In re PUBLIC ROAD in SALEM TOWNSHIP. Road law-Report of viewers-Necessary recitals. Certiorari to Quarter Sessions of Westmoreland County. The viewers appointed by the Court having reported in favor of a road according to the petition, and that certain parties were not entitled to damages, the Court, on petition, appointed re-viewers who made a similar report, to which the appellants filed exceptions, alleging that certain facts set forth in the report were not true, and that the original petition had been altered after it was signed, and claiming that they were injured by the road, and entitled to damages. The report, although signed by all the viewers, did not expressly state which of them were present at the view, nor that notice was given to the appellants by name, it merely setting forth that due notice was given according to law. The Court below dismissed the exceptions and confirmed the report. James A. Hunter and McAfee & Atkinson, for appellant, cited— Road in Middle Creek, 9 Barr, 69. Boyer's Road, 1 Wright, 259. A. A. Stewart, for appellee, cited Spring Brook Road, 64 Penna. St. 451. Road from App's Tavern, 17 S. & R. 388. Speer's Road, 4 Binney, 174. Miller's Road, 9 S. & R. 35. Road in Norriton and White Payne Tps., 4 Ferree v. Meily, 3 Yeates, 153. McClenachon v. Curwin, 3 Yeates, 375. Schuylkill County's Appeal, 38 Penna. St. R. Road in Lower Merion, 58 Penna. St. R. 66. Nov. 2, 1874. Exceptions assigned being to matters of fact, appeal dismissed. Per Curiam. “2d. I direct that all my real estate be sold by my executors "3d. I give, devise, and bequeath unto all my children the proceeds of the sale of my real estate, and also my personal estate, after my wife shall have received her share of the same." A codicil executed nearly two years after the date of the will contained the following clause:— "I do revoke all the legacy, devise, and bequest made unto my son Thomas, and do give, devise, and bequeath the same unto my children in equal proportions. ... I do give and bequeath unto my son Thomas, in lieu of said legacy, devise, and bequest, the sum of one dollar." him his widow, nine children, and the children of Daniel Williams having died, leaving surviving two deceased sons, the executors, having sold the real estate, paid the proceeds into court for distribu tion. Whereupon the Court, being of opinion that the direction to sell the real estate converted it into personalty, and that Thomas was entitled to only the proceeds to the widow absolutely, and directed one dollar under the codicil, awarded one-third of the balance to be divided amongst the children and grandchildren to the exclusion of Thomas. Exceptions were filed on the part of all the children to that part of the decree awarding one-third of the proceeds of the sale to the widow, and by under the clause in the codicil, directing the portion Thomas to that part excluding him, claiming that, originally devised to him to be divided amongst testator's children, he was entitled to a distributive share. Laird & Marchands, for appellants, cited- Cowan, Muckle & McCullough, for appellee, cited- Henderson v. Wilson, 13 S. & R. 330. McClure's Appeal, 22 P. F. Smith, 414; 2 Rawle, 185; 2 Watts, 185; 8 Watts, 247; 9 Watts, 145; 1 Wharton, 252; 1 Wharton, 265; 3 Wharton, 65; 1 W. & S. 445; 3 W. & S. 124; 3 W. & S. 130; 7 Barr, 287; 10 Barr, 131; 1 Jones, 72; 1 Harris, 260; 9 Harris, 394; 8 Casey, 455; 1 Wright, 373; 6 Wright, 414; 9 Wright, 84; 11 Wright, 144; 1 P. F. Smith, 509; 6 P. F. Smith, 408; 10 P. F. Smith, 404; 13 P. F. Smith, 133; 14 P. F. Smith, 330. Nov. 2, 1874. Decree affirmed. Per Curiam. MCCURDY for use, etc. v. SHEPLEY, terre tenant. McCurdy and wife conveyed a tract of land in Fairfield Township to Joseph D. Conner, taking the mortgage in which this sci. fa, was issued to secure payment of balance of purchase-money. Afterwards Conner conveyed to one Zach. H. Tower, who assumed payment of the said mortgage. Tower then conveyed the land, with covenant against incumbrances, to Joseph D. Shepley, the terre tenant, taking a mortgage to himself for the balance of the purchase-money, which he afterwards assigned to oue S. G. Bryant. It appeared upon the trial that Tower gave McCurdy a check on Hart, Caughey & Co., which, if paid, was to be received in satisfaction of the Conner mortgage, and that, having been protested for non-payment, suit was brought upon it, and judg. ment recovered for the full amount. One David Simpson, having, at Tower's request, entered into a recognizance for stay, was afterwards compelled to pay the amount of the judgment, a scire facias having been issued on the recognizance, and prosecuted to execution. Simpson borrowed the money from D. F. Steck, to whom McCurdy thereupon assigned this mortgage. The Court below charged the jury that if they found the facts as above stated, the mortgage was discharged, and their verdict must be for the defendant. Verdict and judgment for defendant. H. D. Foster, for plaintiff, cited Garrison's Appeal, 2 Grant, 216. 5 Casey, 448; 2 Casey, 458; 3 Wright, 226. Nov. 2, 1874. Judgment affirmed. Per Curiam. BOROUGH OF CONEMAUGH v. Schwable. Negligence-Grading of street in borough. Error to Common Pleas of Cambria County. Action of trespass on the case to recover damages to plaintiff's property caused by the negligent manner in which defendant's workmen changed the grade of a street in front thereof. It appears that the borough of Conemaugh passed an ordinance directing a change of grade in Frankstown Street in front of the property of Henry Schwable, and that while the workmen were engaged. in pursuance of this ordinance, in excavating the street at that point, part of Schwable's house fell down. Although Schwable lived within a few hundred yards of this point, and knew the work was going on, he made no effort to protect his house either before or after it fell. Painter v. Pittsburg. 10 Wright, 213. Green v. Reading, 9 Watts, 382. O'Connor v. Pittsburg, 6 Harris, 187. November 2, 1874. The case having been properly submitted to the jury upon the facts, judgment affirmed. Per Curiam. O. & N. '74, 186. Oct. MCMILLEN V. FIRST NATIONAL BANK OF CORRY. Practice-Notice required under wages act of 1872. * Appeal from Common Pleas of Forrest County. of the firm of Palmer & Childs, composed of D. PalThe Sheriff, having levied on the personal property mer, J. Childs, and L. M. Childs, sold the same, having in his hands at the time an execution issued by the First National Bank of Corry on a a judgment against J. and L. M. Childs. Two days before the sale, the appellants, by their attorney, handed to the Sheriff a list containing their names, with certain amounts set opposite them, and informed him that they were laborers, and each was entitled to a lien, under the act of April 9, 1872, for the amount set opposite their respective names. The attorney also told the sheriff that he would draw out written no tices in form, and deliver them before the sale; the notices were prepared, and forwarded to the sheriff, but did not reach him until after the sale. The Sheriff, having paid in full the execution on which the sale took place, paid the balance of the proceeds into court. An auditor being appointed to report a schedule of distribution, he made a rePort, awarding to the appellants payment in full of bank, on account of their claim. The Court below, being of opinion that the notice given the Sheriff was the amount of their claim, and the balance to the whole amount of the money in court to the bank. not sufficient, set aside this report; and awarded the Tuti, Jenks & Clark, and Theo. S. Wilson, for appellants, cited Sedgwick on Stat. and Com. Laws, 368, 370, 371, McClintock v. Rush, 13 P. F. Smith, 203. Kelly's Appeal, 4 Harris, 59. Nov. 2, 1874. The written notice served upon the sheriff in this case was but a memorandum of the did not refer to the property, or claim any lien names of certain persons and the sums opposite; it thereon, and, without being helped out by a verbal notice, gave notice of nothing. Judgment affirmed. Per Curiam. The Court below charged the jury that the plaintiff was not entitled to recover in this action any damages resulting from the mere change of grade, as he had his remedy in the Quarter Sessions; nor at all if the work was done with ordinary care in view of the act to be performed, the surrounding circumstances, and the nature of the property adjoining the grade; if, however, they found that he was injured by reason of the negligent, unskilful, and improper O. & N. '72, 24. manner in which the excavation was made (and the burden of proof rested on him), their verdict should be for the plaintiff; they being particular not to include in the amount thereof any damages which resulted from his own neglect to protect his house after it fell. Verdict and judgment for plaintiff. D. McLaughlin, for plaintiff in error, cited Shearman & Redfield on Negligence, 39, 47. 90. Sedgwick on Stat. and Com. Law, 402. Oct SAWER et al. v. Wm. GoSSER et al. Charter of church-Amendment without noticeUnqualified officers-Equitable jurisdiction over corporations Injunction. Error to Common Pleas of Armstrong County. Bill of equity by Wm. Gosser and others, members of the Hebrew Envangelical Lutheran Church of Leechburg, a corporate body, to restrain Jona than Sawer, pastor, and other members of said church, from using the church property in a manner contrary to the directious of the charter of said church. By the original charter of the church it was provided that "the pastor or pastors of this congregation shall be in connection with some Evangelical Lutheran Synod in the United States of America," but, in 1864, an amendment, duly ratified by the proper officers, was exhibited to the Court of Common Pleas of Armstrong County, and, having been approved, the Court ordered and decreed that the same should be taken and held to be a part of the said charter, it being so changed as to conform thereto. This amendment required that the pastor should be a member of some Evangelical Lutheran Synod which is in connection with the General Synod of the Lutheran Church in the United States. The Master, to whom the case was referred, reported that the amendment was read at a meeting of the congregation attended by a majority of the members, and was adopted without any dissent, and, although no notice of the object of the meeting was given when it was called as required by the constitution, yet the proceedings were not attended with any fraud, and the amendment was not concealed from any member. Juker v. Com., 8 Harris, 495. Ger. Ref. Church v. Siebert, 3 Barr, 282. Kochler v. Roslin, Pgh. Leg. Journal, Nov. 15, Angel & Ames on Corp., ?? 84, 194, 499. Hoffman's Ecclesiastical Law, 284–286. McGuinis v. Watson, 5 Wright, 9. November 2, 1874. THE COURT, being of opinion that the amendment of 1864 was binding, that Jonathan Sawer was ineligible as pastor, and thit the Common Pleas had general equity jurisdiction over corporations to restrain any violations of their charters (Com. v. Bank of Pa., 3 W. & S 184, ard Baptist Church v. Scannel, 3 Grant, 48), dismisse 1 the appeal, but altered the decree so as to enjoin Jonathan Sawer from officiating as pastor while ineligible, and the majority from applying the property or funds to the support and maintenance of an ineligible pastor, and from interfering with other persons in its proper enjoyment. The congregation continued under the amended charter for about three years, when Jonathan Sawer, the pastor, and a majority of the members dissolved their connection with the General Synod of the Evangelical Lutheran Church in the United States, and joined a body called the General Council, a O. & N. '73, 132. separate and distinct body. At a regular meeting of the congregation duly called, an amendment rescinding the amendment of 1864 was adopted, but the Court of Common Pleas refused to approve the same. The minority of the congregation were anxious to maintain their connection with the General Synod, and objected to permitting Mr. Sawer to officiate as pastor, and, having elected a new pastor, who was in connection with the General Synod, now of the majority participating in the election, brought this bill against Mr. Sawer, the trustees, and the other members of the congregation, to restrain them from using and occupying the church property, and to obtain possession thereof for themselves. Upon the final hearing the respondents were ordered to deliver possession of the church property to the complainants, and to refrain from interfering with their enjoyment thereof; and were enjoined from permitting Jonathan Sawer to officiate as pastor of said church unless he should be thereafter duly elected, and from electing any one as pastor who was not connected with the General Synod, and also from appropriating the funds or property of the church for the support of any unqualified pastor. E. S. Golden, for appellants, citedTrustees of Pine Hill v. Church, 12 Wright, 20. Com. v. Williams. Baker v. Fales, 16 Mass. 488. Shortz v. Unangst, 3 W. & S. 52. Com. v. Cullen, 1 Harris, 133. Oct. VENSEL, Assignee, v. COLMER. Practice-Partition-Notice-Return of sheriff – Acknowledgment in court-Laches-Estoppel. Appeal from Court of Common Pleas of Clarion County. Bill in equity for an account of one-third of the profits of certain lands, filed by Barney Vensel, assignee of Susan, widow of Jacob Vensel, against Lewis Colmer. Jacob Vensel died seized of a farm in Richland Township, Clarion County, leaving a widow and several children. In 1852, several years after his death, upon the petition of John Vensel, one of the children, and without notice to the other heirs, the Court awarded a writ of partition. To this writ, in which the widow and all the heirs were named, the sheriff returned that the jury of inquest found that the premises could not be divided, and valued the same at $1000 00, all the parties named having been served and warned, and as many as chose being present. The action of the jury having been confirmed, the Court awarded a rule upon the heirs to appear and accept, or show cause why the premises should not be sold. There is on file a copy of a rule upon the heirs (not including the widow) to come into court and accept or refuse the farm at the valuation, which appears by the sheriff's return to have been duly served upon the parties named, but there is no copy of the rule to show cause, and to evidence that one was issued and served on the widow, or that any of the heirs appeared on the return day, except the recitals hereinafter mentioned. Upon the back of the rule to accept or refuse, there is endorsed an order appointing the sheriff trustee to sell the farm at the regular time of sheriff's sales, and directing him to give bond in $2000 00. In pursuance of this order, the sheriff sold the farm to John Vensel tor $700 00, and on May 7, 1853, duly acknowledged in open court a deed to said Vensel for the same. The order of sale and the trustee's deed both recite that the Court granted rules upon the heirs and legal representatives to accept or refuse the farm at the valuation, and to appear and show cause why it should not be sold, and that due proof of the service thereof was made upon the return day before the order of sale was granted. No special notice was taken of the widow's interest, and Susan Vensel did not receive any part of the proceeds of the sale, but remained on the land until the death of John Vensel in December, 1860, when his administrators applied to the Orphans' Court for leave to sell this farm reciting that it was subject to the dower of Susan Vensel, and the order of sale and advertisements contained the same recital; but the deed to Lewis Colmer, the respondent, who purchased at the sale, contained no reference to any such encumbrance. After this sale, Colmer took possession of the farm, and delivered to Susan Vensel one third of the products thereof annually until 1874, when, oil having been discovered thereon, he refused to pay her any share of the profits of the farm, contending that all she was entitled to was the interest on onethird the proceeds of the sale in the partition proceedings. The widow testified that the writ of partition was awarded and the inquest held without notice to her, and that she was not served with notice of the rule to show cause why the farm should not be sold, and contended that on this account her interest under the intestate laws was not divested by the sale. Having assigned her interest to Barney Vensel, her son and one of John Vensel's administrators, this bill for an account was brought. The Court below having dismissed the bill, complainants appealed. Wm. L. Corbett and James B. Knox, for appellants, cited As to partition proceedings Anderson's Appeal, 12 Casey, 476. Thompson v. Stalt, 56 Penna. St. 156. Bachman v. Chrisman, 11 Harris, 162. Williard v. Williard, 6 P. F. Smith, 119. Evertson v. Tappen, 5 Johns. Ch. 512. Shaw v. White, 13 Johns. 179. Hazen v. Thurber, 4 Johns. Ch. 604. As to right to an account Keith v. Turpin, 1 Baily's Eq. 63. Curtis v. Curtis, 2 Brown's Ch. 620. Oliver v. Richardson, 9 Vesey, 223. Paul's Exrs. v. Paul, 12 Casey, 270. Hambleton v. Mohun, 1 P. Williams, 122. Graham v. Graham, 1 Vesey, Sr. 262. Sandbank v. Quigley, 8 Watts, 460. Conklin v. Bush, 8 Barr, 514. Henry v. Henry, 8 Phila. R. 87. Campbell & Bogg, and Wilson & Jenks, for appellee, cited As to partition proceedings Richards v. Rote, 18 P. F. Smith, 253. As to effect of reference to widow's dower in advertisments Randolph's Appeal, 5 Barr, 242. Reel v. Elder, 12 P. F. Smith, 317. Kirk v. Hartman, 13 P. F. Smith, 106. Smith v. McNeal, 18 P. F. Smith, 167. Nov. 2, 1874. Decree affirmed and appeal dismissed, THE COURT saying: "Although the better practice, it is not necessary to give notice of the petition for partition, if the return to the writ shows that all parties interested had notice of the inquest, as they can then object not only to the manner but also to the right of partition [Horam's Estate, 9 P. F. Smith, 152]. Richards v. Rote, 18 P. F. Smith, 253, does not apply, because the widow's name does appear in the writ, and the sheriff returns that all parties were served. "Notice of the rule to accept or refuse the land at the valuation, or show cause why the same should not be sold, need not be served by the sheriff, and as the order of Court recites that due proof had been produced of the service thereof upon the heirs and legal representatives of the deceased, the latter term will be taken to include the widow, especially after a lapse of twenty years. "A decree of the Orphans' Court upon matters within its jurisdiction is conclusive, and confirmation after a partition or sale has the effect of a final decree. The recital of the widow's dower in the petition PRESCOTT v. BUCKWALTER & BOYER. Affidavit of defence-Estoppel by admissions inPractice- Withdrawal of evidence from jury— Set-off against one of plaintiff partners. Error to Common Pleas of Jefferson County. Action of assumpsit to recover price of certain lumber sold and delivered to Prescott, the defendant below. Buckwalter & Boyer having filed a statement of account and affidavit of claim under rule of Court, alleging that they, as partners, sold and delivered the lumber to the defendant, the latter filed an affidavit of defence, claiming payment in full, but not denying the partnership. Upon the trial below, the defendant claimed that Boyer, one of the plaintiffs, was largely indebted to him, and offered evidence to disprove the partnership; this the Court rejected, because he failed to deny the same in his affidavit of defence, as required by the rule which provides that the partnership "shall be taken to be admitted as alleged in the record, unless one or more of the defendants shall, by affidavit filed at or before the time of filing their plea, deny" the same (1st and 2d assignments). thereupon sustained the demurrer, to which Roberts excepted. The other defendants consenting, and pleas having been filed by them, issue was joined, and the cause proceeded in against all. Verdict and judgment for plaintiffs. Reid & Neill and J. B. Brawley, for Roberts. Moses v. Dulles, 1 Phila. 146. O'Neal v. O'Neal, 4 W. & S. 130. Noble's Admr. v. Laley, 14 Wright, 284. Finch v. Lamberton, 12 P. F. Smith, 370. F. B. Guthrie and Byles, for defendants, cited- Equity. NEILL V. EASBY. Nov. 2. The defendant having introduced and sworn to an D. C. account, showing Boyer to be indebted to him in an Equitable jurisdiction over docks in Philadelphia amount exceeding the claim in this suit, Boyer testi- -Port Wardens' license, infringement of— Right fied that he had taken out" and "put in" enough to have dock-way of 80 feet. timber for Prescott "to pay the account filed in full." Upon cross-examination, it appearing that This was a motion to continue an ex parte fivethis was done under a written contract, not proday injunction restraining defendant from constructduced, the defendant asked the Court to withdrawing his wharf in such a manner as to leave less than the testimony from the jury, which was refused (3d assignment). The Court below charged the jury, that, the partnership being admitted, defendant could not set off against the firm a debt due him by one member. Verdict and judgment for plaintiffs. Jenks and Clark, for plaintiff in error. and that of complainant's wharf adjoining it on the 80 feet of dock room between the line of his wharf south. Board of Port Wardens to extend his pier, to the north, to the new Port Wardens' line, in such manner as should leave docks on each side of his pier of 80 feet in width, the license to be issued "after he In 1874 defendant obtained a license from the A. C. White and Gordons, for defendant in error, shall have filed a plan of such pier, and complied cited Practice-Judgment by default against two of three defendants. Error to Common Pleas of Crawford County. Assumpsit to recover price of goods sold and delivered by Vega et al., plaintiffs below, to Sharkey et al., defendants. The plaintiffs having obtained judgment by default against two of the defendants, and had the same duly liquidated under rule of Court, ruled Roberts, the other defendant, to plead; and, issue being joined, proceeded to trial. At the trial, Roberts, by leave of Court, pleaded this judgment as a bar to any further proceeding; to which plaintiffs demurred. Afterwards the Court, upon motion of plaintiffs' counsel, struck off the judgment, and with the ordinarces," etc. The bill charged that the pier was being extended in such manner as only to leave 77 feet of dock on the south side. From defendant's answer it appeared that he had filed a plan of his pier as required, and was now building in accordance therewith. By this plan there appeared to be 80 feet of dock between plaintiff's and defendant's piers, and defendant charged that the plan showed plaintiff's lines as they ought legally to have run; that the north line of complainant's wharf, which was a continuation of the line of Queen Street, as laid out on the plans of the city of Philadelphia, had slightly diverged from the plan accord ing to which he had been originally licensed to build, so as to encroach at the extremity of the pier, as it stood prior to 1868, two feet or so, into the dock; that in 1868 complainant extended his pier to the new Port Wardens' line, and, in doing so, followed the diverging line of the old pier, thus encroaching at the end of the extension over three feet into the dock room, as shown by the plans in the office of the Port Wardens, and that the plan accompanying the |