Volume 1 — Pennsylvania Superior Court Reports

Appeal No. 22, Nov. T., 1895, by plaintiff, from the judgment of C. P. No. 3, Phila. Co., June T. 1891, No. 644. Action in assumpsit to recover $65.00, paid to defendant as secretary of a branch of defendant corporation. The facts sufficiently appear in the opinion of the court. Error assigned was the charge of the court below, which was as follows: “In this case you will render a verdict for the defendant.

Appeal No. 11, Nov. T., 1895, by defendant and intervener, from the judgment of C. P. No. 1, Phila. Co., Dec. T., 1894, No. 926 in favor of plaintiff on case stated. Case stated (the facts of which appear sufficiently in the opinion of the court), under which the plaintiff claimed to .be entitled to the income of the entire estate for life. The amount presently in controversy was $148. Errors assigned (1-4) were to entry of judgment in favor of the plaintiff.

Appeal, No. 19, Nov. T., 1895, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1892, No. 906. The action was assumpsit upon a bond given by Peter Smith Barrett as principal and William Barrett as surety to secure Richard Lancaster. Damages were averred to the amount of $2,000. Defendants pleaded '■'■non est factum.” Verdict for plaintiff for $242.16. The facts sufficiently appear in the opinion of the court. Error assigned, inter alia, was as follows : 11.

Appeal No. 6, Nov. T., 1895, by defendant, from judgment of C. P. No. 4, Phila. Co., March T. 1894, No. 56. Assumpsit to recover $307.75 with interest upon two promissory notes against the defendant as endorser. Verdict for plaintiff for $342.15. The defendant alleged that he was dis charged by reason of no notice of nonpayment having been given, and that no language was ever used by him afterward that would make him liable.

Appeal, No. 33, Nov. T., 1895, by plaintiff, from judgment of C. P. Lancaster Co., June T., 1892, No. 66. This was an action of trespass against John Sides, sheriff of Lancaster county, for delivery of certain goods under a writ of replevin, pending a landlord’s distress, made after the writ of replevin had been served, but before the goods had been actually delivered by the sheriff. Errors assigned (1-6) were, answers to plaintiff’s points.

Motion to quash appeal (Nov. 18, 1895), No. 8, Mem. Docket, Nov. T., 1895, Superior Court, by defendant, from the judgment of C. P. No. 3, Phila. Co., Sept. T., 1891, No. 364, entered June 27, 1895, on verdict for the plaintiff. It appears from the record that judgment was entered June 27, 1895, and appeal entered July 18, 1895, with proper affidavit and security in the prothonotary’s office of the court below.

Appeal, No. 21, Nov. T., 1895, by defendants, from judgment of C. P. Berks Co., Aug. T., 1894, No. 168. This case came up before the court below on an appeal from a justice in favor of plaintiff for $232.70, in a suit by Sarah Kline v. John D. Seidel and Augustus Weidner, on a promissory note. The proceeds of the note were for use of Seidel, who paid the interest for some time. The suit was brought more than six years after maturity of the note.

<p>Appeal No. 15, Nov. T., 1895, by plaintiff, from judgment of C. P. of Lancaster Co., Aug. T., 1895, No. 140.</p> <p>This case came before the court below on an appeal from judgment of a justice for $132.80 in favor of plaintiff on an action in assumpsit. Defendant pleaded the general issue. The court gave binding instructions in favor of defendant, which were assigned as error. The facts are fully set out in the opinion of the Superior Court.</p> <p>Error assigned was binding instructions in favor of defendant.</p>

<p>Decedent's estate — Duty as regards vigilance and fidelity.</p> <p>The first duty of an executor, acting, as he does, in a fiduciary capacity, is to the trust represented.</p> <p>If one be indebted to an estate and also to the executor individually, ¡ the paramount duty of the latter is to secure the former claim ju prefer- ' ence to his own.</p> <p> Execidors' commissions, as affected by incompetency and delay. </p> <p>. When there is manifest incompetency and undue delay exhibited by an executrix in the settlement of the estate, it is ground for reduction of the commissions otherwise to be allowed.</p>

Appeal No. 12, Nov. T., 1895, by defendant, from the decree of C. P. Berks Co., Equity Docket, 1892, No. 564. The plaintiff filed a bill in equity, alleging a partnership with defendant. The partnership was denied by defendant.

Appeal, No. 23, Nov. T., 1895, by plaintiff, from judgment of nonsuit of C. P. Lancaster Co., April T., 1892, No. 6. Assumpsit to recover the sum of $480, with interest from September 28, 1889. The statement, as amended, declared on a promissory note, and, by an additional count, on the original consideration for money borrowed and received by the maker, now deceased, from the plaintiff.

Appeal, No. 18, Nov. T., 1895, by tbe Philadelphia & Reading Terminal Railroad Company, from judgment of Q. S. Phila. Co. The proceedings were initiated under the ordinance of July 14, 1891.

Appeal, No. 12, April T., 1896, by petitioner, from decree of Q. S. Indiana Co., Dec. Sess., 1894,. No. 50, refusing a brewer’s license. Petition for brewer’s license under act of June 9,1891, P. L.. 257. The petition, bond and justification of sureties complied with the terms of the act under rules of court.

Appeal No. 46, Nov. T., 1895, by plaintiff, on the order of C. P. No. 4, Phila. Co., Sept. T., 1895, No. 449,. discharging rule for judgment for want of sufficient affidavit of defense. Assumpsit to recover $248.60, the amount of two due bills drawn by defendant in favor of plaintiff’s assignor.

<p> Auditor's findings—Confirmed by the court below not lightly disturbed. </p> <p>An appellate court will not disturb the findings of fact, made by an auditor and confirmed by the court below, except in case of fraud, of clear mistake or of manifest lack of due consideration.</p> <p> Preference to wife—Not prima facie fraudulent. </p> <p>Preference given by husband to a wife in ease of bona fide indebtedness to the wife is not a fraud against other creditors nor evidence of fraud.</p> <p>A wife’s judgment against an insolvent husband having been found by a auditor to have 'been based on a bona fide indebtedness, and this finding having been confirmed by the court below, the ruling will not be disturbed, it being manifest that the auditor had carefully considered the question and that his findings could be justified by the evidence.</p> <p> Cost of auditor's distribution. </p> <p>The award of costs before distribution of the fund raised by sheriff’s sale of real estate will not be disturbed at the instance of a creditor whose claim was shown to be a junior lien from the first.</p>

<p>In statutes limiting the right of appeal the accepted rule of construction makes the limitation run from the time when the cause of action is first subjected to the operation of the statute.</p> <p>Under the act of June 24, 1895, P. L. 212, an appeal taken more than three months after the date of the rendition of the judgment in the court below but within three months after July 1, 1895, when the act establishing the Superior Court took effect, is in time.</p> <p>When a verdict is taken subject to the opinion of the court, upon point! reserved, the facts should be distinctly stated, as well as the questions raised upon themand the judgment to be pronounced upon the solution of the questions of law thus reserved, should also be specified, as in a case stated.</p> <p>The point reserved, in this case, held to be insufficient to sustain a judgment for the defendant non obstante veredicto.</p> <p>As shown by the verdict and the reserved point in the present case, A. is arrested by B. an officer of some sort, the cause of the arrest and the authority therefor not appearing. C. asks B. where the arrest was made. B. replies that it took place at the home of D. who is a private citizen, and incidentally adds that D. keeps a bawdy-house. This last statement is false and groundless. C., however, immediately published in a newspaper, as an absolute fact, that D. is a bawdy-house keeper. Held, That there was neither privilege nor ground for privilege furnished by the circumstances and subject-matter of the publication; that there was not such probable cause as would justify such a charge; and that the only excuse or defense would be to prove its truth.</p> <p> Libel—Charge of keeping a bawdy-house—Probable cause. </p> <p>The commission of adultery on any one’s premises and the arrest there of the guilty parties, would not, without more, give any one the right to falsely charge the owner with keeping a bawdy-house. Probable cause that would justify such a charge must be such as would justify a prosecution for the alleged crime.</p>

<p> Real estate broker—Double commissions when allowed. </p> <p>The exception to the rule, that an agent cannot serve the vendor and vendee without forfeiting his claim to commissions, arises when the parties for whose protection it was intended have, with full knowledge of all the circumstances, agreed to waive their rights thereunder</p>

<p>Appeal No. 10, Nov. T., 1895, by defendant, from judgment of C. P. Montgomery Co., March T., 1898, No. 66, on verdict for plaintiff.</p> <p>Sci. fa. sur municipal claim for curbing. Before Swartz, P. J. Verdict for $279.82, and costs.</p> <p>The facts appear from the following extract from the charge of the court below:</p> <p>Gentlemen of the Jury: The case we are trying is a suit upon a municipal lien. The borough of Norristown, through Mr. Landes, erected curbstones along the front of some of the property of the defendant, and the borough now seeks a verdict at your hands for the curbstone furnished and for setting the same. What are the surroundings of this case ? The land that is covered by the lien fronts on the main street of the borough of Norristown. It extends from Buttonwood street to what has been termed Hamilton street, a distance of about four hundred feet, perhaps something less. That is the tract of land against which this lien was filed. It is part of a larger tract containing about eighty acres, divided into two nearly equal parts by Marshall street, so that about forty acres are included in the square bounded on one side by Main street, another by Forest street, a third by Marshall street, and a fourth by Buttonwood street, and this tract adjoins or fronts on Buttonwood •street and Main street. Notice was given by the town council to construct this curb. It was not- done by Mrs. Fornanee, and it was then that the borough undertook to do it, and after it was done a lien was filed, and that lien was not discharged ? that is, payment was not made for the curbing for sixty days, and therefore the borough claims not only the amount of the curbing, but a penalty of twenty per cent provided for by the acts of assembly.</p> <p>Errors assigned were, (1) in allowing witnesses to testify that the highest value that this property has in the market is for building purposes.</p> <p>(2) In charging the jury as follows: “ It is not a farm necessarily because the owner may use it for farming purposes.”</p> <p>(3) But the question is not in this case whether the whole tract used as a farm is a farm. That is not the question before you, but the question is to be confined to this particular tract. against which the lien is filed.</p> <p>(4) The question is, was this land, fronting four hundred feet on Main street- and extending back to what would be Airy street if opened, town lots, or was it farm land when the curbing was done.</p> <p>(5) It is not a question for what purpose she was using it or what purpose she intended to put it to.</p> <p>(6) Was it in fact an improvement to the property special to this property because of its location and because of its nearness to the actually built-up part of the town, because it was part of the town.</p> <p>(7) So far as the curb is along Main street, that part of the curb you may allow for if you find the plaintiff is entitled to recover.</p> <p>(8) In refusing to affirm defendant’s second point, as follows: “ If the jury find as a fact that Hamilton street was not ordered by the court to be opened until after the time the curbing mentioned in the lien was done, there can be no recovery by the plaintiff for any curbing mentioned in the lien, set in Hamilton street, or in front of its intersection with Main street.” Answer: This is refused but to a certain extent it is true. So far as it relates to the return curb on Hamilton street, as I have already explained, that is for fifteen feet and nine inches, the borough is not entitled to recover, even if it is entitled to recover for the other part of the curbing.</p> <p>(9) In charging the jury as follows: “ If you find that the only-reason why tins five feet of curb was not put there was because it could not be put there by reason of the inlet, because there was no necessity for it, that does not make this two distinct tracts of land or two lots, and that fact of itself would not be sufficient to demand two liens to be filed by the borough. It is one tract, and simply because there is an inlet there, where no curbing was necessary, does not so subdivide this property as to demand two liens.”</p> <p>(10) In refusing to affirm defendant’s fourth point, as follows: “If the jury find as a fact that the plaintiff did not set curb in front of and opposite to the entire tract of land described in the lien, but only in front of and opposite to portions of it, separated by a tract of land some five feet wide in front of which no curb was set by plaintiff within six months prior to filing the lien, the lien cannot be a joint one on the whole property, and the plaintiff cannot recover.” Answer: I cannot affirm this point so far as it has any application to the case we are trying. The uncontradicted evidence is that the curb extended along the front of the entire lot except for a distance of about five feet, where no curb could be placed or was not needed because of the water inlet.</p> <p>(11) In charging the jury as follows: “ I find nothing in the act of assembly that requires the lien in a case like this to specify the amount of material as distinguished from the amount for labor. But even if it did so require, and if this is a necessary element in the case, that is, if it was the duty of the borough to itemize its claim, it is now too late to take advantage of that matter, because the parties having gone to issue and to trial, that cannot be considered.”</p> <p>(12) In refusing to affirm defendant’s fifth point as follows “ If the jury find as a fact that the amount claimed in the lien is for labor as well as for materials, and that the plaintiff furnished not only materials as alleged in the bill of particulars of the lien, but also furnished work, the distinct items of which,- and their nature, value and amount, the plaintiff omits to specify in the lien, the plaintiff cannot recover.” Answer: This is refused. As I have already explained to you, it is too late to make this point.</p> <p>(13) In refusing to affirm defendant’s sixth point, as follows,: “ If the jury find that the lien omits to state the amount, nature and value of the work and materials as distinct items, the plaintiff cannot recover.” Answer: This is also refused for the reasons already given.</p> <p>(14) In refusing to affirm defendant’s seventh point, as follows : “ Under all the evidence the verdict must be had for the defendant.” Answer: This is refused. It is for you to say the plaintiff shall recover in this case or not.</p> <p>(15) The court erred in allowing an amendment to be made to the lien over six months after the final verdict and more than two years after the lien was filed.</p>

<p> Partnership transaction—Remedies between partners. </p> <p>One partner cannot sue another partner for a partnership transaction except by bill in equity or an action of account render.</p> <p> Affidavit of defense—Partnership debt—Set-off. </p> <p>In an action of assumpsit, to recover money loaned, an affidavit which alleges payment by defendant of debt due by a partnership of which plaintiff and defendant were members held defective (1) where it failed to allege that the amount attempted to be set off was paid before suit brought; (2) because there was no claim of a settlement of partnership accounts showing an ascertained indebtedness from plaintiff to defendant.</p> <p> Partnership—Action by one partner against another—Assumpsit—Account rendered—Equity—Set-off. </p> <p>Where one partner has paid partnership debts for which both are liable he cannot set it off in an action of assumpsit .brought against him by his partner to recover a personal loan made to him by his partner prior to the partnership venture subsequently entered into between the parties.</p>

<p>Appeal No. 44, Nov. T., 1895, by plaintiff, from judgment of C. P. Delaware Co., March T., 1894, No. 64, directing verdict for defendant.</p> <p>Assumpsit to recover $300, the amount of a check alleged to have been deposited with defendant as trust funds to use of plaintiff. Before Clayton, P. J.</p> <p>The facts appear from the following extract from the opinion of the court below dismissing plaintiff’s motion for a new trial.</p> <p>On August 28, 1893, A. H. Tyson gave the plaintiff his check for $400 on the Delaware County National Bank, the defendant, payable September 14, 1893.</p> <p>September 12, 1893, Tyson informed the plaintiff that he could not pay the check when due, and requested the plaintiff to provide for it. On the same day the plaintiff mailed to Tyson a check for $300, in the usual form, with the understand-, ing between them that the said sum was to be deposited by Tyson so as to increase his account sufficiently to enable him to have funds enough in bank to pay the $400 check of the plaintiff. When the $400 check was presented for payment, the $300 check had not been deposited, and the account of Tyson had been overdrawn $74.75. The $400 check was therefore laid aside. Subsequently on the same day, Tyson deposited cash and checks amounting to $925, including this $300 cheek.</p> <p>On the same day checks were paid amounting to $87.00, and notes were discounted to the amount of $744.56. It was also discovered on this day that a draft for $1,100, which had been credited to Tyson’s account as cash had been protested. In fact, therefore, when the $300 check was deposited and the $400 check presented for payment, the said Tyson was indebted to the bank $1,174.75.</p> <p>At that time there was no suspicion of Tyson’s insolvency. The bank took his memorandum check for the protested draft, which was to have been made good the next day. It is admitted that Tyson’s account had been overdrawn, and that his debt to the bank is largely in excess of this $300 ciieck. It is also admitted that the bank had no notice of the secret trust under which Tyson received the $300 check until a full month after the deposit of the check and after Tyson had received credit for it, and not until after new notes had been discounted and cheeks paid.</p> <p>Errors' assigned were binding instructions for defendant.</p>

<p> Evidence—Validity of a will cannot be attacked collaterally. </p> <p>The validity of a will and letters testamentary issued thereunder cannot be attacked collaterally in a suit on a scire facias upon a mortgage, where the defense was payment to the executor, under the will attempted to be attacked, on the ground that letters had been revoked by the register from , which decree an appeal is pending in the orphans’ court.</p> <p> Powers of executor to collect debts—Revocation of letters—Appeal from register. </p> <p>It has been distinctly ruled that a decree of the register’s court revoking letters of administration and directing them to issue to another person, which decree has been appealed from by the administrator, does not, while the appeal is pending and undetermined in the Supreme Court, suspend his power to proceed in the recovery of the debts due his intestate.</p> <p>Mortgage—Payment to executor—Revocation of will—Appeal therefrom. A mortgagor will be protected in payment to executor of decedent mortgagee, who is in possession of the bond and mortgage, although his letters have been revoked and letters granted under another alleged will, from which ruling of the register an appeal is pending. A subsequent assignment of the mortgage, made by the second set of executors, gives the assignee no standing to demand repayment of the mortgage already paid to the other executor.</p>

Appeal, No. 39, Nov. T., 1895, by plaintiff, from decree of C. P. Lehigh Co., June T., 1894, C. P. No. 1, dismissing bill in equity. Exception to report of referee affirmed by court below, dismissing bill in equity praying the court to require the defend? ant association to note on their books the transfer of a cemetery lot to the plaintiff, and to give plaintiff certificate for said lot, and for general relief. The facts sufficiently appear from the opinion of the court.

Appeal, No. 34, Nov. T., 1895, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1895, No. 454, for want of an affidavit of defense. The single point in this case is whether judgment was prematurely entered. Assumpsit upon promissory note for $600.. Damages were assessed $352.62. The facts sufficiently appear in the opinion of the court. Error assigned was entering judgment upon July 15, 1895.

<p> Contract—Parol evidence to vary—Standard of proof. </p> <p>Parol evidence is. admissible to establish a contemporaneous oral agreement which induced the execution of a written contract, though it may vary, change or reform the instrument; but this agreement must be shown by evidence that is clear, precise and indubitable: Thomas v. Loose, 114 Pa. 35.</p> <p> Affidavit of defense—Insufficiency—Modifying parol agreement. </p> <p>An affidavit of defense alleging a parol agreement which induced the execution of the written contract sued upon is insufficient, and judgment is properly entered where it is lacking in the clearness and precision specified as requisite in Thomas v. Loose, 114 Pa. 35.</p>

Appeal, No. 86, Nov. T., 1895, fr.om judgment of C. P. No. 1, Phila. Co., Sept. T., 1895, No. 126, for want of sufficient affidavit of defense. Assumpsit to recover on a policy of insurance the pro rata share in a reverting fund which had matured. Judgment entered for want of a sufficient affidavit of defense for $71.81.

Appeal, No. 9, Nov. T., 1895, from the decree of C. P. Lehigh Co., April T., 1895, No. 30, discharging rule entered upon plaintiff to show cause why judgment against defendants for want of sufficient affidavit of defense should not be opened or stricken off, and a supplementary affidavit of defense be allowed to be filed. Assumpsit to recover $371.31, with interest from April 4, 1892, for goods sold and delivered.

Appeal, No. 31, Nov. T., 1895, by-defendant, from judgment of C. P. Delaware Co., Sept. T., 1895, No. 39, affirming judgment of chief burgess, on certiorari and exceptions to return. Certiorari and exceptions to return of chief burgess of the borough of Colwyn, in a suit for a penalty for violating a borough ordinance. Judgment for plaintiff for $20.

Appeal, No. 82, Nov. T., 1895, by defendant, from the judgment of C. P. No. 2, Phila. Co., March T., 1894, No. 706, for want of a sufficient affidavit of defense. Assumpsit by plaintiff to recover $ 110.39, being the assessment on mutual policy of fire insurance and costs of collection, in which suit judgment was entered for want of sufficient affidavit of defense. The facts are fully set forth in the opinion of the Superior Court.

Appeal No. 25, Nov. T., 1895, by plaintiff, from order of C. P. No. 3, Phila. Co., March T., 1895, No. 57, making absolute rules entered by the garnishees to show cause of action and why an attachment should not be dissolved, and also why attachment should not be quashed. Assumpsit by plaintiff on joint promissory note of J. Carroll McCaffrey and Eugenie M. McCaffrey for $500.

Appeal No. 45, Nov. T., 1895, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1894, No. 214, refusing to take off nonsuit. Assumpsit to recover #450, being three half yearly payments of ground rent, defendant pleading non assumpsit, set-off, payment, payment with leave, etc. The facts of the case are fully set out in the opinion of the Superior Court. Error assigned was the refusal to take off nonsuit.

Appeal No. 8, Nov. T., 1895, from the judgment of C. P. Delaware Co., Dec. T., 1891, No. 68, making absolute a rule to show cause why execution should not be had against County of Delaware and awarding a mandamus against commissioners thereof. The case arose on appeal of T. L. Hibberd from award of a jury of view, No. 3 September Sessions, 1891. On March 19, 1894, judgment was entered on a verdict in favor of the plaintiff and against the defendant for $400.

Appeal No. 28, Nov. T., 1895, on decree of C. P. No. 1, Pbila. County, Dec. T., 1891, No. 548, dismissing exceptions to master’s report and entering decree as prayed for. Exceptions to. master’s report recommending that the prayer of plaintiff’s bill be granted and decree of C. P. No. 1, dismissing said exceptions and granting prayer of the bill.

<p> Promissory notes—Affidavit of defense—Running account. </p> <p>When an affidavit of defense alleges that certain promissory notes sued upon were given as part of a running account which had never been closed- or settled, and that upon opportunity given for defendant to show his payments and compare them with plaintiffs’ charges, payment of the notes sued on would appear: Held, that the affidavit was sufficient and that plaintiff by suing on the notes alone, cannot deprive the defendant of his right to-show, if he can, that they were given in the way and for the purpose defendant avers and that they were without consideration.</p>

Appeal No. 50, Nov. T., 1895, by-Mathias Sedlinger et al., attorneys in fact for Oscar Misselwitz, from the decree of the court of O. P. No. 1, Phila. Co., Sept. T., 1895, No. 651, appointing a receiver of the estate of Oscar Misselwitz, an alleged lunatic, pendente lite. In the matter of Oscar Misselwitz, an alleged lunatic, petition for commission in the nature of a writ de lunático inquirendo and petition for appointment of a receiver pendente lite.

Appeal No. 41, Nov. T., 1895, by-defendants, from sentence of O. & T., Montgomery County, Oct. Sessions, 1895, No. 55. Reeder, J., dissents. Defendants were convicted on October 11, 1895, of larceny, and receiving stolen goods and of conspiracy.

Appeal No. 5, Nov. T., 1895, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1895, No. 139, M. L. D., for want of sufficient affidavit of defense. Sci. fa. sur claim $779.36 for sewer on Richmond street in front of lot of ground on southeast corner Richmond and William streets.

Appeals, Nos. 3 and 4, Nov. T., 1895, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1895, Nos. 135 and 137 M. L. D., for want of sufficient affidavit of defense. Sci. fa. sur claim for sewers for $125.16 and $266.34 respectively on Cadwallader street in front of lots situated one on the northeast and the other on the southwest side of Cadwallader street.

Appeal, No. 6, Jan. T., 1896, by the East Stroudsburg Lumber Co., Ltd., from decree of C. P. Monroe Co., May T., 1894, No. 188, dismissing exceptions of appellant to auditor’s report in the matter of the distribution of the fund in said court, arising from sheriff’s sale of the real estate of the Keystone Fibre Co. Exceptions to auditor’s report in distribution of fund from sheriff’s sale disallowing appellant’s claim for 1586.09.

Appeal No. 3, Jan. T., 1896, by defendants fromjudgment of C. P. Lackawanna Co., Sept. T., 1890, No. 612, on verdict for plaintiff. Replevin for horses, wagon, harness, etc., of value of $400. It appeared from the evidence that defendant, Wands, obtained possession in J une, 1890, of the articles in question under a contract in writing purporting to be a lease (said agreement or contract being fully set out in the opinion of the Superior Court).

Appeal No. 24, Jan. T., 1896, from judgment of C. P. Luzerne County, Oct. T., 1894, No. 1223, in favor of defendant, on case stated on a feigned issue. Case stated in a feigned issue to determine the right of property in a fund of $417, paid into court by the Phila. & Reading Railroad Relief Association arising from the death of John K. Weisenborn, a minor son of Adam Weisenborn, the defendant. The facts are fully set out in the opinion of the Superior Court.

Appeal, No. 4, Jan. T., 1896, by plaintiff from the orders of C. P., Bradford Co., February T., 1895, Nos. 486 and 487, making absolute the rule to show cause why judgments entered by confession in the above cases should not be satisfied. Rules to show cause why judgments (for §200 and §240 respectively) confessed, by virtue of warrants in leases of personal property should not be directed to be satisfied.

Appeal No. 4, Jan. Term, 1896, from judgment of C. P., Luzerne County, May Term, 1896, No. 488, for want of a sufficient affidavit of defense.

Appeal, No. 10, Jan. T., 1896, by defendant, from judgment of C. P. Columbia Co., Sept. T., 1893, No. 85, on verdict for plaintiff. Assumpsit to recover the sum of $145, being the amount of wages paid plaintiff as assistant station agent of the D., L. & W. R. R. Co., and procured by defendant from plaintiff on fraudulent representations. Verdict for plaintiff for $166.25. The facts are fully set out in the opinion of the Superior Court.

Appeal, No. 18, Jan. T., 1896, by plaintiff, from judgment of C. P. Luzerne Co., March T., 1893, No. 299, confirming report of referee and dismissing exceptions thereto. It appears that plaintiff sought to recover damages from Newton, a constable, for making an, insufficient return of an execution placed in his' hands to collect. Said execution being for the sum of $43.86, with interest and costs. The case was referred to Jos. D. Coons, the referee, who found for defendant.

Appeal No. 17, Jan. T., 1896, from the order of C. P. Wyoming Co., Nov. T., 1892, No. 77, refusing to take off a compulsory nonsuit.

Appeal, No. 9, Jan. T., 1896, from judgment of C. P., Lackawanna Co., April T., 1892, No. 149, on verdict for plaintiff. Trespass by Albert Henne to recover damages for death of his daughter, Grace, two years and three months of age, by being run over by car of defendant company. Verdict for the plaintiff in the sum of $775. Plaintiff’s points were, inter alia, as follows: 2.

<p>Appeal, No. 16, Jan. T., 1896, by defendant, from order of C. P. Lackawanna Co., June T., 1888, No. 5, dismissing rule to show cause why goods levied upon by a sheriff should not be released.</p> <p>Judgment having been entered in favor of plaintiff for $99.31, a rule to show cause why the collection of the judgment should not be restrained as against all property which was purchased by pension money, was discharged in an opinion by Edwards, P. J., reported in 4 Dist. Rep., 723, where it was held that property purchased with pension money by the pensioner in his own name is not free from seizure and can be sold on execution ; and reviewing the authorities on this point.</p> <p>Error assigned, was discharging the rule.</p>

Appeal, No. 13, Jan. T., 1896, by defendant, from judgment of C. P. Wayne Co., Dee., T., 1893, No. 11, on verdict for plaintiff. Rice, P. J., dissents. Trespass for negligence by defendant as agent for plaintiff.

Appeal, No. 25, Jan. T., 1896, by-defendant, from judgment of C. P. Luzerne Co., Dec. T., 1894, No. 378, on verdict for plaintiff. Appeal from tbe judgment of alderman on a claim for wages for manual labor. Verdict for plaintiff for $146.74.

Appeal No. 23, Jan. T., 1896, by plaintiff, from decree of the Orphans’ Court of Wayne Co., No. 663, Docket 1, dismissing petition for sale of lands. Petition for order for the sale of lands devised to the defendants by the last will and testament of John Law, for the payment of a legacy bequeathed to the said Mary Dugan by said will, and charged on said lands.

9, Nov. T., 1895, from decree of C. P. Lehigh Co., April T., 1895, No. 80, discharging rule entered upon plaintiff to show cause why judgment against defendants, for want of a sufficient affidavit of defense, should not be opened or stricken off and a supplementary affidavit of defense allowed to be filed. The above appeal was argued December 18, 1895, and dismissed January 20, 1896, in an opinion by Beavee, J. See report of the case, 1 Super. Ct. 174.

Appeal, No. 7, Nov. T., 1895, from decree of O. C. Northampton Go., requiring the executor of Robert Odenwelder, deceased, to make appraisement of personal property to the value of $300 for widow of said decedent. On December 27, 1894, Sabina Odenwelder, widow of Robert Odenwelder, presented a petition praying for decree requiring the executor to appraise to her her statutory exemption.

Appeal No. 22, Jan. T., 1896, by John S. Hoffa, the execution creditor, from the definitive decree of C. P. Wyoming Co., April T., 1894, No. 72, in the matter of the distribution of the funds arising from the sheriff’s sale of the personal property of D. W. Person, and making distribution of said fund. Exceptions to auditor’s report distributing proceeds of the sale of personal property. .

Appeal, No. 21, Jan. T., 1896, by-Alvin Millheim et al., wage claimants from the definitive decree of C. P. Wyoming Co., April T., 1894, No. 72, in the distribution of the fund arising from the sheriff’s sale of the personal property of D. W. Person, and in making distribution of said fund. Exceptions to report of auditor appointed to distribute proceeds of fund arising from sale of personal property of D. W. Person.

Appeal No. 19, Jan. T., 1896, by defendant, from judgment of C. P. Columbia Co., May T., 1894, No. 305, on a verdict in favor of the plaintiff on a sci. fa. sur mechanic’s lien. Sci. fa. sur mechanic’s lien debt $880.38. Jacob Shoemaker was the contractor for a church building which he completed and for which he was paid by the church. Subsequently a mechanic’s lien was filed by plaintiffs who were subcontractors.

Appeal No. 1, Feb. T., 1896, by plaintiff, from judgment of C. P. Clearfield Co., Dec. T., 1894, No. 439, on verdict for defendant.

Appeal, No. 7, Feb. T., 1896, from decree of. Held: he acquired a settlement in Walker township thereby, and the order of removal should be affirmed. [7] Errors assigned were, (1-6) error in not finding facts as requested by defendant; (7) error in the conclusion of law, reciting same; (8) rejecting the evidence of one Isaac Frain ; (9-10) in affirming and not reversing the order of…

Appeal, No. 9, Feb. T., 1896, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1895, No. 429, on verdict for plaintiff. Assumpsit to recover the balance alleged to be due plaintiff on a contract to pave the gutters and set curbstones in certain streets in South Williamsport borough. Verdict for plaintiff for $485.95.

<p> Guardian and ward—Allowance for maintenance of ward—Surcharge. </p> <p>Where the guardian has placed himself in loco parentis to his ward, he •is not entitled to a credit in his final account for her maintenance.</p> <p>The ward was the niece of the guardian and lived with him as one of his family, worked therein, and was boarded, clothed and schooled as ■one of his own children. The guardian frequently declared to the ward .and others that he regarded her as one of his children. He never applied for an allowance for her support, nor did it appear that he made any ■charge in his books for her maintenance.</p>

Appeals Nos. 1 and 2, Jan.T., 1896, from the decrees of C. P. Lackawanna Co., Nov. T., 1894, No. 7, granting an injunction to restrain defendants, The Delaware & Hudson Canal Co., from interfering with the construction of street railway tracks of plaintiff, the Scranton & Pittston Co., across tracks of defendants’ railroad at grade, and Nov. T., 1894, No. 8, dismissing a bill for injunction to restrain defendants, The Lackawanna Street Railway Co. and the Scranton & Pittston…

<p> Contracts—Lex loci. </p> <p>A sale for which an order was taken in Williamsport, Pa., for goods to be delivered by vendors, a New York house, f. o. b. in New York, discloses a contract to be completed in New York, and therefore to be construed by the law of that state.</p> <p> Contract—Rescission—Fraud—Replevin. </p> <p>Under the law of New York whenever property is obtained from another with the preconceived design on the part of the purchaser to cheat the vendor out of the same, the vendor, upon discovery of the fraud may avoid the contract and retake the property.</p> <p> Contract—Fraud, as evidenced by knowledge of insolvency. </p> <p>By the law of New York the receiving of goods at a time when the vendee knew he was insolvent, and other facts showing his insolvency at the time of purchase, are evidence of fraudulent intent at the time of the purchase, and even if there were no representations at the time of the purchase as to insolvency, yet, if the suppression of the insolvency is under such circumstances as to point to fraudulent concealment coupled with the intention not to pay for the goods, the vendors can rescind the sale for such fraud and retake the goods.</p> <p>Vendees purchased goods in December, 1894, which were delivered on March 18, 1895. On March 23d vendors notified vendees that the contract was rescinded. On March 25th vendees confessed judgment and were sold out by the sheriff, subject to the vendors’ notice of claim of title to their goods. There was evidence of actual insolvency at time of order and of knowledge of insolvency by vendees before receipt of goods. Seld, that it was error to limit the investigation of the jury to vendee’s knowledge of insolvency at the date of the order; and that the investigation of the jury should have been directed under proper instructions to the whole transaction up to the time of receiving the goods from the common carrier. If at that time vendees knew they were insolvent and received property with intention not to pay for it; they were guilty of fraud in law under the New York authorities, which control this ease.</p>

Appeal No. 7, Jan. T., 1896, by defendants from judgment of C. P. Lackawanna County, September Term, 1892, No. 842, on verdict in favor of plaintiff. Willard, J., dissents. Trespass for negligent grading and drainage of defendants’ lot, resulting in an increased burden cast upon plaintiff’s lot. Verdict for plaintiff in the sum of $300.

Appeal No. 4, Feb. T., 1896, by defendants, from judgment of C. P. Sullivan Co., Sept. T., 1894, No. 96, on verdict for the plaintiff. Ejectment for one lot of land in Dushore, Sullivan Co., Pennsylvania. Both parties to this action of ejectment claimed under John Miner; the plaintiff by sheriff’s sale in 1892 on the McMahan judgment, and the defendant by sheriff’s sale in 1890 on the Adriance Platt & Co. judgment.

Appeal, No. 1, March T., 1896, by defendant, from judgment of C. P. Juniata Co., Feb. T., 1895, No. 59, on verdict for plaintiff. Assumpsit for alleged breach of parol contract.

Appeal, No. 5, Feb. T., 1896, by plaintiff, from judgment of C. P. Union Co., Sept. T., 1894, No. 185, on verdict in favor of defendant. - Appeal by defendant from judgment of a justice in favor of plaintiff for $101.89. Before McClure, P. J.; verdict for defendant.

Appeal, No. 12, March T. ,1896, from judgment of Q. S. Dauphin Co., June T., 1894, No. 184, on verdict in favor of defendant. Indictment for maintenance of nuisance. The case was tried before Simonton, P. J. and the facts sufficiently appear from the charge of the court, which was as follows: Gentlemen of the jury, you have heard the testimony in f.hig case.

<p> Liquor law—Selling liquor without a license—Completion of contract. </p> <p>An employee of brewers, licensed in Westmoreland county, was employed to make collections in Fayette where he also collected empty beer kegs and returned same to the brewing company. He also solicited orders which were subsequently mailed or delivered by him to his employers and filled from Westmoreland county by the company, but not delivered through him. Held that by reason of the fact that the sale was not complete as between vendor and vendee by the act of such employee, he could not be held guilty of selling liquor without a license.</p> <p> Contract—Sale of liquor in adjoining county—Completion of sale. </p> <p>The question of liability for violation of the act of June 9, 1891, P. L. 267, in selling liquor without a license must find its solution in the application of principles governing the sale of any other article of trade. A license in Westmoreland county will only protect a vendor of liquor in sales fully perfected in that county, but the mere taking of orders in Fayette county, by an employee of a Westmoreland County brewery, which must be accepted and filled by the company from Westmoreland does not connect the agent with that part of the transaction nor render him liable for the penalty.</p>

Appeal, No. 2, March T., 1896, by defendant, from the judgment of C. P. Perry Co., April T., No. 20, upon verdict for plaintiff. Appeal from the judgment of a justice of the peace. Verdict and judgment thereon in favor of the plaintiff for $165.50. It appeared from the evidence that Charles F. Dick was indebted to W. H. Minick on a note for $115, on which one Sunday was bail. Sunday gave orders to Minick to collect the note. Suit was brought before a justice.

Appeal, No. 7, March T., 1896, by plaintiffs from definite decree of C. P. Cumberland Co., Feb. T., 1894, No. 6, dismissing bill in equity. Bill in equity to enforce an agreement assigning a judgment held by a married woman against her husband. • The case came up on bill, answer and report of referee.

Appeal, No. 19, March T., 1896, by defendant, from judgment and sentence of O. & T., Cumberland Co., Sept. T., 1895, No. 6. Indictment for larceny and receiving stolen goods. The indictment in its first count charged defendants, with stealing wheat from one Walter Stuart. The second count was against both defendants for receiving stolen wheat known to have been stolen from the said Walter Stuart. Waters pleaded guilty and Stahl pleaded not guilty.

Appeal, No. 18, March T., 1896, by Swatara Township School District, from judgment of C. P. Lebanon Co., June T., 1894, No. 409, entering compulsory non-suit. Scire facias on judgment bond of tax collectors of Swatara township, to show cause why execution should not issue for $108.46 due to Swatara Township School District for school taxes.

Appeal, No. 5, March T., 1896, by defendant, from decree of C. P. Huntingdon Co., awarding peremptory mandamus against S. G. Rudy, county superintendent of Huntingdon county. Petition for mandamus on S. G. Rudy, county superintendent, to show cause.

Appeal, No. 10, Jan. T., 1896, by defendant, from judgment of O. & T. Susquehanna County, Aug. T., 1895, No. 2, sentencing defendant on indictment for rape. Indictment, first and second counts, rape; third count, assault with intent. On the 25th of March, 1895, the five-year-old daughter of Mr. and Mrs. James McAndrews of Forest City, Susquehanna county, was criminally assaulted by John Fitzpatrick.

Appeal, No. 11, March T., 1896, by defendant, from judgment of C. P. Franklin Co., February Term, 1894, No. 148, on verdict for plaintiff. Assumpsit to recover liquidated, damages reserved in the contract for breach of covenants therein. Verdict for the plaintiff, $928.

Appeal, No. 6, March T., 1896, by plaintiff from decree of Q. S., Juniata Co., setting aside the reports of viewers and reviewers. Exceptions to reports of viewers and reviewers as to assessment of damages in the matter of petition to view, lay out and vacate roads. Viewers and reviewers having been appointed to lay out a road and vacate part of the old road supplied, reported, laying out the road and fixing the damages.

Appeal, No. 77, March T., 1896, by defendant, from judgment of O. &. T. Jefferson Co., December Session, 1895, No. 6, on verdict and sentence. Indictment for burglary, larceny and receiving stolen goods. Verdict of guilty and sentence thereon.

Appeal, No. 9, March T., 1896,. by D. B. Swayne, from judgment of Q. S. Blair Co., October Sessions, 1895, No. 62. Indictment for larceny as bailee. Before Lyon, P. J. The facts sufficiently appear from the charge of the court,, below.

Appeal, No. 6, Feb. T., 1896, by-Annie Tadrick, defendant, from judgment of Q. S., Northumberland County, May Session, 1895, No. 7, on verdict and sentence. Indictment in four counts: 1st count, breaking and entering a dwelling house with intent to commit a felony; 2d count, entering a dwelling house, without breaking, with an intent to commit a felony; 3d count, conspiracy to break and enter a dwelling house; 4th count, conspiracy to enter a dwelling house without breaking.

Appeal, No. 10, Feb. T., 1896, by defendant, from, judgment of C. P. Lycoming Co., Sept. T., 1895, No. 173, on verdict for plaintiff. Assumpsit to recover the amount due on a policy of insurance. Before Metzgeb, P. J. Verdict for the plaintiff for $100.

Appeal, No. 67, Nov. T., 1895, by defendant, from judgment of Q. S. Phila. Co., Oct. Sessions, 1895, No. 216, on verdict of guilty. Indictment for keeping a lodging house without a license. Before Hare, P. J. Verdict of guilty. A motion made in arrest of judgment was overruled and it was ordered and adjudged.that defendant pay a fine of $ 10.00 and the costs, and stand committed until this judgment is complied with.

Appeal, No. 96, April T., 1896, by-plaintiff, from judgment of C. P. No. 2, Allegheny County, April T., 1894, No. 690, on verdict for defendant. Sci. fa. sur mechanic’s lien for $472.09. Before Ewing, P. J. Verdict for defendant. The facts sufficiently appear from the charge of the court below, which is as follows: This is a mechanic’s lien filed by the plaintiff, Mr.- Cote, to recover for lumber which he says he furnished for the house of Mrs. Schoen.

Appeal, No. 49, April T., 1896, by plaintiff, from the decree of C. P. No. 2, Allegheny Co., Oct. T., 1890, No. 356, in favor of the plaintiff in the sum of 6-j- ets. and costs of suit. Bill for an injunction to restrain defendant from erecting a bridge and requiring it to remove obstructions and shore piers of a bridge then being erected, for damages sustained and for general relief.

Appeal, No. 95, April T., 1896, by defendant, from judgment of C. P. No. 2, Allegheny County, April T., 1894, No. 5, on verdict for plaintiffs. Assumpsit to recover rental due under an oil and gas lease. Before White, J. Verdict for plaintiff for $772.52. The facts sufficiently appear from the following extract from the charge of the court.

Appeal, No. 2, April T., 1896, by defendant, from judgment of C. P. Washington Co., Nov. T., 1892, No. 476, on verdict for plaintiff. Appeal from report of viewers awarding damages for construction of pipe line for gas. Before Greer, P. J., specially presiding. Verdict for plaintiff for $675. The facts sufficiently appear from the opinion of the Superior Court and opinion of the Supreme Court in the report of the same case in 161 Pa. 41.

Appeals, Nos. 84 and 85, April T., 1896, by defendant, from tbe judgment of C. P. No. 1, Allegheny Co., March T., 1895, Nos. 160 and 161, on verdicts for plaintiff. Assumpsit to recover the sum of $150 penalties under the acts of 1814 and 1865 for three separate items of alleged taking of fees, upon overcharge or for services not actually performed by the defendant, an alderman of the city of Pittsburg.

Appeal, No. 69, April T., 1896, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1895, No. 169 on verdict for plaintiff. Assumpsit to recover death benefits. Before Ewing, P. J. Verdict for plaintiff in the sum of #533.75.

Appeal No. 46, Jan. T., 1896, by defendant, from judgment of Q. S. Allegheny Co., Sept. Sessions, 1895, No. 557, on verdict of guilty. Indictment charging a cheat at common law.

Appeal, No. 60, Nov. T., 1896, by defendant, from decree of Q. S. Phila. Co., March T., 1896, revoking a brewers’ license. Rule to show cause why the license of The Joseph Kohnle Brewing Co. should not be revoked. On May 14, 1895, a brewers’ license was granted to the Joseph Kohnle Brewing Company for No. 1728, Buttonwood street, Fifteenth ward, city of Philadelphia, for one year, beginning June 1, 1895; a wholesale dealer’s license was not applied for or granted to them.

<p>Appeal, No. 5, April T., 1897, by George L. Doberneck, from the decree of Q. S. Indiana Go., December Session, 1895, No. 49, refusing a brewers’ license.</p> <p>Petition for brewers’ license under act of June 9, 1891, P. L. 257. The petition, bond and justification of sureties complied with the terms of the act under the rules of court. A remonstrance was filed, supported by affidavits by residents of the county, against the granting of the license applied for, and assigned the same reasons assigned in Doberneek’s Appeal, 1 Super. Ct. 99, with the additional reasons (1) that Indiana county is a prohibition county. (2) That the brewery during the former period of its operation was so conducted as to cause disorder, confusion and drunkenness in the town, that the former licensee, Frank M. Doberneck, was during said period assisted in the operation of the brewery and in the sale and delivery of beer therefrom by his brother, George L. Doberneck, the present applicant; and the conduct of the said George L. Doberneck in connection with the operation of said brewery showed his incapacity to manage such business according to law.</p> <p>The petitioner moved to strike the remonstrance and affidavits from the file. The hearing being had on the petition and remonstrances, and motion being had to strike the latter from the files, the court entered a decree refusing a license.</p> <p>[And now April 10, 1896, after hearing the applicant, remonstrants and objectors through petitions, remonstrances, written statements, and arguments of counsel, the license was orally refused February 29, 1896, for the reasons that the applicant is not a fit person for the license applied for, and also in addition to this that the place which applied for the license is not a suitable or fit place for such a license. The right is reserved to file a more extended written opinion.] [2]</p> <p>Errors assigned were, (1) refusing to strike remonstrances from the files; (2-5) refusing the order to grant a brewer’s license, as prayed for, not approving the bond and not granting the license.</p>

Appeal, No. 2, Feb. T., 1897, by Isaac M. Gross, from the decree of Q. S. Northumberland Co., Feb. Session, 1896, No. 83, refusing an application for a retail liquor license. Application for retail liquor license in the borough of Sunbury, Penna.

Appeal, No. 91, April T., 1896, by plaintiff, from order of C. P. -Westmoreland Co., Aug. T., 1895, No. 588, refusing rule for judgment for want of a sufficient affidavit of defense. Assumpsit to recover $700 money loaned. A rule was taken for judgment for want of sufficient affidavit of defense on the following statement of claim and affidavit of defense filed: plaintiff’s statement of claim. Westmoreland County, ss.

Appeal, No. 74, Nov. T., 1896, by defendant, from judgment of C. P. Washington Co., Nov. T., 1894, No. 108, on verdict for plaintiff. Appeal from award of viewers. Before Taylor, J. Verdict for plaintiff for $250. This was a proceeding instituted under the act of May 29, 1885, P. L. 29, regulating the method of construction of pipe lines and the manner of exercising the right of eminent domain by gas companies.

Appeal, No. 89, April T., 1896, by defendant, from judgment of C. P. Westmoreland Co., Nov. T., 1894, No. 477, on verdict for plaintiff. Appeal by defendant from judgment of a justice of the peace in an action of assumpsit. Verdict for the plaintiff for $27.91. Before McConnell, J. A buggy was shipped to plaintiff over lines of defendant company. The testimony shows that it was placed in the hands of the defendant company, but was never seen or received by the plaintiff.