Volume 130 — Pennsylvania State Reports

No. 190 October Term 1889, Sup. Ct.; court below, No. 451 September Term 1885, C. P. On September 18,1885, Robert Steckman brought ejectment against John J. Schell and Rose B. Schell, his wife, to recover several parcels of real estate, some of which parcels had been 'vided into town lots.

No. 223 October Term 1889, Sup. Ct.; court below, No. 14 March Term 1888, C. P. On January 12, 1888, Susan Melvin, by her next friend James Melvin, filed a libel in divorce a mensa et thoro from her husband Henry W. Melvin, on the grounds of cruel and barbarous treatment, endangering her life, and of such indignities offered to her person as rendered her condition intolerable and life burdensome and thereby forced her to withdraw from his house and family.

Nos. 282, 233 October Term 1889, Sup. Ct.; court below, No. 24 December Term 1881, C. P. in Equity. On September 12, 1881, John George Schuey filed a bill in equity against John Scott, to enforce specific performance of a contract for the sale of a lot of ground in Kittanning borough.

No. 237 October Term 1889, Sup. Ct.; court below, No. 132 September Term 1885, C. P. On July 13, 1883, an action in assumpsit was brought by Joseph Gaskill and Harry Miller, trading as Gaskill & Miller, for use of Joseph Gaskill, against Eben Crawford and others, trading as E. Crawford & Co., to recover a balance due upon an account. Issue. On December 15, 1886, a trial of the cause was had, when the jury returned a verdict in favor of plaintiff for $292.50.

<p>1. In an indictment under § 17, act of May 13, 1887, P. L. 108, for furnishing liquors to a minor, or person of known intemperate habits, it is unnecessary to aver that the defendant “knowingly and wilfully” furnished, etc. It is sufficient to charge the offence substantially in the language of the act.*</p> <p>2. The said act does not offend against § 3, article HI. of the constitution, declaring that “ no bill.....shall be passed containing more 'than one subject, which shall be clearly expressed in its title: ” there is not a single section of the act, or clause of any section, that is not germane to the subject of the title.</p> <p>3. The proviso to § 19 of the act, that the act shall not be held to authorize the sale of liquors in counties, cities, boroughs or townships having special prohibitory laws, does not render the act violative of § 7, article HI. of the constitution, prohibiting local or special legislation.</p> <p>4. On an indictment for the furnishing of liquors to minors or men of intemperate habits, it is not a defence that the statute under which it was framed was enacted after the granting to the defendant, under prior laws, of a license to sell liquors, which license was still in force.</p>

<p>[To be reported.]</p> <p>1. In the absence of an express contract to pay it, interest as such is recoverable only in cases where there has been a failure to make payment of a liquidated sum due at a fixed day, and by reason thereof the debtor is in absolute default.</p> <p>2. In actions of tort, or in any actions where the damages are not in their nature capable of exact computation, both as to time and amount, no interest is recoverable eo nomine, the default of the defendant not being of a sufficiently absolute nature.</p> <p>3. In actions for unliquidated damages, whether sounding in tort or in contract, whenever the damages are to be assessed on the principle of compensation, and with reference to a definite standard, such as market value, the jury may give additional damages in the nature of interest.</p> <p>4. Such additional damages are not properly interest, nor are they recoverable of right, as interest is: they are simply compensation for delay, measured by the rate of interest, and their allowance depends upon the circumstances of each case and is to be determined by the jury.</p> <p>(a) In an action to recover damages for the negligent destruction of property, the jury were instructed as matter of law, if they should find the plaintiff entitled to damages, to include in their verdict interest upon such damages, from the date of the accident.</p> <p>5. Such an instruction is a technical error, but in such case, instead of reversing therefor a judgment recovered by the plaintiff, the Supreme Court may, with his assent, reduce the amount of the judgment by striking out the interest, and thereupon affirm.</p>

<p>APPEAL BY PLAINTIEE EROM THE COURT OE COMMON PLEAS OE WESTMORELAND COUNTY.</p> <p>No. 43 October Term 1889, Sup. Ct.; court below, No. 785 May Term 1886, C. P.</p> <p>On May 5, 1886, James A. Dick brought assumpsit against Joseph Smith and D. H. Williams, partners trading as Smith & Williams, to recover a balance alleged to be due to the plaintiff upon a promissory note drawn by Smith & Williams, payable to the order of and indorsed by Joseph Smith. On June 28,1886, the plaintiff obtained judgment against the defendants for want of an affidavit of defence and issued thereon a writ of fieri facias. On the following day, June 29th, upon petition of D. H. Williams, the fieri facias was stayed, the judgment opened and the petitioner allowed to make defence, whereupon he pleaded non-assumpsit, payment and the statute of limitations. On May 17, 1887, the death of the plaintiff being suggested, M. M. Dick, his administrator, was substituted as plaintiff.</p> <p>At the trial December 3, 1888, the following facts were shown:</p> <p>James A. Dick was a banker, doing business in West Newton, Pennsylvania. On January 10, 1872, Joseph Smith and D. H. Williams formed a partnership for the purpose of buying and selling grain, which continued until August, 1878, when it was dissolved by mutual consent. On July 15, 1878, the note in suit was signed by Joseph Smith, in the name of Smith & Williams, and negotiated by him at the bank of James A. Dick. The note was as follows:</p> <p>$13,833.50 West Newton, Pa., July 15,1878.</p> <p>Thirty days after date we promise to pay to the order of Joseph Smith, at the office of James A. Dick, thirteen thousand and three hundred and thirty-three 50-100 dollars, for value received, without defalcation or stay of execution.</p> <p>Smith & Williams.</p> <p>[Indorsed by Joseph Smith.]</p> <p>On October 24, 1881, D. H. Williams, by direction of Joseph Smith, paid into the bank of Mr. Dick the sum of one thousand dollars, being the purchase money of Smith’s interest in a certain ware-house, sold by Smith to Williams. This payment was credited upon the note in suit by an indorsement made thereon, in the presence of Williams, to wit: “ Received October 24,1881, of D. H. Williams, one thousand dollars on within, as price of ware-house.” Having shown these facts the plaintiff rested.</p> <p>Thereupon the defendant Williams called Joseph Smith, and having put in evidence the record of the case for the purpose of showing that a judgment had already been obtained against Smith, and that he was not a party to the issue on trial, made the following offer:</p> <p>Counsel for defendant propose to prove by the witness now offered, that the debt for which the note in suit was given, was his own private and individual debt, and was so known to be by plaintiff’s intestate, James A. Dick, deceased, and that it was not the debt of the firm of Smith & Williams. The witness is offered under § 5, act of 1887, the facts here offered to be proved, being against the interest of the witness.</p> <p>Objected to, that the witness was incompetent to testify as to any matters occurring prior to the death of James A. Dick, the plaintiff.</p> <p>By the court: We think the witness competent because judgment has gone against him and his liability is fixed, and the defence here set up by the defendant, Williams, being personal to himself, and the issue with him; and, moreover, the offer is to prove a fact adverse to the interest of the witness. The objections are overruled and the offer admitted; exception.1</p> <p>The witness then testified, in substance, that the note in suit represented his own indebtedness to James A. Dick; that this indebtedness began in a loan to him by James A. Dick, on his own account and for Ms own use upon a note made by Mmself and indorsed by Mm, upon the suggestion of Mr. Dick, with the name of the firm; which note had been several times renewed, with the position of the names to it changed, resulting finally in the note sued upon. The witness further testified that he had given to James A. Dick Ms individual mortgage for $11,000 as a payment on account of the note in suit, which mortgage Dick afterwards foreclosed, buying in the land; that the witness had sold his interest in a ware-house property at Smith ton to D. H. "Williams for $1,000, and after several conversations between the witness and J ames A. Dick about this purchase money, the arrangement was made that it should be applied on the indebtedness of the witness to Dick. He also stated that at a number of times he borrowed money from Dick for the use of the firm of Smith & Williams, giving therefor notes signed in the firm name. The defendant presented other evidence tending to corroborate the testimony of Joseph Smith.</p> <p>At the close of the testimony, the court, Hunter, P. J., charged the jury as follows:</p> <p>The magnitude of the plaintiff’s claim justifies a patient hearing and investigation of the claim and of the defence set up to defeat the payment of such claim. The action is brought upon a note dated July 15,1878, payable at thirty days, for the sum of $13,333.50. The note purports to be drawn by Smith & Williams, the signature being in the handwriting of Smith. The suit was brought on May 5, 1886, by James A. Dick, who died in July of that year, as we recall the evidence, and his administrator was afterwards substituted as party plaintiff. Judgment by default went against the firm, after which the judgment was opened as to D. H. Williams, and he permitted to make defence, and as to him you are trying the case. You' have nothing to consider as to the liability of Smith, for judgment has already gone against him, and so far as he is concerned, personally, your investigations here need not be called upon.</p> <p>It is conceded that the note was signed by Smith with the firm’s name, but the defendant contends that it has been paid, or at least largely paid by Smith, or by Smith’s property; but, whether this be so or not, the defendant, relies upon two other defences: (1) That the note is not binding upon him; and (2) That it is barred by the statute of limitations. Now, any one of these defences, if made out, would be sufficient, but you may consider either any one of them, or you must consider the whole of them, if it be necessary, in coming to a fair conclusion touching the rights of these parties.</p> <p>As to payment, then, by Smith, it is contended that this mortgage, which has been given in evidence, given to Dick by Smith, was given for this debt, and that the mortgage was foreclosed, and that Dick obtained the land, all except his undivided interest in the premises, as we understand it. You will have this proof before you, and you will consider, then, first, whether in point of fact this has not been paid by Smith, or Smith’s property, or any part of it. There are credits upon the back of the note. You have nothing to do with any of these credits except the last one, which is for the sum of $1,000, as we shall presently see. We shall not elaborate here, but leave the fact, as shown by the evidence, to the jury.</p> <p>As touching the other defences; either, if established, in law or in fact, would be ample to prevent a recovery here.</p> <p>Was then this note given for an individual loan by Smith, and for money not to go into the partnership business, or used in such business, and did Dick know it at the time ? If so, the defendant would not be liable. Joseph Smith testifies positively that he borrowed the money for himself, and that Dick knew it at the time. [A remark may be made here as to the competency of this witness. Mr. Dick is dead and the rule of the law would exclude the other surviving party from testifying, but the witness is testifying as to the personal defence set up by Williams, and this testimony also would be against his own interest, by making himself individually liable for what all the members of the firm otherwise would be liable for, if a different state of facts from those which he testified to were true.] 3 You have also the testimony of Henry Croushore as to what Dick told him about the money not going into the firm, but that it was gotten by Smith. In addition, you have the letters of Dick to Smith & Williams, which you will have before you, touching these notes, and the individual liability, alone, of Smith. You will read the letters for yourselves, and use them, so far as they may enlighten you upon this disputed fact, and so far as they may assist -in leading your minds to a fair and just conclusion. If this evidence satisfies you that this note was given for Smith’s individual use, and the money was obtained and used by him, and Dick knew it at the time, your duty is plain in not holding this defendant responsible, for he would not be responsible in the eyes of the law. If on the other hand, of course, it was a partnership note, or it had been signed by one of the partners, in the partnership name, and Dick knew no better than that it was a partnership note, it does not matter what became of the money, if Dick was ignorant as to the fact, as we have stated.....</p> <p>Taking up the other defence, namely, the statute of limitations. A debt not by contract, under seal, or evidenced by the seal of the party, cannot be recovered after six years from its maturity by an action at law. The statute of limitations absolutely forbids it, and where this defence is set up the law looks upon it with favor. Such a provision is a wise one, both for the creditor and debtor. Parties die and witnesses die, or their memories fail, and the rights of the parties, on the one side or upon the other, may be jeopardized by delay. We have in this action an illustration of this, for Mr. Dick is dead and unable to come and explain and speak for himself. But there may be some intervening act of the debtor which would prevent the running of the statute. As, for example, a special promise to pay, an acknowledgment of the debt, consistent with a promise to pay, or a partial payment. Where this is relied on, however, . the evidence must be clear, satisfactory, and indubitable. There must be no uncertainty about the identity of the debt, or the clearness of the promise or acknowledgment. But when a partial payment is relied upon, the creditor must clearly prove the fact, that in truth and in fact he received such partial payment from the person setting up the defence. This is a case where the party setting up the credit must prove the credit, for the purpose of avoiding the statute. So here, the plaintiff must prove that Williams paid the money within the six years. The only credit on this note of which you may inquire, is that of fl,000. The plaintiff here has shown by the deposition of M. O. Dick, a former cashier, that the defendant, Williams, was present when the credit was put on the note, and, as we recall the facts, that he handed over the money, or the money was passed then, at least, lúieH in the bank, in his presence. This, not contradicted or explahiod, would take the case out of the statute of limitations. LiA the dcdevhdant.has^ere^eyidgii&sv**~~~ to show that the $1,000 was money that Smith realized from the sale of his half interest' .in the premises of Williams, and that by Dick’s own request tide money was paid on the note. If this be so the payment would not be a payment by Williams, but a payment by Smith.</p> <p>Now, the partnership, it would seem, was dissolved in the summer of 1878, and this payment was made on October 24, 1881, over three years after the partnership wes dissolved. The partial payment of a debt of a firm, by one of the members of the firm, would not renew the debt as to the others, if made after the dissolution of partnership. It would take evidence sufficiently strong to renew the debt, to take it out of the statute of limitations, as it would to establish the debt itself, for it is substantially a new promise; and, while the action may be brought upon the original promise, it has life and force and effect only from the new promise which may be given. So that the payment by Smith would not bind Williams, so as to prevent him from pleading the statute, or taking the benefit of it.</p> <p>You will take the evidence and determine this question of fact, and if you find, as contended for by the defence, then it would be sufficient to prevent a recovery here. You will take the whole of this evidence and determine all these questions.</p> <p>—Before the jury retired, the plaintiff moved the court to strike out and withdraw from consideration the testimony of Joseph Smith as to all matters occurring between him and the plaintiff’s intestate, James A. Dick, in the lifetime of said Dick: (1) Because the transactions out of which the note in suit arose were between the witness, a member of the firm of Smith & Williams, and the said Dick, and the said Dick being dead, the witness was incompetent to testify concerning them. (2) The witness was not only a joint maker of the note in suit, but the indorser of it, and it was by his indorsement the note was passed to James A. Dick; and the witness was therefore incompetent to give testimony tending to invalidate the note.</p> <p>By the court to the jury: Judgment having gone against the witness, and his liability thus being fixed, and the issue being with Williams alone, whose defence is adverse to the partnership, and, therefore, adverse to the interest of the witness, we think he was competent for the purpose for which he was called. íestimony as would go to make a defence for himself, you will not consider it, but only so much as applies to the issue with Williams, the witness’s liability having already been fixed by judgment. The motion is denied.3</p> <p>The jury returned a verdict in favor of the defendant, D. H. Williams, and judgment was entered thereon. Thereupon the plaintiff took this appeal, assigning as error:</p> <p>1. The admission of the defendant’s offer.1</p> <p>2. The refusal of the plaintiff’s motion.3</p> <p>3. The portion of the charge embraced in [ ] 3</p>

<p>[To be reported.]</p> <p>1. The rule that extrinsic evidence is not admissible to contradict or alter a written instrument, is not infringed by the admission of evidence of a parol agreement whereby, upon a new consideration, a prior contract under seal between the parties was changed, so as to provide for the doing of something not embraced in the original agreement, or for an alteration in the manner of its performance.</p> <p>2. In such case, the deviation, except where otherwise expressed or mutually understood, must be taken in its proper connection with the original contract with reference to and in modification of which it was made, and the written contract must be pursued and applied so far as it can be traced in the intention of the parties.</p> <p>(а) A sub-contract for construction work upon a railroad specified prices for different classes of masonry, and provided that the work should be paid for monthly, as estimated by the engineer in charge. Monthly settlements on the contract were made on the basis of the engineer’s estimates, and the work was paid for and receipts taken in accordance therewith.</p> <p>(б) The highest grade of masonry provided for in the contract was second-class. The sub-contractor brought assumpsit to recover compensation for the work referred to in his contract, alleging that while the work was in progress thereunder the defendants directed him to put in first-class masonry wherever required by the engineer, and agreed to pay him the increased value of such first-class work.</p> <p>8. The original contract rendered the engineers’ estimates, classifying the masonry work, conclusive upon the parties, if made fairly and without fraud, and this stipulation was applicable to all work done under the supplement agreement; wherefore, it was-not competent for the plaintiff without attacking the estimates, to go into evidence generally as to how the work done under the supplemental agreement should be classified.</p>

<p>Where, in an action against a township for negligence, there was evidence that, with notice to the supervisors, a rut, twelve to fourteen inches deep and a rod or so long, was permitted to continue for a long time in. a public road but ten feet wide cut upon a hillside, and at a point where there was a down grade and the road was sloping towards the lower bank, whereby the plaintiff’s sled loaded with boards was overturned and himself injured, without contributory negligence on his part, it was not error to submit the question of negligence on the part of the defendant to the jury: Plymouth Tp. v. Graver, 125 Pa. 24, distinguished.</p>

<p>APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF JEFFERSON COUNTY.</p> <p>No. 90 October Term 1889, Sup. Ct.; court below, No. 403 September Term 1885, C. P.</p> <p>On September 1, 1885, tbe Sidney School Furniture Company of Sidney, Ohio, brought assumpsit against the School District of Warsaw township, to recover upon a contract for the sale and delivery of school furniture. The defendant’s pleas were non-assumpsit, payment with leave, etc.</p> <p>At the trial on February 9, 1886, there was a verdict for the defendant. The judgment entered thereon was reversed, with a venire de novo, upon a writ of error to No. 135 October Term 1886: Sidney School Furn. Co. v. Warsaw Sch. D., 5 Cent. R. 306.</p> <p>At the second trial on May 17, 1887, a judgment of compulsory nonsuit was entered, which, upon a writ of error to No. 7 October Term 1888, was reversed with a venire de novo : Sidney School Furn. Co. v. Warsaw Sch. D., 122 Pa. 494.</p> <p>At the third trial, February 12, 1889, the following facts were shown:</p> <p>On July 25, 1885, the school board of Warsaw township held a meeting to receive proposals for furnishing eleven school houses in said township with new desks. Agents representing several companies were present with sample desks. Among these agents was H. M. Sweet, agent of the plaintiff. The board finally announced that no contract would be made that day, and the agents then left. Sweet afterwards returned and resumed negotiations, which finally resulted in the adoption by the board of the following resolution, duly entered on the minutes: “ Motion by William Bullers to accept proposition of Mr. Sweet to furnish eleven school-houses with new fashion desks, at three dollars and fifty cents per seat; two houses to be paid for at once, and the balance in three yearly payments. Motion seconded by Pantall. Voting in the affirmative, Bullers, Hilliard, Rickard and Temple. Voting no, Love.”</p> <p>In accordance with the above resolution the following contract was then executed:</p> <p>“ This contract made the 25th day of July, 1885, between the Sidney School Furniture Company, John Loughlin, sole proprietor, of Sidney, Ohio, and the board of directors of school district in Warsaw township, of Jefferson county, State of Pennsylvania, shows: That said Sidney School Furniture Company agrees to deliver on cars at the factory, in knock down form, the following described school furniture, etc., to be shipped on or about August 10th, 1885, to Mr. S. W. Temple, Brockwayville station, on Rochester and Clearfield railroad, in Jefferson county, State of Pennsylvania, his P. O. being Warsaw, in Jefferson County, Pennsylvania.</p> <p>“ 66 No. 1 double desks; 66 No. 2 double desks; 66 No. 3 double desks; 66 No. 4 double desks; 22 No. 1 double rears; 22 No. 3 double rears. Grand total, $985.81. That the undersigned school officers, who are authorized to buy, agree to receive the above named furniture, etc., at the station above named, and pay for the same on arrival the sum of $985.81, in school orders or bonds bearing 6' per cent interest from October 1st, 1885, until paid for, and to be due on the following dates: $196.80 October 1st, 1885; $277.36 October 1st, 1886; $262.50 October 1st, 1887; $249.15 October 1st, 1888.</p> <p>(Signed) G. H. Hilliard, President.</p> <p>S. W. Temple, Secretary,</p> <p>School Directors or Committee.</p> <p>“ For and in consideration of the above agreement we guarantee that the furniture shall be made of seasoned material and give good satisfaction. If any castings are broken in shipping we agree to supply duplicates and make no charge for them. Ink wells for the four largest sizes of desks, and all necessary screws will be furnished. Directions for putting the desks together will be sent when they are shipped.</p> <p>“ Special notice: All bills must be settled with us. No agent is allowed to receive payment or settle any bills unless he can show written authority from us.</p> <p>Sidney School Furniture Company,</p> <p>John Loughlin, Sole Proprietor,)</p> <p>By H. M. Sweet, Agent.”</p> <p>The defendants alleged that the adoption of the resolution and the execution of the contract were induced by Sweet by means of a contemporaneous parol agreement. In support of this allegation several members of the school board testified, in substance, that in the negotiations prior to the signing of the contract it was mentioned that in the Coder school-house, a few miles distant, and also at DuBois, in Clearfield county, there was furniture manufactured by the plaintiff, which the board desired to examine before closing a contract of purchase; that Sweet represented that he would not be able to attend another meeting of the board and urged that a contract be. closed at once, agreeing that the board might examine the furniture in the Coder and DuBois school-houses,,and if they found it to be of the plaintiff’s manufacture and not first class, they should hot be bound to accept the desks he proposed to sell them, provided that any defects found in the furniture they might examine, were in the furniture itself and not due to defective setting up, and that it should be taken into consideration that the Coder furniture was manufactured prior to the adoption of certain improvements which would appear in the furniture he desired them to buy; that he further agreed that the desks he was selling should in every respect be equal to the sample he had exhibited, and if when received they were found not to be so, the board need not keep them. Sweet, testifying for the plaintiff denied that there was any agreement outside of the written contract, or that there was anything said at the execution of the contract about its being rescinded. He testified further that the proposal as to visiting other school districts in order to inspect furniture manufactured by the plaintiff, was limited to the following Monday, when the witness was to furnish the transportation for this purpose, at his own expense, but that the board did not accept this proposition.</p> <p>The contract was made on'a Saturday. On the succeeding Monday and Tuesday several of the directors went to the Coder school-house and examined the furniture there. They were not satisfied with it, and on Tuesday evening, July 28, 1885, G. H. Hilliard, president of the school board, telegraphed to the plaintiff: “ Take no action on our order until further instructions.” To this telegram the plaintiff responded in the following letter dated July 30th, and directed to S. W. Temple: “Dear Sir: — Your order for school furniture has been received through our Mr. Sweet. The goods are ready for shipment and will be shipped promptly on time. Please have the kindness to explain telegram, and oblige.”</p> <p>The secretary of the board, S. W. Temple, subsequently went to DuBois and examined the furniture there, with which he was not satisfied. On August Tth, the school board reconvened, received the reports of the members who had examined the furniture in the Coder and DuBois school-houses, and thereupon passed a resolution rescinding the contract with the plaintiff. Pursuant to this resolution, on August 8th, a telegram was sent by the president and secretary of the board to the plaintiff, as follows: Owing to misrepresentations by your agent, H. M. Sweet, we hereby annul our contract and notify you not to ship the furniture, as it will not be received.” To this telegram a reply was made by letter dated August 8th, which was as follows: “ Gentlemen : — We are in receipt of your message of even date, from Brookville, Pennsylvania, notifying us not to ship your bill of goods and stating that you would not receive them. Our agent made no misrepresentar tions to you whatever. We have a valid contract with you, the terms of which we propose shall be filled to the letter by both parties thereto. We inclose you herewith bill of lading of goods shipped you on 6th inst. as per contract. These goods will be found to be exactly as represented, and we shall expect you to receive and pay for them as per agreement. We are a responsible firm and when we pay a reliable man a good salary and expenses to go and take a valid contract, as in your case, we do not propose to be trifled with in this manner. The prices to you were low and the goods will be exactly as our agent represented.”</p> <p>The woodwork arrived at the railroad station in Brockwayville on August 16th. The irons came two or three days later. Both were consigned to S. W. Temple, as provided in the written contract. On August 26th, Sweet called upon Temple and demanded a settlement for the furniture. He was informed by Temple that the latter had received notice that the furniture was at the Brockwayville station, but that it would not be received or paid for, as the board had rescinded the contract. At that time the furniture at the station had not been examined or seen by Temple or by any one representing the defendant, and the refusal to accept it was based entirely upon the action taken by the board after the examination of the Coder and DuBois furniture. Subsequently, however, Temple and others examined the furniture at the station, and upon the trial they testified that it was defective in material and workmanship, and did not conform to the sample exhibited to the board by Sweet or to his representations. The plaintiff called witnesses whose testimony tended to rebut that adduced for the defendant upon this subject; and quite an amount of testimony was taken, upon each side, as to the character of the furniture in the school houses at Coder and Dubois.</p> <p>At the conclusion of the testimony, the court, Wilson, P. J., charged the jury in part as follows:</p> <p>If the jury believe from the evidence that the school district of Warsaw township executed the contract in evidence before you, then the covenants on its part therein contained will be binding upon it, unless you further believe from the evidence that the defendant school district was induced to sign the same by some falsehood and fraud practiced on it by the agent of the plaintiff, and such fraud must not be presumed by the jury without proof, and it must be proved by a preponderance of the evidence. The jury are further instructed that to rescind a contract on the ground of fraud, notice of such intention must be promptly given, and as soon as it can reasonably be done after discovering the facts which entitle it to be rescinded, or else be held to have ratified the contract. In this case, whether the defendant gave the plaintiff notice of its intention to rescind the contract in question, and whether such notice was given as soon as it could reasonably be done after the alleged detection of the facts relied upon as giving the right to rescind, are questions of fact to be determined by you from the evidence in the case.</p> <p>* # * * * * *</p> <p>Plaintiff’s counsel have requested the court to charge the jury:</p> <p>1. That under the provisions of the fourteenth section of the act of May 8, 1854, P. L. 619, it is made the duty of the secretary of defendant corporation to keep full minutes of all the proceedings of the board in a book for that purpose.</p> <p>Answer: Affirmed.</p> <p>2. That all business transacted by the defendant corporation must be at a meeting of its board of directors duly convened and by a legal vote thereof, and all proceedings and business must be recorded on the minutes, and when so recorded the record so made is the best and only evidence of the action of defendant company.</p> <p>Answer : Affirmed, except as to the word “ only evidence.” It is not the only evidence in cases where fraud is alleged or involved.</p> <p>8. That if the jury find from the evidence that the minute book of defendant corporation contains a record of the meeting of the board of directors of defendant corporation, held on July 25,1885, authorizing the purchase from plaintiff of desks to seat eleven school-houses, specifying the price and terms of purchase, and subsequently thereto and on the same day executed and signed by the president, Gr. H. Hilliard, and secretary, S. W. Temple, agreeing to purchase the said desks from plaintiff on the terms and conditions as expressed in the resolution, said agreement would thereby become a binding and valid contract of sale and purchase between the plaintiff and defendant corporation.</p> <p>Answer: Affirmed.</p> <p>4. That by the terms of the agreement the plaintiff agreed to deliver on board the cars at Sidney, Ohio, consigned to S. W. Temple, at Brockwayville, Jefferson county, Pa., the desks mentioned in the contract offered in evidence in this case, and if the jury find from the evidence that plaintiff did deliver the desks in accordance with the contract on board the cars at Sidney, Ohio, consigned to said S. W. Temple, that would be a delivery in law and the title was vested, as well as the possession of the desks, in defendant corporation.</p> <p>Answer: Affirmed, unless the jury further believe from the evidence the facts contained in the defendant’s first, second and third points, hereafter to be read.1</p> <p>5. That if the jury find from the evidence that S. W. Temple, the secretary of defendant corporation and consignee, admitted to H. M. Sweet, the agent of plaintiff, that the desks had arrived at Brockwayville, as directed in the contract in evidence in this case, and that a demand was made of him for settlement, and that said Temple, on behalf of the board, refused to accept the desks or pay as provided by the contract, that would be a breach of the contract, and plaintiff can maintain this action to recover the amount so agreed to be paid, with interest.</p> <p>Answer: Affirmed, unless the jury further believe from the evidence the facts contained or recited in defendant’s first, second and third points.8</p> <p>6. That if the jury find from the evidence that the agreement of purchase, offered in evidence in this case, was read over in the presence and hearing of the board of directors of defendant corporation before signing, and was understood by them, and no objection was made by any one thereto as it was so read and signed, then said agreement is to be taken as the agreement between plaintiff and defendant corporation, and the verdict of the jury should be for the amount so agreed to be paid, in favor of the plaintiff.</p> <p>Answer: Affirmed, unless the jury further find from all the evidence in the case the facts as contained in defendant’s first, second and third points.3</p> <p>7. That to alter, contradict or vary a written agreement by parol evidence, two classes of cases have been established in this state: First, when there has been fraud, accident or mistake in the creation of the instrument itself; and, second, where there has been an attempt to make a fraudulent use of the instrument in violation of a promise or agreement made at the time the instrument was signed, and without which it would not have been executed.</p> <p>Answer: Affirmed.</p> <p>8. That in order to set aside or contradict a written agreement, the evidence must be clear, precise, and indubitable, and of what took place at the execution of the instrument.</p> <p>Answer: Affirmed.6</p> <p>9. That a condition is to be distinguished from a representation in this: Where there is a condition, there is no absolute agreement finally concluded; while a false representation, provided it goes not to identity but to quality, is a final agreement. The non-performance of the condition prevents the contract from taking effect; the falsity of the representation or warranty does not prevent the contract from taking effect, but subjects the vendor to a suit for damages.</p> <p>Answer: Affirmed.</p> <p>10. If the jury find from the evidence that the representations of H. M. Sweet, the plaintiff’s agent, made before signing the contract in evidence, to the board of directors of defendant corporation, on July 25,1885, went alone to the quality of the desks he was selling, that would not amount to a condition nor prevent the contract from taking effect. The remedy of defendant was to defalk or set off the damages against the price agreed to be paid.</p> <p>Answer: Refused.</p> <p>11. That if the jury find from the evidence that the agent of plaintiff agreed with defendant corporation, at the time of executing the written agreement, by a parol agreement, and without which parol agreement the writing would not have been made, that the directors of defendant corporation should or might visit the Coder and DuBois school-houses, where Sidney school furniture was in use, and examine it, and if found defective, which defects were not remedied by the improvements made in the furniture he, Sweet, was selling, that then defendant might refuse to take the furniture; then it was the duty of the directors to make such examination, and, after examining the desks in the Coder and DuBois school-houses, or either, and then upon examination of the furniture sold by Sweet to them, the defects were not found to be remedied, then defendant would have the right to rescind the contract and tender a return of the goods.</p> <p>Answer: Affirmed.</p> <p>12. That if the jury find the facts stated in the eleventh point as stated therein, and they further find that defendant corporation, through its authorized agent, refused to accept said desks under the contract, without having made the examination as required by the agreement, and before such examination could be made, then the defendant corporation has not complied with the terms of said alleged parol agreement, having refused to comply before the full measure upon which they were to act having been available; that would be a breach of the contract, and plaintiff is entitled to maintain this action, and the verdict •of the jury should be for plaintiff for the full amount agreed to be paid, with interest.</p> <p>Answer: Affirmed.</p> <p>13. That under the evidence in this case there are but two questions of fact for the jury to find, namely: First, was there a parol agreement made at the time of executing the written agreement between the plaintiff and defendant, and without that parol agreement having been made, the written agreement, given in evidence in this case, would not have been made; second, if such parol agreement was so made, did the defendant refuse to comply with the written agreement of purchase before the full measure or standard by which their discretion was to be exercised was had; that would be a breach of the contract, and the verdict of the jury should be for the plaintiff for the amount so agreed to be paid, with interest.</p> <p>Answer: Affirmed.4</p> <p>14. That the evidence on the part of the defendant corporation in this action is not so clear, full, precise and indubitable as is required to set aside or alter the written agreement offered in evidence in this ease, and the verdict of the jury should be for the plaintiff for the amount agreed to be paid.</p> <p>Answer: Refused.</p> <p>15. Thatthe defendant corporation having accepted a written guaranty from the plaintiff, it is estopped from setting up any parol or other guaranty except that mentioned in the contract.</p> <p>Answer: Affirmed.5</p> <p>16. That all statements, agreements and representations made prior to and leading up to the making of a written contract are by law merged in the writing, or presumed to have been abandoned by the parties.</p> <p>Answer: This is true, as a general rule; it is affirmed.</p> <p>17. The court is requested to instruct the jury to disregard all parol evidence relating to what took place at the meeting of the board of directors of defendant corporation on July 25, 1885, made and had prior to the action of the board authorizing the purchase of the furniture in dispute and before the written agreement was made.</p> <p>Answer: Refused.</p> <p>18. That under all the evidence in this case the verdict of the jury should be for the plaintiff for the amount agreed to be paid under the contract, with interest.</p> <p>Answer: Refused.</p> <p>The defendant’s counsel request the court to charge the jury:</p> <p>1. If the jury believe from the evidence, that plaintiff’s agent, H. M. Sweet, at the time of making the contract for the furniture, as an inducement'to obtain the contract, referred the defendant to furniture in the DuBois and Coder school-houses, or either of them, as specimens of the manufacture of the firm he represented, and agreed if upon examination of the furniture there found, it was unsatisfactory, they need not accept the furniture ordered; and if the contract was executed by the defendant on the faith of such verbal agreement, and defendant promptly made the examination and found the furniture unsatisfactory, and notified the plaintiff within a reasonable time thereafter not to ship it, they were not bound to receive it, and if the jury so find, their verdict should be for the defendant.</p> <p>Answer: Affirmed.</p> <p>2. If Sweet, the plaintiff’s agent, made false and fraudulent representations of a material character to obtain the contract, by which defendant was induced to make the contract, and as soon as defendant found such representations to be false, they annulled the contract, and so notified the plaintiff within a reasonable time, it was released; and if the jury so find, their verdict should be for the defendant.</p> <p>Answer: Affirmed.</p> <p>3. If the jury believe from the evidence, that as an inducement to obtain the contract in suit, the plaintiff’s agent, Sweet, exhibited a sample desk to the school board, and agreed that if the furniture to be shipped in pursuance of said contract, should not be equal in all respects to the said sample, the defendant need not accept the same, and that the contract was entered into on the faith of such representations and agreement, such verbal agreement would be binding on the plaintiff; and if the furniture shipped was not substantially equal in all respects to the said sample, and the defendant refused to accept or pay for the same, and the plaintiff had reasonable notice of such refusal, their verdict should be for the defendant.</p> <p>Answer: Affirmed.</p> <p>4. If the furniture at Brockwayville was not substantially up to the guaranty contained in the contract, and was not satisfactory to the defendant, the verdict of the jury should be for the defendant.</p> <p>Answer: Affirmed.</p> <p>5. That by the contract the school board were made the exclusive judges of whether the furniture when examined gave good satisfaction or not.</p> <p>Answer: Affirmed.</p> <p>6. If the jury find from the evidence that only part of the furniture shipped, was in accordance with the contract and that the rest was inferior, the defendant was not bound to accept any of it.</p> <p>Answer: Affirmed.</p> <p>The jury rendered a verdict for the plaintiff for $1,185.43. Judgment having been entered on the verdict, the defendant took this appeal, assigning for error:</p> <p>1-6. The answers to the plaintiff’s points.1 to 6</p>

<p>(а) Plaintiff in ejectment claimed title to an undivided one sixth of a tract of land as one of the heirs of Parry, who bought from Hoover in 18S6, paid part of the purchase money, and in 1866 abandoned his family, left the land in the possession of Mrs. Parry and certain of their children, and did not again return to it.</p> <p>(б) A deed was made by Hoover to Mrs. Parry in 1867 and her husband died in Ohio in 1882. Mrs. Parry died in 1885, leaving a will devising the land to two of her sons, one of whom was the defendant, who subsequently acquired the title of the other devisee by deed of quit-claim.</p> <p>(c) There was evidence that the deed to Mrs. Parry, though executed in 1867, was not delivered until several years afterward, when she had paid or secured the unpaid purchase money; and that it was then delivered to her in the presence and with the acquiescence of her husband.</p> <p>(d) The plaintiff claimed, however, under the evidence adduced by him, that the deed to Mrs. Parry under which the defendant held, had been obtained from Hoover without his father’s consent and in fraud of his rights, and upon this issue the cause was submitted to the jury.</p> <p>1. In such case, although the plaintiff had put in evidence the deed of Hoover to his mother, as a part of the alleged scheme to get the title away from his father, plaintiff was not thereby estopped from attacking its validity on the ground that it had been obtained in fraud of his father’s rights.</p> <p>2. The subject in controversy was the validity of the deed to Mrs. Parry, who was dead; wherefore, although the brother who had conveyed to the defendant was competent to testify in support of it, the plaintiff Was incompetent to testify against it: § 5, clause (e), act of May 28, 1887, P. L. 158.</p> <p>3. The declarations of the husband in his lifetime, in his own interest, and not made in the presence of his wife, were inadmissible as evidence that the title had been obtained by Mrs. Parry without his consent and in fraud of his rights.</p> <p>4. Nor was it competent to prove the declarations of Mrs. Parry, not in the presence of her husband, as evidence that the reason why her husband refused to see her a short time before his death, related to a matter other than a dissatisfaction as to the title to the land.</p> <p>5. Nor was it competent to show, as evidence in itself of the existence of the alleged fraud in obtaining the title, that Hoover, the grantor in the deed to Mrs. Parry, was at the time thereof of weak mental condition and not of sufficient capacity to execute the deed.</p> <p>6. Where a witness testified that he was present when the deed was delivered to Mrs. Parry with the consent of her husband, the testimony of other witnesses that in conversations with them but not about the deed, he had not mentioned the fact that his father was present at the time of delivery, was properly rejected.</p>

<p>1. The purchase by an attorney of real estate at a sheriff’s sale, after inducing a competing bidder to withdraw, but exclusively in the interest of his client and without any agreement or arrangement for the benefit of the judgment defendant, will not create a trust for the latter.</p> <p>2. The surrender of a deed to the grantor and the execution and delivery by him of a new deed for the same property, of the same date of the former, to a new grantee by direction of the first grantee, will be inoperative as against the lien of a judgment entered against the first grantee while he held the title.</p>

No. 130 October Term 1888, Sup. Ct.; court below, No. 156 June Term 1885, C. P.' On May 23, 1885, A. J. Haws brought assumpsit against the St. Paul Fire and Marine Insurance Company, upon a policy of insurance against fire and lightning. The defendant pleaded non-assumpsit. At the trial on April 1,1887, the following facts were shown: The plaintiff was the owner of a stock farm in Mercer county, and engaged in raising thereon finely bred horses.

No. 4 October Term 1889, Sup. Ct.; court below, No. 47 January Term 1888, C. P. On October 29,1887, S. B. Porker brought trespass against the borough of Sandy Lake, to recover for personal injuries alleged to have been suffered by the plaintiff in consequence of the negligence of the defendant. The defendant’s plea was not guilty. At the trial on May 17,1888, the following facts were shown: Sandy Lake is a borough of a few hundred inhabitants.

No. 60 October Term 1889, Sup. Ct.; court below, No. 84 January Term 1889, Q. S. At January Term 1889, tbe grand jury returned as a true bill an indictment, based upon a constable’s return and charging that on January 5, 1889, at the county, etc., Joseph Fleming “ did unlawfully sell and cause to be sold vinous, spirituous, malt and brewed liquors, and admixtures thereof, without having first then and there obtained a license agreeably to law for that purpose,” contrary,…

<p>[To be reported.]</p> <p>(а) A policy of fire insurance provided that should any action be commenced upon the policy after the expiration of twelve months, “the lapse of time shall be taken as conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding.”</p> <p>(б) Judgment had been obtained in a former action upon the policy, between the same parties and for the same cause, which judgment on writ of error was reversed upon the ground that the action, having been brought within sixty days after submitting the proofs of loss, was premature.</p> <p>1. A second action upon the policy, commenced more than twelve months after the loss, but within twelve months after the judgment of reversal, was not within the purview of § 2, act of March 27, 1713, 1 Sm. L. 76, limiting the time of bringing a second action after the reversal of a first.</p> <p>2. The limiting condition of the policy was not waived by the fact that the issue upon which the former judgment was reversed was not raised in the pleadings in that case when it should have" been, so as to permit the plaintiff to discontinue and bring a new action within the twelve months.</p> <p>3. The rule that any act which tends to mislead the plaintiff will be held to be a waiver of such a condition, will not apply with the same strictness after suit has been brought and the parties are dealing at árrps length, when more positive evidence of actual misleading will be necessary to create an estoppel.</p> <p>!. Nor will the facts that in the former action the sufficiency of the proofs of loss was denied by the defendant and not established until the decision of the cause, and that the second action was brought within a year from that decision, relieve the plaintiff from the limitation provided in the contract.</p>

No. 89 October Term 1889, Sup. Ct.; court below, No. 18 June Term 1888, C. P. On March 27, 1888, Andrew M. McCombs brought trespass against the Pittsburgh & Western Railway Company, to recover damages for personal injuries alleged to have been caused by the negligence of the company defendant. Issue.

<p>An appeal will not lie from tbe refusal of the Court of Quarter Sessions to strike off an order confirming the report of viewers laying out a road, on an application by petition filed five years after the order of confirmation was entered.</p>

<p>APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY.</p> <p>No. 143 October Term 1889, Sup. Ct.; court below, No. 153 February Term 1889, C. P.</p> <p>On December 15, 1888, a summons in assumpsit was served in an action by John F. Sweeney against tbe Ten Mile Oil & Gas Company. Tbe defendant pleaded not guilty.</p> <p>At the trial on June 6, 1889, tbe plaintiff proved a contract in writing executed by himself and tbe defendant company, a corporation, on March 26,1887, in tbe shape of a “Proposition for tbe sale of tbe property and franchises of tbe Ten Mile Oil & Gas Company: First, tbe plant, including tbe franchises and all territory owned by tbe company, to be sold to or by Mr. John F. Sweeney, of Wheeling, W. Va., at and for the sum of thirty thousand dollars cash. And if sold to or by him within sixty days from this date, Mr. Sweeney is to have two thousand dollars for negotiating the sale.” From time to time, by indorsements upon this contract, the time for making the sale was extended to thirty days after March 26, 1888.</p> <p>The plaintiff introduced testimony claimed to show that the defendant company had leaseholds, for oil and gas operations, covering about 4,000 acres of land in Washington county; that on or about April 18,1888, he produced to the defendant company, as a purchaser for its franchises and property, one W. P. Logan of Philadelphia, representing himself and other Philadelphia parties; that on April 20th the defendant company made a communication in writing to “ W. P. Logan and others,” as follows: “ Gentlemen : The conclusion arrived at in our meeting to-day' was as follows, to wit: To sell you our charter, which is in proper legal shape and in vital form, covering $2£>,000 of stock, of which about $22,000 is paid up, transfer with it all our rights, titles, franchises, &c., embracing about 4,000 of leases, with the Meloy well finished and the Bane well about 1,039 feet deep, all debts and dues to be liquidated up to date of closing sale, and the titles and franchises to be subject to proper examination and approval. In consideration of which you are to pay us the sum of $30,000, as follows: ” etc.; that upon consultation with his associates this proposition was accepted by telegram from Mr. Logan on April 24th; but that the contract for the purchase was not consummated, for the reason that the titles in respect of some of the leaseholds were defective.</p> <p>The defendant company resisted the action on the grounds that the compensation to the plaintiff was to be paid only in the event of a sale; that no sale had been made; that no contract or agreement of sale had been entered into with Mr. Logan, and that the defendant was in no way responsible for the failure to have the contract executed. The defendant claimed, also, that the alleged purchasers had no real intention of buying the property and franchises of defendant, and to show this, the defendant called Mr. John W. Donnan, who on behalf of the proposed purchasers had been examining the titles to the lands covered by the leases. The witness was shown a letter, marked exhibit 11, a,nd testified: “ This is a letter I received by ¿rail, and it bears the signature of Joseph D. Potts, but I have no knowledge of the signature.” The defendant then made the following offer:</p> <p>Mr. John W. Donnan having testified that exhibit 11, purporting to be a letter from Col. Joseph D. Potts, was received by him in due course of mail, and the evidence already adduced by plaintiff showing that Col. Potts was said to be a party in interest represented by Mr. Logan, who employed Mr. Donnan as his attorney, defendant’s counsel now offers this letter in evidence for the purpose of showing that Col. Potts, although interested, was not interested as a purchaser in the way alleged by Mr. Logan.</p> <p>Objected to: 1. Because the letter is not sufficiently proven to entitle it to go in evidence. 2. Because it is twenty-eight days after the time when Mr. Logan dropped out of the contract, and 8. Because it is, generally, irrelevant and incompetent.</p> <p>By the Court: Objection sustained; exception.1</p> <p>This letter, exhibit 11, was dated September 28, 1888, addressed to John W. Donnan, Esq., over the signature of Jos. D. Potts, and read as follows:</p> <p>“ Dear Sir : Our Mr. Dilkes has made a partial report to us on the land which Mr. Logan was in negotiation for, and which we know as the Amity lands; but, while his report is not a perfect one, nor absolutely conclusive, it is such that it has not encouraged us to proceed any further in the matter. We do not ourselves wish to go into the gas business, nor oil business. Our whole object has been to effect a sale of pipe in such a way as to' have satisfactory results. Our purpose in sending Mr. Dilkes to see you, and to inspect the lands, was, if possible, to effect an arrangement with other parties than the Messrs. Logan, provided such parties, familiar with the gas business, and satisfactory to us, could be found to take hold of the enterprise, and with such financial assistance as we might be able to give in the way of credit on the pipe, to push it to completion. At present this does not seem easy to do. If we should hereafter meet with such parties, and we shall try to do so, we will probably take the subject up again provided the owners of the land, or the parties to whom they may sell, would then be in a mood to negotiate, in which case, we would communicate with you. Very truly yours.”</p> <p>At the close of the testimony, the court, McIlvatne, P. J., charged the jury:</p> <p>This is au action by John F. Sweeney against the Ten Mile Oil & Gas Company, and the suit grows out of a written contract that was executed by the plaintiff and the defendant company. A material part of that contract reads as follows : “ Proposition for the sale of the property and franchises of the Ten Mile Oil & Gas Company: First, the plant, including the franchises and all the territory of our company to be sold to, or by, John F. Sweeney, of Wheeling, West Va., at and for the sum of thirty thousand dollars cash ; and if sold to or by him within sixty days after this date, Mr. Sweeney is to have two thousand dollars for negotiating the sale.”</p> <p>It is admitted on both sides that a slight modification of this contract was afterwards made, allowing the sale to be made, in place of for $30,000, for $10,000 cash, and the balance to be secured by notes; and with this modification, the contract stands as I have read it. The interpretation of this contract, so far as I have read it, and so far as it is written, is for the court, and the important words in the contract to be interpreted are the words “sale” and the words “if sold.” We instruct you that this contract means that there was to be an actual sale. - And the word “ sale,” as defined by Story, is, “ The transfer of the absolute title to property for a certain agreed price.” It is a contract between two parties, one of whom clearly parts with the property in the thing sold, and the other parts with a valuable consideration. [There was no actual sale, as we understand the evidence in the case before the court, but it is claimed there was a contract to sell, which the defendants failed to carry out.] 3 You will see, gentlemen, there is a difference between the word sale and a contract to sell. And we instruct you, that the word employed here by these parties contemplated an actual sale. [The first question then arises: Did Mr. Sweeney, who had an option on this plant, make, as far as he was concerned, an actual sale of it ? And did the defendant company refuse to deliver the property, and is that the reason the franchise is still in the hands of the defendant company, and not in the hands of. the alleged purchaser ?] 3</p> <p>There is, I believe, no evidence in the case to show that the parties ever did consummate the sale; that is, that there ever was a perfect execution in regard to all the details of the sale. It appears that there were some things left undone at the time it was declared off by the parties. If that is the case, and you come to the conclusion from the evidence, as you no doubt will, that the sale never was completed, and that there never was an actual sale, then the next question arises, was there a contract to sell, and was the failure to consummate the sale under that contract due to the defendant company failing to do something that they were required to do under that contract of sale ? [If Mr. Sweeney got so far along in this transaction as to have brought these parties together, so that a contract of sale was made, which included in it certain things to be done by the parties, and the defendant company failed to do those things which they were required to do, in order to consummate that sale, to make it an actual sale, then we think the plaintiff would be entitled to recover. Although he is only entitled to recover in case of an actual sale, yet the contract having gone so far that all it required of the parties was that they should do certain things, or perform certain details, contemplated in the contract of sale, he would be entitled to his money, if the failure to consummate the sale was by reason of the defendant company not doing that which they were bound to do. And we think, gentlemen, that is really the point in the case. It is admitted there was no actual transfer of this property; this defendant company still owns this plant, so far as the evidence in this case shows ; there is no evidence to the contrary. The contract of sale, if there was one entered into, was never fully consummated by a transfer of the stock and an assignment of the leases. But, if you believe there was a contract of sale made here, an agreement entered into by these parties looking to the transfer of the stock of this company, and also an assignment of the leases, which was to be consummated by the parties doing certain things, and that the defendant company failed to do that which they were required to do, and that that was the reason the sale was not consummated and the transfers made, then I say Mr. Sweeney ought not to be held responsible for that failure, if he has done all that he could do in consummating the sale, and the reason it is not consummated lies solely at the door of the defendant company.] 4</p> <p>Now, gentlemen, in the first place, there is some dispute about whether there ever was a contract of sale, and you will have to determine from all the evidence in the case, whether there ever was an agreement upon the conditions of sale. Did the parties come together, and have an understanding as to the exact things they had agreed on, and the exact things that were to be done on each side ? If they did, that would be a contract of sale. Was everything agreed upon that had to be done, if not already done, in order to make a consummated sale ? If it was, then there was a contract of sale. You will consider all the evidence in the case on this question; this telegram sent by Mr. Logan, and then what happened in pursuance of the proposition contained in the telegram, when the parties got together in Mr. Sayer’s office, and at the other meetings of the parties ; you will consider it all together, and then determine whether or not there was an agreement by the parties to sell this property. If you find there was a contract to sell the property, then the next question will be, what is the reason it was not consummated ? Did the thing fail on account of the defendant company not doing something that they were bound to do ?</p> <p>[Now, the defandant company claims that the principal thing that was to be done, and the plaintiff, that the only thing that was to be done, was the examination of the titles to the leased farms. The defendant company claims they did everything on their part that was required at their hands to perfect these titles; while the plaintiff claims that they were in default, from the fact that some of these leases, so far as the record title was made to appear, were given by parties that had no title; that the purchaser was not bound to accept these leases in that condition, and that the defendant company failed to make these titles good when they could have done so, and that that was the reason why this trade failed to be consummated, and that the failure or want of consummation of the contract must be solely laid at their door. Now, gentlemen, you will take all the evidence in this case in regard to that matter, and you will determine from the evidence in the case whether .or not that is correct; and if you find, as I said before, that there was a contract of sale that contemplated certain things to be done in order for its consummation, and that the defendant failed to comply with the things they were required to do in that contract of sale, then the plaintiff ought to recover, because he has done everything that he possibly could do in consummating the sale, and the reason it is not consummated is the fault of the defendant. On the other hand, if you conclude there never was any contract of sale, but only dickering between these parties and they never came to any understanding at all, or even if they did come to an understanding, that it was the plaintiff’s fault, or his purchaser’s fault, that the sale never was consummated, ..then we think he ought not to recover.] 3</p> <p>Now, gentlemen, we are asked to instruct you as follows on the part of the plaintiff:</p> <p>1. If the jury believe from the evidence that the plaintiff John F. Sweeney, produced to the defendant corporation a purchaser in the person of W. P. Logan, to whom the company made a proposition of sale, and that the said Logan in good faith accepted said proposition, then a sale was made and the plaintiff is entitled to recover the full sum of $2,000.</p> <p>Answer: Affirmed, subject to what we have said in the general charge.7</p> <p>2. If the jury believe from the evidence that the company made a proposition of sale, which the said Logan accepted in good faith, but that the sale failed to be feonsummated by reason of the defendant company’s defective titles, then the plaintiff is entitled to recover.</p> <p>Answer: Affirmed, subject to what we have said in the gen eral charge.8</p> <p>3. That the defendant company, in constituting John F Sweeney their agent for the sale of their leases, franchises, etc., practically represented that their titles were at least marketable, and if the jury believe that the sale fell through by reason of defects in the company’s titles, the plaintiff is entitled to recover.</p> <p>Answer: Refused. We do not think the plaintiff was the agent of the defendant company.</p> <p>The defendant asks us to instruct you as follows:</p> <p>1. By the terms of the agreement between Mr. Sweeney and the defendant company, Mr. Sweeney was only to receive the sum of $2,000 in the event of a sale of the property or its withdrawal by the company; and, as the property was not sold or withdrawn he cannot recover in this action, unless the jury shopld find that the defendant accepted as a purchaser the person produced by Mr. Sweeney, and that the final consummation of the sale was prevented by the improper conduct of the defendant.</p> <p>Answer: Affirmed.</p> <p>2. The ordinary rule as to broker’s commissions does not apply to this case, but it is to be decided according to the terms of the written contract between plaintiff and defendant.</p> <p>Answer: Affirmed. „</p> <p>3. In the contract between the plaintiff and the defendant, the defendant did not insure the titles of the properties upon which it held leases, and when the plaintiff took the option contained in the contract, he took the risk of the titles proving defective so far as that might affect his right to compensation.</p> <p>Answer: Affirmed.</p> <p>4. If the jury should find from the evidence that the sale of the property failed because of defects in some of the titles, this will not justify a verdict for the plaintiff, unless they also find that the defects were such as the defendant company could have removed and that it improperly failed so to do.</p> <p>Answer: Affirmed.</p> <p>5. The paper of April 20,1888, and the telegram of April 24, 1888, do not constitute a contract of sale, because the papers themselves and other evidence in the case show that additional papers were to be executed in order to close the transaction.</p> <p>Answer: This point is answered in this way: In determining whether or not there was a contract of sale, the paper of April 20, 1888, and the telegram of April 24, 1888, must be taken with the other evidence in the case.</p> <p>The jury returned a verdict in favor of the plaintiff for $2,092. Judgment having been entered on the verdict, the defendant company .took this appeal'^ specifying that the court erred:</p> <p>1. In the refusal of the defendant’s offer.1</p> <p>2-5. In the portions of the charge embraced in [ ] 8 to 3</p> <p>6. “ In submitting to the jury a question of fact about which there was no evidence.”</p> <p>7. 8. In the answers to the plaintiff’s points. ? 8</p>

<p>APPEAL BY PLAINTIFFS FBOM THE COUET OF COMMON PLEAS OF VENANGO COUNTY.</p> <p>No. 86 October Term 1889, Sup. Ct.; court below, No. 182 November Term 1889, C. P.</p> <p>On October 30, 1887, a scire facias sur mechanics’ lien was issued at the suit of R. H. Boughton and E. H. Ames, doing business as the Titusville Iron Works, against the Keystone Oil Company, owner or reputed owner and contractor. .</p> <p>The claim upon which the writ was issued was filed by the plaintiffs on September 30, 1887, “for labor and materials furnished by them for and about the erection and construction of the several buildings and structures constituting a certain oil refinery ” upon premises particularly described by courses and distances and adjoiners, and as containing 55.15 acres, “ and the ground covered thereby, and so much other ground immediately adjacent thereto and belonging to the said Keystone Oil Company, as may be necessary for the ordinary and useful purposes of the same, for the purpose of acquiring a lien,” etc. The buildings and structures of the various kinds were particularized in the following form:</p> <p>“Two steam stills, 700 barrels capacity, 22 feet in diameter by 9 feet high, with condensers, separator and bulls eyes. One thousand five hundred and ten pounds iron grate rests for steam stills. Seven iron tanks, 1,000 barrels capacity each, 30 feet diameter by 8 feet high, with tops. Two iron tanks, bleachers, 30 feet diameter by 8 feet high, 1,000 barrels capacity.....”</p> <p>On December 16, 1887, the defendant company, without having made any motion to strike off the lien, filed an affidavit of defence. A rule for judgment for want of a sufficient affidavit of defence was thereupon When by the plaintiffs, which rule the court after argument discharged. The plaintiffs having taken a writ of error to No. 105 October Term 1888, the Supreme Court, on November 5, 1888, entered an order directing “ that the record be remitted and that the court below proceed to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown to the court why such judgment should not be entered: ” Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627. •</p> <p>On November 26, 1888, the remittitur from the Supreme Court was filed, with the record, in the court below, and the plaintiffs renewed their motion for judgment. On November 30th, the following objection was filed on behalf of the defendant company:</p> <p>And now November, 1888, R. G. Lamberton, receiver of the Keystone Oil Company, defendant, objects to the entry of judgment upon the motion now made by the plaintiffs, for the following reasons, apparent of record, to wit: That the statement filed by the plaintiffs herein is insufficient, in that the locality of the buildings and the size and number of the stories of the same, are not set forth; nor whether the buildings are of brick or wood; nor the form, size, height or manner of their construction; nor whether they adjoin each other or are disconnected ; nor whether erected as one tenement, or whether they may be separated in their use without injury. Wherefore the defendant prays that judgment herein be refused and that the lien herein be stricken off.</p> <p>The court after agreement entered a decree, denying the plaintiffs’ motion for judgment and granting the defendant’s motion to strike off the hen, Taylor, P. J., filing the following opinion:</p> <p>Motion for judgment upon the part of the plaintiffs and motion to strike off the lien upon the part of the defendant.</p> <p>These motions were argued together, and originated in the issue upon a scire facias sur mechanics’ lien. The affidavit of defence averring the want of notice, as expressly directed by the act approved June 17,1887, P. L. 413, and this court, declining to assume the responsibility of declaring the act cited unconstitutional, for this reason held the affidavit of defence sufficient. The Supreme Court in an opinion filed November 5, 1888, declared the act of June 17, 1887, unconstitutional, “ and ordered that the record be remitted and that the court below proceed to enter judgment against the defendant for such, sum as to right and justice may belong, unless other legal or equitable cause be shown to the court why such judgment should not be entered.”</p> <p>The only question raised, or argued, in the court below, or in the Supreme Court, was the constitutionality of the act of 1887 before cited. Upon the filing of the remittitur in this court, the plaintiffs moved for judgment, whereupon the defendant objected for the reason that the statement was insufficient. At the same time the motion to strike off the lien for those reasons, apparent of record was made.</p> <p>The claim recites that it was filed for the purpose of acquiring a lien against the several buildings and structures constituting an oil refinery, “ hereinafter more particularly described,” etc. It first gives the names of the parties; second, the amount claimed to be due “for labor and material furnished in the construction and erection of an oil refinery, and upon the credit of the several structures comprising said oil refinery, hereinafter more fully described; ” third, “the several structures composing said oil refinery are located upon a certain piece or parcel of land situated in Cornplanter township, Venango county, Pa.” Then follows a particular description of the land by metes and boundaries “ containing 55.15 acres and the structures are more particularly described as follows : ”</p> <p>. — The court here quoted the specifications and descriptions of the several structures enumerated in the claim and proceeded :</p> <p>I have been thus particular in giving the verbatim description of the different structures, in order that it might be the better determined whether any would or could by any strained construction be termed a building. In this statement these several structures are called by their proper names, to wit, iron tanks, steam stills, etc. They are nowhere called buildings or designated as such.</p> <p>In support of their theory, counsel refer to McClintock v. Rush, 63 Pa. 203; Kennedy v. House, 41 Pa. 39, and Short v. Miller, 120 Pa. 470. Although directly in point, neither of those cases support the plaintiffs’ theory. In the first named the description was “ against the following described building .....being a two-story frame house on Harrison street, 13th ward, Pittsburgh,” etc. In Kennedy v. House, the description was “ All that certain two story brick house or building with a furnished basement,” etc. In Short v. Miller, Justice Paxson says, inter alia: “We learn from the fragmentary statements at hand that the lien was filed for lumber furnished for and about the erection and construction of the buildings mentioned and described in the claim. The buildings appear to have been eleven in number and are sufficiently described and the size and character thereof given.” They consisted of a boiler house, filter house, barrel house, several tank houses, pump houses, tool house, etc. An engine and boiler for any kind of a manufactory do not absolutely require a building to protect them. Both may stand iii 'the open air, yet no one doubts that if an engine and boiler house are erected to protect them from the weather a lien will attach, etc. A careful examination of all authorities bearing upon this question will reveal no conflict. In all a building must be present upon which a lien can attach. This is such an essential.characteristic, that if the building be destroyed by fire, or otherwise, the lien is discharged: Presbyterian Church' v. Stettler, 26 Pa. 246; Wigton’s App., 28 Pa. 161. Applying that principle, what structure described in the present claim, would, by its destruction discharge the lien?</p> <p>The first section of the act of June 16, 1836, P. L. 695, defines the subject of a mechanics’ lien as follows: “ Every building erected within the several counties of this commonwealth,” etc. The twelfth section of the same act provides, “that the locality of the building and the size and number of the stories of the same, or such other matters of description as shall be sufficient to identify the same.” What is a building in the ordinary acceptation of the people? Webster says, “A fabric or edifice constructed for use or convenience, as a house, a church, a shop,” etc. In legal phrase the best definition I can find is in Rapalje and Lawrence’s Law Dictionary, as follows : “ Building. A house or edifice composed of wood, stone, brick, iron or other materials. It may be fastened to the soil by sunken foundations, or set upon piles or blocks, but it must be intended to remain and to be used as a habitation or shelter on the place where it is erected.”</p> <p>That an oil refinery may be the subject of a lien, provided there is a building or buildings upon which the lien would attach may be conceded; but that the act of 1836 was not broad enough' in its terms to include an oil refinery without buildings, in the opinion of the legislature, is evidenced by the passage of the act of February 27, 1868, P. L. 212. But, were I in doubt, the ease of Short v. Ames, 121 Pa. 530, determines the question against the plaintiffs.</p> <p>* * * * * * * *</p> <p>It is further claimed by the plaintiffs that if the court should be of the opinion that no lien has attached under the act of 1836, the lien is a valid one under the provisions of the supplement to that act approved February 27,1868, [P. L. 212.] This act was repealed or intended to be repealed by the act of June 5,1874, P. L. 300, and I cannot hold this lien valid under the act of 1868 without declaring the act of 1874 unconstitutional. Unless clearly satisfied of the unconstitutionality of an act of the legislature the court below should leave such questions to the Supreme Court. I am not so clearly satisfied.</p> <p>And now, to wit:’ March 4, 1889, the motion upon the part of the plaintiffs for judgment is denied, and the motion on the part of the defendant to strike off the lien is granted.</p> <p>Thereupon the plaintiffs took this appeal, specifying inter alia that the court erred:</p> <p>1. In not entering judgment for the plaintiffs.</p> <p>2. In striking the plaintiffs’ claim from the record.</p>

<p>[To be reported.]</p> <p>1. An agreement in an oil lease, that, upon failure to drill a well withm a specified time, the lessee shall pay to the lessor “ the sum of $1,000 annually in advance thereafter, payable quarterly, until the well is completed,” means that payment is to be made quarterly in advance, until such completion, at the rate of $1,000 per year; such quarterly payments accrue separately and become an existing indebtedness only at the beginning of the respective quarters for which they are to be paid.</p> <p>2. A provision in such a lease that a failure by the lessee to perform any of his covenants shall work an absolute forfeiture, and the lease shall thereupon become null and void, being intended for the protection of the lessor, he has the option either to declare the forfeiture or to affirm the continuance of the contract, and if he does not choose to avail himself of the forfeiture, it cannot be set up by the lessee as a defence to an action upon the lease: Galey v. Kellerman, 123 Pa. 491, followed.</p> <p>3. Persons may contract in such a form as to authorize a party to take advantage of a forfeiture incurred by his own default; but a proviso to the effect that a forfeiture shall not prevent the collection of any sums due to the lessor immediately befoi-e it takes place, is not sufficient to manifest an intention that the lessee may defend against a suit for rentals on the ground that, before they accrued, the lease was forfeited by default in the payment of prior instalments.</p>

<p>[To be reported.]</p> <p>1. Under a lease of land for the sole purpose of drilling and operating for oil and gas, the lessee’s right in the surface of the land is in the nature of an easement of entry and examination, with a right of possession arising where the particular place of operation is selected, and the easement of ingress, egress, storage, transportation, etc., during the continuance of operations.</p> <p>2. The real subject of possession to which the lessee is entitled, is the oil or gas contained in or obtainable through the land: these are minerals ferae naturae, and are part of the land and belong to its owner only so long as they are in it and under his control; the lessee, when he has drilled a gas well and controls the gas produced thereby, is in possession of all the gas within the land.</p> <p>3. The fact that the gas from such well is not kept flowing into the pipeline of the lessee, but is shut in the well as a reserve for use in emergencies, does not affect the possession of it by the lessee when he is in control thereof by means of a connection between the well and his pipeline, so arranged that he can have the gas flow into his line at any time.</p> <p>4. That the lessor, claiming a forfeiture of the lease, ordered the lessee’s agent, who was measuring the pressure of the well, off the premises, and the agent withdrew, or, that in consequence of a like order, agents of the lessee who were on the land to locate a second well, withdrew without doing- so, is no evidence of an ouster of the lessee from his possession.</p> <p>5. Where the lessee is thus in possession of the gas underlying the premises, equity has jurisdiction to restrain the lessor from drilling on the leasehold, the rights granted to the lessee being necessarily exclusive, and the damage to arise from the threatened waste, being entirely incapable of measurement at law, even if not irreparable.</p> <p>6. When the premises embraced in an oil- and gas-lease, are described as “ all that certain tract of land,” etc., a clause therein providing that no wells shall be drilled within a limited area, is neither an exception nor a reservation, but simply a limitation upon the privilege of drilling granted to the lessee, confining his drilling without the area specified.</p> <p>7. A clause in a lease providing for a forfeiture thereof, in the event of a default by the lessee in the performance of his covenants, is not self-operating, so as to make the forfeiture take place, ipso facto, upon the occurrence of the default; but, being for the benefit of the lessor, it rests with him to enforce or waive it.</p> <p>8. Forfeitures are to be construed strictly; and where a lease provides that it shall become forfeited, if any of the payments provided for are not made, a whole payment is meant, not a balance on a running account; wherefore, if a part of a payment be accepted before it is due, no forfeiture is incurred by a failure to pay the remainder in the time specified.</p>

<p>APPEAL BY M. B. EINK EROM THE ORPHANS’ COURT OE WESTMORELAND COUNTY.</p> <p>No. 207 October Term 1889, Sup. Ct.; court below, No. 9 February Term 1888, O. C.</p> <p>On March 25, 1888, Christian Fennel, Andrew Fennel, Michael Fennel and George Fennel presented their petition averring that Frederick Danhouse, of Salem township, had died intestate on April 8, 1880, “ leaving to survive him, Susan, his widow, and one child, to wit: John M. Danhouse,” and seised of a certain tract of land in said township ; that John M. Dan-house, the son, died on June 18, 1885, intestate and without issue, but leaving to survive him his mother Susan, and Margaret B. Danhouse, his wife ; that the petitioners had become the alienees of Susan Danhouse, and as such they prayed partition of said tract of land. Upon this petition an inquest was awarded, and returned, appraising the land at $2,887.16. A paper waiving the issuance of a rule upon heirs was signed by the petitioners and filed, and thereupon, without notice to Margaret B. Danhouse, the land was decreed to the petitioners at the valuation. Thereupon Mr. J. JR. Smith, on motion, was appointed auditor, “ to ascertain the amount of the recognizance to be given.”</p> <p>The auditor, in a final report made, found the facts set forth in the petition for the partition; that the entire estate in the land was valued at $2,887.16, and that after deducting the costs, fees, etc., of the partition and audit, there was a net balance for distribution of $2,598.13; that Margaret B. Danhouse (now Margaret B. Fink), widow of John M. Danhouse, was entitled to receive from the petitioners the interest on $866.04, the one third of this balance, during the lifetime of Susan Danhouse, the widow of Frederick Danhouse; and that, in case said Margaret B. Fink should survive said Susan Danhouse, then the petitioners should pay Margaret B. Fink the interest on $1,299.06, the one half of said balance, during the remainder of her natural fife, and that the recognizance should be so drawn. The auditor further found, citing Power v. Power, 7 W. 205; Shaupe v. Shaupe, 12 S. & R. 9; Thomas v. Simpson, 8 Pa. 60, that Margaret B. Fink was not entitled to take the land, and was therefore not entitled to notice of the rule on heirs.</p> <p>To this report, Margaret B. Fink filed exceptions, alleging that the auditor erred:</p> <p>1. In closing his eyes to the fact that the land vested in John M. Danhouse after the death of his father, Frederick Danhouse.</p> <p>2. In not finding John M. Danhouse to be the absolute owner in fee of the land at the time of his death, to wit: on June 18, 1885, and that he was so seised from. April 8, 1880, the date of the death of his father, Frederick Danhouse.</p> <p>3. In not finding that Margaret B. Danhouse, widow of John M. Danhouse, was entitled to the one half part of the real estate, including the mansion house, and buildings appurtenant thereto, for the term of her life, in accordance with act of assembly, subject to the pro rata dower interest of Susan Danhouse.</p> <p>4. In finding that at the death of John M. Danhouse, Susan Danhouse, his mother, was entitled to the farm, subject to the dower of Margaret B. Danhouse.</p> <p>Said exceptions having been argued, the court, Hunter., P. J., on August 24, 1889, filed the following opinion and decree:</p> <p>The rights of two widows are to be considered, viz.: Susan Danhouse, the widow of Frederick, and Margaret B. Danhouse, the widow of John M. Danhouse, although the contention now only concerns the latter.</p> <p>The widow of Frederick, Susan, was entitled to the one third part of the estate from the death of her husband, during her life. The widow of John, Margaret B., is entitled to one half of the real estate of which her husband died seised, subject to the dower of Susan, or rather her estate in the land, for such it is.</p> <p>While, for present purposes, the conclusion reached by the auditor may be right enough, yet he is not right in finding that the only estate John M. Danhouse had in the land at the time of his death was the two thirds; for the moment the widow, Susan, died, the whole of the land became his, this widow only having a life interest; so that by no operation of law could the widow, Margaret, be confined to the two thirds of the land at the death of the widow, Susan. Nor does it matter to her what became of the land on the death of John Danhouse. If there be no collateral heirs, Susan would take the land in fee, and her dower, as the widow of Frederick, would merge in the greater title, but this does not affect the interest of the widow, Margaret.</p> <p>The auditor, therefore, may be correct, so far as he goes; but suppose Susan dies before Margaret, is she to have nothing more ? Is she to be cut absolutely out of her dower in the remaining .third of the land? We think not. It is true this is a contingency, but one that may, and, by the course of nature, most likely will happen. Further than this we cannot sustain the exceptions, and we must change the auditor’s report to this extent.</p> <p>And now, August 24, 1889, it is ordered and decreed that the petitioners to whom the land was adjudged, enter into recognizance to pay to Margaret B. Fink, who was the widow of John M. Danhouse, the interest on the sum of $874.88, during her natural lifetime, being the one half of the two thirds of the valuation money; and, in case of the death of Susan Danhouse, before the death of the said Margaret B. Fink, then and in that case, and from the time of said decease, to pay her, the said Margaret B. Fink, during her natural lifetime, the interest on the sum of $1,811.56, being the one half of the net valuation money; and the auditor’s report, as so modified, is confirmed, and the exceptions otherwise dismissed.</p> <p>Thereupon, the exceptant took this appeal, specifying, by fourteen specifications, that the court erred in dismissing her exceptions filed to the reports of the auditor.</p>

<p>[To be reported.]</p> <p>1. The district attorney is a quasi judicial officer, representing the commonwealth, which seeks no victims: it is as much his duty, therefore, to see that no innocent man suffers, as it is to see that no guilty man escapes.</p> <p>2. When the district attorney permits private counsel to assist him in the trial of a cause, such counsel represents him to that extent, and should be governed in his conduct of the case by the same rules of propriety.</p> <p>3. There is no way provided by which objectionable remarks by counsel in an argument to the jury may be brought upon the record, and errors assigned, upon which the judgment of the court may be reversed by reason thereof.</p> <p>4. If, on the trial of an indictment for murder, the jury render a verdict of guilty, without specifying the degree of murder, it is not error, before the verdict is recorded and the jury separated, to send the jury back to amend their verdict.</p> <p>(a) On the trial of an indictment, a witness, being asked by the commonwealth if a pocket-book was given her .by a certain person at a certain time, replied affirmatively and stated that the same poeket-bóok had been handed to the officers in her presence.</p> <p>5. In such case, it was not error to refuse to permit the defendant, producing a pocket-book, to interrogate the witness as to its indentity with the pocket-book handed to the officers, and to test the witness’s knowledge in regard to the same.</p>

<p>APPEAL BY DEBEND ANT FROM THE COURT OF OYER AND TERMINER OF ARMSTRONG COUNTY.</p> <p>No. 286 October Term 1889, Sup. Ct.; court below, No. 1 September Term 1889, O. and T.</p> <p>On September 3,1889, the grand jury returned as a true bill an indictment of Alvira Sbutte, in two counts; the first count charging robbery, and the second, larceny. On September 10th, the indictment was certified into the Court of Oyer and Terminer, and on the same day was called for trial. Before the jury was sworn, the defendant by her counsel moved the court to compel the commonwealth to elect upon which count the defendant should be tried; the first count charging a crime triable in the Court of Oyer and Terminer, and the second charging a crime triable in the Court of Quarter Sessions ; and for the further reason that the two offences charged were repugnant. The court refused the motion, and directed the defendant to plead to the indictment.</p> <p>The defendant then pleaded not guilty. The jury having been sworn and the testimony submitted, they returned a verdict of not guilty as to the first count, but guilty, as charged in the second count, of larceny as bailee to the amount of $60. The defendant then moved the court in arrest of judgment, assigning as reasons, in substance, (1) that the offence charged in one count was triable only in the Court of Oyer and Terminer, and that charged in the other, was triable only in the Court of Quarter Sessions. • (2) That the two offences were repugnant in their nature and legal incidents. (3) That the defendant, being acquitted of the charge of robbery, the court trying the cause had no jurisdiction of the offence of which the defendant was convicted. The court refused the motion.</p> <p>Judgment was then passed upon the verdict, when the defendant, having obtained the allowance thereof, took this appeal, assigning as errors, the refusal of the motion to compel the commonwealth to elect, and of the motion in arrest of judgment.</p>

No. 219 October Term 1889, Sup. Ct.; court below, No. 118 February Term 1887, C. P. On January 7, 1887, Michael Shannon brought replevin against Edward Minney to recover the possession of a cow. Issue.

No. 13 October Term 1889, Sup. Ct.; court below, No. 551 C. P. in Equity On March 1,1888, the Manufacturers Natural Gas Company filed a bill in equity against M. Y. Douglass and S. M. Douglass, his wife, averring in substance that on December 29,1885, the defendants executed, acknowledged and delivered to C. Meyran an oil- and gas-lease of a certain tract of land belonging to said S. M. Douglass; tha,t the lease was afterwards assigned by the lessee to the plaintiff company,…

No. 27 October Term 1889, Sup. Ct. ,• court below, No. 28 June Term 1888, C. P. On April 10, 1888, Nancy Donaghy brought assumpsit against Wm.

<p>APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS OF BUTLER COUNTY, IN EQUITY.</p> <p>No. 182 October Term 1889, Sup. Ct.; court below, No. 5 June Term 1885, C. P. in Equity.</p> <p>On May 6, 1885, Samuel B. Dick, and E. W. Ames, receiver of the Gibbs & Sterrett Manufacturing Company, filed a bill in equity against L. N. Ireland and S. McCaughtry, doing business as L. N. Ireland & Co. The bill averred:</p> <p>That Edward Guillod, the inventor of a certain improvement in the construction of drilling jars, made application under the laws of the United States for a patent for his said invention, and letters patent covering the same were duly issued to Bryan, Dillingham & Co., as his assignees, for the term of seventeen years from. June 16,1868 ; that on June 22, 1869, said letters patent were surrendered and a re-issue made for the residue of the term; that by various assignments said re-issued letters patent became vested in the Gibbs & Sterrett Manufacturing Co. et al., who on May 16, 1876, granted, to the defendants a license to manufacture jars under said patent by the contract following:</p> <p>“Memorandum of agreement made May 16, A. D. 1876, between D. H. Mitchell and the Gibbs & Sterrett Manufacturing Co., of the city of Titusville, Crawford county, Pa. of the first part, and L. N. Ireland & Co., of the second part.</p> <p>“ Whereas, the parties of the first part are the owners of letters patent granted to Bryan, Dillingham & Co., 78,958, dated June 16, 1868, and re-issued to John C. Bryan, June 22,1869, and No. 3,510 for certain improvements in the construction of drilling jars or jar fillings, and said second parties desire to manufacture said jars for sale and use. Now, therefore, the parties of the first part, hereby agree to and do license the said second parties to manufacture and sell said jars and jar fillings at their place of business in Petrolia, Butler county, Pa., as long as they perform the stipulations and agreements herein specified to be performed by said second parties. In consideration whereof, the said parties of the second part agree to render to said first parties, their heirs or assigns, on or before the fifth day of each and every month, a full, true and perfect statement of all jars and jar fillings made during the preceding month, and to whom sold ; which statement shall be verified by the affidavit of the parties of the second part, or their agent; and said parties of the second part agree to pay to said first parties, their heirs or assigns, at the time said statement is rendered, the sum of ten dollars, as royalty for each and every jar or jar filling so made during the preceding month.....</p> <p>“ Said second parties shall keep a book containing a list of all jars or jar fillings made and to whom sold and the dates of said sales, which book shall at all reasonable times be open to inspection of the parties of the first part and their agents. Said second parties further agree and bind themselves not to make or sell any other jars or jar fillings than those covered by said letters patent during the continuance of this agreement.....”</p> <p>Upon the margin of the printed form containing the foregoing agreement, executed under seal by the parties, and attested by R. H. Sterrett, was written the following memorandum:</p> <p>“ It is agreed by parties of first part that the parties of second part can cancel this license hy giving thirty days notice in writing and paying all dues. R. H. Sterrett.”</p> <p>The bill further averred the non-payment of royalties due under said license, and various breaches thereof by the defendants, and prayed for an account, etc., and for general relief.</p> <p>The defendants answered, denying the validity Of the patent, and the plaintiffs’ title thereto; averring that on December 19, 1878, in accordance with its terms, the defendants elected to cancel said contract, and did so by giving to the plaintiffs a written notice of that date, directed to R. H. Sterrett, Esq., at Titusville, in the words following:</p> <p>“Sir: We wish to cancel our license concerning the manufacture of drilling jars, bearing date of May 16, 1876, as per contract. You will please return our bond to us, and we will return the license by mail. Yours truly,”</p> <p>The answer further averred that the defendants had paid all royalties during the time the license was in force; and denied the liability of the defendants to account to the plaintiffs.</p> <p>Issue having been joined, the cause was referred to Mr. R. P. Scott, as examiner and master.</p> <p>On August 28, 1886, while the case was in progress before the master, the plaintiffs, by leave of the court, amended their bill by averring that the words “and stop making the jars thereafter ” were a part of the contract as agreed to at the time of the execution of the license set out in the bill, but were omitted by the inadvertence and mistake of the scrivener from the agreement written upon the margin of the printed license granted to the defendants on May 16, 1876, and should have been inserted at the end thereof. The defendants thereupon answered, denying this averment.</p> <p>In support of the averment introduced by their amendment, the plaintiffs called R. H. Sterrett, a stockholder in the Gibbs & Sterrett Manufacturing Company, and the agent of the plaintiffs, who testified before the master as follows: “ At the time the license was given, Mr. Ireland said to me, supposing we, at any time, want to quit business, how can we surrender our license and get our bond back. I told him that at any time they wanted to quit business, or did quit business (we were talking about the manufacture of jars, the jar business), that he could do so by giving thirty days’ notice, paying all dues according to the terms of the contract, and I told him I would endorse that on the margin of the contract, and I did. The arrangement was that he could get the bond back any time he quit manufacturing jars. Inadvertently I indorsed only a part of that contract on the margin. I left out that part about quitting the manufacture of jars. It was also a part of the agreement that I would return the bond. The arrangement was that any time they wanted to quit the business, or did quit the business, and pay all dues, according to the terms of the license, that I was to return the bond and cancel the license. It was my mistake that this was not in the writing.”</p> <p>The defendants, L. N. Ireland and S. McCaughtry, testified, under objection to their competency upon the ground of the death of D. H. Mitchell, one of the parties to the contract of license, that .no agreement was made, in connection with said license, that upon its cancellation by the defendants they should stop the manufacture of jars, but that the writing covered the whole contract, and nothing was omitted therefrom. D. K. Artman, a witness called by the defendants, testified as follows:</p> <p>A. I was present at the time the contract in suit was made at Petrolia.....</p> <p>Q. Did you hear any conversation or agreement between the parties, as to the clause written on the margin, except the words written ? A. No, sir.</p> <p>Q. Was there any agreement in your presence or hearing, that when he canceled this agreement, they were to stop making jars altogether ? A. No, sir..... I was in the shop all day, not just close all the time the conversation was going on between them; shop is probably 40 or 50 by 60 or 70 feet. We had an office room separate or partitioned off the shop; it was probably 12 by 15 feet. Part of the conversation between Sterrett and Ireland which I have detailed, was in office ; other part in main building. I was not in office all the time, was back and forth in shop. Do not say that I heard all the conversation that took place between R. H. Sterrett and defendants that day; think I heard half of it; it was ten years ago, 1876; was not personally interested so as to charge my mind with conversation.</p> <p>R. H. Sterrett testified further for the plaintiffs: “ After I answered letter of Ireland and Hughes, dated December 19, 1878, a short time.thereafter I received their final report, either February 8, 1879, or it was dated February 8, 1879. I went to Petrolia, saw Ireland & Co., told them that I had come to settle their jar account, as per terms of the license, and that I wanted to examine their books, and if I found that they had reported and paid for all the jars made and sold, as per terms of the license, that I was prepared, if they were going to quit making jars, to surrender their bond and cancel their license. Mr. Ireland refused to allow me to examine their boqks, and told me we had all the reports, information and pay we would ever get on that score. I told him, then, I should not return his bond or cancel the license, but that we should hold him to the terms of his contract or license. Mr. Ireland claimed by the memorandum on the license, that I had agreed to cancel. I told him our agreement was to cancel upon his complying with the terms of the contract, which he had not done, and until he did I should not cancel. I called his attention to that clause in the license requiring them to make sworn statements and to exhibit their books of all jars made and sold, which they had failed and refused to do, and, from my belief, I was not satisfied that they had reported for all jars they had made and sold, but if he would satisfy me by their books that they had done so, and were going to quit making jars, that I would surrender his bond and cancel; but he refused to make any further statements or sworn statements, or allow me to examine the books. I again refused to surrender his bond, and came away and left the matter. I had the license and bond with me at the time.”</p> <p>L. N. Ireland testified denying that he had refused to permit Sterrett to examine the books of the defendants.</p> <p>On May 27, 1887, the master reported inter alia, as follows:</p> <p>The evidence of the plaintiffs proves conclusively that the letters patent specified in said contract were duly granted as set forth in paragraph 4 of the plaintiffs’ bill; that the plaintiffs were the owners of said letters patent and had the lawful right to license the use thereof, and make the contract with the defendants, giving them the right to make and sell drilling jars and jar fillings, covered and protected by said patent; also, that the defendants continued to manufacture and sell drilling jars and jar fillings at their shop or works at Petrolia, from the date of said license, May 16, 1876, until and after the expiration of said patent in June, 1885, and did not make monthly statements or pay royalty as provided for in said contract after December, 1878. The defendants admit these facts, but allege that the jars and jar fillings made and sold by them, from December, 1878, to June, 1885, were not made under said license, and that' they were not bound to make monthly statements or pay royalty; that on December 19, 1878, they elected to cancel, annul and terminate said contract by giving the plaintiffs notice in writing, according to the terms of said agreement, and that they did, in the manner provided for in said license, cancel and terminate the same and pay all dues, and that said license - ceased, terminated and was canceled about January 19, 1879, or thirty days after said notice.</p> <p>The plaintiffs admit that the notice given by defendants was received by R. H. Sterrett, Esq., but deny that said license ceased, terminated or was canceled, as alleged by the defendants ; and contend that it could not be terminated or canceled without their assent, and then only upon the defendants surrendering said license, paying all royalties due to the date of the surrender of said license, receiving back their bonds and ceasing the further manufacture and sale of drilling jars and jar fillings; the plaintiffs alleging by an amendment filed August 28,1886, that it was a part of the contract or agreement that the defendants were to cease the-manufacture of drilling jars and jar fillings, in the event that they should conclude to cancel said license, and that the words, “ And stop making the jars thereafter,” should have been added to memorandum of agreement, indorsed on the margin of the contract or license, dated May 16, 1876, but that that portion of said contract was omitted from the written memorandum by the inadvertence of Mr. Sterrett, who wrote the contract. Mr. Sterrett conducted all the business with the defendants with reference to said license.....</p> <p>The defendants deny that there was any agreement on their part to cease manufacturing jars or jar fillings in case they determined to cancel said license, and deny that the words,. “ and stop making jars thereafter,” were omitted from said contract by either accident, mistake or inadvertence, and say that the agreement of license given to them covers and contains the whole contract.</p> <p>Parol evidence is, as a general rule, inadmissible to contra-diet, change or explain a written contract, except in case of fraud, mistake or accident, and here the plaintiffs allege inadvertence and mistake. The parol evidence offered was not admitted to contradict, change or alter the written contract, but to explain what occurred at the time of the execution of said contract, with reference to the subject matter thereof.</p> <p>D. H. Mitchell, one of the parties to and assignor of the thing or contract in action, being dead before the filing of this bill, the defendants Ireland and McCaughtry, are incompetent, under the act of 1869, to testify as to what occurred at the time of the execution of said contract, and their testimony (taken under objection) with reference thereto being excluded, and giving all the weight to the testimony of Mr. Artman that it is entitled to, the evidence of Mr. Sterrett, taken in connection with the acts of the defendants with reference to said contract, after the making thereof, sustains the position of the plaintiffs.</p> <p>Was the letter of- the defendants to R. H. Sterrett, dated December 19,1878, a cancellation of said contract? The letter does not declare a rescission or cancellation of said license by the defendants. It merely expresses a wish to cancel and a willingness on part of the defendants to return the license to plaintiffs upon receipt of their bond. It does not appear anywhere in the written contract of license that the defendants were to or did give a bond to the plaintiffs. But the defendants’ letter shows that a bond was given and shows to some extent that there was a part of said contract not expressed in the written agreement of license. The marginal writing on contract provides “ That the parties of second part can cancel this'license by giving thirty days notice in writing and paying all dues.” The defendants’ letter requests the return of their bond as a condition precedent to the return or cancellation of the license. These facts taken in connection with the fact that the defendants on May 16, 1876, executed and delivered to the plaintiffs a bond in the sum of five hundred dollars, reciting the contract with the plaintiffs for the manufacture and sale of drilling jars and jar fillings and conditioned for the true performance of said agreement and the making of monthly statements and payments as therein provided, and the testimony of R. H. Sterrett, as to his interview with Ireland in February, 1888, indicate very forcibly and conclusively that said defendants could not terminate said contract at their pleasure, and without the consent of the plaintiffs, but that said license or agreement could only be Canceled, terminated and surrendered with the consent of the plaintiffs, and by the mutual act of both parties.</p> <p>There is no evidence that the bond of the defendants was ever surrendered to them by the plaintiffs, or that the plaintiffs agreed or consented to the cancellation or surrender of said-agreement of license, but, on the other hand, the plaintiffs on May 6, 1885, entered a judgment against the defendants - on their bond at No. 269 June Term 1885.</p> <p>All the evidence and facts in the case, with reference to the alleged rescission and cancellation of said agreement of license, show such an utter want of mutuality between the plaintiffs and defendants with regard thereto, as to repel the allegation of the defendants that said license was rescinded, terminated and annulled by them January 19, 1879, or that they could cancel the same without the consent of the plaintiffs.</p> <p>In view of all the evidence in the case, I' find the facts as follows :</p> <p>1. That the letters patent described in the plaintiffs’ bill were duly granted as specified in paragraph four of said bill.</p> <p>2. That the plaintiffs were, at the time of the making of the contract with the defendants, to wit, May 16, 1876, the lawful owners of said patent, and as such had the right to license its use, and make the contract with the defendants, giving them the right to manufacture and vend drilling jars and jar fillings covered and protected by said letters patent.</p> <p>3. That the defendants, after the date of said contract, May 16,1876, commenced making drilling jars and jar fillings thereunder.</p> <p>4. That the defendants agreed not to make or sell any other jar or jar fillings than those covered by said letters patent, during the continuance of said agreement.</p> <p>5. That the defendants, or one of them, L. N. Ireland, continued to manufacture and sell drilling jars at his shop in Petrolia, Butler county, Pennsylvania, from May 16, 1876, until the expiration of said patent in June, 1885.</p> <p>6. That the defendants agreed to render to the plaintiffs on or before the fifth day of each and every month, a full, true and perfect statement of all jars and jar fillings made during the preceding month, and to whom sold.....and to pay the plaintiffs at the time said statement is rendered, the sum of ten dollars, as royalty for each and every jar or jar filling so made during the preceding month.</p> <p>7. That the defendants have not made or rendered to the plaintiffs any statement of jars or jar fillings made or sold since December, 1878.</p> <p>8. That the defendants have not paid the plaintiffs the sum of ten dollars on any jars or jar fillings made since December, 1878.</p> <p>9. [That the letter or notice of the defendants to R. H. Sterrett, dated December 19, 1878, was not a rescission or cancellation of said license, and did not operate as such at any time thereafter.] 1</p> <p>10. That the check of the defendants No. 37, dated Petrolia. February 8, 1879, on Argyle Savings Bank, to the order of R. H. Sterrett, for twenty dollars, paid under protest as royalty on letters patent, was for royalty on two sets of jars sold December 24, 1878, to William Reader and Henry Webster, as per report for December, 1878.</p> <p>[The duration of agreement or contract of license, between the plaintiffs and defendants, was coincident with that of the patent, unless the term thereof was sooner terminated by the mutual act and consent of the plaintiffs and defendants, and there being no termination or cancellation of said contract during the term for which said patent existed, and the defendants having continued the manufacture of drilling jars and jar fillings, from May 16, 1876, until the expiration of said patent, in June, 1885, the liability of the defendants to account to the plaintiffs under said contract would not terminate, until after the expiration of the patent.] a</p> <p>Patent rights are property; the owners thereof cannot be deprived thereof without due process of law: Walker on Patents,. § 151. The grant of letters patent creates a legal estate of a peculiar character, consisting of the exclusive right to make, vend or use the subject of the grant, for a specific period: Curtis on Patents, § 167; and a licensee who has obtained a license upon certain terms, will be held by a court of equity to a compliance with those terms. In such cases, however, the court will act with due regard to the subtantial rights of both parties, neither permitting, on the one hand, the licensee to continue his use in disregard of the agreement; nor, on the other hand, working an unreasonable forfeiture of the license: Curtis on Patents, § 438. A party who has had the use of an invention, under a contract for an annual rent, or other estimated rate of payment, may discontinue the payment, and if he still use the invention, the patentee may sue him for the rent due, or for infringement: Curtis on Patents, § 438; Walker on Patents, § 307, note 8; Curtis on Patents, § 307 and note 5.</p> <p>The defendants took a license to use the plaintiff’s property. They were not obliged to make any drilling jars or jar fillings under said license, but, having commenced to make them and continued to make them during and until the expiration oi said patent in June, 1885, and having fully enjoyed the advantages contracted for in said license, the defendants became and are liable to account and pay to the plaintiffs the sum of ten dollars for each and every drilling jar and jar filling made by them during the continuance of said license. On the authority of Patterson’s App., 11 W. N. 572,1 am of opinion that this is a proper case for equitable relief.</p> <p>—The master thereupon recommended a decree for an account, and that the defendants pay to the plaintiffs the sum of ten dollars for each and every drilling jar or jar filling made by the defendants between December 25,1878, and June 16,1885, and also pay the costs.</p> <p>Exceptions filed to the master’s report by the defendants and overruled by him, were renewed before the court, and after argument, the court, Hazen, P. J., without opinion filed, entered the following decree:</p> <p>“ And now to wit; February 20, 1888, this case came on to be heard on the bill, answer, testimony, master’s report and exceptions thereto, and thereupon it is ordered, adjudged and decreed, that the defendants do account to plaintiffs for all drilling jars and jar fillings made by them, or either of them, or under their or either of their directions or employment, from December 25, 1878, to June 16, 1885, at Petrolia, in Butler county, Pa., and pay to plaintiffs the sum of ten dollars for each and every drilling jar or jar filling made within said time, and also pay the costs of this proceeding; and the same is referred back to R. P. Scott, Esq., the master, for further proceedings in this case before him.” 4</p> <p>The master thereupon proceeded to state an account in pursuance of the decree. The defendants filed with him a statement, under oath, showing the manufacture and sale by them, within the period specified in the decree, of 724 sets of jars and jar fillings, but averring that only three of them, which were sold during the years 1883 and 1884, were of the character described in the letters patent of the plaintiffs, and that none of the jars and jar fillings embraced in the account were manufactured prior to December 25, 1878, the date when the contract between the plaintiffs and defendants was rescinded.</p> <p>The plaintiffs having excepted to the statement and affidavit filed by the defendants, the latter, at the final hearing before the master, offered to prove by L. N. Ireland the following •facts :</p> <p>1. That defendants have made but two sets of steel-lined jars of the character described and claimed in plaintiffs’ patent, since the date of their alleged rescission of the license in suit, and both of said sets were returned to defendants on account of breakage, and other jars supplied by the defendants in lieu thereof.</p> <p>2. That all other jars made by defendants «were all.-steel jars and steel quarter jars, the former having no iron in their construction except the pin, and the latter having no iron in the reins or link-bars, for a distance of nearly one half their length from the knocking head, and no iron surrounding the knocking head.</p> <p>3. That since the date of the contract in suit and for some time prior thereto, there was no market for steel-lined jars of the character described and claimed in plaintiffs’ patent.</p> <p>4. All the statements contained in defendants’ affidavit filed August 21, 1888, as a supplement to their account.</p> <p>5. That fully twenty-five per cent of the jars made and sold by defendants, were returned on account of breakage and new jars furnished in lieu thereof.</p> <p>6. In connection with the foregoing offers, the defendants produce exhibits X, Y and Z, the former, X, illustrating the kind of jars described and claimed in plaintiffs’ patent; the dark wood in each exhibit representing steel, and the other parts representing iron. Y illustrates a steel quarter jar and Z, an all-steel jar.</p> <p>7. The defendants offer to prove that some of the jars named in the account stated (and what ones) although made and sold and charged in the books, were broken and returned and by the terms of the contract, not to be paid for.</p> <p>The plaintiffs having objected to these offers, the master, • under the conclusions of his former report, made the following ruling thereon':</p> <p>The defendants’ offers of evidence are overruled; the first,6 second,7 fourth, fifth8 and seventh as incompetent, and the third and sixth as immaterial and irrelevant.</p> <p>On February 4, 1889, the master made his final report, finding : That the license contract between the plaintiffs and defendants continued in force from its date until June 16, 1885, the date of the expiration of the patent; that all of the jars and jar fillings reported by the defendants as made and sold by them from December 25, 1878, to June 16, 1885, were made and sold in violation of their covenants and agreements contained in said license, and that the sum of ten dollars upon each and every jar or jar filling so made and sold, became due, owing and payable from the defendants to the plaintiffs, on the fifth day of each month succeeding the month in which they were manufactured and sold, as provided in said license ; that the plaintiffs are entitled to recover from the defendants in this proceeding the said sum of ten dollars royalty for each and every jar or jar filling so made and sold by them as aforesaid, with interest thereon from the fifth day of each month next succeeding the month of manufacture and sale, at which time it was provided in said license the defendants were to render their account and pay the said royalty of ten dollars, by reason of the violation and breach by said defendants of the covenants and agreements in said license on their part to be kept and performed ; and that said defendants are indebted to and owe the plaintiffs for . said royalty on 724 sets of drilling jars or jar fillings made and sold by them from December 25, 1878, to June 16, 1885, with interest as aforesaid, computed to the fifth day of January, 1889, the date of this report.</p> <p>He thereupon stated an account against the defendants, the earliest item of which was for the month of August, 1879; charged the defendants with royalties amounting to $7,240, and interest thereon amounting to $2,389.15, aggregating $9,629.15; and recommended a decree that they pay the said sum to the plaintiffs, with costs.</p> <p>Exceptions on the part of the defendants to his final report, having been overruled by the master, and renewed before the court, after argument they were dismissed, and thereupon the court, filing no opinion, entered a final decree in the form recommended by the master.11 The defendants then took this appeal, specifying that the court erred:</p> <p>I, 2. In overruling defendants’ exceptions to the master’s findings.1 s</p> <p>4. In the interlocutory decree directing an account.4</p> <p>6-8. In dismissing the exceptions to the master’s rulings on defendants’ offers,6 to 8</p> <p>II. In entering the final decree recommended by the master.11</p>

<p>APPEAL BY DEPENDANT PNOM THE COURT OP COMMON PLEAS OP INDIANA COUNTY.</p> <p>No. 226 October Term 1889, Sup. Ct.; court below, No. 41 March Term 1881, C. P.</p> <p>To the term and number above stated, J. N. Hamilton brought covenant against Asa Crossman on the following agreement under seal:</p> <p>“ Whereas, Asa Crossman, of Montgomery township, Indiana county, Pa., has exchanged his farm in Warren county, Virginia, of 240 acres, more or less, with J. N. Hamilton, of West Indiana borough, Pa., for one of 200 acres, or more, lying in Green township, county of Indiana, state of Pennsylvania; it is .agreed, by tbe said Crossman that he will surrender his agreement with Elias Biggs, in reference to furnishing rails, etc., for said farm; also pay said Hamilton $500 in cash, also $1,000 more, to pay off a certain claim against said farm in Virginia. It is also agreed, that should the claim reach at the present time more than $1,000 against said farm in Virginia, said Cross-man to make the amount good to whatever amount it may reach. In other words, to pay Hamilton a sum sufficient to meet all claims, and give Hamilton a clear deed, free from all liens or incumbrances; and Crossman further agrees that should Hamilton gain a certain law-suit now pending, wherein P. A. Williams is plaintiff and said Hamilton defendant, the cause of said action or claim of Williams being for twenty-one acres of land, to pay Hamilton $1,000 more. Should Hamilton lose said suit he is only to receive the $1,500 or more, previously mentioned, or the $500 and sufficient more to satisfy all claims against said Virginia farm, supposed now not to reach a greater-sum than $1,000. Said Hamilton to assign his insurance policy to said Crossman upon the buildings on said farm. Said Hamilton to have possession of said Virginia farm as soon as the laws of Virginia wiE admit. Said Crossman to have possession of said farm in Pennsylvania at any time he desires the same. Hamilton reserving the saw logs now cut and not put to the creek, which he had sold to the Twolick Lumber Co. Hamilton to give a good and sufficient deed, free from liens, etc. Hamilton to have one-half the share of wheat now growing, which would fall to Crossman if he had not sold; in other words, to have one sixth of the wheat crop now growing on said Virginia farm, with all the share or one third of spring crop.</p> <p>“ Witness our hands and seals this 21st day of April, 1876.”</p> <p>At the trial on November 15, 1887, it was made to appear that when the contract on which suit was brought was executed, a deed for 200 acres of land was delivered by Hamilton to Crossman. This land had previously been conveyed to Hamilton by P. A. Williams, who, at the time of delivering his deed, had executed an agreement with Hamilton containing the following covenant:</p> <p>“ Now, therefore, in consideration of the premises the said P. A. Williams doth covenant and agree to and with the said J. N. Hamilton that the boundary lines designated on the said deed embrace all the cleared land now being upon the said land, and that the residue owned by said P. A. Williams, if any, is unimproved, and the said P. A. Williams further agrees to.be held responsible for any damage or injury which the said J. N. Hamilton shall or may sustain by reason of the cleared land not all being embraced in the said boundaries.”</p> <p>The plaintiff, under objection and exception to the defendant, put in evidence the record of the suit of Williams against Hamilton, showing that the action referred to in the agreement between Crossman and Hamilton was for trespass, and that when the case was called for trial, the plaintiff had suffered a nonsuit. The defendant called Mr. Justice Clark, of counsel for Williams, and offered to prove by him that the case of Williams against Hamilton was allowed to be non-prossed because of the insolvency of Hamilton. The offer was objected to and refused.13</p> <p>The court, Hunter, P. J., 10th judicial district, presiding, charged the jury in part as follows :</p> <p>Was the twenty-one acres mentioned in this agreement, then? I shall repeat, was the twenty-one acres, or so much of it as gave the defendant an interest in the Williams suit, in the exchange of farms ? The plaintiff claims that it was, that this action of trespass brought for damages to the twenty-one acres of land by Williams, was within the exchange of lands, and, therefore, it gave an interest to Crossman. But, gentlemen, the defendant took a deed; the taking of that deed, whatever may have been the understanding prior to that, would be the consummation of the contract; and this deed, if the survey be right and the description in the deed be right, would go to show that the twenty-one acres was not in this deed, and, therefore, was not in the exchange of lands as consummated and finished by the passing over of these deeds. It is true, as contended, that the words “or more ” are in tbe deed; but, as we have said, you have courses and distances named in the deed, and receiving such a deed is a,conclusion of the contract, as we have said. Was there, then, a promise to convey the twenty-one acres of land ? There is nothing in the agreement at all about the deed, but simply about the payment of $1,000 should the action be successful. We inadvertently omitted to state that this suit of Williams was nonsuited. That was virtually a withdrawal of the suit from court and, for the time being, a substantial winning of the action.</p> <p>[Was there, then, we repeat, a promise to convey the twenty-one acres of iand in consideration of $1,000'? Or, was the promise to pay the $1,000 made in good faith upon the expectation that title would be made for the twenty-one acres. As we have said, there is nothing in the article of agreement itself that provides for the giving of a deed. The language of the agreement is very peculiar, but we allowed parol evidence to be offered; we allowed proof to be made as to what occurred at the time the agreement was signed, for the purpose of explaining this agreement and showing what the true intent and purpose of the parties were.] 10 Now a number of witnesses have testified that there was a promise to make a deed for the twenty-one acres of land, and that that was the purpose and object in view when this provision of $1,000 was made in the agreement. We shall not discuss the law at this point further, because the points submitted by counsel raise the law, and our answers will be the law which you will receive at the hands of the court.</p> <p>The plaintiff requests the court to charge, inter alia:</p> <p>2. If the jury find from the evidence in the case that when the case of P. A. Williams v. J. N. Hamilton, No. 102 April Term 1874, in the Common Pleas of Indiana county, was called in court for trial, Williams, the plaintiff, made default and did not appear to prosecute his claim, and that therefore the same was non-prossed by the court, this was a gaining of the suit on part of Hamilton, the defendant, within the meaning of the article of agreement on which this suit is founded.</p> <p>Answer: The non-pros was for the time being a successful termination of the suit in favor of Hamilton; but it is proper here to say that such non-pros did not adjudicate the rights of the parties. The non-pros showed that the plaintiff gave up the suit at the time.3</p> <p>The defendant requests the court to charge:</p> <p>1. The rational and equitable construction of the agreement of April 21, 1876, is that Hamilton was to establish his title to the twenty-one acres, and that Crossman was to pay $1,000 for the land; not for a judgment of non-pros such as was had in the case of Williams v. Hamilton.</p> <p>Answer : We are unwilling under all the evidence to place this construction on the agreement suggested in this point. Hence we admitted parol evidence to explain and prove what the contract was, in this respect, as understood by the parties.6</p> <p>2. So far as the twenty-one acres of land are concerned, this is an action of covenant, brought for the recovery of the purchase money claimed for said land, and such action cannot be maintained without tender of a deed before the action was brought.</p> <p>Answer: If you find that the contract was for the purchase of the twenty-one acres for the consideration of $1,000, Hamilton should have tendered a deed or offered a deed before bringing this action.1?</p> <p>3. The plaintiff’s title, if he has any at all, to the twenty-one acres, is not a marketable one, and he cannot therefore recover for that land.</p> <p>Answer: We are of the opinion that the title presented at the time of this agreement, or, at the time the action was brought, was. not a marketable title to the twenty-one acres.8</p> <p>The jury, allowing certain set-offs, returned a verdict in favor of the plaintiff for $364.38. A rule for a new trial having been discharged, and judgment entered on the verdict, the defendant took this appeal, specifying that the court erred: ^</p> <p>3. In the answer to plaintiff’s point.3</p> <p>6-8. In the answers to defendant’s points.6 to 8</p> <p>10. In the portion of the charge embraced in [ ] 10</p> <p>13. In the refusal of defendant’s offer.13</p>

1 OF ALLEGHENY COUNTY. No. 232 October Term 1888, Sup. Ct.; court below, No. 68 June Term 1886, C. P. No. 1. On March 26, 1886, a summons was served in an action of ejectment brought by Richard Jones, William Jones and Benjamin Jones against John A. Renshaw, David Robinson and the Presbytery of Pittsburgh of the Presbyterian Church in the United States of America, to recover a lot of ground in Pittsburgh.

<p>1. Under § 2, act of April 3, 1851, P. L. 320, upon the failure of an abutting lot-owner to construct a board walk after notice so to do, the borough may construct it ahd file a lien for the cost thereof, with 20 per cent additional as a penalty: Smithy. Kingston Bor., 120 Pa. 357.</p> <p>2. The fact that a separate lien is filed against each lot of a block of contiguous lots, will not affect the validity of the liens, and the court may order that a final judgment in a suit on one lien shall be a test of the validity of all of them.</p> <p>3. When liens ¿pe filed against lots in a borough block which are unimproved by the erection of buildings upon them, their validity is not affected by the fact that the foot-front rule was adopted as a means of ascertaining the cost of the improvement chargeable to each lot.</p>

<p>APPEAL BY DEPENDANTS PROM THE COURT OP COMMON PLEAS NO. 2 OP ALLEGHENY COUNTY.</p> <p>No. 18 October Term 1889, Sup. Ct.; court below, No. 141 October Term 1888, C. P. No. 2.</p> <p>On August 8, 1888, a summons, returnable to the first Monday of September, was served in an action of assumpsit brought by John S. Morrison and others, partners as Morrison, Bare & Case, against H. O. Nevin andW. I. Nevin, partners as Nevin Brothers. The statement of claim, a copy of which was served with the writ, showed that the plaintiffs sought to recover a balance of $1,159.51, with interest, due upon an account for goods and merchandise sold and delivered.</p> <p>On August 10,1888, the defendants filed an affidavit of defence which averred:</p> <p>“ That on March 23, 1885, and on April 16, 1885, the defendants had a settlement with plaintiffs for the claim sued for in this case, and that defendants paid plaintiffs the sum of $1,285.95 in three promissory notes, the dates, amounts and times are as follows :</p> <p>“Defendants paid plaintiffs on March 23,1885, their promissory note for $344.50, at twenty days, on account of plaintiffs; and on March 23,1885, paid plaintiffs their promissory note for $344.50 at thirty days, and on April 16, 1885, paid plaintiffs their promissory note for $596.95, in all the sum of $1,285.95, in full of the said claim of plaintiffs, and includes the $1,159.51 sued for in this case and affidavit hereto attached and made part hereof. Copies of the said notes, as per exhibits A. B. and C. respectively.</p> <p>“Affiant further says that on April 23, 1885, defendants made an assignment for the benefit of creditors to H. A. Forsyth, as per assignment recorded in Deed Book, vol. 517, page 101, in recorder’s office of Allegheny county, Pa., and that said notes were included in the schedule of liabilities and that said assignment is still pending.</p> <p>“Affiant further says that in the summer of 1887, John W. Cooper, for plaintiffs above named, came to affiant, who has charge of the business at 506 Liberty street, Pittsburgh, Pa., and agreed with affiant to take out in trade, in printing, the amount of $1,285.95, which includes the $1,159.51 sued for in this case, and further agreed with affiant not to bring suit on the plaintiffs’ claim in this case, and not to put plaintiffs’ claim sued for in this case in judgment; and that said proposition was accepted by affiant, and in pursuance of said agreement, furnished plaintiffs with their bill already accrued, and an additional bill amounting to the sum of $503.45, on account of the note held against defendants by plaintiffs, as per exhibit D.</p> <p>“ Affiant further says that he is ready and willing to carry out the agreement made by plaintiffs with affiant and take the balance out in trade, as agreed upon by the plaintiffs in this case.</p> <p>“ Affiant denies that defendants are indebted to plaintiffs in the sum of $1,159.51 and interest, as claimed by plaintiffs, and claims the $503.45 as a set-off to plaintiffs’ claim; and further claims the agreement of plaintiffs as a bar to bringing this suit in this case against defendants and having judgment entered upon said claim, in the face of plaintiffs’ agreement with affiant, as aforesaid.</p> <p>“ Affiant further says that the defendants are indebted to plaintiffs in the sum of $45.42, after payment of said notes, as per exhibit E, and that the said $45.42 was incurred prior to assignment, and was also included in the trade agreement between plaintiffs and affiant, as aforesaid stated by affiant.”</p> <p>On September 10, 1888, the plaintiffs entered a rule upon the defendants to show cause why judgment should not be entered for want of a sufficient affidavit of defence, for the reason filed that the affidavit did not set forth any fact or facts which, if proven, constituted a good or legal defence; No notice of this rule was served upon defendants or their attorneys, but the rule was put down upon the argument list.</p> <p>On November 5,1888, the rule was reached on the argument list and argued by plaintiffs’ attorney, when the court, White, J., made the rule absolute, and judgment was entered in favor of the plaintiffs for $1,188.49.</p> <p>Rule 12, page 11 of the rules of the court below, relating to the entry of a rule for judgment for want of a sufficient affidavit of defence, provides: “.....but no rule shall be called for argument unless the plaintiff shall have given defendant’s attorney five days notice, in writing, of the taking of said rule.” Rule 18, page 14, provides: “All rules to show cause, unless otherwise ordered, shall be returnable on Saturday of the succeeding week at 10 A. M. If the party to show cause have no attorney of record, at least five days written notice shall be served upon him, and proof filed before the hearing. If he have an attorney of record (except in rules to show cause why judgment should not be entered for want of a sufficient affidavit of defence), entry ©n the argument list for ten days shall be considered notice, unless special notice to the attorney is specially directed by the court.” [From appellants’ paper-book.]</p> <p>Rule 110, page 46, of the rules of the court below, provides: “The entry on the argument list, except in cases otherwise provided in these rules, shall be sufficient notice to all parties for whom appearance has been entered; to all other parties ten days notice before hearing shall be given.” [From appellees’ paper-book.]</p> <p>Judgment having been entered, the defendants took this appeal, specifying that the court erred:</p> <p>1. In not discharging the rule for judgment for want of a sufficient affidavit of defence.</p> <p>2. In not discharging the rule for judgment for want of a sufficient affidavit of defence, in the absence of the record showing any service of notice on defendants, below or their counsel, as required by the rules of the court.</p> <p>8. In making the rule absolute for want of a sufficient affidavit of defence, and entering judgment thereon for $1,188.49 against the defendants below.</p> <p>4. In making the rule absolute for want of a sufficient affidavit of defence, and entering judgment thereon for $1,188.49 against the defendants below, in the absence of any proof of service of said rule for judgment and the argument of the same.</p>

<p>(a) An action, originally in case, was by leave of court subsequently changed to covenant and a declaration in covenant filed; after which, bv leave of court the action was again changed to ease, and a declaration in case filed.</p> <p>1. The cause of action remaining the same, it was not error to allow such amendments, and to admit evidence on the part of the plaintiff of the parol agreement upon which the declaration in case was based.</p>

<p>{a) The will of a testator directed a final distribution of his residuary estate, but provided: “I would rather prefer not to have a division made of my estate, until the youngest child of H. arrives at the age of twenty-one years.”</p> <p>1. Such expression of preference, being merely precatory, and addressed to the devisees and not to the executors, was not binding upon the latter, and they have no power to postpone distribution to the period referred to in the provision.</p> <p>2. The executor having failed to make distribution as directed by the decree of the Orphans’ Court, affirmed by the Supreme Court: Osburn’s App., 104 Pa. 637, he became personally chargeable with the costs of a second proceeding against him to enforce it.</p>

<p>[To be reported.]</p> <p>1. While the filing, for purpose of lien only, of a transcript of a judgment recovered before a justice of the peace, gives the Court of Common Pleas no jurisdiction to open or set the judgment aside, yet, if void upon its face, it may and should, upon motion by the defendant, be stricken from the records of the court as something unlawfully placed there.</p> <p>2. A judgment against a married woman, rendered under the act of April 11, 1848, P. L. 536, must be self-supporting; that is to say, the record must show that the judgment was lawfully entered, and that all of the requisites prescribed by the statute were complied with; and if it does not do so, the judgment will be void as to her upon its face.</p> <p>3. A judgment for the price of alleged necessaries, rendered by a justice of the peace in 1885, against husband and wife, in default of an appearance, is void as to the wife, if the record do not show that some testimony was heal'd; as in the absence of testimony, it could not legally have been adjudged that the debt was one for which she was liable under the act of 1848.</p>

1 OF ALLEGHENY COUNTY. No. 101 October Term 1889, Sup. Ct.; court below, No. 112 June Term 1889, C. P. No. 1. On April 2, 1889, a judgment was entered upon, a copy of a bond with warrant of attorney, by Magnus Pflaum, administrator of Emma King, deceased, against James H. McClintock and M. McClintock, for $166.68.

<p>(а) The plaintiff, in trover, purchased whiskey in barrels from a distiller, taking a bill of sale therefor, but leaving the whiskey to remain in the distiller’s bonded warehouse, the tax thereon being unpaid.</p> <p>(б) Subsequently, the distiller sold the same whiskey, giving warehouse receipts according to the custom of the trade, to the defendant, who was without knowledge of the sale to the plaintiff, and who paid the tax and withdrew the whiskey.</p> <p>1. In such case, the plaintiff having by his laches put it in the power of the distiller to sell the whiskey a second time to the defendant, a purchaser in good faith, the latter had acquired a good title thereto.</p>

<p>APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS NO. 1 OP ALLEGHENY COUNTY.</p> <p>No. 70 October Term 1889, Sup. Ct.; court below, No. 570 March Term 1888, C. P. No. 1.</p> <p>On March 5, 1888, service was accepted of a summons in trespass brought by Mrs. Elizabeth Aiken against the Pennsylvania Railroad Company, to recover damages for tbe alleged negligent killing of her husband, Samuel B. Aiken, by tbe defendant company. Tbe defendant pleaded not guilty.</p> <p>At tbe trial on January 21, 1889, the following facts were shown:</p> <p>About nine o’clock on tbe evening of January 16, 1888, the plaintiff’s husband was walking upon Penn avenue, in the borough of Wilkinsburgh, on his way home, in company with William D. Irwin. They were walking in the middle of the street on account of the slippery condition of the sidewalks. Penn avenue is a part of the old turnpike road leading from Pittsburgh to and beyond Greensburg, in Westmoreland county, and is a much traveled thoroughfare.</p> <p>The defendant company’s railroad crosses this street in Wilkinsburgh at grade. At the point of crossing the defendant has four main tracks and seven side tracks. Two of the latter, lying between the main tracks and the remaining five side tracks, are unused. They are very short, extending but a few feet beyond the crossing of the street and then terminating. They were designated in the testimony as “ spur tracks.” The eleven tracks together make a roadbed 153.6 feet in width, and occupy that much of the length of Penn avenue.</p> <p>Aiken and Irwin, in proceeding eastwardly along the avenue, reached this crossing and started to pass over it. It was a dark and cloudy night, and a wind was blowing from the west. There was no watchman at the crossing, and no gates or other appliances for giving warning of the approach of trains. Standing on one of the tracks, at the right hand side of the street, was a train, the engine of which was blowing off steam. In crossing the railroad the deceased and his companion first encountered the five side tracks used by the defendant. While passing over these, their view of the main tracks in the direction of Pittsburgh, which lay to their left, was obstructed by loaded cars and piles of pipe and railroad ties, upon and near to the side tracks, a short distance from the street. The last of these tracks was forty-five feet distant from the first of the main tracks. A part of this intervening space was occupied by the two spur tracks, between which and the nearest main track was an unoccupied space twelve feet in width. As soon as the spur tracks were reached, an unobstructed view along the -main tracks, in the direction of Pittsburgh, for a distance of half a mile, could be had.</p> <p>While crossing the first main track, Aiken was struck and killed by the Braddock Accommodation, a passenger train coming from Pittsburgh. The circumstances surrounding the accident were thus related by Irwin, testifying for the plaintiff:</p> <p>Q. Describe to us what occurred there, as near as you can ? A. We were coming up in here; when we come to the track we noticed a train coming.</p> <p>Q. That is, to the main track?- A. Yes, sir; and it was pretty close before we seen it, and Mr. Aiken attempted to go on and I stopped. I said, “We had better stop,” and he says, “ Come on, we can get across,” and he started and I stopped. I had attempted to get across and by the time I was at the track I could lay my hand on the engine.</p> <p>Q. He was a little ahead of you? A. Yes, sir; he was about a reach ahead of me.</p> <p>The witness further testified that when he first noticed the train it was very close to them, not over thirty feet away, he thought; that it did not seem to be making much noise, and he heard no bell or whistle ; that the witness was looking out while crossing the tracks, though he was watching more particularly in the direction, whence he heard the noise of escaping steam; that the noise of this steam and the obstructions on the side tracks to his left might to some, extent have prevented his hearing this train until he got near to the main track; that when he saw the train coming, he could not tell certainly whether he had already crossed, was still on, or had not yet reached the track on which it was running, and he did not then know, and could not tell in the darkness of the night, whether the two tracks at the centre, which he afterwards learned were spur tracks, stopped at the crossing or extended on; that he had but a very short time to think, and could not tell, whether it was the best thing to go on or to go back, and, as Aiken went on, the witness attempted to do so too; that the train “ was going about the usual rate of speed,” “ about what it runs between stations.”</p> <p>On cross-examination the witness testified:</p> <p>Q. Your attention was attracted to that train before you got on to the track? A. We were very close to it when my attention was attracted to the train; we were right almost in front of it and it wasn’t—</p> <p>Q. You were not on the track? A. No, I was not on the track.</p> <p>Q. And you told- Mr. Aiken to stop ? A. Yes, sir; I said we had better stop here.</p> <p>Q. Did you catch hold of him ? A. I think I caught him by the coat sleeve ; he said “ come on, we can get across,” and he turned around, which might have detained him a little bit; but he went right on.</p> <p>Q. And you stopped ? A. Yes, sir.</p> <p>Q. Did you see him struck ? A. No, sir; I didn’t know he was struck for certain until we found him.</p> <p>Q. You think he got pretty near over? A. I thought he got over.</p> <p>Q. That was your impression at the time, that he had gotten over ? A. At the time I thought he had got across.</p> <p>On re-direct examination the witness was asked whether he could hear the train until he got past the obstructions upon the side .tracks, and answered: “ Possibly we might have, if we had been paying particular attention; we were talking and I didn’t notice.”</p> <p>On re-cross-examination he stated that there was nothing to prevent his seeing the train after he had passed over the sidings on which cars were standing, if he had “ looked down that way.”</p> <p>Thomas Snowden testified for the plaintiff as follows:</p> <p>Q. In running over this crossing at what rate of speed did the trains usually run ?</p> <p>Objected to as incompetent and irrelevant, the speed of this particular train being the question.</p> <p>By the court: Objection overruled; exception.6</p> <p>A. I traveled on that a great deal, and I thought that they went across the Penn avenue crossing just as fast as they did at other places.</p> <p>By the court: Q. Do you know about what rate .of speed they made usually ? A. I am not familiar with the number of miles that they make to the hour or to the minute.</p> <p>By Mr. Kirker: Q. Were they in the habit of slowing up when they came to that crossing ? A. Not that I know of; as a general thing they slow up just after they pass the crossing to make the stop at Wilkinsburgh station.</p> <p>For the defendant, Samuel Scott, the engineer of the train by which the deceased was killed, testified that the train was running at the average speed of fifteen to eighteen miles an hour; that he sounded the whistle for the Penn avenue crossing, as usual; that the fireman rang the bell, commencing when the engine was at least one hundred feet away from the crossing ,• that when he wq.s about fifty feet from the crossing the witness pulled out his watch, and during the time he was looking at it the engine passed over the crossing; that the witness saw nothing of the deceased, and did not know that he was struck until, at the end of the run, a hat was discovered on the pilot of the engine, from which it was inferred that some one had been injured during the run; that the head-light of the engine was so constructed as to concentrate the light on a space of about forty-five feet along the track, commencing about fifteen feet in advance of the pilot. Other testimony was given in corroboration of that of the engineer.</p> <p>At the conclusion of the testimony, the court, Slagle, J., charged the jury in part as follows :</p> <p>■ Before going into any general statement in reference to the case, I will answer the points submitted to me-by the parties. I am asked by the plaintiff to instruct you [inter alia] :</p> <p>1. If you find from the evidence in this case that the plaintiff’s husband was killed by the defendant’s train whilst upon the Penn avenue public crossing in Wilkinsburgh borough, and that the view from the approach to this crossing, from the direction he was traveling at the time of the accident, was then so obstructed by buildings erected within and, cars standing upon defendant’s tracks or switches, and by piles of iron pipe placed on defendant’s property, and darkness of night or otherwise, that it was impossible for him to see, and by reason of locomotive of defendant company blowing off steam near the crossing, difficult if not impossible for him to hear an approaching train from the direction tins one came, until he had passed more than half way over the crossing and came too near or upon the defendant’s through tracks, and that the deceased either did not know, or from the darkness of the night was unable to discover which of the ten or eleven tracks at the crossing wei’e the through tracks, then he was not bound to stop, look and listen before entering upon the crossing. And if you further find that when he got too near or upon the through tracks the defendant failed to ring the bell, sound the locomotive whistle, or give other timely notice of the rapidly approaching train, so as to give deceased sufficient time to ascertain the track upon which it was cbming and to get out of its way, and for that reason alone he was run down and killed by the train, defendant is liable and your verdict must be for the plaintiff.</p> <p>Answer: Refused, so far as not affirmed in the general charge. The point involves questions of fact for the jury, and must be considered in connection with all the testimony bearing upon the negligence of both parties.</p> <p>Counsel for defendant respectfully request the court to charge the jury as follows :</p> <p>1. That, under all the evidence in this case, their verdict must be in favor of defendant.</p> <p>Answer: Refused.1</p> <p>2. That if the jury believe the testimony of the plaintiff’s witness, Irwin, that the deceased did not stop, look, and listen, before attempting to cross the defendant’s tracks, their verdict should be for the defendant.</p> <p>Answer: Refused.8</p> <p>3. That it was Aiken’s duty to stop, look, and listen before attempting to cross the tracks; and if the jury should find from the evidence that he did not do so, their verdict should be for the defendant.</p> <p>Answer: Affirmed, unless the jury find from the evidence that the circumstances excused him from the duty, and his failure to do so did not contribute to the accident.3</p> <p>4. That even if the jury believe from the evidence that there were cars standing on the side tracks which obstructed Aiken’s view, if they also find that it is true, as testified to by plaintiff’s witness Edeburn, that there was a clear space of over forty feet between the last track occupied by cars and the track on which Aiken was struck, and that from any point on the Penn avenue crossing for that distance of forty feet he could have seen the train had he looked, then he was guilty of contributory negligence, and their verdict should he in favor of the defendant.</p> <p>Answer: Refused; this is a matter for consideration of the jury.4</p> <p>Now, gentlemen, as stated, the first question for you to determine is, was the defendant in this case guilty of negligence which caused the accident and death of Mr. Aiken ? What is negligence is a matter which must, as a rule, be left to the jury. It simply means the want of such precautions as persons of ordinary prudence and care take, under the special circumstances of the case, to prevent injury to others. So that there can be no definite rule laid down that will govern every case; but it must be left, ordinarily, to the jury to determine, whether, under the particular circumstances of the case, there was anything omitted which should have been done, or anything done which should not have been done.</p> <p>In determining the question of the negligence of the defendant you will take into consideration all the circumstances surrounding the place where the accident occurred. What would be reasonable care under one state of facts would be gross negligence, possibly, under another state of facts.....It is the duty of the plaintiff to make out to you satisfactorily that the defendant’s employees were guilty of negligence in the performance of their duty; and furthermore that this negligence was the cause of this accident. If you fail to find that, you may stop there and return a verdict for the defendant. But if you find that the defendant’s employees were negligent in the performance of their duties, under all the circumstances of the case, you then consider the testimony with reference to the actions of the deceased, because, as has been said to you by counsel, if the negligence of the deceased in any way contributed to-the accident, then the plaintiff is not entitled to recover..... Now, the testimony upon that point is that of one witness only. There is nothing material bearing upon the question except the testimony of Mr. Irwin, who was the only person, so as far the testimony discloses, who saw this accident or knew anything at all -about it. It is not at all remarkable that the persons on the train did not ascertain it, until they got to their stopping place at the end of their run. A train passing at that rate of speed, and striking a man and knocking him off to the side of the track, would have had such a slight obstruction that the persons on the train would not have noticed it whatever. If they had run over him they would possibly have noticed the jolt, but merely striking him and knocking him off the track would be so slight an impediment to the train that it would not be observed at all. And, furthermore, the evidence is that these parties were very close to the train and got upon the track when it was almost passing the crossing. Another matter that was referred to, as showing negligence on the part of the engineer is, that he pulled out his watch to look at the time. He says that was done after the bell had commenced ringing, and when he was within forty or fifty feet of .the crossing. In fact, he said it was while he was passing over the track, and as you will see, that is but a brief space of time. If the deceased then got upon the crossing, any precaution he would take would not prevent an accident, because he could not stop his train by any possibility. Therefore, he had done his duty if he looked forward to see if the track was clear before he got on the crossing.</p> <p>[In reference to the duty of the deceased, it was his duty to do everything that a reasonably prudent man, regardful of his own life, would do to prevent accident, and the question here is, did he? Ordinarily the rule of law is as defendant’s counsel requested me to instruct you, that a man before crossing a railroad track must stop, look and listen. It is so laid down in a number of cases. I think that it is usually applied, however, to parties who are driving, and not to parties walking. It is after all not a rule of law, but a rule of evidence only, and therefore the duty of stopping is always a question for the jury. I can say to you, as a question of law, that a man is never relieved, under any possible circumstances, from looking and listening. A man has no right to shut his eyes or stop up his ears and go into danger; and if he does, he must take the consequences and not ask any person else to pay damages for the injury done. But the question of stopping is a question which must be left, under all the circumstances, to the jury; and therefore I leave it to you in this case to say whether or not the plaintiff ought, under the circumstances, to have stopped anywhere upon this railroad, or before going upon it.] 5 Whether or not he ought to have stopped, he was not relieved, could not be relieved in any way, from the duty of looking and listening;, and if, by looking and listening, or stopping, he could have avoided this accident, you have no right to give a verdict in favor of the plaintiff.</p> <p>Now, the excuse for not stopping is, that there are eleven tracks across this highway; that upon one side there was a train standing with an engine attached blowing off steam; on the other side, there were cars standing upon the tracks, and there is evidence that at one point there were pipes and ties piled up.. As to the permanent obstructions, the evidence is clear that they did not obstruct the view for at least nine hundred feet, standing at a point twenty-five feet west of the first of these side tracks; and that would be far enough for a person to see a train. But the excuse for not seeing it is that on this particular night there were some piles of iron; according to the engineer, those piles of iron would limit that view to a distance of about six hundred feet. So that, as to any obstructions, unless it be these cars that were on the track, there was a clear way of at least six hundred feet that could have been seen before going upon any of the tracks. But the plaintiff’s testimony indicates that there were cars standing on one of the tracks, which one the witness was unable to state, but he says that that prevented them from seeing down the road until they had got on the tracks. On the right hand side, was this train with the engine attached which obstructed the view to some extent that way. He says that they passed on to the tracks, and after crossing a number of them that this train was upon them, as he says, within thirty feet of them before they observed it. Now, it is for you'to say whether or not after passing those cars, because he was bound to keep his eyes open all the time, if he had looked, if he had listened, would he have seen or heard this train ? If so, then he was negligent in irot seeing it before it reached within thirty feet of them. That is one element of negligence on his part. You will determine that question. As I say, they had no right to go over there without looking, and if they had looked, how far could they have seen the light after passing these cars? According to the testimony, they had forty-five feet, at least, if the cars were on the farthest of these tracks; they had forty-five feet to go before they struck the track upon which this train was coming, and after passing-those cars, by looking, they could have seen to Brushton station. Now, Mr. Irwin says that they did not see it until it was within thirty feet. I think he is mistaken about the distance. It is impossible that that could be, because he says that after he saw the train he stopped; Mr. Aiken said “ come on, we can get across,” and started to go across, and tie (Irwin) caught him by the sleeve, and he turned, he halted a little, probably enough to cause the accident; he might have gotten over. A train running at fifteen miles an hour runs twenty-two feet every second, and if it was only thirty feet away it was only one and a half seconds after they saw the train before Mr. Aiken went across; so that it must have been further away than that.</p> <p>Then comes another question: After they had seen it, was he guilty of a lack of caution in attempting to get over ? Now, that depends somewhat on the circumstances, as I have said. If they came upon the tracks without any negligence upon their part, without having omitted to do what they ought to have done, and then while the danger was upon them, suddenly, without being caused by their negligence, they mistook which course was the prudent one, which course was the safe one, he would not necessarily be guilty of negligence. But if they had time to see how far that train was off, and he undertook recklessly to go in front of it, it was negligence on his part, and the plaintiff ought not to recover. Now, it seems to me this gives you the general ideas. I have not attempted to give all the facts and circumstances' bearing upon this matter, but just simply such as will give you a general idea of how you will consider the case.....</p> <p>The jury returned a verdict in favor of the plaintiff for $3,500. Judgment having been entered, the defendant took this appeal, assigning for error :</p> <p>1-4. The answers to defendants’ points.1 to 4</p> <p>5. The part of the charge embraced in [ ] 5</p> <p>6. The admission of the plaintiff’s offer.6</p>

<p>APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS NO. 2 OP ALLEGHENY COUNTY</p> <p>No. 74 October Term 1889, Sup. Ct.; court below, No. 175 July Term 1885, C. P. No. 2.</p> <p>On May 21, 1885, C. M. Stewart and Peter M. Smith, trading as Stewart & Smith, brought assumpsit against Sampson Short, to recover $2,066.30, for “ balance due upon book account for boards sold and delivered by plaintiffs to defendant.” The defendant pleaded non-assumpsit.</p> <p>At the trial on February 15, 1889, a case was shown sufficiently appearing in the oral charge to the jury, White, J.:</p> <p>The plaintiffs claim that in June, 1881, they sold a lot of lumber to the defendant; that the contract was made on Friday, June 3d, conditionally, and consummated finally on Saturday morning, June 4th. The amount of lumber was 283,000 feet, consisting of fourteen “pieces,” as they are called. Each of those pieces consisted of four platforms about sixteen feet square, and each piece contained 20,000 feet of boards, except two which contained 21,000 and 22,000 feet respectively. The claim on the part of plaintiffs is that they were to deliver this lumber at Short’s landing, which was some eight or nine squares below Hill’s landing, on the Allegheny river, where the lumber was then moored, and that the next week Mr. Short was to settle for it at the rate of $15.50 a thousand, one half to be cash and one half payable in four months. The claim is that at the time the contract was consummated on Saturday, Mr. Short told Mr. Smith, one of the plaintiffs, to drop the lumber down to Short & McClure’s landing, and that some one would be there to take care of it. In pursuance of that contract, the plaintiffs claim they delivered eleven pieces of this lumber, and that shortly after that delivery the river rose and they were ail swept away, the three undelivered pieces being also swept away. Mr. Smith testifies that after the flood a few days he saw the defendant and asked him about the three pieces that had not been delivered, what should be done about them, when Mr. Short replied that he had made no contract with him, and denied that he had any contract to purchase the lumber. Mr. Smith says he notified him that he would be held to the contract, and that he would dispose of the lumber to the best advantage he could and hold him, Short, responsible for what he might lose in consequence of the defendant not paying for the lumber according to the contract. Then Mr. Smith says he sold all of this lumber, as far as he could collect and gather it up, and that after selling and paying the necessary expenses connected with it he suffered a loss of a little over two thousand dollars. In his testimony he spoke about realizing from the whole amount some seventeen hundred and odd dollars, but the counsel for plaintiff is willing to admit that he actually realized some twenty-two or twenty-three hundred dollars, and the claim is now for a little more than two thousand dollars.</p> <p>[Of course the first question is, was there a contract such as is alleged by plaintiffs, because the defence is that there was no contract whatever. On that point you have the testimony, first of Mr. Smith. He testifies positively and unqualifiedly to the contract; that after frequent conversations and negotiations between him and the defendant, on Friday evening, the 3d of June, when he had made an arrangement to sell the lumber to Mr. Sholes, Mr. Short said to him, “ Why don’t you sell to me ? ” and offered or agreed to pay a certain amount for it, $15.50 a thousand feet, and take the whole of it. Mr. Smith says he told Mr. Short he would have to see Mr. Sholes and if he would relieve him from his arrangement with him, he would let him, Short, have it at $15.50. He testifies that he saw Mr. Sholes that evening and he agreed to release him, and the next morning he saw the defendant at the Robinson blouse, where the contract was absolutely consummated, and that it was then that the defendant told him to drop it down to that landing, where there would be some person to furnish lines or take care of it. Corroborating in some measure, we may say, the plaintiff’s testimony, is the fact that the lumber was commenced to be delivered at that landing immediately afterwards, part of it on the next day, Sunday, and the balance on Monday, excepting the three pieces.] 3 But directly corroborative of the plaintiff’s statement is the testimony of Mr. Chase, who said he was a lumberman and knew all of these parties, and was also selling lumber; that on Saturday morning he came to the Robinson House and met the defendant, and that in a conversation with Mr. Short he, Short, told him he had bought this lumber of Mr. Smith. Also the testimony of Mr. Early, another lumberman engaged in selling lumber for some parties up the river. Mr. Early testifies that on that Saturday morning he also met Mr. Short in the Robinson House, and that he was also endeayoring to sell him lumber and that Mr. Short told him he had bought the lumber of Smith or Smith & Stewart, and had bought it at a half dollar less a thousand than had been asked for it; that he knew the lumber because he had seen it “rafted,” and that it was better lumber than his, Early’s, was; and Mr. Short admits that he did see the lumber when it was being hauled to be rafted in Jefferson county and knew exactly what kind of lumber it was. Mr. Smith testifies that defendant agreed to take the lumber at the measurement of Mr. Brooks, who had made an estimate of the amount as he was rafting it, and that Mr. Short agreed to take it at that measurement because he knew Mr. Brooks.</p> <p>Now, on the part of the defendant, he denies that he made the contract; he admits having had conversations with Mr. Smith on the subject, but denies that he had made a contract, and says he told him on Friday evening, in the last interview he had with him on the subject, that he would be back next week and would then see about it; if it was not sold in the meantime, perhaps he might buy it, but he denies entirely the contract. The strongest corroboration of the defendant would be the testimony of his son, who says he was with his father all of Friday evening; that Mr. Smith did not go away that evening, but that he was in their room playing cards until very late, and that on Saturday morning his father did not see Smith, because he was with him all the time, from the time they got up until his father took the cars in Allegheny for home, and that he did not see Mr. Chase or Mr. Early, and that it was impossible for his father to have had these conversations testified to by Mr. Smith, Mr. Chase and Mr. Early; and then that at nine o’clock on Saturday morning, after his father had left, he met Mr. Smith, when Mr. Smith told him his father could have the lumber. His father had started home that morning and the son was to go also, and Mr. Smith told him when he went home to tell his father that he could-have the lumber, and he was to telegraph or write him whether he would take it or not. The son says he got home late at night and did not see his father until Monday morning, when he spoke to him about it and he said he did not want it, and the son- says now that he wrote Mr. Smith to that effect; previously, it would seem, he had said he had telegraphed him. Mr. Smith denies the receipt of the letter or telegram. Then, as somewhat incompatible with the plaintiff’s testimony, two or three witnesses say that Mr. Smith was playing cards that evening in the room up-stairs and could not have gone away, as he claims, to see Mr. Sholes on Friday evening, and also, I believe, something as to the conversations about buying the lumber which would be inconsistent with the idea of a contract at that time.</p> <p>& vfr</p> <p>You will consider all the testimony in the case and determine from it whether there was such a contract as testified to by the plaintiff. If there was not such a contract, then your verdict should be for the defendant. If there was such a contract, then you proceed further. The plaintiffs would be bound to deliver the lumber in pursuance of that contract. There was no specified time for the delivery, except it was to be delivered, the inference would be, just as soon as possible, because the defendant was to be down next week and settle for it. Mr. Smith and Mr. Chase testified that on Sunday they delivered four pieces, which would be about 80,000 feet, and seven pieces more oh Monday, which would be eleven pieces in all, or about 220,000 feet, and Mr. Rupp and Mr. McClure admit that there were eleven pieces swept away by the flood.</p> <p>The defendant requests the court to charge [inter alia] :</p> <p>2. That the testimony shows that plaintiffs did not deliver the raft of lumber which they allege that they agreed to sell and deliver to the defendant, and that the terms of the alleged contract of sale had not been performed by plaintiffs, at the time when the pieces of the raft were carried away by an extraordinary flood in the Allegheny river; therefore plaintiffs cannot recover.</p> <p>Answer: If the plaintiffs delivered eleven pieces in pursuance of their contract with defendant, and then defendant denied he had any contract with plaintiffs, that would excuse plaintiffs from delivering the other three pieces, and plaintiffs could recover for what they had delivered.1</p> <p>3. Even if the allegation of the plaintiffs as to the alleged contract of sale is true, they cannot recover for that portion of the raft moored at Short & McClure’s landing on Sunday, and not accepted or taken in charge by Sampson Short or some one acting for him.</p> <p>Answer: Refused, if the four pieces delivered on Sunday, were delivered and moored properly and remained there with the remaining pieces delivered on Monday, when the flood occurred some days later.8</p> <p>The jury returned a verdict in favor of the plaintiffs for $2,892.82. Judgment having been entered, the defendant took this appeal, assigning for error:</p> <p>1, 2. The answers to defendant’s points.1 8</p> <p>3. The portion of the charge embraced in [ ] 3</p>

2 OF ALLEGHENY COUNTY. No. 82 October Term 1889, Sup. Ct.; court below, No. 7 October Term 1887, C. P. No. 2.

<p>(a) Defendant gave to plaintiff, for stock in a title insurance and trust company, a due-bill for an amount “ to be paid only from the first dividends declared by the ” company, the several pajunents to be indorsed thereon.</p> <p>1. In such case, though no dividends were ever declared out of profits, but the company went into liquidation and distributed its assets to its shareholders, the defendant was liable to plaintiff for what he received upon his shares out of such assets.</p>

<p>APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS NO. 1 OP ALLEGHENY COUNTY.</p> <p>No. 113 October Term 1889, Sup. Ct.; court below, No. 448 March Term 1886, C. P. No. 1.</p> <p>On February 1, 1886, a summons in trespass was served in an action brought by Ludewig C. Schwartz against Simon Brahm. Issue.</p> <p>At the trial on January 9, 1889, the plaintiff, examined through an interpreter, testified that on a dark night in January, about 9 or 10 o’clock, he came along Middle street in Allegheny city, and when at the corner of North Avenue he saw a street car coming very slowly up that avenne. Seeing no other car, wagon, or vehicle, he crossed the street immediately in front of the street ear, but before he reached the curb stone on the opposite side, he was struck by the wagon of the defendant, driven by an employee, and seriously injured. The driver of the street car testified that he was driving his mules up North avenue at a walk; that the defendant’s wagon was following in the rear of his car, and just before the accident the driver of the wagon turned out to pass, and struck the plaintiff after he had passed across in front of the street ear. There was testimony that the wagon was driven out from the rear of the car quite rapidly. The driver of the wagon testified that he was driving at a walk, and that he did not see the plaintiff until he came out from the front of the car.</p> <p>The defendant requested the court to charge that under all the evidence in the case their verdict should be for the defend ant. This point was refused by the court,1 Stowe, P. J., whc submitted the questions involved to the jury. The jury returned a verdict for the plaintiff for $1,200. A rule for a new trial having been discharged, judgment was entered on the verdict, when the defendant took this appeal, specifying as error the refusal of the defendant’s point.1</p>

1 OP ALLEG-HENY COUNTY. No. 129 October Term 1889, Sup. Ct.; court below, No. 668 June Term 1888, C. P. No. 1. ' On May 29,1888, a summons was served in an action of assumpsit brought by John Warren, administrator d. b. n. c. t. a. of George Warren, deceased, against John Ulrich. Issue. At the trial on March 14, 1889, it was shown that George Warren died in 1879.

<p>APPEAL BY DEPENDANTS EBOM THE COURT OE COMMON t PLEAS NO. 2 OE ALLEGHENY COUNTY.</p> <p>No. 144 October Term 1889, Sup. Ct.; court below, No. 276 April Term 1885, C. P. No. 2.</p> <p>On February 27, 1885, an action in case for maintaining a nuisance -was brought by George Grantz against W. G. Price' and Mary Lane, partners as William G. Price & Co., the Berlin Iron and Lead Co., and others. Issue.</p> <p>The case was first tried on March 2, 1887, when a verdict was rendered for the plaintiff for $700. On a writ of error to the Supreme Court, the judgment entered on the verdict was reversed and a new venire awarded: Price v. Grantz, 118 Pa. 402. On the return of the record to the court below, the plaintiff filed an amended narr, setting out an alleged private nuisance and injuries therefrom.</p> <p>At the second trial of the cause on February 13, 1889, the plaintiff’s case was substantially the same as that upon the former trial, with the additional testimony of certain neighbors not called before, who testified that they had suffered illness in their families which they attributed to the vapors from the lead-works. The nature of the defence, upon the facts, was the same as upon the first trial.</p> <p>At the close of the testimony, the court, EwOstg-, P. J., charged the jury:</p> <p>Before you can find for the plaintiff in this case, you must not only be satisfied that the sickness of himself, his family and his tenants, was occasioned by lead or arsenic from these works, but also that they were in such appreciable quantities as would, under the same circumstances, have affected persons of ordinary susceptibility to the poison. I do not intend to review the testimony at length; it has been commented on very fully by counsel on both sides, and I shall not refer to it except by way of illustration.</p> <p>First, has the plaintiff or his wife, his family or tenants been sick in that house ? Next, have they been sick from lead or arsenic poisoning ? If they have, it still does not follow that it was the fault of the defendants. Before you can find for the plaintiff you must not onty be satisfied from the preponderance of testimony that the sickness existed, and that it was either lead or arsenic poisoning, but also from the testimony that it came from the defendants’ lead works or shot tower, and that it was in such appreciable quantities that it would have affected persons of ordinary susceptibility under the same circumstances of situation, not of health; because I take it that in the case of a lawful trade, even if a person should, from some cause, have been reduced to such a physical condition as to be extraordinarily sensitive and to be affected by such a small quantity of lead or arsenic as would not affect a person in an ordinaiy condition, then the defendants cannot be held liable.</p> <p>You will first determine the question as to the sickness of-a number of these people. That is not in serious dispute. It is alleged that the wife, and I think one of the children, of Mr. Grantz had typhoid fever about 1881 or 1882, I have forgotten the precise date, but before this alleged lead poisoning. It is alleged that some of the children had scarlet fever, and that a child of a tenant has since had diphtheria. [The plaintiff, his wife and tenants, allege that they had, almost continuously while there, symptoms which some of the physicians at least give as the symptoms of lead poisoning.] 1 There is a contrariety of opinion among the experts, both the physicians aird the chemists who are not physicians, and perhaps chemists and physicians combined. You have heard their testimony; the court has admitted them to testify as experts, and you judge as to their credibility. The court has its own opinion as to which of them know most about the piatters upon which they have testified, but it is not the province of the court to indicate that.</p> <p>There is a good deal of testimony in regard to whether other people have been affected by it or not. [The plaintiff alleges that his whole family and his tenants were affected, and has given in evidence that some neighbors were. An old lady who at one time lived there and frequently visited there afterwards says that she was affected.] 8 The majority of witnesses, and nearly all those called by the defendants, workmen and people in the neighborhood, say that they were not affected. The question as to whether or not they were affected, is simply one of persuasive evidence in this case. That others in the neighborhood were affected in the same general way, is evidence tending to show that there was some poisonous matter there or near there, which would affect ordinary people'in ordinary circumstances, situated as they were. The testimony of others who were there also and not affected injuriously is persuasive evidence that it would not affect ordinary people in the same •situation.....</p> <p>The defendants request the court to charge the jury [inter alia]:</p> <p>2. The burden of proof is upon the plaintiff to show (1) that the defendants were guilty of maintaining a nuisance in the operating of the shot tower or lead works; and (2), that as a result from such operation he suffered injury; and a failure on the plaintiff’s part to prove both of such propositions to the satisfaction of the jury would prevent a recovery.</p> <p>Answer: The second point is affirmed, but it is not necessary that the jury should find the operation of defendants’ works to be a public nuisance.5</p> <p>The jury returned a verdict in favor of the plaintiff for $700. A rule for a new trial having been discharged, the defendants took this appeal, specifying that the court erred:</p> <p>1. In charging the jury as embraced in [ ] 1</p> <p>2. In directing the jury’s attention specially to the evidence of Mrs. Kaiser, and in commenting thereon as in [ ] 3</p> <p>3. In not reviewing and analyzing the evidence in this case, and in not instructing the jury sufficiently as to the rules for weighing the value of testimony.</p> <p>4. In directing the jury’s attention more to the evidence-given for the plaintiff than to that for the defendants.</p> <p>5. In qualifying the answer to defendants’ point.5</p>

<p>[To be reported.]</p> <p>1. When one deposits money in a bank, upon an account opened in his name as agent, without anything on the face of the deposit account to show for whom he is agent, the money as between the bank and the depositor belongs to the latter: Citizens N. Bank v. Alexander, 120 Pa. 476.'</p> <p>2. A bank paying over money, so deposited, to a third person, does so at its peril, and it must assume the burden of proof to show, not only that the money did not belong to the depositor, but that it did belong to the person to whom it was paid.</p> <p>3. When a bank, without legal cause, refuses to honor a check drawn upon it by a depositor, something more than a mere breach of contract is involved, and it is liable to the depositor for substantial damages, though no special pecuniary loss be shown: Eckel v. Murphev, 16 Pa. 488, distinguished.</p> <p>4. The refusal of a trial court to give to the counsel for the defendant, instead of to the counsel for the plaintiff, the conclusion of the argument to the jury, is within the discretion of the court and is not reviewable by the Supreme Court.</p>

1 OF ALLEGHENY COUNTY. No. 157 October Term 1889, Sup. Ct.; court below, No. 236 January Term 1883, C. P. No. 1.

APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS NO 2 OF ALLEGHENY COUNTY. No 169 October Term 1889, Sup.

2 OE ALLEGHENY COUNTY. No. 172 October Term 1889, Sup. Ct.; court below, No. 291 October Term 1888, C. P. No. 2. s. On September 1, 1888, John Bier brought an action of trespass against the Standard Manufacturing Company. Issue.

<p>APPEAL BY MARY A. MCCLELLAND FROM THE ORPHANS’ COURT OF ALLEGHENY COUNTY. .</p> <p>No. 174 October Term 1889, Sup. Ct.; court below, No. 44 March Term 1889, O. C.</p> <p>On May 8, 1889, Mrs. Mary A. McClelland presented her petition averring:</p> <p>That she was the daughter and devisee under the will of the said David Sims; that by the terms of the said will, it was provided, among other things, that petitioner should have the income of certain realty, situate on Mattock’s alley, Pittsburgh, with remainder over in the same, in fee simple, to her children at her death; that under the powers contained in said will, the executor and trustee sold said realty and converted the same into money, the proceeds thereof being, as shown by the account filed, the sum of $1,500 now in the hands of the executor and trustee, in trust for petitioner and her children. Further representing that she was now fifty-six years of age, and that her said children, William McClelland, Susan McClelland now Susan Feigley, Ruth McClelland now Ruth Bender, Mary McClelland now Mary Wyat.t, and David McClelland, being all the parties interested in said trust, were willing to release and relinquish their claim, right and interest in said principal fund, in favor of petitioner, the petitioner prayed that the court would direct and decree accordingly, that said principal sum, to wit, the sum of f1,500 with such interest as might be due thereon, be paid to her absolutely by said executor and trustee. The children of Mrs. McClelland all joined in the prayer of the petition as stated.</p> <p>Mr. A. M. Brown, the surviving executor and trustee, filed an answer to the petition setting out the will of the deceased, dated January 16, 1869, certain provisions of which were as follows:</p> <p>“ I devise and bequeath to the said trustees all my estate, real, personal and mixed, in trust for the uses, purposes and persons hereinafter specified, appointed and designated.”</p> <p>* «- * * * , * * it.</p> <p>“ From and after the decease of my said wife Mary, my eldest daughter, Mary Ann McClelland, shall have the house situate on Mattock’s alley, and the lot of ground appurtenant thereto in said alley, in the city of Pittsburgh, wherein she now resides, or the net income thereof during her natural life, and at her decease the same shall descend to and vest in her children in fee simple.”</p> <p>* * * * * * * *</p> <p>“ My said trustees shall have power to sell and dispose of said stocks and invest the proceeds in other real or personal securities, if in their judgment it shall at any time be proper so to do, and in like manner they may make investments of the income derived from my said estate. They shall also have full power to make leases of my real estate and do all other acts and things which in their judgment shall be necessary or proper in the control and management of said estate.” . . . .</p> <p>That afterwards by a codicil to said will, bearing date December 1, 1874, it was provided as follows :</p> <p>“ My executors are empowered in their discretion to perfect and carry out any and all parol or other agreements.I may have made in respect to the sale of any of my real estate, and to make the necessary convejumces, etc., and to receive and hold the proceeds in trust for the same uses and purposes and devises as those to which any such realty is devised by my foregoing will; that is to say, the proceeds shall be held in trust to represent the realty in executing said will.”</p> <p>The answer further averred that the three daughters of Mrs. McClelland named in her petition, were married women; that the testator in his lifetime had made sale of the real estate in Mattock’s alley, for $1,500, and the executors had perfected the title to the purchaser, and had received and,now held said purchase money under the provisions of said will; that respondent had no interest in the matter presented, beyond his desire to faithfully execute said trust and to be protected against loss or undue liability, submitting to the judgment of the court.</p> <p>On the argument, upon petition and answer, counsel for the executor objected to the order prayed for, first, on the ground that the court could not anticipate the limitation of the trust by distributing before the death of Mrs. McClelland; and second, because the devise was to the children, and, although the petitioner was fifty-six years of age, she might have other children who would have an interest in the fund. To meet the latter objection, petitioner offered to give bond under the act of May 17, 1871, P. L. 269.</p> <p>The court, Hawkins, P. J., without opinion filed, but referring to Watson’s App., 125 Pa. 340, dismissed the petition. Thereupon the petitioner took this appeal, assigning the order dismissing the petition as error.</p>

<p>APPEAL BY DEFENDANT EKOM THE COUNT OE COMMON PLEAS NO. 2 OE ALLEGHENY COUNTY.</p> <p>No. 180 October Term 1889, Sup. Ct.; court below, No. 73 July Term 1889, C. P. No. 2.</p> <p>On June 6, 1889, tbe city of Pittsburgh. filed a municipal claim for $5,621.77, with interest from January 14, 1889, attorney’s commissions, etc., against a lot of ground of Mrs. Mathilda G. MacConnell, situated on Winebiddle avenue, in the 20th ward, alleging that said sum was “the assessment upon said lot for the cost and expense of grading, paving and setting with curb stones, within six months last past, that part of Winebiddle street extending from Penn avenue to Liberty avenue; the said work having been done in pursuance of an act of assembly, approved June 14, 1887, and an ordinance of the select and common councils of said city, passed March 12, 1888; the said work having been commenced on the-day of----188-, and completed on the 14th day of January, 1889.”</p> <p>A scire facias thereon was issued, returnable to the first Monday of July thereafter. No statement or affidavit of claim was filed: Section 22, act of June 14, 1887, P. L. 392.</p> <p>On June 29,1889, the defendant filed an affidavit of defence which averred that she “ had a just and legal defence to the whole of the plaintiff’s claim, as follows :</p> <p>“The work and materials were not offered or given to the lowest responsible bidder. In fact, the work of grading and paving and curbing said Winebiddle avenue was let in violation of the ordinance of said city, which requires that ‘ all contracts exceeding in value the sum of fifty dollars ($50) shall be let or entered into only after proposals therefor shall have been invited by advertisement, in the official newspapers of the city, for not less than five days.’</p> <p>“ That, in truth and in fact, there were plans for said work, but specifications for the said, work and materials were not furnished but withheld from all bidders, except perhaps the firm to whom the city authorities having charge of the matter intended to let the work, as affiant is informed and believes and expects to prove, and, in order to accomplish that purpose, there existed a secret understanding or arrangement to not advise or inform other bidders of the said plans and specifications, and thereby prevent them from competing as bidders.</p> <p>“ The contract was fraudulently let by the means and in the manner aforesaid, and the work was insufficiently and badly done. Much of the pavement laid on said avenue by said contractors was worthless and became broken immediately after travel was permitted on the avenue. The foundation for said pavement was insufficient, and the material furnished for said foundation was insufficient to support the pavement laid thereon, and by reason thereof much of said pavement sunk and broke and fell into holes and was worthless.</p> <p>“ Affiant charges that said contract was let at a high price, without competition, and at the same time the contractors were allowed to do the work in a careless and insufficient manner, whereby they made great gains and profits.</p> <p>“ The city authorities having charge of the letting of said work, fraudulently let the same in the manner herein averred, and permitted them to do said work in an improper and insufficient manner, thereby prejudicing and wronging the owners of property abutting on said avenue; therefore, the defendant denies liability or indebtedness for the claim sued for.”</p> <p>On July 17,1889, a rule for judgment for want of a sufficient affidavit of defence having been argued, the court, Ewing, P. J., held that the case seemed to be covered by the decision in Erie City v. Butler, 120 Pa. 374, and made the rule absolute. Judgment having been entered, the defendant took this appeal, specifying the order entering judgment for the plaintiff for want of a sufficient affidavit of defence as error.</p>

No. 51 October Term 1889, Sup. Ct.; court below, No. 96 February Term 1886, C. P. On January 7, 1886, George Kramer brought assumpsit against R. C. Winslow, to recover a balance alleged to be in the hands of the defendant as the agent of the plaintiff for the sale of certain lands. The defendant’s pleas were nonassumpsit, the statute of limitations, payment with leave and set-off.

<p>[To be reported.]</p> <p>1. If for a good consideration the owner of a lot fronting upon a borough street assume to the borough the obligation of keeping the sidewalk in front of the property in good repair, and through his neglect to do so the borough is compelled to pay damages to a person injured thereon, such owner is liable over to the borough for the damages so paid.</p> <p>2. The fact that the liability of the borough to the party thus injured is predicated upon a neglect by the municipal authorities of their statutory duty to see that the sidewalk is kept in proper condition, is not an obstacle to such recovery over, as this neglect does not of itself constitute the borough and the property owner joint wrong-doers.</p> <p>3. While the judgment recovered against the borough is conclusive upon the lot owner as to the existence of a defect, the liability of the municipality therefor, and the amount of damages thereby occasioned, if he had notice of and could have defended the action, yet he is not estopped from showing that he was under no obligation to repair the sidewalk and that the accident was not chargeable to his default.</p>

<p>[To be reported.]</p> <p>L. When a life-tenant of an undivided interest in land, which is the subject of an Orphans’ Court partition proceeding, is not named in the petition and has no notice of the holding of the inquest, the proceedings, if he has done nothing to ratify and confirm them, are illegal and not binding upon him and upon his application should be entirely set aside.</p> <p>(а) A person not named in a petition for partition filed exceptions, alleging that he was a life-tenant of the land and objecting to the confirmation of the inquisition, for the reason that he had not been made a party. An auditor, appointed to find the facts, reported that the exceptant was a life-tenant and should be made a party to the proceedings, and his report was confirmed by the court.</p> <p>(б) The usual rule to accept or refuse was then directed to be issued and served upon the exceptant, as well as upon the parties named in the petition. The exceptant accepted service of the rule, and upon its return filed additional exceptions, alleging that the land was then worth much more than the value placed upon it, and praying for a re-valuation.</p> <p>2. The confirmation of the auditor’s report did not make the exceptant a party to the proceedings or validate them; nor did the acceptance of service of the rule by the exceptant, and his subsequent effort to obtain a new valuation, as of that date, cure previous irregularities so as to make the prior proceedings binding upon him.</p> <p>8. An appraisement in a partition proceeding cannot be assailed on the ground of subsequent appreciation of the land; but, upon the discovery of previously unknown elements of value, the court may direct a re-valuation, in order to do justice as between tenants in fee and life tenants, at any time before a decree transferring the title: Per Mc-Collum, J.</p>

<p>[To be reported.]</p> <p>(a) The defendant, a mutual fire insurance company issuing to its members a uniform five-years policy, unless otherwise directed, issued to plaintiff a policy for five years dated June 28,1880. At the end of two years, the plaintiff returned the policy to the company to have a new one issued with $200 additional insurance.</p> <p>(5) On July 12, 1882, a new policy was sent to the plaintiff, who put it away without examination. It was not dated, but on its face was the provision, “Insurance not to exceed 28th day of June 1885.” On the company’s registry it was minuted as a five-years policy, and plaintiff paid all assessments upon it, including two for losses occurring after June 28, 1885.</p> <p>1. In an action to recover for a loss by fire on February 9,1887, the question was, not whether, under the evidence, the policy should be reformed to a five-years policy from July 12, 1882, on the ground of mutual mistake, but whether, as a question of fact, the limitation as to time was not a clerical error, and the actual intent of the parties the issuance and acceptance of a policy for five years.</p>

<p>[To be reported.]</p> <p>1. When an accepted order for goods, to be shipped to the buyer, amounts simply to a bargain and sale of goods not specific, and before they are separated from the bulk and set apart to the vendee, he notifies the vendor not to ship them, such notice is a revocation of the carrier’s agency to receive the goods, and a subsequent delivery of them to the carrier will not charge the vendee with their price, his only liability being for damages for refusing to accept them.</p> <p>2. The present tendency of the American eases is to the doctrine that where the vendor stands in the attitude of complete performance on his part, he is entitled to the contract price as his measure of damages; but, on an executory contract for the sale of goods not specific, the measure of damages for a refusal to receive them, is the difference between the contract price and the market value on the day appointed for delivery.</p> <p>3. A statement of claim, averring that certain goods, ordered by the defendant, were shipped by the plaintiff according to the order, but the defendant refused to receive them from the carrier; that they were then of no use to the plaintiff, having been manufactured for the defendant and unsalable to other customers, and that defendant, by reason of his contract, was indebted to the plaintiff in the amount of the contract price, will support a recovery of damages for a refusal to receive the goods.</p>

<p>[To be reported.]</p> <p>1. Upon a bill in equity to restrain or abate a public nuisance, if the matter complained of be not a nuisance per se, and if the testimony be conflicting whether it is a public nuisance at all or not, an injunction will not be granted until after the fact shall have been determined by a trial at law.</p> <p>2. Where the testimony as to whether a mill-dam, maintained for its waterpower for over half a century and about which a city has grown up, has become a public nuisance or not, is conflicting, a bill to abate it will be dismissed, without prejudice to the right of complainants to proceed by indictment or action at law.</p>

No. 186 October Term 1889, Sup. Ct.; court below, No. 390 June Term 1888, C. P. On May 22, 1888, Oscar L. Pringle brought assumpsit against Margaret A. Pringle, “ acting executrix of Wm. Pringle, Jr., deceased,” to recover the sum of $500, with interest, claimed to have been loaned by the plaintiff to the defendant’s testator on Juné 15, 1882. The defendant pleaded nonassumpsit.

<p>APPEAL BY PLAINTIFFS FROM THE COUNT OF COMMON PLEAS OF BUTLEN COUNTY.</p> <p>Nos. 117, 118 October Term 1889, Sup. Ct.; court below, No. 1 March Term 1889, Feigned Issue D., and No. 25 September Term 1888, C. P.</p> <p>On July 2, 1888, at No. 25 September Term 1888, in the court below, Thomas W. Phillips and David Osborne brought ejectment against John Coast and others, to recover possession of a certain tract of oil land. The plaintiffs claimed as assignees of an oil lease from Andrew Blakely dated February 6, 1884, and duly recorded, for about ten acres of the eastern end of his farm, the leased premises being therein described as bounded upon the west by Glade Run. The defendants were lessees of another portion of said farm, their lease being dated February 9, 1887, and calling for Glade Run as the .eastern boundary. Issue.</p> <p>At the time the action of ejectment was brought, the defendants had commenced the drilling of two wells upon the disputed territory, known as No. 6 and No. 7 respectively. Oil having been obtained in these wells, the plaintiffs, on July 19, 1888, filed a bond with approved sureties and obtained a writ of estrepement to restrain the defendants from further producing oil upon the land embraced in the action; and on .July 25, 1888, on application of the plaintiffs, the court appointed a receiver to take charge of said wells and the oil produced therefrom, keeping- separate accounts respecting each well. The receiver then took charge of the wells, operated them, sold the oil in accordance with the orders of the court, and paid the expenses of operation out of the proceeds.</p> <p>On the trial of the ejectment, November 17, 1888, the matter of dispute was as to the location of Glade Run at the date of the plaintiffs’ lease. The plaintiffs claimed that the channel of the stream at that time was west of the sites of both No. 6 and No. 7 wells, and that all the land in dispute lay on the east side of it and was embraced in their lease. The defendants claimed that the main channel was east of the sites of both wells and that the land in controversy was not a part of the plaintiffs’ leasehold, but was covered by the lease of the defendants. The jury rendered a verdict filing the location of Glade Run, on February 6, 1884, upon a line running between the two wells, and found for the plaintiffs as to all the land east of said line, and for the defendants as to the land west thereof. The part of the disputed land thus recovered by the plaintiffs included well No. 7. Judgment was entered upon the verdict.</p> <p>On December 4,1888, the receiver settled his account of well No. 7, which the court approved, ordering him to pay to the plaintiffs the balance in his hands except $2,500, which sum he was directed to retain until further order. On December 18, 1888, the plaintiffs petitioned the court for an order requiring the receiver to pay to them the $2,500, retained in the receiver’s hands. No answer to this petition was filed by the defendants, but, on the day of its presentation, the court, at the request of counsel, directed that an issue be made up to try whether the defendants were entitled, by reason of permanent improvements or betterments made by them on the land recovered from them by the plaintiffs, to receive all or any part of the $2,500 in the hands of the receiver, the jury to determine how much of said fund, if any, the plaintiffs were entitled to, and how much, if any, the defendants were entitled to receive. An issue was accordingly framed and entered to No. 1 March Term 1889, feigned issue docket. The plaintiffs thereupon filed a declaration as in trespass for mesne profits, and the defendants pleaded specially, claiming that they were entitled to the cost of drilling well No. 7, and expenses incident to producing the oil therefrom, amounting to $2,263.60.</p> <p>At the trial of the issue, on January 15, 1889, the defendants assumed the burden of proof and presented evidence tending to show that they had expended the sum of $2,263.60 for - the rig, machinery and fixtures connected with well No. 7, and the cost of drilling the same ; that this expenditure was made in good faith, and in the belief that the well was on land to which the defendants were entitled under their lease; that the appearances upon the ground were, at the time, such as to indicate that Glade Run was to the east of the well, and that W. F. Coast, who on behalf of himself and the other defendants negotiated the lease under which the defendants had claimed, was informed by Blakely, the lessor, that the plaintiffs’ lease extended only to the eastern channel. The plaintiffs adduced testimony tending to show that the appearances upon the ground in June, 1888, indicated that Glade Run was in the west channel; that before the defendants had done any work on the ground in preparation for drilling well No. 7, R. J. Phipps, an agent of the plaintiffs, notified W. F. Coast that the land upon which he was about to operate was part of the plaintiffs’ lease, and warned him that if he operated on it he would do so at his peril, tins notice applying to well No. 6 as well as to No. 7. W. F. Coast testified in rebuttal, on the part of the defendants, that the notice he received from Phipps was not given until after both rigs were completed, and that the rig at No. 7 cost $380; that after receiving the notice the witness did not inquire of Phillips respecting the grounds upon which his claim was based, but inquired of Blakely whether he understood the boundaries of the Coast lease to be the same as they were understood to be by the witness.</p> <p>At the conclusion of the testimony the court, McMiCHAEE, J., charged the jury in part as follows:</p> <p>The presumption is, gentlemen, that this money belongs to Phillips and Osborne, the landholders. That has been settled. They had a right and have a right to the proceeds of that land, unless there be some reason shown by the defendants here, why they, the defendants, should receive a part of it. That throws the burden of proof upon the defendants to make out their case, and it is really treated here and has been tried, as though they were in point of fact, the plaintiffs.</p> <p>Where an individual goes upon the land of another and makes improvements — even valuable ones, or whether they be valuable or not valuable — he has no right to receive any compensation for the improvements he makes, unless he makes them under an honest belief that he is the owner, or unless he makes them with the consent of the owner. There is no pretence of consent here. There is no dispute but that well No. 7 was put down by the defendants, Coast Brothers, and there is no dispute here but that it was a valuable improvement.</p> <p>If the defendants are entitled to receive any of tbe money that is now in court for that improvement, then they are entitled to receive so much of it as they expended, if it was worth that much. If the property was increased in value to that amount — and about that there is really no dispute that it was, —that is, that it produced a considerable amount of oil here and really was valuable and is valuable to the property; so that that, gentlemen, eliminates out of this case every inquiry that you have to make except one, and that is, the good faith — if you please to call it that now — of these defendants in putting down that well.</p> <p>■ Unless the jury are convinced from the evidence that the defendants had an honest conviction that this property was theirs and had good reason to believe it, then they would not be entitled to anything in this case. Then you come right to the question to be determined.</p> <p>When you come to that, there are two features of it, as it is presented, at which you have to look. One is, as to the facts as they appeared upon the ground at the time when the defendants went into possession of this property to put this well down, and to that particular subject the larger part of the evidence that has been introduced was directed. The defendants undertake to prove too by witnesses, that from what was seen there upon the ground in June, 1888, when this well was commenced, Glade Run seemed to be to the east of that well, and that therefore the property belonged to the Coasts under their lease from Blakely. The plaintiffs have introduced several witnesses whose testimony is as to the same state of facts, tending as they claim to show that at that time Glade Run appeared to be west of that point, and therefore that place was upon the land of Phillips and Osborne. Now, how was that ■ in fact ? If it be true that an individual going upon that property at that time with the information that Coasts had up to that time, and looking at it, seeing it just as it was, would determine that Glade Run was west of that Run and not east of it, then there would be no good reason why the defendants should assume that they owned that property; no good reason why they should undertake to put that well down. And. if you find the facts to be, then, that from the appearances on the ground as they then appeared, a man reasonably ought not to conclude that Glade Run was east of it, and east of it at the time the Phillips lease was taken in 1884, then you may come to the conclusion at once that the defendants are not entitled to anything here; that it was a mere wanton trespass, without any reasonable grounds to suppose they had a right upon it, and you may find the verdict for the plaintiffs for the entire sum.</p> <p>If you conclude, gentlemen, from the facts as they seemed upon the ground and from the evidence, so far as Mr. Coast was concerned, and what Mr. Blakely had shown him, whatever that may have been, that reasonably a man might conclude that Glade Run was east of the place where that well was put down, and that therefore it was on his lease, then you have another inquiry.</p> <p>The plaintiffs here gave the defendant notice, there is no dispute about that, not to enter upon the property and not to put that well down, — that same notice including No. 6, about which there is no controversy now. But if, in point of fact, it did appear and a man could reasonably conclude from the ground that Glade Run was east of this well No. 7, then when the defendants received that notice that put them upon inquiry. Then it became their duty not only to look at the ground, but it became their duty to inquire of these plaintiffs what the facts were upon which they claimed to own that property.</p> <p>Now, some of the witnesses in this case have fixed dates which would put this notice before anything was done upon the ground there, and some of them have fixed dates or stated times which would put it after part of the work was done upon the ground there. It will be for you to determine, if you reach this question at all, which of these states of fact is correct. If it be true that that notice was given before any work was done, then the defendants were put upon their full inquiry, no matter what they saw upon the ground, as to the place where Glade Run was in 1884. But if the jury conclude that that notice was given after this improvement was commenced, but before it was finished, and further conclude as I have already stated, that the defendants could reasonably consider that Glade Run was east of that point, then you may find for the defendants so much as they had expended up to the time that that notice was actually given to them, and may find that they are not entitled to any more. If you come to the conclusion that that notice, if followed np with proper.inquiry, would have informed them where Glade Run was in 1884, on November 6th, when they received that notice, then it was incumbent on them not merely to go to Mr. Blakely and inquire of him where he had leased to them — that, if you believe Mr. Coast, he knew already — but it was incumbent on them to inquire of the plaintiffs what the facts were upon which they based their claim, and that would be more emphatically true after the suit was brought. This action in ejectment was commenced on July 2, 1888. Some of these improvements, the engine, tanks and some other matters, as Mr. Coast testified, were put up after that suit was commenced, after the 2d day of July— indeed after the 6th.</p> <p>Now on receiving that notice, then, if they had inquired, what would they have learned, had they gone to the plaintiffs, Mr. Phillips and Osborne, or either of them, or both of them ? Would they have learned any state of facts which would have informed them where Glade Run in fact was in 1884, that is, to the west of this well ? . . . .</p> <p>The Coasts having received the notice that this property was the property of the plaintiffs, that they claimed it, then it was their duty to inquire; and they must now in the trial of this case be considered in precisely the same position they would have been in if they had learned all the facts which that inquiry would have revealed to them. If the jury come to the conclusion that a proper inquiry would not have revealed such a state of facts as would have convinced a reasonable man that this was the property of Phillips and Osborne, then his good faith 'would seem to be made out. Of course I am assuming now that you have passed the first question as to what appeared upon the ground, in favor of the defendants. But if the inquiry would have revealed such a state of facts to the defendants as would have convinced them reasonably, or convinced reasonable men, that Glade Run on November 6, 1884, was not east of that point, then they must be held from the time they got that notice to have had all that information, and if, with that information they would not have been, in good faith, claimants of that ground, then they would not be entitled to receive anything for the improvements they have made as they claim them in this case.</p> <p>This, gentlemen, I think, gives you substantially the merits of the case, these two inquiries :</p> <p>1. What did the ground show as to where Glade Run was in 1884 ? 2. What could they have learned by inquiry after they got the notice, as to where Glade Run was at that time ?</p> <p>And if you conclude from all the evidence in this case, that having seen these facts and made the inquiry, and got the information which they could have got by inquiring, that they were in good faith still claiming and believing, and with all these facts had a right to believe that they owned that property, then they may be said to have gone on in good faith and put down their well. But if you find to the contrary, that they could not reasonably believe, with the knowledge of these facts that they were the owners of the property and had a right to it, then they would not be entitled to recover anything in this case, unless you come to the conclusion that the notice was not given until after they had expended some money on these improvements, and that these first improvements were made in good faith and the latter were- not made in good faith; and if you come to this conclusion then give them so much as the improvement they had expended in good faith was at the time worth.....</p> <p>The plaintiffs request the court to charge you:</p> <p>1. If the jury find that the defendants stated to the plaintiffs’ agent that they would not enter on the premises out of which the mesne profits arose until they had seen plaintiffs, or T. W. Phillips, or one of them, about making some satisfactory arrangement; and, that taking advantage of the plaintiffs being thus thrown off their guard, the defendants engaged an unusual force of laborers and entered upon the premises, and began the making of the improvements, the value of which they seek in this action to offset against plaintiffs’ claim for mesne profits, and, anticipating an attempt of plaintiffs to forcibly eject them, and being prepared to maintain their possession so gained with force, the defendants are not entitled to the protection of the equitable rule allowing a bona fide possessor or tenant under color of title to offset the value of his improvements against the plaintiffs’ claim for mesne profits; and the verdict of the jury should be for the plaintiffs for the whole amount of the mesne profits, without any deduction for improveniente or money expended on tbe premises by tbe defendants.1'</p> <p>2. If the jury find that the defendants entered upon plaintiffs’ land after notice of plaintiffs’ claim to the same, and made the improvements thereon, the value of which they are now seeking to offset against plaintiffs, the defendants are not entitled to such offset and the verdict of the jury should be for the amount of the mesne profits.8</p> <p>3. If the jury find that prior to the entry of defendants on plaintiffs’ land they knew from any source that there was a dispute, or a question about their right to the premises entered upon, and yet entered and made the improvements, the value of which they now seek to offset in this action, the defendants are not entitled to offset the value of the improvements made.3</p> <p>4. If the jury find that prior to the entry of defendants upon plaintiffs’ land they had a special notice of plaintiffs’ claim to the same, by plaintiffs’ agent or agents, and yet entered upon the same and made the improvements, the value of which they now seek to offset in this action, such entry was at the risk and peril of defendants, and they do not come within the rule allowing bona fide, innocent holders or tenants, to offset the value of their improvements; and this is the law although the jury may be satisfied that at the time of such entry the defendants believed they were the owners of the land so entered; and the verdict of the jury should be for the plaintiffs without any deduction for such improvements or money expended on said land by defendants.4</p> <p>5. Withdrawn.</p> <p>6. If the jury find that any part of the improvements now sought to be offset were made after the plaintiffs brought their action of ejectment for the land, and service was either made or accepted for defendants, for such improvements so made after the ejectment and service the defendants are not entitled to offset.6</p> <p>Answer: Each of these points submitted by plaintiffs’ counsel substantially asks the court to instruct you that if you find the facts to be as stated in the several points, then the defendants are not entitled to anything for the value of the improvements which they made on the property. I cannot so instruct you. The question of the good faith on the defendants’ part is a question for the jury under the facts in this case. All the facts are submitted for your determination. .You will find what the facts were,'and apply them to the question whether the defendants are entitled to anything, and if anything, then how much, under the instructions already given you.</p> <p>The jury rendered a verdict for the plaintiffs for $236.40, and for the defendants for $2,263.60.</p> <p>On April 13,1889, the court entered upon the record at No. 25 September Term 1888, a decree reciting the feigned issue and the verdict rendered thereon, and, stating further that the court saw no sufficient reason why it should disregard said verdict, ordered that the receiver pay out of the fund in his hands the sum of $236.40 to the plaintiffs, and the sum of $2,263.60 to the defendants. Thereupon the plaintiffs took these appeals.</p> <p>In the appeal at No. 117, the plaintiffs assigned for error:</p> <p>1-6. The answers to plaintiffs’ points upon the trial of the issue.1 to 6</p> <p>In the appeal at No. 118, the plaintiffs specified that the court erred:</p> <p>1. In decreeing that the sum of $2,263.60 be paid to the defendants.</p> <p>2. In not decreeing that the whole fund in the receiver’s hands be paid to the plaintiffs.</p>

<p>[To be reported.]</p> <p>1. Where an assignee for the benefit of creditors sells assigned real estate discharged of liens, with the consent of lien creditors but without an order of court, the Court of Common Pleas has jurisdiction by bill in equity to restrain a conveyance and order a re-sale, on the ground of improper conduct in the sale on the part of the assignee: § 18, act of June 16, 1836, P. L. 789.</p> <p>2. If the assigned real estate is offered at public sale both in parcels and as a whole, and is 'sold as a whole for a price less than the amount of the bids from responsible bidders in parcels, a conveyance by the assignee may be restrained and a re-sale ordered, although there is no proof of actual fraud or collusion between the assignee and the purchaser.</p>

<p>APPEALS BY CHAS. WARRELL AND S. A. OLIVER ET AL. EROM THE COURT OE COMMON PLEAS OE WASHINGTON COUNTY.</p> <p>Nos. 171, 224 October Term 1889, Sup. Ct.; court below, No. 238 November Term 1884, C. P.</p> <p>On October 11, 1884, Charles Warrell brought ejectment against tbe Wheeling, Pittsburgh & Baltimore Railroad Co., to recover a strip of land containing 5.22 acres, then occupied by the line of defendant company’s railroad. At the trial of the cause on March 21, 1888, the plaintiff proved title in himself to the land in dispute and rested. The defendant then put in evidence the organization of the Hempfield Railroad Company, the judicial sale of the franchises and property of said company, and the vesting of the title thereto in the defendant company. It was then shown by the defendant that the Hempfield Railroad Co. had entered upon the land in dispute in 1854 or 1855, and had constructed its roadbed through it in 1857; that on September 29, 1860, the Hempfield Railroad Co. and the then owners of the land, the plaintiff owning one ninth thereof, entered into an amicable submission to referees, by whom an award was made, dated October 24,1860, which ascertained the compensation to which the landowners were entitled from the defendants at 1800. The offer of the submission and award was objected to by the plaintiff, unless it was proposed to follow it with evidence, inter alia, that the railroad company had either paid the compensation liquidated in the award, or had secured the payment thereof according to law. The objection was overruled and the offer admitted.</p> <p>The cause was then submitted to the decision of the court, without the jury, and on April 9, 1888, a decision was filed entering judgment in favor of the plaintiff for the land in dispute, to be released if the defendant company paid into court, within 60 days, the sum of $2,118, “to be distributed by the court to and among the parties entitled thereto;” otherwise, etc. To this decision and judgment a writ of error was taken by the defendant company to No. 142 October Term 1888, Sup. Ct., and on October 29,1888, the judgment was affirmed: Wheeling, P. & B. R. Co. v. Warrell, 122 Pa. 613. On December 11, 1888, the defendant company paid into court the sum of $2,156.83, and Mr. Breeman Brady, Jr., was appointed auditor to report a distribution of the same “ to and among the parties entitled thereto.”</p> <p>On the hearing before the auditor, Charles Warrell claimed the whole of the fund in court, on the ground that, the defendant company never having paid or secured the compensation ascertained by the submission and award until after the ejectment was brought, the fund for distribution “was the price which the Wheeling, Pittsburg & Baltimore Railroad Co. paid for the privilege of remaining on his farm; that the right of way was never vested in said company until it paid the money into court, and that being the owner of the land at the time the easement vested in the company, he was entitled to the price paid for it.” ' He contended further that the other claimants to the fund, having conveyed their entire title to him before there had been any legal appropriation of the land by the company, they had no further claim against the company except for the trespass committed by it prior to their conveyances ; and, even if it were conceded that they were entitled to any portion of the award after their conveyances, they were barred by lapse of time from bringing any action against the company to recover the same at the time the action of ejectment was begun, and were not entitled, therefore, to participate in the distribution of the money recovered from the company by the owner of the legal title.</p> <p>Mr. J. D. Braden and his associate counsel, for their services in the trial of the ejectment case, claimed one third of the fund for distribution, establishing a contract therefor with the plaintiff, made when the action was instituted. A bill of $21, for the printing of the paper-book of the defendant in error in the ejectment case, was also presented.</p> <p>Sarah A. Oliver and others, brothers and sisters of Charles Warrell, appeared before the auditor and claimed each a portion of the fund, on the ground that each being an owner of a one ninth interest in the land in September and October, 1860, the time of the submission and award, they were entitled each to one ninth of the fund for distribution. They also objected to the allowance of the claim for attorneys’ fees and the expense of printing the paper-book for the Supreme Court, in so far as the same would affect their several claims upon the fund.</p> <p>The auditor, upon the foregoing facts undisputed and positions controverted, reported:</p> <p>It cannot be doubted to whom this fund belonged in 1860. Certainly the parties to that submission, of the first part, were the rightful claimants at that time of this fund. The rights of the parties were not doubted at that time, and that the parties to the submission were the rightful owners, no one called in question. They mutually entered into this contract of submission. Charles Warrell entered into the contract with the others, thereby admitting their rights. It cannot be doubted that the money in court, and now for distribution, is that award, increased by the interest thereon, The award in 1860 was in favor of all the parties to the submission, according to their respective interests therein. Has anything taken place since that time to change the rights of the parties thereto? Let us see.</p> <p>Charles Warrell, since that date, has become the owner of the whole tract of land; of five ninths, as devisee under the will of James Warrell, Sr., his father: one ninth by deed of conveyance from Rebecca Miller and her husband; one ninth by deed fróm Mrs. Sarah Ann Oliver and her husband; and one ninth by deed from William Warrell and wife. Do these deeds change the rights of the respective parties to this fund ? This is the position of Charles Warrell as heretofore stated. These deeds are silent on the question of damages, and notwithstanding this fact, Charles claims that by operation of these deeds, these parties are divested of all interest in the damages and the same are vested in him. This position is ingenious, and the argument adduced by the counsel of Charles Warrell is equally ingenious, but in the judgment of the auditor, under the doctrine laid down in a number of Pennsylvania cases, the position is untenable.</p> <p>—Citing and considering McFadden v. Johnson, 72 Pa. 335; Davis v. Railway Co., 114 Pa. 308; Losch’s App., 109 Pa. 72; Wadhams v. Railroad Co., 42 Pa. 310; Tenbrooke v. Jahke, 77 Pa. 392; Schuylkill and Snsq. Nav. v. Decker, 2 W. 343; Beale v. Penna. R. Co., 86 Pa. 509; the auditor proceeded:</p> <p>Under the law as laid down in these cases, these deeds to Charles Warrell would not operate to strip the owners of the land, at the time of the location of the road, of their right to the damages and to vest them in Charles. As to the claim under the tortious entry and occupancy of the land by the railroad company, how does this affect or strengthen the claim of Charles ? The facts of the case are, that the railroad company did not agree with the owners of the land for compensation, neither did it file a bond as required by law; neither did it take any steps to have these damages ascertained, as prescribed by the law, nor did it comply with the requirements of the law in any particular at the time of the location of the road; but it is equally true that there is no evidence in this case that does show, or tend to show, that James Warrell, Sr., who was living on the tract of land at the time, nor Charles Warrell, nor Mrs. Oliver, nor Mrs. Miller, who were living on the land with their father, nor William Warrell, who was living on another farm of James Warrell, Sr., in the neighborhood, ever made any objection to the railroad company entering, locating its road, and spending its money in the construction of the same. They evidently acquiesced in what was being done, and in the way it was being done. In 1860 the company and the parties in interest in the land, in an amicable and friendly way, agreed upon a method to ascertain' these damages. They waived the statutory method and established a form of their own. These things all tend to show the relation and attitude of the parties toward each other at this time. They are strongly persuasive that the question of trespass -was waived, and compensation for the land taken was all that was claimed by the owners of the land, and so much was conceded by the company. And when the award was made of damages, it related back to the appropriation and was intended as a compensation for the land taken.....[Under all the proofs, the auditor is of the opinion that the damages belong to the same parties who were entitled in 1855, when the entry was made upon the land, and the same parties who entered into the submission in 1860, and in whose favor the award was made, under that submission; that neither the deeds nor anything done since gave to Charles any right to claim them. Therefore, the conclusion of the auditor is, that the estate of James Warrell, Sr., Mrs. Miller, Mrs. Oliver and William Warrell are entitled to take out of this fund according to their respective rights in the land in 1855 and in 1860, less the costs and other expenses hereafter referred to.] 1</p> <p>—Passing upon the other controverted question in the case, the auditor, citing Dubois’s App., 88 Pa. 231; McKelvy’s App., 108 Pa. 615; Patten v. Wilson, 34 Pa. 299, found that Mr. Braden and his associates were entitled to one third of'the fund in court, less the costs and expenses of the audit, and also to the charges for the paper-book of the defendant in error in the Supreme Court, and recommended a distribution accordingly.</p> <p>The auditor’s report having been filed, Charles Warrell filed exceptions thereto, alleging that the auditor erred in the conclusion of law embraced in [ ] x, and in reporting a distribution in accordance therewith. Sarah A. Oliver et al. also filed exceptions, alleging that the auditor erred, inter alia, in allowing to the attorneys of Charles Warrell a fee to the extent of one third of the amount of the shares of the exceptants to be deducted from their shares, and in allowing the expenses of printing the paper-book.</p> <p>Said exceptions of the parties having been argued, on July 8, 1889, the court McIlvaine, P. J., entered a decree dismissing all the exceptions and confirming the auditor’s report absolutely. Thereupon Charles Warrell took the appeal to No. 171, and Sarah A. Oliver et al. took the appeal to No. 224, severally assigning for error the dismissal of their respective exceptions and the confirmation of the auditor’s report.</p>

No. 183 October Term 1889, Sup. Ct.; court below, No. 24 March Term 1887, C. P. On January 12,1887, an action in assumpsit was brought by David Gregg, for use of Charles McCandless, against Samuel Allen, Henry Allen and Thomas Allen. Issue.

<p>[To be reported.]</p> <p>1. When an agreement of composition with creditors stipulates that it shall not be binding unless signed by all the creditors except certain named holders of liens, it is incumbent upon the party setting it up as a release of their claims by those who sign it, to show that the condition on which they consented to be bound has been fully complied with.</p> <p>2. The fact that such agreement recites that the subscribers have little prospect of realizing anything on their claims and that the composition is made in order to secure something thereon out of the debtor’s property, will not justify the importation into it, by construction contrary to its express language, of an intention that other secured creditors than those named shall not be required to sign.</p> <p>3. The filing of a mechanics’ lien for work or materials furnished upon the order of the owner of a building, does not release the owner from personal liability for such labor or materials, or take away from the person so furnishing the same the character of a creditor, within the meaning of a stipulation for the assent of all the creditors of such owner to the composition agreement,</p> <p>á. When, in pursuance of such agreement, the debtor has placed property in the hands of a trustee for sale and distribution among the signers, one of these is not estopped from treating the agreement as void for non-compliance with a condition precedent, by his mere omission to give notice before the sale of the property that he would so treat it, although third persons have given releases of liens to enable the property to be sold.</p>

<p>APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, IN EQUITY.</p> <p>No. 215 October Term 1889, Sup. Ct.; court below, No. 606, C. P. in equity.</p> <p>On August 15, 1889, a bill in equity was filed by A. W. Acheson against M. H. Stevenson, J. Adolph Schmitz, Effie B. Schmitz, John Burns and James M. Hughes, which averred, in substance:</p> <p>1, 2. That on June 21, 1887, the plaintiff sold and conveyed to Mrs. Effie B. Schmitz a lot of ground fronting 60 feet on Prospect avenue and extending back 198 feet to a private alley, which alley for its whole length adjoined other lands still owned by the plaintiff, the conveyance containing the following habendum: “ To have and to hold the said premises, with all and singular the appurtenances, unto the said party of the second part, her heirs or assigns, to the only proper use, benefit and behoof of the said party of the second part, her heirs and assigns forever. Without, however, the right ta drill or mine for petroleum, rock oil, carbon oil, or natural gas, which, right is not intended to be conveyed but is forbidden to both parties hereto.” A copy of said conveyance was attached as a part of the bill and marked exhibit A.</p> <p>3. That since executing and delivering the said deed, the plaintiff had executed and delivered to Gibson & Giles an oil- and gas-lease on an out-lot near the lot described in the preceding paragraph, containing about four or five acres, upon which said Gibson & Giles had completed an oil-well which was producing oil in large quantities.</p> <p>4. That the defendants, with full knowledge and notice of the restriction contained in said deed to Mrs. Effie B. Schmitz, against the protest of the plaintiff, and in violation of the restriction in said deed, were proceeding to drill an oil- or gas-well within 30 feet of the lands of the plaintiff and within 200 feet of the well mentioned in paragraph 3 of the bill.</p> <p>Upon the foregoing averments the plaintiff prayed for relief: 1. That the defendants make answer. 2. That they make full disclosure of all parties interested in the operations complained of. 3. That by preliminary and thereafter by perpetual injunction the defendants, etc., be restrained and enjoined from proceeding to' drill or mine for oil or gas in or upon the premises described in the bill. 4. For an account. 5. For further relief.</p> <p>At the hearing of the motion for a preliminary injunction, on August 21, 1889, affidavits were read by the plaintiff and by the defendants, and on August 28th, the court, McIlvainb, P. J., filed the following opinion and decree:</p> <p>The plaintiff’s right to a preliminary injunction in this case depends on three things, to wit: 1. On the existence and character of the restriction contained in his deed to Mrs. Effie B. Schmitz. 2. On the violation by the defendants of the provisions of that restriction, and 3. On the question whether the plaintiff “ by his own conduct has deprived himself of the right to equitable interference for the prevention of the breach of the restriction contained in this deed.”</p> <p>Let it be conceded, as we think it must -be, that the words, “Without, however, the right to drill or mine for petroleum, rock oil, carbon oil, or natural gas, which right is not intended to be conveyed but is forbidden to both parties hereto,” as found in the habendum of the plaintiff’s deed to Mrs. Schmitz, constitute a lawful restriction, and that the defendants have no right under this deed to drill an oil- or gas-well on the premises therein conveyed; and let it also be further conceded, as it must be, that the defendants are engaged in drilling such a well on the lot in question, still the plaintiff cannot invoke the aid of a court of equity, and successfully ask that the defendants be enjoined from so doing, unless it appear that he has carried out his part of the contract or agreement which resulted in placing the restriction upon the use and enjoyment of the lot conveyed. And here is where the contest in this case arises. As to the purpose of this restriction, or why it was inserted in the deed, the deed itself is silent. And we must turn to the affidavits which were read at the hearing, for information on this branch of the case.</p> <p>From the affidavits of the plaintiff it appears that, some time ago, he laid out a plan of lots to be known as the “ Acheson Addition” to the borough of Washington; that the lot in question is in this addition; that the clause in Mrs. Schmitz’s deed, which we have quoted, was intended as a reservation of the oil and natural gas; that in the sale of the lots in this addition it was always his intention to reserve the oil and gas, and that he in no way bound himself not to mine the oil under these lots by locating wells on ground which was not properly a part of the addition.</p> <p>The defendants claim that the clause in the deed referred to was not intended as a reservation of the oil and gas, but as a restriction to be placed in all the deeds for the -benefit of all the lot-holders in the addition, the object being to secure to them dwelling places free from the annoyance of oil- and gas-wells, or, as Prof. Schmitz poetically expresses it, “a quiet rural retreat.” We quote from the affidavits filed by the defendants in support of this claim:</p> <p>Prof. Henry Woods, who purchased one of these lots, avers “ that the judge told him, when the restriction was put in his deed, that the object of it was to protect the lot-holders against the drilling of oil- or gas-wells; ” says he, “ we want this for a nice, quiet place for residence.”</p> <p>Prof. W. C. McClelland avers that when he received his deed it was explained to him, “ that the covenant was not intended as a reservation of the oil and gas, for they did not believe there was any oil or gas there; but that it was intended for the mutual protection of lot-holders against each other; .....both Mark and the judge told me that no well would be put down on the addition.”</p> <p>M. H. Stevenson, Esq., avers that the plaintiff said to him, when he accepted his deed, “ that the covenant against drilling was for mutual protection of the lot owners against each other, and' that he would not sell any lots in the addition without having it in the deed. He also mentioned the fact that he lived out there himself, and that he would not have any well around there anywhere.”</p> <p>T. F. Birch, Esq., avers that when he bought a lot from the plaintiff “ he explained that they wanted that neighborhood for a quiet place of residence, and that there were to be no wells drilled around there; that the restriction was for the mutual protection of the lot owners, and to protect them from the annoyance of oil- and gas-wells. The Achesons owned other lots there, and I understood that they were no more at liberty to drill than anybody else.”</p> <p>Prof. Adolph Schmitz avers that the plaintiff told him, when he agreed to the restriction in his wife’s deed, “ that he wanted the restriction in all the deeds in this addition; that he did not want any oil-wells in that neighborhood; he wanted this for a quiet residence place and he would not have 'any oil-wells around there anywhere.”</p> <p>Mrs. Efñe B. Schmitz says, “my husband attended to the purchase of my lot. While we were building our house the judge was over, and the oil business came up some way in conversation. He waved his hand toward the mansion place where the Rev. Hamilton lives, and said that he would not have any wells out there at all; he would not be bothered with the annoyance.”</p> <p>Geo. B. Darrah avers that, “in answer to his objection to the restriction in his deed, he (M. C. Acheson, Esq.), in the presence of the plaintiff, said that they had laid that land out into building lots and wanted this neighborhood for a nice, quiet place of residence; that this restriction was intended for mutual protection and would be in all the deeds; ‘of course you do not want anybody to drill so as to annoy you, and so you must be bound not to drill so as to annoy us.’ He explained that the restriction was not intended for a reservation of the oil and gas, for, says he, the right is forbidden to either party, but that it was merely intended for the protection of people who might own lots in that addition.” Mr. Darrah further avers, “ that he saw the plot of the addition; that it extends from Mark Acheson’s house clear around the road to the property of Rev. Ross Stevenson. The mansion house, or Hamilton lot, was included in the plot just the same as any other lot, and the judge told me that he had offered it for sale. Both the wells back by Hamilton’s house are on the addition, as it was when shown to me, and are a violation of the representations on which they got me to accept the restriction.”</p> <p>From these affidavits the defendants claim, as we have already said, that when the ■ plaintiff put the lots in Acheson’s Addition in the market, he made it a general condition in the sale thereof that no wells would or should be drilled on the lots in the addition for oil or gas, the object being to secure a building site that would attract those who preferred a residence in “ a quiet rural retreat,” rather than the ownership of a lot where they and their neighbors could engage in the business of drilling oil-wells; in other words, that he dedicated and disposed of these lots solely for building purposes, and that he has violated this general agreement made with the purchasers of those lots by drilling two wells on the Hamilton lot, which is in the addition, and by drilling a well on the Gibson & Giles lot which is in the immediate neighborhood; that he has done the thing, the effect of doing which has destroyed those very advantages which the clause of restriction was intended to maintain, and now seeks to use this restriction to protect him in doing that which he agreed'not to do. It is unnecessary at this stage of this proceeding to decide that the evidence produced by the defendants is sufficient in law to sustain this claim set up by them. It is certainly sufficient to raise a dispute, to make the plaintiff’s equity questionable; and, under such circumstances, an injunction ought not to be granted until the parties can be heard before a master. We need hardly to cite authorities to sustain this position.</p> <p>Justice Thompson, in Mammoth Coal Co.’s App., 54 Pa. 188, says: “A preliminary injunction ought not to be granted unless the plaintiff show a clear right and urgent danger of irreparable injury.” “As a preliminary injunction is in its operation somewhat like a judgment and execution before trial, it is only to be resorted to from a pressing necessity to avoid injurious consequences which cannot be repaired under any standard of compensation.” In Kerr on Injunctions, 430, et seq., Text Book Series, we find this language, which has a direct bearing on this application: “The conduct of the party who seeks the aid of the court will be taken into consideration upon an application for an injunction. A man who comes to the court, to restrain the breach of a covenant or contract, must be able to show that he comes with clean hands..... He cannot have relief unless it appear that he has actually carried out, as far as in him lies, his own part of the agreement..... A covenantor.....whose own acts have been inconsistent with the covenant.....cannot come to a court of equity to have the covenant or contract enforced. Thus; where the leases of an estate contained covenants to build on a uniform plan, and the landlord let loose some of his tenants from the obligations of the covenant, the court would not interfere to prevent a similar infringement by other tenants.' Nor would the court restrain the erection of buildings contrary to a covenant, where the plaintiff had himself erected buildings, the effect of which was to destroy those very advantages which the covenant was intended to maintain. Nor will the court enforce a restrictive covenant by injunction, on the application of a man who has wilfully allowed it to be broken by other persons who were bound to the same restrictive covenants.”</p> <p>In conclusion we may say that the refusal to grant a preliminary injunction cannot irreparably injure the plaintiff. If on final hearing he succeeds, he has a perfect standard by which to estimate the damage. The oil that the defendants may mine will go into the pipe-lines, and an account thereof will be kept by a third disinterested party. While, on the other hand, the granting of a preliminary injunction, should the plaintiff’s bill be dismissed on final hearing, might irreparably injure the defendants, as there is no means of estimating how much of their oil in the meantime may have been taken out through the plaintiff’s neighboring wells. “ An injunction will not be granted where it will be productive of greater injury than a refusal of it, and the damages are susceptible of compensation at law: ” Richards’s App., 57 Pa. 105 ; Harlrinson’s App., 78 Pa. 196.</p> <p>And now, August 28, 1889, this cause came on to be further heard, on the plaintiff’s application for a preliminary injunction, and was argued by counsel; whereupon, upon due consideration thereof, it is ordered, adjudged and decreed that the preliminary injunction prayed for be and the same is hereby refused.8</p> <p>The foregoing decree having been entered, the plaintiff took this appeal,* specifying that the court erred: 1. In not granting the preliminary injunction prayed for. 2. In making the decree refusing the preliminary injunction.</p>

<p>[To be reported.]</p> <p>(a) A prisoner and his father were indicted, though separately, as principals in the commission of a murder; and on tire trial of the prisoner, whose case was first called, there was no direct evidence as to his presence at and participation in the crime charged.</p> <p>1. In such ease, a declaration of the prisoner, three weeks after the murder and before he or his father were arrested, that “ it would take all pap’s got to clear him,” and that in the same conversation the witness heard the murdered man’s name used, was inadmissible.</p> <p>2. Such declaration, made at the time it was, and showing only a knowledge had after the fact, even though it referred to the murder on trial, could not be admitted as evidence to establish the prisoner’s participation in the crime itself.</p> <p>3. If a statement, made by the prisoner and offered in evidence against him as an inculpatory confession, was given voluntarily and without either threats or the promise of benefit, it is not made inadmissible because it was reduced to writing after he was sworn before the committing magistrate.</p> <p>4. But when such statement has nothing in it which can be construed into an admission of the prisoner’s participation in the crime charged, but merely a knowledge of the murder had after the fact, it is inadmissible for another reason, because irrelevant to the issue on trial.</p>