were relied upon, for, as is testified to by one of related being, so far as the defendant was conthe endorsers, they constituted the co..sideration cerned, the consideration therefor. Whilst it is for the note in suit, and this is not denied by the true, therefore, that the Court did not say to the appellant, except that he alleges that they were jury in terms that the false representations must only part of the consideration. The only ele- be relied upon by the defendant, all the testimony ment, therefore, necessary to constitute fraud was in the case shows conclusively and without subthe falsity of the representations. This was substantial contradiction that this representation was mitted to the jury for its finding, and the verdict relied upon, and that it was the consideration, at establishes the fact. The representations made least so far as the defendant was concerned, for by the appellant to three different parties inter- the note in suit. As among themselves, the indiested in the note held by him, and interested in vidual endorsers of this note were doubtless joint the giving of the new note upon which this suit endorsers; that is, were jointly liable for the is brought, undoubtedly led to the making of the amount thereof, and bound to contribute equally note in suit. Without those representations, no to its payment. They so held themselves, as such note would ever have been given. If the Hunter testifies, in regard to the old note of one representations were false, the contract itself was thousand dollars, and his desire was to have them based upon a fraud. Whether the representa- so held upon the new note. Whether this were tions were made to Eccles personally, or to oth- so as to the holder, it was undoubtedly true as ers interested with him in the transaction, makes among themselves; so that we would have the but little difference. The contract was based strange anomaly of three of five joint endorsers upon the representations made by Brown, and relying upon false representations as to a material the only substantial question of fact for the jury fact which constituted the consideration of a conwas to determine whether he held the note under tract, and one of the other endorsers not relying. the circumstances alleged by him to be true, or upon it, and that too,when the latter had signed whether the opposite state of facts alleged by the and endorsed the note as treasurer of the corporwitness Boycott was the true one. The falsity ation which was the primary obligor. If the of the appellant's statements being determined, all ground work of the contract entered into by the the other elements necessary to constitute a fraud Iron City & Hammondville Improvement Comwere affirmatively shown in the case without sub-pany were laid in fraud, it can hardly be claimed stantial contradiction. Hunter, the attorney for that Eccles, the endorser, would be held by Lis Carr, Giffen and Fraser all testify to the represen- endorsement, even if the false representations tations made by Brown which are not denie、 by upon which the contract were based had never him. Hunter testifies in one place that the only been communicated to him. Where, in a conobject in visiting Brown was to ascertain whether tract between the vendors and vendee of goods, or not he held the note as an innocent holder for it was agreed that the latter should pay to the forvalue. It is true that he says subsequently that mer ten shillings per ton beyond the market he represented Carr and desired to have the note price, which sum was to be applied in liquidation lifted in such a way as to save Carr, who was of an old debt due to one of the vendors, the payjoint endorser with the other individual endor-ment of the goods was guaranteed by a third persers. Giffen testifies that Brown's possession and son, but the bargain between the parties was not surrender of the thousand dollar note was at the communicated to the surety. Held, that there least part of the consideration for the note in suit. was a fraud on the surety, and rendered the guarThese parties, as appears by the evidence, were anty void: Pidcock v. Dishop, 3 Barn. & Cress. interested in the same way and to the same extent 605; 10 Eng. C. L. Rep. 276. The testimony, as as Eccles, the defendant. The latter is not only developed in the trial of the case, clearly shows an individual endorser with those to whom these that the endorsers of the note in suit were under representations were made, but as the treasurer no legal liability to Brown, the appellant, upon of the Iron City & Hammondville Improvement the note for one thousand dollars held by him, Company, he signed the note. He endorsed it and, as the consideration for a contract must have in the same way, but also endorsed it as an indi- some value and reality, the assumption of a supvidual. It cannot be pretended that the contract, posed danger or liability which has no foundation founded in what the jury finds by its verdict to in law or fact is not a valuable or sufficient conbe false representations and therefore fraudulent, sideration, and will not, thereiore, support a conwas made by Eccles in his representative capacity tract based upon it: Cabot v. Haskins, 3 Pick. 83. and that, when as an individual he came to en- Under all the facts, as shown in this case, and dorse the note, he did not rely upon the same upon a careful review of the entire testimony, to representations which led to the making of the which we have given full consideration, we are of note; the facts to which these representations the opinion that no error was committed by the Court, either in the admission of the testimony, of land in question, and was in possession thereof, the answer to the point of the appellant, or in the from that time to the date of trial. On the 4th general charge. The assignments of error are, of March, A. D. 1889, David Baker and wife extherefore, all overruled and the judgment is affirmed. May, '96, 30. Marks v. Baker. J. D. B. Jr. ecuted and delivered to J. R. Wright a deed in fee simple for 49 acres of land in Armstrong county, which deed contained the following clause, "Whereas, the said party of the second part agrees that the parties of the first part shall live on the said tract of land the remaining part of May 12, 1896. their lives, the same to be controlled by the party of the second part." After the making of this deed, to wit, April 28, 1893, John Marks obtained Superior Court-Appeals to-Act of June 24, a judgment against David Baker, without a waiver 1895, sec. 8-Requisites of appeal-Ejectment of inquisition, issued a fi. fa. thereon and held -Evidence necessary to sustain-Act of January an inquisition upon the land in dispute. Said 24, 1849, construed-Evidence as to outstand- inquisition was without notice to the defendant, ing title not admissible. and was not approved by the Court. A vend. ex. was issued without the direction of the Court, The Act of June 24, 1895, explicitly defines and prescribes what shall be done to make the appeal to the Su- and without notice to the life tenant, as required perior Court complete. Until these statutory require- by the Act of 24th January, 1849, and the interest ments are fully complied with the proceeding is imper- of David Baker therein sold to John Marks. On fect and inchoate. Where an appellant has not given bail for costs as required by the statute, on an appeal from the Orphans' Court or Common Pleas, he is not entitled to be heard in the Superior Court, and the appeal will be quashed. In ejectment by a sheriff's vendee against the defend. ant in the original action it is sufficient, if the plaintiff shows the defendant in possession, when the writ was issued and served as well as at the time of levy and sale, and also establishes his own title as vendee at the sheriff's sale. the 25th of April, 1894, John Marks brought his action of ejectment to recover this land. Under objection by the defendant, the Court admitted in evidence, on behalf of the plaintiff, the deed dated January 27, 1868, under which David Baker took title. (First assignment of error). The defendant offered in evidence the deed of Daniel Baker to J. R. Wright, dated March 4, 1889, containing the clause above set of the judgment, John Marks against David forth, for the purpose of showing that at the date Baker, the defendant had parted with his title to In an action of ejectment the defendant offered in evi- the land, retaining a life interest only, which was dence a deed from himself, of date prior to the entry of subject to execution only under the Act of Janjudgment, through which the plaintiff claimed, to one W., uary 24, 1849, the terms of which had not been containing the following clause: "Whereas the said complied with. Objected to. Objection susparty of the second part agrees that the parties of the first (Second assignment of error). The part shall live on said tract of land the remaining part of Evidence of defendant's title is superfluous, but if admitted cannot injure the defendant. It is not, therefore, reversible error. tained. their life, the same to be controlled by the party of the Court instructed the jury to find a verdict for the second part," claiming that the sale of his interest in the plaintiff. (Third assignment of error.) Whereland was not valid, because he had not received the notice required by the Act of January 24, 1849. The Court upon the defendant took this appeal, assigning for error, the admission and rejection of evidence Held, that the Act of 1849, only applied to life estates as above, and the action of the Court in directing "yielding rents, issues and profits,' " and subject to a verdict for the plaintiff. sequestration: refused to admit the deed in evidence: Held, therefore, that the only effect of admitting the deed in evidence, would be to set up an outstanding title in one not a party to the record. Hele, further, that the deed was rightly ruled out. Before the Superior Court, the plaintiff moved to quash the appeal, because, first, the appellant had not filed a bond in the Court below, as required by the Act of Assembly June 24, 1895, creating the Superior Court; and second, because the cerAppeal of David Baker defendant, from the tificate of appeal shows that no bail for the payjudgment of the Common Pleas of Armstrong ment of costs was entered by the appellant as reCounty, in an action of ejectment, brought by quired by said Act, to perfect the appeal. John Marks against David Baker, to recover possession of a certain piece of land in Kittanning township, Armstrong county. On the trial, before RAYBURN, P. J., the following facts appeared: On January 27, 1868, David Baker, the defendant, acquired title to the tract W. D. Patton, for appellant. The deed offered in evidence by the appellee, showed no title out of the Commonwealth, or in the grantor. Schrack v. Zubler, 34 Pa. 38. Bonaffon v. Peters, 25 WEEKLY NOTES, 537. The deed offered in evidence by the appellant or decree may be entered against the appellant, showed only a life interest in the defendant, either by the Superior Court or the Supreme which can only be sold on a writ of venditioni Court." exponas, after ten days' notice, and by leave of Court. Datesman's Appeals, 24 WEEKLY NOTES, 353. Then follows this provision, as to appeals wherein the appellant does not see fit to go further than to secure the payment of costs: "An appeal from the Common Pleas or Orphans' Court may also be taken without the entry of bail, J. H. McCain, (with him Buffington and Christy) except for costs, as above provided, if the party for appellee. appealing or his agent or attorney, files with the The manner of perfecting appeals to the Super- prothonotary or clerk of the Orphans' Court an ior Court is directed by the eighth section of the affidavit stating his desire to appeal, and that he Act of June 24, 1895; unless its terms are com- does not appeal for the purpose of delay, but beplied with, the appellant has no standing in Court. cause he firmly believes that he has suffered inThere is no merit in the first assignment of er- justice by the judgment, order or decree fro ror. It would have been sufficient for the plain- which he desires to appeal. The filing of the aftiff to have put in evidence the sheriff's deed to fidavit and the entry of bail for costs perfects such himself, and the proceedings under which it was an appeal, but such an appeal shall only be a made, together with the evidence that the execu- supersedeas if the Superior Court, or one of the tion debtor was in possession of the land in dis- Judges thereof, shall specially so order." pute at the time of the sheriff's levy and sale, as well as when the action of ejectment was brought. Birbeck v. Kelly, 19 WEEKLY NOTES, 422. Yost v. Brown, 126 Pa. 92. Lessee of Culbertson v. Martin, 2 Yeates, 443. If J. R. Wright had any rights in the premises he should have asked leave to intervene. McClay v. Benedict, 1 Rawle, 424. The Act of January 24, 1849, applies only to life estates yielding “rents and profits." The provisions of the Act are not enforced where no good result is accomplished thereby. Gordon v. Ingraham, 32 Pa. 214. The Act, it will be seen, explicitly defines and prescribes what shall be done to make the appeal complete. It follows, necessarily, that until the statutory requirements are fully complied with, the proceeding is imperfect and inchoate. There is a marked difference between the language quoted and that of the Act of June 16, 1836, P. L. 762, regarding appeals to the Supreme Court. The latter Act merely provides that the writ of error shall not operate to stay execution, unless the required bail is given, thus leaving the common law otherwise unchanged. however, evidently contemplates that in order to The Superior Court Act, render the appeal effectual for any purpose, the costs at least, must be secured. We are clearly of the opinion that no appellant is entitled to be heard here on an appeal from the Orphans' Court or Common Pleas unless he has given bail for costs as required by the statute. We may add, that an examination of the record satisfies us that the appeal, even if regularly taken, is without merit. The appellee, who was the plaintiff in the Court below, having a judgment against Baker, the appellant, levied upon the lat ter's interest in a tract of land which had been in his, the defendant's, possession for thirty or forty years. After inquisition and condemnation a venditioni exponas was issued and the land sold, the plaintiff being the purchaser. At the trial the July 16, 1896. WICKHAM, J. The appellee in plaintiff offered in evidence certain conveyances, this case moves to quash the appeal on the with a view to show the defendant's title. The ground that no bail has been given by the appel- admission of these deeds in evidence is comlant to secure the payment of costs. Sec. 8 of the plained of in the first assignment of error. This Act of June 24, 1895, P. L. 212, creating the Su- evidence was entirely superfluous, and neither perior Court, provides that in order to perfect an helped the plaintiff nor harmed the defendant. appeal, and at the same time make it a superse- The plaintiff having shown the defendant in posdeas, bail must be given conditioned for the pay- session when the writ was issued and served, as ment of the costs, and also, "whatever judgment well as at the time of the levy and sale, and hav ing also established his title as vendee at the sher- April, '96, 50. April 8, 1896. Sale of personal property-Title to-Delivery Possession. iff's sale, might well have rested; he was entitled Pittsburgh Glass Company v. Electrical to step into the shoes of the defendant, and to Supply and Construction Company. take from the latter his possession and possessory rights: Young v. Algeo, 3 W. 223; Drake v. Brown, 68 Pa. 223; Birkbeck v. Kelly, 19 WEEKLY NOTES, 422, (not reported in the regular reports); Gill v. Weston, 110 Pa. 305. The admission of the deeds could not, therefore, under any circumstances, have amounted to reversible error, but we are satisfied that they were competent evidence, reinforced, as they were, by testimony as to possession and pedigree. When goods are sold, but the vendee permits them to remain in the custody of the vendor after the time mutually agreed for their delivery, and they are accidentally destroyed, the vendee is liable to the vendor for their value as contracted for. The setting aside of goods taken out of a large quantity by the vendee constitutes a delivery. Appeal of H. M. Doubleday, Walter S. Childs, Walter H. Stone and William D. Card, partners, doing business under the name of the Electrical Supply and Construction Company, from the judgment of the Common Pleas No. 2, of Allegheny County, in an action of assumpsit, wherein the Pittsburgh Glass Company was plaintiff, and the appellants, together with the North American Construction Company, against which the suit was discontinued before the trial, were defe..dants. The facts of the case are fully set forth in the opinion of the Superior Court, infra. On the trial, the Court (MAGEE, J.) charged the Nor was there error in rejecting the deed of Baker and wife to J. R. Wright, offered in evidence by the defendant. The clause in this conveyance relied on by the appellant to sustain his theory that he had retained a life estate in the land in suit, and that therefore the sheriff's sale was void, for non-compliance with the Act of 24th January, 1849, P. L. 677, reads as follows: "Whereas the said party of the second part agrees that the parties of the first part shall live on said tract of land the remaining part of their life, the same to be controlled by the party of the second part." The Act of 1849, which requires that the venditioni exponas shall only issue by special direction of the Court, and after ten days notice to the defendant, applies,by its terms only to a life estate, “yielding rents, issues and profits," such as can be subjected to sequestration and not to a nondescript interest like the one under consideration, which is purely personal to the Bakers, not transferable; indefinite save as to time and otherwise lacking in essentials of a true life estate. The case was governed, therefore, by the general rule, which prevents the defendant, who was in possession at the time of levy and sale, from setting up an outstanding A change of location is not in all cases necestitle against the purchaser at the sheriff's sale. This well-known rule hardly needs the citation sary to constitute a valid delivery of a chattel even as against creditors of the vendor, due reof authorities in its support. Among the cases gard must be had to the property, the nature of where it has been either applied or fully recog- the transaction, the position of the parties, and nized are the following: Young v. Algeo, supra; the intended use of the property. Snavely v. Wagner, 3 Pa. 275; Wetherill v. Cur ry, 2 Phila. 98; Yost v. Brown, 126 Pa. 92. Appeal quashed. S. H. T. jury, inter alia, as follows: "I say, under the agreement that they have given here, I see no reason why judgment should not be rendered against the defendan's for the amount of the order." Verdict for plaintiff and judgment thereon. The defendant took this appeal, and assigned as error, inter alia, the part of the charge above quoted. William M. Galbraith, for appellant. Cessna v. Nimick, 113 Pa. 70. Ayers v. McCandless, 147 Id. 49. And as between vendor and vendee, possession of title depends upon the intention of the parties to be derived from the contract and its circumstances. Commonwealth v. Hess, 148 Pa. 98. Under the plaintiff's contract the goods were to be delivered, as requested by the purchaser, within sixty days of the date of contract, November 21, 1891. The purchaser had, therefore, until February 21, 1892, to direct deliveries. On that the Pittsburgh Glass Company, the appellee here. date the law imports delivery and not before that. This order attached to the statement of the plainTherefore the date of delivery was after Decem- tiff below, is not printed in the paper book of ber 31, 1891, and the individual defendants ex- either appellant or appellee. It is essential, howpressly assumed the payment of the purchase ever, to an understanding of the case, and would money by the contract aforesaid. seem to be a controlling element in fixing the Defendants attempted to escape their covenant rights and liabilities of the parties respectively. by showing that plaintiff had, prior to December It directs as follows: "Please ship by freight to 31, 1891, packed and set aside these goods from us at Pittsburgh, Pa., (then follows an enumeraits other stock. This argument entirelv ignores tion of the articles to be shipped); all to be dethe provision of the contract giving the urchas- livered in sixty days: shipments made as called er until February 21, 1892, to call for deliver". for." An invoice of the goods specified in the Had the goods sued for been burned prior to order was made on the same day, and it would February 21, 1892, it is very evident under the seem from the evidence as if the goods had been terms of the contract of sale that the loss would packed and set apart for delivery. Several small have fallen on the plaintiff, no difference how se- shipments were made as ordered, both prior and gregated from the balance of the stock, because subsequent to the 31st of December 1891. they were not delivered. In contemplation of Suit was brought originally against the North law, the delivery was on February 21, 1892, and American Construction Company, and the appelunder the terms of the contract, are to be paid lants, who, as partners, were doing business unfor b the individual defendants. der the name of he Electrical Supply and Construction Company. No appearance was entered July 16, 1896. BEAVER, J. Prior to April 15, for and no plea filed by the North American Con1892, the North American Construction Compa- struction Company, and it would seem that issue ny, a corporation of Pennsylvania, was engaged was joined and tried only between the Pittsburgh in the manufacture and sale of electrical supplies Glass Company, plaintiff, and H. M. Doubleday, in the city of Pittsburgh. It also undertook con- Walter B. Childs, Walter H. Stone and William tracts for electrical construction in the said city D, Card, partners, doing business under the name and within a territory mbraced within a radius of the Electrical Supply and Construction Comof one hundred miles therefrom. The latter bus- pany, defendants. After verdict and upon the iness for some reason (stated to be for conveni- argument of a motion for a new trial, the record ence) was conducted in the name of the Electri- was amended by leave of Court, by striking out cal Supply and Construction Company. On the as defendant the name of the North American date above mentioned the corporation, by an Construction Company, and discontinued the suit agreement in writing, sold to the appellants all as to it, so that we have here as appellants only that certain branch of their business conducted the individual partners aforementioned, trading under the name and style of the Electrical Sup- as the Electrical Supply and Construction Comply and Construction Company, including all the pany. stock of material or supplies used or intended for The appellants do not deny the contract as use in said business, situate upon he premises, made by H. M. Doubleday, one of their number, 947 Liberty street, Pittsburgh, or the store room then manager for the Electrical Supply and Coacross the alley in the rear thereof, or elsewhere. struction Company, then a branch of the North By the terms of this agreement, the corporation American Construction Company, as made in undertook to "pay or cause to be paid any and and by the order of November 21, 1891. It is not all claims or demands for stock or material denied that the plaintiff below complied with the bought and delivered on or prior to December term of the said oruer by packing and setting 31, 1891, in and about said business or in transit aside for shipment as called for, all of the supplies on said day." By the same agreement the appel- contained in the said order. They made no oblants undertook to "pay or cause to be paid any jection below and raise none here, as to their and all claims or demands now unpaid for stock liability to the plaintiff under the agreement with or material bought or delivered since December the North American Construction Company of 31, 1891." On the 21st of November, 1891, H. M. April 15, 1892, if they are on other grounds liable Doubleday, manager for the Electrical Supply to acount to the plaintiff for the balance of the and Construction Company, which was in reality goods not actually shipped, which were destroyed the North American Construction Company, gave by fire April 9, 1892. The evidence shows that an order for certain globes and other glassware goods to the amount of $8.57 were shipped prior used in connection with electric lighting, to A. R. to December 31, 1891, on the orders of the North Fleisman, who seems to have been the agent of American Construction Company, and that sub |