Volume 13 — Pennsylvania Superior Court Reports

Appeal, No. 83, Oct. T., 1899, by defendants, from judgment of O. P. No. 4, Phila. Co., Sept. T., 1898, No. 397, in favor of plaintiff for want of a sufficient affidavit of defense. Opinion by Oblady, J. 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 $196,96. Defendants appealed.

Appeal, No. 160, Oct. T., 1899, by plaintiff, from order of C. P. No. 4, Phila. Co., Dec. T., 1898, No. 439, refusing judgment for want of a sufficient affidavit of defense as to defendant Patterson, and sustaining demurrer of defendant Maag. Opinion by Oblady, J. Demurrer to statement and rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 136, Oct. T., 1899, by de- No. 1184, M. L. D. on verdict for plaintiff. fendants from judgment of C. P. No. 4, Phila. Co., Sept. T., 1896, Opinion by Orlady, J. Sci. fa. sur mechanic’s lien. It appears from the record that plaintiff’s claim was for $86.50 for a debt for terra-cotta materials furnished to and supplied for and towards the erection and construction of and on the credit of a building at the northeast corner of 50th and Arch streets.

Appeal, No. 168, Oct. T., 1899, by defendant, from sentence of Q. S. Lebanon Co., Sept. Sess., 1899, No. 1, on verdict of guilty. Opinion by Orlady, J. Indictment for rape. It appears from, the record that the court left the question tq the jury and that the evidence substantially consisted of the • contradictory statements of the prosecutrix and the defendant. No points were presented by defendant and no requests for special instruction made.

Appeal, No. 31, Oct. T., 899, by defendant, from judgment of C. P. Blair Co., Jan. T., 1898, No. 285, on verdict for plaintiff. Opinion by Orlady, J. Trespass. It appears from tbe uncontradicted evidence of the case that Samuel D. Hines hired from plaintiff a buggy; that on October 1, 1897, he was driving in the buggy with two ladies westwardly on Sixth avenue in Altoona, towards Thirteenth street.

Appeal, No. 59, Oct. T., 1899, by-defendant, from judgment of C. P. Northampton Co., July T., 1897, No. 9, on verdict for plaintiff. Opinion by Beaver, J. Assumpsit. It appears from the record that Alex. Stainer obtained a policy of insurance from defendant company for |800 on his house aild $200 on his furniture.

Appeal, No. 31, March T., 1899, by Jonathan Heagy, guardian of Mary Alberta Emanuel, from decree of O. C. Dauphin Co., sustaining auditor’s report. Opinion by W. D. Porter, J. Exceptions to auditor’s report. It appears from the record- that Jonathan Heagy became guardian of Mary Alberta Emanuel.

Appeal, No. 52, Jan. T., 1900, by-plaintiff, from judgment of C. P. Columbia Co., Dec. T., 1898, No. 9, for defendant, on case tried before the court without a jury. Opinion by Mitchell, J. Assumpsit. It appears from tbe evidence that plaintiff was elected principal of the Centralia school for the term of three years.

Appeal, No. 50, Jan. T., 1900, by-defendants, from judgment of C. P. Wayne Co., March T., 1899, No. 7, for plaintiff. Opinion by Rice, P. J. Appeal from justice of peace. It appears from the record that this was an appeal from a justice of-the peace, and that afterwards, by agreement of counsel, it was made an action of ejectment, and submitted under the provisions of the act of April 22, 1874, for trial by the court.

Appeal, No. 1, Feb. T., 1900, by defendant, from decree of C. P. Lycoming Co., March T., 1898, No. 551, granting a writ of mandamus execution to the commissioners of Lycoming county for the payment of a certain balance due plaintiff as coroner. Opinion by W. W. Porter, J. Petition by plaintiff for mandamus execution. Before Mayer, P. J., of the 25th judicial district, specially presiding.

Appeal No. 20, Jan. T., 1900, by plaintiffs, from decree of C. P. Wayne Co., Dec. T., 1891, No. 1, in partition distributing proceeds of real esate. Opinion by W. W. Porter, J. Decree sustaining exceptions to master’s report in partition and distributing proceeds accordingly.

Appeal, No. 38, Jan. T., 1900, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1898, No. 1433, on verdict for plaintiff. Opinion by Beaver, J. Assumpsit. The facts sufficiently appear in the opinion of the court.

Appeal, No. 115, Oct. T., 1899, by plaintiff, from decree of C. P. Montgomery Co., Oct. T., 1898, No. 3, dismissing plaintiffs’ bill in equity. Opinion by Beaveb, J. Bill for an injunction. The facts sufficiently appear in the opinion of the court. Error assigned among others was (16) in dismissing plaintiffs’ bill.

Appeal, No. 189, Oct. T., 1898, by defendant, from judgment of C. P. Lancaster Co., Oct. T., 1894, No. 53, on verdict for plaintiffs. Opinion by Orlady, J. Appeal from judgment of justice of the peace. It appears from the record that this was an appeal by defendant .from the judgment of a justice of the peace, in an action for the collection of road taxes laid in January, 1894.

Appeal, No. 176, Oct. T., 1899, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T., 1897, No. 872, on verdict for defendant. Opinion by Orlady, J. Trespass for personal injuries. The facts sufficiently appear in the opinion of the court. The court directed the jury to find a verdict for defendant. Verdict and judgment for defendant. Plaintiff appealed. Error assigned among others was in giving binding instruction for defendant.

<p>Appeal, No. 69, April T., 1899, by-defendant, from judgment of C. P. Westmoreland Co., May T., 1895, No. 1020, on verdict for plaintiff.</p> <p>Opinion by W. D. Porter, J.</p> <p>Assumpsit upon a stock subscription.</p> <p>The facts are fully stated in the opinion of the court.</p> <p>The trial court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $220.26. Defendant appealed.</p> <p>Errors assigned were (1) in giving binding instructions for plaintiff. (2) Ruling on evidence as stated in the opinion of the court.</p>

<p>Appeal, No. 110, April T., 1899, by plaintiff, from order of C. P. Washington Co., Nov. T., 1896, No. 35, making absolute a rule to strike off judgment.</p> <p>Opinion by W. D. Porter, J.</p> <p>Rule to strike off judgment.</p> <p>The facts are fully stated in the opinion of the court.</p> <p>Error assigned was in making absolute a rule to strike off judgment.</p>

<p>Appeal, No. 148, April T., 1899, by R. C. McIlvaine, from judgment of C. P. Washington Co., Nov. T., 1897, No. 112, on verdict for plaintiff.</p> <p>Opinion by W. D. Pobteb, J.</p> <p>Trespass for an alleged illegal sale of personal property.</p> <p>The facts appear in the opinion of the oourt.</p> <p>The court charged in part as follows :</p> <p>Now, gentlemen of the jury, it is undoubtedly the law of this state, and it is a very wise law, — it is said in an early case to be the magna charta of the law of Pennsylvania on the subject of actual and legal frauds in the transfer of chattels, — that one of you is the acknowledged, reputed and real owner of personal chattels, if you are financially embarrassed, or for any consideration, transfer that property by a bill of sale to your neighbor whom you may owe, and he accepts that transfer of title, but allows you to keep in your possession, without a transfer of possession, the various chattels or items of personal property, stock, that he is known to 'have owned, — that is what is called in law a legal fraud on your creditors, and they may come on, notwithstanding those facts, and seize that property under their writ and take it out of your possession and sell it and retain it in law as your property, which they have taken under execution. The transaction as between you and the neighbor to whom you gave a bill of sale and who allowed you to retain the property, is valid and binding in law as between yourselves, but it is recognized as against third parties and other creditors of yours as a fraud in law, although, as we said, the transaction between you and your neighbor is perfectly right and proper, which takes it out of the category of fraud in fact. If it was a bogus transaction between yourselves, — was without consideration, or value, but done to defeat creditors, it would be a fraud in fact. But because property, personal chattels particularly, are. of such a movable nature, and, we may say, capable of manual delivery and change of possession, in order that the channels of business in that line may not be disturbed or interrupted, and that men may know how they are dealing one with another in that class of property, personal chattels, the law has laid down a strict rule, and makes it the duty of the court to say, when the facts of a case are as in the illustration I have just used, to cover a case of that kind — make it incumbent upon the court to say to" the jury that that is a fraud in law and take the case from the jury, which we were asked to do yesterday in this case by the learned counsel for the defense when he made his motion for a compulsory nonsuit.</p> <p>[There is a line of cases, gentlemen of the jury, in the books, which say that that rule, referring to the rule I have just given to you, in one of which Justice Paxsox says, in Evans v. Scott, 89 Pa. 136, “ there was a time when this ruling might not have been error; ” that is, the learned judge below having ruled that a transfer under any circumstances where actual possession of the property was not taken, no matter what the character of the property was, was a fraud in law against creditors. “There was a time,” he says, “when this ruling might not have been error. But there is a line of authorities which to some extent has modified the doctrine of those cases. There are many instances in which from the necessity of the case there can only be a constructive delivery of possession. In such cases the jury must decide whether there is fraud in fact under proper instructions from the court. The question should have been submitted to the jury whether the change of possession was actual and bona fide, not pretended, deceptive and collusive, and whether such change of possession was all that could reasonably be expected of the vendor (that would be J ones in this case), taking into view the character and situation of the property, and the relations of the parties,” that would be Huffman and his wife. So, gentlemen of the jury, we might read to you a number of cases making exceptions to the rule, but this one states the principle which we think should control the court, and has controlled the court, in submitting the question to you, whether or not the transfer of this property by bill of sale here by Jones to Anna May Huffman, the plaintiff in this case, which at one time was A. Mcl. Huffman’s property, as has been testified to, was in good faith, was a bona fide transaction and not pretended, deceptive and collusive, and whether such change of possession was all that could be expected of the vendor, taking into view the character and situation of the property and the relation of the parties. And in another case it is laid down as the rule, gentlemen, that a change in the location of the property is not always essential to protect the property against the creditors of the vendor. If the purchase was in good faith and for a valuable consideration, followed by acts intended to transfer the property as well as the title, and the vendee assumed such control of the property as to reasonably indicate a change of ownership, the delivery of possession cannot, as a matter of law, be held insufficient. A case under such circumstances should go to the jury to find whether the sale was in good faith or merely colorable.] [7]</p> <p>********</p> <p>[So if your verdict should be for the plaintiff in this case, it would simply be for $255, with interest from September 80, 1897, when the property was sold and taken away. The amount here claimed is $255.35, as the property sold, and Mr. Wright testified that he returned from twenty-five to thirty-five cents to Mrs. Huffman, as surplus after paying the costs. Of course, gentlemen of the jury, if your verdict is for the defendants, you simply return your verdict for the defendants. For the plaintiff it would be for $255, with interest from September 30,1897, and add it into the verdict and not return it separate, because there is no dispute that the property which passed by a bill of sale from A. Mcl. Huffman to Alexander, and Alexander to J ones, and Jones to his daughter, is the identical property which was sold, a portion of it was sold, and reported in this vendue paper.] [8]</p> <p>Defendant’s points and the answers thereto among others were as follows :</p> <p>[1. The claimant having admitted that the property in dispute remained in the possession of her husband (defendant in the execution) and was never delivered to Alexander & Company, the purchaser, through whom she derived her title, the property being susceptible of actual delivery, said Alexander & Company, took no title which would be good as against creditors of her husband, and hence could not pass, either mediately or immediately, any better title than they had gained, and could not pass to her, title good as against her husband’s creditors. The verdict therefore must be for the defendants. Answer: Under the undisputed facts of this case, this point is refused. It states but a portion of a single transaction.] [1]</p> <p>[3. It being conceded that there was no actual delivery and change of possession of the property in dispute from A. Mcl. Huffman to Alexander & Company, the bill of sale was ineffectual to pass the title of said property as against R. C. Mcllvaine, a creditor of said Huffman, and the verdict of the jury must be for the defendants. Answer: Under the undisputed facts of this case, this point is refused. It states but a portion of a single transaction.] [2]</p> <p>[4. The plaintiff, claiming the property in dispute as a gift from her father, Noah Jones, must sho.w a title complete in her father as against her husband’s creditors ; and, as no actual delivery and change of possession of said property to either Alexander & Company, or said Jones, is claimed, neither said property nor any title to it ever passed to Noah Jones as against R. C. Mcllvaine, one of said creditors, and the verdict of the jury must be for the defendants. Answer : The question raised by this point must be submitted to tbe jury. A change in the location of the property is not always essential to protect the property against the creditors .of the vendor. If the purchase was in good faith, and for a valuable consideration, followed by acts intended to transfer the possession as well as the title, and the vendee assumed such control of the property as to reasonably indicate a change of ownership, the delivery of possession cannot, as a matter of law, be held insufficient. The case under such circumstances must go to the jury to find whether the sale was in good faith or merely colorable, and therefore that point would be refused.] [8]</p> <p>[5. If the jury find from all the evidence that there was never any actual delivery and change of possession of the property in dispute, from A. Mcl. Huffman to Alexander & Company, accompanying the bill of sale, then said bill of sale was ineffectual to pass said property or any title thereto, as against R. C. Mc-Ilvaine, a creditor of said Huffman, and the verdict of the jury must be for the defendants. Answer: This point is refused as it states but a part of a single transaction between the parties.] [4]</p> <p>[6. If the jury find from all the evidence that the plaintiff claims the property in dispute as a gift from her father, Noah Jones ; that the only source of title thereto in said Jones is the bill of sale to Alexander & Company, assigned to said Jones; and that there was never any actual delivery and change of possession of said property from A. Mcl. Huffman to either Alexander & Company, or Noah Jones, accompanying said bill of sale, then neither said property nor any title thereto ever passed to said Jones, and the plaintiff never had any title to said property, as against R. C. Mcllvaine, a creditor of her husband, A. Mcl. Huffman, and the verdict of the jury must be for the defendants. Answer: Refused. In determining the kind of possession necessary to be given, regard must be had, not only to the character of the property, but also to the’ nature of the transaction, the position of the parties and the intended use of it. No such change of possession as will defeat the fair and honest object of the parties is required: Evans v. Scott, 89 Pa. 136; Crawford v. Davis, 99 Pa. 576; McClure v. Forney, 107 Pa. 414; Cessna v. Nimick, 113 Pa. 70; Renninger v. Spatz, 128 Pa. 524.] [5]</p> <p>[8. Under all the evidence, the verdict of the jury must be for the defendants. Answer : Refused.] [6]</p>

<p>Appeal, No. 205, April T., 1899, by plaintiff, from order of C. P. No. 2, Allegheny Co., April T., 1897, No. 168, refusing to take off nonsuit.</p> <p>Opinion by W. D. Porter, J.</p> <p>Assumpsit for money had and received.</p>

<p>Actions — Warrant of arrest — Gertiorari—Acts of July 12,1842, and, May 9, 1889.</p> <p>A certiorari in warrant of arrest proceedings under the Act of July 12, 1842, P. L. 339, brings tip nothing but what appears on the record, and the evidence taken on the hearing is not part of the record. The reviewing power of the Superior Court extends no further in such cases than to see that the judge has kept within the limits of his jurisdiction, and has exercised it with regularity according to law. This revisory jurisdiction has not been enlarged by the Act of May 9, 1889, P. L. 158, providing that all appellate proceedings shall be taken by an appeal.</p> <p>If the affidavit was sufficient to justify the warrant the action of the court below must stand.</p> <p>Actions — Warrant of arrest — Venue — Jurisdiction, G. P. — Trusts and trustees — Act of July 8, 1885.</p> <p>Where defendant received money in Ohio as executor and trustee, and afterward moved to Pennsylvania, he can be sued in Pennsylvania for the money which he has neither accounted for nor paid over. The requirements of the Act of July 8, 1885, P. L. 269, limiting the issue of warrants of arrest to the county where the cause of action arises, or the judgment shall have been entered, means, in such a case as this, the county where the defendant resides and the suit against him has been brought. The causé of action arises in the jurisdiction in which the defendant can be legally sued for his recovery.</p>

<p>Appeal, No. 48, Oct. T., 1899, by W. S. Harris, administrator, from decree of O. C. Chester Co., dismissing petition to refer bach to auditor a report made by him and duly confirmed.</p> <p>Opinion by Orlady, P. J.</p> <p>Petition to refer auditor’s report bach to consider allowance of collateral inheritance tax.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Error assigned was the dismissal of the petition.</p>

<p>Criminal law — Arson—Burning factory to defraud insurance compar nies — Act of March 31, 1860, P. L. 382, sec. 139.</p> <p>Defendant was charged in an indictment containing three counts, (1) with feloniously setting fire to a factory; (2) with feloniously attempting to set fire to a factory; (3) with burning a factory with intent to defraud certain named insurance companies. The indictment was found in the court of quarter sessions. Without a motion either to quash or to require the commonwealth to elect on which count defendant should be tried, a general plea of not guilty was entered and a general verdict of guilty was returned by the jury. On a motion for a new trial and to arrest judgment the verdict was set aside as to the first and second counts, because they were exclusively triable in the court of oyer and terminer; the motion to arrest judgment' on the third count was overruled and the defendant sentenced on that count. Held,, that the defendant was not deprived of any statutory privilege, and that after remaining silent when he should have spoken it was too late, after verdict on a count unquestionably good, for him to complain of the action of the court in limiting the verdict to that count.</p>

Appeal, No. 31, April T., 1899, by defendants, from judgment of C. P. Lawrence Co., March T., 1897, No. 89, on verdict for plaintiff. Opinion by W. D. Porter, J. Assumpsit upon a bond of suretyship. The facts appear in the opinion of the court.

Appeal, No. 57, April T., 1899, by defendant, from judgment of C. P. Mercer Co., Jan. T., 1897, No. 136, on verdict for plaintiffs. Opinion by W. D. Porter, J. Assumpsit for loss of goods. The facts appear in the opinion of the court. Defendant’s sixth point and the answer thereto were as follows : [6. Under the law and the evidence in this case the verdict of the jury should be in favor of defendant. Answer: Refused.] [5] Verdict and judgment for plaintiffs for 1251.27.

<p>Appeal, No. 219, April T., 1899, by plaintiff, from order of C. P. Lawrence Co., March T., 1898, No. 38, refusing to take off nonsuit.</p> <p>Opinion by W. D. Porter, J.</p> <p>Scire, facias sur mechanic’s lien.</p> <p>The facts are fully stated in the opinion of the court. .</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 35, Oct. T., 1899, by defendant, from judgment of O. P. No, 4, Phila. Co., Sept. T., 1896, No. 454, on verdict for plaintiff.</p> <p>Opinion by Orlady, J.</p> <p>Assumpsit.</p> <p>From the record it appears that plaintiff was a real estate expert and had been engaged to testify in a suit against the city of Philadelphia for damages caused by the construction of a sewer. The engagement was originally made by Mr. Freeston who had been employed by defendant (counsel for the landowners) as an expert and to prepare plans and employ other experts. Plaintiff testified before the road jury. For this testimony he sent in a bill for $75.00. He testified to the following conversation with the defendant, alleged to have occurred before the trial in court:</p> <p>“ I told him that I did not propose to go into court to testify in these cases where the cases were taken upon a speculative basis, that I could not afford to waste my time that way, and that before I would go into court to testify at all, that he must give me some guarantee that I would be paid for the services rendered, not only in this matter, but in the matter before the road jury. He said that he would do that, and the same day called me in another case, for which he has since paid me.” This conversation was denied by defendant.</p> <p>Other facts appear in the opinion of the court and in the following portion of the charge of the trial court:</p> <p>[The plaintiff claims that the defendant undertook to pay him for his services, not, as I understand it, technically, that he guaranteed that payment — that is, to pay if somebody else did not, but that he undertook to pay for them. You are to determine the meaning of the language used by the witness— what it meant in the connection and in the manner in which it was uttered. If tins was a technical guaranty, that is, a promise on the part of the defendant to pay the bill if somebody else did not, then the plaintiff has failed to show the step taken on his behalf against the principal or original employer, if there was such a person, in order to hold the guarantor responsible.] [1] * * * * * * ■ * *</p> <p>[The first question for you to take up, it seems to me, is: Did or did not the defendant, Mr. Eyre, agree to pay this bill ? You have the testimony on one side and you have the testimony on the other. Mr. Eyre distinctly denies, as I understand his testimony, that he made any promise of the sort. He says that his arrangement was made with a man by the name of Freeston, who was here as a witness, and that he did not employ Mr. Freeston to be his agent, but employed him to be the expert, and that, so far as Mr. Freeston’s act of requesting anybody else to justify in the case, that was something for Mr. Freeston to attend to, and not for Mr. Eyre to be responsible for. Mr. Pessano, the plaintiff, admits that Mr. Freeston was the first man who spoke to him on the subject, and, as I understand it, hie had no personal dealings with Mr. Eyre in regard to the matter until after the services had been rendered before the jury, until the first bill, as he claims, for $75.00, had been incurred, and then it was he said he came into contact with Mr. Eyre, and had the conversation with him which he claims to have been an understanding on Mr. Eyre’s part to pay the bill. He says he declined to go any more unless Mr. Eyre would undertake to pay him, not only for what he had done, but for what was to come. If Mr. Eyre did, under those circumstances, undertake to pay the bill — for the past as well as for future services — the promise would be obligatory; but if he made no such promise— if the plaintiff is mistaken in that — then there would be no liability on the part of the defendant. That is a question of fact for you to settle in the evidence. I do not think it necessary for me to enlarge upon it. It is a plain question with a very sharp contradiction of the witnesses on the point.] [2]</p> <p>Plaintiff’s points and the answers thereto among others were as follows: .'</p> <p>[1. If from the evidence the jury believe that the plaintiff was employed by the defendant as an expert witness, through the agency of one Freeston, and that at the time of said employment plaintiff made inquiry as to the defendant’s connection with the case, and was subsequently instructed to render his bill to the defendant, made out in defendant’s name, and did so render it, and that the defendant received said bill and retained it in his possession without objection, and on the contrary stated to the plaintiff that it would be paid when the case was tried in the court of common pleas, the jury are entitled to infer that the plaintiff was employed by the defendant on his individual responsibility, and that by his acts he has recognized a legal liability for the plaintiff’s compensation. Answer: There is too much involved in that point for me to affirm it as it is stated. I think I have stated to you somewhat more accurately what the law is upon that point. You are to take all the circumstances which are embraced in the point and all other evidence in the case which bears upon it, and then determine whether or not, in your opinion, the defendant did undertake any such obligation.] [B]</p> <p>[2. Even if the jury should find that the plaintiff agreed to look to Freeston for his compensation for the testimony given and services rendered before tbe jury of view, yet if he subsequently notified the defendant that he would look to him personally for payment in the matter, and defendant assented to the arrangement and agreed to pay the services thereafter to be rendered, defendant is liable for the plaintiff’s compensation for services as an expert witness in court of common pleas No. 2. Answer: That is correct.] [4]</p> <p>Defendant’s points and the answers thereto among others were as follows:</p> <p>[2. It being admitted by the plaintiff that he knew that the defendant was acting as counsel for his clients, and there being no evidence of an absolute and unconditional promise on the part of the defendant to pay the plaintiff for the services to be rendered by him to defendant’s clients, the verdict of the jury must be for the defendant. Answer: That I decline, because it asks me to give you definite instructions as to what your verdict must be. You are to take that as a question of fact to be decided, as I have already told you. If Eyre was acting and •understood to be acting, had a right to be understood as acting, merely as the representative of his clients, not undertaking a personal responsibility, your verdict ought to be for the defendant.] [5]</p> <p>[3. The plaintiff having testified that the defendant undertook and agreed to be personally responsible for and liable to plaintiff for his fees or compensation as an expert witness in the said actions in which the defendant was employed as counsel, and there being no evidence that the plaintiff has exhausted his remedies against the defendant’s clients, or taken any steps to collect his fees from them, the verdict of the jury must be for the defendant. Answer: I decline so to instruct you. Upon that point I have said to you in my general charge all that is needed. I said to you then, and I repeat it, that if any promise which the defendant made was simply a promise to become responsible for somebody else paying money, if that was all the promise there was, then the plaintiff has not pursued the steps necessary to enable him to hold the defendant for the failure to keep such a promise.] [6]</p> <p>[4. The law requires that a guarantee for the payment of a debt of another or the promise to be responsible for the debt of another shall be in. writing where the amount due exceeds the sum of §20.00, and there being no evidence before the jury that the alleged promises of the defendant was in writing, the verdict of the jury must be for the defendant. Answer: That depends altogether upon the question which I have already stated to you, as'to whether this was a direct promise or an assumption of an original obligation on the part of the defendant, or whether it was a promise to pay what somebody else was primarily bound to pay.] [7]</p> <p>[7. Under all the evidence, the verdict of the jury must be for the defendant. Answer: I decline that point.] [8]</p> <p>Verdict and judgment for plaintiff for §112.50. Defendant appealed.</p> <p>Errors assigned were (1-8) above instructions, quoting them.</p>

<p>Taxes — Scire facias sur claim — Lien—Judgment.</p> <p>The lien of registered taxes on real estate is lost unless a scire facias sur claim is issued before the expiration of five years from the 1st day of January following the year for which the taxes were assessed; but where the lien filed comprises taxes for more than one year, and the lien.of the taxes for some of the years was lost before the issuance of the sci. fa., after judgment is obtained, it cannot be divided, and that relating to the invalid years be stricken off.</p> <p>Equity — Opening judgment — Tax claim.</p> <p>An application to strike off so much of a judgment on a tax claim as relates to the taxes for some of the years specified in the claim because they had lost their lien before the sci. fa. was issued, will be regarded as a motion to open the judgment, and unless there be some equity which appeals to a chancellor, the application will be refused. Where the taxes are still due, though the lien be gone, they may be collected from the owner, or from the property, if still in the same hands, and a judgment for them will not be opened or stricken off.</p>

<p>Suretyship — Administration bond — Discharge of sureties.</p> <p>Sureties on an administration bond are not discharged by the payment of the entire amount of the penal sum named in the bond to one distributee on suit brought, without waiting for the levy of an execution, or even the rendition of a judgment. Such action will not avail them as a defense to the suit of another distributee.</p>

<p>Appeal, No. 98, Oct. T., 1899, by Harry Dettenmaier and Anna Peacock, from decree of O. O. Phila. Co., Jan. T., 1899, No. 301, sustaining exceptions to the adjudication of tbe account of the administrator of the estate of Theresa Dettenmaier, deceased.</p> <p>Opinion by W. W. Porter, J.</p> <p>Exceptions to adjudication.</p> <p>It appears from the record that Theresa Dettenmaier was the mother of Harry Dettenmaier, Anna Peacock and Mary Cahill; that she lived for some years prior to her death in the home of the last named, who was of age and who supported her mother, and, in the illness which culminated in the death of her mother nursed her, and in other ways rendered her attention. It was shown that on several occasions decedent had expressed a. desire that when she was gone Mary Cahill should receive all her belongings, which consisted of a deposit in a savings bank. It was also shown that Mrs. Cahill had charge of the deposit book, and had drawn at her mother’s instance, certain moneys which were essential for the expenses incurred by her illness.</p> <p>At the adjudication before Febg-uson, J., Mary Cahill claimed |4.00 a week for sixty-eight weeks for board and nursing her mother. She also claimed the balance of the estate, 1158.08, as a gift.</p> <p>One witness testified to a conversation with the decedent, inter alia, as follows :</p> <p>“ Q. Do you remember just exactly what her mother (the decedent) said? A. She often came and saw me, and she all the time says, ‘Her only help is Mary.’ No one would look after her. Q. Did she promise to pay Mary for taking care of her ? A. The last time I saw her, about a week before her death, I was there every night, and she says, ‘ she sent Mary for getting the money in bank; ’ she said, ‘ I want Mary shall take all out, and Mary would not do it, for Henry and Anna promised me they never will make Mary trouble.’ That is what Mrs. Dettenmaier said the last time I saw her, ‘ Henry and Anna promised me, they never will make Mary trouble.’ ”</p> <p>A brother-in-law of decedent testified also:</p> <p>“ I have known my sister-in-law for forty-eight years. When I came to visit her she told me o'ften, she says, ‘ My daughter Mary Cahill, she treats me so nice.’ She told me ‘ she never gave me a bad look in her life,’ and she told me ‘ I couldn’t never reward her for the good service she has done for me, many a night setting up all night when I would be very low.’ She told me that ‘ my other two children — sometimes they don’t come for two or three weeks to see me.’ Q. Did she say that she had promised to pay her anything for taking care of her ? A. She didn’t tell me that. She said she couldn’t reward her for what she done for her, and she could never reward her too much for what she had done for her. Q. Was Mrs. Cahill ever present when she said that ? A. No, nobody there but myself.”</p> <p>Another witness, one Katherine Miller, testified as follows:</p> <p>“ Q. Did you ever hear her (the decedent) say anything about recompensing her daughter, Mary Cahill, for her care of her during.her illness ? A. She said to me at the time, ‘ she should be paid for what she does for me.’ Q. How often was that said to you? A. A couple of times. Q. Was Mrs. Cahill present? A. No, she was by herself. Q. Both times ? A. Some times she came in and out. Q. She was there some time, was she not? A. Yes, she said she should be paid for what she did.”</p> <p>The orphans’ court allowed her claim, and distributed the balance of the estate to her.</p> <p>Exceptions filed by Harry Dettenmaier and Anna Peacock to this award were dismissed by the court in an opinion by Ashman, J., reported in 8 Pa. Dis. Rep. 273. Harry Dettenmaier and Anna Peacock appealed.</p> <p>Error assigned among others was dismissing the exceptions.</p>

<p>Appeal, No. 228, April T., 1899, by defendant, from judgment of C. P. Beaver Co., June T., 1897, No. 230, on verdict for plaintiff.</p> <p>Opinion by W. D. Porter, J.</p> <p>Assumpsit for wages.</p> <p>The facts appear in the charge of the court below which was as follows:</p> <p>The plaintiff seeks to recover from the defendant damages for a breach of contract which reads as follows :</p> <p>“ Article of Agreement made this 9th day of March, 1896, between O. E. Aber of Industry, Pa., party of the first part, and Henry Schnuth, of Pittsburg, Pa., party of the second part, Witnesseth: That Henry Schnuth of the second part agrees to attend to the milking and have it done in good time by himself and his wife, and any other help that is needed for the milking is to be furnished by the said second party, the said Schnuth to cool and care for the milk in the best possible way and bring the same to station for shipment in time for any train that we may ship on; also, to take good care of the cattle and all stock in his care, and the balance of said Schnuth’s time after caring for the stock in a careful and right manner, is to be spent on the farm at whatever work he is directed to do by first party; Schnuth to have privilege to keep two hogs, and chickens not to exceed fifty in number, hogs and chickens to be fed by Schnuth and not allowed to destroy anything,grown on farm; and for services the said Schnuth is to receive from the said O. E. Aber three hundred and no 100 dollars for one year’s services, commencing from the 18th day of March, 1896, and is also to have his house rent free, fruit grown on farm for his family use, milk for table use, team to haul his own coal and truck or garden patch all free; the said Schnuth to have any goods out of the store of O. E. Aber he may want from time to time as it may be due him, and at the expiration of the year to have the balance, if any due him, in cash. In witness whereof we have hereto set our hands and seals this ninth day of March, 1896.</p> <p>“ O. E. Aber, [Seal.]</p> <p>“ Henry Schnuth. [Seal.]</p> <p>The plaintiff and defendant entered into this agreement, as it appears, on March 9, 1896, and the plaintiff went to work under this article of agreement and into possession of the house upon the premises on March 18 following.</p> <p>The relation existing between the plaintiff and defendant in this cáse under this contract is that of master and servant, the plaintiff agreeing, as it appears from the contract, for a certain consideration in money and the use of the house and other things therein contained, to attend to the cows of the defendant and do other work upon the farm under the direction of the defendant.</p> <p>The plaintiff alleges that he went to work under the contract and that he performed all his duties thereunder, and continued in the performance of those duties until he was discharged by the defendant on or about October 1, 1896.</p> <p>The contract under which the plaintiff claims to recover is an entire contract. That is, the hiring was for a fixed time and the relation of master and servant existing between them could not be lawfully terminated by either of the parties' without cause. If the plaintiff were discharged without cause, and prevented from performing his undertakings and receiving the compensation therein provided, then the plaintiff could recover in damages what he would have received had his services not been dispensed with and he continued in the employment under the agreement. The plaintiff alleges that he complied with all the terms and conditions of his service, that he was told to quit by the defendant some time about the middle of September, 1896, and the services were to cease on October 1, following; that upon that date another man by the name of Ed. Ward assumed charge, and that he, Schnuth, subsequently refused to assist to do the work of milking when so requested by Ward, for the reason that he did not think he had the right, having been discharged, and for the further reason that the tools were locked up. And he further alleges that at the time in September when he alleged he was discharged he protested that his time would not be up until the end of the year.</p> <p>This, in brief, gentlemen, is the position of the plaintiff, alleging compliance with the terms of the contract, and that the defendant discharged him without cause.</p> <p>It might be proper to say here that as a rule of law faithful service is a condition precedent to a recovery, or to the right to wages ; and when there is any misconduct, conduct inconsistent with the relation of master and servant, the former has the undoubted right at any time to put an end to such a contract. [The relation of the plaintiff to the defendant in this case was much the same as that of a farm-hand upon a farm, with this distinction, that he was there in the possession of the premises and not immediately under the owner of the premises.] [10] He was under the direction of the defendant, and if he performed that which he undertook to do in his contract, that which he was directed to do, all that which he undertook to do in the contract, for the defendant, in a proper manner, whicn he alleges, then he would have a right to recover in this case that which he would have earned had his services not been interfered with by the defendant and he had been permitted to perform the services which he undertook.</p> <p>There is another element in this case that might be referred to here, and that is as to the length of time for which the plaintiff would be entitled to recover, if you believed he performed all of the conditions of his contract. [It is a condition precedent to the right to recover in this case that the plaintiff must be at all times ready and willing to perform the terms of his contract, so that iE you find that he did perform the terms of his contract up until October 1, 1896, you would have no difficulty in finding that he was entitled to his wages up until that time. But if subsequent to that time he refused to perform the services under this contract, then he would not be entitled to recover subsequent to that time, because it is a condition precedent to the right to recovery that he must hold himself in readiness to perform the conditions of his contract unless he is prevented from so doing by the other party.] [11]</p> <p>On the part of the defendant it is alleged that the plaintiff refused to perform his part of the contract in a proper manner. It is alleged that upon the first day that he went there he took exceptions to the manner in which he was directed to feed the cattle. Mr. Aber testified that that necessitated the purchasing of several tons of hay in addition to that which he already had, this being in the middle of March, in order to provide feed for his cattle from that time until spring, and that by reason of the plaintiff’s noncompliance with his instructions. However that may be his declarations upon that date are introduced as corroborative of that which was testified to by the defendant as to plaintiff’s conduct in his relations with him subsequently thereto, as showing the mind of the plaintiff in the premises.</p> <p>The plaintiff alleges, and also his wife, that no hay was brought upon the farm. These are questions which, of course, you must take into consideration.</p> <p>The defendant further alleges that the plaintiff was to take care of the horses and cattle, that he was directed to keep them separate but that he persistently refused to ■ do so, and that he used vile and profane language to him when the matter was discussed, at one time, at least, in the grainary; that the cattle and horses were permitted to run together instead of being kept separate; that the fences were kept so that the horses and cattle were permitted to roam in the oats and cornfield ; that the spring house door was often unlocked which he had directed to be kept locked; that this time the plaintiff became angry with him when he protested against his leaving the spring house door unlocked, the staple having been pulled out of the door post. It appears that this time a grain of oats had gotten into the key and he had pulled the staple out instead of taking the grain of oats out of the key. We are not giving you the exact language, nor would it be at all possible, perhaps, in this case, to quote the language of the witnesses with any exactness, unless it is read literally from the stenographer’s notes of the testimony. The defendant alleges that the plaintiff tried to throw him in the spring. The plaintiff denies that anything occurred further than that they had some words. Mrs. Schnuth testified that from an upstair’s window of the house she saw a difficulty at the spring house, but that when they came up to the farmhouse everything was peaceable, and that she furnished Mr. Aber a knitting needle and he took the grain of oats out of the key. The defendant further alleges that at the farm, perhaps in June (I do not recall the exact time), that the plaintiff caught him by the back of the neck and struck him twice, at least; that this time he was calling his attention to the fact that the horses and cattle were running together, and in the grain, and that, perhaps, at that time some money matters were mentioned. It matters not, gentlemen, what was mentioned at that time, so that it was not something that would provoke and give the plaintiff reasonable cause for making an assault upon his employer; the assault would be inconsistent with the relation of master and servant; and if it were true, as the defendant alleges, that he had discharged him then and there, he would have been doing what would be perfectly right and proper in the premises, unless the assault was provoked by the defendant himself, and unjustly. He further alleges that at the store subsequent to this time that he again demanded money, and that words ensued, and that he seized a pruning knife and an ax, but was prevented by Mr. Roberts, who was present, from doing anything. Whether or not he had any intention of injuring the defendant is left for you to infer from his conduct in this matter, but his conduct in this matter, at least if it were unprovoked, would be reprehensible, and would be sufficient cause for a man discharging one in his employment.</p> <p>The plaintiff denies that any such thing occurred, that there was any ax or any pruning knife there, but there was a stick that he had hold of perhaps or reached for, but that he did not have any intention of hitting the defendant. These matters according to the defendant run along, and the unpleasant relations existing between them, by reason, as the defendant alleges, of the different circumstances of the trouble about the cattle and the horses, and the oats and the corn, until about the middle of September when some difficulty arose, when the plaintiff asked assistance in cutting some fodder corn, according to the defendant’s story that the plaintiff refused to cut the corn unless he had some assistance. Then it was, the defendant alleges, that he told him he could quit, and that he could quit on the first day of October, that he would get another man to take his place. He alleges that the plaintiff assented to this, and in corroboration of this position he called a number of witnesses, the number I do not now recall, but you will remember their testimony, who testified that the plaintiff asserted at different times that he would work no more for the defendant. The plaintiff denies that he assented to his discharge at all, but insists that he protested at the time that his contract would not expire until March 18 following.</p> <p>Now, gentlemen, if you believe the defendant that the plaintiff conducted himself upon this farm in this manner, that he, against the instructions of the defendant, persistently permitted the .horses and cattle to run together, that he permitted them at various times to trample down the oats and the corn after having been instructed to remedy this matter, then there was sufficient cause in this case for the defendant to discharge the plaintiff, because, as we have heretofore said, faithful services on the part of the plaintiff, on the part of the servant, or of an employee, is a condition precedent to the right of wages. [One may not hire a man to work upon his farm and have him wilfully disobeyed or neglecting to do that which he is told to do, and permitting his crops to be destroyed, or damaged, the result of the disobedience of orders, whether that damage is actual or not, or whether it might result from such conduct; in such case there are just grounds for the discharge of such an employee. But we have on the part of the plaintiff these matters all denied, so that you have a square issue of fact from the evidence in this ease which you must determine under all the evidence both for the plaintiff and the defendant.] [12]</p> <p>W e would say that perhaps the first question for your consideration is, was the plaintiff discharged on October 1, 1896. If you so find, and if you believe those matters which have been set up by the defendant, then you will find that the defendant had the right, and just cause, to discharge the plaintiff, and in that event the plaintiff cannot recover in this action. When one employs another and pays him compensation therefor he is entitled to the ordinary, to the best services that the employee can give; the degree of services of course is the best that the person employed in the circumstances in which he is placed can perform, and more particularly is faithfulness of services required. We say to you that if you find that the plaintiff was discharged at this time, and for just cause, then he cannot recover in this action.</p> <p>But there is another phase of the case, if you should find that the defendant discharged the plaintiff and without just cause, at this time, then you must find whether or not the plaintiff assented to the discharge; and you will recall the testimony of the plaintiff and the defendant as to what occurred in the middle of September, 1896. The defendant alleges that he told him to quit, and that at a future date, and at that time he would furnish another man; he alleges that the plaintiff did not dissent from that, nor refuse, but that he acquiesced in it. The plaintiff denies that, saying that he called attention to, or protested at that time that his term of service was not up. You must determine, gentlemen, if you come to the consideration of this portion of the case, whom you will believe, and if the plaintiff assented to the discharge then he cannot recover for anything more than the amount of his services up until October 1,1896, because if there was a mutual agreement between the defendant and the plaintiff that the services were to terminate on October 1,1896, the defendant would be bound to pay for the services up until that time, which would be the difference between that which he had paid, $95.58, and the amount of services counting at $25.00 per month up to the time of the discharge. But if you should determine that the plaintiff was discharged without cause and was prevented from performing his services, if the plaintiff were discharged without cause and he was prevented by the defendant from per-^ forming the conditions of his contract, his undertakings under the contract, then he would have the right to recover, and the measure of his damages would be that which he would have earned under the contract had he been permitted to have performed the services thereunder, the value of the house rent from that time until the end of the year, and the milk.</p> <p>[As to this question, it is alleged on the part of the defendant and also upon the part of the plaintiff, that there was a request on the part of Ward in behalf of Aber, for the plaintiff to assist Ward in the milking. Now, as we have said before, this plaintiff is bound to, as he alleges he was, be ready and willing to perform that which he undertook to perform under the contract, and if subsequent to October 1, 1896, while he was still in the house of the defendant and receiving a portion of the consideration, and as he alleges that he claimed then and does now claim that he was entitled to compensation for these services if he were prevented by the defendant from performing them, if he were requested it was his duty to perform such services as he was directed to perform, and if he did not then he would be precluded from recovering for any services after the time they allege he refused to perform the services.] [13]</p> <p>[Upon this question of refusal to perform work there is some testimony, which has been referred to in part by the court, by the plaintiff giving his reasons why he did not perform these services, that the tools were locked up and that he thought he did not have the right to perform them. The defendant introduced some testimony in which it is. alleged that the plaintiff said he would not milk another blank cow for the defendant, that he could make more money sitting in the house and doing nothing, or words to that effect. This was offered to contradict the plaintiff when he said that he was ready and willing to perform his part of the agreement, perform his undertakings under the contract under the directions of the defendant; and if he were not ready and willing of course he could not recover even under this branch of the case.] [15]</p> <p>[Now as to the consideration of the case, as the court has indicated you will take up the first question, which, if you determine, as the court has indicated, which if you determine in one way will settle the case and you need go no further, that is, was the plaintiff discharged for just cause ? If he was discharged for just cause, then he could not recover, and you need go no further in the case; your verdict would be for the defendant, and you can so re'turn it. If he were not discharged for just cause, and there was a mutual agreement to end the service, he could not recover any more than the balance due him up until that time. The third proposition is, if he were discharged without cause, and he did not acquiesce in that, but was ready and willing to perform the conditions of his contract at all times until prevented by the defendant, and that would be, I believe,- at any time between October 1 and October 24, because at that time the goods of the plaintiff were removed from the premises, would he thereby be hindered from doing that which was required of him under the contract? If he was ready and willing to perform the conditions of the contract, and was discharged without just cause, then he would be entitled to recover.] [16]</p> <p>In considering this case it is your duty not to consider who the parties are; you must consider the case under the law and the evidence. It matters not who is plaintiff or who is defendant. Your sworn duty is to determine the case and render a verdict in accordance with the evidence. You are not to be influenced by sympathy nor hatred, nor by any feeling of prejudice which any of you might have. [In determining the' facts of the case you will be governed by the weight or preponderance of the evidence, and we will say that weight or preponderance does not always consist in numbers but in the credibility which you attach to the testimony of a witness or witnesses, and this credibility is for you to determine where there is a contradiction of testimony.] [17] You are not bound to believe any witness if the circumstances and the testimony of the witness are unreasonable and contradictory. In consid-. ering the testimony of witnesses you will take into consideration their manner and appearance on the stand, the manner in which they testify in the light of all the circumstances in the case, considering also the interest of the parties in the result of your finding.</p> <p>Plaintiff’s points and the answers thereto among others were as follows:</p> <p>[3. If the jury believe that the defendant fixed a time for the dismissal of the plaintiff, and when such time arrived the defendant did put another man in Schnuth’s place, who took possession of the milkcans, stables and' other tools and the wagon with which Schnuth had been working, and the plaintiff had been informed by the defendant that his services were no longer required, these facts constituted a discharge of the plaintiff by the defendant. Answer: Affirmed.] [3]</p> <p>[5. If the jury believe that the plaintiff was prevented and hindered from carrying out his part of the contract by the interference of the defendant in putting another man in his place, the fault would be that of the defendant. Answer: Affirmed.] [4]</p> <p>Defendant’s points and the answers thereto among others were as follows :</p> <p>[2. If the jury find from the evidence that the plaintiff did not perform his duties under the contract, or refused to perform them when requested by the defendant, he cannot recover in this case. Answer : Affirmed, if discharged for that reason.] [5] [4. If Schnuth wished to recover under this contract or intended to claim compensation thereunder, he was bound in law to be ready and willing at all reasonable times to perform his duties thereunder, or such portions of them as Aber requested. Answer: That is affirmed, unless he was prevented from so doing by the defendant himself.] [6]</p> <p>[5. He could not decline or refuse to perform his duties under the contract, or decline or refuse to perform any portion of them, and then recover. Answer: That is affirmed, calling the attention of the jury to the question of recovery for services subsequent-to that time as explained in the general charge.] [7] [7. The plaintiff having stated that he quit work on or about October 1,1896, because Aber told him to quit, and also having stated that he did not remonstrate or object, if the jury so find, he must be held to have acquiesced in the termination of the contract, and therefore cannot recover. Answer: I have instructed the jury as to that. The point is refused.] [8]</p> <p>Verdict and judgment for plaintiff for $266.22. Defendant appealed.</p> <p>Errors assigned were (1) that the verdict and judgment thereon were erroneous; (2) refusal of defendant’s motion for nonsuit; (3-8,10-17) above instructions, quoting them(9) that the charge as a whole was inadequate.</p>

<p>Actions — Venue—Jurisdiction—Damages to real property.</p> <p>After the defendant has gone to trial on his plea of the general issue, in an action for damages to real estate, he will not be permitted to question the jurisdiction of the court because the property injured is situated in another county, where under the plaintiff’s statement he might have raised the objection before trial.</p> <p>Water courses — Drains—Turnpike companies.</p> <p>A turnpike company which has by means of artificial drains collected in one channel waters which would otherwise have remained stagnant, or evaporated or gradually flowed off, and discharged them in a mass upon the land of a neighboring owner must compensate such owner for any injury that he may have sustained.</p> <p>Waters — Increase of volume of water — Pollution—Joint.tort feasor.</p> <p>In an action of trespass against a turnpike company and an individual owner of land to recover damages for injuries to plaintiff’s land caused, first, by an increased volume of water thrown upon the land and, secondly, by the pollution of the water, a verdict and judgment against both defendants as joint tort feasors cannot be sustained, if it appears that, although the increase in the volume of water was the joint act of the two defendants, the pollution of the water was the act of the individual defendant alone. '</p> <p>Where an individual landowner permits a drain to be laid on his premises by a turnpike company to carry off water which would otherwise be cast upon his lot, thus deriving a benefit from the drain, especially if he pay part of the cost of the drain, there is such concert of action as to warrant a verdict against both himself and the turnpike company for the injury resulting to a neighbor’s property from the joint act, which would not have resulted if the water had been left to take its natural course.</p> <p>Trespass — Joint tort feasors.</p> <p>In general, where two or more persons act independently in producing an injury, they are not jointly liable for the combined results of their act, and the fact that it is difficult to determine the relative proportion of injury caused by each is not a sufficient reason for holding them jointly liable.</p> <p>A turnpike company is not liable for damages for the pollution of water flowing through a ditch or sewer which it had constructed to drain its roadbed, if such pollution is caused by the independent act of a neighboring landowner, without the knowledge or consent of the turnpike company.</p>

<p>Payment — Appropriation payments — Executors and administrators —Trusts and trustees.</p> <p>When an executor receives money in his trust capacity from a person who is indebted to the estate and also indebted to the executor personally, the executor may, in case the debtor had not exercised his prior right, avail himself of the power to apply the payment. But he must make the application to the debts that are held in the same right in which he has received the money. He must apply the money to the extinguishment of the debts due the estate. In case neither of the parties have made any application of the payment to a particular debt, the law will apply the payment to the items which are oldest or least secure, but it will apply it to the payment of the debts due the estate, for the law will not direct, nor will it permit, money paid into an estate upon account of the debts of an individual to be taken out, leaving the debts unpaid, in order that the individual claims of an executor or some other person may be made more secure. Where the executor has begun to receive money as executor he must be presumed to have continued to receive in that capacity until it is shown that there had been a change in the arrangement.</p> <p>Amendment — Petition for specific performance — Executors and administrators — Orphans' court.</p> <p>Where a person, who is an executor with power to make deeds for lands sol'd by testator in his lifetime, files in his individual name in the orphans’ court a petition for specific performance, in which he sets out contracts of sale made by the testator to the decedent, and also contracts of sale which the petitioner individually had made to the decedent, and evidence is taken as to the contracts made by the testator, and such contracts are not denied, the petitioner may subsequently be permitted to amend the record by substituting his name as executor for his own name, individually, and by striking out all reference to the contracts which he had made individually with the decedent.</p>

<p>Appeal, No. 49, Jan. T., 1899, by plaintiff, from judgment of Q. S. Luzerne Co., Sept. Sess. 1899, No. 771, on verdict of not guilty.</p> <p>Opinion by Beaver, J.</p> <p>Indictment for nuisance, to wit: two dwelling houses, a weaving house and a fence maintained in a public highway, in the town of West Nanticoke, Plymouth township, Luzerne county.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The court below charged the jury in part as follows:</p> <p>Now, the road is only twenty-six or twenty-seven feet wide at this point as it now stands. We say to you that a roadway does not consist simply of a track which the wheels make, but a roadway consists of the open space which has been intentionally left for public use.</p> <p>Verdict of not guilty, county to pay costs, and judgment thereon. Plaintiff appealed.</p> <p>JErrors assigned were (1, 2) the affirmation of defendant’s second and third points, which points are given in the opinion of the court.</p>

<p>Appeal, No. 11, February T., 1900, by defendants, from judgment of C. P. Lycoming Co., Dec. T., 1895, No. 409, on verdict for plaintiff.</p> <p>Opinion by Beaver, J.</p> <p>Assumpsit.</p> <p>Before the alderman plaintiff claimed the amount paid defendants for a parlor suit, $75.00, damages and expenses, $25.00; demand $100.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Counsel for plaintiff moved for leave to withdraw the declaration filed and to file a declaration in assumpsit, alleging a breach of warranty on contract.</p> <p>Counsel for defendants objected, (1) because the court has no power to give the plaintiff leave to withdraw his declaration at this stage of the case ; (2) because the court has no power to permit an amendment in any form that will introduce a new cause of action.</p> <p>The Court: It appears from the transcript in this case that the cause of action was for damages for a breach of contract, and that therefore the declaration that is asked to be withdrawn was improperly filed; and in the opinion of the court the filing of the declaration declaring- on a warranty is consistent with the cause of action which we are trying. The motion is therefore allowed, and leave given as prayed for. Bill sealed for defendants. [1, 2]</p> <p>The trial court charged in part as follows:</p> <p>[Now, if this be true that they misrepresented this furniture in that way; if he did not get what he purchased; if they knowingly sold him something different from what he intended to purchase, it was such a fraud on him as would entitle him to rescind the contract and return the furniture and be entitled to his money back, and if they did not pay it he would have a right to sue. Of course, in order to constitute such a fraud as would entitle him to a rescission of the contract, they must have knowingly misrepresented this furniture — knowingly done so. If a man would say to you, for instance, that he knew a certain thing to be of a certain quality, he is presumed to know it. If he did not know it, he has no business to say so. In that case he would be held to the same rule as if he did not know what he was talking about. But where a man would not say he knew a certain article to be of a certain quality or a certain kind, but would simply represent that it was, then you must say that he had knowledge of it not being as he represented it to be, before it would constitute such a fraud as would entitle the defendant to a rescission of the contract. Now, under this state of the law, and under the evidence in this case, was there such a fraud perpetrated upon the plaintiff in this case by the defendant in selling him this parlor suit, as entitled him to rescind it ? If there was, then, as I said, he had a right to rescind it.] [3]</p> <p>[If, however, on the other hand, the defendants did not deceive him, did not perpetrate a fraud on him in making this sale — that is, did not knowingly misrepresent to him or did not make any representation they knew nothing about, then he could not rescind, and he could not recover in this case, and then your verdict would be for the defendants.] [4]</p> <p>Defendants’ points and the answers thereto were as follows: [1. The declaration and statement of the plaintiff’s claim, filed in this court on December 9,1895, and November 17,1896, respectively, show the action in this case to be in deceit. Answer: We cannot so instruct you. The declaration as we read it, after carefully looking at it, is not a declaration in deceit, huir is a declaration to recover hack the money that he paid on this contract after he had elected to rescind the contract, and did rescind it, according to his theory of the case.] [5]</p> <p>[2. The alderman before whom this action was brought, and on appeal from whose judgment it is now pending in this court, had no jurisdiction of this action, and there cannot be a verdict for the plaintiff. Answer: We refuse to affirm this point.] [6] [3. The verdict must be for the defendants. Answer: This point is refused.] [7]</p> <p>Verdict for plaintiff for $81.23. Defendants moved for an arrest of judgment, because tbe transcript of the alderman and the proceedings had in court, show, on the face of the record, that this is an action of deceit, of which said alderman and this court on said appeal have no jurisdiction.</p> <p>[The Court: Motion in arrest of judgment overruled and a new trial refused.] [8]</p> <p>Judgment entered on the verdict.</p> <p>Errors assigned among others were (1, 2) the substitution of the new declaration for the one previously filed. (3-7) Above instructions, reciting them. (8) Overruling motion in arrest of judgment. (9) Entering judgment for plaintiff.</p>

<p>Appeal, No. 135, Oct. T., 1899, by defendant, from judgment of C. P. Huntingdon Co., Dec. T., 1898, No. 10, on verdict for plaintiff.</p> <p>Opinion by Rice, P. J.</p> <p>Trespass under the act of 1897 for personal injuries sustained by Charles Sheetram while in the employ of defendant.</p> <p>Charles Sheetram is a minor, about sixteen or seventeen years Did. The other plaintiff, Matilda Sheetram, is his mother.</p> <p>The facts are sufficiently set forth in the opinion of the court.</p> <p>Defendant’s points and the answers thereto among others were :as follows:</p> <p>[2. An infant at the age of sixteen years is presumed to have .sufficient capacity to be sensible to danger, and this presumption will stand until overthrown by clear proof of the absence ■of such discretion, and no sufficient evidence has been offered :in this case to overcome the presumption that Charles Sheetram was cognizant of the patent dangers of the work he was employed to do. Answer: We cannot affirm this point. The evidence is conflicting whether Charles Sheetram should have been cautioned as to the danger of putting billets on the carriage, before putting him to that employment. It is therefore a question for the jury.] [2]</p> <p>[3. It was not necessary for the defendant to explain to Charles Sheetram the danger of coming in contact with the revolving saw of the mill, because it was a patent danger of which he was sensible. Answer : Refused.] [3]</p> <p>[4. A servant or employee assumes all dangers in his employment, however they may arise, against which he may protect himself by the exercise of ordinary observation and care, and the defendant is not responsible for any injury suffered by Charles Sheetram, to which he voluntarily subjected himself. Answer: An employee assumes the risks incident to his employment, but he cannot be held to assume the risks of danger he had no knowledge of. If he is not familiar with the business he has the right to expect that its dangers will be pointed out to him, and that he will be instructed in those things necessary i for him to know in order to insure his own safety. With this ■explanation the point is affirmed.] [4]</p> <p>[6. The plaintiffs having shown that it was the duty of the' workmen to place lights at the mill where Charles Sheetram. was working, and if they failed to have the place properly-lighted by reason of which Charles Sheetram was injured, he' cannot recover, because if there was any negligence it was that of a fellow-servant. Answer: We cannot affirm this point as stated. The dim light which was about the sawing machine made it not less important that Charles Sheetram should have been warned as to the danger attended upon the placing of billets, on the carriage, and instructed as to the proper way to do so im order to insure his own safety if the jury find that it was the duty of the defendant to have warned and instructed him.] [6]¡</p> <p>Verdict and judgment for plaintiff, Matilda Sheetram, for $226, and for Charles Sheetram, $300. Defendant appealed.</p> <p>Errors assigned among others were (2-4, 6) above instructions, quoting them.</p>

Appeal, No. 28, Jan. T., 1900, by August Stolpe, from order of Q. S. Luzerne Co., June Sess., 1896, No. 371, in dismissing exceptions to report of viewers. Opinion by Rice, P. J. Exceptions to the report of viewers laying out private road. It appears from the record that this was a proceeding on the petition of Julius Stolpe to the court of quarter sessions of Luzerne county, praying the court to lay out a private road across the land of August Stolpe in Dennison township.

<p>Appeal, No. 58, Jan. T., 1900, by Crescent Coal Company, from judgment- of C. P. Luzerne Co., March T., 1899, No. 349, on certiorari to alderman Donohue of Wilkes-Barre.</p> <p>Per Curiam.</p> <p>Certiorari to ail alderman.</p> <p>It appears from the evidence that the plaintiff brought suit before Alderman Donohue, in Wilkes-Barre, against the Crescent Coal Company, defendant, and Enos Thomas, Thomas Thomas and Reese Morgan to recover a balance of $9.00 which plaintiff claimed as wages due him by the said company. Judgment was rendered for the plaintiff and before execution a certiorari was entered from the court of common pleas.</p> <p>' The additional facts are fully set forth in the opinion of the court below as follows :</p> <p>This case comes here upon certiorari and exceptions to the record of J. F. Donohue, an alderman of the city of Wilkes-Barre. The first exception is that the return of the summons to the constable does not show service upon the real defendants. The service would not be in accordance with the statute as. to the Crescent Coal Company if the company is a partnership. It does not appear anywhere of record whether the defendant is a corporation or a partnership. If it is the former, the service of the summons would be as directed by the statute of March 22,1817, 6 Sm. L. 438, sec. 1, upon the president or other principal officer or on the cashier, treasurer, secretary or chief clerk of such corporation. The return is that “P. J. Calpin, constable, served this writ on within-named defendants, the Crescent Coal Company, the 26th day of January, 1899, personally, by producing to A. J. W eiss, their chief clerk, at their registered office in Luzerne county, the original, and informing him of the contents thereof, and leaving with him a true and attested copy of the original writ.” This return was sworn to. If the defendant company is a corporation, this return would comply with the statute. If the defendant company is a partnership, then summons should be served upon the members constituting, the same by producing the original summons to and informing the defendants of the contents thereof, or leaving a copy of it at their dwelling houses, in the presence of one or more of defendants’ family or neighbors, at least four days before the time of hearing. In such case this return would not comply with the statute. However, the record of the alderman shows: “Now, January 30, 1899, at 9 A. M., A. J. Weiss appears for the defendants and asks to have case continued to same day, 7 P. M. Case continued. Now, 7 p. M. same day, parties appear. Continued to February 1, 1899, 7 p. M. Now, February 1, 1899, parties appear and judgment entered.” This appearance 'cures any defect in the return of service: McGinley v. McDonough, 27 W. N. C. 340; Hartman v. Kottcamp, 2 York, 215. Whether the defendants were the real parties or not they appeared, and the judgment was entered against them after such appearance and hearing.</p> <p>The second exception is that the record of the alderman does not show the kind of evidence upon which he based his judgment. The record shows that the plaintiff claims $9.00, being for work and manual labor done for defendants in Luzerne county, and that after hearing the parties, their proofs and allegations, judgment was rendered: Hill v. Scouton, 7 Kulp, 345. Upon certiorari to a justice’s judgment the record should show that testimony was taken and that the case was heard, but it is not necessary for the justice to set out in full the testimony of the witnesses or to copy it at length upon his docket.</p> <p>The third exception is that the execution issued was not authorized by any legitimate evidence. This exception is ruled so far as the record is concerned, by our disposition of the ■second exception.</p> <p>The fourth exception is that the whole proceeding by and before the alderman, so far as relates to the Crescent Coal Company, was wholly false and fraudulent, no suit having been authorized by the plaintiff against the said company, and no claim against them having been presented before the alderman, and no evidence of any kind showing a claim against the said company having been presented before the alderman. Depositions were taken by both plaintiff and defendants.</p> <p>[Whether or not the proceedings before the alderman were wholly false and fraudulent cannot be disposed of here. Upon certiorari to a magistrate, the only question before the court is that of the regularity of the proceedings, as shown bj^ the record.] [1] If no suit was authorized by the plaintiff against the defendants, then the alderman was without jurisdiction, and whether or not such suit was authorized can be shown by evidence of facts taken by depositions: Dodson v. Bohan, 5 Kulp, 94. Now, what do the depositions show ? Mr. McGovern, a member of the bar, testifies that “ one morning I went to the office and the plaintiffs in the cases were there, and said that they had a case each against the Crescent Coal Company and the miners that worked for them, before Alderman Donohue that evening, between seven and eight, and wanted to know if I would go over and attend to it. I told them I would if they would pay me a fee. I went over there that evening, and while I was waiting there Mr. Weiss came and asked me if I was counsel for them. I told him I was. He asked me, how much is your claim against the company? I told him, I think, 19.00 in each case, large enough to take an appeal, and he said he would not wait.” The testimony of Mr. McGovern is corroborated by that of the alderman, John Newton, and A. Salsburg. Mr. A. J. Weiss, the Crescent Coal Company’s bookkeeper, testifies that he was present at the hearing before the alderman; that the plaintiffs were there; that they were sworn and testified that the defendants were indebted to them, and that the due bills were there showing an account between the Crescent Coal Company and the plaintiffs. The testimony of the defendants, and others, is that the plaintiff in the case did not authorize the suit against the Crescent Coal Company. However, it appears from the depositions that influences were brought to bear upon them to withdraw the suits,. in the threatened discharge of themselves and friends. As the presumption of fairness is with the magistrate, and in our opinion the weight of the testimony with the plaintiff, the proceeds ings are affirmed. Crescent Coal Company appealed.</p> <p>Errors assigned were (1) to rulings on evidence, reciting same. (2) In admitting and treating as evidence in the cause the depositions taken on behalf of J. F. Donohue, alderman. (3) In overruling the exceptions to the alderman’s record, and affirming the judgment of the alderman.</p>

Appeal, No. 22, Jan. T., 1900, by plaintiff, from judgment of C. P. Lackawanna Co., March T., 1896, No. 674, in trespass. Per Curiam. Trespass. It appears from the record that plaintiff was the owner of premises at the northwest corner of Main avenue and Storrs street in the borough of Dickson city. The front of the premises is on Main avenue, and extends westwardly along Storrs street 165 feet.

Appeal, No. 8, Jan. T., 1900, by Caroline A. Hughes and George H. Hughes, executors of the estate of James Hughes, deceased, from decree of O. C. Luzerne Co., No. 288, of 1896, dismissing exceptions to the report of the auditor. Opinion by W. W. Porter, J. Exceptions to auditor’s report.

Appeal, No. 23, Jan. T., 1900, by defendants, from judgment of C. P. Luzerne Co., May T., 1891, No. 541, on verdict for plaintiffs. Opinion by W. W. Porter, J. Trespass for forcible dispossession of premises occupied under lease. The facts appear in the following portions of the charge of the court.

Appeal, No. 57, Jan. T., 1899, by William Moran, executor of the estate of Patrick Moran, deceased, from decree of O. C. Susquehanna Co., Nov. T., 1897, No. 50, adjudicating the payment of a legacy of $1,000 to the administrator of Patrick Moran, Jr. Opinion by W. W. Porter, J. Rule upon Miller S. Allen; administrator of estate of Patrick Moran, deceased, and Thomas Allen, to show cause why the sale of real estate of Patrick Moran, deceased, and all proceedings upon which…

Appeal, No. 7, Jan. T., 1900, by R. W. Smiles et al. from decree of C. P. Luzerne Co., Oct. T., 1893, No. 1050, in confirming the report of the viewers appointed in the matter of the widening and straightening of William street in the borough of Pittston. . Opinion by W. W. Porter, J. W. D. Portee, J., dissents. Exceptions to report of viewers.

<p>Liquor law — Defective petition — Discretion of court.</p> <p>The omission to name the owner of the premises in a petition for a liquor license is a material defect, and the refusal of the court to permit an amendment is not reversible error unless a plain abuse of discretion is made to appear. Where the motion to amend was not supported by any affidavitor petition explanatory of the omission, the appellate courtis bound to presume that the discretion of the license court, in refusing the amendment, was properly exercised.</p>

Appeal, No. 17, Feb. T., 1900, by-plaintiff, from decree of C. P. Union Co., Sept. T., 1899, No. 1, dissolving preliminary injunction. Per Curiam. Bill for injunction. It appears from the bill, answer and proofs that the plaintiff and the bank, defendant, were owners of adjoining lots in Lewis-burg, upon each of which there has been for many years a two-story brick building.

<p>Appeal, No. 9, Jan. T., 1900, by Martin Garvey, Bridget Garvey and Mary Ann Dolphin, children and next of kin of Peter Garvey, a lunatic, from decree of C. P. Lackawanna Co., March T., 1896, No. 226, making absolute rule for sale of real estate.</p> <p>Opinion by Rice, P. J.</p> <p>Petition for sale of real estate. Before the court in banc.</p> <p>It appears from the record that Peter Garvey had been declared a lunatic, and a petition was filed by his committee for the sale of real estate. Notice of filing said petition and rule granted thereon were given to the wife and three children of the lunatic.</p> <p>The court made the rule absolute. Martin Garvey et .ah, children of the lunatic, appealed.</p> <p>Error assigned was in assuming jurisdiction and ordering the sale of the real estate of the lunatic, Peter Garvey, without notice to the next of kin, to wit: Martin Garvey, Bridget Garvey and Mary Ann Dolphin, the appellants in this case.</p>

<p>Judgment — Amicable revival after expiration of lien — Terre-tenants.</p> <p>The lien of a judgment having expired prior to an amicable revival thereof, such revival cannot continue the lien against land sold by the debtor prior to such revival and again sold by the vendee to another.</p> <p>On a sei. fa. subsequently issued to revive the judgment letters of the alienee of the debtor tending to show an undertaking by him to pay the judgment were properly rejected as such an understanding could not be enforced in such action either against the alienee of the debtor or his vendee as terre-tenants.</p>

Appeal, No. 152, Jan. T., 1900, by defendants, from decree of C; P. Wyoming Co., Jan. T., 1899, No. 152, directing mandamus to issue against county commissioners. Opinion by Rice, P. J. Petition of school directors of Meshoppen borough school district for alternative writ of mandamus directed to the county commissioners to assess twenty acres of land and dwelling house for the borough school tax. The facts sufficiently appear in the opinion of the court.

Appeal, No. 26, Jan. T., 1900, by Clara Roy, from decree of O. C. Bradford Co., Sept. T., 1898, No. 30, dismissing exceptions to auditor’s report. Opinion by Beaver, J. Exceptions to auditor’s report. of the 31st judicial district, specially presiding.

Appeal, No. 180, Oct. T., 1899, by Levi Brumbach, from decree of O. C. Berks Co., directing payment of legacy charged on land. Opinion by Beaver, J. Petition under act of February 24,1884, to enforce payment of legacy charged on land.

Appeal, No. 206, Oct. T., 1899, by plaintiff, from judgment of C. P. No. 3, Pbila. Co., Dec. T., 1896, No. 677, on verdict for defendant. Opinion by Rice, P. J. Assumpsit to recover a balance of $229.51 on book account -'for goods.sold and delivered. It appears from the evidence that among the goods sold and delivered were seven uprights or legs of the value of $15.75.

Appeal, No. 182, Oct. T., 1899, by defendant, from decree of C. P. No. 1, Phila. Co., Dec. T., 1898, No. 439, in favor of plaintiff. Opinion by Rice, P. J. Bill in equity for dissolution of agreement of sale of certain real estate and return of purchase money, and for the return of' purchase money on other real estate on reconveyance thereof by plaintiff on the ground of fraud. Before Biddle, P. J. The facts sufficiently appear in the opinion of the court.

Appeal, No. 2, Jan. T., 1900, by plaintiff, from judgment of C. P. Luzerne Co., Jan. T., 1893, No. 365, on verdict for defendant. Opinion by Beaver, J. Trespass to recover treble damages against defendant for cutting and converting to his own use ten trees of the value of $19.20, alleged to have been growing on plaintiff’s land. of the 44th judicial district, specially presiding. The facts sufficiently appear in the opinion of the court.

Appeal, No. 16, April T., 1899, by defendants, from. judgment of C. P. Erie Co., Sept. T., 1896, No. 37, on verdict for plaintiffs. Opinion by W. D. Porter, J. Sci. fa. sur mechanic’s lien. of tbe 37th judicial district, specially presiding. The facts sufficiently appear in the opinion of the court.

Appeal, No. 224, April T., 1899, by Charlotte Muller, from decree of O. C. Erie Co., Feb. T., 1898, No. 13, in distribution. Opinion by W. D. Porter, J. Exceptions to auditor’s report.

Appeal, No. 230, April Term, 1899, by Patrick White, terre-tenant, from judgment _of C. P. Warren Co., March T., 1898, No. 61, on verdict for plaintiff. Opinion by W. D. Porter, J. Sci. fa. sur mortgage.

<p>Appeal, No. 88, Oct. T.,1899, by defendants, from judgment of Q. S. Schuylkill Co., Nov. Sess., 1898, No. 1858, on verdict of guilty.</p> <p>Opinion by Smith, J.</p> <p>Indictment for selling oleomargarine.</p> <p>of the 41st judicial district, specially presiding.</p> <p>The first count charges that the three defendants jointly, on November 1, 1898, and on divers other days prior thereto . . . . wilfully, knowingly and unlawfully did sell and offer for sale, and then and there had in their possession with intent to sell, a certain oleaginous substance and compound of the same, the said oleaginous substance and compound of the same not being then and there produced from pure, unadulterated milk and cream from the same, and being then and there an imitation of unadulterated butter, with-the intent then and there to sell to divers persons, as an article of food, in violation of the health laws of said commonwealth, etc.</p> <p>The second count charges that the three defendants jointly, wilfully, knowingly and unlawfully did sell and offer for sale, and then and there had in their possession, with intent to sell as an article of food, a certain oleaginous substance and compound of the same, the said oleaginous substance and compound of the same then and there being an imitation of butter.</p> <p>And the said Philip Kolb, Julius Kolb and George Kolb, did, then and there, unlawfully and knowingly, sell and expose for sale the same as and for and under the name of pure butter, in violation of the laws of health, etc.</p> <p>The defendants’ motion to quash the indictment was overruled and they pleaded “not guilty.”</p> <p>It appears from the evidence that Philip Kolb had been engaged in the general store business, and that the other two defendants, Julius and George, are his sons and were employed by him as clerks. On August 21, 1898, George Kolb sold to K. M. Simmers, the pure food agent, a small quantity of an article which was sold as oleomargarine,’and on August 30, Julius sold to K,. M. Simmers another quantity of the same article. There was evidence tending to show the habitual sale of the article in question as butter which was admitted by defendants on cross-examination.'</p> <p>[At the trial the commonwealth offered to show that the article sold was not butter produced from unadulterated milk or cream. This offer was objected to and objection overruled.] [2]</p> <p>Defendants submitted among others the following points:</p> <p>[1. That the act of 1885 is unconstitutional and no conviction can be had under it. Answer: It is not necessary for us to instruct you, as this indictment is not under the act of 1885.] [5]</p> <p>[2. The evidence of the commonwealth shows that the article sold is an article of food not adulterated, not deleterious to the public health, therefore, no crime has been committed in its sale and the defendants cannot be convicted. Answer: We refuse to so instruct you, but refer you to what we said in the general charge in regard to that.] [6]</p> <p>[3. The commonwealth has not shown that these sales were made as an article of food, and the verdict must be not guilty. Answer: This we decline. The commonwealth has shown that the sales made were made as butter, and it is a matter of common knowledge that butter is an article of food, and we decline to instruct you as requested in this point.] [7]</p> <p>[4. That if the jury believe Julius Kolb and George Kolb were employed by Philip Kolb, they cannot be convicted for sales made by them. Answer: We refuse to so instruct you, but if either of them made sales they would be liable to conviction under the act of assembly.] [8]</p> <p>The court charged the jury in part as follows:</p> <p>[As to the second count in the indictment, if the evidence satisfies you beyond a reasonable doubt that the defendants, or either of them, sold what is oleomargarine for butter, then they would be guilty of the offense charged in the second count of the indictment.] [3] ....</p> <p>[Was the article which the defendants sold oleomargarine and did they sell it under the name of butter ? If they did, then they violated the provisions of this act of assembly and it would be the duty of the jury to convict them under the second count of the indictment.] [4]</p> <p>Verdict of guilty in the second count with the recommendation to mercy and sentence thereon to pay costs of prosecution and necessary costs and expenses incurred in inspecting and analyzing oleomargarine, and each to pay a fine of $50.00. Defendants appealed.</p> <p>Errors assigned were (1) in refusing to quash the indictment. (2) To rulings on evidence, reciting same. (3, 4) To portions of the judge’s charge, reciting same (5, 8) Answers to defendants’ points, reciting points and answers. (9) In failing to instruct the jury as to the weight of evidence offered by defendants to establish a good character.</p>

Appeal, No. 75, Oct. T., 1897, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1893, No. 145, on verdict for plaintiff. Opinion by Rice, P. J. Trespass for personal injuries. It appears from the undisputed testimony that the plaintiff, a woman, walking north in the daytime on the west side of Twentieth street, Philadelphia, came in contract with á car moving west on Catherine street at the instant she put her foot on the track.

<p>Appeal, No. 7, March T., 1900, by defendant, from judgment of Q. S. Dauphin Co., June Sess., 1899, No. 286, making order on defendant for support of his wife.</p> <p>Opinion by Beaver, J. W. W. Porter, J., dissents.</p> <p>Charge of desertion and nonmaintenance.</p> <p>At the trial defendant offered in evidence a deed of separation whereby the wife in consideration of $20.00 agreed to live separate and apart from defendant, and covenanted that she would not from henceforth at any time hereafter, trouble, molest, sue or prosecute said defendant for any claims for maintenance or alimony, nor for any debts, dues or demands contracted or to be contracted by her. The court after hearing made an order on defendant that he pay the costs of prosecution, that he pay for the support of his wife $1.25 per week and give security in the sum of $100, conditioned that he carry out this order. Defendant appealed.</p> <p>Errors assigned among others were (1) in deciding that the deed of separation was not a bar to this prosecution, reciting said deed of separation. (2) In not dismissing the prosecution and discharging defendant.</p>

<p>Appeal, No. 25, March T., 1900, by defendant, from order of C. P. Adams Co., Aug. T., 1899, No. 34, quashing appeal from justice of peace.</p> <p>Per Curiam.</p> <p>Motion to quash an appeal from judgment of justice.</p> <p>It appears from the record that plaintiff obtained judgment for $54.70 before a justice of the peace. Defendant having entered bail appealed, first having paid all the costs of the justice and the constable and other costs except $4.26 which were the costs of certain witnesses of the plaintiff. It appeared that the bail was entered in contravention of a rule of court forbidding attorneys at law from becoming bail on appeals and certioraries. Plaintiff moved to quash the appeal, first, for the reason that no legal bail had been entered, and second, because defendant did not pay all the costs as required by the act of assembly, the witness’s costs of the plaintiff being unpaid as appears by the transcript of the appeal. The court below struck off the appeal. Defendant appealed.</p> <p>Error assigned among others was (1) in striking off the appeal on the rule issued on plaintiff’s petition for rule.</p>

<p>Appeal, No. 185, Oct. T., 1898, by defendant, from judgment of C. P. Schuylkill Co., Sept. T., 1896, No. 149, on verdict for plaintiff.</p> <p>Opinion by Rice, P. J.</p> <p>Assumpsit on policy of life insurance.</p> <p>The facts appear in the opinion of the court.</p> <p>The court charged in pat't as follows:</p> <p>Whatever dispute there was between the parties had reference to the age of Mrs. Smith at the time she was insured.</p> <p>The first question that arises for your determination is whether, when the $856.68 was paid over to Charles Benseman, the administrator of Mrs. Smith’s estate, it was paid in settlement of the claim of that estate on these two policies against the company, for, if the matter was settled upon the adjustment of the company at that time, that would end the case; if it was settled then, that was the end of it, and it should receive or have no new beginning here. There is some controversy on that. The plaintiff claims that when this money was received it was received not in full settlement, as the check itself in language purports the settlement to have been, but that it was only a partial payment received by the claimant on account of the urgency of certain creditors of the estate for money, or certain claims against the estate for payment. The defendant asserts, .alleges and insists that the true settlement is set out in the correspondence, and that from the terms of the correspondence itself there was no variance made at the time that the check was turned over, which was on November 8, 1895, as nearly as the ■evidence fixes it.</p> <p>If Mr. Roth’s testimony is true in point of fact, if his side of this controversy is established, to wit: that the correspondence itself sets forth the true state of facts, and that a settlement was made, for the word “settlement” is used in the correspondence, upon the basis stated in the letters, then the plaintiff here would he held to the conditions of that arrangement, which the correspondence states are that this case shall be reopened upon production of the family records, or other satisfactory proofs of a mistake on the part of the company in stating the ages at forty-nine and fifty; in other words, the company agreed,' if the correspondence be the only settlement that was made, that if it should be proven to their satisfaction that there was a mistake made, they would be willing to correct the error, and, if there was a difference coming over to the estate of Mrs., Smith, to pay it.</p> <p>But the plaintiff claims that the settlement was not made as. stated in that correspondence; that at the time they came together finally and received the check and handed over the receipt, that then the money was only received and the receipt given upon the distinct understanding that they would sue for the balance. Mr. Wadlinger swears that at the time he stated that as to the balance, it would have to be left for future settlement, and that he saw no other way than to bring a suit for it.</p> <p>[Now, you have both sides of the controversy, the one contending that there was an absolute and unqualified agreement of settlement as set down in the letters, the other side asserting that it was no final settlement at all, that the money received was a partial payment. If it was received as a partial payment, then the claimant had no other way, if this company would not pay the difference than to bring the case where it now is, let a jury determine the fact.] [9]</p> <p>Defendant’s points and the answers thereto among others were as follows:</p> <p>[10. The evidence in the cause thus showing that the age of Mary Smith was thus understated at the time of the issuing of both of the policies in suit, anywhere from two years to nine years, the sum insured will, under the fifth condition embodied in both of said policies, “ be reduced to the amount the premium would pay for at the true age.” Or under the act of June 23, 1885, “ to such sum as the premium paid would have purchased at the applicant’s real age at the time of effecting the insurance.” Answer: Refused without reading.] [1]</p> <p>[12. The company defendant having offered to the administrator to pay him the said sum of 1856.63, thus adjusted and ascertained, in compromise settlement and payment in full of his claims against the company, the said administrator did accept the amount so offered, and did, on November 8, 1895, sign and •execute and deliver unto said company his receipt of that date for said amount, “ in full for all claims against said company, under policies No. 3,136,167-8,688,427, issued upon the life of Mary Smith, adjusted at ages 49 and 50 years respectively.” Answer: Refused without reading.] [2]</p> <p>[14. The said plaintiff having thus accepted and collected the company’s check for the amount named, and having executed and delivered his receipt unto the company therefor, as aforesaid, is bow estopped from recovering any further sum or sums of money from said company defendant, under said policies of insurance, or either of them. Answer: Refused without reading.] [4]</p> <p>[18. Under all the evidence in the case the plaintiff cannot recover, and the verdict of the jury must be for the defendant. Answer: Refused without reading.] [8]</p> <p>Verdict and judgment for plaintiff for $185.45. Defendant appealed.</p> <p>Errors assigned among others were (1, 2, 4, 8, 9) above instructions, quoting them.</p>

Appeal, No. 28, March T., 1900, by defendants, from judgment of C. P. York Co., April T., 1899, No. 27, in favor of plaintiff. Opinion by Beaver, J. Trespass charging defendants with negligent malpractice as surgeons in setting broken leg of plaintiff by reason of which alleged negligence mortification ensued and amputation became necessary.

Appeal, No 16, March T., 1900, by defendants, from judgment of C. P. Fulton Co., Jan. T., 1899, No. 38, in favor of plaintiff for want of a sufficient affidavit of defense. Opinion by Beaver, J. Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 17, March T., 1900, by defendants, from judgment of C. P. Fulton Co., Jan. T., 1899, No. 33, in favor of plaintiff for want of a sufficient affidavit of defense.</p> <p>Opinion by Beaver, J.</p>

Appeal, No. 56, Jan. T., 1900, by defendant, in suit of Emma Breehtel v. E. H. Cortright, sheriff, from judgment of C. P. Wayne Co., Mhy T., 1898,. No. 382, on verdict for plaintiff. Opinion by Beaver, J. Trespass.

<p>Appeal, No. 14, March T., 1900, by defendant in suit of Elias Beard against David R. Heck, from judgment of C. P. York Co., Jan. T., 1898, No. 54, on verdict for plaintiff.</p> <p>Opinion by Beaver, J.</p> <p>Assumpsit.</p> <p>A lease of woodland having been surrendered plaintiff brought suit against David R. Heck to recover money due him for hauling by defendant’s tenant which he alleged that defendant had agreed to pay him in order to induce him to continue the hauling for him, the said defendant.</p> <p>[At the trial motion was made to strike out certain testimony, the court refusing such motion as follows : “I will say to the jury that it is immaterial, that part of it. I will not strike it out. That is not the proper plan.”] [2, 8]</p> <p>Defendant submitted among others the following point:</p> <p>[2. If the property assigned by Harvey S. Fenicle to David R. Heck was to be used according to their agreement, in paying off the debts of said Fenicle, .the statute of frauds does not apply in this case. Answer: I say to you that the statute of frauds does not apply in this ease, nor is this point applicable to the facts in this ease. There is no evidence that Fenicle assigned this property or transferred it to David R. Heck for the purpose of paying his creditors.] [6]</p> <p>The court charged the jury in part as follows :</p> <p>. Now, the defendant says he did not make that agreement. I want to say to you that as a matter of law, no difference how absurd or unreasonable it may appear upon the face of it, if the defendant, in order to induce the plaintiff to come back and resume his hauling, agreed that he would pay Fenicle’s debt and also fifty cents an hour for hauling in the future, that is a legal contract not within the statute of frauds, and binding upon the defendant. You cannot know, and I cannot know, what motive may have induced the defendant to make what may seem to be a foolish bargain, or to us it may seem foolish. To the defendant it may have seemed very different. But if you believe that he made that bargain, and agreed to assume the responsibility of Fenicle’s debt, and pay it, and also to pay the plaintiff fifty cents per hour for work done in the future, — if that altogether was the bargain between them, then it was a legal contract, and is enforceable at law. If you believe that, the plaintiff is entitled to recover not only the amount of the indebtedness that the defendant admits he owes, but he is entitled to recover the amount of the Fenicle debt in addition to that.</p> <p>Verdict and judgment for plaintiff for $213.45. Defendant appealed.</p> <p>Errors assigned among others were (2, 3) refusing motions to strike out testimony. (6) Answer to defendant’s second point, • reciting point and answer.</p>

<p>Appeal, No. 15, Jan. T., 1900, by Throop Borough in suit of Thomas McHale against the Borough of Throop and the Dickson City Water Company, from judgment of C. P. Lackawanna Co., Sept. T., 1899, No. 360, on verdict for plaintiff.</p> <p>Opinion by Orlady, J.</p> <p>Assumpsit.</p> <p>of the 34th judicial district, specially presiding.</p> <p>It appears from the record that the action was brought to recover for damages resulting from alleged negligence in not repairing a fire plug located in front of plaintiff’s premises, whereby plaintiff alleged he had been damaged.</p> <p>.Other essential facts appear in the opinion of the court.</p> <p>Defendant presented among others the following points:</p> <p>_ [1. Under all the evidence the verdict must be for the defendant, the Borough of Throop. Answer: “We refuse to so charge you.] [1]</p> <p>[5. There is no sufficient evidence of authority from the Borough of Throop to any one to dig ditches upon or adjacent to the property of the plaintiff. Answer: This is refused.] [9]</p> <p>Verdict and judgment in favor of plaintiff and against the Borough of Throop for $200. Verdict and judgment against the plaintiff in favor of the Dickson City Water Company. The Borough of Throop appealed.</p> <p>Errors assigned among others were (1, 9) refusing to affirm defendant’s points, reciting points and answers.</p>

<p>Equity — Injunction—Increased flow of water.</p> <p>To entitle plaintiffs to an injunction restraining the increased flow of water in a natural channel, it is incumbent to allege that the increased flow was or threatened to be injurious to their lands.</p> <p>Appeal — Harmless error not reversible.</p> <p>The appellate court will not reverse for harmless error. Hence, the failure of the court below to find a fact which was admitted by the pleadings and which was practically immaterial whether found or not is not reversible.</p> <p>Appeal — Defective assignments — Buie of court.</p> <p>Specifications of error which contain more than one point offend against Rule 15 o'f the Superior Court and will not be considered.</p> <p>Equity — Injunction—Costs on defendant ■when bill dismissed.</p> <p>Where the bill prayed relief from the pollution of a stream and it appears that the pollution continued after divers broken promises of amendment up to within a few days of the filing of the bill, the court may impose the costs upon the defendant although dismissing the bill because of the cessation of the nuisance.</p>

<p>Appeal, No. 55, Jan. T., 1900, by plaintiff, in suit of J. W. Guernsey against W. O. Froude and Mrs. Wm. Froude, from judgment of C. P. Lackawanna Co., March T., 1899, No. 72, on verdict for defendants.</p> <p>Opinion by Orlady, J.</p> <p>Assumpsit.</p> <p>It appears from tlie récord that this was an action based upon a lease for a piano. The case turned on the fact of an alleged parol agreement entered into at the time of the execution and delivery of said lease.</p> <p>The facts connected with the circumstance are sufficiently set out in the opinion of the court.</p> <p>Plaintiff submitted among others the following points :</p> <p>[1. Under all the evidence in the case, the verdict must be for the plaintiff. Answer: This point is refused.] [1]</p> <p>[8. That whatever conversation was had between Foote and Mr. and Mrs. Froude after the signing of the lease by the two defendants, with respect to an examination of the paper by some third party, would not be material in this case, and could not affect the plaintiff’s right to recover,-if the jury believe that the lease had been signed and delivered to Mr. Foote before such conversation occurred. Answer: If the delivery of the lease to Mr. Foote was not accompanied by a condition, the point is affirmed.] [6]</p> <p>Defendants submitted among others the following points:</p> <p>[2. That if the jury find from the evidence that before the lease was delivered to Foote, he agreed that the defendants might take counsel regarding its character, and if, thereupon, they were not satisfied, the deal should be declared off, and the paper was delivered on the faith of that agreement; in that case the defendants had the right to reject the piano upon taking such counsel, if they were not satisfied with the lease. Answer : This point is affirmed.] [7]</p> <p>[The court admitted the evidence of W. O. Froude as to what took place between him and W. S. Foote at the .time the lease was signed.] [2-4]</p> <p>[The court also admitted testimony of Mrs. Froude.] [5]</p> <p>The court charged the jury in part as follows:</p> <p>[Remembering that the main fact in the case is the question whether the delivery of this lease to Mr. Guernsey, though Mr. Foote, was a conditional one, whether the defendants on account of that condition had the right to withdraw from the transaction ; remembering that is the main fact you are to decide, you must examine all the evidence in the case and see how it bears upon the conclusion that you should arrive at as to the main question in dispute. N ow, in arriving at a conclusion as to the matter of fact, you must consider the credibility of the witnesses. It is always for the jury to decide, how much weight they will give to the testimony of any witness in the case, that is the reason that we say that the credibility of the witness is for the jury. You have a right to consider their appearance upon the stand, their disinterestedness or their showing of any interest in the case, the relation of the witnesses to the parties on the one side or the other, and the accuracy of their recollection when detailing facts that have happened some time ago. It is for you to decide how much weight and what merit you attach to the testimony of the witnesses; and you have a right to look through all the evidence iii the case to find which witnesses are corroborated, or which witnesses are contradicted, or how far one or all of the witnesses are corroborated or contradicted by the other testimony in the case; you must decide the case according to the fair weight and preponderance of the testimony, and the burden is upon the defendants in this case to satisfy you by the fair weight of the testimony, that their contention is correct. If you find that the contention of the defendant is correct, that this lease was delivered on the conditions that they have testified to, and that they had a right to withdraw from the agreement, and that they did' not afterwards by their conduct ratify in any way the lease or sale, why then your verdict will be for the defendants. If they have failed to satisfy you of that contention, then your verdict will be for the plaintiff for the amount that I have already mentioned, and of which a statement will be sent out with you.] [9]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (1, 6) answers to plaintiff’s first and eighth points, reciting points and answers. (2-5) Rulings on evidence, as indicated in the statement of facts. (7) Answer to defendants’ second point, reciting point and answer. (8) In not adequately instructing the jury as to the measure of proof required, when the attempt is made to reform or vary a written instrument. (9) To a portion of the judge’s charge, reciting same.</p>

<p>Contributory negligence— Trolley crossing — Question for jury.</p> <p>The plaintiff is not required to disprove contributory negligence but only to make out a case clear of it.</p> <p>In the case at bar a driver about to cross a trolley track" at a crossing, observing a car approaching at the distance of 330 feet, continued his progress with his horse at a walk, believing, in the light of former experience, that the car was sufficiently far away to cross safely; the motorraan had not his hands on the brake, as was seen and testified to by plaintiff, nor did he sound the danger signal; the car struck the plaintiff’s wagon inflicting damage. Held, that the court erred in entering a nonsuit and refusing to take same off, because it could not conclusively be presumed that the driver had disregarded the rules of common prudence or negligently to have driven into an apparent danger. The questions of negligence and contributory negligence were for the jury.</p>

Appeal, No. 54, Jan. T., 1900, by plaintiff, in suit of Emily C. Ilhule against Diamond Colliery Accidental Fund, from judgment of C. P. Lackawanna Co., March T., 1897, No. 1048, on verdict for defendant. Opinion by Orlady, J. Exceptions to referee’s report.

Appeal, No. 42, Jan. T. 1900, by plaintiffs in a suit of Harriet C. Wheeler and Bessie W. Pratt, executrices of Eno S. Wheeler, deceased, against L. M. Potter, from decree of C. P. Wyoming Co., June T., 1898, No. 136, costs of appeal to be paid by plaintiffs. Opinion by W. D. Porter, J. Rule for taxation of costs.

Appeal, No. 10, Jan. T., 1900, by defenclants, in a suit of Hazleton Plumbing Company against-Powell et al., from judgment of C. P. Luzerne Co., Feb. T.,, 1896, No. 235, in favor of plaintiff dismissing exceptions to> referee’s report. Opinion by W. W. Porter, J. Exceptions to referee’s report. It appears from the record that this was a suit to recover on a mechanic’s lien filed by a subcontractor.

Appeal, No. 28, Oct. T., 1899, by plaintiff in a suit of John Messner against the Lykens and Williams Valley Street Railway Co., from decree of C. P. Schuylkill Co., July T., 1898, No. 2, dismissing bill for injunction. Opinion by Orlady, J. Motion for preliminary injunction and rule to show cause why such injunction should not be granted.

Appeal, No. 43, Jan. T., 1900, by-defendants in a suit of the city of Scranton against the heirs of James Manley, deceased, from order of C. P. Lackawanna Co., Sept. T., 1892, No. 1181, discharging rule to show cause why the return of the sheriff should not be set aside and judgment stricken off.

Appeal, No. 34, Jan. T., 1900, by-defendant in a suit of George G. Winans against L. M. Bunnell, from judgment of C. P. Lackawanna Co., Sept. T., 1896, No. 393, on verdict for plaintiff. Opinion by W. D. Porter, J. Assumpit. It appears from the record that defendant, Bunnell, had an interest in land in New Hampshire which was believed to-contain valuable deposits of gold.

Appeal, No. 157, Oct. T., 1899, by-defendants in a suit of W. O. No. 73, P. O. S. of A. against S. P. Thomas, Jos. R. Thomas and Jere Fessler, from judgment of O. P. Schuylkill Co., July T., 1894, No. 278, on verdict for plaintiff. Opinion by Orlady, J. Assumpsit. It appears from the record that this was an action on the bond of S. P. Thomas, treasurer of plaintiff association for the balance due at the expiration of his term of office.

Appeal, No. 200, Oct. T., 1899, by plaintiff, in a suit of C. C. Vanderslice against The Royal Insurance Company, from judgment of C. P. No. 3, Phila. Co., March T., 1897, No. 179, on verdict for defendant. Opinion by W. D. Porter, J. Orlady, J. dissents. Assumpsit. It appears from the record that plaintiff having exchanged certain properties with Alex. Simpson, Jr., the parties met for final settlement and the fire policies were duly assigned in blank by Mr. Simpson.

Appeal, No. 5, Jan. T., 1900, by defendant, in a suit of Commonwealth of Pennsylvania against Louie V. Warner, from sentence of Q. S. Bradford Co., Sept. Bess. 1897, No. 20, on verdict of guilty. Opinion by W. D. Porter, J. Indictment for assault. of the 44th judicial district, specially presiding.

<p>Decedent's estate — Excessive distribution to legatee — Equalization from proceeds of real estate — Judgment creditors of legatee.</p> <p>Where a legatee has been overpaid out of the personal estate beyond his distributive share, whether because of peculiar influence with the executors or because he was one of them, the amount must be charged against him at the next distribution, and he is entitled to no further distribution until the shares of the other distributees are equalized. That the fund for subsequent distribution is the proceeds of real estate is of no consequence. Neither does a judgment creditor of the legatee stand in any better position than his debtor, nor was it necessary that the finding of the orphans’ court of a definite surcharge should be certified to the common pleas under the Act of March 29,1832, P. L. 197, see. 29, as that act has no application to property that is within the custody and control of the orphans’ court.</p>

<p>Equity practice — Revocation of order — Expiration of term, of court.</p> <p>Where an award is made May 18, awarding a fund in dispute and subsequently stay entered, pending a reargument, after which the award was revoked and rule for payment discharged on July 22, the objection is invalid that the first order was revoked after the term at which it was made, when the May term commenced on the third Monday which was May 15, and the next term commenced on the third Monday of September; it follows that all the proceedings are within the period of the May term.</p> <p>Equity practice — Hearing of bill and answer.</p> <p>A hearing being had, and decree made thereafter, on bill, answer and replication, it must be regarded as an argument on bill and answer where the allegations of the answer are admitted, nor will it be considered reversible error that an answer by two respondents was sworn to by the husband of one of them, he having the fullest knowledge of the matters involved.</p>

<p>Appeal, No. 29, March T., 1900, by Sarah S. Kistler, executrix of Catharine Myers, deceased, .from decree of O. C. Cumberland Co. in distribution.</p> <p>Opinion by W. W. Porter, J.</p> <p>Petition for bill of review and for rehearing of audit.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Errors assigned among others were (Í) in striking off the-confirmation of the account of S. S. Kistler, executrix of Catharine Myers, deceased. (6) The learned auditor erred in his fourth conclusion of law as follows: “ 4. The accountant, should be surcharged with interest on the balance in hands for distribution to legatees from the date of confirmation of account, June 22, 1897, to date of distribution, August 31, 1899.” (11) In entering the following decree: “ The auditor-saw and heard the various witnesses and had an opportunity to judge of the respective weight to be given to their testimony. He believed what was said by Mrs. R. S. Waidlich and Mrs. Nannie North, notwithstanding their truthfulness, was impeached by the. accountant, and we can see no reason why his findings based thereon should be disturbed. The auditor also properly dismissed, for causes clearly stated by him, the motion made on behalf of accountant to open the-audit and take the testimony of Rev. John Kistler and others. We find no error in any of his conclusions either of fact or of law and think they are fully sustained by the evidence in the= case. And now, December 20, 1899, the exceptions to the-auditor’s report are dismissed, the report is confirmed and the^ accountant is directed to pay out the fund in his hands in accordance with the schedule of distribution prepared by the-auditor.”</p>

<p>Appeal, No. 5, March T., 1900, by-plaintiff in a suit of Hamilton W. King, assignee of A. B. Kauffman, against Lewis Bosserman from judgment of C. P. Adams-County, Jan. T., 1899, No. 4, in favor of defendant on case-stated.</p> <p>Opinion by W. W. Porter, J.</p> <p>Case stated.</p> <p>It appears from the case stated that a farm of Aaron B.. Kauffman was sold under execution on October 15, 1896 to-Lewis Bosserman, the defendant, and a sheriff’s deed therefor-duly executed and delivered on October 19, 1896. The farm was leased to one Humpert who remained on the farm after the= sale until April 1, 1897, under a lease from Kauffman. On September 2, 1896, Kauffman made an assignment for the benefit of creditors to the plaintiff. The rent reserved for the-farm was one half of all the crops raised thereon. There was-no definite time fixed for the payment of rent. Previous to the; sale and delivery of the sheriff’s deed, of the crop grown oil. the farm there were 1,585 bushels of corn on the ear, which, had been severed, husked, garnered and set apart, one half of' which, 792 bushels being set apart in the landlord’s crib andi one half or 792 bushels in the tenant’s crib, and the balance-of 930 bushels, was on the shock in the field, unhusked, not-garnered and none of the same set apart as the landlord’s share.. The value of the corn at the time of the acknowledgment of the sheriff’s deed was $87.12. On the day of the sheriff’s sale* there was of the crop grown on the farm 400 bushels of oats in the sheaves in the mow of the barn, unthreshed and not divided or separated. The value of the said oats was eighteen cents a bushel.</p> <p>If the court were of opinion that plaintiff was entitled to receive one half of all the corn and oats, divided and undivided at the date of the delivery of the deed, then verdict and judgment for plaintiff for $174.27 with interest; or if the court be of opinion that plaintiff was only entitled to the amount of the corn that was harvested and divided at the date of delivery of the deed, then verdict and judgment for plaintiff for $87.12, with interest.</p> <p>The court entered judgment for plaintiff for $87.12 with costs of the action ; costs on the case stated to be paid by plaintiff. Plaintiff appealed.</p> <p>Errors assigned were (1) in not having held that the deed of assignment by Kauffman created a legal severance of the growing crops so as to vest the landlord’s title in the same on the leased premises in the assignee of the landlord and that the same could not pass in any event to a sheriff’s vendee of the land at a sale subsequent to the assignment — the legal severance. (2) In not having held that the crops having been as a fact severed prior to a sheriff’s sale of the land passed to the landlord’s assignee and not to the sheriff’s vendee under a deed acknowledged after such severance. (3) In ruling that such crops as were severed prior to a sheriff’s sale of the land but threshed and divided by the tenant of the landlord after the sale under a lease payable in kind passed the landlord’s share of the same to the sheriff’s vendee, and that the said crops did not vest in the assignee of the landlord. (4) In entering judgment on case stated for plaintiff for $87.12 and in not having entered judgment on the case stated in favor of the plaintiff for $174.27.</p>

<p>Statutes — Oleomargarine act of 1899 is constitutional.</p> <p>The Act of May 5, 1899, P. L. 241, regulating the manufacture and sale of oleomargarine, butterine, etc., is not in conflict with or in violation of the constitution of the United States, giving to Congress the exclusive power to regulate commerce between the states.</p> <p>Oleomargarine — Purport of act of 1899 declared.</p> <p>The intention of the legislature to be extracted from the act of 1899 is to prohibit the imitation of yellow butter by any admixture 'or addition to oleomargine during or after manufacture. The legislature may punish the manufacturer or vendor of oleomargarine for adding any color thereto. The effect of the statute is that butter may be colored yellow, but oleomargarine may not be so colored. Oleomargarine legislation reviewed.</p>

Appeal, No. 117, Jan. T., 1899 by Almira Sutton et al., guardian, and heirs and distributees, from the audit of the second partial account of Peter Sutton and Annie G. Shelley, executors of Silas Sutton, deceased, from decree of O. O. Luzerne Co., No. 704 of 1875 in distribution allowing claim of Peter Sutton as a creditor. Opinion by W. W. Porter, J., Concur^ ring opinion by W. D. Porter, J. Beaver, J., concurs. Exceptions to audit.

<p>Practice, O. P. — Appeal from justice — Judgment by default of appearance.</p> <p>Where a defendant has appealed from the judgment of a justice he is technically in court, and judgment may not be entered by default for want an "appearance.</p> <p>Practice, G. P. — Judgment for want of affidavit — Notice.</p> <p>A judgment may not be entered, for want of a sufficient affidavit of defense, in proceedings on appeal from the judgment of a justice where the record fails to show that the defendant has had written notice that the statement has been filed and that an affidavit of defense is required.</p>

Appeal, No. 4, Feb. T., 1900, by Agnes B. Dailey, from decree of C. P. Lycoming Co., Sept. T., 1897, No. 92, confirming auditor’s report in the matter of the account of Anson Underwood, assignee of Jonathan Dailey. Opinion by W. W. Porter, J. W. D. Porter, J., dissents. Exceptions to auditor’s report. of the 25th judicial district, specially presiding. It appears from the record that, on June 21,1897, Jonathan Dailey and his wife Agnes C. executed a deed of assignment.

<p>Appeal, No. 41, Jam T., 1900, by plaintiff, in a suit of George P. Cotner against Montour county, from judgment of C. P. Montour Co., Jan. T., 1899, No. 66, in favor of defendant on case stated.</p> <p>Opinion by Rice, P. J. Orlady, J., dissents.</p> <p>Case stated.</p> <p>It appears from tbe case stated tbat at tbe joint session of tbe county commissioners and tbe county auditors of tbe county of Montour, the rates of the commission of the county treasurer of said county were fixed by the following resolution:</p> <p>“ Resolved, that the commission of the county treasurer for the ensuing year A. D. 1897 be fixed as follows, viz: Three per cent on all ordinary county funds received and paid by him for county purposes, including dog tax and return county tax (unless otherwise provided by law), and that no double commission be allowed on the disbursement of any county funds.” That in accordance with the aforesaid resolution the plaintiff, as county treasurer, received three per cent commission on the ,sum of $17,142.37, actually disbursed by him out of the county fund, and that there still remains as a balance in the hands of the said plaintiff as oounty treasurer the sum of $5,495.15 undisbursed, which said balance is to be transferred and handed over to Philip C. Newbaker as plaintiff’s successor as said county treasurer. That it has formerly been the custom to allow outgoing county treasurers of said county a commission upon smaller undisbursed balances in their hands as such. That the county auditors of the said county refuse to pay the plaintiff any commission on the undisbursed balance for the reason that such commission is illegal, unwarranted and contrary to the specific language, intent and meaning of the aforesaid resolution passed January 9, 1897, fixing the commission ■of the said plaintiff as such comity treasurer.</p> <p>The court entered judgment in favor of the defendant, with costs. Plaintiff appealed.</p> <p>Error assigned was entry of judgment in favor of defendant.</p>

<p>Appeal, No. 104, April T., 1900, by defendant, in a suit of Alexander & Co. against H. Goldstein,, from decree of C. P. Washington Co., Nov. T., 1899, No. 138. refusing exceptions to the record of an alderman and confirming his judgment.</p> <p>Per Curiam.</p> <p>Certiorari to judgment of an alderman.</p> <p>It appears from the record that a certiorari was directed to John Holland, alderman, for the purpose of determining the validity of a judgment and execution under which defendant was arrested and delivered into the custody of the sheriff of Washington county.</p> <p>Other essential facts sufficiently appear in the opinion of the court below.</p> <p>The return of the alderman in this case is as follows :</p> <p>“ Alexander & Co., v. H. Goldstein. } Transcript from the docket of John Holland, alderman. Second ward, Monongahela J City, Washington Co., Pa.</p> <p>“ October 11, 1899, capias issued to Dewit Parkinson, constable, -upon the sworn complaint of Morton Black, agent of plaintiff, as follows: That the defendant, H. Goldstein, at Monongahela city, Washington county, Pennsylvania, on Monday, October 9, A. D. 1899, came into the possession of $100, lawful money of the United States, then and there being the money and property of Alexander & Co., that possession thereof was obtained through mistake of affiant in balancing the bank book of defendant, and then and there in and through such mistake said money was paid to said defendant, who, since having been informed of said mistake, wrongfully, fraudulently and illegally refused to return the same. Whereupon affiant says that said plaintiff has unjustly suffered damages by said fraudulent acts of defendant and brings this action of trespass in trover arid conversion to recover said currency or money or the value thereof. Same day defendant was arrested and being at office at 10 P. M. was required to furnish bail in $300 for his appearance at office, October 13, 1899, at 10 A. M. for trial; upon his failure to furnish bail, he was placed, in charge of the said constable Dewit Parkinson, until said time of trial, he being a nonfreeholder.</p> <p>“ Now, October 13, 1899,10 o’clock A. M., parties appear. Defendant refused to plead to complaint of plaintiff. Morton Black sworn for plaintiff. Defendant refused to testify, and offered no evidence. Whereupon judgment publicly for plaintiff in $100 and costs of suit. Same day, to wit: October 13, 1899, execution with capias issued to D. C. Parkinson, constable returnable November 2, 1899.</p> <p>“October 14, 1899, execution returned, ‘no goods, and the defendant in custody.’</p> <p>“ October 16, 1899, proceedings returned to court of common pleas on certiorari. (In habeas corpus proceeding’.)</p> <p>“Amended return: And now, October 14, 1899, comes Dewit O. Parkinson, constable, and returns that he made diligent search for any goods and chattels belonging to the said defendant within said county, and having found none, that he by authority of this writ lias taken the body of the said- defendant into his custody and conveyed him to the common jail of said county there to be safely kept by the sheriff or keeper thereof until the judgment, interest and costs of this action be fully paid or he shall otherwise be discharged by law. So answers Dewit C. Parkinson, constable.</p> <p>“Washington County,</p> <p>“ Monongahela City :</p> <p>“ I certify that the above is a correct transcript of the proceedings had and remaining before me in the above suit and of record on my docket.</p> <p>“Witness my hand and seal this 1st day of November, A. D. 1899.</p> <p>“John Holland, [Seal.] “Alderman.”</p> <p>The exceptions taken to the record of the alderman as certified, are as follows:</p> <p>[1. This being an action of trover and conversion to recover money received by H. Goldstein from Alexander & Company, through a mistake, the alderman had no jurisdiction to commence the proceeding by issuing a capias for the arrest of the defendant, H. Goldstein.] [1]</p> <p>[2. The action not having been brought to recover money collected by a public officer nor for official misconduct, the alderman had no jurisdiction to issue a capias for the arrest of the defendant, H. Goldstein.] [2]</p> <p>3. The execution containing a warrant of arrest upon which the defendant, H. Goldstein, was committed to the custody of the sheriff is illegal and void for the reason that prior to its issuance no affidavit was made that the judgment was for the recovery of money collected by a public officer or for official misconduct, as required by section 28 of the Act of July 12, 1842, P.L. 339.</p> <p>[4. Trover and conversion will not lie to recover an overpayment by a bank to a depositor by mistake, and the capias and execution containing a warrant of arrest are illegal and void.] [3]</p> <p>5. The alderman had no jurisdiction to issue a. capias.</p> <p>6. The alderman had no jurisdiction to issue an execution containing a warrant of arrest.</p> <p>7. There is no allegation upon the record that Alexander & Company is a corporation, and the names of the individual members of the firm are not given.</p> <p>The last exception was not pressed at the argument, and the first six raise substantially one question, and that is that the record on its face shows that the alderman did not have jurisdiction to issue a capias for the arrest of the defendant below; that the suit should have been instituted by a summons for money had and received, and that any judgment recovered could only be enforced by a sale of the defendant’s property on an execution.</p> <p>There can be no doubt that section 2 of the Act of March 20, 1810,5 Sm. L. 162, and sections 1 and 4 of the Act of March 22, 1814, 6 Sm. L. 182, give to justices of the peace and aldermen acting as such, jurisdiction in actions of trover and conversion, to be commenced by either summons or capias if the defendant is not a freeholder or female. Therefore, John Holland, aider-man, who is ex officio a justice of the peace (Act of March 24, 1873, P. L. 377, sec. 90), had jurisdiction in actions of trover and conversion when the plaintiffs below instituted their suit, and the question for our decision is not had he jurisdiction to try such an action, but do the facts in the case as shown by the record vindicate his action, first, in bringing an action of trover and conversion, and second, in issuing a capias in place of a summons in the case at bar.</p> <p>The action of trover and conversion, which is a species of action on the case, lies for the recovery of damages for the wrongful conversion of personal property, whether consisting of merchandise, money, bonds, notes, title deeds or any •other chattel merely personal, in which a man may have a valuable property. It is founded on the supposition that the chattel came into the defendant’s possession by finding, and that he afterward converted it to his own use; but the allegation of finding is, in general, a fiction and it is the conversion only that is material and traversable: 2 Troubat & Haley’s Pr., sec. 1559.</p> <p>It lies for money, though it be not in a bag or otherwise distinguishable from other coin, because the thing itself is not to be recoverable in this action but merely damages for the conversion : 2 Troubat & Haley’s Pr. sec. 1559.</p> <p>Trover lies for the conversion of money when there is an-obligation on the part of the defendant to return the specific-coin or notes intrusted to his care: 26 Am. & Eng. Ency. of Law, 766.</p> <p>The test seems to be, is there any obligation on the part of' the defendant to deliver the specific money to the plaintiff ? Of course, the action is always maintainable where the defendant unlawfully took the money out of the possession of the-, plaintiff: 26 Am. & Eng. Ency. of Law, 766, note 3.</p> <p>If the law of our commonwealth is as stated in these citations, then, in our opinion, there can be no doubt that an action of trover and conversion would lie against the defendant below if, after knowing that he had in his possession $100 in money which belonged to the plaintiff in error paid to him by mistake, he refused upon demand to return it to its rightful owner.</p> <p>This brings us to the vital question in this case and that is,, should the action have been commenced by summons, and was-the issuance of a capias unlawful under the provision of the Act of July 12, 1842, P. L. 339? The 1st section of that-act provides that from and after its passage, “ no person shall be arrested or imprisoned on any civil process issuing out of any court of this commonwealth in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract, or due upon any contract, express or implied, or for tire recovery of any damages for the nonperformance of any contract,” except in certain cases named which would not include the case at bar. The '23d and 24th sections provide that no execution with clause of capias, and that no capias shall issue on any judgment entered by a justice of the peace, “ upon any demand arising upon contract-express or implied,” except “ that such judgment was for the recovery of money collected by any public officer or for official misconduct.”</p> <p>Does the record of the alderman before us show that the demand of the plaintiff in error was “ founded upon contract or due upon any contract, express or implied, or for the recovery of any damages for the nonperformance of any contract,” or does it show that the judgment entered was “ upon a demand arising upon contract, express or implied?” If it does,. the judgment must be reversed; if it does not, it should be affirmed.</p> <p>The defendant in error was clearly guilty of a tort when he-refused to return to the plaintiffs in error the $100 of their money which he knew he had by mistake received from them,, and which he still had in his possession and control; such a-refusal was a conversion.</p> <p>Now, there are two kinds of torts; one dependent upon a contract, and the other independent of any contract. Addison on Torts, at page 15, expresses the principle in this way: A tort may be dependent upon or independent of contract. If a contract imposes a legal duty upon a person, the neglect of that duty is a tort founded on contract, so that an action ex contractu for the breach of the contract, or an action ex delicto for the breach may be brought at the option of the plaintiff. When there is a violation of a legal right independent of any contract between the parties, such as an invasion of a right of property .... then the tort is not founded on contract, and an action ex delicto is alone maintainable. Again, there are cases in which a tort may be so committed as to give-rise to an implied promise to pay, as where one wrongfully disposes of the property of another and receives the consideration therefor. In such cases the injured party may waive the tort and sue on the implied promise to pay the consideration received by the wrongdoer. We have, then, cases in which the plaintiff can elect between an action ex contractu and ex delicto, cases in which he can waive the tort and bring an equitable action on an implied promise growing out of the wrongful act of the defendant, and cases in which he can bring only an action ex delicto.</p> <p>It is clearly the law that where a plaintiff has an election between an action ex contractu and an action ex delicto, the-defendant cannot, since the act of 1842, be arrested on a. capias.</p> <p>The cases of Philadelphia Coal Company v. Huntzinger, 6-W. N. C. 300, and Gallagher v. Norcross, 7 Phila. 623, cited by counsel for the plaintiff in error, and many others that might be cited, fully support this contention.</p> <p>But in a case where the plaintiff may waive the tort and bring an equitable action on an implied promise, growing wholly out of the wrongful act of the defendant, such is not the law, but on the contrary a capias may issue.</p> <p>In this latter class of cases, where an action of assumpsit for money had and received is sustained, the action does not rest on an express or implied contract between the parties ; the implied promise, which is the foundation of the action, is in a sense a fiction of law which the defendant cannot gainsay without setting up his own turpitude, and this the law will not allow him to do. Such an action has been held to be an equitable action and a substitute for a bill in equity. To illustrate : A person wrongfully or by mistake comes into the pos.■session of the coat of another, and with knowledge of the ■ownership he sells it to a third party for $25.00: the owner' ■could waive the tort and bring an action of assumpsit for the ■$25.00 as money had and received for his use based on an implied promise; in such a case the implied promise would be a fiction of law, but the defendant could not controvert the alleged promise without setting up his tortuous conduct, and this the law will not permit. In our opinion such an implied promise does not come within the meaning of the act of 1842, when it speaks of actions and judgments “ founded upon contracts, express or implied,” etc., a fiction implied promise is not a contract.</p> <p>In the case of Hopper v.. Williams, 2 Clark, 448, where the ■defendant was arrested on a capias and sought to be released on common bail, the court says: “ This action is not brought upon a contract, but to recover damages for deceit and fraud, and therefore is not within the provision of the act referred to (1842). A party may in many cases waive a tort and bring assumpsit, as the plaintiff might have done here, declaring the money had and received to his use, if the note had been disposed of and the proceeds actually received by the defendant. But it will not certainly be contended that he is obliged to adopt that course.”</p> <p>In the brief of the counsel for the plaintiff in error the case ■of Brown v. Treat, 1 Hill, 225, is cited to sustain his contention. In Suydam v. Smith, 7 Hill, 182, that case is explained '.and limited, and the court held (the law in New York being practically the same as our act of 1842), that “ where there has been a wrongful conversion of goods for which trover will lie, the defendant may be held in bail in whatever way the property came into his possession. This rule applies to the case of a warehouseman who has rendered himself liable in trover, notwithstanding the plaintiff has the right to waive the tort and proceed upon the contract of bailment.”</p> <p>E. D. Rundell made a contract with Kalbfus & Jones whereby he agreed to buy hay on joint account with them, he to do all the work and Kalbfus & Jones to furnish the money and to do all the selling, neither party to work with or make similar com tracts with other parties. Rundell bought hay with $1,000 that was furnished by Kalbfus & Jones under their agreement; there was a sudden rise in the price of hay and Rundell wrongfully turned over the hay to another firm, Billings & Fell. Kalbfus & Jones obtained judgment against Rundell for $552 damages in a suit against him and Billings & Fell for conspiracy. A capias ad satisfaciendum was issued on this judgment against Rundell and he was arrested, whereupon a rule issued to show cause why the writ should not be quashed. Seable, P. J., discharged the rule, and in his opinion refers to the case of Bower v. Burdick, 3 Clark, 226, relied upon by the plaintiff in error in the case at bar, as not ruling the question before him. The Supreme Court affirmed the ruling of Judge Seable, or in a per curiam opinion says that the judgment was in “ an action for a tort and not upon a mere breach of contract:” Kalbfus & Jones v. E. D.- Rundell, 134 Pa. 103.</p> <p>An inspection of the record returned by Alderman Holland shows that the plaintiff in error was a depositor in the bank of the defendant in error, and came to the bank to receive the balance that stood to his credit on the books of the bank; that $100 was paid him by mistake in addition to what was the true balance due him ; that, after being informed of the mistake, he wrongfully and illegally refused to return the same, and that the action instituted was trover and conversion to recover damages “unjustly suffered by the plaintiff below by said fraudulent acts of the defendant below.”</p> <p>In our opinion tins record does not show “ a proceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract, or due upon contract express or implied, or for the recovery of any damages for the nonperformance of any contract,” or that the judgment entered by the alderman was “ rendered upon a demand arising upon contract express or implied” within the meaning of sections 1 and 23 of the act of 1842, and, therefore, the judgment of the alderman must be affirmed.</p> <p>[And now, November 9,1899, this cause came on to be heard, and was argued by counsel, whereupon upon due consideration, the exceptions to the record of the alderman are overruled and his judgment affirmed.] [4]</p> <p>November 9, 1899, counsel for plaintiff in error excepts to the foregoing decree, and at their request the exception is noted and bill sealed. Defendant appealed.</p> <p>Errors assigned were (1-3) in not sustaining the first, second and fourth exceptions to the record of the alderman, reciting same. (4) In entering decree, reciting same.</p>

<p>Attachment act of 1869 — Dissolution of attachment — Recovery on bond— Practice.</p> <p>In proceedings of attachment under the act of 1869 where the defendant’s affidavit admits the debt but denies the fraud upon which the attachment was issued, it is not sufficient to prevent judgment;' and a judgment upon a verdict of the jury sustaining the allegations of fraud, is not an essential prerequisite to a recovery on a bond to obtain a release of goods seized under the attachment.</p> <p>The act provides a mode in which the defendant in the attachment may have a hearing upon the allegations of fraud upon which the attachment issued, and this mode must be pursued if a dissolution is to be affected.</p>

Appeal, No. 67, April T., 1900, by commissioners of Sewicldey Water Works, from decree of O. C. Allegheny Co., June T., 1899, No. 67, in distribution of the estate of Charles E. Cornelius, deceased. Per Curiam. Exceptions to adjudication and decree of distribution of specially presiding. Before the court in banc.

Appeal, No. 38, April T., 1900, by plaintiff, in a suit of F. M. Meliaffey against H. G. G. Fink, from order of C. P. No. 1, Allegheny Co., Dee. Term, 1896, No. 336, making absolute rule for arrest of judgment. Per Curiam. Motion in arrest of judgment. Before the court in banc. It appears from the record that this was an action of assumpsit brought before an alderman. After hearing judgment was rendered by the alderman for the amount of $47.00.

<p>Justice of peace — Penalty for taxing illegal fees.</p> <p>The item in the fee bill of 1893, “ written notice in any case twenty-live cents, ” means such notice as it is the duty of the justice to give; it .does not include a notice to the plaintiffs of the return day of the summons .and that the case will be heard on that day. A justice is subject to the penalty imposed by the Act of May 26, 1897, P. L. 100, when he taxes [this fee.against the defendant.</p>

Appeal, No. 84, Oct. T., 1900, by defendants in a suit of Commonwealth against Nicholas George and Jacob George, from sentence of Q. S. Blair Co., Jan. Sess., 1900, No. 22, on verdict of guilty. Per Curiam. Indictment for conspiracy. It appears from the record that Nicholas George and Jacob ■George were indicted for the crime of conspiring to cheat W. H. Strauss out of a claim held by him against Jacob George.

<p>Appeal, No. 1, April T., 1901, by-John Kilgore & Co., in the matter of their petition for a wholesale license, from decree of Q. S. Westmoreland Co., Feb. T., 1900, No. 6, refusing a wholesale license.</p> <p>Per Curiam.</p> <p>Petition for wholesale license. Before the court in banc.</p> <p>It appears from the record that an application was made under the Acts of March 27, 1866, P. L. 332, April 11,. 1866, P. L. 766, April 5, 1870, P. L. 910, and June 9, 1891,, P. L. 257. There were no remonstrances filed against the-, granting of the license.</p> <p>The court below made the following order: “ And now, March 27, 1900, after full hearing at time fixed by rule of' court, and after due consideration, the within application is. refused.” Petitioner appealed.</p> <p>Error assigned was the record showing that no objections', were made or remonstrances filed to the application. The court, erred in refusing same.</p>

<p>Appeal, No. 117, April T., 1900, by-defendants, in a suit of Randolph Chester, for use of Robert Clark, against John P. McIntyre & Company, from order of C. P. No. 1, Allegheny Co., March T., 1899, No. 441, dischargingrule to strike off award of arbitrators.</p> <p>Per Curiam.</p> <p>Rule to show cause why award of arbitrators should not be set aside. Before the court in banc.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The court below discharged the rule to strike off the award. Defendant appealed.</p> <p>Error assigned was in discharging the rule to set aside award of arbitrators.</p>

<p>Appeal — Jurisdiction, Superior Gourt — Error in charge where prisoner acquitted.</p> <p>Where a prisoner has been acquitted by a jury on a criminal charge the appellate court has no power or jurisdiction to examine an appeal to the rulings of the trial judge and declare whether they were right or wrong.</p>

<p>Appeal, No. 51, Jan. T., 1900, by defendant, from judgment of C. P. Luzerne Co., May T., 1896, No. 783, dismissing exceptions to referee’s report in favor of plaintiff.</p> <p>Opinion by Oblady, J.</p> <p>It appears from the record that an action of assumpsit was brought by plaintiff against the commissioners of Luzerne county to recover the sum of $486 for advertising the general election in pursuance of a contract made with the sheriff of Luzerne county. The referee found as a fact that the sheriff of Luzerne county directed the plaintiff to publish in his newspaper a proclamation of the general election to be held in November, 1894; that such publication was made in accordance with such directions; that it was nota published in any other newspaper than that published by the plaintiff; that after the contract for printing had been made, the sheriff posted in the various election districts of the county hand bills containing his proclamation of the general election of November, 1894, for which he received pay from the commissioners amounting to $126. The referee reported in favor of the plaintiff the amount of $486 with interest from December 3, 1894. •</p> <p>Exceptions to this report were dismissed by the court.</p> <p>Error assigned among others was (3) in dismissing defendant’s fifth exception to the referee’s report, the said exception being as follows : “ 5. The learned referee erred in his fourth conclusion of law, which is ‘ that under the evidence and law of this case, judgment should be entered for the. plaintiff and against the defendant for $486, with interest from December 3, 1894, and the prothonotary will so enter such judgment unless exceptions be filed thereto.’ ”</p>

Appeal, No. 35, Jan T., 1900, by defendants, from judgment of C. P. Monroe Co., Sept. T., 1898, No. 13, on verdict for plaintiff. Opinion by Orlady, J. Assumpsit.

Appeal, No. 85, Oct. T., 1899, by-plaintiff, in suit of Helen V. Roos against the Philadelphia, Wilmington and Baltimore Railroad Company, from judgment of C. P. No. 4, Phila. Co., March T., 1894, No. 1096, on verdict for plaintiff. Opinion by Orlady, J. Assumpsit. This was an action to recover the value of goods injured on defendant’s railroad. The loss was fixed at 11,700.

Appeal, No. 193, Oct. T., 1899, by garnishee, in suit of the board of charities and correction for the city of Philadelphia against Edwin J. Lockard, defendant, and the Fidelity Insurance, Trust and Safe Deposit Company, garnish ee, from judgment of Q. S. Phila. Co., confirming warrant of seizure. Opinion by Orlady, J. Proceedings in warrant of seizure. The facts sufficiently appear in the opinion of the court.

<p>Principal and agent — Good faith of agent — Receipts of commissions— Set-off.</p> <p>A principal is entitled to the dealers’ lowest price, and a servant cannot profit by conspiring against the interest of his employer.</p> <p>A superintendent of mills received a commission from the vendors for machinery purchased by his employers. Held, that in a suit by the employee to recover a balance of wages that the company could set off this commission received by the employee.</p>

<p> Assault with intent to ravish— Question for jury. </p> <p>Where the several assignments of error raise but the single question whether there was sufficient evidence to be submitted to the jury of an intent to ravish and of the amount of force used, the appellate court will not disturb the verdict where the conduct of defendant in following the prosecutrix, supplemented by no lack of overt acts, culminating in a rude and violent assault and a persistent following after outcry made, amounted to legitimate evidence of the intent, and where the evidence disclosed an assault made with such force that only unusual agility enabled the prosecutrix to elude his grasp.</p>

<p>Malicious prosecution — Proof of malice and probable cause essential.</p> <p>Malice and want of probable cause must be proved in order to entitle a plaintiff to recover damage for a malicious prosecution. These are-essential and must coexist.</p> <p>Evidence — Test of probable cause — Reasonable belief.</p> <p>The question whether or not there was probable cause does not depend-on the actual state of the case in point, of fact. The test is the prosecutor’s-belief of its existence, based, however, upon reasonable grounds.</p> <p>Charge of court — Detached portions.</p> <p>Reversible error will not be inferred from detached portions of the charge which do not convey the court’s meaning as gathered from the-whole charge.</p> <p>Evidence — Malicious prosecution — Probable cause.</p> <p>Where plaintiff in a suit for malicious prosecution had been charged with larceny of a specific amount received on a specific lease, testimony as to what was done as to other leases made by plaintiff as agent for defendant was irrelevant and therefore properly rejected.</p> <p>Appeal — Defective assignment.</p> <p>An assignment of errorto the rulings on evidence is defective when not. based upon an exception.</p>

<p>Appeal, No. 140, April T., 1900, by plaintiff, in a suit of Nellie Vetter, executrix and sole legatee of John J. Vetter, who was assignee of John G. Newmeyer, against Henry J. Vetter, Eliza S. Spuhler, Mary A. Maffit and Joseph Beale, terre-tenant, from judgment of C. P. No. 2, Allegheny Co., July T., 1899, No. 624, refusing judgment for want of a sufficient affidavit of defense.</p> <p>Opinion by Beaver, J.</p> <p>Sci. fa. sur mortgage. Before the court in banc.</p> <p>It appears from the record and affidavit of defense that:</p> <p>1. In 1859, John J. Vetter, Sr., died intestate, seized of the property, the subsequent mortgaging of which gives rise to this ■controversy, leaving to survive'him his widow, Eva Vetter, and ■.five children, to wit: Stephen A., Mary A. Maffit, Eliza S. .Spuhler, Henry J. and John J., Jr.</p> <p>2. In 1876, at No. 45, June term, 1876, C. P. No. 1, the widow and five children conducted a partition proceeding in •equity in which the master and commissioners made return that the real estate could not be divided, and valued the same at ;$6,000; and ultimately the master was ordered to sell the prop•erty for one third cash, one third payable in one year, and the remaining one third payable at the death of Eva Vetter, the ■widow. The master, John C. Newmeyer, sold the property to ■John J. Vetter, Jr., for $8,025.</p> <p>3. January 13, 1877, Newmeyer conveyed the property to ■ John J. Vetter, Jr., for $8,025, and on the same date John J. Vetter, Jr., made to Newmeyer, trustee, his purchase money mortgage for $5,350, payable $2,675 on January 13,1878, with interest payable annually, and $2,675 at the death of Eva Vetter, the widow, with interest payable annually to her during her lifetime.</p> <p>4. January 15,1877, two days later, John J. Vetter, Jr., and .his wife, now the appellant herein, executed three deeds of release or quitclaim to his brother and two sisters respectively, ■to wit: Henry J. Vetter, Mary A. Maffit and Eliza S. Spuhler, vesting in each of them one fourth of the property, “ subject •to the payment of its proportion of dower of Mrs. Eva Vetter, •widow of John J. Vetter, deceased, and also to the proportion ■of the purchase money mortgage to John C. Newmeyer, trustee, ■dated January 13, 1877, for $5,350.”</p> <p>5. March 28, 1877, after settlement of his account, New-meyer assigned to Mary A. Maffit, Eliza S. Spuhler, Henry J. Vetter and John J. Vetter, Jr., four fifths of the mortgage, that as to say one fifth to each. The remaining one fifth of the mortgage, being tbe interest of Stephen A. Vetter, under order-of court was assigned at the same time to Theobald, a judgment, creditor of Stephen A. Vetter. That one fifth interest was; afterward paid in full and satisfied of record.</p> <p>6. December 19, 1878, John J. Vetter, Jr., and his wife now-appellant herein, for a consideration of $2,250, by deed in the-customary form and with covenant of general warranty, conveyed all their right, title, interest, property, claim and demand in law, equity, or otherwise, howsoever, of, in and to the-said premises unto Henry J. Vetter, Eliza S. Spuhler and Mary A. Maffit “ subject to its proportion of dower of Mrs. Eva, Vetter, widow of John J. Vetter, deceased.”</p> <p>7. November 13, 1889, John J. Vetter, Jr., died having by his will devised and bequeathed his estate to his wife and appointed her executrix.</p> <p>8. March 23, 1894, Eva Vetter, widow of John J. Vetter,. Sr., and mother of John J. Vetter, Jr., died. The interest on., the mortgage payable to her during life was paid in full.</p> <p>9. December 12, 1898, Henry J. Vetter, Eliza S. Spuhler and Mary A. Maffit conveyed the premises to the defendant,, Joseph Beale.</p> <p>The court refused judgment for want of a sufficient affidavit, of defense. Plaintiff appealed.</p> <p>Error assigned was refusal of judgment for want of a sufficient affidavit of defense.</p>

<p>Equity — Specific recovery of a battle flag — Failure of plaintiff to show .title.</p> <p>A bill in equity will lie for the detention of a personal chattel of peculiar value like a battle flag, where the law can afford no adequate ■compensation in damages, provided that title in the plaintiff be shown.</p> <p>A battle flag presented to the 85th Regiment of Pennsylvania Volunteers while in the service of the United States was the property of the regiment while in the service and after their discharge the title to said flag remained in the surviving members. No assignment or transfer of the flag having been made by the surviving members as such, held, on a bill brought by :an unincorporated regimental association composed of a part of the sur•viving members, less than a majority, to recover possession of the flag ■from defendant, also a member of the regiment, that no title to the flag was shown in the association and that the bill must be dismissed.</p>

Appeal, No. 71, April T., 1900, by T. M. Fehl et al., from decree of O. C. Westmoreland Co., May T., 1898, No. 15, in distribution of the estate of Elizabeth Fehl, deceased. Opinion by Beaver, J. Exceptions to auditor’s report.

<p>Conclusiveness of judgment in collateral proceeding— Unconfirmed decree of sale.</p> <p>The rule as to the conclusiveness, in a collateral proceeding, of the judgment of a court of competent jurisdiction, cannot be invoked in aid of a decree of sale made by the orphans’ court subject to conditions where neither compliance with the conditions nor confirmation of the sale has been had.</p> <p>Ejectment — Orphans' court sale of minor's interest — Neglect of confirmation.</p> <p>In a judicial sale the rule caveat emptor applies as to the title acquired, and in the making of sales by order of the orphans’ court a strict complianee with all the requirements of the acts of assembly must be observed.</p> <p>In an action of ejectment against the vendee of a minor’s interest under an orphans’ court sale by virtue of the Act of April 18, 1853, P. L. 503, the sale not having been confirmed, nor the conditions upon which the ■sale was decreed complied with, the decree of sale will not be considered ,a final judgment, and the vendee is responsible for the application of the purchase money.</p>

Appeal, No. 88, April T., 1900, by-Sarah A. Lowe, from decree of O. C. Westmoreland Co., Feb. T., 1898, No. 39, confirming auditor’s report making distribution in the estate of John P. Fiseus, deceased. Opinion by Beaver, J. W. W. Porter, J., dissents. Exceptions to auditor’s report. It appears from the auditor’s report that John P. Fiseus died intestate, and that letters were granted to Lewis E. Fiscus, son of decedent, and John Beatty, Jr., who filed an account.

Appeal, No. 42, April T., 1900, by defendant, in a suit of W. S. Gumbert against Alexander W. Logan, doing business as J. W. Logan & Sons, from judgment of C. P. No. 1, Allegheny Co., March T., 1899, No. 326, on verdict for plaintiff. Opinion by Beaver, J. Assumpsit.

<p>Appeal, No. 134, April T., 1900, by plaintiff, in a suit of Slope Mine Coal Company against the Quaker City Mutual Fire Insurance Company of Philadelphia, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1898, No. 581, in favor of defendant on case stated.</p> <p>Opinion by Beaver, J.</p> <p>Assumpsit.</p> <p>The following undisputed facts appear from the testimony:</p> <p>The policy upon which suit is brought bears date June 11, 1897, and runs for the period of one year. The fire which caused the' loss occurred October 28, 1897. Proper notice of the fire was given to defendant company, and also proof of loss furnished to it.</p> <p>Upon the close of the testimony, a verdict was taken in favor of plaintiff, for the amount of its claim, to wit: the sum of $976.41, “subject to the opinion of the court, on the question of law reserved, to wit: whether the policy sued on in this case is valid- and binding on the defendant company, containing as it does the following provision, viz: ‘ If property, real or personal, covered by the policy of a member, be or become incumbered by mortgage, trust deed, judgment or otherwise, the entire policy shall be void unless otherwise provided by agreement indorsed on the policy or added thereto,’ it being admitted that there was an incumbrance, viz : a mortgage on the property insured.” The mortgage bears date January 17,1895, and was an incumbrance upon the property at the date of the negotiating and issuing of the policy. No written application was made for the insurance by the plaintiff company, and no representations were made by the plaintiff that the property was not incumbered, and no questions were asked by the agent of defendant company as to whether there were any liens or incumbrances upon the property.</p> <p>The court below directed judgment to be entered for defendant on the question of law reserved, non obstante veredicto. Plaintiff appealed.</p> <p>Error assigned was in directing judgment to be entered for defendant on the question of law reserved, non obstante veredicto.</p>

Appeal, No. 118, April T., 1900, by defendant, in a suit of J. W. Cupps against the Consolidated Traction Company, from judgment of C. P. No. 3, Allegheny Co., May T., 1899, No. 613, on verdict for plaintiff. Opinion by W. W. Porter, J. Orlady, J., dissents. Trespass for personal injury. It appears from the evidence that the Consolidated Traction Company operates a double track street car line the entire distance of Fifth avenue in the city of Pittsburg.

<p>Street railway — Negligence—Charge of court.</p> <p>Where the issue raised touching the resulting injury to plaintiff’s foot, incident to a premature starting of a street car, was that the injury was due either to improper care and treatment after the injury or to a diseased condition of the foot before and after the accident, it was not error for the trial judge to use the word “ violently” when speaking of the manner, in which the plaintiff’s foot struck the pavement on the premature starting of the car. The plaintiff’s uncontradicted evidence being that she struck the ground with such force as to sprain and injure her ankle.</p>

<p>Street railway — Alighting passenger — Negligence—Question for jury.</p> <p>It is the duty of persons in charge of a railway car to give persons ladened with bundles a reasonable opportunity to alight. Whether or not this was done in a particular case is a palpable issue of fact which cannot be withheld from the jury as there is no fixed measure of care which can be declared by the court as matter of law.</p> <p>Charge of court — Error in omission — Special request.</p> <p>As a general rule, except in flagrant cases, error cannot be assigned of what was not said by the trial judge; and nothing is better settled than that error cannot be assigned for an omission of a judge to charge in a particular way, unless his attention was called to it by a special request.</p> <p>Pain and suffering has no market value but it is a basis of damage for which recovery may be had by way of an allowance in reasonable amount determinable by the jury.</p> <p>In action by husband and wife for injuries to the wife, the court will not reverse because the court charged as follows: “ The wife is entitled to an allowance for pain and suffering which she has endured by reason of this injury; this is all that she is entitled to.” The two verdicts worked an apportionment of the total amount of damages and together included the expenses, the loss of services and the bodily pain and suffering.</p>

<p>Vendor and vendee — Sale of goods — Delay in delivery.</p> <p>A purchaser cannot receive, use and sell the goods of another, and then absolutely rescind the contract upon the ground that the vendor did not deliver the goods upon the very day that the contract called for, keeping both the goods and the money which he had agreed to pay for them.</p> <p>Delay in delivery — Practice, G. P. — Affidavit of defense.</p> <p>An averment in an affidavit of defense that the delivery of goods had been delayed, and that, as a consequence, the defendants have been damaged, is insufficient, even although it may assert that the defendants estimate their damage at a sum stated. The affidavit must set forth with reasonable certainty all the facts which constitute a basis for such assessment.</p> <p>Practice, G. P. — Affidavit of defense — Allegation of overcharge.</p> <p>Where a statement contains several distinct items of claim with a definite averment of the amount due upon each, an affidavit is insufficient which simply asserts that, upon the items taken in the aggregate, there is an overcharge, without stating the amount of the overcharge upon each claim or definitely setting forth the facts which constitute the defense as to each item.</p>

<p>Lessor and lessee — Surety—Change of original terms.</p> <p>If lessors and lessees changed the terms of the original contract without consent of the surety on the lease and the property remained in the possession of the lessor, the surety cannot be held for the rent.</p> <p>Opening judgment — Review of discretion.</p> <p>An application to open judgment is an appeal to the equitable powers of the court, and the action of the court in opening judgment and letting defendant into a defense will not be disturbed by the appellate court where there is nothing to show an abuse of discretion.</p>