Volume 12 — Pennsylvania Superior Court Reports

<p>Appeal, No. 24, April T., 1900, by defendant, from judgment of O. & T. Allegheny Co., Sept. Sess., 1898, No. 5, on verdict of guilty.</p> <p>Indictment for felonious rape under the Act of May 19,1887, P. L. 128. Before Frazer, J.</p> <p>The facts appear from the opinion of the court below.</p> <p>The indictment in this case charges the defendant with felonious rape, and is drawn under the act of May 19, 1887. The female upon whom the offense is alleged to have been committed is Irene Hare, who at the time, July 15, 1898, was ten years and two months old. The indictment contains but one count, that charging felonious rape. The jury acquitted the defendant of the felony, and convicted him of an attempt to commit the same.</p> <p>At the trial the girl, after being sworn, told in a straightforward and evidently truthful manner of the occurrences of the evening upon which the offense is alleged to have been committed; she told of getting into defendant’s buggy with him; of defendant driving out the plank road, first stopping at a saloon and purchasing two bottles of pop, which they after-wards drank; then stopping for a few moments in front of a friend’s house; then driving into the country and stopping at a picnic grounds, where both got out of the buggy, and entered a small house, erected on the picnic grounds; that while in the house defendant laid her upon a bench, pulled up her clothes, opened her drawers and put his naked private parts against hers; that she cried and asked defendant to take her home because it was “ getting dark.” The next day she informed her mother of the defendant’s acts, and the mother testified that the child’s private parts showed evidence of abuse. The defendant went upon the stand in his own defense, admitted taking the child for a drive, but denied taking any liberties with her whatever, either while in the buggy or at the picnic igrounds ; .according to his testimony he remained in the buggy while the girl got out and went into the house at the picnic ■grounds.</p> <p>In our charge, after stating what' was necessary to constitute xape, we told the jury that if they were not satisfied beyond a reasonable doubt that the offense had been completed, there should be no conviction of rape, but that if they were satisfied from all the evidence that the defendant had attempted to' have intercourse with the girl, as detailed by her, without completing the offense, he should be acquitted of the felony and found guilty of an attempt, under section 50 of the Act of March 81, 1860, P. L. 427.</p> <p>The verdict received and recorded was : “Not guilty of the felony charged, but guilty of an attempt to commit felonious rape.” The defendant’s reasons for an arrest of judgment and new trial are (1) that the verdict recorded is not the verdict rendered by the jury, and (2) there can be no conviction of an attempt to commit rape under the indictment in this case.</p> <p>When the jury returned to court with their verdict the indictment contained the indorsement, “ Guilty of assault and battery, with intent of committing felonious rape. A. Kline, foreman.” As nothing had been said throughout the trial or in our charge in regard to assault and battery being committed upon the girl, we directed the clerk to receive and record the verdict as “ not guilty of the felony charged, but guilty of an attempt to commit felonious rape.” This was done, and we are informed that the verdict was subsequently copied into the minute book as written upon the indictment by the foreman of the jury. This error was, however, corrected the same day, and the records now show the verdict as taken by the court. Under our instructions the jury could render one of three verdicts, viz: Guilty as indicted, guilty of an attempt to commit rape under the act of March 31, 1860, or acquittal. It was undoubtedly their intention to find the defendant guilty of an attempt to commit the offense charged in the indictment, and it was our duty to see that the verdict conformed to that intention, which we did. The form prepared in the jury room and indorsed on the indictment has no significance whatever, and is no part of the record: Com. v. Breyessee, 160 Pa. 457.</p> <p>As to the second reason for an arrest of judgment, viz: that there can be no conviction under the 50th section of the act of March 31, 1860, for an attempt to commit rape, we think the reason is not well founded. It seems to us that the section is intended to meet cases of this kind. According to the testimony of the girl there is some doubt as to whether the offense of rape was actually completed, and the doctor who examined the girl says he saw no evidence of a penetration; if it was not, there was sufficient testimony, if believed, to justify a conviction of an attempt to commit the offense. The jury properly gave the defendant the benefit of the doubt, and found him guilty of the lesser offense, as we instructed them they could do if the evidence so warranted. At the time we were of the opinion that the words “ charged with any felony or misdemeanor,” as used in section 50, act of March 31,1860, above referred to, included the offense charged in this case, and have not been 'referred to any law or decision to the contrary. If we are correct in the conclusion that the section above referred to includes rape, the defendant has not been deprived of any right or privilege given to him by any law, and has no reason to complain.</p> <p>We think the verdict is warranted by both the law and the evidence, and should not be disturbed. [The rule in arrest of judgment is discharged, and a new trial refused.] [1]</p> <p>Defendant appealed.</p> <p>Errors assigned were (1) in making the following order: “ The rule in arrest of judgment is discharged and a new trial refused.” (2) In entering the following judgment or sentence upon the defendant: “ The sentence of this court is that you pay a fine of six and one fourth cents to the commonwealth, pay the costs of prosecution, and undergo an imprisonment in the Allegheny county work house for and during the period of one year.” (3) In discharging the defendant’s motion in arrest of judgment, which motion and reasons therefor are as follows: “ And now, to wit, April 29,1899, the above named defendant, W. E. George, by his attorney, Ulysses G. Yogan, respectfully moves your honorable court for an arrest of judgment in the above entitled suit, and assigns therefor the following reasons: That under the indictment in this suit which is an indictment for ‘ felonious rape ’ framed under the act of May 19, 1887, there can be no legal conviction of ‘ assault and battéry with intent to rape.’” Additional reasons : “1. That there can be no judgment entered in this suit except upon the verdict returned by the jury as written on the indictment and signed by the foreman, and which was as follows : ‘ Guilty of assault and battery with intent of committing felonious rape.’ 2. That neither the court nor any other authority has the right to alter or change the verdict as above quoted so as to read: ‘ Guilty of attempt to commit felonious rape ’; wherefore no legal judgment can be entered in this suit, nor any sentence of punishment be imposed upon the defendant for the offense last above mentioned.”</p> <p>—The defendant was indicted under the act of May 19, 1887. The act of assembly relating to attempted rape is section 93 of the act of March 31, 1860.</p> <p>These two acts embrace all the statutory enactments upon the subject, one relating to rape, and the other relating to assault and battery with intent to rape. It is conceded that counts for the two offenses may be joined, and a conviction had upon one or the other, but nowhere has counsel been able to find in a reported case, since the passage of these two acts, where on a single count for felonious rape there has been a conviction for assault and battery with intent to rape. In the case of Com. v. Harper, 14 W. N. C. 10 it was held there could be no such conviction.</p> <p>At common law there were the two offenses of rape and assault and battery with intent to rape, and the legislature having adopted statutes pertaining to both offenses, the common law on the subject has all been superseded and naught of it remains. The legislature having defined the two offenses of “ felonious rape ” and “ assault and battery with intent to commit rape ” and provided for their punishment this would seem to embrace all tlie law there is upon the subject. Neither at common law nor b}*- statute is there such a crime as “ attempt to commit felonious rape,” and section 50 of the act of 1866 certainly makes no new offense.</p> <p>Both by common law and by our'statute, “assault and battery ” is a necessary incident of the incompleted or attempted rape, and the assault and battery must be found to exist, and it is a necessary part of the verdict of the jury. If the assault and battery is not found by the jury there is no crime for which sentence of punishment can be passed under section 93 of the Act of March 30, 1860, P. L. 382. The defendant not having been found guilty of this or any other definite offense, judgment should have been arrested.</p> <p>The verdict in open court, taken by the proper officer, is the only competent evidence of what the jury found. The paper delivered to the judge is never filed, nor is it a part of the record: Dornick v. Reichenback, 10 S. & R. 84; Rees v. Stillé, 38 Pa. 138. The jury have control of their verdict down until it is recorded in court, and before being so rendered and recorded, any member thereof can change his finding. The verdict is without force or validity until received and recorded: 2 Thompson on Trials, sec. 2635. The form of the verdict as recorded must govern, in case of any discrepancy between it and the verdict which the jury actually returned into court, the presumption being that the jury assented to the verdict as recorded: 2 Thompson on Trials, sec. 2635; Leftwich v. Day, 32 Minn. 512.</p> <p>The crime committed by appellant is an offense at common law: 4 Blackstone, 212; 1 Hale, P. C. 631. It requires only the reading of the act under which appellant was indicted, and the one providing for the conviction of attempts, in all felonies and misdemeanors, to see that the conviction and judgment in this case were correct.</p> <p>The defendant was indicted for carnally knowing a female child finder twelve years of age, and on trial the jury found him not guilty of the felony charged, but guilty of an attempt to commit such felony.</p> <p>The assent of the girl being void as to the principal crime, it is equally so as to the attempt: Hays v. People, 1 Hill (N. Y.), 351.</p> <p>The case of Com. v. Harper, 14 W. N. C. 10, is not authority in this state, and the following cases show that on an indictment charging a felony the defendant may be convicted of a constituent misdemeanor : Com. v. Lewis, 140 Pa. 561; Hunter v. Com., 79 Pa. 503; Com. v. Parker, 146 Pa. 343.</p>

Appeal, No. 113, Oct. T., 1899, by plaintiff, from order of C. P. No. 1, Phila. Co., March T., 1898, No. 1022, sustaining demurrer to bill in equity. Demurrer to bill in equity. Held: Pusey v. Pusey, 1 Vern. 273; heirlooms, Macclesfield v. Davis, 3 Yes. & B. 16,18; a finely carved •cherry stone, Pearne v. Lisle, 1 Ambh 77 ; a silver tobacco box, Fells v. Read, 3 Yes.

<p>Appeal, No. 65, Oct. T., 1899, by defendant, from order of C. P. No. 1, Phila. Co., June T., 1898, No. 620, refusing to open judgment and let defendant into a defense.</p> <p>Rule to open judgment and let defendant into a defense.</p> <p>It appears from the record that judgment was entered for want of an affidavit of defense in a suit brought to recover the price of certain goods sold. The defendant obtained a rule to show cause why the judgment should not be opened and defendant let into a defense, filing at the same time his affidavit of defense, whereupon depositions-were taken. The affidavit of defense was as follows:</p> <p>S. Weinberger, the above named defendant, being duly sworn .according to law, deposes and says that he has a just and true defense to the whole of the plaintiff’s claim, of the following nature and character, to wit: It is true that the plaintiff .sold to this deponent the cloth set forth in the statement of claim filed herein, amounting to 1360.53. Deponent is a manufacturer of clothing, and bought the same from the plaintiff to make into clothing. Deponent avers that the cloth sold and delivered by the plaintiff to deponent on February 26, 1896, amounting to 205 5-8 yards, and for which plaintiff charged, deponent $179.93, and that the cloth sold and delivered by the plaintiff to deponent on March 19, 1896, amounting to 242 1-8 yards, and for which plaintiff charged deponent $129.37, was rotten, worthless, and unmarketable, and of no value whatever; that deponent manufactured said cloth into clothing, and sold the same to various customers before he knew the condition of said cloth; that immediately upon the receipt of the goods so manufactured, deponent’s customers returned the goods into which the cloth had been made, for the reason that the material was rotten and worthless. Deponent avers that he laid out and expended over $250 for labor and materials furnished in making said cloth into clothing, all of which is a total loss to deponent, for the reason that the goods so as aforesaid returned to him are worthless and unmarketable and cannot be sold. Deponent avers that the plaintiff represented and sold the said cloth to him as a first-class article.</p> <p>All of which facts deponent expects to be able to prove on the trial of this cause.</p> <p>The court below refused to open the judgment for $264.44. Defendant appealed.</p> <p>Error assigned was in entering judgment notwithstanding affidavit of defense and testimony taken.</p> <p>Both the affidavit of defense and the depositions show that the cloth sold by Weed & Company to the buyer was rotten, shaded imperfect, and wholly unfit for the purpose for which it was bought. This is not contradicted by any evidence: McPherson v. Bank, 96 Pa. 135; Shaw v. Fleming, 11 Cent. 620; Holt v. Pie, 120 Pa. 425, 440.</p> <p>The mere averment of a warranty without more is bad: Kaufman v. Cooper Iron Co., 105 Pa. 537, cited with approval in Gould v. Gage, 118 Pa. 559.</p> <p>The law is that mere representation does not constitute a warranty. If parties mean to warrant, it is very easy for them to say so: Wetherill v. Neilson, 20 Pa. 448.</p>

<p>Appeal, No. 78, Oct. T., 1899, by defendants, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1893, No. 109-|-, M. L. D., on verdict for plaintiff.</p> <p>Sci. fa. sur mechanic’s lien. Before Beitler, J.</p> <p>It appears from the record that apportioned liens for $94.68 were filed December 12, 1893, against two adjoining two-story buildings and lots of ground, etc. Sci. fa. was issued October 5, 1896. By agreement the two cases were tried as one. At the trial the court overruled objection of defendants’ counsel to the following question of plaintiff’s counsel to the witness, Howard Wolfingdon, on the stand:</p> <p>[“ Q. I see that that book contains a charge against Helen S. Heath, 88th and Erwig avenue. Is that charge against this lady here ?</p> <p>Objected to. Objection overruled. Exception to defendants.</p> <p>“ A. It was her that got the goods.”] [1]</p> <p>The court admitted in evidence the plaintiff’s book containing the account against Helen S. Heath, the bill, of exceptions being as follows:</p> <p>Witness, Howard Wolfingdon, examined as to book.</p> <p>[Mr. Wilkinson now offers the book in evidence.</p> <p>Witness cross-examined and re-examined as to the book.</p> <p>Mr. Sellers objects, in the first place, because it is not a book of original entry, and, in the second place, because the account which, appears here is not charged to the defendants, but to another person.</p> <p>The Court: Are the blotters placed at the disposal of Mr. Sellers for cross-examination ?</p> <p>Mr. Wilkinson: Yes, sir.</p> <p>Witness re-examined by Mr. Wilkinson.</p> <p>Mr. Wilkinson now renews his offer of the book. Book admitted. Exception to defendants.</p> <p>The account referred to in this assignment is as follows: (Account printed hi full in appendix, p. 24.)] [2]</p> <p>Plaintiff’s counsel was permitted to submit evidence under the following offer against objection of defendants’ counsel.</p> <p>[Mr. Wilkinson: I propose to prove that the witness was offered a settlement of this claim; that subsequent to the delivery of the goods Mrs. Heath tried to mortgage the property and found she could not raise enough on mortgage to pay all the liens and claims of the mechanics, and that in order to settle the matter she offered him all the money she could appropriate towards the payment of his claim, which was about $10.00 short of the claim; that never until this affidavit of defense was filed was there any defense made to the justness of the claim.] [B]</p> <p>Defendants submitted, inter alia, the following points:</p> <p>[6. That the entries in the books of the claimant which have been offered in evidence do not show that the materials specified in his claim were sold and delivered on the credit of the defendants’ building. Answer: I affirm that point, because the book is a mere entry of goods delivered. It is supplemented, however, by plaintiff’s testimony that these goods were delivered after and in pursuance of the express contract with the defendants..] [5]</p> <p>[7. That brushes, paint brushes, whitewash brushes, balls of twine, tin bucket, nail punch, bucket rim and poultry wire are not proper subjects of a mechanic’s lien, and the claimant cannot recover in this suit for the price of any such articles. Answer: I affirm that, if you find from the evidence that these several articles were not materials used in or about the erection or construction of the buildings. If they were, the plaintiff has a claim for them.] [6]</p> <p>[8. That under all the evidence in this cause the verdict of the jury must be for the defendants. Answer: The last point I decline.] [7]</p> <p>The court charged the jurjr as follows:</p> <p>Gentlemen of the Jury: This is a lien, a mechanic’s lien, filed against two properties and subsequently apportioned, with both suits tried here as one.</p> <p>The law gives a claim to a man who furnishes material or who does work upon the credit of a building against that building for that which he has furnished or that which he has done.</p> <p>[The plaintiff’s contention is here that the defendant personally contracted with him for the delivery of such articles as she wanted to be used in the construction of these two houses, and that he subsequently gave to her, or gave to her son, the articles which are embraced in the lien. If that is so, he is entitled to claim against the property, and having filed his claim, he is entitled to a verdict here for the total amount of his claim, with interest from the various deliveries.] [4]</p> <p>The jury rendered the folio wing verdict: “ Verdict for plaintiff, one lot, $62.72, the other, $62.72.” On this verdict the court entered judgment. Defendants appealed.</p> <p>Errors assigned were (1, 2) in ruling on evidence. (3) In overruling objection of defendants’ counsel to the offer of plaintiff’s counsel, reciting offer only. (4) To portion of the judge’s charge, reciting same. (5-7) To answers of defendants’ points, reciting same. (8) In entering judgment on the verdict.</p> <p>The account was in form a ledger account. The testimony of the plaintiff’s bookkeeper showed that he also kept a blotter, in which orders were entered in the first instance and afterwards copied into the ledger. This blotter was in court at the time of the trial, but the entries were not offered. It is submitted that the blotter was the plaintiff’s book of original entry and the court was therefore it error in admitting the ledger account in evidence: Breinig v Meitzler, 23 Pa.' 156.</p> <p>But the account was also inadmissible because it was chargee to neither of the defendants. Their names were George B. Heath and Ellen S. Heath. The charge was to Helen S. Heath. There was no evidence to connect the account with either of the defendants. The only attempt to supplement the book was by asking the witness Wolfingdon the questions: “ Q. Did you see Mrs. Ellen S. Heath at Mr. Coverdill’s store? A. I did. Q. I see that that book contains a charge against Helen S. Heath of 88th and Erwig avenue. Is that charge against this lady here?” Objected to. Objection overruled. Exception to defendants. “ A. It was her that got the goods.”</p> <p>It will not be pretended that a charge against Helen S. Heath can impose any liability upon George B. Heath. Nor can such charge be used against Ellen S. Heath. The names Helen and Ellen are essentially different, are spelt differently and are not even idem sonans. Where similar cases have arisen, it has always been held that the names could not be recognized as ■identical. Thus, Henry and Harry, Garrison v. People, 21 111. 585; Wilhelm and William, Becker v. Ins. Co., 68 111. 412; May and Mary, Kennedy v. Merriam, 70 111. 228; Catharine and Katharine, Swails v. State, 7 Blackf. (Ind.) 824; John and Jonathan, Moore v. Davis, 58 Mich. 25; David and Daniel, Sweazy v. Nettles, 2 Mo. 6; Williston and Willison, Bull v. Franklin, 2 Spears (S. C.), 46.</p> <p>The offer objected to in the third assignment was to show a proposition by the defendant Ellen S. Heath to compromise the bill of the plaintiff, for a lesser sum, in order to release her property from this claim. This surely was not an admission of the correctness of his account or of his right to a lien. The charge of the court was very brief, and, it is submitted, very inadequate. The court should have instructed the jury that the offer objected to was not the subject of mechanic’s lien. It is submitted that a separate verdict should have been rendered but only one verdict was actually rendered and it does not appear under which of the two writs. It is true it is divided, but it is neither clear nor intelligible. Judgment therefore having been entered on an irregular verdict, improperly admitted evidence and proofs that are almost entirely lacking in the essential facts required to establish a claim under the mechanics’ hen law of this state, should be reversed.</p>

Appeal, No. 81, Oct. T., 1899, by-defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1897, No. 670, for want of a sufficient affidavit of defense. Rule for judgment for want of a sufficient affidavit of defense. It appears from the record that Patrick O’Donnell began a suit against Thomas Flanigan on March 23, 1897, for damages for personal injuries and obtained a verdict for $324.

Appeal, No. 90, Oet. T., 1899, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1898, No. 121, for want of a sufficient affidavit of defense. Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc. It appears from the record that this was an action of assumpsit to recover for funeral benefit.

Appeal, No. 54, Oct. T., 1899, by Matilda B. Dorscheimer, from decree of O. C. Phila. Held: where the widow in her claim to the exemption specifies the particular property which she elects to retain, she must be restricted to the designation which she has thus made. As before stated, the widow in the present case claimed to retain $300 in cash, when but the sum of $25.00 was included in the inventory and appraisement.

Appeal, No. 20, Oct. T., 1899, by W. Harris Seltzer and Susan S. Seltzer, from judgment of C. P. No. 3, Phila. Co., June T., 1898, No. 668, on verdict for plaintiff. Assumpsit. Before Finletter, P. J. It appears from the evidence that plaintiff brought an action against the defendants as alleged copartners, trading as J. E. Werner & Son, and also as Werner & Seltzer.

Appeal, No. 153, Oct. T., 1899, by plaintiff, from judgment of O. P. No. 3, Pbila. Co., Sept. T., 1895, No. 1783, M. L. D., on case stated. Before Rice, P. J., Claim.for $300 for constructing Mill Creek sewer. Before ■the court in banc. It appears from the case stated that the city of Philadelphia has filed a municipal claim for $300 as benefits occasioned by the construction of the Mill Creek sewer to a certain large tract of land therein described.

Appeal, No. 120, Oct. T., 1899, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1898, No. 473, on verdict for plaintiff. Assumpsit to recover $343.75 with interest, being the amount due by defendant to plaintiff for work and labor done in dyeing certain hosiery for defendant. There was evidence tending to show that plaintiff received the goods in question on storage and kept them until William J. Bishop, defendant, sent for them.

Appeals, Nos. 21 and 67, Oct. T., 1899, by Charles H. Elias and Alice Elias, from judgment of C. P. No. 1, Phila. Co., June T., 1897, No. 500, dismissing exceptions to auditor’s report and confirming said report. Exceptions to auditor’s report. Before the court in banc.

<p> Appeal from separate proceedings invalid,. </p> <p>Two separate and independent proceedings may not be joined in one-appeal.</p> <p> Appeal six months after judgment, too late. </p> <p>The regularity of proceedings resulting in a judgment cannot be inquired into on appeal taken more than six months after the rendition of the judgment.</p> <p>Landlord and tenant — Lease—Fraud and duress in obtaining same.</p> <p>Where a party is about to be turned out under a writ of habere facias possessionem a lease signed under an alternative of so doing or a refusal to suspend the execution cannot be said to have been procured by fraud or duress.</p>

<p>Appeal, No. 194, Oct. T., 1898, by-defendant, from judgment of C. P. Berks Co., May T., 1897,.. No. 69, on verdict for plaintiff.</p> <p>Appeal from judgment of justice. Before Endlich, J.</p> <p>It appears from the evidence that a transcript was filed in the prothonotary’s office of an appeal from the judgment of the alderman in favor of the plaintiff for $117.12; that on notice from defendant the plaintiff filed a paper purporting to be a bill of particulars. At the trial defendant moved for non-suit for want of a bill of particulars. The court overruled the motion, gave defendant an exception, and directed the trial to proceed.</p> <p>Verdict and judgment for plaintiff for $154.32. Defendant appealed.</p> <p>Errors assigned were (1) in refusing to enter a nonsuit on appellant’s motion, for want of a bill of particulars, according to rule of court. (2) In admitting testimony to prove items in the narr. not containing dates, and in admitting any testimony to prove the narr.</p>

Appeal, No. 79, Oct. T., 1899, by defendant, from judgment of O. P. No. 4, Pliila. Co., March T., 1897, No. 688, for want of a sufficient affidavit of defense. Rule for judgment for want of a sufficient affidavit of defense. The facts sufficiently appear in the opinion of the court. Judgment for plaintiffs for $257.06. Defendant appealed. Rrror assigned was in entering judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 51, Oct. T., 1899, by John D. Skiles, from decree of O. C. Lancaster Co., dismissing exceptions to and confirming report of auditor nrthe distribution of the Estate of Absalom Hartman, deceased.</p> <p>Exceptions to auditor’s report. Before Brubaker, J.</p> <p>It appears from the record and the evidence that decedent died intestate leaving a widow and seven children. His real estate was sold under the Act of June 12, 1893, P. L. 461, and purchased by his widow for $5,197.45, including her dower charged on the same, $1,732.48. The total personal fund amounted to $8,839.34. The account of the administrators confirmed May 22, 1897, showed a balance in favor of the estate amounting to $8,739.04, and the court appointed R. Conyngham auditor to distribute the same. Against the share of James K. Hartman, one of the seven sons and heirs, there were presented several judgments of John D. Skiles, all entered after the death of the decedent, which with interest and costs amounted to $725.32. The administrators presented notes of the decedent against James K. Hartman, amounting to $1,201.97, which they claimed as a set-off to James K. Hartman’s distributive share in the estate arising out of both the real and personal funds. The auditor awarded to Skiles, the owner and holder of the judgments, one seventh of the net proceeds of the realty, amounting to $494.99, and also found that the judgments, being liens on his lands, were liens on his interest in the dower charge during the widow’s life, and that one seventh of the same, $230.32, should be a lien upon the interest of James K. Hartman in the dower charged during the lifetime of the widow. Upon exceptions filed the court held that the heir’s share of the real estate was subject to his indebtedness to the ancestor’s estate, and that the judgment creditors of the heir could take nothing in the distribution. It therefore overruled the auditor and sustained exceptions to his report, filing the following opinion:</p> <p>The contention in this case arises under the first four exceptions to the report of the auditor in making distribution of the share of James K. Hartman, a son of deceased, in the fund realized by proceedings in this court under the act of June 12, 1893, relating to sales of the real estate of decedents whenever parties in interest desire the same to be converted into money for distribution.</p> <p>The administrator of this estate contended before the auditor that, as the son’s share in the funds of both the personalty and realty was less than his indebtedness to his father’s estate, the indebtedness should have been deducted from his share in both funds. The learned auditor, however, held that land did not descend from father to child, charged with debts due to the parent who dies intestate, and awarded it to the payment of judgments against his son, acquired subsequently to the death of the father. Has the learned auditor erred ?</p> <p>It is not disputed, as far as the personalty is concerned, the administrator had the right to set off the indebtedness due from the son’s distributive share. The principle is settled by the authorities cited and referred to in the respective briefs of the learned counsel for the parties interested in the distribution. The rule, as it is given in a numerous class of decisions, is that a debt of a legatee or distributee may be set off against the claim for the legacy or share in a court of law, or retained for the fund to be administered in a court of equity. The rule seems to be clearly stated. It applies, in our opinion, to the distribution of both funds in this case. We take it to mean that in order to apply the principle to realty as we understand it, the fund must have come into a court of equity for purposes of conversion into money and distribution among the heirs or to those legally entitled to. it. We refer to the doctrine as it is enunciated in the following cases:</p> <p>In Manifold’s Estate, 5 W. & S. 340, which was an orphans’ court sale for payment of debts, it was held that as the fund was in the hands of the administrator it enabled him to retain the share for the debt of the sum as against the judgment creditors of the latter.</p> <p>In Wallace v. ICeyser, 51 Pa. 493, Agnew, J., says: “Abstractly it is right that an heir to real estate who owed a debt to his ancestor should take his share less the debt, but the right is imperfect and cannot be enforced until the party or the fund comes into the power of the law.” In that case, however, the proceeds of sale were realized from a private sale of the land by the heirs, and therefore the court held that it was not a fund in court in course of distribution, and for that reason the rule did not apply. While the proceedings were by bill in equity the court had no jurisdiction in the matter and therefore could not decree the debt of the heir to the intestate to be taken from his share of the proceeds of the private sale out of a fund not before it.</p> <p>In Dickinson’s Estate, 148 Pa. 142, which were proceedings in partition, the court’s decision was that the heir’s share was subject to his indebtedness to the ancestor’s estate, the judgment creditors of the heir taking nothing in the distribution. The court entertained jurisdiction over the question of disbursement, with power to decide all questions necessary to a proper distribution. In Manifold’s Estate, supra, and Springer’s App., 29 Pa. 208, the courts below held that all that is necessary is for the orphans’ -court to have control of the fund for the purpose of distribution, and the parties interested before it, and it will ascertain and enforce such equities as are necessary to equalize, as far as it can, the shares of the respective heirs in the estate of deceased. And this doctrine is not controverted by the case of Wallace v. Keyser, 51 Pa. 493. They were not in the orphans’ court, and the court very properly held that the debts of the heir to the testator could not be taken out of the proceeds of the sale, before the payment of judgment creditors, for the reason that the proceeds of sale were not a fund in course of distribution; the contest was over the purchase money realized from a private sale by the heirs, and put into the hands of a third person for the use of the judgment creditors. If this is not entirely clear from the case itself, it is made so by what, the court says in Hughes’s Appeal, 57 Pa. 179.</p> <p>This case is affirmed in a per curiam opinion and comes so ' near to the case in hand that we are at a loss to see how to distinguish it from the latter. The only difference between the two cases is that the present proceedings were had under the act of 1893, instead of proceedings in partition in this court. The orphans’ court has undoubted equity jurisdiction in decedents’ estates, and has power, as was shown in Dickinson’s Estate, supra, to pass upon such equities of the heirs as are necessary in the distribution of the fund. The act of 1893 is but a substitute, in part, for the longer method of procedure by partition ; it is the short and inexpensive way of converting land into money for purposes of distribution, which, doubtless, was the main purpose of the- legislature. It will be observed that the statute not only directs the administrator or trustee to make a sale, but that it also provides that the.sale shall proceed thereafter in all respects in the manner now provided by existing laws in cases of the sale of real estate under proceedings in partition, and that it shall have the same effect as a sale in partition.</p> <p>We cannot therefore agree with the learned counsel for the judgment creditors of the heir, that the purpose of the late statute was intended merely for the convenience of the heirs. It is broader in its scope, and goes much farther in its effect. It was the manifest intention also of the legislature, as we interpret it, to give the orphans’ court complete jurisdiction and control over the fund for distribution. While it is clear that the conversion and sale of the land under the act of 1893 does not affect its character as real estate, it is analogous, however, in this respect to proceedings had in partition, for the proceeds in the latter also passes to the heirs in the first instance as realty (Wentz’s App., 126 Pa. 541); and yet under the latter proceedings it was held in Dickinson’s Estate, supra, that as the heir’s share was insufficient to discharge his indebtedness to the decedent’s estate, the judgment creditors were not entitled to participate in the fund. The heir in the present case brought himself within the jurisdiction of the orphans’ court, whether compelled to do so or not, and therefore the rights of his creditors áre dependent upon his rights, as was said in the last cited cases. As both the personal and real estate funds are in the hands of the administrator in this case, and in court for distribution, it would be an anomaly if tbe court could permit the administrator to deduct the son’s indebtedness to his father from his share in the personalty only, and not from his share in the realty.</p> <p>We do not see how we can distinguish this case from that of Dickinson’s Estate, supra, and therefore feel constrained to hold that the balance of the son’s indebtedness in this case should be paid out of the real estate fund in preference to his judgment creditors. These exceptions are therefore sustained.</p> <p>The exceptions filed in behalf of Calvin K. Hartman have no merit. The assignment to him of the share does not purport to convey real estate, as it has no words of inheritance, which is necessary to pass interest in land. These exceptions are dismissed.</p> <p>The report of the auditor is recommitted to him for the purpose of distributing the fund in question as herein indicated.</p> <p>A supplementary report was subsequently filed by the auditor in accordance with the above opinion, finding that James K. Hartman’s total share not being sufficient to pay his indebtedness to the estate, the said James K. Hartman will be excluded from the distribution and his share of the real fund will be divided among the other heirs.</p> <p>John D. Skiles appealed.</p> <p>Error assigned among others was (6) in holding that the balance of James K. Hartman’s indebtedness to Absalom Hartman’s estate should be paid out of the real estate fund, in preference to his judgment creditors.</p> <p>The question here to be decided is whether or not the administrator has the right to set off, so far as the realty is concerned, a debt due from a distributee ■against his share.</p> <p>It is here contended by appellant that- land does not descend to the heir charged with debts due to a parent who dies intest.ate: Rockafield’s Est., 4 Lane. Law Rev. 113 (which subsequently came into the Supreme Court on another point, Kauffman’s Appeal, 20 W. N. C. 364).</p> <p>In this position the learned court in that case was certainly ¡supported by the precedent authorities: Wallace v. Keyser, 51 Pa. 493; Wentz’s Appeal, 126 Pa. 541; Schmid’s Est., 14-Lanc. Law Rev. 329.</p> <p>relied on Dickinson’s Est., 148-Pa. 142.</p>

<p>Admission of irrelevant evidence — When reversible error.</p> <p>The appellate courts will not reverse for the admission of irrelevant-testimony unless it clearly appears that such evidence tended to draw the minds of the jurors from the point in issue, to excite prejudice or to mislead them.</p> <p>Rebuttal evidence — Discretion of trial judge — Reversible error.</p> <p>The admission of evidence not strictly in rebuttal is largely in the discretion of the court and is not reversible error except in extreme cases-when discretion has been abused and the party objecting has been injured.</p> <p>Statute of frauds — Original undertaking.</p> <p>Where a person enters into an undertaking to subserve his own purpose it is an original undertaking and does not fall within the statute of frauds, although it may have the incidental effect of discharging the liability of a third person.</p>

Appeal, No. 82, Oct. T., 1899, by Lizzie Graham et al., from decree of O. C. Phila. Co., Oct. T., 1897, No. 108, dismissing exceptions to adjudication of the «orphans’ court declaring an escheat. Exceptions to adjudication. Before the court in banc. At the audit, Ashman, J., filed the following adjudication: Amanda MeCully, who was sometimes known as Maud Hud■dell, died at Philadelphia, April 13, 1896, intestate, unmarried and without issue.

Appeal, No. 151, Oct. T., 1899, by defendant, from judgment of O. P. No. 4, Phila. Co., March T., 1899, No. 1272, for want of a sufficient affidavit of defense. Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc. The facts sufficiently appear in the opinion of the court. Judgment for plaintiff for want of a sufficient affidavit of defense for $1,354. Defendant appealed.

Appeal, No. 18, April T., 1900, by-defendant, from judgment of Q. S. Allegheny Co., Dec. Sess., 1898, No. 528, on verdict of guilty. Indictment for libel. Before Shafer, J. It appears from the record that defendant was indicted for alleged libelous articles published in two newspapers of which defendant was the half owner. The publication was admitted at the trial.

Appeal, No. 227, April T., 1899,. by defendants, from order of C. P. Erie Co., Nov. T., 1898, fi, fa. No. 61, to judgment No. 104, May T., 1890, refusing to stay writ of execution. Rule to show cause why execution should not be stayed. Before Lindsey, P. J., of the 37th judicial district, specially presiding. The facts sufficiently appear in the opinion of the court. The court below discharged the rule. Defendants appealed..

Appeal, No. 144, Oct. T., 1899, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1899, No. 617, for want of a sufficient affidavit of defense. Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc. The facts sufficiently appear in the opinion of the court. Judgment for plaintiff for $400. Defendant appealed. Error assigned was in not discharging rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 172, Oct. T., 1899, by plaintiff, from judgment of C. P. Chester Co., Aug. T., 1898, No. 45, in favor of defendant on demurrer.</p> <p>Demurrer to statement. ' Before Butler, J.</p> <p>It appears from the record that plaintiff’s statement alleged that defendant was the.general manager and.one of the1 directors of the West Chester Publishing Company; that knowing said company to be insolvent he purchased goods to the amount of $16.42 from plaintiff and by means of fraudulent concealment of the condition of said publishing company induced the consignment of said merchandise to said publishing company. To this statement defendant demurred. The court entered judgment for defendant on the demurrer. Plaintiff appealed.</p> <p>Error assigned was in sustaining defendant’s demurrer and directing judgment to be entered thereon.</p> <p>Defendant’s conduct in taking and using plaintiff’s property amounted to a promise to pay for it: Adams v. Steamboat Co., 3 Wharton,- 75.</p> <p>A purchase with a present intent not to pay is a rank fraud in morals and should be so pronounced in law: Bughman v. Bank, 159 Pa. 94.</p> <p>Insolvency and the knowledge of it at the time of the sale are evidence to go to the jury with other facts to show the intended fraud: Cooperage Co. v. Gaul, 170 Pa. 545; Harner v. Fisher, 58 Pa. 453; Hodman v. Thalheimer, 75 Pa. 232.</p> <p>It was the duty of Temple to have communicated the fact of the insolvency of the publishing company to the vendors (the plaintiff) and the omission of that duty amounts to a fraud: Croyle v. Moses, 90 Pa. 250; Donaldson v. Farwell, 93 U. S. 631.</p> <p>The law in this state is not that insolvency and the mere knowledge of it are such a fraud as to set aside the sale and enable the seller to rescind, and to replevy the goods after they have come fully and fairly into the possession of the purchaser. It requires artifice, trick or false pretense as a means of obtaining possession, to avoid the purchase: Wessels v. Weiss Bros., 156 Pa. 591; Diller v. Nelson, 10 Pa. Superior Ct. 449.</p>

<p>School board — Powers in dismissing teachers — Question for jury.</p> <p>Where the minutes of a school board do not disclose that the revocation of a teacher’s appointment was based upon a charge of incompetency, cruelty, negligence, or immorality, the question of the validity of a dismissal is the proper subject of inquiry by court and jury.</p> <p>Evidence — Admission of letter — Res gestee.</p> <p>The point at issue being whether a teacher, discharged by a school board, had after appointment deceitfully applied for another position pending her engagement, a letter is clearly admissible to show that the application antedated her appointment by defendants and her acceptance thereof, as rebutting allegations of deceit on part of plaintiff.</p> <p>Charge of court — Failure to give categorical answer to point — When not reversible error.</p> <p>The appellate court will not reverse for failure categorically to answer a point when the substance of the answer was responsive and as given could do the appellant no harm.</p>

<p>Jurisdiction, G. P. — Motion to strike off judgment.</p> <p>The courts are held to a strict scrutiny of the record alone on motions to strike off judgments, and they may not go beyond the record in reaching a decision.</p> <p>Married woman — Judgment note — Practice, G. P. — Motion to open judgment.</p> <p>It is not the present practice to strike off a judgment against a woman upon disclosure of coverture by depositions.</p> <p>Where a judgment regular on its face has been entered up the allegation that the note in question was given by a married woman before the Act of 1887 cannot be raised on a motion to strike off, but should be made the subject of a motion to open the judgment when the question of ratification or re-creation of the debt might be inquired into.</p>

<p>Implied contract — Liability of shopkeeper to customer in the absence of ordinary care by shopkeeper.</p> <p>A customer may recover for money stolen from liis clothes left in one-of the dressing booths of a retail clothing store, pending a trying on and¡ inspection of a suit, with a view of purchase, to an amount usually carried by prudent persons on their person. Such a case falls within the rule of Woodruff v. Painter, 158 Pa. 91.</p> <p>The proprietor is not relieved by a notice disclaiming responsibility when it does not appear that the customer saw or had his attention directed, to such notice.</p> <p>A diamond ring is not designed to be carried in the fob pocket of a pair of trousers, and it is clearly outside of the rule of Woodruff v. Painter. Its value cannot be recovered under such circumstances.</p>

<p>Incorporation of boroughs — Review —- Remedy — Jurisdiction, Superior Court — Statutes.</p> <p>The Act of May 9, 1889, P. L. 174, does not give any additional remedy as to review of proceedings in borough incorporation proceedings: Denis-ton’s Appeal, 9 Pa. Superior Ct. 212.</p> <p>It regulates existing remedies but leaves them, as before, a remedy by certiorari; the Act of May 9, 1889, P. L. 158, while changing the name from certiorari to appeal, does not extend the light of review or modify its exercise; it simply changes the form of procedure without affecting the jurisdiction of the court.</p> <p>Borough incorporation — ■Appeals—Review of discretion.</p> <p>In appeals in the nature of certiorari the appellate court has nothing before it but the record, of which the testimony is no part. The court of quarter sessions has discretion to determine all questions of fact and expediency in borough incorporation proceedings, and in passing on such questions will be presumed to have arrived at a correct conclusion. It follows therefore that the appellate court will not disturb a decree incorporating a borough unless illegality in the proceedings appears upon the record, or an abuse of discretion is distinctly charged and clearly established.</p> <p>Borough incorporation — Adjudicatory effect of dismissal of exceptions.</p> <p>Where an exception containing allegations of facts, in borough incorporation proceedings, is overruled by the quarter sessions, the appellate court must accept that as an adjudication that the exception is untrue in point of fact, unless the contrary appears from the record.</p> <p>Borough incorporation — Exclusion of farm land — Act of 1863 — Conclusiveness of findings of court below.</p> <p>It is no objection to the incorporation of lands in a borough that they ai-e used as farm lands; the extent and character of the lands are not per se controlling objections.</p> <p>The mere fact that houses are massed in groups separated by land used for farming or manufacturing or mining purposes does not constitute such groups separate villages, so as to justify the court in excluding them and the intervening land under the Act of April 1, 1863, P. L. 200. Such a proposition involves a question of fact upon which the finding of the quarter sessions is intended to be conclusive as to whether the land sought to be excluded properly belonged to and constituted a part of the village.</p>

Appeal, No. 63, April T., 1899, by Cornplanter Township et al., from decree of Q. S. Venango Co., incorporating the borough of Rouseville. Petition for incorporation of borough. Before Criswell, P. J. It appears from the record that the inhabitants of the town •of Rouseville in the township of Cornplanter and in the county of Venango filed a petition praying for the incorporation of said town by the style and title of Rouseville Borough.

Appeal, No. 7, April T., 1900, by Lyman E. Davis, from order of Q. S. Allegheny Co., March Sess., 1899, No. 82, granting a wholesale dealer’s license. Application of the Pittsburg Brewing Company, a corporation, for a wholesale liquor license.

<p>Appeal — Harmless error not reversible.</p> <p>The appellate court will not reverse for an error which could have done no harm.</p> <p>An assignment will not be sustained to the admission of a certain letter in evidence which, whether technically admissible or not, could not possibly have harmed the defendant in that it had reference by way of explanation to credits claimed by defendant and admitted by plaintiff.</p> <p>Appeal — Defective assignment — Rules of court.</p> <p>An assignment is defective which, assigning error to the admission of a certain letter, does not set forth a copy thereof as required by Rule 17.</p>

<p>Usury — Renewal of original obligation under guise of new loan.</p> <p>Where certain transactions, although made to assume the guise of payment of one loan and the creation of another, amount in reality to the monthly renewal of an original loan at a usurious rate of interest, all payments in excess of legal interest are to be applied on the principal.</p> <p>Malicious prosecution — Evidence as to nature of transaction.</p> <p>Where a prosecution has been undertaken without foundation, the animus may be shown by proof of a threat to take summary proceedings against the alleged debtor. Evidence is properly admissible which tends to throw light on the real character of the transaction.</p>

Appeal, No. 92, Oct. T., 1899, by-plaintiff, from judgment of C. P. No. 8, Phila. Co., June T.,. 1892, No. 204, sustaining exceptions to referee’s report. Exceptions to referee’s report. It appears from the record that this action was trespass to-recover for deceit in which the plaintiff claimed to recover damages in the sum of $2,000, and by writing filed it was agreed that the case should be submitted to George Wharton Pepper, as referee, under the act of May 14, 1874.

Appeal, No. 106, Oct. T., 1899, by William Simon, from order of C. P. No. 3, Phila. Co., Sept. T., 1897, No. 261, M. L. D., making absolute rule to strike off entry of satisfaction of a lien. Rule to show cause why satisfaction of record should not be stricken off. Before the court in banc.

Appeal, No. 184, Oct. T., 1898,. by defendant, from order of O. P. Lancaster Co., June T., 1880, No. 24, fi. fa. Jan. Term, 1898, No. 33, discharging rule taken at defendant’s instance to show cause why the writ of fieri facias should not be stayed and set aside. Rule to show cause why fi. fa. should not be stayed and set aside. Before Beubakee, J. It appears from the record that an action of trespass was brought against Lorenz Nolde in 1880.

Appeal, No. 118, Oct. T., 1899, by iplaintiff, from order of O. P. No. 4, Pbila. Co., March T., 1899, No. 854, discharging rule for judgment for want of a sufficient ¡affidavit of defense. Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc.

Appeal, No. 6, April T., 1900, by Lyman E. Davis, from order of Q. S. Allegheny Co., March Sess.,. 1899, No. 9, granting a brewer’s license. Application for brewer’s license. Held: and in Reed’s-Appeal, 114 Pa. 452, it was held that neither thé petition nor remonstrance was part of the record.

Appeal, No. 152, Oct. T., 1899, by-defendants, from judgment of O. P. No. 1, Phila. Co., Dec. T., 1898, No.. 679, on verdict for plaintiff. Assumpsit to recover $1,000 benefits from the Knights of Birmingham, payable on the death of Henry C. Shoemaker. The trial judge refused defendants’ points for charge, which were as follows: [1.

Appeal, No. 86, April T., 1890, by defendants, from judgment of Q. S. Allegheny Co., Sept. Sess., 1899, No. 528, on verdict of guilty. Before Rice, P. J., Indictment for selling liquor without a license.

Appeal, No. 192, Oct. T., 1899, by-defendant, from order 'of C. P. No. 4, Phila. Co., Sept. T., 1898, No. 445, M. L. D., making absolute rule to strike off entry of substituted security and reinstate lien. Rule to strike off substituted security and reinstate lien. Before the court in banc. It appears from tlie record that this was an apportioned mechanic’s claim filed by the plaintiff against three houses for $72.50, for gas fixtures furnished to the defendant.

Appeal, No. 57, Oct. T., 1899, by defendant, from judgment of O. P. No. 3, Phila. Co., March T., 1898, No. 975, on demurrer, in favor of plaintiff. Demurrer to statement. Before the court in banc. It appears from the record' that this was an action in rem under the Act of April 3, 1830, P. L. 187, sec. 1, as amended by the Act of March 22, 1861, P. L. 181, sec. 1, for the recovery of possession of real estate for nonpayment of rent.

Appeal, No. 129, Oct T., 1899, by-defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1897, No. 231, on verdict for plaintiff. Assumpsit. Before Atjdenreid, J. It appears from the record that a statement was filed claiming $114, for damages for breach of contract for sale of land. The statement averred performance on part of plaintiff and nonperformance on part of defendant. Defendant pleaded non assumpsit, set-off, and payment with leave.

Appeal, No. 75, Oct. T., 1899, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1898, No. 674, in favor of defendant on case stated. Case stated. Before the court in banc. It appears from the case stated that under the authority of an ordinance the grade of Clearfield street and also Twentieth street was changed.

Appeal, No. 198, Oct. T., 1899, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1898, No. 389, on verdict for plaintiff. Trespass for injuries resulting from carelessness and negligence of defendant, a practicing dentist. Before AudenKIBD, J. No exception was taken to the charge of the court. Verdict and judgment for plaintiff for $300. Defendant appealed. No errors were assigned.

Appeal, No. 91, Oct. T., 1899, by plaintiffs, from order of C. P. Montgomery Co., March T., 1898, No. 44, for want of a sufficient affidavit 'of defense. Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc. It appears from the record that this action was brought by-plaintiffs, who were real estate agents and brokers, to recover commission for the sale of a certain piece of real estate.

Appeal, No. 156, Oct. T., 1899, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1897, No. 47, on verdict for plaintiff. Replevin. Before Landis, J. The facts sufficiently appear from the opinion of the court below refusing motion for a new trial, which was as follows: The defendant’s counsel have assigned ten reasons why a new trial should not be granted in the above case.

Appeal, No. 139, Oct. T., 1899, by defendant, from judgment of C. P. No. 2, Pbila. Co., Dec. T., 1894, No. 1016, on verdict for plaintiff. Trespass.

<p>Appeal, No. 140, Oct. T., 1899, by George W. Ruch, defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1897, No. 307, on verdict for plaintiff.</p> <p>Trespass. Before Sulzberger, J.</p> <p>It appears from the record that plaintiffs declared in trespass against defendants for injuries to premises northeast corner of Twenty-first and Callowhill streets, Philadelphia, alleged to have been caused by the careless and negligent performance of the work of excavating a tunnel for a sewer in the bed of Callowhill street in front of plaintiffs’ premises.</p> <p>A't the trial the court admitted as evidence on behalf of plaintiff the following testimony of Samuel T. Wagner.</p> <p>[“ Q. Please state whether in your opinion this work could have been done — the blasting could have been so done — as not to break out the windows of the building or disturb the machines within. A. It would have been possible to have prevented injury by reducing the charges to such an amount as to have caused very small execution in the rock and to have made the shock very small. Of course, such a proceeding would have been with an ultimate end to doing no execution on the rock at all.”] [1]</p> <p>Defendant submitted, inter alia, certain points, which points and answers are as follows:</p> <p>[5. There is no evidence of negligence on the part of the defendant in the construction of the said sewer. Answer: I decline to affirm that point.] [2]</p> <p>[6. The verdict in this case must be for the defendant. Answer : I decline that point.] [3]</p> <p>Verdict and judgment for plaintiff for #300 as to George W. Ruch and as to the city of Philadelphia, judgment for defendant. Defendant George W. Ruch appealed.</p> <p>Frrors assigned were (1) to ruling on evidence, reciting same. (2, 3) answers to defendant’s points, reciting points and answers.</p>

<p>Fraud — Evidence—Proof— Circumstantial evidence.</p> <p>Fraud may be proved by circumstantial evidence; it is not necessary that the evidence of collusion be conclusive; fraud and collusion may be shown by such facts and circumstances as will warrant a presumption of their existence.</p> <p>Insurance — Fraud— Question for jury.</p> <p>Where the evidence introduced by an insurance company defendant, if credited by the jury, must induce an almost irresistible conclusion of fact that the policy sued upon could not have been obtained on the life of the insured without the perpetration of fraud and that a fraud was perpetrated, the question was for the jury and it would have been error to have withdrawn it from their consideration.</p>

<p>Appeal, No. 199, Oct. T., 1899, by defendants, from judgment of C. P. Northampton Co., July T., 1898, No. 73, on verdict for plaintiffs.</p> <p>Assumpsit. Before Scott, J.</p> <p>The pleadings were not printed in the paper-books.</p> <p>The facts sufficiently appear from the charge of the court below, which is as follows :</p> <p>The plaintiffs seek to recover from defendants the sum of' $60.05, being a balance claimed by them to be due in consequence of a sale of white lead, made under a contract in 1897, wherein it is claimed by the plaintiffs that this balance remains unpaid, and the defendants claim that the whole obligation has been discharged by payments already made to the plaintiffs, by reason of the fact that under the terms of the contract there was to be a further rebate of one fourth of a cent a pound upon the amount of lead that was sold the defendants. The difference which is represented by that one fourth' cent per pound is this balance of $60.05, so that if the defendants were not entitled to the additional rebate, under the terms of the contract, the plaintiffs would be entitled to recover the $60.05, with interest from the time there was a default in the contract, which would be at the time of the payment in January, 1898. If the plaintiffs are entitled to recover this money, and the defendants were not entitled to any other rebate than the discount that was allowed and for which settlement wras made, then the plaintiffs would be entitled to recover $60.05, with interest from January 15, 1898, when the payment was made for $960.99, and when there was a further discount allowed which reduced the balance unpaid, according to the exact price stipulated for, to $60.05. The defendants deny the liability; if the plaintiffs are entitled to recover at all, they are entitled to recover from the time the payment was made on account of the contract, and liability denied for any of the remaining balance, that is, January 15,1898.</p> <p>It becomes necessary, therefore, to determine whether their contract, as of that time, provided for any additional rebate, or cut in the price, beyond the discount of two per cent, which is stipulated for upon this card expressly.</p> <p>Soinetime shortly prior to January 11,1897, the plaintiffs mailed to the defendants a postal card, not directed to any one on the outside, but containing propositions and a price list, but, as it appears by the testimony, this price list was inclosed in another envelope directed to the defendants and received by them, and, therefore, this card becomes the proposition of the plaintiffs inviting the acceptance from the defendants on January 11,1897, being probably a few days afterwards, because the card itself is dated January 1,1897. The defendants wrote this letter which the plaintiffs claim is an acceptance of the terms of the contract, and whether it be so or not is a matter for the court to determine.</p> <p>“ Wetherill Bros.,</p> <p>“Gentlemen: Your postal of quotations for 1897 received. You will please enter our contract for twelve tons white lead for 1897, to be shipped by way of the Central Railroad Company of New Jersey delivery. Have filed claim with railroad company as per your request.</p> <p>“ Yours truly,</p> <p>“ Erwin, Wagener Co.”</p> <p>You will perceive, therefore, as the court instructs you, that that is an acceptance of the proposition made by the plaintiffs for the sale of any of these products that are described upon this postal card; among those matters contained are that Wetlierill Brothers will furnish white lead, dry, in casks and barrels, four and one fourth cents per pound. If there were nothing else in the contract but that, it would simply be a provision that the defendant agreed to accept the white lead — a carload of white lead, twelve tons for four and one fourth cents per pound, subject to the usual discounts that are named upon this postal card, and also discount of two per cent for cash if paid within fifteen days from the date of the invoice. Added to that, however, is a provision upon this card which is as follows: “ Conditions as heretofore.”</p> <p>The interpretation of a contract which appears to be in writing is a matter exclusively for the court and not for a jury. When, however, part of a contract be in writing and part of it be verbal, the whole contract becomes what is called a parol contract, and the matter is for the jury under such instructions as may be given by the court.</p> <p>[Now, upon this postal card it provides in addition to what is there printed, “ Conditions as heretofore; ” of course, that does not mean any of the conditions that are printed upon this card for two reasons : if it did mean any of those conditions it would have been unnecessary to have said that, and as it says, “ Conditions as heretofore,” it refers to something that may have existed in the contractual .relations of the parties prior to that time, and the defendant alleges that it was part of this contract made at that time in pursuance of the conditions therein expressed that it was made with reference to the conditions of a prior contract between these parties in 1896, and if that be so, then the questions of fact, arising out of this controversy, are to be determined by you.] [1] It is undisputed that there was a prior contract in 1896, and that was the only contract, so far as any evidence here discloses, that ever existed between the plaintiffs and the defendants; therefore, the contract in 1897 must be interpreted by you with reference to the contract of 1896, by reason of the fact that the proposition is made with reference to “ Conditions as heretofore,” and the letter of acceptance refers to that postal card and accepts the proposition there made; therefore, it becomes of some importance to inquire whether there was such a provision in the contract of 1896 providing for the rebate of one fourth of a cent per pound, beyond the usual discount of two per cent. The stipulated price under the contract of 1896, was four and one half instead of four and one fourth cents per pound for the white lead, and whether dry or in oil, I do not remember, but it is unimportant, for we are not trying the question of the liability upon the contract of 1896, but only referring to it for the purpose of ascertaining what the contract of 1897 was.</p> <p>The amount that was to be paid per pound under the contract of 1896 is unimportant, for the amount that was to be paid under the contract of 1897 is expressly provided for in this proposition, which was accepted; it was to be four and one fourth cents per pound; that is one of the things expressly named here, and, therefore, any reference to the contract of 1896 under the clause of “ Conditions as heretofore ” has no reference at all to the amount that was to be paid per pound. The only importance of referring to the contract of 1896 is to ascertain whether in addition to any of the stipulations upon this postal card there were conditions annexed to that contract which provided for an abatement of one fourth cent per pound, and, if so, in addition to the regular two per cent discount that is contracted for here, it is contended by the defendant that the contract then between the parties appears to have been one for an abatement or a cut of one fourth cent per pound beyond and below the two per cent discount on the four and one fourth cent per pound. When this postal card stipulates that the conditions were as heretofore you will perceive it refers to what the contract wras before, not what may have been voluntarily performed upon the part of the plaintiffs, but what was the com tract of 1896.</p> <p>[It is claimed in the first place, by the plaintiffs, that the contract of 1896 was for the payment of four and one half cents a pound with the discount of two per cent for cash within the fifteen days, and there was no provision in that contract that the time it was accepted for any further rebate, and if that were so, although the rebate was allowed at some time subsequent in the year, by the plaintiffs upon application of the defendants, it was purely a voluntary act not supported by any consideration, and was not part of the contract at all that was made in 1896, and you are to ascertain in the first place how that thing is. It does not seem to be doubted, or disputed, that there was a rebate made upon that contract of 1896 before all the lead had been supplied in pursuance of it, but it is said by the plaintiffs that it was not allowed until some time late in the year when some of the last shipments were being made, and after several payments, or some payments, had been made in pursuance of that contract, and that it was done because the defendants called-their attention to the fact that in tbe trade to some persons at least there was such a rebate being allowed, and when their attention was called to it they allowed that rebate to the defendants. Have the plaintiffs satisfied you, or does the evidence satisfy you that that was the condition as claimed by the plaintiffs ? If so, then it was not part of the contract of 1896 that there should be any rebate, but it was made in pursuance of the voluntary act of the plaintiffs, and whether voluntary or not, would depend upon the question of whether there was an agreement subsequently made between these people before all that lead had been shipped under the contract of 1896, that if they would take the balance and pay for it they should be allowed that rebate which is the contention of the defendants, and you are to say whether it is supported by any evidence: if it be not, and it is simply a matter of the ordinary contract to pay four and one half cents a pound in 1896, and it was a voluntary reduction of that claim on the part of the plaintiffs, although it was made, and although there was the rebate made, yet it was not one of the conditions of the contract which is referred to in this postal card, and it would not be binding upon the plaintiffs unless it were founded upon some consideration, and if that should be the fact, and you are satisfied of that, then there was no such condition in the contract of 1896, which would be conclusive upon the plaintiffs in this proceeding, and they would be entitled to recover the full amount of the contract price, f60.05, with interest from the date I have already specified, that would be for the reason that the only contract then would be a contract to pay a certain amount per pound without any rebate, because there were no conditions heretofore existing that provided for any rebate in a contract that was binding between these people. It was a voluntary act, and under the testimony of these witnesses upon both sides you are to say whether the other condition existed. There was a rebate, it is undisputable, for 1896, and you are to say whether it was made in the way contended for by the plaintiffs, or in that contended for by the defendants. If you find upon that branch of the case in favor of the plaintiffs, then it is not necessary to go any further and consider the other question.] [2]</p> <p>[The only other question of fact which arises in this case, important to your conclusion — to which I will refer you in a moment — if you are satisfied that the conclusion upon this proposition that I am submitting would be with the plaintiffs, then your verdict would be for the plaintiffs for the amount in controversy, but if you accept the contention made by the defendants upon this branch of the case, or you are not satisfied that the evidence for the plaintiffs establishes the condition of things to which I have referred, then it is necessary for you to consider the other proposition, which is, as claimed by the plaintiffs, that after this contract was made in January, 1897, providing that at any time during that year these twelve tons of lead might be taken by the defendants and paid for at that price ; that it was not ordered and not shipped until the 28th day of December of that year, although ordered on the 11th of January; that before it was shipped a controversy had arisen about the terms of payment, and, in pursuance of that controversy, Mr. Wallace, representing the plaintiffs, went to the defendants’ place in Bethlehem, and after some discussion of that proposition agreed to ship this lead to the defendants to be paid for by them at the contract price named in this card, unless the defendants could furnish the plaintiffs either a letter or something in writing to show that Mr. Wetherill, of the plaintiffs’ firm had agreed to take one fourth of a cent rebate upon that contract. You have heard the testimony of Mr. Wallace upon what took place upon that occasion, asserting an agreement to that effect, and the testimony of Mr. Erwin and his son denying such agreement, Mr. Erwin not being a member of the firm. At that time, I have said, there had been no shipment or delivery of any part of this lead that had been ordered in January, and it had not been paid for, and, there being no evidence that it had been separated and set apart by the plaintiffs for the defendants before that time, it not having-been paid for, it not having been delivered, no title had yet vested in the defendants to that lead. Whatever rights might arise by reason of a breach of contract is not the question that we are now trying; it is only referred to as evidence bearing upon what was the relation of these people at that time. It had not been furnished, and the contention of the plaintiffs upon this proposition is that it was not shipped upon the contract as claimed by the defendants now, and was only shipped in pursuance of an express agreement made at that time between him and William Erwin, in the presence of Henry Erwin, that it would be shipped to be paid for at four and one fourth cents per pound, unless the defendants were able to furnish a written paper — some paper in writing — that Mr. Wetherill had agreed to take four cents a pound, or a rebate of one fourth cent. The letter was not asked for, or produced that day.] [3] Mr. Wallace proceeded to return to Philadelphia, and after some correspondence Wetherill Brothers asked for that letter, or they asked for the date of the letter, so that they might refer to it in the copies they had kept; they were finally referred to the letter of January 12, 1897, marked as exhibit No. 8 in this case, which is as follows: “The Erwin, Wagener Co., Bethlehem, Pa., Dear Sirs : Your favor of the 11th instant is at hand, and we thank you for the order; have made a special entry of same for the year, and note your instructions regarding route of shipments.” This letter is dated January 12,1897, and the letter from Erwin Brothers is dated January 11, the preceding day, ordering shipment to he made according to the price list then inclosed. The letter thus proceeds: “ The reason we say ‘special’ is that last month it was recommended that sales be made at this price for delivery not later than March 81, and in case of an advance by or before then, buyers to take or pay present prices for what they wanted to secure, or regular terms from date of advance. This recommendation not having been fully adhered to, and in some cases ignored, we give you the benefit of the year’s run.”</p> <p>[I have said that some part of this contract being in writing, and some part of it verbal, it all becomes a matter for the consideration of the jury to determine what the contract was.] [4]</p> <p>[If it be found to have been the engagement of these parties later in the year, before any shipment, and in view of the fresh dispute about the price, that these goods should be shipped to the defendants for the usual price stipulated in this card, and that they were to be entitled to a rebate of the one fourth per cent, only in the event that they were able to furnish a letter, or some writing, from Mr. Wetherill agreeing to accept such rebate, and they were not able to do this, no further reduction would be admissible.] [5] I am not able to see that there is any recognition from Wetherill Brothers stated in this letter of January 12 that he would accept a rebate of one fourth cent per pound. However, other letters have been given in evidence by the defendants upon the trial of the case here, although this was the letter referred to the gentlemen in Philadelphia.</p> <p>[It is the plaintiffs’ contention that if the goods were shipped the defendants were to pay the regular listed price, unless they would be able to supply the plaintiffs with some previous undertaking of Mr. Wetherill to accept the rebate; then it would be part of the contract for the shipment, and the plaintiffs would be entitled to recover, unless you find that there is an undertaking by Mr. Wetherill that he would accept less. If the defendants assented to this, it would estop them from asserting the contrary afterwards.] [6]</p> <p>[The questions of fact upon these two propositions are entirely for your consideration. If you find both of these contentions that I have stated in favor of the defendants, your verdict will be in favor of the defendants ; if you find either one of them in favor of the plaintiffs, your verdict will be in favor of the plaintiffs. There is no dispute about the amount as 160.05; the plaintiffs must satisfy you, however, of their right .to recover, by weight of the evidence.] [7]</p> <p>[The defendants submit this letter of January 20, 1896, to you, gentlemen of the jury, as bearing upon the question of what the contract was in 1896. I have already said we are not trying the question of liability under the contract of 1896, but I have referred you to the fact that it becomes important to ascertain what the contract of 1896 was, in the way of an abatement that was allowed, at that time ,• the defendants claim it was contracted for, and the plaintiffs deny it.</p> <p>This is a letter from Wetherill Brothers to the' Erwin, Wagener Company, Bethlehem. “ Your favor of this date is at hand, and we would book your order for dry white lead at four and one half cents per pound, and on delivery during the year of a quantity equal to a carload would allow a rebate on same of one fourth cent per pound. Terms sixty days credit, or two per cent discount for cash if paid within fifteen days from date of invoice, and delivery f. o. b. the cars.”</p> <p>I have said that it is necessary to determine whether there was a rebate allowed as part of the contract of 1896, and you will remember what I have said upon that question. When it is stipulated in this postal card that the conditions are as heretofore it refers to the conditions of a contract, and not what the plaintiff may have voluntarily done. The defendant asked me to read this letter to you as showing that it was part of the contract of 1896 that there should be this rebate, and thus being part of the contract of 1896 should be also included as that of 1897. After that explanation perhaps I had better read the letter again so that you will perceive what point it is addressed to. “ Your favor this date is at hand and we would book your order for dry lead at four and one half cents per pound, and on delivery during the year of a quantity equal to a carload would allow a rebate on same of one fourth cent per pound.” That is dated January 20,1896, and, of course, refers to the contract of 1896.] [8]</p> <p>Verdict and judgment for plaintiffs for $61.75. Defendants appealed.</p> <p>Errors assigned were (1-8) to portions of the judge’s charge, reciting same.</p> <p>There is but very little law necessary to be cited in this case as it now appears before this court, as the principles involved, are well settled and not open to question. We will cite but a few of the more recent cases.</p> <p>“ Slight inaccuracies in reviewing the evidence will not be regarded as error, but if the charge of the court is in the nature of an argument on one side, or is inadequate in its treatment of the question submitted, such defect will be ground for reversal : ” Fineburg v. Ry. Co., 182 Pa. 97; Reiehenbach v. Ruddach, 127 Pa. 564; Tietz v. Traction Co., 169 Pa. 516; Lerch v. Bard, 177 Pa. 197.</p> <p>If this court should decide that the judgment be reversed, and that there was nothing in the case to submit to a jury, defendants respectfully ask that this court exercise its powers under the Act of May 20, 1891, P. L. 101.</p> <p>From the statement and the answer, this court could see at a glance the exact issue involved. But the appellants fail to give a copy of the statement, or of the answer, or of the replication; they fail even to mention these all important pleadings in their abstract of proceedings, excepting the replication.</p> <p>Every material averment in the statement, not denied by the answer, will be taken as admitted.</p> <p>The defendants cannot set up any new defense not found in their answer: Ashman v. Weigley, 148 Pa. 61; Carpet Co. v. ■Latimer, 165 Pa. 617.</p> <p>The word “ condition ” does not mean terms, price and rebates. Even if the words “ Conditions as heretofore ” did refer to the terms of the contract of 1896, then we say that the contract of 1896 never contemplated any rebate of one fourth of a cent for dry white lead, the subject of this action.</p> <p>In the absence of plaintiffs’ statement, this court cannot say exactly upon what contracts plaintiffs founded their action.</p> <p>The second assignment of error is that the court erred in telling the jury what the plaintiffs’ claim was. Our claim was just as the court stated it, and as the jury found.</p> <p>It was right to submit our claim as set forth in our statement to the jury. Appellants say that they introduced the evidence on the subject-matter contained in this assignment,. and that it was not introduced to prove the plaintiffs’ case. Of course ive do not know what purpose the defendants had in introducing this evidence, but the result was that it did prove the plaintiffs’ case and the jury so found.</p>

<p>Appeal, No. 195, Oct. T., 1899, by plaintiff, from judgment of C. P. Lancaster Co., Oct. T., 1898, No. 8, in favor of plaintiff on case stated.</p> <p>Case stated. Before Brubaker, J.</p> <p>It appears from the case stated that plaintiff was elected collector of the township of Manheim on the third Tuesday of February, 1894, for a term of three years under the Act of June 6, 1893, P. L. 333, and served as tax collector for the said term, and was duly re-elected on the third Tuesday of February, 1897, for a term of three years, and entered upon his duties and gave bond, and served as collector from that time to the present.</p> <p>In 1897 the assessor of said township, under the act of 1851, advertised for bids for the collection of the taxes of said township, and the said Ephraim Buckwalter filed a bid with the said assessor, which was duly returned to the county commissioners of the said county of Lancaster as the said lowest bid for the collection of taxes for the said year, the said bid being the sum of $48.75.</p> <p>Under the act of 1885 the said Ephraim Buckwalter would have been entitled to the sum of $206.62 for the collection of said taxes for the said year 1897.</p> <p>If the court be of opinion that the said Ephraim Buckwalter, the plaintiff, is entitled to be paid for the collection of said taxes for the year 1897 under the act of 1885, then judgment to be entered for the plaintiff for the sum of $206.62. But if the court shall be of opinion that the said Ephraim Buckwalter is only entitled to the amount of his bid, and is to be paid under tho act of 1851, then judgment to be entered in his favor for the amount of $48.75, the costs to follow the judgment, and either party reserving the right to sue out an appeal to the Superior Court.</p> <p>The court entered judgment in favor of plaintiff and against defendant for $48.75. Plaintiff appealed.</p> <p>Errors assigned were (1) in holding that the act of 1898 “merely extends the term of office to three years, leaving the payment of services of the collector in Manheim township, in our opinion, under the provisions of the 7th section of the Special Act of April 10, 1848, P. L. 445, which was extended by the local act of 1851 to said township.” (2) In not holding that the act of 1893 repealed the local acts of 1848 and 1851. (3) In holding that the act of 1893 did not affect the compensation of the collector. (4) In entering judgment for plaintiff for $48.75. (5) In not entering judgment for the plaintiff for $206.62.</p> <p>We are of the opinion that the question arising on this appeal has been already decided by the Supreme Court of the state, as well as by the court of common pleas of Lancaster county, from which this appeal comes, albeit the judgment in the present case was entered by a different member of that court from the judgment to which we refer, namely, Baer v. Commissioners, 14 Lane. Law Rev. 273.</p> <p>We hardly think it admits of doubt that, if a local statute is repealed by a general statute, no fragment of the former can remain to obstruct or defeat the operations of the latter. The Act of April 10, 1848, P. L. 443, sec. 7, was undoubtedly a local act for certain townships, inter alia, in Lancaster county. The Act of March 29, 1851, P. L. 284, extended this to Manheim township. Up to the passage of the act of 1885, therefore, this act was undoubtedly in force for and in the township of Manheim. Then came the Act of June 25,1885, P. L. 187, which regulated the collection of taxes in the several boroughs and townships of this commonwealth, and declared that thereafter the collector of taxes should be elected by the qualified electors “ of each borough and township in this commonwealth; ” but, in section 13, it expressly excepted from its application “ any taxes the collection of which is regulated by a local law: ” Evans v. Phillipi, 117 Pa. 226. Its 2d section repeals all other acts inconsistent with it in these sweeping terms: “ All acts, or parts of acts, inconsistent herewith, are hereby repealed,” and this clause was “ so full and so strong as to remove all doubts with reference to the question here present: ” Commonwealth v. Macferron, Treas. Allegheny County, 152 Pa. 244; Quinn v. Cumberland County, 162 Pa. 55; Commonwealtli v. Middletown Borough, 3 Pa. Dist. Rep. 639.</p> <p>The general act of June 6, 1893, authorizing the election of tax collectors for a term of three years, repeals a local act, which authorizes a borough council annually to appoint a tax collector : Huntingdon Borough, 3 Pa. Dist. Rep. 435.</p> <p>In Commonwealth v. Wunch, 167 Pa. 186, it is held that “ the Act of June 6,1893, P. L. 333, entitled 1 An act to authorize the election of tax collectors for the term of three years in the several boroughs and townships in this commonwealth,’ repeals the local Act of March 18, 1852, P. L. 153, relating to the collection of taxes in the townships of Longswamp and Bethel, in Berks county.”</p> <p>And in a per curiam, the Supreme Court says that “since the adoption of the present constitution, the legislature has sought to bring about uniformity in the administration of the affairs of the counties and townships, as well as those of cities and boroughs. The constitution requires this, and we have felt constrained to interpret statutes relating to these subjects in the light of constitutional requirements. This case is fairly-ruled by Commonwealth v. Macferron, 152 Pa. 244, and by Quinn v. Cumberland County, 162 Pa. 55. We have no intention to depart from the rule laid down in these cases.”</p> <p>To the same effect were In re Twenty-second St., Phila., 102 Pa. 108, In re East Grant St., 121 Pa. 596, Com. v. Weir, 165 Pa. 284, and Com. v. Schneipp, 166 Pa. 407.</p> <p>From all of which it is clear that the act of 1851 was repealed by the act of 1893, and, after the passage of the last named act, the taxes of Manheim township were to be collected, them collector chosen and paid for under general laws. If this is correct, then the collector should be paid according to the act of June 25, 1885, and, in that case, judgment should have been entered on the case stated for 1206.62.</p> <p>The acts of 1848 and 1851 are certainly not repealed by the act of June 25, 1885, for the Supreme Court ruling in Mallory v. Reinhard, 115 Pa. 29, which turned upon the construction of the act of 1885, in passing upon section 13, the repealing clause excepting local laws held “ that the repeal of any local law is not within the intendment of the act of 1885,” and said “ that even had such repealing clause been omitted that local statutes would not have been affected.”</p> <p>If the act of 1885 does not repeal the acts of 1848 and 1851 by the saving clause of section 13, therefore the collector would be entitled to compensation under those acts, unless they are repealed by the act of 1893, and if they are repealed by the act of 1893, the collector would be entitled to no compensation whatever, unless he would be entitled to compensation under the act of 1885, as argued in this case.</p> <p>The act of 1893 being silent as to the compensation to be received by the collector of taxes, the compensation of a tax collector provided for in the act of 1885, can under no circumstances be made to apply to the collector of taxes in Manheim township, for the act expressly excepts Manheim township from its provisions being governed by a local law which is excepted, and the act of 1885 does not repeal the acts of 1848 and 1851.</p> <p>It is, therefore, conclusively held that the act of June 25, 1885, entitled “ An act regulating the collection of taxes in the several boroughs and townships of this commonwealth ” did not repeal the special act of 1848 as applicable to Manheim township. It expressly excepts from its provisions “ taxes, the collection of which is regulated by a local law.”</p> <p>The act of 1893 provides that “ all acts or parts of acts inconsistent herewith are hereby repealed.”</p> <p>The only provision of the act of 1848 applying to Manheim township, which is inconsistent with the act of 1893, is as to the manner of appointing a tax collector. Under act of 1848 county commissioners appoint. Under act of 1893 people elect. Under act of 1848 compensation is fixed by county commissioners. Under act of 1893 none is provided for. The act of 1848 gives the school board several hundred dollars. The act of 1893 is silent on the subject.</p> <p>“ Courts cannot supply legislative defects and omissions although by reason of such the statute becomes in whole or in part practically uninforceable and inoperative : ” Endlich on Interpretation of Statutes, sec. 22; Chaffee’s Appeal, 56 Mich. 244.</p> <p>Nor is the title of the act of June 6, 1893, broad enough, either to permit compensation to be fixed in the act, or deprive the school board of Manheim township of the amount to which they are entitled.</p>

<p>Roacl law — Merits of ease not reviewed — Jurisdiction, Superior Court— Rules of court.</p> <p>An appeal in the nature of a certiorari does not bring up anything but the record of which the evidence is no part; hence it follows that on appeal taken from any order or proceeding in relation to a public road the appellate court will not suffer the merits of the case to be entered into nor will it reverse the order of the court of quarter sessions, unless for some error or irregularity apparent on the l'eeord, or because the court below exceeded its jurisdiction or erred in their judgment in point of law. This principle is laid down in Rule IS of the Superior Court which not only is a substantial transcript of the rule of the Supreme Court upon the subject, but is a declaration of the law as established by an unbroken line of decisions.</p> <p>Practice, Q. S. — Road law — Vacation of road — Designation of township.</p> <p>There being no uncertainty in the report of viewers as to the location of a road to be vacated or of the road to be laid out in its place and the identical location described in the petition and orders being followed, when these name the township, the omission to designate it by name in the report is not such an irregularity as would justify reversal.</p> <p>Road law — Change of road involves vacation of old road.</p> <p>A proceeding to change part of a road from one location to another, necessarily involves a vacation of the old road to the extent required by the change.</p> <p>Road law — Allegations of inconvenience.</p> <p>The omission to state in the petition why the part of the road alleged to be inconvenient is so, is not fatal on appeal.</p>

<p>Appeal, No. 149, Oct. T., 1899, by plaintiff, from judgment of C. P. Delaware Co., dissolving writ of foreign attachment.</p> <p>Assumpsit commenced by foreign attachment. B efore Clayton, P. J.</p> <p>It appears from the record that on June 19,1899, the defendant presented a petition for the quashing of the foreign attachment proceeding, on which the court, on the same day, granted a rule on the plaintiff to show cause why the writ of foreign attachment should not be quashed or dissolved. In this petition, the defendant alleged that his residence was within the commonwealth at the time of the issuance of the writ, and “ that no statement or declaration has been filed.” On June 26, 1899, an order for the entry of a rule for depositions on the above stated rule on behalf of the defendant was filed, in which E. H. Hall, Esq., signed himself as attorney for the defendant. On June 28, 1899, depositions were taken in pursuance of the said rule therefor; these clearly showed that the defendant was a resident of the commonwealth at the time of the issuance of the foreign attachment. On July 10, 1899, the court adjudged that the foreign attachment be dissolved, and that the said- depositions be filed of record.</p> <p>Plaintiff appealed.</p> <p>Error assigned was to the action of the court dissolving the writ of foreign attachment, because it appears of record that a general appearance in the court below was made by defendant, whereby any action for the dissolution of the said writ was waived;</p> <p>Assuming that the defendant made a general appearance, he precluded himself thereby from attacking, on the ground that he was a resident of this commonwealth, the validity of the issuance of the foreign attachment: 1 Am. & Eng. Ency. of Law, 188.</p> <p>The law of Pennsylvania has recognized this general rule from early days. Some of our cases are Stroup v. McClure, 4 Yeates, 523, Kennedy v. Erdman, 150 Pa. 427, Beltzhoover Borough v. Beltzhoover Heirs, 173 Pa. 213, Brinton v. Hogue, 172 Pa. 366, and First National Bank v. Furman, 4 Pa. Superior Ct. 415.</p> <p>The general effect of a general appearance suffers no exception in a proceeding begun by foreign attachment is a proposition not required to be based on principle only, but has ample authority to support it. In Pennsylvania such authority is both statutory and judicial. The statutory authority for the position mentioned is to be found in section 64 of the Act of June 13, 1836, P. L. 568.</p> <p>Some Pennsylvania cases enunciating the view here mentioned are Malone v. Lindsley, 1 Phila. 288, Memphis, etc., R. R. Co. v. Wilcox, 48 Pa. 161, and Wright v. Milliken, 152 Pa. 507.</p> <p>A general appearance is, as is well known, made whenever there is a submission to the jurisdiction of the court. No formal act is necessary. In this case, no order for the entry of the appearance of the defendant was filed with the prothonotary; but it is submitted that a general appearance was made by him because (1) the petition of the defendant on which the rule to show cause why the foreign attachment should not be quashed or dissolved was granted, contained a non jurisdictional reason for the quashing of the foreign attachment proceeding, to wit: “that no statement or declaration has been filed,” and (2) the order for the entry of the rule for depositions on behalf of the defendant contained the words, “ attorney for defendant,” as an addition by E. H. Hall, Esq., to his name: Clark v. Blackwell, 4 G. Greene, 441; St. Louis, etc., Co. v. Stillwater Co., 53 Minn. 129; Frazier v. Douglas, 48 Pac. Rep. 36; Jeannette Borough v. Roehme, 9 Pa. Superior Ct. 33; Railway Co. v. McBride, 141 U. S. 127.</p> <p>The order for the entry of the rule for depositions on behalf of the defendant contained the words, “ attorney for defendant,” as an addition by E. H. Hall, Esq., to his name, and was therefore equivalent to a general appearance: Baxter v. Arnold, 9 How. Pr. 445; Dole v. Manley, 11 How. Pr. 138; Phelps v. Phelps, 6 Civ. Proc. 117.</p> <p>So far as the appellant is aware, this question has not been passed on by either of the appellate courts of this commonwealth. It arose, however, in the court of common pleas No. 4, of Philadelphia county, in Pain Co. v. Lincoln Park Co., 6 Pa. Dist. Rep. 93.</p> <p>The counsel for the appellant in their very elaborate argument raise but two questions : 1. Is the case in hand a proper one for review? 2. Has the defendant or his counsel done anything which entitles the plaintiff to maintain his attachment which must otherwise fail ? The only question before the court below at the time the attachment was dissolved was the second above mentioned: Holland v. White, 120 Pa. 228.</p> <p>If there was no such jurisdiction as warranted the writ, this may be set up at any time and nothing the defendant has done will be a waiver of that right: Schuylkill Co. v. Minogue, 160 Pa. 166.</p> <p>The rules of court in Delaware county do not permit an appearance de bene esse.</p> <p>In Brock v. Brock, 18 W. N. C. 123, Mr. Justice Mitchell, then of court of common pleas in Philadelphia, in a foreign attachment case in which the rule was to set aside the service, said: “ Defendant has not appeared, and therefore is not entitled to be heard, especially upon a mere technicality.” Crowe v. Davis, 33 W. N. C. 103, and Singerly v. Dewees, 6 Pa. Dist. Rep. 92, are to the same effect.</p> <p>The 64th section of the Act of June 13, 1836, P. L. 568, is predicated upon the fact that the court had issued the writ in a proper case. If the writ is not properly issued it does not apply.</p> <p>The argument of the appellant that the defendant has made a general appearance is fallacious in that he does not distinguish between the jurisdiction of the person and the jurisdiction over the property of a person.</p> <p>The whole proceeding in the court below, so far as the defendant was concerned, was for the purpose of quashing the writ or dissolving the attachment. Nothing in the petition or the-entry of the rule shows otherwise.</p> <p>This was all that was done, and has for authority the ruling of your honorable court in Borough of Jeannette v. Roehme, 9 Pa. Superior Ct. 38. The only other question is as to the signature to the rule for depositions.</p> <p>The reason for the entry of the rule is found in section 5 of Rule 14 of the courts of Delaware county.</p> <p>Such then being the rule of court, and the rule also prohibiting appearance de bene esse, and the courts of Philadelphia, where the rules are similar, intimating that they would not hear applications of this kind without an appearance, counsel for defendant was warranted in signing the rule for depositions as it was done.</p>

<p>Appeal, No. 159, Oct. T., 1899, by respondent, from decree of C. P. Chester Co., Oct. T., 1898, No. 17, on verdict for libellant.</p> <p>This was a suit for divorce from the bonds of matrimony for desertion and was tried before Hemphill, P. J., and a jury.</p> <p>In her answer the respondent alleged that she left the residence of the libellant, but that she did not desert him; that her leaving was wholly and entirely the fault of the libellant; that he treated her in a cruel and barbarous manner, endangered her life and offered such indignities to her person as rendered her condition intolerable and life burdensome, and that after injuring and insulting her, he ordered her to leave and take her daughter with her, which she did at the time.</p> <p>At the trial the court excluded testimony offered on the part of respondent for the purpose of showing libellant’s relations with an unmarried woman and her child living in his house.</p> <p>[That libellant was in the habit of nursing the child, taking it to bed, taking the care of it that a father generally takes of a child, and taking it to its mother’s room. Objected to. . . .</p> <p>The Court: We do not think the evidence is admissible under the pleadings, and the objection is sustained.] [5]</p> <p>Defendant submitted among others the following point:</p> <p>[2. If the jury find from the evidence that Elizabeth M. Mendenhall was justified in separating from her husband by reason of the treatment she received, the verdict must be for the defendant. Answer: If you are satisfied that the treatment received by her was of the character which the act of assembly requires, and to which I have already called your attention, then you will so find for the defendant.] [4]</p> <p>The bill of exception showed the following facts as to the first assignment of error:</p> <p>[After testimony being given for plaintiff and defendant, both sides closed. Counsel for defendant, who was from Delaware county, then requested that the counsel for plaintiff open to the jury, stating the grounds upon which the plaintiff intended to rely, and stating that such was the rule in Delaware county. The court said that there was no such rule in Chester county, and told counsel for defendant to proceed with the argument, which he did. Whereas, the rule of court in Chester county upon this subject is as follows :</p> <p>“ Rule 3, sec. 10. After the evidence in a cause on trial is closed, the parties shall be entitled to address the jury by not more than two counsel on each side, and not more than three hours shall be consumed by either party, but this period may be abridged by the court in its discretion. If both parties have given evidence, the counsel having the right on the pleadings shall begin, stating explicitly the grounds on which he intends to rely, and citing such authorities as he deems pertinent. The counsel of the opposite party may then address the jury. The counsel who opened, or his colleague, may then conclude, restricting himself to enforcing the grounds previously taken, and answering the views of the opposite counsel, but when such opposite counsel shall produce no testimony, the counsel opening shall be limited to his first address.”] [1]</p> <p>The court charged the jury in part as follows :</p> <p>[It is proper for me to say to you that there is no testimony here which, hr my judgment, would justify you on the ground of cruel and barbarous treatment in rendering a verdict in favor of the defendant, .... (after referring to the testimony) and as that is the only piece of testimony that I recall, and that is a disputed question as to what did take place there, whether he did strike her or not, I say it could not justify you in finding for the defendant on the ground of cruel and barbarous treatment, and she has, as I said to you before, attempted to establish that justification on three grounds. The first one that I called your attention to, that of cruel and barbarous treatment, I have said to you under the decisions of our Supreme Court there is nothing there that would warrant a verdict in her favor.] [2]</p> <p>Verdict and decree for libellant. Respondent appealed.</p> <p>Errors assigned were (1) in refusing to require counsel for libellant to open the case, reciting bill of exceptions. (2) To portion of the judge’s charge, reciting same. (3) In omitting, in reciting the evidence of cruel and barbarous treatment and indignities, all reference to the written contract, the threat that libellant would strike respondent, through the child, and his threat in the kitchen that the next time he would strike her, etc., and that there would be a next time. (4) In answer to defendant’s second point, reciting point and answer. (5) To ruling on evidence, reciting offer and ruling.</p> <p>In Brennan’s Estate, 65 Pa. 16, the court says that courts are the best exponents of their own rules, but that it would often work the greatest injustice if they were to be allowed to disregard or violate them, and that the Supreme Court will reverse when such is the case.</p> <p>In Richards v. Richards, 37 Pa. 225, which perhaps is as strong a case as there is in the books, in asserting that one act is not enough, the Supreme Court reversed the court below, and ordered a new trial upon the point that the court was of the opinion that one act was not enough. It is pretty evident, though from the opinion of the Supreme Court that if there had been other circumstances or acts the court below should have left it to the jury.</p> <p>And in May v. May, 62 Pa. 206, this principle is again asserted, as it is in all the cases bearing upon this subject, but in none of them to which our attention has been called, has it been decided that where there are other circumstances, like the threats in this ease, has it been decided that the question as to whether the treatment is cruel and barbarous is not a question of fact for the jury. Our contention is that it is.</p> <p>This libel was "filed for desertion and the effort upon the part of the respondent in this offer was to show such circumstances as would convince the jury that though his claim was for a divorce by reason of desertion, it was really for another purpose, and also to give a reason why it was impossible for the wife to return to that household. The court declined to admit the evidence upon the ground that this reason was not set up in the pleadings: Angier v. Angier, 63 Pa. 450.</p> <p>Upon the trial of this case, the court was not referred to any such rule as is invoked now. The learned counsel from Delaware county had associated with him in the trial of the case, able counsel of the Chester county bar, of many years’ experience before its courts, who knew the practice of the courts, but did not refer the court to the written rule.</p> <p>Judge Hemphill, who tried the cause, and has been on the bench for nearly ten years, asserted that there was no such rule in Chester county; and he correctly stated the rule of practice in said courts as has existed for at least thirty years. The written rule quoted in the argument has been a dead let-' ter for at least that period. It had become obsolete, and was well understood to be such by the profession. It has passed out of the memory, both of the court and counsel, by reason of the universal practice under the unwritten rule followed in this case.</p> <p>Courts of original jurisdiction have an inherent right to establish and enforce rules to regulate their practice.</p> <p>The expediency of the rule in ordinary cases is not a question for the appellate court. The regulation of its practice is for the sound discretion of every court: Carpet Co. v. Latimer, 165 Pa. 617; McLane v. Hoffman, 164 Pa. 491; Brennan v. Ins. Co., 148 Pa. 199.</p> <p>No single act of cruelty, however severe, that comes short of endangering life, is sufficient to justify a divorce: May v. May, 62 Pa. 206; Nye’s Appeal, 126 Pa. 341; Richards v. Richards, 37 Pa. 225.</p> <p>Adultery by the wife after desertion by the husband will not affect the wife’s light to a decree of divorce: Ristine v. Ristine, 4 Rawle, 459.</p> <p>No presumption can be drawn from a presumption: Douglass v. Mitchell, 35 Pa. 440; Warren v. Commonwealth, 37 Pa. 45.</p> <p>The libel set up desertion as the cause for which the divorce was asked. The respondent by her answer made three defences : (1) Cruel and barbarous treatment, endangering her life; (2) indignities to her person which rendered her condition intolerable and life burdensome ; (3) that she left with the consent or by the orders of the libellant.</p> <p>This offer of testimony did not bear upon any of the questions raised by the pleadings, and it was therefore inadmissible on that ground.</p> <p>It. has been repeatedly held that if a wife deserts the habitation of her husband or the husband turns his wife out of doors, that such acts could only be justified by reasons which would entitle the party to a divorce: Angier v. Angier, 68 Pa. 450; Eshbaeh v. Eshbach, 23 Pa. 343; Grove’s Appeal, 37 Pa. 443; Gordon v. Gordon, 48 Pa. 226 ; Hahn v. Bealor, 132 Pa. 242.</p> <p>The offer of the testimony here did not meet this rule.</p>

<p>Evidence — Rejection not error, when effect cured by admission of opposite party.</p> <p>The rejection of evidence is not ground for reversal where by the concessions made on the trial by the opposite party and the positive instructions of the court, the party complaining had every legitimate benefit that the'evidence if admitted, would have given him.</p> <p> Erroneous ruling as to concluding argument. </p> <p>An erroneous ruling as to whom .the concluding argument shall be allowed, standing alone, does not warrant a reversal.</p> <p>Appeal — Remarles of counsel — Review —Record.</p> <p>Reversible error is not disclosed when neither of the recognized methods for bringing up for review the ruling of the court upon objection to the remarks of counsel in argument has been adopted.</p> <p>Practice, O. P. — Pleas of tender — Verdict for defendant.</p> <p>A tender is a good plea in bar and if followed up protects the defendant, the admitted sum brought into court becomes the property of the plaintiff, and the verdict goes for the defendant if no more is found to be due.</p>

<p>Insurance — Time limitation of right of action — Construction of policy— Effect of later and superadded agreements.</p> <p>The limitation of the time for the bringing of suit is a provision binding upon the parties to the policy. Such a limitation is not waived by an attached or added provision to the effect that the policy is “ subject to the same risks, valuations, privileges, conditions, assignments and mode of settlement as are, or were, or maybe assumed or adopted by the reinsured company, and to cover such property as may be protected by the said re-insured company and loss to be paid at the same time.” Such a clause does not relieve the plaintiff company from the obligation to bring suit within the twelve months next after the fire.</p> <p>Nor will the fact that the policy was canceled and payment of the return premium made, coupled with a written stipulation “ that it is understood and agreed that the defendant company is liable for all losses that may have occurred prior to this date,” operate to revoke the time stipulation. Although made after the fire in question such paper is part of the policy sued upon, and is to be so construed.</p>

<p>Appeal, No. 166, Oct. T., 1899, by plaintiff, from judgment of O. P. Clearfield Co., Dec. T., 1897, No. 401, in favor of defendant, tbe case being tried before the court without a jury.</p> <p>Feigned issue and order by the court to determine the right to money in the hands of a garnishee. Before Gordon, P. J.</p> <p>It appears from the record that the case was tried before Gordon, P. J., without a jury in accordance with the provisions of the Act of assembly of April 22, 1874, P. L. 109. The facts sufficiently appear from the opinion of the court.</p> <p>The following requests were made, inter alia, by the plaintiff for findings of fact and law:</p> <p>[Both M. I. McCreight and ~W. B. Hughes had notice and knowledge at the time said deposit was made that said money was the money of the DuBois Electric Light, Power & Heat Company. Answer: This point is refused. They had knowledge that the order on which the money was obtained from the bank liad been the property of the light company, but it had parted with its title, and the money with which the certificate of deposit to McCreight was purchased belonged to the railway company.] [1]</p> <p>[On August 6, 1897, and before any work was done under the contract between the railway company and W. B. Hughes, the street railway corporation, with all its rights, property and. franchises was sold at sheriff’s sale by the sheriff of Clearfield county, and thereafter said railway company ceased to exist or to own any railway or other property, and said W. B. Hughes never in fact performed said contract for the party with which it was made, and was never entitled to receive from said .party any compensation for the work specified in said contract to be done. Answer: This point is refused.] [2]</p> <p>[W. B. Hughes was not a bona fide holder for value and does not occupy the position of such holder. Answer: Refused.] [3]</p> <p>[The rights of the plaintiff are superior to the rights of W. B. Hughes and are prior in time, for, the plaintiff being a creditor of the corporation owning the money, said debt was in contemplation of law a lien upon said corporation’s property and assets from the time of inception of said debt, which was prior to the time of making the Hughes contract. Answer: Refused.] [4]</p> <p>[Under the seventh finding of facts, even if the light company had. the legal right to make said deposit to secure the per; formalice of the railway company’s contract, the deposit could not now be held after the railway company ceased to exist, and had ceased to exist before any work was done for it, and when in fact no work was ever actually done under said contract for said railway company. Answer : Refused.] [5]</p> <p>[The plaintiff is entitled to recover in this action. Answer : Refused.] [6]</p> <p>The court overruled plaintiff’s fifth exception, which exception and ruling thereon were as follows :</p> <p>[The court erred in its general finding of facts contained in the fourth paragraph, inasmuch as that there is no evidence in the case to show that Mr. Bailey was acting for the street railway company or for Mr. Hughes, and the undisputed evidence is that he was dealing with the light company’s property and acting for it in making the deposit in the bank, and the certificate of deposit so shows, and the finding is therefore based upon a mere supposition and in direct conflict with the evidence. Answer: After argument the within exceptions are overruled. Judgment ordered to be entered according to decision filed. Exception noted to plaintiff in each case.] [7]</p> <p>The court directed judgment in favor of defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (l, 2)-in answers to requests for findings of fact, reciting same. (3-6) In answer to plaintiff’s requests for findings of law, reciting same. (7) In overruling plaintiff’s fifth exception, reciting same. (9) In directing judgment in favor of defendant.</p> <p>We confidently ask this court to reverse the court below on its finding of fact as well as of law, notwithstanding the well settled rule that the findings of fact have the force and effect of a verdict. The reason we do this is that the findings of fact complained of are entirely unsupported by any testimony, and are in square contradiction of the facts admitted in the case on both sides. The theory adopted by the court below was one of its own formation, and was not suggested by either party during the Dial of the case.</p> <p>We take it to be the law that the property and assets of a corporation are held in trust for the payment of its debts, and its creditors have a right to pursue it into whosesoever possession it may be found, unless such person be a bona fide purchaser for value.</p> <p>This is the doctrine laid down in the case of Montgomery Web Company v. Dienelt, 133 Pa. 585. We do not understand that this doctrine is controverted by the defendant.</p> <p>We maintain that the theory upon which the court below built its opinion and decided this case has nothing at all to do with the facts or the law rightly applicable thereto.</p> <p>The fund transferred to Hughes and placed in McCreight’s hands to hold until his work was completed was not a transfer by the stockholders of the Electric Light Company to themselves, as in Montgomery Web Co. v. Dienelt, supra, but was in fact a transfer to the DuBois Traction Railway Company, and by it to Hughes.</p> <p>The difficulty with the appellant’s case is that in order to reverse the court below, it is necessary to reverse the rule of law, that fraud is not to be presumed, but must be proven, and establish a new rule, and that is, that fraud need not be, proven, but may be presumed.</p> <p>The doctrine of ultra vires when invoked for or against a corporation should not be allowed to prevail where it would defeat the ends of “ justice or work a legal wrong: ” Railway Co. v. McCarthy, 96 U. S. 258; Morris Railway Co. v. R. R. Co., 20 N. J. Eq. 542; Whitney Arms Co. v. Barlow, 63 N. Y. 62.</p> <p>The maxim omnia prsesumuntur rite esse acta applies to acts done on behalf of corporations: Taylor on Private Corporations (2d ed.), sec. 204; Yates v. Yan DeBogert, 56 N. Y. 526".</p> <p>The party alleging fraud, if the transaction is not fraudulent per se, must prove it to the satisfaction of the court and jury: Roberts v. Guernsey, 3 Grant, 237.</p> <p>There is no proof that there was no consideration passing from the traction railway company to the light company for the $700 placed in McCreight’s hands for Hughes’s benefit.</p>

Appeal, No. 126, Oct. T., 1899, by defendant, from judgment of C. P. Blair Co., March T., 1899, No. 62, on verdict for plaintiff. Assumpsit. Before Lyons, P. J., of the 41st judicial district, specially presiding. It appears from the record that the defendant contended that in the latter part of July, 1898, he contracted verbally with one P. W. Finn for certain paving and curbing. The price agreed upon was $255.10.

<p>Appeal, No. 133, Oct. T., 1899, by plaintiffs, from order of C. P. Schuylkill Co., Jan. T., 1899, No. 101, in distribution of money paid into court on a mortgage.</p> <p>In the matter of distribution of money paid into court on a mortgage. Before Bechtel, J.</p> <p>It appears from the record that the plaintiffs executed and delivered to the Anthracite Coal Company a mortgage for $10,000 on certain lands in Schuylkill county, payable in three years from its date, -which mortgage was duly recorded in the latter county. On October 19, 1896, the mortgagee assigned to defendant company. On August 14, 1896, an attachment execution issued out of common pleas, Luzerne county, for $375, with interest, against the Anthracite Coal Company, wherein the mortgagors were named as garnishees. This proceeding was not disposed of up to the time the mortgage referred to came due.</p> <p>On November 28, 1898, the petition of George W. Streng and Julia Streng was presented to the court of common pleas .of Schuylkill county, praying for leave to pay the mortgage and interest into said court under the provisions of the Act of April 3, 1851, P. L. 868, for the reason that the attachment proceeding was still pending and that the assignment of the mortgage to the Holyoke Water Power Company was not in legal form, it being alleged and shown that the acknowledgment thereto was not according to law.</p> <p>The court granted a rule to show cause why the prayer of the petitioners should not be granted and subsequently the Holyoke Water Power Company demurred to the petition. No answer was filed.</p> <p>On April 17, 1899, the petition was adjudged sufficient, and the court granted leave to pay into court within thirty days from, that date the amount claimed by the mortgagee, to wit: $10,793.75, also attorney’s commissions, if required by the mortgage, prothonotary’s percentage and all taxable costs, and upon such payment being made, satisfaction of the mortgage was ordered.</p> <p>The money was paid into court on May 16, 1899. There was paid $11,038.47, principal and interest to date of payment; costs to date, $11.10; prothonotary’s commission, $115.28; recorder’s fee for satisfaction, thirty cents; attorney’s commission on $11,038.47, $551.92.</p> <p>On May 19, 1899, George W. Streng and Julia Streng moved the court for a hearing on the question of the distribution of the money in court, specially as to the attorney’s commissions, the prothonotary’s commissions and an item of compound interest.</p> <p>After argument the court ordered that the sum of $300 be paid the mortgagees for counsel fees or commissions, and the balance of the commissions (attorney’s), $251.92, paid to the prothonotary, be paid to the mortgagors, the compound interest be returned to the mortgagors, and that the prothonotary’s percentage be paid him for his commissions, to which exception was taken by the mortgagors and this appeal taken by them.</p> <p>Error assigned was to that part of the decree that the sum of $300 be paid the mortgagees for counsel fees or commissions.</p> <p>There was no default on the part of the mortgagors as to payment of the mortgage. They were ready to pay if the obstacles in the way of paying were removed. The evidence shows they notified the mortgagees of their intention to go into court for the reasons which were subsequently given in their petition.</p> <p>On April 17,1899, the order to pay the mortgage money into court was made, and the mortgagors had thirty days within which to pay into court. No scire facias had issued on the mortgage prior to that date. On May 15, 1899, the attorney for the assignees issued a scire facias which was not served, and on May 16 the money was paid into court. It will be seen, therefore, that the scire facias was as if it had not issued at all, for two reasons, first, that it was not served, and second, that the proceedings on the petition were a bar to the issuing of a scire facias.</p> <p>Now by the terms of the mortgage commissions were not due in case of default of principal or interest, but only where the mortgagee properly issued a scire facias on the mortgage. If the mortgagees did not properly issue a scire facias on the mortgage, their right to commissions was as incomplete as if there was no provision in the mortgage for such commissions.</p> <p>It was decided by the court in Biddle v. Girard National Bank, 109 Pa. 849, that a garnishee is a disinterested stakeholder.</p> <p>It was therefore the duty of the appellees to bring the litigation to an end, so as to leave the mortgagors free to pay over the mortgage money to them when it fell due.</p> <p>It is submitted that if the contest as to the attachment execution above referred to was an incident in the distribution of the fund in court, and it was determined against the mortgagees, the costs of such contest would be properly imposed on them under the authority of Parker v. Rawle, 148 Pa. 208.</p> <p>The seal of a corporation to a mortgage is prima facie evidence that the mortgage is its act: St John’s Church v. Steinmetz, 18 Pa. 273.</p> <p>It is not necessary that an assignment of a mortgage should be in writing (Craft v. Webster, 4 Rawle, 242), and maybe assigned like any other chose in action : Horstman v. Gerker, 49 Pa. 282.</p> <p>A scire facias issued upon this mortgage was pending when the money was paid into court. The appellants were nonresi! dents of Schuylkill county, and only George W. Streng came into the county in connection with this business while pending in court, and of course service could not be made on him, and it would require two returns of nihil before judgment could be taken.</p> <p>But this is no longer a debatable question. The Supreme Court has settled it decisively and construed this statute of 1851 in cases decisively in point here.</p> <p>In Pennock v. Stewart, 104 Pa. 184, the act of 1851 received careful consideration by our present learned chief justice, and we' note the following as the result of the decision, to wit: The payment into court is a matter of right when a dispute exists as to the amount due. The whole amount claimed by the mortgagee must be paid in, together with interest the day of payment, and also attorney’s commissions, prothonotary’s percentage and costs. In short, as the mortgagor has the power to pursue the provisions of the act of 1851 at any time after the mortgage is due and before judgment upon scire facies, he shall, if he so elects and desires satisfaction to be entered, protect the mortgagee in the amount paid in, so that he shall not suffer deduction by reason of the mortgagor’s determination to have the mortgage satisfied, before the controversy as to the amount due has been determined.</p>

Appeal, No. 37, Oct. T., 1899, by plaintiff, from order and decree of C. P. Schuylkill Co., Jan. T., 1898, No. 98, in distribution. Exceptions to auditor’s report. Before Koch, J. It appears from the record that on November 23,1897, plaintiff obtained a judgment for $450, and that a fi. fa. was issued and placed in the hands of the sheriff at 10 A. M., November 27, 1897.

Appeal, No. 49, Oct. T., 1899, by plaintiff, from order of C. P. No. 4, Phila. Co., Dec. T., 1898, No. 68, refusing- judgment for want of a sufficient affidavit of defense. Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc. It appears from the record that this action was assumpsit to recover #170.75, being the amount of judgment and decree entered against defendants in the supreme judicial court of the commonwealth of Massachusetts.

Appeal, No. 46, Oct. T., 1899, by defendant, from judgment of C. P. Lancaster Co., April T., 1897, No. 12, on verdict for plaintiff. ■ Trespass.

Appeal, No. 183, Oct. T., 1899, by plaintiffs, from judgment of C. P. Berks Co., June T., 1898, No. 95, on verdict for defendants. Interpleader issue. Before Endlich, J. It appears from the record and the evidence that on February 7,1898, Zieber, Herbine & Company sold all their property to Max H. Schultze, the consideration being $1,000, the payment of certain judgments and the employment of Zieber, Herbine and Keech.

Appeal, No. 4, Jan. T., 1900, by remonstrants, from decree of Q. S. Lackawanna Co., June Sess., 1897, No. 539, incorporating the borough of Moosic. Exceptions to petition for incorporation of a borough.

Appeal, No. 29, Jan. T., 1900, by exceptants, from decree of Q. S. Lackawanna Co., Feb. Sess., 1899, No. 12, incorporating the borough of Old Forge. Exceptions to petition for borough incorporation. Before Archbald, P. J. It appears from the record that the petition of the inhabitants of the township of Old Forge was filed, praying for the incorporation of said township into a borough to be called Old Forge borough.

Appeal, No. 47, Oct. T., 1899, by Howard O. Hildebrand et al., from decree of Q. S. Delaware Co., Dec. T., 1896, incorporating the borough of Wayne. Exceptions to petition incorporating a borough.

Appeal, No. 150, Oct. T., 1899, by Frank Weckerly et al., for themselves and on behalf of their copetitioners, from decree of Q. S. Delaware Co., taxing costs, in the proceedings for the incorporation of the borough of Wayne, and directing same to be paid by petitioners. Appeal from the taxation of costs in the matter of borough incorporation.

Appeal, No. 12, March T., 1899, by defendant, from judgment of C. P. Cumberland Co., Feb. T., 1898, No. 46, on verdict for plaintiffs. Held: “ A third party who has claimed to be the .owner of goods levied on by the sheriff as the property of the .defendants in an execution, will not, on the trial of an issue framed under the sheriff’s interpleader act, be permitted to show a right to the possession of them as lessee; having made a claim to the absolute ownership, and…

Appeals, Nos. 24 and 25, Oct. T., 1899, by defendant, from judgments of C. P. No. 4, Phila. Co., March T., 1897. Nos. 790 and 791, on verdicts for plaintiffs. Trespass. Before Willson, J. It appears from the record that these two actions were tried together by agreement of all -parties. Both arose out of the overturning of a carriage and the running away of a pair of horses.

Appeal, No. 97, Oct. T., 1899, by defendant, from judgment of O. P. No. 8, Pliila. Co., June T., 1898, No. 449, in favor of plaintiff for want of a sufficient affidavit of defense. Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc.

Appeal, No. 177, Dec. T., 1899, by plaintiff, from judgment of C. P. No. 1, Pbila. Co., Sept. T., 1898, No. 945, entering nonsuit. Assumpsit. Before Brbgy, J. It appears from the record that this action was brought to recover on an accident policy for injuries suffered while in performance of plaintiff’s ordinary occupation. The following facts appear from the evidence: Rose was in the employ of one of the district surveyors of the city.

Appeal, No. 58, Oct. T., 1899, by defendant, from order of C. P. Montgomery Co., Oct. T., 1897, No. 121, making absolute rule to strike off exemption. Rule to strike off debtor’s exemption.

Appeal, No. 22, Oct. T., 1899, by-defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1898, No. 861, in favor of plaintiff for want of a sufficient affidavit of defense. .. Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc.

<p>Opening judgment — Discretion of court — Review on appeal.</p> <p>A judge on application to open a judgment acts as a chancellor and on an appeal from his refusal to so open the judgment the appellate court will only see that his discretion has been properly exercised. The appellate court will not say that in refusing to open a judgment on a mechanic’s lien the court failed in a judicious exercise of its discretionary power when by reason of laches the defendant permitted the lien creditor to incur costs •of suit and execution instead of interposing a defense or taking steps to have the lien stricken off as she of right might have done.</p>

<p>Appeal, No. 131, Oct. T., 1899, by defendant, from judgment of C. P. No. 4, Pbila. Co., March T., 1897, No. 564, on case stated in favor of plaintiff.</p> <p>Case stated. Before Arnold, P. J.</p> <p>It appears from the case stated that the action was assumpsit against J. K. Cuming upon a policy of insurance of the Philadelphia Fire Lloyds, the defendant being one of the individual signers. Part of the property covered by the policy was destroyed. Defendant denies liability under the policy by reason of the Act of February 4, 1870, P. L. 14, whiclp. prohibits the issue of policies without incorporation and declares such policies void.</p> <p>The court below entered judgment in favor of plaintiff for $139.27 on case stated, Arnold, P. J., filing an opinion which is reported in 8 Pa. Dist. Rep. 320. Defendant appealed.</p> <p>Error assigned was entry of judgment for plaintiff on case stated.</p> <p>A statute may make a contract illegal and void, although it does not expressly state that it shall be void, as where the statute merely prohibits the doing of the act, or declares that the commission of it shall make the person guilty of a misdemeanor, and there can be no question when the statute expressly says that the act is void: Mitchell v. Smith, 1 Binney, 110; s. c. 4 Dali. 269.</p> <p>Where, however, the statute which makes the contract illegal, or some other statute expressly provides that it shall be enforceable against the obligor, the illegality of the contract does not, of course, affect its validity. This is the doctrine of York County v. Small, 1 W. & S. 315, and Fowler v. Scully, 72 Pa. 456.</p> <p>The law on this subject is well stated in Whitmire v. Montgomery, 165 Pa. 253. In the opinion of Fell, J.,itis said: “The law will not lend its aid to enforce a contract made in violation of a statute, nor set aside such a contract when it has been fully executed by the parties. It refuses to aid either, and leaves them where they placed themselves.” And to this may ■be added, except that where the parties are not in pari delicto, the person injured may recover back in disaffirmance-of the contract what he has paid.</p> <p>In Taylor v. Bowers, 1 Q. B. D. 291, Meleish, L. J., said: “ If money is paid or goods delivered for an illegal purpose, the person who had so paid the money or delivered the goods may recover them .back before the illegal purpose is carried .out: but if he waits till the illegal purpose is carried out, or if he seeks to enforce the illegal transaction, in neither case can he maintain an action; the law will not allow that to be done: ” Hollingsworth on Contracts, 268.</p> <p>It is not for the defendant’s benefit that the court will not lend its aid to enforce or unravel illegal contracts, but for the sake of public policy: Holman v. Johnson, 1 Cowper, 341.</p> <p>Judge Hare, in a note to Collins v. Blantern, 1 Sm. Lead. Cas. (8th ed.) pp. 716, 753, says: “ The question is not in which case the fault appears, but whether entering judgment on the contract will tend to aid or frustrate the accomplishment of the illegal design.”</p> <p>Courts even with the consent of the defendant, will not enforce a contract in violation of a statute, although not expressly void: Fowler v. Scully, 72 Pa. 456.</p> <p>In the case at bar the illegal design is the effort to enforce a contract of indemnity against fire, between two individuals.</p> <p>The Act of February 4, 1870, P. L. 14, is constitutional : Com. v. Vrooman, 164 Pa. 306.</p> <p>A contract expressly prohibited by statute cannot, as a rule, be enforced. However, the intention of the legislature is controlling, and a contract will not be treated as void on account of a provision in a statute, unless this is necessary in order to give effect to the law according to its meaning: 2 Morawetz on Corporations, p. 625, see. 657.</p> <p>The rule is currently stated by the text writers accompanied by such modification: 27 Am. & Eng. Ency. of Law, 378.</p> <p>Under this power and duty of interpretation, exceptions to the rule have been judicially determined in many pertinent cases.</p> <p>Where the contract has been fully executed by the plaintiff, see Oil Creek R. R. v. Transportation Co., 83 Pa. 160, and Wright v. Pipe Line Co., 101 Pa. 204.</p> <p>The bearing of these cases, and others cited in the opinion of the court below is apparent when it is observed that the premiums had all been paid, and full performance rendered on the part of the appellee.</p> <p>Where the parties are not in pari delicto, see Hollingsworth on Contracts, 268, Com. v. Kendig, 2 Pa. 448, and 2 Parsons on Contracts, p. 230, sec. 764.</p> <p>A common carrier who has received goods into his possession on Sunday for transportation cannot avail himself of the plea of the illegality of the transaction in a suit against him for the value of the goods, if destroyed by fire: Powhattan S. B. Co. v. Appomatox R. R. Co., 24 How. 247, citing Mohney v. Cook, 26 Pa. 347.</p> <p>Where entering judgment will in no manner tend to aid the illegal design. This is a test question, whether entering judgment will tend to aid the illegal design: Hollingsworth on Contracts, 226; Collins v. Blantern, 1 Sm. L. C. (8th ed.) 758.</p> <p>Indeed, “ it is only when an illegal contract or transaction cannot be enforced or allowed to stand without producing the evil which the law designs to prevent, that the illegality may be pleaded or given in evidence as a bar to a suit to enforce the contract” : 1 Sm. L. C. (ed. of 1872) pt. 1, 700.</p> <p>In the present case the evil which the law is designed to prevent having been already accomplished, the right of the appellant to his plea against the enforcement of the contract does not exist.</p> <p>Where the plaintiff can establish his case without showing that he has broken the law, if he can do so, then the defendant cannot set up his own iniquity as a defense: Evans v. Dravo, 24 Pa. 62; Montefiori v. Montefiori, Wm. Blackstone, 363; Stewart v. Kramer, 6 W. 453.</p> <p>In the present instance the case stated admits the policy and presents no question as to the right of the plaintiff (appellee) to introduce it.</p> <p>Collating the authorities cited by counsel for-appellant, it will be observed that they are not in discord with the maintenance of the general rule subject to judicial construction with reference to the exceptions and qualifications above noted. For instance, Mitchell v. Smith, 1 Binn. 110, Thorne v. Ins. Co., 80 Pa. 15, and Johnson v. Hulings, 103 Pa. 498, were all cases where recovery was sought by the guilty party.</p> <p>So also Holt v. Green, 73 Pa. 198, wherein a broker sought to recover in disregard of the statute requiring him to obtain license before doing business: Seidenbender v. Charles, 4 S. & R. 151; United States v. Owens, 2 Peters, 527,538; Coppell v. Hall, 7 Wall. 542, 558, and many others to the effect that contracts may be void though not declared so if arising from prohibited transactions. Swan v. Scott, 11S. & R. 155,164, Evans v. Dravo, 24 Pa. 62, Thompson v. Brady, 10 Pa. 170, and Scott v. Duffy, 14 Pa. 18, recognizing the test whether the plaintiff can establish his case without showing that he has broken the law. Morawetz on Corporations and Hollingsworth on Contracts, to the general rule holding prohibited contracts invalid.</p> <p>The conclusion being thus reached that a prohibitive statute, with or without a declaratory clause, is to be judicially construed so as to determine and effectuate the legislative purpose, the question remains, What was the intent of the statute ?</p> <p>The Supreme Court has already answered this question in the case of Commonwealth v. Vrooman, 164 Pa. 306, wherein the intent and purview of the act was fully considered. Its purpose was to compel the incorporation of insurers for the better protection of the insured.</p> <p>Thus the whole act, including this declaration, was designed, as the Supreme Court has declared, for the benefit of the insured. The proposition on the part of the appellant is to turn it against them. The act was designed to give them greater security. It is proposed to take away that which they have. The evident purpose of the statute was to operate upon the insurer, not the insured; to compel incorporation, not to promote dishonesty ; to prohibit the issue of such policies, not to prevent recovery upon them. It would be a complete perversion of the law to so interpret it as to protect the confessed violator.</p>

<p>Statutes — Constitutional law — Miñes and mining — Act o/T893, P. L. 52.</p> <p>The title of the Act of May 15, 1893, P. L. 52, relating to bituminous coal mines and providing for the lives, health, safety and welfare of persons employed therein, does not bffend against the 3d section of article 3 of the constitution which forbids a bill to be passed containing more than one subject, which shall be clearly expressed in the title.</p> <p>There is nothing in the statute that does not relate solely to its main subject, to wit: providing for the health, safety and welfare of persons employed in bituminous mines; and there is nothing in the title to mislead one who reads it into the belief that it did not intend to provide for the care of those injured by accident.</p> <p>Statutes — Sufficiency of title — Constitutional law.</p> <p>A title to an act is sufficient if it shows that a duty is imposed to render a service for which it would reasonably and in the nature of things be expected that compensation would be made; the act is not necessarily void because the title does not declare how and by whom it is to be made.</p> <p>Mines ancl mining — Constitutional law — Bituminous coal act.</p> <p>The power of the legislature to define and classify coal mines as it has done, and to legislate for each class separately must be regarded as settled on the authority of Durkin v. Kingston Coal Co., 171 Pa. 193. The bituminous coal Act of May 15, 1893, P. L. 52, does not offend the constitution in being either local or special legislation, nor in containing more than one subject.</p>

<p>Appeal, No. 10, Feb. T., 1900, by E. H. Ashcraft et al., creditors of the assigned estate, from decree of C. P. Potter Co., June T., 1894, No. 22, confirming •exceptions to auditor’s report in distribution of tbe fund.</p> <p>Exceptions to auditor’s report distributing fund arising under tbe assigned estate of W. K. Jones. Before Morrison, J.</p> <p>It appears from tbe record that on February 28, 1890, F. H. & C. W. Goodyear purchased from William Dent a quantity of logs. There was some question about the title of these logs being in Dent. They were claimed by one G. W. Huntley. To protect themselves in the transaction the Goodyears required of and took from Dent as principal and W. K. Jones and H. J. Olmsted as sureties, a bond conditioned that if Dent shall defend the said F. H. & C. W. Goodyear in the title and in the quiet and peaceable possession of said logs, and indemnify the said second parties from all damages, by reason of, or arising from, any claims, demands, suits, costs or decrees, and shall pay all lawful costs, judgments, or recoveries that shall or may be finally had against the said F. H. & C. W. Goodyear, their agents, or employees or vendees, by reason of their taking and using said logs, and shall defend all suits or proceedings commenced or prosecuted against said F. H. & C. W. Goodyear, their agents, employees or vendees, by reason of the taking or holding of said logs, then this obligation to be null and void; otherwise to be and remain in full force and virtue.</p> <p>This bond was never entered of record.</p> <p>Trespass for alleged wrongful appropriation of the said logs was brought by Huntley against the Goodyears, and was decided in favor of the defendants. Plaintiff took an appeal and the Supreme Court reversed the court below and directed judgment in the following terms:</p> <p>“ The judgment of the court below is therefore reversed, and it is directed that the record he remitted to the court below, that an account may be taken, and plaintiff’s damages b'e assessed according to law by the referee: ” Huntley v. Goodyear, 182 Pa. 613.</p> <p>On February 23,1898, the referee, hi pursuance of this order of the court, assessed the damages to the plaintiff in the sum of $11,590.30, for which amount judgment was duly entered as of that date by the prothonotary against the defendants, F. H. & C. W. Goodyear.</p> <p>On February 24, 1894, W. K. Jones, one of the two sureties on the aforementioned bond, having become insolvent, made an assignment for the benefit of his creditors to one W. I. Lewis. Two distributions of the funds in the hands of the assignee were made on partial accounts, and duly confirmed by the court. The third partial account came up on December 17,1897, when A. R. Moore was appointed auditor to make distribution of funds in the hands of assignee, after which date an application was made for the first time by the Goodyears to participate on the part of the bond, to the amount of $10,000. They appeared before the auditor, and after giving evidence of the bond and the circumstances attending its creation, the facts and records of the action in trespass against them based on their title to the logs, the decision of the Supreme Court therein, the decision of the referee under the remittitur and the entry of judgment against them thereon for the sum of $11,590.30 by the prothonotary, and, finally, of facts going to show the insolvency of William Dent, the principal under the bond, they thereupon claimed distribution on the fund then before the auditor, and also on the two former funds.</p> <p>The auditor reported on their claim as follows:</p> <p>CONCLUSIONS ON LAW.</p> <p>1. That the $10,000 bond, on which the claim of F. H. & C. W. Goodyear was founded, was not at the date of assignment by W. K. Jones such an obligation as would support an action against the obligors.</p> <p>2. That this bond was not an obligation, at the date of the assignment, due, or surely to become due, and therefore cannot participate in the funds in the hands of the assignee.</p> <p>The auditor reported that the general creditors, among them the appellants in this case, would receive seven per cent of their claims, but refused to allow the Goodyears to participate in the fund.</p> <p>To this report of the auditor the Goodyears took exceptions, which were sustained by the court, Morrison, J., who ordered that distribution be made to the Goodyears on the bond as claimed by them.</p> <p>E. H. Ashcraft et ah, creditors of the assigned estate of W. K. Jones, appealed.</p> <p>Errors assigned among others were (4) in decreeing as follows: “We think these exceptions must be sustained. Said exceptions referred to by the court being as follows: 1. The auditor erred in not allowing the claim of the said F. H. & G. W. Goodyear to participate in the present fund and allow them their percentage on the full amount of the bond. 2. The auditor erred in not allowing said claimants their proportionate share of the^two previous funds, based on the full amount of the bond. 3. The said auditor erred in distributing F. H. & O. W. Goodyear’s proportionate share of the present fund to the other creditors of the said W. K. Jones.” (5) In ordering as follows: “The report should be referred back to the learned auditor with instructions to recognize the claim of F. H. & O. W. Goodyear to the full amount of the $10,000 bond and to make distribution to them accordingly.” (6) In finding as follows: “ That the liability of W., K. Jones upon the bond of February 28, 1890, was fixed at the date the bond was delivered.”</p> <p>It is the general rule of law, that when an assignment is made for the benefit of creditors, the rights of the creditors are fixed as of the date of the assignment: Miller’s Appeal, 35 Pa. 481; Jordan’s Appeal, 107 Pa. 75; Weinmann’s Estate, 164 Pa. 405; Potter v. Gilbert, 177 Pa. 159.</p> <p>Damages arising from breach of contract subsequently to an assignment for the benefit of creditors, whether that assignment be voluntary or be made in the course of bankruptcy or insolvency proceedings, are not provable: Yallop v. Ebers, 1 Barn. & Ad. 698.</p> <p>Similarly a landlord is not entitled to prove in bankruptcy or insolvency proceedings or under an assignment for rent accruing subsequent to the assignment: Bosler v. Kuhn, 8 W. & S. 183; Prentiss v. Kingsley, 10 Pa.-120; In re Reading Iron Works, 150 Pa. 369; Weinmann’s Estate, 164 Pa. 405.</p> <p>Likewise, the indorser of a promissory note cannot prove on it against the estate of the maker when the default occurred subsequently to the assignment, and the latter will still be liable on it after his discharge: Frost v. Carter, 1 Johns. Cas. (N. Y.) 74; Brough’s Estate, 71 Pa. 460.</p> <p>Vice versa, the holder of a promissory note, under similar circumstances cannot prove it against the estate of an insolvent indorser: Mechanics’ & Farmers’ Bank v. Capron, 15 Johns. Cas. (N. Y.) 467.</p> <p>For the same reason, a claim for damages arising from the breach of a bond cannot be proved against the estate of an insolvent surety, when the breach occurred subsequent to the assignment: Loring v. Kendall, 67 Mass. 305.</p> <p>In the distribution of a fund the general rule undoubtedly is that those only are entitled to share who have a definite demand against it, or a cause of action capable of adjustment and liquidation upon trial. Id certum est quod certum reddi potest: Beading Iron Works, 150 Pa. 369.</p> <p>The question of the character of the indebtedness payable under an assignment for benefit of creditors was first discussed in Pennsylvania in the ease of The Bank of Pennsylvania v. McCalmont, 4 Bawle, 307.</p> <p>In the case at bar the parties to the bond given to Goodyears contracted the debt the very instant they signed the bond. And this -indebtedness under the bond is just the same as the indebtedness would have been if judgment had been entered on the bond at the time the bond was given. As stated by the court below, “ we cannot agree with the doctrine that a man can make a bond of the character of the one given by Dent, •with Jones and Olmsted as sureties, and then relieve his estate from all liability thereon by making an assignment for the benefit of creditors : ” Smith’s Appeal, 74 Pa. 191; Oyster v. Short, 177 Pa. 601.</p> <p>The appellants cite in their paper-book several cases outside of Pennsylvania upon this subject, and an examination shows that there has been a variety of decisions upon the question in the different states, some holding one way, and some the other. But without going into these variances in detail, we prefer to confine our argument, so far as cases are concerned, to those of our own state.</p> <p>In the case at bar the indebtedness did undoubtedly exist before the assignment: Reading Iron Works, 150 Pa. 369.</p>

Appeal, No. 142, Oct. T., 1899, by defendant, from judgment of O. P. No. 1, Phila. Co., June T., 1898, No. 393, on verdict for plaintiff. Trespass. Before Beitler, J. It appears from the record that plaintiff complained that defendant maintained a nuisance in a livery stable erected and conducted by him on the premises adjoining plaintiff’s house.

<p>Foreign corporation — Compliance with statutes — Doing business — Burden of proof.</p> <p>When a foreign corporation seeks to enforce a contract made in this state the burden of proof is upon it to show compliance with our laws in order to recover.</p> <p>The words “ doing business ” as used in the Act of April 22, 1874, P. L. 108, are not construed to mean taking orders or making sales by samples, by agents coming into our state from another for that purpose; but where the facts disclose a contract by a foreign corporation for the delivery and storage of ice at designated places in Philadelphia without regard to its source of supply or place of manufacture, there is a doing business within the state within the meaning of the act of 1874. A transaction prohibited by that statute, and an action founded thereupon cannot be maintained.</p>

<p>Appeal, No. 163, Oct. T., 1899, by plaintiffs, from judgment of C. P. Clearfield Co., Dec. T., 1897, No. 43, in favor of defendant, non obstante veredicto.</p> <p>Assumpsit. Before Gordon, P. J.</p> <p>It appears from the record that the action was brought to recover loss sustained by refusal of defendant to comply with his contract for the purchase of standing timber which he had bought at auction.</p> <p>It appears from the evidence that plaintiffs inherited from their deceased father certain timber land, and a few months after the youngest of them became of age, they advertised the timber at public sale, and it was bought April 10,1897,' by the defendant for $5,560.</p> <p>The defendant refused to comply with his bid, whereupon, he was notified that the timber would again be put up at public sale, and that he would be held responsible for any loss. The timber was again advertised and sold to other parties, April 28, 1897, for $5,375, being $185 less than the bid of the defendant.</p> <p>This action was brought to recover the loss, and legitimate expenses connected with the resale, and resulted in a verdict for plaintiffs for $350, subject to a question of law reserved by the court.</p> <p>John Y. Rafferty, the youngest one of the defendants, just before the sale, told Dr. Currier to bid $4,500 on the property, saying if it did not bring that price, they would not sell it. Dr. Currier made some bids; the property was soon bid .to that sum, and he ceased to bid, and it was sold for $1,060 above that sum to the defendant. Other bona fide bidders bid within $5.00 of that sum. On the trial of the cause, the young man said, while on the witness stand, that he had asked Dr. Currier to bid. He did not know whether Currier had bid or not. The defendant then asked the court to rule that the bidding of Dr. Currier rendered the sale void. Plaintiffs asked the court to rule that- the bid or bids so made by Dr. Currier did not effect the legality of the sale, as the defendant admitted on the witness stand that the bids he made were not affected or influenced by the fact that Dr. Currier bid; and that he did not at any time know Dr. Currier had made any bids.</p> <p>The question as to the legal effect of Dr. Currier having bid at the request of one of the plaintiffs was reserved by the court, and all the facts submitted to the jury, who found for the plaintiffs for $350. Rules for judgment on the verdict in favor of plaintiffs, and for judgment non obstante veredicto, and for a new trial went out, and in disposing of them the court held that judgment should be entered for defendants non obstante veredicto, from which judgment plaintiffs took this appeal.</p> <p>Urrors assigned among others were (1) refusal to affirm plaintiffs’ fifth point, which point and answer are as follows: “ 5. Although it may be that Dr. Currier made bids at the sale of this timber on April 10, 1897, at the request of the plaintiffs, yet if the jury find from the evidence that it was not the purpose of the plaintiffs to practice any fraud or deception upon bidders but simply to prevent the property being knocked down much below its value, and the action of Dr. Currier did not influence or induce others to bid, and that defendant was not deceived, misled or injured by such bid or bids, it did not render the sale invalid. Answer: We affirm this point so far as it pertains to the question of actual fraud submitted to the jury. We have reserved the question whether the engagement of Dr. Currier to bid, and his acts at the sale, constituted a legal fraud under the evidence, and we therefore refuse the point bearing upon that question. But it is proper for the jury to consider these matters in connection with all the other evidence in the case in passing upon the question of actual fraud.” (2) In directing, judgment to be entered for defendant non obstante veredicto.</p> <p>The defendant having testified that he was not induced to bid by reason of Dr. Currier having bid at the sale, the defendant was bound by his contract of purchase. The fact that one of the plaintiffs told Dr. Currier to bid $4,500, and that they would not let the timber go under that price, and when it reached that price Dr. Currier quit bidding, and the property was bid to $1,060 more than the sum named, by bona fide, experienced and responsible lumbermen, there was no legal fraud in the transaction. The defendant having brought suit against the plaintiff in affirmance of the contract, and he having testified that he was not influenced in bidding by the fact that Dr. Currier had bid, he cannot make that a pretext to escajse the liability of his contract.</p> <p>We shall not ask this learned court to reverse the decisions of the Supreme Court of Pennsylvania on the subject of the employment of “ puffers ” to enhance the price of property being sold at auction, nor to infringe upon the spirit of the correct interpretation of those rulings.</p> <p>We do, however, respectfully and confidentially submit that the ruling of the learned judge in the court below in this case was erroneous, and should be reversed.</p> <p>At the trial of the cause the defendant admitted that he was not influenced in making his bids by the fact that Dr. Currier had bid. How then was he deceived, or misled thereby?</p> <p>We do not, as we have before stated, undertake to question the decisions of the Supreme Court of Pennsylvania, which decisions followed the English case of Bexwell v. Christie, Cowp. 895, and we respectfully submit that there has been no case decided in Pennsylvania which goes so far as to sustain the ruling of the learned judge of the court below in this case. In Pennock’s Appeal, 14 Pa. 446, which is the leading case on this question, Judge Gibson clearly recognizes the principle for which we contend here, the sham bidding he refers to being, in the language of that decision, “to screw up prices.” Here we have none of the “ decoy duck inspiration ” referred to in that case.</p> <p>We confidently assert and believe that we are sustained in it, that under the terms of the sale announced in this case the plaintiff had the right to say to the auctioneer, “ Don’t knock down the timber for less than #4,500,” and that there was nothing fraudulent, illegal or immoral to say to Dr. Currier “ Do not let it go for less than #4,500 ; if it is not bid above that we will not sell it but will operate it ourselves.” Pennock’s Appeal is followed by Staines v. Shore, 16 Pa. 200, which involved the auction sale of a diseased horse that died soon after the sale, at which sale there was “ puffing ” and all the tricks of the jockey.</p> <p>■ — A puffer is a person employed by an owner of property which is sold at auction to bid it up, and he does so accordingly for the purpose of raising the price upon bona fide bidders: 2 Bouvier’s Diet. 794.</p> <p>In the more recent case of Flannery v. Jones, 180 Pa. 338, this distinction is very clearly pointed out in the opinion of the court below, adopted and affirmed by the Supreme Court, and the salutary rule as to the effect of the employment of a puffer is recognized and enforced.</p> <p>That the intention or motive inducing the seller to engage a puffer, has nothing to do with the question before the court is very clearly laid down in the opinion of the Supreme Court in Pennock’s Appeal, 14 Pa. 446.</p> <p>The third position taken by appellants’ counsel, that the defendant having testified that he did nob know that Dr. Curlier was bidding, that therefore the bids made by Currier did not affect or influence him in bidding, and he has no right to rescind the sale, is not supported by a single Pennsylvania authority, as counsel for appellants very candidly admits in his argument, and we do not see how the cases of Curtis v. Aspinwall, 114 Mass. 187, Tomlinson v. Savage, 41 N. C. 430, and Reynolds v. Dechaums, 24 Tex. 174, can be reconciled with the decisions of our own Supreme Court upon this question.</p> <p>In Pennsylvania the question came before our Supreme Court as early as 1824, in the case of Steel v. Ellmaker, 11 S. & R. 86.</p> <p>This decision was followed by the case of Staines v. Shore, 16 Pa. 200, in which an attempt was made, as we have already shown, to do away with the effect of the decision in Pennock’s Appeal, by drawing a distinction in cases where genuine bids intervened, yet the same chief justice again declared the rule to be “ that the employment of a puffer must vitiate every sale in which recourse is had to it.” This was followed by the case of Yerkes v. Wilson, 81* Pa. 9, and the more recent case of Flannery v. Jones, 180 Pa. 338.</p> <p>No impartial person will say that it would have been a fraud upon bidders had young Mr. Rafferty told the auctioneer not to let the property go for less than $4,600. What difference, in effect, did it make that he told a bystander to not let it go for less than that sum, instead of telling the auctioneer to bid for him ? The sole purpose, was to prevent a sacrifice of the property, not “to screw up the price by false bids.” No one will deny that the plaintiffs had the right to stop the sale at any time, because the terms of the sale did not oblige them to sell the property if they did not see fit to do so. We are sustained by both reason and authority in our position.</p> <p>It is true we have not cited any case decided in Pennsylvania where facts have arisen similar to this case. If such case had arisen we cannot doubt but the decision would have been such as that for which we contend here. A case so barren of actual or legal fraud as this one, is not likely to often find its way into the courts. The citations we have made from Curtis v. Aspinwall, 114 Mass. 187, Bank v. Sprague, 20 N. J. Eq. 159, Tomlinson v. Savage, 41 N. C. 480, Reynolds v. Dechaums, 24 Tex. 174, and 1 Benjamin on Sales (4th Am. ed.), p. 624, seo. -717, n. 48, amply sustain the position for which we contend.</p>

<p>Powers of sheriff — Execution of process — Destruction of property.</p> <p>The law does not clothe the sheriff in the execution of any legal process with the discretionary power to take, use, appropriate, or destroy the prop- : erty of third parties without liability to compensate the owners thereof.</p> <p>Public officers — Powers and limitations of sheriff — Arrest of criminals.</p> <p>The sheriff is armed with ample powers in aid of the arrest of offenders; he may break open doors in order to follow felons and if they are killed, provided they cannot be otherwise taken, it is justifiable. But where he incurs expense or inflicts damage for the purpose of aiding him in the performance of his duties he is liable personally unless the law has provided otherwise.</p> <p>Sheriff's liability — Destruction of property.</p> <p>A sheriff in aid of the arrest of a desperate criminal burned the house in which he had sought shelter. Held, in a suit against the sheriff by the owner of the house, that as the only purpose of destroying the house was to render more easy and less dangerous the arrest, and inasmuch as the element of necessity was lacking from the situation, the sheriff was personally liable for the damage to the house.</p>

<p>Appeal, No. 128, Oct. T., 1899, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1898, No. 351, on verdict for plaintiff.</p> <p>Trespass. Before Brégy, J.</p> <p>It appears from the evidence that plaintiff boarded a western bound car on Market street near Fifty-sixth street. The route of this car by the rules and practice of the company begins at Market street ferry and proceeds westward on Market street to Sixty-third; thence northward along Sixty-third to Vine, eastward on Vine by way of Haverford road and Forty-first street to Market, and thence along Market to the ferry. By the custom of the company a passenger is permitted to begin the eastern trip at Sixtieth and Market streets, although the western trip ends at Sixtieth and Vine streets; at Fifty-eighth and Vine streets plaintiff was requested by defendant to pay fare for going east and was put off on his refusal to do so, at the middle of the square, between Fifty-eighth and Fifty-seventh street. At the trial plaintiff also introduced evidence of the ordinance of the city of Philadelphia of March 31, 1893, ordinance book, page 83, which provided, inter alia, as follows :</p> <p>“ That the said railway company shall run cars over their entire line at intervals not exceeding five minutes, between the hours of 6 and 9 A. M. and 5 and 8 p. M., and at intervals not exceeding ten minutes, at all other hours of the day, excepting between the hours of 12 midnight and 5 A. M., when they shall run at least every hour. The rate of fare to be charged for a single continuous ride over the entire line shall not exceed the present fare, excepting between midnight and 5 o’clock A. M., when it shall not exceed ten cents.”</p> <p>Defendant introduced evidence tending to show that in 1892 and 1893, prior to the ordinance, if a man started from Forty-first and Market streets to go west on Market to Sixty-third, thence north on Sixty-third street to Vine street, thence eastwardly along Vine and Haverford road to Forty-first and Haverford avenue he would have to pay ten cents. This evidence was uncontradicted. The court declined to give binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for $375. Defendant appealed.</p> <p>Error assigned among others was in refusing to give binding instructions for defendant.</p> <p>The learned court seemed to think that there was some significance in the language of the ordinance which requires that the rate of fare to be charged for a single continuous ride over the entire line should be the same as at the present time, i. e., 1893. Of course, all fares are regulated with regard to single passages, and they are also for continuous ones. A man with six children cannot carry them all for one fare: Nor can a passenger alight, transact his business, wait for the same car to come around, get upon it and proceed for one fare indefinitely. This is the only meaning of the words “ single ” and “ continuous.” The significance of the words “ ride over the entire line ” must be ascertained in the light of the rules, custom and practice which existed, particularly as those words are immediately qualified in the ordinance by the words “ shall not exceed the present fare.” The “ present fare ” over the entire line in 1893 — if “ entire line ” could be tortured into meaning both going and coming — was ten cents.</p> <p>If one fare were good for both coming and going here, then the same would be the case elsewhere, and a passenger could ride east on Market to the ferry, pass around the loop and return west to the point of starting, which is absurd. The fare requested of the plaintiff on March 29, 1896, was the “ present fare ” of 1893, and his contention, therefore, seems to be, as was stated in the beginning, vexatious and unnecessary.</p> <p>The court was correct in interpreting the ordinance of 1893 as requiring that passengers be carried at one fare, for a single continuous ride from Fifty-seven and Market, to Forty-first and Haverford avenue.</p> <p>It is an old and well settled rule that the court will lean against a corporation when interpreting a legislative contract with it: Phila. v. Ry. Co., 169 Pa. 269; Pittsburg Ry. Co. v. Bruce, 102 Pa. 23.</p> <p>We urge that there is no cause for reversing that rule in the present case.</p> <p>The effect of this provision of the ordinance, as to the West Philadelphia Passenger Railway Company, was to make the continuity of ride indicate the actual unit of charge, not the distance or direction of travel.</p> <p>While the language is so plain that no apparent improbability or inconvenience to the company could, it would seem, defeat this signification, our position is the surer because this interpretation produces a natural and familiar result. Instances readily present themselves to our minds in which passengers are carried at a rate fixed and collected at entering the vehicle, and not varied by the length of stay there. Places of amusement, as for instance the recent Exposition in this city, often charge a certain sum when the visitor is admitted, and do not increase or diminish the amount according to the length of stay.</p> <p>Our contention merely is that the charging of fares by the ride is a familiar method.</p> <p>The object of the legislature was to prevent the company from making arbitrary divisions of its line. 'Perhaps the difficulty of devising a form of language which would have served this purpose effectively, and yet have been less stringent upon the railway company, prompted the use of the language — safe at least for the protection of the public — used in the ordinance of 1893. Those words were accepted by the passenger railway company.</p>

Appeal, No. 134, Oct. T., 1899, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1896, No. 1130, on verdict for plaintiff. Trespass. Before. Held: “ Whether the attempt to leap from an electric car moving at the rate of from four to five miles an hour is contributory negligence in the passenger, may properly be declared by the court, on a motion, for a compulsory nonsuit.” There is not sufficient evidence of negligence upon the part of the defendant.

<p>Appeal, No. 60, Oct. T., 1899, by defendant, from judgment of C. P. Lancaster Co., Feb. T., 1898, No. 49, on verdict for plaintiff.</p> <p>Appeal from judgment of a justice of the peace. Before Livingston, P. J.</p> <p>It appears from the record that this was an action of 'trespass in the nature of trover and conversion for three cows and two wagons. • In the suit before the justice plaintiff claimed the actual value of the cows, and on an appeal to the common pleas he claimed $100 consequential damages in addition to his estimate of the actual value. The judgment of the justice was for $88.40. On the trial he recovered a verdict of $188.40. At the trial plaintiff having been called on his own behalf the following evidence was admitted’ under objection by defendant:</p> <p>[“ Q. After the property was taken away, of course, you did not have the use of these goods? A. No, sir; no cows there but one. Q. For that loss,^ being deprived of the use of these cows and this property, what do you estimate your damages for that? ”</p> <p>Objected to by defendant.</p> <p>The Court: What loss did you sustain, if any, by the taking of these?</p> <p>“ Q. The court asked you what your damage was ? A. Them cows would have calves, and I consider I was at a loss of $100, counting all loss, making manure and everything else. Q. Your milk? A. Milk, butter and the calves, making manure and everything else; I consider it a $100 loss. Q. You mean in addition to the $30.00 apiece ? ”</p> <p>Objected to by defendant. Admitted. Defendant excepts.</p> <p>“ A. Yes, sir.”] [1]</p> <p>Walker Drennen, a witness called for plaintiff, being on the stand, the following evidence was admitted under objection of defendant:</p> <p>[“ Q. What, Mr. Drennen, in your judgment, is the loss of your father for the deprivation of the use of these cows during this time?”</p> <p>Objected to by defendant. Admitted. Defendant excepts.</p> <p>“ A. Well, I know he has been at a great deal of inconvenience ; he has not had any cows. Q. If you know, what does milk bring there ? A. Well, the cows tested about five per cent, and these cows turned in, I believe, about $11.00 or $12.00 a month at that time. Q. During that whole season these cows were taken away? A. Were taken away from him.”] [2]</p> <p>Verdict and judgment for plaintiff for $188.40. Defendant appealed.</p> <p>Errors assigned among others were (1, 2) to ruling on evidence, reciting same.</p> <p>The error in these assignments consisted in allowing the plaintiff to prove and recover consequential damages. That is his estimated loss, after they were taken from him, of milk, butter, calves, manure, etc., which the cows might have yielded after they were taken, for some, time, which was not specified. This exceeded the jurisdiction of the justice. A justice of the peace has no jurisdiction in trespass or trover of consequential damages: Herrigas v. McGill, 1 Ashmead, 152; Masteller v. Trimbly, 6 Binney, 33; Milhauser v. Morgan, 6 Kulp, 48; Conaghan v. Rudolph, 4 Kulp, 504.</p> <p>Nothing can be recovered in court which could not have been recovered before the justice, except the intermediate interest: Wright v. Guy, 10 S. & R. 227; Harris v. Ligget, 1 W. & S. 301; Trego v. Lewis, 58 Pa. 463.</p> <p>It was error to permit the plaintiff to recover more than his demand before the justice of the peace: Grimes v. Kach, 4 Kulp, 382.</p>

<p>Appeal, No. 225, April T., 1899, by plaintiff, from order of C. P. Mercer Co., April T., 1899, No. 45, dismissing petition for mandamus on county treasurer to refund moneys paid for license fee.</p> <p>Petition for writ of alternative mandamus. Before Miller, P. J.</p> <p>It appears from the record that plaintiff presented a petition for an alternative mandamus to be issued to defendants commanding them to issue a liquor license granted by the court upon payment of $202.75 license fee, whereupon the court ordered and directed a writ of alternative mandamus to be issued as prayed for. The order also contained the following rvords:</p> <p>“ And it is further ordered that the petitioner shall pay in the full amount of the fees demanded by the said treasurer, in order to allow the issuance of the said license, pending a hearing and decision of this case, with the same force and effect, and in like manner as though the same had been paid into court, pending a decision of the case by the court; and if the case be finally decided by this court, or, in case of an appeal by the appellate court, in favor of the petitioner, then the said disputed sum of $200, mentioned in said petition, or such amount as said petitioner shall have paid in excess of the license fees required by law, shall be refunded to said petitioner, otherwise the whole of the said sum shall be retained by the said E. M. Patterson, treasurer, and applied by him as required by law.</p> <p>The answer of the defendants to the mandamus admitted that a hotel license was granted through the court of quarter sessions to the petitioner and that the said petitioner, or his attorney, tendered as payment for the said license the sum of $202.75, being $150 under the act of May 13, 1887; $50.00 under the Act. of July 30, 1897, P. L. 464, and $2.75 for the fees of the said treasurer and clerk of courts; that the tender was refused and respondents demanded $200 more than the amount so tendered, being the amount required to be paid by the special act for Mercer county approved May 24, 1871, P. L. 1108; that after the refusal of the said tender plaintiff came to respondents and voluntarily paid the additional $200, as well as the said amount tendered, in all, $402.75, and thereupon respondents issued a license to plaintiff in accordance with the order of the quarter sessions court. This was all done on the same day that the petition in this case was presented to the court. The answer further averred that although the order of court granting the alternative mandamus in this case, provides that plaintiff should pay the said gross amount and receive his license, and that the said $200 should thereafter be refunded to him, if the court should decide in this proceeding that the said additional $200 was not rightfully demanded, and the respondents now aver that the said money was not received nor said license issued in pursuance of said order of court. The respondents never refused to issue the said license upon the payment of said $402.75, but were always ready and willing so to'do.</p> <p>Respondents further averred that the said order of court, or at least that part of it which provides that in certain contin- ¡ gencies the said $200 should be refunded, was improvidently made, and was altogether void for want of power or jurisdiction in the court to make such order.</p> <p>To this answer petitioner filed the following replication t</p> <p>And now, March 14,1899, comes the above named petitioner,, and for replication to the answer filed by the said respondents,, says, that while it is true that after the refusal of said respondents to issue to the petitioner said license upon payment' of the said sum of $202.75, he, the said petitioner, paid to the said E. M. Patterson the full sum of $402.75, demanded by him, and took out his license. Your petitioner denies that the payment of said sum of $402.75 was, in any sense, voluntary payment, but avers that all of said sum in excess of the sum of $202.75, was an involuntary payment, and was made under and in pursuance of the order of said court of common pleas, made on the 13th day of February, 1899, in this case, and with the understanding on the part of your petitioner that such an amount of said sum as was in excess of the fees required by law should be refunded to him upon the determination of that matter by the court.</p> <p>Your petitioner further avers that the said E. M. Patterson accepted the said sum from your petitioner, well knowing.that same was being paid under, and in pursuance of, said order, and not as a voluntary payment.</p> <p>On March 29, 1899, the case came up to be heard on bill, answer and replication and the court refused a peremptory mandamus and also a motion on behalf of the plaintiff to refund to said P. F. Davis the sum of $200, which was paid by him in pursuance, as he claims, of the order of the court made on February 13, 1899. ' Plaintiff appealed.</p> <p>Errors assigned were (1) in the opinion filed March 29,1899, in holding that the court had refused a peremptory mandamus in this case and for the reasons therein stated. (2) In dismissing the plaintiff’s petition. (3) In refusing to direct the defendants to refund to the plaintiff the amount paid by him in excess of the legal fees, to wit: the sum of $200. (4) In holding as a reason for the refusal of the mandamus prayed for that the plaintiff had paid the full amount of license fees demanded by the defendants, and he thereupon received his license and, consequently, there was nothing before the court to be passed upon; this in view of the fact that such payment and the issuing of the license granted were both peremptorily ordered by the court. (5) In entering the following order: “ And now, March 29,1899, the motion of the petitioner for an order on E. M. Patterson, treasurer, requiring him to refund to P. F. Davis the sum of $200, which was paid by him in pursuance (as he claims) of the order of court made March 13, 1899, is refused.”</p> <p>The Act of May 24,1871, P. L. 1108, applicable to Mercer county, was repealed by the Act of May 13, 1887, P. L. 108, and hence the license fee fixed by that act cannot be collected from persons licensed to sell liquor since the act of 1887. This is clearly sustained by Com. v. McCandless, 21 W. N. C. 162, where it was held that the local Act of April 3, 1872, P. L. 804, was repealed by the act of May 13, 1887: Durr v. Com., 3 Pa. C. C. R. 525.</p> <p>The case at bar is a proper one for the exercise of the power vested in the court, and the alternative writ was properly granted: Act of June 8, 1893, P. L. 345.</p> <p>An- examination of the petition presented in this case wall show that it complies with all the requirements contained in the act of assembly, and presents the substance of a case for a mandamus, as an analysis of the admitted facts will show.</p> <p>1. The plaintiff in the manner provided by law presented his petition to the court of quarter sessions asking that he be granted a hotel license. 2. The court, in the exercise of a sound judicial discretion, granted the license prayed for in the petition, which vested in the petitioner the undoubted right to have the license granted by the court issued to him by the clerk of courts, upon payment to the county treasurer of the legal fees required by law to be paid therefor. The plaintiff tendered to the county treasurer the legal fees for such license, Avhicli were refused, and the plaintiff was thus deprived of his legal right to have a license issued to liim. 3. The petitioner is “ without other adequate and specific remedy at law.”</p> <p>In Prospect Brewdng Co.’s Petition, 127 Pa. 523, a mandamus was granted to compel the granting of a wholesale liquor license, which had been refused by the lower court.</p> <p>The right of the court to make such an order is provided for by the Act of Assembly of June 8, 1893, P. L. 345, sec. 2, which provides, “ that if the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be awarded in the first instance and directed to issue forthwith.”</p> <p>i There was no denial of the right of the plaintiff to have his license nor the power of the defendants to issue the same, but the sole objection thereto was that defendants demanded $200 in excess of the legal fees, claiming a legal right to receive the same.</p> <p>We therefore contend that the order made was a proper one, and that the contention yet remaining is as to the legal right on the part of the defendants to receive the $200 in dispute; it was properly left for subsequent determination, that it is simply an incident, a reason given by the defendants for 'refusing to obey the mandate of the court.</p> <p>We contend, therefore, that the preliminary writ granted by the court, although called an “ alternative mandamus,” was in effect a peremptory writ; that in pursuance of the order made by the court in awarding said writ, the petitioner, in good faith, [laid to the treasurer the said sum of $402.75, as directed thereby, or, in other words, he paid said sum “ with the same force and effect and in like manner as though the same had been paid into court pending a decision of this case by the court,” and with the full understanding that “ if the case be finally decided by this court, or, in case of an appeal, by the appellate court, in favor of the petitioner, then the said disputed sum of $200 mentioned in said petition, or such an amount as the said petitioner shall have paid in excess of the license fees required by law shall be refunded to the said petitioner.” Having so paid his money and to be now met with the contention that such payment was a voluntary one, and that no part of the sum paid caii be recovered in this proceeding, certainly places the petitioner in an anomalous position. That the order of court was all sufficient to exact payment by the petitioner, but powerless to compel the-return of such part of Ms money as has been wrongfully exacted, is surely a novel idea.</p> <p>In mandamus, the act whose performance is sought to be compelled, must be clearly and distinctly specified in the petition; “ the alternative writ should in general follow the language of the petition, and it should command the respondent to do the tiring or things prayed for, or show cause why he should not do so; ” and the peremptorjr writ “ should follow the language of the alternative writ,” omitting, of course, the command to show cause : 1 Brewster’s Practice, secs. 1823, 1830, 1851.</p> <p>Mandamus, like replevin, ejectment, quo warranto and the other actions, has its proper place, and proceedings under it must conform to its rules of practice, and in this no special hardship follows. The plaintiff, having made his tender, should have stood his ground, but, having chosen to recede, he merely pays the penalty common to all who make a tender and then abandon it and pay the full demand. The delays caused by hearings in the lower court and in the appellate court are matters to be met and considered by all litigants alike, and a case of this kind possesses no merits superior to other kinds of litigation.</p> <p>The order granting the alternative mandamus and providing for a return of a portion of the license fee was not a valid exercise of the power of the court, and consequently such orders did not bind the defendants.</p> <p>It is submitted that section 19 of the act of 1887 expressly saves the act of 1871 from repeal. Such was clearly the legislative intent in framing that section.</p> <p>The fairness of the act, and the necessity for the double system of fees for Mercer county were questions upon which the legislature passed in 1871; during the last twenty-seven years, and until the year 1898, it was not questioned that both systems were still in force, and we contend that the relief which the plaintiff asks, must come, if at all, from the legislature, and not from the courts.</p>

Appeal, No. 8, April T., 1899, by defendants, from order of C. P. Mercer Co., April T., 1898, No. 20, directing repayment to plaintiff of the sum of $200 paid as excessive license fees. Petition for Avrit of mandamus.

<p>Road laxo — The petition is the foundation of the record — Requisite certainty as to termini.</p> <p>In road proceedings the petition for view lies at the foundation of the record, and it must state the beginning and ending of the proposed road. The termini must be fixed and described with reasonable accuracy. If either terminus is fixed, uncertainty as to the other may be cured if the courses and distances of the road as located make the other terminus ascertainable, but where the courses and distances and one terminus are uncertain the defect is fatal.</p> <p>Road law — Rower of court to quash order to open road for fatal defects of record.</p> <p>The court may review its own record and quash the proceedings after the expiration of the term at which the order confirming the report of the viewers became absolute, although the time for the exercise of discretionary powers is passed. For fatal error apparent on the face of the record, a court may quash its own writ of execution at any time during the life of the process, and where it is apparent from the face of the record that a terminus and the courses and distances of a road are uncertain, the court may quash an order to open a road although such action is fatal to the whole proceedings.</p>

<p>Appeal, No. 130, Oct. T., 1899, by defendant, from sentence of Q. S. Northampton Co., Feb. Sess., 1899, No. 37, on verdict of guilty.</p> <p>Indictment for abortion. Before Scott, J.</p> <p>At the trial the commonwealth made an offer of evidence, which offer and ruling thereon was as follows:</p> <p>[Commonwealth proposes to prove the ante-mortem declarations of Jennie Hunter made to the witness upon the stand as dying declarations made within the last week of her life and after a declaration made by the deceased that she knew she was going to die from that sickness.</p> <p>Objected to, because dying declarations are not admissible in this case, which is an indictment for abortion causing death, and that the evidence already detailed by the witness upon the stand is to the effect that any statements made to him were made several days after she had stated to him that she did not expect to get well, and that the statement that she did not expect to get well was not repeated after that, nor in connection with any statements made as ante-mortem statements, and that her mental condition, according to the testimony of the witness, was impaired, and that her answers were “ yes ” and “ no ” to questions that he had put to her which were leading, and second, that the act of 1895 is unconstitutional and void, as it does not bring the witness face to face with the defendant, and further unconstitutional as special legislation embracing only the,crime of abortion and not having reference to all crimes in general, or the declarations of all persons dying with respect to both civil and criminal matters, and that the indictment does not charge any cause of injury under the act of 1895, which would make the dying declarations even if the statute was constitutional competent evidence, and the offer of proof does not attempt to establish the causes of the injury as required by the act of 1895, and as incompetent and irrelevant.</p> <p>The Court: This evidence would be admissible as dying declarations in a case of homicide: 1 Greenl. Ev. sec. 158; Wh. Cr. Ev. secs. 281, 286; Kilpatrick v. Com., 31 Pa. 198, 215. Whether the extension of such proof to cases of abortion under the act of 1895, is constitutional legislation is doubtful, but to be in doubt requires that it be upheld. This rule prevails whether the proceeding be civil or criminal, for it involves the integrity of the law, not its construction, and the co-ordinate branches of the government have already determined it. The proper forum for the ultimate decision of the matter is the appellate court, where it could not be heard, if the judgment of the inferior tribunals was against its validity, although if clearly unconstitutional this view could have no weight.</p> <p>This particular offense, eo nomine, first found place in the penal code of 1860, although before that time it was held to be a misdemeanor at common law to produce an abortion when the woman was not quick with child: Mills v. Com., 13 Pa. 627. But when she was quick with child, as under the section upon which this indictment is framed, it was prosecuted as homicide in one of its grades, for the death of either mother or child. Now the constitutional provision that the accused shall be entitled to be confronted with the witnesses against him is not contravened by the admission of the dying declarations of the person slain in prosecutions for homicide : Wharton’s Criminal Evidence, sec. 277; Byers v. Com., 42 Pa. 89. Why should it then be so, when the crime being the same, is but given a new and statutory name eliminating death as the subject of the charge (Railing v. Com.), with a lighter penalty, and coupled with a provision which probably did not before exist in favor of the accused, that conviction could not be supported upon such declarations unless corroborated? Rhines v. Clark, 51 Pa. 96.</p> <p>The objection that this statute is a special or local law changing the rules of evidence in a judicial proceeding presents a question that could not have arisen before the constitution of 1874, and is not without force, as it must be conceded that it does change the rule of evidence: Railing v. Com., 110 Pa. 100. But is it “ special or local law ” within, contemplation of the .'constitutional prohibition? A public prosecution concerns the whole community, and. classification permits sometimes legislation which may be general in a legal sense, although limited in its operation. By reason of the fact that the common-law rule relating to dying declarations could not be extended to any other offenses, except homicide, and such as were homicide but now by statute designated as of lower grade, it is not clear that in this respect the statute violates the constitutional requirement.</p> <p>For these reasons the objection to the admission of these declarations is overruled. Defendant excepts. Bill sealed.] [10]</p> <p>The facts sufficiently appear from the charge of the court, inter alia, as follows :</p> <p>The offense prescribed is causing abortion upon the person of Jennie Hunter, she being then and there pregnant and quick with child, in consequence of which act her death resulted. ■[I suppose we may take it for granted that if you accept the testimony of the physicians who made the post-mortem examination — I see no reason why that should not be accepted, but it is a matter entirely for you to say — that there was an abortion committed by some person upon Jennie Hunter which was the real Cause of her death. I know of no evidence that has been presented in this case that would justify the contrary conclusion, but you may perhaps be of a different opinion.] [1] It Seems to me also that it is not the subject of dispute that at the time such abortion was produced, whether by Jennie Hunter herself or by the defendant, she was pregnant and quick with Child in the sense contemplated by this statute, if you believe the fact that she had conceived already at a period of time reaching back for a period tending towards four months: Com. v. Reed, Leg. Gaz. 199.</p> <p>If you determine that an abortion was committed by somebody, and that this was the cause of death, it then becomes necessary to determine by whose agency that result was accomplished. The most direct testimony submitted on the part of the commonwealth in this case relating to that question is that Of the declarations of Jennie Hunter herself made upon two .Occasions before her death, once to Dr. Fraunfelter, and once to her father. These declarations, you will have perceived, are those of a witness who was not under oath. They are not within the ordinary class of testimony which you hear by the mouths of living witnesses produced in court and sworn in your presence. This is hearsay testimony; by the law of this state they are admissible in such eases as this, but before such statement shall be submitted to the jury as evidence the commonwealth must, by competent and satisfactory evidence, prove that such woman was of sound mind at the time such ante-mortem statements were made; and then no conviction shall be had upon the uncorroborated declaration of such woman. This kind of declarations occupies a peculiar position in the administration of justice where they are admitted from necessity; they must be what are technically called “ dying declarations ” made by the person under the belief that she is about to die, and that dissolution is imminent and pending; if such be the case, and she be of sound mind, the law assumes that at that period when all earthly concerns are fading away the solemn responsibilities about to confront the declarant are sufficient sanction to take the place of an oath. And yet in the consideration of that it is not to be forgotten that persons even approaching death are still animated by the motives and the purposes and the hopes that prevail while life was in fuller strength. Therefore, it is necessary that I should say to you that you must consider these declarations carefully, the circumstances under which they were made, and whether made when Jennie Hunter had a sound mind so as to be conscious of the situation in which she was then placed.</p> <p>[It has been determined as a preliminary matter by the court that these declarations are to be received in evidence, and that she was, prima facie, of sound mind in the sense that is contemplated by this statute, so as to make them admissible even though she may not have been in a condition entirely normal, as no person could ever be so while life was vanishing in consequence of this character of inflicted wound. But before they can receive consideration at all at your hands you must be satisfied that she knew the extreme peril of her situation, and believed death to be certain and dissolution near, that she was conscious of her surroundings, that she answered the questions responsively and intelligently with knowledge of their effect and recollection of the events.] [9]</p> <p>The law erects another safeguard for the protection of a defendant. It provides that no conviction shall be upon such declarations unless they be corroborated; and so I say to you in this case that if you accept the competency of these declarations by Jennie Hunter, before you can convict the defendant you must be satisfied that you can find in the other evidence corroboration of the statements which she made. There must be corroboration in some material part of these declarations ; it need not extend to the whole of her statement, because if you find it corroborated in certain material particulars by testimony which you are satisfied to accept you have the right to infer that her statement is true in other respects. It is necessary that you should specially understand also what this corroboration means when I say it must be in some material part. You must find corroboration of these dying declarations both with respect to the commission of the crime and with respect to the person who committed it, because even if corroborated as to the actual commission of the crime we are still not arriving at the point where we can say who was the guilty agent, unless that matter be also corroborated.</p> <p>There is the testimony of other witnesses in this cause on the part of the commonwealth : two of them are William Hunter and Oscar Kemmerer. If it be true that they went with Jennie Hunter and Bertha Fair to the house of this defendant for the purpose of having an abortion committed, then they were voluntary coworkers to accomplish that result, and Oscar Kemmerer and William Hunter would be what the law describes as1 accomplices in the commission of the crime. The law puts Jennie Hunter into the category of an accomplice by requiring that her dying declarations shall be corroborated, and if these two persons went to this place with her in the purpose to have an abortion committed, as contended by the commonwealth, then they would also be accomplices, and they would need corroboration themselves : one accomplice cannot corroborate another however many the number of accomplices who testify in a cause — there must be some independent corroboration of their statement to the extent I have indicated respecting Jennie Hunter. It is the theoiy of the defendant that they were not there for the purpose of having an abortion produced, but for the purpose only of having Jennie Hunter remain while she '• was in confinement. I have said that there must be corroboration of these dying declarations with respect both to the commission of an offense and as to the person who committed it. Do you believe that an abortion was committed .at all, whether by Jennie Hunter herself, or by the defendant? [Do you accept the testimony of these physicians who made the postmortem, that the conditions of this womb as then taken and now presented with the visible marks of injury upon it indicate that an abortion had been committed upon her, and that in consequence of that injury Jennie Hunter died? If you find that to be the fact, then it seems to me that we need no.t stop to inquire whether there is further corroboration of her dying declarations with respect to the commission of the crime of abortion; but this is a matter for you, and you are not bound by my opinion.] [2] If you accept this conclusion it is more important to inquire whether there is corroborating evidence of the dying declarations of Jennie Hunter of the fact that this defendant committed the offense. [Do you find anything in the testimony of the physicians, or otherwise, that if the injury had been inflicted upon herself for any appreciable period of time before she went to this house in Easton by a pencil, or a needle, she would not have been in that physical condition which is described by her father, if you believe him, when she left on Sunday night ? Would it be possible if she had inflicted an injury, the consequences of which were serious enough to cause the abortion, for the length of time previous that appears in this testimony, she would have been in such condition as is described by her father when she left? You have the testimony then also of the physicians who were called upon the part of the commonwealth with reference to the pain suffered after she left the defendant’s house on Wednesday night in the morning following her arrival at her home. Do you find in that testimony and these circumstances, if you so remember them, any corroboration of the fact asserted by her that if an abortion was produced it was at sometime between the period on Sunday night when she left home and on Wednesday night when she returned?] [5] It does not seem to me her statement that, she went to a certain house in Easton, which she describes, and to a certain woman, whom she also describes but does not name, requires further proof, because the defendant upon the stand herself says that it was to her house that Jennie Hunter came, and that she remained there from Sunday night until Wednesday night when she was removed. Do you find in those circumstances, if you believe them to be proven, anything to corroborate the dying declarations of Jennie Hunter that she went to the house of Mrs. Winkelman and there parted with the child in her womb ? It is necessary, I have said, to find this corroboration before any of her testimony is considered.</p> <p>There is evidence submitted upon the part of the defendant intended to convince you that this abortion was produced by-Jennie Hunter herself, and they ask you to consider her declarations made to these witnesses whom they have called upon the stand, or those for the commonwealth whom they cross-examined, that she used both a pencil and long needle for the purpose of effecting it; used them until she bled, and in that condition came to the home of the defendant. If Jennie Hunter herself produced the abortion the defendant cannot be convicted, but if her effort was unsuccessful and it was finally consummated by this defendant, it would be no excuse for her to show that Jennie Hunter also undertook it: upon that branch of the case you would be required to consider the conditions testified to by the witnesses with reference to the use of the pencil and needle and say whether she had failed. There may be corroboration in circumstances as well as in direct testimony. If Jennie Hunter had succeeded in accomplishing the abortion herself what would have been her purpose to go then to Easton to Mrs. Winkelman ? The condition that was confronting her and of which she was in apprehension would then have been removed. If successful would prostration have followed earlier «or not? [As I remember the testimony of Bertha Fair, a witness called by the defendant, although you may remember it differently and it is for you to say, she testified that two days before they came down to Easton, Jennie Hunter had declared to her that while she had used the pencil and the needle for the purpose of effecting that result it had been unsuccessful.] [3] If it had been unsuccessful then, and it was otherwise after she came to Easton and remained at the defendant’s house, as is admitted from Sunday night till Wednesday night, the commonwealth asks you to say that there could have been but one place where that abortion did take place, as she never left the defendant’s house until she went home.</p> <p>[The commonwealth points to another circumstance which they say is corroborative of these dying declarations of Jennie Hunter, in the testimony of the defendant herself when she says that it was arranged that Jennie Hunter should come to her house for the purpose of being confined in the usual way. Jennie Hunter was seventeen years of age, and if you accept the testimony, as I recall it, this foetus was from two to four months only from conception. Was it probable that, if that was her condition at this age, a person of the experience of this defendant in midwifery when she observed Jennie Hunter would be deceived in her appearance, and believe on Sunday night when she came that she was upon the point of confinement ? Is it probable that such an arrangement as that had been made when Jennie Hunter was but four months gone ? There must be the kind of corroboration I have defined, and the commonwealth claims that these circumstances are corroborative of the fact asserted that the defendant was the actual wrongdoer, together with the additional fact alleged that this defendant, when she knew there was a warrant for her, fled from the jurisdiction and was brought back upon a requisition from another state. Whether they do have that weight or not is for you to say.] [8]</p> <p>Flight from prosecution for crime is a circumstance that may be considered with all other evidence upon the question of the guilt of a party and the identity of a person accused; but whatever weight it may seem to have is for you to say upon that question in connection with any explanation given. The defendant introduces proof to which your attention has been called intended to show that her departure was quite in the ordinary course, and that it had been her purpose for some time before. Now, you will say whether you find any corroborating circumstances to the truth of the declarations of Jennie Hunter with respect to the commission of this crime of abortion by the defendant. If you fail to find that corroboration, then the statute says the defendant is entitled to be acquitted. If you find there is corroboration, then you must inquire into the declarations themselves, examine them in the same way that you would consider the testimony of a witness if produced in court upon this stand, and determine its credibility altogether.</p> <p>It is alleged by the defendant that they have shown the two statements of Jennie Hunter were inconsistent with each other • — I mean the declarations made upon these two. occasions whichi were close together, first to Dr. Fraunfelter and then to her father.. In considering the testimony of a witness produced in court your attention is frequently called to contradictory statements made,, and in so far as the contention may seem to be supported when your attention is called to them by just that much it affects the-credit of all of the evidence of that particular witness. [Is it. the fact that them were any inconsistent or contradictory statements made by Jennie Hunter to Dr. Fraunfelter, or to her father, and afterwards to Dr. Fraunfelter? Your attention has been directed to what is claimed to be so, and certainly more is. contained in the declarations to the former than to the doctor. Of course, you will understand that a witness in detailing a. history of a transaction upon two different occasions may not describe it exactly alike in both instances; it would be impossible to do that, perhaps, unless the history of it has been committed to memory; the fact that statements are not alike may, or may not, according to whether omissions or additions may be of material matter, be evidence of their falsity.] [6]</p> <p>[The defendant calls your attention to the fact that there were statements made in her dying declarations that they have proven must have been false and untrue. Your attention has been directed to the circumstance that in her declaration to her father she said that two instruments were used by the defendant upon her upon Sunday night, and that one of them remained in her person until Monday morning. The defendant has produced testimony of the physicians intended to satisfy you that a condition of things like that would be impossible, and the commonwealth, upon the other hand, in the cross-examination of those witnesses endeavor to show that some instrument if provided with certain appliances might be so used; that is only one of the circumstances which I have used for illustration appearing in the medical testimony to which the defendant directs your attention, and has elaborately discussed as showing that the statement of Jennie Hunter with respect to what took place at that house could not have been true. You will thus see the importance of considering the question of the credibility of these dying declarations, because they are, as I have said, the most direct in this case submitted upon the part of the commonwealth bearing upon the guilt of the defendant.] [7]</p> <p>The defendant also refers to the fact and has submitted testimony upon the part of the physicians intended to prove that the operation which Jennie Hunter described as being performed upon herself resulted in the death of the child, foetus, before she went to Mrs. Winkelman’s house, and if that were true, and if, as Mrs. Winkelman said, the womb was empty when she made the examination, of course, it would make no difference what the purpose of these people were, or what they attempted to do; if the womb was then empty, or the foetus dead, Jennie Hunter would not have been quick with child when she went to that house, and the defendant could not be convicted.</p> <p>11 is necessary that the commonwealth establish the guilt of the defendant beyond a reasonable doubt upon the consideration of the whole of this testimony. The defendant on her part, among other witnesses, produces herself and her daughter as to the circumstances immediately attending the introduction of Jennie Hunter into that house, and you have heard what she has described as the operations performed importing no crime. The defendant is a competent witness; you have a right, however, to consider the interest which she has in the result of a prosecution. Her daughter has no direct interest in your conclusion, but you have the right also to consider her relationship, and whether that might influence or color her testimony, and if so, to what extent. All these considerations are for you.</p> <p>A reasonable doubt is such a doubt as would cause a prudent man to hesitate and to pause before proceeding in affairs of importance relating to himself. If thejr have failed by that measure of proof, then the defendant is entitled to an acquittal; if you have no reasonable doubt, then it is just as much your duty to convict the defendant. You have in this case nothing to do with the costs.</p> <p>[Now, same day, jury directed to return for further instructions.</p> <p>Objected to. Counsel for defendant objects to any further instructions.</p> <p>Gentlemen of the jury: In referring to the testimony of Bertha Fair I suggested to you that as I remembered the testimony, although you might remember it differently, she had said that Jennie Hunter declared to her two days before they together came to Easton, that her use of the needle and the pencil had not been successful, and that she wanted to come down to Easton to get rid of her child. Since you retired I have had the stenographer examine the whole of the testimony upon that subject, and it shows that this conversation took place two days before Bertha Fair'came to Easton the first time, which would be nine days before Jennie Hunter came down, and I will have that testimony read to you so that you may see exactly for yourselves what it is in that respect.] [4] Defendant excepts to the charge of the court before verdict, and requests the same to be reduced to writing and filed of record in the cause.</p> <p>Bill sealed.</p> <p>Verdict of guilty, defendant sentenced to pay a fine of $5.00 and undergo confinement in the penitentiary for four years. Defendant appealed.</p> <p>Errors assigned were (1-9) to portions of the judge’s charge, reciting same. (10) To ruling on evidence, reciting same.</p> <p>These two specifications may be disposed of together. The error is the same in both. It is the assumption by the court below of a disputed question of fact in the evidence whether the crime of abortion had been committed at all upon Jennie Hunter, which was the cause of her death.</p> <p>Another assumption by the court is, that the puncture in the womb, which caused death, also caused abortion. No expert upon either side would say or could say that the instrument which caused the puncture also caused the abortion.</p> <p>The assumption of the crime of abortion leaves no other hypothesis than that some person other than Miss Hunter caused the puncture, and excludes the other hypothesis which arises from the infliction of the wound by her own hand.</p> <p>In the third assignment the court misdirected the jury upon a matter of fact, and then recalled the jury and made a correction, which will be found in the fourth assignment:</p> <p>In Com. v. Switzer, 134 Pa. 383, Justice Mitchell spoke of the impossibility of curing a dangerous error by correction of the trial judge.</p> <p>In Com. v. Gerade, 145 Pa. 289, Chief Justice Sterrett speaks of the submission of a question correctly and incorrectly.</p> <p>Jennie Hunter made contradictory statements in her two dying declarations. The judge apologized for these contradictions that such variations must exist in human testimony. But the Supreme Court has said differently: Com. v. Wentz, 161 Pa. 598.</p> <p>In that part of the charge contained in the seventh assignment of error the judge below disposed of the most vital portion of the defense: Com. v. Silcox, 161 Pa. 484; Goersen v. Com., 99 Pa. 388; Com. v. Goldberg, 4 Pa. Superior Ct. 142.</p> <p>The eighth assignment embraces two assumptions of fact by the court.</p> <p>The rule admitting in evidence dying declarations was originally based in England upon what was regarded as the necessity of the case, or circumstances under which it arose. It was regarded as an exception to the rule against hearsay evidence, because of the solemnity of the circumstances, under which it was made, being equal to that which is afforded by the customary oath.</p> <p>This has in many cases been considered a sufficient reason for concluding, that the constitutional provision under consideration was not intended to do away with the dying declaration rule: Hill v. Com., 2 Gratt. (Va.) 594, 607.</p> <p>In Railing v. Com., 110 Pa. 100, it was held by the Supreme Court, in an elaborate opinion, that dying declarations are only admissible when the circumstances of the death are the subject of the charge; they are not admissible in a trial for abortion even though death has ensued.</p> <p>It is, therefore, clearly established that under the law, as it existed, prior to 1895, dying declarations, for cases of abortion, were inadmissible. The legislature by Act of June 26, 1895, P. L. 387, attempted to change the law in this regard, and make such declarations admissible.</p> <p>The proof on behalf of the commonwealth showed •that Jennie Hunter, finding herself pregnant attempted to change her condition with drugs and failed. She begged her brother William Hunter to borrow the necessary money from Oscar Kemmerer and take her to Easton to have an operation performed, threatening to kill herself if he did not, and telling him she had tried a lead pencil and then it hurt and she stopped.</p> <p>Under the rule as laid down in Com. v. Railing, 110 Pa. 100, dying declarations as such were inadmissible in this state in indictments for abortion; their admissibility in homicide cases is expressly affirmed in Com. v. Railing, on the ground of the necessities of the case. The act of 1895 has extended the kind of cases in which they may be given in evidence, so as to include those in which the death of the woman follows and is caused by an operation intended to produce abortion. The Supreme Court of Indiana has held in Montgomery v. State, 3 Crirn. Law Mag. 523, that such declarations are admissible in trials for abortion. The laws of Wisconsin make the offense manslaughter, and dying declarations are admissible in that state under the common-law rule.</p> <p>The legislature of Massachusetts has thus amended its statute law and made such declarations admissible as they were at common law: Com. v. Bishop, 165 Mass. 148.</p> <p>Can an act making competent testimonjr required for the due administration of justice in criminal cases be considered either special or local ?</p> <p>Legislation is only local when it applies to a specific locality or when its operation is not extended to every locality. It can scarcely be urged that this act does not apply to every part of the state.</p> <p>Is it special ?</p> <p>It undoubtedly applies only to a certain definite crime, but it is to be remembered that this offense was formerly triable as manslaughter, and the legislature probably only intended to more accurately define it, and lessen the penalty for its commission : Report on Penal Code, 25. If the word manslaughter had been substituted for felony in the act of 1860, dying declarations would have been admissible and the act of 1895 would have been unnecessary. Its only purpose has been to restore the law to the same limits that it occupied before the decision of Com. v. Railing, so that it is really a restoration rather than a new provision. Mr. Justice Paxson in Wheeler v. Phila., 77 Pa. 338, says such legislation is not special: Opening of Ruan St., 132 Pa. 257; Bennett v. Norton, 171 Pa. 221.</p>

<p>Liquor law — Place of amusement — Description of place — Part of building — Discretion of court.</p> <p>If a building contains a place of amusement within the meaning of the Act of 1881, P. L. 162, the premises as a whole cannot be licensed; and while the mere fact that there is a place of amusement in the building does not necessarily make the whole building a place of amusement within the meaning of the act, nor make it unlawful to grant a license for the sale of liquor in a certain part thereof if there be no communication of any kind between the two places and no possible way of going from one to the other without going into the public highway, it still remains within the sound discretion of the license court to grant or refuse the license and the exercise of such discretion will not be reviewed by the appellate court.</p> <p>The refusal of the license would seem to be a wise exercise of discretion where the description of the place for which the license is applied for more aptly describes the whole building than it does any particular part of it.</p>

<p>Decedent's estate — Premiums paid, for investments — Where charged.</p> <p>The premiums paid for investments are to be charged to principal and not to income, and a trustee is not justified in -withholding- a part of the income to meet a diminution of principal which may not even take place.</p> <p>Where the will directs that “ the net income ” is to be paid to the life tenant, it- means that no deduction is to be made on account of any premiums paid for investment.</p>

<p>Appeal, No. 157, Oct. T. 1898, by city of Philadelphia, from judgment of Q. S. Phila. Co., March Term, 1897, Court No. 1, sustaining exceptions to the report of the viewers as to benefits.</p> <p>Exceptions to report of road viewers. Before Beitler, J.</p> <p>The facts sufficiently appear in the opinion of the court below, as follows:</p> <p>On April 10,1897, a jury was appointed to assess the damages for the opening of Knox street. It was continued in June, 1897, from July 10, and again on October 7, for three months from the 10th. The report was filed January 6, 1898. It assessed damages and benefits. Among those against whom benefits were assessed is William Wynne Wister, Jr., trustee. He has filed exceptions, the first of which — “ That the report of the jury is contrary to law ”• — raises the question whether the jury was regularly and lawfully continued and its report filed in accordance with law. On behalf of the exceptant it is contended that the report should have been filed in the court of quarter sessions in May, 1897, and as there was no continuance of the jury during that month its power to act was at an end.</p> <p>The general road law of June 13, 1836,. P. L. 551, provides for the laying out of roads under proceedings in the court of quarter sessions, and also for assessing the damages therefor. The 1st, 5th and 6th sections relate to the laying out of roads by “ six persons, qualified as hereinafter provided, to view the ground proposed for such road and make report of their proceedings to the respective court at the next term thereof.”</p> <p>The 3d section expressly provides that “ the viewers as aforesaid” (to lay out) “shall make report at the next term of the said court.”</p> <p>The 7th section provides for six viewers to be appointed upon petition of a property owner through whose land a public ro.ad shall be opened “ to view the premises and assess the damages, if any, which such petitioner may have sustained,” and the 8th section requires that the viewers so appointed “ shall make report in writing to the next court of quarter sessionsJ’</p> <p>Knox street was not laid out, nor its opening decreed, upon the report of viewers. It was placed upon the city plan and opened by action of the city authorities. The damages, however, in all such cases have to be assessed by viewers under the 7th section of the act of 1836. The sections of that act just quoted, requiring report to be made to the next term of the court, have been uniformly held to be mandatory. Thus it has been held that they cannot make report during the term at which they were appointed.; In re Bridge over Smithfield Creek, 6 Wh. 363; In re Appleby Manor Road, 1 Gr. 443; In re Road in Baldwin and Lower St. Clair, 36 Pa. 9 ; that they must report to the next term: In re Boyer’s Road, 3T Pa. 257; that a report made at a term succeeding the term next alter their appointment or at an adjourned term is irregular and void: In re Springbrook Road, 64 Pa. 451; that if a view cannot be had in time to report to the next term a continuance must be had: In re Baldwin and Snowden Road, 3 Gr. 62; In re Road in Salem Township, 103 Pa. 250 ; In re Chartiers’s Township Road, 48 Pa. 314; In re McConnell’s Mill Road, 32 Pa. 285; In re Charlotte Street, 23 Pa. 286; that a report cannot be confirmed nunc pro tunc: In re Road in Salem Township, supra; In re Allegheny Avenue, 3 Pa. Superior Ct. 387.</p> <p>In 1836 the terms in the quarter sessions of this county were the same as in other counties of the state. The Act of April 14, 1834, P. L. 333, sec. 46, provided that “ the courts of quarter sessions of the several counties of the commonwealth shall be holden four times in every year. They shall commence, unless it be otherwise specially provided, on the several days appointed for the commencement of the courts of common pleas' of the respective county.”</p> <p>The Act of March'13, 1867, P. L. 420, provided that “the sessions of the court of oyér'and terminer, general jail delivery, and quarter sessions of the peace for the city and county of Philadelphia shall hereafter commence on the first Monday of each month instead of the days now fixed by law for the holding of the same.”</p> <p>It would, therefore, seem plain that in all proceedings under the act of 1836, unless altered or amended as to Philadelphia by some later legislation, the viewers, whether appointed to lay out .a road or to assess damages for a road laid out, and opened by municipal action, must make report to the next court of quarter sessions, that is, within the next month following that in which they were appointed.</p> <p>An examination of the old records of this court between 1867 and 1870 discloses that most of the juries reported during the next month after their appointment. Their proceedings were evidently less protracted then than now. But in several cases a continuance was necessary, and these continuanees were granted from month to month. Thus in “ Street or road in Twenty-first ward, near Wissahickon creek,” we find that Judge Ludlow, on October 19, 1867, extended the time of the jury for filing report, “to the November term of the court of quarter sessions,” and “In re Jones street from Twentieth to Twenty-first,” the continuances were from month to month.</p> <p>Has there, however, been provided for this county any special provision saving proceedings from the effect of the act of 1867, or altering the act of 1836 ?</p> <p>By the Act of May 6, 1870, P. L. 1304, it was provided:</p> <p>“ Sec. 2. The powers of the jury appointed by said court of quarter sessions shall continue until they shall have reported on the subject-matter for which they were appointed, although a term or terms of the court may intervene.”</p> <p>This act was expressly repealed by the Act of June 6, 1873, P. L. (1874), 407, which provides that jurors in the city of Philadelphia should make their report within three months from the time of their appointment unless the time was extended by the court. Following this act our court of quarter sessions adopted Rules 11 and 17, which provides that all reports of viewers shall be filed within three months after their appointment unless the time shall be extended.</p> <p>The act of 1873 was repealed by the Act of June 26, 1895, P. L. 320. This latter act was undoubtedly intended to be a companion act to the act approved May 21, 1895, P. L. 87, which gave the jury six months for their labors. The act of 1873 need not have been repealed to give the act of May 21, 1895, full effect, but as it was no longer operative after the latter act became a law, it seemed but logical to repeal it.</p> <p>The exceptant, however, contends that the act of May 21, 1895, is unconstitutional. It is entitled, “ An act relating to jurors or viewers appointed by the courts of any. county coextensive in boundary with a city of the first class to assess damages or benefits for public or municipal improvements -requiring the jurors or viewers to complete their duties and to file the report within six months from the date of their appointment.” It enacts:</p> <p>“ Section 1. That all jurors or viewers appointed by any of the courts of any county coextensive in boundary with a city of the first class to ascertain and assess damages or benefits caused by the opening of any street or road or the changing of the grade of the same, or the erection and construction of any sewer, bridge or other municipal improvement, or the taking of private property for any public or municipal purpose or improvement, are hereby required to conclude and complete their duties and file their report in the'court in which they were appointed within six months from the date of their appointment.</p> <p>“ Sec. 2. That hereinafter, in all proceedings where the report of the said jury or viewers has been filed in any court of any county coextensive in boundary with a city of the first class .after the expiration of six months from the date of the appointment by the court of the said jury or viewers no compensation or allowance shall be given or made to said jurors or viewers for their services.”</p> <p>In In re Opening of Worth Street, 5 Dist. Rep. 231, Judge Thayer, without considering at all the question whether this act is constitutional or not, held that the courts have power to extend the time of the jury upon application made and cause shown. Upon the question whether the act is constitutional or not we are forced to the conclusion that the decision of the Supreme Court in Rúan Street, 132 Pa. 257, leaves no room for doubt. It is clearly unconstitutional. The Supreme Court there, in a decision concurred in by five of the seven judges, held that the Act of May 6, 1887, P. L. 87, providing “ a peculiar and somewhat cumbrous code of procedure in road cases for the city of Philadelphia, unlike that in use in the rest of the state,” was unconstitutional. It was contended in that case that the act of 1887 related to the “practice and procedure ” before a court and not to the court’s “ organization, jurisdiction and powers,” and that, therefore, it did not offend against article 5 of the constitution. The Supreme Court, however, stamped the act of 1887 -as special and local legislation. The opinion of Mr. Justice Williams points out the object of classification of cities, the basis on which classification rests, and what kind of legislation is and is not authorized by it. It is laid down flatly that Wheeler v. Philadelphia, 77 Pa. 338, in holding classification of cities constitutional did not authorize special or local legislation on subjects not relating to municipal affairs, and that the constitutional provisions therein referred to forbid legislation on special or local subjects not relating to the exercise of corporate powers or to corporate officers and their powers and duties.</p> <p>If the question of the constitutionality of an act similar in its provisions to the act of May 21, 1895, had been before the Supreme Court at the time Euan Street was argued, the court might have made some exception in favor of such legislation. A very strong argument in favor of the necessity of classification in the matter of the time allowed a jury or. viewers to conclude their labors and make report in reference to a street in a city of the first class might have been presented, and perhaps the principle in Wheeler v. Phila. might have been extended to save such an act. It must be remembered that in Philadelphia, the jury must first be furnished with a plan of the street, which must be a double plan showing the property lines and a profile to show the grade. The jury must not only assess damages for the taking of the ground, but for those other injuries inflicted upon the part left by the grade at which the street is opened. Many proceedings in Philadelphia could not be concluded if the jury sat every day for a month or even three months. In fact, however, the jury is generally appointed as soon as the right to a jury arises, but the official plan is rarely then ready and is generally not ready for weeks thereafter. This plan is prepared by an official in the bureau of surveys in the department of public works, and its preparation frequently requires the survey of many lots, sometimes hundreds in number, and a complete survey of the locality to complete the profile plan. For a road through thehemlock forests of the Pocono mountains ” (to borrow Chief Justice Paxson’s language in the dissenting opinion in Euan Street), “no plan at all, except one made by the jury after its view, would be necessary.” Mr. Justice Williams was of course right in saying that “ courts of justice weigh equal rights,in the scales of reason, not in those of commerce, and protect the citizen whose scanty possessions are in the country with the same jealous care as the holder of corner lots in a great city.” Yet he would, I am sure, be ready to concede that more time is necessary in determining the damages to be awarded for the taking of a part of a lot every square foot of which is worth, as at Broad and Chestnut streets, in Philadelphia, more than an acre of good farm land in any of' the populous and thrifty counties surrounding Philadelphia. While in tbe one case the jury could not take a month, if it exercised any diligence whatever in the performance of its duties, in the other case it could not conclude its labors in a month with the utmost diligence. As, however, the act of 1895 relates only to the courts of Philadelphia county, and to report of jurors and viewers in what may be termed generally “road cases,” it is both local and special, and we are constrained to hold it unconstitutional under the decision in Ruan Street.</p> <p>We reach this conclusion with much regret. We would rather in any case uphold the legislature sanctioned by the legislative and the executive departments of the government than to declare such legislation unconstitutional. We regret, too, that our fundamental law should deal so minutely with details as to prohibit such necessary and useful legislation as that in ■the act under consideration. We see no alternative, however, but to declare the act in contravention of the constitution.</p> <p>This brings us to another question and that is, did the repieal of the act of 1873, which had expressly repealed the act of 1870, revive the latter act?</p> <p>We must remember that the act of 1836 is a general act. The act of 1867 was a local act intended for another purpose. It was constitutional and it altered the time within which juries could make report. The act of 1870 repealed all limitations. It was local but constitutional. The act of 1873 repealed this act and gave us the same provisions practically as the rest of the state had, and had had under the act of 1836. The act of June, 1895, repealed the act of 1873. No objection can be made to this act of June, 1895.</p> <p>We'must bear in mind that there was evidently no intention on the part of the lawmakers to revive the act of 1870 by the repeal of the act of 1873, for just prior to the enactment of the June act in 1895 they had passed an act in May which they undoubtedly regarded as constitutional, fixing six months as the time within which the jury must make report. Without considering whether the legislature could, if it had so intended and clearly evinced that intention, have revived the act of 1870, by the repeal of the act of 1873 it is at once apparent that there was clearly no intent to revive the act of 1870. If, however, we are not to be guided by the legislative intent, but to apply hard and fast rules of interpretation in determining the ques^ tion, we are driven to the conclusion reached by Judge Rice in Com. v. Kelly, 5 Kulp, 533, in which he held that where a local or special law is repealed by another local or special law, and the latter is then repealed, the former is not revived if there is a general law governing the subject.</p> <p>It is true that in Zimmerman v. Turnpike Co., 81 * Pa. 96, the Supreme Court held that the repeal in 1868 of an Act passed April 3, 1867, P. L. 734, repealing the 5th section of an Act passed March 20, 1810, 5 Sm. L. 146, relating to a turnpike company, revived the act of 1810. In that case, however, the legislative intent to bring into life the act of 1810 was apparent, and there was no general law regulating or governing the subject to apply if the act of 1810 was not revived. The act of May, 1895, being unconstitutional, proceedings in Philadelphia are to be regulated by the act of 1836 as modified by the act of 1867, and viewers must make their report to the next court, that is, within the next month of their appointment, unless continued by the court.</p> <p>The whole subject is epitomized in the decision in In re Road in Salem Township, 103 Pa. 252, in which the opinion was written by the present chief justice. He said: “ The jurisdiction of the court of quarter sessions in road cases is purely statutory, and hence the mode of proceeding prescribed by the law should be strictly pursued, especially in all matters that are intended to affect individuals or the general public without notice. The 3d section of the general road law of 1836 requires the viewers to make their report at the next term or session of the court after their appointment. The object of this requirement is neither doubtful nor unimportant. As has been repeatedly intimated, the act means just what it says. It was intended to fix definitely a time when all parties interested may have an opportunity of examining the report with the view of excepting thereto, or taking such other action as may be deemed necessary. If for any sufficient reason the report cannot be made to the next term, the proper course is to continue the order to view and make returnable to the next succeeding term; but this must be done before the order has expired, that is, before or during the session of the court to which it is returnable. If that term is permitted to pass without the presentation of the report, or an order extending the time for making the same, the order to view becomes, ipso facto, inoperative, and with it the authority of the viewers ceases. The court itself has no power subsequently, by a nunc pro tunc order or otherwise, to resuscitate the defunct order to view. If anything further is attempted, it must be done by proceeding de novo.”</p> <p>The first exception of William Wynne Wister, Jr., trustee, is therefore sustained and the report set aside.</p> <p>City of Philadelphia appealed.</p> <p>Error assigned among others was (1) in sustaining the exception of William Wynne Wister, Jr., trustee, to the report of the jury which was, that the report of the jury was contrary to law.</p> <p>The appellant contends first that the act of June 26, 1895, does not repeal the act of June 6,1873. It will be seen that the title does not mention the act of June 6, 1873.</p> <p>The act of June 26, 1895, if it be intended as a repeal of the act of June 6, 1873, is therefore invalid and unconstitutional, because it violates the said section 3, article 3 of the constitution. Probably the purpose of the act of June 26, 1895, was to repeal the act of June 6^ 1873, but such purpose is not expressed in the title of the act. The title of the said act refers to the Acts of May 6,1870, P. L. 1304, and December 27, 1871, P. L. (1872), 1390, but makes no mention whatever of the act of June 6, 1873. No one reading the title would be notified of the subject-matter contained in the purview of the statute: Cooley’s Constitutional Limitations (6th ed.), p. 177; Dorsey’s Appeal, 72 Pa. 192; Road in Phcenixville, 109 Pa. 44. See also, Sewickley v. Sholes, 118 Pa. 165, and Phila. v. Ridge Avenue R. R. Co., 142 Pa. 484.</p> <p>2. That if the act of June 26,1895, repeals -the act of June 6, 1873, then as the latter act was a repeal of the act of May 6, 1870, the repeal of the act of 1873 revived the act of 1870. «</p> <p>The act of May 6,1870 permitted a jury to continue until its report was filed, without limitation as to time: Zimmerman v. Turnpike Co., 81* Pa. 96.</p> <p>3. If the act of 1873, and the act of 1870, is not thereby revived, the general law regulating the subject is the act of May 16, 1891.</p> <p>The Act of May 16,1891, P. L. 75, is the last general act relating to the appointment of juries and the assessment of damages. It refers to all municipalities in this commonwealth, and provides a remedy for the recovery of damages and the assessing of benefits for the opening of streets, etc. It does not require a jury to report within a specified time.</p> <p>4. The phrases “ next term,” or “ next court of quarter sessions,” as used in the act of 1836, should be construed as meaning the terms as they then existed.</p> <p>The act of 1834, made the terms in the quarter sessions quarterly. It was known to the legislature at the time of the passage of the act of 1836 that the “next term,” or “next court of quarter sessions,” meant the next quarter. The act of 1867, which changed the terms in Philadelphia county to monthly, was not intended to affect the procedure under the general road law of 1836. If that act is in force in Philadelphia county, it should he given the effect which it had at the time of its passage : Endlich on Statutes, p. 113, par. 85.</p> <p>The court could only make such an order during the three months. It could not continue the proceedings by an order nunc pro tunc actually entered thereafter : In re Salem Township, 103 Pa. 250; In re Allegheny Ave., 3 Pa. Superior Ct. 387.</p> <p>The act of May 21, 1895, providing that jurors and viewers in Philadelphia county may file their reports within six months after their appointment, is clearly unconstitutional, as a local or special law, under the decision in Rúan Street, 132 Pa. 257, and as demonstrated in the opinion of the learned judge of the court below in the present case. Hence the later act of June 26, 1895, repealing the said act of June 6, 1873, placed all proceedings of this character under the general road law of 1836, which requires reports of road juries to 'be filed, not within a fixed period of time, but at the next term of the court of quarter sessions, which in Philadelphia is the next month, the act of 1867 having changed the terms of the quarter sessions in this county, making them monthly instead of quarterly, as theretofore.</p> <p>The language of the act of 1836 is clear and explicit. A report of a road jury must, in each case, be filed at the term of the court which follows that in which the appointment of the jury is made, unless during said term a continuance is ordered.</p> <p>A repeal of the special act of 1873 could not, and did not, revive the special act of 1870 repealed by it, the general road law of 1836 remaining in force. Since the adoption of the constitution of 1874 prohibiting special legislation, the repeal of a special or local law cannot have the effect of reviving a former special law where there is a general law governing the subject. See opinion of Judge Rick in Com. v. Kelly, 5 Kulp, 533.</p> <p>To the contention of the learned counsel for appellant that the act of June 26, 1895, is unconstitutional because in its title the date of the act of June 6, 1873, is not mentioned, we reply that the title clearly indicates the purpose of the act; it is germane to the act, and in the body of the act the statute repealed (1873) is particularly described, and the date of its passage given.</p> <p>In conclusion we remark that the jurisdiction of the court of quarter sessions in road cases being purely statutory, the terms and conditions imposed by statute must be strictly complied with.</p>

Appeal, No. 187, Oct. T., 1898, by plaintiff, from order of C. P. No. 2, Phila. Co., March T., 1898, No. 354, discharging rule for judgment for-want of a sufficient affidavit of defense. Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc.

Appeal, No. 171, Oct. T., 1899, by plaintiffs, from judgment of C. P. Lancaster Co., June T., 1899, No. 46, in favor of defendants on case stated. Case stated. Before Landis, J. It appears from the case stated that J. Adam Schmidt died on February 5, 1890, leaving a last will and testament in which, inter alia, he provided as follows : TURAN v. HERZOG. Statement of Facts — Assignment of Errors. [12 Pa.

Appeal, No. 47, Jan. T., 1900, by defendant, from judgment of C. P. Luzerne Co., March T., 1896, No. 442, on verdict for plaintiff. Appeal from justice. Held: the cause of action being .the same the amendment was proper. The cause of action accrued more than six years' before the amendment, but not before the bringing of the suit. Held, the cause of action being the same, the statute of limitation was not a bar. See also Clement v. Com., 95 Pa. 107.

Appeal, No. 138, Oct. T., 1899, by plaintiff, from judgment of C. P. Schuylkill Co., Jan. T., 1894, No. 254, on verdict for plaintiff. Assumpsit. Before Lyons, P. J., of the 41st judicial disdriet, specially presiding. It appears from the record that this was an action to recover certain fees claimed to be earned by plaintiff as district attorney of Schuylkill county.

Appeal, No. 174, Oct T., 1899, by William H. H. Achuff, from order of Q. S. Phila. Co., July T., 1897, docket 44, page 381, discharging rule for an alias mandamus. Rule to show cause why alias mandamus should not issue. It appears from the record that a jury of view awarded $7,000 to William H. H. Achuff, as damages in the matter of the widening of Conshohocken avenue. The city of Philadelphia appealed from the award to the common pleas.

Appeal, No. 125, Oct. T., 1899, by defendant, from judgment of O. P. No. 4, Pbila. Co., Dec. T., 1898, No. 861, in favor of plaintiff, for want of a sufficient affidavit of defense. Rule for judgment for want of a sufficient affidavit of defense. Before tlie court in banc. It appears from the record that plaintiff sought to recover from defendant in assumpsit the sum of 11,576.68. On this amount the sum of $812.50 was admitted to be due and was paid into court.

Appeal, No. 82, April T., 1900, by plaintiff, from judgment of C. P. Erie Co., May T., 1899, No. 206, in favor of defendant, on case stated. Case stated. Before Lindsey, P. J., of the 37th judicial district, specially presiding.

Appeal, No. 252, Oct. T., 1899, by defendants, from judgment of O. P. Lancaster Co., Oct. T., 1896, No. 64, on verdict for plaintiff. Held: “ That the wife was an accommodation indorser for the husband on the draft and accommodation drawer for him on the note, and she was within the protection of the proviso of the Act of June 8,1893, P. L. 344, forbidding a married woman to become accommodation indorser, guarantor, or surety for another.” The question in the case is,…

Appeal, No. 71, Oct. T., 1899, by Clara C. McClure, from decree of O. C. Chester Co., in distribution of the estate of Mary Moore, deceased. ‘ Exceptions to auditor’s report. . Before Butler, J. It appears from the auditor’s report that decedent entered the family of the Misses Morton as a boarder, and so continued to the time of her death. When she came to them she was advanced in years and suffering from consumption of the joints.

Appeal, No. 53, Oct. T., 1899, by defendant, from judgment of Q. S. Piula. Co., Dec. Sess., 1898, discharging rule for revocation of order for support of wife. Rule to show cause why order for wife’s support should not be revoked. Before Beitlbr, J. It appears from the record that the following proceedings in the matter of desertion came up on transcript from magistrate South: “Warrant issued on the 11th day- of October, 1898, on oath of Kate Hart.

Appeal, No. 99, Oct. T., 1899, by plaintiff, from judgment of C. P. Delaware Co., June T., 1896, No. 141, on verdict for defendant. Replevin. Before Clayton, P. J. This case was before the Superior Court on appeal as reported in 6 Pa. Superior Cfc. 347, where the facts and the charge of the court are set out in full.

<p>Appeal, No. 27, March T., 1899, by defendant, from judgment of C. P. Franklin Co., April T., 1897, No. 81, on verdict for plaintiff.</p> <p>Assumpsit. Before Stewart, P. J.</p> <p>■ It appears from the record that the suit was originally brought in the name of Charles B. Brand, administrator of Jacob S. Brand, deceased, for the use of H. M. White, against T. M. Mahon, and by order of court, the style of suit was amended so that the legal plaintiff should be the commonwealth to the use ■of the burgess and town council of the borough of Chambers-burg and of the school district of the borough of Chambersburg, now for tbe use of H. M. White et al.</p> <p>The equitable plaintiffs were the sureties on the bond of Jacob ■S. Brand, against whom judgment had been recovered for the .amount of taxes for which Jacob S. Brand, the collector, had not settled, including taxes upon the seated lands of Martha M. Mahon.</p> <p>The facts in detail sufficiently appear in the opinion of the ■court.</p> <p>Defendant submitted among others the following points :</p> <p>[1. The record as it now stands amended is as follows: The ■commonwealth of Pennsylvania, to the use of the burgess and town council of the borough of Chambersburg, and of the school •district of the borough of Chambersburg, and now to the use ■of H. M. White, W. J. Zacharias, D. A. Orr, Van T. Haulman, Jno. R. Orr, W. H. Bricker, D. S. Flack, George Zullinger, W. Scott Flack, D. M.Sheller and A. J. White, v. T. M. Mahon, executor of the last will and testament of Martha M. Mahon, •deceased. Such action cannot be maintained, and the verdict must be for defendant, (1) because no statute provides for .such common-law action to enforce the plaintiffs’ demand; (2) the statutes of this commonwealth having provided in the cases of boroughs and school districts certain special meth-ods for the collection of taxes, viz: by distress, such remedy must be strictly pursued; and a common-law action cannot be maintained, except as provided by the act of assembly approved April 11, 1848, and then only in the name of the collector of taxes or his personal representatives. Answer: For the present I will instruct you directly to the contrary in this, but I reserve the question of law here stated in this point for further consideration, and if upon full consideration I am convinced that the law is correctly stated in this point, then, inasmuch as that would prevent the plaintiffs’ recovery, judgment will be entered for the defendant non obstante veredicto.] [2]</p> <p>[2. The statute of limitations is a bar to the recovery in this action, and the verdict must be for the defendant. Answer: I decline to so instruct you, and say that the statute of limitations does not prevent the plaintiffs’.recovery in this case.] [3]</p> <p>[5. Taxes not being a debt and not arising from any contract expressed or implied, but being purely a creature of statutory provisions, the plaintiffs cannot recover any interest on any unpaid taxes. Answer: I decline to instruct you as requested here. I refuse this point. In answer to it I instruct you that the plaintiffs are entitled to recover interest on the-money paid by them for the taxes which should have been paid-by Mrs. Mahon from the time judgment was obtained against them or they paid the debt. The taxes do not bear interest, but the plaintiffs are entitled to recover interest from the time they paid the debt.</p> <p>So, gentlemen, there being no difficulties hi the way of the plaintiffs’ recovery arising from the questions presented, and the defendant not having shown that these taxes were paid by him, the payment testified to by him to Mrs. Chambers not being in discharge of Mrs. Mahon’s liability for the taxes, there remains but one thing to do, and that is to render a verdict for the plaintiffs’ demand, which is as follows: For the taxes which were assessed against Mrs. Mahon and which remained unpaid at the time the judgment was paid against the sureties, to wit:' the sum of $175.30. The judgment having been obtained against them on December 14,1896, they are entitled to recover interest upon that sum from that date to the present time, which is $18.40, making the total amount due the plaintiffs $193.70, and for that sum you will render your verdict. [5] :</p> <p>Plaintiffs submitted the following point and answer:</p> <p>[That upon the testimony of T. M. Mahon, the only witness who undertakes to testify to any payment of the taxes in suit, there was no such payment of these taxes as will avail the defendant in this action. Answer: Affirmed.] [6]</p> <p>Verdict and judgment for plaintiff for $193.70, with interest from September 13, 1898. Defendant appealed.</p> <p>Errors assigned among others were (1) In allowing plaintiff’s amendment by the substitution of the commonwealth of Pennsylvania as legal plaintiff. (2, 3, 5) In refusing to affirm defendant’s first, second and fifth points, reciting same. (6) In affirming plaintiffs’ point, reciting same. (7) In directing a verdict for plaintiffs. (9) In directing judgment to be entered for plaintiffs upon the reserved point, and in not directing judgment to be entered for defendant non obstante veredicto.</p> <p>If the commonwealth is stricken from the record the statute of limitations would be a bar as against the borough and school district.</p> <p>Whilst the maxim nullum tempus occurrit regi protects the commonwealth from lapse of time, yet this immunity does not extend to subordinate divisions of' the state: Rush Township v. County, 100 Pa. 356.</p> <p>Where under the Act of April 11, 1848, P. L. 517, sec. 3, the right to employ a common-law action to recover taxes is conferred upon the collector after the expiration of his warrant, it has been held that such right of action is barred in six years after the same accrues: Wickersham v. Russell, 51 Pa. 71.</p> <p>The present right of action, if there is any, accrued to the borough and school district on August 1, 1890, when the taxes were levied and became payable. This suit was brought February. 26, 1897.</p> <p>The right of the use plaintiffs to maintain a common-law action for these borough and school taxes in the name either of the commonwealth or of the municipality is flatly denied.</p> <p>1. Because taxes are not such a debt arising out of contract, express or implied, for which a common-law action can he maintained in the absence of a statute expressly authorizing a recovery by that method.</p> <p>2. Because the statutes relating to borough and school taxes have provided a special method for their collection, viz : by distress upon the goods of the delinquent taxpayer, and such remedy must be strictly pursued and is exclusive of all others.</p> <p>In Shaw v. Peckett, 26 Yt. 482, it is said: “ The assessment of taxes does not create a debt that can be enforced by suit or upon which a promise to pay interest can be implied. It is a proceeding in invitum: ” City of Camden v. Allen, 26 N. J. Eq. 398 • Lane County v. Oregon, 74 U. S. 71.</p> <p>As the learned court below says, in his opinion upon the point reserved, the right of the commonwealth or a municipality to maintain a common-law action for taxes has never been decided by the Supreme Court of Pennsylvania. But in our sister states authorities abound, and they almost without exception support the view taken by the appellant.</p> <p>Although, as we have said, our Supreme Court has never passed upon this question, yet a dictum on the subject may be found in Phila. Assn. v. Wood, 39- Pa. 73, 84, where Low-bib, C. J., says: “ If this imposition may be properly called a tax, then ive seriously deny the authority of the legislature to impose upon the courts the duties of tax collector, and especially so when the tax is for private account and not for the public treasury.”</p> <p>In Schied’s Appeal, 7 Pa. C. C. 282, Mayeb, P. J., in an able and concise opinion upholds the position of the appellant, and, whilst we do not cite it as an authority, we respectfully recommend it to the consideration of this court.</p> <p>It is apparent from these several acts of assembly that the method contemplated, and the only method, for the .collection of borough and school taxes is by distress and sale of the goods and chattels of the delinquent taxpayer, or in case sufficient goods and chattels cannot be found, by talcing the body of the taxpayer. There can no longer be any doubt that where a special statutory remedy is given it is exclusive : Meurer’s Appeal, 119 Pa. 115, 130; Warren v. Steer, 118 Pa. 529. If Brand had, at the time of the agreement with Mr. Mahon, the right of property in these taxes, or if subsequently they ever became his, he had a right to do with them as he pleased, and to relieve Mrs. Mahon of them if he chose. In this aspect of the case, if the action was brought in the name of Charles B. Brand, as legal plaintiff, the case should be sent to the jury.</p> <p>Having resisted the right of the plaintiffs to recover in the name of the administrator of the collector, they now complain of, and assign for error, the action of the court in permitting the amendment which their own objection brought about. In other words, they would deny the right of the plaintiffs to recover in any form of action whatever.</p> <p>That the amendment was properly allowed is set at rest beyond all controversy by the following cases: Patton v. R. R. Co., 96 Pa. 169; Seipel v. R. R. Co., 129 Pa. 425; Collins v. Barnes, 130 Pa. 356; Shaffer v. Eichert, 132 Pa. 285.</p> <p>The right of the tax collector, or his personal representative, to sue for taxes, after the expiration of the warrant, under the provisions of the act of April 11, 1848, is not dependent upon the question as to whether or not he has paid or accounted for the taxes to the municipality. He is chargeable with them as soon as the duplicate passes into his hands, and his right to sue for the same under the act of assembly is an absolute right which can be taken away by nothing except the exoneration of the taxpayer from the payment of the taxes, by the proper authorities. Nor does the payment by the bondsmen relieve either the collector or his estate from liability. His right of action against the taxpayer remains after the payment of the taxes, whether such payment be made by himself, his legal representative, or his bondsmen; and just as he or his legal representative can maintain an action after payment by themselves or by the bondsmen, so the bondsmen, after having paid the municipalitjq may maintain an action to recover from the taxpayer in the name of the collector of his legal representative as the legal plaintiff, as fully and effectually as the collector himself or his legal representative could do: Wallace’s Est., 59 Pa. 401; Boltz’s Est., 133 Pa. 77.</p> <p>If the appellant thinks that the sort of arrangement which he describes amounts to a payment of taxes, we would respectfully refer him to the provisions of the act of assembly of June 3,1885, P. L. 72, providing for the punishment of defaulting tax collectors, for a better understanding of the view which the law takes of such transactions. Such arrangements are not only void as against public policy, but also as being against the direct provisions of the statute laws of the state of Pennsylvania.</p> <p>We doubt whether ever before a case came before this Court so utterly and absolutely barren of merit as is the case at bar. There is here no pretense of such payment of these taxes as the law will, for a moment, recognize. Admittedly they never were paid, and this is simply an attempt on the part of this appellant to escape his share of the public burden by technical and unmeritorious defenses.</p> <p>As is said by Judge Beitler in Philadelphia v. Wallace, 7 Pa. Dist. Pep. 721: “ If he escapes payment the amount he owes must be, next year, imposed on the other taxpayers. He will escape, but what he owes the rest of the citizens will have to make up. We should, therefore, rather hunt for principles to compel him to perform his duty as a citizen, than to take from his shoulders a burden he should bear, and put it on the rest of the citizens, who have already discharged the duty they owe.”</p>

Appeal, No. 58, April T., 1900, by defendants, from judgment of C. P. No. 1, Allegheny Co., June T., 1899, No. 21, in favor of plaintiff for want of a sufficient affidavit of defense. Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc.

Appeal, No. 48, Jan. T., 1900, by defendant, from sentence of Q. S. Lackawanna Co., Oct. T., 1899, No. 245, on verdict of guilty. Indictment for libel. Before Edwards, J. It appears from the record that Richard Little, editor and proprietor of the Scrantonian, was indicted for criminal libel against Ezra H. Ripple, then serving as postmaster of Scranton. A true bill was also found against M. J. O’Toole.

Appeal, No. 160, Oct. T., 1899, by George W. Smith, trustee of Levi Smith, relator, from decree of C. P. Northumberland Co., Feb. T., 1888, No. 140, dismissing exceptions to master’s report. Petition to supersede and determine an inquisition in lunacy. Before Savidge, P. J. It appears that on November 23,1885, Levi Smith was found by verdict of a jury to be a lunatic.