to in the resolution of 6 January was ever sent, | The contrary should have been clearly stated; or that the plaintiff knew of the resolution. A and that his recovery depended on facts which the waiver, if legal in this case at all, must be express and be clearly proved.

Weisenberger v. Ins. Co., 6 Sm. 442.
Helme v. Ins. Co., 11 Sm. 107.
Beatty v. Ins. Co., 16 Sm. 17.

Josiah Funk, for defendant in error.
The evidence showed that the tenth by-law was
a dead letter. But in this case the resolution of
the board of 6 January, 1872, expressly extended
the time for payment until 15 February; this had
the same effect as if that date had originally been
fixed, and disposes of the question of forfeiture.
That they did not suspend the policy-which they
could not legally do-is shown by their receipt
of the assessment on similar policies between the
date of the fire, 27 January, and the date of the
extension, 15 February.

May 29.

jury must find showing that the company had expressly or impliedly, by its course of dealing with its members, waived strict performance on the part of the insured. This qualification was probably intended to be glanced at in that part of the charge in which the Judge refers to the 10th by-law not being enforced, but treated as a dead letter. But this statement is confined to the effect of the by-law alone, and is not a full development of the nature of a defence on the ground of waiver or customary relaxation of the necessity of prompt payment of dues; while the answers to the 2d and 4th points, being without qualification, left the jury to understand that non-payment of dues was no substantial defence under the contract of mutual insurance. Had the jury been referred to the resolution of January 6, 1872, and had the facts of notice of it to or knowledge of it by the plaintiffs, and of their being misled into quiescence, under a belief that their payment would be good if made by the 15th of February then next, been passed upon by the jury, it might be supposed that the answers to the points had done no harm. But we think the tendency of the charge was to mislead, and therein there

was error.

PER CURIAM. Judgment reversed, and a venire de novo awarded.

WILLIAMS, J., absent.

THE COURT. There is no flagrant or plain error in the charge of the Court below, yet there is one error which enters into its entire current, though not plainly visible in any particular part. It is developed, however, by the answers to the second and fourth points of the defendants below. In these answers it is evident the learned Judge charged absolutely and unqualifiedly that the right of action of the plaintiffs was not affected or suspended by non-payment of the assessment No. 5, which was never paid by the plaintiff's nor tendered until after the loss. As an unqualified position, this was wrong. Indepen- [The ruling in this case is the converse of that dently of by-law No. 10, and certainly with it, a adopted in the class of cases of which Little Schuylkill member, the consideration of whose insurance is Nav. Co. v. French, 2 WEEKLY NOTES, 718, and Buyers the payment of his share of the losses of other". Patterson, Id. 649, are the latest, viz., that where members, cannot claim a performance of the contract in the policy while he refuses to pay its very consideration. On what principle can one whose relation to others is that of mutual benefit, who will not pay his contribution to the losses of his fellow-members, ask that they shall pay his entire pears to be on the border line.] loss. Independently of all by-laws, the doctrine

the entire tone and scope of the charge, taken as a whole, has no tendency to mislead, the judgment will not be reversed, even though particular expressions may be apparently unfair, or even admittedly erroneous. Cf. Kiser v. Vanleer, 2 WEEKLY NOTES, 561; Manderbach v. Gilbert, Id. 129. The latter case ap

Alexander Ervin's Appeal.

May 25.

Injunction-Limits of jurisdiction- When injunction oppressive.

of the mutuality of contract requires him to per- July, '75, 131.
form his part before he can ask mutual perform-
ance from his fellows. This lies at the very bot-
tom of the common relation of the members of
such an association. That the association may
not vigorously demand performance of its mem-
bers, or may actually waive performance, might
be a ground of excuse, which, when clearly shown
as a fact, may be used to repel the otherwise
inexcusable want of performance of the insured
member. But this is a question of fact which
the jury must pass upon under proper instruc-
tions. The difficulty to be overcome in this case
was that the general current of the charge, and
especially the answers to the 2d and 4th points,
tended to mislead the jury into the belief that the
plaintiffs might recover at all events, notwith-
standing the non-payment of the assessment No. 5.

A decree which restrains a man's power of disposition over all his real estate, stocks, bonds, and other securities, without tracing the money of the plaintiff into their purchase or ownership, and which thus he has received the money of another as his agent, canlocks up his entire available estate, on the ground that not be supported by any reasonable exercise of equity powers.

Appeal from decree of Common Pleas, No. 2, of Philadelphia County, in equity.

The bill filed by Charles E. Morris, assignee of Henry G. Morris, against Alexander Ervin, the

settlement between them at $450,000, were to be equally divided, and that the credit of $100,000 was entered on his account by consent and agreement of Morris, on account of his, Ervin's, share of said profits; that he is still liable by endorsement of Morris's paper for $40,000; that Morris has charged him in his personal account with the money deposited in Ervin's name in the Seventh National Bank, in which bank he had been the largest stockholder before his connection with Morris, and had not increased his stock since then; that he had never deposited any money in which Morris was interested in the Second National Bank, and that he owned no real estate. He further averred that he had no money or property belonging to Morris; that, on the contrary, Morris was largely indebted to him for a sum liable to be greatly increased by reason of his insolvency, and his, Ervin's, liability as endorsee of Morris's paper.

Seventh National Bank and the Second National | pressed his satisfaction with it; that Morris and Bank, set forth that Henry G. Morris began he had entered into a special pig-iron speculation, business at the Southwark Foundry January 1, the profits of which, estimated for the purpose of 1871, entrusting the control and management of the finance of the business and the receipts of moneys to Ervin as his confidential agent and business manager, at a salary, by whom the private ledger of Morris was kept, the other books being also under his charge; that Morris, confiding in Ervin's integrity, never examined the books, but received his knowledge of the business from alleged balance-sheets furnished by Ervin, which he afterwards found to be false; that, finding himself insolvent, he made an assignment for the benefit of his creditors April 29, 1875; that an examination of the books then disclosed that Ervin had received large sums of money for Morris for which he had failed to account, and had fraudulently drawn large amounts in excess of his salary, making his indebtedness to Morris about $80,000, and that, finding himself so indebted, he wrongfully credited himself on the books with the sum of $100,000, in a single entry; that Ervin failed to account for the proceeds of certain promissory notes, amounting to $62,480, made by Morris to Ervin's order for the purposes of the business; and further, that, to avoid attachments by creditors, Morris had deposited moneys in the Seventh National Bank in Ervin's name, and that the latter had also deposited in his own name in the Second National Bank money belonging to Morris, or invested it in his own name in real estate in Philadelphia, in various securities, and largely in the stock of the Seventh National Bank, all of which real estate, stock, deposits, etc. he was about to convey, assign, and withdraw, with the assent of said banks, from the reach of the creditors of Morris.

The Court below entered the following decree :

And now, July 13, 1875, this cause having been argued and considered, it appearing to the Court that large sums of money, the property of Henry G. Morris, have come to the hands of defendant, Ervin, as the agent of said Morris, and are still retained by said defendant to the prejudice of plaintiff, assignee of said Henry G. Morris, and the defendant having failed to discover to the Court where the said sums are deposited, or in what property or securities the same are invested or converted, now it is ordered and decreed that the injunction heretofore granted be continued, and the said defendant, Ervin, be restrained from The bill prayed an account between Ervin and transferring or disposing of any real estate, Morris, and, upon the same being stated, a decree stocks, bonds, or other securities of which he may that the former should pay the amount found to be possessed; and that the defendant, the Seventh be due; and in the mean time, that Ervin be re- National Bank, be restrained from paying over to strained by injunction from disposing of any real said Ervin any moneys standing in his name, or estate, stock, securities, etc., and the banks from permitting the transfer of any shares of stock paying over any money deposited to his credit standing in his name; and that the defendant, therein, and the Seventh National Bank from the Second National Bank, be restrained from transferring, or permitting to be transferred by paying over to the said Ervin any moneys standErvin, any shares of the stock of said bank stand-ing to his credit therein. Security to be entered ing in his name; and that discovery be made by by plaintiff in the sum of twenty thousand all of the parties defendant. dollars.

The application to continue the preliminary injunction in the Court below was heard upon bill and affidavits.

In his counter-affidavit Ervin admitted his employment by Morris as "commercial manager" with the duty of purchasing materials, collecting and procuring money, etc., but averred that Morris had frequently examined all of the books of the concern and especially the private ledger in which Ervin's private account was kept, and had ex

The defendant appealed, and assigned for error the said decrce.

W. S. Price, for appellant, argued the case on the merits and on the technical ground that the assignee could not maintain the bill in his own name; he also insisted that the suit being founded on a money claim, the injunction to restrain appellant from disposing of any of his property while plaintiff tries to make out his case was without warrant in equity.

Her removal had been the subject of a previous litigation between the overseers of said Moreland township, and the Poor district of Davidson township, Sullivan County, and as a material portion of the evidence then taken was, by agreement of counsel, admitted in this, a reference to that case is necessary to an understanding of the present.

Lewis Waln Smith and William A. Porter, | an order of justices of the peace for the removal for appellee, argued that upon the admissions con- of one Ann Sperry, a pauper, from the Poor distained in the defendants' affidavits, and by reason trict of Moreland Township, Lycoming County, of Ervin's refusal or omission to disclose what to that of Benton, Columbia County. disposition he had made of the funds referred to in the bill, the injunction was properly awarded. June 5. THE COURT. We shall give no opinion on the merits of this case, but the decree of the Court below is so sweeping in its terms it cannot be supported. A decree which restrains a man's power of disposition over all his real estate, stocks, bonds, or other securities, without tracing the money of the plaintiff into their purchase or ownership; and which thus locks up his entire available estate, on the ground that he has received the money of another as his agent, cannot be supported by any reasonable exercise of equity powers. An injunction of this wide operation would be an instrument of oppression in many cases. Property or money of the plaintiff or which may be reasonably presumed to be his in fact or in trust, may have to await the result of litigation, but what the defendant has in his own right cannot thus be locked up by such a sweeping decree.

PER CURIAM. Decree reversed and injunction dissolved and record to be remitted. WILLIAMS, J., absent.

evidence.

A pauper, whose original settlement was in Davidson Poor district, became chargeable in Moreland district, where she had no settlement. In a contest over her removal to Davidson, the latter showed that the pauper had acquired a settlement in Benton district. and the pauper was, by order of Court, returned to Moreland. In a subsequent contest over her removal to Benton, the latter disproved any settlement within her borders, and the pauper was again returned, by order of Court, to Moreland. Upon writ of error to

the latter judgment:

Held, that Moreland's only remedy was to resort to the "last place of legal settlement," wherever that might be found.

Error to the Quarter Sessions of Lycoming County.

This was, in the Court below, an appeal from

In 1868, Ann Sperry, a poor aged single woman, living for the time being in Moreland township, Lycoming County, but having no legal settlement therein, met with an accident by which she became chargeable as a pauper. In March, 1869, two justices of said county made an order directing the overseers of Moreland to receive and care for her "until she could be removed to her last legal settlement." In April, 1869, one of the overseers of Moreland, having ascertained that the pauper had, formerly, a derivative settlement from her father in Davidson township, Sullivan County, took the pauper to the latter place, but instead of handing her over to the overseers of Davidson, left her at the residence of her half brother, who subsequently became unable to support her. In March, 1870, two justices of Davidson made an order for her removal back to Moreland, which was accordingly effected, whereupon the overseers of Moreland appealed from said order to the Quarter Sessions of Sullivan County. That Court dismissed the appeal, on the ground that the appellants had failed to show that Davidson township was her "last legal finding was based-being that referred to as adsettlement." The testimony upon which that mitted in the present case by agreement of counsel was that of Asa Sperry, who testified that about nineteen years ago his sister Ann, being then strong and able to do full woman's work in the house, worked a year or two in Benton township, Columbia County, in the house of a Mr. Doty, who was no relation to her. The witness further said: "I think she worked for wages there. I always so understood it. I never saw her get a cent of money from Mr. Doty. She told me once what she got there."

ELWELL, P. J. of said Court, held that this testimony raised a presumption of a contract of hiring for wages, and as it showed a residence for a year in Benton township, it sufficiently appeared that said Ann, being then of age, unmarried, and childless, acquired a settlement there, and lost her original derivative settlement in Davidson township. Upon writ of error to the Supreme Court this judgment was affirmed, the Court (per THOMPSON, C. J.) holding that it was incumbent on Moreland, and not on Davidson, to ascertain,

and send the pauper to her last legal place of settlement, which the Court below had found, though on meagre evidence, was not Davidson. (Moreland Township v. Davidson Township, 21 Sm. 371.)

Subsequently, in 1872, the overseers of Moreland, upon the evidence adduced in the Davidson case, obtained an order of two justices for Ann's removal to said Benton township, Columbia County, and it was upon an appeal by Benton township from that order that the present case came up in the Court below.

On the hearing, before GAMBLE, P. J., after the testimony given by Asa Sperry in the previous case had been read (above quoted), the said Asa was called by the defendants and his re-examination developed that his previous testimony had been principally hearsay evidence.

Ann Sperry, the pauper, aged 70 (who had not been examined in the previous case), was produced and testified that after she left Davidson she never worked for wages, at any one place, for any one year continuously; that there never was any contract of hiring with Mr. Doty, who merely gave her a home as an act of kindness, and never paid her anything. This testimony was corroborated by that of a daughter of Mr. Doty, who said that Ann lived there for company for her, without wages or compensation, and that she could have left at any time she chose, as there was no agreement.

not have been permitted to vary their testimony, and even as it stood the evidence was too weak to justify a different conclusion from that reached by the Court in the former case.

The fundamental error of the Court, we think, was in applying to the former case the principle of Williamsport v. Milton, that "when no settlement exists in either township, that township in which the pauper first became chargeable must bear the burden until the last place of legal settlement should be found." The principle is not controverted, but it was inapplicable, because Moreland did show an admitted prior settlement in Davidson, and the onus of support should then have rested on the latter until she could shift it by proving a legal settlement against some other locality

Whether erroneous or not, Moreland has, without fault on her part, been placed in her present position through the administration of law, and we think that this Court will find a remedy for an anomaly that would work such great injustice. E. E. Orvis and Robt. F. Clark, contra, were not called on.

June 9. THE COURT. We do not see that the Court erred in their conclusions from the evidence. That the evidence is not strong is an insufficient reason for reversing. Did the Court draw from the evidence before them a proper conclusion of fact? We cannot say they did not, and in order to establish error we must The Court held that the new testimony rebutted be satisfied that the Court below ought to have the presumption of a contract for hire with Doty drawn a different deduction. The evidence in -upon which ground Davidson had, in the the former case (21 P. F. Smith, 371) was very previous contest, prevailed against Moreland-weak indeed. Yet this Court did not then reand sufficiently showed that the pauper had never acquired a settlement in Benton. The justices' order of removal to the latter township was therefore reversed, and the pauper again remitted to the care of the overseers of Moreland.

Moreland township thereupon took this writ, assigning for error the ruling of the Court on the law and evidence, and the reversal of the justices' order of removal.

Linn (with him Armstrong and B. S. Bentley), for plaintiff in error.

verse, because it was susceptible of the interpretation given to it by Judge ELWELL. The very weakness of the evidence, then, is a reason why we should not reverse now, in a different state of the evidence, which changes the conclusion. There is no sufficient evidence to charge Benton township. Moreland must resort to the last place of legal settlement of the pauper, wherever that shall be found.

PER CURIAM. The order and decree of the Court of Quarter Sessions is affirmed.

In the former case, Davidson township, the
admitted original settlement, evaded liability on
the ground of an alleged after-settlement in
Benton, and this Court held the judgment to
be conclusive as between Davidson and More- Jan. '74, 141. Lloyd v. Hibbs.
land. In this case Benton has negatived the
allegation of a settlement within her borders, and
if the Court now affirm this judgment, this
strange anomaly will occur: Moreland town-
ship will be compelled by law to support a
pauper who is acknowledged never to have had
a settlement there, while Davidson township, in
which it is admitted she once had a legal settle-
ment, is forever relieved. The witnesses should

SHARSWOOD and WILLIAMS, JJ., absent.
[Cf. Cauffman v. Long, 2 WEEKLY NOTES, 695.]

March 6.

Husband and wife-Mechanic's lien against the separate property of a married woman- What it must set forth.

A mechanic's claim filed against the separate property of a married woman must set forth that the work and request.

was done and the materials furnished at her instance

Dearie v. Martin (28 Sm. 55; S. C., 2 WEEKLY

NOTES, 574) affirmed; Shreiffer v. Saum (2 WEEKLY was incurably defective in that it did not set forth NOTES, 575) followed.

Error to the Common Pleas of Bucks County. This was a sci. fa. sur mechanic's lien, filed by Hibbs against Ella Lloyd, owner, or reputed owner, and James T. Lloyd, her husband, for work done and materials furnished 66 for and about the alteration, addition, and repair of the buildings," etc., on the farm of Ella Lloyd. The claim did not set forth that the work had been done or materials furnished at the request of Ella Lloyd, or by the order of any one in her behalf. A rule to show cause why the lien should not be stricken off was discharged by the Court below, whereupon a writ of error was taken, and the discharge of the rule assigned for error.

Harrington, for plaintiff in error.

The claim should have set forth that the work was done and the materials furnished at the request of Ella Lloyd, who was a married woman. Mahon v. Gormley, 12 Harris, 83. Murray v. Keyes, 11 Casey, 384. Parke v. Kleeber, 1 Wright, 251. Swayne v. Lyons, 17 Sm. 436.

her coverture, and that the work and materials were done and furnished at her request, and that, as this did not appear in the claim, it did not matter that the work and materials were in fact furnished on her order. This was but following in the lead of Finley's Appeal (17 P. F. Smith, 453), in which it was held, per AGNEW, J., that the divestiture of a wife's title, under a mechanic's lien, must depend upon what appears by the record, and not upon proof that she had consented to the contract under which the claim was filed. So in Mahon v. Gormley (12 Har. 80) it was said by LEWIS, J., that, where the narr. was on a promissory note and contained no averment concerning the origin of the debt, a plea of coverture, on demurrer, must be held a good answer to he must either reply setting forth the special cirit. If the plaintiff wished to avoid such effect, cumstances on which he relies to bind her, or amend his declaration. As a special plea could not have helped the plaintiff in this case, inasmuch as the lien is created by the claim filed and all things necessary to its validity must appear in

The liability of the wife must appear from the it, and as it is too late now to amend, it is appa

record.

Finley's Appeal, 17 Smith, 453.

Gilkeson, for the defendant in error.

It was not necessary to set forth in the claim that the work was done and the materials furnished at the request of Ella Lloyd; this was mere matter of proof, to be determined at the trial.

The record shows that the claim is filed against Ella Lloyd, a married woman, and this will suffice to charge her under the ruling in Finley's Appeal,

supra.

March 27. THE COURT. The mechanic's lien, in this case, is worthless in that the claim on which it rests does not set forth that the work was done and the materials were furnished at the request or on the contract of Mrs. Lloyd. This very question has been but recently before us in the case of Dearie and Wife v. Martin (which will appear in 28 P. F. S.). [S. C., 2 WEEKLY NOTES, 574.] In that case the claim, though filed against the wife's property, failed to set forth the fact of coverture, or that the work and materials were furnished at her request. The defendant filed a plea of coverture in bar of the claim. This was followed by a replication on the part of the plaintiff, "that the work and materials were done and furnished at the request and on the authority of the said Margaret Dearie, as well as the said James Dearie, and were necessary and convenient to the preservation and enjoyment Defendant demurred. The Court below gave judgment for the plaintiff on this demurrer. The case was brought up to this Court on writ of error and reversed. Held, WILLIAMS, J., delivering the opinion, that the claim

of her said estate."

rent, from the authorities above cited, that the plaintiff had no lien against Mrs. Lloyd's property, and should not have had judgment on his scire facias.

The judgment is reversed.

Opinion by GORDON, J. WILLIAMS, J., absent. [See Shreiffer v. Saum, 2 WEEKLY NOTES, 575.]

The duties imposed on the building inspectors by the Act of 7 May, 1855, are clearly defined, but the powers given to them are by no means restricted to

those which are in terms mentioned in the Act.

The directions contained in the 8th section of that Act, as construed by the 2d section of the Act of 11 April, 1856, provide only for the minimum thickness of walls. It is the right and duty of the inspectors to require walls to be of such greater thickness as, in their discretion, is necessary to render the building in all respects safe and secure for the purposes for which it is intended.

This was a petition by one of the building inspectors of the city of Philadelphia, for an