Volume 1 — Monaghan's Pennsylvania Reports

Appeal and Certiorari, No. 173, July T. 1887,. to review a decree of C. P. No. 4, Phila. Co., in equity, granting a special injunction, restraining the collection of taxes, at Dec. T.. 1886, No. 896.

Errors, Nos. 111, 112 and 113, Oct. T. 1888, to O. P. No. 1, Allegheny Co., to review judgments for the plaintiff on points reserved in three actions of' scire facias sur claims for municipal taxes, at March T. 1882, No. 1303; Dec. T. 1883, No. 717; and Dec. T. 1884, No. 253, D. T. D. These three cases were tried together. The defendant requested the court to charge the jury, “ That, under all the evidence, the plaintiff is not entitled to recover.” Refused.

Error, No. 200, Oct. T. 1888, to C. P. Indiana Co., to review an order staying an execution upon a judgment for want of a sufficient affidavit of defense on a scire facias sur judgment, at Sept. T. 1885, No. 55. The original judgment was entered March 13, 1883, on a bill single, for SI,000, dated the same day, payable five years after date, with confession of judgment, release of errors, without stay of execution and with waiver of inquisition and exemption.

Error, No. 69, July T. 1888, to C. P. Northumberland. Co., to review judgment of compulsory non-suit in an action on the case, at Sept. T. 1885, No. 297. Trunkey, J., absent. This action was brought by John S. McWilliams against Geo. deB.

Appeal, No. 76, July T. 1888, from C. P. Perry Co., to review decree granting injunction restraining school board from taking land of poor-house farm for site for a schoolhouse, at Jan. T. 1888, No. 27.

<p>Appeal, No. 346, Jan. T. 1888, to review decree of C. F. Northumberland Co., dismissing exceptions to report of auditor distributing balance in hands of assignee for benefit of creditors, at May T. 1884, No. 95. Trunkey, J., absent.</p> <p>The auditor, George Hill, Esq., reported the facts substantially as follows:</p> <p>On Feb. 14, 1884, Menges assigned his property, consisting of three lots of land, to A. W. Hower, Esq., for the benefit of creditors. The lands were appraised at $8,800. The debts, so far as known, aggregated some $8,000. The assignor negotiated a sale of lot No. 2 for $1,400, and authorized the assignee to make a deed, which was subsequently done, the assignee receiving $175, hand money, and the balance, $1,125, when the deed was delivered, April 1, 1874. The first sum was placed in his vault, the latter sum deposited in. bank to his own credit.</p> <p>The assignor advertised tract No. 1, appraised at $7,000, for sale on April 21, 1884. It was not sold, however, for the reason that, prior to the date fixed, the assignor and his father represented to the assignee that he, the assignor, could raise the money to pay off all the liens. On this account, the sale was deferred, and was never afterward necessary, as the assignor succeeded, by his own exertions, in paying all his creditors. The assignor remained in possession of lots Nos. 1 and 3, farming them, some of the debts-being paid out of the profits of the lands. The debts were all paid by the middle of May, 1886.</p> <p>Prior to the assignment, Hower had a claim of $50 against Menges for professional services. At the time of the assignment, the assignor handed the assignee a note of one Treon for $26 for collection. The note was collectéd Feb. 14, 1884, and the money retained.</p> <p>On Feb. 28, 1887, the assignee filed an account, charging himself with $8,800, the amount of the appraisement, and claiming credit for compensation at three per cent, on that sum, $264, and also claiming credit for $7,400 for real estate not sold and to be reconveyed, and expenses for advertising, filing account, etc., $45.50. The balance shown as due the estate was $1,094.25.</p> <p>The assignor filed exceptions alleging that the accountant should have charged himself, 1st, with interest on $1,400 in his hands; 2d, with $26 collected from Treon; and, 3d, that he was not entitled to credit for commissions on the appraised value of the real estate unsold.</p> <p>Before the auditor, the -accountant claimed that he was not chargeable with interest on the- $1,400, because the assignor had entered into an agreement with him, upon the consideration of his —the assignee’s — postponing the sale so as to allow the assignor time to raise the money to pay off the debts and obviate the necessity of a sale of his property, that he, the assignee, should not be prejudiced as assignee by such postponement. The assignee further testified: “Mr. Menges came to me and asked me to pay this money on the judgments. He was there twice. I told Menges in reply that the first lien against his property was held by John Haas, of Sunbury, amounting to over $300, about which there was some dispute, and that I could not run the risk of paying until that was decided, and that he had failed to furnish me the receipts for money he had paid out on the indebtedness. The reason I did not pay subsequent liens out of this money was because no one demanded it but Menges, and, under the agreement I had with him and the knowledge of indebtedness, I did not consider he was entitled to have any part of that money, and preferred filing my account and have the balance distributed according to law.”</p> <p>The auditor found that the assignee had been derelict in holding the funds so long uninvested, and accordingly surcharged him with interest from April 1, 1884, to Eeb. 28,1887, the date of filing the account, on $1,400, less $388.95, costs of settling estate and amount which might have been necessary to satisfy Haas’s judgment. It was claimed before the auditor that the retention of the funds amounted to misconduct sufficient to work a forfeiture of commissions. But the auditor held that, as the contest was between ■the assignor and the assignee, and no creditors were interested, the strict rule as to commissions might not apply. And, as the failure to execute the trust was at the request and in the interest of the assignor, and as the assignee had given personal labor and expense in this matter, the auditor allowed commissions of three per cent, upon $1,400, or $42; and $25 additional for services in advertising sale, etc. The auditor also charged the assignee with $26, the Treon collection; and credited him with $50 for professional services, prior to assignment.</p> <p>Exceptions were filed by the accountant, alleging, inter alia, that the auditor erred in surcharging him, 9, with interest, as above; 10, with the $26 received from Treon; 11, with commissions, as above; and, 12, in allowing $1,367.38 to be returned to Menges; the balance due Menges being the balance of the account $1,094.25, less the costs of the audit, and $2.25, for recording the deed of assignment, and the $24 due A. D. Hower as counsel fees prior to the assignment, or the balance due Menges is $943.75.</p> <p>The court disposed of the exceptions, in an opinion by Rockefeller, P. J., who, after reviewing the facts, proceeded:</p> <p>“ The assigned property was in the hands of the accountant and was a trust fund or assets for the creditors. The assignee and his bail were liable for the due execution of the trust. Although the jiroperty was appraised at a sum more than sufficient to pay the debts, so far as known to the accountant, yet he could not be certain that it would bring at a sale sufficient to pay all in full. Sometime before the day fixed for the sale of the other tract, the assignor called upon the accountant and induced him not to proceed, assuring him that he, the assignor, would raise the money to pay off all his debts within a stated time. Upon this request of the assignor, who is the only party interested in this controversy, the accountant did not proceed to sell, and left matters in that condition for a period of more than two years, when, late in the spring of 1886, the debts were satisfied.</p> <p>“ Now, during all that time, the accountant could not invest the money, because he was liable to be called upon at any moment that the assignor satisfied all the creditors who were interested in the assigned property. It is true the assignor, on one or two occasions, called on the accountant and asked him to apply the money in his hands to the payment of some of the debts ; but, in my opinion, he could not very well have done this until it was ascertained that such debts were entitled to be paid in full out of the fund. The sale which realized the $1,400 was not made by order of court and the liens were not discharged, and it could not be known whether the creditors would all be paid in full or not.</p> <p>“ I have come to the conclusion that, if the accountant did not use the money in his own business, and kept the amount in hand for the purposes of the trust, under the circumstances, he ought not to be compelled to pay interest until the assignor had complied with the agreement which induced him, the accountant, to drop all proceedings under the assignment. The evidence shows that the judgments, entered before and after the assignment, were satisfied about the middle of May, 1886. The judgment of John Haas was not satisfied until the 18th of December, 1886, but it had been paid for some time before, and the accountant knew it. He could have filed an account which would have been confirmed at the September term, 1886. He did not file it until February 28, 1887, and it could not have been confirmed until the May term, 1887. Thus eight months were lost after the accountant should have filed his account, and accounted for the money in his hands, and, not having done so, I think he is hable for interest during that time on the balance in his hands after deducting the amount of his credits.</p> <p>“ I am of opinion that accountant is only entitled to commissions on the moneys that came into his hands, with such additional sum as will compensate him for his trouble in regard to the land not sold, and the auditor having allowed $25.00 for that, I will not disturb his finding in this respect.</p> <p>[“The account, restated in accordance with the foregoing opinion, is as follows :</p> <p>DE.</p> <p>“Api’il 1, 1884. Amoxxnt received from sale of tract No. 2..........$1,400.00</p> <p>To interest on $1,239.20 for eight months . . 49.56</p> <p>To amount collected from Dr. Treon . . . 26.00</p> <p>■--$1,475.56</p> <p>CE.</p> <p>By expenses as claimed in account .... $41.55</p> <p>Cost of recording deed of assignment . . . 2.25</p> <p>Amount due A. D. Hower, counsel fee . . 50.00</p> <p>Compensation of accountant as follows :</p> <p>Three per cent, on $1,400 .....$42.00</p> <p>For general services....... 25.00 67.00 160.80</p> <p>Balance in hands of assignee...... $1,314.76</p> <p>“ The auditor’s fees and other expenses reported by the auditor, not being excepted to, amount to the sum of $114.25. As neither party has been entirely successful in his contention, under all the circumstances of the case, I have concluded that the costs ought to-be divided.</p> <p>Total amount for distribution.........$1,314.76</p> <p>Deduct one-half of costs to be paid out of the fund in accountant’s hands........... 57.121-</p> <p>Balance awarded to Benjamin Menges......$1,257.63|-</p> <p>It is ordered that $57.12j[, being one-half the costs, be paid by the accountant.</p> <p>“ The report of the auditor, being corrected as above stated, is confirmed.”]</p> <p>The assignments of error specified the action of the court, 1, in not sustaining the ninth exception, quoting it; 2, in not sustaining the tenth, eleventh and twelfth exceptions, quoting them; and, 3, in restating the account, and decreeing as enclosed in brackets above, quoting it.</p>

Errors, Nos. 26 and 34, May T. 1888, to C. P. Dauphin Co., to review a judgment on appeal from settlement of accounting officers, at June T. 1887, No. 534. Trunkey and Green, JJ., absent. On appeal from settlement of accounting officers to the court of common pleas, the Delaware and Hudson Canal Co. filed the following specifications of objections: 1.

Errors, Nos. 24, 25, 45 and 46, May T. 1888, to review judgments on appeals from settlements of accounting officers at Sept. T. 1887, No. 114, and Jan. T. 1888, No. 516. Trunkey and Green, JJ., absent. Both cases were tried without a jury, under the Act of April 22, 1874. At No. 114, Sept. T. 1887, the court filed the following opinion, by McPherson, J.: “ We find the facts to be as follows: “ 1.

Appeal, No. 410, Jam T., 1888, to review decree of O. C. Northumberland Co., dismissing a bill in equity to declare a trust void and for a conveyance. Trunkey, J., absent. The bill was filed by Ann Caroline Rodrigue against Simon P. Wolverton, as trustee, for tbe said Ann Caroline Rodrigue under the will of Hugh Bellas, the father of complainant, late of Sunbury, deceased, and also as administrator cum testamento annexo of said Hugh Bellas, deceased.

Error, No. 179, Oct. T. 1888, to O. P. No. % Allegheny Co., to review a judgment on a verdict for the defendants in an action of trespass on the case for libel, at Oct. T. 1884,. No. 72.

Error, No. 180, Jan. T. 1888, to C. P. Lancaster Oo., to review a judgment on a verdict for the plaintiff in sci. fa. sur mechanic’s lien, at May T. 1886, No. 7. Trunkey, J., absent. The lien filed was for an alleged balance for carpenter work done upon defendant’s houses within six months. Pleas, nil debit, payment with leave, and set-off.

<p>A rule of court provided that “ the defendant shall file with his plea sworn copies of any instrument of writing, book accounts, specify items of claim, and material facts on which he relies for his defense under oath, as required in section one of plaintiff, and file his affidavit stating what amount he verily believes he is entitled to defalk or to recover from plaintiff in said suit.” In an action brought to recover the proceeds of certain oil sold by the defendants, it was charged in the affidavit of claim that the oil belonged to the plaintiff and that it had been obtained by the defendant upon an order fraudulently procured by him from the plaintiff’s agent. In his affidavit of defense, the defendant denied this charge and alleged that the plaintiff was indebted to him for damages arising out of a certain contract, previously subsisting between them, for the purchase of two oil wells, and had given him the order in question as compensation for such indebtedness. Upon the trial, the defendant offered evidence in support of these allegations. It appearing, however, that the contract referred to was in writing and that, the defendant had not filed a copy of it with his plea, the court below rejected the offer as inadmissible under the construction placed upon its oivn rule by the court. Held, not to be cause for reversal.</p> <p>The defendant further offered to show that the plaintiff was indebted to him for improving and repairing two oil wells belonging to the latter and that the order in question was given in payment of such indebtedness. The court excluded this evidence also, under the said rule. Held, not to be cause for reversal.</p> <p>Pee Green, J. — If an instrument of writing, or a book account, is to be used, as we must infer, for it is not so expressed, he shall file with his plea a sworn copy, which would imply that it is only necessary to file the sworn copy; but, as-material facts must be averred under oath, it is a reasonable construction of the rule to infer that whatever facts are necessary to connect the instrument or account with the defense must at least be stated in writing and under oath.</p> <p>It seems that, under such a rule, evidence is inadmissible to establish a defense which has not been set up in the affidavit of def ense filed.</p>

Appeal, No. 121, Oct. T. 1888, from O. P. No. 1, Allegheny Oo., to review a decree granting an absolute divorce, at June T. 1887, No. 53. Stebbett, J., absent. The evidence in support of the decree appears to be sufficiently stated in the opinion of the court below, by Slagle, J.: “ In this case, Charles F. Klopfer filed a petition for divorce from his wife, Julia, on the ground of desertion.

Error, No. 156, Oct. T. 1888, to C. P. No. 1, Allegheny Co., to review a judgment on a verdict for the plaintiff upon a scire facias sur mortgage, at June T. 1886, No. 114. The evidence produced at the trial, before Collier, J., was to the following effect: The mortgage sued upon was for $1600, to be paid on or before July 1, 1865, with interest, and was given October 12, 1864, by Robert Brown to John Wagner.

<p>Error, No. 65, Oct. T. 1888, to O. P. No. 1, Allegheny Co., to review a judgment on a verdict for the defendant in an action on the case, at June T. 1887, No. 162. Clark, J., absent.</p> <p>The cause of action, as stated in the paper book of plaintiff in error, was substantially as follows:</p> <p>This was an action brought by J. A. Crawford, a manufacturer of lumber on the Allegheny river, against the City of Allegheny, as the owner of a public wharf on the banks of the said river, to recover the value of timber and logs swept away by a flood in Feb., 1884. The timber and logs were stored above his mill and along the shore below Herr’s island bridge until they could be sawed. The city charged rent or tolls to the plaintiff and other persons for the use of the wharf. The plaintiff alleged that the city had not provided sufficient appliances for the safe mooring of craft at the wharf, in such emergencies as arose at the time in question; that it had allowed the wharf to be occupied by the Pittsburgh & Western Railroad ■Co., some years before; that the company had erected a trestle thereon above the saw-mill and immediately opposite to where the main body of the plaintiff’s timber lay; that, while occupying the wharf, the company had removed a number of trees and posts which Rad formerly been» available for tying to, and that the loss was occasioned by the raising of the top of the trestle, thus allowing the bents of the trestle to which the lumber was tied to go out with the fleet.</p> <p>The plaintiff in error did not print the evidence in his paper book. The defendant in error, protesting against the omission of the evidence, made the following counter statement:</p> <p>In February, 1881, there occurred a sudden and extraordinary rise in the Allegheny and Monongahela rivers. The people along the shores, accustomed to annual inundations, were taken by surprise at the rapidity of the current and the extraordinary volume of water. Nothing like it had been seen for more than fifty years,, and that flood was not as high as this. Fences, dwellings, barns, and bridges, untouched and unharmed by all previous overflows, were swept away by the fury of the flood. Railroad travel was stopped, and streets in the heart of the city were traversed in boats. Thousands of people were driven to the upper stories of their dwellings, and furnished with the necessaries of life through the second-story windows. Yast masses of debris gorged above a bridge, which had withstood all previous floods, and, lifting it from its supports, hurled it against the plaintiff’s rafts, breaking the ropes which secured them and sweeping them away.</p> <p>The plaintiff’s claim was that the city had not provided sufficient hitching-posts. The evidence shows that the flood was a disaster— an act of God. The city had provided two posts, which had sufficed for all previous floods, and still remain unmoved. To neither of these did the plaintiff attach his rafts, but saved rope by tying to telegraph-posts and bents of the railroad track. Two of his ropes were broken, and to this, and the extraordinary character of the flood, is his loss to be attributed.</p> <p>The plaintiff in error was not a navigator. He was the proprietor of an extensive saw and planing mill on the bank of the river, and was using the river and wharf, not for the ordinary purposes of navigation and safe harbor, but as a receptacle and storing place for large rafts of timber which he had bought, and was keeping in the water until it suited his convenience to remove them.</p> <p>It appears that, upon the trial, the plaintiff asked the court to charge, inter alia:</p> <p>“ 1. The defendant City of Allegheny, being in possession of the wharf, at which plaintiff’s rafts and timber were moored, and receiving tolls or wharfage for its use, was held to the utmost care of said wharf, and it was a violation of defendant’s duty to the public to neglect to provide proper posts or means of fastening for the mooring of rafts and timber at said wharf.” Ans. “Affirmed, with the qualification that ‘utmost’ must be interpreted tornean only ‘ reasonable and proper care,’ in view of the safety of the rafts and other craft.” [1.]</p> <p>“ 2. If the City of Allegheny permitted a railroad company or corporation to locate a railroad track on and along said wharf, and thereby interfere with the safe mooring and securing of rafts, timber, etc, at said wharf, that then the said city is responsible to all owners of rafts and timber sustaining loss or damage by reason of such use of the wharf.” Ans. “ Refused. The fact that the city alloweci the railroad to locate its track between high and low water mark will not alone make it liable for timber carried away by the waters. All the city is bound to do is to supply good and sufficient hitching posts or places to which parties may securely attach their boats, lumber, etc., anticipating, of course, ordinary floods. If there are sufficient hitching-places there for all ordinary and reasonable purposes, such as the railroad trestles or bents, which are ordinarily used by parties using the wharf, without any dissent on the part of the railroad, that is all that is required.” [2.]</p> <p>“4. The said City of Allegheny, under the law, is charged with the duty of providing safe, secure, and sufficient posts and fastenings to moor and secure safely boats, rafts, and other watercraft moored at the wharf within the territorial limits of said city, and, in so doing, the said city is bound to provide for and anticipate extraordinary high raises of the water of said river.” Ans. “ Refused. The city is not bound to anticipate anything more than the ordinary freshets or high water likely to occur from year to year, based upon its experience. It was not bound to anticipate such a flood as that of 1884 is shown by the evidence to have been.” ■ [3.]</p> <p>The court charged the jury, inter alia:</p> <p>[“ Now, in this case, you find in the first place that this was an. extraordinary flood. The evidence all shows that, and we all know as a matter of history that there has not been such a flood since 1832, half a century. There have been two or three high floods before this one, but there is no evidence, as I remember, that even in those floods any boat went away, but that is immaterial. It does seem that, previous to the building of the railroad, there were some trees to which boats or rafts could be attached, and that they were taken away. Now, while it is the duty of the city to supply the use of a wharf with the proper means to tie his fleets, if there are means that he can use and is in the habit of using, the city is not bound to put any other additional supports or posts; so that, in this case, if you believe these rafts were moored to the railroad ties or trestles, as they seem to have been, and that they were ordinarily sufficient to hold fleets, in such waters as they were bound to anticipate, high floods, but not such a flood as this, and that if the flood had not been as extensive as it was this fleet would not have been carried away, you have no right to find a verdict against the city, because, in that case, these parties had sufficient appliances, and the extraordinary flood itself, for which the city is not responsible, was necessarily the cause of the loss.] [4.] [Not to be misunderstood, the city was bound to see that the plaintiff had a sufficient place to tie, to meet all ordinary emergencies, and, including in that the high floods arising from year to year, that were to be anticipated, but if this loss occurred by reason of this extraordinary flood, superinduced probably by the gorge that formed above the bridge, which caused the bridge eventually to fall down, and, to a certain extent, obstruct the current and throw it as it naturally would probably, and as the evidence indicates it would, toward the Allegheny shore, and that, immediately or a short time after, whether instantly, or in five minutes, or half an hour, it worked this fleet loose, when, if that emergency had not arisen, the fleet would not have gone away, would have stayed there and the railroad would not have pulled out of place, then the plaintiffs cannot recover in this action. It must be attributed to the extraordinary emergencies, or what we call, in the language of the law, the Act of God.] [5.] ... [If you think that the hitching-posts, or the bents of the railroad that the plaintiff attached to, were insufficient to protect his fleets under ordinary circumstances, and with the ordinary high waters, it was the duty of the city to put in more posts. If, however, the evidence satisfies you that they were reasonably and ordinarily safe with such waters as they were bound to anticipate, the city has been in no default and the plaintiff cannot recover if there were not sufficient hitchings. If you think that there ought to have been posts there, then the next question comes up, if the posts had been there, would the fleet have been saved ? If posts, such as would have been ordinarily necessary and suitable to protect the fleets with ordinary water, had been there, would the fleet have gone away ? That, of course, is surmised, to a great extent, and yet it is a matter the jury must pass on in that view of the case.”] [6.]</p> <p>The assignments of error specified, 1-3, the answers to the plaintiff’s points, quoting them; and, 4-6, the portions of the charge in brackets, quoting them.</p>

Error, No. 85, Oct. T. 1888, to C. P. No. 2 Allegheny Co., to review a judgment on a verdict for plaintiff in an action on the case for personal injuries, at Oct. T. 1886, No. 427. Paxson, J., absent.

Error, No. 126, July T. 1887, to C. P. No. 2, Phila. Co., to review a judgment of compulsory non-suit in an action on the case for personal injuries, at Aug. T. 1-885, No. 133. The evidence was to the following effect: On July 13, 1881, the plaintiff was a passenger, in the smoking car, on defendant’s railroad, going into Camden.

<p>In a creditor’s bill against an insolvent corporation, tbe master found that the final call for tbe unpaid stock, subscription was made about Nov. 1,1875, ■of wbicb notices were duly received by tbe subscribers, but it did not appear what were tbe terms of the resolution authorizing the call. The master found that interest should be computed from Nov. 1, 1875. An exception to the report alleged that the master erred in charging interest from Nov. 1,1875, or with any interest whatsoever from any date whatsoever. The court dismissed the exception and this was assigned as error. Held, not to be error.</p>

<p>Where a borough throws water collected by rains and freshets on a public highway of a township, and the township accepts the burden of the water, the borough is not liable in damages to a landowner in the township, upon whose land the water has been thrown from the highway.</p> <p>To give a servitude over another’s land for the flowage of water, or for the maintenance of a drain or water course, without twenty years’ apparent and visible use, actual consent must be shown by the evidence and cannot be inferred from- the mere fact of the owner’s making no objection to such use.</p> <p>A party, sued for damages for overflowing the premises of an adjoining landowner, requested the court to charge that no recovery could be had if the plaintiff consented to the overflow, or, by acts recited in the point, prior to his ownership of the land, caused an increase in the overflow. The court affirmed the point with the qualification that actual consent must be shown by the evidence, and cannot be inferred from the mere fact of acquiescence. Held, that, in the absence of a more specific request to charge the jury, the defendant could not complain, although there may have been evidence from which the jury might infer actual consent on the part of the plaintiff.</p>

Error, No. 57, July T. 1888, to C. P. No. 2, Phila. Go., to review judgment for want of sufficient affidavit of defense, in an action of assumpsit, at Dec. T. 1887, No. 762.

Error, No. 136, July T. 1888, to C. P. No. 3, Phila. Co., to review a judgment on a verdict for plaintiffs in an action of assumpsit, at June T. 1881, No. 224. This action was brought by Emma B. Conrow and Joseph A. Sinn, Executors of George E. B. Conrow, against Sarah B. Conrow, Joseph H. Conrow and Howard F. Conrow to recover one-fourth of $3000, being the commissions awarded to defendants in Delaware as executors of Joseph B. Conrow, deceased.

<p>The liability of a municipality for damages for injuries caused by defect in the sidewallc is not relieved by the fact that the property owner may also be liable.</p> <p>It is the duty of the city of Philadelphia to see that the sidewalks of its streets are kept in safe condition for travel, and the city is answerable in damages to a pedestrian, who, without negligence, has sustained injuries by reason of a defect in a sidewalk, of which the municipal authorities had notice, either express or implied.</p> <p>Sterrett, J. — Implied notice is the notice which the city is presumed to have, when an obstruction in the public highway has existed so long that the city should reasonably take notice of and Tepair it.</p> <p>The case of West Chester v. Apple, 35 Pa. 284, distinguished.</p>

<p>Error, No. 8, July T. 1888, to C. P. No. 3 Phila. Co., to review a judgment entered notwithstanding an affidavit of defence, in an action of assumpsit, at Dec. T. 1887, No. 192.</p> <p>The action was brought December 6, 1887. The plaintiff’s-statement of claim was for two promissory notes, for $100 each,, dated Play 10, 1881, one due seven months, the other eight months, after date. Copies of the notes were attached, with an affidavit by William Kingston that “the matters alleged, as a basis of his claim in the above suit are just and true to the best of his knowledge and belief.”</p> <p>An affidavit of defence by W. S. Harris, one of the defendants,, was as follows:</p> <p>“ The notes sued upon were given, together with six other notes of a like date and amount, and payable in one, two, three, four, five and six months, respectively, in payment of a car of roofing-paper purchased by the defendants of the said William Kingston. The said car of rooling-paper was ordered by the defendants of the said William Kingston, to be of a uniform width of thirty-two inches, and to be of a quality equal to a sample sent to-him at the time the order was given. Upon the receipt of the said car of paper, the defendants found that the same was of different widths, varying from twenty-six inches to thirty-two inches, not at all like the sample, and entirely unsuitable for the purposes for which it was ordered. The defendants declined to receive the said paper, and notified the said William Kingston thereof, who thereupon came to this city, and recognizing the justice of the defendants’ position, made efforts to dispose of the same to other parties, but failed to do so by reason of the' same being of different widths, and unsuitable for roofing purposes. The said William Kingston then agreed to sell the said paper to the defendants for the sum of eight hundred dollars, and took therefor the eight notes above referred to; and agreeing that the same should be of the quality of the sample sent him, and upon which the order was originally based. When the defendants came to use the said paper for the purposes for which it was ordered, by saturating the same with tar, it was found that the said paper, by reason of its hardness and damp state, would not absorb the tar, could not be saturated, and was greatly depreciated in value for roofing purposes; which depreciation, upon a sale of the same by the defendants, was ascertained to ,be about thirty per cent., or more than the notes then remaining unpaid, and which are now sued on, amounted to. The hardness of the paper and its damp state was not caused by any act or omission of the defendants, but was caused by the imperfect method of its manufacture, and was not discovered by the defendants until they came to saturate it with tar, which was after the payment of the six notes above referred to. The paper was not up to the standard, or equal to the sample sent the said William Kingston, and by reason thereof the defendants lost thirty per cent, of the value of the whole car, or the sum of two hundred and forty dollars. It does not appear, from the plaintiff’s statement, how or in what manner the use plaintiff came into possession or acquired an ownership in the notes sued on, but the deponent avers that such possession or ownership was acquired, by the said use plaintiff, long after the maturity of the said notes, and with full notice of the defense above set forth, and with the intention on the part of the said William Kingston to deprive the defendants of the benefit thereof.</p> <p>“ The deponent further suggests to the court that the statement filed does not entitle the plaintiff to judgment, because it is not sworn or affirmed to by the plaintiff, or by any one in his behalf, but, on the contrary, is sworn to by the said William Kingston, who states that the facts therein alleged as a basis of his claim, are just and true.</p> <p>“All of which deponent expects to be able to prove on the trial of the above cause.”</p> <p>A supplemental affidavit of defense was afterward filed by Thomas II. Harris, another defendant, as follows: ■</p> <p>“ That, at the time the notes now sued on, together with six other notes which have since been paid, were given by defendants to William Kingston, the said William- Kingston agreed and guaranteed that the roofing-paper for which the said notes were given was of a quality, as respects its capacity to absorb tar, equal to the sample which had been sent him, which, the deponent avers, would absorb at least three thousand pounds of tar to every two thousand pounds of paper. That when the defendants came to saturate the said paper with tar, which was after the payment of six of the notes given in payment therefor, it was found that the same, by reason of its hardness and damp state, would not and did- not absorb more than two thousand one hundred pounds of tar to every two thousand pounds of paper, and has depreciated in value or caused a loss to the defendants of about thirty per cent, of the entire purchase price, or more than the notes then remaining unpaid, and which are now sued on, amounted to.</p> <p>“ That the hardness of the said paper, and its damp state, were not caused by any act or omission of the defendants, but was caused by the imperfect method of its manufacture, and was not, and could not be, discovered by defendants until they came to saturate it with tar, all of which defendants expect to be able to prove on the trial of the above cause.”</p> <p>The court entered judgment for plaintiff, which was assigned for error.</p>

Error, No. 428, Jan. T. 1888, to C. P. No. 3, Phila. Co., to review a judgment on a verdict for the plaintiff in an action of covenant, at June T. 1883, No. 362. The action was upon an alleged agreement for royalties for the use of a patented invention. It is stated in. the paper book of defendant in error that a copy of the agreement was filed in the case, but it does not appear by the abstract of proceedings.

Error, No. 186, Oct. T. 1888, to Q. S. Allegheny Co., to review a judgment on a verdict of guilty on an indictment for selling liquor without license, at June Sessions, 1888, No. 231.

Error, No. 216, July T. 1888, to C. P. No. 2, Philadelphia Co., to review a judgment on a verdict for the plaintiff in an action of assumpsit upon a promissory note, at Sept. T. 1885, No. 308. Green, J., absent. The following was printed in the paper book of plaintiff iix error, as the evidence given on the trial before Mitchell, J.: Plaintiff offered in evidence the following note: “ $616.56.

Error, No. 260, Oct. T. 1887, to C. P. No. 2, Allegheny Co., to review a judgment for plaintiff in an action oi assumpsit, at July T. 1884, No. 115. Clark, J., absent. This action was brought by R. T. Graham against C. H. Spang and others, co-partners under the name of Farmers1 and Mechanics .Bank of Sharpsburg, to recover a balance due on money deposited.

Error, No. 13, Jan. T. 1889, to O. P. No. 4, Phila. Co., to review a judgment on a verdict in favor of the defendants on a scire facias sur mechanic’s lien, at March T. 1883, No. 11, M. L. D. The lien was filed by Poole & Hunt against certain premises on Columbia avenue in Philadelphia, describing them and naming as owners the Union Passenger Railway Co. and as contractors the firm of Malster & Reaney, said building being used as an engine and machine house, stable and barn.

Error, No. 35, July T. 1888, to C. P. Chester Co., to review a judgment dismissing exceptions on a certiorari to a justice of the peace, at Jan. T. 1888, No. 123. Clark and Green, JJ., absent. The transcript showed that the action was .against Kachel A. Diehm, that the summons was issued Jan. 7, 1888, returnable Jan. 13, and was served personally Jan. 9, by producing the original summons and informing her of the contents thereof.

Error, No. 207, Oct. T. 1888, O. P. No. 1, Allegheny Co., to review a -judgment for plaintiff on a case stated, at Dec. T. 1887, No. 748. The case stated was as follows: “ The sheriff sold personal property on ex. Nos. 4, 5, 6 and 7 of December Term, 1887, on premises occupied by McFall, Hetzel & Co., and realized by sale a sum of money exceeding $1,000.

Appeal, No. 24, Jan. T. 1889, from C. P. No. 4, Phila. Co., to review a decree in a bill in equity for an account between partners, at Dec. T. 1884, No. 761. Green, J., absent. Bill in equity, filed Feb. 17, 1885, by Eugene K. Plumly against his father, George ~W. Plumly, for an injunction, the appointment of a receiver, an account and the sale of the real estate and the business described in the bill.

Appeal, No. 209, Oct. T. 1888, from O. 0.. Allegheny Co., to review a decree of distribution, at Dec. T. 1886,.

<p>Error, No. 145, July T. 1888, to O. P. No. 1 Pbila. Co., to review an order discharging a rule to quash a ca. sa., ¡and, by amendment, to review a judgment dismissing exceptions to report of referee; and Appeal, No. 141, July T. 1888, to review a ■judgment dismissing exceptions to report of referee, at Dec. T. 1884, No. 576.</p> <p>This was originally an action of account render by John M. Sheldon and Mary C. Sheldon, in right of said Mary Sheldon, ¡against Henry G. Harris.</p> <p>The master recited the proceedings as follows: The summons was issued Dec. 23, 1884, and was duly served on the defendant on -Jan. 5, 1885. On Jan. 10, 1885, defendant filed, in C. P. No. 2, an .account, as trustee for Mary C. Sheldon, the substantial plaintiff in this cause. Subsequently, by agreement of parties, this account was transferred to O. P. No. 1, and entered as of the same term and number as the action of account render. On June 8, 1885, a narr in account render was filed, alleging that defendant was the ¡agent or trustee of Mary Sheldon from Jan. 1, 1880, until Dec. 1, 1884, and during that time collected and received divers sums of money and had failed to render a reasonable account thereof. Defendant pleaded plene computavit. On July 6, 1885, the whole ■matter was referred to George Junkin, Esq., as referee under the Act of June 16, 1836, who filed a report setting forth substantially the following facts: In 1881, Sheldon, who.was the owner of a .store in Danville, executed a judgment note for $8,000 to Harris as trustee for his wife. Judgment was entered on this note and -execution issued, the stock in the store was sold and bought in by Harris, as trustee. Harris appointed Sheldon as his agent to seil "the goods. "While Sheldon was in possession as agent, judgments ■were recovered against him and these goods were taken in execution. An interpleader was framed and Harris gave bond and kept possession of tbe goods. Yerdict was rendered in favor of tbe trustee iu tbe feigned issue. Harris’s agent continued the sale of the goods and realized about $7,000. Up to July 18, 1882, Harris. had received $1,320.90. On this sum he claimed commissions in his accounts filed, at five per cent., or $66.04; also $200 for professional services as trustee. At a later date in July, 1882, he received the balance of the moneys. After making payments on account, there were left in Harris’s hands $4,150, invested in a mortgage for $3,500, and a ground rent for $650. He claimed to hold this balance as security to indemnify him on the interpleader bond, until after the time for taking out a writ of error in the feigned issue had elapsed. After the two years had expired, Mrs. Sheldon applied for the balance due her, and requested to be paid in cash. This not having been done, Mrs. Sheldon brought this action of account render.</p> <p>In the account in this case, Harris claimed credit for commissions at 5 per cent, on principal and income; also for counsel fees; expenses of filing account, $10; costs paid; costs for conveyancing in collecting $3,500 mortgage; and assignment of ground rent.</p> <p>The master, after reciting the pleadings and finding the facts, inter alia, as above stated, continued :</p> <p>“ When the accounts were submitted to Mr. and Mrs. Sheldon, containing the charges of $200 and $66.04, they objected to the amounts, and also to some expenses he had paid, claiming, also, that a very large amount had been paid to the three or four attorneys employed, and who tried the case. Finally, Mr. Harris agreed to throw ofE $30 of the expenses claimed by him, and [they agreed to the other charges made by him, upon the distinct understanding that Mr. Harris would make no other charge of any kind in the matter, either for his services, or for the securities or their collection.] [2] [“And he also said to them that, when the two years had expired, if she was then not willing to take the securities, in which he had invested the money, he would pay her the money instead, without charge or expense,] [3] as he would get some of his relations to take them and pay the money.</p> <p>[“They both testified to these matters very distinctly and emphatically; whilst he did not deny them in terms,] [4] but, in argument, he suggested that, if there was such statement or agreement made, it was merely a nudum pactum.</p> <p>“ When he received the bulk of the moneys in July, 1882, Mrs. Sheldon wanted part of it put in a ground rent she was offered through Mr. W. F. Snyder; but Mr. Harris objected, because he, and Mr. Angle, as his surety, required to be protected; and he undertook to get securities equally good. He owned a ground rent of $650, and he had been, [or was then,] [5] engaged in some building operations, and he had caused the titles to five houses and lots in the lower part of the city, which were assessed by the city assessors at $700 each, to be put in the name of a third party who executed a mortgage upon them, which subsequently he caused to be assigned in July, 1882, to himself as trustee for Mrs. Sheldon for $3,500 at 5 per cent, interest, and the title was conveyed tó his brother subject to the mortgage. He considered this a good investment of the :$3,500 and he then used the money in his own business, and subsequently paid the interest to Mrs. Sheldon as before stated. He also ■caused the ground rent which he individually owned, to be conveyed to him as trustee; and the mortgage and ground rent he delivered to Mr. Angle as his security until the two years had ■expired. And from him they were subsequently received.</p> <p>“ Mrs. Sheldon seems to have had some knowledge, in a general way, of these transactions, [whilst not wholly approving them.] ■ [6] [It does not seem that she knew that the properties were really those ■of Mr. Harris.] [I] The result of the arrangement was that Mr. Harris used the money for his own purposes, and gave his own property to himself, in the way described, as security. When at a later period she sought accurate information as to the location of the properties, he gave her incorrect information as to the same, though the referee is inclined to think this was not intentionally done, but was a mere mistake. When she insisted upon the payment to her of the balance of her moneys, after the two years had expired, [there were delays in furnishing the account which ■ought not to have occurred.] [8] And when it was furnished, he refused to settle with her unless she agreed to the additional charge for commissions, and gave him a receipt in full.</p> <p>“It was objected to his claim for commissions, in addition to the agreement mentioned as to the same, that he was not a trustee, gave no security, put Mrs. Sheldon to large expense in getting Mr. Angle to become security in the interpleader, and that the expenses ■of counsel were very great, being at least $900, and he used the moneys in his own business.</p> <p>“ But he certainly was her trustee, and he acted and was recognized by her as such, and, so far as the recovery of the money was concerned, certainly did his duty faithfully. He, not living in Mon-tour Co., could not very well give security there in the interpleader suit; and the arrangement to get Mr. Angle to become the security, and at the same time to sell the goods for a compensation of 5 per •cent, was a fair one,' and one approved of by the parties at the time. And whilst it is true that he claimed title to the goods under a sheriff’s sale, it is not at all likely that the court would have allowed him to enter his own bond without security, under the peculiar circumstances of the case. The counsel employed were those selected upon conference with Mrs. Sheldon, if not suggested by her or her husband, and their fees have been agreed to by her; and, in view of the result, the legal expenses may not be considered out of the way.</p> <p>“ Under all the circumstances of the case, however, the referee is of opinion that Mr. Harris should not be allowed any further compensation than the $200 and $66.04 [which he agreed to accept in full of all claims.] [9.] The income paid to her was really only paying 5 per cent, on the $3,500 of her money, which he was using in his business, secured by the mortgage on his own property, and 6 per cent, on the ground rent, which was another piece of his own property. The claim for conveyancing expenses, etc., in collecting the $3,500 mortgage, are disallowed, as well as those for the transfer of the ground rent. [It did not appear that he had paid them.] [10.] ....</p> <p>“ He was entitled to retain the moneys in his hands as his, and Mr. Angle’s, security against a writ of error; and [had he invested the moneys in good and unexceptionable securities,] [11] his course would have been easy and plain. He would merely have had to transfer them to Mrs. Sheldon and taken her receipt. It was not necessary to file an account. All the trouble in the case has arisen out of his using the moneys in the way he did, and in mixing up her affairs with his. . . .</p> <p>“According to Mr. and Mrs. Sheldon, Mr. Harris expressly agreed that, when the two years had expired, she would have her money without any further charges or expenses of any kind. And this, as has before been stated, he did not deny in terms, when ■examined as a witness. [Evidently he desired to use her moneys in his own building or other operations;] [12] and he did so use the moneys, securing its return in the way indicated, and there .is no reason why he should not be held to his agreement, under the circumstances disclosed in the case. [It nowhere appeared that Mrs. ■Sheldon or her husband knew that these properties, given as investments or securities, really belonged to him, or that the arrangement had been made so that he could get the use of the money for himself.] [13.] Indeed, [the evidence seems to show that they both .supposed that the mortgage and ground rent were both secured upon the property of persons, strangers to himself, and were independent ■securities held against others, and with which he had nothing to ■do.] [14]</p> <p>“ Eor the same reasons, the charge of $10 for filing the account must be disallowed. It was an unnecessary payment. And, besides, this suit had already been brought, and all matters in controversy between the parties could have been settled in it, even if an account ■could have been properly filed under the circumstances.”</p> <p>The master surcharged the defendant with commissions dis.allowed; surcharged him with $650, ground rent; imposed the costs upon him and found a balance due Mrs. Sheldon of $2,081.56.</p> <p>The defendant filed exceptions, alleging that the master erred, 1, in finding an award in the action of account render as if that action could be sustained, instead of awarding as auditor on the account presented to the cestui que trust and filed in C. P. No. 2, D. 84, 480; 2-14, in the findings or inferences of facts contained in his opinion, enclosed in brackets; 15, in taking meagre and insufficient notes of testimony; 16, in giving too much weight to the testimony of J. M. Sheldon; II, in placing on his notes only such portions of the testimony as agreed with his view and final determination of the case, and further distorting that, in his finding of fact; 18, in surcharging the trustee with commissions; 19, in finding that “ legal expenses ” included commissions of a trustee; 20, in the form of his report; 21, in disallowing the claims of the trustee for expenses of filing account, costs of conveyancing, costs paid, counsel fees, and assignment of ground rent; 22, in charging the trustee with the principal of the ground rent while the title to same was in the cestui que trust; 23, in placing the costs on the trustee; and, 2'f, in charging the trustee with interest after the tender of the balance to the cestui que trust.</p> <p>The court dismissed the exceptions, filing no opinion, and entered judgment on the report.</p> <p>Harris subsequently paid $Y50 on account of this award and afterward an execution was issued for the balance, which was returned nulla bona. A capias ad satisfaciendum was then issued. Harris took a rule to quash the capias, and, in support of his rule, filed the following affidavit:</p> <p>“H. Gf. Harris, being duly sworn, says, that the judgment in this case, entered upon the report of the referee for $2,081.56, consists of the following items: First, of the principal of a yearly ground rent of $39, being $650. That of this item, the title to said ground rent is in the plaintiff, and said H. Gf. Harris has no title to the same. That to charge the said H. Gf. Harris with the principal of said rent, while the plaintiff holds title thereto, would give the plaintiff $1,300, when she is entitled to the ground rent only, representing $650. The second item of the amount of said judgment, consists of the compensation and expenses of said H. G. Harris, as attorney, agent, or trustee for said plaintiff, which he deducted from the funds collected and accounted for. And the third item of said judgment, consists of some $Y50, which was a sum retained by said H. G. Harris, as attorney or trustee, as a balance for distribution in which to make an accounting, and pay the expenses of an'audit or final adjustment, when his accounts should be finally passed upon, and his claims for extra compensation, beyond that charge, determined. That, since the filing of the referee’s report, the sum of $Y50 had been paid the plaintiff. That the balance of the judgment consists therefore, practically, of the first two items named, that is, of the ground rent of $650, belonging to said plaintiff, and of said H. G. Harris’s reasonable charges, which, by the referee’s report, are disallowed him.</p> <p>“That the said H. G. Harris has not been heard upon his exceptions to the referee’s report, the same having been dismissed in the absence of his counsel, and the said H. G. Harris is about to file his appeal to the supreme court, where, if his exceptions are sustained, only the said $650, less costs and expenses, will be due the said plaintiff.”</p> <p>The court discharged the rule. Harris thereupon took a writ of error to review this action of the court. He also took an appeal to the judgment on the referee’s report.</p> <p>The assignments of error, on the appeal, without quoting the exceptions, but stating the substance, specified the action of the court in dismissing, I, exceptions 2, 3, 4, 9, and 19; II, exceptions 5, 7, 10, 12, 13, and 14; III, exception 6 ; IY, exception 11; Y, exceptions 15 and 17; YI, exception 8; YII, exception 18; YIII, exception 21; IX, exception 23 ; X, exception 24; XI, exception 22; XII, exception 1; and, XIII, exception 20.</p> <p>The assignment of error, on this writ of error, specified the action of the court in discharging the rule to quash the ca. sa.</p> <p>Counsel for appellee move to quash the writ on the ground that an appeal did not lie. Jan. 18, 1889, the appeal was quashed but the assignments of error on the appeal were allowed to be transferred to the writ of error, Williams, J., being then absent.</p>

Error, No. 192, July T. 1888, to O. P. No. 1, Pbila. Go., to review a judgment on a verdict for the plaintiff in an action of assumpsit for wages, at March T. 1886, No. 848. It appeared from the evidence that the plaintiff below was employed by the defendant as a tile layer.

Error, No. 91, Jan. T. 1889, to C. P. Montgomery Co., to review a judgment on a verdict in an action of trespass for personal injuries, at March T. 1888. Williams and McCollum, JJ., absent.

Error, No. 60, Jan. T. 1889, to C. P. Montgomery Co., to review a .judgment on a verdict for plaintiff in an action of assumpsit, for money loaned and advanced, at June T. 1887, No. 89. Williams and McCollum, JJ., absent. The declaration was upon the ■ common counts. Plea, non assumpsit. The evidence was to the following effect, at the trial, before Swartz, P. J.; In 1886, Buckwalter and one Beideman were engaged in the saloon business.

<p>It is a breach of the implied covenant for quiet possession in a lease, if the lessor, prior to the execution of the lease, has made a verbal lease of the same premises to a third party for one year, and possession is taken and kept by the third party under such verbal lease. And this is so even if the lessee, under the written lease, was put in possession by the lessor.</p> <p>. In an action for damages for breach of an implied covenant for peaceable, undisturbed and legal possession, the declaration assigned, as a breach, that the defendant refused and still refuses to grant and deliver such possession. The plaintiff proved his lease, and testified as to his efforts to get possession. It seemed that the premises were in the possession of one Tully, a prior tenant, at the expiration of whose term the lessor issued a writ of habere facias possessionem and the sheriff returned that hehad delivered the premises to the defendant. The plaintiff admitted in his testimony that the defendant gave him duplicate keys when he and the defendant were alone in the house, and then, under objection that the evidence was inadmissible because the narr did not aver an eviction and that the plaintiff was concluded by the sheriff’s return and his own evidence, offered evidence to prove that he had been prevented from obtaining or keeping possession by Tully, who held the original keys; also the acts of Tully in entering while he was in the house; the goods of Tully which had remained in the house; declarations by defendant of his failure to give possession to plaintiff; evidence of a verbal lease given by defendant to Tully for the period covered by plaintiff’s lease; and the damages occasioned him, including the expenses of moving to and from the demised premises, the rent he had to pay for another house, and his loss in trade. Held, not to be error.</p> <p>Counsel stated to the court that a witness had been subpoenaed, and an attachment placed in the hands of the sheriff on the morning of the trial, that the witness was not at his place of business, and that it was reported that he had left the county, and then offered notes of testimony of the witness, taken by the court stenographer upon a former trial of the case, under the Act of May 3,1887, l 9, providing for the admission of notes of testimony if a witness “afterward die, or be out of the jurisdiction, so that he cannot be effectively served with a subpoena, or if he cannot be found.” Seld, to be inadmissible.</p>

<p>Where a corporation distributes its 'surplus profits among the stockholders by 'issuing scrip or bonds convertible into stock, such scrip or bonds constitute dividends under another form, and, where stock of such corporation is held by a ■trust estate, the scrip or bonds, thus distributed, are income and not principal, and consequently belong to the life-tenant.</p>

<p>Errors, Nos. 257 and 260, Jan. T.- 188Y, to C. P. "Wayne Co., to review judgments entered on verdicts for defendants in actions on the case by Catharine Carroll and Mary A. Corbett against the Pa. Coal Co., to recover damaged for the deaths of their respective husbands through the alleged negligence of the defendant, at March T. 1885, No. Y8, and Oct. T.: 1885, No. 1Y5. Green, J., absent at argument; Trunkey and Clark, JJ., absent at reargument.</p> <p>The cases were tried together, by agreement, before Seely, P. J. The facts are stated as follows in defendant’s paper book: ,1</p> <p>On Nov. 24, 1884, Carroll and Corbett were engaged in pushing coal cars of the defendant along its track leading to a “dump.” The track was laid on three permanent trestles, and three temporary trestles; the former, about twenty feet high, built on stone foundal tions, and the latter, six feet high, erected on the coal, as the pile was extended in dumping. They were placed ten feet apart, and across them were laid two heavy wooden rails forty-three feet long, with a “ head-block ” of timber bolted across the outer end, to preT vent the cars from going off. The inner ends of these rails rested bn the cap of the outer permanent trestle, and the outer ends proj jected thirteen feet beyond the last temporary trestle. The iron rails were laid on these wooden rails. The road was continued on similar timbers over the permanent trestles to the main track, from which the coal cars were received by means of a turn table. To prevent the projecting rails from falling, from the weight of the car,' they were secured by large iron “dogs,” bolted to the rails, the shanks of which, some three inches long, and barbed, were driver! into the caps of the outer permanent and the inner temporary trestle. Each rail was secured by two pairs of “dogs.” One pair was bolted to the rail, at the inner end, a “ dog ” on each side of the rail, and the shanks driven into the. cap of the trestle on which this end of the rail rested ; the other pair were bolted to the rail, in like manner, ten feet from the first pair, and the shanks driven into the cap of the trestle at that point. To extend the road, as the dumping ground became filled to the level of the track, another temporary trestle six feet high was set up on the coal, ten feet farther out, the dogs were knocked out, the long rails drawn ten feet farther out and across the last trestle, and again fastened by driving the dogs into the caps of the trestles as before; and rails ten feet long were placed in the interval thus made next to the inner ends of the long rails. In this manner the road was extended, in sections of ten feet, until the outer limit of the dumping ground was reached. This method of securing the long rails by dogs, instead of by a permanent fastening, was adopted in order that the road might be thus extended .in any direction and to any point where- it was desired to pile the coal. One of defendant’s witnesses testified that, at an expense of $10 or $15, in each case, the rails could have been fastened so that they would not have given way, but it would take more time to change the tracks with such an arrangement-. ¡</p> <p>• It frequently happened that a slide of coal took place, at the outer end of the pile, which caused a slight settling down of the outer temporary trestle, and gave the track a down grade at that point. When this happened,' the rails were raised with a lever, and planks laid on the cap of tbe outer trestle to restore the rails to their proper height and make the track level.</p> <p>Six men, three on each side, pushed each car to the projecting portion of the track and there dumped it. The men at the ends of the car were provided with stopping or blocking sticks with which to block the wheels and stop the speed of the car; the men at the center, one on each side, dropped and lifted the car doors in dumping. The men walked on a single plank laid at the sides of the track. ;</p> <p>The duties of the men having the car in charge were to run it without striking the head-block, and, whenever the outer trestle setr tied, to block it up without delay, as the down grade thus given.-to the track made it difficult to check the speed of the car. If the cay was allowed to strike the head-block, the concussion tended to loosen the dogs in the caps, and it was part of the duty of the men to observe the dogs, and when they showed any sign of loosening,.to drive them in with a spike maul kept for the purpose. The settling of the outer trestle could not be observed from the main track, but the men engaged in dumping would at once detect it, by the more rapid movement of the car on that part of the track. They were required to exercise their own judgment as to pushing and stopping the car, so as to keep it under control, and avoid striking the head? block, or at least not to allow it to strike the head-block with such violence as tended to loosen the dogs. The standing order, well known to the men, and generally observed by them, was to raise-the track whenever they found it had settled, without waiting for any special direction from the foreman ; and if they disagreed as to the-necessity for raising it, any one of them could refer the question to the foreman for decision. Coal had been dumped in this manner,, on roads thus constructed, for upward of thirty years.</p> <p>Carroll had worked on these “ dumps ” for more than twenty-years, and Corbett for five or six years. Both were familiar with the duties required, the dangers to be avoided, and the manner of avoiding them. On the morning of the accident, eight cars were dumped, Carroll being employed on all, and Corbett on the last three. Carroll was at the middle of the car and Corbett at the forward end, on the same side. Several of the cars were run out at such speed as to strike the head-block with considerable force, and during this time the outer trestle settled. Before Corbett came, one of the men employed on the car warned Carroll and the others that the road was in a dangerous condition from the settling of the outer trestle. Corbett, after beginning work at the car, discovered the dangerous condition of the road, and spoke of it. No attention, however, was given to raising the track, or seeing that the dogs were securely in place; but the men proceeded with their work, Corbett cautioning his fellow blocker to put in his blocking stick in time on account of the danger. It does not clearly appear what effort was-made to check the last car as it was run out, but it was allowed te get beyond the control of the men, on the down grade caused by the settling of the outer trestle, and ran with great violence against the head-block. The concussion drew out the dogs that held one rail, and its projecting end went down from the weight of the car. The man at the rear of the car saw the danger, and jumped off in time to escape; but the inner end of the rail, swinging up, knocked off Carroll and Corbett, inflicting injuries that resulted in death.</p> <p>As Carroll’s duty was to help raise the doors, he was not provided with a stopping stick. Corbett, and the three other men at the ends, carried stopping sticks. Mrs. Corbett, on cross-examinaation, was asked the following, although not examined in chief upon the subject: “ Q. When your husband was brought home what, account did he give of the way he was hurt ? A. My husband said but a very few words. He was not very well able to speak, after he was brought home. Q. Hid he say anything about whether he put-in any blocking sticks ? A. He said he saw two blocking sticks in the car as he was lying in the coal.”</p> <p>Shelp, who was the boss in charge testified for the defendant, inter alia: “Q.. State whether you heard Corbett say anything-after he was hurt, in regard to whether he put in a stopping block?” Objected to. The Court: “ Q. How long was it after the accident, that you heard these declarations, if you heard any ? A. It was that evening. They were made after we got him up the coal pile, and they were made again at his house that evening. The Court: We will permit you to prove what declaration he made at the coal pile in reference to the accident.” Bill sealed for plaintiff. Mr. Wilson : “ Q. What did he say there at the coal pile ? A. He said at the coal pile £If we had put our sticks in that car, and held it, this would not have happened.’ The Court: Q. Were these declarations made there at the coal pile ? A. They were made in the shanty, in about 20 minutes after the accident.”</p> <p>Mrs. Corbett, being recalled, was asked the following question: [« Q. Did you have any conversation with your husband very soon after tbe accident happened, when he was brought home, about how it occurred, and if so what did he state with reference to the stopping sticks in the wheel?] [1] Mr. Wilson: Q. Fix the time. A. It was shortly after the accident happened. He told me — ” Objected to. Mr. Purdy: “ Q. How soon afterward, and where was it ? A. It was in my house. Q. How long after the accident ? ■Q. The same day. Immediately after he was laid in • the bed. Q. Soon after he was brought home? A. Yes, sir. The Court: I don’t think that you can introduce the declarations of your own party. I am not clear that we were right in permitting the defendant to introduce that evidence, and if they could not do it, of course the plaintiff cannot. But we confined the defendant to a time very close to the accident, considering those declarations made immediately in connection with, the accident a part of the res gesta.” Objection sustained, and bill sealed.</p> <p>The court charged the jury, inter alia, as follows:</p> <p>[“ Now, the manner of construction, which is complained of here, the manner of fastening these long rails to the trusses by dogs, was open and apparent and visible to any person employed upon these roads, and Luke Corbett and William Carroll must have known, from the time that they were employed upon that road, how these rails were fastened, and, frbm their experience upon that road, we think they must have so understood the security, or want of ■security of that construction, that they cannot now come into court and complain of that manner of construction; and by continuing in the employ of the company, and working upon that road, they must be held in law to have assumed that risk.] [2] . . . [We hold that the plaintiffs are precluded from recovering in this case by reason of the fact that this accident occurred while they were engaged upon a track which they themselves are shown to have known to be unusually dangerous. They incurred an unnecessary risk, and they did it, so far as we can see, voluntarily.] [3] . . . [We feel compelled to say that, under all of the evidence, your verdict must be for the defendant.”] [4]</p> <p>Other evidence is stated in the opinion of the court. Yerdicts and judgments for defendant.</p> <p>■ The assignments of error specified the action of the court, 1, ££ in sustaining the defendant’s objection to the question ” enclosed in brackets above, quoting it but not further quoting the bill of exceptions ; "2, 3, 4, in charging as above, quoting the portions as enclosed in brackets; 5, in not submitting the question of negligence; and, 6, contributory negligence.</p>

Appeal, No. 206, Jan. T. 1888, from a decree of the O. C. of Delaware Go., dismissing exceptions to the report of an auditor, distributing the proceeds of an orphans’ court sale of real estate to pay debts, at Sept. T. 1874. G-reen and Clark, JJ., absent.

Error, No. 50, Oct. T. 1888, to O. P. No. 2, Allegheny Co., to review a judgment in favor of the plaintiff on a bond and mortgage in an action of debt, at Oct T. 1886, No. 449. This action was brought in October, 1886, by Hugo E. Boehme, executor of Agatha Benz, deceased, against Philip Schultz, on a bond accompanying a mortgage for $1,500. The affidavit of claim alleged that the bond was unlawfully in the possession of the defendant.

<p>Error, No. 79, Oct. T. 1888, to O. P. No. 2, Allegheny Co., to review a judgment for want of a sufficient affidavit of defense on a scire facias sur mechanics’ lien by John W. Power and D. O. Bower, doing business as John "W. Bower & Co., against Charles Dudgeon, contractor, and ¥m. Marsh, owner, at Jan. ..T. 1888, No. 344.</p> <p>The claim filed was for “ a debt contracted for work done and material furnished ” at the instance of the contractor named; and referred to a bill of particulars annexed as “showing the nature, kind and amount of work done and material furnished and the time when the same was done,” The following is the bill of particulars filed:</p> <p>1887.</p> <p>Sept. 23, 2086 sqr. ft. Tin Hoofing on house, . . . $125.16</p> <p>7 3-in. ■ — .—■ Pipes, 12,.......84</p> <p>14-in......... .15</p> <p>Oct. 3, 4 ft. 4-in. Cond., 13,.....• . .52</p> <p>1 Shoe,.........35</p> <p>60 ft. 3-in. Cond., 10, ...... 6.00</p> <p>7 Shoes, 25,.......1.75</p> <p>1 Porch Hoof, 234 sq. ft., 62, .... 15.21</p> <p>$149.98</p> <p>Oct.' By cash (credit),.......47.78</p> <p>Balance due, . ......$102.20</p> <p>Interest from Oct. 3d, 1887.</p> <p>The defendant, Marsh, filed an affidavit o'f defense in which he averred that he never contracted with plaintiffs for the furnishing of materials, and had no knowledge that said materials had been furnished nor work done by plaintiffs until the lien upon which suit was brought had been filed, or at least until he had settled with his contractor. He further averred that he relied on notice from all persons furnishing materials in the construction of his house as required by the Act of June 17, 1887, and that no notice was given under the Act. The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>The assignments of error specified the action of the court, 1, in making absolute the rule; and, 2, in not discharging the rule.</p>

Error, No. 193, Oct. T. 1888, to C. P. No. 1, Allegheny Co., to review a judgment making absolute a rule to quash a scire facias sur mechanics lien by H. C. Gearing against John E. Hapgood, owner, and H. L. McLean, contractor, at March T. 1888, No. 344J. The facts sufficiently appear in the opinion of the court.

Error, No. 140, July T. 1887, to O. P. No. 4, Phila. Co., to review a judgment of compulsory nonsuit in an action for damages for death of plaintiff’s child, at March T. 1884, Plaintiff’s evidence was to the following effect: On Nov. 12, 1883, Charles Ogden, a boy about ten years of age, was seen walking down Front Street on his way to school at Second and Reed Streets, Reed Street being three squares below Washington Avenue, along which run the tracks of defendant company.

<p>Error, No. 115, Oct. T. 1888, to O. P. Butler Co., to review a judgment on a verdict for plaintiff in an action of debt, by David Gregg, -for use of Charles McCandless, against Samuel Allen, Henry Allen and Thomas Allen, at June T. 1888, No. 239.</p> <p>The facts are stated in the opinion of the supreme court.</p> <p>At the trial, before Hazen, P. J., the plaintiff offered in evidence a contract signed by Robert Allen, without date, agreeing to pay Gen. Eckley and Charles McCandless one-half the amount of the reduction of the mortgage of J. McCutcheon, for use v. Robert Allen, and judgment thereon, and $100 to each whether the mortgage should be reduced or not. Objected to, objection overruled and exception. [16.]</p> <p>The court also admitted in evidence, under objection by defendants, and exception, the assignment, dated Nov. 12, 1885, of Gen. Eckley to Charles McCandless, for his interest in the contract between McCandless, Eckley and Robert Allen. [17.]</p> <p>The court admitted, under objection by defendants, and exception, the exemplification from C. P. No. 2, Allegheny Co., No. 521, being the case of Chas. McCandless, Robert Allen and E. R. Eckley, for use of Chas. McCandless v. David Gregg. [18.]</p> <p>Robert Allen being on the stand, defendants asked the witness the following question: “ State whether or not, pursuant to the agreement entered into between yourself, on the one side, and Gen. Eckley and Charles McOandless, on the other, by which you were to pay them one-half the amount your mortgage should be reduced —state whether or not, in pursuance of that agreement, they ever succeeded in reducing the mortgage.” Objected to, objection sustained, and exception. [19.]</p> <p>Defendants next offered the assignment, dated Eeb. 22, 1884, of thé $3,000 interest which Robert Allen had in the judgment, to his sons, the defendants, for the purpose of showing that the defendants are the owners of the $3,000 of the judgment which was assigned to their father, and that, being the owners of it, they cannot in any way become liable to Gregg or anyone claiming under him. Objected to, objection sustained, and exception. [20.]</p> <p>Defendants proposed to prove by Robert Allen that the assignment of the $3,000 had no connection and was not made in pursuance of the agreement entered into between Charles McOandless and Eckley and himself, and that it was -a separate and distinct agreement, having no- connection whatever with the first agreement. Objected to, objection sustained and exception. [21.]</p> <p>Defendants also asked Robert Allen this question : “At the time this assignment was made, of the $3,000, on the day of the settlement here in Butler, state whether or not anything was said to you or in your presence, in the presence of Mr. Gregg and McOandless, as to who was the owner of the $3,000 assigned?” This, for the purpose of showing that the assignment was for the use of Robert Allen, himself, and not for the use of McOandless or Eckley, in whole or in part. Objected to, objection sustained and exception. [22.]</p> <p>Defendants proposed to prove by Henry Allen, that they did not receive notice of the pendency of the suit in Allegheny county against David Gregg, until the evening of January 11, 1887. This for the purpose of showing that they did not get notice until after judgment, or, at all events, until the same day on which judgment was taken in Allegheny county, and that they are not therefore concluded by the judgment and it cannot effect them, since they had no time to defend' against the action. Objected to, objection sustained and exception. [23.]</p> <p>The plaintiff submitted the following points:</p> <p>“ 1. The contract of Eckley & McOandless, with Allen, for fees, the assignment of Eckley to McOandless, the contract of Allen and Gregg, of Jan. 19, 1881, withdrawing the defense and settling the case and judgment thereon, embracing the usury, if it did, in said judgment, together with the assignment of $3,000 thereof, by Gregg, the same day, all being in writing, are to be construed by the court, and upon these McOandless was entitled to recover from Gregg in an action for that purpose. Ans. Affirmed.”. [1.]</p> <p>“2. The exemplification of Court No. 2, Allegheny Co., to No. 521, January term, 1887, in evidence, shows that in that suit McCandless recovered a judgment against Gregg for $2,173; and on the contract of assignment referred to in paragraph No. 1. And that Gregg paid the same before this suit was brought. Ans. Affirmed.” [2.]</p> <p>“ 3. By the terms of the contract between Gregg and the defendants, of Sept. 17, 1881, the defendants assumed and became thereby liable to pay to Gregg all he was liable for on the assignment of $3,000 to Charles McCandless, and it has been shown that Gregg paid McCandless $1,250 thereon. The defendants are bound in this suit to pay Gregg that sum, with interest thereon from the time he paid it, and this claim and his rights having been assigned to McCandless by Gregg, all of which is shown by writings in evidence, it is the duty of the court to construe these and not the jury. The plaintiff, prima facie, is entitled to recover a verdict in this action for the amount Gregg paid McCandless, to wit: $1,250, which is the amount Gregg was compelled to pay, and which the defendants assumed to pay Gregg. Ans. Affirmed.” [3.]</p> <p>“ 4. This is a suit to enforce the claim of Gregg against Henry Allen, Samuel Allen and Thomas Allen, by reason of their contract of Sept. 17, 1881, and that claim having been duly assigned in writing to McCandless, McCandless as the assignee is entitled to the same extent to recover herein that Gregg is or was. Ans. Affirmed.” [4.]</p> <p>“ 5. Under the evidence and pleadings, the plaintiff is entitled to a verdict of $1,250, with interest thereon from Jan. 11, 1887. Ans. Affirmed.” [5.]</p> <p>The defendants submitted these points:</p> <p>“ 1. If the jury find from the evidence that McCandless and Eckley, as attorneys for Eobert Allen, did not succeed in effecting any reduction of the mortgage of McCuteheon for use of Gregg v. Allen according to the terms of the contract entered into between them and him, then there can be no recovery by plaintiff in this action. Ans. This matter being wholly written is a matter of construction for the court.” [6.]</p> <p>“ 2. If the jury find from the evidence that the assignment of $3,000 of the judgment of McCuteheon, for use of Gregg v. Allen, to McCandless, attorney for Allen, on Jan. 19, 1881, had no relation whatever to the previous contract entered into between McCandless, Eckley and Allen, was not made in pursuance thereof, but -was wholly independent of it; and if the jury further find that said assignment of $3,000 of said judgment was for the use and benefit of Eobert Allen and was not, in whole or in part, for the individual use and benefit of McCandless or Eckley, then there can be no recovery by the plaintiff in this case. Ans. As in the former point, this is a matter entirely for the court, all the offers being in construing papers and the record,- — writings, in other words, offered.” [7.]</p> <p>“ 3. If the jury find from the evidence, or admissions of plaintiff in this case, that defendants did not have notice of the pend-ency of the suit of McCandless et al. v. Gregg, in C. P. No. 2, of Allegheny county, No. 521, of Jan. T. 1887, and did not have an opportunity to defend against said suit, defendants were not concluded by the judgment obtained against Gregg in said suit, nor by any of the proceedings therein, and are entitled to make the same defense in this action which they could have made had they been brought in on notice to defend against said suit in Allegheny county. Ans. We answer this by saying that, under the proofs that are in this case, even if they had been notified or had been present, it would have been of no benefit to them. The offers in regard to that, being in writing, are matters of construction for the court.” [8.]</p> <p>“ 4. The verdict of C. P., No. 521, Jan. T. 1887, O. P. No. 2, of Allegheny county, being without the knowledge or opportunity of defendants to appear and defend against the claim on which judgment was obtained, the said defendants are not concluded thereby, and, that being the only evidence, the verdict must be for the defendants. Ans. We refuse that. The construction again is for the court.” [9.]</p> <p>“ 5. If the jury find from the evidence that, by reason of Gregg failing to appear to the suit in Allegheny county to defend against the claim of McCandless therein; his permitting judgment to be taken therein by default; his failure to give notice to the defendants in this action of the pendency of said suit; Gregg’s immediate payment to McCandless of $1,250 and assignment to him of his,. Gregg’s, right of action against the Allens — that by reason of these facts and circumstances the proceedings and judgment in Allegheny county were collusive and fraudulent, then there can be no recovery in this action. Ans. That is refused. It is a matter of interpretation by the court.” [10.]</p> <p>The court charged, inter alia, as follows :</p> <p>[“Pending a trial before a jury, and it seems at the very term of court for which the case was on the trial list, and re'ady for trial, a settlement was made between Gregg, the assignee of the mortgage, and Robert Allen, the mortgagor, wherein Allen agreed to withdraw his objections to the sci. fa. on the mortgage and allow judgment to be entered thereon for the sum of $30,000, that being the amount of the mortgage and interest.] [12.] . . .</p> <p>[“And this suit is brought to recover the amount which Gregg would have a right to recover from defendants in pursuance of the agreement between him and the defendants at the time he sold to them and conveyed to them the land; and they agreed to pay the amount which he might or would have to pay to McCandless or to McCandless for himself and for Eckley.] [14.] . . . [Gentlemen, as we intimated before reading the points, that what remained was largely for the court. The question now for you to dispose of is simply, as we think, to take the basis, $1,250, and add the interest thereto to this date from the date of payment, and that would' be the measure of your verdict.”] [13.]</p> <p>Verdict and judgment for plaintiffs for $1,313.13.</p> <p>The assignments of error specified the action of the court, 1-5, in affirming plaintiff’s points, quoting them; 6-10, in refusing defendants’ points, quoting them; 11, in neither refusing nor affirming defendants’ 2d and 3d points ; 12-15, the portions of the charge in brackets, quoting them; and, 16-23, the rulings on the evidence, stating the substance, but not quoting the bill of exceptions.</p>

<p>An action of covenant by a committee of lien creditors appointed to carry on kaolin mines, in pursuance of an agreement under seal between the assignees for benefit of creditors and all the lien creditors but one, will not be defeated because one of the lien creditors signed with the parol stipulation that it should not become operative until it was signed by all the lien creditors, in the absence of notice of such stipulation on the part of the committee. Nor will the action be defeated by the fact that such parol stipulation was made in the presence of a lien creditor who afterward became one of the committee, such stipulation having been made in the course of the preliminary negotiations and before the delivery of the paper. The agreement contained a seal, opposite to which there was no signature, but the names of the lien creditors were not recited, and there was no contingency stated in the agreement to limit its operation.</p> <p>The liability of the lien creditors under the agreement, for the acts of their agents, decided in Bingaman v. Hickman, 115 Pa. 420, reaffirmed.</p>

Error, No. 210, Jan. T. 1888, to C. P. Chester ■Co. to review a judgment of nonsuit in an action of trespass on the case, by Mary Kennedy against the Pa. R. R. Co., for the death of her husband, at Aug. Term, 1886, No. 77. Clark and Green, •JJ., absent.

Appeal, No. 79, July T. 1888, from a decree of C. P. Lehigh Co., dismissing exceptions to a master’s report on a supplemental bill in equity, by Henry Fulmer against David Williams, at Jan. T. 1881, No. 1. Williams and McCollum, JJ., absent.

<p>Appeal, No. 75, July T. 1888, from a decree of O. P. Lackawanna Oo. discharging a rule to open a judgment wherein J. W. Hoysradt was plaintiff and Isaac B. Felts was defendant, at Oct. T. 1886, No. 250. Williams and McCollum, JJ., absent.</p> <p>The facts are stated in the following opinion of the court, by Connolly, J.:</p> <p>“ This case is before us on a rule to show cause why the judgment should not be opened and defendant let in to a defense.</p> <p>“ This judgment was entered on a bond dated June 9,1881, for the payment to the plaintiff of the just sum of $20,000, with lawful interest, said, principal sum being payable on the first day of June, 1886. This bond was entered to No. 250, October term, 1886, in the court of common pleas of Lackawanna county, on the 14th day of July, 1886, and a fi. fa. was issued thereon same day. August 20th of same year, this court granted a rule to show cause why the judgment should not be opened and defendant let into a defense. A voluminous amount of testimony was taken, both for and against this rule. We have gone over this vast amount of testimony with great care, in order to familiarize ourselves with all its details, and reconcile, if possible, its many contradictions.</p> <p>“We will first state the salient points of the testimony, as ■adduced on the part of the defendant, and then the testimony on behalf of the plaintiff.</p> <p>“ Isaac B. Felts, the defendant in this case, is the uncle of J. W. Hoysradt, the plaintiff. Mr. Felts, at the time this bond was given by him to Mr. Hoysradt, was the owner of a tract of coal land in the township of Lackawanna, county of Lackawanna, Pennsylvania. There was a number of liens against this land and among them a mortgage assigned to the Delaware, Lackawanna & Western Railroad Company (known throughout the testimony as bhe D. L. & W.) for the sum of $20,000. This mortgage was due, and the D. L. & W. were endeavoring to realize their money on it. On the 7th of June, 1881, the defendant went to Hudson, New York, the home of the plaintiff, with the intention, he says, of ■obtaining a loan with which to pay off this mortgage and other liens and claims against his real estate. There was nothing definite transacted on the 7th of June. On the morning of the 8th of June, they met again; and, subsequently, on the morning of the 9th of June, when a deed to Mr. Hoysradt for a one-half interest in this bract of land was given by Mr. Felts ; also a mortgage for $20,000, and a power of attorney to collect coal royalties.</p> <p>“ Mr. Felts, in his own behalf, swears that, when he arrived in Hudson on the 7th of June, 1881, he proceeded to the office of Mr. Hoysradt; that Mr. Hoysradt was busy, and no business of any importance was transacted that day; they met again on the morning of the 8th and engaged in conversation about the loan Mr. Felts desired. They were joined by Frank Hoysradt, a brother of the plaintiff, about this time, and Mr. Felts testifies he and Frank talked the matter over, and came to an agreement, viz: That J. W. Hoysradt was to take a deed, a bond and mortgage for $20,000, and furnish money enough to pay all Mr. Felts’s indebtedness and if they could get the Hunt lease in “ working operation ” Felts was to have a certain proportion of the royalties, about ten or fifteen per cent, to live on, and the balance should be applied on the bonds and mortgages ; and, when Mr. Hoysradt got his pay, the property should be reconveyed to Felts. This was a talk between Isaac Felts and Frank. Hoysradt, and Felts testifies that he supposes Frank Hoysradt told this to hís brother, J. W. Hoysradt, the plaintiff. (A portion of this land was laid out in town lots, and, in the deed and mortgage-, referred to, the surface of certain lots and blocks were to be reserved to Mr. Felts.) This, Mr. Felts says, was on the 8th of June, 1881,. between 8 and 11 o’clock a. m. After this talk between him and Frank, they went to the office where J. W. Hoysradt, the plaintiff, was, and, after they got there, Albert Hoysradt, a son of plaintiff,, and a man named Jordan, commenced to draw the papers and he supposed Frank Hoysradt directed the drawing of the papers.</p> <p>“ Mr. Felts further testifies that he was induced to go to Hudson on the 7th of June, 1881, through the representations of Frank Hoysradt, who told him the money was ready for him any time on four or five days’ notice, and that Frank Hoysradt had telegraphed him to come on, which he did. That when he arrived there Mr. Hoysradt wanted him to give him a deed for the entire property, which he refused and took his satchel and started for home, but was. induced by Frank Hoysradt to remain, which he did. That he at no time, during the transaction of that business, agreed to deed his. property to J. "W". Hoysradt except on condition that he was to have a reconveyance of the same as soon as the rents and royalties would pay the moneys advanced by Mr. Hoysradt.</p> <p>“Frank Hoysradt testifies, on behalf of the defendant, that he was the agent of his brother J. ~W. Hoysradt in this transaction;: that it was through him, or rather a telegram which his brother J. W. wrote and signed his name thereto, that Mr. Felts was-induced to come to Hudson and that he was to induce him to. sign these papers; that he was present at all conversations and furnished the data from which the scriveners made the deed, mortgage, bond' and power of attorney, and that for so doing he was to receive from his brother a one-twelfth or one-sixteenth interest in the property. He further testifies that Mr. Felts was so worked up about this-matter and in such a nervous condition that he was instructed by J. "W". Hoysradt to keep a close watch on Mr. Felts for fear he-would commit suicide. That after the papers were made out, Mr.. Felts refused to sign them and that it was only after he had assured 1dm that they were all right, and as they had agreed upon, that he finally did so.”</p> <p>The court then reviewed the testimony of J. W. Hoysradt, the plaintiff, denying the allegations of the defendant, that the conveyance was to secure a loan and that there was to be a reconveyance. Plaintiff’s testimony was further .to the effect that the transaction was consumated on June 9, 1881.</p> <p>The court then continued, reviewing the testimony of plaintiff: '“He also testifies that Frank Hoysradt was not his agent or confidant in this transaction; that he never consulted with him in reference to the matter, and that whatever interest, if any, Frank took in the matter, it was on his own motion and not his; that the telegram requesting Isaac Felts to come to Hudson was written to him but at the request of Frank; that he never promised or agreed to give Frank a twelfth or sixteenth interest or any other interest in this property and that Frank was not present at, nor did he hear, the negotiations between himself and Isaac Felts in reference to this property. That Mr. P. M. Jordan, one of the persons present and who drew some of these papers is dead. He died before the testimony in this case was taken.</p> <p>“ On behalf of the plaintiff, Judge John Cadman testifies that he was consulted by the plaintiff, J. w. Hoysradt, that he suggested the giving of a deed and bond and mortgage; that there was nothing ever mentioned by Mr. Felts or anyone else to him, that this was not an absolute and unconditional sale of a one-half interest in the property and a mortgage for $20,000. He also testifies that .Frank Hoysradt was not in his room .that day except when he witnessed the papers after they were made out and signed; that Frank heard none of the conversations nor did he have a word to say about the negotiations whatever.</p> <p>“Albert Hoysradt corroborates his father and Judge Cadman in every thing which they testify to, as having taken place when he was present. He also testifies that Frank Hoysradt was not present, .at any of the conferences; that he furnished no data from which lie, Judge Cadman, or Mr. Jordan drew any of the papers, and in many other respects flatly contradicts the testimony both of Frank Hoysradt and Isaac B. Felts.</p> <p>“ J. W. Hoysradt also testifies that, on Monday, the 13th day of June, 1881, he, Mr. Felts and Mr. Green having looked this property over on the Saturday previous, directed E. B. Sturges, Esq., his counsel, to make a deed to Mr. Felts for the surface of what is known in the testimony as the ‘ Gore ’ piece. While viewing this property on the 11th of June, Mr. Hoysradt states that Mr. Felts informed him that, on a knoll near the £ Gore ’ piece, stood his grandfather’s house, and that his (Felts’s) mother had planted some trees there and he would like some day to build a house on that site. Mr. Hoysradt said: £Yery well, I will deed it to you,’ and he instructed Mr. Sturges to make a deed to Mr. Felts for the surface .and the £ Gore ’ tract which was accordingly done on the 13th of June, 1881. It was at that time also discovered that the reservations in the deed, with reference to the house that Mr. Felts lived in, and the other house, that the houses only were reserved and not the land; this was also corrected and included in the deed from Mr. Hoysradt to Mr. Felts dated June 13th, 1881. In addition to this, Mr. Hoysradt testifies that, in September, 1881, Mr. Felts made an offer to him to purchase his interest in this property and pay him $60,000 for the same; which he declined. That on the first day of April, 1882, Mr. Felts called on him at his office, in Hudson, N. Y., and asked him to name a price he would sell his interest in this property for. Mr. Hoysradt states that he informed Mr. Felts that he did not care to do it; that then Mr. Felts wanted him to name a price he would give or take, which Mr. Hoysradt declined to do, but asked Mr. Felts to name a price he would give or take and he would consider it; that'Mr. Felts fiew into a passion and said he was going home and was to commence proceedings for a division of the property. That on the 14th of January, 1885, N. Taylor, Esq., attorney for Mr. Felts, made him an offer in behalf of Isaac Felts of $125,000 for his interest in this property which he also declined.</p> <p>“ Coupled with the offers made in this case, the foregoing is a resume of the main facts in this case as developed by the testimony. It is true a number of witnesses, besides those already referred to herein, were sworn, but their testimony is only important as to certain details, which are in many instances only slightly corroborative of the witness of the plaintiff and defendant. We do not consider this testimony of such vital importance to the disposition of this rule as to make a review of it necessary.</p> <p>“ The main features of the defense in this case, and the reasons upon which they rely to substantiate the rule in this case, are as follows:</p> <p>“1st. Whether the contract between Hoysradt and Felts was made on the 8th day of June, 1881, or not until the next day. We are emphatically of the opinion that the contract or agreement was not made until the 9th day of June, 1881; that, although the matter was talked of between the parties on the Ith and 8th days of.June, 1881, yet there was no final agreement or conclusion reached before the morning of June 9th, 1881, when the papers were signed, acknowledged and delivered to Albert Hoysradt to be held in escrow.</p> <p>“ 2d. Whether Frank Hoysradt was authorized to act for J. W. Hoysradt in making the arrangements with Isaac 33. Fe3ts.</p> <p>“ From the overwhelming testimony of J. W. Hoysradt, Judge Cadman and Albert Hoysradt, and the manner in which they contradict Frank Hoysradt, and from his own testimony, and the manner in which he acted, and also the reasons which he alleges prompted and actuated him in the parts which he alleges he figured so prominently in this transaction, we are disposed to place but very little credence in his testimony and find that he was not acting for J. W. Hoysradt in this transaction, and that the contract between Hoysradt and Felts was not made through him.</p> <p>“ 3d. Whether the contract made was for a loan and the securing of the same by pledges satisfactory to J. W. Hoysradt, or was it for an absolute transfer of any part of the property?</p> <p>“ From all the evidence in the case, we find that Isaac B. Felts made an absolute and unconditional deed for a one-half interest in this property to J. W. Hoysradt to the 9th day of June, 1881, for a consideration of $20,000, and a bond and mortgage on the remaining undivided one-half to secure Mr. Hoysradt for the sum of about $20,000, which Mr. Hoysradt agreed to advance for Mr. Felts to pay off certain liens, etc., which were against his property, one of which liens an execution had been issued upon and the real estate of the defendant was taken into execution and was advertised to be sold two days later than this contract or agreement, viz., June 11, 1881.</p> <p>“4th. Whether or not there was a conspiracy to defraud Felts?</p> <p>“ The only evidence in the case that in any manner tends to show a conspiracy, in our opinion, is the testimony of Frank Hoysradt. As we have previously stated, we place very little credence in the testimony of Frank Hoysradt, and from the manner in which his testimony has been contradicted, and his own admission as to the manner in which he acted in this whole transaction, we cannot find from the testimony that there was a conspiracy to defraud Isaac B. Felts.</p> <p>“We are asked by the defendant’s counsel to decide whether or not an Act approved the 8th day of June, 1881, P. L. 84, being ‘An Act relating to and defining defeasances in this Commonwealth,’ is invalid and inoperative, because it is in violation of the provisions contained in § 10, paragraph i, of the constitution of the United States, forbidding any state to pass a law impairing the obligation of contracts. This Act, as we construe it, does not impair the obligation of contracts; it simply provides that when such contracts are made after its passage, no defeasance to any deed for real estate, absolute upon its face, shall have the effect of reducing it to a mortgage, unless the defeasance is made at the time the deed is made, and in writing, signed, sealed, acknowledged and delivered by the grantee in the deed to the grantor, and is recorded, etc. How this impairs the obligation of a contract, we are at a loss to see; it simply provides that, after its passage, to reduce a deed for real estate, absolute upon its face, to a mortgage, certain formalities must be complied with. This, we believe, is in the power of the Legislature and in nowise conflicts with the provisions of the section of the constitution of the United States above referred to.</p> <p>“We do not contend, for an instant, that, prior to the passage of the Act, June 8, 1881, P. L. 84, such defeasible character in a conveyance could be shown by oral testimony. But we find that this deed was not only made but was delivered subsequent to the passage of that Act; therefore the rule laid down in Sweetzer’s Appeal, 71 Pa. 264, and in other cases, need not be followed.</p> <p>“ We have studied this case carefully, and have weighed the testimony adduced by the defendant and the plaintiff, and, after a careful consideration of the same, we find that there is a preponderance of testimony in favor of the plaintiff in this case. It is true there is a conflict in the testimony, but, viewing it ail together, and comparing the many contradictions, we repeat, there is a preponderance of the testimony in favor of the plaintiff.</p> <p>“And now, to wit, April 23d, 1888, the rule -to show cause why the judgment in this case should not be opened and defendant let into a defense is discharged.”</p> <p>The assignment of error specified the action of the court in refusing an issue and discharging the rule, to open the judgment.</p>

Error, No. 217, Jan. T. 1888, to review a judgment on a verdict for plaintiff in an action of trespass by Levi L. Fretz against Isaac II. Moyer et all, trustees of tlie Perkasie Mennonite Denomination, of llilltown Township, at Dec. T. 1886,-No. 18..

Appeal, No. 213, July T. 1888, from a decree of C. P. Lackawanna Co., discharging a rule to open a judgment, wherein James W. Coleman, to the use of Jane De Witt, executri of Ezra De Witt, deceased, was plaintiff and Selden J. Euple was defendant, at Nov. T. 1887, No. 88.' Williams and McCollum, JJ., absent..

Appeal, No. 383, Jan. T. 1888, from a decree of ,0. C. Schuylkill Co., dismissing .exceptions to an auditor’s report on the account of Solomon Yeich e.t ah, administrators of Joshua Bern-■heisel, deceased, who was administrator of .Isaac Bernheisel, deceased, at Jan. T. 1887. Sterrett and Mitoi-ibll, JJ., absent. . The following facts were found by the auditor, John W. Roséberry, Esq.: Isaac Bernhéisel died in October, 1885.

Appeal, No. 434, Jan. T. 1888, from C. P. Lebanon Co., to review a dócree sustaining exceptions by David C. Gingrich to an auditor’s report on the account of George Hoffman, trustee of Joseph Gingrich and wife.

Error, No. 41, Jan. T. 1889, to C. P. Chester Co., to review a judgment on a verdict for the plaintiff in a feigned issue in a sheriff’s interpleader, between M. Laura Lewis, as plaintiff, and-William Wayne, Jr., as defendant, at Oct. T. 1887, No. 47. Green and Clark, JJ., absent.

Error, No. 82, Jan. T. 1889, to C. P. No. 4, Phila. Co., to review a judgment of compulsory nonsuit in an action of trespass on tbe case by Henry J. Becker against tbe city of Philadelphia, at June T. 1887, No. 67.

<p>Appeal, No. 99, Jan. T. 1889, from a decree of ■C. P. Berks Co., dissolving a preliminary injunction granted on a bill in equity by A. F. Luburg against B. J. M. Miller et al., school directors, the School District of the Borough of Hamburg, Longlow & Bro. and Martin H. Motes, at Oct. T. 1888. Green and Clark, JJ., absent.</p> <p>The bill averred substantially as follows: 1. The plaintiff is a ■citizen and taxpayer of the school district of Hamburg. 2, 3. Bichard J. M. Miller and others, school directors of said district, have purchased a lot of ground for $2,500, with a view to erecting a schoolhouse thereon, which lot is low and damp. 4. The school directors have undertaken to make a contract with Longlow & Bro. and Martin H. Motes, for the erection of a schoolhouse on the lot at an aggregate cost of upward of $20,000, thus increasing the indebtedness of the district to that amount. 5. The amount to which the indebtedness was so increased exceeds two per centum upon the aggregate assessed valuation of taxable property in the school district, which aggregate valuation is $629,989. 6. The assent of the electors ■of the district to such increase of indebtedness was not previously secured at a public election, as provided by § 8 of article ix of the •constitution of Pennsylvania. 7. The contract is illegal and void, and, if permitted to be carried out, will oblige the plaintiff and •other property-owners to pay taxes which they ought not to pay, and will do them irreparable injury.</p> <p>The bill prayed the court to decree: 1. That the said contract is void. 2. That neither the said contract, nor the performance of work under it, will impose any obligation upon the district or the taxpayers thereof, to pay any monies. 3. “ That the defendants be restrained, preliminarily until hearing and perpetually thereafter, from proceeding further in the performance of any of the terms of the said alleged contract.” 4. General relief.</p> <p>The answer of the school directors admitted that the plaintiff is a citizen, taxpayer, and owner of real estate, and that the said parties are school directors. It denied that the lot is low and damp, and ••alleged that it is suitable for school purposes. It denied the making of a contract with Longlow & Bro. and Motes, but admitted the making of a contract with Longlow and Motes for the erection of a school house at a cost of $18,050, the contract being dated October 9, 1888, and that the said contract was made in pursuance of proposals invited by publication.</p> <p>The defendants, in their answer, further averred that “ they verily believe from information received, that said plaintiff had knowledge of the action of these defendants with reference to the •same, and that they were about to enter into said contract; and at no time made any protest against their proposed action, but'permit-Ted them to proceed with the same and incur habilities, and make ■expenditures for and on account of the same. We admit the facts relating to the contract for heating apparatus, and state that we have ■expended and paid, on account thereof, the sum of $225.</p> <p>“We admit that the aggregate assessed valuation of taxable property in the school district of the borough of Hamburg is $629,989, and that two per centum upon the same is $12,599.18. We deny, however, that our action, as set forth in paragraph 4 of plaintiff’s bill, will increase the indebtedness of the said school district, ‘ to an amount exceeding two per centum upon such assessed valuation of property,’ as is contemplated or provided in section 8 of article ix of the constitution of this commonwealth; or that it will at all, and to any amount, increase the debt of said school district, contrary to said provision of the constitution of this commonwealth ; the said school district having been duly authorized by ■decree of your Honorable Court theretofore, to wit: on the 18th day ■of August, 1888, to borrow the sum of $25,000 for the purpose of ■erecting a school house, a portion of which said sum it is proposed to ■expend and appropriate to the purposes as set forth in paragraph 4 ■of plaintiff’s bill, that being the purpose for which the said loan was authorized by your Honorable Court as aforesaid: they are advised, believe, and so state that they are duly authorized and empowered by law to appropriate and expend the same in performing the covenants of the contract set forth in paragraph 4 of plaintiff’s bill. Moreover, they say that they are authorized and empowered, by law, to levy, annually, a special tax not exceeding one per centum of the aggregate assessed valuation of taxable property in said school district, which will amount annually to the sum of $6,299.89 ; and that the school district aforesaid was indebted in the sum of $2,000, when your Honorable Court so authorized the defendants to make the loan as aforesaid ; and that the aggregate sum of said special tax, which the defendants are authorized and empowered to levy as aforesaid for two years, added to two per centum of the aggregate assessed valuation of taxable property in the said school district, will much exceed the sum contracted and agreed to be paid for the erection and completion of said school house; and they are advised, believe and so state, that, being so invested with the power and authority to levy and collect annually the special tax as aforesaid, which when levied and collected can lawfully be applied only to the purposes for and about which said contract was made and entered into, the said school district can lawfully provide the money to enable it to perform the covenants in said contract, without incurring or contracting a permanent indebtedness within the meaning of the constitutional provision limiting the power of school districts to contract debts, to wit: section 8, of article ix, of the constitution of this commonwealth; without this, that the defendants had not previously been authorized by decree of your Honorable Court, to borrow the sum of $25,000 for the piirposes hereinbefore stated.”</p> <p>They further admitted that the electors of the said district have not, at a public election, voted upon the question of increasing the-debt, but that a majority of ■ them signed the petition upon which the said court authorized the borrowing of $25,000 as aforesaid-Proper notice was given of their intention to present the said petition to court. Neither the plaintiff nor any elector or taxpayer-made any objection to the said application for leave to borrow, and thereby consented thereto.</p> <p>The answer further averred that the plaintiff well knew that the-loan of $25,000 was authorized, and that defendants were expending such money in payment of bonds previously issued for the-purchase of land, and suffered them to enter into said contract, and pennitted them to proceed with the performance thereof and incur liabilities on account of the same, whereby the plaintiff is equitably estopped from questioning the right of the defendants to perform, the said contract.</p> <p>They denied that the contract is void, and will oblige taxpayers-to pay taxes which they ought not to pay, and that it will do them irreparable injury, and this for the reasons stated in the previous-portion of the answer.</p> <p>Longlow and Motes also filed answers. No replication was-filed.</p> <p>The court, áfter hearing, dissolved the preliminary injunction,, in the following opinion, by Ermentrout, J.:</p> <p>“ The answer filed is sufficiently responsive to the plaintiff’s bill, and, in view of the statements therein set forth, we do not think the constitutional prohibition of § 8, of article ix, is applicable to this case.</p> <p>“ The school district of the borough of Hamburg is not seeking a new loan, nor incurring a new debt, nor increasing its indebtedness. The loan has already been made in accordance with the order of the court of August 18, 1888. Although this loan was made contrary to the provisions of said section 8, it does not follow that the holders of the securities are prejudiced, or that the school district may not expend in a lawful way the proceeds of the loan then obtained. No question of validity of the securities in the hands of innocent holders for value is raised by the record. The answer denies the incurring of the new debt or the making of a new loan.</p> <p>“ The building of school houses and their location are peculiarly within the discretion oí the board of directors of the school district. We see nothing unlawful in the contracts made, nor is any abuse of official discretion alleged. In pursuance of the terms of the contract, the contractors have already begun operations and incurred great expense. We see no ground for equitable interference. We therefore dissolve the injunction, for the following reasons :</p> <p>“1. No new debt is created. The school district may, for lawful purposes, expend the loan made.</p> <p>“ When a contract made by a municipal corporation pertains to its ordinary expenses, and is, together with other like expenses, within the limit of its current revenues, and such special taxes as it may legally and in good faith intend to levy therefor, such contract •does not constitute the incurring of an indebtedness within the meaning of the constitutional provision. If contracts and engagements of municipal corporations do not overreach their current revenues, no objection can be lawfully made to them, however great the indebtedness of such municipality may be, for in such case their ■engagements do not extend beyond their present means of payment, .ana so no debt is created. Appeal of City of Erie, 91 Pa. 398; Lehigh Coal and Navigation Co.’s Appeal, 112 Pa. 368.</p> <p>“ 2. Under the facts in the answer, the plaintiff is estopped from alleging the constitutionality of the proceedings in question. That a citizen may waive his constitutional rights and be estopped from asserting them is quite plain. Among the cases directly upon this point are: Bidwell v. City of Pittsburgh, 85 Pa. 414; McKnight v. City of Pittsburgh, 91 Pa. 275; 2 Herman on Estoppel, §§ 733, 1063, 1221; 2 Pomeroy’s Eq. Jur., §§ 818 and 819.</p> <p>“And now, to wit, November 8, 1888, this cause came on further to be heard, upon answer filed, and motion to dissolve the injunction upon the filing of the answer, whereupon it is ordered, .adjudged, and decreed that the injunction be dissolved.”</p> <p>The assignments of error specified the action of the court, 1, in refusing to award a preliminary injunction, until hearing, as prayed for, quoting the 3d prayer of the bill; 2, in not continuing the preliminary injunction until final hearing; and, 3, in dissolving the preliminary injunction.</p>

<p>A railroad company has no authority, under the right of eminent domain, to take and occupy the unopened portion of a street, without first making or securing compensation to the owners of the land on which the street is located, as required by article xvi, \ 8, of the constitution.</p> <p>The facts that the street has been located on the city plan with the view of being fully opened in the future, and that councils have given their assent by ordinance, and that the railroad company had given bond to indemnify the city against ali damages to property holders abutting on said street, will not dispense with this constitutional requirement.</p> <p>A railroad company will be restrained by injunction from taking and occupying the premises in such case.</p> <p>Not decided whether the railroad company had authority to construct a siding in this case.</p>

<p>In an action of trespass vi et armis, it appeared that the defendants tore down a brick wall of a building of plaintiffs, which was then occupied by plaintiffs as a dwelling, the wall being upon plaintiffs’ land but bulging out a few inches at the top over defendants’ land; and that defendants then built a new wall, being one side of a stable, entirely upon their own land, and, in its construction, used the bricks of the plaintiffs’ wall. One of the defendants testified that he had obtained permission from the wife of one of the plaintiffs, she being also an aunt of the other plaintiffs, who were minors without a guardian, to tear down the wall and remove the bricks, and that she had represented herself as one of the owners and as having entire charge of the property. This testimony was denied and the plaintiffs testified that no permission had been given by the owners to remove the wall and that the wall was in good condition and not dangerous, as alleged by the defendants. The court refused to charge that the plaintiffs could not recover exemplary damages ; also refused to charge that the consent of one of the plaintiffs would prevent a recovery; or that the dangerous condition of the wall would excuse the trespass. The jury rendered a verdict for plaintiffs for $325. Held, that the verdict was not excessive, and that the judgment should be affirmed.</p> <p>The following qualified affirmance of a point of plaintiffs, in above case, is no cause for reversal: “The defendants, having admittedly taken bricks contained in the wall of the plaintiffs, and having failed to offer any evidence that the taking was with the consent of any or all of the plaintiffs, or any one lawfully delegated so to act, such damage must be allowed plaintiffs as will compensate them for such unlawful taking.” Answer: “Affirmed, if you find that no consent was given for the appropriation and use by defendants of the brick taken.”</p>

Error, No. 82, July T. 1887, toO. P. Delaware ■Co., to review an order making absolute a rule to strike off a judgment in an amicable action in ejectment, entered on a warrant contained in a lease, by Eobert E. Patterson, William Hayward Dray-ton, and Heñry P. Smith, Executors of Eobert E. Patterson, deceased, trading as E. Patterson & Co., against L. H. Pyle, at .June T. 1887, No. 60. McCollum and Mitchell, JJ., absent.

Appeal, No. 364, Jan. T. 1889, from C. P. Bradford Co., to review a judgment for plaintiffs on a case stated in the nature of a bill and… Held: and an application was duly made by said defendant to the board of commissioners of Bradford county to strike off said assessment, which said application was heard by said board of commissioners, April 18, 1888, and refused. “ 3d. There was levied by the proper authorities for the year 1888, a county tax of three mills ; a poor tax…

<p>Error, No. 127, Oct. T. 1888, to O. P. No. 2 Allegheny Co., to review a judgment on a verdict for plaintiff, in an action of trespass on the case, bjr Eliza Buschner, widow, and Anna Bose and Maggie Buschner, minor children of John Gr. Buschner, deceased, against Henry Elkin and A. A. Elkin, his wife, to recover damages for the death of John Gr. Buschner, at April T. 1887, No. 422.</p> <p>The action is stated to be case, but the narr. is not printed in the paper-books.</p> <p>The facts appear in the following charge of the court, by White, J.:</p> <p>u The action is based mainly upon the Act of 1854, which is not a special law relating to Allegheny county, but is a law of the whole state of Pennsylvania, ‘wilfully furnishing intoxicating drinks, by sale, gift or otherwise, to any person of known intemperate habits, to a minor, or to an insane person, for use as a beverage, shall be held a misdemeanorand the statute provides that the person may be indicted in the criminal court and punished in that way. It also provides the ‘ wilful furnishing of intoxicating drinks as a beverage to any person when drunk or intoxicated shall be deemed a misdemeanor ’ and punishable also by indictment in the criminal court. Then, there is another section of the statute: ‘ Any person furnishing intoxicating drinks to any other person, in violation of any existing law, or the provisions of this Act, shall be held civilly responsible for any injury to person or property in consequence of such furnishing; and anyone aggrieved may recover full damages against such person so furnishing, by action on the case, instituted in any court having jurisdiction of such form of action.’ . . .</p> <p>“ To enable the plaintiff to recover in this case, the jury must be satisfied of two things: first, that the deceased was a man of known intemperate habits when the defendant sold him the glass of beer, or that he was intoxicated at the time; and, secondly, that, the beer or liquor he sold him was the cause of his death. You will observe that there are two features in this case. One is the selling to a man of known intemperate habits, although not under the influence of liquor at the time it was sold to him. If he was. known to be a man of that kind, the penalty is imposed by law upon the man selling him one glass of anything, or, if he is not known to be such a man, if he is drunk or intoxicated at the time the liquor was sold to him.</p> <p>“ Now, what do we mean by a man being drunk or intoxicated ? We often have very contradictory testimony on that subject. One man will say a person was drunk at the time of a certain occurrence. Another will say that he was not drunk; that he was sober. A great deal of such testimony can be explained by the different ideas those persons have as to what is meant by drunkenness or intoxication. There are degrees of intoxication or drunkenness, as everyone knows. A man is said to be dead drunk when he is perfectly unconscious, powerless. He is said to be stupidly drunk when a kind of stupor comes over him. He is said to be staggering drunk when he staggers in walking. He is said to be foolishly drunk when he acts the fool. All these are cases of drunkenness, of different degrees of drunkenness. So it is a very common thing to say a man is badly intoxicated, and again that he is slightly intoxicated. There are degrees of drunkenness, and, therefore, many persons may say that a man was not intoxicated, because he could walk straight; he could get in and out of a wagon.</p> <p>“ What is meant, gentlemen of the jury, by the words in the statute which makes it a penal offence, and also the party liable in a civil action for damages for giving liquor to a man that is ‘ drunk or intoxicated; ’ because both words are used in the statute ? And also, ‘ selling to a man of known intemperate habits ?’</p> <p>[“ Whenever a man is under the influence of liquor so as not to-be entirely at himself, he is intoxicated; although he can walk straight, although he may attend to his business and may not give any outward and visible signs to the casual observer that he is drunk,] [1] yet if he is under the influence of liquor so as not to be at himself, so as to be excited from it and not to possess that clearness of intellect and that control of himself that he otherwise would have, he is intoxicated. A man who is in the habit of getting drunk now and then, or getting under the influence of liquor every once in a while is a man of intemperate habits. In this case, it is admitted by the defendant that he sold the deceased a glass of beer. He says only one glass; and that the man took only two or three sips from it and set it down ; that he went away then and could not-tell whether he afterward drank the whole of it or not.</p> <p>“Now the question is, first, was Gottlieb Buschner a man of intemperate habits, and did the defendant know that fact ? Though he may not have been drunk at the time, yet if the defendant knew that he was a man of intemperate habits, it was unlawful for him to sell him one glass of beer. [To know of a man’s intemperate habits, it is not necessary to see him drunk and know to an absolute certainty by personal knowledge that such are his habits ; nor is it-necessary that the defendant should have had written notice, or even verbal notice served upon him, telling him that this man was of intemperate habits.] [2] [It is not necessary that he should know of his own personal knowledge, by seeing him, or otherwise, that he was a man of intemperate habits. If that was his reputation in the neighborhood where he lived, and if the defendant knew that such was his reputation, that would be sufficient.”] [3]</p> <p>“Now, you will understand that there are two branches of this question : first, selling to a man of known intemperate habits who was perfectly sober at the time the liquor was sold; or, selling to a man who was intoxicated at the time. There are those two phases of the case.</p> <p>“'Now, take the second : Was he intoxicated at the time the defendant sold him the glass of beer? That depends very largely on what the defendant and his witnesses may consider to be intoxication, if you believe the witnesses on the part of the plaintiff. You have the testimony of several witnesses that they saw him only a short time before he entered the defendant’s saloon, and they testify that he was intoxicated. Mr. Diamond, I believe it was, who sold him the door, tells you of his conduct, and tells you how foolishly he acted, and that he was very much intoxicated at the time, and went right from his shop iip toward the defendant’s saloon; and, from the other testimony, he very shortly entered the defendant’s saloon. Then you may take the testimony of the witnesses who were there. 1 think they are Jack, Bullcey, Bright, Hoteling and Dell. All of those saw him in the saloon. One man says that he took, he thinks, three or four drinks there, although he thinks that Buschner only took one, and that he was sober. All the others testified that they did not see anything wrong with him; thought he was sober. What do they mean by being sober ? Was he perceptibly and visibly under the influence of liquor at the time? Take the testimony of ’Squire Hoteling, the justice of the peace who went in there and had a conversation with him there. He says he was very much excited and was talking about some man, and the ’Squire says he could not say whether the excitement was from that, or from liquor,-but he was very much excited and was crying. Another witness speaks about him counting out money and dropping some. Take what occurred there and the conversations there during fifteen or twenty minutes or so that he was in the house. The facts as to his conduct there are probably entitled to more consideration than the mere opinion of the witnesses. Then, from all the testimony in the case, you must decide whether the defendant was intoxicated when he went in there, or, secondly, whether he was a man of known intemperate habits and the defendant knew that fact; because, in either case, he committed an unlawful act in selling him one glass of beer. On these points, you will take into consideration all the testimony. T have not referred to all of it, but I believe there is only one witness that testifies that the deceased had a good reputation for temperance or sobriety. Quite a number testified the opposite, especially Hr. Grier, who says that for the last year he was almost continually intoxicated; called him a sot; hardly ever saw him but what he was under the influence of liquor.</p> <p>“ If you find, then, that the defendant did unlawfully sell him a glass of beer — I mean either that he knew that he was a man of intemperate habits, or that he was drunk, under the influence of liquor, at the time, then you pass to the other question : [Was the act of the defendant the cause of his death? It was not the immediate cause; falling from the wagon into the' street was the immediate cause of his death; and the defendant sold him but one glass of beer and he did not drink more than half of that; it is hardly likely that made him drunk. If he was intoxicated when he came into the defendant’s saloon, it is very fair to assume that the additional amount he drank in there would increase his intoxication.] [4]</p> <p>[“ It is said that he went into another saloon after that. I believe there is no evidence that he drank any in that saloon. Hr. Bright said that he went in and the deceased asked him to drink, and that he drank his, but he did not say that Buschner drank his. He may have said that he drank a portion of it — perhaps that is so. That was after he was in the defendant’s saloon.] [5]</p> <p>“ Now this question is raised: Was his drunkenness the cause of his death? He did not die of drunkenness; he did not die of the drink, but from the fall out of his wagon. Would he have come to that end if he had not been under the influence of liquor ? If he was so much under the influence of liquor, whether very badly drunk or not, if he was so much under the influence of liquor as not to have control of himself, and not to have that intellectual perception that he would otherwise have had, and, in consequence of that, tumbled out of the wagon, then the drink, or intoxication, would be the proximate cause of his.death.</p> <p>“ Then the next question is: Was the one glass of beer furnished by the defendant the cause of his death? We cannot say that, but if he came to his death in consequence of his being drunk, every one that assisted in making him drunk, or continuing his drunkenness, is responsible. You cannot divide it. A man goes around among a half a dozen different saloons and gets drink, and, finally, in consequence of that drink, gets killed. Yon could not sue the various saloon men and portion out the damages among them, but every one that commits an unlawful act that contributes to a disaster is responsible for the full amount of damages. If half a dozen men are engaged in perpetrating an unlawful act, in the way of destruction of property, one man may do very little, the others may destroy it, but every one engaged in it is responsible for it all. So that, if the defendant only furnished the deceased one glass of beer, and the man got killed in consequence of his drunkenness, and that glass of beer contributed to the drunkenness and contributed to his death, then the defendant is responsible. . . .”</p> <p>Yerdictand judgment for plaintiffs for $1000, Dec. 10, 1887.</p> <p>On a motion for a new trial, Dec. 14, 1887, the following alleged after discovered evidence was offered by defendants: John G. Buschner, on the 18th day of October, 1886, while driving along Railroad avenue from Hulton, at or near the residence of H. S. Paul in the borough of Yerona, struck his horses a smart "blow with his whip, thereby making the horses suddenly spring forward; as they did so the wagon struck a deep rut or ditch in the road, and the said Buschner accidentally fell out and broke his neck. This evidence came to the knowledge of said defendants on Monday, Dec. 12, 1887.</p> <p>The court refused a new trial.</p> <p> “Assignment of errors: </p> <p>“As a whole the charge of the court was calculated to mislead the jury.</p> <p>“ The court erred in its charge as follows, viz: [quoting the portions of the charge in brackets, as paragraphs lst-5th.]</p> <p>“ The court erred in refusing a new trial on after-discovered evidence that would probably have produced a different verdict.”</p>

Appeal and certiorari, No. 68 Oct. T. 1888, to Q. S. Allegheny Co., to review an order of the court confirming the report of viewers, laying out a public road, at Dec. Sessions, 1886, No. 9.

Error, No. 88, July T. 1888, to C. P. Northampton Oo., to review a judgment on a verdict in an action on the case for personal injuries by Francis Martins against John Stephens et al., trading as Stephens, Jackson & Co., at Dec. T. 1886, No. 39. Paxson, C. J., and Green, J., absent. Martins was a workman in a section of a slate quarry operated by Lobb & Co. His duty was to split up the slate after it was taken out of the quarry.

Error, No. 279, Jan. T. 1887, to C. P. Northampton Co., to review a judgment on a verdict for plaintiff: in an action on the case for libei by Jacob Metzgar against D. J. Godshalk et ah, proprietors of the “Bethlehem Daily Times,” at Feb. T. 1884, No. 26. Sterrett and Green, JJ., absent. On Jan. 3, 1884, the “Bethlehem Daily Times” published the following item: “An important case before Justice Anstett.

<p>A testator, by his %vill, directed his executors to pay to his three married sisters “ each the sum of ¡¡>30,000, to be paid to them, however, without interest and in such installments and at such times as my executors may deem proper in their discretion, so as not to impair my investments or cause loss or injury to my estate." The testator directed that a legacy of ¡¡>30,000 should be paid to an unmarried sister from the income of his estate. He also directed that a mortgage of ¡¡>50,000 should be paid, as speedily as possible, out of the income, of his estate. Held that the executors were bound to pay the legacies to the married sisters, within a reasonable time, out of the corpus of the estate, and, if necessary, to convert into money so much of the assets of the estate as should be required to pay such legacies.</p>

Error, No. 168, Jan. T. 1887, to C. P. Erie Co., to review a judgment for the plaintiff in an issue directed by the court, on an appeal from an award of viewers assessing damages for land taken by defendant company, for a right of way, at Sept. T. 1881, No. 156. Trunkey, J., absent. In 1881 the defendant Railroad Company located its road over and through the plaintiff’s farm.

<p>Error, No. 54 Jan. T. 1889, to O. P. Wayne Co., to review an order making absolute a rule on defendants to show cause why a rule of reference in a sheriff’s interpleader should not be stricken off, at March T. 1888, No. 4. Williams and McCollum, JJ., absent.</p> <p>The following facts appeared from the record: On Dee. 23, 1887, a feigned issue was directed on a sheriff’s interpleader to determine the ownership of certain goods levied upon. Dec. 28, narr filed. May 28, 1888, rule of reference entered. June 2,1888, arbitrators chosen, the plaintiff not appearing and the prothonotary acting for him, as required by the Act. June 4,1888, on motion of plaintiff’s attorney. A rule was granted on defendants to show cause why the rule of reference entered in the case, and the arbitrators chosen under the same, should not be stricken off, at cost of defendants.</p> <p>The rule was made absolute in the following opinion by Seely, P. J.:</p> <p>“ The single question presented is, whether an issue directed under § 9 of the Act of April 10, 1848, sheriff’s interpleader, is subject to the provisions of the compulsory arbitration Act.</p> <p>“ The proceeding is wholly for the benefit of the sheriff. Bain v. Funk, 61 Pa. 187; Lazelere v. Haubert, 109 Pa. 518; Maurer v. Sheafer, 116 Pa. 343.</p> <p>“ So far as tbe issue is concerned, it is immaterial -whether or not the claimant files a bond and receives possession of the goods. If he does file such a bond and receive the goods, his possession does not withdraw the goods from the custody of the law, nor relieve them from the effect of the levy. Bain v. Lyle, 68 Pa. 63. If no such bond is filed, the goods remain in the hands of the sheriff. The issue remains the same and proceeds to its determination in the same manner.</p> <p>“It is an issue directed for the trial of a question of fact, whether the claimant is the owner of the goods levied upon or any portion of them. This fact ascertained does not constitute a complete basis for the entry of judgment, but presents to the court a basis for direction to the sheriff with reference to further [action] upon his writ.</p> <p>“ The Act of Assembly prescribes that the costs of all such proceedings shall be in the discretion of the court. The order directing the issue expressly reserves £ the question of costs and all further questions ’ until after the trial of the issue. The order of the court contemplates that the issue shall be submitted to a jury, and, to secure its prompt determination, directs £that it be placed at the head of the list for the first jury term thereafter.’ If a rule-of reference may be taken out by either party, in such a case, the order of the court placing the issue at the head of the list for the next jury term may, of course, be annulled by either party, and, as the purpose of the proceeding is to relieve the sheriff, it would seem clear that the parties should not possess such power. But, aside from this, the whole proceeding is so clearly outside of the scope and spirit of the arbitration Act that we think it does not come within its operation. See Taggart v. Fox, 1 Grant, 192.</p> <p>“We do not perceive how an issue granted by the court, for the determination of a question of fact simply, can be subject to the arbitration Act. See Hoffman v. Walborn, 1 Pearson, 18.</p> <p>“ What shall be done with the award when rendered ?</p> <p>“The 39th section of the Act of June 16, 1836, expressly excepts from the operation of the Act ‘ issues directed to any court to ascertain a -fact or facts.’</p> <p>“We think it is immaterial whether the words of the excepting section apply to the case or not. No exception was necessary. While the term £ civil suit or action ’ in the 8th section of the Act of June 16, 1836, is very £ broad and general,’ as was said in Taggart v. Fox, supra, we think it does not cover all possible issues; an issue directed by a chancellor, for the information of his conscience, for instance.</p> <p>“ Whether we say, as was said in Taggart v. Fox, that the issue in the present case is excluded from the operation of the Act of June 16, 1836, because it is not within the spirit; or say that this issue is not a £ civil suit or action ’ within the meaning of those words as used in the Act of 1836, we are clear in our opinion that the rule of reference cannót be sustained.</p> <p>“Now, July 5th, 1888, the rule is made absolute.”</p> <p>The assignments of error specified the action of the court in striking off the rule of reference entered by the defendants.</p>

<p>Appeal, No. 56, July T. 1888, by Geo. W. Sprenlde et al., residuary legatees of David Sprenlde deceased, to review a decree of O. O. York Co., dismissing exceptions to an auditor’s report, at June T. 1887.</p> <p>Tbe following facts appeared from the report of the auditor, J. B. Strawbridge, Esq.:</p> <p>David Sprenlde died, testate, March 12, 1886, and letters of administration c. t. a. were granted to his son George W. Sprenkle. The will of the decedent, dated Sept. 24, 1885, contained, inter alia, the following clause: “ Secondly. I give, devise and bequeath unto my housekeeper, Lydia Landis, the sum of one thousand dollars and two beds and bedding complete of her own choice.” At the audit of the administrator’s account, Lydia Landis appeared and claimed for services, as housekeeper for decedent, $60, being $5 a month from April 1, 1885, to April 1, 1886. It was not denied that the services were rendered. The residuary legatees claimed that the legacy of $1000 given to Lydia Landis was adeemed by reason of a conveyance made to her on the day of the testator’s death. The auditor reported, inter alia, as follows:</p> <p>“A rule has prevailed that wherever a person by his will gives a legacy equal to or greater in amount than the debt he owes to the legatee, such legacy shall be a satisfaction of the debt upon the presumption that a man must be intended just before he is bountiful, and that his intent is to pay a debt and not to give a legacy.</p> <p>“A legacy to a creditor which is equal to or greater than his debt-, and which is not contingent or uncertain, is presumed to be a satisfaction of the debt. Wesco’s Appeal, 52 Pa. 195, and Horner’s Executor v. McGaughy, 62 Pa. 189.</p> <p>“ Especially is this the case where the interests of third parties would be affected, if it were not allowed to apply. As, in the will of testator, there are residuary legatees whose interests should be guarded, your auditor conceives it to be proper for him to find that Lydia Landis is not entitled to what David Sprenkle, the testator, owed her at the date of the will, to wit, $30.00, and tliis portion of her claim will not be allowed her in the schedule of distribution.</p> <p>“It cannot, however, be pretended that Mrs. Landis is not entitled to wages of labor that accrued subsequently to the date of the will, for how can it be pretended that a testator meant to pay by a legacy a debt which did not exist at the time of making his will ? This is in accordance with sound reasoning and such a conclusion is not without authority and precedent. Cranmer’s Case, 2 Salk. 508; Thomas v. Bennett, 2 P. Wms. 342; and Fowler v. Fowler, 3 P. Wms. 354. On April 1, 1886, there were six months’ wages, or the sum of $30.00, due Mrs. Landis. This sum is hereinafter accordingly awarded to her with interest thereon from April 1, 1886, the whole award in this behalf being $33.20.</p> <p>“It was, as before alluded to, likewise contended, before your auditor, by the accountant and other legatees, that the legacy of $1000.00 to Lydia Landis was adeemed in law because the testator on the day of his death bought from Iienry Hoke a house and lot of ground in the city of York for the sum of $2750.00 and caused the title to the same to be made to Mrs. Landis. The deed was offered in evidence and bears date the 12th day of March, 1886. Henry Hoke and wife are the grantors and Lydia Landis, the claimant, is the grantee. The deed is recorded in York county. The consideration in the deed is $2750.00 which was paid by David Sprenkle, the testator — $50.00 being paid on the day of the conveyance by the testator and the remainder, $2700.00, secured at the time by testator’s note and subsequently paid by the accountant as one of the debts of the testator.</p> <p>“The counsel for the accountant and legatees, Mrs. Landis excepted, argued ably and at considerable length to the effect that because the testator had, after the date of his will, purchased a house and lot for Mrs. Landis, that this worked an ademption of her legacy of $1000.00. The question of the ademption of a legacy is one upon which there have been many apparently diverse decisions in the courts of England and America during the last century. But a careful examination of them reveals carefully drawn lines upon which they are severally founded. It seems to be well settled that the ademption of a legacy is presumed when the legacy and the advancement are ejusdem generis, and the legacy not contingent nor uncertain as to the time of payment, and when the testator stands in loco parentis to the legatee. It appears that all these requisites should exist.</p> <p>“ Was David Sprenkle in loco parentis to Lydia Landis ? Your auditor thinks not. He was simply her uncle by marriage and was no blood relation. Nor is Mrs. Landis a young person. She is a widow and at least forty years of age. So nothing can be presumed on account of youth or tender years. One stands in relation of -parent to another when he is bound, to maintain that person by a natural or other contract. A person may adopt a child and thus become in loco parentis to the child. And one can place himself in that position by language in his will by which he may take upon himself the obligation of the relation; and when that intention does not appear on the face of the will, it seems that it is not allowed to offer parol evidence to raise the presumption; although, if the presumption is deducible from the face of the will, parol evidence should be received to confirm or rebut the presumption.</p> <p>“ This is about as far as the statute of frauds will permit us to go, since it is a first principle of law that a will cannot be explained by anything but itself.</p> <p>“A legacy to a stranger judicially imports mere bounty and the nature of a bequest cannot be changed by its conversion into a portion through the medium of parol evidence directly and in the first place applied to the motive for making the bequest. Roper on Legacies, 3d ed., *393, *396. Even had it been admissible, no testimony was Íiven to show that it was the testator’s intent that the legacy to Mrs. andis should be considered a portion.</p> <p>“In Wetherby v. Dixon, 19 Ves. 405, the Master of the Rolls said: ‘ It is admitted that generally a man is entitled to the benefits of as many gifts as another may see proper to bestow upon him. And I know of no general rule that the second must be understood to be a substitution for the former one and not an addition to it. But it has been reasonably enough presumed that a man does not mean to pay the same debt twice, and judges in equity have been in the habit of giving the name of debt to a portion given by a father to a child and thus a presumption has been raised against the intention of the father to give two portions. But to bring a case within that rule, the donor must be a parent or a person in loco parentis and the first gift must be in the nature of a portion to answer the description of a debt which is to be satisfied by the subsequent provision.’</p> <p>“ In instances where the bequest is general and made by a stranger or other person than a parent -not having placed himself in loco parentis and no intention legally appears that the subsequent advancement was made with a view to adeem the legacy, such advancement will not have that effect; for, since there is no such obligation upon the testator to provide for the legatee as subsists between the parent and child, no inference arises that he intended by a subsequent gift or advancement to perform any such duty in praesenti which he had provided for by the will. . . . Natural children are in the same situation, for the law does not acknowledge their relation as the children of their putative father, a situation which in this instance places them in a better condition than legitimate children, since a mere advancement to them will not prima facie be an ademption of a legacy to them by their father. 1 Roper, *382; Powys v. Mansfield, 6 Sim. 528. But, as above stated, David Sprenkle did not stand in loco parentis to Mrs. Landis. He was not her father. He was not her putative father even. She was not his adopted child. He was not her guardian. No declarations of his were offered to show that he intended to assume the relation of parent, and certainly the language of the will does not allow us to assume that he considered himself as occupying that relation. All the circumstances taken in the aggregate do not amount to a moral certainty that the testator considered himself as the father of Mrs. Landis, and as meaning to discharge the duties and fulfill the natural obligation of a parent to provide for a child. So far was the testator from seeming to want it understood that he considered himself in loco parentis to Mrs. Landis that he made her his hired housekeeper. He paid her $5.00 a month for her services rendered in that capacity.</p> <p>“In his will he says £I give, devise, and bequeath unto my housekeeper, Lydia Landis, the sum of one thousand dollars.5 Certainly it cannot be reasonably inferred from this language that the testator meant to assume the obligation of a parent to provide for a child in the person of Mrs. Landis. Henry Hoke, the grantor in the deed, testified that, on the day the deed in question was made to Lydia Landis and after the execution and delivery of the same took place, all of which occurred at testator’s house and in his presence, he, Ilenry Iioke, said to Mr. Sprenkle: ‘ David, I guess now we are all done.’ Then he, Sprenkle, put up his hand and said': ‘ O Henry, we are not done yet; I want a paper drawn up that she shall stay with me as long as I live, if she don’t die before me.’ She said: £ He needn’t fear for that. I will stay at any rate; we don’t know what will turn up.’</p> <p>“"William T. Williams, Esq., the scrivener, testified that, at testator’s house on the day of his death at the time the.deed was executed, he said to the testator: £ To whom is this deed to be made ?’ He told me : £ To my housekeeper, Mrs. Landis.’ Then' I asked him for the full name of Mrs. Landis and he gave me £ Lydia L.’ Justice Williams also corroborated Henry Hoke in the latter’s testimony as to the request of the testator that a paper should be drawn up that Mrs. Landis was to stay with him as long as he lived. This paper, however, was not drawn up for lack of time and that night David Sprenkle died.</p> <p>“Now, the learned counsel for the accountant and' legatees argued that because the legacy was given to Lydia Landis, ‘ the housekeeper,’ and the deed directed to be made to Lydia Landis, £ the housekeeper,’ that there existed a unity of purpose in the mind of the testator for the two acts, and that, therefore, the legacy had been adeemed. But to the mind of your auditor this is a strained presumption, the word £ housekeeper ’ seeming to be nothing more than a word used to designate the legatee in the one instance and the grantee in the other.</p> <p>“ He used the word housekeeper merely to point out distinctively the particular person upon whom he intended to bestow his bounty. And it must be borne in mind that neither in his will nor at the time the deed was made, did he say that in the one case he gave the legacy and in the other, the house and lot, to Lydia Landis ‘ for keeping house for himnor did he even say in either case that he gave the legacy and paid for the house and lot for Mrs. Landis £ because she was liis housekeeper.’ Had the testator even expressed such a purpose for the two acts, should it not have been shown by parol that he intended to substitute the gift of the house and lot for the legacy ? It seems to your auditor that if anything is especially to be presumed and gathered from the language of the testator at the time of the conveyance by Hoke and wife to Mrs. Landis, in addition to designating the person to whom the deed should be made, it is that the testator meant the house and lot to be a payment of future services to be rendered him by Mrs. Landis as housekeeper. This would seem to have been his thought and intention and doubtless occasioned the request that a paper be drawn up that sli'e was to remain with him as long as he lived. Not a word was even said that indicated the testator’s intention thus to wipe out his indebtedness to her for past services.</p> <p>“ His mind evidently was that she, now having a house of her own, might betake herself to it and dwell there. He, therefore, wanted a paper prepared by which she would oblige herself to remain with him and not go to housekeeping on her own account and under her own roof.</p> <p>"Nor was anything at the time of the conveyance said about the legacy to Mrs. Landis. No reference seems to have been had to it; and so far as the testimony in this audit goes, the testator in no way sought to couple the legacy and the gift of the house and lot by a unity of purpose for the two acts.</p> <p>“ Your auditor is of the opinion that the legacy of $1000.00 to Lydia Landis is not adeemed by the purchase for her by the testator of the house and lot not only because the testator did not stand in loco parentis to her, and also because no unity of purpose was shown for the two acts, but also for the additional reason that the house and lot are not ejusdem generis with the pecuniary legacy. Vide 1 Roper, *261, *380, *384; Dugan v. Hollis, 4 Md. Ch. 139; Swoope’s Appeal, 27 Pa. 58, and Monestier’s Estate, 14 W. N. C. 392.</p> <p>££ Lydia' Landis is a mere legatee, and it was never contended that a subsequent provision for a legatee does of itself operate as an ademption of the legacy. Wetherby v. Dixon, 19 Ves. 405, supra.</p> <p>" Your auditor, holding the views above set forth, feels constrained to award to Lydia Landis, in the schedule of distribution, her legacy of $1000.00, less collateral inheritance tax, with interest from March 12, 1887.”</p> <p>The auditor accordingly awarded the amounts allowed above to Mrs. Landis; the rest to the legatees. The whole estate distributed amounted to some $7000. His entire estate, both real and personal, amounted to some $16,000.</p> <p>The legatees filed the following exceptions:</p> <p>“1. The auditor erred in holding that parol evidence was inadmissible to raise the presumption that the testator stood in loco parentis to Lydia Landis unless the intention to stand in that relation appeared on the face of the will; and in holding that no evidence was adduced to show such intention; and that the relationship did not exist.”</p> <p>“ 2. The auditor erred in holding that the testator by paying the $2750.00 for Lydia Landis, ‘he meant it to be a payment of future services to be rendered him by Mrs. Landis as housekeeper and that such payment was not ejusdem generis with the pecuniary legacy.”</p> <p>“ 3. The auditor emed in entirely ignoring and disregarding the question of undue influence and fraud committed by Lydia Landis upon the testator in the purchase of the $2750.00 property, whereby a legal and equitable set off and defence was created against both the legacy and claim for wages.”</p> <p>“ 4. The auditor erred in awarding to Lydia Landis $33.20 for wages.”</p> <p>“ 5. The auditor erred in awarding to Lydia Landis $1007.00 in payment of her pecuniary legacy.”</p> <p>“ 6. The auditor erred in awarding to William Thompson, Register, $50.00 for collateral inheritance tax on said legacy.”</p> <p>The following exceptions were filed on behalf of Lydia Landis:</p> <p>“ 1. The auditor erred in not awarding to Lydia Landis the full amount of her wages.</p> <p>“ 2. The auditor erred in finding that the amount of Lydia Landis’s wages due at the time of making the will was paid and discharged by the legacy bequeathed to her.”</p> <p>The exceptions were disposed of by the court in the following opinion by Latimer, J.:</p> <p>“ The auditor was right in deciding that the legacy was not adeemed, for several reasons: The gift was not ejusdem generis with the legacy. There was no unity or identity of purpose revealed. There was no evidence from which the auditor could possibly have found an intention on the part of testator to put himself in loco parentis to the legatee. No declarations of the testator,.contemporaneous with or prior to the gift, indicating any intention that the gift should be in place of the legacy, were proven nor any facts indicating such intention.</p> <p>“ The residuary legatees contend that the gift of the house and lotto Mrs. Landis were procured by her by fraud and by undue influence exerted by her on the donor, that thereby the money thus procured by her to be paid for this property for her use, became an indebtedness by her to the estate which the administrator c. t. a. might recover in an action for money paid, laid out and expended for her use, and that this indebtedness is an equitable set-off to her claim in this distribution for her legacy and the wages due her.</p> <p>“This branch of the case was but meagerly presented at the argument and none of the authorities cited sustain the position taken, or bear any resemblance to this case. In fact, no case of undue influence as affecting the validity of a gift inter vivos was cited at all, and no authority produced bearing on that subject.</p> <p>“ In Hoghton v. Hoghton, 15 Beav. 278, cited with approbation in Miskey’s Appeal, 107 Pa. 631, it is said that ‘ whenever one person obtains, by voluntary donation, a large pecuniary benefit, from another, the burden of proving that the transaction is righteous, falls on the person taking the benefit. But this proof is given if it be shown that the donor knew and understood what it was that he was doing. If, however, besides obtaining the benefit of the voluntary gift from the donor, the donor and donee were so situated toward each other that undue influence might have been exercised by the donee over the donor, then a new consideration is added and the question is not whether the donor knew what he was doing, but how this intention was produced; and, though the-donor was well aware of what he did, yet if his disposition to do so was produced by undue influence, the transaction would be set aside. In many cases the court, from the relation between the parties to the transaction, infers the probability of such undue influence having been exerted.’</p> <p>To the same effect are ‘Worrall’s Appeal, 110 Pa. 349; Greenfield’s Estate, 14 Pa. 489 ; Darlington’s Appeal, 86 Pa. 518.</p> <p>“ The rule thus laid down applies especially when the relation of parent and child, guardian and ward, attorney and client, or husband and wife, exists between the donor and donee. But it applies equally when the facts show the existence of powerful influence and control on the part of the donee over the donor growing out of any other relation in life. See Huguenin v. Basely, 3 Leading Cases in Equity, 94, and especially the American Notes, page 124 et seq.</p> <p>“ Mrs. Landis was the housekeeper of Mr. Sprenkle. She had lived with him in that capacity eleven years, ana, according to the testimony of Dr. Both, she exercised considerable influence over him. The situation and circumstances of their relation were of a character to lead naturally to the possession of great influence by her in his enfeebled condition and weakened intellect — though Dr. Both testifies that he was not at all incapacitated mentally for the transaction of business. In any proceeding in which the fairness and freedom from undue influence of the gift made by him to her were open to attack, the burden of sustaining the gift would be on her.</p> <p>“Assuming that the gift can be attacked in this proceeding in the manner in which the attack has been attempted before the auditor and this court, how does the case stand on the evidence. Mrs. Landis claiming against a dead man’s estate was not a competent witness to testify in her own behalf as to any fact occurring in the donor’s lifetime. Act May 23, 1887, § 5, pi. (e), Purd. Dig. 2199. But she was called by the other side as under cross-examination and was thus made a fully competent, though not necessarily a credible, witness. She denies any knowledge, prior to the delivery of the deed, that the purchase of the house and lot was for her, and positively denies that she used any influence whatever to procure the gift, though admitting that Mr. Sprenkle had talked to her of his intended purchase. So far she is not contradicted. The testimony of Hoke the vendor shows that Mr. Sprenkle had negotiated himself for the purchase, and that of Williams shows that Sprenkle had directed the deed to be made to her, while the evidence of neither shows any agency or influence on her part in the matter. She is not materially contradicted in any part of her testimony — the alleged contradictions being in matters of little importance. No actual fraud committed by her in the matter is alleged or proven. On this evidence, meager as it is, but probably all that could be adduced, the auditor would not have been justified in finding that the gift was procured by undue influence.</p> <p>“ This view of the case renders it unnecessary to decide what would be the result, as affecting this distribution, if the evidence showed that the gift was improperly procured.</p> <p>“ But the auditor erred in finding that the legacy was a payment of the amount due her for wages at the date of the will. Horner v. McGaughy, 62 Pa. 189.</p> <p>“ The exceptions filed on behalf of Mrs. Lydia Landis are sustained. The exceptions on behalf of the residuary legatees must be dismissed.</p> <p>“And now, to wit, April 17, 1888, it is decreed that the sum of $33.20 be awarded to Mrs. Lydia Landis m addition to the amounts awarded to her by the auditor’s report and that sum be deducted pro rata from amounts awarded to the residuary legatees, and with this amendment the auditor’s report of distribution is confirmed.”</p> <p>The assignments of error specified the action of the court, 1-6, in dismissing the exceptions of the residuary legatees; and, 7 and 8, in sustaining those of Lydia Landis.</p>

<p>Appeal, No. 13, May T. 1888, by C. R. Lindsey et ah, collateral heirs, from the O. O. of Dauphin Co., to review a decree dismissing exceptions to the report of an auditor on the distribution of the balance in the hands of the executrix of Helen Jackson, deceased.</p> <p>The facts were found as follows by the auditor, Elias Hollinger, Esq.:</p> <p>“Aside from several small bills, about which there is no dispute, presented on behalf of creditors, a claim is presented by William S. Black and his wife, Margery A. Black, the latter a sister of decedent and the executrix under the last will and testament of decedent. This claim is made for services rendered said decedent in her lifetime, in the way of boarding, nursing and attendance during a long illness, and is opposed by brothers of decedent, who, under the laws of the commonwealth, would, with Mrs. Black, their sister, receive whatever is left after the debts and liabilities of the decedent and the collateral tax of the commonwealth were paid.</p> <p>“ This claim, which William S. Black makes upon this fund, is founded upon the following facts as they appear from the evidence:</p> <p>“Helen L. Jackson came to Harrisburg from Philadelphia on the 1st of November, 1882, to live with Mr. Black and his family, which consisted of Mr. and Mrs. Black and four children, two boys and two girls, the oldest of the children, a daughter, was then nearly 16 years of age; the other daughter is the youngest of the children. Mrs. Jackson remained with the Blacks, upon this occasion, until the 15th of April, 1883, when she went back to Philadelphia. She returned to the Blacks’ again on the 1st of April, 1884, where, with the exception of seven weeks in November and December of that year, she remained until the 12th of February, 1886, when she died. During the first period mentioned, from 1882 to 1883, consisting of twenty-three weeks, she, Mrs. Jackson, had heart trouble, and had Dr. Pitcairn attending her. During about half of this time she was quite helpless. She had to be fed, her meals had to be carried to her room, she could not speak above a whisper, she could not get up off her bed alone and at times could not even sit up in bed to eat her meals. Mrs. Black did her washing and ironing. Her room was cleaned every morning by reason of scales which were continually falling from her skin, which, over a large part of her body, had an eczemous eruption. In addition to shedding these scales, matter would ooze from the surface of the skin.</p> <p>“During the second period mentioned, from 1884 to 1886, consisting of eighty-nine weeks, this eczemous condition of the skin continued and her disease, which was an obstruction of the mitral valve, heart disease, was chronic and progressive and she was liable at any time to pass away. During this period, her condition was such, generally, that she was unable to lift a cup to her mouth, unable to get up out of the chair without assistance, or lie down in bed when she was propped up. She was, in the language of her physician, ‘ bedfast and chairfast.’</p> <p>“ [The only exception to this general condition was when temporarily her heart trouble was calmed by digitalis or some other remedy, when she could, without assistance, go down stairs and occasionally take a little walk outside the door.] [2]</p> <p>“Mrs. Jackson required at this time a nurse to help her on and off the stool (she did not visit the yard); she needed help to have her hands washed and her face washed; the eczemous eruption of her skin had to be covered with salve, and she required such other attentions as a patient with a helpless body and almost entirely helpless limbs would require. She was able to use her hands and arms for such things as writing and crocheting, but could not use her hands for any purpose which would require her to raise her hands above her shoulders. During all of the year 1885, and until her death, this woman could wear no shoes on account of her dropsical condition and the consequent swelling of her feet and lower limbs. This woman was well and carefully nursed, attended, washed and kept clean by Mrs. Black and her family during the entire time that she lived at their house.</p> <p>“ On the 31st day of March, 1884, the day prior to her coming to Harrisburg to make her home with her sister, Mrs. Jackson made her last will and testament, in which, after making several small bequests to nephews and nieces, she provided as follows: ‘All the rest and residue of my personal estate in money, not herein before disposed of, I give and bequeath unto my sister, Margery A. Black, the said personal estate in money to the use and benefit of her and her heirs absolutely.’ She also appointed her said sister the executrix of her said will.</p> <p>“ Prior to September, 1885, Mrs. Jackson’s estate consisted of personal property, and at said latter date she invested her money in real estate, of which, afterward, on the date mentioned, she died seized; to purchase this real estate and in part consideration of the purchase money, she gave the grantor of the said real estate a mortgage for $1,000.</p> <p>“ Mrs. Jackson told a witness, prior to her coming to live with the Blacks, that she was going to live with Mrs. Black and what little she left she would like Mrs. Black to have.</p> <p>“ She said afterward in the presence of Mr. and Mrs. Black: ‘ Madge and Will, I haven’t any money to pay you now, but you are to be paid for all this work.’ She made similar remarks at other and subsequent times while these services before described were being rendered.</p> <p>“ To a number of other witnesses at different times, and not in the presence of any of the Black family, she expressed regret that she required so much attention from the Blacks, but stated that she expected what she had left, after she was dead and gone, would go to Mrs. Black.</p> <p>“ It is argued, on behalf of Margery A. Black, that these repeated expressions lead to the conclusion that an express contract must have been entered into between Mrs. Jackson and the Blacks, whereby they were to have all that was left of Mrs. Jackson’s property after her decease — and that your auditor should so find. On authority of Miller’s Appeal, 13 W. N. O. 233, such a conclusion, in the opinion of the auditor, can not be drawn from the evidence. [These repeated expressions of Mrs. Jackson made to the witnesses, not in the presence of the Blacks, rather indicated that she believed her will to provide that Mrs. Black should have her property after her (Mrs. Jackson’s) decease, not understanding, or over-looking, the fact that a change of her property from personalty to realty would affect, materially, the .provisions of her will in that regard.] [3]</p> <p>“ The evidence does not disclose, as the auditor remembers, that the Blacks knew anything of a will prior to Mrs. Jackson’s death, nor does it appear that they knew anything of what Mrs. Jackson said to other persons in regard to her intention that Mrs. Black should have all that was left after the death of her sister. "What they did know was what Mrs. Jackson had said to them, to wit: that they were to be paid for all this work.</p> <p>“ [There was, therefore, under the evidence, a promise to pay, which the law says, in the absence of any other agreement, shall be determined as to amount by the value of the services rendered.] [4]</p> <p>“Upon this subject of the value of services there were two classes of witnesses offered and heard before the auditor.</p> <p>“ The one class of witnesses was made up of professional nurses, who were asked to state, upon the presentation to them of a hypothetical case, what nursing in such a case as stated to them would be worth. There was considerable difference of opinion between counsel as to the hypothetical case fairly representing the case in hand. While, therefore, the evidence of that class of witnesses, so far as they gave any light on the subject, did not materially differ, so far as a comparison could be made with the evidence of the witnesses of the second class, to wit: the attending physician and other physicians who knew the case, and neighbors who frequently visited either the decedent or the Black family. The auditor relied upon the testimony mainly of the second class of witnesses to assist him in coming to a conclusion upon the value of the services rendered.</p> <p>“During the last thirteen months of her life, while her dropsical condition, in addition to her other troubles, continued, it seems that Mrs. Jackson was, generally speaking, more helpless and a greater care than prior to that time, therefore, for that period, under the evidence, the auditor would suggest $4 a day for nursing and washing as fair compensation. For the remaining part of the occasion of her last stay with the Blacks, to wit, from April 1, 1884, until her visit to Philadelphia, $3 a day is in accord with the evidence upon that point, as well as $3 a day during the time of her first stay, to wit: the twenty-three weeks in 1882, 1883. The witnesses who testified upon this point, distinguished between nursing and washing on the one hand, and boarding and lodging on the other, and for the item of boarding and lodging the auditor concluded to suggest the sum of $10 a month as reasonable compensation, considering the latter item in connection with the item of nursing as before indicated. These suggestions lead to the following allowance indicated by the auditor, viz :</p> <p>13 months (390 days) nursing, etc., @ $4 . $1,560.00</p> <p>7 months and 20 days (230 days) nursing, @ $3 690.00</p> <p>23 weeks (161 days) nursing, @ $3 483.00</p> <p>26 months, boarding and lodging @ $10 . ' . 260.00</p> <p>“ Total......■ . $2,993.00 ”</p> <p>After deducting costs of audit and preferred' claims, the auditor awarded the balance, $2,450.47, to Mrs. Black.</p> <p>To this report, the. brothers of Mrs. Jackson filed the following exceptions:</p> <p>“ 1. The 'statement of the finding of facts is partial, one-sided and unsupported by the testimony of claimant’s witnesses, and is unfair to the case of exceptants in that the auditor gives no weight to the uncontradicted testimony of witnesses as to the physical condition of decedent during the time for which services are claimed. Further, he disregards entirely the testimony of the agreement, made about August 25, 1885, between decedent and claimant, as to the manner in which compensation for services rendered decedent by the claimant were to be paid!</p> <p>“2. The finding of facts [in brackets, 2, quoting them] not only contradicts the testimony, but is unsupported by any testimony in the case.”</p> <p>“ 3. The auditor erred as follows: [quoting the language in brackets, 3]. This is a mere supposition of the auditor. The legal conclusions from these repeated expressions of Mrs. Jackson, is that Mrs. Black performed all the services claimed for in expectation of a legacy, or in expectation of the devise to her (Mrs. Black) of the estate of Mrs. Jackson after her (Mrs. Jackson’s) death, and being disappointed, she cannot recover by a claim against this estate in this manner.”</p> <p>“4. The auditor erred as follows: [quoting the language in brackets, 4].”</p> <p>“ 5. The auditor erred in awarding to W. S. Black the balance of the fund, $2450.47.”</p> <p>The court filed the following opinion, by Simonton, P. J.:</p> <p>“Assuming the facts to be as found by the auditor, it is impossible that the amount of compensation allowed by him can have been earned.</p> <p>“It is not a question of the value, of the services of a trained nurse,'for no such services were rendered. There is no claim that anything approaching to the exclusive services of any one were rendered during much, if any, of the period for which compensation is demanded. Yet the auditor has awarded an average of about one hundred dollars per month for the whole period for the nursing and attendance given to the decedent by her sister, Mrs. Black, and, to some extent, we presume, by the daughter of the latter, who, much of the time, was attending school; and this, while all the work of the household was performed by its members, no hired help having been employed. From this last fact it is manifest that, in addition to the fact that whatever services were rendered were not those of a professional nurse, they cannot, in the nature of the case, have been constant. There are, therefore, two reasons why the wages of a professional cannot be allowed.</p> <p>“ It is quite possible that defendant intended to leave the mass of her estate to her sister, and that she would have been the most worthy object of decedent’s bounty, but she did not do so, and we have no authority to do it in her stead. And we are unable to conceive of any employment, open to them, in which Mrs. Black and her daughter, by their united services exclusively rendered, could have earned one hundred dollars per month.</p> <p>[“ We think we are going to the utmost verge of our sound discretion when we determine that no more than an average of twelve dollars per week, for the whole time found by the auditor, can be allowed, and the report and account is recommitted to the auditor for correction and redistribution accordingly.”] [1.]</p> <p>The auditor made a redistribution, saying, inter alia, as follows:</p> <p>[“ That upon calculations made in obedience to the opinion, as tiled by the court, he finds W. S. Black to be entitled, instead of the amount in his former report awarded for nursing, the sum of $1,338.85, wdiich, with the item for boarding and lodging (which the auditor understands not to have been disturbed by the court) of $260.00, makes the sum of $1,598.85.”] [2]</p> <p>The auditor changed the decree in accordance with this reduction and the court subsequently confirmed the same.</p> <p>C. B>. Lindsay, R. A. Lindsay and J. M. Lindsay, brothers of Helen Jackson, deceased, thereupon took this appeal.</p> <p>The assignments of error specified the action of the court, 1, in that part of the opinion embraced in brackets; 2, in confirming the finding of the auditor in the redistribution embraced in brackets; 3, in confirming the distribution of the auditor awarding to W. S. Black $1598.85; and, 4, in confirming absolutely the report of the auditor and his redistribution.</p>

Error, No. 413, Jan. T. 1888, to C. P. Northumberland Co., to review a judgment on a verdict in favor of the plaintiffs on an appeal from a justice of the peace at Eeb. T. 1888, No. 15. Trunkey, J., absent. This case arose on an appeal by J. E. Eichholtz and D. L. Sollenberger, trading as J. E. Eichholtz & Co., from the judgment of a justice of the peace in favor of E. W. Greenough and George B. Penn, defendants.

Appeal, No. 23, May T. 1887, from a decree of the O. 0; Franklin Co., dismissing exceptions to the report of an auditor appointed to distribute the proceeds of sale of the real estate of Elizabeth Skinner, deceased. Trunkey, J., absent. The auditor, W. II. Brewer, Esq., reported the facts substantially as appears by the opinion of the court below. Exceptions were filed to his findings of facts and conclusions of law.

Error, No. 186, Jan. T. 1889, to C. P. Lackawanna Co., to review a judgment on a verdict for plaintiff on a sheriff’s interpleader, wherein Ellen O’Donnell was plaintiff and T. B. Treusdell & Co. were defendants, to determine the ownership of personal property levied upon as the property of plaintiff’s husband, at March T. 1888, No. 301. Williams and McCollum, JJ., absent.

Error, No. 4, May T. 1888, to C. P. Dauphin Co., to review a judgment on a special verdict in an action of quo warranto, at April T. 1886, No. 630. Trunkey, J., absent. This was a proceeding on behalf of the Commonwealth, at the suggestion of the Attorney General, to enforce an alleged forfeiture of the rights and franchises of the Towanda Water Works. The substance of the pleadings is stated in the opinion of the court below.

Appeal, No. 299, Jan. T. 1888, from O. C. Fayette Co., to review a decree dismissing exceptions to an auditor’s report on the account of Smith Buttermore, guardian of S. W. Baer, a minor, at March T. 1884, No. 44. Gordon, O. J., and Trunkby, J., absent.

Error, No. 230, Jan. T. 1888, to C. P. Schuylkill Co., to review a judgment on a verdict for defendant in an action on the case by Patrick Lafferty and Margaret, his wife, in right of said wife, against the Borough of Girardville, at Nov. T. 1883, No. 317. Sterrett and Mitchell, JJ., absent.

Error, No. 259, Jan. T. 1889, to O. P. Sullivan Co., to review a judgment on a verdict for plaintiff in an action of replevin to recover damages for bark removed from trees by Catharine H. Stroup against Jonathan Gr. Phillips, at Sept, T. 1886, No. 28. McCollum and Mitchell, JJ., absent. The facts concerning the title of the defendant, Jonathan Gr. Phillips, as against the plaintiff’s vendor, are stated in Phillips v. Swank, 120 Pa. Y6, and Swank v. Phillips, 113 Pa. 482.

Appeal, No. 340, Jan. T. 1889, of B. F. Paist and Edward Paist, to review a decree of O. C. Chester Co., dismissing their exceptions to the report of auditor, appointed to distribute the balance appearing by the account of the executors of Phineas Paist, deceased. Green and Clark, JJ., absent. The facts as found by the auditor, Wm.

Appeal, No. 168, July T. 1888, from a decree of O. O. Montgomery Co., dismissing exceptions by Albert Geiger, surviving executor of Samuel Geiger, deceased, to the report of an auditor on exceptions to the executor’s account, at Oct. T. 1887.

Error, No. 399, Jan. T. 1888, to C. P. No. 3, Pliila. Co., to review a judgment on a verdict for plaintiffs, in an action on the ease, by Erancis F. Biddle and wife, for damages for the death of the minor son of the plaintiffs, through the alleged negligence of. the defendant railroad, at Sept. T. 1883, No. 405. This case was tried before, a compulsory non-suit entered, and the case reversed by the supreme court. See 112 Pa. 551.

Error, No. 80, July T. 1888, to C. P. Bradford Go., to review a judgment on a verdict for defendant in an action of assumpsit by John B. Ball, executor of Nathaniel Davidson, against Sally Davidson, administratrix of Douglass Davidson, at Sept. T. 1881, No. 210. McCollum and Mitchell, JJ., absent. This action was brought June 8,1881.

Appeal, No. 303, Jan. T. 1888, of Henry A. Scholl from a decree of O. C. Lycoming Co., dismissing his exceptions to the report of an auditor appointed to distribute the estate of Caroline P. Scholl, the proceeds of the sale of real estate, in the hands of Henry A. Scholl, her administrator, and to ascertain the interest of Henry A. Scholl in said real estate. McCollum and Mitchell, JJ., absent.

Error, No. 303, Jan. T. 1889, to C. P. Berks Co., to review a judgment on a verdict -for defendant in an action on the case by Susanna Buchert against the Borough of Boyertown, at Aug. T. 1881, No. 90. Paxson, C. J., and Sterrett, J., absent. The facts are stated in the charge of the court, infra, by Hagenman, P. J. . . On the cross-examination of the plaintiff, the defendant proposed to show the location and conformation of the ground before the injured building was put up.

Error, No. 365, Jan. T. 1889, to C. P. Bradford Co., to review the action of the court in making absolute a rule to strike off a case from the trial list, being an action of debt by Cornelius Hunsicker against J. S. Williston, at Dec. T: 1861, No. 657. Williams and McCollum, JJ., absent. From the record, it appeared that the action was begun in 1861.. On Sept. 1, 1862, the defendant filed an affidavit of defense.

Appeal, No. 41, Oct. T. 1888, from O. P. No. 2, Allegheny Co., to review a decree awarding a preliminary injunction on a bill in equity, by H. E. Safford against William McCallin, mayor, J. O. Brown, chief of department of public safety, E. M. Bigelow, chief of department of public works, R. C. Elliott, chief of department of public charity, constituting the department of awards of the city of Pittsburgh, to restrain the defendants from entering into any contract, on behalf…

Appeal, No. 76, Jan. T. 1889, of Noah Geisinger, et al., residuary legatees, from a decree of O. P. Northampton Co., dismissing their exceptions to an auditor’s report, distributing the estate of Frederick Mesner, deceased. Green and Clark, JJ., absent. H. J. Steele, Esq., appointed auditor to distribute, found, inter alia, the following facts: Frederick Mesner died in 1886, leaving a will, the material parts of wrhich are as follows: “ Item.

Error, No. 51, July T. 1888, to O. P. York Co., to review a judgment on a verdict for plaintiff in an action of assumpsit by Thaddeus A. Blake, administrator of Elizabeth Baber, against Jesse S. Stambaugh, to recover the amount of a policy of insurance paid to the defendant, at Aug. T. 1887, No. 92. Trunkey and Sterrett, JJ., absent.

Error, No. 281, Jan. T. 1888, to C. P. Lackawanna ■Co., to review a judgment on a verdict for plaintiff in an action of debt on a policy of life insurance, on the life of Patrick Gannon, deceased, by Thomas Riel and Mary, his wife, in right of said wife, against the Home Mutual Life Association of Pennsylvania, at Oct. T. 1886, No. 529. Williams and McCollum, JJ., absent.

<p>Error, No. 417, Jan. T. 1888, to C. P. Lackawanna Co. to review a judgment entered for want of a sufficient affidavit of defence, in an action of assumpsit by Mobler et al. against Tbe Wyoming Mfg. Co. on a judgment obtained in tbe Circuit Court of Kanawha Co., West Virginia, at Oct. T. 1887, No. 576. Williams and McCollum, JJ., absent.</p> <p>The declaration was accompanied by a copy of the proceedings in the court of West Virginia. The caption of the certified proceedings contained the names of the parties and -the statement that the case was “in assumpsit and attachment.” The certified proceedings consisted of a summons which was returned as having been served “ by delivering a copy of the writ to Geo. B. Dimmiclc, President of said company, said Dimmiek being a resident of and within the county of Kanawha at the time of said service ”; a copy of the declaration, with book account annexed; an entry in the docket that “ this day came the parties by their attorneys, and for pleas in this behalf the defendant says that it did not assume in manner and form as the plaintiff in their declaration have alleged, and of this it puts itself upon the country, and the plaintiff doth the like; and, neither party requiring a jury, a jury is waived and this cause is’submitted to the court, in lieu of a jury, and the court, having heard the evidence and the arguments of counsel, doth find for the plaintiff, and assess the damages, etc. The clerk of the circuit court of Kanawha county, West Virginia, certified that the transcript was full, true and complete, “except an affidavit for attachment and the order of attachment issued thereon.” There was also a certificate by the judge as to the clerk, and of the clerk as to the judge, being respectively the officers named.</p> <p>The affidavit of defense was as follows:</p> <p>“ J. H. Campbell, being duly sworn according to law, deposes and says that he is the president of the above-named company, defendant; that said defendant is a corporation duly organized under the laws of Pennsylvania, with the home office in Scranton, Pennsylvania; that she, the defendant, has a just and legal defense to the whole of the plaintiff’s claim in this case, the nature and character of which is:</p> <p>“ 1st. That the defendant is not indebted to the plaintiffs in any sum whatsoever.</p> <p>“ 2d. That the record upon which this suit is brought is fraudulent and void, and the judgment therein stated, and said to have been obtained, was obtained, through fraud and collusion, in that the said record shows upon its face that the sheriff of Kanawha county, West Virginia, con December 3, 1884, served the summons therein stated upon George B. Dimmiek, President of said company,’ when, in fact, said Dimmiek was never President of said company.</p> <p>“ The President of said company was on that day a resident and in the city of Scranton, and could not thus be served, and also in that said record upon which said suit was brought, shows upon its face that a trial by a jury to try said issue, was waived without the knowledge or consent of the defendant; that at no time had the defendant in this case authorized or empowered any person or party to waive a trial by jury in that case; that such waiver, by whomsoever made, was a fraud practiced upon the legal rights of this defendant, all of which your deponent will be able to show upon the trial of this case.”</p> <p>The plaintiffs filed the following exceptions to the affidavit of defense:</p> <p>“ 1st. The defense that the judgment upon which this suit w.as brought was obtained by fraud and collusion is insufficient, this court having no jurisdiction to try the same.</p> <p>“ 2d. The affidavit is insufficient because it does not allege payment of the judgment upon which this suit was brought after its recovery. Nor is the jurisdiction of the court, viz: the circuit court of Kanawha county, West Yirginia, either as to the subject matter or over the person of the defendant, either questioned or denied.</p> <p>“ 3d. The allegation that Geo. B. Dimmick was not President, is insufficient to deny the jurisdiction of the said court as the record discloses that, afterward, to wit: on January 21, 1886, the' defendant appeared and defended said action.”</p> <p>Buie for judgment for want of a sufficient affidavit of defence was made absolute, and judgment was entered accordingly, by Connolly, J.</p> <p>The assignments of error specified the action of the court, 1, in making absolute the above rule, quoting the order; and, 2, in entering judgment against the defendant.</p>

Error, No. 141, Jan. T. 1888, to C. P. Lycoming Co., to review a judgment of compulsory non-suit in an action of trespass q. c. f. for cutting timber, bv George A. Ramsey and Simon Brown against Robert Brown, at May T. 1884, No. 230. McCollum and Mitchell, JJ., absent.

Error, No. 367, Jan. T. 1888, to O. P. Lebanon Co., to review a judgment on a verdict for defendants in an action of trespass by Eliza Urich and her husband against Wayne Reber, Miles Reber, Isaac Reber and Peter Eckert, at June T. 1886. Sterrett and Mitohelu, JJ., absent. This action was brought to recover damages for the removal of a fence erected by the plaintiffs in a lane between the plaintiffs’ and defendants’ farms.

Error, No. 316, Jan. T. 1888, to Montgomery Co., to review a judgment on a verdict in favor of plaintiffs in an action of assumpsit, by C. Rittenhouse & Sons against Hugh Mclnnes, liquidating partner of tbe firm of Dager & Mclnnes, at June T. 1884, No. 64. Williams, J., absent.

Appeal, No. 27, July T. 1887, of Bruce Small and Susan E., Ms wife, and Louisa H. Youngman, from a decree of O. C. Northumberland Co., dismissing exceptions to a master’s report and revoking a former decree of confirmation of an inquest in the partition of the real estate of John G. Youngman, deceased, the appellants being heirs and devisees of the decedent. Tbunkey, J., absent. The facts appear in the following report of the auditor, Geo.

Appeal, No. 63, July T. 1887, by Bruce Small aud Susan E., his wife, iu her right, from O. C. Northumberland Co., to review a decree… Held: the court has no jurisdiction. Mr. Greenough, the petitioner, only desires to go on and have the proceedings advanced as far as possible until there is a decision of the supreme court as to whether the former proceedings that were set aside by the court were regular, and does not, as I understand it, propose to ask for a final decree…

Error, No. 67, Jan. T. 1889, to C. P. Berks Oo., to review a judgment for defendant in an action of debt by W. S. Levan et al., executors of Charles Levan, deceased, to the use of Esther Schmehl, and of Daniel T. Schmelil, administrator of Maria Traut, deceased, against ¥m. B. Bickel and Melvina Bickel, his wife, at Jan. T. 1885, No. 63. Green and Clark;, JJ., absent. The facts appear in the charge of the court, infra.

Error, No. 55, Jan. T. 1889, to C. P. Lackawanna Co., to review a judgment on a verdict for defendants in an action of ejectment, by Phcebe O. Munger against Andrew J. Casey et al., heirs of Timothy Casey, deceased, at Nov. T. 1886, No. 98. Williams and McCollum, JJ., absent.

Certiorari sur Appeal, No. 16, May T. 1888, from decree of C. P. Dauphin Co., refusing decree recommended by master, on bill in equity to declare bonds and mortgage void, by the Harrisburg & Eastern R. R. against George ¥m. McPherran and Pierce C. De Sauque, trustees, and the Pa. & New Eng. R. R., No. 102, Equity Docket. Trunkey, J., absent. There was no appearance for defendants and a decree pro confesso for want of an appearance was entered.

Appeal, No. 170, Oct. T. 1888, of Welty McCullough,. Receiver of the Bellevue Cemetery Co., to review a decree of C. P. No. 2 Allegheny Co., in equity, to compel the payment of unpaid subscriptions to stock, by Irene A. McOlintock against the Bellevue Cemetery Co., of Allegheny Co., James Andrews; Thompson Bell and others, at April T. 1878, No. 546. Sterrbtt, J., absent. Further facts appear in Bell’s Appeal, 115 Pa. 88, and Andrews’s Appeal, above, page 126.

Error No. 182, Oct. 7, 1888, to C. P. Lawrence Co., to review a judgment on a verdict in an action of assumpsit on an appeal from a judgment of an alderman, by Tucker David against P. A. Mills, at Sept. T. 1885, No. 13. The evidence was to tbe following effect at the trial, before Hazer, P. J.: - David, through information received by one Hoyt, offered to purchase some sycamore lumber at a specified price, and the offer was accepted by Mills.

<p>An auditor’s findings of facts, on exceptions to the account of a guardian, was to the effect that the guardian had been guilty of gross negligence in the management of the ward’s estate, among other things, in neglecting to enter a lien against, the real estate of a prior guardian for the amount shown by his account to be. due the ward. The auditor accordingly surcharged the accountant with tliis amount, refused to allow him commissions, and charged him with the costs of the audit. Pending proceedings before the auditor, the accountant was declared a lunatic for a time prior to the filing of his account. The court below dismissed exceptions to the auditor’s repoit. After an appeal was taken to the supreme court, the sureties of the prior guardian paid the amount due to the ward. Held, that, in the absence of manifest error, the findings of the auditor would not be disturbed.</p> <p>Sterrett. J. — The jurisdiction of the supreme, court being appellate) the application for relief, in the nature of a credit on the decree, must be first made to the orphans’ court.</p> <p>The mother of the ward, who had enter'ed into a contract with the guardian for the support of the ward, was offered as a witness, on the hearing before the auditor, the evidence being objected to but received. The guardian, by proceedings? in lunacy subsequently instituted in court, was found to be a lunatic for a period prior to the time of the hearing before the auditor. Held that the witness was not incompetent on the ground oí interest, or public policy or under the Act of June 8,1874.</p>

Error, No. 86, July T. 1888, to C. P. Lebigb Co., to review a judgment on a verdict for plaintiff in an action of assumpsit by Thomas McLaughlin against the Allentown Iron Co., at Jan. T. 1888, No. iO. Williams and McCollum:, JJ., absent. The evidence was to the following effect, at the trial, before Albright, P. J.: The plaintiff was, in January, 1887, employed by the defendant as a furnace boss.

Error, No. 208, July T. 1888, to C. P. No. 3,. Phila. Co., to review a judgment on tbe report of a referee under Act of May 14, 1874, by Tbos. N. Allison against Jas. ~W. Hilton, at Sept. T. 1884, No. 117.

Error, No. 86, Oct. T. 1888, to O. P. Washington Co’., to review judgment on verdict for plaintiff in an action of case by McKeever, Oook & Go. against H. S. Duncan et al., doing business as the Canonsburg Iron Go., Limited, at Feb. T. 1886, No. 257. Williams, J., absent. The written contract, for the breach of which suit was brought, is stated in the opinion of the supreme court. An acceptance by the iron company was endorsed upon the written offer.

Appeal, No. 9, May T. 1888, of Henry Witmer, A. J. Kantz and Samuel B. Bishoff, from a decree of C. P. Dauphin Co. dismissing exceptions to a master’s report on a bill in equity by Benjamín Bordner et al. against the appellants, at No. 83, Equity Docket. Trunkey, J., absent. íhe bill averred: _ 1. That the complainants were tax-payers of the school district of Berrysburg borough. 2.

Appeals, Nos. 52, 53 and 54, Oct. T. 1888, from decrees of O. P. Cambria Co., dismissing three bills in equity, as follows: 1, Mary J. Cook against George ~W. Stutzman et al., at Sept. T. 1887, No. 4; 2, Mary J. Cook against John J. Brown et al., at Sept. T. 1887, No. 3; and, 3, Eliza Pickworth against Geo. W. Stutzman et al., at Sept. T. 1887, No. 5. Green and Hand, JJ., absent.

Appeal, No. 155, Oct. T. 1887, of H. P. Laird et al., from a decree of O. P. Westmoreland Oo., in an action of partition by Francis Laird against H. P. Laird et al., at Nov. T. 1884, No. 92. Oreen, J., absent. The following facts appeared from the record: Summons in partition was issued on Sept. 4, 1884. On Nov. 22, 1886, the couK awarded a writ quod partitio fiat. An inquisition was held and approved, and the real estate was taken by H. P. Laird at a valuation.

<p>Error, No. 121, July T. 1884, to C. P. No. 3, Phila. Co., to review a judgment on a verdict for plaintiff in an action of assumpsit on a promissory note by Chas. Erazier et al. against John Hey, at March T. 1882, No. 256. Before Mercur, C. J., Gordon, Paxson, Trunkey, Sterrett, Clark and Green, JJ.</p> <p>The narr. was upon a promissory note for $500, dated Dec. 28, 1880, at twelve months, made by Jacob S. Culbertson to the order ■of the defendant and by him endorsed. The pleas were non assumpsit, payment, set off, with leave, etc.</p> <p>The defendant gave the following notice:</p> <p>“You will please take notice that on the trial of the above case the defendants will give in evidence the following special matter, to wit: The note, a copy of which is filed in this case, was given under the following circumstances: Jacob S. Culbertson, the maker, had been concerned with Adam Forepangh in the building operation, in which the said Forepaugh was represented by his agent, William Holloway. Upon the settlement of the accounts between the said Forepaugh and Culbertson, it appeared that the said Culbertson was indebted to the said Forepaugh in the sum of $500, which said sum it was agreed between the parties should be paid by the work and labor to be done by the said Culbertson.</p> <p>“ The said Forepaugh desired to have some security that the said Culbertson would perform work and labor to the said amount, and the said Forepaugh, by his agent, the said Holloway, requested the defendant to become security for the said Culbertson, that the said work would be done by him when requested. That the defendant consented to become security, and, in order to put the obligation of the defendant in wilting, the note aued on in the present case was prepared and signed by the said Culbertson, and endorsed by the defendant. That at the time of said endorsement by the defendant, it was expressly agreed by and between the defendant and the said Forepaugh, through his agent the said Holloway, that neither the said Culbertson, nor the defendant were to be called upon to pay the said note in money, but that the said note was given merely to secure the said Forepaugh that the said Culbertson would perform work to the amount of $500 when requested. That neither the said Forepaugh, nor the said Holloway, nor any one acting for either of them, has ever requested the said Culbertson to perform any work on account of the said $500, and the said Culbertson has at all times been ready and willing to perform such work whenever requested. That the defendant endorsed the said note simply for the accommodation of the said Culbertson, and without receiving any consideration whatsoever, and because defendant believed and still does believe that the said Culbertson would perform the said work whenever requested.</p> <p>“ That the plaintiffs in this suit are not bona fide holders for value of the said note, but that they hold the same simply as agents of the said Forepaugh, he being at present the real owner thereof, and that this suit is brought in the name of the plaintiffs simply for the purpose of endeavoring to avoid the defence which the defendant has to the said note.”</p> <p>The plaintiff offered in evidence the note and rested.</p> <p>The defendant called as a witness Jacob S. Culbertson, and offered to prove by him as follows, upon the trial before Yeekes, P. J. r</p> <p>“ The note sued upon and read in evidence was given under the following circumstances: Jacob S. Culbertson, the maker, had been concerned with Adam Forepaugh in a building operation in which the said Forepaugh was represented by his agent, william Holloway. Upon the settlement of the accounts between the said Forepaugh and Culbertson, it appeared that the said Culbertson was indebted to the said Forepaugh in the sum of $500, which said sum it was agreed between the parties should be paid by the work and labor to be done by the said Culbertson.</p> <p>“ The said Forepaugh desired to have some security that the said Culbertson would perform work and labor to the said amount;; and the said Forepaugh, by his agent, the said Holloway, requested the defendant to become security for the said Culbertson that the said work would be done by him when requested. That the defendant consented to become security and in order to put the obligation of the defendant in writing, the note sued on in the present case was-prepared and signed by the said Culbertson and endorsed by the said defendant. That at the time of the said endorsement by the defendant, it was expressly agreed by and between the defendant and the said Forepaugh through his agent, the said Holloway, that neither the said Culbertson nor the defendant were to be called upon to pay the said note in money, but that the said note .was given merely to secure the said Forepaugh that the said Culbertson would perform work to the amount of $500 when requested. [That the said Forepaugh at the time of the giving of the said note agreed by his said agent that the said Forepaugh would hold the said note till the end of the year for which it was drawn as such security.] That neither the said Forepaugh, nor the said Holloway, nor any one acting for either of them, has ever requested the said Culbertson to-perform any work on account of the said $500, and the said Culbertson has at all times been ready and willing to perform such work whenever requested [and within the said year repeatedly offered himself for that purpose]. That the defendant endorsed the said note simply for the accommodation of the said Culbertson and without receiving any consideration whatsoever, and because the defendant believed that the said Culbertson would perform the said work whenever requested.” It was agreed by counsel for the plaintiffs- and defendant that the notice given was sent under the rules of the Court by the defendant to the plaintiffs’ counsel.</p> <p>Counsel for the plaintiffs objected to the admission of the said evidence: 1, because the notice was not sufficient; 2, because the evidence, if admitted, was not sufficient to put the plaintiffs on proof of consideration. The court sustained the objection upon the ground that the said evidence would not put the plaintiffs upon proof of the consideration of the transfer of the said note. Exception.</p> <p>The assignment of error specified the action of the court in refusing to admit the defendant below to prove as contained in the-offer, quoting the offer, but not the objections or ruling.</p>

Appeal, No. 9, Jan. T. 1883, to review decree of O. O. Northumberland Co., approving the report of appraisers appraising the real estate of Henry Reeder, deceased, at $300, under the election of an adult child and member of his family, and dismissing exceptions thereto by Thomas Barr et al., creditors of the estate. Before Merour, C. J., and Gordon, Paxson, Trunkey, Sterrett, Green and Clark, JJ.