the acts of their agent, unknown to plaintiffs; it was not claimed that they were culpable. And citedDerrickson v. Cady, 7 Barr, 31. Rush v. Barr, 1 Watts, 120. Fleming v. Culbert's Adm'r, 10 Wright, 499. fendant's writing his name on each note before that of the payee. The payee afterwards erased his signatures and wrote them in the proper place. The notes not having been protested until six months after their maturity, at the trial the plaintiff was called to prove notice to the endorser of dishonor of the notes. He testified that notice had And contended that these cases are not overruled in been given "within two or three days" after dishonor, principle by Rhine's Adm'r v. Evans, supra. March 13. Rule discharged. Opinion by BRIGGS, J. the endorser residing in the same city with the holder; he also testified that the defendant had admitted that he was liable on the notes. The defendant denied the notice. ELCOCK, J., charged that the admission of liability was prima facie evidence of notice, but left the March 6. question whether timely notice was given to the defendant to be determined by the jury. Affidavit of defence-Mechanic's lien. Rule for judgment for want of a sufficient affidavit of defence. This was an action of scire facias sur mechanic's lien. In November, 1872, defendant contracted with A. to make improvements upon his house. A. sublet the contract to B., who employed plaintiff to do some scroll and ornamental work to be used in said improvements on wash-stand, bath-tubs, etc. The affidavit alleged that the work done was merely upon movable ornaments; and, further, that the defendant's contract was solely with A., and that he (defendant) afterward engaged B. to do extra work. Blackburn, for rule, cited Act of June 16, 1836, 15 (P. L. 699.) Rule discharged. C. M. Husbands, for the motion, citedStuckert v. Anderson, 3 Wh. 116. Brenzer v. Wightman, 7 W. & S. 264. March 4. Rule refused. C. P. No. 4. Promissory note C. A V. Motion for a new trial. This was an action on a promissory note for $1525 against defendants as endorsers. The note was made by Doerr & Sons. The evidence showed that the notary took the note to the maker's place of business between five and six o'clock P. M., and that he found the office closed and in charge of a watchman. Two or three days after dishonor a second notice was served on defendants. Defendants denied any but second notice. THE COURT (THAYER, P. J.) submitted the question to the jury whether the note was presented in business hours. Verdict for plaintiff. A. M. Burton, for rule, argued that the service was out of business hours; that the notary on finding the store closed should have gone to maker's residence which was near by, and cited Lightner v. Will, 2 W. & S. 140. Bennett v. Young, 6 Harris, 261. Stuckert v. Anderson, 3 Wh. 116. Pierce v. Struthers, 3 Casey, 254. March 4. Rule refused. The stone was measured and used in building. THE COURT (BRIGGS, J.) instructed the jury that if the contract between Frazer and the plaintiff was broken, then White was liable for the market value C. P. No. 4. of the marble. Verdict for plaintiff. Arnold, for rule, cited White v. Miller, 6 Harris, 52. March 4. Rule refused. March 10. DONALDSON V. READING RAILROAD CO. Corporation-Power of superintendent to engage clerks-Hiring for a year-General regulation of company to employ only by the month-Evidence. Rule for new trial. This was an action for damages for discharging the plaintiff before the expiration of the time for which he was engaged. The plaintiff was a clerk in the office of the Central Express Company. The defendant wished to establish an express department to run in connection with its railroad, and appointed one Parke superintendent of the said express department, with instructions to organize it. Parke ap March 13. proached the plaintiff and induced him to leave the | C. P. No. 4. BEEKER V. DUBOIS. service of the Central company and to enter that of Substitution of money for mechanic's lien—Amount the defendant as money clerk. The plaintiff alleged that Parke told him that his, the plaintiff's, position, would be a permanent one, and that Parke employed him at the rate of $1200 per year. Within a year the plaintiff was dismissed without cause. For the defendant the President of the company testified that by a rule of the company no servant was employed for a longer period than one month. Parke himself was liable to dismissal on receiving a month's notice, and Parke had no authority to employ the plaintiff by the year. This rule was not written or printed, nor did it appear on the company's minutes as having been adopted by a vote of the directors or stockholders. Parke denied that he had so employed plaintiff. To contradict Parke the plaintiff offered two letters from Parke to the plaintiff, stating that the employment was as alleged by the plaintiff. This offer the Court rejected. BRIGGS, J., charged the jury that a railroad company was obliged to conduct its business by general regulations, and that the plaintiff as a servant of the company was bound to know its rules. The jury gave a verdict for the defendant. Megargee, for plaintiff, having on a previous day obtained a rule nisi, cited Wright v. Trainor, 1 Weekly Notes, 198. A. D. Cambell, for defendant, now showed cause, and distinguished the cases cited by plaintiff from the principal one. Megargee, in reply, cited Angell & Ames on Corp. ix. 3 298, p. 303. Vestry of St. Luke's Ch. v. Matthews, 4 Dess. Bill v. R. R. Co., 37 L. & Eq. 539. March 13. Rule absolute. C. P. No. 4. C. A. V. necessary under the Act of 1868. Rule to allow substitution of money for a mechanic's claim, and to have the lien of the latter dis charged. With credits reducing the amount to $10,000, with interest. Katz, with whom was Gibbons, for the rule, argued that the bill was defective, in that 1. It did not show a loan to defendants, nor when, March 11. if at all, it was due. 2. The reference in the bill to the affidavit of loan WALTER V. THE SALAMANDER Co. This was a feigned issue under a sheriff's interpleader. The counsel for claimant was Mr. Petit. but the narr, having been filed by Mr. Hazelhurst. his name was upon the trial list instead of that of Mr. Petit. The case was printed on the list as "Waller v. Salamander," and being called for trial and not answered to by plaintiff, a nonsuit was entered. Petit, in support of the rule, stated that the absence of his name from the list, and the mistake in the name of the case, prevented his recognizing the case as his own, and he was consequently absent. This was not merely a question of costs, since the claimant could not begin over again. Rule absolute. Irwin v. Leibert, 5 W. & S. 103. 3. There was no averment in the narr. of a demand. THE COURT. Suit is a demand] J. G. Johnson, contra, was not called on. C. P. No. 4. Constable's sale-Collusion-Trover. This was an action of trover. The goods of the plaintiff had been distrained by a constable for rent, and appraised, the defendant being one of the ap praisers. The day before the sale the goods were removed to another house by the plaintiff, and fol lowed by the constable. At the sale the constable. with the defendant and two other persons, attended and bid in nearly all the plaintiff's goods at very low prices. The plaintiff alleged that the constable had promised to postpone the sale, and the sale to the defendant was a collusive one. There was evidence also that the bell used to summon buyers was not such a one as is usually employed for that purpose, but a small one. The defendant alleged that the sale was a fair one, and that the prices were reduced by the plaintiff, who alleged the sale to be an illegal one, and threatened to prosecute bidders. At the trial BRIGGS, J., permitted plaintiff to read to the jury from a memorandum her own estimate of the value of the goods sold, and charged that if the jury believed that there was collusion between the constable and the defendant the verdict must be for the plaintiff, and refused to charge that the removal of the goods by the plaintiff after levy was ipso facto fraud. C. P. No. 4. STEINMETZ V. HAMILTON. C. A. V. March 8 Alderman's record—Demurrer to transcript filed. This was an appeal from an alderman, before whom proceedings had been instituted by a landlord against his tenant to recover possession. Plaintiff, when the appe I was perfected, ruled defendant to plead to the transcript of the record, no narr. having been fil, but defendant demurred, on the ground that the record was defective, as it did not set out the term for which the premises had been dismissed. E. R. Worrell, for demurrer citedMcDermott v. Mcllvane, 31 Leg. Int. 253, and argued, that, the defect being fatal, the action was not maintainable in this Court. Sur petition for partition. children. In his will the testator directed inter alia Benjamin Ruffel, the decedent, left two minor that his executors should take charge of his real estate, and apply the income to the support of his children during their minority. If the income was not sufficient they were directed to sell the real estate, and re-invest the proceeds in such a way as to apply portions of the principal when necessary. Under any circumstances they were directed to sell the real estate when Benjamin Franklin Ruffel, the younger son, came of age, and to divide the proceeds between him and George Washington Ruffel, the elder son; and should either die in the mean time without heirs, his share to go to the survivor. Benjamin Franklin Ruffel is now sixteen years of age; George Washington Ruffel is dead, leaving a widow and three children, who are all in the almshouse. The widow as guardian makes this petition for a partition. Hon. A.V. Parsons, for petitioner, contended that had vested in the three children, and that it could the share of their father in their grandfather's estate not be supposed, looking at the whole will, that the testator could have intended that the heirs of the elder son should be left penniless in the almshouse until the younger came of age. Equity would permit a partition. Pile, contra, contended that the income not being more than sufficient to support Benjamin Franklin Ruffel, the Court had no power to order a partition before he comes of age. C. A. V. THE COURT (HANNA, J.) dismissed the prayer of the petition for a partition because the interest was not vested and a conversion was worked. Alias order of sale-Misunderstanding by purchaser at former sale as to incumbrances. This was a petition of a trustee for an alias order of sale. In this case property had been sold at a public Orphans' Court sale, and bought by one of the heirs of the deceden subject to the life estate of the hus band of the decedent, and to a mortgage of $1000, and terms of sale not complied with. The answer of the purchaser showed that there was some misunderstanding as to the conditions of the sale, alleging that she bought the property with the understanding that the mortgage was discharged by the sale, though the purchaser and her counsel were both present. The respondent agreed to withdraw her answer upon the repayment of the $100 earnest noney paid by her. A. Thompson, for petition. C. A. V. March 6th, 1875. THE COURT (HANNA and DWIGHT, JJ) granted the alias order of sale, saying that the respondent was affected with notice of the incumbrances, and the repayment of the $100 could not be made a condition to granting the order. PENN'A & N. Y. CANAL & RAILROAD Co. v. MADELL. Damages, measure of, for land taken by corporation, may be estimated at so much per acre-Evidence-Elements of computation may be offered to jury-Witness unacquainted with property at time of taking may give his estimate of damages. Danville, etc., R. R. Co. v. Gearhart (Weekly Notes, 237) followed. fore and after the introduction of the railroad was not to be considered. Patrick, Smith & Montanye, and Littles & Blakeslee, for plaintiffs in error. 1. As to the measure of damages 1 Redfield on Railways, 274. 1 Greenleaf on Evidence, % 440. East Pa. R. R. Co. v. Hottenstine, 11 Wr. 28. Reitenbaugh v. Ches. Val. R. R. Co., 9 Har. 100. fencing being necessary, is an injury too remote. 2. The burden to the farm, by reason of additional Monongahela Nav. Co. v. Coons, 6 W. & S. 114. Patton v. North. Cent. Railway Co., 9 Cas. 426. Jessup and J. B. § A. H. McCollum, for the defendant in error. As to the measure of damages. The objection to Error to the Common Pleas of Susquehanna the evidence went to its weight, not to its admisCounty. This case was certified from the Common Pleas of Bradford County. It was an appeal from an award of viewers allowing the plaintiff $2700 damages for land taken and for the construction of a railroad through his land. The cause was put at issue by direction of the Court, as in an action of trespass quare clausum fregit. The strip of land occupied by the defendant was about 103 rods in length, and contained about three acres. The plaintiff claimed to recover the value of this piece of land, together with damages: first, for filling ditches and obstructing the flow of water, and thereby flooding it back upon about twenty-three acres of land north of and adjoining a road; second, for dividing his farm by a high embankment, making it inconvenient and difficult of access to that part of the farm, consisting of about seventeen acres, lying south of and next to a road; third, for a burden to the farm, in keeping up and in repair additional necessary fencing; and, fourth, for taking soil and gravel from about one-half acre of land near a culvert. At the trial the plaintiff proposed to ask a witness, who had testified that he had not known the farm in question until after the building of the railroad, How is the land affected by the railroad, is it an injury to the farm or not?" Objected to. Admitted. Exception. The Court (MORROW, J.) charged the jury that the plaintiff was entitled to a just compensation for the damages sustained by him, and that the "true "measure of compensation was the difference be"tween what the whole property would have sold "for, unaffected by the railroad, and what it would "have sold for as affected by it." And that the obstruction of the ditches, the division of the farm, the burden of fencing, and the taking of gravel, were all direct injuries to be duly considered in estimating the actual damage sustained by the plaintiff. The Court declined to affirm defendant's points requesting that the jury be charged that the damage arising from the injuries specially enumerated could not be assessed upon the whole farm at so much an acre, and that the gross estimate of damages by wit nesses who had not founded their calculation upon a comparison of the market value of the property be sibility. Dorlan v. E. B. and W. Railroad Co., 10 Wr. 520. The D. L. and W. R. R. Co. v. Burson, 11 P. F. West. Penna. R. R. Co. v. Hill, 6 Id. 460. March 15. THE COURT: "There was no substantial error committed in this case. We have already said at this term that under the Acts of Assembly as to assessing damages upon lands taken for the use of a railroad, the elements of computation are to be laid before the jury to enable them to perform their duty. As to values, the opinions of witnesses are admissible in relation to the property, and they can rate the matter of injury alleged." PER CURIAM. Judgment affirmed. Jan. '73, 319. SMITH et al. v. HOGELAND. March 4. Negotiable paper in the hands of a bona fide endorsee for value not affected by subsequent agreement between the original parties—The relation of agency of such endorsee to one of the parties does not af fect him with notice. Error to Common Pleas of Bucks County. This was an action of assumpsit upon a promissory note for $1000. The narr. consisted of a count on the note and the common counts. Plea, general issue. After the note had been given in evidence, defendant proved the following facts:- Smith & Co., the plaintiffs in error as well as below, real estate agents acting for Morrison, sold at public sale a farm to Robb, taking from the latter, to bind the bargain, his note for $1000, drawn by Robb to the order of Hogeland, the defendant, and endorsed in blank by the latter. This note remained for some time in possession of the plaintiffs as agents of Morrison; but before it was due, Morrison, desiring to raise $650, transferred the $1000 note to the plaintiffs in consideration of their endorsing for him a note for $650, the difference to go to plaintiffs in payment of commissions and expenses of sale. The plaintiffs subsequently paid this $650 note. Robb failed to take the farm, and when the $1000 note became due, the defendant refused to pay it; alleging that the contract had been rescinded by an agreement between Robb and Morrison, whereby the defendant was prevented from reimbursing himself for such amount as he might pay to the plaintiff, either out of the land or from taking advantage of an agreement, which he alleged (but plaintiffs denied) had been made with plaintiffs at the sale, to wit, that if Robb failed to take the land defendant might have it. 46 The Court below charged:-" "The plaintiffs stand "in the shoes of Morrison; their right to recover is "the same as his, no more and no less. Your ver"dict will depend upon your decision of the question -was there an agreement between Morrison and "Robb to abandon the contract of sale, and release "each other from it before the time fixed for its consummation? If there was not such an agreement "your verdict should be for the plaintiffs. If there was such an agreement your verdict should be for "the defendant." Verdict for the defendant. Plaintiff assigns for error that portion of the charge just stated. Jenks (with whom were James and Shellenberger), for plaintiffs in error. The plaintiffs having taken the note bona fide and for value, the subsequent failure of the consideration will be no defence. Flanagan v. Bank, 4 Sm. 398. The plaintiffs were not bona fide holders for 2. They were bound by the agreement of Morrison with Robb. March 4. Jan. 74. CARE, Admr., v. KELLER. Error to Common Pleas of Berks County. This was an action of dower unde nihil habet, brought September 28, 1868, by plaintiff's intestate who died, the suit pending), to recover one-third of the anual profits of land sold by her husband to George Keller, the defendant's ancestor, by contract dated January 12, 1846; but no decd for the same was then made. The vendor died on March 6, 1846. At the time of his death the whole pur chase-money had not been paid by the vendee, who, however, afterwards paid it, and specific performance of the contract in his favor was decreed by the Or phans' Court, April 9, 1847, and a deed finally executed by the administrator of the vendor, April 24, 1848. It appeared from the testimony that actual possesion of the premises had been taken by George Keller, he vendee, April 1st or 2d, 1846. Upon trial, the learned Judge (WOODWARD, J ), in an elaborate charge, instructed the jury substantially as follows: That the Statute of Limitations of 26th March, 1785, was broad enough to include any suit brought to recover the possession of land. "Before the "statute of Merton, nothing but land could be revalue-covered in dower. Since the statute it could hardly 'be contended that the action would remain a real "one, where the husband should die disseized, when the widow would be entitled to an assignment of "one-third by metes and bounds; and would become "personal where the husband should die seized, when the widow could take damages equal to the "third of the annual value." It was said that the statute should not apply because the words "aucestors or predecessors" in the statute could not be applied to a tenant in dower. But it was not to define the status of a tenant of the freehold of any class that the statute had been passed, but as to the "seisin or possession." The claimant was to be barred unless a suit had been commenced within twenty-one years after the previous "seizin or possession had come to an end." March 15. THE COURT said: "The fact that the indorser was to have the privilege of taking the farm if Robb, the vendee, failed to comply with the terms of the sale, was of no significance whatever as affecting the bona fides of the transaction. Neither could the fact that the plaintiffs, to whom the note was passed, were the agents of Morrison in the sale of the land, compromise them as holders of the paper, unless it were also shown that they assented to the subsequent rescission of the contract, whereby Hogeland was deprived of the security to which he was entitled. The learned Judge erred in that portion of the charge... (above quoted). In the statement of In this State dower was strictly a real action. the law which he there gives, the position of Smith (Jones v. Patterson, 2 Jones, 149.) In Coller v. & Co. as bona fide holders for value, if such they Motzer, 13 S. & R. 356, it was assumed that the were, is wholly ignored. Such is not the law govern statute applied to the action of dower. The proviing commercial paper. The original parties thereto sions of the English statute of 32 Henry VIII, c. 2, cannot thus compromise the rights of a subsequent enacted that no person should have or maintain any indorsee or holder of such paper. If this note was action of mort d'ancestor, etc., or any other action passed to the plaintiffs by Morrison, for some pres-possessory." By the Pennsylvania statute, no perent consideration, the subsequent action of Morrison son could have, etc., "any other real or possessory and Robb could not affect them. If, on the other action." [Upon principle and authority the action hand, it. was passed to them without consideration, of dower fell within the limitation of the Act of or as security for an antecedent debt, then they would occupy no better position than Morrison, and be entitled to his rights and nothing more. (Petrie v. Clark, 11 S. & R. 377.) These were questions for the jury, and should have been submitted for their consideration." Judgment reversed and venire de novo awarded. 1785.] But the plaintiff said that John Keller died seized; that no deed had been executed until 1848, and, therefore, at John Keller's death there was no tenant of the freehold upon whom a writ of dower could have been served; his interest in the land had been converted into personalty by the contract, and the |