sum, which was paid to her as interest out of the round sum received. No complaint is made that it was not actually paid, or that the amount is too large; indeed it appears to have been paid with the appellants' consent, to the widow, who at once divided the amount among her children; each of the appellants received a share, and they now seek to surcharge the executor with the money which they now have in their own pockets. The decree is affirmed, and the appeal dis missed at the costs of the appellants. Opinion by CLARK, J. July, '83, 134. J. D. B., Jr. At the trial, before ALBRIGHT, P. J., the following facts appeared, as stated in the opinion of the Supreme Court : "The plaintiffs below, Erdman and Geisinger, are the owners of a water power grist-mill, located upon a small creek in Centre Valley, Lehigh County; Soloman Gehman, the defendant below, is also the owner of a mill upon the same stream, a short distance below that of the plaintiffs. The injury alleged, and for redress of which this action is brought, is, that the reservoir or mill dam of Gehman floods the water of the stream back upon the wheel of the plaintiff's mill, injuriously impeding its operation, detracting from its power, and diminishing its value. "It would appear that both mills, with some February 19, 1884. seventy-three acres of land connected therewith, were originally owned by John Romig, who, in the year 1818, sold and conveyed the entire Gehman v. Erdman. Easement-Prescription—Waters and water-property to Christian and Peter Young; they, courses-. -Dams-Charge of Court-Practice. Where an easement is granted, to be exercised within certain limits, and the grantor openly exercises a privilege in excess of the limit continuously and without interruption for twenty-one years under claim of right, the law may presume a second grant superadded to the first, covering the larger right. A. was the grantor of a right to maintain a dam which would raise the water in a certain stream four inches above a designated rock. In 1843 he constructed a dam which was maintained at the same height continuously until 1880 when suit was brought to recover damages for backing up the water. The Court charged the jury "In considering the question as to whether the defendant acquired a right by prescription, you will inquire whether at any time since 1843 there has been twenty-one years at a stretch, that the owners of the mill swelled the water up higher than what is shown by the four inches above If you come to consider that part of the case you will inquire: Where is the testimony of the witnesses to show that for twenty-one years, at any time since 1843, there was a use of this water so as to swell it back over the four inches? If you do not find such evidence you will say that under no consideration is the title by prescription established:" the stone Held, that this was error. The depth of water in such a basin is necessarily inconstant and variable If the defendant, or those under whom he claims for a period of twenty-one years before suit brought, under a claim of right, openly, continuously, and uninterruptedly maintained his dam of the same height, whilst the owner of the lands farther up the stream was under no disability to resist the use, the law would presume a grant of the right to maintain it. Where the testimony is voluminous and the jury would naturally rely upon and be largely influenced by the im pressions received from the rehearsal of it by the Court, it is important that the résumé shall be as full on one side as the other, so that the jury may not be misled. Error to the Common Pleas of Lehigh County. Case, by Enos Erdman and Jacob Geisinger, against Solomon Gehman, to recover damages for backing up the waters of a certain stream. in the same year, made an amicable partition of the property, by the terms of which Peter Young held, in severalty, the upper mill, with forty-two acres of the land, and Christian Young, the residue of the tract with the lower mill and the water course. "In the year 1843, whilst John Burger held the title and possession of that part of the premises allotted to Peter Young, and John Christian Behringer of the part allotted to Young, the dam at Behringer's mill destroyed in a freshet; it was rebuilt however in the same year, and the structure now upon the ground, is the dam which was built in 1843. was "The plaintiff contended, and introduced evidence to show, that before the dam was rebuilt, Burger and Behringer agreed to be governed in their use of the water, by the same agreements which had existed, in parol, between their predecessors in title, Peter and Christian Young; and for the ascertainment of the terms thereof, Peter and Christian Young, at their request, formulated a writing, which declared the particular terms and conditions of the parol agreement, by which they had been regulated in the use of the stream, during the period of their ownership. By this writing it is declared, that in the year 1818, it was agreed, that Christian Young, his heirs and assigns, should have a full and uninterrupted right and privilege to raise the water in the said stream, by a dam of four inches over and above a certain rock lying across the tail race or lower race on the land of Peter Young; the said rock is a sandstone, the upper surface resembles a roof of a house; that is to say, when both mills are stopped it shall not exceed four inches.' This declaration was formally made and reduced to writing, by the Youngs, in the year 1843, it was under oath, was duly acknowledged and recorded in the office for recording of deeds, The to the first, covering the larger right. in Lehigh County; the dam was rebuilt in the the law may presume a second grant superadded same year. The plaintiff's contention was that the defendant's rights were limited and defined, by the agreement of Burger and Behringer, to the privileges exercised and enjoyed by Christian Young during his occupancy of the premises, and they called witnesses to identify the sandstone rock, which they alleged had been thus established as the water-mark, to show that the water was at times in fact raised to a depth of ten inches or more over it, and to show the injury resulting therefrom in the operation of their mill. In submitting the evidence to the jury upon this question, the Court instructed the jury as follows: "In considering the question as to whether the defendant, Gehman, acquired a right by prescription, you will inquire whether at any time "On the part of the defendant, the agreement since 1843, there has been twenty-one years, at between Burger and Behringer was not specifi-a stretch, that the owners of the Gehman mill cally denied, but he introduced evidence tending swelled the water up higher than what is shown to show, that the sandstone rock, referred to by by the four inches above the stone." "That the plaintiff's witnesses, was not the rock to again you will consider and then if you come to which the declaration applied, that the true water-consider that part of the case you will inquire: mark was another rock higher in the stream. This of course was a matter for the jury, and the facts, as alleged on either side, are only here referred to for the better understanding of the question now to be considered. Where is the testimony of the witnesses, to show that for twenty-one years, at any time since 1843, there was a use of this water, so as to swell it back over the four inches. If you do not find such evidence, you will say that under no con "The defendant contended, and called wit-sideration is the title by prescription established." nesses to show, that the dam was built in the year 1843, and that since that time, and for twentyone years prior to the bringing of this suit, it had been maintained in precisely the same form, and to the same and no greater height; that the structure was identically the same, in all respects, at the time when the suit was brought, as it had been at any time during the twenty-one years prior to that time, and that this long-continued enjoyment of the easement or water privilege, under the facts and circumstances of the case, raised a legal presumption of a corresponding grant, and of his right to hold it." Verdict for the plaintiff for six cents damages, and judgment thereon. Defendant then took this writ. The assignments of error are sufficiently set forth in the opinion of the Supreme Court. R. E. Wright & Son, for plaintiff in error. John Rupp (C. J. Erdman with him), for defendant in error. In this we think there was error. If the defendant, or those under whom he claims for a period of twenty-one years before suit brought under a claim of right, openly, continuously, and uninterruptedly maintained his dam, the breast wall or structure of which was at all times during that period of the same height, whilst the owner and possessor of the lands upon which the reservoir and race were located was under no disability to resist the use, the law will presume a grant of the easement, the extent of which is to be measured, not by the actual or average depth of the water at any given point, but by the nature and extent of the obstruction itself. The depth of the water, even in such a basin, is necessarily inconstant and variable, but the height of the dam structure is fixed and certain, and readily ascertainable. The defendant's rights, under the agreement of 1843, are doubtless to be determined by the depth of the water on the rock, as that is the provision of his contract, but his right as to the April 1, 1884. THE COURT. [After stating further easement, if any existed, was to obstruct the facts as above.] Even if the jury should find the current and raise the water, according to the the lower rock to be the true water-mark, accord- height of the structure which he had erected in ing to the agreement of Peter and Christian the stream for that purpose. The extent of the Young, and that the defendant had the right right must necessarily be thus defined; the under the agreement, only to raise the water changing conditions of the stream, from rain four inches above that rock, he might upon a and drought, breaking the continuity of the use, proper showing establish a legal presumption of would render the acquisition of an easement of a further grant. Where an easement is granted, this character, by legal presumption of previous to be exercised within certain limits, and the grant, impossible. We express no opinion as to grantee openly exercises a privilege in excess the force or weight of the evidence on this point; of the limit, continuously and without interrup- that is a matter for the jury; it is our duty to tion for twenty-one years, under claim of right, | determine, whether that question was fairly pre sented for their consideration. The tenth assign-1 ment of error is, therefore, sustained. Appeal of Joseph Schnurman and Clementina Schnurman from a decree of the Orphans' Court of Lehigh County. The case arose upon petition, answer, and evidence. On the argument before ALBRIGHT, P. J., the following facts appeared : The first assignment is in substance that the charge of the Court tended to mislead the jury, and was not a fair presentation of the case as a whole; that it omitted facts material to the case of the plaintiff in error, and gave undue prominence to the evidence of the defendants in error. Henry Schnurman, late of the city of AllenThe second, third, fourth, fifth, sixth, and town, died on the 8th day of March, 1875, seventh assignments illustrate, in detail, the mat-testate; his will was admitted to probate on ter generally set forth in the first, and the whole of these several assignments may be considered together. We have with some care read the testimony of all the witnesses examined in the cause, and are of opinion that the charge of the learned Court is perhaps open to the criticism contained in these assignments. The testimony was voluminous, and as the plaintiff in error complains, the jury would doubtless rely upon, and be largely influenced by the impressions received from the rehearsal of it by the Court; it was important, therefore, that the résumé should be as full on the one side as the other, that the jury might not be misled. This error, of course, resulted either from mere inadvertence, or from a desire to shorten a charge which was growing to an unusual length. Upon this ground alone, we would not perhaps have been inclined to reverse this judgment, but as the cause must go back for retrial, we have thus referred to the subject of these assignments, in order that the same error may be avoided. March 25, 1875. He left surviving him a widow and issue, one son, Henry Schnurman, and four daughters, Rachel, the wife of B. Murtaugh, Araminda, wife of Joseph Schnurman, Bella, wife of A. S. Grim, and Anna M., wife of S. A. Feldman. By said will it was provided that the widow should have during her lifetime the testator's late residence and all the household goods; that a brother and sister of testator, resident in Germany, should have an annuity, the former of $240, the latter of $60; that each of testator's children should be paid $4000 within eighteen months after his decease; that $2000 should be paid to a grandson, Robert Seider; that the personal estate not safely invested should be so invested and the annual interest and the rents of the real estate, after payment of said annuities, be paid to said widow during her natural life; that five years after testator's decease $4000 should be invested in a dwelling house for each of the children; that upon the decease of the widow (if that occurred after the expiration of said five years after testator's decease) the remainder of the estate should be divided into as many shares as testator had children, and the share of each child should remain invested and the annual income be paid to such child for life, and after the death of such child the principal sum paid to his or her children; that the executors might in their discretion sell real estate and hold and invest the proceeds to and for the uses February 18, 1884. specified; that the executors should have two Schnurman's Appeal. Principal and surety-Trusts and trusteesExecutors-Act of May 10, 1881. ments. There is no merit in the remaining assign July, '83, 140. J. D. B., Jr. The Act of May 10, 1881 (P. L. 14), authorizing the Courts of Common Pleas and Orphans' Courts to require trustees for life, on application of sureties upon their official bonds, to file an account, and further empowering said Courts to discharge such sureties when they "deem it reasonable and proper," and to require the trustee to file a bond with new sureties, or in default thereof to discharge him from his office, applies in cases where a testamentary trust is given to an executor virtute officii as well as when given him nominatim. When in such case the number of sureties was originally thirty-one, the fact that nine had become insolvent was ground sufficient to warrant the Court in granting the petition of twenty-one of the remainder to be discharged from further liability. years' time to settle the estate under the will. Of said will the widow, Clementina, Charles L. Newhard, and Joseph Schnurman (the latter a son-in-law of testator), were appointed executrix and executors, the testator requiring them to enter into bonds in such sum as the Orphans' Court of Lehigh County should direct, conditioned for the faithful performance of duties. The two former declined to act. Joseph Schnurman alone qualified, and he alone took upon himself the discharge of the duties enjoined by the will. All the children of the testator aforesaid are living and are of full age; said daughters are married, and each one of said five children has children living. Said Joseph Schnurman, executor, on April 21, 1875, presented his petition to the Orphans' Court, representing that the estate of his testator further, that upon the giving and approval of such new bond the petitioners should be discharged from all liability upon the old bond, whereon they were sureties; Provided, however, that the petitioners should remain liable for all breaches of the condition of the old bond, committed before the approval of the new bond. It was further decreed that if the said respondent should fail to give such new bond within the time specified, he should be removed from the office of executor. was estimated to be of the value of about $107,- | bond to be in place of, and to contain the like ooo, exclusive of advancements, and praying the condition with, the old bond executed by said Court to fix the amount of security to be given respondent and the petitioners and others; under said will; thereupon the Court fixed said security at the sum of $215,000. A bond was given by the said acting executor with thirty-one sureties, in said sum of $215,000, conditioned that said Joseph Schnurman, as executor of the last will of Henry Schnurman, should well and truly administer said estate, and faithfully carry out and execute all the devises and bequests and directions of said will, and in all respects well and truly and faithfully carry out and perform all the duties of his appointment, which bond was approved by said Court on April 26, 1875, and by its direction was filed in the office of the Register of Wills. On January 27, 1882, a petition was presented to the Court by Charles Detweiler and others, setting forth that said bond had been given and that they were sureties upon the same; also, inter alia, the following facts: : The respondents thereupon took this appeal, assigning for error the action of the Court in not dismissing the petition, and in entering the decree. R. E. Wright, Jr.(of R. E. Wright & Sons), for appellants. This executor is not a trustee within the provisions of the Act of 1881. That Act is a trans 1. That by the terms of the will no final set- script of the Act of 1865, with the single exceptlement of the estate could be made in the life- tion that the power given by the Act of 1865 time of the widow and children of said testator. to the Common Pleas is extended by the Act of 2. That by said will, a trust was created to con- did not extend the objects of the Act of 1865, nor 1881 to the Orphans' Court. The Act of 1881 tinue during the lifetime of said widow and children, and that said Joseph Schnurman was enlarge the class of trustees to which it was apby said will appointed trustee of said estate plicable, but simply gave the Orphans' Court during the lifetime of said widow and children. jurisdiction concurrently with the Common Pleas 3. That since the execution of said bond as to the kind of trustees mentioned in the Act several persons who signed as co-sureties with of 1865. But the only kind of testamentary the petitioners had died, and a number of them had become insolvent. The prayer was for a citation requiring said Joseph Schnurman to file an account of his management of said trust, and to show cause why the petitioners should not be discharged from further liability as sureties on said bond. Schnurman filed an answer denying, inter alia, that the Court had jurisdiction to grant the relief prayed for, or that he was a trustee within the meaning of any of the Acts of Assembly upon which the petition was apparently based. The answer admitted that it was true that several sureties had died, and that others had become insolvent, but insisted that the remaining sureties were amply responsible, and that so much of the estate had been paid to creditors and legatees that the responsibility of the others had been diminished rather than increased. Clementina Schnurman, the widow of defendant's testator, afterward joined in the answer. The Court, after argument, entered a decree directing that the respondent Schnurman, as executor of the last will and testament of Henry Schnurman, deceased, should, within thirty days from the date of the decree, give a new bond, with sureties to be approved by the Court, in the sum of one hundred thousand dollars; the said trustees to whom the Act of 1865 could possibly apply are trustees appointed nominatim, as they are the only testamentary trustees over whom the Common Pleas can have jurisdiction. Here the executor is appointed trustee virtute offici; he is, therefore, not within the provi Ision of the Act of 1881. Wapples's Appeal, 24 Smith, 100. Even if the Act of 1881 were applicable, still no sufficient legal reason has been shown for granting this decree. The only grounds upon which the statute authorizes the granting of such a decree are those which appear from "facts connected with the execution and position of the trust funds;" e. g., that the trustee is insolvent, or likely to become so; that he is wasting the estate, etc. Here the only reason given by the Court for making the decree is, that so many of the sureties have died or become insolvent, that the ratio of liability to those remaining has increased, though the fact that half of the estate has been paid out, has prevented any increase in their aggregate liability. We submit that this does not constitute a reason why these sureties should be discharged and a new bond required. John Rupp (with whom was J. P. Deshler), | viving sureties have become insolvent, and the for the appellees. The Act of 1881 is an amendment of the Act of March 27, 1865 (Purdon's Digest, p. 1424, pl. 61, 62 and 63), the only change made by the Act of 1881 being the insertion after the words, "Court of Common Pleas," the words, "or the Orphans' Courts"-thus conferring, as we contend, upon the Orphans' Court the same power to relieve sureties in cases where that Court has jurisdiction over the trustee or trustees as the Common Pleas before had in cases where that Court has jurisdiction over the trustee or trustees. Now, the Act of Assembly of June 15, 1836, section 15 (Purdon's Digest, p. 1417, pl. 15), confers jurisdiction upon the Court of Common Pleas over all trusts created by "deed, will, or otherwise," except "trusts created by will and vested in executors or administrators, either by the words of the will, or by the provisions or operation of law, whenever such executors or administrators are by existing laws amenable to the Orphans' Court." estates of two of the deceased sureties are insolvent. It surely presents a case which the Court had a right to hold "reasonable and proper ground" for relieving the other sureties from further liability. Decree affirmed, and appeal dismissed at the costs of the appellants. PER CURIAM. Quarter Sessions. D. H. March 28, 1884. Commonwealth ex rel. Henry C. Gordon and Hugh S. Kerr v. The Keeper of the County Prison. Criminal law-False pretences-Spiritual mediums- Obtaining money upon a false representation that the party obtaining it can produce the spirits of deceased persons, etc., is punishable under the statute against false pre tences. Hearing on habeas corpus. It will be seen that the Court of Common Pleas, under the Act of 1865, had power to relieve the sureties of trustees in all cases of trusts, except where the trust came within the proviso to the Act of June 14, 1836; that is, testamentary trusts, where the executor or administrator became a trustee virtute officii. And if the Act The relators were charged with obtaining of 1881 does not apply to this latter class of money by false pretences. They claimed that trustees, then it was entirely unnecessary, for in they were spiritual mediums, and held "seances,' all other cases there was already a full and ade-charging an admission fee of $1, and professed quate remedy under the Act of 1865. The Act does not specify any special causes for which the sureties may be discharged, but provides merely that they may be discharged in all cases where the Court, under all the facts, deem it reasonable and proper. The Act was not passed for the benefit of the trust estate, but to protect the sureties of the trustees. to be able to call up the spirits of the deceased relations of those who attended the seances. Notwithstanding their caution to allow no one to enter except those who were believers, and therefore friendly to them, yet a newspaper reporter and his confederate gained admission, and they in the midst of the "materialization," tripped up the medium, and tearing off his clothes, discovered the person of the relator Gordon. Around his body were wrapped silken robes, night gowns, chemises, knit shawls, laces, mosquito netting, wigs, moustaches, eyebrows, etc., used by him in the various personations he assumed. A lady, who was in the audience, said she was interested in spiritualism, and desiring to investigate it, she paid for her right to be present. She requested that the spirit of her deceased aunt should be called out, and when it came she thought she recognized it. She called it by name and asked it if it was the person she supposed, and the figure bowed its head. Even on the witness stand she was not positive that it was not the spirit of her aunt, although she witnessed the exposé, and heard the developments in Court. March 3, 1884. THE COURT. The present case comes within the Act of 10th May, 1881 (P. L. 14). One of its purposes is to give a remedy for the protection of sureties of trustees of a trust created for life. It matters not whether the testamentary trust be given to the executor nominatim or virtute officii. In either case it is a trust to which the Act applies. It is true, in the former case, the Common Pleas and the Orphans' Court have concurrent jurisdiction, while in the latter case the Orphans' Court has exclusive jurisdiction (Brown's Appeal, 2 Jones, 333; Wapples's Appeal, 24 P. F. S. 100; Erie Dime Savings and Loan Company v. Vincent, Executor, 14 WEEKLY NOTES, 320). The Orphans' Court had undoubted jurisdiction in Maxwell Stevenson and Bertram Hughes, for this case. It was shown that seven of the sur-the relators, contended that a case of false pre |