of April, 1843, is substantially similar in its pro- | goods and chattels of an intestate is quite differ visions. The interest of the debtor in the real and ent from an interest in his lands. Immediately personal estate of the decedent is attachable no matter in whose hands it may be, and the interest is not any defined or specific property, but is analogous to the interest of a partner in the partnership. But the interest, if it were in doubt, is plainly described in the words "distributive share." It is submitted that no especial degree of certainty is required in such writs if the object is fairly indicated, so that the garnishee may know how to frame his answer, and the Court to make a decree. The case is ruled by- Neely v. Grantham, 8 Sm. 433. Straley's Appeal, 7 Wr. 89. May 3, 1880. THE COURT. Section 10, Act of April 13, 1843 (P. L. 235), subjects all legacies given, and lands devised to any person, and any interest which any person may have in real or personal estate of any decedent, by will or otherwise, in the hands or possession of the executor or administrator, or in whosesoever hands the same may be, except legacies and distributive shares due married women, to attachment and levy in satisfaction of any judgment, in the same manner as debts due are made subject to execution by the 22d section of the Act of June 16, 1836 (P. L. 765). Said twenty-second section | makes debts due to any defendant liable to execution like other goods and chattels. As debts cannot be taken in the same mode as a horse, or leasehold, the thirty-fifth section declares "the same may be attached and levied in satisfaction of the judgment in the manner allowed in the case of a foreign attachment." In the case of personal property, a foreign attachment is served by the officer going to the person in whose hands or possession the defendant's goods or effects are supposed to be, and then and there declaring, in the presence of one or more credible persons of the neighborhood, that he attaches the said goods or effects. (Act June 13, 1836, § 48, P. L. 580.) The forty-ninth section declares how the writ shall be executed; and the fiftieth, what the sheriff shall do after the service, in case of real estate. By Act of 1849, § 11 (P. L. 620), process in the nature of attachment may be issued at any time after the interest of the defendant in the real or personal estate shall have accrued by reason of the death of the decedent. The statutes have not confounded legacies and devises, nor the respective interests of one in the realty and personalty of an intestate, but have made each and all liable to attachment upon execution in satisfaction of a judgment. "Legacies given", and "lands devised," are artistic phrases, meaning different things, and neither includes the other. And so an interest in the after the death of a decedent, his heir takes the real estate in possession, and, as if he held by purchase, he may sell and convey or encumber it, or his judgment creditor may cause it to be seized in execution. The administrator of an intestate has no right of possession or custody of his lands. The possibility that the primary fund may be insufficient for payment of the decedent's debts does not prevent possession and control of the land by the heir until adjudication and conversion by proceedings in the proper Court. One who acquires the title of the heir stands in his place and holds subject to liability for debts of the intestate, if there be not enough personalty to pay them. Here the præcipe directed an attachment of the moneys and interest of the defendant in the hands of the administrator, and the writ rightly followed the præcipe. Obeying this writ, the sheriff attached "all the goods and chattels, debts, effects, credits, legacies, distributive shares of the defendant" in the hands, possession, or custody of the administrator of Jacob Harwi, deceased. Upon the admitted facts the administrator was not in possession of the lands, and no service was made on the occupants. The personal estate of the decedent is more than sufficient for payment of his debts, but this fact matters little, if anything. On its face the writ embraces nothing but the defendant's interest, or his distributive share, in the personal assets in the administrator's hands, and the return of service shows no attachment of lands or interest therein. Clearly the writ and service did not bind the defendant's interest in the real estate, and it is unnecessary now to decide how the writ for such purpose should be executed. The record fails to show an attachment or levy on lands or interest therein, and consequently there is not a semblance of notice to subsequent purchasers or encumbrancers. The decree of the Court below seems to rest mainly on the authority of Straley's Appeal (7) Wr. 89) and Neely v. Grantham (8 P. F. S. 433). The former was not referred to in the latter, though at variance with the views of a majority of the Court. In Neely v. Grantham, two of the five Judges dissented, holding that the writ, not having been served in the manner directed in a foreign attachment, did not create a lien, and the present Chief Justice agreed in the judgment expressly upon the ground that the interest of the defendant in the estate was personalty; but if realty, the strong inclination of his mind was to unite with the dissenting Judges. Therefore, the case cannot be regarded as ruling that the defendant's interest in the real estate of the decedent is bound by an attachment of his interest only in the personal estate, or that the real and personal estates are so blended in the statute that words exclusively applicable to one include the other. plaintiff cannot sustain his suit in this form of action, and the verdict must be for defendant. Refused (1st assignment of error). Decree reversed, and it is now considered and (2) That if the jury believe, from the evidence, decreed that the fund $1549.32 be appropriated that the plaintiff did not deliver to the defendto the judgment in favor of Jeremiah Roth, trus-ant, of the crop of the last year of his tenancy, tee for Barbara Harwi, No. 269, Feb. Term, 1878, costs to be paid by appellees. Opinion by TRUNKEY, J. in the defendant. his full share of the corn crop, but fraudulently withheld a part thereof, and that defendant offered to plaintiff that he could thresh the wheat and have his part of it, if he would comply with the article of agreement and give defendant his share or part of the corn crop withheld, then plaintiff cannot recover, and the verdict must be for defendant. Refused (2d assignment). (3) If the Court refuses to answer the first and second points as requested, the Court is requested to charge the jury that the defendant is entitled to deduct from the plaintiff's claim the value of whatever corn of defendant's share Trover is not maintainable when the right of possession plaintiff withheld and did not deliver to him, in mitigation of damages. Refused (3d assignment). The Judge charged, inter alia, as follows: Semble, per PAXSON, J. Even in actions ex delicto, an equitable defence in the nature of set-off, as to matters"This is an action ex delicto, and the set-off growing out of the same transaction, may be admissible. here claimed cannot be allowed Error to the Common Pleas of Mifflin County. Trover, by Matthew P. Taylor against Henry Lehr, to recover damages for the conversion of one hundred and sixty-five bushels of wheat. Plea, the general issue. The evidence disclosed the following facts: In 1871, the plaintiff went into possession of certain premises under a lease from the defendant. The lease was for one year, but the plaintiff had been permitted to remain on the property for five years, without any other agreement. The lease provided that the plaintiff should sow such portion of the farm as the defendant might designate, and receive from him one-half of the produce. And it was further stipulated— "that the right of possession of the crops of grain and hay in the fields, or in the barn, shall be in the first party [the defendant] until the same is divided, and the first party's share is delivered to him." At the expiration of his term in the spring of 1876, the plaintiff removed from the premises and the defendant resumed possession. During the summer, the plaintiff cut and put into the barn the wheat crop in question, which had been sown in the previous fall, and demanded of the defendant his share or its equivalent in money. The defendant refused to comply with this request until the plaintiff accounted for the defendant's portion of a corn crop alleged to have been fraudulently retained by the plaintiff. The defendant subsequently sold the entire crop of wheat and kept the proceeds. On trial, before BUCHER, P. J., the defendant submitted the following points: (1) That under the article of agreement, the VOL. IX.-26 We admitted this evidence with hesitation, and have come to the conclusion that this set-off cannot be allowed. If you believe, then, that there has been a conversion of this wheat by the defendant, you ought to find a verdict for the plaintiff." Verdict and judgment for the plaintiff. The defendant took this writ, assigning for error the refusal to affirm the points presented, and the charge of the Court as above quoted. the D. W. Woods, for the plaintiff in error. Romig's Adm'r v. Romig, 2 Rawle, 241. A. Reed, for the defendant in error. Trover may be maintained between joint owners, where the common property has been destroyed, converted, or misappropriated. Addison on Torts, 420. 2 Hilliard on Torts, 296. Agnew v. Johnson, 5 Harris, 373. ant should retain the right of possession of the Stafford v. Ames, Barr, 343. and 3d assignments. The general rule is, as stated very far towards establishing its competency. (See October 6, 1879. THE COURT. The plain-transaction. There is a line of cases which go tiff worked the defendant's farm upon shares. By the terms of the lease he was to have half the grain, but the right of possession thereof in the fields or in the barn was to be in the defendant until divided, and his share delivered to him under the terms of the lease. The plaintiff moved off the farm in the spring of 1876. The wheat which is the subject of the present contention was sown the previous fall and harvested during 1876. It was therefore one of the crops of the year 1875. The defendant refused to allow plaintiff to take his share thereof, upon the allegation that the plaintiff had fraudulently withheld a portion of the corn and other crops for the year 1875. Thereupon the plaintiff brought this action of trover and conversion to recover the value of one half the wheat crop. Upon the trial in the Court below the defendant contended: (1) That the action of trover and conversion would not lie; and (2) That, if it were the proper form of remedy, the defendant could show in mitigation of damages that the plaintiff had fraudulently withheld a portion of the crops, and could recover the value thereof in this proceeding. Both these points were ruled against the defendant, the learned Judge holding that in an action in form ex delicto no set-off can be allowed. Quarter Sessions. Oct. 30, 1880. Commonwealth v. McGurk. Indictment for murder-Act of 1785, providing for discharge of untried prisoner, on bail, after second term of Court-Not applicable where, after trial, a new trial has been granted as matter of grace, and the second trial has been delayed more than two terms. Motion for discharge. The prisoner was tried at the January Term, 1880, and convicted of murder in the first degree. Upon his motion a rule for a new trial was granted, and, on Saturday, May 1, 1880, the last day of the April Term, made absolute. Four terms having elapsed at which Courts of Oyer and Terminer were held, without the second trial taking place, the prisoner now moved for his discharge under the Act of 1785. E. B. Morris and Walter G. Smith, for the motion. We are of opinion that the plaintiff has mistaken his form of action. The possession and the right of possession of the grain were in the defendant until divided as stipulated in the lease, not as to the wheat crop alone, but as to all the crops of grain and hay in the fields or in the barn. If therefore the plaintiff has appropriated the corn and other crops to his own use in fraud of the rights of his landlord under the lease, would he also be entitled to demand a division of the wheat, and sue the latter in trover and conversion upon a refusal? We need not argue such a plain proposition. The possession being in the defendant, the action of trover cannot be sustained. Nor does it matter that the defendant sold the wheat and recovered the entire proceeds, if as he alleges the plaintiff has in his hands more than the amount unlawfully withheld from him. Had the plaintiff brought his action upon the lease, all questions arising under it could have been properly ad- The motion for new trial was based wholly on justed. The attempt to settle only so many of errors of law. The new trial was therefore mat them as suits his convenience is ingenious, but car-ter of right, and the prisoner should not be made ries with it the penalty of failure by reason of a mistake in the form of action. As this view is decisive of the case, we need not discuss at length the question raised by the 2d The new trial having been granted, the verdict in the first trial is wiped out, and defendant is now in the position of never having been tried, so that the two-term rule should run, in his favor, from the date of the rule being made absolute for new trial, as though that had been his commitment. to suffer for what was not his fault. The Act is imperative, and as the prisoner's case does not fall within either of the exceptions mentioned therein, he is entitled to a discharge. MITCHELL, J. The object of the Act of 1785 was to prevent oppression of a prisoner in confinement by undue delay in bringing him to trial. Notwithstanding the general language of the Act, it has been held that the provision for a discharge at the end of the second term does not apply where the trial has been prevented by any circumstances of moral, physical, or legal necessity. Most of the exceptional cases which had then arisen (1875) are referred to in Comm. v. Brown (32 Leg. Int. 430; 2 WEEKLY NOTES, and in Comm. v. Hale (7 WEEKLY NOTES, 153); 359) it was further held that where the prisoner had been a fugitive and had surrendered, he had put himself outside of the protection of the Act, and could not now complain if the Commonwealth chose its own time to try him. The present case is new, but is strongly analogous to Comm. v. Hale. The Commonwealth did its whole duty in trying the prisoner at the proper time. The result was his conviction; and now that a new trial has been granted to him upon his own motion and as matter of it grace, would be unreasonable to allow him to dictate when the Commonwealth shall be ready to try him the second time. Having asked and received the favor of the Court, he must take it cum onere. I It is not necessary to decide what would be the effect of a new trial granted by the same Court for error in law, or a reversal of judgment by the Supreme Court for the same reason. have read carefully the opinion of Judge ELCOCK, and think it sets forth clearly that the new trial is granted solely as matter of grace, and out of tenderness for the prisoner in a case involving his life. The motion must be refused. In re St. Nicholas Coal Co. The Lost certificate of stock-Corporation-Dissolu- Rule to show why accountants should not pay the amount awarded by the auditor, without production of certificate of stock. The affidavit of E. S. Stagers, upon which the Court granted the rule, set forth that on May 1, 1880, the St. Nicholas Coal Company, a corporation, was dissolved by a decree of the Court in a proceeding for dissolution and distribution under the Act of April 9, 1856 (P. L. 293); that the assets were converted into cash, and the known debts of the company paid by the directors, who then filed their first and final account, showing a balance in their hands of $28,553.42; that the account was referred to an auditor, who reported that, no creditors appearing, the fund must be awarded pro rata amongst the stockholders upon producing their certificates Common Pleas-Law. of stock to the accountants; that the auditor re ported that the deponent's name appeared upon the stock ledger and stock certificate book as the owner of 208 shares of stock, and awarded to him $94.12 as his share of the balance in the hands of accountants. The affidavit further set forth that, though he had made diligent search, the deponent had been unable to find the certificate for 200 shares of said stock, that the same had been mislaid or lost by him, that he had so informed accountants, and that he had at no Motion to dissolve attachment execution. The plaintiff Saurman, having obtained a judg-time assigned or sold the same or any of said ment against one Knabe, attached certain music plates belonging to defendant, which were in the possession of Backer, a printer, having been left shares. The accountants, however, refused to pay him the amount awarded him by the auditor without the production of the lost certificate. M. H. Todd showed cause. cution should be restrained until indemnity was given. Again, in Fitchelt v. R. R. Co. (5 Phila. 132), the District Court of Philadelphia, per HARE, J., held that the same principle applied to lost coupons of railroad bonds. In the case reported above, the relief was afforded by rule, in a statutory proceeding, of an equitable character, by petition, etc., for the dissolution of a corporation, as provided by Act of Assembly.] A rule to show cause, in a statutory proceeding of this character, is not a proper method of obtaining payment of a lost instrument. There should be some formal proof of loss, filed of record, other than the mere affidavit on which the rule was granted. A petition or bill should be filed, and, upon answer, the matter should be referred to an examiner to take testimony. But even if relief can be granted by rule, indemnity. should be required to protect the accountants, C. P. No. 4. who under the Act are trustees, against subsequent bona fide claimants. Wm. A. Redding, for the rule. As between a corporation and corporator the stock ledger and stock certificate book are evidence of the ownership of the stock; the certificate is only secondary evidence, and it is not necessary to produce it. Bank of Commerce's Appeal, 23 S. 59. THAYER, P. J. The affidavit may be treated as a petition, and the facts set forth not being denied must be taken to be admitted. The dis tribution being made in a judicial proceeding after public notice to all parties in interest, no responsibility can attach to the accountants. I do not think indemnity is necessary in this case. THE COURT. Rule absolute. [The jurisdiction of a Court of Equity to compel the payment of lost obligations has always been recognized in England. Where the instrument is negotiable or transferable by delivery, or where a title would pass to a bona fide holder for value without the necessity of such inquiry as would develop the fact of the loss, indemnity is a condition precedent of payment. The jurisdiction is classed under the general head of "Accident." (Haynes's Outlines of Eq. 131-2; Story Eq. Jur. 3 81-88; Bispham's Eq. 177 et seq.) The original ground of jurisdiction in equity appears to have been the impossibility of making profert, which was necessary at law, and also the superior machinery of a Court of Equity to protect the defendant by requiring indemnity against subsequent claimants. Although it is believed that no reported case can be found where this equity jurisdiction has been exercised in Pennsylvania, there is no doubt that it exists, by virtue of the Acts extending to the Common Pleas Courts equity jurisdiction "in all cases over which Courts of Chancery entertain jurisdiction on the grounds of fraud, accident," etc. (Acts of June 13, 1840, 8 39; April 16, 1845, § 3; and Feb. 14, 1857.) The jurisdiction has been exercised in Vermont and North Carolina. (Miller v. R. R. Co., 40 Ver. 399; Carter v. Jones, 5 Iredell Eq. 196; Deans v. Dortch, Id. 331.) Apart from the separate equity practice, there are several instances, in Pennsylvania, where the equitable remedy has been administered in actions at law. Thus, in Meeker v. Jackson (3 Yeates, 442), the plaintiff in assumpsit recovered the amount of a lost bill of exchange, the Court requiring that "the plaintiff must indemnify the defendant against the bill." So, in Snyder v. Wolfley (8 S. & R. 328), the plaintiff in an action of debt was permitted to recover the amount of a prize drawn by a lost lottery ticket, upon giving indemnity against future claims founded upon it. In Bisbing v. Graham (2 Har. 14), a recovery was had in assumpsit on a promissory note lost after suit brought upon it, the Court holding that exe Dec. 20, 1880. Mayberry v. Railway Co. Street railways-Liability for negligence-Duty to keep in repair streets occupied by themHusband and wife-Suit by wife aloneRelease by wife-Feme sole trader-What necessary to entitle wife to immunities of Act of 1855. Rule for a new trial. Case, by Mary A. Mayberry against The Second and Third Streets Passenger Railway Co. On the trial, before ELCOCK, J., it appeared that with her husband and was supporting herself and the plaintiff was a married woman but not living with her husband and was supporting herself and family; that she with her mother and some of her family took passage upon one of the defendant's cars to go to Meadow St., Frankford; that she was carried safely to the place of her destination; that at the place where the plaintiff and her party were landed the street was crossed at right angles by a deep gutter, which was covered by large iron plates over which passed all the travel of the street; that it was dark at the time in question, and one of the plates was so displaced or turned that, as the mother of the plaintiff stepped upon one end of the plate, it tilted up and fell back upon the foot of the plaintiff, who was following, inflicting serious injury. The defendant offered in evidence, inter alia, a release executed by the plaintiff to the defendant in consideration of the sum of $20. It was admitted not as a bar to the action, but as evidence affecting the measure of damages. assessed the damages at $702. George W. Thorn, for the rule. The release given by the plaintiff was a bar to the action. She became by the desertion of her husband a feme sole trader so far as to permit her to sue for or release a claim of which she was the meritorious object. The claim against the defendant, if any, was her separate property, and as such she could release it as if she were unmarried. Act 4 May, 1855, Purd. Dig. 692. Black v. Tricker, 9 Sm. 13. Elsey v. McDaniel, 9 WEEKLY NOTES, 269. The contract of the defendants was ended when the plaintiff was safely landed, after that there was no further liability. She had no right of action against them for any injury which hap |