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said that the books are obscure in the def-dence on both sides in this case shows inition of riots, and that he took it that it that the defendants, or some of them, in is not necessary to say they assembled for the latter part of July last or beginning of that purpose, but there must be an un- the following August, went to the cabin lawful assembly; and as to what act will of the prosecutor in this county, and, with make a riot or trespass, such an act as ratchet boxes, bells, horn and discordant will make a trespass will make a riot; as noises, engaged in what they call a sereif a number of men assemble with arms, nade. It does not appear that they did in terrorem populi, though no act is done; any injury to the cabin, then forming the so if three come out of an alehouse and residence of the prosecutor, and therego armed.

(Tomlin's Law Dictionary, tore we think there should be no convicsee Riot.) “Wherever there is a pre-de- tion under the third count of the intermined purpose of acting with violence dictment. But we think the evidence is and tumult, the conduct of the parties sufficient, if believed by the jury, to may be deemed riotous. Thus, although constitute the offence charged in the first the audience in a public theatre have a and second counts of the indictment. right to express the feelings excited at In order to operate the boxes produced the moment by the performance, and in evidence, the bells and the horns that therefore to applaud or hiss any piece produced the noises heard a mile away which is represented, or any person who from the scene of action, such violence exhibits on the stage, yet where a number was necessarily employed as was suffiof persons, having come to a theatre with cient to constitute an element in the crime a pre-determined purpose of interrupting of riot ; and the acts so performed we the performance, so as to render the actors think must now be held unlawful. entirely inaudible, though without offer- It is the duty of the Courts so to ading any injury to the house, it was held minister the laws as to preserve the pubthat they were guilty of a riot." Clifford lic peace. And however serenades may v. Brandon, 2 Camp. 268. “It is a riot if have heretofore been regarded in the coma number of people assemble in a town, munity, we think it is the duty of the in the dead of night, and, by noise or Courts to so declare to law to be, that otherwise, disturb peaceful citizens.”- that which is now calculated to disturb

'Penna. v. Criffs et al., Addison's Reports, the public peace is contrary to law. If 277. Time, place and circumstances are we are not mistaken, serenades of this not without influence in characterizing kind have been resisted in several inhuman action. The ringing of church stances by the parties serenaded to the exbells in the years that are gone was con

tent even of the use of fire arms, and it sidered, if not absolutely necessary, at least certainly depends very much upon the altogether lawful. But now in densely personal characteristics, good nature and populated places and when clocks and forbearance of the parties serenaded, that watches are found in every habitation, they are not forcibly resisted in every inthe same thing under certain circum- stance. Tempora mutantur et non matastances has been declared a nuisance and mur in illis, is the expression of a fact, restrained by injunction. Certain conduct which challanges recognition. That might be considered riotous in a church which is now calculated to disturb peacewhich would not be so in a bar-room ; on ful citizens and incite to active resistance the sabbath, which is not such on a secu- must be declared to be unlawful ; and lar day; and under our present civiliza-serenades of this kind are characterized tion which would not so have been con- by that sort of violence that constitutes sidered in ages past and gone. The evi- | the offence, if perpetrated by three or

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more, which is riotous in all its incidents. jury that the defendant could not be held All present at a riot are prima facie of

as a joint lessee, nor as a surety or guaran

or, and left it to them to say whether the the number of rioters. But owing to the

defendant had collected the rent from curiosity implanted in our nature, which Warner and had not paid it over, as tesattracts spectators to public demonstra- ' tified by the plaintiff. tions, the presumption of guilt may be re-i

A more careful examination of the aubutted by actual proof that the spectators 'thorities, which were not cited to us upon were not active participants in the scenes the trial, has satisfied us that in chargthey were witnessing. And if any of the ing as to the defendant's liability upon defendants in this case were merely spec

the written instrument we erred. The

case of Fidler v. Hershey, 9 Nor. 363, tators, who were not of the number who

seems to be in point. That was an action originally met for the purpose of effecting to recover rent. In the body of the lease this serenade, then, upon evidence that the name of Householder alone appeared, they did not actually assist in producing but Spangler and Fidler signed as securithe discordant sounds and annoying ties. The action was defended by Fidler noises, they should be acquitted. But if him the court said : "the evidence tend

alone, and upon writ of error taken by all assembled at the place of serenade had ed to show, and the jury found, that there previously met, and came there in com- a lease signed by Householder, pany, they might all be convicted. You Spangler and Fidler his sureties, and may find certain of the defendants guilty knowledge of that relation, they were

though Hershey” (the lessor) “had in manner and form as they stand indict- jointly liable to him.” The case of Klecked in the first and second counts of the

ner v. Klapp, 2 W. & S. 44, is still more indictment, and as to the rest of the de- to the point. It was an action to recover fendants not guilty, if you think such ver

rent. In the body of the lease Kleckner dict justified by the evidence. Now, fin

.

and Charles are named as lessor and les

see respectively. It was signed by them, ally, we say to you that so called cala- and also by Klapp, who added to his sigthumpian serenades, performed with in- nature the word “surety." The court, struments, creating hideous noises, are in holding that he was liable, said : "This riotous within the meaning of the law, is exactly the case of Croddock v. Armor, and we submit it to you under all the

in which such a marginal annexation to

the name of one of the parties was not evidence in this case, to say whether the allowed to change his character of promdefendants in this case or any of them are issor to that of guarantor." In the case guilty of such offence.

of Klapp v. Kleckner, 3 W. & S. 519, the instrument was held to be a joint and

several obligation. In the case of Croddock COMMON PLEAS.

v. Armor, 18 W. 258, the surety annexed to his signature to the note in suit the

words, "security for the fulfillment of the Luzurne County. !

above." The court said : “They are not Brown v. Peters.

technically words in a contract of guaranWhere a lease has the name of A. as lessee in the body of the paper, and is signed by A. and also by B. with the

tee, and the juxtaposition of the signawore "bail” added to his name, it is a joint undertaking ture, as well as the absence of apt words, by both.

to indicate a contingent responsibility, As between themselves they are principal and surety ; in favor of the lessor they are both principals.

shows that the parties intended to be Rule for a new trial.

jointly bound.” See, also, upon the quesOctober 29, 1883.

RICE, P. J.-- In the tion raised as to the statute of frauds, body of the lease, upon which this action Pain v. Stackhouse, 2 Wr. 302-306. These was brought, only the names of James S.

authorities clearly show that there was efBrown, as lessor, and Benjamin F. War- ror in our instructions upon this point ner, a lessee, appear, but it is signed and we are not satisfied that there was any sealed not only by them, but also by Owen mistake in our instructions as to the reA. Peters, in front of whose name ap

pairs made by the defendant. pears the word “bail.”

We charged the The rule is made absolute.

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C. P. of

VOL. IV.

NO 43

YORK LEGAL RECORD. properly ascertained in the duly appointed

way, the facts must be accepted as true, THURSDAY, DECEMBER 27, 1883.

It has long been the settled practice of

the court not to disturb the findings of SUPREME COURT.

an auditor or master which have been ap

proved by the court, especially when they Logue's Appeal.

are based on oral testimony, except in Where a purchaser of realty at sheriff's sale being un- cases of plain mistake, affirmatively shown able to pay the amount of ihe bid, borrows the annount from another, and the sheriff's deed is made to that other under an agreement that the said conveyance

or apparent on the face of the record. In shall stand as security for said lan with interest, such this case nothing of the kind appears in conveyance is in law a mortgage, aud equity will decree a re-conveyance to the borrower ou paymeụi of the loan. any form, and hence it follows that the

Appeal from the decree of the Court of several specifications of error relating to Common Pleas of Clarion county.

the master's conclusions of fact and the October 22, 1883. STERRETT, J. action of the court upon exceptions

In considering and weighing the evi- thereto, are not sustained. dence and in drawing his conclusions After an elaborate discussion of the therefrom, the learned master appears to testimony and reference to authorities have proceeded on substantially correct bearing thereon, the learned master says: principles, and an examination of the evi- “In the light of these authorities, and dence satisfies us that it was quite suf- upon full consideration of all the evificient, both in kind and degree, to war-dence, without further commenting on rant his conclusions of fact and justify the the weight, weakness or contradictions court below in sustaining them. As to therein, on either side, in our judgment it the averments of the bill which con- preponderates strongly in favor of plainstitute the equity of plaintiff's case, he tiff, and establishes to our satisfaction beintroduced testimony that was clear, dis- yond a reasonable doubt the complaint set tinct and positive. The testimony of Mr. up in this bill. We therefore find the Slattery, as well as that of the plaintiff facts stated in plaintiff's bills to be subhimself, was clearly of that character. stantially true and correct, and content In addition thereto, they were fully sus-myself by this reference thereto without tained by the corroborating evidence of extending this report by repeating them several wituesses, as to material allega- here." tions of the bill. If this testimony was The substance of the controlling facts believed, the sufficiency of the evidence, thus established is, that at a sheriff's sale, in a legal point of view, to convert a in August, 1879, of the respective interdeed, absolute on its face, into a mortgage, ests of Eli Logue and Reuben Logue in cannot be doubted. It was clear, precise a certain tract of land, the appellee was a and indubitable. It is true there was

It is true there was bidder and became the purchaser of said conflicting testimony as to all the essential interests for the aggregate sum of $6,110; features of the case, but the proper func- that shortly afterwards appellant agreed tions of a master, in such cases, is to con- to loan appellee the money with which to sider the testimony, pass upon the cred- pay his bid, and it was then agreed, by ulity of the witnesses, and thus determine and between them, that as security for the facts. If the existence of conflicting the loan the sheriff's deeds for the proptestimony, introduced perhaps by guilty erty so purchased by the appellee should parties for the very purpose of shielding be made directly to appellant, to be by themselves, were always sufficient to render the evidence, as a whole, doubtful or

him held, as a mortgage, until the money uncertain, few fraudulent transactions loaned with interest thereon was repaid, would be exposed or thwarted. When and accordingly the sheriff's deeds for

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the property were executed, acknowl. ing the land as security for its repayment. edged and delivered to appellant; that Appellant's subsequent repudiation of the soon thereafter appellant fraudulently re- agreement, under which the deeds were pudiated said agreement and claimed to made to him directly, and his attempt to hold the legal title to the land absolutely use the deeds for a purpose that was in his own right, free and clear of any in- never intended when he obtained them, is terest of appellee therein ; that, in Oc- a palpable fraud against which equity, tober, 1879, appellee tendered appellant under the facts and circumstances found the full amount of the loan and interest by the master, will undoubtedly afford thereon, which the latter refused to ac- relief. cept. The master also finds that since The decree of the court below declarthe filing of the bill appellant was reg. ing that the sheriff's deeds be taken and ularly put in possession of the land and held to be mortgages, given to appellant then held the same under the sheriff's to secure the payment of the $6,110 loan, deeds above mentioned.

made by him to appellee on August 1 3rd, The question then is, whether upon 1879, and enjoining appellant from con

, the facts thus established the appellee veying or encumbering the premises, etc., was entitled to a decree declaring the is correct as far as it goes, but it does not sheriff's deeds to be in fact mortgages, go quite far enough. It should also proand ordering appellant, upon payment of vide that upon repayment of the loan, or the money secured thereby, to convey the so much thereof as remains unpaid, with

, legal title to the land therein described to in a reasonable time, appellant shall conthe appellee. In some of its features the vey the land in fee to appellee, by deed transaction differs from the familiar case with covenant of special warranty against of an absolute conveyance of land by the all acts done or suffered by himself. This holder of the legal title, as security merely, decree may be enforced by attachments, , and so intended by the parties thereto ; or a master may be appointed by the but in principle it is the same. Equity

Equity court for the purpose of making the conregards the substance rather than the veyance.

It appears that since the deform of a transaction. By his purchase at cree was entered the case has been sent the sheriff's sales appellee acquired an in- to a master for the purpose of stating an ceptive title to the land in question, which account between the parties and ascertainby payment of purchase money and de- ing the balance due by appellee to appellivery of deeds would have ripened into lant. The sum to be paid by appellee to a complete legal title. He had such an entitle him to a conveyance of the land interest as would have been bound by the will thus be ascertained and the decree lien of a judgment entered between the can then be carried into effect by the date of sale and the acknowledgment and court below. delivery of the sheriff's deed. But, in

Decree affirmed and appeal dismissed stead of taking the deeds in his own name at the costs of appellant. and then mortgaging the land to secure the loan made by appellant, it was suggested by the latter that the deed should

Patterson's Appeal. be made directly to him as security for the Trustees-Discretion of-Commission of. loan. This was agreed to and the arrange

When a trustee expends, judiciously and for the perma

nent improvement of the trust estaie, a larger sum of ment was carried out.

The manifest pur

money thas was originally contemplated, under an order of court authorizing such improvement, he will not be

surcharged with the sum so expended. pose of this was not to vest the title abso- A trustee acting in good faith is entitled to a commission

on money borrowed and expended in the improvemeot lutely in appellant, but to enable appellee of the trust estate, even though his account is so kept as

to require testimony in explanation and a restatement to raise money to pay his bid by pledg

thereof by the court, but the costs incident to such restatement are chargeable to accountant.

Where a cestui que trust furnishes money to aid in pay; ment of improvements, in excess of the amount provided

expenditure, so far as they are concerned, for by order of court, he is estopped from denying the is without merit As the exceptant volright of the trustee to make such additional expenditures.

Appeal from the decree of the Or- untarily furnished of his own money phans' Court of Allegheny county.

twenty-five hundred dollars towards pay

ing this additional cost, he is estopped T.H. Baird Patterson, Esq., trustee, was

from denying the trustee right to expend authorized and empowered to borrow

that sum. The only cause of complaint, $64,000 for the improvement of certain

then, which he could possibly have is that real estate at corner of Penn avenue and Sixth street, Pittsburgh. The money was

the rents were appropriated to its pay

ment. The evidence shows that he was borrowed and so expended, but was insufficient to pay for the improvements. frequently consulted by the trustee in re

gard to the building, the different conOne of the parties interested in the estate

tracts, the changes made therein and the advanced a large sum of money to assist

improvements demanded by the tenants, in payment of the extra cost, and subse

and consented to the same. That he was quently filed exceptions to the trustee's

at the building almost daily, and knew account.

that it would cost more than originally The following extracts from the opin- contemplated, and made no objections. ion of OVER, J., contain a brief but com

Now, that the additional cost had been prehensive statement of the facts and of incurred, and he largely benefitted therethe law applicable to such cases.

by, he is certainly estopped from denying "It appears from the evidence in this

the right of the trustee to appropriate the case that the trustee, T. H. Baird Patter

rents to its payment. son, has expended in erecting the build

There is no doubt from the evidence ings on the trust property, and fitting them up for tenants, the sum of $71,008.74,

that the trustee gave the greatest care and in payment of taxes and insurance on

and attention to this building, and the the property, interest on the mortgage,

amount claimed by him for his services, and other incidental expenses, the sum of

five per centum on the amount expended $14,026.93, making a total expenditure of by him seems reasonable, and is therefore $85,035.67. It cannot be questioned that allowed him. $ this sum has been very judiciously ex- “The property upon which the buildpended, and that the result has been to ing was erected consists of four adjoining largely enhance the rental and permanent lots of ground, each of which was devisvalue of the property.

ed by the will of Joseph Patterson, de“It is objected, however, to allowing ceased, to one of his four children for life the trustee credit for all these expendi

with remainder over. tures, that he was limited by the decree

"The contracts for the construction of court appointing him, to an expendi- covered the whole of the building on this ture of not more than $64,000.

property as well as a building on a lease"The cost of the building in excess of hold adjoining, which the devisees for the $64,000 has been paid by the trustee, life were having erected under an artwenty-five hundred dollars of it with rangement with the trustee, Mr. Pattermoney furnished by the exceptant, and son. The cost of the building on each the balance out of the rents collected by lot was not equal, and to adjust it properly him.

The contingent interests are cer- it was necessary to estimate the amount tainly not injured by having a better of work done on each. As the contracts building erected, without additional en- were finished the trustee should have had cumbrance on them, than was originally the cost of the work apportioned, and contemplated. And the objection to this should have filed such apportionment

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