Volume 10 — Pennsylvania Superior Court Reports

Appeal, No. 90, Oct. T., 1898, by defendant, from judgment of O. P. Northampton Co., June T., 1896, No. 73, on verdict for plaintiff. Trespass. Before Schuyler, P. J. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiff for $450. Defendant appealed. Error assigned among others was refusal of binding instructions for defendant.

Appeal, No. 88, Oet. T., 1898, by defendants, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1896, No. 151, on verdict for plaintiff. Trespass. Before Brégy, J. It appears from the evidence that defendants used an outlot for dumping ashes from their mills and directly opposite these mills is an opening in the stone wall for the purpose of carting in the ashes.

Appeal, No. 28, Jan. T., 1899, by lefendant, from judgment of C. P. Luzerne Co., Oct. T., 1894, No. 380, on verdict for plaintiffs. Orlady, J., dissents. Trespass. Before Lynch, J. It appears from the evidence that Frank LeGrand a boy thirteen years of age was one of a school picnic party at the Hanover Park picnic grounds where school picnics, among others, were permitted by the railroad-company, owners of the grounds.

Appeal, No. 176, Oct. T., 1898, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1895, No. 715, on verdict for plaintiff. Opinion by Orlady, J. Trespass for personal injuries. Before Pehnypackeb, P. J. ■ It appears from the evidence that plaintiff was injured while crossing a grade crossing in a wagon. The case turned largely on the question of plaintiff’s contributory negligence.

Appeal, No. 160, Oct. T., 1898, by tbe city of Philadelphia, from decree of Q. S. Phila. Co., April T., 1897, Court No. 4, dismissing exceptions to the report of viewers. Opinion by Orlady, J. Exceptions to report of jury of view. Before Arnold, P. J. It appears from the record that a petition was filed, In re opening of Troubat avenue, or Ninth street, from Oak Lane to Sixty-ninth street. It was filed April 20, 1897. On June 6, 1898, there was a reappointment of a jury.

<p>Sheriff's interpleader — Agreement with insolvent debtor — Protection from creditors.</p> <p>A sale of personal property, where tbe rights of creditors are concerned, must be bona fide for a sufficient consideration; the vendor must reserve to himself no rights, interest, privilege, profit or advantage that cannot be reached by execution. The want of these requisites will vitiate the sale and render it null and void as to creditors.</p> <p>Where the plaintiff in a sheriff’s interpleader claims under an agreement with an insolvent debtor made in part to protect such debtor from his creditors, of whom defendant was one, the agreement is fraudulent and the plaintiff cannot recover.</p>

<p>Attachment execution — Promissory notes attachable pending maturity.</p> <p>A debt owing in present but payable in future may be attached; and a promissory note is liable to be attached in the hands of a maker before maturity at the suit of a creditor of the payee or holder but such attachment is subject to the rights of a bona fide holder for value without notice. The doctrine of lis pendens is totally inapplicable to such cases.</p> <p> Judgment not permissible on answers admitting existence of notes not due. </p> <p>A plaintiff in an attachment execution is not entitled to judgment upon answers of the garnishee, for a debt evidenced by a negotiable instrument not yet due, leaving the note afloat in the channels of business. To permit such a judgment which would be a lien on garnishee’s real estate Would be a hardship for which no warrant is to be found in the decisions.</p>

<p>Appeals — Practice, Superior Court — Befusal to affirm points — Oral charge.</p> <p>The record failing to show any request made, before verdict, to have the judge’s charge filed, or that any written requests for instructions were presented to the court or any suggestion of an exception to the action of the court in failing to answer points, it follow's that the assignments of error to the charge and answers to the points have no foundation in the record and the appeal must be quashed.</p>

<p>Appeal, No. 151, Oct. T., 1898, by plaintiff, from judgment of C.. P. No. 1, Phila. Co., June T., 1896, No. 1886, on verdict for defendant.</p> <p>Opinion by W. D. Porter, J.</p> <p>Assumpsit. Before Beitler, J.</p> <p>It appears from tbe record and evidence that this is a suit to * recover $338.76 for loss upon a lot of pineapples and cabbages shipped by plaintiff from Philadelphia to Altoona on June 11, 1892,- over the Pennsylvania Railroad, with interest from June 14,1892. There was evidence tending to show that the fruit and cabbage were sound when shipped but that when they reached Altoona and were ready for delivery they were heated, rotted and unmarketable. The testimony shows that they arrived at Altoona in due and reasonable time and that the car stood on the siding for several hours waiting for the invoice or manifest and that the freight agent at Altoona would not open the doors of the car until the arrival of such manifest. Defendant offered no evidence but rested upon the following clause printed on the back of the bill of lading:</p> <p>“ The carrier shall not be liable for loss or damages by causes beyond its reasonable control, by fire or explosion from any cause and wheresoever occurring; by riots, strikes or stoppage of labor, or by any of the causes incident to transportation, such as chafing, heating,, freezing, leakage, rust, or any other reason not directly traceable to the negfligence of the carrier’s servants.”</p> <p>In 1892 the cause was tried in common pleas, No. 4, Philadelphia county, upon the theory that defendant was bound to ship fruit in summer in a special car called ventilated cars. The court below entered a nonsuit on the ground that under the terms of the bill of lading, the carrier not being liable for loss by heating, chafing, etc., was not bound to ship in a ventilated car without special contract. This was affirmed on appeal, the decision being reported in 178 Pa. 398.</p> <p>The trial judge affirmed the defendant’s point, which was, “ Under all the evidence the verdict must be for the defendant.”</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in affirming defendant’s point for charge, reciting same.</p>

<p>Practice, G. P. — Improper reservation of question of law — Appeal.</p> <p>It is error where the trial judge attempts to reserve facts, law and answers to written requests for instructions presented on behalf of each party. Such action renders it impossible for the appellate court to know from the record what question the court intended to reserve. ■</p> <p>Reserved point — Under all the evidence.</p> <p>The court cannot withdraw the decision of the facts from the jury, by reserving as a point, whether under all the evidence in the case the plaintiff is entitled to recover, unless the essential facts are undisputed or where they are to be determined by the court upon mere inspection of a writing in evidence. Whether the evidence is sufficient is a question of fact which cannot be reserved.</p> <p>Appeal — Exception to entry of judgment — Reserved points.</p> <p>Where the only action of the court complained of is entry of judgment on a verdict for a definite sum there is no error in the entry of judgment unless upon some one of the questions of law reserved the court would have been warranted in entering judgment for the defendant non obstante veredicto.</p> <p>Bad reservation of question of law — Conflicting points and presumptions —Practice, C. P.</p> <p>All points having been reserved they stand upon an equal footing and the recitals of facts contained therein must be taken as true in determining the right to judgment under the reservation, and where the court reserves a number of points containing recitals of facts and the recitals in some of the points are not reconcilable‘with those contained in others, so that upon some of the questions reserved the plaintiff would be entitled to judgment, and upon others judgment ought to be entered for defendant non obstante veredicto the whole reservation is bad and under it no judgment can be sustained.</p> <p>Promissory notes — Belay in notice of protest.</p> <p>The court having reserved all points presented by both parties, and among them a point of the defendant to the effect that notice of protest had been withheld by plaintiff for three days,.it was error to enter judgment on a verdict for plaintiff subject to a point of law reserved.</p>

<p>Subscription'^ stock — Essentials of affidavit of fraudulent inducement.</p> <p>When a contract of subscription to stock is absolute on its face, in order to avoid same on the ground of fraudulent misrepresentations inducing subscription, the defendant must set forth what such representations were; wherein they were false and that he was deceived; this in order that the court may pass upon the materiality of the alleged variance of the representations from the truth. An affidavit, failing to do this must be rejected as vague, indefinite and insufficient.</p> <p> Laches in repudiating fraudulent contract for sale of stock. </p> <p>Omission to repudiate a fraudulent sale of stock within a reasonable time is evidence of an election to affirm the contract. What is a reasonable time when the facts are undisputed is a question of law.</p> <p>In the ease at bar the subscriber had notice of alleged fraud in September, 1896, gave no notice of election to rescind, paid an instalment and raised no question until October, 1897. Held, That defendant having taken the chance of a rise in the market price of a highly speculative stock for one year must abide by his own election.</p> <p>Corporations — Nonpayment of subscription to stock — Interest.</p> <p>Under the Act of May 9, 1889, P. L. 180, no liability other than that fixed by the statute, of one half per cent per month, attaches to delay in meeting instalments due on stock subscriptions. Interest is not due in addition to this allowance.</p>

Appeal, No. 146, Oct. T., 1898, by defendant, from sentence of Q. S. Lebanon Co., Dec. Sess., 1897, No. 55, on verdict of guilty. Opinion by W. D. Porter, J. Dissenting opinion by Rice, P. J. Smith, J., concurring in' dissent. Indictment for larceny and receiving stolen goods. Before Ehrgood, P. J. It appears from tbe record that Ezra H. Light and Levi Sholl 0 were jointly indicted for the larceny of five turkeys.

Appeal, No. 26, Oct. T., 1898, by defendant, from judgment of O. P. No. 3, Phila. Oo., June T., 1893, No. 620, on verdict for plaintiff. Opinion by W. D. Porter, J. Assumpsit.

Appeal, No. 62, Aug. T., 1898, by Rebecca M. Hastings, from judgment of C. P. Lancaster Co., Aug. T., 1898, No. 15, on verdict for plaintiff. Opinion by W. D. Porter, J. Sheriff’s interpleader. Before Brubaker, J. It appears from the record that defendants were execution creditors of N. B. Ferguson. The plaintiff Rebecca M. Hastings claimed certain chattels levied upon, including certain growing wheat, under a bill of sale from defendants in the execution.

Appeal, No. 126, Oet. T., 1898, by Rook Hill Iron & Coal Company, from decree of Q. S. Huntingdon Co., Sept. Sess., 1897, No. 15, dismissing exceptions. Opinion by W. D. Porter, J. Exceptions to report of viewers.

Appeal, No. 4, Feb. T., 1899, by defendant, from judgment of C. P. Lycoming Co., May T., 1885, No. 248, on verdict for plaintiff. Opinion by Beeber, J. Assumpsit. Before Savidge, P. J., of the 8tb judicial district, specially presiding. It appears from the record that summons assumpsit was issued April 7, 1885, to recover certain insurance premiums for which the defendant, it was alleged, was liable.

Appeal, No. 33, Jan. T., 1899, by-plaintiff, from judgment of C. P. Lackawanna Co., May T., 1895, No. 807, in favor of defendant non obstante veredicto. Opinion by Beeber, J. Assumpsit. Before Love, P. J., of the 49th judicial district, specially presiding. It appears from the record that this was an action brought by plaintiff to recover commissions alleged to be due him as a real estate broker for the sale of certain real estate for defendant.

Appeal, No. 12, Feb. T., 1899, by George D. Hoffman, from decree of O. C. Lycoming Co., Dec. T., 1888, No. 21, directing attachment to be issued against George D. Hoffman, administrator, unless he should in ten days pay the amount of costs of audit. Opinion by W. W. Porter, J. Motion for attachment.

Appeal, No. 66, Oct. T., 1898, by defendant, from judgment of G. P. No. 4, Pbila. Co., on ver- dict for plaintiff. Opinion by Rige, P. J. Smith, J., dissents. Assumpsit on promissory note.

Appeal,’No. 18, Oct. T., 1898, by Elizabeth R. Hines, from decree of O. O. Phila. Co., Jan. T., 1897, No. 889, dismissing exceptions of Elizabeth R. Hines, thereto. Opinion by Rice, P. J. Petition for widow’s exemption. Before the court in banc. It appears from the record that the petitioner calling herself Laura B. Hines, the wife of Louis B. Hines, the decedent, who died intestate, filed a petition for widow’s exemption.

Appeal, No. 173, Oct. T., 1898, by defendant, from judgment of O. P. Delaware Co., Mar. T., 1894, No. 154, on verdict for plaintiff. Opinion by Rice, P. J. Trespass. Before Claytoh, P. J. It appears from the evidence that the plaintiff at the time of the commencement of this action, on January 31, 1894, was the owner of a tract of land of about one hundred acres, situate on both sides of Ridley creek with his title extending to the middle of the creek.

Appeal, No. 184, Oct. T., 1898, by defendant, from judgment of O. P. No. 4, Pbila. Co., March T., 1898 No. 1,000, for want of a sufficient affidavit of defense. Opinion by Smith, J. Rice, P. J., filed dissenting opinion in which Orlady, J., concurs. Rule for judgment for want of a sufficiént affidavit of defense. Before the court in bane.

<p>Insurance assessments — Presumption of regularity — Sufficiency of affidavit.</p> <p>The presumption of law is in favor of the regularity of the proceedings to assess and the legality of the assessment by a mutual insurance company, and this presumption cannot be overcome by a general indefinite denial. General averments of matters which in themselves are legal conclusions from facts not stated are insufficient to carry the case to the jury.</p> <p>Practice, O. P. — Affidavit of defense — Certificate of assessment — Act of 1876.</p> <p>Under the Act of May 1, 1876, P. L. 53, a certificate of assessment is made prima facie evidence thereof. It is enough for the declaration to state a cause of action; it need not contain matters of evidence that may become necessary on trial should an affidavit be filed by which the probative force of the certificate is lost. The affidavit must exhibit everything necessary to a defense against the liability set forth in the declaration.</p>

Appeal, No. 26, March T., 1899, by plaintiff, from judgment of C. P. Cumberland Co., in favor of plaintiff on case stated. Opinion by Beeber, J. Case stated. Before E. W. Biddle, P. J. ■' It appears from the case stated that plaintiff claimed for one half year’s water rent for twenty plugs or fire hydrants at the rate of. $20.00' per annum, making in all $200. The facts sufficiently appear from the following opinion and decree of the court below.

Appeal, No. 73, Oct. T., 1898, by defendant, from judgment of C. P. No. 2, Piula. Co., June T., 1896, No. 273, on verdict for plaintiff. Opinion by Smith, J. Trespass.

<p>Practice, O. P. — Pleading—Denial by affidavit — Rule of court — Insurance.</p> <p>Where a rule of court provides that when facts, averred in a statement of claim, are not specifically denied by affidavit, essential averments not so denied shall be taken as admitted, and whei-e plaintiff avers facts essential to recover on a policy of fire insurance and the affidavit alleges that defendant fraudulently set fire to his building and fraudulently induced an adjustment of the loss, the court and jury are bound to assume all other material facts alleged in the statement as true, and the contest will be confined to the two issues of fact thus raised.</p> <p>jEvidence — Pleadings—Issue.</p> <p>Where the pleadings in a suit on an insurance policy raise only two questions, neither one of which is as to the sufficiency or verity of the allegations in the proofs of loss the rule will be enforced that no evidence shall be heard to defeat the recovery which the issues of fact do not require.</p> <p>Evidence — An offer good only in part inadmissible.</p> <p>An offer to prove a fact in itself admissible is bad when it joins therewith an offer to prove facts clearly inadmissible. It is not the duty of the court to separate the admissible from the inadmissible.</p> <p>Evidence — Communication of suspicions not admissible to prove crime.</p> <p>Two persons by communicating their suspicions to each other cannot thereby furnish evidence to' convict a third party of crime.</p> <p>Evidence — Attempt to close mouth of witness — Origin of a fire.</p> <p>An offer to show that plaintiff told a witness and another person that they were talking too much about a fire, made for the purpose of showing a fraudulent attempt to close the mouths of witnesses and prevent an investigation, was properly excluded in a suit on the policy, there being no effort to show what the talk was of which complaint was made.</p>

<p>Appeal, No. 17, March T., 1899, by defendant, from judgment of C. P. York Co., Oct. T., 1897, No. 19, on verdict for plaintiff.</p> <p>Opinion by Beeber, J.</p> <p>Assumpsit on policy of fire insurance for $500.</p> <p>For facts of the case, see next preceding ease, supra, p. 171.</p> <p>Upon the trial in the court below, the plaintiffs offered in evidence the specific averments of fact filed by the plaintiffs under a rule of court, which provided that such specific facts so averred as were not denied by the defendant, should be taken as admitted at the trial. They also offered in evidence the affidavit of defense filed, which the court admitted, to show the plaintiffs’ right to recover in the case because of its insufficiency. Defendant denied that the papers showed any such admission as entitled the plaintiffs to recover, and especially that the specific averments of fact were too indefinite to require a more specific answer from the defendant than was filed.</p> <p>It was also contended by the defendant “ that the policy in suit was avoided under its express terms by the false statement of the plaintiffs contained in the proofs of loss, that there were no incumbrances upon the property insured, whereas in truth and in fact, as the record shows, and the plaintiffs admitted, there were two judgment liens upon the premises, when the insurance was effected, and when the proofs of loss were made out by the plaintiffs, amounting in all to the sum of $4,500.” The court below, however, held that this was not a good defense; that the incumbrances provided against in the policy, were against personal property, viz: chattel mortgages, and that the misstatement in the plaintiffs’ proofs of loss could not, therefore, affect their right to recover. Other assignments of error are based upon the admission and rejection of certain offers of evidence.</p> <p>Defendant submitted certain points, which points with the answers thereto were as follows:</p> <p>[1. Under the terms and conditions of the policy in suit, the making of an adjustment and estimate of the loss by the insured and a representative of the company, as set forth in paragraph four of specific averments of fact, did not, in itself, amount to a waiver of the requirement in the policy that full proofs of loss as therein set forth and required, satisfactory to the company, should be made and delivered to the company at least sixty days before bringing of suit upon the policy. Answer : We answer this point as follows: The statements contained in tbis point are affirmed. We think, however, the company has waived any defense raised by the point by not denying in this answer the furnishing to it of proof of loss mentioned in the specific averment of facts as therein contained.] [1]</p> <p>[2. The proofs of loss furnished by the assured to the company must contain all the material facts, statements and descriptions called for in the policy; otherwise they are insufficient to fulfil the terms of the contract, or entitle the plaintiffs to recover; unless there shall have been a waiver of said requirements in writing by the company, or by an agent duly authorized in writing so to do, as stipulated for in the contract of insurance ; and as this does not appear from the evidence in the case, the plaintiffs are not entitled to recover. Answer: We answer this point as follows: The proof of loss mentioned in the point must be furnished unless the same is waived by the company. Defendant has not denied in his reply to the specific averment of facts that such proof of loss was furnished by the plaintiffs. That appears as an admission therefore, in this case.] [2]</p> <p>[3. The facts alleged in paragraph four of the plaintiffs’ specific averments of fact, viz: that an agent of the defendant’s company on June 23,1897, with the agents of other companies, adjusted and ascertained the whole loss of plaintiffs to be $14,416.23 and the defendant’s share thereof to be one thirty second of the same, viz: $450.51, does not conclude the defendant or prevent it from objecting to the insufficiency of the proofs of loss. Answer: We answer this point as follows: This point is refused. The company is concluded by its admissions in its affidavit of defense and reply to plaintiffs’ specific averments of facts.] [3]</p> <p>[4. That the alleged adjustment and ascertainment of the amount of plaintiffs’ loss on the 23d day of June, 1897, by the alleged agent of the defendant company with agents of other companies and the ascertainment of the proportion thereof payable by this defendant, was not a waiver, in itself, of the condition of the policy requiring written proofs of loss satisfactory to the company, to be furnished to it sixty days previous to tbe bringing of a suit on tbe policy, and if the alleged proofs of loss were, in any material matter, insufficient, incomplete, and not as required by the conditions of the policy, then the plaintiffs have failed to comply with a'condition precedent to their right to bring suit and are not entitled to recover in this case, without proving to the satisfaction of the jury, that said condition of the policy was waived in writing by a duly authorized representative of the company, and there being no evidence in the case that at the time of the execution of the proofs of loss or at any subsequent time, any such waiver was had by plaintiffs from defendant, they cannot recover in this case. Answer: We answer this point as follows: The plaintiffs are not relying on a waiver, as mentioned in the point, but the admission by the defendant of proper proof of loss furnished to the company; and that having demanded no further or more satisfactory proof of loss from the plaintiffs, the corporation defendant is concluded.] [4] ■</p> <p>[5. Upon the law and the facts, as proven in this case, the verdict of the jury should be for the defendant. Answer: We answer this point as follows: This point is refused. We have already said that we think the plaintiffs are entitled to recover upon the admissions in this case. We deem the admissions in this case, in the matter submitted to the court in the pleadings as being sufficient to entitle the plaintiffs to recover, and have directed a verdict for the plaintiffs for the sum already stated. The jury will therefore render a verdict for that sum.] [5]</p> <p>The court charged the jury in part as follows:</p> <p>[The pleadings in this case, as I said before, show these admissions, in the judgment of the court making out a case for the plaintiffs: That a specific averment of facts was served upon the defendant setting forth substantially the facts which I have mentioned, the insurance, and loss of the buildings and contents by fire, and the meeting of the agents of the companies, and the adjustment of the loss. Those facts, as admitted, in the opinion of the court, are sufficient for the plaintiffs to recover, without any further proof on their part. Therefore what stand as admissions in this case entitle the plaintiffs to recover this sum of money; and the verdict of the jury will be for the plaintiffs in this case, against the defendant, for the sum of $450.51, with interest from June 23,1897, amounting to ¿18.94, and the whole amounting to $468.99.] [6]</p> <p>Verdict and judgment for plaintiffs for $468.99. Defendant appealed.</p> <p>Errors assigned among others were (1-5) answers to defendant’s points, reciting points and answers. (6) To portion of the general charge, reciting same. The other assignments were to the rejection of offers of evidence by defendant of certain proofs of loss, furnished by plaintiffs, for the purpose of showing that no proofs of loss were furnished as alleged in plaintiffs’ averments of facts, but that they were furnished on a subsequent date; also to offers by defendant to prove that there were incumbrances on the real estate covered by the policy which were not set forth in the proofs of loss as required by the terms of the policy on which suit was brought.</p>

Appeal, No. 25, March T., 1899, by plaintiff, from decree of C. P. Dauphin Co., Jan. T., 1898, No. 71, staying execution so far as it effects the real estate of terre-tenant. Opinion by Beaver, J. Rule to show cause why execution, so far as it affects the real estate of Alda P. Cunningham, terre-tenant, should not be stayed.

Appeal, No. 95, Oct. T., 1898, by Lansdowne borough, from judgment of C. P. Delaware Co., Dec. T., 1897, No. 230, on verdict for plaintiff. Opinion by Smith, J. Trespass.

<p>Amendment — Practice, C. P. — Demurrer to amended statement.</p> <p>Where an amendment, within the power of the court to allow, which did not change the cause of action although broad enough to permit the introduction of proof on the trial which might otherwise have been excluded is made, the better practice is to demur to such amended statement if it be objectionable ; when the cause goes to trial on the amended statement the defect in the pleading if any is cured.</p> <p>Charge of court — Accidental and immaterial error.</p> <p>Where the liability sought to be imposed upon two members of a firm served by process was not individual but one growing out of a partnership of which they were members, the appellate court will not reverse for an accidental misstatement of the trial judge that the issue was one between the plaintiffs and four members, naming them, constituting the defendant firm.</p> <p>Partnership — Evidence—Authority of partner to bind partnership.</p> <p>In a suit against a firm, of which only two members were served and where the mouths of the immediate parties are closed by the death of the plaintiff, evidence of admissions of the firm’s liability, made by the members thereof who were not served, is admissible to charge the members of the partnership who were served with a debt contracted on behalf of said partnership by any of the partners in the ordinary course of 'business.</p> <p>Evidence — Memorandum of sale — Admission of indebtedness.</p> <p>A written memorandum of sale although not a book entry is admissible as evidence of an admission of indebtedness when identified and explained by adequate parol testimony.</p>

Appeal, No. 22, Jan. T., 1899, by defendant, from definitive decree of C. P. Carbon Co., Oct. T. 1896, No. 115, refusing to open judgment and let defendant into a defense. Opinion by Smith, J. Rule to open judgment for $750. Before Craig, P. J. The facts sufficiently appear from the opinion of the court below as follows: This' is an application to open a judgment. It is addressed to our equitable discretion.

Appeal, No. 128, Nov. T., 1898, by plaintiff, from judgment of C. P. Montgomery Co., Oct. T., 1897, No. 171, in favor of defendant on case stated. Opinion by Smith, J. Case stated.

Appeal, No. 181, Oct. T., 1898, by plaintiff, from order of C. P. No. 4, Pbila. Co., Sept. T., 1898, No. 548, discharging rule for judgment for want of a sufficient affidavit of 'defense. Opinion by W. W. Pobteb, J. Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc. It appears from the record that the action was assumpsit.

Appeal, No. 215, Oct. T., 1897, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1892, No. 639, on verdict for plaintiff. Opinion by W. W. Porter, J. Rice, P. J., and Smith, J., dissent. Assumpsit. Before Audehreid, J. It appears from tbe record that the action was originally brought in trespass and was subsequently changed by agreement of counsel to assumpsit.

<p>Ejectment — New title set out by defendant — Execution.</p> <p>Where defendant’s title has been settled adversely, by an action in ejectment, he may not set up, to restrain a writ of habere facias, a lease, subsequently made by the alleged owner of an undivided fourth part of the premises who was not a party defendant in the ejectment. He must first surrender possession to the plaintiff in the ejectment and then try his new title by an ejectment in which he would be the plaintiff.</p>

Appeal, No. 38, March T., 1899, by Levi Failor, from decree of O. C. Cumberland Co., discharging citation to the register of wills and dismissing appeal from decision of said register. Opinion by W. W. Porter, J. Appeal from decision of register of wills.

Appeal, No. 95, April T., 1899, by defendant, from sentence of Q. S. Allegheny Co., June Sess., 1896, No. 452, on verdict of guilty. Opinion by Orlady, J. Indictment for embezzlement of $26,652.74. Before Kennedy, P. J. The facts sufficiently appear in the opinion of the court and from the reports of this case on former appeals, 8 Pa. Superior Ct. 304, and 6 Pa.

Appeal, No. 68, April T., 1899, by defendant, from order of C. P. No. 8, Allegheny Co., May T., 1898, No. 375, discharging rule to vacate judgment. Opinion by Beeber, J. Rule on plaintiff to show cause why judgment confessed on a lease by warrant of attorney should not be set aside and vacated. The facts sufficiently appear in the opinion of the court. The court below discharged the rule to set aside and vacate judgment. Defendant appealed.

Appeal, No. 7, Feb. T., 1899, by plaintiff, from order of C. P. Lycoming Co., Dec. T., 1897, No. 284, discharging rule for judgment for want of a sufficient affidavit of defense. Opinion by Rice, P. J. Assumpsit on policy for $1,000 on the life of plaintiff’s husband. Before McClure, P. J., of the 17th judicial district, specially presiding. The facts sufficiently appear from the opinion of the court below discharging rule for judgment.

<p>Appeal, No. 65, April T., 1899, by Sarah J. McIntosh, defendant, from judgment of C. P. Fayette Co., Dec. T., 1897, No. 339, on case stated in favor of plaintiff.</p> <p>Opinion by Rice, P. J.</p> <p>Case stated. Before Reppebt, J.</p> <p>The facts sufficiently appear in the opinion of the court below.</p> <p>September 5,1882, Samuel B. G. Jobes conveyed to Sarah J. McIntosh, one of the defendants, the property in dispute. Said defendant was a pensioner of the United States, being the widow of a soldier, and the property was purchased with pension money transmitted to and received by her and retained in her possession for several months prior to the purchase. Two judgments were recovered against Sarah J. McIntosh in 1892, and one in 1896. Executions were issued on these judgments and levied upon the property in dispute and the property was sold August 28,1897. The sheriff’s deed to the purchaser was acknowledged and delivered • September 8, 1897. The property was purchased by R. L. Aubrey, the plaintiff in the executions, who brings this action to recover possession of the same, claiming title under the sheriff’s deed. The defendants allege that the property having been purchased with the pension money of Sarah J. McIntosh is exempt from seizure and sale on execution under section 4747 of the Revised Statutes of the United States, which provides that: “No sum of money due, or to become due, to any pensioner, shall be liable to attachment, levy, or seizure, by or under any legal or equitable process whatever, whether the same remains with the pension office, or any officer or agent thereof, but shall inure wholly to the benefit of such pensioner.”</p> <p>- In- Rozelle v. Rhodes, 116 Pa. 129, it is held that money received from the government by a pensioner of the United States and by him deposited in the hands of a bailee for safe-keeping, to be returned in the identical money deposited, is subject to an attachment execution. In discussing the section of the Revised Statutes above quoted Mr. Justice Clark says : “ The money which is exempted from legal seizure, under this section, it will be observed is particularly designated: it is, ‘ any sum of money due or to become due to any pensioner.’ This refers, of course, to any money due or becoming due from the pension department ; it is not pretended that the language of the statute can have any wider application than this. The further provision is, that such money shall not be liable to levy or seizure, under any process in law or equity, ‘whether it remains with the pension office, or any officer or agent thereof.’ It is very plain that the $800 in the hands of Tillinghast is not ‘ money due or to become due ’ from the pension department; nor is it money which remains in the pension office, or in the hands of any officer or agent thereof: It is money which sometime previous to the attachment had been paid to the pensioner, and which when paid to him inured wholly to his benefit; it was his money, he could dispose of it as he pleased. The exemption provided by the statute, upon any fair and reasonable construction, will only protect the fund whilst in course of transmission to the pensioner ; after that, it is liable to seizure as other money.” And he regards this intention of the section as analogous to the rule of law protecting the fees and salaries of public officers from process so long as they maintain their distinctive character.</p> <p>In Holmes v. Tallada, 125 Pa. 133, a pensioner received a cheek for accrued pension, indorsed and gave it to his wife, who drew the money and applied it to the purchase of real estate, taking the title in her own name. The question to be decided in that case, as stated in the opinion of Mr. Chief Justice Paxson, was “ whether it was a fraud upon creditors for Jackson Tallada to give this money to his wife for the purpose of purchasing a home for their joint benefit.” It was held that the real estate so purchased was not liable for the debt of the husband contracted prior to the issue of the pension check. The chief justice expressly disclaims in his opinion the discussion of the question whether property purchased by a pensioner with pension money, and held in his own name, would be liable to execution for his debts. “Nosuch question,” he says, “is before us.” He is equally careful to recognize and distinguish the case of Rozelle v. Rhodes, above referred to.</p> <p>’ In the case of Reiff v. Mack, 160 Pa. 265, it was decided that an attachment execution will not lie against the proceeds of a pension check deposited by a pensioner with a bank for collection, and which the bank, after collection, placed to the pensioner’s credit as a deposit. In a per curiam the court says: “ According to the undisputed evidence the money attached was part of the proceeds of the pension check which defendant deposited with the garnishee bank for collection. It was subject to his check, and was in fact part of his pension money which, as cash, had not yet come in to his hands.”</p> <p>Nor are we unmindful of the very able and ingenious opinion of the lower court in this case, written by Judge Exdlioh, in which all the decisions bearing on this section are elaborately and fully reviewed and discussed. He regards the decision in Holmes v. Tallada as authorizing three inferences :</p> <p>1. That congress may exempt the gratuity given by it to a pensioner, in his hands, from liability for his debts under the laws of this state.</p> <p>2. That, by the language of its enactment, it has done so.</p> <p>3. That, therefore, property acquired by means of pension money is exempt from levy and sale upon execution.</p> <p>Applying these inferences to the facts of the case in hand the learned judge of the lower court reasons as follows:</p> <p>The deposit of the pension check made the money paid upon it the properly of the bank. The bank received it. In return the bank became debtor to the defendant for that amount, that is the defendant became the holder of a claim upon the bank, a chose in action. In other words, in exchange for this money paid by the government of the United States as a pension to the defendant, the latter became the owner of another kind of property, viz: a credit with the bank which enabled him to draw upon it. This property therefore, being acquired with pension money and in the hands of the pensioner, was exempt from seizure for his debts.</p> <p>While the Supreme Court sustained the lower court in dissolving the attachment, their action does not seem to be based on the reasoning of the court below. There is no indorsement of the conclusion of the lower court that property acquired by means of pension money is exempt from levy and sale upon execution. On the contrary, the reason assigned was that according to the undisputed evidence the money attached was part of the defendant’s pension money which, as cash, had not yet come into his hands, a principle which is in entire harmony with the former rulings of the court.</p> <p>In Holmes v. Tallada, above cited, Chief Justice Paxson says that the rational inference of the words of the act of congress “ shall inure to his own benefit,” is that the pensioner may use the money in any manner he may see proper for his own benefit and to secure the comfort of his family, free from the attacks of creditors. Bearing in mind the facts of that case, we think the fair inference from the language of the chief justice is that any disposition — made by the pensioner of pension money is not in fraud of creditors and cannot be questioned. He may keep it in his pocket; he may invest it in real estate in the name of another; he may take any step that seems advisable to protect it from his creditors, and his action will not be fraudulent. He may take any of these precautions to the end that his pension “ shall inure to his own benefit,” and for that very reason, a pension being a voluntary payment by the government, such precautions are not in fraud of creditors. That, however, is very far from saying that if he purchases property with his pension money, taking and holding the title and possession in his own name and right, such property is exempt from levy and sale upon execution. When pension money received by and in tbe possession of the pensioner is so applied, properly purchased, title acquired, possession taken, it has inured wholly to the benefit of the pensioner within the meaning of the act of congress as that act is interpreted in Rozelle v. Rhodes, supra, and is subject to levy and sale on execution. We do not think such a construction of the act is hostile to the ruling of the Supreme Court in Holmes v. Tallada.</p> <p>That credit shall not attach to such property is a hardship upon the honest owner, opens an easy door to fraud and invites dishonesty.</p> <p>As we understand the interpretation of the act of congress by the Supreme Court the money exempt from legal seizure is money due or becoming due the pensioner from the pension department ; the exemption provided by the act protects the fund only while in the course of transmission to the pensioner. When the money has been paid to him it has “ inured wholly to his benefit” and it is liable to seizure as opportunity presents itself. The pensioner, however, may use the money in any manner, for his own benefit and to secure the comfort of his family, free from the attacks of creditors, and his action in so doing will not be a fraud upon them.</p> <p>In the case at bar the property was purchased in 1882, with pension money transmitted to and received by the pensioner several months prior thereto and in the mean time retained in her possession. Many years afterwards judgments were recovered against the pensioner and the property seized in the execution and sold. No objection having been raised to the regularity of the proceedings, we think the purchaser takes a good title, and we therefore direct judgment to be entered for the plaintiff.</p> <p>The court below entered the following order:</p> <p>And now, September 5,1898, after consideration, and for the reasons set forth in the opinion filed herewith, it is ordered and directed that judgment be entered for the plaintiff and against the defendant for the premises described in the writ with six cents damages and costs.</p> <p>S. J. McIntosh appealed.'</p> <p>Error assigned was in making the order for judgment to be entered in favor of plaintiff.</p>

<p>Appeal, No. 52, April T., 1899, by plaintiffs, from order of C. P. No. 2, Allegheny Co., July T., 1898, No. 317, allowing appeal from alderman to be filed nunc pro tunc.</p> <p>Per curiam.</p> <p>Appeal by defendants from judgment of alderman.</p> <p>The following facts appear from the docket entries:</p> <p>Appeal by defendant from judgment of alderman Jno. Burns on April 15,1898, in favor of plaintiff for $226 and costs, $3.15, paid by defendant; Chas. Dugan bail in $50.00 for costs. And now, June 6,1898, petition presented in open court and rule granted on defendant, to show cause why appeal should not be stricken off. Returnable- June 11,1898, at 9: 30 A. m:. June 21, 1898, on argument list, rule discharged and appeal allowed to be filed nunc pro tunc as of May 2, 1898.</p> <p>Order allowing appeal nunc pro tunc. Plaintiffs appealed.</p> <p>Errors assigned were (1) in discharging rule to show cause why appeal should not be stricken off. (2) In making order allowing appeal to be filed nunc pro tunc as of May 2, 1898.</p>

<p>Reargued Feb. 14, 1899. Appeal, No. 188, April T., 1898, by defendant, from judgment of C. P. Warren Co., Sept. T., 1897, No. 26, on verdict for plaintiff.</p> <p>Opinion by Orlady, J.</p> <p>Trespass for personal injuries. Before Noyes, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>At the trial defendant submitted among others the following point:</p> <p>[9. Under the pleadings and. evidence in this case the plaintiff is not entitled to recover. Answer: The defendant’s ninth point asks us to take the case from the jury and is answered in the negative.] [5]</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Error assigned among others was (5) refusing to affirm defendant’s ninth point, reciting point and answer.</p>

Petition, by J. McD. Scott, for writ of habeas corpus from commitment of C. P. No. 8, Allegheny Co., Feb. T., 1899, No. 324, on fraudulent insolvency. Opinion by Rice, P. J. Petition for writ of habeas corpus.

Appeal, No. 16, Jan. T., 1899, by defendants, from judgment of C. P. Wyoming Co., Nov. T., 1896, No. 114, on verdict for plaintiff. Opinion by Rice, P. J. Trespass. Before Dunham, P. J. It appears from the evidence that H. O. Frost owned a farm upon which he and the plaintiff, his wife, resided. In 1893 there were several judgments against H. C. Frost, among them one of his wife Betsy Frost for $676, and another in favor of Charles Allen for $100.

Appeal, No. 49, April T., 1899, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1894, No. 15, on verdict for defendant. Opinion by Beaver, J. Scire facias sur lien for municipal taxes. Before Collier, J. It appears from the record that the city assessed for municipal taxes a lot of ground belonging to the defendant.

Appeal, No. 13, April T., 1899, by defendants, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1897, No. 20, on verdict for plaintiff. Opinion by Beaver, J. Trespass.

Appeal, No. 228, April T., 1899, by plaintiff, from order of C. P. Clarion Co., May T., 1898, No. 204, discharging rale for judgment for want of a sufficient affidavit of defense. Opinion by W. W. Porter, J. Sci. fa. to revive. Before Clark, P. J. It appears from the record that defendant confessed judgment in an amicable action before a justice in favor of his brother, William Steltzer, for the sum of $410 on August 5,1878.

Appeal, No. 15, March T., 1899, by defendant, from order of C. P. Franklin Co., Dec. T., 1896, No. 51, making absolute rule to show cause why defendant’s claim to exemption should not be dismissed. Opinion by W. W. Porter, J. Beaver and Orlady, JJ., dissent. Rule to dismiss claim for debtor’s exemption.

Appeal, No. 89, April T., 1899, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1898, No. 753, in favor of plaintiff for want of a sufficient affidavit of defense. Opinion by W. W. Porter, J. Assumpsit. Before the court in banc. The facts sufficiently appear in the opinion of the court. Judgment for plaintiff for $362.02. Defendant appealed. Error assigned was entry of judgment in favor of plaintiff for want of a sufficient affidavit of defense.

Appeal, No. 177, Oct. T., 1898, by plaintiff, from judgment of O. P. No. 1, Phila. Co., Dec. T., 1895, No. 104, on ease stated. Opinion by W. W. Porter, J. Case stated. Before the court in banc.

Appeal, No. 17, April T., 1899, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1897, No. 715, on verdict for plaintiff. Opinion by W. W. Porter, J. Trespass. Before Collier, J. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiff for $1,000. Defendant appealed. Error assigned was refusing binding instructions for defendant.

Appeal, No. 74, April T., 1899, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1896, No. 512, on verdict for defendants. Per curiam. Trespass.

Appeal, No. 118, Oct. T., 1898, by plaintiffs, from judgment of C. P. No. 4, Phila. Co., March T., 1898, No. 899, for want of a sufficient affidavit of defense. Opinion by W. W. Porter, J. Assumpsit. Before the court in banc. It appears from the record that action was brought on a bill of exchange at sight accepted by defendant for $838 for certain oranges shipped by the plaintiff from California to the defendant in Philadelphia.

Appeal, No. 78, Oct. T., 1897, by John Kane, from decree of Q. S. Phila. Co., Dec. T., 1896, setting aside report of viewers. Opinion by W. W. Porter, J. Exceptions to report of road jury in the matter of narrowing Cresson street between Shur’s lane and Cedar street.

Appeal, No. 36, April T., 1899, by Keeling & Ridge, defendants, from judgment of C. P. No. 2, Allegheny Co., April T., 1897, No. 204, on verdict for plaintiff. Opinion by BeeBER, J. Trespass. Before Frazer, J. It appears from the evidence that defendants, Keeling & Ridge, as contractors for the city of Pittsburg, under authority of an ordinance of that city, were engaged in constructing a sewer in front of plaintiff’s premises.

Appeal, No. 150, Oct. T., 1898, by plain tiff, from decree of O. P. Huntingdon Co., Sept. T., 1896, No. 78, dissolving partnership, directing payment of a withdrawal value of the interest of an outgoing member of the partnership association. Opinion by Beaver, J. Exceptions to referee’s report upon bill, answer and proofs.

Appeal, No. 28, March T., 1899, by Catharine Neff, from decree of O. C. Franklin Co., overruling exceptions to auditor’s report and confirming said report. Opinion by Beaver, J. Exceptions to report of auditor appointed to audit the account of the executors of Paul Ritter, deceased, and to make distribution of the estate. Before Stewart, P. J. It appears from the evidence that testator executed a judgment by single bill in favor of Catharine Neff for $1,000.

Appeal, No. 281, April T., 1899, by defendant, from judgment of C. P. Cambria Co., June T., 1897, No. 299, on verdict for plaintiff. Opinion by Rice, P. J. Assumpsit. Before Greer, P. J., of the 50th judicial district, specially presiding. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiff for $335. Defendant appealed.

Appeal, No. 232, April T., 1899, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. Term, 1897, No. 536, on verdict for plaintiff. Per curiam. Assumpsit. Before Shaeer, J. It appears from the record that plaintiff recovered a verdict for $1,000 and a motion was made for a new trial.

<p>Evidence — Admissibility of affidavit to show admissions — Rule of court.</p> <p>Where an affidavit of defense in a suit on an insurance policy admits the execution of the policy and its delivery, but denies the adjustment and the furnishing of proofs of loss, the specific averment of facts and affidavit is admissible in evidence for the purpose of showing these admissions.</p> <p>Evidence — Affidavit of defense not admissible as evidence for defense.</p> <p>•An affidavit of defense is not admissible in evidence on the part of the defendant as evidence of the facts alleged therein.</p> <p>Statutes — Act of 1883 — Insurance—Notice to agent who countersigned policy.</p> <p>Under the Act of June 27, 1883, P. L. 165, the conditions of the policy are complied with when notice of loss and preliminary proofs are given to the agent of the company who countersigned the policy within the time designated by the act.</p> <p>Practice, G. P. — A point of law refused which assumes a fact whose existence is the crucial point of the case.</p> <p>The crucial point of the case being whether or not proofs of loss had been received by the defendant company it was not error to refuse a point which assumed that proofs had not been received when there was sufficient evidence given by the plaintiff to carry the case to the jury.</p> <p>Cross-examination — Scope touching inconsistent statements.</p> <p>It is permissible on cross-examination to show that a witness on a prior occasion has made statements inconsistent with his present one for the purpose of showing that his account of matters, as to which he is giving testimony, has not always been the same, but not for the purpose of showing that witness had deceived others. It is a legitimate way to impeach the testimony of a witness.</p> <p>Insurance — Buie as to incumbrances and false statements.</p> <p>Subsequent incumbrances defeat the policy, whether they fall upon the property with or without the knowledge or consent of the insured; this rule also applies where a false statement is made in the application upon which the policy is issued; but it is held that judgments which were incumbrances prior to the time of issuing the policy do not invalidate it when it does not appear that the plaintiffs ever made any false statement as to them upon the faith of which the property was insured.</p> <p>False statements in proof of loss — Fraud—Question for jury.</p> <p>Mere concealment of the existence of incumbrances, made in proofs of loss, do not defeat the policy without evidence that it was done wilfully and knowingly and with a view to cheat the company.</p> <p>Insurance — Defective answers in proof of loss — Duty of company to return.</p> <p>An insurance company may not hold proofs of loss with knowledge of the defect in them, and then, on the trial, attempt to avail itself of the defects unless it has notified the insured and given him a chance to correct them. Failing in this, it will be presumed that it is satisfied with the proofs as received in the first instance.</p> <p>If the answer to a question in proofs of loss is ambiguous, or if there is no answer at all, and if the insurer wants specific, definite information, it is its duty to return the proofs with information as to the defects to be remedied and ask for more specific proofs.</p>

<p>Appeal, No. 18, April T., 1899, by defendant, from judgment of C. P. Erie Co., May T., 1896, No. 46, on verdict for plaintiff.</p> <p>Opinion by W. D. Porter, J.</p> <p>Sci. fa. sur municipal lien. Before Wallusíg-, P. J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The defendant presented among others the following points, which were refused by the court below:</p> <p>[1. If the jury find from the evidence that the mayor of the city of Erie did not approve the concurrent resolutions of the councils (submitted to him October 6,1893, and returned October 17,1893), declaring the purpose of the city of Erie to order Eleventh street, between Cherry and Liberty streets, to be paved at the expense of the abutting property, the verdict should be for the defendant.] [1]</p> <p>[3. The 6th section of article 4 of the Act of May 23, 1889, P. L. 283, governing cities of the third class, provides for competitive bidding and requires that contracts (for paving, etc.),- be given to the lowest responsible bidder, and if the jury find from the evidence that the contract in this case was not let to the plaintiff upon his bid of $2.43 per square yard, but was let at another price in pursuance of an agreement between the plaintiff, V. D. Eiehenlaub, and the street committee of the councils of the city of Erie, or any members thereof at another and a different price, the contract is void and the plaintiff cannot recover.] [2]</p> <p>[4. If the jury find from the evidence that the plaintiff, Y. D. Eiehenlaub, was not the lowest bidder he cannot recover in this action and the verdict must be for the defendant.] [3]</p> <p>[5. Under all the evidence in this case the plaintiff, Y. D. ■ Eiehenlaub, cannot recover and the verdict must be for the defendant.] [4]</p> <p>The court directed a verdict for plaintiff. Verdict and judgment for plaintiff for $191.60. Defendant appealed.</p> <p>Errors assigned among others were (1-4) refusing defendant’s first, third, fourth and fifth points, respectively, reciting same. (5) To the charge to the jury in instructing them to enter a verdict for plaintiff for the original amount of the lien and interest thereon.</p>

Appeal, No. 46, Oct. T., 1898, by defendant, from judgment of C. P. Northampton Co., Dee. T., 1896, No. 68, on verdict for plaintiff. Opinion by Smith, J. Dissenting opinion by W. D. Pobteb, J. Issue awarded by court on appeal from report of viewers.

<p>Building association — Paid-up value of stock — Attachment execution.</p> <p>There having been an election by a stockholder to appropriate building association stock to the payment of a mortgage, and an acceptance of an assignment by the association upon the express trust that it should be so applied, it follows that instalments paid upon the stock are to be taken as paid upon the loan and a purchaser at sheriff’s sale under a junior judgment takes title subject to the balance unpaid upon the mortgage which is to be ascertained by allowing credit upon the loan for the value of the stock which the parties by their agreement have appropriated to its payment. The value of the stock is not subject to attachment in the hands of the building association at the instance of another creditor.</p> <p>Building association — Mortgage—Applications of instalments on stock.</p> <p>Payment of dues upon building association stock does not, ipso facto, work an extinguishment of so much of the mortgage; the debtor may so apply it but the payment itself is not an application of the money to the reduction of the mortgage. The law does not against the consent of the debtor apply the instalments paid by him upon his stock to the discharge of his indebtedness for the money borrowed. In the absence of an appropriation by either party a purchaser at sheriff’s sale of the mortgaged premises cannot compel an application of the collateral security to reduce the mortgage.</p> <p>In the absence of evidence of authority in the secretary of a building and loan association to bind the association by statements as to the amounts due upon its mortgages, such statements are not binding. Such authority is not to be inferred from the nature of the office.</p>

Appeal, No. 71, Oct. T., 1898, by plaintiff, from decree of C. P. Northumberland Co., No. 214, Equity Docket, Dec. T., 1897, refusing injunction and dismissing plaintiff’s bill. Opinion by Orlady, J. Hearing on bill, answer and proofs.

Appeal, No. 8, Oct. T., 1898, by William J. McAuliffe, from decree of O. C. Phila. Co., Jan. T., 1895, No. 154, sustaining exceptions to adjudication surcharging guardian with the sum paid for premiums on surety bond. Opinion by W. D. Porter, J. Exceptions to adjudication. Before the court in banc.

<p>Appeal, No. 226, April T., 1899, by defendant, from judgment of C. P. Venango Co., April T., 1898, No. 54, on verdict for plaintiff.</p> <p>Opinion by Beaver, J.</p> <p>Assumpsit. Before Criswell, P. J.</p> <p>It appears from the evidence that this was an action to recover the price of a road machine purchased by the commissioners of Allegheny township. [The court permitted evidence of the plaintiff’s agent as to what took place between himself aird the commissioners.] [1, 2] [But it excluded the offer on the part of defendant that such machines were not being used in Allegheny township and were not proper or necessary to the maintenance of the public highways of the township and that the purchase and use of the machine were nothing more than unnecessary experiments.] [8]</p> <p>The plaintiff submitted a point, which point and answer are as follows :</p> <p>[The road commissioners are the judges of what machinery and implements are necessary for the making and repairing of the public highways, and their determination of such questions is prima facie binding on the township. Answer: Affirmed; any action by the commissioners in respect to such matters, taken in good faith while acting in behalf of the township, was prima facie binding on the township.] [10]</p> <p>Defendant submitted the following point, which point was ■ refused:</p> <p>[To entitle the plaintiff to recover, the burden of proof is on it to show that the contract in question was consummated as the result of the official action of the commissioners, and the best evidence of such action is the minutes or records of the township clerk. The plaintiff having failed to prove such official action by said minutes or record, is not entitled to recover.] [8]</p> <p>Yerdict and judgment for plaintiff for $761.40. Defendant appealed.</p> <p>Errors assigned among others were (1-8) to rulings on questions of evidence as indicated in the statement of fact. (7) Refusing binding instructions for defendant. (8) Refusing defendant’s second point, reciting point and answer. (10) In answer to plaintiff’s point, reciting point and answer.</p>

Appeal, No. 31, Jan. T., 1899, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1892, No. 364, on verdict for plaintiff. Opinion by Smith, J. Orlady and W. W. Porter, JJ., dissent. Trespass for injuries to a horse resulting from alleged negligence of defendant company. Before Lynch, J. The facts sufficiently appear in the opinion of the court. Verdict and judgment for plaintiff for 183.00. Defendant appealed.

Appeal, No. 87, Nov. T., 1898, by plaintiff, from judgment of C. P. Lancaster Co., Sept. T., 1897, No. 48, on verdict for defendant. Opinion by W. D. Pobteb, J. Smith, J., dissents. Feigned issue. Before Bbubakeb, J. It appears from the record and tbe evidence that Catharine Diller, the plaintiff in this issue, sold certain chattels to William T. Nelson and accepted notes in payment therefor. The notes were not met at maturity.

Appeal, No. 114, Oct. T., 1898, by defendant, from judgment of O. P. No. 3, Phila. Co., March T., 1898, No. 436, on verdict for plaintiff. Opinion by W. D. Pobteb, J. Trespass for personal injuries.

<p>Appeal, No. 139, Oct. T., 1898, by defendant, from judgment of C. P. Berks Co., May T., 1898, No. 118, for want of a sufficient affidavit of defense.</p> <p>Opinion by Oblady, J.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc.</p> <p>The facts sufficiently appear from the following per curiam opinion of the court below making absolute rule for judgment:</p> <p>Defendant held a judgment, No. 61, April term, 1892, J. D., against the Berks County Agricultural and Horticultural Society. On July 27,1892, he assigned this judgment to plaintiffs’ decedent, at the same time giving him a note for $840, the amount paid and received in the transaction; which note was, by writing indorsed upon it, declared to be given as collateral security to secure the payment of the judgment. This note was renewed on October 23, 1893, with a like indorsement, and it is this renewal note that is now sued upon. The affidavit and supplemental affidavit of defense allege that the original note was given with the distinct understanding that the payee should proceed upon the judgment for collection of the amount due thereon; that, in spite of that understanding and of repeated requests on defendant’s part to have it carried out, no such proceedings were taken; that the renewal note in suit was given by defendant at the urgent instance of the payee and upon the strength and in pursuance of his promise and agreement that he would, before the date of its maturity, issue execution upon the judgment; that he again neglected to do so; that defendant notified him in writing on April 29,1895, to take measures to collect the judgment, or return the note, upon which defendant protested he would no longer consider himself liable; that decedent repeatedly promised to return it and said he would not look to defendant for payment of it; and that the judgment might have been collected from the defendant therein.</p> <p>An arrangement such as is evidenced by the indorsement upon the note in suit is, in Lishy v. O’Brien, 4 W. 141, distinctly declared not to be in the nature of a guaranty as ultimate security. The defendant’s note was just what the parties called it, a collateral security, i. e., a concurrent security for another debt, designed to increase the means of the creditor to realize the principal debt: Munn v. McDonald, 10 W. 270. Apart from any express restriction upon his use of a collateral note, the creditor has an undoubted right to sue and recover upon the latter whenever it becomes due, without first resorting for payment to the original debtor: Lishy v. O’Brien, supra. It follows, that, in this case, the defendant could not set up, against his liability either upon the original or upon the renewal note, the plaintiff’s failure to collect the judgment assigned to him, unless his rights were subject to an express and binding stipulation first to exhaust his means of obtaining satisfaction by proceeding upon the judgment within a specified time. As to the original note, the affidavits clearly fail to aver, such a condition of tilings. It is an elementary rule, that whatever fact, material to the defense, is not stated in an affidavit is taken, not to exist: Lord v. Ocean Bank, 20 Pa. 384. Hence, in a suit upon a written obligation, a defense based upon an alleged parol stipulation contemporaneous with the execution and delivery of the writing and relied upon to control it, must aver that the latter was given upon the faith of the former : Martin v. Berens, 67 Pa. 459; Callan v. Lukens, 89 Pa. 134. Moreover, the parol matter set up to overcome the effect of the writing must either be shown to have been an agreement, or the representations in which it consisted must be set forth in order to enable the court to judge whether they amounted to an agreement, the mere allegation of an “ understanding ” being insufficient: Hinckley v. Shope, 2 Pears. 1-7. All we have in the original affidavit is an allegation of a “ distinct understanding,” both as to the original note and the renewal. As to the latter, the supplemental affidavit declares that it was given “ upon the strength of and in pursuance of ” decedent’s “ promises and agreements ” to proceed upon the judgment within the period for which the renewal was given, or, failing in this, not to ask for a further renewal, but to return the note. The original note, it would thus appear, was not subject to any parol defense which the court is at liberty to consider. Upon its maturity, therefore, the decedent was presumptively free to proceed for its collection from defendant. If, instead of so doing, he accepted a renewal of it, this was, it would seem, by way of forbearance, an accommodation, a benefit to the defendant, not to the decedent. The defendant owes the decedent the money. ■ Decedent holds defendant’s note presently enforceable. Decedent grants to defendant an extension of one year for the payment of it, by taking the renewal note. In other words, he gets nothing, but grants an indulgence. So much is indisputable, and so far the transaction is binding. But when we are told that he promised something more, viz: not to hold defendant on this renewal note, but to return it, unless he should, before its maturity, proceed against the society on the judgment against it, and that this promise was the moving inducement in the execution and delivery of the .note by defendant, we are treated to a contradiction within the four corners of the affidavits themselves. Not only do they aver, that, whilst the relation of creditor and debtor existed between the decedent and the defendant, the positions of the parties, as usually inch dent to such relation, were reversed, and the debtor undertook to impose conditions upon his forbearing creditor; but, whilst asserting that his assent to those conditions was the inducement to defendant’s execution of the note in suit, they also show that the consideration for the original note was the purchase of the judgment by decedent from defendant and the payment to the latter of 1840 for it, and the consideration for the renewal note, was the decedent’s forbearance of collection of the original note which was due because of the nonpayment of the judgment. If there was any further promise made by the decedent, it was ' clearly not by way of inducement in any proper sense of the word, which is something that enters into the consideration and for that reason enforceable in equity, even if not expressed, but a gratuitous undertaking on his part, disconnected with the consideration supporting the note — in short, nudum pactum, which is not available as a defense: Megargee v. R. R. Co., 2 W- N. C. 535. It may also be noted, that this defense, if not neutralized by the remainder of the affidavits, seems to be one which goes, not in modification of the terms of a contract, but in destruction of the written promise itself, and is for that reason inadmissible without an allegation of fraud or mistake: Wolf v. Rosenbach, 2 Pa. Superior Ct. 587.</p> <p>There seems to be no good cause shown for withholding judgment in this case, and therefore, the rule to show cause is made absolute.</p> <p>Judgment for plaintiff for $872.76. Defendant appealed.</p> <p>Error assigned was making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 166, Oct. T., 1898, by defendant, from judgment of C. P. Lancaster Co., March T., 1890, No. 1, on verdict for plaintiffs. Opinion by W. D. Porter, J. Feigned issue. Before Brubaker, J. It appears from the evidence that the defendant in the feigned issue levied, inter alia, upon nine steers or fat cattle as the property of Asher Millhouse.

Appeal, No. 6, Jan. T., 1899, by defendant, from judgment of C. P. Luzerne Co., March T., 1894, No. 227, on verdict for plaintiff. Opinion by W. D. Porter, J. Trespass. Before Woodward, P. J. It appears from the testimony that there was evidence of alleged negligence of the defendant company in failing to give warning of the approach of the train to a grade crossing sufficient to carry the case to the jury upon that question.

Appeal, No. .27, April T., 1899, by R. E'. Twyford, defendant, from decree of C. P. No. 2, Allegheny Co., July T., 1897, No. 39, committing defendant for contempt. Opinion by W. D. Porter, J.' Habeas corpus. Attachment proceedings for contempt. Before White, P. J. It appears from the record that this case originally came up on appeal from the decree of the court after hearing on bill, answer and proofs.

Appeal, No. 209, Oct. T., 1897, by plaintiff, from judgment of C. P. Lancaster Co., Aug. T., 1895, No. 66, on verdict for defendant. Opinion by Orlady, J. Interpleader in-claim to property levied upon by the sheriff as the property of Amos B. Hostetter. Before Brubaker, J. This case was before the Superior Court on appeal on a former verdict and judgment and is reported in 8 Pa. Superior Ct. 618.

Appeal, No. 164, Oct. T., 1898, by defendants, from judgment of C. P. No. 1, Phila. Co., June T., 1898, No. 419, in favor of plaintiffs for want of a sufficient affidavit of defense. Opinion by W. D. Porter, J. Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc.

Appeals, Nos. 105 and 209, April T., 1899, by P. T. Witherop and the Second National Bank of Titusville, from decree of sale of December 5, 1898, and from the order of February 27, 1899, of C. P. Crawford Co., Feb. T., 1896, No. 130, confirming sale of the real and personal property of the Titusville Oil Exchange. Opinion by Beeber, J. Petition of J. L. McKinney for the sale of the real and personal estate of the Titusville Oil Exchange, a dissolved corporation.

Appeal, No 46, April T., 1899, by defendant, from sentence of Q. S. Crawford Co., Feb. T., 1897, No. 57, on case stated. Opinion by W. W. Porter, J. Case stated, appeal from a justice, for'failure to pay for and take out a license required by an ordinance of the city of Titus-ville.

Appeal, No. 71, April T., 1899, by Claudia P. Speer, from decree of C. P. No. 8, Allegheny Co., Feb. T., 1896, No. 618, confirming report of-auditor making distribution. Opinion by Beater, J. Exceptions to auditor’s report. Before Kennedy, P. J. It appears from the record that the fund in question arose in the distribution of the assigned estate of Alline B. Speer.

Appeal, No. 100, April T., 1899, by plaintiff, from judgment of Q. S. Crawford Co., Sept. Sess., 1898, No. 24, on verdict of not guilty. Opinion by Beaver, J. Indictment for nuisance, obstructing the public highway.

Appeal, No. 211, March T., 1899, by defendants, from judgment of C. P. Erie Co., Feb. T., 1898, No. 167, on verdict for plaintiff. Opinion by Beaver, J. Trespass. Before Walling, P. J. It appears from the evidence that this was an action of trespass, brought by plaintiff against J. W. Wetmore and Fin Adams to recover damages for the alleged trespass of defendants in harvesting and selling a certain field of wheat.

Appeal, No. 60, April T., 1899, by defendant, from judgment of C. P. Warren Co., March T., 1898, No. 38, on verdict for plaintiff. Opinion by Beeber, J. Feigned issue. Before Lindsey, P. J. It appears from the record that this was a feigned issue to try the title to certain personal property in which the plaintiff in an execution of a judgment against C. W. McKinney alleged that the latter had an undivided one-half interest.

Appeal, No. 34, April T., 1899, by defendants, from judgment of C. P. Erie Co., May T., 1898, No. 96, in favor of plaintiff, for want of a sufficient affidavit of defense, which the court below on motion refused to open. Opinion by W. W. Porter, J. Assumpsit. Before Wadding, P. J. It appears from the record that this suit was brought upon the acceptances of two drafts, drawn on the defendant by the plaintiff to his own order.

Appeal, No. 40, April T., 1898, by defendants, from judgment of C. P. Venango Co., Aug. T., 1897, No. 5, on verdict for plaintiff. Opinion by Beeber, J. Replevin. Before Criswell, P. J. It appears from tbe record and evidence that defendant had leased certain premises to Homer Ball, that pending negotiations for a renewal of the lease Ball and his wife, the plaintiff in this case, removed the household goods from the premises.

Appeal, No. 234, April T., 1899, by plaintiffs, from judgment of C. P. Lawrence Co., Sept. T., 1897, No. 72, on verdict for defendants. Opinion by W. W. Porter, J. Ejectment. Before Miller, P. J. It appears from 'the record that A. W. Leonard, one of the defendants, being owner in common of the premises in dispute, with his brothers and sisters, contracted with plaintiffs to make certain repairs upon the dwelling house located on the same.

Appeal, No. 48, April T., 1899, by Nancy Tarr, from order of C. P. Crawford Co., Aug. T., 1875, No. 112, directing payment of counsel fee. Opinion by Orlady, J. Petition of Nancy Tarr, committee, for revocation of order directing payment of counsel fee.

Appeal, No. 221, April T., 1899, by defendant, from judgment of C. P. Lawrence Co., June T., 1897, No. 38, on verdict for plaintiff. Opinion by W. W. Porter, J. Assumpsit.

Appeal, No. 218, April T., 1899, by plaintiff, from judgment of C. P. Armstrong Co., Dec. T., 1897, No. 182, directing a compulsory nonsuit. Opinion by Beaver. J. Rule to take off compulsory nonsuit.

Appeal, No. 215, April T., 1899, by plaintiff, from decree of C. P. Armstrong Co., March T., 1899, No. 13, dismissing petition to revoke decree of adoption. Opinion by Beeber, J. W. W. Porter, J., dissents. Hearing on petition and affidavit for the adoption of Henry Bastin, a minor.

Appeal, No. 80, April T., 1899, by defendant, from judgment of C. P. Armstrong Co., June T., 1897, No. 2, on verdict for plaintiff. Opinion by Beeber, J. Assumpsit. Before Raybitre, P. J. It appears from the record that this case was before the Superior Court on appeal from a former trial where the appellate court reversed a judgment for the plaintiff, reported in 8 Pa. Superior Ct. 216.

Appeal, No. 149, April T., 1899, by defendants, from judgment of C. P. Butler Co., March T., 1897, No. 55, in favor of plaintiffs. Opinion by Orlady, J. Assumpsit. Before Greer, P. J. It appears from the record that a judgment on a verdict in favor of plaintiffs was reversed by the Superior Court in an opinion reported in 9 Pa. Superior Ct. 18.

Appeal, No. 213, April T., 1899, by Martha M. Crawford et al., from final decree of O. C. Mercer Co., Jan. T., 1898, No. 18, in distribution. Opinion by Beaveb, J. Exceptions to auditor’s report. Before Wallace, P. J., of the 53d judicial district, specially presiding.

<p>Final or interlocutory judgment — Statutory period for appeals — Practice, G. P.</p> <p>A judgment is interlocutory and requires a writ of inquiry only where the sum is uncertain ; where the sum is certain or can be made so by mere calculation the judgment is final. This principle is not confined to actions of debt but is applied to actions of assumpsit.</p> <p>A judgment for want of a sufficient affidavit of defense having been entered on March 7,1898, it follows that an appeal taken October 28 is too late.</p>

<p>Appeal, No. 233, April T., 1899, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1898, No. 479, on verdict for plaintiff.</p> <p>Opinion by Beaver, J.</p> <p>Trespass. Before Evans, J.</p> <p>It appears from the record that this was an action to recover from the defendant damages for the negligent construction of a gas line which lay in the middle of Scrub Grass run, a small stream running near where the plaintiff owned a grocery store in Scott township, and which, it was alleged, caused the stream to overflow and flood Iris premises, thereby injuring a stock of groceries. The evidence was conflicting as to all the material facts in issue. Defendant asked for binding instructions based on plaintiff’s own testimony, as to the height of the water below the alleged obstruction and the testimony of an engineer whose calculations were not disputed.</p> <p>Verdict and judgment for plaintiff for 1412. Defendant appealed.</p> <p>Urror assigned was in refusing defendant’s request for binding instructions. Errors were also assigned to the qualifications by the court in its answers to the points presented by defendant.</p>

Appeal, No. 134, April T., 1899, by defendant, from judgment of C. P. No. 1, Allegheny County, June Term, 1892, No. 105, on verdict for plaintiff. Opinion by Orlady, J. Trespass. Before Stowe, P. J. It appears from the record and the evidence that the plaintiff claimed damages for a broken wrist caused by his being thrown down and run over by a steer belonging to defendant on the public road.

Appeal, No. 214, April T., 1899, by plaintiff, from order of Q. S. Clarion Co., Nov. Sess., 1898, No. 8, granting motion in arrest of judgment. Opinion by Beaver, J. Motion in arrest of judgment on verdict of guilty on the charge of riot.

Appeal, No. 29, April T., 1899, by defendants, from judgment of C. P. No. 2, Allegheny Co., April T., 1898, No. 1020, for want of a sufficient affidavit of defense. Opinion by Orlady, J. Assumpsit. Before the court in bane.

Appeal, No. 109, April T., 1899, by plaintiff, from decree of C. P. Indiana Co., March T., 1898, No. 1, dismissing bill in equity. Opinion by Beaver, J. Hearing on bill, answer and proofs. Before White, P. J. It appears from the record that plaintiff brought a bill in equity to restrain the defendants from draining the water from the public road, alleging that thereby an additional servitude of surface water was imposed on plaintiff’s land.

Appeal, No. 148, April T., 1899, by defendant, from judgment of C. P. Jefferson Co., Feb. T., 1894, No. 236, on verdict for plaintiffs. Opinion by Oblady, J. Trespass. Before Gobdon, P. J., of the 46th judicial district, specially presiding.

Appeal, No. 210, April T., 1899, by plaintiffs, from judgment of C. P. No. 2, Allegheny Co., April T., 1898, No. 28, on verdict for defendant. Opinion by W. W. Porter, J. Assumpsit. Before White, P. J. It appears from the record and evidence that this was an action to recover commissions based on the allegations of plaintiffs that they were employed by defendant to find a purchaser for his house which plaintiffs claim they did procure.

Appeal, No. 48, April T., 1898, by plaintiffs, from order of C. P. Beaver Co., June T., 1898, No. 385, directing sheriff to sell goods levied upon as the property of William Tryon which were claimed by plaintiffs. Opinion by Beebeb, J. Sheriff’s interpleader. Before Wilson, P. J. The facts sufficiently appear from the opinion of the court below which is in part as follows : Fi. fa. No. 56, June term, 1898, sur judgment No. 224, June term, 1898, James Hogue v. Wm.

Appeal, No. 79, April T., 1899, by defendant, from judgment of C. P. Lawrence Co., March T., 1897, No. 27, in favor of plaintiff, for want of a sufficient affidavit of defense. Opinion by W. W. Porter, J. Motion for judgment for want of a sufficient affidavit of defense.

No. 14, March T., 1899, by plaintiff, from judgment of C. P. York Co., on verdict for defendant. Opinion by Orlady, J. Replevin. Before Stewart, J. It appears from the record and evidence that upon an execution against Samuel Urey, the sheriff sold to the plaintiff a half interest in a lot of corn in the cribs on the farm owned by Stehman & Garber.

Appeal, No. 112, April T., 1899, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1897, No. 289, on verdict for plaintiff; Opinion by Orlady, J. Trespass. Before White, P. J. It appears from the evidence that the plaintiff was driving a one horse wagon on the south side of Carson street; the shaft struck a car of the defendant company, broke, and he was thrown out of the wagon.

Appeal, No. 30, April T., 1899, by defendant, from judgment of C. P. No. 3, Allegheny County, August Term, 1897, No. 395, on verdict for plaintiff. Opinion by Orlady, J. Trespass. Before Porter, J. It appears from the evidence that in the year 1896, the defendant company seems to have contemplated a change in the location of a road, a part of which ran through the borough of Sheraden and in front of this tract of land in question which had been subdivided into lots.

Appeal, No. 206, April T., 1899, by defendant, from sentence of Q. S. Clarion Co., Feb. Sess., 1898, No. 8, on verdict of guilty. Opinion by W. D. Porter, J. Indictment for larceny and receiving stolen goods. Before Clark, P. J. It appears from tbe record that the defendant was indicted on the charge of larceny and receiving stolen goods. On the trial the defendant submitted among others the following point: [4.