., 1859, 10 C. 375. Upon proceedings in 
 the orphan's court, by the administrator of the vendor to enforce specifically 
 a contract to sell land, both parties being dead and intestate, due notice 
 should be given to the administrator of the vendee, to the heirs of the 
 
SPECIFIC PEEFOEMANCE. 509 
 
 vendee and to all persons deriving title from them or interested in the con- 
 tract; also as a matter oi security to the heirs of the vendor. 
 
 lb.— lb.— West Hickory Association v. Reed, 1875, 30 S. 38, S. C. 2 W. 
 X, C. 551. A decree of specific performance by the orphans' court, where 
 a decedent had contracted to sell his land, is valid without notice to the 
 widow and heirs. 
 
 Parties.— Ander's Est. 0. C. 1877, 4 W. N. C. 382, S. C. 34 Leg. Int. 354, 
 12 Phila. 28. All parties ininteiest must be made parties to a petition in the 
 orphans' court for specific performance of a decedent's contract. 
 
 Principles Governing. — Brady's Ap., 1870, 16 S. 277. In proceedings 
 in the orphans' court to compel specific performance the same principals 
 govern as in other courts of equity. 
 
 Proof of Contract.— Eargood's Est., O. C. Dauphin, 1855, 1 Pears. 399. 
 The orphans' court will not enforce a contract of decedent for the sale of land 
 unless it is clearly proved. 
 
 Rescission— Decree of— Parties.— Raflferty's Est., 1873, 1 Fost. 383, S. 
 C. 30 Leg. Int. 380, 9 Phila. 336. A stranger to a decree entered by the or- 
 phans' court specifically executing a contract of decedents, has no standing to 
 ask to have the decree rescinded. 
 
 VII. Practice. 
 
 Act of 1834— Decedent's Estate— Parties.— Shisler's Est., 1887, Leg. 
 Int. 229. To a petition under the act of 1834 to compel performance of de- 
 cedent's contract for the sale of lands, the heirs and devisees are necessary 
 parties. 
 
 BUI, Reciuireinents of — Davidson u. Barclay, 1869, 13 S. 406. A bill 
 for specific performance must fully set out its object in order to make the 
 decree available. 
 
 Conditional Verdict— Land Included. — Kribbs v. Downing, 1855, 1 C. 
 399. The condition in a verdict to enforce specific performance may not 
 concern land of the defendant not in dispute. 
 
 lb.— In Ejectment.— Todd v. Pfoutz, ISOl, 3 Y. 177. In ejectment to 
 enforce specific performance of articles of agreement for the sale of land, the 
 court will do justice by means of a conditional verdict. The English author- 
 ities are not binding here on account of the rapid advance here of the price 
 of real estate. 
 
 Conditional Verdict— Joint Purchasers — Real Purchaser.— Crow ;■. 
 Crow, 1857, 5 C. 216. Although articles of purchase show two to be jointly 
 interested, yet if ou the trial the jury find that one is the real purchaser, a 
 conditional verdict specifically enforcing the contract in favor of that one 
 alone is proper. 
 
 Decedents' Estates — Bond and Mortgage.— Corkin v. Blake, D. C. 
 1860. 17 Leg. Int. 20, S. C. 4 Phila. 10. A bill inequity will lie against au 
 administrator (husband of the decedent) to specifically enforce an agreement 
 made between complainant and decedent that the latter should execute a 
 bond and mortgage to secure the unpaid purchase money due on land con- 
 A eyed by the complainant to the decedent. 
 
 Ih.— Parol Contract— Proof —Sage v. McGuire, 1842, 4 W. & S. 228. To 
 enforce a parol contract for the sale of land against the heirs of the vendor, 
 it is necessary to clearly prove the terms of the contract and also that pos- 
 session was taken in pursuance thereof during the life of the vendor. 
 
 lb.— lb.— Record— Notice.— McKee v. McKee, 1850, 2 H. 231. In an 
 action to enforce specific performance of a parol contract by the decedent for 
 the sale of his lands, the record must show that notice was given to the heirs 
 of the decedent to appear in court on a day certain and answer the petition. 
 
510 SPECIFIC PEB-FOEMANCB. 
 
 Defence— Parol Agreement.— Eaffensberger v. CuUison, 1857, 4 C. 426. 
 A parol agreement whicli would be insuf6cient as a ground to compel spe- 
 cific performance, may, nevertheless, be a good defence against it. 
 
 lb. — Failure of Consideration.— Corson u. Mulvany, 1865, 13 Wr. 88. 
 It is no defense to specific performance tbat the defendant may lose his price 
 for the land unless he is given better security than he contracted for, there 
 being no change in the circumstances and there having been no fraud, mis- 
 take or undue advantage. 
 
 Enforcing Decree— Notice.— Fennell v. Groodman, C. P. 1875, 1 W. N. 
 I C. 469. It is not necessary to its enforcement that a defendant should have 
 notice of the entering of a decree for specific performance. 
 
 Evidence— Receipt for Part of Purchase-Money.— Soles v. Hickman, 
 1852, 8 H. 180. A short receipt for part of the purchase money of land sold, 
 defining the land, but not setting forth terms of sale, etc., is not sufficient 
 proof of the contract upon vrhich to decree specific performance. 
 
 lb.— Value of Land.— Dauchy v. Pond, 1839, 9 W. 49. In an action to 
 compel specific performance of a, contract for the sale of laud, evidence of the 
 value of the land is admissible. 
 
 Money in Court — ^Notice. — Gerstle v. Eeiss, C. P. Luzerne, 1884, 13 
 Luz. L. Eeg. 56. Where a plaintiff vpho has asked for specific performance 
 has been ordered to pay the money into court, it will not be paid out to de- 
 fendant without notice to him. 
 
 Notice.— Fennell v. Goodman, C. P. 1875, 1 "W. N. C. 469. It is not 
 necessary to its enforcement that a defendant should have notice of the en- 
 tering of a decree for specific performance. 
 
 lb.— Decedent's Contract— Parties.— Sutter v. Ling, 1854, 1 C. 466. 
 The orphans' court will decree specific performance of a decedent's contract 
 to sell land, without notice to the heirs. 
 
 lb.— Parties Entitled to.— Walsh's Est., 1886, 4 Kulp, 178. Where a 
 vendee applies for the specific performance of a contract for the saje of land, 
 the widow and heirs are entitled to notice and so is the purchaser from the 
 vendee. 
 
 Parties.— Alexander's Ap., 1887, 20 W. N. C. 284. D. agreed to seU X. 
 a tract of laud reserving certain mining privileges, D. received a part of the 
 purchase money and gave a receipt stating that the money had been paid by 
 X. 's sister and that X. was to execute a bond and mortgage to her for the 
 amount advanced. D. paid the interest on this amount for some time. 
 The heirs of X. filed a bill for specific performance. Held the sister should 
 have been inade a party and the complaintants were not entitled to perform- 
 ances until "the above-mentioned bond and mortgage were executed. 
 
 Petition— Averment. — Chess' Ap., 1864, 4 Barr, 52. A petition pray- 
 ing for a decree of specific performance of a contract for the purchase of 
 land, should state either that the petitioner has performed the agreement 
 on his part, or that he is willing and ready to perform it, but an omission 
 to make such an allegation is a defect in form merely and may be amended. 
 
 Bescission. — Boyce v. M'CuUough, 1842, 3 W. & S. 429. A parol rescis- 
 sion of a written contract for the purchase of land is a good defence to an 
 action to enforce specific performance thereof. 
 
 Surveyor— Particularity.— Herdic'sAp., 1863, 8 S. 211. In a suit for 
 specific performance of a sale of land, the court may appoint a surveyor 
 where the contract wants particularity. 
 
 VIII. Relief. 
 
 Damages — Injury Pending Suit.— Head v. Meloney, 1 Amer. 103.; 
 Pending proceedings on a bill for specific performance, the property in liti-' 
 
SPECIFIC PEEFOBMANCE. . 511 
 
 gation was deteriorated by the defendant. Equity in such case will not 
 require the plaintiff to bring a subsequent action, at law, but will do full 
 justice by decreeing a recovery in damages. 
 
 Compensation.— Shafer I). Shafer, 1885, 42. Leg^Jnt. 522. Compensation 
 may be decreed in place of specilic performance when complainant is en- 
 titled to the latter, but such relief is impossible or impracticable ; but not 
 when the case of the complainant is not made out. 
 
 Parol Contract— Expenditures.— Shafer's Ap'., 1885, 14 Out. 382. 
 Where a suit for specific performance of an oral sale of land fails for want 
 of evidence, the court will not make a money award to compensate him for 
 expenditures made on the faith of the supposed contract, but made in 
 respect of a collateral matter. 
 
 IX. Remedy at La-w. 
 
 Agreement— Earnest Money.— Weiser's Ap., 1872, 22 S. 351, S. C. 20 
 Pitts. L. J. 53. Complainant had entered into articles with an agent, 
 whose authority to ^ell was not clear, for the purchase of land and paid $100 
 thereon, but had not taken possession. Held there was no equity which 
 would move a chancellor, and the vendee must proceed at law. 
 
 Assignee and Mortgagee— Agreement Between. — Smaltz's Ap., 
 1883, 3 Out, 310. . . An agreement between a mortgagee and his assignee, that 
 if the latter has to buy in the land for a price less than the mortgage, the 
 former will purchase the property from him at a price that will save him 
 harmless, will not be specifically enforced ; an action for damages will 
 afford ample relief. 
 
 Ejectment. — Church v. Euland, 1870, 14 S. 432. Ejectment may still 
 be employed as a remedy to compel specific performance of a contract for 
 the sale of land, or to enforce a trust in regard to it. 
 
 Payment of Money.— Dech's Ap., 1868, 7 S. 467. Where there is 
 nothing in the circumstances of a case requiring the aid of chancery to 
 give effect to a contract, and the bill for specific performance is simply to 
 enforce payment of the purchase money, it will be dismissed. 
 
 lb. — Kanffman's Ap., 1867, 5 S. 383. The price of land contracted to be 
 sold, was to depend on a certain contingency. The contingency having hap- 
 pened, the vendor bought a bill in equity for specific performance. Held 
 the agreement being for the payment of money, only the complainant had 
 an adequate remedy at law. 
 
 XI. Restraint of Trade. 
 
 Agency.— Ewing v. Wilcox Sewing Co., C. P. 1880, 9 W. N. C, 272. An 
 appointment of an agent with the exclusive agency for a certain district is 
 such an agreement in restraint of trade as equity will enforce by injunction. 
 
 Matter of Grace.— Keeler v. Taylor, 1866, 3 S. 467. Equity vrill not 
 specifically enforce a contract in restraint of trade where the terms are at 
 all hard or complex ; such decrees are of grace. 
 
 Physician.— Bett's Ap., 1881, lO W. N. C. 431. Equity will specifically 
 enforce a contract by one physician with another not to practice within cer- 
 tain limits, 
 
 Reasonable Restraint — Injunction. — Echhart v. Gerlach, C. P. 1878, 
 35 Leg. Int. 314, S. C. 12 Phila. 530. Equity will specifically enforce an 
 agreement for a reasonable restraint of trade by enjoining the defendant 
 tcom breaking it. . ij^ 
 
612 SPECIFIC PEBFOEMANCE — STATUTE OF FRAUDS. 
 
 XII. Wife not Signing:. 
 
 Decree Refused. — Sailer v. Eiesz, 1873, 1 Fost. 167. Specific perform- 
 ance will not be decreed against a husband whose wife refuses to join. 
 
 lb.— Burke v. Serrill, 1876, 30 S. 413, S. C. 2 W. N. C. 49. Where a wife 
 refuses to sign a deed which her husband has covenanted to give, equity 
 will not allow such damages to be given against the husband as will be a 
 virtual coercion as regards her. Only compensation may be recovered. 
 
 lb. — Clark V. Seiver, 1838, 7 Watts, 107. Equity will not specifically en- 
 force a contract;^ for the sale of land in which a wife refuses to join. 
 
 lb. — Burk's Ap., 1874, 25 S. 141. A vendee is entitled to specific per- 
 formance as far as the vendor can give it, and if encumbrances have been 
 discovered, the court will decree an abatement in the price ; but the rule 
 does not apply where the vendor's wife refuses to sign the deed, and the 
 vendee must either proceed against the husband for damages or take the 
 husband's deed alone for the full price. 
 
 lb.— Eiesz's Ap., 1873, 23 S. 485, S. C. 5 L. Gaz. 173, 5 Leg. Op. 41. Spe- 
 cific performance of a contract for the sale of land will not be decreed where 
 the wife of the vendor refuses to join in the deed. The vendee must pur- 
 sue his legal remedy for damages. 
 
 lb. — Hanna v. Phillips, 1855, 1 6r. 253. Specific performance will not be 
 decreed where the wife of the vendor did not sign the articles and is dissat- 
 isfied with the contract. 
 
 SPEPfUXHR.IF'T TRUSTS. 
 
 [See Teitsts and Teustebs I B (h.)] 
 
 STATUTE OF ELIZABETH. 
 
 [See Charity IB.] 
 
 STATUTE OK FRAUDS. 
 
 [See also MUTUALITY.] 
 
 I. In General. 
 II. Parol Contract. 
 III. Paet Performance. 
 
 I. In General. 
 
 Construction of Statute— Fraud.— Thomson v. White, 1789, 1 D. 424. 
 The equitable principles which will not allow the strict letter of the statute 
 of frauds to be enforced where such a construction would itself Work fraud, 
 are in force in Pennsylvania. 
 
STATUTE OF FRAUDS. 513 
 
 Contract, Entire, in Writing.— Pattont). Develin, C. P. 1856, 13 Leg. Int. 
 124, S. C. 2 Phila. 103. The whole of a contract for the sale of land must 
 appear in writing or it will not be specifically enforced. 
 
 Equitable Estate.— Shorfstall v. Adams, 1858, 2 Gr. 209. Equitable es- 
 tates are within the statute of frauds. 
 
 lb. — Creation of.— Murphy v. Hubert, 1847, 7 Barr, 420. The creation 
 of an equitable estate in Pennsylvania is not within the statute of frauds, 
 but its conveyance must be by writing. 
 
 lb. — Judgment— Lien. — Lloyd's Ap., 1876, 11 N. 485. An equitable es- 
 tate not enforceable under the statute of frauds is, nevertheless, bound by a 
 judgment recovered against the owner, and the lien attaches to the legal es- 
 tate upon a deed being given, and is prior to a judgment subsequently en- 
 tered up on a bond given for the purchase money. 
 
 Equitable Interest. — Smith v. Spencer, 1876, 2W. N. C. 515. An equit- 
 able interest in land is within the statute of frauds. 
 
 lb. — Meason v. Kaiue, 1869, 13 S. 335. An equitable interest is an inter- 
 est in land within the words and spirit of the statute of frauds. 
 
 Equitable .Use. — Hogg v. Wilkins, 1854, 1 Gr. 67. An equitable use in 
 land is within the provisions of the statute of frauds. 
 
 Estoppel — Title. — Miranville v. Silverthorn, 1 864, 12 Wr. 147. One can- 
 not be estopped from asserting his title to land by a contract void by the 
 statute of frauds. 
 
 Memorandum— Principal and Agent — Proof. — Parrish v. Koons, 
 1844, 1 Pars. 78. Specific performance of a contract for the sale of land will 
 not be decreed where the only writing in the case is vague and uncertain, 
 and was signed by an agent for one of the parties whose authority was not 
 in writing. The plain tiflf cannot in such a case rely on the defendant's answer 
 as satisfying the statute of frauds. 
 
 Mortgage, Not Within Statute.— Gross «. Reinhard, C. P. 1884, 14 W. 
 N. C 224. A mortgage is not a conveyance of land within the statute of 
 frauds. 
 
 Pleading— Title— Statute.— Smith r. Spencer, 1876, 2 "W. N. C. 515. A 
 complainant may rely on the bar of the statute of frauds in the assertion of 
 a title. 
 
 Vendor, Signing.— Smith's Ap., 1871, 19 S. 474, S. C. 19 Pitts. L. J. 121. 
 In a suit by the vendee for specific performance for the sale ol land it is suf- 
 ficient that the contract is signed by the vendor. 
 
 II. Parol Contract. 
 
 [See also III, infra.] 
 
 Damages.— Wilson v. Clarke, 1841, 1 W. & S. 554. A vendor under a 
 parol contract who has entirely performed his part cannot have specific per- 
 formance by suing for the purchase money, but he may recover damages. 
 
 Partnership to Trade in Land.— Meason v. Kaine, 1869, 13 S. 335, S. C. 
 17 Pitts. L. J. 35. Equity would not specifically enforce a verbal contract 
 to form a partnership to trade in land. 
 
 Possession. — Moss V. Culver, 1870, 14 S. 414. There is no difference be- 
 tween a parol sale or exchange of lauds as to the rpquisites to take them out 
 of the statute of frauds, except, in the latter case, if it be proved that one 
 party took possession, proof of possession by the other party does not have to 
 be so clear. 
 
 33— EQUITY. 
 
514 STATUTE OF FRAUDS. 
 
 Preliminary Injunction.— Whetham v. Clyde, c. P. 1870, 1 Camp, as, 
 S. C. 2 Leg. Gaz. 109, 1 Lan. Bar. No. 46. Equity will not protect by a pre- 
 liminary decree, one who claims title to land under a parol agreement, it 
 not being clearly shown that part of the purchase money was paid or that 
 there was fraud. 
 
 Proof. — Woods V. Farmare, 1840, 10 W. 195. For the court to specilically 
 ' enforce a parol contract for the sale of land, the contract must be clearly 
 proved, the subject matter thereof clearly identified and possession taken 
 thereunder. 
 
 lb.— Lord's Ap., 1884, 9 Out. 451, S. C. 32 Pitts. L. J. 418. Equity will 
 not specifically enforce an alleged parol contract for the sale of land unless 
 all .the essentials of the contract and the equities of the complainant bo so 
 clearly proved as to admit of no doubt. 
 
 lb. — Eankin v. Simpson, 1852, 7 H. 471. To enforce specifically a parol 
 contract for the sale of land, the contract must be clearly proved. 
 
 lb.— Perkins v. Farrell, C. P. 1881, 2 Sch. L. E. 240. Equity will decree 
 specific performance of a verbal contract if it be clearly proved. 
 
 Trust— Father and Son.— Rhodes v. Frick, 1837, 6 W. 315 Where a 
 son holding lands under a parol agreement with his father and himself, sells 
 the same, his father not objecting, the vendee's title is not affected by the 
 statute of frauds. 
 
 lb.— Parol Declaration of.— Peebles v. Reading, 1822, 8 S. & R. 484. 
 Act March 21, 1782, for the prevention of frauds and perjuries, does not pre 
 vent a parol declaration of trust. This omission cannot be imputed to acci- 
 dent. 
 
 III. Part Performance. 
 
 Commencement of.— Eckert v. Eckert, 1832, 3 P. & W. 332. Part per- 
 formance to be effective to take a parol sale of land out of the statute of 
 frauds, must commence after the contract has been made. 
 
 Effect of. — Miller v. Hoover, 1829, 2 E. 53. Part performance will take 
 a parol sale of land out of the statute of frauds as against the vendee. 
 
 lb.— Ebert v. Wood, 1807, 1 Bin. 216. The equitable principle of decree- 
 ing specific performance of a parol sale of land where there has been part 
 performance by the parties, has been long considered the law of Pennsyl- 
 vania. 
 
 Exchange. — Johnston v. Johnston, 1837, 6 Watts, 370. Equity will de- 
 cree specific performance of a parol exchange of land where there has been 
 part performance. 
 
 Gift. — Stewart v. Stewart, 1834, 3 W. 253. Part performance is as essen- 
 tial to the validity of a parol gift of land to a son, as to a transaction with 
 a stranger. 
 
 lb.— Improvements. — Young v. Glendenning, 1837, 6 W. 509. A parol 
 gift followed by valuable improvements will be specifically enforced, al- 
 though the rents and profits may have compensated for the improvements. 
 
 Payment of Purchase Money.— McKee v. Phillips, 1839, 9 W. 85. 
 Payment of purchase money or any other act capable of direct compensation 
 is not such part performance as will induce the court to grant specific per- 
 formance. 
 
 lb. — Parkers. Wells, 1840, 6 Wh. 153. Mere payment of the purchase 
 money will not take a parol contract for the sale of laud out of the statute 
 of frauds. 
 
 Possession.— Haslet v. Haslet, 1837, 6 W. 464. Exclusive possession is 
 an essential of efficacious part performance. 
 
STATUTE OF FRAUDS. 515 
 
 lb. — Jones V. Peterman, 1817, 3 S. & K. 543. The continuance in pos- 
 session after a parol contract for the sale of land by the vendee, is not part 
 performance. 
 
 lb.— Allen's Est., 1841, 1 W. & S. 383. Delivery of possession of part of 
 the land sold is not such part performance as will talte a parol sale out of 
 the statute of frauds. 
 
 lb.— Waterman v. Guthrie, 1857, 5 C. 495. Possession is essential to part 
 performance, but is not of itself sufficient. 
 
 lb.— Detrick v. Sharrar, 1880, 14 N. 521, 10 W. N. C. 287. Part per- 
 formance, to take a parol sale of land out of the statute of frauds, must con- 
 sist of actual notorious and exclusive possession taken in pursuance of the 
 contract, and improvements such as cannot be compensated in damages. 
 
 lb. — Wible V. Wible, 1856, 1 Gr. 406. Exclusive possession is an essen- 
 tial to one claiming land under a parol contract. 
 
 lb.— Bassler v. Nisly; 1816, 2 S. & R. 352. Possession alone will not take 
 a case out of the statute of frauds. 
 
 lb. — Allison V. Burns, 1884, 11 Out. 50. To take a parol gift out of the 
 statute of frauds, the evidence must show that open and notorious posses- 
 sion has been taken, and that such improvements have been made on the 
 faith of the gift as cannot well be compensated by damages. 
 
 lb. — Blakeslee v. Elakeslee, 1853, 10 H. 237. None but exclusive posses- 
 sion by the claimant is sufficient part performance to entitle him to a de- 
 cree of specific performance. 
 
 lb. — Chadwick v. Felt, 1860, H C. 305. Possession to be part perform- 
 ance of a parol contract must be taken in performance of the contract and 
 must be*exclusive. 
 
 lb.— Peififer v. Landis, 1831, 1 W. 392. Without delivery of possession 
 there can be no such part performance of a parol contract for the sale of 
 land as will take it out of the statute of frauds. 
 
 lb. — Brawdy v. Brawdy, 1847, 7 Barr, 157. Where after a parol sale of 
 land a tenant, under instructions from the vendor, attorned and made a 
 new agreement with the vendee, but under instructions from the latter 
 paid the rent to the vendee, and then quit possession, giving notice to the 
 vendee ; and the vendor entered and remained in possession, the case was 
 held to be within the statute of frauds, although in all respects, other than 
 taking possession, there had not been suflScient part performance. 
 
 lb. — Reynolds v. Hewitt, 1856, 3 C. 176. To give an oral exchange of 
 land validity, there must be possession taken thereunder, but the court 
 is more lenient as to the time of possession than in cases of sales. 
 
 lb. — McFarland v. Hall, 1834, 3 W. 37. There can be no efficacious part 
 performance of a parol contract for the sale of land without delivery of pos- 
 session thereunder. 
 
 lb. — Pugh V. Good, 1841, 3 W. & S. 56. Where possession of land has 
 been delivered in pursuance of a parol contract therefor, the vendee may 
 claim specific performance. 
 
 lb— Jamison v. Dimock, 1880, 14 N. 52, 12 Lan. Bar. 86, 28 Pitts. L. J. 
 54. Full payment of purchase money and undisputed possession taken may 
 constitute sufficient part performance without improvements. 
 
 lb. — For Thirty Years. — Sower v. Weaver, 1877, 3 N. 262. Possession 
 for thirty years, together with valuable improvements, held to take a parol 
 gift of land from a father to his son-in-law out of the statute of frauds. 
 
 lb. — Improvements. — Ballard v. Ward, 1879, 11 Lan. Bar, 61. To take 
 a parol sale of land out of the statute of frauds, there must be both posses- 
 sion and improvements incapable of pecuniary compensation. 
 
 lb.— lb.— Van Loon v. Davenport, 1875, 1 W. IST. C. 320. Where the 
 consideration for an oral agreement for the sale of lands, is that the vendee 
 
516 STATUTE ol' FRAUDS. 
 
 discharge the liens on the same and pay the slight balance in cash, payment 
 of the liens but not of the balance, and possession taken without improve- 
 ments is not sufficient part performance to take the case out of the statute 
 of frauds. 
 
 lb.— lb.— Milliken v. Dravo, 1870, 17 S. 230. To take a parol contract 
 for a sale of land out of the statute of frauds it is necessary that it be clearly 
 proved; that there be part payment of the purchase money, and delivery of 
 possession in pursuance of the contract followed by valuable improvements. 
 
 lb.— lb.— Wack V. Sorber, 1837, 2 Wh. 387. To take a parol gift of land 
 out of the statute of frauds it is necessary that the improvements should be 
 of a substantial nature and of more value than the use of the land by the 
 grantee. 
 
 ■ lb.— lb.— Mutuality.— Moyer's Ap., 1884, 9 Out. 4.32, S. C. 32 Pitts. L. 
 J. 116. A parol contract for the conveyance of land will not be enforced 
 unless mutually binding, and unless there has been possession taken to- 
 gether with such improvements made as cannot be compensated. 
 
 lb. — lb. — Proof. — Toe V. Toe, 1850, 3Gr. 74. Before equity will specific- 
 ally enforce an oral contract for the sale of land, it must be proved that there 
 ■was a binding contract on both parties, what its terms were, that the vendee 
 took exclusive possession thereunder and made valuable improvements 
 which cannot be compensated in money. 
 
 lb.— lb.— lb.— Milliken v. Dravo, 1870, 17 S. 230. To take a parol con- 
 tract for a sale of land out of the statute of frauds, it is necessary that it 
 be clearly proved; that there be part payment of the purchase money and 
 delivery of possession in pursuance ol the contract followed by valuable 
 improvements. ' 
 
 lb.— Payment of Purchase Money.— Smith v. Patton, 1814, l*S. & R. 
 80. Part payment of the purchase money for land followed by a survey 
 and possession taken and improvements made, will give a title though the 
 contract be an oral one. 
 
 lb.— Proof —Sage V. Maguire, 1842, 4 W. &S. 228. To enforce a parol 
 contract for the sale of land against the heirs of the vendor, it is necessary 
 to clearly prove the terms of the contract and also that possession was taken 
 in pursuance thereof during the life of the vendor. 
 
 lb.— lb.— Farley!'. Stokes, 1859, 1 Pars. 422, S. C. Phila. 30, 7 Leg. Int. 
 23. Equity will decree specific performance of.a parol contract within the 
 statute of frauds, ^vhe]e it is clearly proved, and possession has been taken 
 under it followed by improvements. 
 
 lb.— Tenants in Common.— Galbreath v. Galbreath, 1836, 5 W. 146. A 
 parol sale of his interest by one tenant in common to his co-tenant will only 
 be supported when followed by such part performance as would support a 
 parol sale to a stranger, the possession must be taken under the contract. 
 
 lb.— Proof.— Lund V. Brown, 1884, 14 W. K. C. 489, 32 Pitts. L. J. 14. 
 One claiming title under a parol contract of sale of land and performance 
 thereof, must prove both definitely and unequivocally. 
 
 lb.— lb.— Hart V. Carrol, 1877, 4 N. 508, S. C. 5 AV. N. C. 376. An oral 
 contract for the sale of land will be enforced only when the contract and its 
 terms are clearly proved, and there has been such performance as could not 
 be compensated in damages. 
 
 lb.— lb.— Overmeyer v. Koerner, 1875, 32 S. 517, S. C. 2 W. N. C. 6. 
 Specific performance of a parol purchase of land will only be decreed where 
 the terms are clearly proved and there has been such part performance as 
 tannot be reasonably compensated. 
 
 Purchase Money.— Eberly ?;. Lehman, 1882, 4 Out. 542, S. C. 13 W. N. C. 
 395, 30 Pitts. 273. Part performance may be sufficient to take a case out 
 of the statute of frauds although no part of the purchase money has been 
 
STATUTE OF FKAUDS- STATUTE OF LIMITATIONS. 517 
 
 paid, where the agreement was that the vendee should give his note when 
 the deed was tendered to him, which was never done. 
 
 Trust.— Eichart v. Grayson, C. P. 1878, G W. N. C. 298. Where one buys 
 land for the joint benefit of himself and others, at the verbal request of the 
 latter, and, after taking title and paying the purchase money, afterwards 
 receives from the other money to be applied toward the expense of keeping 
 up the premises, and, therefore, makes a deed of an undivided half thereof, 
 the statute of frauds is satisfied and he can maintain a bill against the 
 other for an account in order to enforce contribation for the purchase. 
 
 STATUTE OF LIMITATIONS. 
 
 [See Adjustment IV, VII B (a); Laches; Mahketablb Title; 
 Practice and Pleading, VII; Trusts and Trustees.] 
 
 Assignment for Creditors.— Coate's Est., 1851, 2 Pans. 258. After .1 
 lapse of twenty-one years the presumption arises that as between an as- 
 signee for creditors and the creditors the debts have been paid and the trust 
 executed. 
 
 lb. — Hecker's Ap., 1855, 12 H. 482. An assignment for creditors is such 
 a direct and continuing trust as is not affected by the statute of limitations. 
 
 ■Attorney and Client. — Webster d. Newbold, 1862, 5 Wr. 482. A receipt 
 of fees by one attorney does not render him such a trustee for his colleague 
 as to take the case out of the statute of limitations. 
 
 lb.— McDowell V. Potter, 1848, 8 Barr, 189. The statute of limitations 
 runs in favor of an attorney, who has collected money, from the time that 
 his client knows that he has collected it. 
 
 lb. — Campbell v. Bogg, 1865, 12 Wr. 524. An attorney who collects 
 money for his client is not a trustee for him, and after six years an action 
 against him cannot be brought. 
 
 lb. — Fleming i:. Culbert, 1864, 10 Wr. 498. An investment of moneys by 
 an attorney in fact, instead of paying them over to his principal, is a breach 
 of duty for which an action will lie and, therefore, not a trust within the 
 exception to the statute of limitations. 
 
 Burden of Proof.— Lingenfelter V. Richey, 1869, 12 S. 123. To establish 
 a tmst for the grantor in a conveyance absolute on its face, the burden is 
 upon those setting it up, and if the conveyance is older than twenty-one 
 years they must show such act of ownership as would preventits extinguish- 
 ment by the .statute of limitations. 
 
 ■Cestui Que Trust in Possession.— Clark v. Trindie, 1866, 2 S. 492. 
 Act April 22, 1856, S. 6, does not apply where a cestui que trust is in pos- 
 session. 
 
 lb.— Douglass V. Lucas, 1869, 13 S. 9. The act of April 22, 1856, requir- 
 ing resulting trusts not induced by a writing, to be enforced within five 
 years, is not properly a statute of limitations, and is not tolled by a bare 
 entry. There is, however, great reason and justice for holding that if the 
 trustee permits the cestui que trust to occupy and enjoy the land as owner, 
 he shall not be permitted to claim the benefit of the act. 
 
 lb.— Williard v. Williard, 1867, 6 S. 119. Prior to act April 22, 1856, 
 trusts could be proved orally and declarations of the alleged trustee weie 
 evidence, and S. 6 of that act does not apply where the cestui que trust is in 
 possession. 
 
 lb.— Smith V. Tome, 1871, 18 S. 158. The limitation within which a 
 pairol trust must be enforced does not apply to a case where the cestui que trust 
 is. in possession. 
 
518 STATUTE OF LIMITATIONS. 
 
 Oonfidential Relations — Evidence. — Susquehanna Coal Co. v. Quick, 
 1869, 11 S. 328. For the statute of limitation to run between those in direct 
 confidential relations, as trustee and cestui que trust, landlord and tenant or 
 mortgagor and mortgagee, the evidence to show a denial of the relation will 
 have to be stronger than in those cases where the relation is less direct and 
 confidential, e. g. co-tenant. 
 
 Decedents' Estates— Debts— Resulting Trust. -^ Best o. Campbell, 
 1869, 12 S. 476. The debtor of an estate conveyed land to the vridow in fee, 
 in payment of his indebtedness. The son's only claim lay in setting up a 
 resulting trust, and in this he was barred by the act of April 22, 1856, limit- 
 ing such action to five years. 
 
 lb.— Lien.— Oliver's Ap., 1882, 5 Out. 299, S. C. 40 Leg. Int. 14. A debt 
 which is a trust does not remain a lien on the decedent's real estate longer 
 than five years unless revived in the statutory way, although it will not be 
 barred from coming in on the personalty. 
 
 Debtor and Creditor— Collateral. — Waterman v. Brown, 18.58, 7 C. 161. 
 A debtor's equity to have collateral returned to him upon payment of the 
 debt is barred six years after the debt falls due. 
 
 lb.— Concealment.— Sankey v. McElevey, 1883, 8 Out. 265. The rela- 
 tion of debtor and creditor is not one of confidence, so that the mere conceal- 
 ment of the fact of the debt by the debtor will toll the running of the statute 
 of limitations. 
 
 lb. — Confidential Relation. — Stewart v. McBumey, 1886, 43 Leg. Int. 
 272. A debtor does not stand in such a confidential relation to his creditor 
 that he is bound to tell him of the debt, and unless there is actual misrep- 
 resentation there is no such fraud as will stop the running of the statute of 
 limitations. 
 
 lb.— Silence of Debtor.— Sankey «. McElevey. 1883, 80ut. 265. The re- 
 lation of debtor and creditor is not one of confidence, so that the mere con- 
 cealment of the fact of the debt by the debtor will toll the running of the 
 statute of limitations. 
 
 lb. — Stewart v. McBurney, 1886, 43 Leg. Int. 272. A debtor does not 
 stand in such a confidential relation to his creditor that he is bound to tell 
 him of the debt, and unless there is actual misrepresentation there is no such 
 fraud as will stop the running of the statute of limitations. 
 
 Defence. — Hamilton v. Hamilton, 1851, 6 H 20. The statute of limita- 
 tions is a valid defence in equity. 
 
 lb.— Todd's Ap., 1855, 12 H. 429. The statute of limitations is a defence 
 in equity to a claim which was supposed to be protected by a bond, but 
 which proves to be invalid. 
 
 Ectuity to Collateral. — Waterman V. Brown, 1858, 7 C. 161. A debtor's 
 equity to have collateral returned to him upon payment of the debt is barred 
 six years after the debt falls due. 
 
 Estoppel— Debtor not Objecting to Account.— Verrier v. Guillors, 
 1881, 1 Out. 63. The mere fact that a debtor receives an account without 
 making any objection, does not estop him from afterwards setting up the 
 statute of limitations. 
 
 Executor —Ouster— Fraud.— Marsden's Ap., 1883, 1 3 W. N. C. 4 1 .1 The 
 statute of limitations does not run in favor of those who have ousted an ex- 
 ecutor by producing a fraudulent will, and the executor when reinstated may 
 recover funds which have passed into the hands of the former. 
 
 Guardian and Ward.— Bull v. Towson, 1842, 4 W. & S. 557. When a 
 ward comes of age (or if a female marries) the fiduciary relations of the 
 guardian ceases. If he receives money after, then he does so as a mere agent, 
 and a claim against him for it is barred. 
 
 . Husband and Wife— Trust.— Bergey's Ap., 1869, 10 S. 408. A husband 
 received a wife's money in her presence. Held that he received it as trustee, 
 
STATUTE OP LIMITATIONS. 519 
 
 and that he could not be compelled by creditors to plead the statute of lim- 
 itations. 
 
 Joint Debtors.— Wheatfield Twp. v. Brush Valley Twp., 1855, 1 C. 112. 
 One of two joint debtors is not entitled to contribution on paying a debt 
 barred by the statute of limitation. 
 
 Mortgage.— Michener v. Micbener, 1886, 17 W. N. C. 266. Where neither 
 the principal nor interest of a mortgage has been demanded for twenty years 
 the statute of limitations is a bar. 
 
 lb.— Defence.— Green v. Fricker, 1844, 7 "W. & S. 171. A mortgage due 
 for more than twenty years forms no defence to an action to recover the pur- 
 chase money of land covered by it. 
 
 lb.— Note.— McKee's Est., O. G. Allegheny, 1883, 30 Pitts. L. J. 393. 
 Although a note secured by a mortgage is barred yet the debt as evidenced 
 by the mortgage may be collected. 
 
 Mortgagor, Admissions of— Terre Tenant.— Frear v. Drenker, 1848, 8 
 Barr, 5'iO. The admissions of the mortgagor that the debt is unpaid will 
 avail against the terre tenants, there being no evidence that they were at the 
 time parties in interest. 
 
 Parol Sale.— Irwin v. Cooper, 1879, 11 N. 998. The statute of limita- 
 tions is not so inconsistent with an equitable defence as to deprive a party 
 who relies on a parol sale from setting it up. 
 
 Pleading— Act of April 22, 1856.— Webster v. Webster, 1866, 3 S. 161. 
 Act April 22, 1856, S. C, does not debar one in possession from setting up 
 an equity. 
 
 lb.— Masters' Report.— Everhart's Ap., 1884, 10 Out. 349, S. C. 42 Leg. 
 Int. 227. A defendant in equity will not be allowed to set up the statute of 
 limitations after the case has been referred to a master and the latter has 
 filed his report. 
 
 Practice — Resulting Trust — Amendment. — Miller v. Bealer, 1882, 4 
 Out. 583. Where a suit is brought to enforce a resulting trust as to one lot 
 within five years of the discovery of the fraud, it cannot be so amended, 
 after the five years has run, as to include another lot. 
 
 Principal and Agent. — Guadolfo ». Hood, 1864, 1 Pears. 269. An agent 
 who compromises a claim against his principal and keeps the balance com- 
 mits such a fraud as is cognizable in equity and the statute of limitations 
 runs only from its discovery. 
 
 Running of— Suit at Law — Bill in Equity. — Bickel's Ap., 1878, 5 N. 
 204, S. C. 6 W. N. C. 225. A bill was brought in equity to settle a claim 
 for which a suit was pending and the suit was thereupon discontinued. 
 Held that the running of the statute of limitations was to be calculated up 
 to the filing of the bill without regard to the former action. 
 
 lb.— lb.— Set-off.— Gilmoreu. Reed, 1874, 26 S. 462, S. C. Lan. Bar. 174, 
 1 W. N. C. 173, 7 Leg. Gaz. 13. The commencement of an action does not 
 stop the running of the statute of limitations against a set^oflF ; it is not 
 estopped until the plea of set-off is pleaded. 
 
 Set-off. — Taylor v. Gould, 1868, 7 S. 152. A claim on its face barred by 
 the statute of limitation cannot be set off without proof to take it out of the 
 statute. 
 
 Specialty Debts. — Breneman's Ap., 1888, 6 Crum. 641. All debts by 
 specialty, unclaimed and unrecognized for th irty years, are, in the absence 
 of explanatory evidence, presumed to have been paid. ■, 
 
 Transfer of Stock.— Halsey v. Tate, 1866, 2 S. 311. To assert after 
 sixty years that a transfer of stock was in trust, is a stale claim. 
 
 Trust— Application of Statute.— Millish's Est., 1850, 1 Pars. 482. Al- 
 though the statutes of limitation do not apply in equity to those direct trusts 
 
620 STATUTE OF LIMITATIONS. 
 
 exclusively cognizable there, yet it does not follow that such a trust will be 
 enforced after a lapse of time, for equity turns away from stale claims. 
 
 lb.— lb.— Wallace v. Duflaeld, 1816, S. & E. 521. Trusts arenot strictly 
 ■within the act of limitations, but equity has wisely adopted the principle of 
 the act. Nevertheless, in equity, as well as at law, it may be shown from 
 circumstances that the possession of the defendant ought not to be considered 
 as adverse. 'Under the circumstances of this case thirty-one years did not 
 bar the right of the cestui que trust. 
 
 lb.— lb.— Finney v. Cochran, 1841, 1 W. & S. 112. The word trust is ap- 
 plied to a great proportion of the money transactions in ordinary business, 
 but the trusts which are exceptions to the statute of limitations are those 
 technical and continuing ones which fall within the exclusive jurisdiction 
 of equity. 
 
 lb.— lb.— Steel V. Henry, 1840, 9 W. 523. Where a testator devises his 
 real estate to his executors and directs it to be sold and the proceeds applied 
 to the payment of his debts, he thereby creates a trust for the benefit of hi.'s 
 creditors and there is no limitation to the lien of their debts as regards the 
 real estate thus devised. 
 
 lb. — Oliver's Ap., 1882, 5 Out. 299. A debt, which is a trust, doe." not 
 remain a lien on the decedent's real estate longer than five years unless re- 
 vived in the statutory way, although it will not be barred from coming in 
 on the personalty. 
 
 lb. — lb. — Lyon v. Marclay, 1832, 1 Watts, 271. To exempt a trust from 
 the bar of the statute of limitations, it must be, first,- a direct trust ; sec- 
 ondly, of the kind belonging exclusively to the jurisdiction of a court of 
 equity ; and, thirdly, the question must arise between the trustee and the 
 cestui que trust. 
 
 lb. — lb- — Hemphill v. Monongahela Co., 1852, 7 H. 351. A direct and 
 express trust in chattel is not barred in six years unless the trustee has 
 given express notice that he intended to hold as beneficial owner. 
 
 lb.— lb —Miller v. Franciscus, 1861, 4 Wr. 335. Act April 22, 1856, S. 
 6 (P. L. 582), limiting actions to enforce resulting trusts, has no proviso as 
 to minors ; but the act of March 26, 1785, has and this exception is not re- 
 pealed by the later act. 
 
 lb. — lb. — Zacharias v. Zacharias, 1854, 11 H. 452. Trusts enforceable at 
 law by an action for money had and received, are barred by the statute of 
 limitation. 
 
 lb.— Non-User.— Kirk v. King, 1846, 3 Barr, 436. A deed to the "em- 
 ployers of a certain school" cannot carry a fee, the grantees are unincorpo- 
 rated ; it therefore raises a use in the grantor for the grantees, not for the 
 public generally. Nor is it such a charity as is not lost by non-user, there- 
 fore seven years of non-user held in this case to bar the trust. 
 
 lb-— Parol Beclaration of. — Norris v. Knox, 1853, 1 Crum. 56, S. C. 1 
 Rtts. L. J. 121. The court after thirty-four years declined to enforce a 
 parol declaration of trust where valuable improvements had been made, al- 
 though the property was still in the family of the trustee. 
 
 lb.— Presumption of Execution.— Drysdale's Ap., 1850, 2 H. 531. 
 After twenty-two years a trust for creditors and the balance for the grantor's 
 wife, is presumed to have been executed as to the former. 
 
 lb.— Resulting.— McMinch V. Trego, 1873, 23 S. 52. Act April 22, 
 1856, S. 6. bars one claiming a resulting trust, though he be in possession at 
 the issuing of the writ, if the limitation had run before he got possession. 
 
 lb.— Resulting from Fraud.— Maul v. Rider, 1868, 9 S. 167. Under act 
 April 22, 1856, limiting to five years, after a fraud is discovered, the en- 
 forcing of a trust resulting from the fraud, putting a deed on record is not 
 notice to one not bound to search for it. 
 
STATUTE OF- LIMITATIONS. 521 
 
 lb.— lb.— Strimpfler v. Roberta, 1852, 6 H. 283. A resulting trust rest- 
 ing in parol is not executed by the statute of uses, and will not be executed 
 by a chancellor after twenty-one years. 
 
 lb.— lb.— McCall V. Webb, 1878, 7 N. 150. Where a settlement right 
 had been sold to a person the deed containing the stipulation " provided 1. 
 the said grantor, am entitled to hold the said tract by my settlement," the 
 feet that one of his heirs bought in a good title to the premises, will nut 
 raise a resulting trust in favor of the other heirs, and in any event after 
 thirty-seven years they have no claim. 
 
 lb.— lb.— Cestui Que Trust's Control.— Brock u Savage, 1858, 7 C. 410. 
 A resulting trust is not barred after twenty-one years, if in the meantime 
 the cestui que trust has paid taxes and exercised acts of control. 
 
 lb.— lb.— Eviction.— McBarrou V. Glass, 1858, 6 C. 133. Prior to act 
 April 22, 1856, evidence of a resulting trust would not be received after a 
 lapse of twenty-one years. 
 
 lb.— lb.— Purchase by Heirs.— Eoy v. Townsend, 1875, 28 S. 329, S. C. 
 1 W. N. C. 293. An heir petitioned "the orphans' court to allow him to ap- 
 ply his share ot the estate and the shares of three other heirs of whom he 
 claimed to be attorney, to the purchase of the property. This was granted. 
 Sixteen years afterwards the heirs could not set up a trust, for it was not a 
 trust ex male/ado, but at best only a resulting trust and barred by the act 
 April 22, 1856. 
 
 lb.— lb.— Running of Statute.— HoUingshead's Ap., 1883, 7 Out. 158. 
 After the statute limiting the enforcement of resulting trusts to five years 
 begins to run, it will not be stopped by the birth of children. 
 
 lb.— lb.— Waiver of Fraud.— Evans' Ap., 1876, 31 S. 278, S. S. 3 W. 
 N. C. 36, aifg 1 W. N. C. 127. A resulting trust in personalty may be 
 barred by less than six year's laches, as where the cestui que trust, knowing 
 the facts, has by his conduct induced the belief that he waived the fraud. 
 
 lb. — Testamentary. — Agnew v. Fetterman, 1846, 4 Barr, 56. A testa- 
 mentary trust for the payment of d'ebts does not remove the bar of the stat- 
 ute of limitations, but if it be an express trust it prevents the running of 
 thef statute against debts due at the testator's death. 
 
 lb.— Vendor and Vendee.— Pipher v. Lodge, 1818, 4 S. & R. 310. \ 
 vendor of land before conveyance of the legal title, is a trustee for the ven- 
 dee, and the statute of limitations does not run. 
 
 lb.— Will— Revocation.— Arthurs v. Weisley, 1882, 3 Penny. 29. A di- 
 rection in a will to convey certain land to one who had furnished the money 
 for the purchase thereof, as would appear by the books of the testator, is 
 such a recognition of the trust as precludes the defence of the statute of 
 limitations, although the will is subsequently revoked by the marriage and 
 birth of issue. 
 
 lb.— Want of Trustee.— Maus v. Mans, 1876,30 S. 194, S. C. 2 W. N. 
 C. 636. The statute of limitations will run against a trustee whether there 
 be a trustee or not, but any one in interest could have a trustee appointed 
 and compel him to enter and stop the running of the statute. 
 
 Trustee— Account— Partition. — Roy v. Townsend, 1875, 1 W. N. C. 
 293. Where a purchaser of property at an orphans' court sale under pro- 
 ceedings in partition, procured an order of the court to enable him to use 
 his own share of the proceeds ot the sale, and the share of three others, for 
 whom he was attorney in fact, in payment of the purchase money, he can- 
 not, after the lapse of six teen years, be called upon to account as trustee ; 
 since the ouly trust possible would be one resulting from the payment of 
 the purchase money, and that would be barred after five years. 
 
 lb.— lb.— App V. Dreisbach, 1830, 2 R. 287. A trustee who has filed his 
 final acpount is not a trustee with regard to the balance remaining in his 
 bands, and the statute of limitations protects him. 
 
522 STATUTE OF LIMITATIONS — SUBROGATION. 
 
 lb.— Agreement — Title.— Barton v. Dickens. 1865, 12 Wr. 518. One 
 taking and retaining possession, without paying therefor, of property which 
 he agreed to buy of plaintiff is not a trustee, but after six years has a good 
 title. 
 
 Trustee and Cestui que Trust.— Barnholt v. Ulrich, C. P 1881, 11 W. 
 N. C. 51. The statute of limitations applied to a claim which a trustee of 
 the legal title held against the cestui que trust for money advanced in keep- 
 ing up the estate, there being a paper subsequently signed by the trustee, 
 which implied that everything was settled. 
 
 lb.— Rush V. Barr, 1832, 1 Watts, 110. The statute of limitations does 
 not run between trustee and cestui gue trust until the former disclaims the 
 trust, and such disclaimer is made known. 
 
 lb.— Adverse Possession by Third Party.— Warn v. Brown, 1883, 6 
 Out. 347, S. C. 13 W. N. C. 458. Thirty years' possession adverse to both 
 trustee and cestui que trust gives a good title to the one in possession, 
 whether the cestui que trust was sui juris or not. 
 
 lb.— One Claiming Under.- Smilie v. Biflle, 1845, 2 Barr, 52. The 
 statute of limitations runs in favor of one claiming under a trustee both 
 against the trustee and the cestui que trust. 
 
 lb.— Puf chase at Own Sale.— Morrell v. Trotter, C. P. 1882, 12 W. N. 
 C. 143, S. C. 14 Lan. Bar. 91, 39 Leg. Int. 256, 15 Phila. 201. A trustee who 
 buys at his own sale is protected after six years, although the cestui que 
 trust did not discover it immediately. 
 
 Trustee ex Malefacio.— Johnston v. Humphreys, 1826, 14 S. & E. 394. 
 One receiving money for a special purpose who converts it to his own use, 
 cannot set up the statute of limitations as a bar to its recovery. 
 
 Warrant in Name of Another.— Glass u Gilbert, 1868, 8 S. 266. Where 
 one procures land to be warranted in the name of another, but himself pays 
 the purchase money, his claim to the land is not barred after twenty-one 
 years, where the warrantee has never laid claim to the tract. 
 
 Waste— Cestui que Trust.— Wyant v. Dieffendafer, 1856, 2 Gr. 334. A 
 cestui que trust who has just come of age, can maintain an action against his 
 trustee for waste committed more than six years before. 
 
 SXAXUTORY RIGHXS. 
 
 [See Injunction I C] 
 
 STOCKHOLDER. 
 
 [See COEPOEATION.] 
 
 SVBROGAXIOPi. 
 
 [See Adjustment VIII, Appeal II, III ; Laches ; Landlord and 
 Tenant, Obligor, and Obligee; Principal and Surety.] 
 
SUBSEQUENT JUDGMENT — SUPREME COUKT. 523 
 
 SUBSEQUENT JUUGMENX. 
 
 [See also Mortgage, &c., VII.] 
 
 SUBSEQUEIVX MORXOAGE. 
 
 [See Moetgage, &c., VII. ] 
 
 SUBSXIXUXION. 
 
 [See Paeties.] 
 
 SUITS, MULTIPLICITY OF. " 
 
 [See Practice and Pleading, IV.] 
 
 SUIU9IARV RELIEF. 
 
 [See Practice and Pleading, VI.] 
 
 SUPERSEDEAS. 
 
 [See Appeal I.] 
 
 SUPPLEMENTAL BILL. 
 
 [See Parties, Practice and Pleading.] 
 
 SUPREME COURT. 
 
 [See also Jurisdiction, II D.] 
 
 Corporation — Jurisdiction. — Commonwealth v. Bank of Penna., 1843, 
 3 W & S. 184. The equity jurisdiction of the supreme court over corpora- 
 tions is general and unlimited, and to be exercised in all the ways peculiar 
 to chancery. 
 
 lb. — lb. — Baptist Congregation v. Scannel, 1854. 3 Gr. 48. The equity 
 jurisdiction of the Supreme Court over private corporations is general, and 
 does not depend on the question of irreparable injury.'' 
 
524 SUPREME COUET. 
 
 lb.— lb.— Mortgages— Kemedy.—McElrath «. Pittsburgh E. R., isn?, 
 5 S. 189. Act April 11, 1862, sec. 1, giving the Supreme Court chancery 
 jurisdiction over corporation mortgages, applies to a mortgage made before 
 its passage, in which the remedy provided for is by its terms permissive, not 
 exclusive. 
 
 lb.— lb.— lb.— Fargo v. Oil Creek R. E. Co., 1875, 32 S. 266. The con- 
 stitution of 1874 takes from the Supreme Court jurisdiction to decree a sale 
 of mortgaged property of a corporation, and the fact that there is also a 
 prayer for an injunction, which relief is bat incidental to the other, does not 
 give the supreme court jurisdiction. 
 
 lb.— Municipal Corporation.— Wheeler v. Phila., 1875, 1 W. N. C. 178. 
 The original jurisdiction of the Supreme Court extends to municipal corpor- 
 ations. 
 
 lb. — lb. — Practice — Original. — Buck Mt. Coal Co. v. Lehigh Coal Co., 
 1875, 2 W. N. C. 24, 8 Leg. Gaz. 15. The Supreme Court will not assume 
 original jurisdiction of a bill against a corporation, unless there be presented 
 an afl&davit setting forth the reasons why the bill was not filed in the proper 
 county court. 
 
 lb. — lb. — State Constitution. — Hottenstein t,-. Clement, 1862, 5 Wr. 
 502. Outside of Philadelphia county the only original equity jurisdiction 
 of the Supreme Court is over private corporations. 
 
 Injunction — Nisi Prius.— P. & E. E. R. Co. v. Street Railway Co., 
 1859, 9 C. 82. A preliminary injunction before the Supreme Court must be 
 first heard before the judge at nisi prius. 
 
 lb.— One Judge of, Cannot Grant.— Eiley v. EUmaker, 1841, 6 Wh. 
 546. Under the act June 16, 18.36, one judge of the Supreme Court cannot 
 grant an injunction. It can only be done by the court sitting in banc, and 
 after notice of the motion. i 
 
 Jurisdiction — Equity. — Hottenstein v. Clement, 1860, 3 Gr. 316. In 
 cases between individuals the Supreme Court has no equity jurisdiction out- 
 side of Philadelphia county. 
 
 lb.— Common Pleas.— Lorenz v. Wightman, lg62, 8 Wr. 27. The 
 Supreme Court will not assume original jurisdiction in equity of a case al- 
 ready under consideration in the common pleas, the equity powers of the 
 lower court being as ample as those of the higher. 
 
 lb.— Fraud.— Patterson v. Schoyer, 1840, 10 W. 33. The Supreme Court 
 has not equitable jurisdiction in the case of fraud. 
 
 lb.— lb.— Crawford Co. v. Pittsburgh R. E. Co., 1858, 8 C. 141. The 
 Supreme Court sitting in bane has no original equity jurisdiction over fraud. 
 
 lb. — Original'— Specific Performance.— Sunbury E. E. Co. v. Cooper, 
 1859, 9 C. 278. The Supreme Court in banc has no original equity jurisdic- 
 tion to compel the specific performance. The case, if in Philadelphia, must 
 be first heard at nisi prius. 
 
 Province of— Appeal. — Morrall's Ap., 1885, 14 Out. 349. In a suit in 
 equity the Supreme Court, on appeal, is bound to examine the evidence and 
 determine what are the facts. 
 
 Reversal of Decree— Petition Jie&cient.—Ex-parte Morton, 1837, 3 
 Wht. 170. A petition under the act of June 14, 1836 (trusts), ought to set 
 forth the nature and ground of the claim so that it may appear upon the 
 record what was asked and what was done. But the Supreme Court will 
 not reverse a decree upon a petition deficient in this respect when it appears 
 that there being other proceedings in the same matter, the lower court was 
 cognizant of all the facts. 
 
 Review— Act of 1877.— Hockernell v. Flickinger, 1879, 7 W N. C. 515. 
 Act April 4, 1877, giving an appeal from a decree of the lower court, in the 
 matter of opening a judgment, merely gives the Supreme Court the oppor- 
 
SUPEEME COUET — TAXES. 525 
 
 tunity of reviewing the discretion ejcercised by the lower court— it does not 
 take away that discretion. 
 
 Subscription— Injunction Against Proposed Improvement.— Cross- 
 man V. Penrose Bridge Co., 185G, 2 C. 69. The fact that a preliminary in- 
 junction has been granted against a proposed improvement is no defence to 
 a suit against one for his subscription to that object. 
 
 Trustee— Control Over.— Ex parte Hussey, 1836, 2 Whart. 330. Prior 
 to the act June 16, 1836, S. 13 the Supreme Court had no power, on petition, 
 to compel a trustee to pay over money, or to. dismiss him from the trust. 
 
 TACKING. 
 
 [See Adjustment I A ; Moetgage, &c.] 
 
 TAXATION. 
 
 [See Injunction I J. ; Moetgage, &c. IV ; Taxes.] 
 
 TAXATION OF COSTS. 
 
 [See Costs.] 
 
 TAX SAI^E. 
 
 [See Sale ; Taxes.] 
 
 TAXES. 
 
 [See also Adjustment VII, B (a.).] 
 
 Collection Injunction — ^Act of 1874.— Van Storch v. School District, 
 1887, 4 C. P. Rep. 99. The act of May 23, 1874, is not unconstitutional as 
 producing local results. It is an option to those school districts operating 
 under previous special legislation to retain such special legislation or come 
 in under the general law. An injunction will not lie to restrain the collec- 
 tion of taxes under this act therefore. 
 
 lb. — lb. — Injunction. — Steinman v. Lancaster, C. P. Lancaster, 1^70,2 
 Lan. Bar, No. 1 4 An official will be restrained from collecting any other 
 tliun a state tax on judgments or mortgages. 
 
 lb. — lb. — Collector — Appointment of— Locust Mt. Coal Co. v. Curtan, . 
 1874, 2 Post. 249, S. C. 31 Leg. Int. 334, 3 Luz. Leg. Keg. 193, 6 Lan. Bar, 
 No. 20, 6 Leg. Gaz. t534, 10 Phila. 543. In an equity proceeding to restrain 
 the collection of a school tax, the court will not inquire into the validity of 
 the appointment of the collector and will only restrain where the tax is 
 illegal. 
 
 lb. — lb. — School Board. — Jones u. Gilroy, C. P. Lackawanna, 1882, 13 
 Lan. Bar, 207, S. C. 4 L. T. N. S. 89. One school board cannot restrain, by 
 injunction, another school board from collecting a tax, the remedy is by quo 
 warranto. • 
 
626 TAXES. 
 
 Exemption— Act of April 4, 1868. — "Westmoreland Co. v. Fries, 1875, 
 30 S. 51. Act April 4, 1868, exempts from taxation for other than State 
 purposfs all mortgages. 
 
 Injunction— Municipal Corporation— Collection.— Matthews v. City 
 of Seranton, 1878, 1 Lack. L. Eec. 199. An injunction will not be granted 
 to restrain a municipal corporation in the performance of its ordinary and 
 necessary duties, including the levying and collection of taxes. 
 
 Liability of Purchaser for. — King v. Mount Vemon Assoc, 1884, 10 
 Out. 65. One who takes a conveyance of mortgaged premises after the taxes 
 have been assessed for that year against his grantor is not accountable for 
 them to the mortgagee who pays them after buying in the property for a 
 price less than his mortgage. 
 
 Loan Secured by Mortgage. — Susquehanna Coal Co. V. Commonwealth, 
 1872, 22 S. 72. A loan secured by a mortgage on property in this State is 
 taxable here although the bonds are held by non-residents. 
 
 Mortgage— County — Money in Other States. — Delaware Co. v. 
 Thomas, C. P. Delaware, 1882, 1 Del. Co. R. 197. Money invested in mort- 
 gages in another State is liable to county taxes here. 
 
 lb. — Protection — Lien. — Fisher v. Jackson, 1882, 14 Lan. Bar, 6. 
 The lien of a mortgage is not protected by act of 1867, where there is a lien 
 for taxes at the time the mortgage is given. 
 
 lb.— Postponement of Prior— Act of April 1, 1873.— Anspach's Ap., 
 1888, 2 Amer. 27. Under the act of April 1, 1873, relating to a lien of taxes 
 on real estate in Delaware county, a prior mortgage will be postponed to 
 the payment of taxes assessed on the mortgaged premises subsequently to 
 the mortgage. 
 
 lb. — Prior Lien. — Gormley's Ap., 1856, 3 C. 49. A mortgage is a prior 
 lien to taxes assessed after it is given. 
 
 li).— Priority— Tax Claim.— Smaltz v. Donohugh, 1881, 11 "W. N.C. 219. 
 A mortgage is prior to a tax claim subsequently filed against property in 
 Piiiliidelphia county, if the latter be not registered within a year after they 
 are assessed. 
 
 lb, — Provision. — Clopton v. P. & R. R. E. 1867, 4 S. 356. A provision 
 in a mortgage that the mortgage debt shall be paid " without any deduc- 
 tiiiu, defalcation or abatement for any taxes whatsoever," refers only to 
 taxes levied on the land and not to those levied on the debt as a chose in 
 action. 
 
 Mortgagee in Possession — Payment by. — Shoemaker i/.Bank, C. P. 
 18S1, 39 Leg. Int. 81, S. C. 15 Phila. 297. A mortgagee in possession must 
 pay current taxes. 
 
 lb.— lb.— Shoemaker v. Commonwealth, 1881, 11 W. N. C. 284. A mort- 
 gagee in possession must pay current taxes. 
 
 Taxpayers, Kights of— Injunction. — Mott v. Pennsylvania R. R. Co., 
 1858, 6 C. 9. A taxpayer has a standing in court to prevent the State from 
 bartering away its power of taxation. 
 
 lb.— Wheeler v. Phila., 1 W. N. C. 205. The right of a taxpayer to pro- 
 ceed in equity to test the validity of a law authorizing an assessment of 
 taxes or an expenditure of public money is well established. 
 
 lb.— Mclntyre o. Perkins, C. P. 1873, 2 Luz. L. Reg. 161. Taxpayers 
 have always a standing in court to restrain the public servants from spend- 
 ing money in ways contrary to law. 
 
 lb.— Sank V. Philadelphia, 1871, 4 Brews, 133, S. C. 8 Phila. 117, 28 Leg. 
 Int. 316, 1 Camp. 259, 3 Leg. Gaz. 313. Taxpayers may maintain a bill to 
 enioin the city taking action under a void ordinance. 
 
 lb.— Phila. V. Cochran, 1877, 4 W. N. C. 222, S. C. 34 Leg. Int. 160, 24 
 Pitts. L. J. 150, An injunction will not issue at the suit of a city against 
 
TAXES — TENANTS IN COMMON. 527 
 
 its own ofScers to restrain the collection of a State tax, the State not being a 
 party to the bill. 
 
 lb.— Multiplicity of Suits.— Delaware R. R. V. Broderick, C. P. Lu- 
 zerne, 1876, 5 Luz. Leg. Reg. 101. Equity will only enjoin the collection of a 
 tax in order to prevent multiplicity of suits or the clouding of a title. 
 
 lb.— lb.— Sallade v. School Directors, 1869, 2 Pears. 48. The illegal col- 
 lection of a tax may be restrained at the suit of many where one would bo 
 left to his legal remedy. 
 
 Tax Sale — ^Mortgage. — Cadmus v. Jackson, 1866, 2 S. 295. A sale for 
 tax assessed after the mortgage was given does not divest it. 
 
 lb.— lb.— Fager v. Campbell, 1836, 5 W. 287. A sale of unseated lands 
 for taxes divests the lien of a mortgage. 
 
 lb. — lb. —Perry v. Brinton, 1850, 1 H. 202. A first mortgage is not dis- 
 charged by a sale for taxes, the judgment therefor being recovered subse- 
 quent to the mortgage. 
 
 TAXPAYER. 
 
 [See Taxes.] 
 
 TENANTS IN COMMON. 
 [See also Meeqee ; Parties.] 
 
 Account — Co-Tenant's— Remaindermen. — Richardson'.s Ap., 1887, 19 
 "W. N. C. 175. The child of a remainderman (whose interest was vested 
 and who died during the estate of the life tenant) has a remedy in the com- 
 mon pleas for an account against the other remaindermen who have taken 
 possession after the death of the life tenant. 
 
 Account — Per Stirpes. — Coleman v. Coleman, C. P. Dauphin, 1862, 2 
 Pears. 495. Where an account is to be taken between tenants in common 
 who are the children of tenants in common, the accounts should be per 
 stirpes. 
 
 Act of April 22, 1856— Trusts.— Rider v. Maul, 1863, 10 Wr. 376. Act 
 April 22, 1856, S. 6. applied to a trust arising by one tenant in common 
 under article, his co-tenant having left the neighborhood, canceling the ar- 
 ticles and taking a new contract in his own name. 
 
 Agreement Between— Trustee.— McMurray's Ap., 1882, 5 Out. 421, S. 
 C. 13 W. N. C. 186, 30 Pitts. L. J. 441. A parol agreement between tenants 
 in common that one shall buy in the property as trustee for the others, which 
 others shall assume certain liens and upcm their payment be entitled to an 
 absolute conveyance of a designated share, constitutes a valid trust enforce- 
 able by either party against the other. 
 
 Bill in Equity— Mining Right.— North Penna. Coal Co. V. Snowden, 
 1862, 6 Wr. 488. A bill, by an alleged tenant in common, praying that he 
 be reinstated in certain mining rights, will not be entertained by equity. 
 Because, first, his right must be established at law, and, second, it is but an 
 "ejectment bill." 
 
 Executor of Tenant— Purchase— Co-Tenant's Interest.— Alexander 
 V. Kennedy, 1859, 3 Gr. 379. An executor of a tenant in common may pur- 
 chase for himself the co-tenant's interest. 
 
 Joint Tenants— When Considered. —Duncan v. Forrer, 1813, 6 Bin. 
 193. Equity vsdll consider joint tenants as tenants in common where they 
 purchase land with the intention of expending large sums in improvements. 
 
628 TENANTS IN COMMON — TENDER. 
 
 Jurisdiction— Unincorporated Society.— Kisor's Ap., 1869, 12 S. 428. 
 Under a deed of trust, two congregations were to have the use of a lot to- 
 gether, to be divided by referees whenever either party should deem it con- 
 ducive to its interests. One congregation took exclusive possession. Held 
 that equity had jurisdietion to right matters, as the parties were members 
 of an unincorporated society and not merely tenants in common. 
 
 Mingling Funds— Interest.— Eobert'sAp., 1880, 11 N. 407. A tenant 
 in common who receives the money due to himself and his co-tenant and 
 mingles it with his own is chargeable with interest on interest. He is a 
 trustee not a mere debtor. 
 
 Mortgage— Discharge. —Thomas' Ap., 1858, 6 C. 378, Kev'g 15 Leg. 
 Int. 54, 93, 3 Phila. 62, 99. A mortgage given by tenants in common to se- 
 cure a joint debt is discharged by payment and cannot be kept alive to se- 
 cure the mortgagee on a claim against one of the tenants individually. 
 
 Partition— Tax Sale— Purchase.— Maul v. Eider, 1865, 1 S. 377. Where 
 tenants in common after a tax has been assessed, partition their land and 
 the whole tract is afterwards sold for the tax mentioned, one of the parties 
 buying in the title of the purchaser at this sale holds it as trustee as to his 
 co-tenant's part. 
 
 Purchase. — Keller v. Auble, 1868, 8 S. 410. A purchase of an outstand- 
 ing title by one tenant in common inures to all. 
 
 lb. — Lloyd V. Lynch, 1857, 4 C. 419. Tenants in common are in such 
 confidential relation that the purchase of an outstanding title by one inures 
 to all. 
 
 lb. — Treasurer's Sale— Lapse. — Eeinboth v. Zerbe Run Co., 1857, 5 C. 
 139. After a treasurer's sale of land owned by tenants in common, and the 
 lapse of two years without redemption, one of the former owners may pur- 
 chase the title without being clothed with ft trust for the other. 
 
 Purchase by Equitable— Trust. — Ruff v. Wilson, 1872, 92 S. 442. 
 Where the act of one in a confidential relation with another bears a rightful 
 construction, that will be put (jn them. Hence, where an equitable tenant 
 in common buys in an outstanding title, he is presumed to buy it in as 
 trustee ^ro tanto for his co-tenant. 
 
 lb.— lb.— Dickey's Ap., 18.73, 23 S. 218. The heirs of a decedent, who 
 had bequeathed property to a charity, entered into an arrangement, to break 
 the will as to the bequest and divide the property. The parties were equit- 
 able tenants in common and a purchase of the outstanding title by one 
 inured to the rest. 
 
 Sale— Purchase After Two Years. — Reinboth v. Zerbe Run Co., 1857, 
 5 C. 139. After a treasurer's sale of land owned by tenants in common, and 
 the lapse of two years without redemption, one of the former owners may 
 purchase the title without being clothed with a trust for the other. 
 
 Satisfaction— Reassignment.— Watson's Ap., 1879, 9 IST. 426. Two who 
 were tenants in common gave a mortgage and eleven bonds to A. A. as- 
 signed some to B. and some to appellant. A. then bought the interest of 
 one of the tenants in common and agreed to indemnify him against the 
 mortgages. A. then bought in the bonds he had assigned to B. and after- 
 wards re-assigned them to the appellee. Held that the re-assignment to A. 
 after he became a co-tenant with the mortgagor did not satisfy those bonds. 
 The parties were not partners and subrogation existed between them. 
 
 Specific Performance. — Dech's. Ap., 1868, 7 S. 467. Where a tenant in 
 common has sold his interest and before giving up possession has so behaved 
 as to injure the relation of the proposed vendee with his co-tenant, equity 
 vrill not decree specific performance. 
 
 [See Ejectment IV ; Moetoage, &c. XX.] 
 
TEREE TENANTS— TITLE. 528 
 
 XERRE TEBIAJUXS. 
 
 [See Mortgage XVI, B (b. 7.).] 
 
 XESTIMONY, BILI^ TO PERPEXIJAXE. 
 
 [See Practice and Pleading I.] 
 
 TIME. 
 
 [See Forfeiture ; Laches; Specific Performance.] 
 
 Essence of Contract— Equity.— Becker v. Smith, 1868, 9 S. 469. Equity 
 will not relieve against a stipulation for performance at a day where it is of 
 the essence of the contract, and not in the nature of a penalty. 
 
 lb.— lb.— Gordoniert-. Billings, 1875, 27 S. 498. In a conditional verdict 
 time is of the essence of the decree, but equity may relieve against it. 
 
 Expiration— Conditional Verdict.— Boyd v. McNaughton, 1865, 1 S. 
 225. After a conditional verdict has been rendered in ejectment by the 
 vendor to compel specific performance, the vendee's equity continues as long 
 as the vendor acknovrledges him his debtor, though the time limited in the 
 verdict has expired. 
 
 lb. — ^Ib. — Thompson v. McKinley, 1864, 11 Wr. 353. A conditional ver- 
 dict in ejectment should fix the time when the money should be paid. 
 
 Immaterial — Damage. — Haverstick i^. Erie Gas Co., 1857, 5 C. 254. 
 Equity regards the time of the iierformance of a covenant as immaterial 
 where no special damage is done, and the covenantee has not seriously urged 
 performance. 
 
 Reasonable Time. — Hoke v. Leman, 1822, 8 S. & E. 248. One who has 
 a right of election, upon his coming of age, should have a reasonable time 
 in which to execute it. One year is such reasonable time. 
 
 TITLE. 
 
 [See also Estoppel I ; Marketable Title ; Purchaser ; Sale ; Spe- 
 cific Performance ; Vendor and Vendee.] 
 
 BiU— Eauity — Land in Defendant's Hand. — Messimer's Ap., 1879, li 
 N. 168. Equity will not entertain a bill where the plaintiff claims lands in 
 the hands of the defendant, although the prayers are for au account and a 
 receiver. 
 
 Election— Title to Part— Option of Defendant.— Erwin v. Myers, 1863, 
 10 Wr. 96. In equitable ejectment, when the defendant has shown that 
 plaintiff cannot make title to the whole tract, the former may elect to take 
 title to the part remaining on payment pro ianlo, or to rescind the contract ; 
 ; nd in either event the verdict will be moulded to include improvements 
 and waste if the defendant has had possession. 
 34 — EQUITY. 
 
530 TITLE — TEADE JIAKK. 
 
 Impeachment — Sheriif's Sale. — Murray, et al. v. Weigle, et al., 1888, 21 
 W. N. C. 235. The title taken by a bona fide purchaser at a sheriflfs side, 
 under a judgment upon a mortgage obtained on two returns oi nihil Imhal, 
 cannot be impeached by proof that at the time the writs were issued de- 
 fendant was dead. 
 
 Instalment Purchaser— Ejectment.— Thompson v. Carpenter, 1846, 4 
 Barr, 132. A vendor of real estate, under articles stipulating for the pay- 
 ment of the purchase money by instalments, may make use of the legal 
 title to compel performance of the articles by an ejectment and conditional 
 I verdict. 
 
 Mistake as to Property.— Green v. Scarlett, 1858, 3 Gr. 228. Where a 
 mortgagee sued out to judgment a scire facias on one mortgage and by mis- 
 take another property on which he held a similar mortg.ige was sold, the 
 purchaser got no title. 
 
 New Trial— Irvine v. McCullough, 1858, 1 Pitts. E. 433, S. C. 6 Pitts. 
 L. J. 29. Where a vendor, after a conditional verdict has been rendered 
 against him, becomes unable to make title, it is proper to allow him a new 
 trial after paying all the costs. 
 
 Plaintiff Must Make.— Mathers v. Akewright, 1809, 2 Bin. 93. If a 
 plaintiff in ejectment is bound in equity to make title to defendant for part 
 of the premises, the court will do equity by entering a verdict for plaintiff 
 and granting a stay of execution till defendant's title be secured. 
 
 Power to Order— Title Papers— File.— Treltz v. King, 1873, 24 S. 350. 
 After a court ofelaw has given judgment for plaintiff in an equitable eject- 
 ment, it has no power to order the defendant to file the title papers and con- 
 vey tb plaintiff. Such a remedy belongs exclusively to a court of equity. 
 
 Record of Title— Notice.— Earnest v. Cuthbertson, 1875, 6 W. N. C. 
 199. The record of a title in a husband does not bind one with notice of any 
 equities in the wife. 
 
 [See Public Acts and Officers ; Injunction I F O.] 
 
 XRADE-MARK. 
 
 [See also Injunction IDE.] 
 
 Coined Word.— When v. Krauss, C. p. 1878, 5 W. N. C 272. An injunc- 
 tion granted against the use of a word which the complainant had coined 
 (lithogen), although claimed to have become a generic term. 
 
 Country Name.— Piper v. Langhmau, 1888, 6 C. C. Rep. 232. Although 
 the name of a country or section of a country cannot be appropriated as a 
 trade-mark, yet this only applies when the place is essentially of a public 
 character and well known to the public at large. 
 
 Injunction— Bill.— Desmond's Appeal, 1883, 7 Out. 127. A bill filed 
 to restrain the infringement of a trade-mark must aver a similarity. 
 
 lb.— Contempt.— Witthans V. Wallace, C. P. 1876, 2 W N. C. 618, S. C. 
 23 Pitts. L. J. 199. An injunction having been granted against a label 
 similar in general effect, though slightly different in name, design and color, 
 the defendant is in contempt if he changes the color slightly and goes on 
 with the business. 
 
TBADB MAKK — TRUSTS AND TRUSTEES. 531 
 
 lb.— Jurisdiction.— Dixon Crucible Co. v. Guggenheim, 1869, 2 Brews. 
 321, S. C. 27 Leg. Int. 300, 7 Phila. 408. The jurisdiction of equity to re- 
 strain the infringement of trade-marl<s, depends on the injury to the person 
 not on the deception practiced on the public. 
 
 Name of Individual— Sale — Ayer v. Hall, 1871, 3 Brews. 509. One 
 who has sold his name as a trade-mark cannot use it in the same line of 
 business by calling the manufacture his "improved," &c., although he ex- 
 plain on the lable that it is an entirely new thing. 
 
 Name of Inventor. — Fulton u. Sellers, 1867, 4 Brews. 42. A trade- 
 mark composed of the name of the inventor and of the article will be pro- 
 tected by equity. 
 
 lb.— Injunction.— Hoyt v. Hoyt, C. P. 1886, 43 Leg. Int. 151. Although 
 one will not be enjoined from using his own name because another of the 
 same name has established a reputation in the same business, yet if he joins 
 with his name such devices as are calculated to deceive the public equity 
 will interfere. 
 
 Shape and Arrangement.— Say er v. Meyer, C. P. 1875, 2 W. K. C. 197. 
 The shape and arrangement of boxes cannot constitute a trade-mark. 
 
 TRESPASS. 
 
 [See also Injunction J K.] 
 
 Injunction. — Wilkesbarre Coal Co. v. Elliott, C. P. Luzerne, 1872, 4 Lan. 
 Bar, No. 43. A preliminary Injunction to restrain trespasses will not be 
 granted where there is a dispute as to the boundary line. 
 
 Set-off— Losses— Mesne Profits.— Marvin v. Biddle, 1876, 2 "W. N. C. 
 658. In an action for mesne profits against a trespasser, the latter cannot 
 set off losses arising from his experimenting for profits in another part of 
 the land trespassed on. 
 
 Use Plaintiff.— Miller v. Zufell, 1886, 3 Amer. 317. An equitable es- 
 tate in land will support an action of trespass without the use of the name 
 of the party holding the legal title. 
 
 XRIAL. 
 
 [See Estoppel I ; Practice and Pleading.] 
 
 TRUSTS AX» TRUSTEES. 
 
 See also Charity I a ; Earmark ; Jurisdiction II B C ; Orphans' 
 Court II, III ; Parties ; Power II, IV ; Sale III.] 
 
 Trusts and Trustees. 
 
 I. Trusts. 
 
 A. In General. 
 
 B. Creation of. 
 
 (a.) In General. 
 
 (b. ) Active Trusts. 
 
 (c.) Declaration of Trust. 
 
532 TRUSTS AND TEUSTEES. 
 
 (d.) Passive Trusts, 
 (e.) Perpetuities, 
 (f.) Precatory Words, 
 (g.) Resulting Trusts, 
 (h.) Spendthrift Trusts, 
 (i.) Testamentary Trusts, 
 (j.) Trusts for Sole and Separate Use. See 
 Husband and "Wife V. 
 
 C. Statute of Limitations. 
 
 D. Termination of. 
 II. Teustees. 
 
 A. 
 
 In General. 
 
 B. 
 
 Account of. 
 
 C. 
 
 Appointment of. 
 
 D. 
 
 Commissions, Counsel Fees and Expeni 
 
 E. 
 
 Co-Trustees. 
 
 F. 
 
 Discretionary Powers. 
 
 G. 
 
 Ex Malefacio. 
 
 H. 
 
 Liability of. When Surcharged. 
 
 I. 
 
 Powers and Duties of. 
 
 J. 
 
 Removal of 
 
 K. 
 
 Who is a. 
 
 L. 
 
 Who may be. 
 
 in. Cestui que Teust. 
 
 IV. Peactice and Pleading. 
 
 A. 
 
 In General. 
 
 B. 
 
 Actions and Defences. 
 
 C. 
 
 Evidence. 
 
 
 I. Trusts. 
 
 A. In General. 
 
 Act of April 22, 1856--Extent of— Christy v. Sill, 1880, 14 N. 386. Act 
 April 22, 1856, sec. 6, applies to cases of trusts arising from actual fraud. 
 These are not within the exception. 
 
 Accumulation— Void.— Bindbaker's Ap., 1888, 15 Atl. E. 708. A trust 
 for a daughter and her issue, the interest to be added annually to the prin- 
 cipal as long as her husband should live, and in event of her becoming a 
 widow, then the yearly interest to be paid her, the principal and accumu- 
 lated interest to go to her issue or descendants at her death, was declared 
 void. 
 
 Advancements— Widow.— Gremer's Ap., 1883, 7 Out. 89, S. C. 13 W. 
 N. C. 221. The doctrine of advancements does not apply to a widow. 
 
 Adverse Possession. —Warn v. Brown, 1883, 26 Out. 347, S. C. 13 W. 
 N. C. 458. Thirty years possession adverse to both trustee and cestui que 
 trust, gives a good title to the one in possession whether the cestui que trust 
 was sui juris or not. 
 
 Attachment— Remittance by Debtor.— Sharpless v. Welsh, 1803, 4 
 Dall. 279. A remittance made by a debtor for payment of his creditors is 
 a trust fund and cuuiiot be attached. 
 
 Common Pleas— Jurisdiction— Trusts— Validity of, Under Will.— 
 
 Norris v. Farrel, C. V. 1876, 2 W. N. C. 423. The common pleas has no 
 jurisdiction of a bill filed to determine what trusts created by a will are valid, 
 and whether or not they are charged on the land, 
 
TEUSTS A XI) TEtlSTEES. 533 
 
 Constructive Trust — Purchase— Pool— .I'ennsylvania Transportation 
 Co. V. Pittsburgh E. R., C. P. 1881, 11 W. N. C. 35. A purchase of a cor- 
 poration's property and franchises by a pool of bondholders, stockholders 
 and creditors, is a fair transaction, and no constructive trust is raised in favor 
 of those outside the pool. 
 
 Deed of— Revocation.— Taylor v. Smiley, C. P. ]880; 9 W. N. C. 30, «. 
 37 Leg. Int. 282, 14 Phila. 76. A deed of trust containing a power of revo- 
 cation may be revoked by a will containing no reference to the power. 
 
 Decedent's Estates— Vested Legacy— Distribution.— Harris' Est., 
 1887, 13 P. C. C. 2'iO. By a deed of trust A settled property to his own use 
 for life, and at his death in trust for his children, subject to a charge or debt 
 of B. a son, but if any child die under age and without issue, the share of 
 said child to go to the survivors. B. died, during his father's lifetime, with- 
 out issue. Held, B.'s administrator was entitled to B.'s share. 
 
 Descent. — Jenks v. Backhouse, 1803, ] Bin. 91. A trust estate in Penn- 
 sylvania descends in case of intestacy to the heir at common law. 
 
 Establishment of Jury — Supreme Court- Evidence. — Achmutz v. 
 Achmutz, 1858, 2 Pitts. R. 58, S. C. 7 Pitts. L. J. 144. Where an attempt 
 is made to e.stab]ish a trust by declarations and actions, the question is for 
 the jury unless the court thinks the evidence entirely insufScient. In this 
 case, or in case the jury find a trust, the Supreme Court may examine into 
 the evidence, but if the jury finds against tlie trust the Supreme Court will 
 not interfere. 
 
 Income— Dividends of Corporation. — Vinton's Ap., 1882, 3 Out. 434, 
 11 "W. N. C. 246. A cash dividend which arises out of a sale of part of the 
 franchises and capital of a corporation goes to the corpus of a trust estate. 
 
 lb.— Married Women.— Dnrtou's Est., 1887, 20 W. N. C. 32. Where a 
 testator is silent as to the distribution of the income of a trust fund to mar- 
 ried women, he is presumed to have intended the same to be paid the ces- 
 tui que trust and not for accumulation. 
 
 lb.— What is.— Niltbank's Ap., 1870, 14 S. 256. A stock dividend paid 
 two years after the testator's death, on stock left in trust by him, is income 
 and not capital. 
 
 lb.— lb.— Smith V. Eawle, 1887, 19 W. N. C. 401. Where trustees of an 
 estate were authorized by will to lease certain real estate, and who leased 
 to persons agreeing to pay royalties on oil mined in the said land, sucl» 
 royalties are to be taken as the income of the beneficiaries, and not as part 
 of the principal of the estate. 
 
 Increase in Value— Fund Entitled to.— De Silver's Est., 1888, 21 W. 
 N. C. 544. When a testator gives the sum of |20,000 to the trustees to pay 
 the income to testator's wife for the support of his sons, and upon the arri- 
 val of the sons at maturity, to pay over $10,000 to each for his own use ab- 
 solutely, and the investments by the trustees increased in value, it was 
 held that the cestuis que trust were entitled to the increase. 
 
 Interest in Trust — Buried Relation. — Appeal of Gumbertei al, 1885, 
 14 Out. 496. Parties whose relatives are buried in land granted in trust to 
 church societies, have a sufficient interest in said trust, after the dissolution 
 of such societies, to clothe them with a right to see it preserved. 
 
 Mortgage— Purchase.— Hinkle's Est., O. C. 1886, 43 Leg. int. 29-J. 
 Where property is bought in by a mortgagee, under a mortgage, which is 
 trust property, the property is held subject to the same trusts as the mort- 
 
 Nature of a Trust.— Ivory v. Bums, 1867, 6 S. 300. A trust is not con- 
 tradictory to an estate granted, but a mere qualification of its use. 
 
 Redemption of Unseated Lands.— Cooper r. Brockway, 1839, 8 Watt.s, 
 162. A sale for taxes by the treasurer, of unseated land held in trust for 
 minor children, is governed by the act of March 13, 1815, S. 4, giving two 
 
534 TBUSTS AND TRUSTEES. 
 
 years in which to redeem, and there is no further extension in favor of 
 minors. 
 
 Eeformation of Deed of Trust.— Lee v. Frich, C. P. 1875, 2 W. N. C. 
 11 . Equity cannot reform a deed of trust by inserting therein a power, 
 there having been no mistake or accident in the legal sense, although all the 
 parties in interest are desirous of making the change. 
 
 Residue, Trust of, to Pay Debt— Personal Estate Not Relieved. — 
 
 Duval's Ap., 1861, 2 Wr. 112. A trust of the residue of testator's land, to 
 pay debts not otherwise provided for, does not relieve the personal estate in 
 the first instance. The power thus given is well exercised by a voluntary 
 conveyance to the administrator who mortgages the land to raise money to 
 pay the debts. 
 
 Revocation — Absence of Power of — Soleus v. PMla. Trust Co., C. P. 
 1885, 42 Leg. Int. 151, S. C. 16, W. N. C. 80. The absence of a power of revo- 
 cation raises no presumption against the validity of a trust. 
 
 Taxation of Trust Funds.— Bingham's Est., 1883, 2 Ches. Co. E. 168. 
 Trust moneys at interest are taxable in the hands of the trustee. 
 
 lb.— Non-Resident.— Carlisle v. Marshall, 1860, 12 C. 397. Moneys at 
 interest in the hands of the trustee, the cestui que trust being a non-resident, 
 and the trust money being invested elsewhere, are not subject to borough 
 taxes at the domicil of the trustee. 
 
 Transfer of Stock.— Halsey v. Tate, 1866, 2 S. 311. To assert after sixty 
 years that a transfer of stock was in trust, is a stale claim. 
 
 Valid— Minors.— Hughes' Est., 0. C. 1879, 7 W. N. C. 539, A trust in 
 in favor of minors and upon the youngest reaching twenty-one years of age, 
 to be settled in such way that the share of each shall be his or her sole and 
 separate use is valid. 
 
 What is— Direction to Sell- Miller v. Meetch, 1848, 8 Barr, 417. A 
 direction to executors to sell real estate for the payment of debts within a 
 certaiD time, is not a mere naked power, but a trust and, therefore, im- 
 perative, and equity will compel an execution even after the time ap- 
 pointed by the testator. 
 
 What is Not.— Friedley's Ap., 1869, 10 S. 344. A testator devised a 
 sum to A. "in trust for and to be divided amongst his nine children in such 
 manner and at such times as he sees fit." Held not to be a strict trust but 
 a confidence that in the end A. would distribute the fund among his chil- 
 dren. The children, therefore, have no claim on the income but may de- 
 mand that A. give security for the principal. 
 
 When Executed— Remainder to Appointees.— Rush v. Levris, 1853, 9 
 H. 72. A trust for one for life, with remainder to her appointee, is executed 
 by the appointment and death of the cestui que trust, and a bill in equity by 
 the appointee against the trustees for a conveyance is demurrable on the 
 ground that each conveyance is necessary. 
 
 When Supported— Direction to Convey. — Philadelphia Trust Co.'s 
 Ap., 1880, 12 N. 209. A trust, otherwise passive, vrill not be supported, 
 because on the happening of a certain contingency the trustee is directed to 
 make a conveyance. 
 
 B. Creation of. 
 
 (a.) In General. 
 
 (b.) Active Trusts. 
 
 (c.) Declaration of Trusts. 
 
 (d.) Passive Trusts. 
 
 (e.) Perpetuities. 
 
 (f.) Precatory Words. 
 
TRUSTS AKD TKUSTEKS. 535 
 
 (g. ) Resulting Trusts, 
 (h.) Spendthrift Trusts, 
 (i.) Testamentary Trusts. 
 
 (j.) Trusts for Sole and Separate Use. See Husband 
 and Wife V. 
 
 (a.) In General. 
 
 Acciunulation. — Courow's Ap., 1883, a Penny. 356. A trust which 
 postpones the time of taking effect until the beneficiary is of age is not void 
 under the restraints placed upon accummulations. 
 
 lb.— Income Not Exhausted.— Eberly's Ap., 1885, 43 Leg. Int. 176, S. C. 
 17, W. N. C. 1. Where a trust is active, the fact that at all times the per- 
 formance of the duties does not absorb the entire income of the estate does 
 not bring it within the rule of accumulations. 
 
 Act of April 22, 1856.— Lingenfelter v. Eitchey, 1868, 8 S. 485. Act 
 April 22, 1856, S. 4 (creation of trusts), is prospective. 
 
 Appointment— Power of— Validity.— Ashhurst's Ap., 1875, 27 S. 464, 
 S. C. 1, W. N. C. 410, 22 Pitts. L. J. 171, 7 Leg. Gaz. 173. An unmarried 
 woman conveyed her estate to trustees to collect the income and pay it to 
 her or her appointee during her life and if she should marry to pay it to her 
 for her separate use, and at her death to convey the principal to her ap- 
 pointees, if any, otherwise to those entitled under the intestate laws. Held 
 that the trust was a valid one and was not determined by her marriage and 
 and the death of her husband. 
 
 Assignment for Creditors. — Reed v. Robinson, 1843, 6 W. & S. 329. 
 An assignment for creditors is valid before the assignee accepts, and even if 
 he declines the courts have power to appoint a successor and the trust will 
 not fail. 
 
 lb. — Steel V. Henry, 1840, 9 W. 523. Where a testator devises his real 
 estate to his executors and directs it to be sold and the proceeds applied to 
 the payment of his debts, he thereby creates a trust for the benefit of his 
 creditors and there is no limitation to the lien of other debts as regards the 
 real estate thus devised. 
 
 Charity. — Curran's Ap., 1884, 4 Penny. 331. A devise in trust "to 
 create my estate a foundation, the annual income of which shall be used to 
 promote the higher education of females," is a trust for a charitable pur- 
 pose. 
 
 lb. — Alteration. — Gumpert's Ap., 1885, 43, Leg. Int. 414. Where land 
 has been given for a charitable use, that use cannot be altered even if the heirs 
 of the donor and the donees xmite in desiring it. 
 
 Collateral Security. — Anon, 1799, 3 Dall. 508. A creditor released cer- 
 tain collateral securities in consideration of an indorsement by a third party 
 who held a mortgage on the debtor's land. At the same time this surety 
 made a written statement of the securities for which he held the mortgage, 
 including this note in suit, but there was no evidence that the plaintiff 
 knew of the mortgage when he released the collateral. Seld that no trust 
 was created. 
 
 Condition of Dispensing Fund.— Lennig's Est., 1887, 20 W. N. C. 55. 
 A direction following an absolute gift to step-children that their shares shall 
 be held until testator's own children shall receive theirs free of trust, as set 
 out by the terms of the father's will, and the income to be paid the step- 
 children only as the children receive theirs, is valid, being a condition upon 
 which the said fund is to be dispensed. 
 
 Equitable Title.— McCullough v. Storer, 1888, 4 Crum. 433. A. agreed 
 to convey land to B. within six months, and in the meantime B. agreed to 
 
536 TEUSTS AND TEUSTEBS. 
 
 convey to C, A. agreeing to receive his payments from C. C. paid A. two- 
 thirds of the money, took possession and paid nothing more. A. brought 
 ejectment against C. and recovered the land, B. not having been made a 
 party to the suit. B. tendered balance due and brought ejectment against 
 A. Held that under the tripartite agreement B. had an equitable title to the 
 land and by the same agreement A. became trustee, for B. holding the legal 
 title to compel the payment of the contract price by C. 
 
 Express Trust— Creation of— "Wolff, Jr.'s Ap., 1889, 8 Crum. 438. A 
 letter written two years after the purchase of a property, signifying the in- 
 tention of the purchaser that his sou should have the land, is not sufficient 
 to establish an express trust although there appears an advancement charged 
 to the son about two years before the purchase. 
 
 Fraud — Notice. — Eider ■». Maul, 1871, 20 S. 15. A. and B. purchased 
 land under articles, A. gave B. the money to pay the taxes; B. did not pay 
 them, and the land was sold for them. B. purchased from the purchaser at 
 the tax sale, and having fraudulently got possession of the original articles 
 had them cancelled and new ones made to himself alone. B. then went 
 into possession, made improvements, sold part of the land and procured a 
 deed to be made to him and recorded. Held, that there was a trust arising 
 from a fraud and, therefore, excepted out of the act April 22, 1856, Sec. 6, 
 and that the facts in evidence were not notice of fraud, nor would they have 
 led to its discovery by reasonable diligence. 
 
 lb.— Trust for Grantor.— Lewis v. Miller. 1888, 2 W. N. C. 94. A per- 
 son sui juris cannot create a trust or power of himself so as to place his pro- 
 perty out of the reach of his existing or subsequent creditors. 
 
 lb. — lb. — Hart v. McFarland, 1850, 1 H. 182. An assignment in trust to 
 pay a certain debt and hold the balance subject to the future order of the 
 assignor, is iraudulent ou its face. 
 
 Married Women— Trust for Life.— Moss' Est., 0. C. 1882, H W. N. C. 
 306. Where an estate is given to trustees " to receive and pay over" all 
 income for the separate use of a married woman for life, with remainder to 
 her heirs in fee simple the trust is valid for life though her coverture sooner 
 determine. 
 
 lb. — Invalid Trust Supported for Next Generation. — Delbert's Ap. 
 No. 1, 1877, 2 N. 462. Where the intent of a testator is to create a separate 
 use for his daughter who is unmarried for life, and also to preserve the estate 
 for the next generation, the trust will be sustained for the latter purpose, 
 although the provisions for the separate use are invalid. 
 ■ No Trustee Named.— Varner's Ap., 1875, 30 S. 140, S. C. 2, W. N. C. 
 329. A devise to a married daughter for her sole and separate use without 
 control of her husband, no trustee being named, is a trust which equity 
 ■will support by appointing a trustee. 
 
 lb.— Gamble's Est., O. C. 1878, 36 Leg. Int. 5, S. C. 13 Phila. 198. 
 "Where an estate is given to a married woman for her sole and separate use, 
 a trust is created although no trustee be named. 
 
 Municipal Corporation — ^Free Hospital. — Philadelphia u Elliott, 1831, 
 3 E. 170. A bequest to a municipal corporation in trust to erect and main- 
 tain a free hospital is valid. 
 
 Partners, Agreement. — McCormick's Ap., 1868, 7 S. 54. An agree- 
 ment made by those about to enter into partnership, to put land into joint 
 stock raises no trust. 
 
 Personal Property. — Dickerson's Ap., 1886, 5 Am. 210. The owner of 
 personal property may impress upon it a valid trust, either by a declaration 
 that he holds the property in trust, or by the transfer of the legal title to a 
 third party upon certain specified trusts and a reserved right of revocation 
 is not inconsistent with such trust. 
 
 Promise by Son— Partial Fulfilment.— Brooke's Ap., 1885, 15 W. N. 
 
TRUSTS AND TEUSTEES. 537 
 
 C. 537. A promise by an only son to his mother on her death bed, reduced 
 to writing and signed by him, she not having executed a will, that he would 
 pay the interest of a certain sum to her sister and the principal to the sister's 
 heirs, is binding on him either as a trust or by way of estoppel, after he has 
 handed over the memorandum to the sister and paid her the interest until 
 her death. 
 
 Shelley's Case— Rule in.— Crosby v. Davis, 1843, 2 Clark, 403, S. C. 4, 
 Pa. L. J. 193. The rule in Shelley's case does not extend to a limitation 
 to trustees for the use of A. for life, remainder to his heirs, where the trust 
 is not executed by the statute. 
 
 Subscriptions.— Urket v. Coryell, 1842, 5 W. & S. 60. A conveyance to 
 trustees in trust for subscribers, does not divest the title of the settlor until 
 the subscriptions are made. 
 
 Tenants in Common— Agreement Between.— McMurray's Ap., 1882, 
 6 Out. 421. A parol agreement between tenants in common that one shall 
 buy in the property as trustee for the others, which others shall :issnn'.e cer- 
 tain liens, and upon their payment be entitled to an absolute i iir r^ance of 
 a designated share, constitutes a valid trust enforceable by eitl.ej- party 
 against the other. 
 
 Unincorporated Association — Non-residents.— Methodist Church v. 
 Eemington, 1832, 1 Watts, 219. A trust for an unincorporated society, 
 part of the members of which are without the state, cannot be enforced by 
 our courts. 
 
 Vendor and Vendee— Enforcement of Trust.— Kirkpatrick v. Mc- 
 Donald, 1849, 1 J. 387. A vendee, under articles, having a right of action 
 against his vendor for not conveying, assigned it in trust for plaintiff, the 
 trustee afcerwards assigned it to the son of the original vendee, who pro- 
 cured a conveyance from the original vendor and also procured this claim to 
 be applied as part of the purchase money. Beld that equity would follow 
 the trust fund and enforce it against the land. 
 
 Vendor and Vendee— Representations— Confidential Relation.— 
 
 Babcock v. Case, 1869, 11 S. 427. The vendor of land (situated thirty 
 miles from the place of sale) represented to the vendee that* the title was 
 good, and that vendee would have to take his word for it. Held that the 
 relation was one of trust and confidence and that the vendor was bound to 
 represent the facts as they existed. In general a plaintiff is not entitled to 
 a rescission of an executed contract on the ground of fraud, without first 
 tendering a restoration of the consideration, but this is not necessary if 
 the consideration be worthless. 
 
 What Constitutes a Trust.— Bickel's Ap., 1878, 5 N. 204, S. C. 6, W. 
 N. C. 225. Where two parties sign an agreement looking to the joint pur- 
 chase of certain land, which is about a year thereafter purchased by one of 
 them but not, according to the master, in pursuance of the agreement, there 
 is no trust raised. 
 
 lb.— Williams Est., O. C, 1880, 37 Leg. Int. 325, S. C. 13, Phila. 325. A 
 devise to an executor in trust for the son of the testator if he be found with- 
 in twenty years is a valid trust. 
 
 lb. — Long V. Perdue, 1876, 2 N. 214. One having a verbal option for a 
 lease agreed verbally with the defendant that the latter should advance the 
 money and take the lease in his own name and when reimbursed for his ad- 
 vances hold in trust for the former as to one-half Held that these facts es- 
 tablished a constructive trust. 
 
 lb. — Stewart v. Brown, 1816, 2 S. & R. 461. One who purchases land at 
 a, treasurer's sale under an agreement with another that they should be 
 equally concerned in the purchase, will not be permitted to deny the trust. 
 
 lb.— Trust or Mortgage.— Hewitt v. Ruling, 1849, 1 J. 27. A deed to 
 A. for the use of B. upon B.'s paying a certain sum, is not strictly a niort- 
 1 but a trust in which the cestui que trust and trustee stand in exactly the 
 
538 TKUSTS AND TEUSTEKS. 
 
 same position as mortgagor and mortgagee with the same rights and 
 remedies. 
 
 lb.— lb.— Payne v. Patterson, 1874, 27 S. 134. Where the plaintiff, after 
 his land had been sold by the sheriif, got a friend to take it off the pur- 
 chaser's hands and agree to recovery to him (the plaintiff) upon receiving 
 the price and interest, it vras held that no trust or mortgage was created. 
 
 Words of Limitation— Fee Simple. — Ivory v. Bums, 1867, 6 S. 300. A 
 conveyance in trust will carry a fee without words of limitation. 
 
 (6.) Active Trusts. 
 
 Contingent Interests.— Harris v. McElroy, 1863, 9 Wr. 216, aff'g. 19 
 Leg. Int. 133, S. C. 5 Phila. 81. Equity will not decree a conveyance by 
 the trustee to the cestui que trust where there are contingent interests to be 
 preserved. 
 
 Continuance of Trusts.— Clark's Est., O. C. 1882, 39 Leg. Int. 372, S. 
 C. 15 Phila. 573. Although trustees are given a fee the trust will continue 
 only so long as the thing to be secured demands. 
 
 Sole and Separate Use.— Kontzleman's Estate, 1882, 1 W. N. C. 467. 
 Property was bequeathed to trustees in trust to place and continue the same 
 at interest for the sole and separate use of a daughter and after her decease 
 for the proper use and benefit of persons entitled to the same under the in- 
 testate laws of Pennsylvania, and the separate use failed, the trust was not 
 executed in passing to the heirs. 
 
 Void Direction— How Supported. — Butler v. Butler, N. P. 1872, 4 Leg. 
 Op. 552. An intention that the cestui que trust should not have possession of 
 his estate until he became twenty-eight is lawful and will support an active 
 trust, but a direction that he shall accumulate, falls upon the beneficiary 
 coming of age. 
 
 What Are.— Varner's Ap., 1878, 6 N. 422, S. C. 6 W. N. C. 409, rev'g. 
 37 Leg. Int. 50. A devise to trustees to pay over the income to B. until she at- 
 tains the age of twenty-five years and then to give her the principal is an 
 active trust. 
 
 lb.— Osborne «. Soley. 1876, 32 S. 312, S. C. 2 W. N. C. 533, 6 Luz. L Reg. 
 59, 8 Leg. Gaz. 115, 23 Pitts. L. J. 172. A devise to trustees to pay the in- 
 terest to testator's son until he die, followed by a gift of the principal to the 
 son's children is an active trust. 
 
 lb.— Deihert's Ap., 1875, 28 S. 296, 'S. C. 7 Leg. Gaz. 349. A testator di- 
 rected that A. should be trustee and hold and take care of his estate, and 
 that his children should draw the interest and if the trustee sees proper he 
 may give them part of the principal. Held to be an active trust. 
 
 lb. — Eachus' Ap., 1879, 10 N. 105. Where after a general devise to his 
 children a testator directs that George's share is to remain in the hands of 
 the executors for George's benefit and to that end that he receive only the 
 interest annually, an active trust is created. 
 
 lb. — Earp's Ap., 1874, 25 S. 119, 6 Lan. Bar. No. 4, 6 Leg. Gaz. 197, 21 
 Pitts. L. J. 169. A devise in trust to collect the profits and pay over one- 
 fourth to each of the testator's four children, and on the death of any child 
 to pay one-fourth of the principal to his appointee, creates an active trust. 
 
 lb.— Phillipp's Ap., 1876, 30 S. 472, S. C. 2 W. N. C. 483, 8 Leg. Gaz. 74. 
 A direction to executors to convert the estate into good securities and pay 
 over the income to the testator's children for life, so that the same should 
 not be subject to their debts, etc., remainder in fee to the heirs or appointees 
 of the children creates an active trust. 
 
 lb.— Yarnall's Ap., 1872, 20 S. 335, S. C. 4 Lan. Bar. No. 21, 3 Leg. Op. 
 262. A testator devised lauds in trust for her daughters for life with a 
 
TRUSTS AND TEUSTEKS. 539 
 
 power of appointment and in case that is not exercised, to those entitled 
 under the intestate law. Held that the daughters took an equitable estate 
 in fee, the trust being executed although by its terms active. 
 
 lb.— Bacon's Ap., 1868, 7 S. 504, aff'g. 24 Leg. Int. 12, 6 Phila. 83S. A trust 
 to receive and pay over rents and profits Is an active one. 
 
 lb.— Enderiss t'. Harkness, 1876, 3 W. N. C. 366. A devise in trust until 
 the beneficiary shall be twenty-five years of age is not active after the bene- 
 ficiary becomes of age. 
 
 lb.— Crosby v. Davis, 1843, 2 Clark, 403, S. C. 4 Pa. L. J. 193. 4 trust 
 in which the trustee is to collect the rents and profits and pay them over to 
 the cestui que trust or allow the latter at his option to use or occupy the land 
 himself is active. 
 
 lb.— Barnett's Ap., 1864, 10 "Wr. 392. A devise to trustees to invest, 
 collect the income, and pay over to the beneficiary, is an active trust and 
 will be sustained though the cestui que trust be sui juris. Kuhn v. Newman 
 overruled. 
 
 lb. — Kuhn V. Newman, 1856, 2 C. 227. By our lawwherever the trustees 
 have no duty to perform which requires the title to be in them the equitable 
 estate is considered as the estate and so a conveyance of the legal title to them 
 is unnecessary. It follows that wherever the whole beneficial interest is 
 granted or devised, all restraints are fruitless. 
 
 lb. — Livezey's Ap., 1884, 10 Out. 201. A devise to a son with a proviso 
 that his portion be held in trust for his use, and that upon his death the 
 principal shall go to his heirs upon their coming of age, creates an active 
 and valid trust. 
 
 lb.— Kitchen's Est., O. C. 1857, 14 Leg. Int. 196, S. C. 2 Phila. 292. A 
 trust to sell property and pay over the proceeds to certain beneficiaries as 
 they respectively arrive at a certain age, is an active trust. 
 
 ijj.- Fidelity Trust Co.'s Ap., 1878, 5 W. N. C. 513. A trust to collect 
 and pay over income, and on certain contingencies to reinvest, the estate at 
 the death of the cestui que trust to go to her appointees, is active. 
 
 lb.— IngersoU's Ap., 1878, 6 W. N. C. 125. A trust will be construed to 
 be active where it is designed to support contingent remainders. 
 
 lb.— Keene's Est., 1876, 31 S. 133, S.C.W.N.C. 419, 23 Pitts. L. J. 146, afl'g 
 30 Leg. Int. 404, 9 Phila. 339. A devise of the income of an estate to one 
 for life, remainder to her children, if any, otherwise to her brothers, the 
 income to be paid only to her or her order. The beneficiary was the only 
 executor who survived the testator. JSsZd! (1 ) that the trust was active; 
 (2) that the beneficiary being executor and trustee need not give security 
 to those in remainder. 
 
 lb.— Solms V. Philadelphia Trust Co., C. P. 1885, 42 Leg. Int. 151, S. C. 
 16 W. N. C. 80. Whenever the corpus of an estate is under the control of 
 trustees, and only the usufruct of the income is secured to the beneficiaries, 
 or where the income is to be paid to one class and the remainder is secured 
 to another, the trust is active. 
 
 lb.— Lightner's Ap., 1881, 11 W. N. C. 181. A devise in trust for "a 
 wife of B. and to her husband's assigns forever," with large powers of man- 
 agement vested in the trustee, is an active trust and not a mere separate 
 use. 
 
 lb.— Husband and Wife.— Ryan's Est., C. P. 1883, 14 W. N. C. 79. A 
 trust created by a wife in her will for her husband for life free from his 
 debts, then for her children for life with remainder to their heirs, is an ac- 
 tive trust throughout. 
 
 lb. — Minor. — Wickham V. Berry, 1867, 5 S. 70. An active special trust 
 for a minor for life, is not considered executed by his arrival at majority. 
 
 lb.— Sole and Separate Use.— Lightner's Ap., 1881, 11 W. N. C. 181. 
 A devise in trust " for A., wife of B., and to her heirs and assigns forever " 
 
540 TRUSTS AND TRUSTEES. 
 
 ■with large powers of management vested in the trustee, is an active trust 
 and not a mere separate use. 
 
 lb.— lb.— Williams' Ap., 1877, 2 N. 377, S. C. 4 W. N. C. 189. A de- 
 vise in trust for the separate use of a married woman for life, with a power 
 of appointment, and in case it is not exercised in trust for her children, if 
 any, is a valid active trust even after the death of her husband ; but not in 
 the absence of the provision of a trust for the children. 
 
 lb.— Spendthrift.— Phillip's Ap., 1876, 30 S. 473, S. C. 2 W. N. C. 483, 
 8 Leg. Gaz. 74. A direction to executors to convert the estate into good 
 securities and pay over the income to the testator's children for life so that 
 the same should not be subject to their debts, etc., remainder in fee to the 
 heirs or appointees of the children, creates an active trust. 
 
 lb.— lb.— Ash's Ap., 1876, 30 S. 497, S. C. 2 W. N. C. 460, 8 Leg. Gaz. 
 73. A trust for the life of the beneficiary, with remainder to living children, 
 the trust to protect the beneficiary from her own acts as well as from those 
 of any husband, the trustees having active duties to perform, is a valid 
 active trust. 
 
 (c.) Declaration of Triist. 
 
 Act of April 22, 1856— Prospective.— Ballentine v. White, 1874, 27 S. 
 20, S. C. 1 W. N. C. 66. Act April 22, 1856, S. 4, requiring declarations of 
 trusts to be in writing, is prospective. 
 
 Assignment of Policy. — Bond v. Bunting, 1875, 28 S. 210. An assign- 
 ment of part of a policy of insurance was executed on the back of the instru- 
 ment but not delivered. Though not good as an assignment it would be 
 supported in equity as a declaration of trust. 
 
 Bargain and Sale. — Morrison v. Beirer, 1841, 2 W. & S. 81. A deed of 
 bargain and sale, which is invalid for lack of a valuable consideration and 
 a competent grantee, may be supported as a declaration of trust. 
 
 Conveyance in Trust— Grantee— Refusal to Make Declaration.— 
 
 Newmyer's Ap., 1872, 22 S. 121. A party to whom land has been conveyed 
 as trustee for a certain purpose, is not justified in refusing to make a decla- 
 ration of trust for that object by receiving notice to that effect from certain 
 parties interested, and in this case the costs were imposed on him. 
 
 Creditors — For Certain — Specified Amounts.— Browne v. Weir, 1819, 
 5 S. & R. 401. A declaration of trust for certain specified creditors in cer- 
 tain specified amounts or proportions, is good as to |13,000 (the full debt), 
 where the sum is put down " about $1,000." 
 
 Declaration of Trust and Absolute Deed Executed Same Day.— 
 Greenfield's Est., 1850, 2 H. 489. An absolute deed and a declaration of 
 trust by the grantees made the same day, are to be treated as one transac- 
 tion. 
 
 Executor Repudiating.— Evans v. Dunning, D. C. 1860, 17 Leg. Int. 
 117, S. C. 4 Phila. 45. An executor who after having invested fundsof the 
 estate in real estate, made a declaration of trust, cannot after his accounts 
 are settled and the danger of a surcharge at an end, repudiate the declara- 
 tion of trust on the ground that the settlement is conclusive. 
 
 Husband and Wife.— Meyer's Ap., 1875, 27 S. 482, S. C. 7 Leg. Gaz. 
 212. Declarations of a husband when receiving his wife's money, that he 
 receives it for her, rebut the presumption of conversion for his own use, and 
 raise a trust for the wife. 
 
 lb.- Land Conveyed to Husband— Wife's Legacy. —Cowdenj). Oyster, 
 1865, 14 Wr. 368. Land conveyed to a husband before the act of 1848, in 
 lieu of a legacy due his wife, cannot be claimed by her, nor will loose parol 
 declarations by him after he got the land make liim a trustee. 
 
TRUSTS AND TRUSTEES. 541 
 
 Nominating Administrator.— Grossman's Ap., 1862, 6 Wr. 147. One 
 entitled to an estate executed a paper nominating another as administrator, 
 and agreeing with other relatives that the administrator should make cer- 
 tain disposition of the property. She afterwards sought to break the agree- 
 ment on the ground that the other signers were minors. Held that apart 
 from their signatures the paper was a valid declaration of trust by her. 
 
 Parol.— German v. Gabbald, 1811, 3 Bin. 302. A declaration of trust 
 may be made by parol in Pennsylvania. 
 
 lb.— Blaich V. Bixenstein, C. P. 1875, 2 "W. N. C. 301. A promise by a 
 creditor to a debtor, by means of which he is enabled to buy in the latter's 
 property, does nol raise a trust according to the terms of the parol promise. 
 
 lb. — Freeman v. Freeman, 1851, 2 Pars. 81. A parol declaration of trust 
 made by the grantor at the time of a conveyance on no other consideration, 
 is binding on the grantee. But a parol declaration by a grantee that he 
 holds for the benefit of another, does not raise a trust unless that other has 
 paid the purchase money. 
 
 lb. — Blyholder v. Gilson, 1851, 6 H. 134. A mere declaration of one 
 about to purchase land that he is acting for another, will not raise a trust. 
 
 lb. — Siddle V. Walters, 1836, 5 W. 389. An announcement by one who 
 has purchased land that he has purchased it in trust, will not in the absence 
 of a prior agreement or payment of the purchase money, raise a trust. 
 
 lb. — Harrison v. Soles, 1847, 6 Barr, 393. An oral agreement between a 
 judgment creditor and his defendant, that the former shall purchase the 
 property of the latter at sheriff's sale and hold it subject to redemption, 
 will be enforced. 
 
 lb.— Act of April 22, 1856.— Moffit v. Eynd, 1871, 19 S. 380, S. C. 2 
 Leg. Op. 189. Act April 22, 1856, does not prohibit a parol declaration of 
 trust as to personalty. This rule applies though the personalty upon which 
 the trust was thus impressed is the proceeds arising from a sale of land, 
 the trust in which was not enforceable under the act. 
 
 lb.— Cestui que Trust— Possession.— Smith v. Tome, 1871, 18 S. 158. 
 The limitations under which a parol trust of lands can be enforced do not 
 apply where the cestui que trust is in possession. 
 
 lb. — Conversion. — Hess' Ap., 1886, 43 Leg. Int. 314 Where land has been 
 sold and converted into money, verbal declarations are sufficient to show 
 that there had been a trust in the land which attaches to the money. 
 
 lb.— Gift— Husband and Wife.— Crawford's Ap., 1869, 11 S. 52. A 
 husband credited his wife with $3,000 on his books and shortly afterwards 
 told her he had given her that amount. After his death she claimed this 
 amount out of the estate. Held that as a debt it could not be collected, but 
 that the whole transaction constituted an acknowledged gift with a super- 
 added trust. 
 
 lb.— Personal Estate.— Hess' Ap., 1886, 3 L. L. E. 281. The act of 
 April 22, 1856, raises no bar as to the enforcement of a parol declaration of 
 trust in respect to personal estate. 
 
 lb.— Payment of Purchase Money.— Fricke v. Magee, C. P., 1881, 10 
 W. N. C. 20, S. C. 12 Lan. Bar. 196, 38 Leg. Int. 139, 15 Phila. 261. Since act 
 April 22, 1856, no trust can be established by parol unless the alleged cestui 
 que trust paid the purchase money, or there was fraud at tlie time of the pur- 
 chase. 
 
 lb.— Record— Purchase.— Yerkes v. Barr, 1886, 3 L. L. E. 307. One 
 who purchases real estate in fee simple without putting on record a declara- 
 tion of trust, cannot, after five years time, allege that he holds the land in 
 trust and claim reimbursement for losses. 
 
 lb— Statute of Frauds.— Peebles v. Beading, 1822, 8 S. & E. 484, Act 
 March 21, 1762, for the prevention of frauds and perjuries does not prevent 
 a parol declaration of trust. This omission cannot be imputed to accident. 
 
542 TEUSTS AND TEUSTEBS. 
 
 lb. — lb. — Geiger )). Miller, 1854, 12 H. 109. A verbal agreement by a 
 purchaser of land with another that he will let him share in the purchase 
 on payment of half the purchase money, is within the statute of frauds. 
 
 lb.— lb.— Hess' Ap., 1886, 2 Am. 168. Under act of April 22d, 1856, 
 Sec. 4, providing thata trustshall he invalid if not " manifested by writing, 
 signed by the party holding the title," a parol declaration of trust in respect 
 to lands cannot be enforced. But a sale by the trustee of lands held in 
 trust, converts them into personalty, and a subsequent declaration of trust 
 in respect to the proceeds of the sale impresses them with the trust, again.st 
 the enforcement of which said act raises no bar. 
 
 lb. — Statute of Limitations — Resulting Trust. — Smith's Est., 1888, 
 5 L. L. Rec. 153. Although a letter containing a declaration of trust, but 
 not giving the location and boundaries of the real estate, nor the county or 
 state in which it is situated, is not a sufficient declaration under Sec. 4, act 
 22 April, 1856, yet such written acknowledgment of the subsistence of a re- 
 sulting trust is sufficient under the sixth section of said act to prevent an 
 action being barred within five years. 
 
 Payment of Purchase Money. — Lloyd v. Lynch, 1857, 4 C. 419. A 
 declaration by one about to purchase land that he buys for his son, does not, 
 in the absence of evidence of a previous contract or payment of the purchase 
 money by the latter, make him a trustee. 
 
 Beceipt. — Hays v. Luay, 1871, 18 S. 263. A receipt in these words, 
 "Whereas, I have purchased from R. 100 acres which was intended for my 
 sister Elizabeth, therefore, I do acknowledge the receipt of $100 from my 
 father to be paid to R. on account of said land," does not establish <t trust 
 for Elizabeth, nor does it enlarge a declaration of trust for half the land into 
 a trust for the whole. 
 
 lb. — Roberts' Ap., 1880, 11 N. 407. A receipt acknowledging that one 
 has furnished one quarter of the purchase money for certain lands is a valid 
 declaration of trust. 
 
 Sheriff's Sale— Specific Performance.— Carhart's Ap., 1875, 28 S. 100, 
 S. C. 1, W. N. C. 476, 7 Leg Gaz. 237. One purchasing at sherift's sale ex- 
 ecuted a paper declaring that he purchased for certain trusts. There was no 
 evidence that the paper was executed in fulfilment of any binding agree- 
 ment, or that there was fraud attending the sale. Held that equity would 
 not decree a trust. 
 
 Vendor and Vendee— Mortgage.— Pattison v. Horn, 1853, 1 Gr. 301- 
 304. A trust cannot be established by a mere promise by the vendee to a 
 third person that he will hold for his benefit, but if the promise is made to 
 the vendor for whom the vendee is surety, a mortgage may be established. 
 
 What is a Sufl5.cient.— Pickerson's Est., 1886, 2 P. C. C. 223 An as- 
 signment and transfer of registered bonds to the assignor as trustee for a 
 child, fallowed by an enclosure of the same in an envelope, endorsed with 
 the statement that they belong to the assignor as trustee for the child, will 
 be effectual as a declaration of trust, although assignor continues to use the 
 income during his life. 
 
 lb. — Evans' Est., 1888, 46 Leg. Int. 6. The words addressed by a testa- 
 tor to her debtor, " I would like you to take the $9,700 and divide among 
 them ; I don't want you to cripple yourself, just pay it when it suits you," 
 do not constitute a valid declaration of trust for the parties named. 
 
 lb.— Contract.— Fallon's Ap., 1862, 6 Wr. 235. One indebted made a 
 declaration of trust to A. in favor of B., B. at the same time contracting to 
 pay all the other debts of the grantor out of the fund and to receive the bal- 
 ance as absolute payment. Held not to be an assignment for creditors. 
 
 lb.— Will, Invalid. —Long's Ap., 1878. 5 K 196, 5 W. N. C. 309. A 
 paper which is evidently of a testamentary character, but which is wholly 
 invalid as a will, cannot be treated as a declaration of trust, since this 
 would defeat the statutes as to wills. 
 
TRUSTS AND TEUgTEES. 543 
 
 Writing Necessary.— Dyer's Ap., 1885, 32 Pitts. L. J. 277. The writ- 
 ing which must now manifest a trust in lands must contain everything 
 necessary to enable a chancellor to declare a trust and make a decree in favor 
 of the beneflcai'ies. 
 
 (d.) Passive Trusts, 
 
 Feme Sole.— Rea v. Girard Trust Co., C. P. 1885, 42 L^. Int. 152, S. C. 
 16 W. N. C. 48. A trust for a feme sole to permit her to take, receive and 
 enjoy the rents and income for her sole and separate nse, so that the same 
 shall not be in the power or liable for the debts of any future husband, with 
 a limitation to her appointees or right heirs is a passive trust. 
 
 Legacy— Payment — Priority.— Harper's Ap., l Amer. 243. Although 
 a trust is plainly a dry one, yet where the trustee has been awarded the 
 trast fund in an orphans' court, a legacy to such trustee is founded upon 
 sufficient consideration to entitle it to priority of payment over general 
 legacies in event of a failure of assets to pay all. 
 
 Marketable Title.— Murray v. Ellis, 1886, 17 W. N. C. 391. An out- 
 standing title in the hands of a dry trustee prevents the title from being 
 marketable until the trustee conveys to the holder of the beneficial title. 
 
 Married Women.— Hartley 's Est., O. C. 1 880, 37 Leg. Int. 383. The rule 
 that where a cestui que trust is invested with all the privileges of ownership 
 the trust shall be deemed executed does not apply to trusts for married 
 women where the evident intention is to keep the control from the husband. 
 Remote Limitation.— Campbell v. IngersoU, C. P. 1875, 2 "W. N. C. 11! 
 32 Leg. Int. 356. A trust in favor of two ueices, remainder, upon the death of 
 the survivor without issue, to B. is a dry trust, the limitation over is too 
 remote and there is nothing to support the trust. 
 
 Sole and Separate Use. — Howard v. Low, 1882, 39 Leg. Int. 383. A 
 trust intended to create a separate use in several children, minors and not 
 contemplating marriage is executed by the statute. 
 
 What Are. — Kinsel v. Ramey, 1878, 6 N. 248. A devise to trustees of 
 B. for her own use and benefit and the heirs of her body, is a passive trust 
 and vests a fee in B. 
 
 lb. — Keyser's Ap., 1868, 7 S. 236. A devise to trustees for the testator's 
 " son and his heirs," there being no active duties to perform is a dry trust. 
 Another clause directed it should not be liable for the debts of his son, had 
 the devise been to the son for life with a power of appointment this clause 
 might have saved the trust but tacked on as it is to an equitable estate in 
 fee it is a void restraining condition. 
 
 lb. — Dodson V. Ball, 1869, 10 S. 492. A feme sole, granted property in 
 trust for herself and after her death for certain others. Held that the trust 
 was pas.sive, that the ulterior trusts were not intended to protect any special 
 interest, but were exactly commensurate with her own power over the 
 property, therefore the trust would not be supported. 
 
 lb.— Kay V. Scates, 1860, 1 Wr. 31. A devise to trustees to invest in real 
 estate in their own names, to keep the property insured and after the cestui 
 que trunt reaches 25 years of age to pay him the income, stipulating that his 
 own receipt shall be their only sufficient discharge, is a dry trust, which the 
 statute executes upon the beneficiary's arriving at the age of 25. The sub- 
 ject of active and passive trust discussed at length by Steong, J. 
 
 (c.) Perpetuities. 
 
 Active Trust.— Briggs v. Davis, 1875, 32 S. 430. A devise of land toex- 
 ecntor to manage during the lives of testator's children with a gift of the 
 
544 TRUSTS AND IBUSTJEKS. 
 
 fee to their children is an active trust and does not transcend the law against 
 perpetuities. 
 
 lb.— Goehring's Ap., 1875, 32 S. 283. A trust for three children or their 
 issue to last until the survivor of the three should die and then in trust for 
 their right heirs does not create a perpetuity, since the active trust extends 
 but for lives in being and the further directions merely refer to the course 
 of estate in remainder. 
 
 Alternative Limitation.— Phillip's Ap., 1880, 12 N. 45. A limitation 
 of a trust estate does not transgress the rule against perpetuities if in any 
 event it is to determine at the majority of certain persons who shall be liv- 
 ing at the death of the first taker (the first taker being in esse at the crea- 
 tion of the trust) though there be many alternative limitations. 
 
 Class Legacies. — Williamson's Estate, 1887, 44 Leg. Int. 176. A lim- 
 itation to grandchildren not void as violating the rule against perpetuities, 
 will not defeat a trust in which it is embodied. 
 
 Construction of Instrument.— Smith's Ap., 1879, 7 N. 492. To de- 
 termine whether the exercise of a power of appomtment creates a perpetuity 
 the appointment and the instrument creating the power must be read as one 
 instrument and if under the disposition made by the two papers the rule 
 might have been broken (the appointment being to a class) the appointment 
 is void though in fact all the appointees were alive when the first instrument 
 took effect. 
 
 (/.) PretM,tory Words. 
 
 Confidence, Words Expressive of— Pennock's Est., 1853, 8 H. 268. 
 Words in a will expressive of confidence, do not raise a trust in the absence 
 of other evidence of that intention to be gathered from other parts of the 
 will. 
 
 lb.— Eight to Demand Security.— Friedley's Appeal, 1869, 10 S. 344. 
 A testator devised a sum to A. "in trust for and to be divided amongst his 
 nine children in such manner and at such times as he sees fit. ' ' Held not 
 to be a strict trust, but a confidence that in the end A. would distribute the 
 fund among his children. The children, therefore, "have no claim on the in- 
 come, but may demand that A. give security for the principal. (Read J., 
 dissenting.) 
 
 Imperativeness. — Burt«. Herron, 1870, 16 S. 400. Mere precatory words 
 will not convert a legatee or devisee into a trustee unless it be made to ap- 
 pear that they were imperative. 
 
 Implied Trust — Intention.— Parker's Ap., 1869, 11 S. 478. An implied 
 trust to executors may arise from the intention of the testator as gathered 
 from the will ; but does not arise from the use of the words ' ' the interest to 
 be paid her dm-ing life." 
 
 Laches.— Kennedy o. Kennedy, 1874, 1 W. N. C. 33. Equity will not 
 move to enforce a clause in a will expressing the desire of the testator that 
 his daughter should have a home in the mansion house, when she has neg- 
 lected to avail herself of her right for three years. 
 
 Parol.— Franken's Est., O. C. 1885, 15 W. N. C. 455. A devise to one 
 " in trust and confidence that he will carry out my wishes this day to him 
 verbally expressed," creates a trust. 
 
 Previous Grant. — Hopkins v. Glunt, 1886, 1 Am. 287. Precatory words 
 cannot modify a previous absolute bequest. 
 
 Sufficiency of — Coate's Ap., 1845, 2 Barr, 129. Words in a will expres- 
 sive of desire and confidence as to the disposition of either real or personal 
 estate, create a trust. 
 
TRUSTS AND TRUSTEES. 545 
 
 lb.— Biddle's Ap., 1876, 30 S. 258. A testator gave his estate to tru.stees 
 lo pay the income to his wife "to be used by her in the support of my 
 children * * * for which she shall not be called on to give any ac- 
 count * * * and over which she shall have absolute control. " Seid that 
 the widow was not a trustee. 
 
 (g.) Resulting Trusts. 
 
 Act of April 22, 1856.— Hayes' Ap., 1889, 8 Crura. 110. To establish a 
 resulting trust under the act of April 22, 1856, the implication niust arise 
 from payment of the purchase money, a parol agreement is onlv important 
 as showing the purpose of the parties with reference to the payment. 
 
 Fb.— Actual Fraud.— Christy v. Sill, 1880, 14 N. 380, S. C. 2S Pitts. L. 
 J. 101. Act April 22, 1856, S. 6. ajiplies to cases ol trusts arising from 
 actual fraud. These are not within the exception. 
 
 lb.— Entry.— Douglass v. Lucas, 1869, 13 S. 9. The act of April 22, 1856, 
 requiring resulting trusts not evidenced by a writing to be enforced within 
 five years, is not properly a statute of limitations, and is not tolled by a 
 bare entry. There is, however, great reason and justice for holding that if 
 the trustee permits the cestui que trust to occupy and enjoy the land as owner, 
 he shall not be permitted to claim the benefit of the act. 
 
 lb.— Minors.— Miller v. Franciscns, 1861, 4 Wr. 335. Act April 22, 1856, 
 S. 6. (P. L. 582), limiting actions to enforce resulting trusts, has no proviso 
 as to minors, but the act of March 26, 1785, has, and this exception is not 
 repealed by the late act. 
 
 lb.— Mortgage.— Kroft v. Smith, 1887, 2 W. N. C. 233. In the absence 
 of clear proof of fraud a parol agreement by a purchaser of real estate at 
 sheriff's sale, to convey the same to the defendant in the execution as soon 
 as the latter shall repay the purchaser i\is advances, does not raise a result- 
 ing trust enforceable under the act of April 22, 1856, sec. 4 (P. L. 533). 
 Nor can such a transaction be received as a mortgage. 
 
 Advancement.— Murphy u Nathans, 1864, 10 Wr. 508. Where a mother 
 purchases real estate and takes title in the name of her daughter, the pre- 
 sumption of an advancement rebuts the contrary presumption of a resulting 
 trust. 
 
 lb.— Husband and Wife.— Peiffer v. Lytic, 1868, 8 S. 386. A convey- 
 ance of land to a husband, the father-in-law paying the price and declaring 
 it to he an advancement, raises a resulting trust for the wife. 
 
 Agreement— Expi'ess.— Lynch «. Cox, 18.54, 11 H. 265. Where one not 
 the grantee pays the purchase money and takes possession, the law implies 
 a trust, and no express agreement need be proved. 
 
 lb. — Plumer v. Eeed, 1860, 2 Wr. 46. One in possession under articles 
 of agreement surrendered tliem on consideration that the parties repurchas- 
 
 - ing the land .should make him title to a part of it. Held to be evidence of 
 a resulting trust in his favor. 
 
 lb.— Pending Ejectment.— Weaver's Ap., 1887, 19 W. N. C. 101. Where 
 
 an agreement has been signed by the plaintiff in a pending ejectment suit, 
 
 by which he agrees to pay certain judgments to a judgment creditor of the 
 
 . same defendant as the plaintiff out of the proceeds of the land in qase of re- 
 
 - covery, the title to the land so recovered will be held by the plaintiff in 
 trust to pay said judgments, and a bill in equity will lie to compel pay- 
 ment. 
 
 lb. — ^Receipt. — Harrold V. Lane, 1866, 3S. 268. Evidence of an arrange- 
 ment between heirs that one should buy in the property for all, supported 
 by a receipt given by the one for money received from one of the other "to 
 be accounted for in settlement of the real estate," establishes a resulting 
 "trust. '■,' 
 
 35 — EQUITY. 
 
546 TEUSTS AND TRUSTEES. 
 
 lb.— To Pay Part of Purchase Money.— Beidler v. Miller, C. P. Berks, 
 864, 1 Wood. Dec. 222. The fact that one agrees with a purchaser of 
 lands to be equally responsible for half the purchase money, will not raise 
 a resulting trust unless perhaps the vendor is a party to the agreement. 
 
 Assignment of Kight of Settlement.— Call v. Webb, 1878, 7 N. 150. 
 , Where a settlement right had been sold to a person, the deed containing 
 the stipulation, "provided I, the said grantor, am entitled to hold the said 
 tract by my settlement," the fact that one of his heirs bought in a good 
 title to the premises will not raise a resulting trust in favor of the other 
 heirs, and, in any event, after thirty-seven years they have no claim. 
 
 Assignee for Creditors After Thirty Years.— Potter's Est., 1867, 4 S. 
 465. Assignees for creditors made a final dividend twenty-six years after 
 the assignment. Thirty years later it was held the assignor was entitled 
 to a balance in their hands there being always a resulting trxist in favor of 
 the grantor. 
 
 Attorney and Client. — Leisenring v. Black, 1836, 5 Watts, 303. An at- 
 torney for plaintiff in an execution cannot buy the property for a less sum 
 than the j udgments of his clients, nor can he purchase in the name of one 
 client. In either case there is a resulting trust. 
 
 Debtor and Creditor— Resulting Trust in Grantor.— Blank v. Ger- 
 man, 1842, 5 W. & S. 36. A conveyance by a debtor to his creditors, of land 
 subject to an encumbrance, in consideration of a release of their debts, is 
 but an assignment for creditors, and a resulting trust remains in the grantor 
 as to any surplus. 
 
 Decedent's Estates— Debtor and Creditor.— Best r. Campbell, 1869, 
 2 S. 476. The debtor of an estate conveyed land to the widow in fee, in pay- 
 ment of his indebtedness. The son's only claim lay in setting up a resulting 
 trust, and in this he was barred by the act April 22, 1856, limiting such 
 action to five years. 
 
 lb.— Husband and Wife.— Bigley et al. v. Jones, Trustee, 1886, 4 Amer. 
 511. Where lands of a decedent were sold by order of court in proceedings 
 in partition, "and were purchased by the husband of one of the heirs, who 
 paid the purchase money less the amount his wife was to receive, and the 
 latter executed a release to the master who made a deed to the husband 
 alone. Held, a trust resulted in favor of the wife to the extent of her in- 
 terest in said real estate. 
 
 Equitable Estate— Undisposed. — Huston v. Hamilton, 1810, 2 Bin. 387. 
 Where an estate is conveyed in trust for certain uses, a resulting trust 
 arises by implication of law, for the benefit of the grantor, for all such part 
 of the equitable estate as was not disposed of by the deed. 
 
 Evidence. — Beck V. Graybill, 1857, 4 C. 66. A trust resulting fix>m pay- 
 ment of the purchase money or an advancement, is not within the rule that 
 an express agreement must be proved. 
 
 lb.— Error— Prima Facie Case.— Baumgardner v. Shoff, 1878, 10 Lan. 
 Bar, 51. Where a plaintiff in ejectment has established a, prima facie case 
 of a resulting trust, it is error to rule out evidence tending to sustain the 
 trust. 
 
 lb.— Family Arrangement.- O'Hara v. Dilworth, 1872, 22 S. 397, S.C. 20 
 Pitts. L. J. 63. By a family arrangement a husband, or one of his heirs, 
 purchased land at orphans' court sale, and agreed to transfer it to his wife 
 upon her attaining majority. The wife received her share of the purchase 
 money. Held, that there was not sufficient evidence of a resulting trust to 
 go to the jury. 
 
 lb.— Jury. — McBarron v. Glass, 1858, 6 C. 133. The court should not 
 permit evidence of a resulting trust to go to the jury, if, in its opinion, the 
 evidence, if true, wotild not move a chancellor. 
 
 lb. — Land Warrant in Son's Name. — Sampson v. Sampson, 1818, 4 S. 
 & B. 329. Where a father takes out a land warrant in his son's name, evi- 
 
TRUSTS AND TBUSTEES. 547 
 
 denee may be given of acts of ownership on the part of the father to rebut 
 the presumption of an advancement to the son and to establish a resulting 
 trust in the father. 
 
 lb.— Necessary to Establish.— Kline's Ap., 1861, 3 Wr. 463. A hus- 
 band and wife contracted to buy land. Title vpas taken in the name of the 
 husband and he paid the purchase money. Seld, that the wife could not 
 establish a resulting trust by loose declarations the husband made after the 
 land was encumbered, that the purchase money was the wife's. 
 
 lb.— lb.— Buchanan v. Streeper, C. P. 1882, 11 W. N. C. 434, S. C. 39 
 Leg. Int. 168, 15 Phila. 309. Evidence to establish a resulting trust must 
 be clear and full, and go distinctly to the fact of payment. 
 
 lb.— Parol.— Warren v. Stover, 1886, 2 Am. 634. The presumption that 
 a trust resulted to one at the time of purchasing land, arising from the pay- 
 ment of the purchase money, may be overcome by parol evidence of his in- 
 tention otherwise at the time of the purchase. Declarations made after- 
 wards, and not bearing upon his intention at the time of the purchase, can- 
 not aflfect the title. 
 
 How Created.— Sheetz v. Marks, C. P. Dauphin, 1878, 2 Pears. 302. 
 Where a trustee uses trust money to buy land which he afterwards ex- 
 changes for other land, a resulting trust arises which follows the second 
 tract into the hands of an. assignee for creditors. 
 
 lb.— Voluntary Assignment.— Webb r. Dean, 1853, 9 H. 29. A volun- 
 tary assignment for creditors leaves a resulting trust in the assignor which 
 can be bound by a judgment against him. 
 
 lb. — Owner of — Trustee's Assignment. — Wolf ». Eichelberger, 1831. 2 
 P. & W. 346. One having a resulting trust in land can claim the proceeds 
 , of the sale of that land in the hands of the trustee's assignee for creditors. 
 
 How Raised.— Wolfif, Jr.'s Ap., 1889, 8 Crum. 438. A resulting trust 
 cannot be raised by a charge of the purchase money as an advancement, the 
 charge having been made two years before the purchase. 
 
 Husband and Wife— Purchase by Husband in Wife's Name. — Wylie 
 V. Marsley, 1888, 45 Leg. Int. 486. There is no resulting trust in favor of 
 a husband by reason of a purchase by him with his money in the name of 
 his wife, and nothing but clear and convincing evidence of intention will 
 create such a trust. 
 
 Joint Purchasers. — Deitzler !>. Mishler, 1860, 1 Wr. 81. Where one of 
 several joint purchasers gives his bond to an associate for his share of the 
 purchase money, but fails to pay the same, there is no resulting trust in his 
 favor. 
 
 Laches. — Graham v. Donaldson, 1836, 5 W. 451. A purchaser at sherift's 
 sale agreed before buying to hold it for the defendant who could redeem by 
 repayment of debt, interest, costs, etc. Held that after ten years of inaction 
 the defendant's right was barred. 
 
 lb. — Hassler v. Bitting, 1864, 4 Wr. 68. After twenty-four year's 
 laches in asserting a resulting trust, and during all that time assenting to 
 another agreement, a court of equity will not consider the case. 
 
 Land Warrant.— VanHorne v. Frick, 1820, 6 S. & R. 90. The legal pre- 
 sumption is that the party paying the purchase money has the equitable 
 title in a land warrant, though the warrant be taken in another name, but 
 this presumption may be rebutted. 
 
 lb. — Folger V. Evig, 1796, 2 Yea. 119. Where one enters a location in the 
 name of another it shall enure to the benefit of the party applying without 
 further proof. 
 
 lb. — Cox V. Grant, 1792, 1 Yea. 164. The person in whose name a war- 
 rant or location is taken out is a trustee for him who entered it and paid 
 the money. 
 
548 TRUSTS AND TBUSTKES. 
 
 Parent and Child. — Wheeler v. Kidder, 1884, 9 Out. 271. No presumption 
 of a resulting trust arises where a vendee takes title in the name of his son. 
 
 lb. — Phillips V. Gregg, 1840, 10 Watts, 158. A purchase by a; parent in 
 the name of a child is, prima facie, an advancement and not a resulting trust. 
 
 lb.— Caldwell v. Caldwell, 1865, 2 Crum. 553, S. C. 12 Pitts. L. J. 274. 
 A deed by a father to his sou, in trust for the latter's children, -will be sup- 
 ported where the grantee pays the consideration. 
 
 lb.— McLaughlin v. Fulton, 1883, 8 Out. 161, S. C. 41 Leg. Int. 290. Where 
 ,a son had his mother's money in his hands for investment and with it bought 
 property and sold it and bought other, there is a resulting trust for the 
 mother, although in the second purchase the earnest money paid was the 
 son's, he at the time looking to his mother's money to complete the purchase. 
 
 Parol Agreement. — Jackman v. Ringland, 1842, 4 W. & S. 149. No re- 
 sulting trust arises from a parol agreement to purchase for another when the 
 purchaser pays his own money and takes title in his own name. 
 
 lb. — Sample v. Coulson, 1845, 9 W. & S. 62. A resulting trust, by parol, 
 can only be raised by fraud at the sale or payment of purchase money. 
 
 lb. — Salsburg v. Block, 1888, 4 Crum. 200. Where one purchased land 
 :\t sheriff's sale, under a verbal agreement with the party as whose property 
 it was sold, that he would buy for the latter with the right to redeem, the 
 latter furnishing no portion of the purchase money. Held that no resulting 
 trust ex malefieio was created and that the contract was within the statute 
 t>f frauds. 
 
 lb.— Breach of— Haines v. O'Conner, 1840. 10 W. 313. Breach of a parol 
 contract for the sale of land is not such mala fides as will raise a resulting 
 trust. 
 
 lb. — ^Ib. — Robertson v. Robertson, 1839, 9 W. 32. In all cases of fraud 
 there is a resulting trust by operation of law, but the mere breach of a parol 
 contract concerning land is not legal fraud. 
 
 Parol Declaration.— Kisler v. Kisler, 1834, 2 Watts, 323. Strictly 
 speaking, resulting trusts arise in but two instances : where the purchase 
 money i.s paid by one and the title is taken in the name of another, and 
 where a trust has been declared of but part of an estate from which the law 
 applies an intent to reserve the beneficial ownership of the residue. With 
 us a purchase v\ith trust fund is held a resulting trust because the money is 
 that of a cestui que irual. Further our statute of frauds does not prohibit 
 parol declarations of trust, this e.xtends to the declarations of the grantor but 
 not of the grantee, the former being a confidence reposed, the latter nothing 
 m.ore tiian a promise to convey the estate Avhich is forbidden by the other 
 .sections of the statute of frauds. It follows, that a purchase by a guardian 
 ^vith his own funds, of property -^hich he afterwards declared he held for 
 his ward, cannot be made out a trust for the latter by parol. 
 
 Partners, Ageement Between.— Lefevre's Ap., 1871, 19 S. 122. It 
 parties agree that partnership funds shall be applied to purcha&e property iu 
 the name of one of them, there is no resulting trust. 
 
 lb.— Deed to, as Tenants in Common.— Holt's Ap., 1881, 20ut. 257. A 
 deed to partners as tenants in common cannot be changed into a resulting 
 trust for the firm by proof that it was paid for by firm assets, even though 
 one of the partners did not sign the articles of agreement, he having been 
 mentioned as a vendee therein. 
 
 lb. — Ebbert's Ap., 1871, 20 S. 79. A deed made to partners, as tenants 
 in common, cannot, as to purchasers or as to creditors having liens on it, be 
 converted into partnership assets by parol; but as between partners, a trust 
 may result to the firm if the partners so treat it or if partnership funds paid 
 for it. 
 
 lb.— Purchase by— Partnership Funds.- Coder r. I-Iuling, 1856, 3 C. 
 84. A purchase of land by a partner with partnership funds creates a re- 
 
TRUSTS AND TRUSTEES. 549 
 
 suiting trust in favor of his co-partner to the extent of the lattet's interest 
 in the partnership, irrespective of the standing of their accounts with the 
 firm at that tirae. 
 
 Payment of Purchase Money.— Capehart v. Capehart, C. P. 1856, 13 
 Leg. Int. 43, S. C. 2 Phila. 134. To establish a resulting trust the fact of 
 the payment of purchase money by the cestui que trust must be clearly 
 proved. 
 
 lb.— Edwards v. Edwards, 1861, 3 Wr. 369. That payment of purchase 
 money raises a resulting trust is a mere presumption and may be rebutted, 
 but to do so by the declarations of the parties they must have been made at 
 the time of the purchase. 
 
 lb.— Nixon's Ap., 1869, 13 S. 279, S. C. 17 Pitts. L. J. 90. A resulting 
 trust is raised only from fraud in obtaining the title or from payment of the 
 purchase money at the very time the title is acquired. No subsequent pay- 
 ment will, by relation, attach a trust to the original purchase, unless, per- 
 haps, when made in fulfilment of an original verbal agreement which is 
 clearly proved. 
 
 Presumptionof— Vendor and Vendee.— Wheeler ii. Kidder, 1884, 9 Out. 
 271. No presumption of a resulting trust arises where a vendor takes title 
 in the name of his son. 
 
 lb.— Sharr v. Reed, 1864, 11 "Wr. 96. There is no presumption of a result- 
 ing trust where a father pays for land and has the deed made to his son. 
 
 Promise to Buy for Defendant.— Kellam v. Kellam, 1880, 13 N. 225. 
 A recovery can be had from one who has promised to bid in for the defend- 
 ant, his jjcrsonaZ property to be sold, although the facts of the case would raise 
 neither a resulting trust nor a trust ex malehcio. 
 
 Purchase Money Must be Furnished.— Engle v. Weidner, c. p. Lu- 
 zerne, 1872, 1 Luz. L. Reg. 769. To establish a resulting trust it is neces- 
 sary that the purchase money be furnished before an equitable title vests in 
 the vendee. , 
 
 Purchase in Wife's Name.— Bowser v. Bowser, 1876, 1 N. 57. Where 
 a husband purchasers property, and the title is taken in the wife's name, 
 there is no presumptions of a resulting trust except in favor of creditors. 
 
 Redemption for Debtor.- Sherifif v. Neal, 1837, 6 Watts, 534. One re- 
 deeming land for the debtor from a purchaser at a sheriff's sale is a trustee 
 for the debtor because by his agreement he prevented him from resorting to 
 other means for redeeming it, and must deliver up the land on being ten- 
 dered principal, interest and a reasonable compensation. 
 
 Sheriflf's Sale— Promise— Husband and Wife.— First National Bank of 
 Carbondale v. Cowperthwalte, 1881, 10 W. N. C. 532. No resulting trust 
 vrill result in favor of the wife of the judgment debtor at_ a sheriff's sale, 
 from a promise made to her by the purchaser that he will purchase it for 
 her. 
 
 Statute of Frauds— Guardian and Ward.— Kisler v. Kisler, 1834, 2 
 Watts, 323. Strictly speaking resulting trusts arise in but two instances ; 
 where the purchase money is paid by one and the title taken in the name 
 of another, and where a trust has been declared of but part of an estate from 
 which the law implies an intent to reserve the beneficial ownership of the 
 residue. With us a purchase with trust funds is held a resulting trust be- 
 cause the money is that of the cestui que trust. Further our statute of fraud s 
 does not prohibit parol, declarations of trust. This extends to the declara- 
 tions of the grantor but not of the grantee, the former being a confidence re- 
 posed, the latter nothing more than a promise to convey the estate which 
 is forbidden by the other sections of the statute of frauds. It follows, that 
 a purchase by a guardian, vrith his own funds, of property which he after- 
 wards declared he held for his ward cannot be made out a trust for the latter 
 by parol. 
 
560 TRUSTS AND TKUSTEES. 
 
 Statute of Limitations— Decedent's Estates— Title.— Melloru. Reed, 
 1887, 5 P. C. C. 372. A testator devised all his real estate to his executor 
 to convert the same into money and pay over to his wife to be used by her 
 for the benefit of herself and children. The executor conveyed to the widow 
 as principal beneficiary under the will, and the widow conveyed to one son 
 for a money consideration which was never paid. Son executed a mortgage 
 without notice of non-payment of purchase-money. Plaintiff claimed title 
 by sheriff's sale under the mortgage. Defendant claimed title through a 
 sheriff's sale on a judgment against widow and son, and a deed made by the 
 widow and children to him five years after possession was taken by the son. 
 Held the title became vested in the widow without a constructive or result- 
 ing trust in favor of the children, the children were barred after five years 
 under Act of April 22, 1856, sec. 6, from setting up their claim against the 
 son, and the plaintiff, being a purchaser for value without notice, took a good 
 title. 
 
 lb. — Taxes — Payment of. — Brock v. Savage, 1858, 7 C. 410. A result- 
 ing trust is not barred after twenty-one years if in the meantime the cestui 
 que trust has paid taxes and exercised acts of control. 
 
 Testamentary Trust. — Jones v. McKee, 1846, 3 Barr, 496. A mother 
 bad in her will left a tract to her sou and daughter. The son induced her 
 to leave it all to the daughter, half of it in trust for him. A codicil was 
 added leaving it all to the daughter absolutely, and the mother thereupon 
 asked her daughter if she understood that half of it was for her brother, and 
 the daughter assented. Held these facts established a trust. 
 
 Title Taken in Name of Another.— Gisafc. Neval, 1876, 31 S. 354. A 
 house was paid for with money given by one to his mistress, under a previous 
 promise that he would give her a house, title was taken in the woman's 
 flame. Held that no resulting trust arose. 
 
 When Arise. — Longdon v. Clouse, 1885, 42 Leg. Int. 510. A resulting 
 trust can only arise at the times when title is acquired, and the fact that the 
 grante'e afterwards calls his payment a loan to another, will not convert him 
 into a trustee. 
 
 lb. — Fraud. — Brickell et al. v. Earley, 1886, 5 Am. 476. A constructive 
 or resulting trust can only arise when title has been devised through fraud, 
 or through the purchase of it with the money of another. 
 
 lb.— Lapse of Time.— McCall v. Webb, 1878, 7 N. 150. Where a settle- 
 ment right had been sold to a person the deed containing the stipulation, 
 " provided I, the said grantor, am entitled to hold the said tract by my set- 
 tlement," the fact that one of his heirs bought in a good title to the premises 
 will not raise a resulting trust in favor of the other heirs, and in any event 
 , after thirty-seven years they have no claim. 
 
 lb.— Using Trust Funds on His Estate.— Cross' Ap., 1881, 1 Out. 471. 
 The fact that a trustee uses trust funds for improving his estate does not 
 give rise to either a resulting trust or an equitable lien. A resulting trust 
 can only arise at the inception of title, and an equitable lieu is unknown in 
 Pennsylvania j urisprudeuce. 
 
 Wife's Money— Note.— Rupp's Ap., 1882, 4 Out. 531, S. C. 12 W. N. C. 
 138 ; 30 Pitts. L. J. 32. Where a husband used his wife's money to com- 
 plete a purchase of land under an agreement to take the deed in her name 
 which he afterward broke, there will be a resulting trust to the wife though 
 she afterward receive a note for her share of the money. 
 
 (A.) Spendthrift Trusts. 
 
 Accumulations, Passing of — Huber's Ap., 1876, 30 S. 348, S. C. 2W. 
 N. C. 579. The accumulations in the hands of a discretionary trustee for a 
 spendthrift son pass on the death of the latter with the corpus of the trust 
 estate and are not payable to his representatives. 
 
TRUSTS AND TRUSTEES. 551 
 
 Active Trust.— Rife v. Geyei, 1868, 9 S. 393, S. C. 16 Pitts. L. J. pt. 2, 
 323. A spendthrift trust is in its nature an active one. 
 
 lb.— Girardlns. and Trust Co. «. Ciiambers, 1864, 10 Wr. 485. A devise 
 in trust to collect the interest and protits and to pay it over to the cestui que 
 tritaf. for his ovrn use and benefit, or to such person as he may authorize in 
 -writing, is an active trust but not a spendthrift trust. To create the latter 
 there must be provisions against alienation and liability for debts. 
 
 lb.— Shankland's Ap. , 1864, 11 Wr. 113. A devise in trust to collect the 
 income and pay it over to the cestui que trust without liability for his debts, 
 is an active trust, and the beneficiary cannot dispose of his interest in it. 
 
 Attachable Interest.— Brown v. Williamson, 1860, 12 C. 338. A de- 
 -vise to a son as trustee for his children with a provision that the son should 
 have as compensation, a living out of the estate, does not give him an at- 
 tachable interest. 
 
 lb.— Still V. Spear, 1863, 9 Wr. 168, S. C. 1 Luz. L. Obs. 168. A trust to 
 pay the income to the cestui que trust at discretion is valid in Pennsylvania 
 and there is no attachable interest in the beneficiary. 
 
 lb. — Brown D. Williamson, 1860, 12 C. 338. A devise to a son as trustee 
 for his children, with a provision that the son should have as compensation 
 a living out of the estate, does not give him an attachable interest. 
 
 Conveyance by Trustee to Cestui que Trust.— Rife v. Geyer, 1866, b 
 S. 393, S. C. 16 Pitts. L. J. pt. 2, 323. A conveyance by a trustee in u, 
 spendthrift trust to the cestui que trust is inoperative, and a further convey- 
 ance by the latter to one having notice of the terms of the trust is also in- 
 operative. 
 
 Daughter.— Cridland's Est., 0. C. 1868, 25 Leg. Int. 133, S. C. 7 Ph. 58. 
 A spendthrift trust may be created for a daughter. 
 
 Order by Cestui que Trust— Equitable Assignment— Funds in 
 Hand.— MacEnen's Est., O. C. 1876, 3 W. N. C. 158, S. C. 33 Leg. Int. 408, 
 11 Phila. 152. An order drawn by a cestui que trust on his trustees in a 
 spendthrift trust, who have also a fund in their hands over which he has 
 control, is an equitable assignment pro tanto of the latter fund, and will be 
 supported ou the consideration, expressed, of kind services. 
 
 lb.— lb.— Newton's Ap., 1878, 5 W. N. C. 521. An order drawn by the 
 beneficiary of a spendthrift trust on his trustee in favor of a third person is 
 not a valid assignment of his interest. 
 
 Power of Cestui que Trust.— Shantz's Est., 1888, 45 Leg. Int. 455. 
 The cestui que trust of a spendthrift trust, for her sole and separate use, has 
 no power to assign the income of the estate before receiving it. 
 
 Protection. — Vaux v. Parke, 1844, 7 W. & S. 19. Where, to carry out 
 the intent of the testator, the property must vest in trustees and the bene- 
 ficiary receive only the rents and profits, creditors of the beneficiary cannot 
 touch the fund. 
 
 lb. — Fisher v. Taylor, 1829, 2 R. 33. The interest of a cestui que trust, 
 under a will, which latter provides that the same shall not be liable to any 
 of the debts contracted by the cestui que trust, cannot be taken in execution. 
 
 Prior Debts. — Ashhurst v. Given, 1843, 5 W. & S. 323. An estate given 
 to a son for life in trust, to be used in busine.ss, and on his death to go to his 
 heirs, the testator declaring his intention to be that the creditors of his son 
 should not deprive him of this bounty, was held not to be liable for debts 
 contracted previously to the devise. 
 
 Seizure of Income — Children.- Board of Correction v. Moore, 1888, 6 
 C. C. Rep. 66. Where a spendthrift trust is created for certain children "so 
 that the same shall not be divested from his or her personal use and main- 
 tenance, and the maintenance of the wife (if any) and minor children of 
 either of my said sons," is a trust for the children, the income of which 
 oannot be seized in case a son deserts his family. 
 
552 TBUSTS AND TRUSTEES. 
 
 Subseq.'ueut Creditors of Settlor.— Andress i). Lewis, C. P., 1886, 43 Leg. 
 Int. 56, S. C. 17 W. N. C. 270, 1 Pa. C. C. R. 293. Where a spendthrift trust 
 is created for the grantor for life, then for his wife and children, it is valid 
 as to those in remainder against subsequent creditors of the settlor. 
 
 Validity of. — Holdship v. Patterson, 1836, 7 W. 547. A trust may be 
 created which cannot be touched by the creditors of the cestui que trust. 
 
 lb. — Norris v. Johnston, 1847, 5 Barr, 287. Equity will protect a trust 
 which protects one from his own improvidence. 
 
 lb. — Heermau's v. Hill, 1884, 2 Kulp, 14. One cannot create a trust in 
 favor of himself which will be valid against creditors. 
 
 lb.— Miller v. Duncan, 1868, 2 Pears. 32, S. C. 1 Leg. Op. 13. A devise 
 to one in trust tor his family and after his death to his children, the fund 
 not to be liable for his debts, may be attached in the hands of the trustee 
 (the father] after the death of his wife and children. 
 
 lb.— Macksons Ap., 1862, 6 Wr. 333, S. C. 3 Luz. L. Obs. 145. One siii 
 juris cannot, as against creditors, settle his property in trust for himself for 
 life and over to his appointees or heirs in fee. 
 
 What are.— Kreamer v. Showalter, C. P. Chester, 1886, 1 Pa. C. C. K. 453. 
 A bequest to trustees the interest and principal to be paid to testator's son 
 in the discretion of the trustee, for his maintenance and support, "said 
 y,tfarly interest and said bequest not to be subject to his debts and liabil- 
 ities, ' ' with a gift over to his heirs, creates a spendthrift trust. 
 
 Woman. — Ashhurst's Ap., 1875, 27 S. 464. There may be a spendthrift 
 trust lor a woman as well as for a man. 
 
 (i.) Testimentary. 
 
 Continuance of. — Coover's Ap., 1873, 24 S. 143. An estate given to trus- 
 tees by will continues only so long as the thing sought to be secured by the 
 trust demands, whatever be the limitations of the estate. 
 
 Conversion. — Pierce v. McKeehan, 1842, 3 W. & S. 283. A devise to A. 
 " subject to the maintenance of B," is a trust, and equity will enforce it al- 
 though the property passes through several changes, from personal property 
 to money from that to land and from that to choses as action. 
 
 Intention.— Barclay V. Lewis, 1871, 17 S. 316, afiPg. 27 L. T. 12, 7 Phila. 
 182. A testator created a trust out of which his sons were each to have an 
 annuity, and the rest of his income was for the use of his wife and daughter, 
 and after the death of his wife and daughter in trust for his grandchildren. 
 The wife and daughter died there being then no grandchildren. Reld that 
 equity would give effect to the intention of the testator and keep alive the 
 trust as long as there was a possibility of grandchildren, on the ground that 
 in trust estates a remainder does not require a particular estate to .support it. 
 
 Minor — Education. — Kuhn v. Newman, 1856, 2 C. 227. A devise to 
 trustees to take care of the estate for a minor and educate him, is void as a 
 trust unless it can be treated as a testamentary guardianship which can only 
 be created by a father. 
 
 Parol Declaration — Jurisdiction— Orphans' Court. — Lowry's Appeal, 
 1886, 4 Amer. 225. The orphans' court has j urisdiction to determine the 
 existence of an alleged parol trust in connection with a recognized trust in 
 a will. 
 
 Payment of Debts.— Miller's Ap., 1869, 10 S. 404. A devise to one with 
 the condition ' ' after my debts are paid she can draw the interest ' ' does not 
 create a trust for the payment ol debts. 
 
TRUSTS AND TKUSTEES. 553 
 
 {J. ) Sole and. Separate Use. 
 
 [See also Husband and Wipe.] 
 
 • Deedfor— Power Under— Cestui que Trast.—McMuUinB. Beatty,1867, 
 6 S. 389. A deed to a trustee for the sole and separate use of A. for life and 
 then to her heirs their heirs, and assigns, gives A. no power to dispose of her 
 equitable estate by deed. 
 
 Disability of Coverture— Adverse Possession. — Thompson v. Car- 
 michael, 1888, 7 Crum. 478. The title to property held under a trust deed 
 for husband and wife with remainder to wife's heirs remains in the trustee 
 in the event of a conveyance by the cestui que trust, and as the wife could 
 have enforced the trust through the trustee there was no disability of cov- 
 erture to bar an adverse possession by the grantee. 
 
 How Created— Trustee not Named.— Gamble's Est., O. C. 1878, 36 
 Leg. Int. 5, S. C. 13 Phila. 198. Where an estate is given to a married 
 women for her sole and separate use, a trust is created although no trustee 
 be named 
 
 lb. — Varner's Ap., 1875, 30 S. 140. A devise to a married daughter for 
 her sole and separate use withont control of her husband no trustee being 
 named, is a trust which equity will support by appointing a trustee. 
 
 How Executed. — Bush's Ap., 1859, 9 C. 85. A trust to secure property 
 to a married woman is executed by the death of her husband, but the trus- 
 tee by resisting her claim was not charged the costs. 
 
 Intervention of— Agreement for Separation.— Bowers v. Clark, D. C. 
 1855, 13 Leg. Int. 176, S. C. 1 Phila. 561. The provisions of an agreement 
 for separation between husband and wife will be enforced in Pennsylvania 
 though made without the intervention of a trustee. 
 
 C. Statute of Lintitations, 
 
 BirthofChildren.— Hollinshead'sAp., 1883, 7 Out. 158. ,After the statute 
 limiting the enforcement of resulting trusts to five years begins to run it 
 will not be estopped by the birth of children. 
 
 Chattel Trust. — Hemphill «. Monongahela Co., 1852, 7 H. 351. A direct 
 and express trust in chattels is not barred in six years unless the trustee has 
 given express notice that he intended to hold as beneficial owner. 
 
 Creditor and Executor.— York's Ap., 1885, 14 Out. 70. As between an 
 executor and creditor of an estate, no trust exists of that peculiar kind that 
 is within the exclusive control of a court of equity, and to which the statute 
 of limitations applies. 
 
 Creditors and Grantor's Wife.— Drysdale's Ap., 1850, 2 H. 531. After 
 twenty-two years a trust for creditors and the balance for the grantor's wife 
 i:^ presumed to have been executed as to the former. 
 
 Father and Son.— Rhodes «. Prick, 1837, 6 W. 315. Where a son hold- 
 irrg lands under a parol agreement with his father, and himself sells the same, 
 his father not objecting, the vendee's title is not affected by the statute of 
 frauds. 
 
 Husband Receiving Wife's Money.— Sergey's Ap., 1869, 10 S. 408. A 
 husband received a wife's money in her presence. Held that he received it 
 as trustee, and that he could not be compelled by creditors to plead the 
 sta,tute of limitations. 
 
 Laches— Assignment in Trust— Recovery.— Price's Ap., 1867, 4 S. 
 472. . One SM Jians assigned his expectancy in an estate, the assignee died 
 twenty-one years after the assignment, and the expectancy came due five 
 
554 TRUSTS AND TBUSTEES. 
 
 years after that. The assignor immediately presented his claim. Held, 
 though he was barred by laches from asking equity to rescind his contract, 
 that the auditor having found that the assignment was in trust, he could re- 
 cover on compensating the trustee. 
 
 Limitation. — Phillips v. Lerbe Run Co., 1855, 1 C. 56. A conveyance in 
 trust to sell the land within two years, and pay a creditor the balance in 
 trust for the grantor, is not ended by the fact that no sale is made during 
 the two years. 
 
 No Trustee.— Maus v. Maus, 1876, 30 S. 194, S. C. 2 W. N. C. 636. The 
 statute of limitations will run against a trust whether there be a trustee or 
 not, but any one in interest could have a trustee appointed and compel him 
 to enter and stop the running of the statute. 
 
 Parol Trust— Possession.— Smith v. Tome, 1871, 18 S. 158. The lim- 
 itation within which a parol trust must be enforced does not apply to a case 
 where the cestui que trust is in possession. 
 
 Resulting Trust— Trust Ex Malefacio.— Eoy v. Townsend, 1875, 28 S. 
 329, S. C. 1 W. N. C. 293. An heir petitioned the orphans' court to allow 
 him to apply his share of the estate and the shares of three of the heirs of 
 whom he chanced to be attorney, to the purchase of the property. This 
 was granted. Sixteen years afterwards the heirs could not set up a trust, 
 for it was not a trust ex malefacio, but at best only a resulting trust, and 
 barred by the act April 22, 1856. 
 
 Running of. — Smilie v. Biffle, 1845, 2 Barr, 52. The statute of limita- 
 tions runs in favor of one claiming under a trustee both against the trustee 
 and the cestui que trust. 
 
 Trustee's Claim.— Bamholt v. UlriCh, C. P. 1881, 11 W. N. C. 51. The 
 statute of limitations applied to a claim which a trustee of the legal title 
 held against the cestui que trust for money advanced in keeping up the es- 
 tate, there being a paper subsequently signed by the trustee, which implied • 
 that everything was settled. 
 
 Trustee— Who.— Barton v. Dickens, 1865, 12 Wr. 518. One taking 
 and retaining possession without paying therefor, of property which he 
 agreed to buy of plaintiff, is not a trustee, but after six years has a good 
 title. 
 
 Trusts Within.— Holstetter v. Holtinger, 1888, 2 Crura. 607. Trusts 
 which are not affected by the statute of limitations are only those technical 
 and continuing trusts over which chancery has exclusive jurisdiction ; when 
 a fund has been received to be paid to a particular person an action by the 
 beneficiary to enforce payment is within the operation of the statute. 
 
 When Applied.— Lyon v. Marclay, 1832, 1 Watts, 271. To exempt a 
 trust from the bar of the statute of limitations it must be, first, a direct 
 trust ; second, of the kind belonging exclusively to the jurisdiction of a court 
 of equity ; and, thirdly, the question must arise between the trustee and the 
 cestui que trust. 
 
 lb.— Finney v. Cochran, 1841, 1 W. & S. 112. The word "trust" is ap- 
 plied. to a good proportion of the money transactions in ordinary business ; 
 but the trusts which are exceptions to the statute of limitations are those 
 technical and continuing ones which fall within the exclusive jurisdictioa 
 of equity. 
 
 J>, Termination of. 
 
 Accumulation.— Sharpe's Est., O. C. 1875, 2 W. N. C. 82, 32 Leg. Int. 
 378. A direction to accumulate the interest on an estate until the youngest 
 child shall arrive at the age of twenty -one, is invalid as to each child upon 
 his becoming sui juris, and falls pro tanto. 
 
TKUSTS AND TKIISTEES. 555 
 
 Conveyance by Trustee.— Renziehausen ji. Kevser, 1864, 12 Wr. 351. 
 Upon a trust becoming executed by its own limitation, the cestui que trust 
 succeeds to all the rights of the legal estate without a conveyance. 
 
 Ib.^Bacon's Ap., 1868, 7 S. 504 ; aff'g 24 Leg. Int. 1:2, 6 Phila. 335. In 
 Pennsylvania where no other power is given to a trustee than to convey to 
 the cestui que trust the trust is executed and no conveyance is necessary.. 
 
 CMldren— Majority.— BringhursttJ. Cuthbert, 1814, 6 Bin. 398. A trust 
 to the children of A. for thqir education and maintenance, does not cease 
 when the youngest attains majority. 
 
 Discharge.— Fuller's Est., C. P. 1877, 4 W. N. C. 49r,. The court may 
 discharge a trustee but cannot compel him by attachment to enter new se- 
 curity. 
 
 Discoverature. — Steacy v. Eice, 1856, 3 C. 75. A trust for a. feme covert 
 is e.KCCuted upon her becoming discovert. 
 
 Escheat— Expiration of— Commonwealth J. Naile, 1879, 7 N. 429. 
 Under act December 16, 1869, when a trust has expired and no one claims 
 the beneficial interest it may be escheated. 
 
 Execution by Statute. — Moore v. Shultz, 1850, l H. 98. A conveyajce 
 to A. for the use of B. and her heirs, is executed by the statute. 
 
 Husband and Wife— Conveyance to Third Party.— Warden r. Lyons, 
 1888, 3 Crum. 396. A husband deeded property to a third party in trust 
 for the wife of the grantor and for her sole and separate use, stipulating that 
 the said party should convey to the wife the within-described premises by a 
 sufficient deed in fee simple, which was done. Subsequently husband and 
 wife joined in a mortgage thereof. Held tha,t after the conveyance to her 
 from third party, the wife was seized of an absolute estate in fee simple, 
 freed from the trust and unimpressed with the sole and separate use and 
 the premises were bound by the mortgage. 
 
 Improvident — Setting Aside. — Rick's Ap., 1884, 41 Leg. Int. 367. An 
 improvident deed of trust will be set aside where it appears that the party 
 was informed that she could not include a power of revocation. 
 
 Life-Tenants. — Richardson's Est., 1884, 41 Leg. Int. 55. A valid trust 
 for certain persons, with a gift of the principal to their respective heirs, will 
 not be disturbed until the life takers are all dead. 
 
 Revocation— Power of — Twii.ing v. Girard Trust Co., C. P. 1880, 8 W. 
 N. C. 565, S. C. 37 Leg. Int. 282, 14 Phila. 74. A trust having been created 
 by a man and wife for the use of the wife without a power of revocation, an 
 application to give her part of the principal by all parties interested was 
 dismissed. 
 
 lb — Tucker's Ap., 1874, 25 S. 354. A husband and wife having con- 
 veyed the, wife's property in trust for the wife, so as not to be liable for the 
 husband's debts, and afterwards to convey to her appointee, the husband 
 died. JTcld that the purpose of the trust being accomplished, the trust was 
 determined. 
 
 lb.— Application.— Mansbach v. Meyer, C. P. 1885, 16 W. N. C. 241. 
 Where a person creates a trust in his own favor without any power of revo- 
 cation, the court will upon his application revoke it, there being no objec- 
 tion from any source. 
 
 Sale of Trust Property.— Burton's Ap., 1868, 7 S. 213. Act April 18, 
 1853, allowing courts to decree a sale of real estate tied up by trusts or 
 the charters of charitable corporations, may be well exercised by ordering a 
 sale of church property, it is not destroying the trust, but may be the best 
 way of executing it. 
 
 Sole and Separate Use— Infant.— Bevan's Est., o. C. 1883, 39 Leg. 
 Int. 479. S. C. 15 Phila. 615. A trust for the separate use of an infant aged 
 ten, will, upon petition, be considered executed. 
 
5oG TRUSTS AND TRUSTEES. 
 
 Special Trust.— Henderson v. Hunter, 1868, 9 S. 335, S. C. 16 Pitts. L. 
 J., pt. 1, 230. An estate given to trustees for a certain use, terminates ipso 
 facto when the use ceases. 
 
 When Decreed.— Culbertson's Ap., 1874, 26 S. 145. Equity will decree 
 a determination of a trust, when all who are or may be interested, are iii 
 existence suijv/ris and consent to the decree. 
 
 II. Trustee. 
 
 A. In General. 
 
 B. Account of. See also Accottnt. 
 
 C. Appointment of. 
 
 D. Commissioners, Counsel Fees and Expenses. 
 
 E. Co-Trustees. 
 
 F. Discretionary Powers. 
 
 G. Ex Malefacio. 
 
 H. Liability of. When Surcharged. 
 I. Powers and Duties of. 
 J. Removal of. 
 K. Who is a. 
 li. Who May be. 
 
 A. In General. 
 
 Account— Receiver.— FideUty Co. v. Huber, C. p. 1879, 7 W. N. C. 278, S. 
 C. 36 Leg. Int. 164, 13 Phila. 52. In a bill for an accoimt by a trustee against 
 a defacto trustee who has in his possession cash, government bonds and other 
 personal securities, the court will appoint a receiver. 
 
 Assignee for Creditors— Purchase of Land— Jury, Province of.— 
 
 Benson v. Adams, 1846, 3 Barr, 228. Where an assignee for creditors buys 
 in land, sold by him under a judgment, and, the debtortakes possession and 
 after several years sells the same, it is for the j ury to decide whether the 
 land was purchased by the assignee for the debtor. 
 
 Assignee of Stock— Notice.— Yard's Ap., 1878, 26 Pitts. L. J. 42. Oiu- 
 who takes an assignment of stock as security for a pre-existing indebtedni-ss 
 from one who signs himself "trustee" is not a holder without notice of 
 secert equities. 
 
 Attachment — Trust Fund— Proceeds of. — Park v. Matthews, 1859, 12 
 C. 28. The proceeds of a trust fund in the hands of trustees is liable to at- 
 tachment. 
 
 Attachment— Money Raised by Sale.— Fenton v. Fisher, 1884, 42 Leg. 
 Int. 28. Money in a trustee's hands raised by a sale can be attached 
 
 Charity.— McGirr v. Aaron, 1829, 1 P. & W. 49. Our courts will not let 
 a trust for a charity fail for want of a trustee. 
 
 Continuance of Estate. — Mott's Est., O. C. Luzerne, 1884, 2 Kulp. 281, 
 S. C. 12 IjUz. L. Eeg. 89. An estate in a trustee continues only so long as 
 necessary for the purposes of the trust whatever be its limitations in the in- 
 st-ument creating it. 
 
 Conveyance— Power to Compel — Expense. — Fourth Universalist 
 Parish v. Wensley, 0. P. 1878, 5" W. N. C. 273. Equity will compel one 
 wlio has held property for a society until it should became incorporated to 
 
TRUSTS AND TRUSTEES. 557 
 
 convey the same to it although the society before incorporation became 
 largely Indebted for material, for which the trustee, being a member of the 
 society, may be responsible. 
 
 Corporation— Stockholders Dividing the Funds.— Stang's Ap., 1880, 
 10 "W. N. C. 409. Where stockholders divide the funds of a corporation 
 among themselves, they take it impressed with a trust in favor of all cred- 
 itors, although the demands of the latter are unliquidated. 
 
 Deed— Insane Trustee, — Grier's Ap., 1882, 5 Out. 412. A deed made 
 by an insane trustee under order from the orphans' court is valid. 
 
 lb.— Of Trust— Mortgage— Injunction.— Bancroft v. Ashhurst, 1860, 2 
 Gr. 513. A trustee in a deed of trust in the nature of a mortgage with a 
 power of sale will not be restrained from using it since it is irrevocable. 
 
 Distribution of Trust Fund— Security.— Gowen's Ap., 1884, 10 Out. 
 288. Where a fund is held in trust for the children of an unmarried party, 
 being 56 years old and childless, and upiu her death, without issue, the 
 fund to go to other persons, a court of eguHjj may, upon security being en- 
 tered by the latter, decree that the fuud be distributed among the latter. 
 
 Ejectment— Brolaskeyi). McClain, 1869, 11 S. 1-16. A trustee of real 
 estate may maintain ejectment against any ])ut the cestui que intsi. 
 
 lb.— Demand — Conveyance of Title. — Caldwell v. Lowdeu, 1869, 16 
 
 Pitts. Leg. J. Pt. II, p. 26. Where equity would compel a trustee to con- 
 vey the legal title a writ in ejectment is sufficient demand. 
 
 lb. — Heirs of Surviving Trustee.— Crunkelton v. Everts, 1803, 3 Y. 
 .570. The heirs of a surviving trustee may maintain ejectment not adverse 
 to the interests of the cestui que trust. 
 
 lb.— Parties.— Cooper v. Henderson, 1813, 6 Bin. 189. Trustees can sup- 
 port ejectment in their own names without disclosing their character on the 
 record. 
 
 lb. — ^Record. — Cooper v. Henderson, 1813, 6 Binn. 189. Trustees can 
 support ejectment in their own names without disclosing their character on 
 the record. 
 
 HusbandandWife— Liabilities Assumed— Lien.— Rayboldr.Eaybold, 
 1853, 8 H. 308. A trustee for husband and wife has no equitable lien for 
 liabilities assumed for the former without the assent of the latter. 
 
 Judgment Against. — Drysdale's Ap., 1850, 3 H. 457. A judgment 
 ag3,inst a trustee for himself and others binds his equitable interest. 
 
 Jurisdiction— Common Pleas— Executor and Trustee.— Jones' Ap., 
 1855, 3 Gr. 169. Where the same person is appointed executor and trustee 
 in a ■will, in each case by name, the common pleas has jurisdiction of the 
 trust. 
 
 Married Woman. — Persch v. Quiggle, 1868, 7S. 247. An agent or trus- 
 tee for a married woman is held to the strictest good faith, and cannot use 
 the fund in his own business without the utmost openness and frankness to- 
 ward his cestui que I/rust. 
 
 Mortgage — Proceeds of Sale. — McAleer's Ap., 1881, 3 Out. VdS. 
 Where a trustee executes a mortgage solely by virtue of the power to sell 
 conferred upon him by the deed of trust, the proceeds of the sale under said 
 mortgage over and above the amount of the mortgage are subject to the same 
 trust as -was the land. 
 
 Partner, Trustee, Lending to Firm— Liability of Firm.— Guillow v. 
 Peterson, 1879, 8 N. 163. Where a partner lends the securities of a trust 
 estate of which he is trustee to the firm and the firm converts them, the firm 
 is liable to the cestui que trust and one who as to the partners is a mere 
 special partner but to the world a general partner is also liable to the cestui 
 queirust, for the notice which the trustee had of his limited liability does not 
 in such a ease bind the cestui que Irust. 
 
■ 558 TEUSTS AND TEUSTEES. 
 
 Policy of the Law. —Smith v. Brotherline, 1861, 12 S. 4f;l. The rule 
 which makes trustees out of those who, standing in confidential relations 
 act for themselves, is founded on policy not on fraud. 
 
 Power of Court— Compelling Payment.— Reese r. Euth, 182.">, 13 S. 
 & R. 434. The courts of Pennsylvania have no power tf) discharge trustees, 
 but in an action by the cestui que trust for money had and recei\ed can 
 compel them to pay over the income. 
 , Power of Appointment. — Stahl «. Crouz. 184.% 1 Barr, ill. Aprovision 
 in a trust for a married woman thatit shall be subject to hsr order only gives 
 her no right to dispose of it by an appointment in the nature of a will, 
 ' Profits- Party Entitled to.— Henderson v. Buck, 1886, 2 P. C. C. 230. 
 Profits arising from the purchase and sale of securities with funds held in 
 trust for one for life, and remainder over are held to be accretions to the prin- 
 cipal lund and go to the remainderman and not the life tenant. 
 
 Purchase— Absent Cestuis que Trusts.— Bixler v. Kunkle, 18-28, 17 S. 
 
 & R. 298. A purchase by executors and trustees of the interest of the cestui 
 que tiustent (who are absent) will be closely watched, and if for an in- 
 adequate consideration will be set aside as fraudulent and void. 
 
 lb. — Creditors' Trustees. — Blackmore's Ap., 1884, 4 Penny. 33. Where 
 a bankrupt selects two creditors as trustees of a mortgage given to secure 
 creditors, there is no such relation of trustee and cexfui que trust as will in- 
 validate the title of said trustees purchasing the mortgaged property as a 
 sale in foreclosure. 
 
 lb.— Of Debts— Merger.— Keller v. Leib, 1829, 1 P. & W. 220. A trustee 
 to pay debts who purchases a debt with the debtor's funds thereby extin- 
 guishes it. 
 
 Purchaser for Value— Subrogation.— Linton's Ap., 1884, 32 Pitts. L. 
 J. 115. One who takes an assignment of trust property from the trustee 
 takes it with notice, therefore, where one purchased a mortgage from an ex- 
 ecutor and paid for the same partly by cancelling an individual debt of the 
 executor to him, he is^ro tanto not a bona fide purchaser, but is entitled to 
 be subrogated to the rights of the executor. 
 
 Release— When Set Aside.— Shartel's Ap., 1870, 14 S. 25. Releases 
 from cestui que trustent to their trustees without a regular settlement of their 
 account are looked upon with a jealous eye ; but to set them aside, over- 
 reaching fraud or mistake must be shown. 
 
 Sale— Jurisdiction. — Haldeman v. Young, 1884, 11 Out. 324. Act April 
 28, 1876 (P. L. 50), validating certain sales made by persons in a fiduciary 
 capacity, in whose appointment some defect or irregularity existed, does not 
 help a sale made by a trustee appointed by a court which had no jurisdic- 
 tion. 
 
 lb.— Presumption of Regularity.— Robins v. Bellas, 1835, 4 W. 255. 
 The sale of a trustee will be presumed to have been properly made if the 
 deed disclose nothing to the contrary. 
 
 Set-off— Assignment.— Wolf v. Beales, 1820, 6 S. & R. 242. A bond 
 given by plaintiff to one as trustee, and by him assigned to defendant, can- 
 not be used as a set-off against plaintiff. 
 
 Trust Funds- Bonus Mortgages.— Girard Trust Co.'sAp., 1882, 13 W. 
 N. C. 367. " Bonus mortgages " are not proper investments for trust funds. 
 
 Trustee of Vendor as Agent of Vendee. — Spencer's Ap., 1876, 30 S. 
 317. A trustee for a vendor acted as agent for the vendee. Held that equity 
 would rescind the contract and restore the parties to theiroriginal positions. 
 
 Virtute Ofacii— Standing.— Stockton v. Lehigh Nav. Co., C. P. 1880, !) 
 W. N. C. 110, S. C. 37 Leg. Int. 90, 14 Phila. 88. A trustee created by will 
 virtute officii has a standing in a court of equity to compel the performance 
 of a duty owing to him in his capacity of trustee. 
 
TRUSTS AND TTIUSTEBS. 559 
 
 Want of Trustee.— Shonk v. Brown, 1869, 11 S. 320. The want of a 
 trustee does not change the nature of a trust, which is upheld in equity as 
 well without as with a trustee. 
 
 lb.'— Craige v. Craige, C. P. 1872, 4 Leg. Gaz. 389, 'S. C. 29 Leg. Int. 382, 
 9 Phila. 545. Where an intention is discoveied to leave property in trust, 
 the trust will not fail for want of a trustee named. 
 
 Writ of Revival-Parties —Bowers v. Hamer, O. C. 1858, 15 Leg. Int. 
 150, S. C. 3 Phila. 146. As against the cestui que trust, it is not necessary 
 to make the trustee a party to a writ to revive the lien oi a judgment. 
 
 S Account. 
 
 Cestui CLue Trust of Weak Intellect — Next of Kin.— Kuhler r. 
 Hoover, 1846, 4 Barr, 331. Where the next of kin of a cestui que trust of 
 weak intellect cites a trnstee to account, the proceedings will be sustained 
 by considering the next of kin as next friend appointed by the court to act. 
 
 Common Pleas — Act of June 14, 1836 — Jurisdiction. — Whitney'.^ 
 Ap., 1854, 10 H. 500. Under acts June 14, 1836, S. 7, and June 16, 18o(i, 
 S. 13, the common pleas has power at the instance of one interested to cite 
 a trustee to account, and the latter cannot oust the jurisdiction on the 
 ground of his own irregularities. 
 
 lb.— lb.— Schumman's Ap., 1884, 15 W. N. C. 280. Act May 10, 1881 
 (P. L. 14), authorizing courts to require trustees for life to file accounts oil 
 the application of their sureties, &c., applies to trustees virtute officii of ex- 
 ecutor as well as to trustees created by name. 
 
 lb.— Jurisdiction.- Helfenstein's Est., 1886, 2 P. C. C. 541. A convej- 
 ance of land by a resident of the county in which the land lies, to the resi- 
 dent of another county, in trust to secure specific debts of the grantor, and 
 to recovery to the grantor after payment of the debts, is not an assignment 
 for the benefit of creditors, but a trust of which the common pleas of the 
 county in which the trustee resided has, under act of June, 1836, jurisdic- 
 tion for the purpose of compelling the trustee to account. 
 
 Ejectment to Compel Conveyance— Account. — Cox v. Henry, 1857, 
 8 C. 18. An ejectment by a cestui que trust to compel a trustee to convey, 
 upon judgment of the purchase money, involves an account of rents and 
 profits, and no subsequent action therefor lies. 
 
 Estoppel — Second Husband.— Sohoch's Ap., 1859, 9 C. 351. A second 
 husband who at his own request has been substituted as trustee for his wife 
 in a trust created for h^r first coverture, and on being divorced has settled 
 hi3>account, is estopped from claiming the property under his marital rights 
 on the ground that the trust ceased with the first coverture. 
 
 Guardian and Trustee — Separate Accounts. — Baskin's Ap., 1859, 
 10 C. 272. One who is a trustee and also guardian for one of the cestui que 
 irustent, must file his account as trustee in the common pleas, and as guar- 
 dian in the orphans' court, for that share of the trust funds which was 
 awarded under the other report to himselt as guardian. 
 
 Husband as Trustee — Account. — Fidelity Trust Co. v. Morris, C. P. 
 1884, 14 W. N C. 225, S. C. 41 Leg. Int. 74. A bill in equity for an ac- 
 count will lie against one who is a trustee of reality for his wife for life, and 
 then to her children, who has himself taken the profits after his wife's death, 
 supposing that he was entitled as tenant by the curtesy. 
 
 Third Party— Breach of Trust.— Porter v. Hoppin, C. P. 1875, 32 Leg. 
 Int. 66, S. C. 10 Phila. 396. A trustee who has been guilty of a breach of 
 trust and has assigned property to a third person as protection for the cestui 
 que trust, cannot require an account from this third person without joining 
 the cestui que trust or restoring the trusts assets. 
 
660 TKOSTS AND TEUSTEES. 
 
 O. Appointment of. 
 
 Act of April 9, 1868.— Stevenson's Ap., 1871, 18 S. 101, S. C. 1 Leg. Op. 
 93. Act April 5, 1868 (P. L. 785), giving the common pleas and orphans' 
 court of Philadelphia power to remove and appoint trustees, is directory 
 merely, and the court may exercise discretion in the matter. 
 
 By Will as Guardian.— Colehower's Est., O. C. 1878, 5 W. N. C. 343. 
 AVhere one is appointed guardian by will, and it is evident that the inten- 
 tion was to appoint him trustee, the court vrill consider him as appointed 
 trustee. 
 
 Death of— Delivery of Fund— New Trustee.— Shaw v. McCameron, 
 1824, 11 S. & E. 252. Where a trustee, whose duty it is to pay over the in- 
 come to the cestui que trust (which latter has the power to dispose of the es- 
 tate by will), dies, our courts will deliver the fund to the cestui que trust. 
 Equity will appoint a new trustee. Our courts have not that power, but do 
 substantial equity in this way. 
 
 Foreign Court— Title.— Williams v. Maus, 1837, 6 Watts, 278. The ap- 
 pointment of a trustee by a court of another State in place of a trustee de- 
 ceased, does not jper se vest the title of trust land in this State in the new 
 trustee. 
 
 Non-Resident. — Gulp's Est., 1888, 45 Leg. Int. 266. A trustee having 
 his domicil in an adjoining State, may be appointed by the court to make a 
 sale in partition. 
 
 Notice. — Lancaster's Ap., 1886, 1 Am. 524. Where a trustee is ap- 
 pointed by the orphans' court of Philadelphia county without notice to li'e 
 tenants, the appointment will be vacated, however honest the trustee 
 may be. 
 
 Not Named.— Maus v., Maus, 1876, 30 S. 194, S. G. 2 W. N. C. 656. A tes- 
 tator provided for a trust without naming a trustee. Held that the court 
 would appoint one on the application of any one interest. 
 
 Power of Orphans' Court.— Physic's Est., O. G. 1857, 14 Leg. Int. 140, 
 S. C. 2 Phila. 278. The orphans' court has power to appoint trustees in 
 place of those named in a will, but need not keep the number up to what it 
 originally was. 
 
 Unincorporated Association. — Massassoit Tribe [in re), C. P. 1883, 14 
 W. N. C. 92. The common pleas will appoint a trustee for an unincorpo- 
 rated society without requiring security upon a petition by the society to 
 that effect. 
 
 When Made.— Gaul's Est., O. C. 1873, 30 Leg. Int. 333, S. G. 9 PhUi^. 
 333. Trustees will only be appointed where the trust requires personal at 
 tention or active duties, or the exercise of a power. 
 
 D. Conimisstons, Counsel Fees and Expenses. 
 
 Account— Interest.— Say v. Barnes, 1818, 4 S. & E. 112. A guardian's 
 account was made up by adding in the interest every six months, and after 
 alliwing a reasonable amount to remain on hand for contingent expenses, 
 charging interest on the balance, permitting, however, the commissions to 
 be deducted from time to time as they were earned. 
 
 Administration.— Butterbaugh's Ap., 1881, 2 Out. 351. The expenses 
 of administering a trust estate must come out of the interest not the prin- 
 cipal. 
 
 lb.— Fund for.— Mitcheson's Est., 1888, 5 L. L. Eev. 142. Where a trust 
 is an acting and continuing one, involving payments and expenses incident 
 
TRUSTS AND TEUSTEBS. 561 
 
 to the trust, a reasonable contingent fund will be left in the hands of the 
 trustee until future account. 
 
 Amount of Commission.— Twaddell's Ap., 1875, 33 S. 221. An execu- 
 tor who had collected the rents of land valued at $100,000 for fifteen years, 
 but who never sold it, given |1,000 compensation. 
 
 lb. — Penuell's Ap., 1846, 2 Barr, 216. Trustees allowed five per cent, on 
 gi'oss amount of sales, the evidence being that the trouble was considerable ; 
 also allowed $150 for drawing a deed by sixteen parties for twenty-one 
 parcels, and covering five and a half largest size sheets of parchment ; also 
 $50 for drawing and attending to a sheriff's deed. 
 
 Ib.^-Shunk's Ap., 1845, 2 Barr, 304. Two-and-a-half per cent, allowed ■ 
 to trustees (assignees for creditors), on a sale of land for $44,000, only $13,- 
 000 being in cash and the rest remaining as liens. 
 
 lb.— Carrier's Ap., 1875, 29 S. 230, S. C. 23 Pitts. L. J. 45. A trustee's 
 compensation cannot be fixed by any inflexible rule. Two-and-a-half per 
 cent, is the commission generally allowed on a sale of real estate ; but if 
 there is but little trouble it may be less, and where a trustee delays a set- 
 tlement by claiming too much, he will be cut down below what might 
 otherwise have been allowed him. A trustee appointed to make a private 
 sale claimed five per cent, on $37,740. The Supreme Court allowed him 
 $500. 
 
 lb.— Bell's Est., O. C. 1874, 1 "W. N. C. 50. Where a change is made in 
 investments an allowance of a commission is within the discretion of the 
 court. Three-and-one-half per cent, allowed in this case. 
 
 H). — Nathans v. Morris, 1839, 4 Whart. 389. Commission of trustees 
 selling ground rents under a will, fixed at three per cent, on the purchase 
 money ($7,725). 
 
 Il,._Stoner's Est., C. P. York, 1880, 1 York L. E. 129. A trustee is en- 
 titled to five per cent, commissions on the income where there is no special 
 trouble, where there is he is also entitled to an additional five per cent, on 
 the principal. 
 
 lb.— Barclay's Ap., 1884, 42 Leg. Int. 48, S. 0. 33 Pitts. J. 416. A trus- 
 tee is entitled to compensation for his services, though it be more than the 
 regular per cent, allowed. 
 
 lb. — Schiedt's Est., 1873, 1 Fost. 25. There is no inflexible rule as to a 
 trustee's commissions, but the most genpral allowance is two-aud-a-half per 
 cent, on real estate and five per cent, on other property. 
 
 lb. — Harland's Est., 1835, 5 E. 323. A faithful guardian allowed a com- 
 mission a little short of five per cent, on a large and troublesome estate, 
 and charged with only simple interest on funds remaining in his hands un- 
 invested. 
 
 lb.— Eshleman's Ap., 1873, 24 S. 42. Commissions of two-and-a-half 
 and five per cent, on personal and real property allowed an administrator 
 on an estate of $75,000, the auditor having reported that the usual trouble 
 attended the administration. 
 
 Il,._Oommittee of Lunatic— Commonwealth V. Barnes, 1879, 2 Ches. 
 Co. E. 154. The committee of a lunatic allowed $775 for three years' care 
 of an estate of $20,000, about half personalty. 
 
 lb.— Interest.— Lloyd's Est., 1876, 1 N. 143. An executor converted 
 the whole estate into cash and allowed about $50,000 to remain in his bank 
 fur five years. Held that he was chargeable -with interest and that five per 
 ceut. was too large a commission. 
 
 Appeal.— Davis' Ap., 1882, 4' Out. 201. The Supreme Court will not in- 
 terfere with the commissions awarded to a trustee by the lower court un- 
 less it is clearly proved that they were wrong. 
 
 36 — BQUITY. 
 
562 TBUSTS AND TRUSTEES. 
 
 lb. — Eobb's Ap., 1861, 5 Wr. 45. Commissions allowed by the lower 
 court will not be disturbed without proof of mistake. 
 
 Assignee for Creditors— Allowance for Services.— Wardle's Est., 
 1883, 2 Ches. Co. E. 255. An assignee for creditors allowed ^50 on an es- 
 tate realizing |1, 000. Compensation, not commissions, is the rnle. 
 
 lb. — Commission. — Brice's Ap.. 1860, 14 N. 145. Two-and-a-half per 
 cent, commissions allowed an assignee for creditors out of an estate of $ 16,000. 
 
 lb. — Commission. — Burkholder's Ap., 1880, 13N. 522. Five per cent. 
 allowed an assignee for creditors on an estate amounting to 817,000. 
 
 lb.— Paid for Services.— Slifer's Est., C. P. Bucks, 1860, 17 Leg. Int. 
 164, S. 0. 4 Phila. 225. Assignees for creditors as well as other trustees are 
 paid for their services, and not according to any fixed basis. 
 
 lb.— Power to Give Contingent Fee.— McClellan's Ap., 1856, 2C. 463. 
 An assignee for creditors has power to make an arrangement with a counsel 
 for recovering assets of the estate, giving the latter a contingent fee. 
 
 lb.— lb.— Traveling Expenses.— Gillespie's Est., 1869, 1 Lan. Bar. (Nov. 
 27). An assignee for creditors will not be allowed for traveling expenses 
 within the county. 
 
 Attorney's Fee.— Dougherty's Ap., 1887, 20W. N. C. 29. A charge 
 for professional services rendered by an attorn ey-at-law, to a trustee im- 
 properly appointed in resisting a successful application for the discharge of 
 such trustee, is not properly payable out of the trust fund. 
 
 Counsel Fees. — Wilson's Ap., 1861, 5 Wr. 94. An executor will be al- 
 lowed counsel fees where the residuary legatee could have prevented the 
 suit. 
 
 lb.— Myers' Ap., 1869, 12 S. 104. A trustee will be allowed credit for 
 fees to counsel when doubtful questions arise. A trustee will not be de- 
 prived of compensation for an honest mistake of judgment. 
 
 lb.— Biddle's Ap., 1877, 2 N. 340, S. C. 3 W. N. C. 396, rev'g2 W. N. C. 
 495. A trustee who has managed a trust of $200,000 for twenty years and 
 whose commissions on the income had amounted to but $200 a year, was al- 
 lowed $2,000 extra commission on the termination of the trust although no 
 conversion took place, and was also allowed his costs and $250 counsel fees 
 in establishing this claim. 
 
 lb.— Perkins' Ap., 1885, 16 W. N. C. 125. A trustee who is a member of 
 the bar is entitled to credit for professional services rendered when his com- 
 pensation is being iixed upon. 
 
 lb.— McCloskey's Est., O. C. 1875, 2 W. N. C. 114, S. C. 32 Leg. Int. 396. 
 An executor who acts as his own counsel cannot receive fees therefor out of 
 the estate. 
 
 lb. — Lowries' Ap., 1856, 1 Gr. 373. A trustee who acts as his own coun- 
 sel is, in proper cases, entitled to a counsel fee besides his regular compen- 
 sation. 
 
 lb. — Manderson's Ap., 1886, 3 Amer. 633. An attorney-at-law who is 
 employed by the trustee of an estate to defend the latter from illegal claims, 
 is justly entitled to compensation out of the trust funds specially benefitted 
 by his services, and the fact that the trustee, who employed him, defaulted 
 from the estate and absconded cannot interfere with his claim. 
 
 lb.— Resisting Charge.— Price's Est., 1876, 31 S. 263. Where an exec- 
 utor, who was also surviving partner, charged himself with $2,000 as the 
 testator's interest in the firm, and the auditor of his account afterwards re- 
 ported twice that sum, which was sustained, he would not be allowed coun- 
 sel fees or the costs out of the estate in resisting this charge, but if there 
 was no proof of fraud he would be allowed his commissions. 
 
 lb.— When Refused.- Stephen's Ap., 18G7, 6 S. 409. Counsel fees 
 should not be allowed to those contesting an administration account, nor to 
 the administrator litigating for his own interest. 
 
TEUSTS AND TEUSXEKS. 563 
 
 Costs.— Spangler's Est., 1853, 9 H. 335. A trustee has a right to file an 
 account as frequently as he chooses, but if the court thinks the frequent 
 expense unnecessary it may charge him with the costs. 
 
 lb.— Lien.— McKinney's Est. , O. C. 1883, 40 Leg. Int. 424. A trustee has 
 alien on the trust fund for costs and expenses properly incurred. 
 
 lb.— Of Suit.— Taylor's Ap., 1888, 21 "W. N. C. 357. Where a trustee 
 fails to file an account until compelled to do so by the cestui que trust, and 
 ■when in the account then filed he claims credit for large amounts, which the 
 cestui que trust refuses to allow, and which are subsequently greatly re- 
 duced by the court, it is not error for the said court to impose the costs of 
 the litigation upon the said trustee. 
 
 lb.— Several Trustees. —Hurtey'sEst., 1889, 46 Leg. Int. 180. Although 
 generally where several trustees choose to select separate counsel only one 
 fee will be paid by the trust estate, yet where the cestui que trustent endorse 
 the action, proper compensation will be allowed. 
 
 Criteria in G-rauting. — Marsteller's Ap., 1835, 4 Watts, 267. In allow- 
 ing compensation to a trustee, the trouble and risk must be taken into ac- 
 count. In this case the amount collected was but $22 a year, and ten per 
 cent, was not thought too much. 
 
 lb.— Montgomery's Ap., 1878, 5 N. 230, S. C. 5 W. N. C. ^5. Calculat- 
 ing a trustee's compensation by a commission is merely a matter of conve- 
 nience. The measure of his compensation should be the trouble and re- 
 sponsibility put upon him. In this case |600 allowed as compensation for 
 administering an estate (personalty), appraised at $42,000, the greater part 
 of which was not converted. 
 
 lb. — McElhenny's Ap., 1863, 10 Wr. 347. A guardian is a trustee for 
 custody and management, and therefore his compensation is to be measured 
 by a different standard than that used for administrators. A faithful guard- 
 ian.who in nine years had handled $7,000, allowed §500 commissions, $100 
 for extra services in superintending improvements, also necessary counsel 
 fees, and he was not charged with the expenses of the audit. 
 
 lb. — Hecker's Ap., 1855, 12 H. 482. The allowance of compensation to 
 trustees, and the regulation of their items for counsel fees and interest lie 
 in the discretion of the court, and it is proper to take into account fhf char- 
 acter of the estate and the labor and skill employed. 
 
 Declarationof Trust— Provision.— Greenfield'sEst., 1850, 2H. 489. A 
 provision in a declaration of trust by one old and infirm that certain trustees 
 are to be liberally compensated whether they act or not, is void, unless it is 
 affirmatively proven that the grantor made this provision without being in- 
 fluenced by the trustees. 
 
 Defending Account.— Trayner's Est., 1879, 1 Chest. Co. Eep. 121. A 
 trustee will not, except under unusual circumstances, be allowed additional 
 compensation for defending his account. 
 
 Dividends— Possession of Corpus of Estate.— Stokes' Ap., 1876, 30 s. 
 337, S. C. 2 W. N. C. 562. A trustee who collected dividends but never had 
 possession of the corpus of the estate, cannot claim commissions on the latter. 
 
 Double Commissions.— Pedrick's Est., O. C. 1864, 21 Leg. Int. 197, S. 
 C. 5 Phila. 478. One who had, as executor, received the regular commis- 
 sions was allowed in this case commissions, as trustee, of five per cent, on 
 the income, one per cent, on investments, and an additional fee of ninety 
 dollars. 
 
 lb.— Rogers' Est., O. C. 1885, 17 W. N. C. 29. Where the same person 
 is both executor and trustee Jie will be allowed a commission somewhat 
 larger than if executor alone. 
 
 Ib.—Soley's E.st., O. C. 1882, 39 Leg. Int. 33, 15 Phila. 513. One who is 
 trustee and executor cannot receive two commissions on the corpus of the 
 estate, but as to the income the rule is different. 
 
564 TRUSTS AND TKUSTEBS. 
 
 lb.— Sharkey's Ap., 1878, 5 W. N. C. 534. One who is executor and 
 trustee nnder the same will may receive commissions out of the same fund 
 in both capacities. 
 
 lb.— O'Donnell's Est, 0. C. 1877, 4 W. N. C. 01. One who is both ex-, 
 ecutor and trustee under a will will not be allowed commissions on the cor- 
 pus of the estate in both capacities. 
 
 lb.— Barclay's Est., 33 Leg. Int. 108, S. C. 11 Phila. 123. One who is 
 ."both executor and trustee of au estate can claim but one commission. 
 
 Estoppel— Commissions— Informal Settlement.— Wister'.s Ap., 1878, 
 •^ N. 160. A trustee by not claiming commissions at informal settlements, 
 is not estopped from claiming them on his final account. 
 
 lb. — Final Account. — Wade's Est., O. C. Lancaster, 1879, 11 Lan. Bar, 
 47. A trustee is not estopped from claiming commissions on his final ac- 
 count by not claiming them each year. ^ 
 
 Expenses— Traveling.— Shiver's Est., O. C. 1882, 12 W. N. C. 462. A 
 trustee is entitled to reasonable traveling expenses. 
 
 Fund Liable. — Spaugler's Est., 1853, 9 H. 335. All classes of trustees 
 are entitled to comjjensation, to be paid out of the income of the trust. 
 
 Good Faith.— Fahuestock'sAp., 1883, 8 Out. 46, S. C. 41 Leg. Int. 46, 
 14 W. N. C. 50, 32 Pitts. L. J. 50. A trustee who acts with reasonable 
 diligence and entire good faith will not be surcharged nor deprived of com- 
 Ijensation. 
 
 Mistake.— Page's Est., 0. C. 1886, 43 Leg. Int. 293. A trustee will not be 
 deprived of commissions in the absence of fraud or wilful misconduct, al- 
 ^though he has acted so mistakenly as to become surcharged. 
 
 Mixing Funds. —Williamson's Est., O. C. 1886, 18 W. N. C. 138. Al- 
 though a trustee used the trust funds with his own, yet as frequently his 
 credits exceeded his debits and as he seemed to have exercised good faith 
 his commissions were allowed and he was not charged interest. 
 
 Principal and Reinvestments. — Barton's Est., 1842, 1 Pars. 24. Com- 
 missions on the principal and on reinvestments are not generally allowed a 
 trustee who has secured a commission on the income. 
 
 Provided for by Will— Additional.— Shippen v. Burd, 1862, 6 Wr. 461. 
 Where a testator provides for a compensation to his executors they are not 
 entitled to additional compensation for services rendered as trustees under 
 the will. 
 
 Refusal of Commissions.— CI auser's Est., 1877, 3 N. 51. A trustee who 
 did not look after the best interests of the trust was denied commissions 
 and charged with three-fourths of 'the costs of the audit. 
 
 lb.— Wood's Ap., 1878, 5 N. 346, S. C. 6 W. N. C. 45. An executor is 
 not allowed commissions which he has paid an agent who collects the rents 
 as well as his own commission as executor. 
 
 lb. — Norris' Ap., 1872, 21 S. 106. Commissions disallowed toa negligent 
 executor and the costs of the audit charged against him. 
 
 lb. — Swartswiilter's Accounts, 1835, 4 Watts, 77. An unfaithful admin- 
 istrator or truslee will be allowed no compensation. 
 
 lb. — Breiter's Est., C. P. Lancaster, 1880, 12 Lan. Bar, 159. A trustee 
 who has been guilty of gross negligence will be deprived of commissions and 
 charged with the expenses of the audit. 
 
 lb. — Bedell's Ap., 1877, 4 N. 398. An administrator will not be allowed 
 commissions on funds which lie has never handled though they appear on 
 both sides of his account. • 
 
 lb.— Steger's Est., O. C. 1876, 33 Leg. Int. 416, S. C. 11 Phila. 158. A 
 trustee who has so mismanaged the estate as to have jeopardized the interest 
 of the cestui que trust will be denied commissions. 
 
TRUSTS AND TEUSTBBS. 565- 
 
 lb.— Nagle's Est., 0. C. 1877, 34 Leg. Int. 264, S. C. 12 Phila. 25. Only 
 faithful trustees are entitled to compensation. 
 
 lb.— Sourin's Est., O. C. 1875, 32 Leg. Int. 29, S. C. 11 Phila. 14. Min- 
 gling trust funds with one's own is not such gross negligence as forfeits com- 
 pensation. 
 
 lb. — McCahan's Ap., 1847, 7 Barr, 56. A guardian who has not acted for 
 the interest of his ward, denied compensation. 
 
 lb.— Holnian's Ap., 1854, 12 H. 174. A trustee is not entitled to counsel 
 fees for setting up his own interest against those in remainder ; nor to com- 
 pensation where his execution of the trust has been hostile to the uses it was 
 created to secure. 
 
 lb.— Berryhill's Ap., 1860, 11 C. 245. A trustee not allowed traveling 
 expenses when unnecessary and made contrary to the wish of cestui que trust. 
 Nor is one acting hostile to the trust entitled to compensation or com- 
 missions. 
 
 lb.— Account. —Santer's Est., O. C. 1878, 6 W. N. C. 95. Where a 
 guardian kept no regular account of his ward's money he was disallowed 
 comm issions. 
 
 lb —Negligence.— Stearly's Ap., 1861, 2 Wr. 525. A trustee will not 
 receive compensation for services which have resulted from his negligence. 
 He is, however, chargeable vfith interest on these funds if he neither invest 
 them nor pay them over to the proper partie?. 
 
 lb.— Speculation. — Richardson's Est., O. C. 1882, 12 W. N. C. 386. A 
 trustee who has speculated with trust funds and lost will be denied com- 
 missions though there were no bad faith. 
 
 lb.— Surcharged.— Graham's Est., 1877, 1 Ches. Co. Rep. 301. No com- 
 missions will be allowed a trustee on an amount which he has been sur- 
 charged, especially if he has resisted the attempt to surcharge him. 
 
 Retiring Trustee.— Mintzer's Est., 0. C. 1886, 43 Leg. Int. 292. A retiring 
 trustee (the trust remainingi is not entitled to a commission on the princi- 
 pal in the absence of extraordinary services. 
 
 Termination of Trust.- -Jjuken's Ap., 1864, 11 "Wr. 356. A trustee of a 
 sum invested on bond and mortgage is on the termination of the trust en- 
 titled to a commission on the principal (1^ per cent, in this case). He is 
 liable for interest on the income of the fund, but has a reasonable time (three 
 months in this case) in which to invest it and may keep some on hand to 
 meet the object of the trust. 
 
 Two Trustees.— Haine's Est., 0. C. Dauphin, 1865, 1 Pears. 441. Two 
 trustees will only be allowed between them commissions for one, and not 
 even that on debts which they have collected from themselves. 
 
 Upon What Allowed.— McCauseland's Ap., 1861, 2 Wr. 466. A trustee 
 is not allowed commissions on the principal of a fund which investment he 
 has not changed. 
 
 Waiver of Commissions. — McCawley's Est., 0. C. 1884, 14 W. N. C. 
 260. A trustee who has charged no commissions and who has declared that 
 he would charge none, is presumed to have made a gift of them to the cestui 
 que trust and on his death his executor cannot recover them. 
 
 lb. — Barton's Est., 1842, 1 Pass. 24. A trustee who has declined com- 
 missions and announced that he did not claim them, cannot afterwards claini 
 them oil the audit where the cestui que trust attempts to surcharge him. 
 
 When Entitled to.— Hnffer's Ap. , 1856, 2 Gr. 341 . A. guardian is entitled 
 to take his commissions as they are earned. 
 
 Who Entitled to.— Stehman's Ap., 1847, 5 Barr, 413. Only a faithful 
 trustee is entitled to compensation. 
 
 lb.— Hepburn's Est., O. C. 1875, 32 Leg. Int. 218, S. C. 11 Phila. 80. Ex- 
 ecutors who, though not appointed trustees, have acted as such, cannot claim, 
 compensation for so acting. 
 
566 TEUSTS AND TRUSTEES. 
 
 lb. — Livingood's Ap., 1882, 2 Penny. 70. A guardian who invests his 
 ward's money in real estate in his own naijie, and pays the ward regularly 
 interest on the money so invested, is a debtor to the ward and not entitled 
 to commissions on those payments. 
 
 E. Co-Trustees. 
 
 Account.— Shoch's Est., O. C. 1882, 39 Leg. Int. 90, S. C. 15 Phila. 519. 
 Where there have been co-trustees, the representatives of one deceased may 
 be called on to account although the other be living. 
 
 lb. — Liability. — Hengst's Ap., 1855, 12 H. 413. Administrators settled 
 a joint account ; one died and the other became insolvent. Held that the 
 former's estate was liable in equity for the whole. 
 
 Agreement.— Koelle v. Englert, C. P. 1878, 35 Leg. Int. 200, S. C. 12 
 Phila. 517. An agreement between one of three trustees and the obligors 
 of a hond which restricts the conditions thereof against the interests of the 
 cestui que trust cannot be sustained. 
 
 lb.— Not to Distrain.— Vaudever's Ap., 1845, 8 W. & S. 405. Co-trus- 
 tees must all unite in performing discretionary acts (e. g. giving receipts), 
 but this is not necessary where the act to be performed is ministerial only. 
 A promise of payment of rent, if the landlord will not distrain, is of the 
 former kind and not binding unless made by both. 
 
 Assignment— Mortgage — Satisfaction.— D'lnvilliers v. Abbott, C. P. 
 1877, 4 W. N. C. 124. One'of two co-executors who have received an as- 
 signment of a mortgage as an investment, may receive payment thereof and 
 enter sufficient satisfaction. 
 
 Joint Liability. — Evans' Est., 1841, 2 Ash. 470. One of two trustees 
 who, fearing that his co-trustee is becoming involved, takes from him secu- 
 rities to the amount of the estate in his hands, and who thereupon assures 
 the beueficaries that they are safe, is liable to them to the extent of the se- 
 curities onlv if he afterwards return them to his co-trustee and the latter 
 becomes insolvent. But his liability is not diminished by the fact that the 
 beneficiaries have received a dividend out of the insolvent estate, or that 
 tliey might have received more if they had proceeded in a certain way. 
 
 Misfeasance and Nonfeasance— Liability.— Stell's Ap., 1848, 10 Barr, 
 149. A trustee cannot be charged for the misfeasance or nonfeasance of his co- 
 trustee, unless that other from insolvency is unable to answer for himself. 
 General liability of joint trustees, executors, &c., discussed. 
 
 lb. — lb. — Pine «. Downing, 1824, 11 S. & E. 66. A guardian is liabie 
 for the misapplication of money by his co-guardian if he had means of pre- 
 venting it. 
 
 Set-off— Chew v. Eawle, O. C. 1857, 14 Leg. Int. 140, S. C. 2 Phila. 282. 
 One of several joint trustees cannot prevent payment of a debt due by the 
 estate to another estate which is indebted to him individually. 
 
 f , Discretionary Powers. 
 
 Accumulations.— Ashhurst's Est., O. C. 1886, 43 Leg. Int. 98. It seems 
 that a discretion vested in a trustee whereby a trust for accumulation may 
 arise, does not infringe the act. 
 
 Board.— Clark's Est,, O. C. 1886, 44 Leg. Int. 36. Where a discretion 
 is vested in a trustee as to the amount of board to be paid for the accommo- 
 dation of the cestui que trust, there is a necessary implication that the board 
 furnished shall be suitable and proper if the same can be obtained within 
 the limit named. 
 
TRUSTS AND TEUSTEES. 567 
 
 Control Over.— Chandler V. Gardner, C. P. 1886, 43 Leg. Int. 138. The 
 court will not control the discretion vested in trustees, but only the' dis- 
 honest or hasty exercise thereof. 
 
 lb.— Chandler v. Gardner, 1886, 2 P. C. C. 407. In the absence of mala 
 fides on the part of trustees entrusted with the control and management of 
 the gas works of the city of Philadelphia, a court of equity will not inter- 
 lere by injunction to control them in the exercise of their discretion as to 
 the process adopted by them or the methods used in administrating their 
 trust. 
 
 lb.— Orphans' Court.— Chew v. Chew, 1857, 4 C. 17. The orphans' 
 court will not control trustees in the exercise of a discretionary power in 
 the absence of bad faith. 
 
 lb.— Promise to Exercise.— "Williams' Ap., 1873, 23 S. 249. An execu- 
 tor and trustee in whom is vested a discretion, will not be controlled in his 
 exercise of it by equity, unless it appears he is defeating the object of the 
 trust. The fact that he had promised the testator to exercise it in a certain, 
 way does not make him incompetent. 
 
 Delegation— Discretionary Power.— Bohlen's Est., 1874, 25 S. 304; 
 afiPg 4 Leg. Gaz. 106, 29 Leg. Int. 108, 9 Phila. 129. A discretionary power 
 cannot be delegated by a trustee, and a power to change investments is a 
 discretionary one. 
 
 Direction to Sell.— Naglee's Est., 1866, 2 S. 154. A direction to trus- 
 tees to sell certain property at a certain time, if in their opinion it is best, 
 is an entirely discretionary power. 
 
 Executors- Performance — Balance.— McCurdy's Ap., 1889, 9 Crum. 
 99. A testator devised all his property not otherwise disposed of to be 
 given to charity, "as they in their best judgment may consider the nlost 
 compatible with the views and instructions given them." The executors 
 executed a declaration stating that having given certain portions of the es- 
 tate to charities, all had been given both to kindred and charities that the 
 testator had desired, as he had repeatedly declared to them, they had ap- 
 piopriated the balance to themselves. Held, 1. That a trust was created 
 and the only discretion vested in the executors was to carry out testator's 
 orders. 2. That having carried them out, and a balance remaining, it was 
 not covered by the will but went to the next of kin. 
 
 Gas Works— Disregard of— Foster v. Philadelphia, C. P. 1878, 5 W. 
 N. C. 269, S. C. 35 Leg. Int. 45, 12 Phila. 511. The trustees of the gas 
 works have power to adopt regulations as to fixtures and service-pipe, and 
 ■equity will not review this discretion if reasonably exercised, especially 
 where the complainant has deliberately disregarded it. 
 
 Income— Accumulation.— Levy's Est., O. C. 1856, 13 Leg. Int. 228, S. 
 C. 2 Phila. 138. The discretion of a trustee to withhold income cannot be 
 used for the purpose of accumulation. 
 
 Loan of Fund to Cestui q.ue Trust.— Gochenauer v. Cooper, 1822, 8 S. 
 & R. 187. A trustee who has discretion to allows the cestui que trust part of 
 the principal, and who lent him the whole fund (there being a surety), is 
 protected. 
 
 Power of Sale— New Trustees.— Gesson v. Ferrell, 1872, 20 S. 446. A 
 discretionary power of sale given to trustees may be exercised by those ap- 
 pointed in their stead by the orphans' court under the act April 22, 1846, S. 
 1, P. L. 483. 
 
 Successor.— Pennsylvania Ins. Co. v. Price, C. P. 1870, 27 Leg. Int. 412, 
 S. C. 7 Phila. 465. Where a deed of trust attempts to continue a discretion 
 in trustees and their successors, which may keep the estate tied up longer 
 than allowed by law, the deed is void. 
 
 lb.— Wilson V. Pennock, 1856, 3 C. 238. Discretionary powers vested in 
 a trustee will pass to a new trustee appointed by the common pleas under 
 
568 TEUSTS AND TliUSXEES. 
 
 the act June 14, 1836, but to no successor or survivor constituted in a,uy 
 othgr way. 
 
 Testamentary Trustees.— "Wister's Est., 0. C. 1857, 14 Leg. Int. 348, 
 S. C. 2 Phila. 377. The orphans' court will not, in the absence of bad faith, 
 interfere with a discretion vested in testamentary trustees as to the allow- 
 ance to be made to the cestui que trust. 
 
 Trust Fund— Increase of— Creditors.— Keyser v. Mitchell. 1871, 17 S. 
 473, S. C. 18 Pitts. L. J. 301 ; aff'g 27 Leg. Int. 133, 7 Phila. 150. Where 
 the income of a trust fund is payable to the beneficiary solely on the dis- 
 cretion of the trustees, the fund cannot be touched by creditors, nor will 
 chancery interfere with the discretion. 
 
 O. Ex Malefacio. 
 
 Act April 22, 1856.— Maul v. Eider, 1865, 1 S. 377. Act April 22, 1856, 
 protects a trustee ex malefacio only when five years have run after the fraud 
 was or might have been discovered. 
 
 lb.— Seichrists Ap., 1870, 16 S, 237, S. C. 18 Pitts. L. J. 185. Act April 
 22, 1856 (trusts), cuts up by the roots all parol trusts by bargain or 
 contract. But under the fourth section, if the party obtaining the legal 
 title does so only by having a confidence reposed in him, the abusing that 
 confidence is a fraud which raises a trust ex malefacio. 
 
 Breach of Contract.— Peters v. Kerper, C. P. 1878, 5 W. N. C. 523, S. C. 
 35 Leg. Int. 180, 12 Phila. 410. One may beoomea trustee ex malefacio by a 
 mere breach of contract, where it is a breach of confidence, although there 
 was no fraud in the making of it. 
 
 Devisee. — Fox i\ Fox, 1878, 7 N. 19. A devisee is not turned into a 
 trustee by promises made to the testator as the latter was dying, the will 
 having been made long before. 
 
 lb.— Edwards v. Sinedley, C. P. Delaware 1882, 1 Del. Co. R. 544. 
 Where one procures a devise on the faith of promises to pay certain legacies, 
 he will be held a trustee ex malefacio. 
 
 lb. — Bonner v. Rowdybush, 1883, 3 Penny. 92. A devisee who is in- 
 formed by one, not the testator, that a devise has been made to him, subject 
 to a charge, and assents to the same, cannot be made a trustee ex malefacio 
 on proof that the charge was by mistake omitted from the will. 
 
 lb. — Irwin V. Irwin, ,1859, 10 C. 525. A devisee can be turned into a 
 trustee by an oral agreement, only when it was entered into before the will 
 was made. 
 
 Facts Necessary to Create.— Kimmel*. Smith, 1887, 2 Crum. 183. The 
 fraud which will convert the purchaser of land at a sheriffs sale into a 
 trustee ex malefacio of the debtor, must have been fraud existing at the time 
 of the sale, by which title was procured and must be clear, explicit an un- 
 equivocal. 
 
 How Constituted — Representation. — Bailey's Ap., 1880, 15 N. 253. 
 Where certain parties, by fraudulently representing that they owned all the 
 stock of a corporation, procured a decree dissolving it and awarding them 
 the assets, they are trustees ex malefacio for any stockholder not included. 
 
 Measure of Damages. — Greenwood's Ap., 1879, 11 N. 181. In determ- 
 ining an account against one who has been decreed to be a trustee ex male- 
 facio, the latter is to he charged only with the accounts which he actually 
 received for the goods which he has sold, and not, in the absence of fraud, 
 with the highest market price. 
 
 Purchaser at Sheriff's Sale.— Graham i;. Donaldson, 1836, 5 W. 451. 
 A purchase of defendant's property at sheriff's sale by the request of defend- 
 
TEUSTS AND TKUSTEES. 569 
 
 ant and for the defendant, i. e., giving him the right to redeem, raises a, 
 trust ex malefacio in that it may keep others from bidding. But the right 
 of the cestui que trust may be barred by laches as where he stands by for 
 fourteen years as in this case. 
 
 Renewal of Lease.— Emeret's Est., 1851, 2 Pars. 195. A- trustee of any 
 kind who renews a lease which was held for the benefit of the cestui que 
 trust, holds it for the latter and is accountable for profits made thereout. 
 
 Sale— Agreement.— Heath's Ap., 1882, 4 Out. 1, S. C. 11 W. N. C. 317. 
 Equity will decree a purchaser at a sheriff's sale a trustee for the debtor, 
 where he bought in the property under an agreement to reconvey on pay- 
 ment of the liens, and where under that agreement he represented to those 
 about to bid that this arrangement had been made and was for the interest 
 of the debtor. 
 
 lb- —lb. — Hogg V. Wilkins, 1854, 1 Gr. 67. An agreement between a 
 purchaser, at sherift's sale, aud the defendant that the former will hold for 
 the latter, raises a trust only when used as an inducement to deter others 
 from bidding. 
 
 lb.— Declaration at.— Cook v. Cook, 1871, 19 S. 443. A bidder at a 
 sheriff's sale stated to other bidder's that he was buying the property in for 
 his brother, the defendant; the others thereupon stopped bidding. Seld 
 that the evidence established a trust for the brother. 
 
 lb.— Illegal.— Johns « Tiris, et al., 1887, 19 W. N. C. 13. Where the 
 property of a minor was sold, subject to a lieu, for municipal taxes, to divest 
 the minor's title but not to enforce the judgment, such sale not having been 
 authorized by the orphans' court is illegal and the ward on coming of age 
 may bring ejectment against the purchaser with notice of the illegality as 
 trustee ex malefacio. 
 
 lb.— Representations at.— Boyntou v. Housler, 1873, 23 S. 453. Where 
 one buys in property at public sale at a low price, owing to his promises 
 that he purchases for some interested party, he is a trustee ex malefacio. 
 
 When Arises.— Church v. Euland, 1870, 14 S. 432. A trust ex malefacio 
 is not within the 7th section of the Statute of Frauds, as enacted in this 
 state April 22, 1856 (P. L. 533). Such a trust arises when property is willed 
 to one on his promise to apply it to certain uses, and is enforced by giving 
 full effect to the will and then fastening the trust upon the legatee. 
 . lb.— Kistler's Ap., 1873, 23 S. 393, S. C. 5 Leg. Gaz., 170, 5 Lg. Op. 36, 
 SI. A.'s property being about to be sold by the sheriff, B. and C. agreed 
 thatC. should buy it in for him. C. was absent at the sale and B. bid it in 
 at A. 's request, the deed was made to C. Held there was not sufficient evi- 
 dence to establish a trust ex malefacio. 
 
 lb. — Beegle v. Wentz, 1867, 5 S. 369. A debtor and creditor agreed that 
 instead of the $300 exemption the latter should deed back to the former his 
 house and fifteen acres around it. Held that the creditor refusing so to do 
 became a trustee ex malefacio. 
 
 lb.— Walford v. Herrington, 1873, 24 S. 311, 1 Post. 369, 21 Pitts. L. J. 
 45. A man's property in which his wife claimed an equitable title, being 
 about to be sold by the sheriff, the defendant promised that if she would 
 permit him to obtain the title he would execute a declaration of tru-st for 
 the wife. He bought in the property and refused to perform his promise. 
 Held that he was a trustee- ex malefacio, irrespective of the validity of the 
 wife's title. 
 
 lb. — Faust V. Haas, 1873, 1 Fost. 73. Where, after the defendant's at- 
 torney has bid in the property at a sheriff's sale, a stranger gets the title 
 conveyed to him by fraud and false representations, he will be held a 
 trustee ex malefacio. 
 
 Who is. —Miller v. Billman, C. P. Luzerne, 1878, 8 Luz. L. Keg. 331. 
 ■Where one obtains property at sheriff's sale, by reason of a confidence re- 
 posed in him, he will be converted into a trustee ex malefacio. 
 
570 TRUSTS AND TEUSTEBS. 
 
 K. lAabilUy of^When Surcharged. 
 
 Account— Imperfect.— JSa;-j}aWe Cassel, 1834, 3 Watts 408. Where a 
 trustee keeps either imperfect accounts or none at all every intendment is 
 'to be made against him. As a rule he is only chargeable with gross negli- 
 gence, but where by the terms of the trust he is to receive compensation the 
 trustee is accountable on the basis of a trustee for hire. 
 
 lb.— None Kept.— Morton's Est., 0. C. 1869, 26 Leg. Int. 140, S. C. 7 
 Phila. 484. Every intendment will be made against a trustee who keeps 
 no account, and if he has sold property he must prove what the price was or 
 he will be charged the highest value that can be put upon it. 
 
 Advances — Family Settlement. — Culbertson's Ap., 1877, 3 N. 303. 
 An administrator. acting as trustee under a family arrangement is entitled 
 to compensation. 
 
 AdvancingMoney— Account— Costs.— Carpenter's Ap.,1858, 2Gr. 381. 
 A trustee who advances money to the estate is entitled to simple interest 
 and no more, and if he files accounts solely in order to compound his interest 
 he will be charged with the expenses thereof. 
 
 Advancements by Trustee — Credit.— Taylor's Ap., 1887, 20 W. N. 
 C 238. A party conveyed real estate to a trustee in trust to pay his debts 
 and apply the income to the support of grantor and family, with power to 
 mortgage and sell should income prove insufficient. The trustee mortgaged 
 the estate for as large an amount as he could obtain on it. This proved in- 
 sufldoient. The trustee then let to grantor a store at a moderate rent and 
 likewise a farm. He made further advancements to the grantor, the appro- 
 priation of which did not appear. Held the trustee was entitled to credit 
 for the rent of farm and store although he had not strictly followed the letter 
 of the trust deed. 
 
 Appropriating Funds to Own Use. —Drake's Est., O. C. Luzerne, 1884, 
 2 Kulp 256, S. C. 12 Luz. L. Eeg. 19. A trustee who appropriates the trust 
 funds to his own use, renders himself liable to removal, to pay interest on 
 the fund, to make good the principal, and to a criminal prosecution. 
 
 Assignee for Creditors-^Ohanging Collateral.— Chambersburg Saving 
 P'und Association's Ap., 1874, 26 S. 203. An assignee for creditors who, 
 upon being casually informed that certain collateral he held was worthless re- 
 leased it for other collateral (which did prove worthless) and lost the debt, the 
 first collateral having been good. Held that he should be charged with the 
 debt. 
 
 lb.— Liability of to Account.— Shaeflfer v. Child, 1838, 7 W. 84. An as- 
 signee for creditors is not chargeable for disposing of a somewhat doubtfiil 
 security at less than its normal value. 
 
 lb.— Negligence— Surcharge.— Blackburn's Ap., 1861, 3 Wr. 160. An 
 assignee for creditors will be surcharged for loss arising through his negli- 
 gence in not looking after the property assigned. 
 
 lb. — lb. — Davis' Est., 1840, 5 Wh. 530. An assignee for creditors who 
 sell goods on credit to one whose credit is doubtful is liable for loss. 
 
 lb.— lb.— Wear's Est., C. P. Luzerne, 1882, 1 Kulp, 104. When an 
 auditor reports that an assignee for creditors has not made the most of the 
 assets he will be surcharged with the amount lost by his neglect. 
 
 lb.— Not Investing Trust Funds.— Hess' Ap., 1871, 18 S. 454. An as- 
 signee for creditors is not bound to invest the trust fund, but if he mingles 
 it with his own and receives interest he is liable for interest. 
 
 lb. — Selling on Personal Credit. — Swoyer's Ap., 1847, 5 Barr, 377. An 
 assignee for creditors is liable for losses occasioned by selling goods on the 
 personal credit of one embarrassed, though the sale was thought a good one 
 
TRUSTS AND TRUSTEES. 571 
 
 by himself and several of the creditors and was negotiated by the party af- 
 terwards asking to charge him. 
 
 Assumpsit by Cestui Que Trust— Wasting of Estate.— Martzell v. 
 Stauffer, 18o2, 3 P. & W. 398. Assumpsit can be maintained on equitable 
 principles by a cestui que trust against a trustee who is wasting the trust es- 
 tate, and the court can preserve the intent of the settler that<jthe cestui que 
 trud shall not control the fund, either by controlling the execution by or- 
 dering the sheriff to pay the money into court, or by a special judgment. 
 
 Ereacli of Trust— Employment of Executor of Deceased Partner.— 
 
 Hall's Ap., 1861, 4 Wr. 409. Articles of partnership provided that, in the 
 event of either dying, a clerk should be engaged out of his share of the 
 prolits and the business continued. A partner died and the clerk engaged 
 was one of the executors, who received as his salary one-third of his testa- 
 tor's share in the profits. Held this was not a breach ot the trust and he 
 need not account for it. (Woodward and Reed, J J., dissent.) 
 
 Care and Diligence. — Daring's Ap., 1850, 1 H. 224. A trustee acting 
 faithfully and with advice of counsel is not chargeable for mistake. 
 
 lb. — Johnson's Ap., 1825, 12 S. & I-i. 317. A guardian who acting fairly 
 and with reasonable diligence loses the ward's funds through, the insolvency 
 of the e.xecutor of th& estate, is not chargeable. 
 
 ■ lb. — Jones' Ap. , 1844, 8 W. & S. 1 43. Where there is reasonable vigilance 
 and good faith, a joint guardian will be charged with no more than he him- 
 self receives. The rule as to joint executors is perhaps more strict. 
 
 lb. — Lancaster's Est., 1886, O. C. 43 Leg. Int. 16. A trustee who has acted 
 with the measure of care and diligence that a man of ordinary prudence 
 would use will not be surcharged. 
 
 It). — Neft's Ap., 1868, 7 S. 91. Ordinary diligence and skill is all that is 
 required of a trustee, therefore a guardian viill not be held liable for not im- 
 mediately suing on notes which become due, especially when he acted under 
 the advice of counsel. 
 
 Deposit.— Union Keformed Church v. Stranch, C. P. Schuylkill, 1880, 1 
 Sch. L. E. 313. A trustee who has deposited as trustee the interest secured 
 from the trust investments in a bank of good repute, is not liable for loss. 
 
 lb. — Seymour's Est., 1886. 0. C. Tioga, 43 Leg. Int. 58. Executors who de- 
 posit trust funds as executors in a bank of good repute are protected against 
 loss. 
 
 lb.— Haubest's Ap., 1880, 11 N. 482, S. C. 8 W. N. C. 208. An executor 
 will not be responsible for loss if he continues a deposit in a bank chosen by 
 his testator. 
 
 Ib.—Frankenfield's Ap., 1882, 11 W. N. C. 373. A deposit in a savings 
 fund where interest is received, and the money can only be drawn on notice, 
 is an investment not a deposit, and a trustee is consequently liable for loss. 
 
 lb. — ^In Own Name. — McAllister v. Commonwealth, 1858, 6 C. 536. A 
 trustee who deposits funds in his own name is liable for loss though the 
 bank knew they were trust funds and the trustee acted in good faith and to 
 the best of his knowledge. 
 
 lb.— lb.— Attachment.— Paxson v. Sanderson, D. C. 1858, 15 Leg. Int. 
 397, S. C. 3 Phila. 303. Funds deposited by a trustee with his own account 
 are liable to attachment for his own debts. 
 
 lb.— lb.— Commonwealth v. McAlister, 1857, 4 C. 480. A trustee (admr.) 
 who deposits trust fands with a bank in his own name and not as trustee is 
 personally liable for loss. 
 
 Directions of Court. — Gochenauer?;. Froelich, 1839, 8 Watts, 19. Trustees 
 who act in accordance with the directions of this court, shall not be held re- 
 sponsible. Duties and liabilities of trustees generally discussed. 
 
 Errors in Judgment.— Hinkle's Est., 1887, 4 P. C. C. 2. A trustee 
 
572 TRUSTS AND TEHSTEES. 
 
 will not be snrcharged with moneys never received on the ground of mere 
 error in judgment. 
 Estoppel— Consenting to Violation of Trust— Cliurcli. —Jones v. 
 
 Wadsworth, 1877, 4 W. N. C. 514, affg. 11 Phila. 227, 839, 33 Leg. Int. 390, 
 4^6. Where a trustee and his co-plaintifls acquiesce in a use of church 
 property in violation of the trusts on which it is held, they are not estopped 
 from asserting their rights to it, but they are estopped from recovering for 
 mesne profits pending litigation, and are charged their own costs though 
 successful. 
 
 Executor— Good Faith— Surcharge.— Dabney's Ap., 1888, 5 Cmm. 
 344. Where the only estate of a testator consisted of money unsecured in 
 the hands of a brother, the executor acting in good faith will not be sur- 
 charged for permitting the brother after he had assigned junior mortgages 
 of his real estate and leases thereon to the executor, to collect the rents, the 
 receipts therefrom to be accounted for in a specified manner. 
 
 Executor — Profits made out of Estate. — Haberman's Ap., 1882, 5 Out. 
 329. An executor who has been surcharged with the balance of a debt that 
 has been lost to the estate cannot claim for himself a profit realized by a sale 
 of certain goods bought in on a judgment against the insolvent debtor. The 
 goods belonged to the estate, so did the profit. 
 
 Expenditures of Trustee.— Patterson's Ap.,1883. 8 Out. 369, S. C. 41 Leg. 
 Int. 204, 31 Pitts. L. J. 199. A trustee authorized by court to make expen- 
 ditures to a certain amount is protected to that amount and no more, but if 
 he expends more and the court subsequently approve it he is safe. 
 
 Foreign — ^Power of Court over. — Waughn v. Barclay, 1841, 6 Whart. 
 392. The court can compel a trustee residing in the State to execute a con- 
 veyance of lands without the State. 
 
 Good Faith. — Jack's Ap., 1880, 13 N. 367. A guardian who, acting in 
 good faith, does not proceed to execution on a judgment which a good busi- 
 ness man would have considered secure, will not be charged with its loss. 
 
 lb. — Dietterich v. Heft, 1847, 5 Barr, 87. A trustee (guardian) who has 
 acted in good faith shall not be charged with compound interest by making 
 rests every three years. 
 
 lb.— King V. Morrison, 1829, 1 P. & W. 188. Where trustees act in good 
 faith and under the advice of counsel, they will not be charged with loss. 
 
 Guardian— Interest— Clothes.— Gissel's Est., 1888, 5 Kulp. 207. A 
 guardian will be charged interest on money of his ward, which he has em- 
 ployed for his private use. Nor will he be allowed credit for clothes and 
 maintenance where the ward has learned no trade, received but little edu- 
 cation and served the guardian as a child rather than as a ward. 
 
 lb. — Surcharge.— Landmesser's Est., 1889, 5 Kulp, 215, 6 Lan. L. 
 Eev. 173. A guardian will not be surcharged where the attorney of his 
 ward, after recovering money on a life insurance policy, spent the money, 
 the guardian having demanded the same four days after its receipt. 
 
 Imperfect Gift— Execution of— Equity.— Walsh's Ap., 1888, 7 Cmm. 
 177. Equity will not compel an executor or administrator to complete an 
 imperfect gift of his testator, if the latter, were he living, might refuse to 
 do so. 
 
 Interest.— Grim v. Sarmiento, C. P. 1886, 43 Leg. Int. 306. Where there 
 appear in a trustee's account long intervals between the debits and credits, 
 he should be charged with interest.. 
 
 lb.— Witmer's Ap., 1878, 6 N. 120, S. C. 10 Lan. Bar. 87, 27 Pitts. L. J. 
 151. A trustee was not aware that certain bonds had become due until a 
 quarter had passed. The auditor did not surcharge him with interest on 
 the fund ($20,000) until two months thereafter and this was affirmed. 
 
 lb.— Aston's Est., 1839, 5 Whart. 228. The legal estate was limited to 
 A. and his executors. On the death of A. his executor took the funds, then 
 
TEUSl'S AND TBUSTBES. 573 
 
 uninvested. Held that he took them as trustee and was accountable for 
 them m no other capacity; also, that not investing them immediately he 
 was liable for interest. 
 
 lb.— Breneman v. Frank, 1857, 4 C. 475. A trustee is chargeable with 
 interest on a trust fund whether he invests the .same or not. 
 
 lb.— Lane's Ap., 1855, 12 H. 487. A trustee is chargeable with interest 
 on trust lunds lying idle iu his hands. 
 
 lb.— Light's Ap., 1854, J2 H. 180. An executor mav be charged simple 
 interest upon funds which lie might have invested but which he suffered to 
 remain in his hands. 
 
 lb.— Knight u Rep.-e. 17S):>, 2 D. 183. A trustee who is a mere deposi- 
 tary of money which he holds fur tlie use of another, is not chargeable with 
 • interest unless he neglects to pay it on demand. 
 
 lb.— Biles' Ap. , 1855, 1 2 If . ,S35. After the settlement of an executor's ac- 
 count,_ the executor is liable for interest upon so much of the balance found 
 to be in his hands, as was not required to meet contingencies. 
 
 lb.— Baker's Ap., 1822, 8 S. & R. 12. A trustee who negligently omits to 
 put trust money out at interest is chargeable therewith ; but he is allowed 
 to keep a reasonable sum on hand for contingencies, and is also allowed ,a 
 reasonable time to put out the surplus. 
 
 lb.— Pennypacker's Ap., 1862, 5 Wr. 494. A trustee who does not invest 
 funds, or who invests at less than the legal rate, is chargeable with simple 
 interest. 
 
 lb.— Wayland's Est. , O. C. 1886, 43 Leg. Int. 58, S. C. 17 W. N. C. 375, 1 Pa. 
 Co. C. K. 366. Compound interest will not be charged against a trustee 
 unless it be an extreme case. 
 
 lb.— Business.— Clauser's Est., 1877, 3 N. 51. A trustee who uses the 
 trust fund in his own business will be charged interest. But in this case 
 interest was not charged on a sum paid by the trustee to counsel, with 
 which he was surcharged. 
 
 lb.— Compound.— Robinson's Est., O. C. Dauphin, 1855, 1 Pears. 423. 
 A trustee will not be charged with compound interest upon a fund remain- 
 ing in bis hands uncalled for. 
 
 lb.— Depreciated Currency.— Dilworth v. Sinderling, 1808, 1 Bin. 488. 
 A trustee is entitled to interest on money advanced by him to the tru.^t 
 fund. He is not chargeable with losses occasioned by receiving depreciated 
 currency during the time of war. Nor is he chargeable for putting suitable 
 improvements on the trust estate without consulting his cestui que trust. 
 The latter, however, would have been a more prudent course. 
 
 lb. — Distribution. — Lynn's Ap., 1857, 7 C. 44. An executor not charged 
 with interest on a fund coming into his hands and distributed in from three 
 to six months. 
 
 E).— Misapplication of Funds.— Welch's Ap., 1881, l Penny. 9. An 
 executor who has attempted to appropriate the entire estate by claims which 
 are proven invalid, will be charged interest and denied commissions. 
 
 lb.— Notice to Beneficiaries.— Merrick's Est., 1822, 1 Ash. 305. It is 
 the duty of trustees of every description to notify those entitled to a fund 
 of that fact and tender payment, failing in this they will be charged interest 
 upon it. 
 
 Investments. — Rush's Est., 1849, 2 J. 375. Under a direction to invest 
 in legal securities or in " any public stocks or security bearing interest," 
 executors are not liable for a loss arising from buying bonds of the Lehigh 
 Coal and Nav. Co. 
 
 lb.— Worrell's Ap., 1848, 9 Barr, 508. A trustee (guardian) held liable 
 for an investment in Schuylkill Navigation stock, though it continued good 
 for many years and some of his wiucls coming of iige realized handsomely on 
 the investment. 
 
574 TRUSTS AND TBDSTEES. 
 
 lb. — Stanley's Ap., 1848, 8 Ban, 431. A trustee who makes a doubtful 
 investment in his own name cannot afterwards force it upon his cestui que 
 trust. 
 
 lb. — Hemphill's Ap., 1852, 6 H. 303. A trustee directed to invest" on 
 good security," is protected only upon investments in legal security. 
 
 lb.— Advice of Counsel.— Smith's Est., O. C. 1883, 14 W. N. C, 93. A 
 trustee who has made an investment on insufficient security, is not pro- 
 tected by having consulted an attorney, the question of security is a ques- 
 tion of fact, and the trustee is as well able to judge of its adequacy as an 
 attorney. 
 
 lb.— Approval of Cestui que Trust.— Barton's Est., 1842, 1 Pars. 24. 
 A trustee who continues an investment with the approbation of the cestui 
 que trust, it being one which was thought at the time unexceptionable, will 
 not be charged with loss resulting from it. 
 
 lb. — Bonds of Corporation. — Twaddle's Ap., 1846, 5 Barr, 15. A trus- 
 tee not charged for investing in the bonds of a corporation owning coal lands 
 and a canal (Lehigh Navigation Co.), which tour years afterwards suspended 
 payment of interest. 
 
 lb.— Bonus.— Keen's Est., O. C. 1883, 13 W. N. C. 451, S. C. 40 Leg. Int. 
 2.51. A trustee who has received a bonus for making a certain investment 
 will be charged therewith. 
 
 lb.— Business.— Bowker's Est., O. C. 1878, 5 W. N. C. 493. An execu- 
 tor is not liable for a loss incurred in carrying on the business of the dece- 
 dent, when the auditor finds that it was done in good faith and was the 
 best course open. 
 
 lb.— lb.— Of Decedent.— Stern's Ap., 1880, 14 N. 504. An adminlstia- 
 tor who leaves the property of the decedent in the business in which he had 
 been a partner, will not be surcharged with loss upon the firm proving in- 
 solvent, it being established that it was insolvent at the death of the dece- 
 dent. 
 
 lb.— Direction.— Ihmsen's Ap., 1862, 7 Wr. 431, S. C. 3 Luz. L. Obs. 
 68. A trustee directed to invest in "good, secure and profitable " security, 
 will be held for loss if the investment is not good, secure and profitable, 
 unless he make a legal investment. 
 
 lb.— Discretion.— Fray's Ap., 1859, 10 C. 100. A trustee given discre- 
 tion as to his investment must so invest as to bring in a present income. 
 And even with discretion given him he will be charged for investing in a 
 manufacturing corporation whose stock was not paid up and whose works 
 were not finished. It does not help him that his cestui que trust, a married 
 woman, assented to the investment. 
 
 lb.— Illegal.— Naglee's Est., O. C. 1865, 22 Leg. Int. 37, S. C. 6 Phila. 
 28. A trustee not surcharged for investing the proceeds of a ground rent 
 in United States securities below par. 
 
 lb.— lb.— Williamson's Est., 0. C. 1878, 35 Leg. Int. 145, S. C. 12 Phila. 
 64. A trustee who acts honestly will not be charged with loss for not con- 
 verting immediately illegal securities which have come into his hands. 
 
 lb.— lb.— Gaw's Est., O. C. 1877, 34 Leg. Int. 66, S. C. 12 Phila. 4. A 
 trustee who invests in securities other than legal vrill be liable for loss. 
 
 lb.— lb.— Williamson's Est., O. C' 1878, 7 W. N. C. 82. An executor not 
 surcharged with illegal investments which were made by his testator though 
 requested by the cestui jwe trust to sell them before they depreciated. 
 
 lb. — Insolvent Bank.— Morris v. Wallace, 1846, 3 Barr, 319. A trustee 
 vrill be charged for investing in the stock of an insolvent bank, or in making 
 any investment in his own name. 
 
 lb.— Loan— Security.— Dietterich «. Heft, 1847, 5 Barr, 87. A guardian 
 is chargeable for loss occurring from a loan without security to one in equivo- 
 cal circumstances. 
 
TEUSTS AND TEUSTBES. 575 
 
 lb. —Personal Security.— Konigmacher v. Kimmel, 1829, 1 p. & W. 
 207. Common skill, common prudence and common caution are all that 
 the law requires from trustees. A guardian is therefore not chargeable for 
 loss occasioned by taking personal security, if it was generally deemed good 
 at the time. 
 
 lb.— Payment in Depreciated Notes.— Heager's Accounts, 1826, 15 S. 
 & E. 65. An estate shall have the benefit of a payment of a debt by the 
 executors to a bank in the depreciated notes of the latter. 
 
 lb.— U. S. Bank Notes.— Nyce's Est., 1843, 5 W. & S. 254. An invest- 
 ment in United States Bank stock is at the peril of a trustee. , 
 
 Leaning of Courts.— McClean's Ap.„ 1883, 31 Pitts. L. J. 148. Where 
 the trustee has acted in conj unction with his cestui que trust, the courts will 
 not be so apt to surcharge him. 
 
 Mingling Funds. — Morris' Ap., 1872, 21 S. 1{)6. An executor who min- 
 gled a large estate with his own is chargeable with simple interest on the 
 same. Quwre, whether compound interest is chargeable in Pennsylvania. 
 But if profits are realized they may be charged even if greater than com- 
 pound interest. 
 
 lb.— Ashton's Est., O. C. 1886, 18 W. N. C. 102. Where a trustee mixe.s 
 the trust estate with his own and delays filing an account, he will be 
 charged with interest until adjudication of the account. 
 
 lb.— Deal's Est., 1887, 44 Leg. Int. 228. Trustees who mingle trust 
 moneys with their own and use the same in their private business, will be 
 charged with interest on profits as may be claimed, and will be deprived of 
 their commissions. 
 
 Mortgage — Special Trust. — Appeal of Hamburg Bank, 1887, 19 W. N. 
 C. 177. Upon the audit of the account of an administrator, the distributees 
 of the estate sought to surcharge him with the amount of two mortgages 
 which had been assigned to him by the decedent upon a parol trust to pay 
 the amount thereof if collected in the decedent's lifetime to him, and if 
 after decedent's death to his children. The mortgages were collected after 
 decedent's death. Held the attempt being to enforce a special trust was 
 not cognizable in the orphans' court. 
 
 Negligence — Costs. — Lamb's Ap., 1868, 8 S. 142. A guardian sold stock 
 belonging to his ward, but kept his accounts as though he still held the 
 stock. Seld, he was chargeable with the highest price reached by the stock 
 after the conversion, and that he should pay for the audit and be denied 
 commissions. 
 
 lb.— Moore's Ap., 1849, 10 Barr, 435. A trustee can only be surcharged 
 for supine negligence, or wilful default; he is not chargeable with im- 
 aginary values, or on vague evidence that the property should have brought 
 more. 
 
 lb.— Finney's Ap., 1860, 1 Wr. 323. Where the fact has been found that 
 an estate has lost a certain sum through the neglect of the executor that sum 
 should be an item on the debit side of his account. 
 
 Notes of Insolvent Bank. —Hastings' Est., 1850, 4 Clark, 471, S. C. 3 
 Am. L. J. 213. A trustee who in good faith receives bank notes as payment, 
 which notes at the time are current and the bank solvent, is not chargeable 
 with loss, unless he mixes the notes vyith his own money is negligent in pay- 
 ing them over to his cestui que trust. 
 
 Orphans' Court, Power of— Conveyance.— Appel's Ap., O. C. 1858, 15 
 Leg. Int. 13, S. C. 3 Phila. 23. The orphans' court may compel a trustee 
 to execute a conveyance of the trust property to those entitled, when the ob- 
 jects of the trust are all accomplished. 
 
 Profits.— Eobinett's Ap. , 1860, 12 C. 174. A trustee who uses trust funds 
 in his own business may at the option of the cestui que trust be charged for 
 the latter's proportion of the profits. 
 
576 TEUSTS AND TEUSTBES. 
 
 Purchase by— Resale— Liability for Profits.— Baker's Ap., 1888, 5 
 Crum. 33. A trustee who has obtained permission to bid at a sale ordered 
 by the court and whose purchase has been subsequently confirmed, is liable 
 to the cestui que irustent for the profits arising from a resale of the property, 
 tlie purchase having been made with money partially belonging to the trust 
 fund. 
 
 lb.— By Executor.— Willit's Est., 1887, 20 "W. N. C. 22. The estate 
 of a deceased trustee who, as executor, alleged that he purchased certain 
 shares of stock belonging to the estate, the stock still remaining in the name 
 of the testator, is liable for such stock and dividends thereon even after the 
 lapse of thirty years, the cestui que trust in the meantime being adjudged a 
 lunatic. 
 
 Purchase-Money.— Dillebaugh's Est., 1835, 4 W. 177. An administrator 
 who leaves part of the purchase-money arising out of an orphans' court sale' 
 in the hands of the purchaser is accountable for loss arising thereby. 
 
 lb.— Unpaid — Resulting Trust.— Duncan v. Lawrence, 1854, 19 H. 154. 
 A trustee in a resuUing trust who has to complete the purchase from his own 
 pocket, is still responsible to his cestui que trust for the latter's share in the 
 price. 
 
 Sale. — I/eslie's Ap., 1869, 13 S. 355. Executors will be surcharged, 
 where the facts show mpiue negligence in selling land for less than the market 
 price. 
 
 lb. — Springer's Est., 1865, 1 S. 342. An executor will not be surcharged 
 where on a sale the price obtained was low, therfe being no fraud or negli- 
 gence. 
 
 lb. — Parshall's Ap., 1870, 15 S. 224. A trustee who sells his own and 
 trust propprty together and receives stock in part payment is presumed to 
 take the stock wholly on account of his own property, he is therefore not 
 liable to the trust estate for any rise or fall in its value. 
 
 lb.— Cline's Ap., 1884, 15 W. N. C. 104. An executor who under the di- 
 rections of his testator continues the latter's business is not chargeable with 
 a loss occasioned by making a sale to one of his testator's customers. 
 
 Spendthrift Trust.— Overman's Ap., 1879, 7 N. 276, S. C. 7 "W. N. C. 
 380. A will created a spendthrift trust for 1 estator's children one of whom 
 was trustee. The latter on accounting was surcharged a sum larger than 
 that on which is interest in the estate was dei'ived. Held that he was 
 nevertheless entitled to his share of the interest on what remained, becajise 
 this interest was not to be free from all his liabilities. 
 
 lb.— Overman's Ap., 1879, 7 N. 276, S. C. 7 W. N. C. 380. A will created 
 a spendthrift trust for testator's children one of whom was trustee. The 
 latter on accounting was surcharged a sum larger than that on which his in- 
 terest in the estate was derived. Seld that he was nevertheless entitled to 
 his share of the interest on what remained, because this interest was not to 
 be free from all his liabilities. 
 
 Surcharge— When Allowed.— Supplee's Est., O. C. 1886, 1 Pa. Co. C. 
 Eep. 458. A trustee under a will who has been allowed payments of inter- 
 est on a mortgage on the trust estate, and who pays off the same when it 
 should have been paid by the personal estate of the testator, will be sur- 
 charged with the latter amount but not with the amounts paid for interest 
 and allowed, and will be allowed commissions and expenses. 
 
 lb.— Rent.— Pleasan ton's Ap., 1882, 3 Out. 362, S. C. 11 W. N. C. 273. 
 Since a trustee is never surcharged for a loss resulting from error of judg- 
 ment, he will nut be made liable for rent of property which has stood vacant 
 because he has bona fide demanded too much rent. 
 
 Verbal Conveyance— Deeds —Knowledge.— Smith ». Spencer, 1876. 2 
 W. N. C. 515. Where a trustee who has obtained from his cestui que trust a 
 verbal conveyance of his interest, afterwards obtains deeds therefor without 
 the fullest disclosures, ho remains a trustee. 
 
TBUSTS AND TEUSTEES. 577 
 
 Wrongful Conversion.— Appeal of Franklin's Administrator, 1886, 5 
 Am. 535. Where government bonds were delivered to a married woman to 
 be held as a trust fund, the interest of which she was to enjoy for lite, and 
 the bonds to be returned upon her death ; she converted the bonds into 
 money and her biisband joined in the receipt for the same. Held, her es- 
 tate was liable for the bonds wrongly converted. 
 
 X Powers and Duties. 
 
 Account— Heir-at-Law.—Baird's Ap., 1842, 3 W. & S. 459. The heir- 
 at-law of a trustee has nothing to do with the accounts of his ancestor. 
 These are settled by the administrator, and on him devolves the execution of 
 the trust so far as it regards the personal estate. 
 
 lb.— Husband and Wife. — Kintzinger's Est., 1841, 2 Ash. 455. A hus- 
 band whp, as trustee under a will, held property, the beneficial interest in 
 which, by the de^th of the first beneficiary, vested in his wife, will be obliged 
 to account to his wife for it, a divorce being granted, unless he shows posi- 
 tive acts by which he has reduced it into his own possession. 
 
 lb.— Liability to.— Carlile's Ap., 1861, 2 Wr. 259. Where a will vests 
 a trust in the executors for four years, they are not liable to account for rents 
 aecruing after that time. 
 
 lb. — lb. — Jacobs V. Bull, 1833, 1 Watts, 370. One, at the same time ex- 
 ecutor and trustee, who receives money in his latter capacity, cannot be made 
 to account for it in his former. 
 
 lb.— lb.— Roy V. Townsend, 1875, 1 W. N. C. 293. Where a purchaser 
 of property at an orphans' court sale, under proceedings in partition, pro- 
 cured an order of the court to enable him to use his own share of the pro- 
 ceeds of the sale, and the share of three others for whom he was attorney- 
 in-fact, in payment of the purchase money, he cannot, after a lapse of six- 
 teen years, be called upon to account as trustee, since the only trust possible 
 would be one resulting from the payment of the purchase money and that 
 would be barred after five years. 
 
 Accounts and Settlement— Closely Watched.— Shoch's Ap., 1859, 9 
 C. 351. A trustee is closely watched in his accounts and settlements with 
 his cestui que trust, especially where the latter is his wife. 
 
 Acknowledgment — Married Women. — Dundas v. Biddle, 1845, 2 
 Barr, 160. A feme covert trustee whose duty it is to make a deed will be 
 compelled by equity to acknowledge it in the legal) manner, viz :>that she 
 does it voluntarily. 
 
 Agreement Between Heirs and Trustee.— Miller's Ap., 18.18, 6 C. 
 478. An executor and trustee cannot enter into a valid contract with the 
 heirs to receive a portion of the estate in case the will be set aside. Such 
 contract is ahsolutely void. 
 
 Ambiguous Acts.— McGinn v. Shaeffer, 1838, 7 Watts, 412. Where the 
 acts of a trustee admit ot two constructions, one rightful, the other tortious, 
 equity will choose the former. Therefore, a trustee who allows his ceshii que 
 <r«s<'8 property to be sold on an encumbrance and afterwards indirectly gets 
 the title in himself, will be held in equity to hold it for his cestui que trust. 
 
 Appointment— Power of— Forfeiture.-Peffer's A p., 1888, 45 Leg. Int. 
 314. Where the will of a donor gives an estate intrust to a son for life and 
 at his death to the use of such of his children and issue as said .son may by 
 last will appoint, the donee of the power having but one child, cannot so 
 condition the grant of the estate as in any event to work a fbrleiture. 
 
 Arbitration— Submitting to Boundary.— Brower v. O^terhont, 1844, 
 7 W. & S. 344. Trustees are competent to snbrait a question of boundary 
 to arbitrators, and the finding of the latter binds the cestui que trust. 
 
 37 — EQUITY. 
 
578 IKUSTS AND TKUSTBES. 
 
 Assignee— l»urchase— Own Sale.— Shutt's Est., C. P. York, 1881, 2 
 York L. R. 103. An assignee for creditors cannot purchase the trust pro- 
 perty at his own sale. 
 
 lb.— Purchase at Sheriff's Sale.— Fisk v. Sarber, 1843, 6 W. & S. 18. 
 An assignee for creditors may purchase the property of his assignor at a 
 sheriff's sale under a mortgage. 
 
 lb.— lb.— Refusal toOomplete— Accountable for Bid.— Winebrener's 
 Ap., 1847, 7 Barr, 333. An assignee for creditors who purchases at his own 
 sale and afterwards refuses to take, and the property is sold by the sheriff, is 
 accountable for his bid, but is allowed commissions on the sale. 
 
 lb. — lb. — Sale Under Own Execution.— Campbell v. McLain, 1865, 1 
 S. 200. An assignee for creditors cannot buy at a sheriff's sale under an 
 execution issued by him ; nor is his title helped by a confirmation of his 
 report, charging himself with the amount of the purchase, it not appearing 
 therein that he was the purchaser. 
 
 Assignment — Survivor.— Shortz v. Unangst, 1841, 3 W. & S. 45.' A 
 trust vested in trustees, their heirs and assigns may be assigned by the 
 survivor alone in the absence of any proceeding to control him. 
 
 Bidding at Own Sale.— Cadwalader's Ap., 1870, 14 S. 293. A trustee 
 permitted to bid at his own sale must act within the strictest line of his 
 responsibility. 
 
 Certifying Bonds.— Railroad Co. v. Fidelity Ins. Co., 1888, 46 Leg. Int. 
 4. Where a railroad company creates a deed in the nature of a mortgage to 
 a trustee for the holding of certain bonds, the deed providing for the issue 
 of additional bonds, for the purpose of making improvements; providing 
 further that the question of the policy of making such improvements should 
 he submitted to the trustees, and evidence be furnished that twenty-five 
 per cent, of the improvements should be made and paid for before the 
 trustees may be compelled to certify the additional bonds. Held that as it 
 did not appear that the trustees must give their decision before the issue of 
 bonds was demanded, they could not, on the ground that the question has 
 not been previously submitted to them, refuse to certify the bonds. 
 
 Committee of Lunatic. — Wilson's Est., 1845, 2 Barr, 325. A commit- 
 tee of a lunatic cannot demand from trustee property held for their ward. 
 
 Confession of Judgment by. — Dickerson's Ap., 1847, 7 Barr, 255. A 
 trustee of an encumbered estate has power to confess judgment on a scire 
 facias to revive the lien. 
 
 Control of Fund.— Rudy's Ap., 1887, 20 W. N. C. 241. A trustee who 
 is invested with the dfety to ' ' keep, support and maintain out of the said 
 trust fund, ' ' his cestui que trust and has active duties to perform, should have 
 the custody and control not only of the corpus but of the interest of the 
 trust estate. 
 
 Conveyance to Cestui que Trust.— Kay v. Scale, 1860, 1 Wr. 31. Al- 
 though not necessary, the court will order a trustee in a mere passive trust to 
 make a conveyance to the cestui que trust, in order to avoid a possible cloud 
 on the title. 
 
 Donee of Power— Validity of its Exercise.— Pepper's Est., 1888, 45 
 Leg. Int. 54. Where the will of a donor gives an estate in trust to a son 
 for life and at his death to the use of such of his children and issue, and for 
 such estates and in such shares as he shall by his last will appoint ; the 
 donee of the power, though he have but one child, has an exclusive right of 
 selection as to the quantity of estate granted to said child within the lim- 
 itation against perpetuities. 
 
 Duty, Performance of — Trust Limited in Remainder.— Stokes' 
 Ap., 1876, 30 S. 337. Where the instrument creating the trust limits the 
 property in remainder, the trustees have no duty to perform after the death 
 of the cestui que trust. 
 
TRUSTS AND TEUSTEES. 579 
 
 Encumbrances.— Wilhelm v. Folmer, 1847, 6 Barr, 296. A trustee has 
 no authority, in the absence of an express or strongly implied power, to en- 
 cumber in any way the trust estate, though it be for the purchase money. 
 
 Entitled to Aid of Court.— Rogers' Est., O. C. 1885, 16 W. N. C. 226. 
 A trustee is entitled to the aid of the court where a genuine doubt or difli- 
 culty has arisen in the administration of the trust. 
 
 Estate Taken by— Purpose of Trust.— McBride v. Smyth, 1867, 4 S. 
 245. Where an estate is given to trustees for a specific purpose, they take 
 such an estate as is necessary to the execution of that purpose, whether the 
 same be greater or less than that limited by the instrument creating the 
 trust. 
 
 Income— Breaking Into — Trust for Accumulation — Justified.— 
 Potts [in re), 1826, 1 Ash. 340. A trustee is justified in breaking into the 
 income or even the principal of a trust for accumulation for a minor, if the 
 latter be in need of it for maintenance and education, and a trustee who 
 (being unfriendly) refuses to do this is liable to dismissal. 
 
 Insurance.— McNickle v. Henry, N. P. 1871, 4 Leg. Gaz. 6, S. C. 2 Leg. 
 Op. 110. 29 Leg. Int. 12, 9 Phila. 243, 28 Leg. Int. 44, 8 Phila. 87. It is the 
 duty of a trustee to keep up insurance on the trust property. 
 
 Investments.— Waylan's Est., O. C. 1886, 43, Leg. Int. 58, S. C. 17 W. N. 
 C. 375, 1 Pa. Co. C. R. 366. The duty of trustees to see that directions to 
 invest are carried out is joint and each is responsible for the neglect of 
 the other. 
 
 Judgment Against — Specific. — Aycinend v. Peries, 1845, 2 Barr, 268. 
 A judgment against a trustee will, on motion, be entered specifically so as 
 not to bind his own property. 
 
 Jurisdiction — Account— Foreign Executor.— Mussleman's Ap., 1882, 
 13 W. N. C. 71. Equity will not compel one who has been appointed exec- 
 utor and trustee in another jurisdiction, to account as a trustee until he has 
 settled his administration account in the court where he was appointed. 
 
 Maintenance— Income and Principal. — Potts {in re), 1826, 1 Ash. 340. 
 A trustee is justified in breaking into the income or even the principal of a 
 trust for accumulation for a minor, if the latter be in need ot it for mainten- 
 ance and education, and a trustee who (being unfriendly) refuses to do this 
 is liable to dismissal. 
 
 Mortgage — Distribution. — ^Yarnal's Ap., 1846, 3 Barr, 353. Where a 
 mortgage is given to trustees to secure creditors, the trustees are the proper 
 parties to distribute the money raised on it, and it is error for the court to 
 distribute it. 
 
 Payment of Debt Due Himself. — Patterson v. Lennig, 1887, 44 Leg. Int. 
 186. A trustee appointed by deed to pay the debts of the cestui que trust, he 
 himself being a creditor, cannot be made to account to the cestui que trust for 
 a debt paid in good faith to himself. 
 
 Payment of Interest on Mortgage.— Gross' Est., 1887, 20 W. N. C. 87. 
 Although it is the duty of the life tenant to pay the interest on a mortgage 
 upon real estate; where he is without means to do so and has neglected it, 
 the trustee will be allowed credit for the payment of said interest, as it is in 
 ease of the remainderman. 
 
 Power of Appointment— Exercise of— Conveyance.— McFadden v. 
 Drake, 1878, 29 S. 473. Trustees held laud in trust for the separate use of 
 a married woman, and under the further trust to convey the premises as 
 .the cestui que trust should appoint. The cestui que trust made a deed of the 
 premises to defendant, ffeld this was an exercise of the power of appoint- 
 jment. that the defendant had the equitable title and could compel a con- 
 veyance of the legal title by the trustees. 
 
 Power of Sale— Death of Trustee.— Wilson v. Stewart, O. C. 1858, 15 
 Jieg. Int. 52, S. C. 3 Phila. 51. A power to sell lands executed by trustees 
 is not necessarily revoked by the death of one of them. 
 
580 TEUSTS AND TBUSTBBg. 
 
 Power to Make Cestui que Trust Elect. — Pennsylvania Ins. Co. v. 
 Stokes, 1867, 1 Brews. 486. A trustee may bring his cestui que trust into 
 equity and compel him to make an election to which he is put in a will. 
 
 Power to Borrow.— Wallerson's Ap., 1882, 39 Pitts. L. J. 168. A trus- 
 tee has no power to borrow money unless it is given him in the instrument 
 creating the trust. 
 
 Power to Trade. — Mathews «. Stephenson, 1847, 6 Barr, 496. A power 
 given to a trustee to trade with property for the benefit of the cestui qite 
 trust, implies a power to contract debts. 
 
 Purchase by Trustee. — Miggetts' Ap., 1885, 42 Leg. Int. 195. Where 
 a trustee buys in the trust property for himself openly, fairly and with the 
 intelligent approval of the cestui que trust, his title will not be interfered 
 with. 
 
 lb.— McGinn v. Shaeffer, 1838, 7 Watts, 412. Where the acts of a trus- 
 tee admit of two constructions, one rightful, the other tortious, equity will 
 choose the former. Therefore a trustee who allows his cestui que trust's 
 property to be sold on an encumbrance and afterwards indirectly gets the 
 title in himself, will be held in equity to hold it for his cestui que trust. 
 
 lb.— Cundass' Est., O. C. 1885, 16 W. N. C. 458. Where a trustee has 
 been given permission to bid at his own sale (conducted by a master ap- 
 pointed by the court], and none of the parties in interest has objected at 
 the time the sale will be confirmed, unless a better bona fide bid is made to 
 the court. 
 
 lb.— Kickett's Ap., 1888, 21 W. N. C. 233. Where one stands in a fidu- 
 ciary relation to another, he has no right to become a purchaser of the lat- 
 ter's interest for less than its value, at a sheriff's sale brought about by his 
 own procurement. 
 
 lb.— Adverse Sale.- Chorpenning's Ap., 1858, 8 C. 315. A trustee 
 without funds in his hands may purchase the property of his cestui que trust 
 at an adverse judicial sale which it was not within his power to avert. 
 
 lb.— Chargeable with Profit.— Eosenberger's Ap., 1856, 2 C. 67. A 
 trustee who becomes interested in a purchase at his own sale, is chargeable 
 with any profit he may make. 
 
 lb.— Claims Against the Estate.— Hemstead's Ap., 1869, 10 S. 423. A 
 trustee cannot buy in claims against the estate for his own benefit. 
 
 lb.— Consideration.— Bixler v. Kuiikle, 1828, 17 S. &E.^298. A pur- 
 chase by executors and trustees of the interest of the cestui que irustent (who 
 are absent) will be closely watched, and if for inadequate consideration will 
 be set aside as fraudulent and void. 
 
 lb.— lb.— Peters v. Kerper, C. P. 1878, 5 W. N. C. 523, S. C. 35 Leg. Int. 
 180, 12 Phila. 410. A trustee who purchases property at his own sale is a 
 trustee for the parties interested, and is not protected by the statute until 
 five years after the right or equity accrues to those whom he has defrauded. 
 
 lb.— Co-Trustee's Sale.— Beesou v. Beeson, 1848, 9 Barr, 279. A trus- 
 tee cannot purchase at a sale by his co-trustee. Where, however, the cestui 
 que trust has knowledge of tha fact and assents to the application of the 
 purchase money to his own use, it will amount to a ratification. 
 
 lb.— Estoppel.— Patterson's Ap., 1888, 3 Crum. 571. Where the stock 
 of an insolvent corporation is placed by the owner in the hands of a stock- 
 holder, hiraselt a creditor, "to be used for the liquidation of the company's 
 indebtedness," the surplus to be returned to the contributors, and four 
 years after paying the other creditors out of the stock, the trustees paid his 
 own claim with that which remained, without fraud and at a fair valua^ 
 tion, it was held that the contributing stockholders were without equity, 
 and were estopped by their acquiescence to prevent the transfer. 
 
 lb.— Extent of Rule. — Campbell v. Pennsylvania L. Ins. Co., 1836, 2 
 Whart. 53. The rule that a purchase of the trust estate by the trustee may 
 
TKUSTS AND TKUSTBES. 881 
 
 'be avoided by the cestui que trust, extends to judicial officers and all persons 
 who may in any way have a concern In the disposition and sale of the prop- 
 erty of others. 
 
 lb.— Full Knowledge.— Migget v. Dittie, 1884, 41 Leg. Int. 124. A pur- 
 chase of trust property by the trustee, even at private sale, will be sustained 
 when all the parties in interest with full knowledge of the facts consent. 
 
 lb.— Own Sale.— Webb v. Dietrich, 1844, 7 W. & S. 401. The rule that 
 a trustee shall not purchase at his own sale, is one of public policy and will 
 be enforced whether there be fraud or not. 
 
 lb.— Morrell v. Trotter, C. P. 1883, 12 "W. N. C. 143, S. C. 14 Lan. Ear. 91, 
 39 Leg. Int. 256, 15 Phila. 201. A trustee who buys at his own sale is pro- 
 tected after six years although the cestui que trust did not discover the fraud 
 immediately. 
 
 lb.— Partner of Partnership Property by Agent.— Westcott v. Ty- 
 son, 1861, 2 Wr. 389. The rule that a trustee cannot buy trust property for 
 himself, does not apply to a case where the creditors of an insolvent firm 
 appointed one of the partners agent to wind it up, and he in connection 
 with another bought in claims against the partnership. 
 
 lb. — Position of. — Shuman's Ap., 1856, 13 C. 64. Any trustee (execu- 
 tor) who directly or indirectly purchases at his own sale, holds the land 
 for the same trusts as before. 
 
 lb.— Statute of Limitations.— Peters v. Kerper, C. P. 1878, 5 W. N. 
 C. 523, S. C. 35 Leg. Int 180, 12 Phila. 410. A trustee who purchases 
 property at his own sale is a trustee for the parties interested, and is not 
 protected by the statute until five years after the right of equity accrues to 
 those whom he has defrauded. 
 
 lb.— lb.— Morrell v. Trotter, 1882, 39 Leg. Int. 256. In a case where a 
 trustee purchases stock of his cestui que trust at a sale, of which the cedui 
 que trust had notice from the party who held the stock as collateral security, 
 the statute of limitations begins to run from the date of the sale, and the 
 purchase will not be invalidated after a lapse of eight years. 
 
 lb. — When Allowed. — Chorpenning's Ap., 1858, 8 C. 315. A trustee' 
 without funds in his hands may purchase the property of his cestui que trust 
 at an adverse judicial sale which it was not in his power to avert. 
 
 Sale by— Policy of Insurance.— Fox's Est., C. P. 1875, 1 W. N. C. 
 412. The court, upon application, allowed a trustee to sell a policy of life 
 insurance, the cestui que trust being unable to pay the premium, the policy 
 being about to lapse. 
 
 lb.— Power of.— Moss v. Cleary, D. C. 1864, 21 Leg. Int. 37, S. C. 5 
 Phila. 364. Where a trustee sells without having power so to do, he can- 
 not upon a subsequent sale with power charge the first vendee with the dif- 
 ference in price between the two sales. 
 
 lb. — lb. — Executor — Interest. — Kobeno v. Marlatt, 1889, 46 Leg. Int. 
 40. The power of sale given an executor is intended to relieve the pur- 
 chaser from all apprehension, and thereby secure the best price. The titlo 
 of the purchaser under such circumstances is not invalidated by the fact of 
 children of the testator being born alter the making of the will. 
 
 lb.— Mortgagor Trustee.— Wood r. Allabach, C. P. Luzerne, 1882, 1 
 Kulp, 391, S. C. 10 Luz. L. Reg. 180. The fVict that a mortgagor is a trus- 
 tee does not aflfect the right of the mortgagee to sell out the interest of the 
 former. 
 
 lb.— To Relations.— Lamberton v. Smith, 1825, 13 S. & E. 309. Sales 
 by trustees to their near relatives are always suspicious. 
 
 School Board— Management.— Commonwealth v. Jarrett, 1822, 7 S. 
 & R. 460. A minority of the persons in whom school property is vested in 
 trust for the community, cannot by associating and procuring a charter of 
 
582 TRUSTS AND TRUSTEES. 
 
 incorporation acquire the right to the management of the school in opposi- 
 tion to the majority of those interested. 
 
 Security.— Green's Est., 1869, 3 Brews. 427, S. C. 26 Leg. Int. 322, 7 
 Phila.,502. Where a trustee uses trust fands for his private purposes, secu- 
 rity is demandable by the cestui que trust. 
 
 lb. — Wilson's Est., 1845, 2 Barr, 325. One made executor and trustee 
 by the same will cannot be made to give security in both capacities. ThB 
 offices are inseparable. 
 
 lb.— Act of June 14, 1836.— Eigler «. Cloud, 1850, 2 H. 361. A sno- 
 cesser appointed by court to a trustee appointed by the grantor, is not within 
 the act June 14, 1836, requiring security. 
 
 lb. — ^New Trustee. — Conrad (ex parte), 1841, 2 Ash. 527. Where a trust 
 estate consists of personalty, a trustee appointed by the court in place of 
 one resigned or dead, may be required to give security. 
 
 lb.— Sale— Act of April 18, 1853.— Thorn's Ap., 1860, 11 C. 47. A sale 
 by a trustee under Act April 18, 1853, is not void because security was not 
 given before the sale was made, it having been given before confirmation. 
 
 Settlement— Full Knowledge Necessary. — Diller v. Bmbaker, 1866, 2 
 S. 498. A trustee is bound to put his cestui que trust in possession of the fall 
 and true state of his affairs before any settlement will bind him. 
 
 Successor to Administrator d. b. n., c. t. a. — Eoss v. Barclay, 1851, 6 
 H. 179. An administrator d. b. n., c. t. a. does not succeed to the office of 
 trustee vested in the executors unless the trust be for payment of debts. 
 
 Taxation of Foreign Trustee.— liu vis v. Chester, 1869, 10 S. 325. A 
 trustee amenable to the courts of a sister state cannot be taxed as such in 
 this state, but property which he holds here can be taxed here. 
 
 Title, Nature of —Murphy v. Solons, et ux., 1888, 45 Leg. Int. 487. The 
 title of trustees in an active subsisting trust, is, complete and irrevocable by 
 the settler, even though the latter received an interest during life to him- 
 self, or the right to direct the distribution of the residue. 
 
 Transfer to Husband— Annuity.— Col well's Est., 1887, 44 Leg. Int. 
 '229. Where a married woman transferred to her husband an interest which 
 had accrued to her out of her brother's estate, for the purpose of the better 
 management of the same, and the husband agreed to pay a fixed annuity to 
 her, upon his death his estate will be liable for the annuity either upon the 
 theory of trust or purchase. 
 
 Unincorporated Association— Property Held for— Set-Off.— Fourth 
 
 Universalist Parish v. Wensley, C. P. 1878, 5 W. N. C. 273. Equity will 
 compel one who has held property for a society until it should become in- 
 corporated to convey the same to it although the society before incorpora- 
 tion became largely indebted for materials, for which the trustee being a 
 member of the society may be responsible. 
 
 J. Removal of. 
 
 Act of April 9, 1868.— Stevenson's Est., C. P. 1871, 28 Leg. Int. 5, S. C. 
 R Phila. 3(19. Act April 9, 1868, does not require the court to remove a 
 Irustee without cause on the application of the cestui que tnust. 
 
 lb.— Keen's Est., 1889, 46 Leg. Int. 179. Under Act of April 9, 1869, a 
 trustee will not be removed upon a petition of the cestui que trust unless 
 some sufficient cause for removal is shown. 
 
 Charity— Diversion of Funds.— Schnoor's Ap., 1870, 17 S. 138. Trus- 
 tees for a charity cannot divert the property from the uses intended, and if 
 they attempt it equity will appoint others to act in their places. 
 
 Foreign Trustee.— Bloomer's Ap., 1876, 2 N. 45. S. C. 24 Pitts. L. j; 
 
TRUSTS AND TRUSTEES. 583 
 
 115. It is proper to remove a trustee who resides without the common- 
 wealth, the trust estate being within it, except where by the terms of the 
 trust the trustee {nomination) is to have personal supervision of the affairs 
 of the estate. 
 
 Incompetency. —Drum's Estate, O. C. 1882, 39 Leg. Int. 6, S. C. 15 
 Phila. 510. Incompetency is a good ground for removal of a trustee. 
 
 Insolvency. —Edward's Est., O. C. 1878, 5 W. N. C. 431. The court 
 will vacate the appointment of an executor or trustee who is insolvent. 
 
 lb.— Silberman'a Est., O. C. 1884, 14 W. N. C. 259, S. C. 41 Leg. Int. 6. 
 A trustee who is insolvent, largely indebted to the estate and unfriendly to 
 the cestui que trust will be dismissed. 
 
 Protection.— Johnson's Ap., 1848, 9 Barr, 416. A trustee who has been 
 <lismissed on his own petition having done all that the court required of 
 him in the matter, is protected against further proceedings, even if the court 
 has acted erroneously. 
 
 Retaining Part of Income.— Ponnal's Est., 1871, C. P. Lancaster, 3 
 Lan. Bar, No. 52. A trustee who retains part of the income to apply on the 
 interest of a note held by him against his cestui que trust vfill not be dis- 
 charged therefor. 
 
 When Caused.— Howell's Est., O. C. 1883, 40 Leg. Int. 141. A trustee 
 Tvho is on unfriendly terms with his cestui que trust and who refuses to in- 
 form the latter as to the state of the trust will be dismissed. 
 
 lb.— Hilles' Est., O. C. 1880, 9 W. N. C. 421, S. C. 38 Leg. Int. 5, 14 
 Phila. 247. A trustee may be removed where his continuance in office will 
 be a disadvantage or inconvenience to the cestui que trust, although it would 
 not jeopardize the trust. 
 
 lb.— Syfert's Est., C. P. 1873, 5 Leg. Gaz. 38, S. C. 30 Leg. Int. 36, 9 Phila. 
 .320. A disagreement between trustees which do3s not endanger the estate 
 is not a sufficient ground for a dismissal. 
 
 lb. — Parson's Est., 1876, 1 N. 465. A refusal by an executrix to execute 
 a discretionary power, is no ground for her dismissal, though it be proved 
 that a fair price was offered, that she in the meantime was entitled to the in- 
 come, and that one reason she would not sell was that a bonus was not given 
 her personally. 
 
 K. Who is a. 
 
 Account — Pinal Filed. — App. v. Driesbach, 1830, 2 E. 287. A trustee 
 ,who has filed his final account is not a trustee with regard to the balance 
 remaining in his hands, and the statute of limitations protects him. 
 
 Agreement— Sheriff S Sale.— Smith v. Smith, 1856, 3 C. 180. Mere vio- 
 lation of a parol agreement will not make a purchaser at sheriff's sale a 
 trustee. 
 
 Agent— Mortgage— Equity of Redemption.— Frazerj). Hallowell, 1805, 
 I Bin. 126. One, who as agent for another has taken a mortgage in his own 
 name and purchased the equity of redemption, is really a trustee for his 
 principal and has a lien on the land for money advanced to him. 
 
 Attorney and Client. — Pgh. Nat. Bank of Commerces;. McMurray, 1882, 
 39 Leg. Int. 12. Money placed in a lawyer's hands to invest in a satisfactory 
 mortgage with an agreement that he shall in the meantime pay interest 
 thereon is not trust money, nor can the lawyer be held as a trustee. 
 
 lb.— Purcliasing.— Barrett V. Bamber, 1876, 31 S. 247. An attorney for 
 a trustee of a ground rent bought in the property at a sheriff's sale for less 
 than the amount of the judgment for arrears of rent. Held that he bought 
 as trustee for the trust estate, and that any claiming under him had con- 
 structive notice from the record that he was trustee. 
 
'584 TRUSTS AND TEUSTBES. 
 
 Check Drawn to Trustee. — Waynesburg College's Ap., 1 Amer. 130. 
 The making of a check to cue person as the trustee for another, and the de- 
 livery of the check to still another person for safe keeping, the check being 
 payable six months after death of drawer, is not sufficient to establish a 
 ,trust in equity. 
 
 Contract To Sell Land— Partial Title.— Tyson v. Passmore, 1845, 2 
 Barr, 122. One contracting to sell a tract of land, but being able to make 
 title to but a part of it, will be held a trustee as to the rest upon acquiring 
 title to it. 
 
 Contract by Decedent— Third Party.— Magee v. Magee, 1845, 1 Barr, 
 405. On the deatn of one having an agreement to purchase land, the vendor 
 stands as a trustee for the heirs, and any one paying the balance of the pur- 
 chase money aild taking a conveyance of this property in his name, takes it 
 as a trustee with respect to the whole title and hot merely as to the propor- 
 tion paid for by the decedent. 
 
 Executor. — Abbott «. Eeeves, 1865, 13 Wr. 494. An executor in Penn- 
 sylvania is a trustee. 
 
 lb. — Morrow v. Brenizer, 1828; 2 R. 185. It seems that an executor is a 
 trustee within the act giving the courts power to compel accounts, and to 
 remove for negligence. 
 
 lb.— Removing.- Strobel's Est., O. C. 1876, 2 W. N. C. 409, S. 0. 33 
 Leg. Int. 101, 11 Phila. 122. Where a foreign executor who, by the terms 
 of the will is also trustee, renounces his executorship as to this state, he can 
 no longer be considered trustee by the courts of this state. 
 
 lb. — Transfer of Stock. — Bayard «. Farmers' and Mechanics' Bank, 
 1866, 2 S. 232. An executor is a trustee for collection and distribu- 
 tion, likewise an assignee for creditors; but the duty of au ordinary trustee 
 is custody and management. Therefore, a trustee of the former class has 
 power to transfer stock, but before a trustee of the latter kind should be al- 
 lowed to transfer stock the agent should require an exhibition ot his au- 
 thority. 
 
 lb. — And Trustee.— Johnson's Ap., 1848, 9 Barr. 416. Where A. 
 is appointed "executor and trustee " he is not a trustee by virtue of hi.s 
 office of executor. 
 
 Land Warrant. —Hoffman v. Bell, 1869, 11 S. 444. A warrant and 
 survey returned and accepted, ou which the purchase money has been paid 
 conveys a perfect title against all the world but the commonwealth, which 
 retains the legal title only as security for the patenting fees. If one, not 
 the true owner, then obtains the patent, he also is a mere trustee for the 
 true owner. 
 
 lb.— Duer v. Boyd, 1814, 1 S. & E.,203. The officers of the common- 
 wealth are to give the patent to him who is entitled to it; and if they give 
 it to any other person that person is no more than a trustee for the person 
 who has the right. 
 
 Life Tenant.— Parker's Ap., 1869, 11 S. 478. The 44th section of act 
 Feb. 24, 1834, places legatee for life on the footing of trustees for those in 
 remainder. 
 
 Parol Agreement. — Whetham v. Clyde, C. P. 1870, 1 Lan. Bar, No. 46, 
 S. C. 1 Camp. 53, 2 Leg. Gaz. 109. A breach of a parol agreement touching 
 land will not convert one into a trustee malefaeio. 
 
 Partner— Notice of Dissolution. —Plum ly ». Plumly, 1888, 6 C. C. 
 Eep. 72. Where a partner's interest in a firm is " one-third of the profits," 
 and another ]iartner who owns the real estate and machinery ga\e notice 
 that the partnership would be discontinued after a certain date^ it is enor 
 to regard such partner as a trustee for the co-partner and to charge him with 
 profits occuring after the date named'. A share in the profits does not of 
 necessity mean a share in all the partnership assets and property 
 
TRUSTS AKD TRTJSTEES. 585- 
 
 . lb.— Purchase.— Lacy v. Hall, i860, 1 Wr. 360. A partner, the finan- 
 cial manager of a firm, bought in his own name the reversion to lands, a 
 present estate being in the partnership. The lands were improved with 
 partnership funds. On his bringing ejectment, held he was a trustee for his 
 dO-partner as to a moiety. 
 
 lb.— Renewal of Lease.— Johnson's Ap., 1887, 19 W. N. C. 98. If one 
 partner obtains in his own name, either during the partnership or before its 
 assets have been sold, a renewal of the lease of the partnership property, 
 such lease is for the benefit of the co-partnership. 
 
 lb. — lb. — Seibert v. Seibert, 1868, 1 Brews. 531. A partner who renews 
 a lease in his own name is a trustee for his co-partner. 
 
 lb.— Agreement— Special Partner— Purchase at Sheriffs Sale.— 
 Blaylock's Ap., 1873, 23 S. 146. An agreement was made between partners 
 ■Whereby a special partner was to buy in firm property about to be sold by 
 the sherifif, and, after discharging certain liens, hold it in trust for the other 
 partners. The special partner had an agent buy it in for him, and was 
 about to sell it when this bill was filed, asliing that the sale be enjoined. 
 Held that the only equity that complainants had was to enforce their agree- 
 ment by having the legal title vested in the special partner as trustee. 
 
 Partnership. — Plumy v. Plumy, 1888, 45 Leg. Int. 256. A father gave 
 his son one-fourth interest in the profits of his business. Upon dissolution 
 son claimed a like share of the real estate and profits accruing since dissolu- 
 tion, by reason of the father carrying on the business. Held relation of 
 trustee to cestui que trust did not exist and father not chargeable with profits 
 nor was son entitled to a share in the real estate. 
 
 Policy of Insurance. — Waltz v. Mutual Aid Society, 1888, 5 P. C. C. 
 208. If a policy of insurance is taken out by A. for the express benefit of 
 B., A. has created himself trustee for B. and cannot, without B.'s consent, 
 put C. in B.'s place. 
 
 Fd. — Sale of Collateral Securities. — Register v. Sellers, 1887, 44 Leg. 
 Int. 502. Where policies of insurance, pledged as collateral security for a 
 debt, were sold after default in payment and due notice of the sale and were 
 bought in by the pledgee, the latter still holds them in trust for the pledgor. 
 
 Principal and Agent. — Pittsburgh Bank V. McMurray, 1881, 2 Out. 538, 
 S. C. 29 Pitts. L. J. 104, 11 W. N. C. 49. An agent who pays interest for 
 money deposited in his hands by his principal until he finds a good invest- 
 ment, is not a trustee in the technical sense. 
 
 lb.— Squire's Ap., 1871, 20 S. 266, S. C. 19 Pitts L. J. 145, rev'g 1 Camp. 
 510, 3 Leg. Gaz. 253. A. agreed, by parol, to purchase land. She after- 
 Wards employed B., her agent, to conclude the purchase and advanced what- 
 ever was necessary and hold the title as her trustee until reimbursed. B. 
 took an absolute conveyance of the trust to him. Held that he was a 
 trustee ex malefado. 
 
 Promise to Purchase.— Schumachers. Wurtz, C. p. Schuylkill, 1879, 1 
 Sch. L. K. 166. A promise to purchase at sheriff's sale for the benefit of 
 the defendant, in the execution will not, without more, make the purchaser 
 a trustee. 
 
 Purchase at Sheriffs Sale.-Fox v. Heffner, 1841, 1 W. & S. 372. A 
 purchaser at a sheriff's sale who verbally agrees with the defendant to hold 
 it for him does not, in the absence of fraud, make himself a trustee. 
 
 lb.— Leshey v. Gardner, 1842, 3 W. & S. 314. A purchaser of land at 
 sheriff's sale cannot be turned into a trustee by proof of oral declarations 
 made at the time of the sale. 
 
 lb.— From Cestui que Trust.— Smith v. Spencer, 1876, 2 W. N. C. 515. 
 Where a trustee who has obtained from his cestui que trust a verbal convey- 
 ance of his interest, afterwards obtains deeds thereior without the fullest 
 disclosures, he remains a trustee. 
 
586 TEUSTS AND TEUSTEKS. 
 
 SpendthriftTrust— Preferred Debt. —Philadelphia Trust Co. v. Guilloa, 
 1882, 4 Out. 254, S. C. 12 W. if. C. 41. The beneficiary was one of the trustees 
 in a spendthrift s&n trust, and under the instrument might himself use the 
 property. He rented it to a firm, of which he was a member, and on the 
 failure of the firm the other trustee distrained for rent. Held that the son 
 had acted as a trustee and that the rent could, therefore, be collected as a 
 preferred debt. 
 
 Tenants in Common. — Robert's Ap., 1880, 11 N. 407. A tenant in com- 
 mon who receives the money due to himself and his co-tenant and mingles 
 it with his own, is chargeable with interest on interest. He is a trustee, 
 not a mere debtor. 
 
 Transfer of Stock. — Bayard v. Farmers' and Mechanics' Bank, 1866. 2 
 S. 232. An executor is a trustee for collection and distribution, likewise an 
 assignee for creditors ; but the duty of an ordinary trustee is custody and 
 management. Therefore a trustee of the former classes has power to trans- 
 fer stock but before a trustee of the latter kind should be allowed to trans- 
 fer stock, the agent should require an exhibition of his authority. 
 
 Vendor and Vendee.— Lee v. Tiernan, 1798, Add. 348. One selling 
 land and receiving the price is a trustee for the buyer until the title be con- 
 veyed. The trust is not destroyed by a subsequent sale and conveyance to a 
 third person unless it be hona fide. 
 
 lb.— Pipher v. Lodge, 1818, 4 S. & R. 310. A vendor of land before con- 
 veyance of the legal title is a trustee for the vendee and the statute of lim- 
 itations does not run; but if the vendor convey the land, and afterwards 
 lease it, and his lessee enters, the possession is adverse and twenty-one years 
 suffice to give title. 
 
 lb. — Title. — Taylor v. Preston, 1875, 29 S. 436. A vendee, under articles, 
 who had conveyed his interest to another afterwards received a conveyance 
 of the legal title. Held his title was that of a trustee merely, and that 
 it was not hound by judgment. 
 
 lb. — Magee v. Magee, 1845, 1 Barr, 405. On the death of one having an 
 agreement to purchase land, the vendor stands as trustee for the heirs, and 
 any one paying the balance of the purchase money and taking a conveyance 
 of the property in his name takes it as a trustee with respect to the whole 
 title and not merely as to the proportion paid ibr by the decedent. 
 
 lb. — Tyson i\ Passmore, 1845, 2 Barr, 122. One contracting to sell a tract 
 of land but being able to make title to but part of it will be held a trustee 
 as to the rest upon acquiring title to it. 
 
 Jb. — Balbec v. Donaldson, 1854, 2 Gr. 459. The grantor of a recorded 
 deed, absolute on its face, will not be turned into a trustee for the grantor 
 by proof that the grantee paid no money, was unable to pay money, and 
 that the grantor remained in possession for three years and kept possession 
 of the deed. 
 
 li. Who may be. 
 
 City as. — Girard's Ap., 1880, 4 Penny. 347. A testator who consti- 
 tutes the city of Philadelphia his trustee, does so subject to all the changes 
 which the sovereign power may make in its character and organization. 
 
 Corporation.— Columbia Bridge Co. v. Kline, 1825, Bright. 320, S. C. 4 
 Clark 39, 6 Pitts. L. J. 615. A corporation may be a trustee. [See 2 Howard 
 129.] 
 
 Insolvent. — Shryock V. Waggoner, 1857, 4 C. 430. An insolvent may be 
 a trustee. 
 
 Interested Party. — Gaul's Est., O. C. 1877, 34 Leg. Int. 159, S. C. 12 
 Phila. 13. One allied to SDme of the parties in a matter where there is not^ 
 harmony will not be appointed trustee. 
 
TRUSTS AND TKDSTEBS. 587 
 
 Lunatic— Eyrich v. Hetrick, 1850, 1 H. 488. A lunatic may be trustee. 
 
 Married Woman. — McShane v. Stewart, C. p. 1877, 4 W. N. C. 335. 
 Whefe a wife holds securities the consideration for which moved from her 
 husband she may be declared a trustee and ordered to account. 
 
 lb.— Still V. Ruby, 1860, 11 C. 373. A feme covert may be a trustee ; her 
 legal disability however, extends to the trust estate and her husband must 
 join with her. 
 
 Mlinicipal Corporation. — Philadelphia v. Fox, 1870, 14 S. 169. A 
 municipal corporation may be a trustee for purposes germane to its objects, 
 e. g. a charity which is a public trust. 
 
 III. Cestui Que Trust. 
 
 Account, Party Entitled to.— McCabe's Ap., 1853, lO H. 427. One hav- 
 ing no interest in a trust can neither call for an account nor except to one 
 when furnished. 
 
 Attachment— Cestui Que Trust as Defendant.— Kinney ». Hemphill, 
 C. p. 1876, 2 W. N. C. 323. An attachment will lie against funds in the 
 hands of a trustee to which defendant is entitled as cestui que trust. 
 
 Breach of Trust— Title.— Woelper's Ap., 1845, 2 Barr, 71. A title de- 
 pending upon a breach of trust cannot be attached by a third person, the 
 cestui que trust not complaining. 
 
 Breach of Trust — Third Party — Account.— Porter v. Hoppin, C. P. 
 1875, 32 Leg. Int. 66, S. C. 10 Phila. 396. A trustee who has been guilty 
 of a breach of trust and has assigned property to a third person as protection 
 for the cestui que trust, cannot require an account from this third person with- 
 out joining the cestui que trust, or restoring the trust assets. 
 
 Contract by Trustee— Eenewal.—Hall v. Vanness, 1865, 13 Wr. 457. 
 A widow who surrendered a contract for the purchase of land entered into 
 by her husband and took a new one in her own name is a trustee for the 
 heirs of the husband and with knowledge of these facts one purchasing from 
 her takes subject to the trust. 
 
 Conveyance — Enforcing. — Dennison v. Goehring, 1847, 7 Barr. 175 (180 
 n.). When a conveyance in trust is made the cestui que trust has a right to 
 enforce it against the trustee although no consideration passed from him. 
 In this case the trustee was the father and had himself paid the purchase 
 money. 
 
 ib.— Right to Care for.— Little v. Wilcox, 1888, 4 Crura. 439. When a 
 father executed a deed of trust whereby he declared himself trustee for his 
 son, the latter to enjoy the estate for life on condition that he provide for 
 the support of the father. Held that a court of equity would not have de- 
 creed a conveyance to the son, since a trust is never executed by the statute 
 unless the entire beneficial is in the cestui que trust. 
 
 Ib.—Ib.— Estate of Samuel Moss, O. C. 1882,39 Leg. Int. 42. The right of a 
 cestui que trust to demand from the trustees a conveyance of the legal estate 
 depends upon, and is measured by the extent of his beneficial interests. 
 
 Ejectment Against Dry Trustee.— Caldwell v. Lowden, 1868, 3 Brews. 
 63. A eestei?ije<j-«s* may bring ejectment against his trustee in a dry trust. 
 The trustee by disclaiming may save costs, but if he defends he must pay 
 them. 
 
 Election.- Mulligan's Ap., 1876, 1 N. 389, S. C. 24 Pitts. L. J. 130. A 
 cestui que trust cannot elect to take stocks under the claim that they were 
 bought with his money without proving it satisfactorily. 
 
 Ib.— Seguin's Ap., 1883, 7 Out. 1 39. Where a guardiau has used his ward's 
 money in private enterprises the ward may elect to take either interest or 
 
S88 TRUSTS AND TBUSTEES. 
 
 profits actually received, and in either case the guardian will be denied coin- 
 pensation. 
 
 Equitable Fee Simpje.— Freyvogle v. Hughes, 1867, 6 S. 228. A trast 
 deed transferred to the cestui que trust the whole beneficial interest in the 
 fund but without any limiting words. Seld that the cestui que trust took an 
 equity in fee simple. 
 
 Estoppel— Feme Covert— Exemption— Tenant of Purchaser.— Fill- 
 Aan V. Divers, 1858, 7 C. 429. A feme covert cestui que trust is not estopped 
 from setting up the trust by having claimed $300 exemption at the sheriff's 
 sale of the trust estate (her husband being trustee), and by afterwards be- 
 coming the tenant of the purchaser. This, however, was strong evidence 
 against her. 
 
 Husband and Wife— Desertion— Settlement. — Titus' Est., 1845, 3 
 Clark, 468, S. C. 5 Pa. L. J. 522. Where a wife who has been deserted by 
 her husband becomes entitled to a distributive share of her father's estate, 
 the orphans' court will order that the share be paid to trustees for her. 
 
 lb.— Trust Deed— Estoppel.— Bingham's Ap., 1889, 8 Crum. 262, see 
 also Bingham v. Hewner, 23 W. N. C. 84. A woman, just before her mar- 
 riage, made a deed of trust giving up all right on her part to alien the 
 property, except by appointment in her will. The trustee accepted, but 
 after her marriage a decree was entered on petition of the trustee with a 
 concurring answer signed by husband and wife, under which the property 
 was reconveyed to the wife freed of all trusts. Forty years later, the trus- 
 tee and husband having just died, the wife appealed from the old decree. 
 Held that she was estopped from asserting the invalidity of the decree. 
 
 lb.— Money in Wife's Hands — Creditors.— Kepler v. Davis, 1875, 30 S. 
 153. A husband put some trust money into his wife's hands and she made 
 large profits. Creditors of the husband levied on the property thus acquired. 
 Held that the profits belonged to the trust. 
 
 Income— Minor.— Howell's Est., O. C. 1878, 5 W. N. C. 430. Where » 
 trust is created for the maintenance of a minor, and at majority to pay her 
 the whole income, she is entitled to the whole income during minority. 
 
 lb.— Pauper Family— Act of June 13, 1836.— Decker ii. Poor Directors, 
 1888, 5 Crum. 272. Where a trust has been created for a son and the latter 
 deserts his family it is unnecessary to determine the son's intere-st in the 
 trust fund since he is compelled to share the income with his helpless family. 
 
 Increase of Fund.— De. Silver's Est., 1888, 6 C. C. Rep. 6. Where a 
 gum is given to trustees to invest and pay over the income to testator's 
 widow and two sons until the latter become of age. When each is to re- 
 ceive the whole of it absolutely, any increase in the value of the sum in- 
 Vested goes to the cestui que trustent. 
 
 Investment. — Pownall's Est., C. P. Lancaster, 1871, 2 Lan. Bar. No. 47. 
 The court will not order an investment of trust funds in real estate situated 
 in another State, even at the instance of the cestui que trust. 
 
 Legal Estate, Conveyence of— Decree.— Lavery v. Lavery, N. P. 1871, 
 1 Leg. Op. 169. A decree will be made ordering a trustee to convey the 
 legal title to the cestui que trust where the trust is merely nominal and be- 
 clouds the title. 
 
 lb.— lb.— Demand on Trustee— Writ in Ejectment. — Caldwell v. 
 Lowden, 1869, 16 Pitts. L. J. pt. II, p. 26. Where equity would compel a 
 trustee to convey the legal title a writ in ejectment is sufficient demand. 
 
 Lunatic— Committee— Corpus and Income of— Earp's Est., 1851, 2 
 Pars. 178. Where a cestui que trust has lieen declared a lunatic, and a com- 
 Inittee appointed, the trustee is still entitled to hold the corpus of the es- 
 tate. The committee is entitled only to the income. 
 
 Mortgage in Trust— Power of Sale— Power to Compel Exercise 
 of.— Bradley v. Chester Valley E. E. Co, 1860 12 C. 141, A power of sale 
 
TBUSTS AND TEUSTEES. 589 
 
 in a mortgage is valid, and ilthe mortgage is given to one in trust for bond- 
 holders, these latter stand in the relation of cestui que trustent, and may in 
 equity ask that the trustee be compelled to execute the power. 
 
 lb.— lb.— Execution.— Youngman v. Elmira, etc., E. R., 1870, 15 S. 278. 
 If a mortgage create a trust and provide that the power of sale is to be exe- 
 cuted, in certain contingencies, it is for equity to decide whether the contin- 
 gencies have arisen, and if so, the 'court, at the instance of a cestui que trust, 
 will control, restrain and direct the trustee. 
 
 Possession— Adverse.— Scott v. Gallagher, 1826, 14 S. & E. 333. The 
 possession of the cestui que trust becomes adverse whenever the legal estate 
 is transferred in violation of the trust. 
 
 lb.— Of Fund— Act of May 17, 1871.— Oakford's Est., 3887, 44 Leg. 
 Int. 206. "Where a testator bequeathed a portion of his estate in trust to a 
 married woman, the trustees to pay the income thereof to her tor life, and 
 at her decease to her children. Held that under the act of May 17, 1871, 
 the cestui que trust upon giving security was entitled to the possession of the 
 fund. 
 
 Principal of Fund. — Erisman v. Directors of the Poor, 1864, 11 Wr. 509. 
 A devise creating a trust contained a proviso that in case of urgent neces- 
 sity the principal could be. used for the cestui que trust. Held such a case 
 arose upon the cestui que trust becoming insane and being sent to an asylum. 
 
 Profits.- Sharpe's Est., O. C. 1857, 14 Leg. Int. 140. S. C. 2 Phila. 280. 
 A cestui que trust is not always entitled to claim proiits made by his trustee 
 who has used trust funds in his own business, bnt in such case the latter is 
 not entitled to commissions. 
 
 Purchase by Trustee— Assent.— Burting's Est., 1888, 45 Leg. Int. 266. 
 Cestui que trustent cannot be compelled by the court to assent to a purchase 
 by their trustee, the latter not having made an application for leave to bid. 
 
 Bight to Sue. — Chamhersburg Ins. Co. v. Smith, 1849, IJ. 120. Aceslui 
 que trust may sue in the name of the trustee without the latter's consent. 
 
 Sale— When Decreed.— Sharp's Pet., C. P. 1866, 23 Leg. Int. 412, S. a 
 6 Phila. 153. Act April 18, 1853, empowers the court of common pleas, in 
 its discretion, to decree a sale of trust property, bat one will not be decreed 
 to the cestui que trust except on clear proof that it will be a benefit to his 
 estate. 
 
 Set-off— Notice.— Mackey V. Coates, 1872, 20 S. 350. A trustee was sued 
 by a stranger for the trust fund, the former defeated recovery on the ground 
 of set-off, which he afterwards admitted had been paid. Held that the ces- 
 tui que trust was not concluded by the suit, because, 1, he had not been noti- 
 fied of it, and, 2, the trustee had not acted hona fide. 
 
 Statute of Limitations.— Wallace v. Duffield, 1816, 2 S. & R. 521. 
 Trusts are not strictly within the act of limitations, but equity has wisely 
 adopted the principle of the act. Nevertheless, in equity, as well as at law, 
 it may be shown from circumstances that the possession of the defendant 
 ought not to be considered as adverse. Under the circumstances of the case 
 thirty-one years did not bar the right of the cestui que trust. 
 
 Trust Property— Power to Follow.— Garrison's Ap., 1858, 2Gt. 216. 
 Where an assignee for creditors recovers from a third person property of the 
 assignor held on valid trusts, the trusts are not thereby defeated. 
 
 lb.— Thompson's Ap., 1853, 10 H. 16. Trust funds can only be followed 
 as long as their identity can be traced. When mingled in the business of 
 the trustee who afterwards assigns for creditors, the cestui que trust is enti- 
 tled to no preference. 
 
 lb.— Thomson v. Dougherty, N. P. 1825, 11 S. & R. 448. An assignment 
 for creditors does not affect a trust held by the assignor. 
 
 Vested Legacy.— Quigg's Est., 1887, 45 Leg. Int. 14. Where a testator 
 bequeathed $5,000 per annum to trustees to apply the same for the sole 
 
'590 TRUSTS AND TEUSTBES. 
 
 benefit of a grandson until the latter should obtain, the age of twenty-one 
 ■years, and in the event of his not arriving at that age the principal of the 
 sum so bequeathed to be included in testator's residuary estate. Held that 
 the legatee was entitled to the principal of the sum absolutely upon attain- 
 ing the age of tweuty-one years. 
 
 Volunteer— Taxes.— Sadler's Ap., 1878, 6 N. 154, S. C. 26 Pitts. L. J. 30. 
 A volunteer takes an estate subject to all trusts which are attached to it,, 
 though the fund has gone through many changes. 
 
 Waiver of Trust.— Henderson's Est., 1882, 39 Leg. Int. 450. Where 
 cestui que trwstent, entitled to the entire beneficial interest in an estate, were 
 mi Juris at a time when the proceeds of a mortgage passed into the hands 
 of the trustees, but the time of distribution limited by the testator had not 
 arrived, they may waive the trust and receive such proceeds. 
 
 IV. Practice and Pleading* 
 
 A. In Geneeal. 
 
 B. Actions and Defences. 
 
 C. Evidence. 
 
 A. In General. 
 
 Act'Of February 24, 1834— Legatee.— Chambers' Est., 1888, 45 Leg. 
 Int. 487. Where the residue of real and personal estate is given to one, the 
 eflect is to charge both with the payment of legacies ; but the question how 
 far legacies given by the will of the cestui que trust, operating under the act 
 of June 4, 1879, as an execution of the power conferred by the will of the 
 original testator, are so charged, can only be determined in a proceeding 
 by a legatee seeking to enforce payment under the act of February 24, 1834. 
 
 Account— Jurisdiction.— Apple's Est., C. P. 1856, 13 Leg. Int. 324, S. 
 C. 2 Phila. 171. A trustee who is appointed by the common pleas may set- 
 tle his account there, although he is also administrator of the same estate 
 and has filed no account in the orphans' court. It is better, however, in 
 such a case to proceed in the latter court. 
 
 Administration — Costs of. — Butterbaugh's Ap., 1882, 39 Leg. Int. 180. 
 The interest and not the principal of a trust fund must bear the expense of 
 administering it. 
 
 Application for Advice — Practice. — In re Petition of City of Philadel- 
 phia, 1868, 2 Brews. 462. It is proper for a trustee to apply by petition for 
 advice and direction. The proper practice is to refer the petition to an ex- 
 aminer who will take testimony as to' the facts set forth in the petition. 
 
 Citation to Appear.— Miller's Est., O. C. 1881, 10 W. N. C. 81. Act 
 June 14, 1836, S. 33, provides that the common pleas shall obtain appear- 
 ance of a trustee in the same way as does the orphans' court, namely (by 
 act of March 29, 1832, S. 57), by a citation, alias citation and publication. 
 
 Costs.— McElwee v. Rourke, C. P. 1886, 43 Leg. Int. 280. Although a 
 cestui que trust may have acted obstinately and injudiciously, the rule will 
 not be relaxed which denies to the trustee the right to make a profit out of 
 the estate. However in this case the costs were partly put on cestui que 
 trust. 
 
 lb. — Ra.vbold v. Raybold, 1853, 8 H. 308. A trustee is not allowed costs 
 where he litigates for his private interests. 
 
 lb.— Audit.— Graver's Ap., 1865, 14 Wr. 189. The costs of audit will 
 not be imposed on " a good trustee." 
 
TRUSTS AND TRUSTEES. 591 
 
 rJ^~^j}^S Account.— Peterson's Est., O. C. 1881, 38 Leg. Int. 113 
 Costs of filing account of trust fund payable out of principal. 
 . P"— Proceedings Against Trustee.— Bickham v. Smith, 186T, 5 S. 333 
 A trust estate cannot be charged for services rendered in defending the trus- 
 tee against a proceeding to declare him a, lunatic. 
 
 Earmark— Insolvency.— Schneider's Est., O. C. 1875, 32 Leg. Int. 168, 
 b. C. 11 Phila. 71. Trust moneys which cannot be identified cannot be 
 treated as a preferred claim against an insolvent estate. 
 
 Equity Jurisdiction— Children.— Eessler v. Witmer, 1860, 1 Pears. 174. 
 Where a person gave to another certain property to hold as trustee for his 
 children, and after the death of the former it was needed for payment of his 
 debts, this is such a case of fraud and trust as comes within equitv iuris- 
 diction. 
 
 Execution of Trust— Demurrer.— Eush v. Lewis, 1853, 9 H. 73. A trust 
 for one for life, with remainder to her appointee, is executed by the ap- 
 pointment and death of the cestui que trust, and a bill in equity by the ap- 
 pointees against the trustees for a conveyance is demurrable on the ground 
 that such conveyance is unnecessary. 
 
 Guardian— Insolvent— Counter Security.— Minnich's Est., 1889, 6 
 Lan. L. Kev. 161. A guardian who admits that he is insolvent in answer 
 to a petition of his sureties, must give counter security under acts of 1832 
 and 1861. 
 
 Ground Rent— Redemption— Order of Court.— Spangler's Est., O. C. 
 1877, 4 W. N. C. 74. Trustees under a will have power to satisfy a redeem- 
 able ground rent, which the grantee wishes to redeem, without an order of 
 court. 
 
 Improper Exercise of Authority Against— Reversal.— Errin's Ap., 
 1876, 1 N. 188. A preliminary injunction was granted against a defend- 
 ant who was alleged to be a trustee, restraining him from parting with, 
 converting or using arej^ of his property. The Supreme Court reversed the 
 decree on the ground that it was an unreasonable exercise of equitable 
 powers, whatever the merits of the case appeared to be. 
 
 Infonnation— Quo Warranto.— Commonwealth v.. Arrison, 1826, 15 S. 
 & E. 127. The court may, in its discretion, allow an information in the 
 nature of a 5140 warranto against persons acting as trustees of an incorporated 
 church. 
 
 Notice— Recital in Deed.— Kaine v. Denniston, 1853, 10 H. 203. A 
 recital in a deed made for a nominal consideration, that it is made in pur- 
 suance and fulfilment of a trust reposed in the grantor by the grantee, is not 
 notice of a trust for any other person than the grantee himself. 
 
 Orphans' Court, Power of— Relief —Gould's Est., 1889, 46 Leg. Int. 179. 
 Although the orphans' court has all the powers of a court of equity within 
 its jurisdiction, yet where neither statute nor precedent furnished authority, 
 as where a trustee is asked to make an advancement before the cestui que 
 trust has attained the specified age, the petition must be refused. 
 
 Parties. — Tritt v. Cratzer, 1850, 1 H. 451. Where a trust has been 
 created by one in his lifetime for his heirs, those heirs, and not the admin- 
 istrators, are the proper parties to enforce it after the grantor's death. 
 
 lb.— Transfer of Stock.— Lehigh Nav. Co.'s Ap., 1879, 7 N. 499. One 
 representing himself to be the successor in a trust created in another state 
 is not entitled to have stock of the trust estate in a corporation transferred 
 to him without making the cestui que trust a party, and producing the papers 
 showing his title to the office of trustee. 
 
 Sale of Trust Property.— McCreery v. Hamlin, 1847, 7 Barr, 87. All 
 property of a fiduciary character should be sold at public sale. 
 
 Use Plaintiff— Assignment for Creditors.— Memphis E. E. v. Wilcox, 
 
•592 TRUSTS AND TEUSTEBS. 
 
 1864, 12 Wr. 161. Where one has assigned a claim in trust for creditors it 
 is not necessary that he should, in suing thereon, set out the use plaintiff an^ 
 the trust. 
 
 B. Actions and. Defence. 
 
 Act of April 22, 1856.— Webster v. Webster, 1866, 3 S. 161. Act April 
 22, 1856, S. 6, does not debar one in possession from setting up an equity. 
 
 Assumpsit. — Aycinena v. Pedes, 1843, 6 W. & S. 243. A mere stake- 
 holder is not such a trustee as cannot be sued in assumpsit until he has set- 
 tled an account. 
 
 lb.— rEoberts v. Bye, 1858, 6 C. 375. Where a trustee sells property sub- 
 ject to a secret trust to a bonaflde purchaser, he becomes immediately sub- 
 ject to an action of assumpsit for money had and received at the hands of his 
 cestui que trust. 
 
 lb.— Martzell v. Stauffer, 1832, 3 P. & W. 398. Assumpsit can be main- 
 tained on equitable principles by a cestui que trust against a trustee who is 
 wasting the trust estate, and the court can preserve the intent of the settlor 
 that the cestui que trust shall not control the fund, either by controlling the 
 execution by ordering the sheriff to pay the money into court or by a special 
 judgment. 
 
 Attachment.— Paxson v. Sanderson, D. C. 1858, 15 Leg. Int. 397, S. C. 
 3 Phila. 303. Funds deposited by a trustee with his own account are liable 
 to attachment for his own debts. 
 
 ' lb. — Park V. Matthews, 1859, 12 C. 28. The proceeds of a trust funds in 
 the hands of trustees are liable to attachment. 
 
 Ib^ — Ambler v. Bably, 1887, 3 M. C. L. E. 107. An attachment execution 
 cannot issue against a fund directed by a testator to be deposited in bank by 
 his executor, and such a sum paid his son and daughter on the first day of each 
 month as shall exhaust their respective shares by July 1st, 1888, and that at 
 no time shall any of the above devises be liable to any execution process by 
 any creditor of testator's children. 
 
 lb.— Adams' Ap., 1864, 11 Wr. 94. The commissions of an executor are 
 not liable to attachment in the hands of himself or his co-executors. 
 
 lb. — Grimm w. Sarmiento, C. P. 1886, 43 Leg. Int. 306. Where a trustee has 
 been served as garnishee he cannot be surcharged, but is only liable for the 
 moneys actually in his hands. He is alio wed counsel fees for defending 
 where the balance in his hands is unliquidated. 
 
 ^ Defence.— Hunt v. Crawford, 1823, 3 P. &W. 426. A trustee may main- 
 tain ejectment, and a wrongdoer cannot defend by setting up the title of the 
 cestui que trust. 
 
 < Dismissal.— Eeese V. Euth, 1825, 13 S. & E. 434. The courts of Penn- 
 sylvania have no power to discharge trustees, but in an action by the cestui 
 que trust for money had and received can compel them to pay over the in- 
 come. 
 
 ^ Ejectment. — Eeed v. Murray, 1849, 1 J. 334. A trustee may maintain 
 ejectment against his cestui que trust, where the latter is in possession, under 
 an agreement, to pay for the land and refuses so to do. 
 
 ' lb. — Houston V. Wickerham, 1839, 8 Watts, 519. An intruder cannot set 
 up the title of a cestui que trust in defence to ejectment by either the trustee 
 or his grantee. 
 
 ' lb — McHenry v. McCall, 1840, 10 Watts, 456. A deed of trustees con- 
 veys the legal title, and the legal title will support an ejectment against a 
 stranger to the trust and a vreongdoer. 
 
TEUSTS AND TRUSTEES. 593 
 
 rb.^-Presbyterian CongregatioD v. Johnston, 1841, 1 W. & S. 9. A eeglm 
 ■que trust who is entitled to the possession of the property, may bring eject- 
 ment against either the trustee or a stranger. 
 
 lb.— Coxe V. Blanden, 1833, 1 Watts, 533 Defendant in ejectment can- 
 not set np as a defence that plaintiff's title is the mere legal title of a trust 
 ■estate obtained by an abuse of the trust. 
 
 lb. — Kennedy v. Fury, 1783, 1 D. 72. A cestui que trust can bring eject- 
 ment in his own name. 
 
 Evidence— Grantors as Witnesses.— Miller v. Pearcc, 1843, 6 W. & s. 
 W. Where one procures firom a father a voluntary conveyance of land upon 
 his express promise to convey it to his son upon his attaining his majority, 
 it is a trust which can be proved by the grantors, the father and mother, and 
 which can be enforced by the son's bringing an action of assumpsit for the 
 purchase money received by the trustee on a sale of the land by him. 
 
 Executors.— Hade's Ap., 1886, 17 P. L. J. (N. S.) 88. Where a tes- 
 tator directed his executors to build a fence around the groulids of a church 
 and the executors partially complied, filed an account and retained a cer- 
 tain amount to complete the work, a bill in equity will lie by those in 
 charge of its grounds to compel the executors to carry out the intention of 
 the testator. 
 
 Heir Against One Receiving Gifts from Testator.— Fretz's Ap., 1842, 
 
 . 4 W. & S. 434. One securing personal property from an intestate daring his 
 
 lifetime with directions to divide it among the heirs after intestate's death, 
 
 i3annot be proceeded against in the orphans' court as a trustee by the heirs. 
 
 He is accountable as a debtor at law to the administrator. 
 
 Jurisdiction— Orphans' Court.— McLean v. Wade, 1866, 3 S. 146. The 
 jurisdiction of the orphans' court over estates of decedents is not exclusive, 
 account render will lie by a cestui que trust against the administrator of his 
 trustee. 
 
 Letters of Administration. — Lee ». Gibbons, 1826, 14 S. & E. 105. 
 Where the property of a decedent has come into the hands of one who ad- 
 mits that he holds in trust for the children, the latter may (there being no 
 debts against the estate) maintain an action against him, without first tak- 
 ing out letters of administration. 
 
 Reimbursement. — Altimus v. Elliott, 1845, 2 Barr, 62. A trustee can- 
 not reimburse himself for money expended for the cestui que trust by turn- 
 ing the latter out of possession. 
 
 Special Trust— Alimony. — Thackara v. Mintzer, 1882, 4 Out. 151, S. C. 
 12 W. N. C. 22, 14 Lan. Bar. 121. A spendthrift son trust is protected from 
 an attachment to enforce the payment of alimony. 
 
 Specific Performance.— Goodwin Co.'s Aj^, 1888, 21 w. N. C. l. A. 
 and B. formed a corporation to which A. contributed $7,000, receiving 
 therefor 1 00 shares of stock and a guarantee of ten per cent, interest thereon. 
 B. was subsequently released from the guarantee upon agreement to trans- 
 fer seventy shares of stock to A. as trustee, *with option to buy the same. 
 Until paid for the stock and all dividends thereon under six per cent, were 
 to belong to B. Held on a bill in equity to enforce specific performance of 
 the agreement that A. was entitled to the same upon proof that any of the 
 stock had been paid for according to the terms of the agreement. 
 
 lb.— Nelson v. Nelson, 1887, 2 Crum. 278. A. sold a certain portion of a 
 tract of land to B. who paid part of the purchase money and took posses- 
 sion. Two years later A. having died, his administrator sold the entire 
 tract to C. under an orphans' court order for the payment of debts. B. in- 
 stituted proceedings eighteen years later in the orphans' court with notice 
 to C, which resulted in a decree for the specific performance of the contract 
 by the administrator d. b.'n. of A. B. paid purchase money and received 
 a deed from the administrator. Seld in an action of ejectment brought two 
 
 38 — EQUITY. 
 
594 TBUSTS AND TEUSTBES. 
 
 years subsequently by C. against B. that the orphans' court sale did ndt af- 
 fect the defendant's equitable title under the contract. 
 
 Statute of Limitations.— Arthurs v. Weislsy, 1882, 3 Penny. 29. A 
 direction in a will to convey certain land to one who had furnished the 
 money for the purchase thereof as would appear by the books of the testator, 
 is such a recognition of the trust as precludes the defence of the statute of 
 limitations, although the will is subsequently revoked by marriage and 
 birth of issue. 
 
 lb. — Johnston v. Humphreys, 1826, 14 S. & E. 394. One receiving money 
 for a special purpose, who converts it to his own use, cannot set up the 
 statute of limitations as a bar to its recovery. 
 
 lb. — Zacharias v. Zacharias, 1854, 11 H. 452. Trusts enforceable at law 
 by an action for money had and received are barred by the statute of lim- 
 itations. 
 
 Trust Fund Invested in Land.— Cowan v. Billheimer, 1875, 2 W. N. C. 
 207. Where one entitled to the use of money for life invested it in land, it 
 was held that the remedy of the one entitled after her death was rather for 
 money than to enforce a trust in the land, the evidence of the facts being 
 indefinite. 
 
 Vendor and Vendee.— Beck v. Uhrich, 1850, 1 H. 536, 639. One buy- 
 ing land from a trustee and discovering the trust before paying the purchase 
 money, may set up the trust as a defence for the same, and the cestui que. 
 trust can recover from the purchaser by allowing him for the money he paid 
 in good faith before notice of the trust. 
 
 Waste. — Wyant v. Diffendafer, 1856, 2 Gr. 334. A cestui que trust who 
 has just come to age can maintain an action against his trustee for waste 
 committed more than six years before. 
 
 lb.— Woodman v. Good, 1843, 6 W. & S. 169. An equitable tenant for 
 life is liable to an action of waste at the suit of the trustee. 
 
 C. Evidence, 
 
 Agreement— Confirmation by Orphans' Court. — Bavington v. Clarke, 
 1830, 2 P. & W. 115. Evidence of an agreement between all the heirs is 
 admissible to establish a trust in the hands of one of them to whom land 
 was confirmed by the orphans' court. Such confirmation is not final. 
 
 Books of. — Hollenshead v. Allen, 1851, 5 H. 275. The books of one 
 claimed to be a trustee are admissible as evidence to establish the trust. 
 
 Burden of Proof —Staliute of Limitations. — Lingenfelter v. Eichey, 
 1869, 12 S. 123. To establish a trust for the grantor in a conveyance, abso- 
 lute on its face, the burden is upon those setting it up, and if the convey- 
 ance is older than twenty-one years they must show such acts of ownership 
 as would prevent its extinguishment by the statute of limitations. 
 
 Competency of Cestui que Trust. — Campbell v. Galbreath, 1836, 5 W. 
 423. One for whose use a suit is brought, cannot be made a competent 
 witness by anything less than a full assignment of his interest and a pay- 
 ment into court to secure costs. 
 
 lb. — Martin v. McCord, 1836, 5 Watts, 493. A former cestui que trust, 
 whose interest is all gone is a competent witness to establish the trust. 
 
 Competency of Trustee.— King v. Cloud, 1848, 7 Barr, 467. A trustee 
 who has released his right to commissions, and who has been indemnified 
 against the costs, is a competent witness in an action touching the trust 
 property although he appears as the legal plaintiff in the same. 
 
 lb. — Cox V, McKean, 1867, 6 S. 243, Where money has been placed in 
 
TRUSTS AND TEUSTEES. 595 
 
 the hands of a trustee for children by one since deceased, the trustee is a 
 competent witness under the act March 27, 1865; 
 
 How Proved— Parol Evidence.— McGinity v. McGinity, 1869, 13 S. 38. 
 Parol evidence of negotations prior and leading to a -written contract are in- 
 admissible to vary it, and can only be shown to prove a trust or fraud when 
 it is clearly established that they continued the same up to the time of ex- 
 ecuting the instrument. 
 
 Note in Conveyance.— Ivory v. Burns, 1867, 6 S. 300. A trust may 
 be established by a note just preceding the signature of the witness, setting 
 forth that the conveyance is in trust. 
 
 Parol— Act April 22, 1856.— Barnet v. Dougherty, 1859, 8 C. 371. Since 
 act April 22, 1856, a trust cannot be established by verbal evidence alone, 
 except trusts ex malefaeio and resulting trusts. Payment of the purchase 
 money after the title is acquired will not raise the latter. 
 
 Declarations of Grantor.— Braden v. Workman, 1885, 43 Leg. Int. 240. 
 Evidence of declarations by a grantee of land, made both before and after 
 the grant, that he holds for his wife is not admissible. The trust is within 
 the act of 1856. 
 
 lb. — ^Declaration of Trust.— Pierce v. McKeeham, 1846. 3 Barr, 136. 
 The declarations of one that he had bought certain land with trust funds, 
 are admissible against hi.s assignee for creditors in order to recover from 
 them bonds which have been taken by the insolvent in exchange for the 
 land. 
 
 lb.— lb.— Gibblehouse i. Strong, 1832, 3 R. 437. Declarations by the 
 legal owner of land that he is merely trustee for another may be given in 
 evidence, although at the time of the trial the party having made them is 
 within reach of the court. 
 
 lb. — lb. — Tritt V. Crotzer, 1850, 1 H. 451. A declaration of trust may 
 be proved by parol, but the evidence must be satisfying to both judge and 
 jury. 
 
 lb.— Deed Absolute on Face.— Black v. Seipt, 1879. 7 W. N. C. 565. It 
 is competent to show by parol that a deed absolute on its face is in fact a 
 conveyance to the grantor for the use of himself and his co-partner, the 
 grantor, as tenants in common. 
 
 lb.— lb.— Wetherill v. Hamilton, 1850, 3 H. 195. An absolute deed can 
 be made a trust by parol evidence as to a confidence reposed at the time the 
 deed was executed. 
 
 lb. — ^Ib. — Long V. Long, 1882, 2 Penny. 180. If a trust is expressed in a 
 deed a different one cannot be proved by parol. 
 
 lb. — Devisee. — Hoge v. Hoge, 1832, 1 Watts. 163. A trust may be es- 
 tablished in the hands of a devisee by parol evidence of the fact that the 
 devise was obtained upon representations that it should be applied for the 
 benefit of another. 
 
 lb.— Essentials of— Buckell etal. V. Earley, 1886, 5 Am. 476. The proof 
 to establish a parol trust must in all cases be clear and specific ; it cannot 
 be left to inference. 
 
 lb.— Resulting Trust.— Lurgenfelter 0. Ritchey, 1868, 8 S. 485. One 
 conveyed to his brother, without consideration, one-half of an unpatented 
 tract, the other half of which was held by the grantee. Held that parol evi- 
 dence was admissible to prove a trust (the transaction having arisen befon- 
 the act of 1856.) 
 
 lb.— lb.— Warren v. Steer, 1886. 17 W. N. C. 489. Parol evidence of onr 
 of the parties interested is admissible to rebut the presumption of a result- 
 ing trust, although the other party is dead. The act of 1869 on the subject 
 refers only to causes in action. 
 
696 TEUSTS AND TRUSTEES. 
 
 lb.— lb.— Slaymaker v. St. John, 1836, 5 Watts, 27. Our statute of frauds 
 does not prevent establishing a resulting trust ia lands by parol. 
 
 lb.— lb.— Wallace v. Duffield, 1816, 2 S. & E. 521. Executors were au- 
 thorized to sell land. They did, and invested the proceeds v?ith about an 
 equal amount of their own funds in another estate. There was some evi- 
 dence as to declarations by one of the executors that the purchase was, in 
 trust. After thirty-one years it was held that the evidence was sufficient 
 to establish a trust. 
 
 lb.— lb.— Ingham v. Crary, 1830, 1 P. & W. 389. Parol declarations be- 
 fore the execution of a deed can be given in evidence to establish a trust. 
 
 lb.— lb.— McGinity v. McGinity, 1869, 13 S. 38, S. C. 18 Pitts. L. J. 27. 
 A resulting trust may be proved by parol, but the evidence must be clear, 
 explicit and unequivocal. In this case the trust was not established owing 
 to the laches of the plaintiff and the unsatisfactory character of the evidence. 
 
 lb. — ^Ib. — Wiser v. Allen, 1879, 11 N. 317. Parol evidence is admissible 
 to defeat a resulting trust. 
 
 lb. — lb. — Lloyd V. Carter, 1851, 5 H. 316. A resulting trust may be es- 
 tablished by the verbal declarations of the grantee before or after the con- 
 veyance. 
 
 lb.— Will.— Franken's Est., O. C. 1885, 42 Leg. Int. 68. Where a gift 
 is made by will and appears from the will to be in trust, parol evidence is 
 admissible to identify the trust. 
 
 Parol Trust Ex Malefacio.— Socher's Ap., 1883, 8 Out. 609, S. C. 14 W. 
 N. C. 381, 31 Pitts. L. J. 281. A trust may be fastened upon a devisee by 
 the uncontradicted oral testimony of a single witness that he obtained the 
 devise upon promises of using it in certain ways. 
 
 Parol Trust in Lands. — Emerich v. Emerieh, C. P. 1858, 15 Leg. Int. 
 77, S. C. 3 Phila. 94. To establish an oral trust in lands the evidence must 
 be clear, distinct and positive. 
 
 Partition — Husband and Wife. — Mitchell v. Kintzer, 1847, 5 Barr, 216. 
 It is competent to show by parol that a deed of lands after a partition to 
 the husband of one of the heirs is in trust for the wife. 
 
 Rejection of— Express Trust.— Deitzler v. Mishler, i860, 1 Wr. 82. It 
 is error to I'eject an offer of evidence to explain away a seeming express 
 trust. 
 
 Kesulting Trust.— Farrell v. Lloyd, 1871, 19 S. 239. A father bought 
 land. The evidence to prove a resulting trust for the son was : that the 
 father had not sufficient means bnt that the son had ; that the father said 
 he was going to A. to bgy land for his son, and that the son at that time 
 handed him some money. Held that this evidence should be submitted to 
 the jury, who might find a resulting trust. 
 
 lb. — Gregory v. Setter, 1787, 1 D. 193. An acknowledgment by a party 
 who has purchased lands that the purchase money came from another source, 
 may be given in evidence to establish a resulting trust. 
 
 Sheriflfs Sale— Resulting Trust. —Brown v. Dysinger, 1S29, 1 E. 408. 
 The verbal declarations of one at a sale that he is bidding for another, are 
 evidence to establish a trust, notwithstanding the statute of frauds. 
 
 Statute of Limitations.— McBarron v. Glass, 18S8, 6 C. 133. Prior ito 
 act April 22, 1856, evidence of a resulting trust would not be received after 
 a lapse of twenty-one years. 
 
 Trust in Wife.— Ziegler v Shomo, 1875. 28 S. 357. To establish a trust 
 in the wife against the creditors of the husband in whom is the legal estate. 
 the evidence must be clear, the wife's evidence being equivocal, the trust 
 would not be decreed. 
 
 Voluntary Trust — Grantors as Witnesses. — Miller v. Pearce, 1843, 6 
 W. & S. 97. Where one jivorures from a father a voluntary conveyance of 
 
ULTRA VIBES — UNCERTAINTY. 597 
 
 land upon his express promise to convey it to his son upon his attaining his 
 majority, it is a trust which can be proved by the grantors, the father and 
 mother, and which can be enforced by the son's bringing an action of as- 
 sumpsit for the purchase money received by the trustee on a sale of the land 
 by him. 
 
 Written.— Dyer's Ap., 1884, 11 Out. 446. Under act April 22, 1856, the 
 written evidence to establish a trust must be in itself sufficient and cannot 
 be eked out by parol. 
 
 UtXRA VIRES. 
 
 Estoppel— Borrowing Money From Society.— McLean v. Man, D. C, 
 1877, 1 W. N. C, 8. One who has borrowed money from a society is estopped 
 from setting up that it was ultra mres, and so defeating payment. 
 
 Mortgage— Corporation— Confirmation.— Gordon ». Preston, 1833, l 
 W. 385. A mortgage given ultra vires of the directors of a corporation, will 
 be considered ratified by the stockholders if not disaffirmed by them, and, 
 in any event, cannot be questioned by a third party, such as a judgment 
 creditor of the corporation. 
 
 t;i<(ACCRUE» DAMAGES. 
 
 Breach of Contract.— Van Kleeck v. Pickering, C. P. 1881, 11 W. N. C. 
 238. Damages resultingfrom breacb of contract which have not yet accrued, 
 cannot be set off. 
 
 lb. — Zuck V. McClure, 1881, 2 Out. 54. Damages arising from a breach 
 of contract between two parties cannot be set oflfin an action between them, 
 unless the breach was complete at the time the action was brought. 
 
 lb. — Tuck V. Kafferty, 1881, 13 Lan. Bar. 167. Damages accruing from a 
 breach of contract which was made after suit brought cannot be set off. 
 
 UlfAUTHORIZED IMPOSITTIOIV OE TAXES. 
 
 Injunction. — Conner's Ap., 1883, 7 Out. 356. An injunction will be 
 granted to restrain the imposition of a greater tax than authorized by the 
 legislature, or to restrain the collection of a tax for a purpose not authorized. 
 
 lb.— St. Clair School Board's Ap., 1873. 24 S. 252. Equity will restrain 
 the collection of a tax levied in excess of authority, but not on a showing 
 that other money has been collected and squandered. 
 
 UIWCERXAINTY. 
 
 I. In Appeal to Supreme Court. 
 II. Demhebee to Bill foe. 
 III. In Contract. 
 
598 TIKfKETAINTY — " UNDER AND SUBJECT." 
 
 I. In Appeal to Supreme Court. 
 
 Decree. — Briudle v. Brindle, 1865, 14 W. 387. A decree will be affirmed, 
 where appellant does not bring up the case in such a manner that the 
 Supreme Court can understandingly review it. 
 
 II. Demurrer to bill for. 
 
 Allegation in.— Brady v. standard Assocn., C. P. 1884, 14 W. N. C. 419. 
 A demurrer to a bill on the ground of its being uncertain and contradictory, 
 must allege the particular section in which the faults occur. 
 
 III. In Contract. 
 
 Mistake -Risk.— Ashcom v. Smith, 1830, 2 p. & W. 211. Equity will 
 not on the ground of mistake, relieve one suffering from the event of an un- 
 certain contract, each party to which acted as though content to run the 
 chance. 
 
 Specific Performance — Location of Land. — Lee's Appeal, 1882, 12 W. 
 N C. 183. Specific performance of.a contract for the sale of land will not be 
 decreed where the location of the land is uncertain and cannot be fixed. 
 
 lb.— In Merrill's Appeal, 1885, 16 W. N. C. 346. Specific performance 
 will not be decreed of an agreement uncertain and contradictory in its 
 terms. 
 
 UNCONSTITUTIONAL REIWEDV. 
 
 Bight of trial by jury— Acts of Assembly.— North Penna. Coal Co. v. 
 Snowden, 1862, 6 W. 488. Act April 32, 1856, allowing tenants in common 
 of mining rights to come into equity, is unconstitutional so far as it refers 
 to the trial of legal right^ for those must be by jury. 
 
 lb. — Haines' App., 1873, 23 S. 169. An act directing equity practice in 
 certain cases where the remedy is not equitable, is unconstitutional as de- 
 priving parties of the right of trial by j ury. 
 
 " UNDER AND SUBJECT " CI^AUSE. 
 
 In Mortgage.— Eoss v. Hanna, C. P. 1875, 3 W. N. C. 223. A purchaser 
 who takes property under and subject to a mortgage makes the debt his 
 own, and is personally liable. 
 
 lb.— Girard Life Ins. Co. v. Addicks, C. P. 1877, 5 W. N. C. 75, S. C. 35 
 Leg. Int. 17, 12 Phila. 490. A vendee of land '' under and subject" to a 
 mortgage can escape personal liability for the mortgage by showing by parol 
 that it was agreed between him and the mortgagor that he should not be 
 so liable although the suit is by an assignee of the mortgage. 
 
"under and subject" — UNDER ARTICLES. 599 
 
 lb.— Thomas v. Wiltbank, 1879, 6 W. N. C. 477, S. C. 26 Pitts. L. J. 131. 
 The " under and subject " clause iu a conveyance of mortgaged premises 
 ♦ does not, as regards the mortgage, make the grantee personally liable for the 
 mortgage debts. 
 
 lb.— Stokes V. "Williams, 1879, 6 W. N. C. 473, affg 4 W. N. C. 370. One 
 who takes a conveyance of mortgaged property for a special purpose, and 
 after that purpose has been accomplished reconveys the same, is not person- 
 ally liable for the mortgage debt by reason of the "under and subject" 
 clause being in the deed under which he held. 
 
 lb. — Green v. Eick, 1888, 6 Crura. 130. Where a deed recites that the 
 property is conveyed " under and subject " to the lien of a mortgage, there 
 is no covenant on the part of the grantee to indemnify the grantor against 
 the mortgage debt. 
 
 lb.— Paul V. Casselberry, 1880, 8 W. N. C. 334. In the absence of an 
 agreement to that effect, one taking property "under and subject" to a 
 mortgage is not personally responsible therefor. 
 
 lb.— Maule v. Audley, 1845, 3 Clark, 28 S. C. 4, Pa. L. J. 356. Whether 
 an indenture by which the vendee takes land " under and subject " to a 
 mortgasie is a covenant of indemnity only as between vendor and vendee, 
 or whether it is a covenant by the vendee to pay the mortgage at all events, 
 not decided. 
 
 VIKDER ARTICLES. 
 
 Descent— EcLuitable Estate.— Vincent v. Hufif, 1822, 8 S. & E. 381. 
 The equitable estate of a vendee under articles follows legal estates in 
 manner of descent. 
 
 Equitable Title.— Ashland v. Fire Ins. Co., 1888, 45 Leg. Int. 65. An 
 equitable title acquired by means of articles of agreement renders the 
 vendee the owner of the property so far as the insurance is concerned. 
 
 Of Confederation. — Parker ». Wood, 1789, 1 X). 437. A mortgage which 
 was recorded just after the Declaration of Independence by the former 
 officer in the old recording office, held good, although the officer had no 
 standing nnder the new government. 
 
 Sale — Judgment. — ^Veerheller's App., 1854, 12 H. 105. A sale under a 
 judgment against a vendee under articles passes only his equitable estate 
 unless the judgment be by the vendor for the purchase money when the 
 sheriff's vendee obtains a clear title. 
 
 Vendee— Judgment Against Bctuitable Estate.— Waters's Appeal, 11 
 C. 523. A judgment against the equitable estate of a vendee under articles, 
 attaches to, and binds the legal estate immediately upon the deed being 
 delivered. 
 
 lb.— Land of— Sheriff's Sale.— Bradley v. O'Donnell, 1858, 8 C. 279. A 
 sheriff's sale of the equitable interest in land of a vendee under articles, 
 passes only that vendee's interest, though the judgment on which it is 
 sold be one recovered on a note given by him for part of the purchase 
 money. Such sale does notaffect the vendor's title. 
 
 lb.— Sale of Interest— Privity.— Anwerter v. Mathiot, 1823, 9 S. & E. 
 397. The equitable estate of a vendee under articles mSy be sold by his 
 judgment creditors, and the latter's claim to the proceeds is better than 
 that of the vendor. 
 
600 UlTDEK SEAL — UNDISPUTED TITLE. 
 
 VXDER SEAL. 
 
 Equitable Mortgage.— Spencer v. Haynes, C. P. 1877, 4 W. N. C. 162, 
 S. C. 34 Leg. Int. 140, 12 Phila. 452. Although an instrument under seal 
 may be au equitable mortgage, a sdre facias cannot be issued thereon. 
 
 irKDISCLOSCD PRINCIPAL. 
 
 Action.— Heart ji. Serrill, C. P. 1875, 1 W. N. C. 472. Where an undis- 
 closed principal sues on a contract made by his agent, a set-off ■which the 
 defendant has against the agent may be set off against the plaintiff. 
 
 lb. — lb. — Parker v. Donaldson, 1841, 2 W. & S. 9. A purchaser from an 
 agent not knowing him to be such, may, in an action for the price by the 
 principal, set off a debt due himself by the agent. 
 
 lb.— Frame v. Wm. Penn Coal Co., 1S81, 1 Out. 309. A defendant when, 
 sued by an individual principal, may set off claims which he has against 
 the agent with whom he dealt as principal. 
 
 lb. — Twells V. Costere, 1849, 1 Pars. 373. Equity will not entertain a bill 
 of discovery by a plaintiff against a defendant to compel the latter to dis- 
 close, whether in a contract entered into between them, he was not the mere 
 agent of a principal not named, in order to enable the plaintiff to maintain 
 an action against the unknown principal for an alleged breach of contract. 
 
 UNEXECXJXEO. 
 
 Deed.— Carbart's App., 1875, 28 S. 100; S. C. 1 W. N. C. 476 ; 7 Leg. 
 Gaz. 237. Equity will not enforce an unexecuted voluntary contract. 
 
 Voluntary Agreement. — Pringle v. Pringle, 1868, 9 S. 281. Equity- 
 will not enforce an unexecuted voluntary agreement. 
 
 IJIVFIBilSHEO BUILDI2VG. 
 
 Lien of Material Men.— American Fire Ins. Co. V. Pringle, 1815, 9 S. & 
 E. 138. The lien of material men and mechanics for supplies furnished and 
 work dene after an unfinished huilding had been sold and a mortgage taken 
 for the purchase money, is prior to the mortgage though the latter be 
 recorded immediately. 
 
 UNDISPUXEO TIXL,E. 
 
 Married "Woman.- 
 
 Injunction —Allen V. Benners, C. P. 1873, 30 Leg. Int. 76, S. C. 10 Phila. 
 10. The property of a married woman will be protected from sale as tb& 
 property of her husband where her title is clear and undoubted. 
 
UNDUE INFLUENCE— trNINCOEPOEATKD ASSOCIATIONS. 601 
 
 UNDUE INFLUENCE. 
 
 See Equitable Defence, p. 180 ; Estoppel, p. 194; Fbaud p. 227; Lu- 
 natic, p. 320. 
 
 Contract.— Hetrick's Ap., 1868, 8 S. 477. A contract made by one 
 old and feeble, who has no one to advise him, will be rescinded by equity if 
 there is circumstance, however slight, which will warrant it, but where 
 there is no proof of undue influence or fraud and the other party has lived 
 up to the contract there is no ground on which to base a rescission. 
 
 Mistake of Law.— Hunt v. Moore, 1845, 2 Barr, 105. Although mis- 
 takes of law will not be relieved against as such, yet they may give rise to 
 a presumption of undue influence or confidence abused, in which case equity 
 will always relieve. 
 
 Keleasing a Eight.— Whelen's Ap., 1872, 20 S. 410. Equity will relieve 
 against a mistake of law where full explanation and information have not 
 been given and where by undue influence one has been pressed to release a 
 right which he did not fully comprehend. 
 
 lb.— McGrory v. Eeilley, C. P. 1876, 2 "W. N. C. 587. Less than actual 
 duress will avoid the mortgage of a married woman. 
 
 Mortgage on wife's estate— Duress.— McGrory v. Eeilley, C. P. 1879, 
 8 W. N. C. 104, S. C. 37 L. I. 4 ; 14 Phila. 111. A mortgage given by a wife 
 on her separate estate under threats that unless she did her husband would 
 be imprisoned, is invalid. 
 
 lb. — Hahn's Ap., 1861, 3 W. 409. A mortgage given while a building 
 is in course of erection is subsequent to a mechanics' lien duly filed, 
 though such filing be after the mortgage was given and recorded. 
 
 UNINCORPORAXED ASSOCIATIONS. 
 
 See Injunction, p. 283. 
 
 Appointment of Trustee. — Massasoit Tribe {in re), C. R 1883, 14 W. 
 N. C. 92. The common pleas will appoint a trustee for an unincorporated 
 society without requiring security, upon a petition by the society to that 
 effect. . 
 
 Bequest— Alternative Direction.— Pickering v. Shotwell, 1848, 10 
 Barr, 23. A bequest to an unincorporated society to be used in distributing 
 books among poor people or to support a free school in or near Philadelphia 
 will be supported as a charity. The trustee is capable of taking, aud the 
 objects of bounty are sufficiently designated. 
 
 lb. — Non-BesidentS. — Evangelical Association's Ap., 1860, 11 C. 316. A 
 bequest to an unincorporated society is valid, though the society be com- 
 posed in a great measure of non-residents, and the bequest is not for any 
 definite use. 
 
 Charity. — Thomas v. Ellmaker, 1844. 1 Pars. 98. An unincorporated 
 voluntary fire company is a charity, yet because unincorporated it may as^ 
 to third persons, be considered a partnership. 
 
 Control Over.— Brown v. Griffin. C. P. 1884, 14 W. N. C. 358, vide 13 
 W. N. C. 91. The common pleas has jurisdiction over an unincorporated 
 association which is itself under the entire control of a superior organization. 
 
(>(I3 UNINCORPORATED ASSOCIATIONS — UNITED STATES. 
 
 Expulsion of Member. — Hannstead v. Washington Fire Co., C. P. 1871, 
 28 Leg. Int. 404. Equity will protect one from expulsion by an unincor- 
 poratud association where the proceedings have not been entirely regnlar. 
 
 lb.— Worrillow's Ap., 1883, 2 Del. Co. R. 66, affirming 1 Del. Co. E. 317. 
 Equity will reinstate a member of an unincorporated society illegally 
 expelled. 
 
 lb.— Schassberger v. Staendel, C. P. 1880, 9 W. N. 379. Equity will see 
 to it that unincorporated societies do not expel a member, unless it be done 
 strictly under the provisions of its constitution. 
 
 Jurisdiction— Equity.— Potter v. Search, C. P. 1870. 27 Leg. Int. 365, S. 
 C. 7 Phila. 443. It is within the province of equity to see that the rules 
 and regulations of unincorporated societies are not infringed. 
 
 lb.— Bauer v. Seegar, C. P. 1875, 2 W. N. C. 242. Equity will not inter- 
 fere with the workings of an unincorporated society unless it is acting con- 
 trary to its constitution and by-laws. 
 
 lb. — Thomas v. Ellmaker, 1844, 1 Pars. 98. Our courts have equitable 
 jurisdiction over unincorporated associations, especially when they are 
 charities, this by our common law which is analagous to the statute of 
 Elizabeth. 
 
 Knowledge of Member.— Stockdale v. Keyes, 1875, 2 W. N. C. 201. 
 Knowledge of member and director of an unincorporated association is notice 
 to the latter though fraudulently concealed. 
 
 Property held for— Set off. —Fourth XJniversalist Parish v. Wensley, C. 
 P. 1878, 5 W. N. C. 273. Equity will compel one who has held property 
 for a society until it should become incorporated to convey the same'to it 
 although the society before incorporation became largely indebted for 
 material, for which the trustee being a member of the society may be re- 
 sponsible. 
 
 Regularity of Proceedings.— Sperry's Appeal, 1887, ICrum. 391. Equity 
 lias jurisdiction to inquire into the regularity of the proceedings under the 
 cnnstitution and by-laws of an unincorporated beneficial society, to deter- 
 mine whether or not a member has been wrongfully suspended. The merits 
 ot what has passed into judgment in a regular course of proceedings will not 
 be inquired into, and if irregularities existed but were examined by the com- 
 plainant at the time, equity will not grant relief. 
 
 lb. — Andriessen's Ap., 1889,8 Crura. 303. Where new parties take 
 shares upon the increase of the capital of an unincorporated association and 
 it is subsequently ascertained that false representations had been made 
 which induced these subscriptions, a bill in equity is the proper remedy as 
 the parties are really partners and the remedy at law inadequate. 
 
 Bights of Majority. — German Society ri. Hochreiter, C. P. Luzerne, 1877, 
 6 Luz. L. Eeg. 211. Equity will protect the rights of a majority of an un- 
 incorporated society where the minority has usurped power through fraud 
 or force. 
 
 Trustee.— Massasoit Tribe {in re), C P. 1883, 14 W. N. C. 92. The 
 common pleas will appoint a trustee for an unincorporated society without 
 requiring security upon a petition by the society to that eifect. 
 
 ITNINXENTIONAI. INFRINGEMENT. 
 
 See Injunction, p. 268. 
 
 UNITED STATES. 
 
 Claim by— Assignment for Creditors.— Sibbald's Est., 1852, 6 H. 249. 
 A claim against the United States will not pass by an assignment for credi- 
 tors of all the claimants effects unless specially mentioned. 
 
UNJUST ASSESSMENTS — UNPAID PURCHASE MONEY. 603 
 
 Preferred Creditors— Assignment.— Downing v. Kintzing, 1816, 2 S. 
 ■& R. 326. Where an insolvent has made two assignments to two different 
 pels of creditors, the United States as a preferred creditor can go against 
 .either, and that fund is entitled to contribution from the other. 
 
 UNJUST ASSESSMENTS, TAXES. 
 
 See Injunction [Taxation), p. 273-275. 
 
 UNLOADING CARS ON STREETS. 
 
 See Injunction, p. 273. 
 
 UNIvIfiUIDATED DAMAGES. 
 
 See Adjustment, p. 38. 
 
 Set off: — Hnbler v. Tamney, 1836, 5 W. 51. Unliquidated damages may 
 be set off in an action of debt, whether they arise from the same transaction 
 as that on which suit is brought or not. . 
 
 Ib.—Halfpenny v. Bell, 1876, 1 N. 128. Unliquidated damages arising 
 from a distinct and separate contract may be used as a set-off. 
 
 UNMATURED NOTES. 
 
 Attachment— Garnishee.— Jones -c. Manufacturers' Bank, 1882, 2 
 Penny. 377, afiarming 10 W. N. C. 102. A bank which has been made 
 ■garnishee in an attachment against a depositor cannot set off unmatured 
 notes which it has discounted for him. 
 
 UNPAID PARTY. 
 
 AdjUStment.-Kyner V. Kyner, 1837, 6 W. 221. One will not be subro- 
 gate to the rights of a party not himself fully satisfied. 
 
 UNPAID PURCHASE MONEY. 
 
 «ce PCECHASE, p. 460; Puechase Money, p. 461; Purchase Money 
 Mortgage, p. 461. 
 
604 UNPEINTED PLEADINGS — UNKECOEDED DEED. 
 
 VB^PRIXTED PL,EADIXGS. 
 
 See Peactioe and Pleading, p. 448. 
 VIVRECORDED ASSIGXIHEilVX 
 
 ir 
 
 See Assignment foe Ceeditoes, p. 82. 
 
 Partners— Attaching Creditors. — "Wharton v. Grant, 1846, 5 Barr, 39. 
 An assignment by a firm for its creditors if not recorded is not valid as 
 against separate creditors of the partners, who attach the property in the 
 hands of the assignee. 
 
 lb.— lb.— Mitchell V. Gendell, D. C. 1868, 25 Leg. Int. 269, S. C. 7 Phila. 
 107. An assignment for creditors not recorded, followed by an agreement 
 under which the property is sold by the sheriff and bought in by the 
 assignees, is not valid against attaching creditors. 
 
 lb.— By Two of Three Void.— 7» re Wilson, 1846, 4 Barr, 430. An as- 
 signment for creditors stipulating for a release, is fraudulent and void if all 
 the property is not assigned. Therefore an assignment by two of the three 
 members of a firm, of the property of all three is void on its face, if it can- 
 not be shown that there was no property m the third partner to be separately 
 assigned. 
 
 lb. — ^Voidable. — Weber V. Samuel, 1848, 7, Barr 499. An assignment 
 for creditors not recorded as provided for in the county of the assignor is 
 voidable at the election of the creditors, or, after the appointment of 
 trustees in insolvency by the trustees and b3' them only. Commencing an 
 action is not notice of au intention to avoid the assignment until a narr. is 
 filed. 
 
 UNRECORDED DEED. 
 
 Equitable Estate. 
 
 Defeasance —Judgment.— Directors of the Poor ». Boyer, 7 Wr. 146. An 
 absolute deed recorded, with a separate defeasance not recorded, the 
 grantee having a power of sale at the direction of the grantor, is plainly a 
 mortgage, and the equity of redemption is bound by a judgment. 
 
 Purchaser— Sheriff's Sale.— Stewart ■«. Freeman, 1854, 10 H. 116. A 
 purchaser of land at sheriffs sale is protected against an unrecorded convey- 
 ance by the defendant, of which he had no notice, the defendant not having 
 parted with his possession. 
 
 lb.— Unmarketable Title.— Speakman v. Forepaugh, 1863, 8 Wr. 363. 
 The only cloud ou the title was that there was an outstanding, unrecorded 
 
 Eaper title. It was admitted that the vendee would only be affected by 
 aving had notice, and that there was no constructive notice, but the fact 
 that he might be open to litigation on the ground of actual notice was 
 enough to make the title unmarketable. 
 
 lb.— Mortgage.— Stiekel v. Desh, 1882, 13 W. N. C. 130. A purchaser 
 from one whose deed is unrecorded, is affected with notice of an unrecorded 
 mortgage mentioned therein. 
 
 Subsepiuent Mortgage.— Hulett v. Mutual Life Ins. Co. 1886, 4 Amm.er, 
 143. Under the Recording Act of March 18, 1775, unrecorded deeds convey- 
 ing land to a party are void as against a subsequent mortgage without 
 notice. 
 
UNRBCOBDED MOETQAGE. 605 
 
 V^IRCCORDED ISORTOAGE. 
 
 I. INTBEKST Never Paid. 
 
 . II. .TuDQMENT When Pkioe Lien. 
 
 III. Judgment Ceeditor. 
 
 IV. Sheriff's Sale. 
 V. Validity. 
 
 VI. Priority of Liens. 
 
 I. Interest Kever Paid. 
 
 Cannot be Enforced.— McCruden's Est., D. C. 1878, 35 Leg. Int. 153, 
 R C. 12 Phi la. 69. An unrecorded mortgage twenty-five years old found 
 among the papers of a decedent on which no interest was ever demanded or 
 collected, will not be enforced. 
 
 II. Judg-ment When Prior Lien. 
 
 Creditor — ^ITotice. — Huliugs v. Guthrie, 1846, 4 Barr, 123. A judgment 
 is a prior lien to a prior unrecorded mortgage, even though the judgment 
 creditor have notice. 
 
 III. Judgment Creditor. 
 
 Ejectment — ^Notice. — Muse v. Lettermau, 1825, 13 S. & R. 167. A 
 j udgment creditor who buys in property on a sale under his j iidgment takes 
 it subject to an unrecorded prior mortgage, notice of which was given by the 
 sheriff. In ejectment by the mortgagee against him, such notice shall bo 
 given in evidence. 
 
 IV. Sheriff's Sale. 
 
 ■ Discharge Under.— Hibberd ■». Bovier, 1855, 1 Gr. 266. An unreconlcd 
 mortgage which will be discharged by a sheriff's sale cannot come in upon 
 the proceeds as against subsequent judgment creditors, but if it is a first 
 lien, notice at the sale binds the purchaser and he takes subject to it. 
 
 Purchaser — Judgment. — Stradling v. Henck, D. C. 1857, 14 Leg. Int. 
 13, S. C. 2 Phila. 302. One who takes a judgment note which he after- 
 wards enters up, and under the judgment buys in the property against 
 Ayhich it is a lien, is not bound by an unrecorded mortgage of which he had 
 no notice at the time of taking the note. 
 
 lb.— Notice.- Solms r. McCullough, 1847, 5 Barr, 473. Notice of an unre- 
 corded mortgage given at a sheriff's sale binds the purchaser. 
 
i606 UNBECOBDED MOBTGAGE — UKbATISFIED MOBTGAGBS. 
 
 lb.— lb.— Uhler V. Hutchinson, 1854, 11 H. 110. The holder of an 
 unrecorded mortgage cannot by giving notice of it at a sheriffs sale upon a 
 subsequent judgment bind the estate in the hands of the purchaser. 
 
 lb. — Jaquesw. Weeks, 1838, 7 W. 361. A purchaser with actual notice 
 of a prior unrecorded mortgage is bound by it, but a judgment creditor and 
 the purchaser at a sale on a judgment are not, for a judgment has been held 
 prior to an unrecorded mortgage, and if the purchaser were not protected it 
 would take away from the value of the judgment. 
 
 lb. — lb. — Stroud V. Lockhart, 1797, 4 D. 153. A purchaser having actual 
 notice of an unrecorded mortgage is bound to pay the same. 
 
 lb.— lb.— Steckel v. Desh, 1883, 12 W. K. C. 130. A purchaser from one 
 whose deed is unrecorded is aflected with notice of an unrecorded mortgage 
 mentioned therein. 
 
 lb. — lb. — Muse V. Letterman, 1825, 13 S. & E. 167. A judgment creditor 
 who buys in property on a sale under his judgment takes it subject to an 
 unrecorded prior mortgage; notice of which was given by the sheriff. In 
 ejectment by the mortgagee against him such notice can be given in 
 evidence. 
 
 V. Validity. 
 
 Assignee for Creditors. — Mellon's Ap., 1858, 8 C. 121. An unreoortled 
 mortgage is a valid lien against the property in the hands of an assignee 
 for creditors. 
 
 Evidence.— Crosland v. Saving Fund, 1888, 6 Crum. 65. Where llie 
 question is as to the validity of an unrecorded mortgage and the grantor is 
 the chief witness in favor of the mortgage, it is competent to admit the acts 
 and declarations of the grantor, and others acting for him, in contradictioii 
 of evidence tending to show collusion in an attempt to defraud ti]e 
 mortgagee. 
 
 Six Months. — Leving ji. Will, 1788, 1 D. 431. A mortgage not recorded 
 within six months is nevertheless good against the mortgagor. 
 
 Trust— Knowledge of Cestui Que Trust. — Murphy v. Nathans, 1864, 
 10 Wr. 508. When a mother purchases land and takes title in the name ot 
 her daughter, if the land be subject to an unrecorded mortgage of which the 
 daughter had knowledge but not the mother, the mortgage will continue a 
 lien on the land. 
 
 VI. Priority of Uens. 
 
 Order of — Manufacturers' and Merchants' Bank ti. Bankof Penna., 1844, 
 7 W. & S. 335. The priority in time of liens against A. was in this order. 
 1st, an unrecorded mortgage, 2d, a recorded mortgage with notice of the 
 other, 3d, a judgment. Held that they should be satisfied in that order 
 l)ecause the. judgment was bound by the prior recorded mortgage, and that 
 in turn could only claim under the first mortgage. 
 
 UIVSAXISKIED MORTGAGES. 
 
 Statute of Limitations. — Simpson v. Broomall, C, P. Delaware, 1882, I 
 Del. Co. li. 229, S. C. 3 York L. E. 85. Equity will not compel one to tiike 
 a title on which there are unsatisfied mortgages, though over twenty vears 
 old 
 
UNSEATED LAND— USE EQUITABLE. 607 
 
 Stay.— Mutual Saving Fund v. Ball, C. P. Schuylkill, 1881, 2 Sch. L. K. 
 203. The sale of land under a mortgage will not he stayed in order that au 
 orphans' court sale may he made, when the latter v/ould not affect the 
 mortgage. 
 
 VNSEAXEW ILAWD. 
 
 Taxes— Deduction.— Owens v. Salter, 1863, 2 Wr. 211. A purchaser of 
 unseated land on which are unpaid taxes may pay the same and defalk such 
 payment Irom the mortgage given for the purchase money. 
 
 UNSETTLED ACCOUNT. 
 
 Partnership.— Alter v. Brooke, N. P. 1872, 29 Leg. lut. 117, S. C. 9 
 Pliila. 258. A bill for an account will not lie by a creditor who seeks to 
 i\ttach a partner's interest in an unsettled partnership. 
 
 Set off.— Milliken v. Gardner, 1860, 1 Wr. 456. An unsettled claim 
 against a firm cannot be set off against a partner's debt though both aiose 
 out of the same transaction. 
 
 Subrogation— Partner. — Singizer's Ap., 1857, 4 C. 480. There can he 
 no subrogation by one partner to the rights of a creditor of the firm wheio 
 the accounts of the partners are unsettled. 
 
 UPON -WHAT ALI^OTVED. 
 
 Commissions — Trustee. — McCausland's Ap., 1861, 2 Wr. 466. A trustee 
 is not allowed commissions on the principal ol a fund which investment he 
 has not changed. 
 
 U. S. BANK NOTES. 
 
 Trusts and Trustees.— Nyre's Est., 1843, 5 W. &S. 254. An invest- 
 ment in United States Bank Stock is at the peril of a trustee. 
 
 USE EQUITABI^E. 
 
 Statute of Frauds.— Hogg v. Wilkins, 1854, l Gr. 67. An equitable use 
 in land is within the provisions of the statute of frauds. 
 
«08 USB AFTER PAYMENT— USE PLAINTIFF. 
 
 USE AKTEir PAYMENT. 
 
 Building Association. — Loan Co. v. Everham, D. C. 1862, 2 Leg. L. 
 Obs. 314. After payment to baildin^ association of a loan secured by mort- 
 gage, the mortgage may be used to enforce payment of monthly dues on the 
 shares. 
 
 USE OF ASSIGBIOR'S NABIE. 
 
 See Mortgage ( Parties), p. 370. 
 
 Assignment. — Pryor v. Wood, 1858, 7 C. 142. After an assignment of a 
 mortgage duly executed and recorded, there is no such title left in the 
 assignor as permits the use of his name as nominal plaintiff. 
 
 USE OF PLEA IIV SUBSEfJUENX JUDGMEPtX. 
 
 Set off. — Moloney v. Davis, 1865, 12 Wr. 512. A defendant having 
 pleaded a set-off to one action cannot be compelled to use it against a judg- 
 ment subsequently obtained in another, bnt may prove it and have it 
 aUowed on the trial of the action in vfhich it was pleaded. 
 
 \ USE OF 'WORD, TRADE IWARK, ETC. 
 
 See Injunction, p. 267. 
 
 USE PLAINTIFF. 
 
 * See Parties, pp. 417, 418. 
 
 Administrator— Evidence. — Hoopes v. Beale, 1879, 9 N. 82. If the nse 
 plaintiff is au administrator, the defendant cannot testify concerning trans- 
 actions which occurred betvpeen himself and the decedent. 
 
 Assignment for Creditors.— Memphis E. E. v. Wilcox, 1864, 12 Wr. 
 161. Where one has assigned a claim in trust for creditors it is not neces- 
 sary that he should, in suing thereon, set out the use plaintiff and the 
 trust. 
 
 Judgment Against Firm— Set-OfF.— Stout v. Moore. C. P. 1879, 7 W. 
 N. C. 4.'56. A nse plaintiff in a judgment recovered against a firm may set 
 it off against a judgment recovered against him by a member of the firm. 
 
 Right of Title.— Reigart V. Elmaker, 1820, 6 S. & E. 44. It is not neces- 
 sary for a nse plaintiff to appear on the record, but it he does, the court will 
 recognize him as such. 
 
USE PLAINTIFF — USIJfG TEUST FUUDa 609 
 
 lb.— Armstrong v. Lancaster, 1836, 5 W. 68. That a snit is for the nse of 
 an equitable plamtiflf is sufficiently shown by so marking it, the title of the 
 latter need not be set off in the pleadings. The court will undoubtedly 
 search out the real plaintiff in interest and fix on him costs, set-offs and 
 other liabilities. 
 
 lb.— Montgomery v. Cook, 1837, 6 W. 238. A use plaintiff need show no 
 Tight in himself, but only the right of the legal plaintiff. 
 
 Ibi— Montgomery v. Cook, 1837, 6 W. 238. It is not necessary for a use 
 plaintiff to show his title in the first iostanee. 
 
 lb.— Tilden v. Evans, D. C. 1858, 15 Leg. Int. 133, S. C. 3 Phila. 124. 
 The equitable owner of a judgment may treat it as his own, though it be 
 not marked to his use on the record. 
 
 lb.— Murtland «. Taylor, 1882, 14 Lan. B. 163. The court has nothing 
 to do with the equitable plaintiff unless some defence is shown as against 
 him. 
 
 Set Off— lb.— Passmore v. Ins. Co. of Penna., 1822, 8 S. & E. 66. A suit 
 was brought by P. & B. to the use of P. It was afterwards marked to the 
 iise of S. Held that in equity a set-off which would have been allowed 
 against P. would be allowed against S. . 
 
 lb. — Balsley v. Hoffman, 1850, 1 H. 603. Set-offs are allowed against the 
 nse plaintiff. 
 
 lb. — Hngg V. Brown, 1841, 6 Wh. 468. A defendant may set off a claim 
 which he holds against the use plaintiff. 
 
 lb.— Parties.— Stout v. Monro. C. P. 1879, 7 W. N. C. 456. A use 
 plaintiff in a judgment against a firm may set it off against a judgment re- ' 
 covered against him by a member of the firm. 
 
 USES— CHARITABLE. 
 
 I. See Chaeity, p. 101, et seq. 
 
 USES- NE^ir. 
 
 Charity Trustees. — Brown v. Lutheran Church, 1854, 11 H. 495. Trustees 
 for a chaiitv have no power to create new uses, but a ratification by the 
 beneficiaries makes such act va:lid. 
 
 VSIMC TRUST FUNDS. 
 
 Cross's Appeal. — 1881. l Out. 471. The fiict that a trustee uses trust 
 fnnds for inipioving his estate does not give rise to eiilier a resulting trust 
 or an eqnitahle lien. A resulting trust can only arise at the Inception of 
 title, and an equitable lien is unknown in Pennsylvania jurisprudence. 
 
 39— EQUITY. 
 
wo SOLK AND SBPAEATB USB — USUEY. 
 
 Sole and Separate Use. 
 
 Infant.— Sevan's Est., 0. C. 1883, 3U Leg. Int. 479, S. C. 15 Phila. 615. 
 A trust for the separate use of an infant aged ten, will, upon petition, be 
 considered executed. 
 
 Mortgage. — Groeser v. Hornung, 1881, 10 "W. N. 0. 46.3. A power to 
 give a mortgage for purchase money contained in a sole and separate use, 
 does not confer the power to give a bond and warrant. 
 
 Use of Fraudulent Instrument. 
 
 Fraud. — Batdorf v. Albert, 1868, 9 S. 59. Law as administered in Penn- 
 sylvania, is as efiScient to prevent the fraudulent use of an instrument as 
 equity is to restrain it. 
 
 USES— REVOKING AND APPOINTING NE'W. 
 
 Power. — Hoover v. Samaritan Society, 1839, 4 Wh. 445. A power to 
 revoke uses and to appoint and declare new uses, may be executed by one 
 and the same instrument, unless such execution is expressly prohibited in 
 the deed creating the power. 
 
 USURY. 
 
 See Assignment I. p. 75; IV. p. 78. 
 
 Act of 1858.— Nicholson office, 1887, 14 Leg. Int. 513. Since the Act of 
 1858, it is not unlawful for one to pay cr receive more than six per cent, 
 interest, and other creditors have no claim for complaint unless there has 
 been found collusion to discard them. 
 
 Assignee— Mortgage.— Duquesne Bank's Ap., 1873, 24 S. 426. An 
 assignee of a usurious mortgage is in no better position that the mortgagee 
 with a certificate of no defence, if the assignee had notice of the usury. 
 
 Auditor— Subsequent Creditors.— Building Association V. O'Connor, 
 D. C. 1859, 16 Leg. Int. 300, S. C. 3 Phila. 453. A mortgage may be im- 
 peached for usury before an auditor by subsequent judgment creditors. 
 
 Defence — Terre Tenant. — Fisher v. Kuhlman, D. C. 1858, 15 Leg. Int. 
 325, S. C. 3 Phila. 313. A terre tenant may take advantage of the defence 
 of usury to a building association mortgage. 
 
 Interest. — Sterrett ?;. Jamison, C. P. Indiana, 1856, 17 W. N. C. 347. 
 Where the only matter to be settled between partners is the recovery of 
 usurious interest paid by one to the other, a bill in equity will not lie. 
 
 Mortgage— Defence.— Hunter v. Campbell, X). C. 1874, 1 W. N. C. 100- 
 TJsury in the original transaction is a good defence to a mortgage even, in 
 the hands of an assignee. 
 
USURY. 611 
 
 Mortgagor. — Hackenstein v. Love, 1881, 2 Out. 518. A mortgagor has a 
 right to set up the defence of usury although the property has passed into 
 other hands. 
 
 Mortgagee (Second)— Fraud.— Lennjg's Ap., 1880, 12 N. 301. A 
 second mortgage cannot set up before an auditor appointed for distribution 
 of a fund, that the first mortgage, under a judgment upon which the 
 property ■was sold, was usurious, without showing that a fraud was intended 
 on him. 
 
 Mortgagee— Recovery.— Turner v. Calvert, 1824, 12 S. & R. 46. A 
 mortgagee who has secured an usurious mortgage is entitled to recover 
 thereon the amount actually loaned with legal interest. 
 
 Payments on Mortgages, Set-off.— Parker r. Sulouff, 1880, 13 N. 527. A 
 grantee of a large tract gave fjur separate mortgages at usurious rates on 
 separate lots in the tract to secure a balance of purchase money. One of 
 these lots was sold expressly subject to the mortgage. In a suit against the 
 mortgagor and ierre tenant, the former was allowed to set off usurious pay- 
 ments on the other three mortgages which had been satisfied. 
 
 Set off.— National Bank v. Dushane, 1880, 9 W. N. C. 472. Usury actu- 
 ally received by a National Bank in the renewals of a series of notes cannot 
 be set off in a suit on the last note. 
 
 What Constitutes.— Delaware Building Assoc, v. Keller, C. P. 1875, 2 
 "W. N. C. 29. A mortgage to a building association is not usurious because 
 the mortgagor has not received the full face value of the mortgage, the differ- 
 ence is in the nature of a premium. 
 
 I1j___Rowland's Est., C. P. Delaware, 1882, 1 Del. Co. R. 98. It is usury 
 for an unincorporated building association to deduct premiums from tho 
 principal of a mortgage. 
 
812 VACATION — VALID. 
 
 VACATION. 
 
 Attacluueut — Contempt. — Commonwealth V. Dow, C. P. Luzerne, 1877, 
 6 Luz. L. Reg. 219. A rule for an attachment for contempt taken in vaca- 
 tion should state where the defendant should appear. 
 
 VAOITE »ESCRIPXIOI«. 
 
 Eecord of Deed— Notice.— Banks ». Ammon, 1856, 3 C. 172. The 
 record of a deed in which the description is vague and indefinite, is not no- 
 tice to a subsequent purchaser that he is buying the same land. 
 
 VALID. 
 
 See Assignment foe Ceeditoes, p. 80, 89-91; Chaeity {Essentials of a 
 valid charitahle use), p. 102-106. 
 
 Assignment — Parol — Married Women — Collateral Security. — 
 Walker v. Coover, 1870, 15 S. 430. A verbal assignment of bonds to a mar- 
 ried woman as collateral security, she thereby undertaking to pay certain 
 of the assignor's debts, is valid as against attaching creditors. 
 
 lb.— Foreign Corporation.— American Slate Co. v. Phillipsburg Bank, 
 1880, 8 W. N. C. 430. An assignment of a bond and mortgage to a foreign 
 corporation is valid. 
 
 To.— Order— By Cestui que Trust.— MacEuen's Est., O. C. 1876, 3 W. 
 N. C. 158, S. C. 33 Leg. Int. 408, 11 Phila. 152. An order drawn by a 
 cestui que trust on his trustees in a spendthrift trust, who have also a tund 
 in their hands over -which he has control, is an equitable assignment pro 
 ianto of the latter fund, and will be supported on the consideration, ex- 
 pressed, of kind services. 
 
 lb.— lb.— Newton's Ap., 1878, 5 W. N. C. 521. An order drawn by the 
 beneficiary of a spendthrift trust on his trustee in favor of a third person ia 
 not a valid assignment of his interest. 
 
 lb.— lb.— For Fund— Notice.— Jermyn v. Moffitt, 1873, 25 S. 399. An 
 order for the whole of a fund amounts to an equitable assignment of it, and 
 binds the drawee after notice, -where, however, the assignment is of a part 
 only of the fund, the drawee is only bound after acceptance. 
 
 Avoiding Previous Agreement.— Bullitt v. Methodist Church, 1856, 2 
 C 108. A voluntary assignee cannot avoid a previous invalid assignment 
 .since he stands only in the shoes of the debtor as to -whom it is valid. 
 
 Deed of Separation, -when.— Hitner's Ap., 1867, 4 S. 110. Deeds for 
 separation of husband and wife are valid and effectual both at law and in 
 <;quity, provided their object be actual and immediate and not for a contin- 
 gent or future separation. 
 
 Mortgage— Exercise of Po-wer- Corporation.— McCurdy's Ap., 1870, 
 15 S. 290. A mortgage executed by the directors of a corporation to a trus- 
 tee, is a valid exercise of a power given a corporation to make a mortgage. 
 
 lb.— Leasehold.— Bismark Building Asa'n v. Bolster, 1879, 11 N. IS.*?. 
 A mortgage of personalty (a leasehold) must be followed by possession to 
 be valid against creditors. 
 
VALID — VALIDITY. 613 
 
 lb.— Power of Sale.— Bradley v. Cheater Valley E. R. Co., 1860, 12 C. 
 141. A power of sale in a mortgage is valid, and if the mortgage is given 
 to one iu trust for bond holders, these latter stand in the relation of cestui 
 que irusient, and may iu equity ask that the trustee be compelled to execute 
 the power. 
 
 lb.— Wife's Eeal Estate.— Jamison v. Jamison, 1838, 3 Wh. 457. A 
 mortgage of a wife's real estate signed and properly acknowledged by both 
 husband and wife, is valid even when given for the husband's debt. 
 
 Trust— Appointment of Trustee— Power.— Ashhurst's Av., 1875. 27 
 S. 464, S. C. 1 W. N. C. 410, 22 Pitts. L. J. 171, 7 Leg. Gaz. 173. An un- 
 married woman conveyed her estate to trustees to collect the income and 
 pay it to her or her appointee during her life and if she should marry to 
 pay it to her for her separate use, and at her death to convey the principal 
 to her appointees, if any, otherwise to those entitled under the intestate 
 laws. Seld that the trust vpas a valid one and was not determined by her 
 marriage and the death of her husband. 
 
 lb.— For Minors, when.— Hughes' Est., O. C. 1879, 7 W. N. C. .539. A 
 trust in favor ot minors and upon the youngest reaching twenty-one years 
 of age, to be settled in such a way that the share of each shall be his or her 
 sole and separate use is valid. 
 
 lb.— Jurisdiction, Common Pleas— Will.— Norris v. Farrell, C. P. 1876, 
 2 W. N. C. 423. The common pleas has no jurisdiction of a bill filed to de- 
 termine what trusts created by a will are valid, and whether or not they 
 are charged on the land. 
 
 lb.— Snendthrift — Subsequent Creditors of Settlor.— Andress v. 
 Lewis, C. P. 1886, 43 Leg. Int. 56, S. C. 17 W. N. C. 270, 1 Pa. C. C. E. 293. 
 Where a spendthrift trust is created for the grantor for life, then for his 
 wife and children, it is valid as to those in remainder against subsequent 
 creditors of the settlor. 
 
 See Accumulation, p. 9 ; Deed, p. 157. 
 
 L Assignments foe Ceeditoes. 
 IL Claim, Lunatic Dbbtoe — Deed. 
 
 III. Insurance Policy. 
 
 IV. Mortgage. 
 
 V. PosT-NuPTiAL Settlements, 
 VI. Teusts. 
 
 I. Assignment for Creditors. 
 
 Foreign— Extent of Validity.— Smith's Ap.. 1883, 8 Out. 381. A vol- 
 antary assignment for creditors made in another State is good against all 
 creditors with actual notice even before recorded in the counties of this 
 State where the assignor has property. 
 
 Independent of Statute. — Beck v. Parker, 1870, 15 S. 262. A volun- 
 tary assignment for creditors does not depend for its validity on any 
 statute. 
 
 Lex Loci Contractus. — Law v. Mills, 1851, 6 H. 185. The validity of 
 B voluntary assignment for creditors is to be tested by the lex loci con- 
 tractus. 
 
 When Effective Against Attaching Creditors.— Davis v. Wollerton, 
 C. P. 1876, 2 W. N. 0. 428. ■ An assignment for creditors has no validity 
 against attaching creditors until delivered or put in course of transmission 
 to the assignee. 
 
*>14 VALIDITY. 
 
 II. Claim, L,unatic I>et>tor — Deed. 
 
 Claim — ^Ascertaiumeut. — liogers's Ap., 1888, 4 Crum. 178. It is the 
 undoubted right of a lunatic debtor as well as his creditor to have the 
 validity of the claim and its amount ascertained by dno course of law. 
 
 Deed — Fraud — Bemedy. — Girard Nat. Bank of Phila. v. Maguire, C. P. 
 1882, 39 Leg. Int. 168. The validity o£ a deed alleged to be fraudulent as 
 to creditors can be tested by a sheriff's sale and an action of ejectment, so a 
 bill in equity will not lie, there being an adequate remedy at law. 
 
 III. Insurance Policy. 
 
 Assessment-Estoppel — Assessment — Validity of Policy. — Somer- 
 set Ins. Co. V. Lepley, 1862, 3 Luz. L. Obs. 52. Where a mutual insurance 
 company lays an assessment on the note of a member who has suffered a 
 loss (whicli is known to the company), it is estopped from denying the 
 validity of his policy. 
 
 Conditioned on Signing — Estoppel. — Universal Fire Ins. Co. V. Block, 
 1885, 4 Leg. Int. 46. Where it is expressed in an insurance policy that it 
 is not valid "until countersigned by A. B.," the company is estopped from 
 contesting the validity of a policy thus countersigned in the hands of one 
 who has paid the premium in good faith to A. B. 
 
 IV. Mortg-ag-e. 
 
 Conditions of. — Gamer V. Henry, 1837, 6 W. 57. A mortgage to secure 
 future advances must contain all the information requisite to enable one 
 acting with ordinary diligence to ascertain the extent of the emcum- 
 brance. 
 
 Consideration. — Pearce et ux. v. Wilson et al., 1885, 1 Amer. 14. A 
 mortgage whose consideration in whole or in part is the stifling of a prose- 
 cution for a conspiracy to defraud, and for embezzlement as a bank oflScer is 
 void. 
 
 Debt Due. — Stewart v. Stocker, 1832, 1 W. 135. A valid mortgage may 
 be given for a debt due or to protect against a contingent liability or to secure 
 future advances. 
 
 Endorsement of Notes. — Lyle v. Ducomb, 1813, 5 Bin. 585. A mortgage 
 given to secure one who is to give notes in the future is valid against subse- 
 quent encumbrancers, and also protects the mortgagee on his endorsement 
 of other notes although the agreement to extend the mortgage to cover the 
 endorsement of notes was made after the second encumbrance attached. 
 
 National Bank.— Woods v. Peoples' National Bank, 1876, 2 N. 57. A 
 mortgage to secure future advances given to a national bank is ultra mrest 
 and therefore void. 
 
 Turehase of— Estoppel.— McCullongh v. Wilson, 1853, 9 H. 436. Where 
 the mortgagors (husband and wife) induce one to purchase the mortgage, 
 they are estopped from afterwards setting up that it was invalid. 
 
 To Secure Husband's Debt.— Hammett v. Bull, C. P. 1870, 18 Pitts. L. 
 J. 169, S. C. 27 Leg. Int. 41, 8 Phila. 39. A mortgage given by a wife ta 
 secure a debt due by her husband will be invalid if the creditor has not 
 acted' in good faith with her. 
 
VALIDITY. 615 
 
 TJnreoorded— Interest Never Paid.— McCruden's Est., D. C. 1878, 35 
 Leg. Int. 153, S. 0. 12 Phila. 69. An unrecorded mortgage twenty-five 
 years old found among the papers of a decedent on -which no interest was 
 ever demanded or collected, will not be enforced. 
 
 lb.— Trust— Knowledge of Cestui Que Trust.— Murphy v. Nathans, 
 1864, 10 Wr. 508. Where a mother purchases land and takes title in the 
 name of her daughter if the land he subject to an unrecorded mortgage of 
 which the daughter had knowledge but not the mother, the mortgage will 
 continue a lien on the land. 
 
 lb. — ^Levinz v. "Will, 1788, 1 D. 431. A mortgage not recorded within sdx 
 months ia nevertheless good against the mortgagor. 
 
 Who May Attack.— Glass v. Gilbert, 1868, 8 S. 266. The validity of a 
 mortgage and proceedings thereunder cannot be questioned by one not con- 
 nected with the mortgagor's title in any manner. 
 
 "V. Post-Nuptial Settlements. 
 
 When Sustained. — Coates v. Gerlach, 1863, 8 Wr. 43; Equity will sus- 
 lain contracts U° tliis case a deed) between husband and wife, making a 
 reasonable provision for the latter, if not in fraud of creditors. 
 
 lb. — Townsend v. Maynard, 1863, 9 Wr. 198. A reasonable settlement 
 bv a solvent husband on his wife will be sustained. 
 
 "lb.— Campbell's Ap., 1876, 30 S. 298. For a post-nuptial settlement to 
 be binding, it most be unexceptionable on equitable grounds, and the case 
 must contain such elements of equitable estoppel as would result in an in- 
 jury to some interested party. 
 
 When Avoided.— Hammett v. Hammett, 1876, 3 W. N. C. 189. A post- 
 nuptial settlement made by a wife in favor of her husband, will be avoided 
 in equity upon the death of the latter unless supported by some equitable 
 considerations or statutory provisions. 
 
 "VI. Trusts. 
 
 When Cannot be Created— Creditors.— Mackason'sAp., 1862, 6Wr. 
 332, S. C. 3 Luz. L. Obs. 145. One sui juris cannot, as against creditors, 
 settle his property in trust for himself for liie and over to his appointees or 
 heirs in fee. 
 
 lb.— Heermans v. Hill, 1884, 3 Kulp 14. One cannot create a trust in 
 favor of himself which will be valid against creditors. 
 
 When May be Created— Creditors.— Holdship v. Patterson, 1836, 7W. 
 347. A trust may be created which cannot be touched by the creditors of 
 the cestui que trust. 
 
 When Fund May be Attached.— Miller v. Duncan, 1868, 3 Pears. 32, 
 S. 0. 1 Leg. Op. 13. A devise to one in trust for his family and after his 
 death to his children, the fund not to be liable for his debts, may be at- 
 tached in the hands of the trustee (the father) after the death of his wife 
 and children. 
 
 When Will be Protected.- Norris v. Johnston, 1847, 5 Barr, 287. 
 Equity will protect a trust which protects one from his own improvidence. 
 
616 
 
 VENDEE. 
 
 See Conditional Verdict, p. 114 ; Ejectment, pp. 169-174; Equitable 
 Estate, pp. 187-190; Laches, p. 312; Maeketablb Title, p. 322; 
 Mortgage (personal liability of vendee), pp. 360, 361; Specific Pee- 
 
 FOBMANCE, p. 505. 
 
 Action Against, for Purchase Money — Defense — Failure of Con- 
 sideration. — McKeen v. Beaupland, 1860, 11 C. 488. A vendee who has 
 received title, and parted viith part of the land, cannot set up failure of 
 consideration against an action for the purchase money. The defense is 
 equitable, and since the vendee has precluded himself from putting the 
 vendor in statu quo, he cannot set it up. 
 
 Advances to— What Constitutes a Mortgage.— May v. Fepler, 1874, 
 6 Leg. Gaz. 196. An agreement under which one advances to a vendee 
 under articles, the money with which to complete the purchase, and as 
 security for repayment takps title in his own name, constitutes a mortgage. 
 
 Cloud on Title — Rescission. — Kostenbader v. Spotts, 1876, 30 S. 430. A 
 vendee who has paid part of the purchase money which he wishes to recover 
 on the ground that the title is unmarketable, must show greater clouds 
 upon the title than he would be obliged to were he defending against spe- 
 cific performance. 
 
 Conveyance by, Under Articles— Vesting of Legal Title— Trust. — 
 Taylor v. Preston, 1875, 29 S. 436. A vendee under articles who had con- 
 veyed his interest to another, afterwards received a conveyance of the legal 
 title. Keld, that his title was that of a trustee merely and that it was not 
 bound by judgment. 
 
 Damages— Failure of Title.— Wacker v. Straub, 7 N. 33. A vendee 
 may set off damages sustained by a failure of title to part of the tract against 
 a suit on the mortgage for the purchase money, but cannot set off interest 
 on those damages if he has continued iu possession. 
 
 Defalcation Against Unpaid Purchase Money.— Weakland v. Hoff- 
 man, 1865, 14 Wr. 513. A vendee who lias been kept out of possession by 
 holders under an adverse title may defalcate against the unpaid purchase 
 money injury done to the property by these intruders. 
 
 Defence— Ifjectment-Outstanding Title.— Congregation ». Miles, 1835, 
 4 W. 146. A vendee in possession, under articles of agreement, cannot set 
 up an outstanding title as a defense to an action of ejectment to compel the 
 payment of the purchase money. 
 
 lb.— Equitable— Neglect.— Russell v. Baughman, 1880, 13 N. 400. A 
 grantee of mineral rights cannot set up an equitable deience to an action of 
 ejectment, when for fifteen years he has neglected to perform his part of the 
 contract, and so complete his title. 
 
 lb.— Equitable Ejectment— Articles of Sale.— Piper ?>. Sloneker,l853, 
 2 Gr. 113. A vendee who has defeniled an equitable ejectment by relying 
 on the articles of sale, cannot afterwards set up that the articles were previr 
 onsly rescinded. 
 
 Dispossessed— Ejectment by— Profits. — Heft v. McGill, 1846, 3 Barr. 
 256. A vendee, uuder articles, being improperly dispossessed, may bring 
 ejectment without tendering the balauce due, and may set off the profits of 
 the estate received by the vendor against that amount. 
 
 Ejectment by — Balance of Purchase Money.— Chase v. Irvin, 1878, 6 
 N. 286. Where a vendor intrudes upon the laud of his vendee and sets up 
 an adverse title, the vendee may bring ejectment without first tendering the 
 balance of purchase money, and the court will do justice by means of a con- 
 ditional verdict. 
 
VENDEE. 617 
 
 rb.— Damages.— Walker v. France, 1886, 2 Am. 203. In an equitably 
 ? ,i'l'\,-° ^J^'^'^'nent, the vendee, in a case where the vendor is unable to 
 lulhi his contract, -will be given damages. 
 
 r, ^J'-TT^^^'^iff's— Buildiag Association.— Fredericks ». Corcoran, 1882, 4 
 Out. 413. A building association loaned money to A. by completing a pur- 
 chase for him and taking title as security. The sheriff's vendee of A.'s in- 
 terest brought ejectment against the association. Held that he was entitled 
 to an absolute verdict. 
 
 ^~^^^^^^ ^^' ^®fore Bringing Ejectment.— Baum v. Dubois, 1862, 
 7 Wr. 260. "Where a vendor, under articles of agreement, has subsequently 
 sold and conveyed the land to another, the first vendee is not bound to 
 tender the purchase money before bringing ejectment for the land. 
 
 Equitable Ejectment Against— Articles of Sale.— Piper v. Sloneker, 
 1853, 2 Gr. 113. A vendee who has defended an equitable ejectment by re- 
 lying on the articles of sale, cannot afterwards set up that the articles were 
 previously rescinded. 
 
 Equitable Estate of— Under Articles— Descent.— Vincent v. Huff, 
 1833, 8 S. & E. 381. The equitable estable of a vendee under articles follows 
 legal estates in manner of descent. 
 
 lb.— Lien— Mortgage.— Campbell's Ap., i860, 12 C. 247. A lien on the 
 equitable estate oi a vendee is postponed to a purchase money mortgage, 
 given at the time the conveyance is executed. 
 
 Equitable Title— Insurance.— Ashland v. Fire Ins. Co., 1888, 45 Leg. 
 Int. 63. An equitable title acquired by means of articles of agreement, 
 renders the vendee the owner of the property so far as the insurance is con- 
 cerned. 
 
 Estoppel — Covenant to Discharge a Mortgage— Sheriff's Sale.^ 
 "Williams v. Mullan, 1856, 1 Crum. 337. A vendor who has covenanted to 
 discharge a mortgage which he did not do, but on the other hand gave 
 notice of it at a sheriff's sale of the property on a judgment against his 
 vendee, at which sale he became the purchaser, is not estopped from 
 coming in on the lund by proving certain claims which he had against the 
 vendee. 
 
 Executors and Administrators — Purchase from.— Painter v. Hender- 
 son, 1847, 7 Barr, 48. A purchased property of an administrator ; ten 
 months later the administrator bought the property from A for his own use. 
 There was no evidence of collusion. Held, that the administrator had a 
 good title. 
 
 lb. — Silverthoru v. MoKinster, 1849, 2 J. 64. An executor may purchase 
 for himself from his own vendee, there being no fraud, and the fact that he 
 pays in the notes given by that vendee ou the first sale, does not alter his 
 standing. 
 
 Fraud by.— Bleakley's Ap., 1870, 16 S. 187. The vendee of land under 
 articles had a judgment entered against him. He then assigned the articles, 
 antedating the assignment in order to defeat the judgment. The assignee 
 paid the balance of the purchase money. The judgment creditor thea 
 brought suit against the original vendor lor specific ]3erformance. The as- 
 signee resisted the bill on the ground that he should be subrogated to the 
 vendor's rights and not lose the balance he had paid. This was denied on 
 the ground that subrogation is a mere equity and will not be extended to 
 one implicated in fraud. 
 
 Ground Kent.— Penna. Co. V. Lynch, 1879. 6 W. N. C. 446. A vendee 
 under a ground rent deed, who has covenanted to build and has commenced 
 building, will be enjoined from removing the foundation, etc. 
 
 Husband and Wife— Trust.— Hall v. Vanness, 1865, 13 Wr. 457. A 
 vridow who surrendered a contract for the purchase of land entered into by 
 
618 VENDEE. 
 
 her hnsband and took a new one in her own name, is a trustee for the heirs 
 ol" the husband ; and one purchasing from her with knowledge of these facta 
 takes subject to the trust. 
 
 Incumbrance— Eecovery of Value — JRemoval.— Funk v. Voneida, 
 1824, 11 S. & ii. 109. It seems that a grantee with wairauty, in an action 
 against the grantor who had mortgaged the premises, -will be allowed to re- 
 cover the value of the inenmbrauce, and that, before any breach has oc- 
 curred by eviction, because chancery of a bill quia timet would give specific 
 performance, by making the warrantor remove the incumbrance, and our 
 courts do equity through legal forms. 
 
 Injunction— Ground Rent — Covenant to Build. — Penna. Co. v. Lynch, 
 C. P. 1879, 6 W. N. 0. 446. A vendee under a ground rent deed, vpho has 
 covenanted to build and who has commenced building, will he enjoined 
 from removing the foundation, etc. 
 
 Xb. — Covenant Not to Build. — Penna. R. E. Co. v. Pittsburgh Elevator 
 Co., 1865, 14 Wr. 499. A vendee who has covenanted in the deed rot to 
 build beyond a certain line, will be restrained by injunction from violating 
 the agreement. 
 
 lb.— Sheriff's Distress.— Williams v. Flood, C. P. 1875, 1 W. N. C. 199. 
 An injunction will not be granted to restrain a sheriff's vendee from levying 
 a distress for rent against the defendant who has remained in possession. 
 
 Insurance — Disclosing of Interest. — Reynolds v. State Ins. Co., 1856, 
 2 Gr. 326. A vendee under articles, in insuring, must disclose his interest 
 and cannot insure for more than the amount of the purchase money paid. 
 
 Judgment — Against One of Several Vendees. — Arnold v. Cessna, 1855, 
 1 C. 34. A judgment in an equitable ejectment against one of two vendees, 
 under articles, will have no effect upon the equitable title of the one not 
 sued. , 
 
 lb.— Against Equitable Estate.— Waters's Ap., i860, 11 C. 523. A 
 judgment against the equitable estate of a vend ee under articles attaches 
 to, and binds the legal estate immediately upon the deed being delivered. 
 
 lb. — By Vendee to Vendor— Priority.— Zeigler's Ap., 1871, 19 S. 471. 
 A judgment given by the vendee to his vendor for the purchase money, is 
 preferred to prior liens upon the vendee's equitable estate. 
 
 lb. — Eifect — Under Articles. — Episcopal Academy v. Frieze, 1833, 2W. 
 16. A judgment against a vendee under articles binds only his equitable 
 interest, and a subsequent conveyance of the legal title to him " subject to 
 the purchase money" continues the grantor's first claim to that amount. 
 
 lb,— lb. — Priority. — Foster's Ap., 1846, 3 Barr, 79. A judgment binds 
 the estate of one having articles for the conveyance of land, and if the land 
 is subsequently conveyed, the judgment binds the legal estate and will be 
 prior to a purchase money mortgage which the vendor has failed to record 
 within the sixty days allowed. 
 
 Judgment and Execution— Effect of— Against Either Vendee or 
 Vendor. — Catlin v. Robinson, 1834, 2 W. 373. Where land has been sold 
 rander articles, a judgment and execution issued against either the vendor 
 or the vendee binds only the interest of each respectively, and a sale there- 
 under does not affect the title of the other. 
 
 I'b.— lb.— Against Both Vendee and Vendor.— Chahoon v. HoUen- 
 back, 182G, 16 S. & R. 425. Judgments against vendor and vendee respec- 
 tively bind the rights of each in the land, whether legal or equitable. 
 
 Judgment Creditor— Lien.— Couser's Ap., 1881, 1 Penny. 128; S. C. 11 
 W. N-. C. 220; 29 Pitts. L. J. 394. A judgment creditor who has obtained 
 a second lien after his vendor has conveyed one of two tracts bound by a 
 first lien has no claim to subrogation against the purchaser of the first 
 tract. 
 
VENDEE. 619 
 
 Mesne Profits.— Wykoff «. Wykoff, 1843, 3 W. & S. 481. Where a vea- 
 ■dee of laud has been put in possession agreeably to the terms of the sale and 
 has paid part of the purchase money, and afterwards the vendor takes pos- 
 session) of it and uses it without the consent of the vendee, he or one to 
 whomi he sells the laud a second time is chargeable at the action of the 
 vendee with the rents, issues and profits as long as he holds or uses tlie 
 same ; and such profits will be applied to satisfy any balance of purchase 
 money remaining due under the first contract. 
 
 Blisrepresentation as to Value.— Cummings'sAp., 1871, 17 S. 404. 
 Equity will not relieve against a contract, where the only misrepresentation 
 alleged is as to the value of land, there being no more confidential re- 
 lation than arises from living in the same house. 
 
 Mortgage— Covenant to Discharge— Sheriff's Sale— Estoppel.— See 
 Williams v. Mullan, ante p. 617. 
 
 Mortgage— Under and Subject to Clause — Liability.— Samuel v. Pey- 
 ton, 1879, S. C. 7 N. 465. 6 W. N. C. 476. "Where the original grantee of 
 premises had an agreement vrith the mortg.igee that the former was not to 
 be personally liable on the mortgage, no subsequent grantee becomes per- 
 sonally liable even to his immediate grantor by reason of the clause "under 
 iind subject to a mortgage." 
 
 lb.— lb.— Certificate of no Set-Off.— Taylor v. Mayer. 1880, S. C. 12 
 N. 42, 8 W. N. C. 332, 12 Lane. B. 46. A grantee who takes under and 
 subject to a mortgage does not make the debt his own by afterward giving 
 SI certifica.te of no set-off to one about to buy the mortgage. 
 
 lb.— lb.— Parol Evidence.— 1879, S. C. 9 N. 78, 7 "W. N. C. 425. Before 
 the act .Tune 13, 1878, parol evidence was admissible to prove that a grantee 
 "under and subject" to a mortgage, expressly assumed it as his debt al- 
 thorrgb the deed to his grantor did nob contain the clause " under and sub- 
 ject," eta. 
 
 lb. — ^What Constitutes a— Advances to Vendee.— See May v. Fepler, 
 ante p. 616. 
 
 lb.— Personal Liability of Grantee.— Davis's Ap., 1879, S. C. 8N. 273, 
 7 W. N. C. 337, affirming 4 W. N. C. 103. Where a deed recited a consid- 
 eration of 114,000, without mentioning a mortgage and was accompanied 
 with a separate agreement by the vendor reciting that the vendor had con- 
 veyed for $3,000, a lot subject to a mortgage of ^1,000 and agreeing that the 
 mortgage should not be sued out for five years, the grantee is not personally 
 liable on the mortgage. • 
 
 Property of Partnership— Land.— Abbott's Ap., 1865, 14 Wr. 234. 
 Laitd bought with partnership money for partnership purposes is partner- 
 ship property though the legal title is in the partners as tenants in 
 common. 
 
 lb. — lb. — Jones's Ap., 1871, 30 S. 169. Land was purchased by partners 
 for firm business and paid for by firm money but the deeds conveyed the 
 land to them as tenants in common. Meld, that the legal title was in them 
 as tenants in common and not in the partnership. 
 
 lb.— Purchase Money— Postponment of Lien.— See Campbell's Ap., 
 ante p. 617. 
 
 lb.— lb.— Agreement.— Fessler's Ap., 1874, 35 S. 483. A vendee agreed 
 •with a third party, that the latter should pay the balance of the purchase 
 money and take the title a^ security until repaid for his advances. Held, 
 to be a mortgage of the vendee's equitable estate. 
 
 lb.— lb. — Application. — Powers i:. Tnscarora Academy, 1848, 8 Barr, 
 ■297. A sherift's vendee is concluded by a decree which distributes funds to 
 •subsequent liens, the auditor having reported that it was agreed that a 
 ■mortgage should remain ; and a volunteer under him stands in his shoes. 
 
630 VENDEE. 
 
 It is a sheriff's vendee's business, since the act of 1830, to look to the appli- 
 cation of the purchase money in court. 
 
 Non-Performance. — Hill v. Oliphant, 1861, 5 Wr. 364. In ejectment by 
 a vendee under an equitable title, plaintiff received a conditional verdict, 
 but not performing the condition, judgment was entered for defendant. 
 Seld conclusive. 
 
 Oral Contract— Action on— Specific Performance. — Messon v. Kaine, 
 1869, 13 S. 335. In an action by a vendee against a vendor on an oral con- 
 tract concerning land, the jury cannot give a conditional verdict to be re- 
 leased on delivery of a deed and thus specifically enforce the agreement. 
 
 Out of Possession. — Weakland v. Hofi'man, 1865, 14 Wr. 513. A vendee 
 who has been kept out of possession by holders under an adverse title, may 
 defalcate against the tinpaid purchase money injury done to the property by 
 these intruders. 
 
 Outstanding Title— Estoppel — Grantees of Same G-rantor. — Smiley 
 V. Dixon, 1830, 1 P. & W. 439. There is no such privity between tuo 
 grantees of adjoining tracts from the same grantor, as estops one, after run- 
 ning a boundary line with the other, from acquiring an outstanding title to 
 he whole. 
 
 Overpayment by — Surplus — Specific Peformance.— Ake's Ap., 1873. 
 24 S. 116. The orphans' court within its limited jurisaiction is a court of 
 equity as to principles and practice ; but it is not possessed of that general 
 equity jurisdiction which permits it, when once rightfully possessed of a 
 cause, to make a complete end of the controversy. Therefore, in decreeing 
 specific performance i t cannot, in case the vendee has overpaid the vendor, 
 order the surplus to be repaid. 
 
 Parol Contract— Preliminary Decree. — Whetham v. Clyde, C. P. 187o, 
 1 Camp. 53, S. C. 2 Leg. Gaz. 109. Equity will not protect, by a prelimi- 
 nary decree, one who claims title to land under a parol agreement, it not be- 
 ing clearly shown that part of the purchase money was paid or that there 
 was fraud. 
 
 Parting With Land— Failure of Consideration. — McKeeu r. Beaup- 
 land, 1860, 11 C. 488. A vendee who has received title, and parted witli 
 part of the land, cannot set up failure of consideration against an action 
 for the purchase money. The defence is equitable, and since the vendre 
 has precluded himself from putting the vendor in statu quo, he cannot set 
 it up. 
 
 Purchasing Outstanding Title. — Stephens v. Black, 1874, 27 S. l:;-^- 
 A vendee under articles who buys in an outstanding title may set off the 
 amount he pays for it against the balance of the purchase money, but can- 
 not set up this title as a defence to the action without first renouncing his 
 claim under the vendor. 
 
 Piifflng— Orphans' Court Sale— When Vendee's Right Not Affected 
 
 by. — Backintoss D. Stabler, 1859, 9 C. 251. Although the employment of 
 a puffer at an orphans' court sale of land is ground to set aside the sale, yet 
 it will not affect the right of the vendee after confirmation, receipt of the 
 deed, and possession taken. 
 
 Eelease- Recovery Against Prior Vendee.— Paxton v. Harrier, 1849, 
 1 J. 312. A mortgagee whi) has for a valuable consideration released a 
 vendee of the mortgagor of part of the tract mortgaged, cannot recover 
 against a prior vendee of another portion of the tract. 
 
 Sale— By Judgment Creditors— Priority. — Auwerter v. Mathiot, 
 1823, 9 S. & R. 397. 'The equitable estate of a vendee under articles may 
 be sold by his judstraent creditors, and the latter's claim to the proceeds is 
 better than that of the vendor. 
 
 lb.— Account— Sheriff's Vendee— Notice.— Wylie's Ap., 1879,9 N. 210. 
 
VENDEE. 621 
 
 A partner who has sold out to his copartner, has no right to an acconnt 
 ^vith the sheriff's vendee of the latter's interest on the ground that the full 
 price of his Interest has not been paid, he having given no prior notice of 
 his claim. 
 
 lb.— Under Judgment Against Vendee— Equitable Estate.— Vier- 
 heller's Ap., 1854, 12 H. 105. A sale under a judgment against a vendee 
 under articles passes only his equitable estate, unless the judgment he by 
 the vendor for the purchase money when the sheriff's vendee obtains a clear 
 title. 
 
 Set— Off.— Heft !). McGill, 1846, 3 Barr, 256. A vendee, under articles, 
 being improperly dispossessed, may bring ejectment without tendering the 
 balance due, and may set off the profits of the estate received by the ven- 
 dor against that amount. 
 
 lb.— Purchasing Outstanding Title.— Stephens v. Black, 1874, 27 S. 
 1.38. A vendee under articles who buys in an outstanding title may set 
 off the amount he pays for it against the balance of the purchase money, 
 but cannot set up this title as a defense to the action without first renounc- 
 ing his claim, under the vendor. 
 
 Sheriff's Sale.— Equitable Interest of.— Bradley v. O'Donnell, 1858, 8 
 C. 279. A sheriff's sale of the equitable interest in land of a vendee under 
 articles, passes only that vendee's interest, though the judgment on which 
 it is sold be one recovered on a note given by him for part of the purchase 
 money. Such sale does not affect the vendor's title. 
 
 lb. — Interest of. — Kuntzler «. Bick,1881, 1 Penny. 500. As against a 
 purchaser at sheriff's sale of a, vendee's interest it takes the most explicit 
 proof to turn that interest into that of a mortgage. 
 
 Sheriff's Vendee — ^Account Against. — See Wylie's Ap., ante p. 620, 621. 
 
 lb.— Distress— Injunction.— Williams v. Flood, C. P. 1875, 1 W. M. C. 
 199. An injunction will be granted to restrain a sheriff's vendee from 
 levying a distress for rent against the defendants who has remained in 
 possession. 
 
 lb.— Of Lease.— Kemblev. Graff, D. C. 1867, 24 Leg. Int. 148, S. C. 6 
 Phila. 402. Equity will relieve a sheriff's vendee of a lease from forfeit- 
 ure thereunder. 
 
 lb. — ^Married Woman — Judgment Against. — Swayue v. Lyons, 
 1870, 18 Pitts L. J. 212. The title of a sheriff's vendee of a property sold, 
 under a judgment against a married woman in which her liability is ques- 
 tionable, is not marketable. 
 
 lb.— Mortgage — ^Application, Purchase Money. — Towers v. Tusearora 
 Academy, 1848, 8 Barr, 297. A sheriff's vendee is concluded by a decree 
 which distributes funds to subsequent liens, thei auditor ha,viug reported 
 that it was agreed that a mortgage should remain ; and a volunteer under 
 him stands in his shoes. It is a sheriff's vendee's business since the Act 
 of 1830, to look to the application of the purchase money in court. 
 
 Specific Performance— Tender of Deed.— Hall v. Holmes, 1846, 4 
 Barr. 251. In equitable ejectment to enforce performance by vendee, under 
 articles, a tender of a deed before suit brought is not necessary. 
 
 lb.— Oral Contract — Conditional Verdict. — Meason v. Kaine,1869, 13 
 S. 333. In an action by a vendee against a vendor on an oral contract con- 
 cerning land, the jury cannot give a conditional verdict to be released on 
 delivery of a deed and thus specifically enforce the agreement. 
 
 lb.— Vendor Signing Contract.— Smiths' Ap., 1871, 19, 474, S. C- 
 19 Pitts. L. J. 121. In a suit by the vendee for- specific performance for 
 the sale of land it is sufScient that the contract is signed by the vendor. 
 
 Trust Fund — ^Equity Following. — Kirkpatrick v. McDonald, 1849, 1 
 
622 VENDEE— VENDOR. 
 
 J. 387. A vendee under articles having a right of action against bis veu- 
 dbr for not conveying, assigned it in trust for plaintiff ; the trustee aftn- 
 wards assigned it to the son of the original vendee, who procured a convey- 
 ance from the original vendor, and also procured this claim to be applied 
 as part of the purchase money. Held, that equity would follow the tni.'-t 
 fund and enforce it against the land. 
 
 Unpaid Taxes.— Vanarsdalen's Ap.. 1877, 3 W. N. C. 463. A lieu for 
 unpaid taxes attaches to a fund in the hands of the sheriff, which fund lias 
 arisen from a sale of an equitable estate o£ a vendee under articles. 
 
 VENDITIOIVI EXPONAS. 
 
 Estoppel— Trustee.— Robins v. Bellas, 1834, 2 W. 359. A sheriff who 
 sells land on a venditioni exponas is not thereby estopped from setting up the 
 title in himself as a trustee of the defendant in the execution. 
 
 VENOOR. 
 
 See Ejectment, pp. 169, 170, 171 ; Husband and Wife {power of dis- 
 tribution) p. 245. 
 
 Agreement to Sell Complete Title.— Clark v. Martin, 1865, 13 Wr. 
 299. A vendor who agrees to sell a complete title when he has less thati 
 that, will, on his becoming possessed of the outstanding titles, be com- 
 pelled by decree to cimvey to his vendee, and this conveyance will enure 
 to the benefit of a mortgagee of the vendee. 
 
 lb.— Defeasance— Usury.— Paige v. Wheeler, 1879, 11 N. 283. In an 
 action on a paper which purports to be an agreement for the purchase of 
 land, the defendant may show by parol that it is but a deleasance to a 
 deed made by him the same day, and that the transaction was put into this 
 form to evade the usury laws. 
 
 Adverse Possession-r- Vendor Leasing.— Pepper v. Lodge, 1818, 4 S. 
 & R. 310. If the vendor convey the land and afterwards lease it, and his 
 lessee enters, the possession is adverse, and twenty-one years suffices to 
 give title. 
 
 Assignee — Recovery Against Vendor— Covenant. — Hamilton v. 
 Brown, 1851, 6 H. 87. Where a vendor has entered into a covenant to 
 convey, and the vendee has assigned his equitable title, and afterwards the 
 vendor conveyed to his vendee, the assignee cannot recover against the 
 vendor in a suit to his use on the covenant, although he had given notice to 
 the vendor of the assignment. 
 
 Bond— Purchase Money— Judgment.— Chew K. Mather, 1830, 1 P. & 
 W. 474. Where a vendor who has taken a bond for the purchase money, 
 but has not given a deed, enters j udgment thereon and sells the land and be- 
 comes the purchaser for an amount leas than the judgment, the entire judg- 
 ment is equitably extinguished. 
 
 lb.— lb.— Incumbrance.— Roland v. Miller, 1842, 3 W. & S. 390. In an 
 action on a bond given for purchase money for land, where the defendant 
 sets up that there is no incumbrance on it, it is proper for the jury to give a 
 verdict for the plaintiff and attach the condition that no execution shall 
 issue till the incumbrance is removed. 
 
 lb. — ^Ib. — Jackson v. Knight, 1842, 4 Wr. &S. 412. Where a vendor who 
 still holds the title and against whom a judgment has been recovered, sues 
 on a bond given for the purchase money, the proper practice is to direct a 
 conditional verdict for plaintiff, with stay of execution until the incum- 
 brance is removed. 
 
VENDOU. 623 
 
 nf*n?^**°?^^ Verdict-Action, Payment Purchase Money-Tender 
 Si.^^ , i;'^".''?" "■ ^^^' ^^'^'^' '^ Wr. 165. A vendor is entitled to a con- 
 ditional verdict in a suit to enforce payment of purchase money though he 
 has made no demand nor tendered a deed J' fc. 
 
 To^^""^"^,!"^®?? Against Vendor-Bond-Purchase Money.-See 
 Jackson v. Knight, supra p. 622. 
 
 lb.— Incumbrance— Jury.— See Roland v. Miller, supra p. 622. 
 
 Contract— Sale of Land— Judgment.— Siter's Ap., 185G, 2 C. 178. 
 Judgments recovered against one who has contracted to sell his land, bind 
 the land only to the extent of the unpaid purchase money; any surplus 
 which the land may bring at sheriffs sale goes to the equitable owner, the 
 vendee under the articles. 
 
 o ^Jj-r-Vendor's Trustee as Agent for Vendee.— Spencer's Ap., 1876, 30 
 b. 317. A trustee for a vendor acted as agent for the vendee. Reld that 
 equity vrould rescind the contract and restore the parties to their original 
 positions. * 
 
 Covenant by, to Convey— Kecovery on— Notice.— Hamilton v. Brown, 
 1851, 6 H. 87. Where a vendor has entered into a covenant to convey a,ud 
 the vendee has assigned his equitable title, and afterwards the vendor did 
 convey to his vendee, the assignee cannot recover against the vendor in a suit 
 to his use on the covenant, although he had given notice to the vendor of the 
 assignment. 
 
 Creditor of— Practice.— Page v. Sheriff, C. P. Bradford, 1879, 1 C. P. 
 Eep. 13. The owner of real estate, who has an equity to prevent the sale 
 of his land by a creditor of his vendor, must enforce it by a suit in equity, 
 he cannot intervene in the judgment. 
 
 Ejectment by— Burden of Proof— Title.— Stokiey v. Trout, 1834, 3 W. 
 163. Under an action of ejectment by a vendor under articles to compel 
 the payment of purchase money, it is not essential to the plaintiff's right to 
 recover that he should first show a perfect title to the land in himself ; it 
 lies upon the defendant to show a defect in the title. 
 
 lb.— Purchase Money— Instalment.— Hamm v. Beaver, 1857, 1 Gr. 448 
 A recovery in ejectment brought to enforce payment of an instalment of pur 
 chase money is conditioned on payment of that instalment only, and that 
 being done, the money is released, but not the whole title unless the pur- 
 chase money is paid in full. 
 
 Entering Land of Vendee.— Chase v. Irvin, 18i?8, 6 N. 285. Where a 
 vendor intrudes upon the land of his vendee and sets up an adverse title, 
 the vendee may bring ejectment without first tendering the balance of 
 the purchase money, and the court will do justice by means of a conditional 
 verdict. 
 
 Estoppel— Judgment Against Equitable Estate of Vendee— Cred- 
 itors. — Waters's Ap., 1860, 11 C. 523. A vendor having a judgment against 
 the equitable estate of his vendee, is estopped from setting it up against 
 subsequent judgment creditors, by reciting in his deed that the purchase 
 money has been paid and that he releases to the vendee all his estate, right, 
 title, interest, claim, etc. This is an estoppel in pais, not by deed. 
 
 lb.— Judgment on Bond— Subsequent Mortgages.— Pittsburgh Ins. 
 Co. 0. Groves, 1872, 3 Crum. 401. One who has sold land, the title being 
 taken by a wife, while the husband gave a bond for the purchase money, is 
 not estopped from claiming that his judgment on the bond binds the land 
 against a subsequent mortgagee in which mortgage both husband and virife 
 join. 
 
 Husband and Wife— Deed by Vendor to Husband— Bill to Quiet 
 Wife's, Title— Jurisdiction.— O'Neil v. Hamilton, 1863, 8 Wr. 18. A 
 daughter under the will of her father was entitled to land bought by him 
 
■634 VENDOK. 
 
 but not conveyed. She married, and the deed was made by the vendor to 
 her husband ; he sold the land to respondent, who had notice of all the 
 facts. She brought this bill, praying that her title be quieted, that respon- 
 dent be declared a trustee and be ordered to convey the legal title to her. 
 Held that the district court had equitable jurisdiction in the matter, and 
 that complainant was entitled to the relief asked. 
 
 Judgment. — Against Either Vendee or Vendor. — Catlin v. Eobin- 
 son, 1834, 2 W. 373. Where land has been sold under articles, a, judg- 
 ment and execution issued against either the vendor or the vendee binds 
 only the interest of each respectively and a sale thereunder does not aflfect 
 the title of the other, 
 
 lb. — Against Both Vendee and Vendor. — Chahoon «. HoUenback, 
 1826, 16 S. & E. 425. Judgments against vendor and vendee respectively 
 bind the rights of each in the land, whether legal or equitable. 
 
 lb. — Conditional Verdict. — See Jackson v. Knight, ante p. 622. 
 
 lb.— Vendee— Instalments.— Graft v. Kelly, 1862, 7 Wr. 301. Where a 
 vendor under articles, on the lailure of his vendee to pay the first instal- 
 ment of purchase money due, recovers judgment against him and becomes 
 purchaser of his estate at sheriff's sale, he cannot afterwards enforce pay- 
 ment of the balance of the purchase money from the vendee or his estate. 
 
 lb.— Taking Bond — Purchase Money.— Chew v. Mather, 1830, 1 P. & 
 W. 474. Where a vendor who has taken a bond for the purchase money, 
 but has not given a deed, enters judgment thereon and sells the land and 
 becomes the purchaser for an amount less than judgment, (he entire judg- 
 ment is equitably extinguished. 
 
 lb.— Unpaid— Purchase Money— Surplus, Sheriff's Sale.— Siter's 
 Ap., 1856, 2 C. 178. Judgments recovered against one who has contracted 
 to sell his land, bind the laud only to the extent of the unpaid purchase 
 money; any surplus which the land may bring at aherift's sale goes to the 
 equitable owner, the vendee under the articles. 
 
 Jury— Conditional Verdict— Incumbrance. — See Roland v. Miller, 
 
 <iniep. 622. 
 
 Legal Title — Ejectment. — Thomson v. Carpenter, 1846, 4 Barr 132. — 
 A vendor of real estate, under articles stipulating for the payment of the 
 parchase money by instalments, may make use of the legal title, to com- 
 pel performance of the articles by an ejectment and conditional verdict. 
 
 Lien for Loan to Vendee. — Wright v. Craighead, 1877, 4 W. N. C. 51. 
 A vendor obtained on his own credit a loan for his vendee, which under 
 the agreement was to be a lien on the land. Held, that this was so near 
 the same thing as a lien for the purchase money that in an ejectment 
 brought, the chancellor would so consider it. 
 
 Lifetime of— Three years after Decease.— Foster's Est., 1889, 46 Leg. 
 Int. 17. Specific performance is not granted of right, bnt of grace- and 
 where no steps had been taken by the purchaser during the lifetime of the 
 vendor nor for three years after the latter's decease, the decree was refused 
 
 Mistake of —Improvements.— Willis v. Swartz, 1857, 4 C. 413. A 
 vendor who selling part of a larger tract, stakes it off, cannot after it is 
 built upon, recover back an excess included by his own mistake. 
 
 Outstanding Title.— Congregation v. Miles, 1835, 4 W. 146. A vendor 
 in possession under articles of agreement cannot set up an outstanding title 
 as adefence to an action of ejectment to compel the payment of the purchase 
 money. * 
 
VENDOE. 625 
 
 Purchase Money— Evidence.— Huber v. Burke, 1824, 11 S. & E. 238. If 
 the vendor ot land under articles sues for the purchase money before posses- 
 sion IS delivered, such action is a like bill in equity, and under the plea of 
 payment may be given in evidence every circumstance that would influ- 
 ence a chancellor on a bill for specific perlormance. 
 
 i-'^^'T?''^'^^**^^® Lien.— Irvine V. Campbell, 1813, 6 Bin. 118. The vendor 
 of land has an equitable lien for the purchase money against the purchaser 
 and all claiming under him with notice. 
 
 lb.— Unpaid.— Lentmyer v. Mittomer, 1847, 5 Barr, 403. Unpaid pur- 
 chase money is not a lien on land in Pennsylvania, unless issued by some 
 of the common forms of encumbrance. 
 
 lb.— Mortgage- Balance.— Wolfe's Ap., 1885, 42 Leg. Int. 436. S. C. 
 16 W. N. C. 251. Where a vendor has passed his whole title to his vendee, 
 and has taken a mortgage for part of the purchase money, he may, upop 
 afterwards buying in the property under the mortgage for less than the 
 amount of the mortgage, recover the balance from his former vendee. 
 
 Representations— Fraud— Confidential Relation.— Babcock v. Case, 
 1869, lis. 427. The vendor of land (situate thirty miles from the place of 
 the sale) represented to the vendee that the title was godd, and tha't 
 vendee would have to take his word for it. Beld that the relation was one 
 of trust and confidence, and that the vendor was bound to represent the 
 facts as they existed. In general, a plaintiff is not entitled to a rescission 
 of an executed contract on the ground of fraud, without first tendering a 
 restoration of the consideration, but this is not necessary if the consideration 
 be worthless. 
 
 Selling Under Articles of Agreement.— Baum v. Dubois, 1862, 7 Wr. 
 260. Where a vendor, under articles of agreement, has subsequently sold 
 and conveyed the land to another, the first vendee is not bound to tender 
 the purchase money before bringing ejectment for the land. 
 
 Severability — ^Vendor's Consent. — Temple d. McConkey, 1857, iCrum. 
 367. A vendee, under articles, of three lots cannot without the vendor's 
 consent sever the contract, therefore his vendee of one of the lots cannot 
 compel specific performance against the original vendor. 
 
 SUent— Improvements— Estoppel.— Quay v. Hartman, C. P. Chester, 
 1879, 1 Ches. Co. Eep. 486. A vendor who permits his vendee to rent to 
 one who makes extensive improvements, is estopped, on rescinding the con- 
 tract of sale, from interfering with the lessee. 
 
 Specific Performance. — Larison v. Burt, 1842, 4 W. & S. 27. A vendor 
 who is not in default and who cannot be put in statu quo is entitled to specific 
 performance. • 
 
 lb.— Good Faith— Title.— Moss v. Hamon, 1851, 5 H. 379. Specific 
 performance of a contract for the sale of lands will be decreed on the appli- 
 cation of the vendor, if he is able to make a good title at any time before 
 the decree is entered, unless he made the contract in bad faith knowing that 
 he had no title and no means of acquiring it. 
 
 lb.— Title Clear Before Suit.— Moronly v. Townseud, D. C. 1864, 21 
 Leg. Int. 37, S. C. 5 Phila. 357. Where a vendor sues for specific perform- 
 ance, he cannot recover unless his title was "clear" before suit brought. 
 
 lb.— Signing Contract.— Smith's Ap., 1871, 19 S. 474, S. C. 19 Pitts. 
 L. J. 121. In a suit by the vendee for specific performance for the sale of 
 land, it is sufScient that the contract is signed by. the vendor. 
 
 Supplemental Bill by.— Winton's Ap., 1881, 1 Out. 385. Where on a 
 bill by a vendor, equity has obtained jurisdiction of a case and has decreed 
 that the conveyance was but a mortgage, it can do complete justice by order- 
 
 40 — EQUITY. 
 
(i2G VBNDOB — VENDOR AND VKNDEE. 
 
 ing the property to be sold or tlie rents to he paid to the vendee to be ap- 
 plied on the original decree. The proper practice la such a case is for Iho 
 defendant to present a petition in the nature of a supplemental bill, setting 
 forth that he has tendered a re-conveyance on re-payment, but that com- 
 plainant has not been ready to do his part. 
 
 Taking Vendor's Word.— Babcock v. Case, 1869, 11 S. 42T. One wlio 
 holds a treasurer's deed for land situated at a distance, and vcho repre- 
 sents to one about to buy that he has examined the title and that it is 
 good, stands in a relation of trust and confidence tovrard the other who 
 says that if he buys he will have to take the former's word for it, and who 
 does so buy. 
 
 Tenant in Common — Behavior of Vendor. — Dech's Ap. , 1868, 7 S. 467. 
 Where a tenant in common has sold his interest and before giving up 
 possession has so behaved as to i"ender the relation of the proposed 
 vendee with his co-tenant unpleasant, equity will not decree specific 
 performance. 
 
 Tender of Deed— Purchase Money.— Lauer v. Lee, 1862, 6 Wr. 165. A 
 vendor is entitled to a conditional verdict in a suit to enforce payment of 
 purchase money though he has made no demand nor tendered a deed. 
 
 Tender— Purchase Money.— Baum v. Dubois, 1862, 7 Wr. 260. Where 
 a vendor, under articles of agreement, has subsequently sold and conveyed 
 the land to another, the first vendee is not bound to tender the purchase 
 money before bringing ejectment for the land. 
 
 lb. — lb. — Chase v. Irvine, 1878, 6 N. 286. Where a vendor intrudes 
 upon the land of his vendee and sets up an adverse title, the vendee may 
 bring ejectment without first tendering the balance of the purchase money, 
 and the court will do justice by means of a conditional verdict. 
 
 Transfer of Stock.— Vendor not Owning.— Ley v. Huber, 1834, 3 W. 
 367. Equity will not compel a vendee to accept a title of which the ven- 
 dor was not the owner at the time of the contract, or at least- had not the 
 legal or equitable means of making himself so. 
 
 Title— Having Parted With.— Stephens's Ap., 1860, 2 Wr. 9. A ven- 
 dor, after he has parted with his title, has no lien for his purchase money. 
 
 Waste.— Cutting of Timber.— Smith's Ap., 1871, 19 S., 474, S. C, 19 
 Pitts. C. J. 121. Catting timber by a vendor after he has sold to a vendee 
 is waste, and will be restrained. 
 
 VEXDOR AlVD VEIVDEE. 
 
 See Adjitstment. (vendor and vendee, p. 52; Confidential Relation, p. 
 120; Ejectment, p. 169 — 174; Lien, p. 319; Mortgage, etc., p. 360; 
 Purchaser, p. 462 et seq. ; Sale, p. 486 et seq. ; Set-ofp, p. 495 et seq. ; 
 Specific Performance, p. 500 et seq. ; Statute of Frauds, p. 512 et 
 seq.; Trusts and Trustee, pp. 537, 586. 
 
 Action for Purchase Money— Defence— Trust.— Ker v. Kitchen, 1851, 
 5 H, 433. One having constructive notice of a trust who takes conveyance 
 in fee with a covenant for quiet enjoyment, cannot npon discovering the 
 trust defend against an action for the purchase money, there being no 
 breach of the covenant. 
 
 lb.— Evidence.— Huber v. Burke, 1824, 11 S. & E. 238. Irthe vendor of 
 land under articles sues for the purchase money before possession is deliv- 
 
, VENDOR AND VENDEE, 627 
 
 ered, such action is like a bill in equity; and under the plea of payment 
 may be given in evidence evefy circumstance that would influence a chan- 
 cellor on a bill ior specific performance. 
 
 lb.— After Title Parted With.— Stephens's App. i860, 2 Wr. 9. A 
 vendor, after he has parted with his title, has no lien for his purchase 
 money. 
 
 lb.— Vendor— Defence— Outstanding Title— Ejectment.— Congre- 
 gation V. Miles, 1835, 4 W. 146. A vendor in possession under articles of 
 agreement cannot set up an outstanding title as a defence to an action of 
 ejectment to compel the payment of the purchase money. 
 
 lb.— Trust as a Defence.— Beck v. Uhrich, 1850, 1 H. 536, 639 One 
 buying land from a trustee and discovering the trust before paying the pur- 
 chase money may set up the trust as a defence for the same, and the cestui 
 que trust can recover from tjie purchaser by allowing him lor the money he 
 paid in good faith before notice of the trust. 
 
 Assignee— Covenant to Convey.— Hamilton v. Brown, 1851,' 6 H. 87. 
 Where a vendor has entered into a covenant to convey and the vendee has 
 assigned his equitable title, and afterwards the vendor did convey to his 
 vendee, the assignee cannot recover against the vendor in a suit to his use 
 on the covenant, although he had given notice to the vendor of the assign- 
 ment. 
 
 Covenant to Discharge a Mortgage. —Williams v. MuUan, 1886, 1 
 Crum. 337. A vendor who has covenanted to discharge a mortgage whicli 
 he did not do, but on the other hand gave notice of it at a sheriff's sale ot 
 the property on a judgment against his vendee, at which sale he became the 
 purchaser, is not estopped from coming in on the fund by proving certain 
 claims which he had against the vendee. 
 
 Incumbrance. — Fuuk v. Voneida, 1824, 11 S. & R. 109. It seems that a 
 grantee with warranty, lu an action against the grantor who had mortgaged 
 the premises, will be allowed to recover the value of the incumbrance, and 
 that, before any breach has occurred by eviction, because chancery on a bill 
 quia timet would give specific performance, by making the warrantor re- 
 move the incumbrance, and our courts do equity through legal forms. 
 
 Jurisdiction — Orphans' Court— Overpayment.- ike's Ap., 1873, 1 
 Fost. 295. Tlie orphans' court has no jurisdiction to compel the estate of a 
 deceased vendor to repay a vendee an overpayment made by the latter 
 to the decedent in bis lifetime. 
 
 Mortgage— Title in Wife— Purchase Money —Estoppel.— Pittsbnrgh 
 Ins. Co. V. Groves, 1872, 3 Crum. 401. One who has sold land, the title 
 being taken by a wife, while the husband gave a bond for the purchase ' 
 money, is not estopped from claiming that his judgment on the bond binds 
 the land against a subsequent mortgage in which mortgage both husband 
 and wife join. 
 
 lb.— Trust.— Pattison v. Horn, 1853, 1 Gr. 301-304. A trust cannot be 
 established by a mere promise by the vendee to a third person that he will 
 hold for his benefit, but if the promise is made to the vendor for whom the 
 vendee is surety, a mortgage may be established. 
 
 Mortgagee— Releasing Vendee of Mortgagor.— Paxton v. Harrier. 
 1849, 1 J. 312. A mortgagee who hns for a valuable consideration released 
 a vendee of the mortgagor of part of the tract mortgaged, cannot recove:- 
 .against a prior vendee of another portion of the tract. 
 
 Parol Sale— Rights Settled by Assumpsit— Evidence.— Naftzinger v. 
 Roth, 1880, 12 N. 443. The rights of vendor and vendee, under a parol 
 
628 VENDOE AND VBNDEE — VEEBAL CONVEYANCE. 
 
 sale, may be settled by assumpsit and a conditional verdict, but the plain- 
 tiff must prove the contract, the fulfilment of it and that the cause of a<-tion 
 accrued before action brought. 
 
 Presumption of Resulting Trust.— Wheeler «. Kidder, 1884, 9 Out. 271. 
 No presumption of ;i resulting trust arises where a vendor takes title in the 
 name of his son. 
 
 lb. — Sharr i;. Keed, 1864, 11 Wr. 96. There is no presumption of a resulting 
 trust -where a fiither pays for land and has the deed made to his son. 
 
 Subrogation. — Bonhow's Estate, 1883, 4 Kulp, 457. A vended' whose 
 land has been sold to pay the judgment debt of his vendor will be subro- 
 gated to the rights of the plaintiff in the judgment, provided lie is not 
 guilty of laches as against a subsequent judgment creditor of the vendor. 
 
 Trusts— Promise— Mortgage.— Pattison v. Horn, 1853, 1 Gr. 301-304. 
 A trust cannot be established by a mere promise by the vendee to a third 
 person that he will hold for his benefit, but if the promise is made to the 
 vendor for whom the vendee is surety, a mortgage may be established. 
 
 Trustee— When Trust Not Destroyed. — Lee v. Tiernan, 1798, Add. 
 348. One selling land and receiving the price is a trustee for the buyer 
 until the title be conveyed. The trust is not destroyed by a subsequent 
 sale and conveyance to a third person unless it be bona fide. 
 
 lb.— For Vendee.— Pipher v. Lodge, 1818, 4 S. & E. 310. A vendor of 
 land before conveyance of the legal title, is a trustee for the vendee and the 
 statute of limitations does not run. 
 
 VENUE. 
 
 Foreclosure — ^Boundaries — Cromwell v. McCalmont, 1814, l S. & E. 126. 
 A special act provided that certain mortgaged lands should, on default be- 
 ing made, be foreclosed " in the county where the lands shall lie." The 
 boundaries of the counties having been changed, it was held that the writ 
 must be brought in the county which then embraced the lands. 
 
 Local and Transitory Actions— Nuisance.— Morris v. Remington, 
 1849, 1 Pars. 387. The distinction between local and transitory actions 
 applies in equity. Theretore a bill will not be entertained in Philadelphia 
 county to restrain the commission of a nuisance affecting the plaintiff's land 
 in a neighboring county, although the bill was served on the defendant in 
 Philadelphia county. 
 
 VERBAL CONVEYANCE. 
 
 Trustee Obtaining Deeds.— Smith v. Spencer, 1876, 2 W. N. C. 515. 
 Where a trustee who having obtained from his cestui que trust a verbal con- 
 veyance of his interest, afterwards obtains deeds therefor without the 
 fullest disclosures of the nature and value of the property, he remains a 
 trustee. 
 
VERDICT. 829 
 
 VERDICT. 
 
 See Conditional Vbkdict, pp. 110-114 ; Ejectment (verdict and judg- 
 ment), pp. 172-174 ; Issue, p. 296 ; Purchase, p. 460. 
 
 Amendment— Judgment on a Conditional— Insertion of Date.— 
 
 Kensinger v. ffmith, 1880, 13 N. 384. The Supreme Court may amend a 
 judgment on a conditional verdict, which has omitted to name a day of 
 payment, by inserting a date. 
 
 Assignment of Plaintiff's Interest— Conditional.— Rifle's Ap., 1869, 
 3 Brews. 94. One paying the amount of a conditional verdict and taking an 
 assignment of plaintiff's interest in it, gets no right to the judgment for 
 possession. That is extinguished by payment. 
 
 Costs— Conditional Verdict.— Bradley ». O'Donnell, 1861, 4 Wr. 479. 
 A conditional verdict carries costs. 
 
 lb.— lb.— Davis V, Coyle, C. P. Venango, 1870, 27 Leg. Int. 70; S. C. 7 
 Phila., 671. Where costs are not a specific part of a conditional verdict in 
 ejectment, a writ of habere facias processionetn, will not issue on their non- 
 payment, if the verdict has been complied with. 
 
 lyectment — Conditional Verdict— Specific Performance — ^Land. 
 Todd V. Pfoutz, 1801, 3 Y. 177. In ejectment to enforce specific perform- 
 ance of articles of agreement for the sale of land, the court will do justice 
 by means of a conditional verdict. The English authorities are not bind- 
 ing here on account of the rapid advance here of the price of real estate. 
 
 lb. — lb. — Kribbs v. Downing, 1855, 1 C. 399. The condition in a ver- 
 dict to enforce specific performance may not concern land of the defendant 
 not in dispute. 
 
 lb.— lb.— Expiration of Time.— Boyd u. McNaughton, 1865, 1 S. 225. 
 After a conditional verdict has been rendered in ejectment by the vendor 
 to compel specific performance, the vendee's equity continues as long as the 
 vendor acknowleges him his debtor, though the time limited in the ver- 
 dict has expired. 
 
 lb.— lb.— lb.— Connolly v. Miller, 1880, 14 N. 513. The court has the 
 discretion to extend the time allowed for payment in a conditional verdict, 
 rendered in an ejectment to enforce j)aymenfc of purchase money. It fol- 
 lows that the time for payment having expired, a writ of liaberc facias pos- 
 sessionem is not of course, but can only issue by leave of court. 
 
 lb. — ^Ib. — Thompson v. McKinley, 1864, 11 Wr. 353. A conditional ver- 
 dict in ejectment should fix the time when the money should be paid. 
 
 lb.— lb. — Joint Purchasers — Heal Purchaser.— Crow v. Crow, 1857. 
 
 5 C. 216. Although articles of purchase show two to be jointly interested, 
 yet if on the triiil the jury find that one is the real purchaser, a conditionii! 
 verdict specifically enforcing the contract in favor of that one alone, i,i 
 proper. 
 
 lb. — Conclusiveness of Verdict. — Brown v. Nickle, 1847. 6 Barr, 390. 
 One verdict and judgment in ejectment by a mortgagor against his mort- 
 gagee is not conclusive under the Act April 21, 1846, though the only ques- 
 tion tried was whether the mortgage had been satisfied. 
 
 lb.— Equitable Estate— Judgment.— Taylor i. Abbott, 1861, 5 Wr. 
 352. One verdict and judgment in ejectment is conclnsive on an equitable 
 title, only where, the case is such that plaintiff, it he recover, is entitled 
 to a conditional verdict. 
 
630 VBEDICT — VESTED LEGACY. 
 
 lb.— Sheriff Sale.— Fredericks v. Corcoran, 1882, 4 Out. 413. A building 
 association loaned money to A. by completing a purchase for him and tak- 
 ing title as security. The sheriff's vendee of A's, interest brought eject- 
 ment against the association. Held that he was entitled to an absolute 
 verdict. 
 
 Mortgagor and Mortgagee — Conclusiveness of Verdict. — See Brown 
 V. Nickle, ante p 629. 
 
 lb. — Thompson v. Adams, 1867, 5 S. 479. A. contracted to buy land of 
 B. The land was subject to a mortgage, and on foreclosure, A. bought the 
 land. B. then bought ejectment to compel the payment of the balance due 
 him. Seld ejectment would not lie, and if he could recover at all, it must 
 be on the ground that the sheriff's deed executed his contract and he 
 could sue on that. 
 
 lb.— Wells V. Vandyke, 1885, 42 Leg. Int. 345, S. C. 16 W. N. C. 151. 
 A mortgagor may bring equitable ejectment against a mortgatgee in jras- 
 session, and is entitled to a conditional verdict. 
 
 Nature of— Conditional.— Irvine v. Buhl, 1838, 7 Watts, 333. Our 
 courts by a conditional verdict accomplish the same results as a chancellor 
 would by decreeing specific performance. To do this, the declaration con- 
 tains first, a count setting forth such facts as would move a chancellor, 
 namely, the agreement and part performance, and then other counts for 
 damages for breach of contracts, and under this the jury gives damages so 
 large as to make performance preferable, but conditional to be released on 
 the contract being specifically performed. It is, therefore relevant to give 
 evidence as to the present value of the land in order that the jury may 
 know for what amount to fix the verdict. 
 
 lb. — ^Ib. — ^Expiration — Time. — See Boyd v. McNaughton'; Connolly ». 
 Miller, ante p 629. 
 
 Purchase at Sheriff's Sale — Subrogation — Conditional Verdict. — 
 
 McGuire v. Warren. 1888, 4 C. P. Rep. 193. A purchaser at sheriff's sale 
 of real estate is entitled to be subrogated to the rights of the holder of a 
 conditional judgment in ejectment where the title of the plaintiff in the 
 judgment is over reached by the sheriff's sale. 
 
 VESSEI,. 
 
 Co-Owners.— Paynter i. Paynter, C. P. 1870, 27 Leg. Int. 69. S. C. 7 
 Phila. 336. Equity will restrain the owner of a moiety in a vessel from 
 using the vessel contrary to the wish of the other. 
 
 VESTED IvEGACY. 
 
 Trust Property.— Quigg's Estate, 1887, 45 Leg. Int. 14. Where a tes- 
 tator bequeathed 15,000 per annum to trustees to apply the same for the 
 sole benefit of a grandson until the latter should attain the age of twenty- 
 one years, and in the event of his not arriving at that age, the principal of 
 the sum so bequeathed to be included in testator's residuary estate. fieZrf, 
 that the legatee was entitled to the principal of the sum absolutely upon 
 attaining the age of twenty-one years. 
 
VESTED BEMAINDER — VIETXJTE OFFICII. 631 
 
 VHSXED RBIHAIPIDBR. 
 
 Assignment for Creditors.— Stuckert v. Harvey, 1836, 1 M. 247. An 
 assignment for creditors of all the property, real and personal, of the 
 assignor carries the interest which be has under a will directing a trustee 
 on the death of a certain person to convey the fund to him without the 
 control of any person and without being subject or liable for his debts, the 
 cestui gne trust being alive at the time of the assignment 
 
 YIOt,ATION. 
 
 Of Charter— Parties— Injunction.— Euhn v. Academy of Music, C. P. 
 1884, 15 W. N. C. 251. A stockholder is entitled to an injunction against 
 the corporation for a -violation of its charter without proof of special injury. 
 
 Of Constitution— Injunction— Competing Line.— Commonwealth v. 
 South Penn E. K., Same v. Beach Creek R. R., C. P. Dauphin, 1886, 1 Pa. 
 Co. C. E. 214, 223. Equity wijl at the suit of the Commonwealth restrain a 
 corporation from acting in violation of the Constitution. In this case the 
 act complained of was the purchase of a competing line. 
 
 Of Ordinances— Both Parties.— Phila. & Gray's Ferry E. E. v. Phila. 
 C. P., 1876, 2 W. N. C. 639, S. C. 33 Leg. Int. 264, 11 Phila. 358. One who 
 is himself violating an ordinance, is in no position to ask equity to enjoin 
 another for doing the same thing. ' 
 
 Of Trusts— Church Property— Estoppel.— Jones v. Wadsworth, 1877, 
 4 W. N. C. 514, affg. 11 Phila. 337, 239; 33 Leg. Int. 390, 416. Where a 
 trustee and his co-plaintiffs acquiesce in a use of church property in viola- 
 tion of the trusts on which it is held, they are not estopped from asserting 
 their rights to it, but they are estopped from recoveiing for mesne profits 
 pending litigation, and were charged their own costs though successful. 
 
 lb.— Husband— Subsequent Conveyance to— Church ». Church. 1855, 
 1 C. 278. A husband, who assists in violating a trust for his wife, is not 
 protected in subsequently obtaining a conveyance from one who was a bona 
 fide holder free from the trust, 
 
 VIItXtTTE OFFICII. 
 
 Administrator cum Testamento Annezo. — Lantz v. Boyer, 1876, 31 
 S. 335. Under act February 24, 1834, sec. 67, any power, discretionary or 
 otherwise, to sell land given to executors with a view to distribution among 
 legatees, is a power virtute officii, and may be exercised by an administrator 
 •earn teslamenio annexo. 
 
 Executor Trustee— Jurisdiction— Orphans' Court.— Wapple's Ap., 
 1873,34 8.100. Where an executor is appointed trustee m><»rie officii thfe 
 orphans' court has exclusive jurisdiction ; where he is appointed nominative, 
 the common pleas and orphans' court have concurrent jurisdiction. 
 
 lb. — Morgan's Ap., 1885, 14 Out. 271: Where an administrator is au- 
 thorized by the orphans' court to mortgage the estate of a decedent, a bill 
 in equity will not lie to attach such mortgage in any other courts. The 
 want of confirmation of the mortgage may be taken advantage of by appli- 
 cation to the orphans' court or by appeal to the Supreme Court. 
 
632 VIETUTB OFFICII — VOID. 
 
 Trustee Under Will— Standing.— Stockton v. Lehigh Nav. Co., C. P. 
 1880, 9 W. N. C. 110, S. C. 37 Leg. Int. 90, 14 Phila. 88. A trustee created 
 by will virluie officii has a standing in a court of equity to compel the per- 
 formance of a duty owing to him in his capacity of trustee. 
 
 VOIO. 
 
 Amicable Judgment ^hen.— Worman v. Wolfersberger, 1852, 7 H. 59. 
 An amicable judgment given to a bona fide debtor by one in failing circum- 
 stances, is not avoided by the act of 1819, there being no assignment for 
 creditors made. 
 
 Assignment for Creditors— County where land lies.— Dougherty v. 
 Barrach, 1850, 3 H. 399. An assignment of real estate for creditors must be 
 recorded in the county where it is situated, or a subsequent sale by the as- 
 signor to one without actual notice of the assignment will pass title. 
 
 lb.— Eeigart's Ap., 1846, 4 Barr, 477. Under the act of 1818. an assign- 
 ment for creditors must be recorded in the county where the assignor 
 resides as well as where the property is situated, and failing in this it. is 
 void. 
 
 lb.— When not— Voidable only.— Goden's Ap., 1885, 14 Out. 581. An 
 assignment for creditors not recorded as required, is not void but voidable 
 as against any creditor who may take any of the property in execution, and 
 as regards that property only. 
 
 lb.— Voluntary by Insolvent.— Skile's Appeal, 1885, 14 Out. 248. A 
 voluntary assignment accepted in good faith, made by an insolvent before 
 the fact of insolvency becomes known, is void as against creditors ; but the 
 assignee will not be required to reconvey without an allowance being made 
 for the amount expended by him in bona fide improvements upon the prem- 
 ises. 
 
 lb.— Secret Provisions.— Chaffer v. Watkins, 1844, 7 W. & S. 219. 
 Any trust for creditors which contains secret provisions for the grantor is 
 fraudulent and void. 
 
 Bequest. — Evans's Ap., 1869, 13 S. 183. A bequest to a charity, which 
 provided that land should be sold, but which was void, because made 
 within one month of the death of the testator, nevertheless works a conver- 
 sion. 
 
 Confession of Judgment.— Guy v. Mellree, 1856, 2 C. 92, reversing 1 
 Phila., 488. The confession of a judgment to one in trust for a particular 
 creditor is not an assignment which need be recorded, nor is it void a& 
 creating a preference. 
 
 Deed Void as a Conveyance.— Walter v. Walter, 1870, 17 S. 185. A 
 deed void as a conveyance may nevertheless, if acted on, pass title in equity 
 as an estoppel. 
 
 Direction— Cestui que Trust— How Supported. — Butler v. Butler, N. 
 P. 1872, 4 Leg. Op. 552. An intention that tlie cestui que iiiist should not 
 have possession of his estate until he became twenty-eight is lawful and 
 will support an active trust, but a direction that he shall accumulate, falls 
 xipon the beneficiary coming of age. 
 
 Judgment— Act of April 16, 1849.— Hutchinson's Ap. 1852, 8 H. 63. 
 Act April 16, 1849 Sec. 4. does not avoid a judgment given to a bona fixle 
 creditor by one contemplating an assignment for creditors even though the 
 assignment follow. 
 
VOID— VOLUNTARY AGREEMENT. 63* 
 
 lb— lb.— Morgan's Ap„ 1852, 8 H. 152. Act April 16, 1849, does not 
 avoid a judgment obtained by default as fraudulent, because other suits 
 started at the same time were defended. 
 
 lb.— lb.— Assignment.— Breading v. Boggs, 1852, 8 H. 33. A judgment 
 cannot be avoided under the act of 1849, if no assignment follow. 
 
 lb.— Insolvent Debtor.— Summer's Ap., 1851, 4 H. 169. Act April 16, 
 1849, § 4, means that judgments given to evade the Act of April 17, 1843, 
 are void, if at the time the debtor knew himself to be insolvent. 
 
 Mortgage.— Future Advances.— National Bank.— Woods v. Peoples' 
 National Bank, 1876, 2 N. 57. A mortgage to secure future advances given, 
 to a National Kank is ultra vires, and therefore void. 
 
 Oil Lease— Cancellation.— Mehaffey's Ap., 1884, 4 Penny 502. A void 
 oil lease (the land being vacated), will be ordered to be delivered up to be 
 cancelled as a cloud upon title. 
 
 Policy of Insurance— Payment to Assignee, Assignment Being 
 Void. — Hoffman v. Hoke, 1888, 7 <;rum. 377. Where a beneficiary vfith an 
 insurable interest has assigned a policy of iusurance to one v^ithoutsuch in- 
 terest, the assignment being illegal and void, and the company has paid to 
 the assignee, the administrator of the assured cannot recover the money 
 paid to the defendant. 
 
 Purchase by Administrator— His Own Sale.— Wallington's Est., 
 1826, 1 Ash. 307. A purchase by an administrator at his own sale ia void, 
 and it he have disposed of the property he will be charged with the differ- 
 ence between the price he paid and that estimated by the court as a fair 
 one. 
 
 Purchase by Executor— His Own Sale.— Fox's Est., 1868, 1 Pears. 
 449. A sale by an executor, either directly or indirectly to himself, of real 
 of personal property, will be set aside on petition of one interested. 
 
 lb. — Bruch V. Lantz, 1830, 2 E. 392. A sale by an executor to himself, 
 though indirectly, is voidable, and the executor takes the estate subject to 
 all the equities with which it was previously clothed. 
 
 lb.— Hallman's Est., O. C. 1880, 34 Leg. Int. 169; S. C. 13 Phila. 562; 1 
 Ghes. Co. Rep. 144. An executor or trustee cannot purchase at his own 
 sale, either directly or indirectly. The seeming exceptions to the rule dis- 
 cussed. 
 
 lb. — Statute of Limitations. — Musselman v. Eshleman, 1849, 10 Barr, 
 394. A purchase by an administrator, at his own sale, must be disaffirmed 
 within twenty-one years or it will stand. 
 
 Sale— Voidable Assignment.— Okie v. Kelly, 1849, 2 J. 323. A bona 
 fide sale made by assignees for creditors under an assignment, voidable on 
 its face, but before it was avoided by trustees in insolvency, is valid. 
 
 Trust Accumulation.— Bindbaker's Ap., 1888, 15 Atl. E. 708. A trust 
 for a daughter and her issue, the interest to be added annually to the prin- 
 cipal as long as her husband should live, and in event of her becoming a 
 widow, then the yearly interest to be paid her, the principal and accumu- 
 lated interest to go to Xter issue or descendants at her death, was declared 
 void. 
 
 VOLUNXARY AGREEMENX. 
 
 Unexecuted.— Specific Performance. — Pringle v. Pringle, 1868, 9 S; 
 281. Equity will not enforce an unexecuted voluntary agreement. 
 
€34 VOLUNTAKY ASSIGNMENT — VOLUNTAEY DEED. 
 
 Attaching Creditors.— Davis v. Wellerton, C. p. 1876, 2 W. N. C. 428. 
 An assignmeut for creditors has no validity against attaching creditors nntij 
 delivered or put in course oi transmission to the assignee. 
 
 By Insolvent. — Skile's Appeal, 1885, 14 Out. 253. A voluntary assign- 
 ment accepted in good faith, made by an insolvent before the fact of insolv- 
 ency becomes known, is void as against creditors; but the assignee vrill not 
 be required to reconvey without an allowance being made for the amount 
 expended by him in bona fide improvements upon the premises. 
 
 Depends on Lex Loci Contractus. — Law*. Mills, 1851, 6 H, 185. The 
 validity of a voluntary assignment for creditors is to be tested by the lex 
 laci contractus. 
 
 Foreign Creditors— Extent of Validity.— Smith's Ap., 1883, 8 Out. 
 381. A voluntary assignment for creditors made in another State is good 
 against all creditors with actual notice even before recorded in the counties 
 . of this State where the assignor has property. 
 
 Independent of Statute. — Beck v. Parker, 1870, 15 S. 262. A voluntary 
 assignment for creditors does not depend for its validity on any statute. 
 
 Assignees.— Liability of, Under.- Gray «. Bell, 1835, 4 W. 410. As- 
 signees under a voluntary assignment are not liable to be sued for money 
 had and received before settling an account. 
 
 Assignor. — ^Resulting Trust. — Webb v. Dean, 1853, 9 H. 29. A volnn- 
 tory assignment for creditors leaves a resulting trust in the assignor 'which 
 <!an be bound by a judgment against him. 
 
 VOLUNXAItY DEED. , 
 
 Feme Sole Previous to Marriage.— Robinson i-. Buck, 1872, 4 Leg. 
 Gaz. 101, affirming 28 Leg. lut. 221, 8 Phila. 37. The execution of a vol- 
 untary deed by a, feme sole on the morning of her marriage, is prima fade a 
 fraud on her intended husband. 
 
 Good Faith. — Miskey's Ap., 1883., 11 Out. 611. One claiming nnder a 
 voluntary deed, in which there is no power of revocation, must show affirm- 
 atively good faith and no undue influence, especially where the grantor is 
 ■of feeble mind and the grantee is in his confidence. 
 
 Intemperate Son to Father.— Miskey's Ap., 1883, 40 Leg. Int. 414 ; S. 
 C. 3. Penny. 408. A voluntary deed by an intemperate son to his rich 
 father without any provision or power of revocation, and made without 
 legal advice on the part of the son, demands affirmative proof of fairqess 
 and genuineness. 
 
 Intoxication.— Clifton v. Davis. 1842, 1 Pars. 31. Equity will set aside 
 a voluntary deed made by one under the influence 'of liquor if no one is 
 prejudiced by such decree. 
 
 Irrevocahle.— Trustee, Use of Grantor.— Fellows's Ap., 1880, 12 N. 
 470. A deed to a trustee for the use of the grantor for life and for his ap- 
 pointee after death, i."?, in the absence of fraud, a valid and irrevocable 
 instrument though made without consideration. 
 
 Minor Arriving at Age.— Cancellation.— Kelly's Ap., 1881, 2 Sch. L. 
 
VOLUNTARY DEED — VOLUNTEEK. 63S 
 
 R. 85. Equity will order to be cancelled, voluntary deeds which defend- 
 ants have procured from one just come of age, although the latter has not 
 given up possession. 
 
 Motive.— Geiger's Est., 1887, 2 W. N. C. 114. The non-appearance of 
 any motive for making an irrevocable gift may be tatamount to active proof 
 of mistake, and equity would reform the instrument guided by the inten- 
 tion ot the grantor in making the settlement. 
 
 Trust.— Grantors as Witnesses.— Miller v. Pearce, 1843, 6 W. & S. 97. 
 Where one procures from a father a voluntary conveyance of land upon his 
 express promise to convey it to his son upon his attaining his majority, it is 
 a trust which can be proved by the grantors, the father and mother, and 
 which can be enforced by the son's bringing an action of assumpsit for the 
 purchase money received by the trustee on a sale of the land by him. 
 
 VOLITBIXEEIl. 
 
 See Assignment foe Creditors, p. 88. 
 
 Payment.— Debt of Another.— Brice's Ap., 1880, 14 N. 145. One, who 
 under no compnlsion pays the debt ot another, in whole or in part, becomes 
 in the absence of proof to the contrary, tlie purchaser of the debt pro tanto, 
 and he becomes entitled to the accompanying security. 
 
 lb.— Judgment Against Another.— Fleck v. Weller, C. P. Luzerne, 
 1884. 2 Kulp, 258, S. C, 12 Luz. L. Reg. 29. One who volunteers to pay 
 a judgment and have it marked to his use in order to save the debtor from 
 having his property sacrificed, is a mere volunteer and his petition will not 
 be granted. 
 
 Subrogation. — Cottrell's Ap., 1854, 4 H. 294. Equity will decree" sub- 
 rogation where justice demands it, though there be no priority of contract, 
 and provided the one discharging the debt be not a mere volunteer. 
 
 lb.— Servant.— Hoover v. Epler, 1866, 2 S. 522. A volunteer will not 
 be entitled to subrogation, but a servant who rightly preserves his master's 
 property by repairing it, and who pays the bill is not a volunteer. 
 
 lb. — Mosier's Ap., 1867. 7 S. 76. Subrogation though not allowed to 
 mere volunteers, will be allowed in all cases where a payment has been 
 made under a legitimate and fair effort to protect the ascertained interests 
 •of the party paying. 
 
 lb.— Surety.— Webster's Ap., 1878, 5 N. 409. One who voluntarily takes 
 the position of surety on a renewal note is not entitled to be subrogated to 
 the rights of the surety on the old note. 
 
 Trusts. — Sadler's Ap., 1878, 6 N. 154. A volunteer takes an estate sub- 
 jectto all trusts which are attached to it, though the fund has gone through 
 many changes. 
 
 Who is a — Nominal Consideration. — Ferguson's Ap. 1888, 2 Crum. 
 426. Where a daughter received trom her father a conveyance of a lot for a 
 nominal consideration, and the deed makes reference to a plan upon which 
 the lot is laid down and calls for a certiin street or alley thereon, and the 
 -daughter subsequently erects a dwelling upon said lot, she is not to be 
 treated as a volunteer and her right to the street referred to, may be en- 
 forced by a decree in equity, 
 
636 vouchee's agents — waiveb. 
 
 VOUCHER'S AGEPIXS. 
 
 Principal Keceiving.^Evidence.— Scott v. Strawn, 1877 6 W. N. C. 
 132, S. C. 25 Pitts. L. J. 158. Where parties have settled -with their agent 
 and received from him vouchers which they lose, they are estopped' from 
 lequiriDg him in a subsequent suit to give even secondary evidence thereof. 
 
 WAGES. 
 
 Damages as Set off to Recovery of.— Stover v. Hotel Co., C. P. 1876, 
 3 W. N. C. 156. Damages arising from misfeasance may be set off against 
 a servant vpho sues for wages. 
 
 lb. — Nixon V. Crory, 1882, 5 Out. 289. "Where a servant quits his em- 
 ployer's service in breach of his .contract, and without notice, and leaves the 
 fires under boilers in such condition that the boilers are damaged, such 
 damages may be set off in an action brought by the servant to recover wages 
 due him up to the time he left. 
 
 Evidence of Fraud.— Set off.— Heck v. Shener, 1818, 4 S. & E. 249. in 
 an action to recover compensation for services, evidence of fraud and embez- 
 zlement cannot be given by way of set-off, but may be given in under the 
 general issue, to defeat the action. 
 
 Unearned.— Assent of Employer.— Trimble's Est., 1876, 23 Pitts. L. 
 J. 89. An assignment of a portion of unearned wages is invalid unless as- 
 sented to by the employer. 
 
 ■WAIVER. 
 
 Appearance. — Jurisdiction. — Loan Associatioti v. Mayer, 1888, 45 Leg. 
 Int. 346. An appearance or answer is a waiver of jurisdiction when it is in 
 the nature of au estoppel. 
 
 Commissions. — Trustee. — ^Barton's Est., 1842, 1 Pars. 24. A trustee 
 who has declined commissions and announced that he did not cLaim them, 
 cannot afterwards claim them on the audit where the cestui que trust at- 
 tempts to surcharge him. 
 
 lb.— McCawley's Est., O. C. 1884, 14 W. N. C. 260. A trustee who has 
 charged no commissions and who has declared that he would charge none, is 
 presumed to have made a gift of them to the cestui que trust and on his 
 death his executor cannot recover them. 
 
 Equity of Redemption. — Mortgage.— Plumer v. Eobertson. 1820, 6 S. 
 & E. 179. Where a mortgagee in possession, who is also the purchaser of 
 the equity of redemption under .articles not recorded, proceeds nnder a scire 
 facias to foreclose the mortgage, he does not thereby waive his right under 
 the articles. 
 
 Exemption. — Extent of. — Building Association v. Schott, C. P. 1878, (! 
 W. N. C. 399, A waiver of exemption in a mortgage will not be construed 
 to extend to personalty. 
 
 lb.— First Lien.— Pittsman's Ap., 1864, 12 Wr. 315. Where a firat lien 
 is with waiver ot exemption luid a second lien is without such waiver, the 
 latter creditor can compel the former to proceed first against the $300 
 
WAIVEB — WANT OP TRUSTEE. 637 
 
 D^andj^Laches— Evans's Ap., 1876, 31 S. 278, S. C. 3 W. N. C. 36, afi'g 
 1 W. N. C. 127. A resulting trust in personalty may be barred by les.s 
 than SIX year's lacbes, as where the cestui que trust, knowing the facts, has 
 by his conduct induced the belief that he waived the fraud. 
 
 Priority.— Second Mortgage.— Kerr's Est., C. P. Cumberland, 1870, 1 
 efi, '^^' ■^ Mortgage was given to secure two creditors, afterwards, one 
 , . ;"?^ waived his priority in favor of a second mortgage, and before final 
 distribution the latter gave back the priority to the one who had previously 
 waived it. Jleld that the two first mortgages should come in together on 
 the fund. ^ ^ ^ 
 
 Regularity of Proceedings.— Mortgage.— Levari Facias.- Wilson v. 
 McOuUongh, 1852, 7 H. 77. A scire facias sur mortgage is a proceeding in 
 rem, and the mortgagor cannot waive regular proceedings so as to pass a 
 title to the purchaser at sheriff's sale, the levari facias having issued without 
 judgment first obtained. 
 
 Trust.— Cestui que Trustent.— Henderson's Est., 1882, 39 Leg. Int. 
 450. Where cestui que trustent, entitled to the entire beneficial interest in 
 an estate, were mi juris at a time when the proceeds of a mortgage passed 
 into the hands of the trustees, but the time of distribution limited by the 
 testator had not arrived, they may waive the trust and receive such pro- 
 ceeds. 
 
 Year's Stay.— Mortgagor.— Huling v. Drexell, 1838, 7 W. 126. The 
 year's grace given to a mortgagor by the Act ot 1705, being for his benefit, 
 may be waived by him, therefore a stipulation in a mortgage that, on fail- 
 ure to pay interest, the mortgage may be sued out immediately, is lawful, 
 and an agreement that the mortgagee shall also recover costs and damages 
 is not usurious. 
 
 lb.— lb.— Griffith V. Nolen, D. C. 1875, 1 W. N. C. 158. A waiver of the 
 year's stay in a mortgage is valid. 
 
 lb.— lb.— Dner, v. Waderhold, C. P. Schuylkill, 1881, 2 Sch. L. E. 32. 
 The intention of a mortgagor to waive the year's stay given by the Act of 
 1705 must clearly appear. 
 
 lb.— lb.— Kelly's Est., C. P. Delaware, 1882, 14 Lan. B. 51, S. C. 1 Del. 
 Co. Eep. 288. The usual provision in Pennsylvania mortgages waiving all 
 stays, is a waiver of the twelve month stay provided by the Act of 1705, 
 and of the equitable usage but not of future stay laws, such as Act of March 
 23, 1877. 
 
 ■WANT OF TRUSTEE. 
 
 Statute of Limitations.— Mans v. Mans, 1876, 30 S. 194, S. C. 2 W. N. 
 C. 656. The statute of Jimitations will run against a trustee whether there 
 be a trustee or not, but any one in interest could have a trustee appointed 
 and compel him to enter and stop the running of the statute. 
 
 The Trust.— Shonk v. Brown, 1869, 11 S. 320. The want of a trustee 
 does not*change the nature of a trust, which is upheld in equity as well 
 without as with a trustee. 
 
 lb.— Craige v. Craige, C. P. 1872, 4 Leg. Gaz. 389, S. C. 29 Leg. Int. 382, 
 9 Phila. 545. Where an intention is discovered to leave property in trust, 
 the trust will not fail for want of a trustee named. 
 
638 WAEEANT, LAND — WASTB. 
 
 'WARRAPfT, LAND. 
 
 Equitable Title.— Vanhoine ». Frick, 1820, 6 S. and R. 90. The legal 
 presumption i^that the party paying the purchase money has the equitable 
 title in a land warrant, though the warrant he taken in another name, hiit 
 the presumption may he rebutted. 
 
 Trustee.— Entering Location, Name of Another. — Cox v. Grant, 1792, 
 1 Yea. 164. The person in whose name a warrant or location is taken out, 
 is a trustee for him who entered it and paid the money. 
 
 lb. — lb. — Polger V. Evig, 1796, 2 Yea. 119. Where one enters a location 
 in the name ot another it shall inure to the benefit of the party applying, 
 without further proof. 
 
 , ■WARRANTY. 
 
 Breach of Damages.— Set Off.— Phillips v. Lawrence, 1843, 6 W. & S. 
 150. In an action on a note, damages arising from a breach of warranty in 
 another transaction may be set off. 
 
 Chose in Action.— Assignor.— Flynn v. Allen, 1868, 7 S. 482. The 
 assignor of a chose in action impliedly warrants the genuineness of the 
 claim but not its payment. 
 
 In Name of Another. — When Claim Not Barred.- Glass v. Gilbert, 
 1868, 8 S. 266. Where one procures land to be warranted in the name of 
 another, but himself pays the purchase money, his claim to the land is not 
 barred after twenty-one years, where the warrantee has never laid claim to 
 the tract. 
 
 Purchaser.— Set-off.— Steigleman V. Jeffries, 1815, 1 S. & E. 477. A 
 purchaser of goods with warranty may make use of the warranty by way of 
 set-off in an action, for the price. 
 
 Survey.— Equitable Title.— Patentee.— Gregg v. Patterson, 1844, 9 'W. 
 & S. 197. A warrant and survey give the warrantee an equitable title to 
 the land. A patentee has the legal title, but a warrantee who deserves the 
 patent can recover from a patentee who is not entitled thereto. 
 
 Ib.^Mortgage. — Tryon V. Munson, 1874, 27 S. 250. One who had taken 
 out an indescriptive warrant gave a mortgage on " all those lands surveyed 
 or about to be surveyed under the warrants." Held that the mortgage 
 bound the lands when surveyed. 
 
 \eASXE. 
 
 Equitable Tenant for Life.— Liability to Action for.— Wopdman v. 
 Good, 1843, 6 W. &. S. 169. An equitable tenant tor life is liable to an ac- 
 tion ot waste at the suit of the trustee. 
 
 Injunction. — Mortgagor. — Martin's Ap., 1887, 3 Montg. Co. L. Eep. 
 75. An injunction wil 1 lie to restrain the mortgagor from committing waste 
 by digging and removing sand and stone from the mortgagee's premises. 
 
WASTE — WEAKNESS OP INTELLECT. 639 
 
 Possession.— Mortgagee.— Givens v. McCalmont, 1835, 4 W. «460. A 
 niorigayee m possessiou is chargeable with waste. He will also be charged 
 rent lor the estate as it was when he took it, aud if he has made improve- 
 ments he will be charged rent for them after they have paid for themselves. 
 
 ler^V~P^?^?*?2'^-J,"r^'^®^P^SS Q"*"^® Clausum Fregit.— Heffner v. Mil- 
 , ; iooa, 12 W. N. C. 219. A mortgagee can maintain trespass quare 
 
 t(a«SMj«/rejii! against a mortgagor in possession who commits acts in tho 
 nature of waste after the mortgage is durt and unpaid. 
 
 Statuteof Limitations.— Action Against Trustee.— Wyanti). Dieffen- 
 aater, 1B56, 2 Gr. 334. A cestui que trust who has just come of age, can 
 maintain an action against his trustee for waste committed more than six 
 years before. 
 
 Venue.— Bill for an Account.— Thompson v. Noble, 1870, 2 Crum. 201. 
 A bill for an account for waste committed by defendant must be filed in the 
 county where the land is situated. 
 
 WAXER. RIGHTS. 
 
 [See Injunction, p. 284]. 
 
 Rent.— Payment of for Two Houses.— Harrisburg's Ap., 1884, 11 Out. 
 102. One who has constructed adjoining houses in such a manner that one 
 hydrant supplies both with water, and yet who has for many years paid the 
 water rent which would be due if each house had a separate hydrant, lias 
 no standing in equity (whatever be his legal rights), when, upon his refusal 
 to continue paying water rent for each house, the water is turned off. 
 
 Taxes.— Land of Water Company.— Injunction. — Eoaring Creek 
 Water Co. v. Commissioners, 1888, 6 Pa. Co. C. Kep. 473. An injunction 
 will not lie to prevent the collection of taxes assessed upon land purchased 
 by a water company for the future extension of its bu.siness. 
 
 "WAYS, RIGHX OK. 
 
 Bill for Iiyunction.— Jones v. Park, C. P. 1874, 1 W. N. C. 71. A bill 
 to restrain one from disturbing a right of way, was met by pleas denying 
 the easement. The court retained the bill and directed the plaintiff to first 
 establish his right at law, after which he could go on with the bill. 
 
 WEAKBIESS OF INTELLECT. 
 
 Executed Contract. — Aimaui-. Stout, i860, 6 Wr. 114. Mental weakness 
 which will authorize equity to rescind an executed contract, must amount 
 to an inability to comprehend the contract. There must also be evidence 
 of imposition or undue influence. 
 
 Fraud — Contract. — Dokerty v. Gordon, C. P. Luzerne, 1876, 5. Luz, L. 
 Eeg. 233, S. C. 4 Scr. L. T. U. The mere fact that a person is of weak un- 
 derstanding if there be no fraud or surprise, is no ground for equity to grant 
 relief from his own contracts. 
 
C40 WEAKNESS OF INTELLECT — WIDOW. 
 
 Misrepresentations— Title. — Meurer's Ap., 1888, 4 Crnm. 118. In a 
 bill in equity the complainant charged that he was the legitimate son and 
 sole heir at law of a decedent ; that the defendant was the illegitimate son 
 of the plaintiff's mother bat not of the plaintifl 's father and both had been 
 bronght up in the same family ; that by fraudulent advantage taken of the 
 plaintiff's ignorance and mental weakness and by fraudnlent misrepresen • 
 tations, the defendant had obtained from the plaintiff his title to the real 
 estate of his deceased father. Held it was not error to decree the cancella- 
 tion of the conveyances ; that the defendant should forthwith deliver op 
 possession of the real estate to the plaintiff', and that an account should be 
 taken of the rents, issues and profits. 
 
 WIDO-W. 
 
 [Skbt Election, pp. 174-178; Husband and Wife (Dowerj, p. 243]. 
 
 I. Action by Administrator against Widow. 
 
 II. Agreement between Widow, Administrator and Purchaser. 
 
 III. Assignee's Sale, Property of Husband. 
 
 IV. Confidential Relation between Widow and Executor, 
 V. Dower. 
 
 VI. Election under and against will. 
 
 VII. Of Equitable Owner—Lien. 
 
 VIII. Estoppel. 
 
 IX. Exemption. 
 
 X. Jurisdiction to Decree Partition. 
 
 XI. Notice — Joint Possession, Widow and ChUdren. 
 
 XII. Purchase Completed by Widow. 
 
 XIII. SH. fa. sax Mortgage — Notice. 
 
 XIV. Subrogation — Eight of Distress. 
 
 II. Action t>y Administrator Against TVldo^r. 
 
 Widow's Interest.— Smith v. Boyer, 1834, 2 W. 173. In an action by 
 administrator against the widow for goods purchased by her she may set off 
 her third interest. 
 
 II. Agreement Between Widow, Admistrator and 
 Purchaser. 
 
 Widow's Share— Purchase Money.— My ton's Ap., 1883,3 Penny. 211. 
 An agreement was made between au administrator, the widow and the 
 purchaser of property of the estate who had given a mortgage to secure 
 a balance of the purchase money, to the effect that the share of the widow 
 should remain iu the hands of the purchaser who should pa,v her the inter- 
 est for life and the piiucipal on her death to those entitled. The administra- 
 tor thereupon entered satisfaction of the mortgage, referring to this agree- 
 ment; nineteen years afterwards the purclmser made an assignment for 
 creditors and in a contest between the widow and tlie creditors, it w:is held 
 in the lower conrt that the mortgage should be reinstated as to her share 
 and this was afiirmed \>'y a divided court. 
 
WIDOW. 641 
 
 III. Assignee's Sale, Property of Husband. 
 
 Bill in EcLuity Against Purchaser— Dower— Kelso's Ap., 1882, 6 Out. 
 7. A widow may bring a bill in equity in the common pleas against apur- 
 cnaser at the sale of an assignee in bankruptcy of her husband, to enforce 
 her dower and she is not estopped by her representations, while covert, to 
 the intending purchaser that she will not claim her dower. 
 
 IV. Confidential Relation Bet^ween 'Widow and 
 
 Executor. 
 
 Release of Executor— Burden of Proof.— Cunningham's Ap., 1888, y 
 Oum. 464 The relation of trust and confidence between an executor and 
 testator's widow and devisees, puts the burden of proof upon the benefi- 
 ciaries to show the lairness of a release obtained by the executor from the 
 widow of all her interest in the estate. 
 
 "V. Do-^irer. 
 
 Jurisdiction.'Commom Pleas. — Robins «. Green, D. C.,1874. IW. N. C. 
 143. Since Act April 20, 1869, the common pleas has not jurisdiction of a 
 bill to charge dower. 
 
 lb.— lb.— Sum in Lieu of —Borland v. Murphy, 1877, 4 W. N. C. 472. 
 The common pleas has power in equity to award a sum in lieu of dower 
 and charge it ou land. 
 
 lb.— lb.— Purchaser, Sale Assignee of Husband.— Kelso's Ap., 1882, 
 <5 Out. 7. A widow may bring a bill in equity in the common pleas against 
 a purchaser at the sale of an assignee in bankruptcy of her husband, 1o en- 
 force her dower, and she is not estopped by her representations, while 
 covert, to the intending purchaser that she will not claim her dower. 
 
 lb.— lb.— Murrell's Ap. IS8.S, 42 Leg. Int. 4.55, S. C. 16, W. N. C. 491. 
 The common pleas has jurisdiction of a bill asking for an assignment of 
 dower. 
 
 VI. Election Under and Against Will. 
 
 Evidence of. — Beatty v. Byers, 1851, 6 H. 105. Lap^e of time is no 
 evidence of election — it must be made by an unequivocal act and by all in- 
 iterested. 
 
 lb. — Coe«. Rogers, 1874, 27 S. 160. A widow who was also executrix, 
 included in her administration account the item " by balance retained by 
 executrix according to the will." Seld, to be unequivocal evidence of elec- 
 tion. 
 
 lb.— Rhodes's Est., O. C. 1875, 2 W. N. C. 188. S. C. 32 Leg. Int. 440, 
 11 Phila. 10^?. A widow's election must be intelligently made; to estab- 
 lish against her an election by matter in pais, there must be conclusive 
 proof. 
 
 Ib.-Sterr'sEst. O. C. 1879, 7 W. N. C. 3.5, S C. .36 Leg. Int. 137, 13 
 Fhila. 212. An election may be evidenced by matters inpais. 
 
 41 — EQUITY. 
 
C42 WIDOW. 
 
 Legatees Disappointed.— Young's Ap., 1885, 32 Pitts. L. J. 316. 
 Where by her election a widow disappoiuts legatees, equity sequestera thu 
 legacies and devises to the widow (which she has refused) for the benefit of 
 the disappointed legatees. 
 
 - Taking Against Will— Post Nuptial Settlement.— Campbell's Ap.. 
 1876, 30 S. 298. A widow elected nut to take under her husband's will 
 which was made in pursuance of a post-uuptial settlement. She filed a bill 
 against his executors asking that the settlement be rescinded on the ground 
 of fraud. Ifeld, That although the orphans' court would have had jurisdic- 
 tion over the settlement had it been set up against her in the distribution 
 yet the common pleas had concurrent jurisdiction. 
 
 Taking Under Will— Conversion.— Hoover «. Landis, 1874, 2G S. 354. 
 A widow who elects to take under the will, takes the property as it exists 
 deJiors the will, and is nofraffected by a conversion which the provisions of 
 the will work. 
 
 Withdrawing Election — Discretion of Judge.— Barry's Est., O. C.,^ 
 1880, 37 Leg. Int. 62. Although a widow has given notice of her intention 
 to take against the will, it is within the discretion of the auditing judge to 
 permit her to withdraw her election at any time before adjudication. 
 
 "VII. Of Equitable Ow^iier— Lien. 
 
 Bncumbrance— Widow's Interest— Agreement.— De.vter's Ap., 1876, 
 
 31 S. 403. An agreement sealed and recorded by al! tlie parties in interest, 
 that the widow's interest should remain charged on the land, creates a valid 
 encumbrance whatever it be called. 
 
 Vendor— ITew Contract— Deed.— Aldrieh v. Bailey, 1872, 21 S. 24G. 
 A widow of an equitable owner of land under articles, applied to the vendor 
 for a new contract, which however was never signed by the vendor, and no 
 purchase money was paid by the widow who continued in possession. After- 
 wards one of the decedent's children got a deed made to him and paid the 
 balance of the purchase monev. Seld his title was best. 
 
 VIII. Esteppjiel. 
 
 Approving Order of Court for Partition.— Young v. Babilon, 1879, io 
 N. 280, rev'g 26 Pitts. L. J. 149. A widow who endorses and approves of 
 record an order of court for partition and agrees that it shall be confirmed, 
 is estopped from afterwards setting up an adverse title to the land. 
 
 Assent to Sale— Taking .Against Will.— Taggert's Ap., 1882, 3 Out. 
 627. A wife elected to take against a will which gave her such interest as 
 the intestate law would have done, and provided that when any land was 
 sold, her third should remain a charge unless she expressed her intention 
 otherwise. Land was sold, nevertheless, under these conditions. After- 
 wards, the children wishing to sell the entire land, the executor sold the 
 whole title, one-third to remain a charge. The widow was present and 
 made no objections to the terms of the sale. Held that she was estopped 
 from enforcing partition 
 
 Deed not Acknowledged— Annuity. — Clark v. Thompson, 1849, 2 T. 
 274. A feme covert who did not acknowledge a deed, but who, after her 
 husband's death, received for three years the annuit" under it, is not es- 
 topped from ^serting her title 
 
WIDOW. 643 
 
 Dower— Family Settlement.— Simpson's Ap., 1848, 8 Barr. 199 
 "Where a widow has ratified a family compromise by accepting as payment 
 of her share, thereunder, she is estopped from claiming her dower. 
 
 lb.— Puroliaser, Sale, Assignee of Husband.— Kelso's Ap., 1882, 6 Out. 
 7. A widow may bring a bill in equity in the common pleas against a pur- 
 chaser at the sale of an assignee in bankruptcy of her husband, to enforce 
 her dower, and she is not estopped by her representations, while covert, to 
 the intending purchaser that she will not claim her dower. 
 
 Election. — Light v. Light, 1853, 9 H. 407. An election by a widow to 
 take under the will, though not made in the statutory way, may, in the 
 absence of misrepresentation, bind her as an estoppel. 
 
 lb. — Ignorance. — Maple d. Kusart, 1866, 3 S. 348. A husband by will 
 directed his wile's land to bo sold and the proceeds divided. This was done, 
 the wife requesting one of the children to buy it in, and receiving part of 
 the price, though not an election perhaps, because she was ignorant of her 
 rights, yet it was a plain case of estoppel. 
 
 Life Estate— Payments — Troxell v. Crane Iron Co., 1862, 6 Wr. 513. 
 A widow had a life estate in certain mining rights and her son the remain- 
 der; her son, with her consent, sold the right to a company for a fixed toll. 
 This the company paid to either the son or the mother as was most conven- 
 ient. Held the mother had done nothing to estop her from claiming the 
 rent for her life, and upon notice it must be so paid. 
 
 IX. Exemption. 
 
 Laches.— Sculler's Estate, 1887, 5 Pa. Co. C. Rep. 188. If a widow be 
 guilty of laches she will be deprived of her statutory exemptions. 
 
 lb.— Cowley's Ap. 1887, 20 W. N. C. 28. A widow who refused to have 
 anything to do with her husband's estate, stating that it would have to be 
 sold to pay his debts, and who conseuted to the appointment of an .nrimin- 
 istrator, cannot, after sale of the estate, claim her exemption. 
 
 Proceeds of Sheriff's Sale.— Nerpel's Ap., 1S79, 10 N. 334. A widow 
 cannot claim her exemption out of the proceeds of a sheriff's sale of land in 
 preference to a mortgagee of her husband. 
 
 Sale, Mortgaged Premises. — Kauffman's Ap., 1886, 2 Amer. 645. A 
 widow is not entitled to exemption out of a fund raised by a sale of mort- 
 gaged premises as against the mortgagee. 
 
 X. Jurisdiction to Decree Partition. 
 
 Interest of Widow— Intestate Act.— Ceilings v. Dougherty, C. P. Lu- 
 zerne, 1873, 1 Scr. L. T. 9. Equity has no jurisdiction to set out the inter- 
 est of a widow under the intestate act or to decree partition. 
 
 XI. Notice— Joint Possession, ^Tidow^ and Children. 
 
 Purchaser— Title of Children.— Jackson v. McFadden, 1877, 4 W. N. 
 C. 539. .Toint possession of land by a widow and children of a decedent, is 
 constructive notice to a purchaser from the widow (who holds a, deed), of 
 the title of the children. 
 
644 WIDOW— WIFE. 
 
 XII. Purchase Completed by ^ido^«r. 
 
 Recovery by Heir — Conditional Verdict.— Donovan v. Driacoll, 1882, 12 
 W. N. C. 203, (see also 12 N. 509 8 W. N. C. 369.) Where a widow com- 
 pletes a purchase commenced by her husband, an heir can recover from her 
 only upon repaying her for expenditures and improvements. The court 
 would order a conditional verdict to this effect. 
 
 XIII. Sci. Fa., Sur aiortgasre. 
 
 Notice. — Hare v. Mallock, 1836, 1 M. 268. Notice need not be given to 
 widow and heirs in a scire facias sur mortgage against the executors of the 
 mortgagor. 
 
 II). — Wallace v. Blair, 1854, 1 Gr. 75. The only effect of not serving a 
 scire facias sur mortgage upon the heirs of the deceased mortgagor, is that not 
 having had their day in court they are not precluded from defending in the 
 ejectment subsequently brought bj the purchaser. 
 
 XIV. Subrog^ation— Riglit of Distress. 
 
 Annuity— Personal Remedy.— Shoufaer«. Coover, 1841, i w. & s. 400. 
 There can be no subrogation to the right of distress given a widow for her 
 annuity. It is a purely personal remedy. 
 
 ■WIFE. 
 
 See Adjustment {Legacy, Mortgage), p. 31; Assignment {JSuAand and 
 Wife), p. 71; Mabried Woman, p. 72; Confidkktial Relation {Hus- 
 band and Wife), p 119 ; ESTOPPEL, pp. 199-216 ; Husband and Wipe, 
 p. 238 ; Injunction (Married Woman), p. 297 ; Mortgage {Husband 
 and Wife), p. 354-358 ; Tbusts and Teustees pp. 538, 550, 553. 
 
 Action Between Husband and— Miller v. Miller, 1863, 8. Wr. 170. An 
 action between husband and wife will not be sustained in Pennsylvania, 
 except where expressly allowed by statute. 
 
 Agreement to Separate from Husband— Deed of Separation.— 
 
 Bonslaugh v. Bouslaugh, 1828, 17 S. & R. 361. The provisions of a deed of 
 separation between husband and wife acted upon for nine years will be en- 
 forced against creditors ol the former. 
 
 lb. — Lehr v, Beaver, 1844, 8 W. & S. 102. An agreement of separation 
 between a husband and wife, giving to the latter half the unpaid purchase 
 money of lands of the wife formerly sold by the husband will be enforced. 
 
 lb.— Tripartite Articles— Trustee Refusing to Sign— Specific Per- 
 formance. — Smith V. Knowles, 1853, 2 Gr. 413. Equity will not specifi- 
 <;aUy enforce tripartite articles of separation signed by the husband and 
 wife, but which, for a technical objection, the trustee has refused to sign. 
 
 lb.— Intervention of Trustee.- Bowers v. Clark, D. C. 1855. 12 Leg. 
 Int. 176, S. C. 1 Phila. 561. The provisions of an agreement for separation 
 between husband and wife will be enforced in Pennsylvania thoii(;h made 
 without the intervention of a trustee. 
 
WIFE. S4.J 
 
 Bond and Mortgage by— Personal Liability of.— Sawtelle's Ap., 
 
 1877, 3 N. 306. A bond and mortgage given by a married woman for the 
 puicbase money of land, do not bind her personally, but may be enforced 
 against the land on the equitable ground that she will not be allowed to 
 keep both the price and the land. 
 
 lb. Validity.— Shnyder v. Noble, 1880, 13 N. 286. A bond and mort- 
 gage given by a marriage women to secure the purchase money of an estate 
 conveyed to her is valid against the property. 
 
 lb.— lb.— Chase v. Hubbard, 1881, 3 Out. 226. A bond given by a mar- 
 ried woman with a purchase money mortgage may be enforced against her 
 as to the l»nd in question. 
 
 Chattels, May Acquire Property in— Husband's Assignment.— 
 
 Bogers B. Fales, 1847, 5 Barr, 154. A feme covert may acquire property in 
 chattels either from her husDand or by gifts from strangers, and such prop- 
 erty does not pass by a voluntary assignment of the husband for creditors. 
 
 Deed by— Under False Kcpresentation— Cancellation.— Jewett v. 
 Lineberger, 1869, 3 Crum. 157, S. C. 16 Pitts. Leg. Int. 133. Equity will 
 order the deed of a married woman to be delivered up and cancelled where 
 the justice before whom her saparate acknowledgment was taken, made 
 &lse representations to her in order to secure a first lieu on the land in the 
 hands of the grantee. 
 
 Desertion— Distributive Shares of Father's Estate— Trustees.— 
 Titus's Est., 1845, 3 Clark, 468, S. C. 5 Pa. L. J. 522. Where a wife who 
 has been deserted by her husband becomes entitled to a distributive share 
 of her lather's estate, the orphans' court will order that the share be paid 
 to trustees for her. 
 
 Dower.— Assignment for Creditors by Husband.— Helfrich v. Ober- 
 myer, 1850, 3 H. 113. Dower is not barred by a voluntary assignment for 
 creditors in which the wife did not join. 
 
 lb.— lb.— Blackman's Est., O. C. 1866, 23 Leg. Int. 125, S. C. 6. Phila. 
 160. An assignment for creditors by the husband alone does not divest the 
 ■wile's dower. 
 
 lb.— Mortgage by Husband to Bar Dower. — McClurg v. Schwartz. 
 
 1878, 6 N. 521. Where a husband gives a mortgage upon his property and 
 permits judgment to be recovered on it so as to bar his wife's dower by a 
 sheriff's sale, the wife can apply to the equity side of the court to open the 
 jndgment and let her into a defence, but cannot enforce her equity by ap- 
 plying to the law side to set aside the judgment on the ground ot irregu- 
 larities in its entry. 
 
 Estoppel— Claim of Exemption— Tenant of Purchaser.— Fillman v. 
 Divers, 1858, 7 C. 429. A ferae covert cestui que trust is not estopped from 
 setting up the trust by having claimed ^300 exemption at the sheriff's sale 
 of the trust estate (her husbaud being trustee), and by afterwards becom- 
 ing the tenant of the purchaser. This, however was strong evidence 
 against her. 
 
 lb. — Wagner's Ap., 1881, 2 Out. 77. Silence will not estop a married 
 won)an in a transaction between her husband and a stranger, in a case 
 where she gets an advantage through a mistaken conception of her title by 
 the stranger, there having been no inquiry made of her. 
 
 Gift.— Husband to Wife.- Eessler v. Whitmer, 1859, 1 Pears. 174. 
 Where property is given away in order to deprive a wile of her share, it is 
 such a case of fraud as gives equity complete jurisdiction. 
 
646 WIFE. 
 
 lb.— Liens on Land Convoyed.— Nippes's Ap., 1874, 25 S. 472. A lien 
 on the land conveyed is not such a debt as avoids a conveyance by a hus- 
 band to his wife. 
 
 lb. — Intention. — Conley v. Bentley, 1878, 6 N. 40. Equity will su.s- 
 taiu a gift from a husband to his wife if it be found by the jury that there 
 was no fraudulent intent against creditors. 
 
 rb.— Professional Men.— Gross's Estate, 1888, 45 Leg. Int. 224, In the 
 case of a professional man whose profession was his capital, long illness will 
 be sufficient to rebut the presumption of fraud in making gifts to his wife, 
 when his property did not prove sufficient to pay his debts. 
 
 lb.— Responsive Answer to BiQ.— Gleghome's Ap., 1888, 20 W. N. C. 
 483. A bill was filed by a wife against her husband alleging a loan of 
 money; the averring that the money was a gift was held responsive to the 
 bill. 
 
 Legacy. — Assignment by Husband. — Skinner's Ap., 1847, 5 Barr, 
 262. An assignment by a husband of all his personal property which he is 
 in any manner entitled to, be the same in possession or action, does not in- 
 clude an outstanding legacy to his wife. 
 
 Life Insurance Policy — Assignment of — Insurance Co. v. Brown et. 
 
 al., 1888, 5 Lan. L. Rev. 394. An assignment of a life insurance policy 
 taken out by a wife on her husband's life, for her sole use, or in case of her 
 death before her husband, then for the use of her children, is void as to the 
 children. 
 
 Mortgage— Assignment of — Moore v. Cornell, 1871, Irt S. 320. An 
 assignment of a mortgage by a married woman, her husband joining, but 
 she herself not acknowledging it, is void and will not be received as evi- 
 dence. 
 
 lb.— Creditor of Husband.— White's Ap., i860, 12 C. 134. Equity will 
 not assist a creditor of a husband to enforce the debt against the wife, 
 where, without consideration, she has given him a mortgage, and the same 
 has fairly come back into ber hands and been destroyed. 
 
 lb. — Expecteiicy — Husband's Creditors — Bayler v. Commonwealth, 
 1861, 4 Wr. 37. A conveyance of an expectancy is recognized in equitv; but 
 where a married woman, without receiving any consideration, mortgaged 
 her expectancy to secure her husband's creditors, equity will not lend its 
 aid to enforce it. 
 
 lb.— Future Advances to Husband.— Haffey i». Carey, 1873, 23S. 431. 
 
 A wife, her husband joining, may mortgage her property to secure future 
 advances to be made to her husband. 
 
 lb.— To Husband and Wife— Purchase Money— Release.— Trimble 
 
 V. Eeis, 1860, 1 Wr. 448. A mortgage given to husband and wife on the sale 
 of the wife's land and to secure the purchase money, cannot be released by 
 the husband. 
 
 lb.— In Name of Wife Alone.— Glass v. Warwick. 1861, 4. Wr. 140. A 
 Xjurchase money mortgage given by a married woman in her own name 
 alone, enforced in equity "so as to prevent great injustice." 
 
 lb.— Security for Husband's Notes— Assignment of.— O'Hara v. 
 Baum, 1878, 7 N. 114. A mortgage given by a married woman to one who 
 endorsed her husband's notes, is a security for the mortgagee alone, and an 
 assignment by him of the mortgage, limits it as a security to the amount he 
 has then actually paid as endorser, and on a reassignment to him, the mort- 
 gage does not again become a continuing indemnity. 
 
WIFE. 647 
 
 lb.— Security.— MoClanghiy v. McCIanghry, 1888, 6 Crnm. 477. A 
 mortgage securing a sum payable yearly dariug life to the mortgagee and 
 another sum yearly payable to his wife after his death, may not be satisfied 
 in full by the mortgagee himself. 
 
 lb.— -Separate Estate.— McKinney v. Hamilton, 1865, 1 S. 63. A mort- 
 gage giveu to secure part of the purchase money of a wife's separate estate 
 sold by her, named the husband as one of the mortgagees. Held that pay- 
 ment to him would not sStisfy the mortgage, and also that an entry of satis- 
 faction by him was without effect. 
 
 lb.— lb.— Sheppen's Ap., 1876, 30 S. 391. A wife's separate estate was 
 mortgaged and the husband received and used the money. His wife died 
 and the property was sold under the mortgage; the claimants for the sur- 
 plus were the husband's creditors and the wife's heirs. Reld that the credi- 
 tors could only claim through the husband, and that as he had already re- 
 ceived what was equal to his curtesy, the fund should go to the heiis of the 
 wife. 
 
 lb. — lb. — Building Association. — Juniata Building Assoc. V. Mixell, 
 3877, 3 N. 313, S. C. 9 Lan. Bar. 56. A wife by uniting with her husband 
 may give a valid mortgage to a building association on her separate prop- 
 erty to secure her husband's liabilities. 
 
 lb.— lb.— Building Assoc, v. Rice, C. P. 1880, 8 W. N. C. 12. The mort- 
 gage of a married woman given to a building association does not bind her 
 separate estate unless made to enable her to improve the same. 
 
 lb. — lb. — False Representations. — Cridge v. Hare, 1881, 2 Out. 561. 
 It is a good defence to ii mortgage given by a married woman on her separ- 
 ate estate that she was induced to give it by false representations, whether 
 or not the mortgage had anything to do with them. 
 
 Partition — Husband and Wife.— Mitchell v. Kintzer, 1847, 5 Barr, 216. 
 It is competent to show by parol that a deed of lands after a partition to 
 the husband of one of the heirs is in trust for the wife. 
 
 Purcliase— In Wife's Name. — Bowser v. Bowser, 1S76, 1 N. 57. Where 
 a husband purchases property, and the title is taken in the wife's nalne, 
 there is no presumption of a resulting trust e.xcept in favor of creditors. 
 
 lb.— From Wife— Husband's Creditors.— Lyon's Ap., 1877, 4 W. N. 
 C. 349. A bona fide purchaser or mortgagee from a wife has an equity 
 superior to that of the creditors of the husband, in favor of whom the hus- 
 band has conveyed to his wife. 
 
 Bent — ^Husband and Wife. — ^Wheelock v. Wheelock, C. P. Wyoming, 
 ly74, 1 C. P. Eep. 87. In equitable proceedings by a wile to compel her 
 husband to transfer to her real estate, the court will enjoin the tenant from 
 paying rent to the husband, but will not make a preliaiinary decree as to 
 the possession. 
 
 Sale— Wife Bidding at— Dundas's Ap., 1870, 14 S. 325. The orphans' 
 court can permit the wife of a trustee to bid at bis sale, but the sale will be 
 closely scrutinized, and in this case the trustees were surcharged the differ- 
 ence between the price paid and the value of the property at the time. 
 
 Sheriffs Sale— Promise— Husband and Wife.— First National Bank of 
 Carbondale v. Cowperthwaite, 1881, 10 W. N. C. 532. No resulting trust 
 will result in favor of the wife of the j udgment debtor at a sheriff 's sale, 
 from a promise made to her by the purchaser that he will purchase it for 
 her. 
 
S4S' WIFE. 
 
 Sole and Separate Use.— Fox v. Scott, C; P. 1856, 13 Leg. Int; 268', S. 
 C 2 Phila. 151. Where one enjoying the benefit of a trust for her sole anff 
 separate use becomes discovert, a conveyance of the legal title to her wilt be 
 decreed. 
 
 lb.— Trust.— liichty b. Hager, 1850, 1 H. 564. Where money left to a 
 married woman, with directions that it be invested in property for her sole 
 and separate use, is invested in property of greater value tbau the amount 
 of the trust fund, her husband supplying the balance of the purchase money, 
 the purchaser of the husband's title therein, is not, upon bringing ejectment, 
 entitled to a verdict for the land subject to the payment of the amount paid 
 Ijy the wife; but the verdict will be for him, subject to be defeated within 
 a certain time, by the payment to him of the amount of purchase money ad- 
 vanced by the husband. 
 
 lb.— lb.— Gamble's Est., O. C. 1878, 36 Leg. Int. 5, S. C. 13 Phila. 198. 
 Where an estate is given to a married woman for her sole and separate use, 
 a trust is created, although no trustee be named. 
 
 lb.— Trust for Life.— Moss's Est., O. C. 1882, 11 W. N. C. 306. Where 
 an estate is given to trustees "to receive and pay over" all income for the 
 separate use of a married woman for life, with remainder to her heir.s in fee 
 simple, the trust is valid for life though her coverture sooner determine. 
 
 Stock — Assignment for Creditors.— Slaymaker v. Bank of Gettysburg, 
 1849, 10 Barr, 373. Stock bequeathed to a married woman and over which 
 her husband has exercised no acts of ownership, will not pass by a general 
 assignment for creditors made by the latter. 
 
 Trust — Discoverture. — Steacy v. Rice, 1856, 3 C. 75. A trust for a 
 feme covert is executed upon her becoming discovert. 
 
 lb. — How Executed. — Bush's Ap., 1859, 9 C. 85. A trust to secure 
 property to a married woman is executed by the death of her husband, but 
 the trustee by resisting her claim was not charged the costs. 
 
 lb.— In Wife— Evidence.— Ziegler v. Shomo, 1875, 28 S. 357. To estab- 
 lish a trust in the wife against the creditors of the husband in whom is the 
 legal estate, the evidence must be clear; the wife's evidence being equivocal, 
 the trust would not be decreed. 
 
 lb., a Resulting — Sheriff's Sale.— First National Bank of Carbondale v. 
 Cowperthwaite, 1881, 10 W. N. C. 532. No resulting trust will arise in 
 favor of the wife of the judgment debtor at a, sheriff's sale, from a promise 
 made to her by the purchaser that he will purchase it for her. 
 
 lb.— Husband Using Wife's Money.— Rupp's Ap., 1883, 4 Out. 531, 
 S. C. 12 W. N. C. 138; 30 Pitts. L. J. 32. Where a husband used his wife's 
 money to complete a purchase of land under an agreement to take the 
 deed in her name which he afterward broke, there will be a resulting 
 trust to the wife though she afterward receive a note for her share of the 
 money. 
 
 Trustee.- Persch v. Quiggle, 1868, 7 S. 247. An agent or trustee for a 
 married woman is held to the strictest good faith, and cannot use the fund 
 in his own business without the utmost openness and frankness toward his 
 cestui que trust. 
 
 lb.— Wife's Money— Statute of Limitation.— Sergey's Ap., 1866, 10 
 
 S. 408. A husband received a wife's money in her presence, Seld, that 
 be received it as trustee, and Ihat he could not be compelled by creditors to 
 plead the statute of limitations. 
 
WINDOWS^WILL. 649 
 
 See IJTJONCTION {Jfuisanee) p. 262, {Party WaU) p. 286. 
 
 See Confidential Rela.tion {Executors atid Adminislratora). p. 121; Cots- 
 VEESION, pp. 123-127; Trusts and Trustees {Active Trustsf pp. 
 538-540, {Pcissive Trusts) p. 543, {Perpeiuities) pp. 543-544^ Pteeatmij 
 Words) p. 544, {Testamentary) p. 552. 
 
 Ante Nuptial— Estoppel.— Lant's Ap., 1880, 14 N. 279. A will made 
 by a woman jast before marriage under an agreement with her intended 
 hnsbaud. though revoked iu law by the marriage, will be enforced in equity 
 as an ante nuptial contract, which is binding on the husband by the prin- 
 ciple of estoppel if not otherwise. 
 
 Burial of Deceased Wife, Contrary to.— Gampler i'. Ponlson, et al., 
 1887, 44 Leg. Int. 16. "Where a husband buried his wife in his own lot 
 contrary to the request contained in an alleged will which was never pro- 
 bated, a'conrt of equity will not entertain a bill by the mother, father and 
 brother of decedent to enforce such request. 
 
 Compensation, Executor— Additional. — Shippen v. Burd, 1862, 6 Wr. 
 461. Where a testator provides for a compensation to his executors, they 
 are not entitled to additional compensation for services rendered as trustees 
 under the will. 
 
 Defeating Title. — McAteer v. McMnlleu, 1845, 9 Barr 32. One claiming 
 tmder a devisee has notice of a subsequent devise in the same will, which, 
 by election, might defeat the title of the first devisee. 
 
 Election— Taking Against Will— Compensation — Trustee. — Lewis 
 II. Lewis, 1850, 1 H. 79. A devisee who takes a tract against a will, 
 thereby disappointing other devisees, must make compensation to them out 
 of the land devised to himself. And if this land is of less value than 
 that taken from the disappointed devisees, be will be held as a trustee for 
 them. 
 
 lb. — Daughters — Invalid Will — Jurisdiction — Trust. — Vandyke's 
 Ap., 1869, 10 S. 481. A father gave his personal property to his daughter.'} 
 and his real property, which was iu New Jersey, to his sons. The 
 will was invalid according to New Jersey law. Held, that the daughters 
 were put to an election, also that equity had jurisdiction on the ground of 
 a trust. 
 
 lb.— Raised by Will.— Miller ». Springer, 1871, 20 S. 269. A case 
 «f election must be raised by the will itself; outside evidence is not ad- 
 missible. 
 
 lb.— Widow Taking Under.— Hoover v. Landis, 1874, 26 S. 354. A 
 widow who elects to take under the will, takes the property as it exists 
 tkhors the will, and is not affected by a conversion which the provisions of 
 the will wurk. 
 
650 WILL. 
 
 lb.— Withdrawal— Discretion of Judge.— Barry's Est., o. c, 1880, 
 37 Leg. Int. 62. Although a widow has given notice of her intention to 
 take against the will, it is withia the disuretion of the auditing judge to 
 permit her to withdraw her election at any time before adjudication. 
 
 Estoppel— Land of Another Devised— Payment Directed.— Thomp- 
 son V. Thompson, 1847, 7 Barr 78. Plaintiffs property was devised to 
 defendant, the will also directing defendant to pay plaintiff $150. De- 
 fendant took possession and after twenty years conveyed the land, plaintiff 
 joining in the deed. Held, that plaintiff was not by this estopped from 
 claiming the $150. 
 
 lb.— Recital in.— Bnrford v. Burford, 1857, 5 C. 221. A recital in a will 
 that "black acre has been given to A.," estops one claiming under the will 
 from disputing A.'s title. 
 
 Fraud— Making Will— Trustee.— Dangerfield v. Groome, C. P. 1876, 2 
 W. N. C. 710. Equity has jurisdiction of a bill charging fraud in prevent- 
 ing the making of a will and asking that the defendant be declared a trustee 
 for the intended beneficiaries. 
 
 Guardian— Intention.— Colehower's Est., O. C. 1878, 5 W. N. C. 343. 
 Where one is appointed guardian by will, and it is evident that the inten- 
 tion was to appoint him trustee, the court will consider him as appointed 
 trustee. 
 
 Interest of Cestui Que Trust — ^Execution. — Fiisher v. Taylor, 1829, 2 
 R. 33. The interest of a cestui que trust, under a will, which latter provides 
 that the same shall not be liable to any of the debts contracted by the 
 cestui que trust, cannot be taken in execution. 
 
 Invalid.— Long's Ap., 1878, 5 N. 196; 5 W. N. C. 309. A paper which 
 is evidently of a testamentary character, but which is wholly invalid as a 
 will, cannot be treated as a declaration of trust, since this would defeat the 
 statutes as to wills. 
 
 Laches— Precatory Words.— Kennedy v. Kennedy, 1874, 1 "W. N. C. 
 33. Equity will not move to enforce a clause in a will expressing the 
 desire of the testator that his daughter should have a home in the man- 
 sion house, when she has neglected to avail herself of her right for three 
 years. 
 
 Peace, Bill of— Jurisdiction.— O'Neil v. Hamilton, 1862, 8 Wr. 18. A 
 daughter under the will of her father was entitled to land bought by him 
 but not surveyed. She married and the deed was made by the vendor to 
 her husband. He sold the land to respondent who had notice of all the 
 facts. She brought this bill, praying that her title be quieted, that re- 
 spondent be declared a trustee and be ordered to convey the legal title to 
 her. Held that the district court had equity jurisdiction in the matter, and 
 that complainant was entitled to the relief asked. 
 
 Power of Appointment —Fry's Est., C. P. 1876, 33 Leg. Int. 238, S. C. 
 11 Phila. 305. A will executed before a deed of trust is not a good exercise 
 of a power of appointment reserved in the deed. 
 
 lb.— Donee of— Forfeiture.— Peffer's Ap., 1888, 45 Leg. Int. 314. 
 "Where the will of a donor gives an estate in trust to a son for life, and at 
 his death to the use of such of his children and issue as said son may by 
 last will appoint, the donee of the power having but one child, cannot so 
 condition the grant of the estate as in any event to work a forfeiture. 
 
 lb.— lb.— Validity of its Exercise.— Pepper's Est., 1888,45 Leg. Int. 
 54. Where the will of a donor gives an estate in trust to a son for life and 
 at his death to the use of such of his children and issue, and for such estates 
 
WILL. 651 
 
 and in snob shares aa he shall by his last -will appoint ; the donee of the 
 power, though he liave but one child, has an exclusive right of'selection as 
 to the quantity of estate granted to said child within the limitation against 
 perpetuities. 
 
 Power of Distribution— Execution of— Seal.— Hacker's Appeal, 1888, 
 6 Cm m, 192. Where the donor of a power required the donee to execute 
 the same by a testamentary writing under her hand and seal, a writing, 
 "In witness whereof I have hereunto set my hand and seal," Signed, 
 
 "Ellen Wain," was a good execution of the power. The dash will be 
 
 considered a seal. 
 
 Power in Will — Sale by Executor — Jurisdiction.— Mnssleman's 
 Ap., 1870, 15 S. 480. Equity has no j nrisdiction to decree specific perform- 
 ance of a sale by an executor under a power in the will. 
 
 lb. — To Mortgage. — Edmonson v. Nichols, 1853, 10 H. 74. An estate 
 given by a testator to his wife with power "to mortgage if she needs," and 
 after her death to his son, gives her power to mortgage the fee. 
 
 Trusts, Active.— Ryan's Est., C. P. 1883, 14 W. N. C. 79. A trust 
 created by a wife in her will for her husband for life free from his debts, 
 then lor her children for life with remainder to their heirs, is an active trust 
 throughout. 
 
 Trusts, Resulting- Purchase by Husband in Wife's Name.— Wylie 
 1). Marsley, 1888, 45 Leg. Int. 486. There is no resulting trust in favor of a 
 husband by reason of a purchase by him with his money in the name of his 
 wife, and nothing but clear and convincing evidence of intention will create 
 such a trust. 
 
 Trusts, Testamentary— Exclusive Jurisdiction. — Innes's Est., 1838, 
 4Wh. 179. Act June 14. 1836, Sec. 15 (trusts), vested in the orphans' 
 ■court exclusively the jurisdiction of trusts created by will where tlie ex- 
 ecutor or administrator was trustee. The early statutes conferring on the 
 common pleas jurisdiction in cases of trusts fully reviewed. 
 
 lb. — Jones V. McKee, 1846, 3 Barr 496. A mother had in her will left a 
 tract to her son and daughter. The sou induced her to leave it all lo the 
 daughter, half of it in trust for him. A codicil was added leaving it all to 
 the daughter, absolutely, and the mother thereupon asked her daughter if 
 she understood that half of it was for her brother, and the daughter assented. 
 Held these facts established a trust. 
 
 lb. — Statute of Limitations. — Agnew v. Fetterman, 1846, 4 Barr 56. 
 A testamentary trust for the p.iyment of debts does not remove the bar of 
 the statute of limitations, but if it be an express trust it prevents the run- 
 ning of the statute against debts due at the testator's death. 
 
 lb.— Concurrent Jurisdiction.— Brown's Ap., 1849, 2 J. 333. The or- 
 phans' court has concurrent jurisdiction with the common pleas over all 
 testamentary trusts. 
 
 lb.— Jurisdiction, Common Pleas.— Norris v. Farrell, C. P. 187G, 2 W- 
 N. C. 423. The common pleas has no jurisdiction of a bill filed to deter, 
 mine what trusts created by a will are valid, and whether or not they are 
 charged on the land. 
 
 lb.— lb.— Act of April 26, 1855.— Mann v. Mullin, 1877, 3, N. 297. 
 Act April 26, IK.'iS, empowering courts of common pleas to act as testament- 
 ary Inisteps applies to a case where the will niakina; such appointment was 
 made before the act was passed, but the testator did not die until after- 
 ■wards. 
 
652 WILL. 
 
 lb.— lb.— Act June, 14, 1836.— Anderson v. Hengey, 1879, 7 W. N. C. 
 39, S. C. 26 Pitts. L. J. 107. Act June 14, 1836, did not take away the 
 jurisdiction of the common pleas over such testamentary trusts as were tben 
 under its care. 
 
 lb.— Gift, Evidence.— Franklin's Est., O. C. 1885, 42 Leg. Int. 68. 
 Where a gift is made by will and appears from the will to be in trusty parol 
 esideuce is admissible to identify the trust. 
 
 lb.— Sole and Separate Use.— Gamble's Est., O. C. 1878, 36 Leg, Int. 
 5, S. C. 13 Phila. 198. Where an estate is given to a married woman for 
 her sole and separate use, a trust is created although no trustee be nanaed. 
 
 lb. — ^Evidence — Laches. — McKee v. .Tones, 1847, 6 Barr 425. It-ia not 
 error to admit evidence explaining seeming laches in enforcing a trust. 
 
 lb.— Eecognition of Trust— Revocation— Statute of Limitations.— 
 
 Arthurs v. Weisley, 1882, 3 Penny. 29. A direction in a will to convey 
 certain land to one who had furnished the money for the purchase thereof, 
 as would appear by the books of the testator, is such a recognition of the 
 trust as precludes the defence of the statute of limitations, although the 
 will is subsequently revoked by the marriage and birth of issue. 
 
 lb.— Title Derived Through.- Anshutz v. Miller, 1876, 31 S. 212. A 
 devise was to A. for life, then to his widow for life, and then to B. and if 
 B.'s mother survived her, she was to have the income during life; all the 
 parties mentioned, together with B. 's father, joined in a conveyance. Held 
 thalj the title was marketable. 
 
 lb.— Harmon's Ap., 1875, 2 W. N. C. 62. A title which was devised 
 through a widow whose title rested on her husband's will which devised 
 the land to his wife for life, remainder to his children for life, remainder to 
 their children in fee, the last devise being followed by the words "1 give 
 and bequeath the same to my beloved wife," is unmarketable. 
 
 Trustees, Testamentary— Settlement of Account,— Wimmer's Ap., 
 1835, 1 Wh. 96. The orphans' court has power to compel the settlement of 
 his accounts by a testamentary trustee. 
 
 lb.— Jurisdiction, Orphans' Courts.— Ebert's Ap., 1840, 9 W. 300. 
 Act June 14, 1836, spc. 15, giving the orphans' court exclusive jurisdiction 
 over trusts declared by will and vested in the executor, does not apply to a 
 trust vested by the will in A., "vvho, in another part of the will, is appointed 
 executor. 
 
 lb. — ^Ib. — Wheatley v. Badger, 1848, 7 Barr 459. A. by a will was ap- 
 pointed "my executor and trustee." Held that his trusteeship was not vir~ 
 tute officii ; hence the orphans' court had no jurisdiction over the trust. 
 
 lb.— lb.— Eckles V. Stewart, 1866, 3 S. 460. Where heirs make a family 
 arrangement whereby the administrator becomes their trustee, they cannot 
 proceed against him in the latter capacity in the orphans' court. 
 
 lb.— lb.— Hutchinson's Ap., 1876, 11 N. 509. The orphans' court haa 
 power to control testamentary trustees in the exercise of their powers over 
 real and personal estate. 
 
 lb.— Husband and Wife.— Kintzinger's Est., 1841, 2 Ash. 455. A hus- 
 band who, as trustee under a will, lielrl property, the beneficial interest in 
 which, by the death of the first beneficiary, vested in his wife, will be 
 obliged to account to his wife for it, a divorce being granted, unlesa he 
 shows positive acts by which he haa reduced it into his own possession. 
 
WILI/ — WITNESSES. ^8 
 
 ' lb.— lb.— Ryan's Est., C. P. 1883, 14 W. N. C. 79. A trust created by 
 a wife in her will for her hu!>baud for life free from his debts, then for her 
 children for life with remainder to their heirs, is an active trust through- 
 out. 
 
 lb.— Liability to Account.— Jacobs v. Bull, 1833, l Watts, 370. One, 
 at the same time executor and trustee, who receives money in his latter 
 capacity, cannot be made to account for it in his former. 
 
 lb.— lb.— Carlile's Ap., 1861, Wr. 259. Where a will vests a trust in 
 the executors for four years, they are not liable to account for rents accru- 
 ing after that time. 
 
 lb.— None Named.— Varner's Ap., 1875, 30 S. 140, S. C. 2 W. N. C. 
 339. A devise to a married daughter for her .sole and separate use without 
 control of her husband, no trustee being named, is a trust which equity 
 will support by appointing a trustee. 
 
 lb.— Surcharge— Rent.— Pleasanton's Ap., 1882, 3 Out. 362, S. C. 11 
 W. ST. C. 373. Since a trustee is never surcharged for a loss resulting from 
 error of judgment, he Avill not be made liable for rent of property which 
 has stood vacant because he has bone fide demanded too much rent. 
 
 lb.— lb.— When Allowed.— Supplee's Est., 0. C. 1886, 1 Pa. Co. C. 
 Rep. 458. A trustee under a will who has been allowed payments of inter- 
 est on a mortgage on the trust estate, and who pays off the same when it 
 should have been paid by the personal estate of the testator will be sur- 
 charged with the latter amount but not with the amounts paid for interest 
 :ind will be allowed commissions and expenses. 
 
 ■WITNESSES. 
 
 See Evidence, p. 220. 
 
 Attachment— Before Examiner.— City ». McManes, C. P. 1885, 42 Leg. 
 Int., 444. A witness before an examiner can be compelled by attachment 
 to refer to his books in order to be able to answer a proper question. 
 
 Competency — Mortgagee. — Shrom v. Williams, 1862, 7 Wr. 520. In scire 
 facias sur mortgage, by an assignee of the mortgage, the original mortgagee is 
 a competent witness for the mortgagor to prove partial failure of considera- 
 tion and that the assignee took with notice of this, although the witness 
 was the endorsee of a promissory note which the mortgage has been given 
 to secure. 
 
 lb.— Gamble v. Hepburn, 1879, 9 N. 439. If the use plaintiff be dead, 
 the defendant is not a competent witness with regard to occurrences in the 
 lifetime of the former. 
 
 lb.— Compulsory Attendance.— Hook's Est., O. C. 1880, 9 W. N. O. 
 320. A witness will be compelled to attend before an examiner at the in- 
 stance .(rf either party, until his deposition has been completed and signed. 
 
 lb.— Discovery Against.— Phillips v. Kern, D. C. 1865, 28 Leg. Int. 45, 
 S. C. 6 Phila. 9. A bill ot discovery will not lie against one who can be 
 examined as a witness. 
 
 lb.— lb.- Block V. Universal Ins. Co., C. P. 1883, 40 Leg. Int. 160. The 
 act allowing the opposite party to be called as a witues-s, does not interfere 
 with the right of a party to have a bill of discovery, especially against a 
 corporation. 
 
654 WITNESSES — WORDS. 
 
 Estoppel. — ^Incompetent Permitted to Testify. — Nolan & Sweeny, 
 1875, 30 S. 77. A plaintiff was permitted to testify (an exception not being 
 allowed) concerning a transaction, the other party being dead. Held, that, 
 he was estopped from objecting to the competency cf the wife of the other 
 party. 
 
 lb.— Interested.— McBn'de's Estate, 1887, 4 Pa. Co. C. Eep. 564. When 
 one calls an interested witness and examines him, he is estopped from ex- 
 cepting to the admission of testimony of this witness when called by the 
 other side. 
 
 lb.— Partner Objected to— Questioning Partnership.— Kelly v. Eicli- 
 man, 1838, 3 Wh. 419. A defendant who has objected to a witness as teiiip; 
 a partner of plaintiff and whose objection has been sustained, is estopped 
 in a subsequent action by the plaintiff and witness as partners, from setting 
 up that there is no. partnership. 
 
 Trustee of Charity.— Sorg v. First German Congregation, 1869, 13 S. 
 156. A trustee of a charity who has no personal interest in the property is 
 a competent witness in a suit to which the corporation is a party. 
 
 WOIHAr«. 
 
 Creation of Trust.— Contemplation of Marriage — Reformation.— 
 
 McFarland's Ap., 1886, 17 W. N. C). 443, Aff'g. 1 Pa. Co. B. R. 195. Where 
 a woman in contemplation of marriage has created for herself a trust which 
 inadvertently contained no power of revocation, and yet the plain inten- 
 tion was only to create a trnst during coverture, equity will reform the 
 instrument by inserting suoli a power. 
 
 Sole and Separate Use —Trustee.— Lewis ». Eddy, C. P. 1880, 8 W. 
 N. C. 355. Equity will decree that a trustee in a trust, which was created 
 tor the sole and separate use of a woman, neither married nor contemplat- 
 ing marriage, shall make her a deed free from all trusts. 
 
 Spendthrift Trust.— Ashhurst's Ap., 1875, 27 S. 464. There may be a 
 spendthrift trust for a woman as well as a man. 
 
 In Injunction. — Surplusage. — Barclay v. Wickman, C. p. 1875, 1 W. 
 N. C. 523. Where an injuncticm is granted ''as prayed for," and the writ 
 contains at the end the printed words "until further order of the court," 
 these will be rejected as surplusage if inconsistent with the body of the in- 
 junction. 
 
 lb.— Use of.— Wamsutta Mills v. Allen C. P. 1878, 6 W. N. C. 189, S. 
 C. 35 Leg. Int. 410, 13 Phila. 535. An injunction granted to restrain the 
 use of the word "Wamyesta" asan infringment of the word "Wamsutta." 
 
 lb. — Wehn i>. Krause, 0. P. 1878, 5 W. N. C. 272. An injunction granted 
 against the use of a word which the complainant had coined (Lithogen) al- 
 though claimed to have become a generic term. 
 
 lb.— Sheppard v. Stuart, C. P. 1879, 7 W. N. C. 498, S. C. 36 Leg. Int. 34, 
 13 Phila. 117. The use of the term " new excelsior " enjoined as against 
 the word "excelsior" in the same branch of trade. 
 
WOEDS — WEIT OF ASSISTANCE. 655 
 
 lb.— Barnett v. Kent, C. P. 1880, 8 W. N. C. 355. Equity will not en- 
 join the use of non-distinctive word and sign (diamond) in a trade mark, es- 
 pecially where that word and sign have been used in the trade before the 
 complainant adopted it. 
 
 Of Inheritance— Deed— Covenant of Warranty— Estoppel.— Shaer 
 
 v. Galbraith, 1847, 7 Barr, 111. Although a deed without words of inherit- 
 ance in the (granting clause is not enlarged by a covenant of warranty in fee 
 simple, yet such covenant does operate as an estoppel upon the grantor and 
 those with notice of the deed. 
 
 Sufficient— Devise— Sole and Separate Use.— Skinner v. Bradford, 
 1835, 1 M. 52. A devise to a daughter so that she shall receive the interest 
 and appointing a trustee, does not create a trust for her sole and separate use 
 but goes to her husband. 
 
 lb.— Snyder v. Snyder, 1849, IQ Barr, 423. The words "for her owu 
 proper use," in a conveyance to a woman, give her a separate use. 
 
 lb.— Eastwick's Est., O. C. 1880, 8 W. N. C. 503, S. C. 37 Leg. Int. 83, 
 13 Phila. 350. The words " for the sole use, etc., " are suflScient to raise a 
 sole and separate use. 
 
 WORTHLESS NOTE. 
 
 Against Creditor— Evidence — Set-Off. — McGowan v. Budlong, 1875, 
 29 S. 470. One who gets possession of a worthless note against his creditor, 
 may offer it in evidence as a set-off. and it is for the jury to say whether he 
 holds the note as an experiment or whether there was an actual transfer. 
 
 WRITINGS. 
 
 Two, in Contract Sale of Lands— Specific Performance.— Jones v. 
 Pennel, D. C. 1855, 12 Leg. Inf. 43, S. C. 1 Phila. 539. Equity will speci- 
 fically enforce a contract for the sale of lands although its terms have to be 
 gathered from two writings, one signed by each party to the sale, if its 
 terms are sufficiently clear to' make it safe for the court to enforce it without 
 risk of injustice to either party. 
 
 WRIT OE ASSISTANCE. 
 
 Injunction — Attachment.— Commonwealth V. Dieffenbaeh, N. P. 1854, 
 20 Leg. Int. 140, S. C. 5 Phila. 236. Where defendants are enjoined to give 
 np possession of lands which are within the j urisdiction of the court, and an 
 enforcement of the injunction by attachment does not avail, the court will 
 direct a icrii of assistance to the sheriff. 
 
 Prothonotary May Issue. — Commonwealth v. Dieffenbaeh, N. P. 1854, 
 3 Gr. 368, S. C. 3 Luz. L. Obs. 402. Where a decree of equity is that lands 
 in the county be delivered, a writ of assistance to the sheriff is a matter of 
 course vfhich the prothonotary may issue. 
 
eS6 WEIT or EBEOK — WEONG KBASON FOB DECBEB. 
 
 WRIT OF BRROR. 
 
 Appeal to Order Opening Judgment.— Scott's Ap., 1889, 8 Cram. 155. 
 ■Where a judgment has been opened and the issue tried, the plaintiff may, 
 ■with his writ of error, also take au appeal to the order opeuing the judg- 
 ment,, and if the appeal he sustained the trial ot the issue has been rendered 
 abortive. 
 
 Judgment— Set-Off Against Another.— Wellock v. Cowan, 3827, 16 S. 
 & E. 318. No writ of error lies to an order made in the lower court allow- 
 ing one judgment to be set-off against another. 
 
 lb.— lb.— Remedy.— Horton v. Miller, 1863, 8 Wr. 256. Where there 
 has been an application to the court to set off one judgment against another, 
 the remedy of the party aggrieved by the decree is by appeal, not by writ 
 of error. 
 
 'WRIT OK REVIVAJU. 
 
 Assignee, Part of Judgment— Scire Facias. — Winters's Kst., 1883, 2 
 Ches. Co. E. 93. An assignee of part of a judgment may issue a scire fadaa 
 thereon and revive his interest only. 
 
 Parties— Trust and Trustee. — Bowers v. Harner, O. C. 1858, 15 Leg. 
 Int. 15Q, S. C. 3 Phila. 146. As against the cestui que trvM, it is not neces- 
 sary to make the trustee a party to a writ to revive the lien of a judgment. 
 
 ■written: and oral agreement. 
 
 Ejectment— Estoppel.— McEeynolds v. McCord, 1837, 6 W. 288. A 
 plaintiff in ejectment who has asserted a written agreement under which 
 he claims title, is not thereby estopped from asserting another and inde- 
 pendent oral agreement. 
 
 Evidence— -Set-Off.— Everson v. Fry, 1873, 22 S. 326. A set-off is in the 
 nature of a separiiti action, therefore where an action is on a written agree- 
 ment and the set-off on a contemporaneous verbal agreement, to admit evi- 
 dence of the latter is not necessarily contradicting the former. 
 
 ■WRITTEN EVIDENCE. 
 
 Trust.— Dyer's Ap., 1884, 11 Out. 446. Under act April 23, 1856, the 
 written evidence to establish a trust must be in itself sufficient and cannot 
 he eked out by parol. 
 
 ■WRONG REASON FOR DECREE. 
 
 Non-Reversal.— Piper's Ap., 1852, 8 H. 67. A decree, if right, will not 
 be reversed because the wrong reason was given. 
 
WRONG COUNTY. 657 
 
 ^VROI«G COUNTY. 
 
 Deed Becorded in.— Kems v. Swope, 1833, 2 W. 75. A deed recorded 
 in the wrong countv is not constructive notice. 
 
 ■WROKG TRACT. 
 
 Purchaser at Sheriflf's Sale.— Hitster u Laird, 384], 1 W. & S. 245. 
 A purchaser at sheriffs sale wlio mi.stakiugly takes possession ot the wrong 
 tract, is not estopped I'roiii iu-iserting his right to that which he did pur- 
 chase. 
 
 Purchase by Administrator— Creditors.— Hays v. Heidelberg, 1848, 9 
 Barr 203. A purcliase by an administrator of defendant at a sheriff's sale, 
 in trust for the cieditors of the estate, is void against them if they choose 
 to disaffirm it: and the fact that one affirms it, does not estop him from after- 
 wards proceedi ng against the property, if other creditors do not affirm, as 
 that is an implied condition of his affirmation. 
 
 ■WRONGFUL COPJVBRSION. 
 
 Trust Fund.— Appeal of Franklin's Administrator, 1886, 5 Am. 535. 
 tVhere government bonds were deliiered to a married woman to be held as 
 atrust fund, the interest of which she was to enjoy for life, and the bonds 
 to be returned npnn her death, she converted the bonds into moijey and 
 her husband joined in tlie receipt for the same. Held, her estate was liable 
 for the bonds wrongly c inverted. 
 
 WRONGFUIL OUSTER. 
 
 Ejectment— Ealance Purchase Money.— D' Arras c. Key.ser, 1856, 2 c. 
 249. An equitable owner of land under articles who has been wrongfully 
 ousted by his vendor, may bring ejectment without tendering the balance 
 of the purchase Dion"v. The parties are then restored to their contract 
 relation, and all of their mutual remedies remain. 
 
 42— EQUITY.