8. FINDINGS OF FACT—CONCLUSIvE ON APPEAL.

The question whether or not the cards and circulars used by the retiring partner in soliciting trade are so printed as to violate this rule is a question of fact, and the findings of the trial court upon that point are binding on the appellate court. Id.

See JUDGMENT, 6.

PART PERFORMANCE. See STATUTE OF FRAUDS, 3.
PATENTS FOR INVENTIONS. See TRADE-MARK.
PAUPERS. See POOR AND POOR LAWS.

PAYMENT.

1. PRESUMPTION 0F PAYMENT—LIEN.

There is a presumption of law that a lieu of indefinite duration, i. e., that of a contractor for the construction of a railroad, has been paid after the laps of more than 20 years. Hayes v. Bald Eagle Val. R. (10.. (Pa) 144.

2. PROMISSORY NOTE—CHECK—DISHONOR—LIABILITY UPON NOTE.

The maker of a promissory note, on the day on which the note matured, obtained from his banker a cashier’s check payable to the cashier of the bank which held the note. The latter bank accepted the check, and delivered up the note. Before payment of the check could be obtained, the bank by which it had been given suspended payment, and it was dishonored. Held that, the check being taken for a pre-existing debt, the receipt of it, and the contemporaneous delivery of the note, operated only as conditional payment of the note, and the maker was, upon the dishonor‘of the check. still liable to the holder upon it. Canoneburg Iron (70. v. Union Nat. Bank, (Pa) 574.

8. PLEADING IN EQUITY.

A defense of payment, even though made after bill filed, is properly made in an answer to the bill. Raelble v. Goebbel, (N. J.) 21.

4. ONUS PROBANDI—WRITTEN RECEIPT—FORGERY—FACT FOR THE JURY.

It is incumbent upon a defendant, under the plea of ayment, to show affirmatively that he has paid the plaintiff’s demand; an , where he produces receipts thereof, it is not necessary for the plaintiff to Show that they were forged or obtained by fraud. The oath of plaintiff denying the signing of the receipts, and that of the laintifi alleging the payment, together with the receipts. Should be submitted) to the jury to find the fact. Mitchell v. Mitchell

(Pa.) 682.
PENSION. See ASSUMPSIT, 1.
PERFORMANCE. See CONTRACTS, 13—16.

PLEADING.

DEMURRER OVERRULED—JUDGMENT ON DEMURRER SUPERSEDED.

When a demurrer to a declaration is overruled, and plaintiff makes no de mand for judgment guod recuperet, but defendant pleads, and there is a tria on the issue raised by the pleadings, the judgment on the issue raised by the demurrer is superseded. Helfrich v. Free/t, (Pa.) 89. %

See ASSUMPSIT, 2; CRIMINAL LAW, 3—10; EQUITY, 8—11; HUSBAND AND WIFE, 2 NEGLIGENCE, 8, 14, 15; PROMISSORY NOTES, 2, 3; TRESPASS, 8.

PLEDGE AND COLLATERAL SECURITY.

NOTE—JUDGMENTS—MORTGAGE—FORECLOSURE—SATISFACTION OF DEBT.

K. takes an assignment of a mortgage, paying therefor the principal sun for which the mortgage was given. He also pays off two judgments agains the land covered by the mortgage; taking, as collateral security for the pay ment Of the judgments, interest, and costs on the mortgage, a note given b* E. B., W. B., and J. S. J. S. died after K. had recovered a judgment on th. note. L., the administrator of J. S., by order of court proceeded to sell th real estate; B., the complainant, purchasing. K. realized from the land h held the mortgage against within $450 of the full amount due him on mort gage and judgment. This $450 was tendered him by L., but K. refused i1 and issued execution against the lands bought by the complainant, and claim the full amount of the judgment; he holding that the agreement under whic

he accepted the collateral security being“security to a certain amount, notfor a certain amount. ” Held, that, upon payment of the $450, the claim of K. is satisfied, and that not even a technical use of the words “to” and “for” will bear the defendant’s construction. Burd v. Keyser, (N. J.) 18.

See STATUTE 0F LIMITATIONs, 3.
POLICE OFFICERS. See MUNICIPAL CORPORATIONs, 21-27.

POOR AND POOR LAWS.

1. SETTLEMENT ACQUIRED IN CONNECTICUT BY MAssACHusETTs PAUPER.

A minor who has been supported as a pauper by the state of Massachusetts, but abandons such support, and lives for several years in a Connecticut. town, supporting himself, and from there, being still a minor, moves to another Connecticut town, where he lives and supports himself for many years, acquires a settlement in the latter town as a resident of one town removing to another. Town of Canton v. Town of Simsbury, (Conn.) 183*

2. SETTLEMENT—REQUIREMENTs UNDER SECTION 1 OF NEW JERsEY POOR Ac'r.

To gain a le a1 settlement under the first clause of section 1 of the New Jer

sey poor act, ( evision, 834.) the pauper must have been seized of a freehold

estate of the value of $130, and have dwelt thereon, or in the township in

which the estate was situate, for one continuous year. State v. Inhabitants, etc., of Shrewsbury, (N. J.) 319.

8. REsIDENCE—TEMPORARY ABsENCEs—INTENT To RETURN.

The statute does not require the continuous actual presence of the party, but Will be satisfied by an unbroken residence on the estate or in the township. The continuity of such “dwelling” will not be broken by absences for business or pleasure, which are temporary. and accompanied with a continued intent to return when the purpose of the absence has been accomplished. 1d.

4. SETTLEMENT—FREEHOLD.

A., in 1864, moved into Adams township, having purchased 25 acres of land there. In 1866 he sold the land to B. Under an agreement then made, between A. and B., the latter purchased 20 acres of land in Forward township; the title thereto being put in the name of B. This 20-acre farm was to be and remain a home for A. and his family during their lives, and was paid for in part out of the proceeds of the sale of the Adams townshi farm. which B. sold before this purchase. A. and his family occupied the * orward township farm for about 14 cars, when he, being unable to work, wandered into Adams townshi , and fel a charge there. Held, that A. had not such a freehold in Forwar townshi as gave him a le a1 settlement there. Overseers of Poor of Adams Tp. v. Seerseers of Poor of orward Tp., (Pa.) 710.

POOR DEBTOR.

WARRANT OF ARREST—COMMITMENT—WHO MAY GRANT.

Where one is arrested upon a warrant of arrest, and his petition for discharge under the insolvent laws is refused by the court, it is not necessary that the judge who issued the warrant should sign the commitment. Any judge of the court may do that. Mar/cs v. Drovers’ Nat. Bank, (Pa.) 774.

. INsOLVENT BOND — CONDITION OF -- COMPLIANCE WITH — SURETIEs, DrsCHARGE 01".

Where an insolvent fails in obtaining his discharge as an insolvent debtor, and voluntarily surrenders himself to the jail Of the county, he complies with the alternative condition of his bond “that he shall surrender himself to the jail of the county, ” and, though the warden refuses to receive him, his bond is void, and his sureties are discharged. Id.

See SHERIFF.

POWERS. . EXECUTION BY FEME COVERT.

Afeme covert may, without the concurrence of her husband, execute any kind of power, whether given to her when single or married. To require his concurrence might not only embarrass the donee of the power in its execution, but, in case of his refusal to concur, would prevent its execution altogather, and thus defeat the testator’s intention. Defl‘enbaugh v. Harris, (Pa.)

. TESTAMENTARY—EXECUTORS—SALE—CONSTRUCTION 0F WILL.

A testator ordered his executors to sell all his real estate, not disposed of by his will, at either public or private sale, “such sale or sales to be made in one year after my decease, or sooner if deemed desirable by them.” Held, that the rule of construction of such powers is that the limitation is directory merely, unless it appears from the will that the testator intended that it should be of the essence of power; that, in the above will, executors can give ood title if sale be made after the expiration of the year. Marsh v. Love, ( . J.) 889.

8. POWER To MORTGAGE To KEEP IN REPAIR, NOT POWER To PAY TEsTATOE’s MORTGAGE DEBTS.

A power to trustees to sell, and, if unable to sell to advantage, to mortgage, to pay borrowed money, or to keep in repair, gives no power to pay mortgage debts contracted by the testator. Mulford v. M'u-lford, (N. J.) 609.

4. POWER To CHARGE REPAIRs TO CORPus 0F ESTATE, AND RELIEVE INCOME.

Where trustees are given property, the income of Which they are to dispose of, but there is a provision that they may mortgage to keep in repair, they may raise the money therefor by mortgage, instead of taking it out of the income, as they would otherwise have been bound to do. Id.

5. INTEREsT 0N MORTGAGEs GIVEN FOR REPAIRs PAYABLE OUT OF INCOME.

Where trustees are authorized to give mortgages to raise money in order to pay for repairs, and to make a certain disposition of the income of the property, the interest of such mortgage is to be paid out of the income, there appearing no specific intention to charge the estate therewith. Id.

PRACTICE. See ACTION; APPEAL; ARBITRATION; ARREST; ATTACHMENT; AUDITOR; CERTIORARI; CONTEMPT; CONTINUANCE; Cosrs; COURTs; DErosITIONs; DIsCOVERY; DRAINs, 2—4; EQUITY, 12, 13; ERROR, WRIT OF; EXCEPTIONs; ExECUTION; GARNISHMENT; JUDGMENT; JURY; MANDAMus; PARTITION; PLEADING; REFERENCE; REPORT AND CAsE MADE; TRIAL; SET-OFF AND' COUNTERCLAIM; WITNEss; WRIT AND PROCEss.

PRESUMPTION. See DEED, 5; HUsBAND AND WIFE, 1; PAYMENT, 1.

PRINCIPAL AND AGENT. See BAWDY AND DISORDERLY HousEs; INTOXICATING LIQUORS, 11.

PRINCIPAL AND SURETY.

the money on demand. B. afterwards became insolvent, and A. brought suit against the sureties to recover the sum on deposit with B. Held, that he was entitled to recover. The bank having received the state’s money, whether honest}; or by fraud, the sureties were bound to make the loss good. Harbison v. ailey, (Pa.)724.

2. ACTION AGAINsT PRINCIPAL BY SURETY—REIMBURsEMENT—EVIDENCE.

In an action b a surety against his principal to recover money paid by him in satisfaction 0 the principal’s debt. the judgment recdvered by the creditor against the surety on his contract of suretyship, and paid by him, is admissible in evidence to show the amount of the claim against the principal. Murphy v. Jones, (Pa.) 726.

3. FRAUD—SIGNING IN IGNORANCE or CONTENTs.

If a surety on a bond is not prevented, by any trick or artifice of the obligee, from reading it, or having it read to him. and signs the same in i norance of its contents, he cannot avoid the liability incurred thereby. Jo nston v. Patterson, (Pa.) 746.

4. RELEAsE 0F SURETY BY RELEAsE or LEVY.

If a creditor releases a levy upon the goods of a principal debtor without the knowledge and consent of the surety, and the surety is injured thereby, the surety is discharged, to the extent of the value of the goods. Hazel v. Sinem, (Del.) 625.

ACTIONs AGAINsT SURETIEs—EVIDENCE—CONVERsATION BETWEEN PRINCIPAL AND SURETY IN ABsENoE 0F OBLIGEE.

Conversations between a principal and his surety, in the absence of the obligee of a bond, are not admissible in relief of the surety, or to prove a fraud 0n the part of the obligee in filling up blank spaces left in the bond after signing. Johnston v. Patterson, (Pa.) 746.

See POOR DEBTOR, 2.
PROBATE. See WILLs, 3—7.

PROMISSORY NOTES.

1. EXECUTION BY TREAsURER.

A promissor note, reciting “we” promise to pay, and signed, “D. P. LIVERMORE, Treas. allowell Gas-light Co., ” is the note of the individual, and not of the corporation. JIIe Olnre v. Livermore, (Me.) 11.

. ACTION—PLEADINGP—SEVERAL NOTEs AND ONE COUNT.

A number of notes given for the price of land sold may be sued upon in one count, alleging an indebtedness in an amount equal to the entire price, and that the obligation is evidenced by several promissory notes. Morse v. Frost, (Conn.) 182.

. INDORsEMENT -- ACCOMMODATION — UsURY -— AFFIDAVIT 0F DEFENsE— SUFFI

CIENCY OF.

A., having received a promissory note in the regular course of trade, indorsed it in blank, and handed it to B. without receiving any consideration therefor. B. did not indorse it, but handed it to 0., who indorsed it to D.; the latter bringing suit thereon against A. A. filed an aflidavit of defense, alleging that the note, though in the possession of D., belonged to 0., who knew that A. had received no consideration, but that it had been indorsed for the accommodation of B., and that B. was entitled to a credit on said note for C.’s failure to deliver a certain order, and for another amount, exacted by C. as usurious interest. Held. that this was a substantial defense to a part of the note, and that the court erred in entering judgment for want of a sufficient affidavit of defense. Gunnis v. Weigley. (Pa.) 465.

EsTOPPEL—PRIOR SUIT AGAINsT CORPORATION.

In an action on a note, the fact that the plaintiff had previously brought suit against a corporation as maker on the same note, and obtained a default, but not a judgment, will not estop him from maintaining the action if the de— fendant was not induced to change his position thereby, to his injury. MeOlure v. Livermore, (Me.) 11.

FAILURE OF CONsIDERATION.

A. had his note discounted by B., a bank, and on the next day made an assignment for the benefit of his creditors. Upon learning of this, B. closed the account, and returned the note to A.’s assignee. Suit being brought by the latter against B., held. that there was a failure of COnsideration as between the parties. and that B.’s defense was a good one. Lancaster 00. Nat. Bank v. Huver, (Pa.) 141.

6. MIsREPREsENTATIONs As TO CONsIDERATION—ACTUAL KNOWLEDGE.

A. purchased from B. lands in Nebraska, giving his note as collateral security for a part Of purchase money, with interest at 10 per cent. per annum, which is lawful in that state. The note not being paid at maturity, B. sued A., and the latter defended on the ground that the note had been obtained from him by fraud, in that the land had been greatly misrepresented to him by B. The court would not admit this evidence, the objection being that A. had seen the land, and that the misrepresentations could not amount to fraud. gagd, there was no error in rejecting the evidence. Sprowls v. M0 Ulv'ud, (Pit)

See ACTION, 2; PAYMENT, 2.
PROPERTY. See FIXTUREs; MINEs AND MINING.
PUBLIC SCHOOLS. See SCHOOLs AND SCHOOL-DISTRICTS.

QUESTIONS OF LAW AND FACT. See EJECTMENT, 2; FIRE INsURANCE, 7; NEGLIGENCE, 9-13, 16; TRIAL, 5—7.

QUIA TIMET. See EQUITY, 6.
QUIETING TITLE. See EQUITY, 6, 7.

RAILROAD COMPANIES. Crossings. 1. GRADE CRoseres—MUNICIPAL CORPORATIONs—POWER OF LEeIsLATURE—COMMISSIONERS.

The Connecticut legislature having determined that the intersection Of two

railways with a highway in the city of Hartford, at ade, is a nuisance,

‘ dangerous to life, in the absence of action on the part either of the city or the railroads, may compel them severally to become the owners of the right to lay out new highways over such land, and in such manner as will separate the grade of the railways from that of the highway at intersections; may compel them to use the right for the accomplishment of the desired end; may determine that the expense shall be paid by either corporation alone, or in part by each; and may enforce obedience to its judgment; and it has the power to do these things through the instrumentality of a commission appointed for the purpose. Woodr'ufl" v. Catlin, (Conn.) 849.

Right of Way. 2. RIGHT TO CUT GRAss WITHIN LINE OF LOCATION.

A railroad company has practically the exclusive possession and control of the land within the lines of its location, taken by right Of eminent domain, and has the right to out and remove the grass growing thereon, if such removal is deemed conducive to the safe management Of the road. Hayden v. Shillings, (Me.) 830.*

3. PENNsYLVANIA RAILROAD ACT OF JUNE 19, 1871—RELOCATION BY MAsTER— CONDEMNATION OF RAILROAD YARD.

The Pennsylvania railroad act of June 19, 1871, (relating to crossing of lines of railroads by other railroads, and authorizing the court, if it is reasonably practicable to avoid a grade crossing, to prevent such crossing at grade by their process,) does not apply to proceedings to condemn, and locate a railroad through another company’s yard; and the master, on a reference, is not justified in relocating such a road under that statute. Pittsburgh Junction R. Co.’s Appeal, (Pa.) 564.

4. CRossINe YARD OF A RAILROAD—INJUNCTION.

A railroad company will be restrained from proceedings to take, under the right of eminent domain, a portion of the yard of another railroad company, where the location of its road through plaintiff’s yard is a matter of economy,

. and not of necessity, and defendant can reach its terminus by another route. § TBUNKEY and CLARK, JJ., dissenting. Id.