Volume 11 — Pennsylvania Superior Court Reports

<p>Change of grade — Measure of damage — Evidence—Charge of court.</p> <p>The damages resulting from change of grade of a borough street is measured by the market value before and after the change, and where the evidence admitted, touching the condition, as well as the charge of the court, is carefully restricted so as to comply with the decision of the Supreme Court in Dawson v. Pittsburg, 159 Pa. 317, no error is committed.</p>

Appeal, No. 94, April T., 1899, by defendant, from judgment of C. P. Westmoreland Co., Feb. T., 1897, No. 390, on verdict for plaintiff. Opinion by Orlady, J. Ejectment.

Appeal, No. 4, Jan. T., 1899, by A. J. Adams, from decree of O. C. Susquehanna Co., Jan. T., 1896, No 45, dismissing exceptions to widow’s appraisement and inventory. Opinion by Orlady, J. Exceptions to auditor’s report. Before Searle, P. J. It appears from the record that decedent died intestate and his widow filed a claim for widow’s exemption. The widow’s inventory was filed appraising and setting apart to the widow all the real estate of her late husband valued at $250.

<p>Appeal, No. 212, April T., 1899, by defeudaut, from judgment of C. P. No. 3, Allegheny Co., Aug. Term, 1895, No. 252, on verdict for plaintiff.</p> <p>Opinion by Orlady, J.</p> <p>Replevin for a soda water fountain.</p> <p>It appears from the record and the evidence that plaintiffs delivered to one Dorrity a soda water apparatus under a contract in writing which was admitted to be a carefully drawn contract of bailment. This contract was not executed until the delivery of the property and until the first payment was made, when notes were given covering the deferred payments called for in the contract. The contract did not specifically provide for such notes. The court directed a verdict for plaintiff.</p> <p>Verdict and judgment for plaintiff for 1240.70. Defendant appealed.</p> <p>Error assigned was in directing a verdict for plaintiff.</p>

<p>Appeal, No. 70, April T., 1899, by Mary Youngk, from decree of C. P. No. 1, Allegheny Co., March Term, 1896, No. 343, in distribution of funds in the hands of assignee for the benefit of creditors.</p> <p>Opinion by Orlady, J.</p> <p>Exceptions to auditor’s report. Before the court in banc.</p> <p>It appears from the record that a preference had been declared on the general assignment. See Mann, Moon & Co. v. Wakefield, 179 Pa. 398.</p> <p>An auditor was appointed to prepare a scheme of distribution from the account of the assignee, and he allowed the claim of the attorney through whose services the preference had been set aside and converted into a general assignment as a preferred claim. He then awarded the balance to certain attaching creditors whose claims had been purchased by the assignee to the exclusion of the claim of Mary Youngk who had furnished material to the assignee which enabled him to complete certain contracts of the assignor, and thereby enhanced the value of the assigned estate $661.80.</p> <p>The court below dismissed the exceptions to the auditor’s report. Mary Youngk appealed.</p> <p>Errors assigned among others were (3) in not entering a decree, sustaining the first exception of appellant to the auditor’s report, which exception is as follows: “ 1. The auditor erred in not allowing exceptant’s claim for materials furnished to J. A. Wakefield,-trustee of Trembly & Company, in pursuance of the contract made by exceptant with said Wakefield, trustee, because it is admitted by all parties in interest that the completion of said contracts inured to the betterment of the assigned estate.” (4) In not entering a decree sustaining the second exception of appellant, which exception is as follows: “2. The auditor erred in preferring the claim of H. G. Was-son, Esq., for counsel fees, and also the claims of the attaching creditors of Trembly & Company to that of exceptant.”</p>

<p>Liquor law — •Appeal determined by record.</p> <p>The evidence given on the hearing of a liquor license application is not brought up upon appeal.</p> <p>Where the record shows that the license was refused for a legal reason after a hearing, the appellate court has no right to assume the contrary.</p>

<p>Appeal, No. 33, April T., 1899, by defendant, frord judgment of C. P. No. 2, Allegheny Co., July T., 1898, No. Í62, for plaintiff for want of a sufficient ¿affidavit of defense.</p> <p>Opinion by W. W. Porter, J.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Frazer, J.</p> <p>It appears from the record that this was an action brought by plaintiff, a municipal corporation, to collect from the defendant company a license fee of $1.00 per pole for each pole erected in the streets of the plaintiff borough by the defendant company, and $2.50 per mile for the wire strung thereon, the ordinance fixing the above license fee having been duly enacted by the proper authorities of the said borough.</p> <p>The affidavit of defense set up that the imposition of the license tax is a regulation of interstate commerce; that the license fee on poles is unreasonable; that it is not based on the cost of inspection but is thirteen times more than a sum sufficient to defray all expenses; that the borough has not and does not maintain any inspection and has not incurred any expenses.</p> <p>Other statements from the affidavit of defense are set out in the opinion of the Superior Court.</p> <p>Judgment for plaintiff for $221.18. Defendant appealed.</p> <p>Error assigned was in making absolute rule for judgment.</p>

Appeal, No. 107, April T., 1899, by plaintiff, from judgment of C. P. Armstrong Co., June T., 1897, No. 265, on verdict for defendant.. . Opinion by W. W. Porter, J. Appeal from justice of the peace.

Appeal, No. 29, March T., 1899, by Solomon Hartman, executor of Mary YanDyke, from decree of O. C. Adams Co., Nov. 15, 1898, dismissing exceptions to and confirming first and supplemental reports of auditor, appointed to make distribution of the balance in the hands of the executor of the last will of Samuel Hartman, deceased. Opinion by Smith, J. Exceptions to auditor’s report.

Appeal, No. 66, April T., 1899, by defendant, from order of C. P. Fayette Co., March T., 1898, No. 105, refusing motion to open judgment. Opinion by Smith, J. Motion to open judgment. Before Mestrezat, P. J. Tbe facts sufficiently appear from tbe opinion of tbe court below, as follows: On March 2,1897, by virtue of a general warrant of attorney, judgment was entered by tbe prothonotary on tbe note in this case. Tbe note was entered on tbe day of its date.

Appeal, No 19, April T., 1899, by Mrs. M. A. Reed, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1896, No. 70, dismissing exceptions to report of auditor. Opinion by Smith, J. Exceptions to auditor’s report. Before the court in banc.

<p>Appeal, No. 91, April T., 1899, by plaintiff, from judgment of C. P. Greene Co., Jan. T., 1898, No. 185, on verdict for defendants.</p> <p>Opinion by Beaver, J.</p> <p>Appeal from judgment of justice of peace. Before Crawford, P. J.</p> <p>It appears from the record and the evidence that plaintiff brought suit against the assignees of R. I. Hook for several distinct items; one item being for manual labor contracted for, as was alleged, by the assignees, and the second and third being based on damages resulting to the plaintiff by reason of the surrender by plaintiff to the assignees of the leased premises on the promise of the use of another tenant house upon the same land and certain other privileges. This agreement of the assignees, it was alleged by the plaintiff, was not carried out and resulted in damages to the plaintiff of $32.50. Judgment was duly obtained before a justice after which defendants paid to the justice the amount of the item claimed for manual labor and appealed from the rest of the judgment.</p> <p>At the trial of the case in the common pleas plaintiff submitted no evidence and the court directed a verdict for defendants. Plaintiff appealed.</p> <p>Errors assigned among others were (1) in overruling and dismissing the plaintiff’s motion to dismiss, quash or strike the appeal from the record, which motion and reasons in support thereof, order overruling and dismissing the same and exception are as follows: “And now, January.22, 1898, comes the plaintiff and moves the court to dismiss, quash, or strike this appeal from the record and files in support of this motion the following reasons: Because the defendants, as shown by the transcript, have not appealed from the judgment of the justice in the way and manner provided by law and said appeal, so-called, is therefore void. Because the defendants, as shown by the transcript, have not appealed from the whole judgment of the justice but defendants have attempted to pay a part of said judgment, to wit: $2.75, to the justice and appeal from the rest of the above judgment which is without authority in law. Because to permit said appeal to stand would prevent a trial of the case in court upon its merits as provided by law. Because to permit said appeal to stand would be to try, not the whole cause which was before and, tried by the justice, but only a part of the cause so heard and tried. Because the case could not now be tried de novo. Because the defendants cannot appeal from a part of a judgment of a justice but must appeal from the whole judgment of the justice, there being no provision in the law for appeal from a part or the rest of the judgment. And now, September 5, 1898, after hearing and consideration of this matter it is ordered and directed that the motion to quash the appeal from the justice of the peace taken by the above defendants, which motion was filed in this court January 22,1898, be and the same is hereby overruled and dismissed, and said appeal to stand and the case to be heard in its turn with other eases before this court.</p> <p>“And now September 5,1898, the plaintiff excepts to the foregoing order and at his instance bill of exception sealed.” (2) In overruling the plaintiff’s objections to swearing a jury in this case which objections and order overruling the same and exception are as follows : “ And now November 23,1898, comes the plaintiff, before jury sworn, and objects to the swearing of a jury in this case for the following reasons: 1. Because the defendants, as shown by the transcript of appeal, have not appealed from the judgment of the justice in the way and manner provided by law and the said appeal, so called, is void. 2. Because the defendants, as shown by the transcript of appeal, have not appealed from the whole judgment of the justice but have recognized said judgment by the payment of a part thereof, to wit: $2.75 to the justice and appealed from the rest of the judgment which is without authority in law. 3. Because to permit said appeal to stand, swear a jury and try the cause, would prevent a trial of the cause in this court upon its merits and upon the same issues which were before the justice as the law provides should be done. 4. Because to now try the case would be to try, not the whole case which was tried by the justice but only a part of the case so tried and heard by him. 5. Because the defendants having paid a part of the said judgment the case cannot now be tried de novo, as the law requires. 6. Because there is no authority in law for appealing from a part of a judgment as the defendants in this case have attempted to do. 7. That this court has no jurisdiction to try this - cause. 8. Because the defendants in the first paragraph of their affidavit of defense admit that after judgment rendered by the justice they paid to him $1.50, being the amount of one of the items hr the plaintiff’s claim in the action before the justice. 9. Because in the second paragraph of the defendants’ affidavit of defense they admit that after judgment rendered by the justice they paid to him $1.00 being the amount of another item of the plaintiff’s claim in the cause as it was tried before the justice. 10. The plaintiff does now and hereby renews his motion heretofore made to dismiss this appeal and denies the power of this court or its jurisdiction to try the cause. The court: Motion overruled and exception sealed for plaintiff.”</p>

Appeal, No. 97, April T., 1899, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1897, No. 775, on verdict for plaintiff. Opinion by Smith, J. Trespass. Before Kennedy, P. J. The facts sufficiently appear from the charge of the court as follows: This action is brought to recover damages for injuries which the plaintiff alleges he received in an encounter with the defendant on December 23, 1896.

<p>Appeal, No. 220, April T., 1899, by-plaintiffs, from judgment of C. P. Washington Co., Feb. T., 1899, No. 118, on verdict for defendant.</p> <p>Opinion by Beaver, J.</p> <p>Assumpsit to recover the sum of $750, being the amount of the shares of the plaintiffs in the dower charge on a certain tract of land.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The court directed a verdict for defendant. Plaintiffs appealed.</p> <p>Errors assigned among others were (6) in answer to plaintiffs’ point, which point and answer were as follows: “ The court is respectfully requested to instruct the jury to find for the plaintiffs in the sum of $750, with interest from April' 22,1898. Answer : This point is refused, gentlemen of the jury, subject to what we have said in our general charge; that is, that the defendant has paid these two shares of the money here sued for into court before this suit was brought, and it has been correctly reported by the auditor in his schedule of distribution, and the report has been confirmed and no exceptions filed thereto. The prothonotary will now take your verdict for the defendant, for the reasons stated.”</p>

<p>Opening judgment — Jurisdictions expire with the term.</p> <p>The power of the court to set aside a judgment obtained adversely and grant a new trial expires with the term at which the judgment is entered.</p> <p>Leave given on March 9 to reargue a motion for a new trial in a case where an adverse verdict was obtained in the preceding term does not open an order of March 7 refusing the motion; hence the court is without power in a following term to set aside the order of March 7, open the judgment by an order made in July, two terms after the judgment and one term after the motion for reargument had been refused.</p>

Appeal, No. 106, April T., 1899, by overseers of the poor of Union township, from decree of Q. S. Jefferson Co., Feb. Sess., 1898, No. 45, dismissing exceptions to examiner’s report and fixing the liability for tire expenses of maintenance of insane pauper. Opinion by Beaver, J. Exceptions to examiner’s report in lunacy proceedings.

Appeal, No. 147, April T., 1899, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1897, No. 534, on verdict for defendants. Opinion by W. W. Porter, J. Rice, P. J., and Orlady, J., dissent. Assumpsit.

Appeal, No. 25, Feb. T., 1900, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1897, No. 385, on verdict for plaintiff. Opinion by W. W. Porter, J. Trespass. Before Mayer, P. J., of the 25th judicial district, specially presiding. It appears from the evidence that plaintiff was injured by stepping off a bridge in the outskirts of the city of Williams-port.

Appeal, No. 204, April T., 1899, by plaintiffs, from judgment of C. P. Westmoreland Co., Feb. T., •1896, No. 59, on nonsuit. Opinion by W. W. Porter, J. Motion to take off nonsuit. Before the court in banc. It appears from the evidence that plaintiffs delivered at defendant’s freight depot a box containing household goods to the value of $303.75.

Appeal, No. 83, April T., 1899, by Hood, Foulkrod & Co., general creditors, from judgment of C. P. Westmoreland Co., Feb. T., 1897, No. 256, dismissing exceptions to auditor’s report and directing distribution accordingly. Opinion by W. W. Porter, J. Exceptions to auditor’s report.

Appeal, No. 55, April T., 1899, by plaintiff, from judgment of C. P. Westmoreland Co., Nov. T., 1896, No. 6, in favor of defendant on the… Held: annual passes furnished to the stockholders, among them to the defendant. He was appointed one of the auditors of the company but testified that he had no recollection of ever having used the annual passes or acted as auditor. There was no evidence of his having returned the annual passes or that he refused to act as auditor.

Appeal, No. 3, Feb. T., 1899, by defendant, from judgment of C. P. McKean Co., Dec. T., 1897, No. 79, on verdict for plaintiff. Opinion by W. D. Porter, J. Appeal from judgment of magistrate. Before Morrison, J. It appears from the record and evidence that plaintiff instituted proceedings before a justice of the peace to recover possession of the leased premises.

<p>Appeal, No. 20, April T., 1899, by defendant, from judgment of C. P. Greene Co., April T., 1897, No. 168, on verdict for plaintiff.</p> <p>Opinion by Beaver, J. Orlady, J., dissents.</p> <p>Trespass. Before Gbawfokd, P. J.</p> <p>It appears from the evidence that plaintiff and another man named Huffman were riding along the township road at night. Plaintiff was riding a somewhat spirited young mare and there was some evidence tending to show that she had a habit of scaring easily. He was holding the reins of the bridle in his left hand, his right being in his pocket. While so riding a noise which the riders thought was a muskrat jumping into the stream with a splash, scared the mare of the plaintiff, causing her to jump back behind Huffman’s horse. There was evidence tending to show that the mare, then lunging forward, plaintiff struck her with a whip or strap and began abusing her. The mare made several leaps forward going about forty feet and then went over the lower side of the road falling upon the plaintiff’s leg and fracturing the same. There was evidence tending to show that at the point of the accident the road was straight and smooth, about ten to twelve feet wide where the mare first took fright, and upwards of ten feet where the accident occurred. It was also in evidence that plaintiff was familiar with the road, having taken a three years’ contract, in force at the time of the accident, to keep this road in repair; that at the place where the accident occurred the road was what is known as a side cut road — cut into quite a steep hill on the east side, and the run or stream flowed in toward the road on the lower side. In order to protect the road from being washed away by the stream, a rough stone wall had been laid up extending for a distance of about forty feet along the lower side of the road between the road and the run. The mare scared at or near the south end of that wall and did not go over the bank until she had entirely passed the north end of said wall. Surveys and photographs of the road were put in evidence by both parties. [At the trial defendant offered to show, John Huffman being on the stand, with a view of following the evidence with that of other witnesses familiar with the road, that the road where the accident occurred was not a dangerous place and that it was not necessary to erect a barrier along the same. Objection was .made and sustained to this offer by the court and bill sealed.] [2, 3]</p> <p>J. W. Closser, the plaintiff, being on the stand, counsel proposed to ask the witness the following question, which was allowed under objection:</p> <p>[“ Q. I ask the witness to state what damage he has suffered, in his opinion, as the result of this accident, taking into consideration the doctors’ bills he has paid and the pain he has suffered up to the present time and from the care that had to be taken of him, the loss to his business and all the damages suffered by him as the result of the accident.”] [1]</p> <p>The plaintiff submitted the following points:</p> <p>[1. If the jury believe from the evidence in the case that J. W. Closser on the night of November 3, 1896, in riding on the public road on horseback, in Washington township, at the place described by the witnesses, and that his horse became frightened and plunged over the embankment at the side of the road, falling upon the person of the plaintiff, thereby breaking his right leg and fracturing his ankle; and if they further find from the evidence that the road at the place of the accident was dangerous by reason of the steepness and height of the embankment, the same being without barriers or guard rails, and being within and upon the public highway; and that the said accident occurred without any negligence on the part of the said Closser, then their verdict should be for the plaintiff for such damages as the jury may find from the whole of the evidence in the case. Answer: That point is correct and is affirmed.] [4]</p> <p>[2. In view of the fact that the ordinary horse will, at times, scare and take fright, and that Iris movements when frightened are wholly unreasonable and unforeseeable, it is for the jury to determine what provision shall reasonably be made by the township for the safety of travelers upon the public highway, and it being the duty of the township to provide a reasonably safe highway for ordinary travel by the ordinary horse, then, if the jury should believe from the evidence that the proximate and direct cause of the plaintiff’s injury was the neglect of the township to put up barriers at the place where his horse went over the embankment, then their verdict should be for the plaintiff for such damages as he is entitled to under the evidence. Answer: That position is correct and is affirmed. If the facts support the point it is correct.] [5]</p> <p>[6. If the jury believe from the evidence that the plaintiff knew of the condition of the road when he undertook to ride over it, and was very familiar with it, his riding over it at the time of the accident is not such contributory negligence as to prevent his recovery, when there was no other way for him to take. Ansiver: That point, I think is correct, the mere fact of his riding over it would not amount to contributory negligence. You would have to determine that fact from what he did in riding over it and from all the facts appearing in the evidence as to his action and conduct there at the time. The mere fact the road may be dangerous, does not of itself make a man guilty of contributory negligence in passing along it; he may have no other way to pass. That is a question for the jury to determine.] [6]</p> <p>Defendant submitted among others the following point, which was refused by the court:</p> <p>[1. The plaintiff himself having testified that his mare became frightened at a noise made by some animal in the run near the side of the road and thereby becoming unmanageable went off the road and fell upon the plaintiff, caused the injuries of which he complains. Under this state of facts the injuries of the plaintiff were produced by an intervening and independent cause for which the defendant was not responsible and the plaintiff cannot recover. Answer: Now that point is refused, because it requires the court to say here that the fright of the horse was occasioned by an independent and intervening cause. That we will not say to you, gentlemen of the jury, as a matter of law. That is a question we submit for your determination, leaving the question with you with such instructions as the Supreme Court has given, saying the fright of a horse under ordinary circumstances is to be expected as an ordinary circumstance. Now you can determine that question yourselves.] [7]</p> <p>The court charged the jury, inter alia, as follows :</p> <p>[It is a doctrine of law that where an injury or accident of this kind occurs, to make the parties charged liable, it must have been the result of negligence on the part of the party charged. If there was contributory negligence on the part of the party claiming damages, the township would be relieved, that is if the facts set out show that to be the true theory of the matter. In determining the question of negligence you are to take into consideration the road as described by the different witnesses, the width, the height of the embankments, the grade and all the circumstances that have been testified to here as to the time, manner and place of this accident, and from those circumstances, you are to make up your judgment in this case.] [11] ....</p> <p>[In coming to the question here as to what was the proximate cause of the accident, you are to keep in mind these facts : that in order to make the township liable, their negligence must be the proximate cause of the accident. The courts have said that the proximate cause is the immediate or direct cause without other agency intervening that leads to the production of the result, and if there was an intervening independent cause here for which the township was not responsible or could not foresee, or would not be obliged to expect, the township would be relieved. That will be the question for you to decide here, whether there was such a cause or not. It is contended here that the fright of this horse was produced by the splash of some animal jumping into the run. Gentlemen of the jury, would that be such a cause, outside and independent, as would prevent this plaintiff from recovering here ? That will be a question for you to decide. But in deciding that point you must remember what the Supreme Court of this state has said in the language we have already called your attention to. That the fright of a horse is an ordinary circumstance that should be foreseen and expected by the township authorities, and the conduct of a frightened horse may be insane, unreasonable and unlooked for, is something that must also be expected. If you should decide that the circumstance which occasioned the fright of this horse was of this character, and not an outside, independent or intervening cause, then that position as to an independent cause would not be well taken.] [12] ....</p> <p>[It is not pretended by the defendant that there were any such barriers there. The defense is that the road was in such condition that it did not require them for the safety of the traveling public, and that the cause of the accident was not the condition of the road, but the conduct of the plaintiff in making the horse uncontrollable.] [18]</p> <p>Verdict and judgment for plaintiff for $675. Defendant appealed.</p> <p>Errors assigned among others were (1) in permitting plaintiff on the stand to state the amount of damages sustained by him by reason of the accident, reciting question propounded. (2, 3) John Huffman being on the stand, in rejecting the offer of defendant to prove that in the opinion of the witness no fence or guard was necessary along the road. (4-6) In affirming plaintiff’s first, second and sixth points, .reciting points and answers. (7) In refusing defendant’s first point, and in not affirming same, reciting point and answer. (11-13) To portions of the judge’s charge, reciting same.</p>

Appeal, No. 152, April T., 1899, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1897, No. 138, on verdict for defendant. Opinion by Rice, P. J. Appeal from judgment of magistrate.

Appeals, Nos. 153 to 202 (both inclusive), April T., 1899, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1897, Nos. 139 to 786 (some numbers excepted), reversing judgment of alderman in favor of plaintiff, and entering judgment in favor of defendants in each of the above cases. Opinion by Rice, P. J.

Appeal, No. 40, Jan. T., 1899, by defendant, from sentence of Q. S. Lackawanna Co., Oct. Sess., 1898, No. 467, on verdict of guilty. Opinion by Rice, P. J. Prosecution for acting and advertising and representing himself as agent for an unlicensed foreign insurance company.

Appeal, No. 208, April T., 1899, by plaintiff, from judgment of C. P. No. 2, Allegheny County, Oct. Term, 1895, No. 424, on verdict for defendant. Opinion by Beeber, J. Assumpsit. Before White, P. J. It appears from the evidence that the Braddock Electric Railway Company, the plaintiff in this case, was incorporated June 9, 1890, under the act of May 14, 1889.

Appeal, No. 111, April T., 1899, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1897, No. 122, on verdict for plaintiff. Opinion by Beeber, J. Assumpsit. Before Stowe, P. J. The facts sufficiently appear in the opinion of the court. Defendant submitted the following points: [1.

Appeal, No. 67, April T., 1899, by-plaintiff, from judgment of C. P. Westmoreland Co., Aug. T., 1893, No. 101, in favor of defendant non obstante veredicto. Opinion by BeeBER, J. Sci. fa. sur mechanic’s lien.

<p>Practice, Q. 8. — Formal defect on face of indictment — Motion to quash— Demurrer.</p> <p>Defendant having pleaded guilty to a charge of embezzlement of county taxes, the count following the language of the act of 1885, moved in arrest of judgment because the count did not specify the amount alleged to have been embezzled nor the amount collected from any particular person. Eeld, that if the count were defective, which is not admitted by the court, the defect is formal, apparent on the face of the indictment, and should have been taken advantage of by demurrer or motion to quash before jury sworn.</p> <p>Criminal law — Sentences limited by the act — Simple imprisonment in county jail.</p> <p>A court in imposing sentence is limited to the punishment prescribed by the terms-of the violated statute. The Act of June 3,1885, P. L. 72, provides for a sentence not exceeding five years; the act of 1895 limits simple imprisonment to the county jail; hence, a sentence for a crime under the act of 1885 must be to the county jail and not to the penitentiary.</p> <p>Appeals — Beversal of sentence — Conviction.</p> <p>An erroneous sentence will be reversed without affecting a trial and conviction and sent back for another sentence.</p>

<p>Forest fires — Compensation for extinction — Act of 1897 — Defective title.</p> <p>The owner of timber land, or one engaged in a lumbering operation, upon whose possessions a forest fire has originated, cannot by calling in the constable east the burden of the expense of extinguishing the fire upon the county. Such is not the purport or intent of the Act of March 30, 1897, P. L. 9 ; if it were the title would be defective. Whether, if by fair construction the compensation clause be confined to the constable and those who rendered, services pursuant to and because of his request and command, and, who otherwise, would have no interest and would be under no duty or obligation to render them, the act is void by reason of defectiveness of title, not decided.</p>

<p>Poor lato — Constitutional law — Title of act of 1898 — Statutes.</p> <p>The Act of June 6, 1893, P. L. 328, entitled “ An act providing for the relief of needy, sick and injured, and in ease of death of indigent persons whose legal place of settlement is unknown,” is constitutional; it gives notice fairly of the subject so as to lead to an inquiry into the bill.</p>

<p>Appeal, No. 29, Jan. T., 1899, by the Scranton Traction Company, from judgment of C. P. Lackawanna Co., Sept. T., 1895, No. 800, on verdict for plaintiff.</p> <p>Opinion by Rice, P. J.</p> <p>Trespass. Before McPherson, J., of tbe 12th judicial district, specially presiding.</p> <p>It appears from the evidence that in February, 1895, a very severe snowstorm occurred in the city of Scranton, followed by cold weather. The snow fell to the depth of a foot or more on Capouse avenue, covering the railway tracks of the defendant company and in order to operate their cars the railroad company removed the snow from their tracks and put it on the street on both sides of the track. It also appeared that the property holders along the line of the street also removed the snow from the sidewalks and threw it into the street in banks so that the snow in the street on each side of the track nearest the sidewalks was quite deep. Under such conditions the plaintiff came from his home a few miles out of the city, with a load of hay, on February 12. He came down Capouse avenue, attempted to cross the railway track, but was met by the bank alongside the street. The hay being oh bob sleds was upset and tipped over on the railway track. At this time he was not injured and suffered no damage, but got his load of hay on and proceeded to sell it and go home again. On the following Saturday, the 16th of February, he came to Scranton again with another loa,d of hay; came down the same avenue, attempted to cross the track in the same place, and in attempting to turn, by reason of the bank of snow piled up, again upset his hay on the street. He was not injured in any way by the upsetting of the load of hay and no damage was then done to him or his property. But in moving about on the street after the accident was over, in his efforts to right his load, he slipped on the snow or ice, fell and injured his hip and it was for damages consequent upon this injury, from so slipping, that he brought this suit.</p> <p>The court below, McPherson, J., charged the jury as follows:</p> <p>Now, the first matter for your consideration is this: Was this place that has been spoken of here by the witnesses, at which the plaintiff crossed these tracks, a dangerous place? That is the first question for you to consider in the order of time, and in the proper order to consider this case. Was this place dangerous, considered especially as a place where teams crossed the track, because it was in crossing the track that this upset took place? The test to apply to that is this: Was it a safe place for ordinary travel, conducted in the ordinary manner and by the ordinary means under the circumstances that were then presented ? You are not to consider whether or not it would have been safe if there had been no snow anywhere else except just at that particular place, but you are to consider it as a place upon a snowy street, a street covered with snow except where the' street car tracks were. In other words, the fall of snow is a matter which you must not leave out of your consideration, indeed it is absolutely essential for you to consider it in determining this question, for the snow was there upon the street, and, therefore, in determining whether this was a dangerous place or not, you must consider the fact that the snow was there. It is not to be considered (as it was, I think, argued by the plaintiff’s counsel) as if this were a ditch thrown up in the earth, or as if this snow had been dirt laid alongside of the track. That would present an entirely different question, because in such case as that, of course, a trench cut right there in the middle of the street with dirt laid alongside of the track to the height of, a foot, would, without any difficulty, be decided by the court and by any jury to which it was submitted, to be an obstruction, and an unlawful obstruction npon the street; but this was not dirt, and it was not an ordinary trench, it was snow. And in determining whether this was an unsafe place you must consider the habits and customs of the people. In cities like this, and in a climate like this, we all know perfectly well how snow is disposed of. It is impracticable, at present at all events, with the means at our disposal, to take snow bodily off the streets and take it out of the limits of the municipality; it cannot be done. In a few of the cities — I do not know how many — in a few of them — New York comes to my mind, Philadelphia in a less measure — they do make some effort to dispose of the snow by taking it off the streets in some way, either by loading it and carting it to the river or melting it, but in a city like Scranton, of its size and resources, such effort is not made and is at present impracticable. The snow is taken off the sidewalk and put upon the street as there is nowhere else to put it; and in the same way the snow is taken off the car tracks and put upon the street, as there is nowhere else to .put it under present conditions.</p> <p>Now, while that is true, and while snow is put upon the street, and is left upon the street under the present conditions in Pennsylvania and in the city of Scranton, nevertheless it is the duty of people putting snow there to consider the rights of other persons, namely, those who may have occasion to use the roadway; and they are bound, in putting snow upon the roadway, to leave the street reasonably safe for ordinary travel, conducted in the ordinary manner, always considering the fact that there is snow upon the street. Of course a street cannot be as safe to travel when there is snqw upon it as when there is no snow upon it, but we are dealing with a condition of snow, recollect, and, therefore, in determining whether a street is safe I must ask you to determine the question whether a street with snow upon it is safe for ordinary travel, conducted in the ordinary manner. You are not to apply to it the test that you would apply to a smooth asphalt street with nothing upon it; but here is a street with a foot of snow fallen upon it, with snow taken from the pavement and put upon part of it, and with snow taken from the street car tracks and also put upon part of it. In considering all these circumstances, was this particular place that we are now dealing with, this place where the plaintiff crossed the tracks, was that safe for the ordinary purposes of ordinary travel ? If it was, then of course there is no further question in the case at all, for the plaintiff then has suffered injury by an accident for which no one is responsible, and he must suffer the injury, painful as it has been. He has no right to put his injury upon the shoulders of somebody else and ask them to bear it, unless he can show some fault upon their part. And I repeat, if this place was not dangerous, tested by the tests I have just given to you, then nobody was at fault, and he has suffered a mere accident for which he cannot call upon either the city or the traction company to indemnify Mm or to make Mm whole. That, therefore, is the first question for you to consider. If the place was not dangerous for crossing with teams, then the injury was the result of an accident, and there can be no recovery in the present case.</p> <p>If, however, you find, tested by the rule I have just given to you, that the place was a dangerous place, then the next question in order of time for you to consider is, Whether the plaintiff was negligent himself, and whether his negligence contributed to his injury ? Now, that may happen in either one of two ways. If the place was dangerous — and of course now we are proceeding upon the assumption that it was a dangerous place — if it was, he certainly knew of it, for he had been over the ground at this very place, within a few feet, only tMee or four days before, and had had an upset at this particular spot, within a few feet of it. He was bound, of course, to know the ordinary operation of the laws of nature, and to know that if the weather got colder snow would freeze; so that the fact, the mere fact that the snow was soft when he crossed there on Tuesday would not tend to change the condition. He must have known, he is held to have known, and did know, no doubt, that the snow was frozen upon Saturday when he came along on the same road and attempted to cross at about the same place.</p> <p>Now, if therefore he knew of this place, as he did know of it beyond any controversy, and if there were other and safer roads which he could have taken to bring his load into town, then he had no right to take this road in question and expose himself to danger, and call upon somebody else to bear the consequences of it. To put it m other words, if knowing of this dangerous place, he nevertheless went on and attempted to cross, and suffered injury thereby, he took the risk of it himself and cannot recover in the present case. If, however, as is argued to you here, and there is evidence upon the subject, there was no other safer road which he could take to get into the city, then he would not be obliged to stay at home indefinitely simply because all roads were more or less dangerous. He was bound to select the safest road; and, to put it in a few words, if there was another and a safer road wMch he could have taken, it was his duty to have taken it, and if he did not do so but went on and took the risk, then he cannot recover in ■the present case. If these other roads, however, were equally unsafe, were equally obstructed so that he could not have got on any better upon any one of these, then I say he would not be debarred from choosing this particular street; but in the use of it, and especially when he approached the place which he knew to be dangerous, he would be bound to exercise the proper measure of care according to the circumstances; particularly as he knew that it was a dangerous place, and that he was approaching it, he would be bound to exercise due and proper care, and you must test that. You must apply the test of ordinary care under these circumstances, especially considering that he did know that the place was dangerous, caused by his previous experience. It was his duty to exercise, I repeat, proper and reasonable care in attempting to cross this street. He has given you an explanation of why he attempted to cross it, and assuming that fact to be true — it does not seem to be controverted — it was a reasonable excuse, as I have no ■doubt the jury would find. These sleighs were hitched upon the same side upon which he was traveling; no drivers were in sight; he was not bound to get down to try to find them and have them remove their teams. . Nothing was left for him, therefore, except to cross the street, and he attempted to cross it, and, as you have heard, the sleigh upset. Upon that point you must consider what he did, both then and afterwards, up to the time when he was hurt. Did he exercise proper or reasonable care in looking out for his own safety in crossing the street before the upset occurred ? Did he do what was reasonable and proper under all the circumstances, considering the amount of snow, the degree to which it may have been piled up, the width of the street, the facility which he had for turning, the load that he had upon his sleigh, the character of the sled that he had, his team — all these matters — determine whether hi attempting to cross he exercised ordinary prudence and care under all these circumstances. If he did not, if he was careless, negligent in attempting to make this crossing, and the sleigh upset by reason of that, then he has no further claim in the case. If he was reasonably careful in attempting to cross, then you will still have to consider whether he continued to be careful in what afterwards happened.</p> <p>If he was careful in trying to cross, then the upset was the result of an accident, and you would pass on to consider tbe rest of his conduct — whether in what took place immediately afterwards he was also properly careful of his own safety. He is chargeable with knowledge of what was immediately about him, he was bound to take notice of the surroundings — reasonably I mean, to see within reasonable limits. Considering all the circumstances there, what he was doing with his horses and where he was taking them, and what was incumbent upon him to do in trying to get them off the track and to proceed upon his journey, he was bound to take reasonable care of his own safety; and if he did not, if he was careless in not looking and seeing this sloping bank upon which he fell, then I say to you he can raise no claim in the present case. If his own carelessness in failing to look out for his own safety was the occasion of the injury to his hip, then of course he has no claim upon the company or upon the city in the present case.</p> <p>Those are the first two questions for you to consider. First, whether this was a dangerous place, and next, if it was a dangerous place, whether the plaintiff was negligent himself, contributing thereby to his injury. If you find either of these questions against the plaintiff, if you find, that is to say, that it was not a dangerous place, or if you find that he was negligent, then you have no further duty in the case except to return a verdict in favor of the defendants.</p> <p>But if you find that the place was not ordinarily dangerous, and that it was ordinarily safe, that there was no unreasonable obstruction to the ordinary travel at that point, and if you find that he was ordinarily careful, under all the circumstances, in looking out for his own safety; then you come to the next question in the case, which is, whether the city or the company is liable in this case, or whether both are liable; because one may be liable and the other may not, or they both may be liable, as the jury may find under the instructions I am about to give.</p> <p>Consider the case of the company first. The company is not bound by ordinance or statute, so far as appears — I know of no statute and no ordinance has been offered in evidence — to take the snow off the streets and to put it somewhere else; that, I have already said to you. I do not know that any more perplexing municipal problem exists in the winter, in a city of this size, and in other cities of nearly the same size, than this of a heavy fall of snow and how to remove it. Nevertheless here it is and something must be done. Now as long as the city or the municipality makes no effort to compel its removal from the streets, it must, as I have already said, be dealt with according to the ordinary rules which govern the conduct of one man in his relations to others; due regard must be had to the rights of other persons. So this snow must be put upon the street— since it is to stay there — with due regard to the rights of the people who are to use the street with teams. That is, to repeat . what I said at first, with due regard to ordinary travel, conducted in the ordinary manner with teams upon the roadway, considering the fact that there is an amount of snow there to be dealt with and to be considered in deciding the case. Obviously the standard would vary according to the amount of snow that might be there. A heavy fall of snow would naturally leave more upon the street to be dealt with than a light fall of snow. A light fall might interpose no obstacle, no matter how much it was piled up if it was quite light; whereas a heavy fall of snow might require a good deal of care and attention in order to pay that proper regard to the rights of others to which I have alluded.</p> <p>The company therefore having the right to remove it from its tracks and to leave it upon the street, would only be liable for negligence if it left it there as an unreasonable, obstruction to this kind of travel. If it were only a reasonable obstruction, then they would not be liable. I say a reasonable obstruction, because all snow upon the street, I take it, is an obstruction in some degree, therefore I have used the word unreasonable obstruction. It is impossible to avoid putting it upon the street in such a way that it is not an obstruction at all; therefore the company would only be responsible if, in their dealing with it, they so put it that it was an unreasonable obstruction to travel— arid I am speaking now of travel by teams. If they care for it properly, with proper regard to the rights of persons using teams, then they would not be responsible for any accident that might happen, such, for example, as the one before us. If they were not at fault, then so far as this case is concerned, this injury would be an accident, and they would not be responsible. If, however, they so disposed of it as to be an unreasonable obstruction to travel by tbe use of teams, if it were piled up in such a way, or at such an angle, put in such places and in such quantities as to be an unreasonable obstruction, then they might be responsible. They might be responsible in the present case, depending upon another question, however, which will also have to be determined, and of which I will speak in a few moments. Their duty, therefore, as I say, is to be ordinarily careful in disposing of the snow there upon their tracks so as not to occasion any unreasonable obstruction to travel by teams upon the roadway. If they fulfil that duty, then they are not responsible to what may happen to persons who use the teams. The street cannot help but be obstructed by snow, and if all persons put snow upon the street in a manner that is ordinarily proper and careful, then whatever injury may happen is an accident which must lie where it falls ; it cannot be shifted from the shoulders •of the man who is injured, or whose properly may be injured, to the shoulders of anybody else. That is the company’s duty.</p> <p>[Now consider the duty of the city. Of course if the company left this snow in a proper condition, then there is no further question in the case, because the city then would have no duty whatever, and therefore your verdict would have to be in favor of both defendants, if you find that question in favor of the company. But if the traction company left an unreasonable obstruction there to travel by teams upon the roadway, then comes the question of the liability of the city. The liability of the city over its roadways is to keep them in proper condition for ordinary travel, conducted in the ordinary manner, considering all the circumstances of the particular case. And I use that phrase because I want to keep in your mind the fact that there was snow upon this street, and that must always be kept in mind.] [2]</p> <p>A city’s duty concerning a street covered with snow is, of course, very different from its duty towards a street not covered with snow. (I am dealing now with streets that are covered with snow.) That being its duty, it is bound to see that the street is not unreasonably obstructed. If there is an unreasonable obstruction it is the city’s duty to remove it, and if it fails in that duty then it may be liable, it would be liable to any person who was injured thereby, even although some one else, the person, to wit, who put the obstruction there, might also be liable. That would not relieve the city. If a man throws a wheelbarrow, for example, in the street, and it lies there for a week or two, and the city allows it to stay as an obstruction upon the street, the city would be liable to a man who drove into it, without any negligence upon his part, and was injured thereby, even though the man who put the wheelbarrow there would also be liable. So if the traction company put an unreasonable obstruction of snow upon this street, it may be liable for the injury done thereby, but the city would also be liable for its failure to remove it, if it had notice of the existence of. this obstruction and failed to remove it in the exercise of reasonable diligence upon its part. Of course if some one goes to the proper authorities of a city and notifies them that there is a given obstruction upon the street, then the city has actual notice, it is actually notified, it has actual knowledge,' and therefore its duty to remove begins at that point, and from that point on it may exercise reasonable diligence, and must remove the obstruction within a reasonable time.</p> <p>But it may not have actual knowledge, and then you come to consider whether it ought to have had it in the exercise of proper and reasonable care. I need not say that it is the duty of city authorities to inspect its streets in a reasonable and proper manner, so as to keep itself fairly informed of the condition of the streets, in order that it may discharge the duty which it owed to the traveling public, and that is its duty in regard to snow as well as in regard to anything else which may be an obstruction. It is bound to see that its streets are not obstructed by snow. Obstructed to some degree by snow it cannot prevent, but it is its duty to see that streets are not unreasonably obstructed by the presence of snow.</p> <p>So if there was an unreasonable obstruction here, you will-consider whether the city, as it did not have actual knowledge in this case — there is no evidence of it — whether it did have constructive knowledge, and therefore might be liable for a failure of diligence in removing it. In determining that question, you will have to consider all the circumstances of the case. One of the principal elements is the interval of time that elapsed between the fall of snow and the time when this accident happened. A short time between the placing of an obstruction upon the street and the happening of an accident would probably not afford a city sufficient time to find out that there was an obstruction - there and remove it; a long time would. And between these extremes you sometimes have difficult questions to decide, whether in the exercise of ordinary care a city ought to have known, and is chargeable with knowledge, because of a failure of duty in not taking the necessary steps to know. Determine, therefore, in the present case, if you reach that point, whether the city had reasonable time within which, by the exercise of proper care upon its part, it could have discovered the presence of this obstruction there, if it was an unreasonable obstruction, and then determine whether, in the exercise of reasonable diligence, it ought to have removed the obstruction whatever it was.</p> <p>If it did have proper time to know, and if it failed in the exercise of reasonable diligence to remove the obstruction, then it would be guilty of negligence, and might be responsible for the consequences, as well as the company. Now those are up to this point the questions in the case.</p> <p>There still remains another question for your consideration, and it is by no means the least important; it is the question, to use the legal phrase which I will explain more clearly in a moment, of proximate cause. The word simply means the nearest cause. And the point now to be submitted to the jury is, assuming for the moment that there was an unreasonable obstruction there in the street, whether that was the proximate or nearest cause of the plaintiff’s injury. If it was not, then neither the city nor the company can be held responsible for the injury which he suffered. It is sometimes difficult to determine what is the proximate cause of a given event. Sometimes two or three causes seem to combine to produce it, and as I say it is sometimes quite a difficult matter to determine. Usually it is a question of fact for the jury to decide whether there is such a connection between two events that one may fairly be said to have been the proximate cause of the other. And I intend to submit to the jury the question in this case,-whether the injury which the plaintiff suffered was caused within this sense — was approximately caused by the condition of the street. At this stage of the case, of course, we assume that there was an unreasonable obstruction. Now you must decide from all the evidence in the case whether that was the proximate cause of the injury which the plaintiff suffered. The first step between the condition of the street and his injury was the upset of his vehicle, but that did not cause his injury. He was not hurt by the upset of his sleigh, and so far as appears his sleigh was not hurt, there is no claim, at all events, for damage to it. Nothing happened except that the load of hay was overturned. What toot place afterwards I need not detail, it was in the course of that transaction that the injury came to him, that he slipped and fell. So that you see it is not one step, it is at least two, and it may be more, between the condition of the street and the fall by which the plaintiff was injured.</p> <p>Now the rule with regard to liability, under such circumstances, is this: The person who is responsible for the condition of the street, and who may be liable if the obstruction there was unreasonable, is nevertheless only responsible for such consequences as he might fairly foresee as likely to occur from the condition of the street. A man is not bound to look into the future and anticipate everything, near and remote, that may happen from his conduct, but he is bound to foresee the fair and reasonable consequences of what he does. He is bound to have that much sensé and foresight at all events, and if he does not exercise it, nevertheless he would be held responsible just as if he had had and had exercised it; he is held to the reasonable and natural and probable consequences of his own act. So that if a man puts an obstruction in the street, for example, he is bound to see that somebody may come along there and fall over it. That you see is not this case. There was a fall over this obstruction, but that did not do the damage, it was what took place afterwards that did the injury of which the plaintiff complains.</p> <p>You must consider whether either the company or the city, in what they did or failed to do, are properly chargeable with foreseeing and with the duty to foresee that such an injury as happened in this case to the plaintiff might naturally and probably flow from what they did or did not do. And if you find that such is the case, that this falls within the consequences— such consequences as they might fairly foresee as being the probable and natural consequences of what they or either of them did or did not do — then the jury may find that the injury which the plaintiff suffered was caused proximately by the condition of the street. If they do not so find, however, if they find that this was not a natural and probable cause, looking at the matter as reasonable men, then neither the city nor the company would be responsible. They are responsible, as we are, as individuals are, for the natural and reasonable consequences of their own acts, and only for that. They are not held to any stricter measure or stricter liability than are individuals.</p> <p>Those are the questions in the case. You yull observe that it is necessary to determine them all in favor of the plaintiff before there can be any recovery in the present case. If you find any one of them against him, then you must find your verdict in favor of the defendants. If you find that this place was a dangerous place, if you find that he was not guilty of any contributory negligence on his own part, if you find that the city or the company, or both together, were guilty of negli- ■ gence, and that their negligence caused his injury, and further if you find that their negligence was the proximate cause of his injury, then and only then can you find a verdict in his favor. If any one of these steps, if in taking any one of these steps, you find the fact against the plaintiff, then your verdict must be in favor of the defendants.</p> <p>[You may find your verdict against one or the other of the defendants, or against both, as the evidence may seem to indicate. If, for example, you think that the traction company was liable because it had unreasonably obstructed the street, but that the city had not had sufficient time in which to find it out and remove it, then of course the city would not be liable, while the company might be.] [B] So that I say your verdict, 'in case you find in favor of the plaintiff, may be against both or either of the defendants. The city would be equally liable with the company if it had had time, fair time, and should have removed the obstruction, in case you find it to have been an unlawful and unreasonable obstruction.</p> <p>Assuming then for the moment that all these questions are found in favor of the plaintiff, you come then to the question of his damages, and about that I need only say a very few words. He would be entitled to recover such amount of money as he paid to his physician, about which there is a discrepancy; he says he paid him $65.00, and the doctor says $75.00. He would also be entitled to a fair and reasonable allowance for the loss of time he has suffered. For a while he did very little, for some months afterwards he was able to do something; so that for several months his loss of time was total, and after that it was partial, up to such time as the testimony may indicate. Whatever is fair and reasonable under the evidence he is entitled to in that respect. He is entitled to an allowance, a fair and reasonable allowance, for such pain and suffering as he underwent by reason of this accident. I do not think that there is any evidence that he is now suffering- any, except perhaps at times and in a very slight degree, and the doctor does not anticipate that he will suffer in the future except to a slight and occasional degree. Whatever the testimony indicates upon that point the jury will consider, and for that he would be entitled to an alloivance. If he has been permanently injured, not totally, that is not alleged, but if he has been permanently injured in part, he would be entitled to a fair allowance also upon that account. If a man’s earning power has been diminished by reason of the accident for which another is responsible, he is entitled, as part of the verdict, to an allowance for such loss of earning power. And in determining that matter you must consider his age, his expectation of life as indicated in part by these tables — they are not conclusive, they are only evidence for the jury to consider — consider also his condition of health, and the extent of the loss of power as far as the testimony may indicate. Take all these matters together— they are the elements of his damage — consider them as fair and reasonable men, and make such allowance as you see proper' under all the circumstances of the case. There is some difficulty, of course, in all these matters, in a case like this, in estimating what a plaintiff is entitled to; nevertheless you have to take the situation as you find it, and do the best you can.</p> <p>So you will take up-the case, therefore, in the questions I have indicated to you, because that is the natural and proper way to consider them, and in order that you may have them before your mind with certainty, I will just state them in that way.</p> <p>The first question is, whether this was a dangerous place. If it was not a dangerous place, then the plaintiff has no case, and your verdict must be for the defendants.</p> <p>The next question is, was he himself guilty of negligence contributing to the injury there, in taking a road which he knew to be unsafe, having another safer road; or in what he did afterwards in the course and up to the time when he was hurt ? If you find that he was negligent in either of these particulars, then your verdict must be in favor of the defendants.</p> <p>If you find also that the company was not negligent, and that the city was not negligent, then your verdict must be in favor of the defendants. And when I say negligent, I mean in leaving an unlawful and unreasonable obstruction upon the highway ; that, in this point, is all I mean by negligent.</p> <p>Passing that, you come to the last question — -supposing it to have been an unreasonable obstruction, whether that was the proximate cause of the plaintiff’s injury.</p> <p>There are those four questions in that order for you to consider, and unless you find them all in favor of the plaintiff, he has no case.</p> <p>If you find in his favor and against both defendants, your verdict will be against both in such amount as you may find under the instructions concerning damages. If you find in favor of one defendant and against the other, then your verdict would only be against the one defendant.</p> <p>We reserve the question, whether there is any evidence to go to the jury in support of the plaintiff’s claim against either or both defendants.</p> <p>The jury found a verdict in favor of plaintiff against the Scranton Traction Company in the sum of $887.99 and in favor of the city of Scranton, subject to the point reserved.</p> <p>The court reserved the question whether there was any evidence to go to the jury in support of plaintiff’s claim against either or both the defendants. The defendant moved for judgment non obstante veredicto whereupon the trial judge entered judgment on the verdict in favor of plaintiff against the Scranton Traction Company, McPherson, J., filing the following opinion:</p> <p>At the trial the question was reserved, “ Whether there is any evidence to go to the jury in support of the plaintiff’s claim.” Under this form of reservation we are at liberty to consider whether the plaintiff’s case discloses contributory negligence,</p> <p>180, (1899).] Opinion of Court below. and also whether the evidence of the defendant’s negligence is of a quality and quantity to require submission to the jury: Fisher v. Scharadin, 186 Pa. 565; Boyle v. Mahanoy City, 187 Pa. 1.</p> <p>The plaintiff is declared to have been negligent, because he drove upon the dangerous road of which he noy complains, although he had known of its condition for several days. There is no doubt that he knew of the danger that led to his injury and if a safer road had been available his negligence would be established. But the uncontradicted evidence showed that all the roads by which he could pass from his home to the city of Scranton were in a similar condition, and the court was therefore bound to submit to the jury the question whether he used due care in the necessary passage of a dangerous place. The question was submitted, the jury have found in the plaintiff’s favor, and we see no reason to differ from their conclusion: Altoona v. Lotz, 114 Pa. 288 ; Shaw v. Phila., 159 Pa. 487.</p> <p>The defendant’s negligence consisted in so disposing of the snow that had fallen upon its tracks as to leave a dangerous condition upon both sides of its rails. The jury was instructed that if this was dangerous to ordinary travel conducted in the ordinary manner, the defendant had failed in its duty, and upon further consideration we still regard this instruction as correct. "We do not think a court can say as matter of law, that a sloping bank, such as was left by the defendant’s sweeper, of the height and angle of slope described by the witnesses, is plainly safe for ordinary travel under the circumstances disclosed by the evidence. The question seems to be for a jury.</p> <p>It remains to consider, whether the plaintiff’s injury was proximately caused by the condition of the street. Upon this point also we have reviewed and considered fully the instructions given to the jury, and continue to regard them as sound. If the defendant’s duty was to dispose of the snow in such manner as to leave the street safe for ordinary travel, it was bound to foresee that an unsafe condition of the roadway might cause a vehicle to be upset, and it could hardly avoid perceiving also that if the vehicle is upset, the driver must move about on foot in order to right his conveyance and repair whatever damage may have been done. It is equally plain that after he had thus been forced to walk upon the snow by the defendant’s fault, he might slip upon tlie same slope that overturned his vehicle. It seems to us, therefore, that the connection between his fall and the defendant’s act in leaving an unsafe slope of snow upon either side of its tracks was not so remote as to require the court to declare as matter of law, that the defendant could not fairly foresee the probability of such a fall as a natural result of leaving the highway in such a condition. No question arises concerning the operation of an intervening cause.</p> <p>If, however, we are in error with regard to any of these questions, the record is in such a condition that the case need not be tried again; judgment can be entered for the defendant upon the reserved point. • The motion for judgment n. o. v. is refused, and the prothonotary is directed to enter judgment upon the verdict.</p> <p>Defendant, the Scranton Traction Company, appealed.</p> <p>.Errors assigned were (1) in refusing defendant’s motion for judgment non obstante veredicto. (2, 8) To portions of the judge’s charge, reciting same.</p>

<p>Railroads — Improvements under act of 1869 — Grant of easement — Emiment domain.</p> <p>A grant to a railroad company of a right of way and easement, for a consideration in money and certain covenants “not to interfere with a roadway leading to a sawmill,” etc., is not to be construed as binding the railroad company never to exercise its right of eminent domain, under the Act of March 17, 1869, P. L. 12.</p> <p>The right of a railroad company to make the necessary improvements contemplated by the act of 1869 was intended in large measure to be exercised for the public good and it will not be presumed, in the absence of clear words, that a company intended to barter away that right and thus disable itself wholly or in part to perform the public functions which it has undertaken.</p>

<p>Contract — Rescission—Measure of damages.</p> <p>When one party to a contract refuses without right to perform his part the other party may elect either to sue on the contract to recover damages for the breach, or to rescind the contract and sue in assumpsit to recover back the money paid under it.</p> <p>Insurance — Rescission of contract — Measure of damages.</p> <p>Where a policy holder has fulfilled his part of the contract under said policy until the policy was forfeited by the company, the insured may treat the contract as rescinded and recover back the premiums already paid with interest.</p>

Appeal, No. 20, Feb. T., 1899, by defendants, from judgment of Q. S. Sullivan Co., Dec. Sess., 1897, No. 8, awarding counsel fee in pauper litigation. Opinion by Rice, P. J. Appeal from order of removal.

<p>Respondeat superior — Municipal responsibility for trespass of councilman — Diversion of waters.</p> <p>It is not within the scope of a single member of a borough council, although he may be a member of the street committee, to act for the borough in the matter of changing the natural courses of water crossing the borough street so that an increased burden is imposed on plaintiff’s land by the trespass. It follows, therefore, that the municipality cannot be held impliedly liable on the doctrine of respondeat superior for the wrongful act.</p> <p>Failure of municipality to abate nuisance — Ratification.</p> <p>The mere failure of a borough to compel a restoration of a stream, diverted by a citizen, to its natural channel is not such evidence of an adoption or ratification of the wrong as would make the borough liable as a trespasser ab initio. There is a wide difference between the commission of an actionable nuisance and the mere failure of a corporation to exercise its charter power to abate a nuisance not rendering its streets unsafe and for the creation of which it was in no wise responsible.</p>

<p>Appeal, No. 9, April T., 1899, by defendant, from judgment of C. P. Westmoreland Co., Nov. T., 1896, No. 6, on verdict for plaintiff.</p> <p>Opinion by Rice, P. J.</p> <p>Appeal from judgment of justice in an action of assumpsit. Before McConnell, J.</p> <p>It appears from the evidence that defendant had dealt with and purchased tea from the plaintiff. Defendant testified that the tea gave entire satisfaction to his customers except the consignment for which this suit was brought; that he had built up a trade which required his own personal supervision and that of three agents; that on March 28, 1896, he gave a written order to plaintiff for another consignment of 368 pounds of tea at the same prices and of the same quality as that purchased by Mm in the past. The tea was received, a payment was made on account of $25.00, a portion of the last sMpment was sold by defendant to Ms customers and it was alleged some of the goods were returned and complaint made as to its quality and the dissatisfaction was such that- it destroyed defendant’s business. There was evidence tending to show that complaints were made by defendant to plaintiff of the quality of the tea and that on July 2,1896, he offered to return same to plaintiff but they refused to take it. The billheads of the plaintiff which were sent with the tea had written on these words, “ All claims must be made immediately on receipt of goods.” There was also evidence tending to show that the tea was not bought nor sold as first quality tea but defendant contracted to pay for it at about sixteen to twenty-two cents a pound and that he sold it at prices varying from fifty cents to $1.00 a pound.</p> <p>Defendant submitted the following points :</p> <p>[1. There is an implied warranty of wholesomeness in a sale of tea, and if you believe that this tea was unwholesome when received by defendant plaintiffs cannot recover. Answer: I do not recall any testimony that makes an answer to that question pertinent to this case, and the point is refused.] [2]</p> <p>[2. If you believe this tea was unsalable when received plaintiffs cannot recover. Answer: That we refuse.] [3]</p> <p>The court charged the jury as follows :</p> <p>[When was complaint made ? Was there a reasonable length of time in which to know both the quantity of goods and whether they were the goods that were ordered? Is it reasonable that a wholesaler is to wait until the retailer sell his goods and says whether it is satisfactory to the trade or not? In the absence of any agreement that the wholesaler made such a bargain we do not think it would be presumed that he wait until he would ascertain how these goods would be received by the trade.] [1] Verdict and judgment for plaintiff for $34.03. Defendant appealed.</p> <p>Errors assigned were (1) to portion of the judge’s charge, reciting same. (2, 3) In answer to defendant’s points, reciting points and answers.</p>

<p>Appeal, No. 59; April T., 1899, by plaintiff, from order of C. P. No. 2, Allegheny Co., July T., 1898, No. 186, discharging rule to open judgment.</p> <p>Opinion by W. W. Porter, J.</p> <p>Buie to open judgment. Before the court in banc.</p> <p>It appears from the record and evidence that a bond was given by defendants Miller and Mengel to indemnify the plaintiff, sheriff of Allegheny county, against any damage he might sustain in executing certain writs of fieri facias against one Patsy Carr. The sheriff had levied on a saloon, with its furniture and fixtures, owned by Carr, for $462.46. Delp & Company notified the sheriff that certain fixtures in the saloon were their property. Other executions were subsequently issued against Carr. The plaintiff having received the bond sold the goods to Edwin S. Porter for $450. It is claimed by defendant that the sheriff by direction of his attorney advertised and sold only the interest of the defendant Carr in the saloon. The plaintiff claims, however, that he sold the saloon and its contents outright, and that he did not receive any direction to sell only the interest of the defendant in the execution. At the time of the sale the sheriff being in possession delivered to the purchaser a bill of sale of the goods and their possession and made return of the sale upon his writ.- The suit against the sheriff was referred to a referee who found for the plaintiff and against the present plaintiff, Richards, for $450. Thereupon the defendants in the present suit filed a petition in this case and obtained a rule to show cause why the judgment should not be opened and the defendants allowed to defend. The court discharged the rule. Defendants appealed.</p> <p>Error assigned was in discharging the rule to show cause why . the judgment in this case should not be opened and defendants let into a defense.</p>

<p>Appeal, No. 92, April T., 1899, by-supervisors of Derry township, from decree of Q. S. Westmoreland Co., Nov. T., 1897, No. 6, dismissing exceptions to report of road viewers, recommending the laying out of á road and confirming the report of the road viewers.</p> <p>Opinion by Rice, P. J.</p> <p>Petition for road viewers. Before McCohhell, J.</p> <p>It appears from the record that a petition by certain citizens of Derry township was filed alleging that the petitioners “labor under great inconvenience for want of a public road leading from Blairsville Intersection to Cokeville, along the eastern side of the right of way of the West Penn Railroad, on the lands of Mrs. Sarah Gray, and extending thence to a point in another public road in the said village of Blairsville Intersection, near the station of the Pennsylvania Railroad.” The petitioners prayed the court to appoint proper persons to view and lay out the public road according to law, etc. The viewers reported in favor of laying out the road “ beginning at a point on the road leading from Blairsville Intersection to Cokeville, on lands of Mrs. Sarah Gray; thence through the improved lands of said Sarah Gray, Mary Serferdt and Henry Libengood,” by courses and distances set out, “ to the centre of a public street or road, being the terminal point mentioned.” The viewers called the attention of the court to the fact that “ the new road proposed crosses the Pennsylvania Railroad at a place where there is a cut of twenty feet, more or less, in depth, and that an overhead bridge will be required there to span a space of 100 feet, more or less,” which would cost several thousand dollars, too much for the township of Derry to bear, thus making, practically a county bridge, and stating that it had been suggested to the viewers that the Pennsylvania Railroad should build the .bridge, but that no assurances had been given that they would do so, and therefore the question was submitted to the court along with other matters for and against the road for the consideration of the court. Subsequently a letter was filed from the general superintendent of the Pennsylvania Railroad stating that if the viewers should report in favor of the vacation of certain public roads which crossed the main line tracks at grade, that the Pennsylvania Railroad Company stood ready to construct, at their cost, a substantial and suitable overhead bridge for the use of the general public and to take the place of the grade crossings proposed to be vacated, the only condition being that, when such overhead bridge, consisting of iron trusses and girders, had been completed in the best form, the commissioners of Westmoreland county would accept the same as part of the public highway, and thereafter maintain it. Contemporaneous proceedings were had which resulted in reports for the vacation of portions of roads having the grade crossings referred to in the above letter, which were made the subject of appeals Nos. 93 and 96, April term, 1899. Exceptions were filed on May 7,1898, to the report of the viewers by the supervisors of Derry township, which exceptions were dismissed on November 12, 1898, by decree of court filed, which confirmed the report of the viewers. The supervisors appealed.</p> <p>Errors assigned were to the decree confirming said report for the reasons: “ 1. That nowhere in the proceeding does it appear that the viewers appointed ‘ were three fair, judicious and impartial persons, one of whom shall be a surveyor,’ as required by the Act of May 8,1889, P. L. 129. 2. Nor does it appear that the viewers appointed are ‘ persons residing near the place to be viewed,’ as required by the Act of June 13,1836, P. L. 551; the fact being, that Cyrus Long resides at Greensburg, twenty-one miles from said place, and John D. Brown at Irwin, thirty-one miles from said place, neither one ever having resided near said place. 3. Nor does it appear that the viewers stopped at the termini fixed by the petition, to wit: ‘ extending thence to a point in another public road in the said village of Blairsville Intersection, near the station of the Pennsylvania Railroad.’ The report showing that they disregarded this termini and extended the new road across said termini, through the private property of H. Leihengood; thence across the Pennsylvania Railroad; thence through the property of Calvin Coursin and others, to an opening which is not a public road, nor is there' any evidence that the same has been dedicated to public use. 4. Nor does it appear that the termini of said road was fixed in said petition with that precision and clearness that is required by law. 5. The report fails to show the improvements through which said road is projected. 6. The report fails to show ‘ that notice was duly served upon the land owners,’ as required by law. 7. Nor does it appear by said report that the viewers attempted to secure a release for damages done to the land of Calvin Coursin, who owns the property immediately south of the Pennsylvania Railroad, through which said road goes, as well as the owner on the other side of said proposed road. 8. Nor does it appear that they had ‘ respect to the shortest distance,’ as required by the Act of 1836, P. L. 551, sec. 2. 9. That the report of the viewers is self-contradictory and uncertain. They first recommend a confirmation of this road, then they say that it will involve the construction of a bridge over the railroad that will cost several thousand dollars. This they say will be too expensive for the township of Derry to bear; then they suggest that the Pennsylvania Railroad should build this bridge, without stating whether the railroad, the township, or tbe county should maintain it, and then as a grand final, ‘we therefore recommend confirmation.’ 10. That it does not appear from the record that the court has approved said report as required by law. 11. Nor does it appear from said record that the court has ‘ directed of what breadth the road so approved shall be opened,’ as required by the Act of 1836, P. L. 551, sec. 4. 12. The court also erred in basing the decree upon the letter of the Pennsylvania Railroad Company, which letter was no part of the record, was not binding upon the company, did not agree to locate said bridge upon said proposed highway, and was upon condition that ‘the commissioners of Westmoreland county occupy the same as part of the public highway and thereafter maintain it,’ which condition has never been fulfilled and would be ultra vires on their part.”</p>

<p>Appeal, No. 93, April T., 1899, by-supervisors of Derry township, from decree of Q. S. Westmoreland Co., Nov. Sess., 1897, No. 4, confirming report of viewers vacating public road.</p> <p>Opinion by Rice, P. J.</p>

<p>Appeal, No. 1, Feb. T., 1899, by Robert F. Whitmer et al., surviving partners doing business in the name of William Whitmer & Sons, from judgment of C. P. Union Co., March T., 1896, No. 22, on verdict for plaintiffs.</p> <p>Opinion by Rice, P. J.</p> <p>Trespass. Before McClube, P. J.</p> <p>It appears from the record and evidence that the plaintiffs, claiming to be owners of numerous tracts of unseated land, made a written contract with Lewis Rothermel, one of their number, and Albert Lichtenwalter, selling them all the timber growing on the said land, the same to be cut down and carried away within a period of ten years, providing for a certain quantity to be cut each year and the method of payment. The contract gave to Rothermel and Lichtenwalter the right to use all the lumber necessary for building tramways, roads, houses, sawmills and other improvements; also allowed $1,300, as an offset to timber, to be used in the construction of tramways on the lands. It appears also that there were some intervening tracks between the point of shipment and the land claimed by the plaintiffs over which the lessees or grantees owned and operated a tramway. Rothermel and Lichtenwalter constructed the tramway provided for in the agreement and prosecuted business and operated their tramway until March 9, 1888, when Lichtenwalter sold his interest to Rothermel by deed of that date. This deed purported to convey “ everything owned jointly by Lewis Rothermel and Albert Lichtenwalter,” and recited sawmill and all machinery, locomotive, houses, stables, offices, office fixtures, lumber trucks, tramway, tools, etc. This sale was consented to by plaintiffs in writing. Rothermel died directly thereafter on June 8, 1889, having by his last will and testament given to his wife, Mary G. Rothermei, one of the plaintiffs, all his property, and made her his executrix. Mary G. Rothermel resold to Albert Lichtenwalter all the interest of her late husband in the operation. This was agreed to by the plaintiffs. Lichtenwalter having gone into possession and operation of the lands above mentioned under the purchase from Mary G. Rothermel, partially reconstructed the tramroad thereon, and the defendants in the present case made an agreement by which said' Lichtenwalter undertook and agreed within six months from date to construct a railroad or tramway into and upon the said lands, for the purpose of enabling both parties to take timber from the lands above mentioned; it being further provided by agreement that the whole road or tramway should be equally and jointly owned, the one half by Lichtenwalter and the other one half by these defendants. By deed of July 25,1889, Lichtenwalter contracted to pay certain sums to Mary G. Rothermel and gave judgment notes in part payment of the consideration of his purchase. Mary G. Rothermel entered judgment against Lichtenwalter and issued execution thereon, levying upon all of his interest in the operation, “ the said tramroads being sold together with his rights of way over said lands,” the defendants becoming the purchasers of said tramroads and rights of way. The plaintiffs claiming to own the tramway constructed as aforesaid brought trespass against the defendants for using the same.</p> <p>Other facts appear in the opinion of the court.</p> <p>[At the trial the court admitted in evidence on behalf of plaintiffs, under objection of defendants, the certified record of a judgment in the United States circuit court and the execution on same, by virtue of which it is alleged the lands claimed by plaintiffs were sold.] [1] [The court also admitted in evidence on behalf of the plaintiffs, under objection of defendants, the deed of John M. Davis, marshal for the western district of Pennsylvania, to Abraham Kerns.] [2] [The court also admitted in evidence on behalf of plaintiffs the deed of John C. Smith and wife to Alexander Silliman et al.] [3] [The court rejected evidence offered by defendants to show the usage of trade as to the ownership of a tramroad constructed in lumbering operations.] [4]</p> <p>The plaintiffs presented the following points, which points were affirmed:</p> <p>[4. That a partial destruction of said tramway by the flood of 1889 did not relieve the said Lichtenwalter and Rothermel from the duty of reconstructing the same, and the uncontradicted evidence in the case is that they did reconstruct said tramway after the flood of 1889 for the purposes mentioned in the contract of October 30, 1885.] [6]</p> <p>[6. That there is no privity of contract between the plaintiffs and defendants hi this case, and if the jury find from the evidence that the plaintiffs in this suit are the owners of the land upon which said tramway was constructed and that the defendants by their servants and employees entered on the property of the plaintiffs at any time between the 1st day of March, 1894, and the present time with their dinkeys and cars, they are trespassers and plaintiffs are entitled to recover.] [7]</p> <p>[8. That there is no evidence in the case that shows that the defendants had a right of way over the lands of the plaintiffs.] [8]</p> <p>The court refused to affirm defendants’ fourth point as follows :</p> <p>[4. That as the agreement of October 30, 1885, is silent as to who was to own the tramroad therein mentioned after its completion, the ownership of it is to be determined from all the evidence in the cause, taking into consideration particularly the fact that this tramway was constructed to remove timber from the plaintiffs’ land; that it has no outlet except through the lands of others over which the plaintiffs had no right of way; that the first road was built with lateral stringers and wooden rails and was in large part destroyed by the flood of 1889, and that the road used by the defendants was a new road built with cross ties and steel rails, paid for wholly by Liehtenwalter and these defendants; and also taking into consideration the construction placed upon the agreement by the parties themselves by their sales of the tramroad and contracts relating thereto as their own personal property, and the sale of the same by Mrs. Mary G. Rothermel, one of the plaintiffs, as the property of Liehtenwalter, and all the circumstances surrounding the transaction. Answer: In reply to this point we say, that the ownership of the road is to be determined from all the evidence in the case and the circumstances surrounding the transaction.] [11]</p> <p>[5. That the sale of the tramway by Liehtenwalter to Rothermel and the resale of the same by Mrs. Rothermel to Lichtenwalter as shown by the written agreements, ratified by the plaintiffs, is stout evidence to be considered by the jury in determining the ownership of the tramway. Answer : These circumstances are evidence, and the weight to be given them is for the jury.] [12]</p> <p>[6. That the agreement of October 30, 1885, between plaintiffs and Lewis Rothermel and Liehtenwalter, gave to them the possession of the land occupied by the tramway which they constructed, and when Liehtenwalter sold all his interests under the agreement of October 30,1885, to Rothermel, with the written consent of the plaintiffs, allowing Rothermel to associate with him in the business whomsoever he chose, and Mrs. Rothermel then resold to Liehtenwalter with the consent of the plaintiffs, it gave to Liehtenwalter the possession of the tramroad, with all the rights of Lewis Rothermel as to the same, and plaintiffs had no interest hr the same and cannot maintain this action for the use of the same by the defendants, who succeeded to all Lichtenwalter’s rights and title therein and thereto. Answer : The sixth point is refused.] [13]</p> <p>[7. There is no evidence that the defendants ever used the original tramway constructed by Rothermel and Lichtenwalter under the agreement of October 30,1885, and therefore no damages can be found against them for such use. Answer: The seventh point is refused.] [14]</p> <p>[8. The evidence in the case is that the defendants used a different tramway than the one constructed by Rothermel and Lichtenwalter in conformity with the agreement of October 30, 1885, by the plaintiffs. Answer: The eighth point is refused.] [15]</p> <p>[10. If the jury find from the evidence that Mrs. Rothermel, one of the plaintiffs, sold the tramway in dispute with the consent of her co-owners, the other plaintiffs, as is set forth in the agreement of July 25, 1889, there can be no recovery by the plaintiffs. Answer: The tenth point is refused.] [18]</p> <p>[15. The undisputed evidence being that Mrs. Mary G. Rothermel, one of the plaintiffs in this case, and one of the owners of the land in question by the same title as the other plaintiffs, sold the tramroad in question, with the rights of way over the land on which the same was located, as the property of Albert Lichtenwalter, by sheriff’s sale on February 21,1894, to these defendants, she is estopped from asserting title thereto as against these defendants, or damage for the use thereof by them, and the plaintiffs cannot recover. Answer: Refused.] [20]</p> <p>The court charged the jury, inter alia, as follows:</p> <p>[By the extension of 1889, the right of way was to be given to Lewis Rothermel and whoever he might associate with him after the timber was all removed. But there is no evidence that the timber was all removed, so there has no right of way been acquired over those lands by any person. If you find in this case that the plaintiffs are owners of the land and the defendants ran their cars over it with timber on from other lands they would be trespassers, and your verdict should be in favor of the plaintiffs.] [9]</p> <p>[Burden was on the defendants to show that timber was off' the land in order for them to have a right of way over it; the presumption is, in the absence of proof, that the timber or a portion of it at least still remained on the land.] [10]</p> <p>The jury rendered a verdict in favor of plaintiffs against defendant for $150 and found in answer to a question of the court as to the owner of the tramroad for the plaintiffs. Defendants appealed.</p> <p>JErrors assigned among others were (1-4) to rulings on evidence (sufficiently indicated in the statement of facts). (6-8) In affirming plaintiffs’ fourth, sixth and eighth points respectively, reciting same. (9,10) To portions of the judge’s charge, reciting same. (11-14, 15, 18, 20) In refusing defendants’ fourth, fifth, sixth, seventh, eighth, tenth and fifteenth points, reciting same.</p>

Appeal, No. 61, April T., 1899, by defendant, from judgment of C. P. Armstrong Co., Dec. T., 1893, No. 263, on verdict for plaintiff. Opinion by Rice, P. J. Trespass. Before Rayburn, P. J. It appears from the record that this case has been twice before the Superior Court on appeal, 2 Pa. Superior Ct. 422, where judgment for defendant was reversed on appeal, and 5 Pa.

<p>Appeal, No. 113, April T., 1899, by James N. Craft, from decree of C. P. Warren Co., Sept. T., 1898, No. 4, awarding fund in court.</p> <p>Opinion by Rice, P. J.</p> <p>Exceptions to auditor’s report. Before Lindsey, P. J.</p> <p>It appears from the record that the fund in controversy realized under a sale of real estate,, was claimed by James N. Craft, as assignee, on a verdict entered October 9, 1891, upon which judgment had never been entered, and also by A. V. D. Water-son on a judgment entered in 1898. The auditor awarded the fund amounting to $613.80 to the Waterson judgment. Exceptions were filed to the auditor’s report which were dismissed in the fblowing opinion by Lindsey, P. J. :</p> <p>Arthur R. Blood was the owner of lot No. 103 situate in the borough of Warren, county of Warren and state of Pennsylvania, on August 27,1891, containing about one third of an acre of land.</p> <p>February 6 an action of assumpsit was commenced to No. 41, March term, 1891, in the court of common pleas of Warren county, by J. A. Waterhouse against said A. R. Blood, and on October 9, 1891, a jury rendered a verdict in favor of said J. A. Waterhouse in the sum of $520.50.</p> <p>A motion for a new trial was made on behalf of the defendant, a rule to show cause granted by the court, and after argument, was discharged by the court December 10, 1891.</p> <p>No judgment was ever entered on the verdict, but the amount of the verdict was duly entered upon the judgment docket by the prothonotary as directed by the act of March 23, 1877. September 23, 1898, the death of A. R. Blood and the appointment of C. S. Blood as his executrix were suggested of record, and by an instrument in writing dated September 3,1898, J. A. Waterhouse assigned to James N. Craft, his heirs and assigns, the above mentioned verdict with interest and costs.</p> <p>December 1, 1891, H. Fuellhart obtained judgment against W. H. Thompson, J. R. Timmons and A. R. Blood to No. 344, September term, 1891, in the sum of $600, real debt, which was assigned by the plaintiff December 15, 1892, to A. V. D. Water-son, administrators of H. T. Kanaka, deceased. January 11, 1898, a fieri facias was issued on this judgment to No. 27, March term, 1898, with notice to Clara S. Blood, widow, devisee, and executrix of A. R. Blood, deceased, upon which writ the sheriff made return that he had levied upon said lot No. 103, situate in said borough of Warren on said date; and on the same day a writ of scire facias was issued on this judgment to No. 31, March term, 1898, to revive and continue its lien with notice to Clara S. Blood, widow, devisee and executrix of A. R. Blood, deceased.</p> <p>On March 15, 1898, judgment was obtained in this case in favor of the plaintiff and against Clara S. Blood, widow, devisee and executrix as aforesaid, and W. H. Thompson, for $600 and costs; and on June 24, 1898, a venditioni exponas was issued to No. 4, September term, 1898, by virtue of which the said lot No. 103 situate in Warren borough, was sold and the money which it brought is the fund distributed by the report of the auditor now under consideration.</p> <p>The question for our determination is whether the fund belongs to the plaintiff in the above entitled execution, or whether it belongs to James N. Craft, assignee of the plaintiff in No. 41, March term, 1891, by virtue of the verdict of the jury duly entered in the judgment docket of Warren county, October 9, 1891.</p> <p>To determine this question we must ascertain the true intent and meaning of the act of March 23, 1877.</p> <p>It was earnestly and ably contended by counsel for James N. Craft that the lien created by this act, in case judgment is not entered on the verdict, continues indefinitely. Is this true ? Is this the correct interpretation of the act ?</p> <p>These questions can be best answered by ascertaining the cause or reason for the passage of the ,act and the evil which the legislature intended to remedy. Fortunately there is no controversy between counsel on this subject. The reasons which led the legislature to pass this act are so clearly set forth in the preamble that there is no chance for any difference of opinion. Keeping in mind then the purpose which the legislature had in view, namely, to create a lien for the amount of the verdict rendered by the jury against the real estate of the defendant, during the pendency of motions for new trials and arrest of judgments, or, in other words, during the interim between the rendition of the verdict and the entry of judgment thereon, let us endeavor to find out if we can when the lien should terminate, if at all, in case no judgment is entered on the verdict.</p> <p>This act was passed to remedy what the legislature evidently regarded a defect in our laws relating to the recovery, entry and lien of judgments, so that the party who is compelled to bring his action in the courts to obtain what is due him, should not after going through the expense and annoyance of a trial be deprived of the fruits of the trial.</p> <p>The act provides that the amount of the verdict shall be entered in the judgment docket. It therefore partakes of the nature of a judgment lien, and we think the law limiting the lien of a judgment to five years should be applied to the' lien of the verdict of a jury.</p> <p>Statutes which are not inconsistent with one another, and which relate to the same subject-matter, are in pari materia and should be construed together and effect given to them all, although they contain no reference to one another and were passed at different times: 23 Am. & Eng. Ency. of Law, 311.</p> <p>We cannot think the legislature intended to create a new and independent lien, differing from the lien of a judgment, which should continue indefinitely. Such a construction would do violence to the plainly expressed purpose of the act as contained in the preamble, which was to provide a lien for the time between the recovery of the verdict and the entry of judgment thereon.</p> <p>The learned auditor has shown that originally the lien of judgments continued indefinitely, and that the legislature has by acts of assembly limited their lien to five years. In the face of this legislation we cannot think the' legislature intended the lien of a verdict to continue indefinitely.</p> <p>The act provides that “ it shall be the duty of the prothonotary of the court of common pleas to enter such verdict on the lien .docket where judgments are entered, marking the same ‘ verdict,’ and specifying the amount of said verdict and the date of its rendition.” It would therefore seem that the legislature were careful to classify the lien and place it with judgment liens. Why then should not this statute be construed with the other statutes relating to judgment liens ?</p> <p>In the case of Neeld’s Road, 1 Pa. 358, it was held that the act of April 16, 1838, providing for the laying out of private roads “ under the surface of any land ” to coal mines should be construed “ as if it were a section in the general road laws.” It therefore seems quite clear that this act creating a lien which the legislature has directed to be entered on the judgment lien docket, should be regarded as adding a lien in the nature of a judgment lien to supply a defect in existing statutes and the practice, and the statute limiting judgment liens to five years should apply to it. It was contended by counsel for James N. Craft, that the words “ which lien shall remain ” appearing in the 1st section of the act, expressly makes the lien of the verdict a continuous one, without entry of judgment.</p> <p>We agree with the learned auditor as to the meaning of these words, namely, that in case a new trial or arrest of judgment is denied, the lien of the verdict shall continue until by the practice of the courts judgment can be entered on the verdict, so that there shall be no interim, by means of which the creditor might lose his security. This we think was the intention of the legislature. But regarding the act as belonging to the system relating to judgment liens, we think it should be construed with them, and in case judgment is not entered the lien expires in five years. Again, the argument from the above quoted words loses its force when we apply the well-settled rule referred to in Commonwealth v. Fraim, 16 Pá. 163: “Statutes are to be construed so as may best effectuate the intention of the makers, which sometimes may be collected from the cause or occasion of passing the statute, and, when discovered, it ought to be followed with judgment and discretion in the construction, though that construction may seem contrary to the letter of the statute. It is said a thing within the letter of the statute is not within the statute unless it be within the intention of the makers.”</p> <p>This rule is referred to again in Big Black Creek Improvement Co. v. Com., 94 Pa. 455, opinion by Justice Trtjnkey.</p> <p>In construing a statute if the sense be doubtful such construction should, if possible, be given as will not conflict with the general principles of laws, which it may be presumed the legislature would not “ intend to disregard or change : ” Manuel v. Manuel, 13 Ohio, 458.</p> <p>The tendency of legislation in the commonwealth for a century having been to limit the duration of the lien of judgments, it cannot be presumed that the legislature intended to create a lien in the nature of a judgment lien that should continue indefinitely.</p> <p>Several statutes relating to the same subject will be so interpreted, if possible, as to secure harmony in their application and perpetuate the general purpose of the legislation: Wortham v. Basket, 99 N. Car. 70.</p> <p>And now, December 26, 1898, for the reasons given above, the exceptions to the learned auditor’s report are all overruled and the report is confirmed and distribution decreed in accordance therewith.</p> <p>Errors assigned among others were (11) in awarding the fund in court to Waterson, administrator of the Kanaka estate. (12) In not holding that the verdict in favor of the plaintiff in the case of J. A. Waterhouse v. A. R. Blood at No. 41, March term, 1891, was the first lien upon the real estate sold and upon the fund in court for distribution; and in not awarding said fund to J. N. Craft the purchaser in whom the rights of said J. A. Waterhouse under said verdict had become vested by the assignment to him.</p>

Appeal, No. 98, April T., 1899, by plaintiff, from judgment of C. P. Somerset Co., Sept. T., 1895, No. 167, in favor of defendant, on case tried without a jury. Held: that when it is proposed to impeach a deed, to show that it is not what it purports to be, a conveyance in fee, but only a mortgage, it can be done in no other way than that pointed out in the act, and this too without reference to the equities.

Appeal, No. 33, March T., 1899, by Henry Lenherr, from decree of O. C. Franklin Co., refusing issue d. v. n., and dismissing appeal from register of wills admitting to probate a certain paper as the last will of decedent. Opinion by Rice, P. J. W. W. Porter and W. D. Porter,. JJ., dissent. Appeal from decree of register admitting to probate a certain paper as the last will of decedent.

<p>Appeal, No. 15, April T., 1899, by respondent, from decree of O. C. Westmoreland Co., Nov. T., 1895, No. 18, confirming report of auditor.</p> <p>Opinion by Beeber, J.</p> <p>Exceptions to auditor’s report. Before McCohnell, J.</p> <p>It appears from the record that Lucinda H. Walters, legatee under the will of John Walters, petitioned to have a certain sum sufficient for her living set aside as a charge against lands under the will of her father.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The auditor reported in favor of the charge of $150 during the natural life of the petitioner as against the real estate in question.</p> <p>The court below dismissed the exceptions to the auditor’s report. Mary C. Steele, respondent, appealed.</p> <p>Errors assigned among others were (1) in dismissing the ex-ceptant’s first exception to the auditor’s report, which is as follows : “ 1. The auditor erred in his opinion and conclusions of law as a whole.” (2) In dismissing the exceptant’s second exception to the auditor’s report, which is as follows : “ 2. The auditor erred in his opinion wherein he held as matter of law ‘ that not only by the blending of the real and personal estate, but by the express terms upon which the devise of the land was made, that the provision (in the will of said John Walters, deceased) for the living of Lucinda H. Walters is a charge upon the land.’ ” (3) In dismissing exceptant’s third exception to the auditor’s report, which is as follows: “ (3) In not finding that the provision in favor of Lucinda H. Walters was not a charge upon the land devised by John Walters, deceased, to B. F. Walters.”</p>

<p>Province of court and jury — Adverse possession.</p> <p>What constitutes adverse possession is for the court; but the facts supporting the claim must be established to the satisfaction of the jury. The reason for this rule is that title being shown the law presumes the true owner to be in possession until adverse possession is proved to begin.</p> <p>Adverse possession — Essentials to support.</p> <p>To support adverse possession and set the statute of limitations running, there must be an actual entry and usage of the property such as the true owner thereof might make, without leave or permission, with the intention to retain possession and profits thereof as his own; this intention must be manifest and may be inferred from the manner of occupancy. In other words the essentials to constitute adverse possession are, (1) actual possession, which shall be (2) hostile and adverse, (3) continuous, (4) visible, open, notorious and exclusive, and (5) held under color or claim of title.</p> <p>Trespass by tenants — Results as to landlord — Adverse possession.</p> <p>A trespass by tenants demonstrating all the essentials of an adverse possession relates to the landlord with all responsibilities and advantages therefrom when knowledge of and acquiescence in the trespass are brought home to the landlord.</p> <p> Referee's failure to find facts, when not conclusive. </p> <p>The rule that a referee’s findings of fact are as conclusive as a verdict of a jury does not preclude inquiry into the evidence, when it is apparent that the referee failed to find pertinent facts, not because he did not believe the witnesses but because he deemed the facts testified by them immaterial.</p>

<p>Water course — Servers—Boroughs—Health ordinance.</p> <p>There cannot be a public or common sewer that has not been constructed and maintained by a municipality and that is not subject to municipal control.</p> <p>A stream or water course does not lose any of its characteristics because houses are built upon its banks or because they increase in numbers so as to become a borough.</p> <p>A health ordinance directing all privies on properties within a certain distance of a common sewer to be connected therewith cannot be construed into an adoption or maintenance of a fresh water stream as a sewer for the borough; nor is such adoption or maintenance to be inferred from the fact that surface water from the street had been on occasion directed by the burgess into the stream, or from the fact that the commissioner had caused the channel of the stream to be cleaned out upon one occasion. Trifling emergency work done by the borough to relieve its streets from overflow is not evidence of municipal duty to maintain a running stream-as a public sewer.</p> <p>Sewers — Water and water course — A municipality may not by ordinance convert a natural running stream into a common sewer — Nuisance.</p> <p>A municipality may not, by adopting a natural stream and water course as a common sewer, thereby legalize, permit of and direct the connection therewith of privies so that human dejecta and exerementitious matter will be deposited in the bed of such stream which, by the natural flow of the water in the channel, will be carried down that stream or into and by other streams and waters used for drinking purposes and which thereby are polluted with germs of disease.</p> <p>A nuisance per se cannot be authorized by the process of thus adopting a natural water course by a municipality as a common sewer when the necessary result of such action is likely to induce death and disease to lower riparian owners and others using the waters so polluted.</p> <p>Pollution of stream — Nuisance—Board of health.</p> <p>To place a privy so that human dejecta and excrementilions with the accompanying poisonous and disease-producing germs may drain into a natural stream of fresh water in close proximity to the source of the water-supply of a city is just such disregard of law and duty as the legislature and the board of health have endeavored to prevent. To maintain such a privy is to maintain a public nuisance and subjects the owner to indictment under the acts of 1860 and 1885.</p> <p>Board of health — Power of secretary — Evidence.</p> <p>On indictment for maintaining a nuisance in the shape of a privy draining into the source of a water supply, it was error to reject evidence offered by the commonwealth to prove that a complaint was made by the state board of health; that action was taken by the board through its secretary and the defendant notified and required to remove and abate within ten days. While the legislature may not delegate the power to make a law it can delegate the power to determine some fact or state of things upon which the law makes its own action depend. The act which created the state board of health designated the secretary as the executive officer and such officer, with his duties defined by the by-laws, is intrusted with the execution of the law; within the scope of his authority he is the board.</p> <p>Nuisance per se — Power of board of health to declare — Province of court and jury.</p> <p>A board of health or municipality has abundant powers to declare to be a nuisance and to abate whatever is per se a nuisance at common law and while such determination may not be final and conclusive the court should declare it if the uncontradicted evidence establishes a nuisance per se, if not, the case is for the jury.</p> <p> Opinion evidence as to nuisance. </p> <p>Whether a state of facts amounts to a nuisance is, in many cases, dependent on the opinion of witnesses and a reasonable and probable exactness based on experience and scientific investigation is the most that can be expected in such cases.</p> <p>Pollution of waters — Nuisance per se — Presumption cannot justify.</p> <p>No prescription or usage can justify the pollution .of a stream by the discharge of sewage in such a manner as to be injurious to the public health. The use of a privy the percolations of which contaminate the sources of a water supply is a nuisance per se,'not justifiable on the ground of necessity. *</p>

<p>Appeal, No. 2, March T., 1899, by defendant, from judgment of C. P. Cumberland Co., Nov. T., 1896, No. 92, on verdict for plaintiff.</p> <p>Opinion by Orlady, J.</p> <p>Trespass. Before McClure, P. J., of the 17th judicial district, specially presiding.</p> <p>It appears from the record and evidence that the defendant is the owner in fee of a farm, which was conveyed to him in 1886 by W. A. Coffey, executor of Joseph Galbraith, deceased. The said Joseph Galbraith had purchased the farm in 1877 from W. A. Coffey, administrator of Wm. Galbraith, deceased, who died in 1876. This farm lies between a public highway, known as the “Walnut Bottom Road,” on the south, and the farm of the plaintiff, Walter Stuart, on the north. Immediately north of plaintiff’s farm is the farm of his uncle, Walter Stuart, Sr.</p> <p>A lane crosses defendant’s land from the Walnut Bottom road to the line of plaintiff’s farm where it is closed by a gate on plaintiff’s land. Beyond this gate a roadway crosses plaintiff’s land to the farm of Walter Stuart, Sr., where it ends.</p> <p>In the summer of 1896 the defendant erected an ordinary swinging gate across said lane near its opening into the Walnut Bottom road, and removed the fence along one side of the lane from this gate to the gate on plaintiff’s land.</p> <p>On account of the erection of this gate by defendant, the plaintiff brought an action of trespass against him, alleging that the lane in question was a public highway, being a part of the Walnut Bottom road; that its obstruction by the defendant’s gate was illegal, and that in consequence thereof plaintiff had suffered great injury.</p> <p>The plaintiff in his statement and bill of particulars declared that the lane in question had been opened more than twenty-one years before as a public highway by William Galbraith, defendant’s predecessor in title, under an oral agreement with Walter Stuart, Si'., at that time plaintiff’s guardian, that said lane should always remain open and unobstructed.</p> <p>On the trial of the case in November, 1897, the plaintiff offered evidence to show that the lane in question was laid out and opened in 1877, by Joseph Galbraith, defendant’s immediate predecessor in title, under an oral agreement with Walter Stuart, Sr., that it should be a good passable road, and also offered evidence to show that said lane had been used, without objection, by any one desiring to reach the farms of Walter Stuart, the plaintiff, or of Walter Stuart, Sr., until 1896, when the defendant erected the gate complained of. On the question of damages, the plaintiff stated that he had suffered no injury beyond the slight annoyance incident to the delay caused by opening and closing the gate when he had occasion to use the lane, an injury which, he testified, was similar in all respects to that suffered by every person using the lane.</p> <p>The defendant offered evidence tending to show that no such oral agreement between Walter Stuart, Sr., and Joseph Galbraith had ever been made; that the lane in question was entirely on defendant’s land and was his own private way, to which neither the public nor the plaintiff had any right; and that the use thereof byr plaintiff had always been permissive; that the gate, the erection of which was complained of, was in all respects a reasonable and proper one, necessary for the protection of defendant’s fields, and one which he was legally entitled to erect and maintain.</p> <p>Defendant submitted certain points, which, with the answers thereto, were as follows :</p> <p>[1. If the jury find as a fact that the alleged agreement between Walter Stuart, Sr., and Joseph Galbraith was in writing, there being no competent evidence as to the terms of said contract, there can be no recovery for any breach of said contract in this case. Answer: Refused.] [3]</p> <p>[2. If the jury find that the gate erected by Wm. H. Line is a proper one for the protection of defendant’s fields, and that it does not unreasonably obstruct travel over the road from the Walnut Bottom road to the land of the plaintiff, the plaintiff cannot recover in the present case. Answer : Refused.] [4] [3. There can be no recovery in the present action for a breach of the express conditions of the alleged contract between Walter Stuart, Sr., and Joseph Galbraith, that no gate should be erected over the road in question. Answer: Refused.] [5]</p> <p>[4. This being an action for damages for the alleged obstruction of a public way, and the plaintiff having failed to show any damages different in kind and degree from the damage suffered by the public generally, there can be no recovery in the present action. Answer: Refused.] [6]</p> <p>[5. Under all the evidence, the verdict should be for the defendant. Answer: Refused.] [7]</p> <p>The court charged the jury as follows:</p> <p>In this case the plaintiff seeks to recover damages for injuries he has sustained by reason of the closing, by the defendant, of the road leading from the Walnut Bottom road to his property. '</p> <p>[It seems that for many years there was an old road to the farm of plaintiff, and by some amicable arrangement between his predecessors in title and those under whom defendant claims, the old road was changed and a new road located leading directly to this Walnut Bottom road from the plaintiff’s farm.] [8] [This road was opened in 1877, and remained so until a few years ago, last year I believe, when it was obstructed by the defendant.] [9]</p> <p>As to his closing the road, there does not seem to be any dispute, the defendant in fact admits it, but gives as his reason for doing so, that it saved twenty to thirty rods of fence, and that he had the right to fence the lane leading from the Walnut Bottom road.</p> <p>This road the plaintiff has a right to travel over, and by the closing of it, access is entirely shut off from his property, that is, when traveling the road, before he could reach his property, he would have to get out of his buggy, open the gate, drive through, and close the gate after him. He contends that he has been thus injured, and claims damages for this, $60.00 or $75.00.</p> <p>[Now, if you find that this road has been closed where it should not be, by reason of the defendant placing a gate across it, and which he admits, and that he has not the right to do so, then you should render a verdict for the plaintiff for whatever damages you think he has sustained.] [10] The amount of damages that you may find under the evidence, are compensatory, and are only placed upon the defendant for what he has done, although he may have put the gate there under the belief that he had the right to do so. Indeed, from what counsel have said, it is not damages they seek, but simply to determine a right. Still it will be for you to say what the damages are.</p> <p>[In order to determine the right, it is necessary for you to render a verdict in damages for such amount as you might think the plaintiff has sustained, and that will be for you to say under all the evidence in the case.] [11]</p> <p>The defendant has asked us to charge you on a number of points. We refuse to instruct you as requested, and will therefore not read them.</p> <p>You will retire now, gentlemen, and if you believe the defendant has not the right to close the road, you will find for the plaintiff for whatever damages you think he has sustained. Otherwise, for the defendant.</p> <p>Exception to charge and answers to points noted for the defendant.</p> <p>Verdict and judgment for plaintiff for six cents damages. Defendant appealed.</p> <p>Errors assigned were (1) in admitting in evidence the will of Samuel Stuart, Jr., to be followed by proof showing that the guardian made an arrangement with the defendant by which the road, the obstruction of which is complained of, was to be open. (2) In admitting evidence under the following offer: “The offer as to Mr. Galbraith was as follows: ‘We offer to show by the witness on the stand that his father, Joseph Galbraith, was the former owner of the farm through which this road passes; that his father made an arrangement with Walter Stuart, Sr., to change the road from its former location to the present one, and did so; that it was understood and agreed that his father should keep up the fence on both sides of the road, and that the road should be free and open and unobstructed.’ ” (3-7) Refusing to affirm defendant’s points, reciting same. (8-11) To portions of the judge’s charge, reciting same. (12) The charge as a whole is inadequate, biased and misleading, and in effect, unfair to defendant. (13) In allowing the amendment to plaintiff’s statement to be made after verdict and motion for a new trial, which amendment was as follows : “ The plaintiff moves to amend his narr. by striking out the word public wherever it appears before the word highway, so that it may conform to the proofs and issue tried.”</p>

<p>Police power defined — Fourteenth amendment.</p> <p>The police power of the state has been judicially defined to be the right to prescribe regulations for the good order, peace, health, protection, comfort, convenience and morals of the community which does not encroach on a like power vested in congress or state legislatures by the federal constitution or does not violate the provisions of the organic law, and it lias been expressly held that the fourteenth amendment to the federal constitution was not designed to interfere with the exercise of that power by the states.</p> <p> Delegation of police power to municipalities. </p> <p>The legislature cannot delegate its power to make a law but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. The state by the organization of cities imparts to its creature, the municipality, the powers necessary to the performance of its functions, and to the protection of its citizens in their persons and property.</p> <p>Delegation of police power to mayor — Reasonable discretion — Review by the courts.</p> <p>City councils under the police power may delegate to an officer like the mayor, authority to carry out the will of the corporation in the dispatch and control of daily affairs and the preservation of the public peace. The only limitation of this power is that it must be exercised in a reasonable, lawful and constitutional manner; if these limitations are not transgressed courts cannot interfere with municipal ordinances, for to the mayor and councils must be left a reasonable discretion.</p> <p>Street meetings — Use of drum — Public nuisance — Religious liberty.</p> <p>Public streets are designed for the use of the public in passing and re-passing and the municipal authorities may inhibit the use of a drum, etc., intended to collect and retain a crowd at street meetings. The fact that such uses of a drum, etc., for such purpose is adopted by a religious body as an adjunct of its proceedings does not affect the case. The adoption of criminal methods or such as result in a public nuisance by a religious body cannot be tolerated under the plea of religious liberty. The fact that a business or undertaking is lawful per se gives no justification for annoying the public in transacting it. .</p> <p>Police power — Judicial discretion — Constitutional law — Use of drum— Street meetings — Salvation Army.</p> <p>A city may by ordinance prohibit the use of a drum or other musical instrument on the street without permit from the mayor and the mayor in his discretion under such ordinance may refuse a permit to the Salvation Army to conduct street meetings to the accompaniment of fife and drum. Such action is within the reasonable exercise of police power of both mayor and councils. This is not such unreasonable exercise of police power as to permit of judicial review; it offen/ls neither section 4, article 1 of the state constitution nor the fourteenth amendment of the federal constitution.</p> <p>Ordinance — Failure to enforce, not a precedent.</p> <p>The failure to enforce an ordinance in one case is no legal reason for objection to its enforcement in another.</p>

<p>Appeal, No. 146, April T., 1899, by plaintiff, from judgment of C. P. No. 2, Allegheny County, Jan. Term, 1897, No. 144, on verdict for defendants.</p> <p>Opinion by W. W.. Poetee, J.</p> <p>Ejectment. Before Feazee, J.</p> <p>It appears from the record that this was an action of ejectment brought by Caroline Matthews to recover possession of a certain lot of ground in the possession of Clara J. Matthews and Myrtle and Winonia Matthews, widow and minor children of Edward B. Matthews, deceased. Defendants claimed title to the same by parol gift from Lewis Matthews, husband of the plaintiff and father of Edward B. Matthews, the husband of Clara J. Matthews who was the father of the minors, supposed to have been made about 1879, during the lifetime of both father and son. Plaintiff claimed title by deed of Lewis Matthews dated September 9, 1882, conveying a certain property, including the land in question. Lewis Matthews disappeared-about the year 1888, and as the court charged, is presumed to be dead. There was also evidence tending to show that defendants had entered into possession about the time of the alleged gift, remained in possession ever since and had put a certain amount for improvements upon the property.</p> <p>[At the trial the judge admitted testimony under objection of the plaintiff of Clara J. Matthews, one of the defendants, under the following circumstances : Mrs. Matthews testified to conversations having occurred in the lifetime of Lewis and Edward B. Matthews, and in order to qualify her as a witness a paper was produced in court at the trial, which was alleged to have been a deed for her interest in the property in question to her minor children. This paper was not proven, not identified, and the record not amended, and the paper not offered in evidence. Mrs. Matthews did not disclaim title of record or pay costs or give security as provided by the Evidence Act of May 23, 1887, P. L. 158, sec. 5, clause e.] [9]</p> <p>There was other testimony by other parties tending to show a parol gift of the land in question from the then owner, Lewis Matthews, to Edward B. Matthews, father and husband of defendant.</p> <p>[The court refused binding instructions for plaintiff,] [2] and left the question to the determination of the jury whether the plaintiff was entitled to recover under the evidence.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned among others were (2) refusal of binding instructions for plaintiff. (9) Admission of testimony of Clara J. Matthews, reciting same.</p>

<p>Appeal, No. 36, March T., 1899, by Huntingdon Co., from decree of Q. S. Mifflin Co., April Sessions, 1897, No. 37, refusing to grant a rule returnable at a future date, to show cause why tbe report of tbe county line commissioners should not be approved and ordered to be recorded, and to the decree of the court refusing to approve the report of the county line commissioners.</p> <p>Opinion by Rice, P. J.</p> <p>Petition of the commissioners of Huntingdon county for a rule on the commissioners of Mifflin county to show cause why the report and map made by the commissioners appointed to run and mark the line between the counties of Mifflin and Huntingdon should not be approved and ordered to be recorded. Before the associate judges of Mifflin county.</p> <p>The following appears from the docket entries:</p> <p>November , 1898. Petition of Huntingdon county, asking the court to fix a day for presentation of petition, filed.</p> <p>December 19, 1898. Petition of commissioners of Hunting-don county for a rule on the commissioners of Mifflin county to show cause why the report and map made by the commissioners appointed to run and mark the line between the counties of Mifflin and Huntingdon should not be approved and ordered to be recorded, etc.</p> <p>December 19, 1898. Decree of associate judges of Mifflin county, granting a rule returnable forthwith and argument to be heard at once.</p> <p>December 19, 1898. Exception to said decree noted for commissioners of Huntingdon county and bill sealed.</p> <p>December 19, 1898. Exceptions to the report of the commissioners appointed to run and mark the line between the counties of Mifflin and Huntingdon, filed by the commissioners of Mifflin county.</p> <p>December 19, 1898. Petition of commissioners of Hunting-don county, through their attorneys, praying the court to grant a rule as prayed for in the petition already presented this day returnable at a future day at which time the court can have a disinterested judicial officer to hear said cause, unless counsel of both counties with the consent of your honor shall have agreed upon some other judge to hear it.</p> <p>December 19,1898. Decree of associate judges refusing prayer of above petition and granting exception and sealing bill for petitioners.</p> <p>December 19,1898. Attorneys for Huntingdon county except to decree of associate judges of Mifflin county, decline to argue the case before them and desire that a bill may be sealed.</p> <p>December 19,1898. Bill sealed as prayed for above by associate judges of Mifflin county.</p> <p>December 19, 1898. Evidence offered and filed by the commissioners of Mifflin county in support of their exceptions to the county line report.</p> <p>December 19, 1898. Decree of associate judges of Mifflin county, sustaining the exceptions to county line report filed by the commissioners of Mifflin county and refusing to approve said report and order it to be recorded.</p> <p>December 20,1898. Petition of commissioners of Huntingdon county through their attorneys excepting to said decree and requesting that a bill of exceptions be sealed in their behalf.</p> <p>January 10,1899. Attorneys for Mifflin county accept notice of said writ.</p> <p>January 16, 1899. Petition of commissioners of Huntingdon county for exceptions to the decree of the court refusing to approve the county line report. Same day exception granted and bill sealed by associate judges.</p> <p>Huntingdon county appealed.</p> <p>Errors assigned among others were (1) in entering the following decree: “Now, December 19, 1898, the report and petition having been filed and exceptions having been filed by the county of Mifflin to the confirmation of said report, the rule is granted returnable forthwith, and argument be heard at once upon the exceptions.” (6) In entering the following decree: “ In the matter of the report of the commission appointed to run and mark the county line between the counties of Huntingdon and Mifflin, this day presented for approval. And now, December 18, 1898, said report having been presented for approval, exceptions having been filed by Mifflin county, against the approval of the report, after presentation of the testimony to sustain said exceptions, and after argument, on due consideration of the testimony and argument thereof, the court hereby sustains the exceptions and refuses to approve said report, and also refuses to order the same to be recorded.”</p>

<p>Equitable estoppel — Fraudulent representations.</p> <p>The doctrine of equitable estoppel is applicable when a person (C) holding a judgment- bond against another (M) represents her as the owner of real estate free of debt and incumbrance and sends the creditor to that other (M) for confirmation in order that credit may be extended on the security of the other (M) against whom the antecedent judgment is entered up (by C) to the prejudice of plaintiff’s surety bond.</p> <p>Assignment of judgment under seal — Fraud—Burden of proof as to consideration.</p> <p>While in the absence of evidence to the contrary an assignment of a judgment under seal imports consideration and entitles a bona fide assignee to the protection afforded by the rule under such circumstances, any evidence which impeaches the bona fides of the transaction will put the assignee to full proof of consideration.</p> <p>Estoppel — Assignment of judgment— Consideration — Fraud—Burden of proof.</p> <p>C represented M as an owner of real estate free from debt; the statement was confirmed by M and plaintiff accepted M as security for credit to be extended to C’s mother. C entered up a judgment bond antedating the transaction of the plaintiff. Plaintiff entered up also his judgment bond. C assigned his judgment to a building association. Plaintiff and C’s assignee claimed the fund resulting from a sheriff’s sale under C’s judgment'. Plaintiff alleged fraud on part of C. No proof was submitted of any consideration passing from C’s assignee. Held, that C being es-topped and her assignee being in position of a volunteer the fund should be awarded to plaintiff on his execution.</p>

<p>Pleading — Act of May 25, 1887, P. L. 271, affects forms of pleading not rights of parties — Evidence.</p> <p>Where a statement in trespass includes every ingredient of a good cause of action averred with the same precision, accuracy and completeness which was required in a declaration at common law, the defendant under his pleas of the general issue may offer any evidence which would have been admissible under a special plea and the plaintiff may present any testimony, which would have been relevant and competent under a replication and traverse. The procedure act of 1887 does not change the rights of the parties nor the rules of evidence to be observed in establishing these rights; it affects only the forms of pleading.</p> <p>jEvidence — Act of 1887 — Admissible proof under general issue.</p> <p>Plaintiff alleged damages resulting from erection of a dam by defendant. Defendant filed plea of general issue under which he introduced evidence which established a dam in existence for over fifty years with a right to raise same ten inches. Held, that plaintiff under the pleadings could show the existence of only a limited right and the presumptive exhaustion of the right to raise the dam.</p>

<p>Appeal — Opening judgment — Chancery powers — Weight of evidence.</p> <p>An application to open a judgment, entered on warrant of attorney, is addressed to the equitable powers of the court below, and upon appeal, under the Act of April 4,1877, P. L. 58, the question is, whether the court below rightly exercised its discretion upon the evidence. The judge to whom the application is made acts as a chancellor; he may not open the judgment unless there is more than oath against oath; when there is more than this and it becomes a question of the weight of the evidence, it is for him to decide to which side the scales incline.</p> <p>Landlord and tenant — Amicable judgment — Ejectment—Money damages for rent.</p> <p>A warrant of attorney in a lease to confess judgment against the lessee in an amicable action of ejectment, authorizing an habere facias to issue without prior writ, provided an affidavit should be filed setting forth the facts necessary to authorize the entry of judgment, does not warrant an assessment of money damages for rent in arrear.</p>

<p>Mechanic's Ken — Liability of surety therefor.</p> <p>Where the execution of a contract upon which defendant was surety resulted necessarily in a new building which as such was the subject of a mechanic’s lien, the fact that a mechanic’s lien was filed and reduced to judgment, subjects the surety to liability to the owner therefor.</p> <p>Principal and surety — Payment of mechanic's claims prior to lien filed.</p> <p>As between the owner and the surety of the contractor, who is in default and without means to finish the building, the owner may, with the approval of the contractor, pay for the work and materials necessary to complete the contract without releasing the surety, although nothing is at that time due the contractor under the terms of the agreement. Such action is for the relief and protection of the surety and the owner is not bound to wait until such mechanics and material men have filed liens.</p> <p>Principal and surety — Statute of limitations.</p> <p>Where the surety’s contract was direct and absolute and under seal, delay in bringing suit against the principal until the bar of the statute arose as against him, does not bar the right of action against the surety, who had the right to request plaintiff to proceed against the principal, and failing to do so he is not relieved from liability on his bond.</p> <p>Principal and surety — Surety's liability — Payment of Ken on verdict not conclusive — Burden of proof.</p> <p>Payment by the owner and plaintiff to the surety of the contractor, under attachment execution, of a balance alleged to be due contractor, where judgment was not entered on the verdict is not conclusive between the parties as to a lien filed against the building, which claim was not raised as a defense in the garnishee proceedings; and for the same reason, where no judgment was entered, on the sci. fa. sur mechanic’s lien, payment of the verdict, recovered by the claimant on the lien, is not conclusive, as against the surety and does not relieve the owner from the burden of establishing, by the evidence, that the claim was a valid existing lien, together with the amount thereof at the time it was paid by the owner, the plaintiff in the suit on the surety bond.</p>

<p>Transfer of liquor license — Practice, Q. 8. — Essentials of petition — Jurisdiction, Q. 8.</p> <p>Good practice requires that a petitioner for a transfer of license should set forth in his petition the grounds upon which the transfer is asked for and there is no doubt that the court may in its discretion require it. Such averments in the petition are not, however, essential to a valid order transferring a license, and an order transferring a license will be sustained if the applicant shall have presented a petition setting forth all facts necessary under existing laws for original applications for liquor licenses. When the petition has been filed the requisite length of time, the court has jurisdiction to transfer the licen’se after due hearing upon satisfactory proof of the essential facts.</p> <p>Refusal to renew lease — Ground for transfer.</p> <p>One of the cases where the jurisdiction to transfer a license may be exercised is, where the owner of the building occupied by the licensee refuses to extend or renew a lease for the same.</p>

<p>Bond of insurance agent — Surety's liability.</p> <p>The wilful and intentional failure of an insurance agent to perform duties, devolved upon him by the orders and instructions of the company, which failure imposed upon the company a liability under a policy, which the agent had been ordered to cancel, involves a forfeiture of a bond conditioned for faithful performance of all duties involving on such agent by any by-laws, rule, instruction or order of the company.</p> <p>Principal and surety — Agent's neglect of duty.</p> <p>The agent being intrusted with the adjustment of a loss on a policy which he had disobediently failed to cancel, it is no defense to the surety’s liability that the company compromised the claim which had become non-collectible if the agent neglected promptly to advise the company of any failure upon the part of the assured to observe conditions which involved a forfeiture of the claim.</p>

<p>Appeal, No. 208, Oct. T., 1897, by-defendant, from judgment of C. P. Schuylkill Co., Jan. T., 1895, No. 367, on verdict for plaintiff.</p> <p>Opinion by W. D. Pobtee, J.</p>

<p>Appeal, No. 2, April T., 1899, by-defendant, from judgment of C. P. No. 3, Allegheny Co., MayT., 1897, No. 216, on verdict for plaintiff.</p> <p>Opinion by Rice, P. J.</p> <p>Trespass for injuries to a dwelling bouse caused by a continued maintenance of defendant’s inclined plane. Before Kennedy, P. J.</p> <p>The original action resulting in a judgment of nonsuit was tried befoie Collies, J., and this judgment was reversed by the Supreme Court as reported in 159 Pa. 442. At a second trial defendant tendered a judgment for the amount of plaintiff’s claim. Subsequently a second action was brought for damages resulting from the continued maintenance of the alleged nuisance at a trial before Slagle, J., and a verdict and judgment rendered for the plaintiff for $613.36, which was affirmed on appeal to the Superior Court as reported in 2 Pa. Superior Ct. 123.</p> <p>The present action was brought to recover damages resulting from the time of the second action until date of suit brought in this case. At the trial plaintiff proved title to her property, defendant’s incorporation, the former recoveries and the present condition of defendant’s property.</p> <p>Defendant submitted the following points :</p> <p>[1. The burden is upon the plaintiff affirmatively to show that the injury complained of is the result of maintaining the nuisance complained of in plaintiff’s statement of claim, in practically the same condition it was at the time of the verdict in the suit between the same parties at No. 994, June term, 1894, and the plaintiff having failed to produce any testimony tending to so show, the verdict should be for the defendant. Ansiver: Refused.] [1]</p> <p>[2. The plaintiff having failed to produce any evidence that the structure complained of in the statement of claim belongs to or is maintained by the defendant, the verdict of the’jury must be for the defendant. Answer: Refused.] [2]</p> <p>[3. Under all the evidence in the case the verdict of the jury must be for the defendant. Answer: Refused.] [3]</p> <p>[4. Defendant being a corporation vested with the right of eminent domain and authorized to construct and maintain the structure complained of, and the plaintiff having in a prior case recovered for damages resulting therefrom, the plaintiff is now barred from recovery for a continuation of the injuries resulting from said structure. Answer: Refused.] [4]</p> <p>The court charged the jury in part as follows :</p> <p>[If they (meaning defendant) had so shown to you that they had remedied the improper construction of the wall after the other suits, or if they had. shown that the cause of this injury to the plaintiff’s property was a new one, not resulting from this negligent maintenance of the wall by the defendant company, then that would be a defense to this action. But, as I recall the testimony, there has been nothing shown on the part of the defense that they attempted to remedy the improper construction of this wall.] [5]</p> <p>"Verdict and judgment for plaintiff for $262. Defendant appealed.</p> <p>Errors assigned were (1-4) refusing defendant’s points, reciting same. (5) To portions of the judge’s charge, reciting same.</p>

<p>Appeal, No. 84, April T., 1899, byGustave F. Bender and Pauline Bender, from decree of O. C. Beaver Co., Sept. T., 1895, No. 21, in distribution of the estate of Michael Staib, deceased.</p> <p>Opinion by Rice, P. J.</p> <p>Exceptions to auditor’s report. Before Wilson, P. J.</p> <p>It appears from the record that an appeal was taken from the decree of the orphans’ court to the Supreme Court, and on October 31,1898, was certified to the Superior Court as per report in 188 Pa. 238.</p> <p>It appears also that the case arose on the distribution of the first and final account of tbe administrator,,of Michael Staib, deceased, showing a balance in the hands of the accountant of $1,580.39. The account was referred to an auditor to make distribution of the balance shown. It appears from the facts found by the auditor that decedent joined the Harmony Society of Beaver county in 1869; that in 1871 he had a fund on deposit with the Economy Savings Bank, a partnership in which the Harmony Society was a partner; that up to 1883 interest was credited at the rate of four per cent on this account; that the ledger account of the bank shows a'memorandum to the effect, “Interest stopped January 1, 1883,” and that one of the officers of the bank notified a trustee of the Harmony Society, one of the partners in the bank, to notify decedent that no further interest would be paid on his deposit after January 1, 1883. There was no evidence that Staib, the decedent, ever received this notice. The last check drawn by decedent was January 13, 1871, and interest on the balance was duly credited to him till January 1, 1883. By the articles of agreement of the Harmony Society, which is an unincorporated religious body, and which was signed by decedent in 1871 and confirmed in 1890, it appears that decedent had agreed to assign and by the articles of association reported to have assigned to the society all his estate, real and personal, thereby becoming entitled to the support of the association during life. Letters of administration were taken out on his death and the money on deposit was paid to the administrator by the savings fund. At the audit it was claimed by the decedent’s next of kin and by the Harmony Society. The auditor surcharged the administrator with the amount of interest from 1883 to the date of settlement, and awarded the fund to the next of kin of decedent under the intestate law.</p> <p>Exceptions were filed to the report of the auditor which were sustained by the court below, who awarded the fund to the Harmony Society disallowing surcharge of accountant with interest.</p> <p>Gustave F. Bender and Pauline Bender, grandchildren and next of kin of decedent, appealed.</p> <p>Errors assigned were (1) in awarding the balance in the hands of the administrator to the trustees of the Harmony Society. (2) In not surcharging the accountant with interest at four per cent per annum on the amount of the deposit from January 1, 1888, to the day of his appointment, namely, June 19, 1883. (3) In making the following statement or finding in the opinion : “ The auditor found in considering the contract of membership alone as a question of law, that Michael Staib was not the owner of the fund; that the contract of membership was an assignment which carried the fund to the society, and Staib died without an estate.” (4) In the following conclusion of law: “ 1. The legal title to the fund on deposit in the Economy Savings Institution was in Michael Staib, but by assignment contained in the articles of association he held the legal title only as trustee for the Harmony Society, and for its benefit, and as between Michael Staib’s estate and the Harmony Society, the relation is that of debtor and creditor.” (5) In the following conclusion of law: “ 2. The deposit hr the Economy Savings Institution was a chose in action, and as such the equitable title passed to the Harmony Society when Michael Staib signed the articles of association, in which he not only bound himself but his heirs, executors and administrators to the due performance of his undertakings.” (6) In the following conclusion of law: “ 3. The balance of the fund for distribution must be awarded to the Harmony Society.” (7) In the following conclusion of law: “ 4. The administrator should not be surcharged with interest from June 1,1883, as one of the trustees of the Harmony Society had notice that interest would cease at that date.” (8) In not awarding the fund in the hands of the accountant, including the said surcharge, after the payment of expenses, to the grandchildren of Michael Staib, the present appellants.</p>

Appeal, No. 21, Jan. T., 1899, by defendant, from sentence of Q. S. Wyoming Co., Nov. Sess., 1897, No. 17, on verdict of guilty. Opinion by Smith, J. Indictment for assault and battery. Before.

<p>Appeal, No. 133, Oct. T., 1898, by defendants, from decree of C. P. No. 1, Pbila. Co., Sept. T., 1895, No. 131, in favor of plaintiff.</p> <p>Opinion by Smith, J.</p> <p>Hearing on bill, answer and proofs. Before Brégy, J.</p> <p>It appears from the record that this case was before the Superior Court on appeal and hearing on bill and demurrer reported in 4 Pa. Superior Ct. 69, where that court reversed the decree of the court below sustaining demurrer to the plaintiff’s bill.</p> <p>The facts appearing from the bill and answer are as follows :</p> <p>Your oratrix complains and says:</p> <p>1. That she is the widow of Joseph B. Bussier, and that she resides in the county of Philadelphia, at No. 240 Harvey street, Germantown.</p> <p>2. That she is the owner in fee of a certain messuage and tract of land (being the said No. 240 Harvey street) situate on the southeast side of the said Harvej^ street at a distance of four hundred and twenty-five (425) feet southwestwardly from the southwest side of Green street in the Twenty-second Ward of the said city of Philadelphia, containing in front on the said Harvey street sixty (60) feet and extending in length or depth of that width, at right angles thereto, two hundred and fifty-three (253) feet, more or less, to the northwest side of a certain street called Lafayette street, having acquired title thereto by a certain conveyance from Edwin Hergesheimer 'and wife, dated the 5th day of April, A. D. 1867, and recorded at Philadelphia in deed book J. T. O., No. 41, page' 211, etc. That the said messuage and tract of land is now and has been ever since her possession of the same, and for a long time prior thereto, properly enclosed and fenced both on the two fronts and the sides, by stone walls and wooden fences, and that the said walls and fences have always been continuously maintained in good order and condition, and on the same lines without departing therefrom.</p> <p>3. That, as appears by a recent survey, made by Walter .Jones, Esq., the then surveyor and regulator of the ninth district, the fence extending from the said Harvey street to the said Lafayette street, along the northeastern boundary of your oratrix’s property is about eleven (11) inches northeast of the line as called for by her deed; that the said fence has been maintained in that position at least ever since your oratrix’s ownership of the aforesaid premises began, whereby, as she is advised and therefore avers, she has acquired a good and indefeasible title to the said strip of eleven (11) inches, extending along the northeast side of her property, from said Harvey street to the said Lafayette street, by open, notorious, continuous and adverse possession of the same during twenty-eight years; and that the said boundary fence at the time of the trespass herein complained of was in fairly good order and condition, and that the same was in no need of renewal.</p> <p>4. That, notwithstanding the above facts, three of the said defendants, to wit: Harry Weekey, Francis C. Dade, Jr., and Walter Noble, having recently acquired title, as your oratrix is informed and believes, to certain premises on the northeast adjoining and bounding upon the said strip of eleven (11) inches, have disregarded her title to the same and as well personally as by their agents and employees have entered into and upon her said premises, and without proceeding as is required by the act of assembly in the case of boundary fences needing repair or renewal, and without consulting or advising with your oratrix, have proceeded not only to rebuild a large part of the said fence, but also to move the same southwestwardly, and have set part of the said fence back upon your oratrix’s property along the northeast boundary thereof at various distances, from four (4) inches or thereabouts to thirteen (13) inches or thereabouts, and that they, the said three defendants,, have further threatened to commit a similar trespass, and move and rebuild in a similar way the rest of the said fence. That in committing the said trespass the said three defendants further broke down and destroyed part of a retaining wall erected along the southeastern boundary of your oratrix’s premises, on said Lafayette street, and also broke down and destroyed part of a board fence in front of the same, and also broke down and carried away parts of a retaining wall along the Harvey street front of your oratrix’s premises, for all of which said trespass and destruction your oratrix has no adequate remedy at law.</p> <p>5. That, as your oratrix is informed and believes, the said three defendants, since committing the said acts of trespass hereinbefore complained of, have conveyed the Harvey street front of the said premises, adjoining those of your oratrix, to the said defendants, Lewis Freeh and Cebert H. Newhall, and the rear or Lafayette street front to the said John Wesley Durnell; but that all and every of the said defendants have at all times neglected and refused to repair the damages committed in the said trespass, or to replace the said fence in its original location.</p> <p>Your oratrix, therefore, needs equitable relief, and prays that your honorable court may decree:</p> <p>1. That the said defendants be decreed to restore and put up again the said retaining wall and board fence so destroyed^ and broken as aforesaid along the southeastern boundary of your oratrix’s premises, and also the retaining wall so destroyed and broken on the Harvey street front as aforesaid.</p> <p>2. That the said defendants be ordered to move the said fence so placed upon your oratrix’s premises as aforesaid back to its original location.</p> <p>3. That the said defendants, their heirs and assigns, having-restored the said fences and walls to their original condition and location, be perpetually enjoined from hereafter moving the said fence, or any part thereof, back or interfering with the same in any way or otherwise changing the visible boundary line between the property of your oratrix and that of the said defendants in the future.</p> <p>4. Such other and further relief and process to that end as to your honorable court may seem meet and the case may require.</p> <p>And she will ever pray, etc.</p> <p>ANSWER.</p> <p>These defendants now and all times saving- and reserving unto themselves all manner of objections and exceptions to the plaintiff’s bill' and every part thereof, for answer thereto say:</p> <p>1. We admit the averments of the first paragraph of said bill.</p> <p>2. We admit the title of plaintiff to the portion of land described in the deed to her as set out in the second paragraph of said bill. We deny the other averments in said paragraph set forth.</p> <p>3. We admit that for a short time prior to the survey in the third paragraph of said bill set forth, plaintiff had wrongfully taken and retained possession of a strip of land belonging to her neighbor on the northeast. We deny that this possession had been taken and continued for twenty years, and we deny all the other averments in said paragraph set forth.</p> <p>4. We admit that Harry Weekey, Francis C. Dade, Jr., and Walter Noble, during the year 1895, peaceably took possession of a part of the land purchased by them, including a part of the strip wrongfully taken by plaintiff as above set forth. This retaking was with the full knowledge of plaintiff, who daily saw all that was being done, and did not object thereto. Nothing actually belonging to plaintiff was taken, nor was she injured in any way. All that was taken actually belonged to said Weekey, Dade and Noble, and has been continuously since then, and still is in the possession of themselves and their grantees. We deny the other averments in said paragraph set forth.</p> <p>5. We admit the conveyances in the fifth paragraph of said bill set forth. We deny that any damage was caused the plaintiff, or that we were ever asked to repair any alleged damage. We admit that said fence for a distance of some ninety feet from Lafayette street remains, as in law and equity it should, on the true line between the properties.</p> <p>And defendants further aver that plaintiff has a full, complete and adequate remedy at law for the alleged trespasses and injuries, and for the recovery of possession of the land now in the peaceable possession of defendants and their grantees; and as to the strip fronting on Harvey street, now in plaintiff’s possession and for which she has no title, they aver that they .have not now and never have had, any intention of taking possession thereof, by any act of their own since plaintiff objected thereto, but assert their constitutional right to recover such possession by due process of law in the common-law courts and that a court of equity is without jurisdiction to prevent them from so doing.</p> <p>Wherefore they pray to be hence dismissed with their reasonable costs and charges.</p> <p>REPLICATION.</p> <p>And now, this 21st day of April, 1897, the plaintiff joins issue on the matter alleged in the answer.</p> <p>At the trial plaintiff testified to a possession for twenty-eight years, one witness testified to seventeen years’ possession, and a daughter of plaintiff testified to possession on which she did not fix the time. Plaintiff testified to conversations during the taking, and to a threat of one of defendants to take down the fence along the balance of the strip. There was no other testimony on these points at all.</p> <p>The trial judge made the following findings of fact and conclusions of law:</p> <p>[1. I find the facts to be that the evidence offered on behalf of the plaintiff establishes an open, notorious, continuous and adverse possession on her part of the strip in controversy from the time of her purchase of the premises in 1867 until the invasion of the same by these defendants in 1895.] [7]</p> <p>2. That in the spring of 1895 these defendants, without asking the consent of the plaintiff, and against her protest, set back a part of the division fence between the two properties about eleven inches on to the plaintiff’s ground, for the distance of about eighty or ninety feet northwestward from Lafayette street.</p> <p>3. That in committing the said trespass they broke down her shrubbery and bushes, part of her retaining wall on the Lafayette street end, and a board about twelve inches wide from her back fence along the said street.</p> <p>4. That the defendants also erected a stone post for a corner of their front wall on the Harvey street end, and that the said post stands on the ground of the plaintiff.</p> <p>[5. That the threat of Mr. Dade, one of the defendants, testified to by the plaintiff, coupled with the fact that the defendants moved back eighty or ninety feet of the fence, is sufficient evidence of their purpose to move in a similar way the rest of the fence.] [5]</p> <p>CONCLUSIONS OF LAW.</p> <p>[1. I find the law to be that the erection of the said stone post on the property of the plaintiff is a nuisance which equity will abate by ordering the same to be removed.] [9]</p> <p>[2. ’That equity, having acquired jurisdiction over the subject-matter of this controversy as to that part of the fence not yet moved, will decree that the part set over on plaintiff’s premises shall be restored to its original position.] [10]</p> <p>[3. That the plaintiff has neither a full, complete, adequate nor convenient remedy at law by reason of the multiplicity and complexity of suits which would be necessary to adjudicate all the questions of this issue.] [11]</p> <p>[4. That this is not an ejectment bill, inasmuch as the plaintiff has actual possession of three fifths of the strip in dispute.] [12]</p> <p>[5. That the’ prayers of the plaintiff for equitable relief should be granted her according to the terms of the bill.] [13]</p> <p>The trial judge subsequently entered the following decree:</p> <p>[And now, July 2, 1898, this cause having come on to be heard at the present term, on bill, answer and proofs, and having been argued by counsel, it is, upon consideration, ordered, adjudged and decreed as follows :</p> <p>1. That the defendants move that part of the line fence set forward by them upon the premises of the plaintiff back to its original location; that they repair the said plaintiff’s rear retaining wall and fence on Lafayette street broken down by them; that they remove the stone post at the Harvey street end of the line fence from the premises of the plaintiff, and that they replace the stones in her front retaining wall which they broke away in erecting the same.</p> <p>2. That having so restored the said fences and walls, the said defendants be perpetually enjoined from interfering with or altering the visible boundary line between their premises and those of the plaintiff.</p> <p>3. That the defendants pay the costs of this suit in this Court to date.] [16]</p> <p>Defendants appealed.</p> <p>Errors assigned were (1) in not finding as a fact as requested by defendants in their second point, as follows: “ 2. That no steps were taken by her to enforce her alleged right until after the work was all done, and the properties conveyed to purchasers thereof.” (2) In not finding as a matter of law as requested by defendants in their ninth point as follows: “ 9. Plaintiff having knowingly permitted Weekey, Dade and Noble to proceed with the wrork, cannot now claim a decree in equity against them or their grantees until after her alleged right has been first established at law.” (3) In not finding as a fact as requested by defendants in their fourth point, as follows : “ 4. That there is no sufficient evidence that defendants or any of them threatened to commit trespass upon that part of the strip in dispute now in plaintiff’s possession, or to move and rebuild the fence now existing along the same.” (4) In not finding as a matter of law as requested by defendants in their eighth point, as follows : “ 8. The responsive denial in the answer of the allegation that defendants have threatened to commit trespass upon the portion of the strip in dispute, now in plaintiff’s possession, not having been overcome by sufficient evidence, this bill must be dismissed.” (5) In his fifth finding of fact, reciting same. (6) In not finding as requested by defendants in their third point, as follows: “ 3. That the evidence is insufficient to show an open, notorious, continuous, adverse and hostile possession by the plaintiff of the land in dispute for full twenty-one years prior to the building of the new fence by Weekey, Dade and Noble.” (7) In his first finding of fact, reciting same. (8) In not finding as a fact as requested by defendants in their fifth point, as follows: “ 5. The plaintiff’s claims have never been established at law.” (9) In his first conclusion of law, reciting same. (10) In his second conclusion of law, reciting same. (11) In his third conclusion of law, reciting same. (12) In his fourth conclusion of law, reciting same. (13) In his fifth conclusion of law, reciting same. (14) In not finding as a matter of law as requested by defendants in their seventh point, as follows: “ 7. That as by the answer plaintiff’s alleged claim is denied upon every ground upon which she put it, and has not been established at law,there can be no decree entered for her in this proceeding.” (15) In not finding as a matter of law as requested by defendants in their tenth point, as follows: “10. Plaintiff’s bill should be dismissed at her costs.” (16) In entering decree, reciting same.</p>

Appeal, No. 23, Feb T., 1899, by defendant, from judgment of C. P. McKean Co., June T., 1898, No. 168, in favor of plaintiff on issue tried before the court without a jury. Opinion by Smith, J. Issued tried without a jury. Before Morrison, J. It appears from the record that the auditors in McKean county stated an account against W. A. Young, one of the commissioners of McKean county, surcharging him with $87.27.

Appeal, No. 1, March T., 1899, by defendant, from judgment of C. P. Cumberland Co., on verdict for plaintiff. Opinion by Smith, J. Trespass. Before McClure, P. J., of the 17th judicial district, specially presiding.

Appeal, No. 13, Feb. T., 1899, by plaintiff, from judgment of C. P. Potter Co., Dec. T., 1896, No. 70, on verdict for defendant. Opinion by Smith, J. Assumpsit. Before Olmsted, P. J. It appears from the record that this action was brought to recover six years’ rent at $60.00 per year. No copy of pleading was printed in the paper-book.

Appeal, No. 3, March T., 1899, by plaintiff, from judgment of C. P. York Co., Aug.. T., 1897, No. 14, on verdict for defendant. Opinion by Smith, J. Assumpsit. Before Stewart, J. It appears from the record that suit was brought by plaintiff as indorsee of a note made by Henry G. Lightner, the defendant, to the order of George Lightner. The note was as follows: “$800.

Appeal, No. 207, April T., 1899, by plaintiff, from judgment of C. P. Westmoreland Co., Aug. T., 1897, No. 244, on verdict for defendant. Opinion by Beaver, J. Ejectment. Before McConnell, J. It appears from the record that in November, 1893, a judgment was obtained against Conrad and Kate Toomey, his wife, before an alderman of Pittsburg.

Appeal, No. 24, April T., 1899, by-defendant, from judgment of C. P. No. 8, Allegheny Co., Aug. T., 1896, No. 886, on verdict for plaintiff. Opinion by Smith, J. Assumpsit. Before Porter, J. It app'ears from the record that this action was brought-against Amelia and Isaac Hertz to recover 1350, with interest, which plaintiff alleges she loaned to defendants on or about November 15,1893, payable in two years.

Appeal, No. 6, March T., 1899, by defendant, from judgment of C. P. Cumberland, Co., May T., 1897, No. 727, on verdict for plaintiff. Opinion by Beebeb, J. Dissenting opinion by W. W. Pobteb, J. Assumpsit.

Appeal, No. 185, April T., 1898, by defendant, from judgment of C. P. Greene Co., April T., 1896, No. 233, on verdict for plaintiff. Opinion by Rice, P. J. W. W. Porter, J., dissents. Trespass. Before Crawford, P. J. At tbe preceding argument of this appeal the judgment of the court below was affirmed, as will appear by the report of the case in 8 Pa. Superior Ct. 89, Rice, P. J., and Beaver, J.„ dissenting.

Appeal, No. 144, April T., 1899, by •defendant, from judgment of C. P. Butler Co., June T., 1898, No. 53, on verdict for plaintiff. Opinion by Beaver, J. Assumpsit.

Appeal, No. 43, Jan. T., 1899, by defendants, from judgment of C. P. Bradford Co., May T., 1891, No. 98, on verdict for plaintiff. Opinion by W. D. Porter, J. Assumpsit. Before Lynch, J., of the 11th judicial district* specially presiding.

Appeal, No. 93, Oct. T., 1899, by Patrick J. Quinn, from order of Q. S. Phila. Co., March T., 1899, No. 926, refusing a retail liquor license at southwest corner of 2d and Master streets. Per Curiam. Application for retail liquor license. Before Wiltbahk and. McCarthy, JJ. It appears from the record that an application was filed January 21,1899.

Appeal, No. 101, Oct. T., 1899, by William E. Welsh, from order of Q. S. Phila. Co., refusing a retail liquor license at 196 Weiss street. Per Curiam. Petition for retail liquor license. Before Wiltsank and McCarthy, JJ. It appears from the record that a petition for a retail liquor license was filed January 23, 1899. Remonstrance was filed March 1, 1899. On March 3, 1899, a withdrawal of remonstrance was filed.

<p>Appeal, No. 155, Oct. T., 1899, by Edward Maher, from order of Q. S. Phila. Co., granting the transfer of a retail liquor license of Bernard McCabe.</p> <p>Opinion by Rice, P. J.</p> <p>Petition of Bernard McCabe for transfer of retail liquor license from premises No. 407 South 11th street to premises northeast corner 20th and Naudain streets for the balance of the license year commencing June 1,1899. Before Wiltbank and McCarthy, JJ.</p> <p>It appears from the record that Bernard McCabe, a retail liquor licensee in the city of Philadelphia, having a retail liquor license at No. 407 South 11th street, applied, by petition, for leave to transfer Ms license to the northeast corner of 20th and Nandain streets in the same ward.</p> <p>In Ms petition he set forth that he had had a retail liquor license at 407 South 11th street for five years past. “ That Edward Maher is the owner of the premises No. 407 South 11th street.”</p> <p>In his petition he stated as his reason for his application for the transfer that “ there is a partial destruction of the building at No. 407 South 11th street which he now occupies in that the cellar of said premises is full of water for a great portion of the year especially in the winter time, and that the roof leaks.”</p> <p>The appellant, the landlord of the premises, filed a remonstrance, setting forth that the place had been a licensed tavern for more than twenty years continuously and that to grant a transfer therefrom would greatly impair its value. He averred that the premises were tenantable in every respect and that according to the terms of the lease of the licensee, a copy of which he attached to the remonstrance, the licensee was bound during his term to keep the said premises in good order and repair.</p> <p>The petition was filed on June 10,1899. On June 27,1899, the remonstrance of Edward Maher against said transfer was filed. On June 30, 1899 the following docket entry appears: “Present: Hon. W. W. Wiltbank and Hon. H. J. McCarthy. Petition for transfer and remonstrance against same heard and held under, advisement.” July 5,1899, the following judgment was entered: “ And now, July 5, 1899, on motion of petitioner and after hearing in open court, it is ordered that the prayer of the petitioner be granted.’.’ Edward Maher appealed.</p> <p>JUrror assigned among others was in granting the prayer of the petition for transfer of the liquor license.</p>

<p>Liquor law — Refusal of license — Presumption of regularity of proceedings.</p> <p>The presumption is that a petitioner for a liquor license was accorded a full hearing and that the refusal of a license was for a legal reason, and where there is nothing on the record to show the contrary the order of refusal of the license is not reviewable on appeal.</p>

<p>Refusal of license — Judge not obliged to give reasons.</p> <p>When the court has heard and decided an application for a license, its whole duty .is performed. The license judge is not required to give reasons for his decision.</p>

Appeal, No. 108, Oct. T., 1899, by Louis Hilleman, from order of Q. S. Phila. Co., refusing application for wholesale liquor license. Per Curiam. Application of Louis Hilleman for wholesale liquor license. Before Wilts auk and McCarthy, JJ. It appears from the record that a petition was filed February 6, 1899. On February 28, 1899, an order of court was filed. March 24, 1899, remonstrance filed. March 28, 1899, petition and remonstrance heard and held under advisement.

Appeal, No. 119, Oct. T., 1899, by Edward Sweeney, from order of Q. S. Phila. Co., refusing petition for bottler’s license. Per Curiam. Application of Edward Sweeney for wholesale bottler’s license. Before Wiltsawk and McCabthy, JJ. It appears from the record that a petition was filed January 28,1899. February 28, order of court filed. March 24, remonstrance filed. March 28, petition and remonstrance heard •and held under advisement. April 29, petition refused.

Appeal, No. 132, Oct. T., 1899, by Rocco Di Nubile, from order of Q. S. Phila. Co., refusing petition for bottler’s license. Per Curiam. Application of Rocco Di Nubile for renewal of bottler’s license. Before Wiltbahk: and McCarthy, JJ. It appears from the record that a petition was filed on February 6, 1899.

Appeal, No. 121, Oct. T., 1899, by Daniel Meenan, from order of Q. S. Phila. Co., refusing petition for retail liquor license. Per Curiam. Application for retail liquor license. Before Wiltbahk and McCabthy, JJ. It appears from the record that a petition was filed February 6,1899. On February 28, 1899, the general order of court filed. April 3,1899, petition heard upon rule to revoke and held under advisement. April 29, 1899, petition refused.

<p>Revocation of license — Appellate review.</p> <p>Where a license is revoked, after due notice and hearing, the action of the license court will not be reviewed on the merits by the appellate court because there is no way of bringing the evidence on the record.</p> <p>Revocation of license — Specification of cause therefor reviewed.</p> <p>Where the rule to show cause why license should not be revoked is based on an ex parte affidavit alleging that the licensee had violated the law, fairness and good practice require that the act alleged to be a violation of law be specified with reasonable certainty. Where this is done and the order of revocation specifies no other cause, the appellate court will look into the petition to determine whether or not the alleged act is a violation of law.</p> <p>Sale of liquor in excess of one quart — Retail license.</p> <p>A license to sell liquor in quantities not exceeding one quart at a time must be held to be no justification for a sale in greater quantities; such sale is a violation of the law, and justifies a revocation of a license.</p> <p>Legislation on this subject reviewed.</p>

<p>Jurisdiction, C. P. — Certiorari from justice or magistrate.</p> <p>The judgment of the common pleas upon certiorari to the judgment of a justice of the peace in aétions brought under the act of March 20, 1810, is final. A similar judgment of a magistrate falls within this rule and the judgment of the common pleas upon certiorari is not reviewable.</p>

Appeal, No. 96, Oct. T., 1899, by Daniel J. Thompson et al., from decree and orders of Q. S. Blair Co., Jan. Sess., 1898, Docket “K,” page 23, refusing to^ confirm report of viewers, detaching certain lands of Blair Township from the Newry School District. Per Curiam. Application of certain residents of Blair township to have their real estate detached from the Newry school district and reattached to the Blair township school district.

Appeal, No. 114, Oct. T., 1899, by-Marcus & Co., from decree of C. P. Blair Co., Oct. T., 1898, No. 10, in appropriating moneys arising from the sale of the personal property of Jonathan Kelchner. Per Curiam. Exceptions to auditor’s report. Before Bell, P. J. It appears from the auditor’s report that Jonathan Kelchner, pending alleged insolvency, confessed certain judgments to Ms wife and that execution issued thereon.

<p>Jurisdiction, equity — Error in proceedings.</p> <p>Where a court has general jurisdiction over the subject-matter and the parties, no mere error of the court in the proceedings will make void the decree.</p> <p>Appointment and expenses of receiver — Preliminary injunction — Omission of security — Laches.</p> <p>A preliminary injunction and appointment of a receiver were made by one order and without security entered by complainant as required by the Act of May 6, 1844, P. L. 564; while on objection made at the time such order would have been revoked by the court below or reversed on appeal,, this defect will be cured by stipulation filed and it cannot be invoked to defeat the legitimate expenses of the receiver in the execution of his duties.</p>

<p>Appeal, No. 14, Feb. T., 1899, by plaintiff, from judgment of C. P. Sullivan Co., May T., 1897, No. 1, on verdict for defendant.</p> <p>Opinion by W. D. Porter, J.</p> <p>Trespass. Before Dunham, P. J.</p> <p>It appears from the record and evidence that plaintiff brought this action against the sheriff, claiming damages for levying upon and sale of certain property which the sheriff levied upon as the property of Andrew J. Quigley, her husband, at the suit of Thomas Fell.</p> <p>Upon the trial of the case the court under objection by defendant rejected an offer by the plaintiff’s counsel as follows: [The counsel for the defendant having upon the cross-examination of the witnesses for the plaintiff asked them as to the purchase of the carpet and such questions as would attack the validity of the title of the plaintiff to the carpet and other articles in question in this suit, counsel for the plaintiff now propose to ask this and other witnesses whether they heard Mrs. McGreever or Mrs. Quigley say anything about the title to the carpet and other property at any time before the sheriff’s sale or before any controversy had arisen in regard to the title of the property in question in this suit. This is offered in corroboration of the testimony of Mrs. McGreever and Mrs. Quigley ; all of the declarations to be confined to a time prior to the sheriff’s sale and before any question or controversy had arisen.] [1]</p> <p>The court admitted testimony under the following offer of defendant: [Offer: Counsel for defendant propose to show by this and other witnesses that the husband of the plaintiff, Andrew J. Quigley, was engaged in a gainful occupation all this time of which plaintiff speaks, and propose to show the condition of her family at that time. Objected to by plaintiff. Objection overruled. Exceptions to plaintiff.] [2]</p> <p>Plaintiff submitted among others the following point:</p> <p>[1. That if the jury believe the sewing machine was used in the family of Andrew Quigley, that it was exempt from levy and sale upon execution against him, and that if his wife used his money to pay for the machine by his knowledge or consent, that the title so acquired by her would not be a fraud upon Mr. Fell or any of the creditors of Andrew Quigley, and the jury under such circumstances should find a verdict for Mrs. Quigley, the plaintiff, for the full value of the sewing machine. Answer: This point, gentlemen, we do not affirm. If the sewing machine was paid for with the money of Mr. Quigley, then it would belong to him. If it was paid for with money that belonged to Mrs. Quigley, as we have instructed you, it would belong to her and she could maintain an action for it in this case, otherwise she could not. The evidence in this case shows that the defendant in the execution, A. J. Quigley, had waived the benefit of the exemption laws of the state of Pennsylvania, and having done that he waived his right to the sewing machine just as much as he did to any of the rest of the goods in this action, they all being of less value than $300.] [5]</p> <p>Defendant submitted the following point:</p> <p>[5. The evidence shows that the sewing machine was used for the benefit of the family of plaintiff’s husband; and the fact that the lease for same was made with plaintiff would not give her title to the machine, unless the money paid for the same was earned by her in an independent business of a permanent character. Answer: This point we do not affirm as written. We say to you that if it was paid for by the money of plaintiff’s husband, which was not the money of the plaintiff, earned by her by work done outside of the family, or in a business conducted by herself with her husband’s consent and acquiescence, that then it would belong to plaintiff’s husband, and plaintiff could not recover in this action for the machine.] [4]</p> <p>Yerdict and judgment for defendant. 'Plaintiff appealed.</p> <p>Errors assigned among others were (1, 2) to rulings on evidence, reciting offers thereon. (4) To answers to defendant’s fifth point, reciting point and answer. (5) In not affirming unqualifiedly plaintiff’s first point, reciting point and answer.</p>

<p>Appeal, No. 165, Oct. T., 1899, by defendant, from judgment of Q. S. Lebanon Co., Sept. Sess.,, 1898, No. 14, on verdict of guilty.</p> <p>Opinion by Beavee, J.</p> <p>Indictment for violating auction law.</p> <p>It appears from the record and evidence that defendant, a jeweler and watch-maker, having his place of business in Philadelphia, was accustomed to purchase the movements, dials, springs, hands and cases separately, assemble these several parts and put them into a marketable condition as watches and that he had sold several of these watches, at Mt. Gretna at private sale and also by outcry to competitive bidders at public auction, whereupon he was arrested under the 2d section of the Act of April 2, 1830, P. L. 147, the act relating to hawkers and peddlers.</p> <p>The jury, under instruction of the court, found a special verdict which is sufficiently set out in the opinion of the court.</p> <p>The court entered judgment for the commonwealth under special verdict, filing the following opinion:</p> <p>Two questions were raised by the contentions of counsel, ■upon the facts found by the special verdict, (1) was the defendant the manufacturer of the watches sold by him at auction? and (2) is section 2 of the Act of April 2, 1830, P. L. 147, under which the defendant is indicted, constitutional ?</p> <p>The word “manufacture” is defined as follows by Webster: “ To make or fabricate raw materials by the hand, by art, or machinery, and work into forms convenient for use.” And “a manufacturer ” as “ A person engaged in the business of working raw materials into ware suitable for use.” By Bouvier: “Any new combination of old materials constituting a new result or production in the form of a vendible article not being machinery.” By Papalje & Lawrence: “ Anything made by art.”</p> <p>In Norris Bros. v. Com., 27 Pa. 494, it is said: “To make in a mechanical sense does not signify to create out of nothing; for that surpasses all human power. It does not often mean the production of a new article out of materials entirely raw. It generally consists in giving new shapes, new qualities, or new combinations to matter winch has already gone through some other artificial process. A cunning worker of metals is the maker of the ware he fashions, though he did not dig the ore from the earth, or carry it through every subsequent stage of refinement.”</p> <p>Almost the same language is used by the Court in the case of City of New Orleans v. LaBlanc, 34 La. 596. In Carlin v. West Assur. Company of Toronto, 57 Mo. 526, the Court says: “ Whilst from its derivation the primary meaning of manufacture is making with hand, this definition is too narrow for its present use. Its meaning has expanded as workmanship and art have advanced, so that now nearly all artificial products of human industry, nearly all such materials as have acquired changed conditions or new and specific combinations, whether' from direct action of the human hand, from chemical process, devised and directed by human skill, or by the employment of machinery, which after all is but a higher form of the simple implements with which the human hand fashioned its creation in ruder ages, are now commonly designated as manufactured.”</p> <p>These definitions differ in language and in scope, but agree, that to manufacture is to make by change of form, quality, or combination, either chemically or physically, of the matter of which the manufactured article is composed.</p> <p>[Under the facts found by the jury in their special verdict, the defendant is not protected by the language in any of the definitions quoted, nor any that we have been able to find. He is not a manufacturer or maker of watches. He does not make the works or running part of the watch, he does not even put the works together. He does not make the case into which the works are put. He does not make the dial nor the hands. Pie buys the works ready to put in the case, and the case ready to receive the works. He puts the works in the case and adjusts the dial and hands manufactured by somebody else. He has manufactured no part of the watches in controversy and the putting together of the manufactured parts does not make him the manufacturer of the wares sold.] [1]</p> <p>The constitutionality of the act of April 2,1830, under which and by virtue of the Act of February 24, 1847, P. L. 164, the defendant is indicted, has been settled by the decision of Justice Williams in the case of Com. v. Brin ton, 25 W. N. C. 277. The decision is adverse to the defendant’s contention. [The commonwealth is entitled to judgment upon the special verdict.] [2]</p> <p>[Sentence must be imposed under the Act of February 24, 1847, P. L. 164.] [3] The defendant is to appear for sentence on August 28, 1899.</p> <p>Verdict and judgment for the commonwealth. Defendant appealed.</p> <p>Errors assigned were (1-3) to portions of the opinion on the special verdict, reciting same. (4) In entering judgment on the special verdict in favor of the commonwealth.</p>

Appeal, No. 147, Oct. T., 1899, by plaintiff, from judgment of C. P. No. 2, Phila. Co., March T., 1899, No. 75, in favor of plaintiff for want of a sufficient affidavit of defense. Opinion by Beaver, J. Motion for judgment for want of a sufficient affidavit of defense. Before the court in banc. It appears from the record that plaintiff, a book agent, sued to recover the amount of $634.61, money deposited to cover the price of books furnished him for sale.

Appeal, No. 77, Oct. T., 1899, by appellant, from judgment of C. P. No. 2, Phila. Co., March T., 1894, No. 95, entering compulsory nonsuit. Opinion by Beaver, J. It appears from the record that this action was assumpsit on^ book account on which the balance claimed was $60.03. The book entry showed a charge against one Meyer altered by the cancelation of that name and the interlineation of the name of the defendant at a date later than the alleged sale.

<p>Appeal, No. 20, April T., 1900, by defendant, from judgment of Q. S. Erie Co., May Sess., 1897, No. 6, on verdict of guilty.</p> <p>Opinion by Beeber, J.</p> <p>Indictment for practicing medicine and surgery unlawfully. Before Walling, P. J.</p> <p>It appears from the record that defendant, a resident of Greenfield township, Erie county, Penna., was indicted in May, 1897, for practicing medicine and surgery in Erie county without having complied with the provisions of the act of May 18,1893, and without having first exhibited to the prothonotary of the court of common pleas of Erie county a license duly granted to him as provided by law. The defendant did not deny having practiced medicine and surgery without a license and without having complied with the act in question, but contended at the trial that the act was unconstitutional and void. Defendant moved to quash the indictment upon the ground that it charged him with no indictable offense, which motion was overruled.</p> <p>At the trial defendant submitted the following point:</p> <p>[2. That the act of assembly under which conviction is asked, discriminates between persons engaged in the same profession or occupation, and that defendant therefore should not be convicted. Answer: For the present you may render a verdict of guilty in the manner and form as he stands indicted, in each case, and for the present, the points submitted by the defendant are answered in the negative.] [3]</p> <p>The court charged the jury as follows:</p> <p>[Gentlemen of the jury: The defendant, Robert Lee Finn, is indicted in two cases under different phrases of the Act of Assembly of May 18, 1893, P. L. 94, for the alleged unlawful practice of medicine.</p> <p>The commonwealth and the defendant have agreed upon all of the facts. The questions raised are purely legal questions of facts submitted in evidence. I instruct you to render a verdict of guilty in manner and form as the defendant stands indicted, in each case.</p> <p>I will, however, on motion for a new trial, or in arrest of judgment, consider all these legal questions that are here raised, and pass upon them when I have more time than I have now. For the present you may render a verdict of guilty in the manner and form as he stands indicted, in each case, and for the present the points submitted by the defendant are answered in the negative.] [4]</p> <p>The court directed a verdict of guilty. Defendant moved in arrest of judgment, which motion was overruled. Defendant appealed.</p> <p>Errors assigned were (1) overruling defendant’s motion to quash indictment. (2) In overruling defendant’s motion in arrest of judgment. (3) In answer to defendant’s second point, reciting point and answer. (4) To the charge of the court, reciting same.</p>

<p>Appeal, No. 84, Oct. T., 1899, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1897, No. 572, on verdict for defendant.</p> <p>Opinion by Beaver, J.</p> <p>Trespass and statement in trover to recover the value of a piano taken by defendant from plaintiff. Damages were laid at$700. Defendant pleaded “not guilty.” Before Willson, J.</p> <p>It appears from the evidence that defendant company were dealers in pianos and made the following contract with plaintiff:</p> <p>“N. Stetson & Co. Lease No. 79.</p> <p>“Notice. — No salesman, dealer or agent is permitted to make any verbal contract or promise that will in any way conflict with or qualify the terms, or written or printed conditions of this lease, or to give, or promise to give, any article, accommodation or service, not specified in this lease, and N. Stetson & Co. will not be responsible for any agreements or promises of any nature in connection with this transaction, that are not fully written on the face of this lease.</p> <p>“ This agreement, made this 27th day of January, A. d. 1894, between N. Stetson & Co., a corporation under the laws of the state of New Jersey, party of the first part, and John E. Potter, of 6509, Ellwood avenue, Philadelphia, party of the second part,</p> <p>“ Witnesseth, That the said party of the first part hath, and by these presents doth, let unto the party of the second part a Steinway & Sons’ upright, No. 78,072, for the term of sixteen months and.....days from date, at the rental of $700, $200 to'be paid through advertisements, $30.00 upon the first.day of February next, and $30.00 on the first day of each month thereafter during the term, in advance.</p> <p>“ The party of the second part agrees that said instrument shall be placed in premises situate 6509 Ellwood avenue, and not to be removed therefrom without the written consent of the party of the first part, except in case of removal necessitated by danger from fire: and at the expiration or sooner determination of this lease to deliver up the said instrument to the said party of the first part, in good order, reasonable wear and tear excepted.</p> <p>“ The party of the second part agrees to cause the said instrument to be insured against loss by fire in a responsible insurance company, for the benefit of the party of the first part, during the said term.</p> <p>“ If the party of the second part promptly and fully performs all of the covenants on his part to be kept under this agreement, and desires to purchase the instrument, the party of the first part agrees, upon the payment to them of the sum of 1-100 dollars within thirty days after the expiration of the term, to deliver to the party of the second part a bill of sale of said instrument.</p> <p>“ If default is made by the party of the second part in keeping any of the covenants herein on his part to be performed, then the said bailment shall forthwith cease and determine, and it shall be lawful for the party of the first part to enter upon the premises where the instrument is kept and repossess themselves of the same as though it had never been rented. And at their option it shall be lawful for them to file this lease or copy of the same in any court, together with an affidavit as to default, and to enter in such court such amicable action as may in their, judgment be best adapted for the recovery of the said instrument, without security or bond, and any attorney is hereby .authorized to sign said amicable action for the party of the second part, and also to appear and confess judgment against said party in said action; and the clerk of said court is hereby requested by the party of the second part to enter said action .and confession of judgment and issue such writs as are necessary to enable the party of the first part to obtain the said instrument by process of law, the said party of the second part hereby releasing and waiving to the officers of the law and all parties concerned all errors and all rights of appeal and stay of execution.</p> <p>If such default does occur, and the party of the first part do not forthwith exercise their rights as above, such extension or indulgence shall not be considered in fact or in law as a waiver of any of such rights.</p> <p>“ This agreement is to be binding upon the heirs, executors, administrators, successors and assigns of all the parties hereto.</p> <p>“ Witness our hands and seals the day and year aforesaid:</p> <p>“ Witnesses: N. Stetson & Co. [l. s.]</p> <p>“A. Yon Bermuth.</p> <p>“ John E. Potter, [l. s.]</p> <p>“ Clarence Shank.”</p> <p>There was evidence tending to show that upon the execution of this agreement the piano was delivered to plaintiff, advertising was furnished and instalments paid from time to time amounting to $452.34, leaving a balance of $263; that the accounts of this transaction were kept in an instalment book and not in the hiring book. Defendant’s manager admitted on the witness stand that the usual price for hiring such a piano would not be over $15.00 a month, while the instalments Mr. Potter had agreed to pay were $30.00 a month. .Cessation having been made in the instalments, defendant went to plaintiff’s house and took the piano away in July, 1896, and subsequently, on January 5, 1897, plaintiff tendered to defendant $309, alleged to be an amount in excess of the balance due defendant with interest, and demanded a return of the piano, which was refused.</p> <p>At the trial the plaintiff made the following offer of proof, which was overruled:</p> <p>[I propose to show by this witness, to be followed by other circumstances and witnesses, that the actual transaction between the parties on the day of the date of the lease in question, the 27th day of January, 1894, was a sale by the Stetson Company of the piano described in the lease to Mr. Potter, and that while in form the paper purports to be a hiring, that to that extent it does not express the truth of the relation between the parties, the truth being that the transaction was ah actual sale and was placed in this form for the purpose of securing a lien to the vendors to enable them to secure payment for their property in the event of the purchaser’s failing to comply with the terms of sale.</p> <p>Objected to, first, because this witness has testified that he did not make this contract with Mr. Potter; that it was made by another gentleman, Mr. Woodford or Mr. Schenck; that the witness had no personal intercourse with Mr. Potter as far as the actual making of the contract was concerned. Secondly, the contract speaks for itself as it occurred between the parties. Objection sustained. Exception for plaintiff.] [1]</p> <p>The court directed a verdict in favor of defendant. Plaintiff appealed.</p> <p>Errors assigned were (1) ruling on evidence, reciting same. (2) In directing a verdict for defendant.</p>

<p>Breach of executory contract — Measure of damages — Test of market price.</p> <p>In the case of an executory contract for the sale of goods not specified, the rule undoubtedly is that the measure of damages for a refusal to receive the goods is the difference between the price agreed upon and the market value on the day appointed for delivery.</p> <p>The most equitable method available must be resorted to for ascertaining the price of the goods and the vendor may resell if the sale be bona fide and proper and recover the difference between the price obtained and the contract price; reasonable and intelligent judgment must be exercised in ascertaining the market price.</p> <p>It is not correct, however, to laydown, as a hard and fast rule, that “ the proper way to determine the market price of the yarn is to have it sold at public sale and what it realizes, after proper advertising and notice at public sale, is the market price.”</p>

<p>Practice, Superior Court — Defective assignment — Appeal—Rules of court.</p> <p>An omnibus assignment of error containing twelve distinct extracts from the general charge will be disregarded as in violation of Rule 15.</p> <p>Public officers — Official act of supervisors — Repair of roads.</p> <p>While the law requires that any action of road supervisors requiring consultation and deliberation must be had at a regular meeting duly called for the purpose, it has always been held that the act of supervisors in making ordinary repairs to the road is not such an act as requires deliberation and consultation on the part of all of the supervisors.</p> <p>Road law — Repairs—Action of supervisors— Presumption of regularity.</p> <p>Plaintiff is entitled to recover for repairs to a road ordered upon default of the original contractor when employed to do the work by two road •commissioners, such authorization having been subsequently ratified by the third commissioner. The authority of the commissioners to order such repairs exists under the Act of May 18, 1871, P. L. 899, as amended by the Act of April 10, 1873, P. L. 761.</p> <p>The doctrine of omnia prtesumuntur rite esse acta applies, the township will not be permitted to say that their legally constituted officers omitted to comply with the legal requirement to give notice to the first contractor.</p> <p>The plaintiff had the right to presume that all preliminary acts necessary to enable the commissioners to enter into the contract had been performed by them. While he was bound to know the laws he was not bound to know the facts.</p>

Appeal, No. 76, Oct. T., 1899, by defendant, from decree of C. P. Huntingdon Co., Sept. T., 1898, No. 83, making perpetual preliminary injunction. Opinion by Beaver, J. Bill for injunction.

Appeal, No. 148, Oct. T., 1899, by plaintiff, from judgment of C. P. Lebanon Co., Jan. T., 1897, No. 400, on verdict for defendant. Opinion by Beaver, J. Ejectment. Before Simontoít, P. J., of the 12th judicial •district, specially presiding. It appears from the record that this was an action of ejectment brought against defendant to recover possession of real estate, taken and held by the defendant, against the owner without authority of law.