The bill prayed, (1) for an injunction restraining defendant from printing or publishing any of the copyrighted part of the plaintiffs' edition; (2) the destruction or delivery to plaintiffs of copies of defendant's edition still in his possession; (3) an account of the profits made on such copies as had been sold; (4) general relief. 412, 36. . . . . Each rule has its exceptions; that of defendant's, with the exception of a few pages, and there are occasional instances in which the Court even to the repetition of typographical errors. might not err in appointing a guardian in another county, as was the case in Packer's Estate, 1 Legal Gazette Reports, 5; or in accepting as security a non-resident, who offered ample real estate situate in the county. But the rule seems plainly deducible from the current of legislation which premises that the estate, its custodian, and his security, are within the jurisdiction of the Court, in order that the Court, in duly protecting the minor, may be ready to exercise its preventive or remedial power in the amplest and speediest manner. We therefore hold the rule, by which our judicial discretion must be guided, to be, that the Court will not approve a minor's choice of a guardian not residing in this county; and we decide that as the first choice in the present case has not yet been inevitably consummated, we will permit the minor to choose a guardian within the jurisdiction of the Court." Decree accordingly. Opinion by DwIGHT, J. Copyright-Edition of the Bible-Claim of copyright in notes, headings, arrangement, etc.-Injunction. Motion for preliminary injunction. The bill alleged I. That plaintiffs had printed or caused to be printed and published in the German language, and now owned an edition of the Holy Bible, entitled Die Illustrierte Familien-Bibel; that said work contained a special Table of Contents, with Headings of Chupters and Columns, and copious marginal notes, and Hebrew and Greek readings, collected, compiled, and translated expressly for said work, and formed a new and original compilation and arrangement which had never before appeared in print; that plaintiffs had copyrighted said work, which had always been published with the proper notice thereof prescribed by Act of Congress. II. That defendant had also printed and published in German an edition of the Holy Bible of the same size (quarto) as plaintiffs' edition, entitled Neue Illustrierte Familien-Bibel, containing almost verbatim et literatim the Table of Contents, Headings of Chapters and Columns, and marginal notes and Hebrew and Greek readings of plaintiffs' edition, and using almost exactly the same mode of arrangement and paging; that defendant's edition contained on the title page, substantially the same words as that of plaintiffs. III. That the table of contents of defendant's edition, pages 4-8 was the same in wording and arrangement as that of plaintiffs' pages 12-16; that the "headings of columns," and "headings of chapters," "marginal notes and Hebrew and Greek readings" of plaintiffs' edition, were copied literally in Defendant averred by affidavits filed that defendant's title page was composed expressly for his edition, that it was the result of original labor, and not taken from that of plaintiffs, from which it greatly differed; that the text of defendant's edition had not been copied from that of plaintiffs' but prepared from electrotyped plates, and that the proof-sheets had been corrected and collated with other editions; that the "table of contents," and "headings of chapters and columns," and " parallel references, marginal, and Hebrew and Greek readings" used by plaintifis were not made for his edition, but had been used the former in whole, the latter in greater part in other editions, printed long before that of plaintiffs'; that in certain specified chapters in the Book of Revelations, the Apocrypha, etc., the "headings of chapters and columns" of plaintiffs' edition had been taken literally from older editions. E. L. Perkins, for plaintiffs. S. C. Perkins, contra. In re WATSON & REYNOLDS. Delay in application for discharge-Petition for revision under 2 of Bankrupt Act. The bankrupts had heretofore applied for their discharge, under the circumstances reported ante, p. 86, and their petition was then referred to the register to report the facts (vide loc. cit.). The register now reported that he was of opinion that the delay in application of bankrupts for their discharge was sufficiently accounted for to warrant the issuance of the usual orders upon such application; that the issuing of such orders could not prejudice the right of any creditor or person interested to object to the discharge on the ground of delay; and that upon the hearing on said orders the question could be more fully and perhaps more appropriately considered. THE COURT refused to confirm the report of regis ter, and dismissed the application for leave to file petition, but allowed a petition for revision to be filed in the Circuit Court. (See 2 Bankrupt Act.) Weekly Notes of Cases. The plaintiff below was liable under her contract to supply the defendant with food and lodging at any time during September, 1871, if called upon April 2. THE COURT: "There is no doubt that [No 29. damages generally are to be measured by the prefits which the bargain would have produced to the party whose contract has been broken by his adversary. Here the chief value of the bargain was in the rooms and lodgings let to the defendant, and not in the food served upon the common table of a boarding house filled with boarders, and the contract being entire for the whole time, and no evidence having been given by the defendant to separate the small proportion of the value of the food from the other portion of the loss, the price agreed upon was at least prima facie evidence to go to the jury." PER CURIAM. Judgment affirmed. [Opinion in full. | March 29. Damages-Measure of damages for breach of entire contract, as for board and lodging, is prima facie the whole sum agreed to be paid therefor, without deducting value of board not furnished. Error to the District Court of Philadelphia. This was an action of assumpsit brought by E Latour, the proprietress of a boarding house, against Levi Feigel The narr. set out a contract for board and lodging, and alleged breach. Pleas, non-assumpsit, set-off, payment with leave, etc. The undisputed facts of this case were as follows: In 1871 the plaintiff kept a boarding house at Mount Airy. On the 2d of May in that year the defendant engaged two rooms, with board for himself and family. in the plaintiff's house, for three months, at $56 per week. Defendant entered into possession upon the 29th of June, and continued therein until the 31st of August when he left the house and refused to pay the price agreed upon during the month of September; this constituted the ground of the plaintiff's action. The evidence was conflicting as to whether plaintiff had so far failed to comply with her contract as to justify the removal of the defendant. The Court below, MITCHELL, J., charged the jury inter alia: "If you find that the plaintiff did comply with her contract, then you may find for plaintiff for four weeks' board, at fifty-six dollars per week, and interest from the date." Defendant excepted to the part of the charge quoted. Verdict for plaintiff, $224, and judgment. Writ of error taken, and the charge as excepted to assigired for error. Sulzberger, for the plaintiff in error. The Court below erred as to the measure of damages; the cost of the food, which the plaintiff never furnished during the month of September, should have been deducted from the amount which the defendant agreed to pay for that time. Hoy v. Gronoble, 10 Cas. 9. Under the rule laid down by the Court the plaintiff not only recovered the profit on her bargain, but also the cost of goods never delivered. Vail, for defendant in error. Hoy v. Gronoble, supra, is not applicable; there the jury had been told that they could not allow damages for the violation of faith, in addition to the profits of the bargain. There was no such instruction here. In this case the parties themselves fixed the measure of compensation by their contract. It the measure was too high the burden of proof lay upon the defendant below. BARNET V. STEINBACH et al. Evidence-Book of original entries-Since the Act of 1869, the oath of the party is the primary source of evidence, not his book entries; the latter may be used as memoranda to refresh his memory. Error to the Common Pleas of Schuylkill County. This was an action of assumpsit for work done and materials furnished in converting a certain barn into a dwelling-house. Pleas, non-assumpsit, payment with leave, etc. On the trial, Steinbach, the plaintiff below, testified that the work was to be done by the day, and the materials to be furnished by the piece; that he kept general books of account of his business, viz., a daybook and ledger; and that he made entries in these books of the work done and materials furnished for the house in question. The plaintiff offered the daybook in evidence. Among the entries in this book were the following: : 64 May 22, 11 days' mason work, "June 19, 602 yards plastering at .40 p Op. yard, "Handed in on June 26." 784 days' carpenter work at $3.00. (And 25 items of materials furnished.) 66 $35.25." $239 80." $234.75." $54.53." July 22, 19 days' painting at $2 87,. And a number of other similar entries for labor and material. The plaintiff on cross-examination admitted that "some of the entries in this book were made perhaps three days and others perhaps two or three weeks," after the items were furnished; that a portion of the items had been from time to time transferred from a memorandum book kept by Alex. ander O'Neill, who was in the employ of plaintiff, and had superintended the construction of this house, and that the work charged had not been done by himself personally. The defendant then objected to the admission of this daybook, because 1. The entries were not made within proper time. 2 This was not a book of original entries, but of items transferred from a book kept by O Neill. 3. The items for labor and work done were not the subjects of book entries, unless the work and labor were actually done by the party himself. 4. Some of the items e. g that of the plastering.. were not the subject of book entries and showed on their face that they had not been made contempɔraneously with the work done The Court admitted the daybook in evidence, containing entries copied from the memorandum book of O Neill. Objected to. Admitted. Exception. The plaintiff further testified, that the items under date of June 26. 1865 were copied from O'Neills memorandum book. but that he could not recall the transfer of any other entries from that book That It was the duty of O'Neill to keep an account of the time and materials that went into the building, and that it was also the duty of Peter O'Neill to keep this account in his father's absence. Peter O'Neil testified, that he made the entries in the memorandum book, dated June 26, 1865, under instructions from his father. The entries were the ones subsequently copied into the daybook of plaintiff. The mein randum book was identified by the witness and offered in evidence. Defendant objected to the admission of this book on the ground that Alexander O'Neil alone had authority to enter the items, and that Peter was a mere workman. A imitted and exception taken. It also appeared from the whole evidence in the case, that the work as charged above in the daybook had been done by two masons, two plasterers, one pinter, and from two to five carpenters. The plaintiff also testified that he had personal knowledge of the work done and the materials furLished, that he knew the whole barn was converted into a dwelling-house; that he was there almost every day; that he took an account of the lumber to see how it corresponded with the amount returned to him; that he knew the charges were correct, and such as were usual at the time the work was done, for plas ering, painting, carpenter work, etc. ; that he had been a professional builder since 1859; and that he had presented an itemized bill to the defendaat for the present claim, to which no objection was made at the time. No evidence was offered by defendant. The Court below (PERSHING, P. J.) instructed the jury that in order to make the books of a party admissible in evidence they must be regularly kept in the usual course of business; that the entries must be contemporaneous with the transactions, and original, not transcripts from other books; that the fact that some entries were not original would not render the book incompetent as to those shown by the oath of the party to be original, provided such entries could be distinguished That they had heard the evidence as to the time the entries were made in the books, and the way in which they were kept; they would therefore take the books into their room. and decide upon their credibility That the plaintiff had not limited his evidence to the admission of his books, but had undertaken to make out his case by evidence outside of them That there was testimony that an itemized bill had been presented to the defendant, to which he had made no objection; and that if this was the fact, it was the rule that accounts rendered to a debtor, and not objected to within a reasonable time, created a prima facie presumption against him. Verdict and judgment for the plaintiff. Writ of error taken, and the admission of the daybook and the book kept by O Neill, assigned for Nash, for plaintiffs in error. Some of the items in the account were withoat doubt properly entered, but they were not distin guished from those items which were as certainly improperly entered. It was not shown which items were entered within "three days," and which within "three weeks." The charges for plastering, carpenter's work, mason work, and painting, were clearly not entered within the required time, as is apparent when the number of days charged is compared with the number of men employed The plaintiff could not have made out his case without the aid of these irregularly kept books. Even if the entries were within the proper time, yet those which are for work and labor done by persons employed by the plaintiff, are inadmissible. The burden is on plaintiff to prove the admissibility of such charges. Lynch v. Petrie, 1 Nott & McC. 130. Hughes v. Hampton, 2 Constitutional Rep. (S. Mifflin Bingham, 1 Dall. 276. Mathes v. Robinson, 8 Met. 269. The memorandum kept by O'Neill was improperly admitted as Peter O'Neill was not employed to keep the same. I Greenleaf on Ev. 117. Henning, for defendant in error. The work was done by the day, and entries were made as each branch of the work was finished. Each portion of the work was a continuous job, and when completed, it was promptly entered. The Court properly referred the credibility of the books to the jury. Ives v. Niles, 5 Watts, 323. Yearsley's Appeal, 12 Wr. 531. Wollenweber v. Ketterlinus, 5 Har. 389. Kessler v. McConaghey, 1 Rawle, 435. The subject matter of these items was proved by other legal testimony, and the ruling of the Court is therefore immaterial in this case. Wollenweber. Ketterlinus (supra). Moreover, the defendant had previously admitted his liability, by accepting an itemized bill of these charges, without any objection to the same. Sergeant's Ex v. Ewing, 6 Casey, 75. THE COURT. "The book of entries was not the foundation of the plaintiff's claim in this case. The subject of the entries in the book. and also of O'Neill's book were proved by testimony, and the books used rather as memoranda than as original entries, and the means of primary evidence. Before the passage of the Act of 1869, enabling interested parties to become witnesses, questions as to book entries were much more important; for then the book was the primary source of the evidence, and the oath of the party merely suppletory to establish the book. But that Act has revolutionized the practice by making the party the witness, and enabling him to use his book as a memorandum to refresh and assist his memory." PER CURIAM. Judgment affirmed. [Opinion in full. [see Henry, Executor of McNickle, v. Martin, WEEKLY No. 277.] Wal This was an appeal from the decree of Common Pleas of Carbon County, in the matter of the distribution of the proceeds arising from sheriff's sale of personal property of Peter Laux. Will-Evidence to aid construction.-Inadmissible Distribution of proceeds of sheriff's sale of personto show by parol that testator miswrote "south" alty-Priority as between writs of execution issued for "northwest" where words used are actually on same day. sensible in reference to testator's property. lize v. Walnze, 5 Sm. 242, followed. Error to the Common Pleas of Wyoming County. This was an ejectment brought by Margaret Williams against John Robinson for that portion of the woodland late of Joseph Robinson, deceased, lying northwest of the old wood road, and north of Damon Stevens " The defendant disclaimed as to a portion of the land described, and as to the residue "not guilty." Upon the trial, the plaintiff put in evidence the will of Joseph Robinson, by which he devised to the defendant, John Robinson, "one-half of the wood land lying south of the old wood road, and north of Damon Stevens;" and named the plaintiff Margaret Williams his residuary devisee. She also showed that the testator owned about twenty-five acres to the northwest, and about four acres to the south of this "old wood road," and rested. The defendant then offered to show by parol that the testator had intended to devise to him, the defendant, one-half of the woodland "lying northwest of the old wood road," and that the word "south" had been written by mistake. To this offer plaintiff objected. Objection sustained, and exception. Verdict and judgment for the plaintiff. The defendant took a writ of error, assigning for error the rejection of the parol evidence offered by him. Patrick, for the plaintiff in error. Parol evidence is admissible to prove manifest mistake in a will. Redfield on Wills,* pp. 467, 524, 577-588 contra. Parol evidence is not admissible to prove a false demonstration of the subject matter of the testator's bounty. Wallize v. Wallize, 5 Sm. 242. Brownfield v. Brownfield, 2 Jones, 136. PER CURIAM. Judgment affirmed. [Opinion in full.] This property was sold under two writs of fi fa.. to wit: Person v. Laux, No 3 of March Term, 1874, indorsed by the sheriff" came to my hands January 19th, 1874, at 12 30 P. M" Also, Linderman v. Laux, plures fi fa., No. 2 of March Term. 1874, indorsed by sheriff. came into my hands January 19th, 1874, at 4 P M.” The auditor reported, from the evidence of the sheriff and prothonotary, that all the writs, as soon as issued, were placed in a box in the prothonotary's office set apart for the sheriff; that he got them from that box. and returned them to it; that the sheriff kept a key to the prothonotary's office and had free access to the boxes; that the sheriff was in the prothonotary's office when the Linderman' writ (pluries fi. fa.) was being made out; that he then left the office and went to his dinner; and at his residence, while at dinner, the "Person" writ (fi fa.) was brought to him, and he indorsed the hour of "12.30 P. M." upon it; then he returned to the prothonotary's office at 4 P. M., found writ No 2 in his box, and indorsed "4 P. M." upon it. Upon these facts the auditor decided I That putting the writs in the box in the prothonotary's office was a delivery of said writs to the sheriff. VOL. I.-22 In the case now under review, the special dates of the receipts of the writs were noted, and an inspection thereof renders it patent that the money in court should have been applied in satisfaction of the appellant's execution. evidence, than his desk at the prothonotary's. This, conclusive. Metzler v. Kilgore, 3 Penrose & Watts, 247. [AGNEW, CJ. "Suppose that several writs were made out by the prothonotary on the same day against the same person, during the sheriff's absence, and placed in the box, how would priority be determined?"] Probably by the priority of numbering on the docket. Decree of the Court below reversed at costs of ar pellee, and a new distribution ordered. Opinion by GORDON, J. [in full]. Jan. 74, 236. March 2 DANVILLE H. AND W. R. R. Co. v. McKELVEY. Damages, measure of, for land appropriated by corporation Elements of compulation admissi ble; e. g., evidence of pre-existing railway facilities; increased ratio of insurance by reason of proximity of railway; inconvenience, etc.-Danville H. and W. R. R. Co. v. Gearhart, Weekly Notes, 237, followed. March 29. THE COURT "The controversy in this case arises out of the distribution of moneys made by a sheriff's sale of the property of Peter Laux, on two executions against him, dated January 17, 1874. The one, a pluries fi. fa., No. 2 of March Term, was issued on a judgment of G. B. Linderman & Co., and the other a fi. fa.. No. 3 of the same term, upon a Error to the Common Pleas of Sullivan County. judgment of F. H. Person, the appellant The exe- This case was certified from the Common Pleas of cution first issued, Linderman & Co 's, was indorsed | Columbia County. It was an appeal from the award by the sheriff as coming to his hands at 4 P. M. of of viewers allowing the plaintiff damages for the the 17th of January, and the other, Person's, as location and construction of the defendant's railroad coming into his hands at 12.30 P. M. of the same through his land. The issue was as in an action of day. To this first-named writ the auditor to whom trespass quare clausum fregit. The cause was tried was committed the distribution of the money raised by a struck jury, after an application to view the by the sale, awarded the fund, though it appeared premises which was granted. by the indorsement thereon to have reached the hands of the sheriff subsequently to that of the ap. pellant. This award was induced by the consideration of certain oral testimony, from which it appeared that it was customary for the Prothonotary of Carbon County to put writs, as he issued them, into a box in the office set apart for the sheriff, and to which that officer had free access at all times. It also appeared that the prothonotary had placed writ No. 2 in this box before No. 3 was made out, but that this latter writ was put into the sheriff's possession some hours before he took the former out of the box. We do not think that the evidence warranted the conclusion to which the auditor and the Court below arrived. It will be observed that the lien of an execution attaches, not from the date of its issue, but from the time it comes into the hands of the sheriff. (Act 16 June, 1836, 39.) But the ruling of the Court below would, in effect, give the lien to the execution first issued: for the prothonotary would naturally and uniformly place these writs in the box in the order in which they were made out. Such was the result of the case under consideration; No. | 2 was in the box and took the money, though No. 3 was first in the sheriff's hands. This was a complete inversion of the Act of Assembly. The setting apart of a pigeon-hole in the prothonotary's office for the use of the sheriff is a mere matter of convenience, and the putting of a writ therein is no delivery to him. It is undoubtedly true that in the absence of an indorsement of the time of receipt, parol evidence may be adduced to prove which of two or more writs came first into the custody of the executive officer (Mifflin Hill, 2 Yeates, 177; Hale's Appeal. 8 Wright, 438.) But, as is observed by Mr JUSTICE THOMPSON in the case last cited, when, in obedience to the direction of the Act of 1836, the sheriff does note the precise date of the receipt of the writ, it is McKelvey, the plaintiff below, was the owner of a tract consisting of 120 acres of improved land. The railroad, as constructed, passed through a part of this land for a distance of 1224 feet, of which length 389 feet had formerly been used as a public highway, called the State road. Upon these premises was a paper-mill, and adjacent to it the necessary buildings for storing rags and straw, dwelling houses for the mill hands, a barn, stable, etc. The mill stood within 71 feet of the centre line of the railroad as constructed, and the other buildings were in still closer proximity to. as well as upon both sides of the new railroad. There was also a grist-mill upon the same property, which could now only be reached by crossing defendant's road. Evidence was admitted in behalf of the plaintiff to show that the Catawissa railroad already passed over the land in question, whereby the value of the railroad facilities of the defendants were not so valua ble as they otherwise would have been. Also to show the value of a certain building which had been torn down in the locating of the road, and the deterioration in value of the buildings which had been left. This testimony was objected to. Admitted. Exception. To rebut testimony showing an advantage to plaintiff from the proximity of the defendant's railroad, plaintiff also introduced evidence to prove that the rates of insurance upon the buildings were thereby increased because of the greater risk of fire. The Court (ELWELL, P. J.) charged the jury, that the measure of damages was the difference be tween the market value of the whole property before and after the road was constructed. The plaintiff could only claim a fair compensation, i. e., the worth of the land taken, together with the depreciation of the land left. Damages could not be directly given |
