Volume 132 — Pennsylvania State Reports

4 OF PHILADELPHIA COUNTY. No. 223 January Term 1889, Sup. Ct.; court below, No. 721 June Term 1887, C. P. On June 17, 1887, Elizabeth S. Bricker, widow of Jacob L. Brieker, suing for herself and her children, brought trespass against Stephen A. Caldwell and George deB. Keim, receivers of the Philadelphia and Reading Railroad Company, to recover damages for the death of her husband caused by the alleged negligence of the defendant company. Issue.

No. 81 January Term 1889, Sup. Ct.; court below, No. 83 September Term 1888, C. P. On June 22, 1888, James R. Willard brought assumpsit against Harriet W. Reed and Charles M. Reed, executors of Charles M. Reed, deceased, filing a statement of claim averring : That on June 7,1883, James R. Willard was the owner of a certain lease made by the executors of Chas.

<p>1. In the consideration of a motion for a compulsory nonsuit, the plaintiff is entitled to every reasonable inference of fact that the jury might draw from the evidence, and every relevant fact which the testimony tends to establish is to be treated as admitted by the defendant; when, tested by that rule, the plaintiff’s testimony tends to make out a prima facie case, it is error to enter such judgment: Maynes v. Atwater, 88 Pa. 490.</p> <p>2. The absence of a railing, or other guard, on the top of an abutment twelve feet high and extending four feet beyond the side of a bridge upon a township highway, the approach being so constructed that a foot traveler at night might unsuspectingly walk off the projection in attempting 1o go upon the bridge, is evidence of negligence on the part of the township.</p> <p>3. Where the testimony, in an action against the township, tends to show the existence of such a pitfall, and that plaintiff, on a dark night and while endeavoring to follow the approach and enter the bridge, suddenly, for want of the protecting guard, without negligence, fell over the projection and was injured, an order to enter a compulsory nonsuit is error: Monongaliela City v. Fischer, 111 Pa. 9, distinguished.</p>

<p>APPEAL BY S. D. PAGE FROM THE ORPHANS’ COURT OF PHILADELPHIA COUNTY.</p> <p>No. 270 January Term 1889, Sup. Ct.; court below, No. 152 October Term 1888, O. C.</p> <p>On November 8,1888, the account of tbe Philadelphia Trust, Safe Deposit and Insurance Company, trustee under tbe will of Ambrose White-, deceased, showing a balance for distribution of $2,894.24, was called for audit, when the following facts were shown:</p> <p>Under item 3 of the will of testator, Peter A. White and Thomas Robbins were made trustees of $20,000 for James P. White, a son of decedent, to apply the income for his benefit for life, and upon his death after paying proper expenses, “ to divide the accumulated principal and income to and among my remaining seven children equally share and share alike, and the issue of any of my said children who may then be dead, leaving lawful issue, and the children and grandchildren of my deceased daughter, Maria Neff, to take however the same share only their respective parents w.ould have taken if living, in the same manner and upon the same trusts and with the same conditions and limitations as I have directed with regard to the shares of my estate herein given and devised to them or for their use and benefit immediately upon my own death.”</p> <p>Under item 7 of the will one seventh of the residuary estate was given to the Philadelphia I., T. and S. D. Company, in trust, to pay the income to a daughter, Ann Holmes, during her life, and upon her death, after reserving two specific legacies, one of $2,000 to her son, George W. Holmes, and one of $5,000 to her daughter, Harriet K. Jamison, to grant, convey, etc., “to my children, John F., Peter A., Alexander Henry, Rebecca P., Mary P., and Elizabeth C., and the children and grandchildren of my deceased daughter Maria Neff, equally, share and share alike, as tenants in common and not as joint tenants, and the issue of any of my said children who may then be dead leaving lawful issue, such issue, however, and the children and grandchildren of my said deceased daughter, Maria Neff, to take the same share only that their respective parents would have done if then living, in the same manner, upon the same trusts, and with the same limitations and conditions as I have directed with regard to the shares of my estate herein given and devised to them or for their benefit, immediately upon my own death.”</p> <p>Another provision of the will was as follows:</p> <p>“ 9. Item. My will is, and I hereby direct, that as to any portion of my estate which shall come to or vest in the children of my daughter, Ann M. Holmes., by way of remainder under this my will, after the deaths of my sons, James P. and Peter A., and the wife of the latter, that the said children shall take and enjoy the same in the same proportions as the sums I have given to or for them respectively after the death of the said Ann M. Holmes; that is to say, two-sevenths thereof to go to and vest in George W. Holmes, absolutely, and five-sevenths thereof to the said the Philadelphia Insurance, Trust and Safe Deposit Company, in trust for Mrs. Harriet Jamison, in the same manner, upon the same trust, and with the same conditions and limitations as I have directed with regard to said sum of Five Thousand Dollars.”</p> <p>The auditing judge, Hansta, P. .J., filed the following adjudication :</p> <p>It appears the fund i'n the present account is the share of Mrs. Holmes, in a fund held by Thomas Robbins and Peter A. White, as trustees for James P. White, under the will of testator, and awarded to accountant by this court upon the settlement of said trust estate.</p> <p>James P. White died in the lifetime of Mrs. Holmes; she having died September 11, 1888.</p> <p>This sum held in trust for Mrs. Holmes, is now to be distributed in accordance with the following provision in testator’s will, to wit: [Item 9 above quoted.]</p> <p>Said George W. Holmes is still living, so that he would be entitled to said proportion of two sevenths of the fund absolutely, which passes therefore to the Commonwealth Title and Trust Company, under his voluntary deed of trust dated September 25, 1888. Mrs. Harriet Jamison, however, died April 30, 1887, leaving two sons, B. K. Jamison, Jr., of full age, and William S. Jamison, a minor, who, according to the will of testator, are entitled to five sevenths of the fund in equal shares absolutely.</p> <p>A distribution having been reported accordingly, S. Davis Page, guardian of Sophia Peace Vernon and Ellery Peace Vernon, minor children of a deceased daughter of testator, and as trustee for A. H. White, a son of testator, and as attorney for Jas. M. White, also a son of testator, excepted to the foregoing adjudication, alleging that -the auditing judge erred in holding that the balance for distribution was to be distributed in accordance with the ninth item, and not under the clause quoted from the seventh item of the will.</p> <p>After argument, before the court in banc, the following opinion was filed, Ferguson, J.:</p> <p>It would seem as if there ought not to be any controversy as to what the testator meant as to the disposition of the fund which is the subject of this account. He had bequeathed one seventh of his residuary estate in trust for his son, James P. White, during his natural life, and at his death to divide the principal and any accumulated interest among his remaining seven children, and the children and grandchildren of his deceased daughter, Maria Neff, and the issue of any other of his said children who may then be dead, leaving issue, etc. By the ninth clause of his will he provides: “ As to any portion of my estate which shall come to or vest in the children of my daughter, Ann M. Holmes, by way of remainder under this my will, after the deaths of my sons, James P. and Peter A., and the wife of the latter, that the said'children shall take and enjoy the same in the same proportions as the sums I have given to or for them respectively after the death of the said Ann M. Holmes, that is to say, two sevenths thereof to go to and vest in George W. Holmes absolutely, and five sevenths to the Philadelphia etc. Company, in trust for Mrs. Harriet Jamison.”</p> <p>The fund which is the subject of this present account is the share of Mrs. Holmes in the estate held in trust for her brother, James P. White, during his life, and which, upon his death, vested in her by way of remainder, under the terms of the will of testator.</p> <p>The testator had created a number of trusts for the lives of his different children, and had very minutely directed the disposition of the trust funds after their respective deaths. With regard to Mrs. Holmes, after her death the estate held for her was to be distributed as follows: $2,000 to her son, George W. Holmes, absolutely, and $5,000 to be held in trust for her daughter, Harriet Jamison, and the residue to be divided among the children of the testator whom he named in his will.</p> <p>It was claimed that this fund ought to be consolidated with and distributed as part of the trust estate of Mrs. Holmes in the manner just recited. This would undoubtedly be true if the ninth clause were eliminated from this will, as in the trust for his son, James P., it is provided that in the event of the termination of the said trust by his death and the distribution of the trust estate among his brothers and sisters, they are to hold their respective shares upon the same trusts and with the same conditions and limitations as the testator had directed with regard to the shares of his estate given and devised unto them respectively. But the testator, before he closed his-will by the ninth clause, which is the very last one in which he makes any disposition of his estate, alters and changes all this, so far as it relates to the share of Mrs. Holmes, and thereby declares with regard to any portion of Ms estate that shall come to or vest in the children of his daughter, Mrs. Holmes, under the clause creating the trust for his son, James P., it shall, after the death of Mrs. Holmes, vest, two sevenths in her son, George W. Holmes, and five sevenths in trust for her daughter, Harriet Jamison. Here there is an entirely different disposition of this portion of his estate from what he had previously made with reference thereto. Why the testator made this change is immaterial. That he fully intended to make it is very evident from the fact that this ninth clause was written in the will. It does not mention any other subject, and relates to none of his other children or to any other part or share of his estate, and could not possibly have been inserted without the testator having in his mind some clear and well-defined purpose, and what that purpose was is evident from the words of this clause. If it is repugnant or inconsistent with any previous portion of the will, the other portion must give way, and this be regarded as the testator’s last will and testament. The auditing judge was, therefore, correct in distributing this fund under the ninth clause of the testator’s will, and therefore the exceptions are dismissed and adjudication confirmed.</p> <p>The exceptant then took this appeal, specifying that the court erred:</p> <p>1. In awarding to George W. Holmes and the children of Harriet Jamison the portion of the trust estate of James P. White given to Aim M. Holmes under the will of Ambrose White, deceased.</p> <p>2. In not awarding the portion of the trust estate of James P. White given to Ann M. Holmes under the will of Ambrose White, deceased, to the surviving children of the said Ambrose White and the children of such of them as might be dead.</p> <p>3. In dismissing the exceptions filed to the adjudication of the auditing judge.</p>

<p>APPEALS BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY.</p> <p>Nos. 150 July Term 1888, 254 January Term 1889, Sup. Ct.; court below, No. 208 June Term 1886, C. P. No. 2.</p> <p>On July 15, 1886, on motion judgment was entered for $2,000, conditioned for the payment of $1,000, on a bond with warrant of attorney dated October 28, 1874, executed by Bait-hazard Cremerieu-x in favor of Mary J. McCauley. On October 28,1886, the defendant, Cremerieux, presented a petition averring the facts sufficiently appealing in the charge of the court below, and prayed for a rule to open the judgment, etc. Depositions having been taken and filed, sustaining the material averments of the petition, on November 27, 1886, the rule to open the judgment etc. was made absolute.3</p> <p>An issue having been framed, under the plea of payment, the cause was called for trial on May 4,1888, when the plaintiff rested after having put the bond in evidence. The defendant, being called to testify in his own behalf, his counsel offered to prove that in March, 1875, the defendant agreed with the plaintiff's agent to deliver possession of the premises (for the hart payment of the purchase money of which the bond in suit had been given), in satisfaction of the bond ; that under the terms of the agreement the transfer of the title was made by means of a sheriff’s sale and sheriff’s deed to the plaintiff, and that there had been no demand or claim made upon the defendant for payment of the bond, from the time of the sheriff’s sale in July, 1875, until July, 1886.</p> <p>Objected to, as incompetent to show a verbal agreement, even though consummated by a sheriff’s sale in pursuance thereof.</p> <p>By the court: Objection overruled; exception.2</p> <p>The testimony of the witness supported the offer.</p> <p>In rebuttal, G. W. Powell, the plaintiff’s agent, testified in denial of the facts stated in the testimony of the defendant. The plaintiff herself was not called.</p> <p>At the close of the testimony, the court, Mri'CHELE, J., charged the jury:</p> <p>This bond was given, accompanied with a mortgage, as part of the jmrchase money of a certain house on South Sixth street. There is no dispute about that fact. Early in the month of November, the defendant, Cremerieux, bought this house from Miss McCauley, the plaintiff, and agreed to pay for it $800 in cash; and this bond with a mortgage for $1,000 was given at the time, as is said by the defendant, (I do not know that there is any dispute about that,) as a temporary arrangement to cover the debt until Mr. Cremerieux could borrow the money from the building association and pay cash. For some reasons, which do not now come into consideration in this case, except so far as they may bear upon the probabilities of the stories of the respective parties, Mr. Cremerieux, through his wife’s dissatisfaction with the house, desired to return the house and cancel and rescind the agreement and relieve himself of the obligation of this bond to jjay $1,000, and was willing, as he tells you, to lose the $300 cash he had paid and some expenses he had been put to on account of the house. He says that under those circumstances he went to Mr. Powell and told him, at several different interviews, the reasons he desired to have this house returned to Miss McCauley, and to be relieved from the payment of this money. He says, Mr. Powell acting for Miss McCauley, agreed to that arrangement, and although Mr. Cremerieux offered to deed back this property again to Miss McCauley, there were objections to that on the ground of the possible condition of the mind of the defendant’s wife, and Mr. Powell said the best way to take the title back would be by sheriff’s sale under this mortgage, or under some other proceedings. In accordance with that agreement, Mr. Powell did proceed on behalf of Miss McCauley, immediately on the expiration of the six months for which the mortgage was drawn, to sell out the property, and by arrangement with Mr. Cremerieux bought it for $100, and the title was thereby reinvested in Miss McCauley. That is the defendant’s case; and it is necessary, as I have said, that the defendant should satisfy you, in point of fact, that such an arrangement was made, not only by Mr. Powell, because Mr. Powell, merely as tire agent to sell the house, did not have any right to make any arrangement to take it back again, but that it was carried out or ratified by Miss McCauley in taking the title under the proceedings in the sheriff’s sale.</p> <p>On the other hand, Mr. Powell denies the whole statement of Mr. Cremerieux. He says, and they both agree as to the point, that some time after the house was bought, early in February or in March, 1875, Mr. Cremerieux became dissatisfied with the house, and desired to return it, but that Mr. Powell, acting for Miss McCauley, refused to rescind the bargain. He said he would stand by the agreement, but would not take the house back; therefore, the defendant said he would have nothing more to do with it; he would not pay any interest, and gave notice that he would not do anything more; and it was on that account, when the six months’ interest became due at the end of that time, he was obliged to sell out the house and recover the title in this way. . . . .</p> <p>I do not know that I need go over the evidence in detail. As I have already said to you the plaintiff’s case depends upon a written instrument. He has here a bond calling for the payment of one thousand dollars, the making of which is admitted by the defendant. It is supported by the testimony of Mr. Powell, and it is not to be set aside unless you are clearly satisfied by the evidence of Mr. Cremerieux and by the corroborating circumstances of all the evidence in the case, that such an arrangement was in point of fact made and was in point of fact carried out. If you believe that there was such an arrangement, and are satisfied that the story which Mr. Cremerieux tells is an accurate account of what did really take place, you will find a verdict for the defendant; unless you are so satisfied, you will find a verdict for the plaintiff for the amount, with interest.</p> <p>The plaintiff requests the court to charge:</p> <p>1. Under the evidence the verdict should be for the plaintiff.</p> <p>Answer: Refused.1</p> <p>The jury returned a verdict in favor of the defendant. A rule for a new trial having been discharged, judgment was entered upon the verdict, when the plaintiff took the appeal to No. 150 July Term 1888, assigning for error:</p> <p>1. The answer to plaintiff’s point.1</p> <p>2. The admission of defendant’s offer.2</p> <p>Subsequently the plaintiff took the appeal to No. 254 January Term 1889, assigning for error the order of the court making absolute the rule to open the judgment, etc.3</p>

1 OF PHILADELPHIA COUNTY. No. 289 January Term 1889, Sup. Ct.; court below No. 852 June Term 1886, C. P. No. 1. On June 28, 1886, James H. Wilson, Jr., by his father and next friend James H. Wilson, brought case against the Pennsylvania Railroad Company to recover damages for personal injuries.

3 OF PHILADELPHIA COUNTY. No. 290 January Term 1889, Sup. Ct.; court below, No. 194 December Term 1888, C. P. No. 3. On November 21, 1888, Benj. F. Teller, executor of tbe will of Andrew Sommer, deceased, brought assumpsit against Jacob H. Sommer, to recover a balance shown to be due the estate of the decedent upon an account stated between the defendant and the decedent in the lifetime of the latter.

<p>APPEAL BY THE DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY.</p> <p>No. 327, January Term 1889, Sup. Ct.; court below, No. 597 December Term 1888, C. P. No. 2.</p> <p>On January 5,1889, Robert Clarke brought assumpsit against William D. Allen to recover on a promissory note for $258.30, payable by the defendant to the plaintiff three months after date. The defendant filed an affidavit of defence averring:</p> <p>“The plaintiff is an insurance solicitor, and, before going into that business, had been in the' employ of the defendant. After going into the insurance business, plaintiff repeatedly solicited defendant to take a policy on his life, which defendant as often declined to do.</p> <p>“ Shortly before the giving of the note in suit, plaintiff again called on defendant and requested him to take a policy, assigning as a reason for Ms persistence that if he could procure before the end of the year a certain amount of applications (which he had nearly made up) he would be entitled to and receive a premium or reward from his company over and above his ordinary compensation or commissions. Defendant still refused to make the application, for the reason, as stated by him to the plaintiff, that he could not spare the necessary money from his business, and that he would not be likely to be able so to do for a long time to come. The plaintiff then offered and agreed not only to advance the money necessary himself, but to see that the policy was kept alive by the necessary payments until defendant’s business should be in such a condition as to enable him to repay plaintiff the amounts so advanced.</p> <p>“After considerable solicitation defendant consented to this and signed the application. The note was given for the amount of the first premium, and simply as a memorandum of the amount advanced, and under the said agreement it was understood by both parties that payment thereof was not to be asked, expected or demanded, until it was possible and convenient for defendant to spare from his business the amount thereof, and any subsequent advances plaintiff might make on account of said insurance.</p> <p>“ The plaintiff, in violation of his agreement, demanded payment of the note shortly before suit was brought, although he did not deny the same, and was informed by defendant that he could not spare the amount thereof from his business and the same was not due under the terms of the agreement; and said inability to pay or spare the money still continues.</p> <p>“Defendant avers that said note is not due under the terms of the agreement, and that plaintiff has further violated said agreement in that he has allowed the policy to lapse and become null and void by not providing for the payment of the second premium on said policy as he agreed to do.”</p> <p>By leave of court a supplemental affidavit of defence was filed by the defendant, averring:</p> <p>“ That the note in suit was given by him to the plaintiff simply as a memorandum, and that it was then agreed between them that payment thereof was not to be demanded or any proceedings taken to collect the same, when it should become due, or until such time thereafter as it should be possible and convenient for defendant to spare from his business the amount thereof. Defendant avers that he refused to sign said note except under the aforesaid agreement; and he further avers that up to the time suit was brought upon said note, he could not spare the amount thereof from his business, and said inability still continues.”</p> <p>On January 26, 1889, a rule for judgment for want of a sufficient affidavit of defence was made absolute, and judgment entered for the plaintiff for $271. Thereupon the defendant took this appeal assigning the order making the rule for judgment absolute for error.</p>

2 OF PHILADELPHIA COUNTY. No. 331 January Term 1889, Sup. Ct.; court below, No. 60 March Term 1887, C. P. No. 2, in Equity.

1 OF PHILADELPHIA COUNTY. No. 389 January Term 1889, Sup. Ct.; court below, No. 606 December Term 1888, C. P. No. 1. On December 22, 1888, Benjamin F. Teller brought assumpsit against James Finnegan, William Boyle and John McGlinn, trading as Boyle & McGlinn, to recover rent alleged to be due from Michael Higgins, for whom the defendants were sureties. The defendants filed an affidavit of defence, the material averments of which appear in the opinion of the Supreme Court.

3 OF PHILADELPHIA COUNTY. No. 392 January Term 1889, Sup. Ct.; court below, No. 505 December Term 1884, C. P. No. 3. On January 31, 1885, Francis Parley brought case against the Philadelphia Traction Company, to recover damages for personal injuries charged to the alleged negligence of defendant company. Issue.

<p>APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.</p> <p>No. 298 January Term 1889, Sup. Ct.; court below, No. 635 June Term 1888, C. P. No. 4.</p> <p>On June 14, 1888, Samuel S. Wylie and four others, his brothers, brought ejectment against Edward C. Mansley, to recover premises on tbe southwest corner of Columbia Avenue and Twenty-third street, in tbe Twenty-ninth ward of tbe city of Philadelphia. Issue.</p> <p>At the trial on November 1,1888, the plaintiffs showed title to the property in dispute in Eunice H. Mansley, by deed dated April 13, 1866 ; and proved, further, that Eunice H. Mansley died, intestate, on March 9, 1887, leaving to survive her Edward Mansley, her husband, and tbe plaintiffs, her half-brothers; that Edward Mansley died on November 25, 1887, and the plaintiffs were the next of kin and heirs at law of said Eunice H. Mansley. The defendant’s possession of the premises in dispute having also been shown, the plaintiffs rested.</p> <p>To meet the title shown by the plaintiffs, the defendant adduced evidence that he was the son, by a former wife, of said Edward Mansley, who had died intestate, leaving the defendant as his heir at law. A number of witnesses were then called who testified 'to casual conversations with Eunice H. Mansley, at different times during her life, in which she stated that the money with which the property in dispute had been purchased was her husband’s money, and that he was the owner of the property. Without other evidence to support his title, the defendant rested.</p> <p>The court, Abítold, J., instructed the jury to render a verdict for the plaintiffs, saying : “ The testimony on the part of the defendant here is not of that character and strength which would warrant a verdict in his favor. There must be other evidence, or we will have to follow the deed.”</p> <p>The jury returned a verdict for the plaintiffs, as directed. A rule for a new trial having been discharged, the defendant took this appeal specifying that the court erred:</p> <p>1. In directing a verdict in favor of the plaintiffs.</p> <p>2. “In admitting the testimony of S. S. Wylie, one of the plaintiffs.” *</p>

<p>APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY.</p> <p>No. 96 July Term 1889, Sup. Ct.; court below, No. 817 December Term 1885, C. P. No. 1.</p> <p>On December 22, 1885, in a qni tam action before a magistrate in the name of the commonwealth, ex relatione Henry Levy, against William L. Brinton, wherein was claimed “ $50 Penalty for Peadling without a License on an Act of Assembly April 2, 1880,” judgment was entered for tbe plaintiff for $50 and costs. From this judgment tbe defendant took an appeal to the Court of Common Pleas. Issue.</p> <p>At the trial on December 31, 1888, it was shown by a witness that he had bought leather goods from the defendant, “ back of Girard College,” in November and also in December, 1885; the defendant had a horse and wagon from which he sold, and he did not sell by public auction or outcry. ' It was admitted that in 1885, the defendant had no license to peddle under the act of April 2, 1830, P. L. 147. The plaintiff then rested. Thereupon, counsel for the defendant moved that a nonsuit be entered. The court, Bkegy, J., refused defendant’s motion, and, defendant offering no evidence, instructed the jury to find a verdict for the plaintiff for the penalty.</p> <p>The jury rendered a verdict for the plaintiff for $50. A rule for a new trial having been discharged, judgment was entered, when the defendant took this appeal, assigning the instruction of the court to find a verdict for the plaintiff as error.</p>

<p>APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY.</p> <p>No. 280 January Term 1889, Sup. Ct.; court below, No. 113 June Term 1888, C. P. No. 3.</p> <p>On March 14, 1888, Annie G. Graham, Sarah L. M. Shoemaker, Harriet M. Shoemaker, and Charles L. Patton brought ejectment against Jolm G. Grugan and William Hinkle, to recover certain real estate. Issue.</p> <p>On December 22,1888, a case-stated was agreed upon by the parties and filed, setting out the facts following:</p> <p>Sarah L. M. Clark died about the year 1840, intestate, seised of a tract of land of which the premises in question are a part. She left surviving her, her husband Lewis Clark, and six ebildren of whom Rebecca M. Clark was one, whereby one sixth of the said real estate vested in the said Rebecca M. Clark subject to the tenancy b}r the curtesy of the said Lewis Clark. The said Sarah L. M. Clark left no personal property.</p> <p>The said Lewis Clark died testate in the year 1868, leaving real and personal property, under which will the said Rebecca M. Clark took nothing, a contest of said will by said Rebecca M. Clark having proved futile.</p> <p>In 1869 the children of Sarah L. M. Clark by mutual deeds of partition divided a portion of the property which had descended to them from their mother, and the premises in question were, inter alia, allotted as the share and portion of said Rebecca M. Clark.</p> <p>On February 6, 1887, the said Rebecca M. Clark died, leaving a will dated January 2, 1847, a copy of which is hereto annexed and marked exhibit A, and the said will was duly admitted to probate by the register of wills of Delaware county on February 23, 1887, wherein and whereby she devised and bequeathed, inter alia, as follows :</p> <p>“ All my estate, both real and personal, that I shall inherit as my portion after my father’s death, I give and bequeath to my beloved cousins Dr. William Gray Knowles, and his wife Martha A., their heirs George G. Knowles, Mary Warfield, Gustavus Warfield, and Louisa Victoria Knowles, their heirs and assigns forever.”</p> <p>The said William Gray Knowles and his wife Martha A. Knowles and George Gray Knowles, Mary W. Knowles, Gustavus W. Knowles and Louisa Victoria Knowles conveyed the property in question to the defendants subsequent to the probate of the will of the said Rebecca M. Clark. The plaintiffs are the heirs at law of the said Rebecca M. Clark.</p> <p>If the court should be of the opinion that the premises in question pass under, the will of the said Rebecca M. Clark, judgment to be entered for the defendants; and if the court be of the opinion that the said Rebecca M. Clark died intestate as to the premises in question, judgment to be in favor of the plaintiffs. Either party to have the right to a writ of error to the Supreme Court.</p> <p>On January 14, 1889, after argument, the court entered judgment for the defendants, without opinion filed, whereupon the plaintiffs took this appeal specifying that the court erred:</p> <p>1. In entering judgment for the defendants.</p> <p>2. In not entering judgment for the plaintiffs.</p>

<p>APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY.</p> <p>No. 268 January Term 1889, Sup. Ct.; court below, No. 291 September Term 1886, C. P. No. 1.</p> <p>On October 9,1886, Edwin O. Murdock brought case against Luther Martin, Jr., and Robert W. Martin, surviving Luther Martin, trading as L. Martin & Co., and on December 6,1886, filed a narr declaring for the recovery of commissions claimed to be due from the defendants upon sales of lampblack under a written contract between the parties. On December 10th, the plaintiff filed a bill of particulars of his claim.</p> <p>After an amended narr and a demurrer thereto had been filed and withdrawn, on October 1, 1887, the plaintiff filed a statement of claim under the act of May 25, 1887, P. L. 271, verified by affidavit and averring as follows :</p> <p>“This action is brought against Luther Martin, Jr., and Robert W. Martin, as surviving partners of the late firm of L. Martin & Go., upon a written contract dated January 24,1884, and made between the said plaintiff and the defendants, together with their partner, Luther Martin, trading as aforesaid, whereof a true copy is hereto annexed, marked exhibit A, and to be taken as a part hereof, for the recovery of the five per centum commission therein agreed to be paid to the plaintiff by the said firm. The said Luther Martin, the elder, died before the bringing of this action, leaving the said two defendants to survive him. The plaintiff has fully performed his part of the said contract, and now claims in this action the said commission, from the date of the said contract, upon all deliveries and sales made by the said firm, as provided in the said contract. The said commission amounts to a large sum, whose precise amount cannot be stated, and is only to be ascertained from the books of the said firm, to which access cannot be had by the said plaintiff; the plaintiff believes and claims that the amount due him and to be recovered in this action, will not exceed the sum of $100,000.</p> <p>Attached to the foregoing statement, as exhibit A, was a copy of a contract between the defendant firm, of the first part, and the plaintiff, of the second part, containing seven paragraphs, certain of which were the following:</p> <p>1. The party of the second part shall have the exclusive sale in the city of Boston, in the state of Massachusetts; in the cities of New York and Brooklyn, in the state of New York; in the cities of Jersey City and Newark, in the state of New Jersey; in the city of Philadelphia, in the state of Pennsylvania; in the city of Baltimore, in the state of Maryland; and in the city of Chicago, in the state of Illinois, and in the places where the purchasers doing business in said cities have factories in which said lampblack is used, of the lampblack manufactured, supplied, or delivered to purchasers by the parties of the first part, for the period of ten years from the date of these presents.</p> <p>2. The party of the second part shall use his best endeavors in effecting the sale of the said lampblack, and during the continuance of this agreement shall offer for sale none other, without the consent in writing of the parties of the first part.</p> <p>3. The party of the second part shall receive from the parties of the first part, and the parties of the first part hereby agree to pay to the party of the second part, upon all deliveries upon sales of said lampblack made by him or them in the places aforesaid, or made by the party of the second part elsewhere, a commission of five per cent upon the net price of said lampblack and its packages, at the place or places to which it is shipped.</p> <p>4. When sales'are once made by the party of the second part in other £>laees than .those specified in the first article of this agreement, to persons to whom the parties of the first part have not theretofore sold within one year preceding the date of the sale made by the party of the second part, then upon all future sales made to said persons, within the ten years aforesaid, whether through the party of the second part or otherwise, the party of the second part shall receive the commission specified in the third article of this agreement.</p> <p>5. When sales are made by the party of the second part to persons in other places than those specified in the first article of this agreement, to whom the parties of the first part have sold within one year preceding the date of the sale made by the party of the second part, then the said party of the second part shall receive the commission mentioned herein, only upon each sale so made by him.</p> <p>On the day the said statement was filed, a rule was taken upon the plaintiff to show cause why he should not file a more specific statement of claim, the defendant alleging the following grounds of insufficiency :</p> <p>1. It does not appear from the said statement upon what the five per cent commission, to recover which suit is brought, is to be calculated.</p> <p>2. The said statement is insufficient, because it does not contain in itself any intelligent statement of plaintiff’s cause of action.</p> <p>3. The said statement is insufficient, because it does not contain any specifications of time.</p> <p>4. The said statement is insufficient, because it does not give the defendants any statement of the amount for which suit is brought.</p> <p>On October 15, 1887, the rule was made absolute, and on October 21, 1887, the plaintiff filed the following additional statement, verified by affidavit and averring:</p> <p>“ 1. That the five per centum commission is to be calculated upon the net price of all the lampblack and its packages at the place or places to which it was shipped and delivered upon sales of the said lampblack made by plaintiff or defendants in the places mentioned in the first clause of the agreement sued on, or by the plaintiff elsewhere. And also upon all sales, whether through the plaintiff or otherwise, under the fourth clause,of the agreement sued on. And also upon each sale made by the plaintiff, under the fifth clause of the agreement sued on.</p> <p>“ 2. That the time within which the said commissions were earned is from the date of the contract sued on until the death of Luther Martin; and thereafter, until the bringing of this suit, upon all deliveries upon sales within the terms of the agreement-sued on, made in closing up the business of the said firm.</p> <p>“3. That the amount for which suit is here brought is ¥50,000.</p> <p>“ 4. That this additional statement is to be read into and as a part of the statement already filed, with the same effect as if repeated there, except as to the amount for which suit has been brought.”</p> <p>On October 24, 1887, another and like rule upon the plaintiff was taken, and like grounds filed therefor. This rule was made absolute on December 13th, and on December 20th, the plaintiff filed the following additional statement, verified by his affidavit:</p> <p>“ The said plaintiff, in obedience to the order of the said court, files the following additional statement of his claim, to be taken as a part of and read with the statement and supplemental or additional statement already on file.</p> <p>“The plaintiff claims the commission of five per centum upon all the orders mentioned in the schedule hereto annexed and marked exhibit A, and also upon all orders sent direct to the said defendants, and not passing through the hands or coming into the knowledge of the said plaintiff, but upon which the said plaintiff is entitled to a commission, under the agreement sued upon. The plaintiff had no connection whatever with the shipments, and cannot now give a detailed list of them; they are well known to the defendants and could be easily furnished from their books, if access thereto would be permitted.</p> <p>“ The plaintiff is advised that he cannot be required to furnish to his adversaries, in advance of the trial, the evidence by which he will establish his claim.”</p> <p>Attached to this last statement was a list of 'sales to certain mercantile firms, the dates and items thereof being given, but without the amounts of the commissions claimed thereon by the plaintiff.</p> <p>On December 21, 1887, still another and like rule upon the plaintiff was taken, -and like reasons filed therefor, and on April 5, 1888, the following order was made : “ Upon consideration of answer of plaintiff to rule of December 21, 1887, filed December 21, 1887, [not printed in paper-books], the court being satisfied of its insufficiency, the court enter a judgment of nonsuit.” Thereupon the plaintiff took this appeal, specifying that the court erred:</p> <p>1. In entering a judgment of nonsuit, although the statement contained a specific averment of facts sufficient to constitute a good cause of action.</p> <p>2. In entering a judgment of nonsuit, though the statement contained as specific an averment of the amount claimed to be justly due, as the circumstances of the case, set forth specially, admitted of.</p>

<p>APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY.</p> <p>No. 353½ January Term 1889, Sup. Ct.; court below, No. 487 December Term 1886, C. P. No. 3.</p> <p>On December 4, 1886, Franklin B. Hazel brought case against the People’s Passenger Railway Co., to recover damages for the killing of a horse by the alleged negligence of the defendant company. Issue.</p> <p>At the trial on October 25,1888, the case shown was in substance as follows : On November 20, 1886, the plaintiff’s horse and carriage were driven to the east side of Fourth street north of Walnut and left standing in charge of a driver. While there, one of defendant’s horse-cars came down Fourth street, and as it turned into Walnut the car jumped the track, about twenty feet from the point where plaintiff’s horse and carriage were. To get the car back upon the track, the driver unhooked the horses from it and hitched them to the rear end, and with aid of bystanders the car was pulled into position. There was somewhat of noise, both in putting the car upon the track and occasioned by passing teams and carriages. About the time the car was replaced upon the track, the plaintiff’s horse suddenly reared in the shafts and fell upon the street dead. One of plaintiff’s witnesses testified that “ the horse was frightened by the approaching car and noise.” There was no post-mortem examination. On the part of the defendant there was testimony that a man had come out of a store near by, and as he stepped into the street the mirror flashed the sun-light into the horse’s eyes.</p> <p>The court, Finletter, P. J., submitted the case to the jury upon the evidence, and answered points presented by the defendant as follows:</p> <p>1. Unless the jury find that the employees of the company knew that the natural and probable consequences of pulling and pushing the car back on the track, in the manner in which it was being done, would be to frighten horses not more than usually nervous, the plaintiff cannot recover.</p> <p>Answer: Refused.1</p> <p>2. Unless the jury find that the car was put back upon the track by the employees of the company, with such unnecessary and excessive noise as to be likely to frighten horses not more than usually nervous, such horses as might be expected to be upon the street in that vicinity, the plaintiff cannot recover.</p> <p>Answer: Affirmed.</p> <p>3. If passers-by voluntarily, and without the request of the employees, took hold of the car to run it back upon the track, and by their noise frightened the plaintiff’s horse, the company is not liable.</p> <p>Answer: Affirmed.</p> <p>4. There is no evidence that the death of the plaintiff’s horse was caused by any negligence or default of the defendant or its employees.</p> <p>Answer: Refused.2</p> <p>5. Under all the evidence in the case the plaintiff is not entitled to recover.</p> <p>Answer: Refused.3</p> <p>The jury returned a verdict for the plaintiff for $250. A rule for a new trial having been discharged, judgment was entered, when the defendant took this appeal, assigning for error:</p> <p>1-3. The answers to defendant’s points.1 to 3</p>

<p>APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO 3 OF PHILADELPHIA COUNTY.</p> <p>No. 360 January Term 1889, Sup. Ct.; court below, No. 98 January Term 1889, C. P. No. 3.</p> <p>The paper-books in this cause showed, only:</p> <p>That a municipal claim had been filed by the city of Philadelphia against a lot on Parrish street, James H. Stevenson & Son, owners or reputed owners, John Drehman, registered owner, for work done and materials furnished by said city, in paving and repairing the sidewalk and re-setting the curbstone in front of said lot, duly assessed and charged by items amounting to “ fifty-two dollars, thirty-three cents, which sum, together with the lawful interest, is claimed as a lien against said premises, whoever may be the owner or owners thereof, agreeably to the several acts of assembly in relation thereto; the said work having been done by the chief commissioner of highways of the city of Philadelphia, in pursuance of the directions contained in the ordinance of the select and common councils of the said city of Philadelphia, approved the seventh day of June, A. D. 1882.”</p> <p>That “upon rule by defendant, the court struck off the lien.”</p> <p>That the court below erred:</p> <p>1. “ In refusing the application for leave to amend.”</p> <p>2. “In striking off the claim.”</p>

<p>1. Although a boy, ten years of age, cannot be held accountable for his own negligence, yet if at the time of being run over by a train, he was a clear trespasser upon the track, a recovery in an action against the railroad company for negligence resulting in his death is impossible, notwithstanding his youth.</p> <p>2. When, in such action, it. is undisputed that the boy was killed in the moving of a train that had been standing upon a public street for three days, that immediately before it started he was lying on his back, upon and across the track, underneath the cars, and there is no evidence that he was endeavoring to cross the track, it is not error to direct a verdict for the defendant.</p>

<p>APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY.</p> <p>No. 319 January Term 1889, Sup. Ct.; court below, No. 602 December Term 1885, C. P. No. 2.</p> <p>On January 29, 1886, Samuel Hazlett brought assumpsit against the Commercial National Bank of Philadelphia. Issue.</p> <p>At the trial on November 19, 1888, it was shown that on Monday, May 19, 1884, the plaintiff, a banker at Washington, Pa., mailed to the defendant bank at Philadelphia, with which he had an account of two years’ standing, his check or draft for §5,000, of that date, on the Penn Bank at Pittsburgh, Pa., drawn by himself to his own order and indorsed, to be placed to his credit. The draft was received by the defendant bank on Tuesday, May 20th. Credit was given to the plaintiff for §5,000 as cash, and the draft was transmitted by the defendant bank directly to the Penn Bank, Pittsburgh. The Penn Bank received the draft on the morning of May 21st, marked it “paid,” charged the amount of it to the account of Mr. Hazlett in that bank, and forwarded to the defendant bank its own check or draft on the National Bank of the Republic, its Philadelphia correspondent. About noon on May 21st, the Penn Bank suspended payment. The check of that bank on its Philadelphia correspondent reached the defendant bank on May 22d, and on presentation payment was refused, when the defendant wired the plaintiff the same day: “We have received from Penn Bank, in return for your cheek, their draft on Bank of Republic, which is not good, which we hold subject to your orders.” On the same day, a letter was written to plaintiff, informing him of the telegram and stating: “ Since this, we have received a telegram from a Pittsburgh bank that they will resume to-morrow (Friday) morning, which we hope will prove correct.” To the telegram, the plaintiff replied by letter the same day as follows: “Your telegram was duly received and contents noted. The Penn Bank is all right; and their draft, as mentioned, will be paid in a day or two. Please hold for a few days and if not honored return it to me.” The draft of the Penn Bank, several times presented at the National Bank of the Republic, remained unpaid. The Penn Bank opened for business on May 24th, and closed finally on May 26th. Other correspondence followed. On June 2d, when the defendant’s statement of account for May was received by plaintiff, showing that the Penn Bank draft was charged to the plaintiff, the latter wrote : “ When you first wrote me in relation to the draft you had received from the Penn Bank, in return for my check on them, I was under the impression that my draft had been returned unpaid; hence I wrote what I did. I therefore decline having anything to do with the draft in question.” The plaintiff subsequently brought this suit.</p> <p>At the close of the testimony, the court, Hake, P. J., charged the jury as follows :</p> <p>The plaintiff had a large account in the Penn Bank of Pittsburgh, having had on deposit there at least $50,000. He also had an account with the Commercial National Bank of this city. On Monday, May 19, 1884, he sent by mail to the Commercial N. Bank a check on the Penn Bank of Pittsburgh, for collection. This was not a new thing. Such a course of dealing, I believe, had been pursued for nearly two years; and in nearly every instance, I believe in every instance, the Commercial N. Bank had collected those checks by sending them by mail to the Pittsburgh bank, and receiving in payment the checks of the Pittsburgh bank on other banks. In this case the check, which was forwarded by the Commercial N. Bank on the 20th, reached the Pittsburgh bank on the morning of the 21st. That bank was on the eve of failure, but still had it in its power to pay the check, if insisted upon. In point of fact, what they did was to return through the mail another check on the Bank of the Republic of this city, to the order of the Commercial N. bank, following the same course which they had often taken previously. Unfortunately, the Penn Bank of Pittsburgh, on which the check was drawn, and which had given its check in payment, was tottering and on the verge of failure, and in the course of the same day it failed. It suspended payment, and, as the result shows, was hopelessly insolvent. As a consequence, the Bank of the Republic, on which the Penn Bank of Pittsburgh had drawn, refused to honor the check when it was presented to them on the succeeding day; that is, on the 22d.</p> <p>It is contended that, owing to the failure of the plaintiff to present the check personally, or through an agent, to the bank at Pittsburgh on the morning of the 21st, while it was still solvent, the defendants are answerable. [Whether the result would have been at all different if they had taken the other course, and had sent the check to the Fort Pitt bank of Pittsburgh and had it presented by them, instead of presenting it through the mail, is a question of fact which is by no means clear to my mind, because it might have been that the Penn Bank, which perhaps had its own reasons for not wanting to pay out any more money that morning than it could avoid, would, even if the check had been presented at the counter of that bank, have said, “We have always paid these drafts, as our books will show, by checks on Philadelphia on the Bank of the Republic, and we will pursue that course now, and will give you such a check.” Or, it might have been that the Fort Pitt bank would have put the check in the clearing-house for collection; in which case, as settlement would not have been made until the close of the day, and the Penn Bank would have failed before the day was out, they would have got nothing, neither the check nor anything in its place.] 1</p> <p>But, however that may be, 1 think that under the rule of law, [an agent who is intrusted with a check for collection upon a bank which is at the moment solvent, although it may become insolvent subsequently, and who, instead of presenting the cheek and demanding the money, thinks fit to take a draft upon any other bank, or any other person, becomes answerable if the principal chooses to hold him for the amount.] 2 That is to say, [it is the right of the principal under such circumstances, to say, “ You might have insisted on payment; you have chosen to take a draft; I do not know with certainty that you would have got the money, but it was your duty at least to ask for it, and if you had asked, presumably it would have been paid. You have deviated from the strict rule of business, and I will hold you answerable.”] 3 Such would be the case where a draft was presented, and a check taken therefor instead of money. It would be equally the ease, if the bank should take stocks or anything else instead of money.</p> <p>But, on the other hand, [where an agent has acted on behalf of his principal, and has gone outside of the strict letter of Ms instructions, meaning for the best, and taking a course which he had been pursuing previously, with no intentional negligence on his part, it is for the principal to say whether he will accept or decline.]4 [It is the duty of the agent to promptly inform his principal of what has been done, and then it is the duty of the principal to answer unequivocally whether he objects or assents. If the principal, upon being informed of what the agent has done outside of his authority, is silent; if, instead of saying, as he should say, to the agent promptly: “You have exceeded your instructions, or you have deviated from them, and consequently I hold you answerable, and this thing which you have taken for me I wi]l not have,” — if he is silent, that is evidence of ratification or acquiescence.] 5 You need not, however, consider that question here. I am merely stating it by way of illustration. Because in this case there was an answer.</p> <p>[Information was communicated by the agent] 6 promptly on the very day on which the true state of the case became apparent; that is, on the day following the day on which the bank at Pittsburgh had forwarded the check of the Bank of the Republic here. The defendants stated what they had done, and received an answer; and [the question is, whether that letter did not, taken in connection with the other circumstances, convey all the requisite information, and whether the reply was not a ratification or adoption of the act which is now challenged.] 7 [The letter seems to me to be unequivocal.] 8 It is in very few words: “We have received from the Penn Bank, in return for your check, their draft on the Bank of the Republic, which is not good, and which we hold subject to your order.” In other words, [it informs the principal] 9 that, instead of money, the defendants had got a check for money on another bank in this city, which check was not good, [but which they held for their principal.] 10 That is to say, [it was for him to say what they should do.] 11 If, as has been contended, it was not a request for instructions, it was a statement that they held it [for the principal, and subject to Ms instructions.] 12 The plaintiff replied: “ Your telegram is duly received and contents noted. The Penn Bank is all right, and the draft will be paid in a day or two. Please hold for a few days, and if not honored return it to me.”</p> <p>[It may in some cases seem hard that by ratifying what his agent had done outside of the line of business, the principal should bind himself as if it had been done within the line and ordered by him, but the reasons are these: In the first place, where a man is informed that something has been done which is not strictly within the line of his instructions, and does not dissent, but assents, it may be supposed that his assent was from some course of business which was well understood, and which he had no objection to. It is evidence of that, though by no means conclusive.] 13 [Moreover, if, when the principal is informed, he does not dissent, but approves, it may be taken for granted that in view of all the circumstances he holds it more to his advantage that the thing should stand than that it should be undone; and if so, as he gets the benefit, he cannot escape if it turns out that the inconvenience preponderates, and repudiate what he has accepted.] 14</p> <p>[There may, perhaps, have been some reason why just at that moment the plaintiff did not desire that a peremptory demand for cash should be made on this Pittsburgh bank. Tire Commercial N. Bank held a check drawn by the Penn Bank of Pittsburgh on the Bank of the Republic in this city, which had been dishonored. It was in their power, by returning the draft and making a demand for the money, to put the Penn Bank in the position of a defaulter if it was not paid. And what is more, when the Penn Bank a day or two afterwards endeavored to get upon its legs, and for a few days held its head above water, a demand for $5,000 would have been, perhaps, one of those straws which are said to break the camel’s back.] 15 [The plaintiff, whether from entire confidence in the Penn Bank, or from whatever other cause, was obviously indisposed to press the Penn Bank at that particular juncture. He did not demand the $45,000 or $50,000 which he had in that bank when, after a short suspension, they again resumed payment for a few days, and it may be that he had reasons for not doing so. But, be that as it may, his instruction to hold the draft seems to me to be an instruction not to present it to the bank again and insist upon payment.] 16</p> <p>There is another aspect of the case. [Had the plaintiff written at once that his orders had been violated, and that the defendants however innocently, had mistaken their duty as agents, it would have been their right to protect themselves. They would then have taken this check or sent it to Pittsburgh, and on the Friday afternoon that the Penn Bank resumed payment, or on the Saturday, or the following Monday, while they continued to pay all dishonored drafts presented, they would have got their money. The moment the plaintiff said, “ I disavow this check; you must do the best you can with it; ” or, “ You may hold itj but you must answer to me for the $5,000,” it would have been clearly the duty of the Commercial N. Bank to take a course that would protect its stockholders. But, the assurance that the Penn Bank would probably be all right in a few days, would naturally be understood as conveying the idea that the plaintiff did not wish the defendant to pursue such a course.]17</p> <p>[If you find that the plaintiff distinctly understood that the defendant had received a draft from the Penn Bank in payment of the plaintiff’s draft, and that the defendant, instead of getting money had got a check, which was dishonored; that it was in his power to declare that he would have nothing to do with the check or accept it as his own; and that he directed them to hold the check as his, and as if he had originally authorized them to take it, you should find a verdict for the defendant.] 18 If you find the other way, namely, that they did not inform him, and he did not so reply, then your verdict should be for the plaintiff.</p> <p>A juror: In case the check had gone through the clearinghouse and had been dishonored, would it have been honored if the bank resumed ?</p> <p>By the court: I’am inclined to think it would have been honored when the bank resumed.</p> <p>Mr. Johnson: The jury also wish to know whether it was our duty, under the letters which passed, to send the draft on the Bank of the Republic out to Pittsburgh to be collected, instead of coming to the Bank of the Republic as was actually done.</p> <p>By the court: [It was the duty of the defendants to present the check to the Bank of the Republic, which they did. When it was not honored, it was their duty to inform their principal and hear what he would say, which they did. When he replied, it was their duty to follow his instructions. If he told them to hold it, they complied with his instructions in not sending it to Pittsburgh.] 19</p> <p>The jury returned a verdict in favor of the defendant. Judgment having been entered, the plaintiff took this appeal, specifying that the court erred :</p> <p>1. In not directing a verdict for the plaintiff.</p> <p>2. In submitting any question of fact to the jury.</p> <p>8. In submitting to the jury the construction of the plaintiff’s letter of May 22, 1884.</p> <p>4-19. In the portions of the charge embraced in [ ] 4 to 19</p>

<p>APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.</p> <p>No. 424 January Term 1889, Sup. Ct.; court below, No 322 March Term 1884, C. P. No. 4.</p> <p>On May 3,1884, “ Samuel J. Sargent and Belle C. Sargent, his wife, who was formerly Belle C. Fuller, in right of the said Belle C. Sargent, trustee,” brought case against Alfred M. Fuller. On June 28, 1888, the plaintiffs filed a statement of claim averring in substance :</p> <p>That prior to December, 1879, the plaintiff, then Belle C. Fuller, the wife of James Fuller, was the owner of 1,300 shares of the capital stock of the Algonquin Company, a mining organization, said shares standing on the books of the company in the name of Belle C. Fuller, trustee; that on December 2, 1879, Alfred M. Fuller, the defendant in this case, holding two several judgments against said James Fuller, aggregating in amount over $28,000 caused to be issued thereon, under §§ 32, 33, act of June 16, 1836, P. L. 767, processes in the nature of attachments, under which writs the sheriff attached said 1,300 shares of stock, summoning the said corporation and said Belle C. Fuller as garnishees; that afterwards, upon a trial of said attachment proceedings in open court, verdicts were rendered and judgments entered in both of them in favor of the garnishees, which judgments were standing as the final judgments of the court; that at the time of issuing said attachments, the plaintiff therein, the defendant herein, well knew the fact that the shares of stock attached were the property of the plaintiff herein, and caused said attachments to be issued maliciously and for the purpose of preventing a sale and transfer of said stock upon the books of the company; that at the time said attachments were executed the stock had a selling value of $30 per share, and in consequence of the attachments the company refused to transfer the said shares, and the owner was thereby hindered from selling and disposing of the same; that before the proceedings upon said attachments were finally determined, to wit, on February 12, 1883, the said stock had become utterly worthless and was without an}»- value whatever, and the plaintiff thus sustained damage in the sum of over $39,000, for which this suit was brought. The defendant pleaded not guilty.</p> <p>At the trial on January 7, 1889, the plaintiff put in evidence the records of the attachment proceedings, and evidence of the value of the stock when the attachments were served, and that it was worthless when the proceedings thereon were terminated, and, without showing malice on the part of the plaintiff, or that the averments of his affidavit upon which the writs were issued were wilfully untrue, the plaintiff rested. Thereupon, on motion of the defendant, the court entered judgment of nonsuit, with leave, etc.</p> <p>Subsequently, upon argument before the court in banc, a rule to show cause why the judgment of nonsuit should not be vacated was discharged, when the plaintiff took this appeal, assigning the order entering said judgment and the order discharging said rule for error.</p>

<p>1. Where the defendant in a bill in equity has conceded the jurisdiction, so far as may be implied from his failure to demur, and his subsequent acquiescence in tire reference of the cause upon answer and replication to a master, after such reference, involving heavy costs, the case should be very clear to justify setting the proceedings aside for want of jurisdiction.</p> <p>2. The plaintiff, an assignee for creditors, finding among the assets a paper reciting that defendant had received certain notes of the assignor, the proceeds to be used in the purchase of stock, the stock to be sold only by consent, and the profits or loss to be shared by the parties, his bill filed for the sale of the stock and for an account, was properly disposed of by final decree after the repoi't of a master upon the merits.</p>

<p>1. In an application to open a judgment entered by confession in favor of the assignee of a bond, if it appear that the assignee advanced money to the obligee upon the security of the bond, it is no ground for relief that it was given by the defendant without consideration, but for the purpose of enabling the obligee to raise money upon it.</p> <p>2. Where, upon insufficient grounds shown, an erroneous order has been made opening a judgment to let the defendant into a defence, which order is reversed, the subsequent proceedings upon the issue awarded, though terminating in a verdict and judgment for the defendant, must also be set aside: [See Scott’s App., 123 Pa. 155.]</p>

1 OF PHILADELPHIA COUNTY. No. 36 July Term 1889, Sup. Ct.; court below, No. 271 March Term 1887, C. P. No. 1. On April 2, 1887, J. F. Brown brought assumpsit against E. H. Delk and A. T. Delk, trading as E. H. Delk & Co. Issue. At the trial on October 10,1888, it was shown that, in 1886, the plaintiff consigned to the defendants, commission merchants, a cargo of wood to be sold on commission.

1 OF PHILADELPHIA COUNTY. No. 63 July Term 1889, Sup. Ct.; court below, No. 697 December Term 1884, C. P. No. 1. On December 29,1884, John Reddington brought case against the Philadelphia Traction Company, to recover damages for personal injuries. Issue.

<p>1. Before a mere usage of trade, or a custom, can become so firmly imbedded in the law as to govern the rights of parties, it must be so certain, uniform and notorious as probably to be known to and understood by the parties entering into the contract: Corcoran v. Chess, 131 Pa. 356.</p> <p>2. Such usage or custom cannot ho established by single, isolated instances ; it should he reasonable, continued and acquiesced in by all acting within its operations: Copo v. Dodd, 13 Pa. 33; McMasters v. Railroad Co., 69 Pa. 374: so established, parties maybe presumed to have acted with reference to it.</p> <p>3. A rule of the Bricklayers’ Association, to apply to work a method of “constructive measurement,” varying “from month to mouth, almost from day to day,” cannot be read into a written contract silent as to the method of measurement, without evidence of actual knowledge and recognition of it by the parties.</p> <p>4. An engineer and surveyor testifying to thirty years experience and that he was frequently called upon to measure work such as that in controversy, it was error to refuse an inquiry of him what knowledge he had, if any, as to the alleged method of “ constructive measurement.”</p>

<p>The board of inspectors of the Philadelphia county prison, having the management of the internal affairs thereof, appointing a superintendent, matron and physician, etc., and serving without compensation, are not responsible as jailers for the escape of an insolvent surrendered to the prison under the terms of his bond.</p>

<p>APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY.</p> <p>No. 134 July Term 1889, Sup. Ct.; court below, No. 390 December Term 1888, C. P. No. 3.</p> <p>On November 3,1887, John Devlin brought trespass against Joseph Snellenburg, Nathan Snellenburg and others, trading as N. Snellenburg & Co. Issue.</p> <p>At the trial on April 1,1889, it was made to appear that the defendants, who were clothiers in the city of Philadelphia, had employed one Wm. D. Johnson to paint their advertisements upon blank walls and other spaces in the city ; that in his employment said Johnson had painted an advertisement for them upon the wall of the property belonging to the plaintiff, which at the time was in the possession of a tenant under a three years lease, and that the tenant authorized the painting of the sign in consideration of $6 paid to her by the defendants. Testimony was introduced by both parties as to the cost of obliterating the advertisement, the necessity of painting it out and of subsequently repainting the wall, etc., and whether the advertisement could be washed out with an application of caustic soda and water.</p> <p>The cause was submitted to the jury upon the evidence, the court, Finletter, P. J., saying:</p> <p>However, it is your duty to consider all the evidence in the case, and to give the proper weight to that which strikes you as evidence upon which you can rely. [No matter what conclusion you may come to in this case, the plaintiff is entitled to a verdict.] 8 The only question is, what will restore this wall to its original condition ; that is, what will it cost to put it in as good condition as before the paint was put upon it ? That, of course, you must determine from the evidence and the importance that you give to the witnesses on both sides.</p> <p>The defendants request the court to charge the jury:</p> <p>1. That if the jury find from the evidence that the wall was painted under the authority of the tenants in possession, then the action for such injury will be only against the tenants, and the verdict should be for defendants.</p> <p>Answer: Refused.1</p> <p>—The jury rendered a verdict for the plaintiff for $250. A rule for a new trial having been discharged, judgment was entered, when the defendants took this appeal, assigning for error:</p> <p>1. The refusal of defendant's’ point.1</p> <p>2. The portion of the charge embraced in [ ] 2</p>

2 OF PHILADELPHIA COUNTY. No. 138 July Term 1889, Sup. Ct.; court below, No. 81 December Term 1887, C, P. No. 2. To the number and term of the court below, William S. Ringgold brought assumpsit against Courtland Rhodes and William Rhodes to recover commissions for the negotiation of a loan.

3 Of PHILADELPHIA COUNTY. No. 148 July Term 1889, Sup. Ct.; court below, No. 193 March Term 1888, C. P. No. 3. On February 16, 1888, Samuel B. Bunting and others, executors of Henry B. Bunting, deceased, brought ejectment against Charles A. Lutz and others, to recover a lot of ground on the west side of Eleventh street, sixteen feet by thirty-eight feet. Issue.

3 OF PHILADELPHIA COUNTY. No. 154 July Term 1889, Sup. Ct.; court below, No. 914 December Term 1886, C. P. No. 3, in Equity.

<p>APPEAL BY C. H. BENNETT ET AL. FROM THE ORPHANS’ COURT OF PHILADELPHIA COUNTY.</p> <p>No. 107 January Term 1890, Sup. Ct.; court below, number and term not given.</p> <p>On November 4, 1889, the account of Charles H. Bennett, administrator of the estate of Henry K. Bennett, deceased, was called for audit before Penbose, J., when counsel of H. L. Gaw & Co., as creditors of the estate, moved that the claimants be allowed to have their claim determined in the Court of Common Pleas No. 3, where a suit was then pending for the recovery of judgment for the amount due them. The motion was resisted by the accountant.</p> <p>It was found by the auditing judge that the decedent died on September 11, 1887, domiciled in New Jersey; that the letters of administration to the accountant were ancillary only; that all the claims against the estate on the part of creditors in Pennsylvania had been fully satisfied, except that of H. L. Gaw & Co., which was upon a note made by the decedent to their order, at six months from August 29,1881, for $5,373.89; that H. L. Gaw & Co. had brought suit upon the note in said Court of Common Pleas on February 20, 1888; that it was alleged on the part of the estate, as a defence,, that the note had been given for an illegal consideration, to wit, a balance charged against the decedent in his lifetime upon a stock-gambling transaction; that there had been two trials of the cause in the Common Pleas, in the first of which there had been a verdict for the plaintiffs on a binding instruction to the jury, which verdict was subsequently set aside by the court in banc, and in the second trial the jury had failed to agree.</p> <p>The auditing judge, considering Hammett’s App., 83 Pa. 392, cited by the accountant, ruled that the power of the Orphans’ Court, in the exercise of a sound discretion, to suspend proceedings in distribution for a reasonable time, and to a reasonable part of the estate necessary to satisfy the demands of creditors, according to §§ 39, 40, act of February 24, 1834, P. L. 81, pending a proceeding in a common-law court to establish a claim, was expressly recognized by the case referred to; that the defence set up was one as to which an issue might well be demanded, and that it did not appear that the delay in reaching a result in the Common Pleas was due to any laches on the part of the plaintiffs. Therefore, the amount of the note with interest being nearly $8,000, the auditing judge directed that $9,000 should be withheld from distribution, to be invested by the accountant and held to await the determination of the proceedings in the Common Pleas, or the further order of the court, the balance of the fund, to wit, $5,678.04, to be remitted to the administrator of the domicile.</p> <p>To the order of distribution thus made, the accountant, on behalf of himself, as administrator, and of the heirs of the decedent, excepted, alleging that the auditing judge erred in directing the withholding of said $9,000, for the purpose stated, and in refusing to distribute the whole fund in the hands of the accountant among those entitled to it, according to law. These exceptions haying been argued before the court in banc, they were dismissed, FERGtrsasr, J., saying:</p> <p>“Whether the auditing judge should have considered and passed upon the claim in this case, was a question which appealed solely to his discretion. He had the right to do so, had he desired; but, as it appeared that a suit for the same cause of action had twice been tried in the Court of Common Pleas, and that one of these trials had resulted in a disagreement of the jury, it was pre-eminently a case to be settled in that tribunal. Under the circumstances, a request for an issue, if made, could not well have been infused. As the ease is still on the trial list in the Court of Common Pleas, no unreasonable delay in the settlement of this estate is likely to occur by reason thereof. The exceptions are dismissed, and the adjudication confirmed.”</p> <p>Thereupon, the exceptant took this appeal, specifying that the court erred in overruling the exceptions filed to the adjudication, etc.</p>

4 OF PHILADELPHIA COUNTY. No. 163 July Term 1889, Sup. Ct.; court below, No. 488 December Term 1888, C. P. No. 4. On December 12, 1885, William Stone brought trespass against the Pennsylvania Railroad Company, to recover damages for personal injuries received. Issue. At the trial on May 15, 1889, the plaintiff introduced testimony claimed by him to establish the following facts: The plaintiff was in the employ of the Atlantic Refining Company.

1 OF PHILADELPHIA COUNTY. No. 167 July Term 1889, Sup. Ct.; court below, No. 346 December Term 1888, C. P. No. 1. On December 15, 3888, R. A. Malone and others, trading as R. A. Malone & Sons, brought assumpsit against the city of Philadelphia, filing a statement of claim for tbe recovery of a balance of $3,100 alleged to be due and unpaid to tbe plaintiffs from tbe defendant upon a completed contract for tbe construction of tbe Schuylkill river bridge upon Market street.

<p>1. For personal injuries received by the plaintiff. when falling upon an icy street and striking his hand upon the spear-pointed railing about an area-way, a lawful structure upon a sidewalk, the owner of the property to which the area-way belongs is not responsible in damages.</p> <p>2. Error cannot be assigned to the refusal of a motion for judgment of nonsuit. And a single specification embracing more than one point, —for example, one assignment alleging error in the answers to several points for instruction, is not in accordance with the Rules of Court: Rule XXII.</p>

3 OF PHILADELPHIA COUNTY. Nos. 6, 7 January Term 1890, Sup. Ct.; court below, Nos. 124, 125 September Term 1885, C. P. No. 3. On December 21, 1885, an amicable action, as in a scire facias sur municipal claim, was begun by the city of Philadelphia against the Provident Life & Trust Company, Eliza Bouvier, et al., registered owners. Issue.

<p>APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.</p> <p>No. 13 January Term 1890, Sup. Ct.; court below, No. 77 December Term 1887,' C. P. No. 4.</p> <p>On December 10, 1887, William R. Mitchell, by his next friend William C. Mitchell, brought trespass against the Philadelphia, Wilmington & Baltimore Railroad Co., to recover damages for personal injuries. Issue.</p> <p>At the trial on January 17, 1889, it was shown in the case of the plaintiff, as was claimed from the testimony, that he was nine years and six months old on May 13,1886, and lived with his parents on the line of the defendant’s railroad, at Morton, Delaware county; that on the day stated, while •walking on the ends of the ties of one of the tracks, near his- home, he was knocked down and run over by two empty flat cars which were moving by their own momentum, there being no engine attached; that the cars were in charge of a brakeman, no warning of any kind was given, and the brakeman was looking in his direction.</p> <p>At the close of the plaintiff’s testimony, on motion of the defendant, the court, Arnold, J., ordered that judgment of nonsuit be entered, with leave, etc. A rule to show cause why the judgment should not be vacated having been discharged, after argument before the court in banc, the plaintiff took this appeal, assigning the entry of said judgment and the refusal to vacate it as error.</p>

<p>An affidavit of defence to an action for rent on a lease renewed from year to year with a provision for three months’ notice of an intention of the lessee to quit, averring an unavailing effort to find and serve the lessor with notice, at his place of business, on a clay exactly three months prior to the end of the year, the sending by mail and receipt of the notice two days thereafter, a delivery and unconditional acceptance of the keys of the premises at the house of lessor’s authorized agent, a payment of all rent due and an abandonment of the premises before the expiration of the then current year, was sufficient to prevent summary judgment.</p>

<p>(a) A company issued a policy of insurance against loss by fire on brick and frame buildings and the machinery and tools therein, occupied and used by the plaintiff, a manufacturing company, having no title, legal or equitable, to the real estate, and no interest in it except as lessee for a term of years.</p> <p>(b) The policy contained a provision that it should be void, if the assured was not the sole and unconditional owner of the property, or if the buildings stood on ground not owned in fee-simple by the assured, or the interest of the assured was not truly stated, unless consent in writing was indorsed on the policy by the company:</p> <p>1. No representation of any kind upon the subject of the title of the assured to the real estate having been made, the policy, written upon the knowledge of the company’s agent, was to be interpreted as made in view of the facts of the case, and as intended to cover such interest as the assured had therein.</p> <p>2. That interest was a leasehold only, but an insurable interest; and presumably it was the interest which an application, if one had been made, would have shown; wherefore, the policy was not void for the alleged reason that an entire premium was paid, and the assured had no title to the buildings, a portion of the property covered by the insurance.</p>

<p>APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS Of LANCASTER COUNTY.</p> <p>No. 124 January Term 1889, Sup. Ct.; court below, No. 14 September Term 1885, C. P.</p> <p>On August 14, 1885, Jeremiah M. Hahn brought ejectment against H. A. Bealor, executor of the will of Rebecca Hahn, deceased, for a lot and a dwelling thereon, situated in the borough of Manheim. Issue.</p> <p>At the trial on November 29,1886, a verdict was rendered for the plaintiff, with six cents damages and six cents costs. A judgment entered thereon was afterwards reversed by the Supreme Court, with an order for a new venire: Bealor v. Hahn, 117 Pa. 169. At the second trial on August 27, 1888, the plaintiff, after having shown a prima facie title in himself to a curtesy estate in the property described in the writ, as surviving husband of said Rebecca Hahn, who died on January 2, 1885, and that the defendant was in possession, rested.</p> <p>The defendant, in his case in chief, presented testimony tending to prove that, in the spring of 1883, the plaintiff left his wife Rebecca Hahn, and thereafter resided with his daughter-in-law, Mrs. Harry Hahn, in another house in the same town. Mrs. Julia Leber testified for the defendant, under objection, that immediately after the separation between the plaintiff and his wife, the latter came to the house of the witness, informed the witness that the plaintiff had left her without her consent, and cried bitterly, and seemed very much distressed by his leaving her. The witness was then asked to state whether or not her condition of distress continued after that occasion.</p> <p>Objected to by plaintiff’s counsel.</p> <p>Q. Are you able to remember how soon after that occasion you have described, when she came to your house, how soon after that you saw her again ? A. I can’t tell you. I may have seen her every week; I did see her.</p> <p>Q. After that first interview? A. Yes, sir. Except when I was out of town.</p> <p>By the court: The witness not being able to fix the second time when she saw her, after that interview, other than that she saw her every week when not. out of town, we overrule the offer; exception.1</p> <p>The defendant put in evidence the record of a prosecution against Jeremiah M. Hahn, in the Court of Quarter Sessions of Lancaster county, for the desertion of his wife, Rebecca Hahn, wherein on September 6, 1884, the court sentenced said Jeremiah M. Hahn to pay the costs of prosecution, and to pay to his said wife for her maintenance the sum of $7 per week until further order.</p> <p>In rebuttal, the plaintiff called H. C. Gibble, and made the following offer:</p> <p>Mr. Brown: I propose to prove by this witness that he knew Mrs. Jeremiah M. Hahn, and that in her domestic relations she was unkind to Mr. Halm; that after Mr. Hahn had left, she went to him, the witness, as a justice of the peace in Manheim, and he told her that he thought she had not done right; she at once admitted it, and said that she had not treated her husband as she ought to have treated him. All this was prior to September 6,1884.</p> <p>Objected to, by the defendant’s counsel.</p> <p>By the court: Offer admitted; exception.2</p> <p>This witness and others then testified to acts and admissions of Mrs. Hahn, their testimony, the substance of which is given in the opinion of the Supreme Court, infra, tending to show that it was her nature to scold and be cross; that she would speak roughly and unpleasantly to her husband; that they were both inclined to be quarrelsome, and quarrels between them were not infrequent; that they occupied different sleeping-rooms and did not often take their meals together, and she would come to the table when the plaintiff and his son were eating, “ slam down the plates that the victuals were in, and then go out of the house; ” and that after the separation between them she admitted that she had not treated him as she should have done.</p> <p>Charles Hahn, a son of the plaintiff and the deceased, testified that on one occasion, when the witness and his father were sitting at the breakfast table, his mother said to them, “ I might just as well poison you, and then you would both be but of the road,” in consequence of which the witness quit living at home. The witness was then asked to state whether or not, in consequence of what his mother said on that occasion, he was afraid that she would poison him.</p> <p>Objected to, by defendant’s counsel.</p> <p>By the court: Objection overruled; exception.3</p> <p>The witness answered, “1 was.”</p> <p>Samuel Plasterer testified that he lived with and worked for the plaintiff prior to the separation between Mr. and Mrs. Hahn; that on one occasion, when the witness, by direction of the plaintiff, had brought out the plaintiff’s carriage to take Mrs. Hahn out for a drive, she declined to go, saying that her husband’s horses should not pull her any more, and that soon after, when the witness went to feed the horses, she said to him, “ It is a wonder Mr. Hahn don’t take the horses away, for the horses might get poisoned.”</p> <p>Q. Did one of the horses die there, shortly after that, suddenly ?</p> <p>Objected to, by defendant’s counsel.</p> <p>By the court: Objection overruled; exception.4</p> <p>A. Yes, sir.</p> <p>On cross-examination the witness denied that he had ever driven the carriage out, when the plaintiff and Mrs. Harry Hahn were riding in it together.</p> <p>The plaintiff having closed his testimony in rebuttal, the defendant, H. A. Bealor, took the stand and his counsel made the following offers:</p> <p>Defendant offers to prove by witness, H. A. Bealor, that he was present at the hearing in the desertion case on September 6, 1884, and that Jeremiah M. Hahn testified in his own behalf, in the presence of his wife, and that he said nothing of any fear of his wife poisoning him, or that she had ever said anything about poisoning him.</p> <p>Objected to, by plaintiff.</p> <p>By the court: Objection sustained; exception.5</p> <p>Defendant offers to prove by H. A. Bealor, to contradict Samuel Plasterer, that he saw him driving out Mr. Hahn and his housekeeper, Mrs. Harry Hahn, several times before and after the separation of Mr. Hahn from his wife.</p> <p>Objected to, by plaintiff.</p> <p>By the court: Objection sustained; exception.6</p> <p>At the conclusion of the testimony, the court, PATTERSON, J., charged the jury in part as follows:</p> <p>What is there to keep this plaintiff out of his tenancy by the curtesy? The act of assembly has made wilful neglect or refusal to provide for his wife, or wilful and malicious desertion for one year or upwards, previous to the death of the wife, a reason why he should not enjoy that right. This act of assembly was passed as late as 1855. Before that, there was no prevention of the recovery by a husband, if his wife died possessed of and owning real estate. . . .</p> <p>The act first' provides that neglect or refusal to provide for the wife, for one year or upwards, may deprive the husband from obtaining his tenancy by the curtesy. You will observe that, in this case, no evidence except the record of the Quarter Sessions court of Lancaster county has been given in evidence on that point, to show a want of maintenance or provision for the wife. And, therefore, the act of assembly provides that another dereliction of the husband may deprive him of his tenancy and prevent him from recovering in this action; namely, wilful and malicious desertion, as we have just read to you, desertion of the wife for one year or upwards previous to her death. [If this is shown properly and clearly, namely, wilful and malicious desertion, then the plaintiff, the husband, cannot recover in this action. But is that shown to your satisfaction in this case ? That should be made out, however, to appear to your entire satisfaction.] 7 You cannot find it from mere supposition; you must find it from the evidence in the case. If it does not so appear to your satisfaction, then you must find a verdict in favor of the plaintiff, the husband.</p> <p>Now, did Mr. Hahn, the plaintiff, leave the domicile of his wife Rebecca, wilfully and maliciously ? The law says, the intent to desert wilfully and maliciously is manifested, when without cause or consent either party, that is, either the husband or the wife, withdraws from the residence of the other. Was there a wilful desertion on the part of Mr. Hahn, the husband, in the spring of 1883 ? Did he leave his habitation and his wife in the spring 1883 wilfully and without cause? You must remember the evidence; we shall not repeat it, because it is brief and has been submitted to you to-day. If you find from the evidence that the plaintiff, Hahn, left wilfully and without cause, then malice must be presumed, because the act says, wilfully and maliciously. If you find from the evidence that lie left without cause, then malice must be presumed, and you would have, therefore, desertion wilful and malicious.</p> <p>The plaintiff, Hahn, in this case, under the act of 1855, as the Supreme Court have said to us, has the burden of proof on him to show that he had reasonable and lawful cause for deserting her, for leaving tier. Has he shown you that by the proof? That question is given to the jury, and we submit that question as a question of fact to you to determine. Remember that separation, the Supreme Court says, is not desertion. [Desertion is the actual abandonment of matrimonial cohabitation, with an intent to desert, wilfully and maliciously persisted in without cause for two years.] 8</p> <p>The defendant was permitted to call witnesses as tc the declarations of Rebecca Hahn on the evening of the day on which Jeremiah M. Hahn' left the house in which he and his wife resided. The defendant called witnesses to give evidence of other facts. The evidence you must remember. It is not voluminous; it is not extensive; you can recollect it all. The plaintiff called witnesses, also, to show that he did not wilfully and maliciously desert or leave his wife. Has he satisfied you by evidence, satisfied you that he had a good and reasonable cause for such desertion, for such leaving the domicile of his wife? The whole question, the whole case turns on that question..... And if you find from all the evidence that the plaintiff, Jeremiah M. Hahn, had a reasonable and lawful cause for such leaving his wife, then your verdict will be for the plaintiff. If you do not find that fact, then your verdict should be for the defendant.....</p> <p>The court is requested by the defendant to charge the jury:</p> <p>1. That if a husband, without reasonable cause and against the consent of his wife, refuses cohabitation with her, and separates himself from her and her habitation for one year and upwards prior to her death, it is such a desertion as works forfeiture of his curtesy in her real estate.</p> <p>By the court: We answer, yes.</p> <p>2. That the reasonable cause which would justify the husband in leaving his wife, is such cruel and barbarous treatment on her part, as would sustain his application for divorce.</p> <p>By the court: We answer, yes.</p> <p>3. If wilful desertion is proved in this case, to the satisfaction of the jury, the fact that the plaintiff sent his wife remittances for her support, would not relieve him from the forfeiture of his curtesy in her real estate.</p> <p>By the court: We say, yes, to that.</p> <p>4. If the jury believe the uncontradicted evidence that the plaintiff left his wife without her consent, in the spring of 1883, and never returned, the verdict must be for the defendant, as the testimony of the plaintiff is nob sufficient to show a legal cause for such leaving.</p> <p>By the court: The court denies that point. We refuse to affirm that point. The question is for the jury.10</p> <p>The plaintiff has submitted the following points:</p> <p>1. If the jury believe that Jeremiah M. Hahn did not wilfully and maliciously desert his wife or fail to provide for her for the period of one year or more, immediately preceding her death, the verdict must be for the plaintiff.</p> <p>By the court: We answer that in the affirmative. We say, yes.</p> <p>2. If the jury believe that Jeremiah M. Hahn had reasonable and lawful cause for leaving his wife, the verdict must be in his favor.</p> <p>By the court: We answer, yes.</p> <p>3. If the testimony in the case, as given by the witnesses, is believed by the jury, the plaintiff had reasonable cause to leave his wife and the verdict must be in his favor.</p> <p>By the court: We say yes, if you believe the testimony of the plaintiff’s witnesses.11</p> <p>The verdict of the jury was in favor of the plaintiff, with six cents damages and six cents costs. After argument, a motion for a new trial was refused by the court and judgment was entered on the verdict. Thereupon the defendant took this appeal, assigning for error :</p> <p>1. The rejection of the defendant’s offer.1</p> <p>2-4. The admission of the plaintiff’s offers.3 to 4</p> <p>5, 6. The rejection of the defendant’s offers.5 6</p> <p>7, 8. The parts of the charge embraced in [ ] 7 8</p> <p>9. The omission from the charge of any instruction as to the nature of the conduct on the part of the wife that would constitute the reasonable cause justifying her husband in leaving her, without her consent.</p> <p>10. The answer to defendant’s point.10</p> <p>II. The answer to plaintiff’s point.11</p>

Nos. 335, 338 January Term 1889, Sup. Ct.; court below, numbers and terms not given. WASHIKGTOK STREET.

1 OF PHILADELPHIA COUNTY. No. 169 July Term 1889, Sup. Ct.; court below, No. 779 December Term 1886, C. P. No. 1.

4 OF PHILADELPHIA COUNTY. No. 34 January Term 1890, Sup. Ct; court below, No. 373½ December Term 1888, C. P. No. 4. On December 4, 1888, the trustees of the Roman Catholic High School filed a petition for a mandamus against the city of Philadelphia and Louis Wagner, Director of Public Works.

APPEAL BY J. K. CREEVEY FROM THE ORPHANS’ COURT OF PHILADELPHIA COUNTY. No. 170 July Term 1889, Sup. Ct.; court below, No. 241 October Term 1886, O. C. On April 9, 1889, on the hearing of an appeal from the decree of the register of wills admitting to probate the will of Elizabeth S. Palmer, deceased, dated May 16, 1885, instituted upon the petition of John K. Creevey, praying that an issue be granted to decide the questions: 1.

ROWAN FROM THE ORPHANS’ COURT OF PHILADELPHIA COUNTY. No. 65 January Term 1890, Sup. Ct.; court below, number and term not given. The account of John J. Ridgway, executor of the will of W. Elwood Rowan, deceased, having been called for audit before Ferguson, J., if was found as follows: The testator died on October 20, 1887, leaving a widow, Josephine E. Rowan, but no issue.

4 OF PHILADELPHIA COUNTY. No. 66 January Term 1890, Sup. Ct.; court below, No. 171 June Term 1884, C. P. No. 4. On May 20, 1884, L. L. Smith brought covenant against Samuel Loag. Issue. At a trial of the cause on May 21, 1885, a verdict was rendered for the plaintiff for $25,000. A rule for a new trial having been made absolute, at a second trial on February 5,1889, a verdict was rendered for the plaintiff for $20,000.

<p>APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.</p> <p>No. 108 January Term 1890, Sup. Ct.; court below, No. 427 September Term 1887, C. P. No. 4.</p> <p>On September 27, 1887, Michael J. Ryan and Eleanor A. Ryan, his wife, brought trespass against the Pennsylvania Railroad Company, claiming to recover for “injuries to the plaintiff, in his wife, child, property, and person, resulting from the operation as well as construction of the defendant’s elevated railroad where it crosses Twenty-second street,” Philadelphia. Issue.</p> <p>At the trial on November 19, 1889, the plaintiff’s testimony showed that on July 8, 1887, he was driving with his wife and child upon Twenty-second street, and approached the bridge of defendant company’s railroad upon Filbert street: “ When we got under the bridge, a train came from the east or from the west at a terrible speed and making a great noise, and another came from the opposite direction, either from the east or from the west, so that there were on the bridge at that time two trains, and, judging from tbe sound or noise, both of them were going at a great rate of speed. The horse started. I endeavored to rein him in, but he started down Twenty-second street, and when midway between Chestnut and Market streets, while I was still holding him in as well as I could, he was then towards the curb, but in some way bis hoofs struck me on the shin-bone, as I believe it is usually called, throwing me out on my shoulder and bead. At tbis time my wife was still in tbe wagon. The horse kept on until it got to the southeast corner of Twenty-second and Chestnut streets, where it collided with another wagon, and the horse dashed on down the street, leaving my wife in the wreck with the wagon at the corner.” It was claimed on behalf of the plaintiff, from other testimony adduced, that Twenty-second street was one of the most frequented streets of the city; that the neighborhood was built up and it was impossible to see or hear a train until it was right overhead; that this caused no danger when trains were run at a moderate speed, but it was the custom of tbe company to run its trains at the highest speed, and two going in opposite directions at the same time; that the noise overhead was so great that it would frighten men, women and children, much less a horse; that the running of two trains over the crossing, at full speed, was at the risk of the lives of those who had occasion to go upon the street; that the company gave no warning or notice of any kind, nor did it use a known and improved journal that would remove or diminish the noise ; and that accidents were an every-day occurrence.*</p> <p>At the close of the testimony, the defendants moved for judgment of nonsuit. The motion was refused, the court requiring “ the defendant to prove affirmatively that the construction of the roadway was in accordance with the ordinance of councils, and met with the approval of the chief engineer and surveyor.” The defendant then adduced testimony to meet the requirement of the court, and at the close of the testimony, the court, Arnold, J., charged the jury :</p> <p>The defendant built this roadway under the authority of an ordinance of city councils. Its road is built of the materials prescribed by the ordinance. The structure is therefore a lawful structure.</p> <p>That the use of such a structure will cause a noise of a greater or less degree is a self-evident fact. But the noise is caused by the lawful use of a lawful structure.</p> <p>The case, therefore, raises the question whether the defendant is liable for the degree of noise which is thus caused.</p> <p>This degree of noise is a matter upon which no right of action can be founded. If the use of the road creates a public nuisance, the remedy is not by private suit. If it were, different results might be reached in different cases, which would be incongruous.</p> <p>Being of the opinion that the plaintiffs have no right of action in this case, you are instructed to render your verdict for the defendant.</p> <p>The jury having returned a verdict for the defendant, judgment was entered thereon, when the plaintiffs took this appeal assigning the instruction to the jury as error.</p>

<p>APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF LEHIGH COUNTY.</p> <p>No. 407 January Term 1889, Sup. Ct.; court below, No. 80 September Term 1887, C. P.</p> <p>On August 17, 1887, Franklin G. Sieger brought assumpsit against the Second National Bank of Allentown, to recover $343.88, a balance of a deposit account alleged to be due the plaintiff.</p> <p>At the trial on February 29,1888, it was shown that on October 20,1884, Daniel Stettler made a negotiable note for $300 to the order of W. P. Snyder, payable at the Allentown N. Bank, in ninety days after date. Snyder indorsed the note to F. G. Sieger, who presented it for discount at the Second N. Bank of Allentown, and the bank credited the same to his account.</p> <p>The plaintiff testified that when the note fell due it was not protested for non-payment; that no notice of non-payment was given him, and that on July 19, 1887, the amount of the note with its interest was charged to the plaintiff on his deposit account.</p> <p>Di B. Keck, being called for the plaintiff, an offer was made to prove that at various times between January 21, 1885, and July 19, 188,7, Daniel Settler, the maker of the note, had sufficient funds .on deposit in the Second N. Bank to pay this note, the deposit being a general one; and that the bank instead of applying the funds to the payment of the note, permitted Daniel Stettler to draw the funds out of the bank; this for the purpose of showing that by reason of that indulgence the indorser was discharged, if' he was otherwise liable.</p> <p>Objection being made, the offer was refused; exception.1 The defendant bank introduced testimony tending to show that, at the time the note was discounted, the plaintiff made a distinct and absolute engagement to pay it at maturity.</p> <p>The court, Albright, P. J., at the close of the testimony, instructed the jury:</p> <p>The allegation of the bank is, that at the time the note was discounted, there was an agreement between the bank and Mr. Sieger, that Sieger should not only be liable upon the note according to its terms, that is, conditionally liable, but that he should be absolutely bound, and that he alone should be looked to for payment. The bank’s position is that what they have proved in this regard dispenses with the necessity of notice when the note fell due, and that Sieger was liable without any notice of dishonor, and without notice of protest.</p> <p>The plaintiff says on this point, that all that could be drawn from that alleged contract, would be that .Sieger had agreed to dispense with notice to him at the time the note fell due; in other words, that all it could amount to would be, that it was a waiver of notice, and that any other contract, such as is set up by the bank here, could not affect the indorser, Sieger, any further than that, to wit, the waiving on his part of notice.</p> <p>[The opinion of the court on this point is, and we so distinctly instruct you, that the indorsor of a promissory note, who is liable to pay only provided the maker does not pay at maturity, and he, the indorser, has notice, may at the time the holder accepts the note and pays him the money for it, bind himself to occupy a different position; and that if such an indorser agrees to be absolutely bound, and to pay the note at maturity, then he is absolutely bound, and then notice to him is not necessary; on the theory that if one whose name is upon commercial paper as an indorser, by his own contract agrees to be a debtor absolutely, that contract can be enforced, and then no notice to him is necessary. N o notice is necessary, because he himself promised to pay absolutely, which implies that he promises to pay without notice.</p> <p>The bank’s allegation in this respect is, that the note in question was sent to the bank, and came before the board of directors, and that they had certain action respecting it, and that the result of this action was communicated to Mr. Sieger before the bank accepted the note. The allegation is, that Mr. Stabler, the cashier of the bank, told Mr. Sieger at the bank, and that Mr. Keck and Mr. Roeder, other officers of the bank, were present, that the note would be discounted, on condition that he, Sieger, would assume to pay the note when it came due, if it was not paid before by Stettler or Snyder; that if he would assume to pay it without further trouble, then the bank would discount it for him; and that he agreed to it; that he said that this was all right. Mr. Stahler further says that he told Sieger that the board thought that neither of the other parties would pay the note when it came due, and that they did not want to be bothered with it; and unless he would make that promise, it would not be discounted, but under those conditions they would discount it, and that then Sieger said that he would do that. The testimony of Mr. Keck and Mr. Roeder on this point is substantially to the same effect; not perhaps in the same words, but the defendant alleges that it is to the same effect, and it seems to be.]6</p> <p>On this point, as I recollect the testimony, and it is not written out, and I do not pretend to remember all that was said by the witnesses, but according to my recollection Mr. Sieger denies that there was such a conversation. As I recollect, he was asked whether, after the meeting of the board respecting this note, he had been at the bank, and he said he was not, and that he sent the note over by one of his sons.</p> <p>Under this testimony, bearing- ujdou this point, as to whether there was that promise, has the bank proved that Sieger agreed to pay the note absolutely at the time it fell due, without regard to Stettler or Snyder, provided the bank would discount it, unless Stettler or Snyder would voluntary pay it before it fell due ? Is that proved ? I say to you, that a contract of that kind, set up by the holder of a note, must be distinctly proved before the holder can have the benefit of it, and hold an indorser liable absolutely. It must be distinctly proved. There ought to be no doubt in the mind of the jury that the witnesses tell the truth, and that what they say occurred amounted to an agreement and understanding between the holder and the indorser, that when the note falls due the indorser will be absolutely bound; that he will pay it without regard to the maker, and that he is not to have notice of protest, as his obligation on the note would purport. If that is not distinctly proved, then there would be no absolute liability; but if it is distinctly proved, then the indorser .is liable absolutely.</p> <p>[If, upon considering this point in the case, you come to the con clusion that there was, at the time the note was discounted, such an absolute undertaking on the part of Mr. Sieger, and that on the faith of that promise the money was given to him, then I say to you that he was liable without protest or notice of protest, and in that event the bank properly charged up the note against him, and there can be no recovery by the plaintiff.] 7 If that assertion by the bank is not made out, then the position of Mr. Sieger was that of an indorser according to the terms of the note. Then he was not liable to pay the note to the bank, unless the note was protested and he had notice thereof. The note was made payable at the Allentown N. Bank. In order to hold Mr. Sieger, it was necessary that payment should have been demanded of the maker, and demand at the Allentown Bank was sufficient, and if it was not met, that then the indorser, Mr. Sieger, should have notice of such failure to pay the note at the time it fell due, which was on January 21, 1885.....</p> <p>The jury returned a verdict in favor of the defendant. A rule for a new trial having been discharged and judgment entered, the plaintiff took this appeal, assigning for error, inter alia: 1. The refusal of plaintiff’s offer.3 6, 7. The portions of the charge embraced in [ ] 6 7</p>

No. 421 January Term 1889, Sup. Ct.; court below, No. 28 March Term 1886, C. P. On December 21, 1885, the National Union Bank of Reading brought assumpsit against I. Heston Todd. Issue. At the trial on December 10, 1888, before Swartz, P. J., the plaintiff offered in evidence a note for $2,000, dated May 1, 1885, made by I. H. Todd and indorsed by J. H. Boone. The plaintiff then rested. .

No. 446 January Term 1889, Sup. Gt.; court below, No. 169 March Term 1888, C. P. On January 18, 1888, an appeal was entered by the defendant from the judgment of a justice of the peace in an action… Held: shall be prima facie evidence in any court of law or elsewhere.

<p>APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF LEHIGH COUNTY.</p> <p>No. 38 July Term 1889, Sup. Ct.; court below, No. 49 April Term 1888, C. P.</p> <p>Upon an appeal, pending in the Orphans’ Court, from the decree of the register of wills admitting to probate the alleged will of Catharine Newhard, dated November 22, 1884, the testimony upon which it was to be determined whether an issue should be awarded or not had been closed, and on the argument thereof, the counsel for the proponent moved that the appeal be dismissed, for the reason that security for costs had not been given before the register, within the time limited by the act of June 6, 1887, P. L. 359. On March 5, 1888, the court, Albright, P. J., filed the following opinion and decree:</p> <p>Probate of the will was had on July 7, 1887. On July 23, 1887, the register dismissed a petition to revoke the letters, etc. On July 25,1887, leave of the Orphans’ Court to enter an appeal was obtained. On October 14th, the register fixed the amount of the bond for costs and approved the same. This motion to dismiss was made on December 21, 1887.....The excuse for not giving bond in time is, that the laws of 1887 had not been published, and the existence of the statute was not known.</p> <p>If the principal obligor is given the benefit of his appeal, he could not successfully assert that the bond was void because filed too late. It has been decided that where a recognizance for stay of execution, or a bond in attachment proceedings, was irregularly given, because filed too late, or for other informality, if the party procuring it to be given obtained his stay, or other advantage secured by the giving of the bond, the bond is good upon suit on it for a breach of its conditions.</p> <p>If the bond were in this court, the court would order it to be filed as of a date contemplated by said act. But, it is before the register; the motion to dismiss the appeal should have been made there. And it can be taken that proponent, by delaying objection to the bond, while appellants took much testimony (proponent’s counsel cross-examined the witnesses) has waived the irregularity. No benefit could accrue by the register’s dismissing the appeal. It could at once be entered again, the bond again filed, and the court would thereupon receive the testimony already taken. Proponent has a good bond; that ought to satisfy him. As to the main question, the decision of Knauss’s App., 114 Pa. 10, plainly entitles the appellants to a jury trial of the questions set forth in the petition.</p> <p>March 5, 1888, the. motion to dismiss the appeal is overruled; the order for an issue prayed for will be made; counsel may prepare and present it.</p> <p>—Thereupon it was ordered that an issue should be framed and a precept be directed to the Court of Common Pleas to try the questions following :</p> <p>1. Whether or not, Catharine Newhard, on the 22d "day of November, a. d. 1884, was possessed of a sound and disposing mind and memory, and, whether or not, she had on said day, sufficient mental capacity to make a last will and testament.</p> <p>2. Whether or not, the making and execution of the alleged last will and testament, dated the 22d day of November, a. d. 1884, of the said Catharine Newhard, was procured to be made by undue influence, fraud and imposition, practiced upon the said Catharine Newhard, deceased; and that in the said issue, Ephraim R. Newhard, and the other contestants named, should be plaintiffs, and Henry M. Yundt, executor and sole legatee named in the said alleged last will and testament should be defendant.*</p> <p>The said precept having been filed in the Court of Common Pleas, and issue duly joined in the form directed, at the trial on January 25, 1889, the plaintiffs called Eli Diehl, who testified that from the spring of 1885 he worked for Henry M. Yundt for one year, living upon his farm and taking his meals at his house ; that during that year he saw Catharine Newhard every mealtime, and talked with her frequently; that she was an old lady, physically weak, and had a doctor once and awhile; had a sore leg, and was forgetful, the witness describing many of her peculiar doings.</p> <p>Q. Taking into consideration all that you saw Catharine Newhard do and all that you heard her say, her feeble condition, and from what you know and saw her doing that year you lived at Henry M. Yundt’s, in your opinion had she sufficient mind and memory to take care of herself-and manage her own affairs? A. No, sir.7</p> <p>Tlie testimony having been closed on both sides, the court, Albright, P. J., charged the jury, in part, as follows:</p> <p>The law has declared how much mind is to be required in a person to make a valid will. Witnesses are not instructed as to that, and probably do not know it, and their opinion is more valuable when it is directed to the question of what they think of the soundness of mind of the person, than when they express an opinion as to whether she had mind enough to make a will. Now, it is alleged by the plaintiffs that Catharine Newhard, owing to disease and old age had lost the mental faculties necessary to make a will. It is alleged that she at one time had a perfect mind and good sense,'but that owing to disease and growing age slio lost her mind in part. It has been testified, and is no doubt true, that about 1872 she had a severe attack of typhoid fever, and that in J uly, 1881, she fell down outside of the house and was unconscious, and that she was sick from that time on for some time, and possibly had other attacks of sickness while she was at Newhard’s; and also that she was sick while at Yundt’s, both before and after the will was made. At this point I will call your attention to the dates, as I have them down, when Dr. Martin attended her.....</p> <p>Now, it is alleged that after the fever her mental condition grew worse; that she became more forgetful than she had been; that she became suspicious and had certain delusions or hallucinations, and that this grew worse after the apoplectic stroke in July, 1881; that during the time she was at New-hard’s she behaved in a way different from what a rational person would; that she blamed the members of the Newhard family, her brother, Henry Newhard, and Francis and his wife, and I believe, some other members of the family, with stealing her money from time to time, and this was a frequent complaint. It is assumed by the plaintiffs, that as there is no evidence from which you could find that these charges were true, that they were unfounded; and it is said that Catharine, on various occasions after she had made these accusations, admitted that they were not true and asked for forgiveness. From this it is argued that you can find that her mind was impaired, that she took a wrong view of things and had delusions. It is also alleged, that she . became irritable towards the last when she was at Newhard’s, and was unreasonable; that she spoke a great deal to herself, both at night, in bed, and during the day time, saying various things and among others that her money was being stolen; that she had in her sounder years been of cleanly habits, and she afterwards became filthy, and she could not control the discharges from her bowels on various occasions, and was careless in that regard and behaved peculiarly; that on one or more occasions she left her room undressed and came down stairs and thought she was dressed; and in various ways it is claimed that it has been shown that her mind had given way and that she had not the mind neóessary to make a will; that she could not form an idea of her possessions and of the natural recipients of her bounty, and could not do other things which, according to the rules of law, are necessary to enable one to make a will. In that particular it has also been testified that she had difficulties with or made charges against persons to whom she had loaned money.</p> <p>It would appear that the whole estate of this old lady was in money which was mostly out at interest among the neighbors. It is said her estate was from $4,000 to $5,000, and that among others, Nathan Eberhart had $2,000 of her money from about 1870 down to the time after she made her will, at Yundt’s. It appears he paid her the interest every year, about the latter part of March; it fell due about the first of April, and I suppose, from what has been said in this case by Nathan Eberhart and others, that there is no question but that he dealt honestly with her and that she knew that. [It has been testified that on one occasion after Nathan Eberhart had paid her interest that she found fault with him, alleged something wrong about the interest, I believe, at least said he was a rascal or a rogue, and it is claimed by the plaintiffs that this was a mistake and it was not true, and this, among other circumstances, is relied upon to show that she had lost her mind in part.] 3</p> <p>Then, as I said, several witnesses, DeLong and Diehl and perhaps others, testified on the plaintiffs’ side as to what they had seen of her at Yundt’s, and they say they noticed certain peculiarities about her then. She was at Yundt’s from May, 1882, until June, 1887, when she died, nearly five years. Many witnesses have been called who have testified as to her condition there. Some persons told us that they had had opportunities of observing much of her at that place, and Mrs. Yundt and Henry M. Yundt, of course, observed much of her and probably saw nearly all she did, or heard a good deal of what she said in her waking hours. Mrs. Yundt has given us a description of Catharine’s condition, and Mrs. Yundt, Sr., it seems, knew a good deal about her for a number of years, and she has told us what she knows. And Mrs. Troxell, the sister-in-law of Mr. Yundt, and certain young men, who lived in the family of Mr. Yundt as servants, have told us a good deal about what they observed of her. Then there are a number of persons, who saw her occasionally, some of them often, and they have all told us that she was old and feeble; as a consequence of that, her eye-siglit was dim, and they have detailed a number of circumstances, showing, in the estimation of the defendant, that she had the ordinary sense and judgment and memory which people have, especially of her years, who are still of sound mind, and have all expressed opinions that she was of sound mind in 1884, and even all the way down to the time of her death.....</p> <p>The question is, and it may be well for me to repeat it, whether at the time this will was made Catharine Newhard had a full and intelligent consciousness of the nature of the act she was engaged in. That is, a full and intelligent understanding that she was about disposing of her property by her last will; that she knew what property she had; that she understood what she intended to do with it, how to dispose of it by her will and to what persons, and had a knowledge of the persons she intended should have it; that she was able to choose and decide with understanding and reason as to whether she would dispose of it in one way or the other; practically, whether she would give it to Henry M. Yundt or whether she would give it to her brothers and sisters and relatives, or some of them. Had she mind, memory and understanding to that degree ? If she had not, then you will find for the plaintiffs, and the will will be set aside. If she had, then you will say that she was capable of making a will and will find for the defendant, and in that event the will stands.....</p> <p>It strikes me, gentlemen of the jury, but it is altogether a matter for you to decide, that there is one witness in this case whose testimony is of peculiar importance, provided that you believe that he knew what he was speaking about and told the truth. There is, according to my mind, a contradiction between the witnesses Avho testified for the plaintiffs as to Catharine Newhard’s condition while she was at Newhard’s up to May, 1882, and those who testified for the defendant as to her mental condition afterwards. [Speaking in a general way, it is probable that you might conclude that, from what the plaintiffs had shown of her condition at Newhard’s, she was not of sound mind and had not sufficient mind to make a will;] 3 and it is probable that you would say from the defendant’s testimony of her condition while at Yundt’s, that she was perfectly capable to make a will, and that there is hardly a question of her mental capacity. Now this contradiction exists. Whether it is owing to the fact that certain witnesses who know better do not want to tell the truth, either from prejudice or self interest, on the one side or the other, or whether owing to prejudice and sympathy they have suffered their testimony to be warped so that they do not tell the truth; how this is, it is not for me to say, and I do not know, but it strikes me that this contradiction exists.</p> <p>Now gentlemen, is there any way of solving the problem thus presented ? Is there any safe and reliable way by which you can detect the state of mind of this woman while she was at Newhard’s up to May, 1882, and her condition afterwards? From what has been told you, do you believe that her mental condition grew better or that it grew worse ? There is such a thing undoubtedly, as a person being of unsound mind, and even insane, and afterwards becoming restored. It might be that a person of 1881 and 1882 had been of unsound mind, even a raving maniac if you please, and in 1884, he or she might have been perfectly sane and able to make a contract and make a will. Was it the case with Catharine Newhard? Did she improve so that you could reasonably and justly decide and infer that she was of weak mind in 1881 and 1882, and in 1884 her condition was improved and she was sane and had mind sufficient to make a will ? What was the nature of her ailment, and did that affect her mind ? How did it affect her mind ? Was it an ailment that could be cured ?</p> <p>[It seems to me that the testimony of Dr. Thomas Martin is worthy of your closest attention and consideration. You are to consider him the same as any other witness, as to whether in your estimation he tells the truth, whether he is willing to say precisely what he remembers and believes, or whether he is an adherent of one side or the other; and also as to whether you believe that he knows what he testifies about. Is Dr. Thomas T. Martin, in your estimation, a skilful and experienced physician; is he a truthful man; is he fair and disinterested in his testimony? I see no reason why you should not assent to all that; I see no reasop, why you should suspect his knowledge or his recollection as to whether he testifies to things positively, or that he is prejudiced one way or the other. But it is not for the court to decide whether a witness is to be credited or not, or what weight is to be attached to his testimony. But is it not true, gentlemen of the jury, that if his testimoiry is reliable that then we have the fact that Catharine Newhard, about 1881 or before, had an attack of softening of the brain ? Then is it not true, as the doctor says,'that softening of the brain is incurable and the longer it progresses the worse it grows ; and is it not true that she died of that in 1887 ? He so testifies. If that is so, and if it is true, as Dr. Martin testified and as Dr. Herbst who knew nothing of this old lady but who gave his opinion as physician and an expert, testified, that softening of the brain affects the mind, reason and probably the judgment and the memory, then what weight are you to attach to the testimony of Dr. Thomas T. Martin? Would that then show that in 1884, when she made the will, more than two years after she went to Yundt’s, that she was better than she had been while at hi ewhard’s ? Would it tend to lead you to believe that the witnesses who testified to her condition in 1884 and while she was at Yundt’s, perhaps were mistaken or did not tell the truth; or, on the other hand, would you disbelieve the witnesses who testified to her weak condition mentally while she was at Newhard’s ? Was this woman afflicted with softening of the brain ? Did it commence about 1881, at the time she had the apoplectic stroke, so called ? Dr. Martin said that that was so, and that it continued down to the time of her death; that it was an incurable disease and grew worse. Is that so, in your estimation ? If it is, then it is probably true that generally speaking the descripfcion of her mental condition, her weak mental condition at Newhard’s, was also true, as the witnesses testified to. And then it might be the fact that her condition, in point of mental capacity, was not quite as good, not quite as strong, as some witnesses say it was after she was at Yundt’s in 1884, and on down to her death. Some witnesses, while the old lady was at Newhard’s and while she was at Yundt’s, observed her from day to day and no douht almost every day. For instance, Mrs. Newhard; possibly the girl, the adopted daughter, who was in the house the last few years she was there; Mrs. Yundt, while she was at Yundt’s; and possibly some other witnesses, and of them of course it cannot be said that they had no chance of observing her. The attending physician who attended her on so many occasions, as he has stated, from 1881 down to 1887, was also, to a great extent, conversant with her condition. He saw her on many occasions. His mission was to attend to her physical health; but, I suppose, it is true, that while a doctor is diagnosing the disease of a patient with a view of affording him relief and assistance in a physical way, that he'also observes the state of mind of the patient, at least to some extent; he naturally talks with his patient, listens to his statements of his ailments and complaints, and that experience it seems Dr. Martin had, and he expresses the opinion that she was of unsound mind. That opinion, of course, jrou are to regard according to the same rule as the opinion of any other witness who is not a physician; that is, you are to give it much or little weight in proportion to the opportunities, many or few, that he had of seeing and knowing this person, and then the soundness or unsoundness of his judgment in forming an opinion. But I repeat, that if the testimony of Dr. Martin is fully credited by you, in my opinion it has a strong influence upon this case, and furnishes one method, possibly, of deciding which statements relative to the mental condition of this old lady are to be given most credit.] 4</p> <p>The court has decided that there is no evidence here from which you could find, if this old lady was of sound mind, that she has been unduly influenced by the defendant. The circumstances of the making of the will and what was done at and about that time, and the disposition she made of her property, are circumstances which the jury may consider as bearing upon the question of testamentary capacity. She had brothers and sisters, and nephews and nieces. She gave all the property to Henry M. Yundt. But she was living with Henry M. Yundt.....</p> <p>Bearing that in mind, gentlemen, does the disposition which Catharine Newhard made of her property, and the manner in which she disposed of it, tend to show that she was weak minded and had not testamentary capacity. When a person makes his or her will, that will take effect only on the death of the maker or testator; and any time after the will has been signed a person who makes a will can recall it and tear it into pieces, throw it into the lire, and can make another will, and the last will govern. He has entire control of the will and entire control of the property he disposes of by the will. He can give to one person to-day and if he changes his mind next week he can give to another, and no one can say nay. So, [Catharine Newhard, so far as she by her will gave all her property to Henry M. Yundt, had the power to change the provision. But it seems she did more than that; it seems as to the bulk of her estate she gave it up to Henry M. Yundt at the time she made the will, or before. The bond which Henry made recited that she delivered up to him his note for $1,540; that she had assigned to him the note of Nathan Eberhart for $2,000, and that assignment made it his property. So, at least $8,500 of her property was given to him before and on that occasion. The object evidently was that she would be maintained by Henry as long as she lived.</p> <p>Henry M. Yundt entered into an obligation to maintain her, and that made it a duty on his part, but yet it cannot be said that it absolutely secured the old lady; it was not made a condition in the deed of any property so that it attached to the land ; there is no judgment or mortgage given to secure that promise to maintain her; there was no agreement or covenant made to be recorded so that it fastened itself to the farm or any other piece of land. All she had was Henry M. Yundt’s promise to keep her, and if he remained solvent she could at any time have sued him if he failed to maintain her. But he says he gave judgments and mortgages which became liens on his farm, and if Henry M. Yundt had become insolvent in the lifetime of Catharine Newhard, she would have had a claim against him amounting to the debt, but could not have obtained the money she had given him. Is it not true that the transaction to which I have made reference amounts to about this, that she paid him $3,500 in advance, upon his promise to board her and keep her in sickness and in health, and for it she obtained his promise, his bond, which made it his personal debt and nothing more ?</p> <p>Gentlemen of the jury, if Catharine Newhard was a person that was, in her best years, careless of money matters, liberal, open handed, reckless, then it would be perfectly natural that she should make an arrangement of this sort at the time she did. But if she was a person that was close and careful of her money and was particular about getting the full value of all that was paid for, and looked to her money jealously and carefully, as the only means of keeping her from want, then is it not true that this was a strange transaction for her to make ? Would Catharine Newhard, at the time you first knew of her and when she was undoubtedly of sound mind, say in 1869, or 1870, have made an arrangement of this kind?] 5 It may be that she would not have done so, and she might still do so in 1884. She may have grown more liberal or she may have been satisfied with Henry Yundt’s personal obligation, and then the transaction would bear nothing conspicuous about it. But if in connection with all the other testimony in the case bearing upon her mental capacity, both for or against it, you consider that this transaction is some evidence of failing mind and some evidence tending to show that she was not, on the 22d of November, 1884, of sound and disposing mind, then you can regard this piece of evidence, and otherwise not.</p> <p>The plaintiffs request the court to charge you:</p> <p>1. Testamentary incapacity does not necessarily suppose the existence of insanity, so-called. Weakness of intellect from extreme age, from great bodily infirmity, or from intemperance to the extent of disqualifying a testator from knowing and appreciating the nature, effect and consequences of the act he is engaged in, is as much testamentary incapacity as raving madness. If from any cause an alleged testator is so enfeebled in mind as to be incapable of knowing the property he possesses, of appreciating the effect and disposition made by him of it, and of distinctly understanding to whom he intended to bequeath it, he is without the testamentary capacity required to make a valid will.</p> <p>Answer: Affirmed.</p> <p>The defendant requests the court to charge you:</p> <p>1. The plaintiffs are the persons who contest the will; they allege testamentary incapacity. Testamentary capacity is the normal condition of one of full age, and the affirmative is with the plaintiffs who undertake to call it in question, and this affirmative must be established not in a doubtful but in a positive manner.</p> <p>Answer: Affirmed.</p> <p>5. In a single will, like the one under consideration, less mental capacity is sufficient to execute it, than to make a contract or to transact ordinary business; but little reflection and memory is required.</p> <p>Answer: An affirmative answer under the evidence in this case might mislead. It is answered in the negative. The fact that a testator gives all to one person and makes him executor, thus making the will short, is no warrant for saying that less capacity is requisite than would otherwise have been the case.</p> <p>9. Mere weakness of intellect, eccentricities, or peculiarities springing from such weakness, do not incapacitate, unless they evince an inability to make a reasonable disposition of property, and to understand the nature and solemnity of the act of testamentary disposition.</p> <p>Answer: Affirmed.</p> <p>12. Neither age nor sickness, nor extreme distress nor debility of body, will affect the capacity to make a will, if sufficient intelligence remains; the failure of memory is not sufficient to create the incapacity, unless it be total or extend to his or her immediate family or property. The failure of memory may exist to a very great degree, and yet the valid power of the understanding remain.</p> <p>Answer: Affirmed.</p> <p>14. The testimony of the witnesses who depose that the tes- .■ mix was of perfect mind and memory is to be preferred to í Lostimony of those to the contrary.</p> <p>Answers: Under the facts in certain cases this rule might Uv-oeidy be applied.; Sffivonson v. Stevenson, 83 Pa. 469, but it cannot be laid down as a rule to govern the testimony in this case. The point is negatived.1</p> <p>—The jury rendered a verdict, on the issue whether or not Catharine Newhard, on November 22, 1884, was possessed of a sound and disposing mind and memory, and, whether or not she had on said day sufficient mental capacity to make a last will and testament, in favor of the plaintiffs, the contestants. A rule for a new trial having been discharged, judgment was entered on the verdict, when the defendant, the proponent of the will, took this appeal, specifying that the court erred:</p> <p>1. In the answer to defendant’s fourteenth point.1</p> <p>2-5. In the parts of the charge embraced in [ ] 8 to 5</p> <p>6. Throughout the entire charge, in rehearsing and reciting with great particularity the facts and circumstances alleged on the part of the plaintiffs, to prove unsoundness of mind of the testatrix, whilst in no part of the charge is particular mention made of the facts proved by the defendant, or the plaintiffs’ witnesses on cross-examination, showing mental capacity sufficient to do business, and to make a valid will.</p> <p>7. In the admission of plaintiffs’ offer.'7'</p> <p>8. In granting an issue devisavit vel non in this cause, bail not having been entered. at the time of the taking of the appeal from the probate of the will, nor within ten days thereafter, as required by the act of June 6, 1887, P. L. 359.</p>

No. 153 July Term 1889, Sup. Ct.; court below, No 52 December Term 1887, C. P. On November 5, 1887, Patrick Kinney brought trespass against Austin Corbin, George DeB. Keim and Stephen A. Caldwell, receivers of the Philadelphia & Reading Railroad Co., to recover damages for injuries received by the plaintiff while engaged in the service of tlie defendant companjL Issue.

<p>The plaintiff in ejectment may not avoid his own deed to the defendant, valid on its face and under which the latter claims, by showing that it was executed in pursuance of a lottery, and therefore invalid under § 52, act of March 31, 1860, P. L. 396 : Cf. Allebach v. Godshalk, 116 Pa. 329.</p>

<p>(a) A testator devised and bequeathed to his wife all his “ property and effects, real, personal and mixed, of whatever nature and kind, for and during her natural life,” and after her death “ all the residue of said property, real, personal and mixed,” to his children. A considerable portion of the personalty consisted of crops, stock on the farm, and farming implements:</p> <p>1. No distinction being made between the character of the property mentioned and money at interest, the testator intended his wife to take the whole of the personalty absolutely, if it was needed for her support, and only the residue, if any, was to go to his children after her death.*</p>

<p>x. A plea of non volo contendere to an indictment, although not technically a plea oí! guilty, is so in substance, and justifies the court in imposing sentence upon the defendant: Buck v. Commonwealth, 107 Pa. 486.</p> <p>2. To sustain a conviction for unlawfully selling intoxicating liquors, under the act of May 13, 1887, P. L. 113, it is not necessary for the commonwealth to prove a criminal intent; if the sale be contrary to the act, the intent is immaterial.*</p> <p>3. A licensed bottler selling liquor in a county other than that covered by his license, is liable to the punishment provided by said act for selling without license, and not merely to that imposed upon violations of the law by licensed persons.†</p> <p>(a) A driver in the employ of a hottler having a license in Philadelphia county, took orders in Montgomery county for liquors. The liquors ordered were loaded upon the employer’s wagon in Philadelphia, and delivered to the purchasers in Montgomery county by the driver, who collected the money therefor:</p> <p>4. This was clearly a sale and delivery in Montgomery county, and the driver being protected by his employer’s license only where the employer himself would be protected, was properly convicted and sentenced for selling liquors without license in Montgomery county.</p>

No. 101 January Term 1890, Sup. Ct.; court below, No. 35 March Term 1887, C. P. On January 4, 1887, Carl M. Vail brought replevin against John Mundell and H. P. Weaver, for an engine, dynamo and appliances, constituting an electric light plant. Defendant Mundell pleaded non detinet and H. P. Weaver pleaded property.

<p>1. If there is one count in an indictment which sustains the sentence pronounced, on a conviction upon several counts, and the record is regular, the judgment cannot be reversed, even though the sentence might be erroneous if based upon the other counts.</p> <p>2. Where one count of an indictment charges the sale of liquors without a license, generally, and others charge the defendant, a druggist, with violations of § 16, act of May 13, 1887, P. L. 118, and a verdict of guilty on all the counts is rendered, the indictment will sustain a sentence for selling without license.</p> <p>3. Druggists, strictly speaking, are not licensed venders of liquor, under the act of May 13, 1887, P. L. 113; but, whether a druggist, convicted simply of violating the provisions of § 16, of said act, should be sentenced as an unlicensed vender under the first provision, or as a licensed vender under the second provision of § 15, not decided.</p>

<p>APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY.</p> <p>No. 129 January Term 1890, Sup. Ct.; court below, No. 78 June Term 1888, C. P.</p> <p>On April 28,1888, Mary Dalfonza brought ejectment against James Newton, to recover a certain house and lot on Swede street, Norristown. The plaintiff having been declared a lunatic by inquisition found on May 23,1888, Thomas F. Shannon, her committee, was then substituted. Issue.</p> <p>At the trial on June 10, 1889, the plaintiff showed title in Antonio Dalfonza, the husband of Mary Dalfonza, by deed to him from the executors of David Sower, dated October 3,1866 ; will of Antonio Dalfonza, admitted to probate on February 20, 1879, devising all the real estate whereof the testator died seised, including the property in dispute, to his wife Mary Dalfonza. Showing the substituted plaintiff’s appointment, the defendant’s possession, and adducing evidence to sustain a recovery of mesne profits, the plaintiff rested.</p> <p>The defendant offered in evidence a judgment in favor of J. M. Cowden against Antonio Dalfonza for $360, entered November 25, 1870, on a bond and warrant of attorney dated November 23, 1870, payable on or before April 1, 1871, with interest, being for purchase money, with an assignment of the judgment to the trustees of Wreath of Friendship Assembly No. 13, Ancient Order of Good Ladies, dated November 1, 1871, filed July 16, 1887; also, the will, of Antonio Dalfonza, dated February 6,1879, admitted to probate February 20,1879, appointing Marjr Dalfonza, his wife, sole executrix, and the letters testamentary issued thereon; also the record of a scire facias upon said judgment in favor of the said assignees against said executrix, issued July 16, 1887, the sheriff's return of service thereof, judgment in default of appearance, and sum due liquidated at $370.53.</p> <p>To these offers the plaintiff objected, in substance, that the judgment was entered in 1870, and the scire facias was not issued until 1887; that, since the passage of the act of June 1, 1887, P. L. 289, the plaintiff was entitled to notice of the assignment dated November 1, 1871; that said scire facias was issued against a party who had been found to be a lunatic at the time; that no agreement in writing for the revival of said judgment had been signed by the terre-tenant, as required by the said act of 1887; that said scire facias had been issued and served upon Mary Dalfonza, as executrix, and not as devisee.</p> <p>By the court: Objections overruled, offers admitted ; exceptions.1 2</p> <p>Defendant then offered the records of the execution process upon the revived judgment mentioned in the foregoing offers, the return thereto, with the inquisition upon which the real estate was condemned, the approval thereof, the writ of venditioni exponas following, the sheriff’s sale of the property in dispute, and sheriff’s deed dated and acknowledged March 24, 1888.</p> <p>Objected to for the reasons given as to the foregoing offers.</p> <p>By the court: Objections overruled, offers admitted; exceptions.3</p> <p>The defendant then rested.</p> <p>In rebuttal, the plaintiff offered in evidence the record of the proceedings in lunacy, for the purpose of showing that at the time the scire facias upon the judgment was issued, and as found by the inquisition, for three nr four years prior to May 28,1888, Mary Dalfonza, the defendant in the scire facias upon the judgment, was a lunatic, without lucid intervals, and not capable of attending to her affairs. Objected to.</p> <p>By the court: Objection sustained, offer refused; exception.4</p> <p>The plaintiff then offered in evidence the deed of J. M. Cow-den to Mary Dalfonza, for premises on Lafayette street, in Norristown, for the purpose of showing, as a fact for the jury to determine, that the judgment obligation given on November 25, 1870, was a judgment for the purchase money of that property, “ and was therefore not upon the property upon Swede street which is described in this writ.” Objected to.</p> <p>By the court: Objection sustained, offer refused; exception.5</p> <p>The plaintiff then closed, whereupon the court, Weand, J., instructed the jury to find for the defendant.6</p> <p>The jury returned a verdict for the defendant, as directed.</p> <p>A rule for a new trial having been taken and argued, the court, Weand, J., filed an opinion, which after stating the facts proceeded:</p> <p>The plaintiff’s contention is, that no valid title passed to the defendant under the sheriff’s sale, because the judgment on the revival was void by reason of lapse of time, and because it was found against an insane executrix; also, because there was no authority to enter judgment by default for want of an appearance, against her as executrix, and that there was no judgment against her as terre-tenant.</p> <p>It has repeatedly been held that the lien of a judgment against a decedent is without limitation against heirs and devisees : Fetterman v. Murphy, 4 W. 424; MeCahan v. Elliott, 103 Pa. 634; Aurand’s App., 34 Pa. 151. A judgment of record at the defendant’s death, although not then a lien on his land, is not a debt whose lien is limited to five years from the decedent’s death, unless suit be brought according to § 24, act of February 24, 1834, P. L. 77: Baxter v. Allen, 77 Pa. 468. An heir or devisee is but a volunteer and takes only the surplusage of his ancestor’s estate. He is not a terre-tenant: Horner v. Hasbrouck, 41 Pa. 169.</p> <p>■ If, then, the judgment was a lien at decedent’s death, was the revival proper? The writ, it is true, only issued against the executrix, but, as she was also sole devisee, she was bound by the judgment obtained on the scire facias, if in other respects valid: Stewart v. Montgomery, 23 Pa. 410. The authorities show that the proper practice on a judgment obtained against a defendant in his lifetime, is to issue the scire facias against his representatives, and that it is unnecessary to bring in the widow, heirs or devisees under § 34, act February 24, 1834, P. L. 80, and, after a revival, to issue the execution upon the original judgment, and not upon the judgment on the scire facias; yet, when the issuance is upon the latter, it is upon an irregularity which cannot affect the title of a purchaser at sheriff’s sale: Grover v. Boon, 124 Pa. 399. From these decisions it follows that the judgment, revival and sale were all legal, proper and orderly, and vested a good title in the purchaser unless there are other matters to affect him in his purchase.</p> <p>Plaintiff contends that under the act of June 1, 1887, P. L. 289, this judgment was not properly revived. The act, however, speaks of defendants and terre-tenants, and in nowise affects this case, for as we have already shown Mrs. Dalfonza was not a terre-tenant, and therefore not within the provisions of the act.</p> <p>It is also claimed that the finding of the commission that Mrs. Dalfonza was a lunatic, renders the judgment of revival void. But how can this affect the title of an innocent purchaser ? At the time of the sheriff’s sale, February 23, 1888, and of the confirmation and acknowledgment of the sheriff’s deed, March 24, 1888, there was nothing upon record to give him notice of any irregularity or defect in the proceedings, for the petition in lunacy was only filed May 8,1888. The record, therefore, showed a good and valid judgment upon which to issue an execution, and the purchaser is therefore protected under the act of 1705, 1 Sm. L. 61. This protection is absolute against every defect or irregularity which would avoid the judgment, process or sale, or reverse it, except where the judgment is absolutely void on its face: Duff v. Wynkoop, 74 Pa. 305 ; Feger v. Keefer, 6 W. 297; Hays v. Shannon, 5 W. 548.</p> <p>We see no error in our record and must therefore sustain the judgment. And now, September 16, 1889, the motion in arrest of judgment and the reasons for a new trial are overruled.</p> <p>Judgment having been entered on the verdict, the plaintiff took this appeal, assigning for error:</p> <p>1-3. The admission of the defendant’s offers.1 to 3</p> <p>4, 5. The refusal of the plaintiff’s offers.4 5</p> <p>6. The instruction to find for the defendant.6</p>

No. 179 January Term 1890, Sup. Ct.; court below, No. 12 March Term 1889,' C. P. Ou December 8, 1889, the Norristown Title, Trust and Safe Deposit Company, guardian of William Legg, a minor, brought assumpsit against the Jolm Hancock Mutual Life Insurance Company, upon a policy of insurance issued by the defendant upon the life of Annie Cruikshank. The defendant pleaded non-assumpsit.

No. 149 January Term 1890, Sup. Ct.; court below, No. 61 October Term 1888, C. P. On July 19, 1888, Joseph E. Thropp brought assumpsit against Charles Richardson. Issue. At .the trial on June 13, 1889, the jury returned the following special verdict. “That prior to October 25, 1886, the plaintiff Jos. E. Thropp, and defendant Chas. Richardson, were associated together under the firm name of Jos.

<p>APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF LEHIGH COUNTY.</p> <p>No. 213 January Term 1890, Sup. Ct.; court below, No. 51 November Term 1888, C. P.</p> <p>On November 8,1888, Lillie Bleiler brought trespass against Jolin W. Koons, to recover damages for an alleged breach of promise to marry. Issue.</p> <p>At the trial on December 11, 1888, before Albright, P. J., testimony was adduced on the part of the plaintiff showing that she was twenty-four years of age, the defendant being a widower of about sixty-four; that the plaintiff lived in the family of defendant as a housekeeper during the life of his wife, who died in October, 1886; that, the plaintiff then becoming ill, she went to her mother’s, returning to defendant’s bouse in November, 1886, where she remained until the fall of 1888; that in January, 1887, after her return to the defendant’s employ he made advances to her and induced her to occupy his room and bed with him, and thereafter she continued to share his bed while she remained in his employ; that though there was no express arrangement that he was to marry her, conversations which he had with her, detailed in the testimony, established, as was claimed, a contract of marriage; that she had a suitor, whom she discharged; that during the time she thus continued with the defendant, he at different times took her on visits to his brother in another town, to a sick neighbor, her mother and her aunt, and often took her to church and prayer meetings; that, living together alone, they joined in family worship; that their intimacies continued for one year and three months, when suddenly the defendant discharged the plaintiff from his house, and soon after was married to another woman.</p> <p>At the close of the plaintiff’s case, on motion of defendant the court entered a judgment of nonsuit, with leave, etc. A rule to show cause why the judgment should not be vacated having been argued, the court, Albright, P. J., filed an opinion wherein, after citing and considering Yon Storch v, Griffin, 77 Pa. 504; Baldy v. Stratton, 11 Pa. 316; 2 Chitty on Cont., 794, the rule was discharged. Thereupon the plaintiff took this appeal assigning the entry of judgment of nonsuit and the discharge of the rule to vacate it for error.</p>

<p>APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.</p> <p>No. 293 January Term 1889, Sup. Ct.; court below, No. 52 December Term 1887, C. P. No. 4, in Equity.</p> <p>On December 9, 1887, Virginia Reed Lynch filed a bill in equity against Anthony Lynch, James McElwee and Ann, his wife, John Kilday, Daniel Kilday, William Boyle, John Boyle, Catharine Boyle and Mary Boyle, averring, in substance, as follows:</p> <p>That Patrick Lynch died on November 3,1871, having made his last will and testament, dated October 9, 1871, duly admitted to probate, with certain provisions, to wit:</p> <p>“ Item. After the death of my wife Mary Lynch, I give and bequeath to my son Daniel J oseph Lynch all the income which may be derived from my real estate, to be received and enjoyed by him during the term of his natural life. If my said son should chance to die before my wife, leaving issue to survive her, then after her death I give and bequeath to such issue and to the heirs of such issue forever, my real estate aforesaid......If my son should survive my wife and afterwards die leaving issue, then after his death I give and bequeath to such issue and to the heirs of such issue forever the same real estate as aforesaid.</p> <p>“Item. If my son Daniel Joseph should either before or after the decease of my wife die without issue living at his death, I give and bequeath my real estate aforesaid to the Right Rev. Bishop Wood, to be appropriated to such charitable purposes in connection with the institutions of the Catholic Church as shall seem to him meet and proper.”</p> <p>It was further averred that said testator died seised in his demesne as of fee of certain described real estate in Philadelphia which he had acquired by purchase; that he left to survive him a widow, Mary Lynch, and issue one child, Daniel J. Lynch; that on June 27, 1875, said Daniel J. Lynch intermarried with Virginia Reed and died intestate, on September 5, 1875, leaving to survive him his widow, Virginia Reed Lynch, the plaintiff, but no issue; that Mary Lynch, widow of Patrick Lynch, died on August 4, 1886; that the will of said Patrick Lynch not having been executed one calendar month before his death, the ultimate limitation therein made to the Right Rev. Bishop Wood for charitable purposes was void; that the contingent remainder in fee to the issue of Daniel J. Lynch surviving at the death of Mary Lynch having been destroyed by the death of Daniel J. without issue, during his mother’s lifetime, the said Patrick Lynch died intestate as to all his real estate, subject to the life merest of his widow therein, whereby the same descended to and vested in said Daniel J..Lynch under the intestate laws; that under said laws the plaintiff was entitled as the widow of said Daniel J. Lynch to one half part of said real estate, and to the rents, etc., thereof, from August 4, 1886, for .the term of her life; that (par. 10), subject to the interest of the plaintiff therein, the said real estate descended under said intestate laws to the next of kin of the said Daniel J. Lynch, who were as follows:</p> <p>To Anthony Lynch, brother of decedent’s father, Daniel Kilday, John Kilday and Ann McElwee, half-brothers and half-sister of decedent’s father, each one fifth; to William Boyle, John Boyle, Catharine Boyle and Mary Boyle, children of Mary Boyle, a deceased half-sister of decedent’s father, each one twentieth.</p> <p>It was further averred that on September 27,1886, Anthony Lynch conveyed his interest in No. 1615 Melloy street to James McElwee and Ann, his wife, in fee; and that since the death of said Mary Lynch, one or more of the defendants had collected the rents of the real estate described in the bill. So averring, the plaintiff prayed, inter alia, for an account of mesne profits and for a partition.</p> <p>The defendants having answered admitting the matters of fact averred in the bill, but denying that the plaintiff had any interest in the property in question, and averring that it descended to the heirs of Patrick Lynch, instead of to the heirs of Daniel J. Lynch, the cause was set down for hearing on bill and answer, when the court, Arnold, J., on June 23, 1888, entered a decree as follows:</p> <p>1. That Virginia Reed Lynch is entitled to one half part^of the real estate described in exhibit B to the bill of complaint, from the fourth day of August, 1886, for the term of her life, and to the rents, profits, possession, use, usufruct and enjoyment of such half part.</p> <p>2. That', subject to the interest of the said Virginia Reed Lynch therein, the title of said real estate was on the fourth day of August, 1886, and since has been and now is in the persons named in paragraph 10 of the hill of complaint, for the estates and in the shares and proportions therein set forth.</p> <p>3. That Anthony Lynch, James McElwee and Ann McElwee having, as appears by their answer filed, collected all the rents of the real estate aforesaid, or had the use thereof from the fourth day of August, 1886, they are hereby ordered to account for the same to the parties entitled thereto.</p> <p>4. That the real estate aforesaid be parted and divided among the several persons entitled thereto according to law and the practice in chancery.</p> <p>5. This cause is referred to Joseph Savidge, Esq., as master and commissioner: (1) To state an account of the mesne profits arising and accruing from the real estate aforesaid from the fourth day of August, 1886, and to submit a decree in conformity with liis findings. (2) To divide and partition the said premises described in exhibit B to the bill of complaint filed herein, into purparts; and to value the same, and do such further acts and things as are prescribed as the duties of a master and commissioner in such case by the laws of this commonwealth.</p> <p>On December 1, 1888, Mr. Savidge, as master and commissioner, made his report, finding the facts to be as stated in the bill, that division of the real estate could not be made to and among the parties entitled, without prejudice, etc., and recommending that a decree be made authorizing and directing him to expose the premises to sale, etc. To said report the defendants excepted that the master and commissioner erred:</p> <p>1. In finding that the real estate to be divided, descended on the fourth day of August, 1886, to the next of kin of Daniel J. Lynch, subject to the estate of the plaintiff, Virginia Reed Lynch, widow of Daniel J. Lynch, deceased, in one half part of said real estate, for the term of her life.</p> <p>2. In recommending that a decree be made authorizing and directing him to expose to public sale said real estate subject to the encumbrance thereon; and that a report of such sale be made to the court, and the proceeds thereof divided among the parties, next of kin of the said Daniel J. Lynch, according to their respective interests therein.</p> <p>3. In not finding that the said real estate in question, descended to and vested in Anthony Lynch, brother of Patrick Lynch, on the fourth day of August, 1886.</p> <p>These exceptions, being overruled by the master, were renewed before the court on the filing of the report, and, after argument, were dismissed, the court in banc, on December 29, 1888, entering a decree confirming the report and directing a sale of the real estate and the terms thereof. Thereupon, the defendants took this appeal, specifying for error the decree dismissing the exceptions filed to the report and directing the sale of the real estate, etc.</p>

<p>APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY.</p> <p>No. 37 July Term 1889, Sup. Ct.; court below, No. 345 December Term 1887, C. P. No. 3.</p> <p>On December 3,. 1887, Noah Wachter brought assumpsit against the Phoenix Assurance Company of London, upon a policy of insurance against loss by fire. The defendant pleaded non-assumpsit and payment with leave. •'</p> <p>At the trial on February 11, 1889, the following facts were shown: The defendant company was an English corporation, engaged in the business of insurance against fire within the United States. Its business in this country was under the direction of a general agency at New York city. Washington Irving, one of its special agents, had the general control in its New York office of the business in the state of New Jersey. In the year 1885, Tuller & Wanser of Vineland, New Jersey, were the agents of the company for the southern part of that state, and J. P. Spofford, of Holly Beach, N. J., was under appointment by Tuller & Wanser, ratified on behalf of the company by Irving, to act as a solicitor of insurance of said company. Irving testified that Spofford had no authority to make contracts for the company, his authority being limited to soliciting applications for policies.</p> <p>During the summer of 1885, Charles Otto Wade erected a cottage upon a lot of ground owned by him, at Anglesea, N. J. While it was in process of erection Spofford went to Wade and asked him to have the building insured in the defendant company. Wade agreed to take a policy for $1,000, and such a policy was issued on December 24, 1885, by Tuller & Wanser at Vineland, and delivered to Wade through Spofford, who collected the 'premium upon it. The policy contained the following provisions :</p> <p>“1. If the property be sold or transferred.....or any change take place in title or possession.....whether by legal process or voluntary transfer, or conveyance.....this policy shall be void.”</p> <p>“ 6. The use of general terms, or anything less than a distinct, specific agreement, clearly expressed and indorsed on this policy, shall not be construed as a waiver of any printed or written conditions or restrictions therein.”</p> <p>“ 8. It is a part of this contract that any person, other than the assured, who may have procured this insurance to be taken by this company, shall be deemed to be the agent of the assured named in this policy and not of this company, under any circumstances whatever, or in any transactions relating to this insurance.</p> <p>“ 9. If this policy is made payable in case of loss to a third party, or held as collateral security, the proof of loss should be made by the party originally insured, unless there has been an actual sale of the property insured. All fraud, or attempt at fraud, by false swearing or otherwise, shall cause a forfeiture of all claim on this company under this policy.”</p> <p>Some time after the date of the policy, Wade borrowed from Noah Wachter $850, upon a mortgage of the property covered by the policy, and went to Spofford and requested that the policy be transferred to Wacbter as mortgagee. Spofford took the policy and said he would attend to it. Subsequently, Wade and Wacbter went together to see Spofford about the matter of a transfer. Spofford then took the policy out of his desk and in the presence of Wade and Wachter wrote upon it the words, “loss, if any, payable to Noah Wachter, mortgagee,” handed the policy back to Wade, and said it was all right now. Wade at once handed it over to Wachter.</p> <p>Spofford reported the indorsement of this clause upon the policy to Tuller & Wanser, who made an entry thereof upon their books and forwarded a report of it to the general office at New York. The latter report was received at New York in February, 1886, and upon its receipt, the clause “ loss, if any, payable to Noah Wachter, mortgagee,” was entered upon the company’s books in the New York office.</p> <p>In the summer of 1886, Wade sold his property to one Dougherty, subject to Wachter’s mortgage, the sale being consummated by a deed dated June 2,1886. Wade went to Spofford at the time of making thjs sale, told him of it and asked him about making a transfer of the policy. Spofford replied, “ You don’t need to do that, because it is already transferred to Wachter as mortgagee.” Wade said, “Then it is all right as it is, is it?” Spofford answered that it was, and nothing more need be done about it.</p> <p>Irving testified that the company had in use a blank form containing a mortgagee clause, known as a “ rider to policy,” providing that no act of the mortgagor in violation of the conditions of the policy should affect the mortgagee ; and, for attaching such a clause to a policy, taken out by a mortgagor and desired to be used as collateral security for the payment of a mortgage, there was no extra charge.</p> <p>The insured building was totally destroyed by fire during the term of the policy, on December 5,1886, being at that time in the possession and occupancy of Dougherty. Proofs of the loss were sent to the company by Wachter. Soon after, he was informed by an agent of the company that new proofs must be executed by himself and Wade. This was done. In the second set of proofs the ownership of the property was stated to be in Wade.</p> <p>The plaintiff was offered as a witness to prove that this statement was understood by him at the time of it to mean that Wade was the owner of the property when the policy was issued, and that there was no fraud intended in the statement as to ownership in the second proofs of loss; that this misstatement was a simple mistake.</p> <p>Objected to by the defendant.</p> <p>By the court: Objection overruled; exception.1</p> <p>Witness then testified as followsThe first proofs of loss were made by Mr. Black in Camden and he sent them on to the company. (Proofs of loss shown witness.) Yes, these are the papers. I signed them.</p> <p>Q. What was said when the proofs were signed ? A. Some time after the first proofs were sent, Mr. Black sent for me again, and said the company required Wade to sign the proofs, because the policy was in Wade’s name. I hunted up Wade, and got him afterwards to go over to Camden with me. I think Mr. Learning was in the office that time. Learning was Black’s partner; he said the company wanted Wade to sign too, and he had made out the second proofs; he told us the second proofs were just like the first, only they were to be signed by both Wade and myself. They were not read to us. He explained what they were. I understood they were like the first ones, and we both signed them.</p> <p>At the close of the testimony, the defendant requested the court to charge the jury:</p> <p>1. The insurance being upon the interest of Wade, the mortgagor and owner, if you find that he had parted with that interest before the fire, no loss was sustained by him and none is recoverable by his appointee, and your verdict should be for the company defendant.2</p> <p>2. The defendant contracted with Wade, and not with the plaintiff. The company agreed, upon the performance of certain conditions, to pay for Wade to the plaintiff certain money. There is in evidence a deed from Wade to one Dougherty, made prior to the fire. If you find this to be the deed of Wade, its effect was to devest him of his interest as owner, and in accordance with the conditions of the policy, the insurance immediately terminated, and your verdict should be for the company defendant.3</p> <p>3. If you find from the evidence that Wade violated any other of the conditions of the policy, either as to the ownership of the property, encumbrances thereon, its occupation in such a way as to increase the risk, or by false representations in the proofs of loss, then his appointee, Wachter, cannot recover, and your verdict should be for the company defendant.4</p> <p>4. The execution and validity of the deed from Wade to Dougherty are not disputed; therefore, I instruct you that at the time of the fire Wade had no interest in the property destroyed, and his appointee and mortgagee cannot recover in this suit. Your verdict must be for the defendant.5</p> <p>5. As the proofs of loss did not show the true ownership of the property, your verdict should be for the defendant.6</p> <p>6. Under all the evidence in this case, your verdict must be for the defendant.7</p> <p>The court, Fjoelexier, P. J., refused these points, and instructed the jury to find a verdict for the plaintiff, subject to the opinion of the court in banc upon two questions of law reserved, to wit: (1) Whether the misstatement in the second proofs of loss “ that the property insured belonged to Charles Otto Wade, and no other person had any interest therein except Noah Wachter, whose only interest was as mortgagee,” whereas the said Wade had conveyed the property to Dougherty by deed dated June 2, 1886, duly recorded, avoided the claim under the policy; and (2) Whether the sale of the property and the change in the title by the conveyance by Wade to Dougherty, under the deed of June 2, 1886, and the taking of possession by Dougherty thereunder, avoided the policy.8</p> <p>The jury rendered a verdict in favor of the plaintiff for §980.50, subject to the questions of law reserved. Subsequently the court, after argument, discharged a rule for a new-trial and entered judgment for the plaintiff, Finlexier, P. J., filing an opinion in part as follows:</p> <p>We might very well regard Spofford as the agent of the defendant for all that was said and done in reference to the assignment of the policy. It is not, however, necessary to consider his general agency, or the extent of it. The company confirmed his act in altering the policy and delivering it in that condition to Wachter. He thereby became their agent for this particular matter, and what he said and did in reference bo it was binding upon them.</p> <p>The purpose of the alteration, as is manifest from the evidence, was to secure the mortgagee in the sum of $850. This was made known to Spofford, and he informed them that this purpose was effected by the alteration. Can there be any doubt that the words, “loss, if any, payable to Noah Wachter,” induced Wachter and Wade to believe that the mortgage loan was thereby secured, and that this confidence was confirmed by what Spofford said to them ?</p> <p>If there is any ambiguity about the words themselves, or their effect, they should be construed most favorably to the plaintiff. The company knew that this was not the usual way in which a mortgagee was secured. When they changed the form, it was their duty to see that no one who might have an interest in the matter was misled. Even upon the trial, and argument upon the rule, they have not attempted to explain what the alteration meant, or was intended to secure, or why they have departed from their regular form in securing a mortgagee.</p> <p>We have come to the conclusion that the policy as altered by the defendant was intended, either to make a new and independent contract with the plaintiff, or to give him the position and advantage which would have resulted to him if the policy had been assigned to him in the usual way. If we are correct as to this, it is not necessary to consider the question involved in the notice of loss. Judgment is entered for the plaintiff upon the points reserved.</p> <p>Thereupon the defendant took this appeal, specifying that the court erred:</p> <p>1. In admitting the plaintiff’s offer.1</p> <p>2-7. In not charging as requested in the defendant’s points.2 to 7</p> <p>8. In instructing the jury to find for the plaintiff, subject, etc.8</p>

<p>APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.</p> <p>No. 144 July Term 1890, Sup. Ct.; court below, No. 662 March Term 1889, C. P. No. 4.</p> <p>On April 29, 1889, Abraham H. Langfeld and others, trading as Langfeld, Lichten & Co., brought assumpsit against Gustav Lyon, filing a verified statement of claim for the recovery of the amount of a written order drawn upon the plaintiffs by tbe defendant in favor of C. E. Lynch, for $812.70, dated July 5, 1883, tbe order having been paid for tbe defendant by the plaintiffs.</p> <p>On May 8, 1889, the defendant filed an affidavit of defence averring that</p> <p>“ It is true that he had borrowed from tbe plaintiffs the sum of $312.70, but the same has been settled in full, and deponent does not owe to the plaintiffs one penny on account of said order, or on any other account, tbe sum called for being paid and settled in full. All of which lie expects to be able to prove at tlie trial of said cause.”</p> <p>On May 22,1889, a rule for judgment for want of a sufficient affidavit of defence was taken. This rule was made absolute on June 15, 1889; on June 17th, the sum due was liquidated at $423.96, and on tbe same day a writ of fieri facias was issued.</p> <p>On June 24, 1889, the following order was made: “Rule to show cause why the judgment should not be opened, and the within filed as a supplemental affidavit of defence in accordance with the order of June 15,1889, proceedings to stay meanwhile; to be filed nunc pro tunc.” *</p> <p>The supplemental affidavit of defence referred to in the foregoing, verified by the defendant in Chicago, averred as follows :</p> <p>“ At the time said due-bill was given by this deponent, he and Moses H. Lichten were engaged in a business known as the Reticher Cured Feed Company, in the city of Philadelphia; that when deponent received said sum he borrowed it from the plaintiffs for the use of said business; that in a very short time thereafter he paid to said plaintiffs a check of about $160 on account of said loan. Deponent further says that soon after the payment made by him, his partner, Moses H. Lichten, who was a member of plaintiffs’ firm, and a member also of said Reticher Feed Company, paid to the plaintiffs the balance of said due-bill. Deponent further says that he has been absent for some weeks from Philadelphia, and is now at Chicago, 111., and will be absent on business until July next; that not having the books or memoranda at hand he cannot give the dates of payment, but he says positively, that said due bill is fully paid; that before leaving the city of Philadelphia he called on the plaintiffs, who then informed him that he did not owe one cent to said firm, that said due bill was fully paid; that if necessary, on his return he can give the dates of payment; that in the absence of his books he cannot give dates, but he can say that said due bill was paid in the manner as stated, and that said plaintiffs admitted to him in the early part of May, 1889, that it was paid, and that they have no claim thereon. Deponent further says, that he believes that said suit is brought by some other person in the name of plaintiffs’ firm without their knowledge and consent, and not by them, simply to annoy and harass deponent, and he says this because he knows the instrument on which suit is brought is paid.”</p> <p>On June 29, 1889, the rule granted was discharged; whereupon the defendant took this appeal, specifying that the court erred “ in entering judgment for $423.06 on the ground that the original and supplemental affidavits were insufficient.”</p>

<p>APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.</p> <p>Nos. 127, 128 July Term 1889, Sup. Ct.; court below, Nos. 89, 88 June Term 1887, C. P. No. 4.</p> <p>CLEMENTS Y. RAILROAD CO.</p> <p>Oil June 8, 1887, Joseph C. Clements and Margaret his wife, brought assumpsit against the Schuylkill River East Side Railroad Company and tbe Union Trust Company, to recover upon tbe penal bond of tbe defendant companies to tbe plaintiffs. Issue.</p> <p>At tbe trial on May 8, 1889, tbe plaintiffs put in evidence a sealed contract between Joseph D. Ellis, of the one part, and Joseph C. Clements and Margaret Clements, of tbe other part, providing as follows:</p> <p>“ Wliereas, by ordinance approved July 3, 1885, it was provided that the change of grade on Hamilton street should be made by the city of Philadelphia, and all expenses of the same firskpaid by the city of Philadelphia, including all damages to the property-holders, which amount it is afterwards provided should be paid by the Schuylkill River East Side Railroad Company to the said city.</p> <p>“ Now for the purpose of facilitating this change of grade, this agreement made this first day of March, 1886, between Joseph D. Ellis, of the first part, and Joseph C. Clements and Margaret Clements, the owner of 2503 Hamilton street, of the second part, witnesseth that the said J. D. Ellis agrees at his own proper expense to raise the house 2503 Hamilton street to the new grade of the city, as provided for in the ordinance aforesaid, fill up the cellar of said house and cement the floor of same with good cement and sand, to pay for all damage done to furniture or building, to replace all existing arrangements for water, gas, sewerage, and heater, and connections for heating, etc., the said house, and to pay the said Margaret Clements as damages in full for the said change of grade in front of 2503 Hamilton street, including all damages arising from the inconvenience to herself and family, the sum of $500, and the further sum of $160 per week for each and every week after the expiration of thirty days from the date of delivery of the property to the party of the first part.....</p> <p>“And for the faithful performance of the above contract, on the part of the said J. D. Ellis, he agrees to procure and deliver to the said Joseph-C. Clements and Margaret Clements, the owner, the bond of the Schuylkill River East Side Railroad Company in the sum of $10,000, the said bond being fully secured by the indorsement of security of the Union Trust Company of Philadelphia.....”</p> <p>The plaintiffs then put in evidence the bond of the defendant companies to the plaintiffs, dated March 6, 1886, in the sum of $10,000, with the following recital and conditions:</p> <p>“Whereas, a contract has been entered into by Joseph D. Ellis to raise house No. 2503 Hamilton street, the title to the said property standing in the name of Margaret Clements, to the new grade of Hamilton street, as fixed by the ordinance approved July 3, 1885, the said contract being hereunto attached.</p> <p>“Now the conditions of this bond are, that should the said J. D. Ellis fully and faithfully comply with the terms of this contract, made March 6, 1886, then and in that event, this bond will be null and void; and if he should not comply with the terms of the said contract, and if in the execution of the said contract any damage should be done either to the building or the furniture of the said Margaret Clements, which he shall notTepair or make good, then and in that event this bond is to be security for the full amount of the said damage or injury done as aforesaid.”</p> <p>It was shown that the grade of Hamilton street, as established by the ordinance of July 3, 1885, was at the rate of 5 feet to the 100, but that on November 23, 1885, the board of surveyors of the city refused to confirm the grade fixed by said ordinance, and referred the matter back to councils; that on April 5, 1886, an ordinance was passed amending the ordinance of July 3, 1885, and fixing the grade of Hamilton street at 5.28 feet to the 100; and that Ellis was given possession of the plaintiffs property on March 8, 1886, and proceeded with the work almost immediately. The testimony as to when the property was ready for occupancy, and when re-possession of it was delivered, was conflicting, the plaintiffs testifying that they did not obtain possession until December 14, 1886. The sum of $500, provided for by the contract as damages to the real estate, was paid by Ellis to the plaintiffs, who in this action claimed $200 for injuries to the furniture, etc., and $150 per week as stipulated damages for the delay in the completion of the work. It was in evidence that the real estate of the plaintiffs was worth about $3,000, with a rental value of $25 per month.</p> <p>At the close of the testimony, the court, Abnold, J., charged the jury in part as follows :</p> <p>[I will, before I go to the next part of the case, say to you that it is of no importance in this case whether the grade was actually confirmed by the city surveyor before possession was taken, or afterwards. It is undoubtedly the fact that a change of grade was contemplated by ordinance approved July 3,1885; and it was in anticipation of that change of grade that this contract was made. Now, if the grade had never been changed, Mrs. Clements could not compel Mr. Ellis to raise her house up, but as Mr. Ellis went on under the contract, and did commence to raise the house, he and his sureties are responsible, under the contract, for all damages done in case any were done. It has turned out that the grade has been changed. I say it is unimportant, in view of the fact that Mr. Ellis took possession and carried out the contract, or attempted to do so, when it was changed, before or after the raising.] 6</p> <p>Mr. Ellis went on with the contract and took possession. Has he complied with his contract to put the building in good condition ? Has he indemnified her against damage ? In other words, has he given her property back to her without damage ? All these are matters for you. [I say to you that the-important part of this case, to which I now come, is that which relates to the sum claimed, of $150 per week. I do not say to you for what period of time or what space of time that was to be paid. It is something which the contract itself does not mention. Counsel themselves have not alluded to it. I have read the contract with considerable care, for the purpose of seeing whether there was anything in it to fix the time when the payment of the $150 stopped. If you take the contract itself for a guide, it would never stop. He agrees to pay her the further sum of $150 per week for each and every week after the expiration of thirty days from the date of the delivery of the property to him. When did it stop ? It nowhere appears upon that contract when it is to stop. This furnishes, therefore, what we call in law a latent or hidden ambiguity. It is not a matter which I can decide for you. It is a matter for you to decide. What was the intention of the parties in this respect? Was he to pay her $150 a week permanently and forever ? That would not be reasonable. Then, when was it to stop? Was it to stop from the time, as the plaintiff says, when they gave possession to her? Well, that might not be reasonable either.. The contract does not say that they shall give back possession.</p> <p>I think a reasonable construction of the contract is, that they were to pay $150 a week after the expiration of the thirty days, up to the time that she might have got possession; or, in other, words, to pay for such time as the contractor here, and the workmen, kept her out. In other words, I do not think —though it is a question for you to say, and I will leave it to you to say^ — I do not think that the company was bound to go to her at any particular time and say, “ There is your house, Mrs. Clements, and that stops our $150 a week; ” but I do think that the reasonable meaning of the parties was, or that the construction of this agreement is, that $150 a week was to be paid during such time, after thirty days, as Ellis kept her out. Now, how long was that?..... I think it would be well then for you to inquire, as an important element in this case, when it was that this house was raised and finished to a proper state to permit her to resume possession of the property, and to allow her for such time as she was kept out by the act of Mr. Ellis, or his agents or workmen.....</p> <p>That is a matter altogether for you to determine upon the evidence. I have no opinion whatever to give you, and leave it to you to inquire how long it was that Mrs. Clements was kept out of possession of the property by the occupancy of it, or by its not being completed under this contract.] ^</p> <p>[If she was kept out by reason of the house itself not being finished or completed for her to go into until December, she is entitled to her demurrage of $150 a week, or liquidated damages, I will call it, of $150 a week; but if you think that athat is too long; if you believe that she could have gone in that house say in May, June, August or September, as well as in December, when she did go there, then this sum of $150 a week ought to be stopped. How long she was kept out by reason of this contract being uncompleted, is a question for you. Having fixed how long she was kept out, you may then allow her the sum of $150 a week after the expiration of thirty days from the time they took possession, which seems on all sides to be March 6th or March 8th.] 8 ... .</p> <p>The defendants request the court to charge you, as follows [inter alia] :</p> <p>2. The weekly amounts named in the contract in case of delay in the completion of the work, upon which the plaintiffs rely for a verdict, are to be considered as a penalty, and not liquidated damages. The jury, therefore, cannot in any event allow any larger sum as damages for delay than that sum which will repay for actual losses proved by the plaintiffs due to such delay.</p> <p>Answer: Refused.10</p> <p>4. If the jury find the plan of grade contemplated by the ordinance of July 3, 1885, and referred to in the contract, as regulating the execution of said contract, was not carried into effect because of a refusal by the hoard of surveyors to confirm said plan, but on the contrary, that the plan finally confirmed was confirmed under and by virtue of an ordinance of April 5, 1886, and according to a different grade regulation of 5.28 feet per 100 feet, then the contract in suit cannot be enforced according to its terms. The establishment of the grade regulation of 5 feet in the 100 contemplated by the ordinance of July 3,1885, was a condition precedent to its fulfilment, and the plaintiffs cannot demand anything more than reasonable promptness and speed in the execution of the work under all the facts incident thereto.</p> <p>Answer: Refused.13</p> <p>The jury returned a verdict in favor of the plaintiffs, for damages to the house and furniture, $200; for 28 weeks’ delay, $4,200; total, $4,400. A rule for a new trial having been discharged, the defendants took the appeal to No. 128, assigning for error [inter alia] :</p> <p>6-8. The portions of the charge embraced in [ ] 6 t0 8</p> <p>10-12. The refusal of the defendants’ points.10 13</p> <p>THOMPSON V. RAILROAD CO.</p> <p>On June 3, 1887, William R. Thompson brought assumpsit against the Schuylkill River East Side Railroad Company and the Union Trust Company, to recover upon the bond of the defendant companies to the plaintiff, dated March 24, 1886, in the sum of $7,000. Issue.</p> <p>This cause was tried on May 21, 1886, before Arnold, J., when the case shown was in all respects the same as that shown in Clements v. Railroad Co., supra, except that damages were claimed only for the delay in completing the work of raising the plaintiff’s dwelling, which adjoined that of Mr. and Mrs. Clements, fronting on the same street. The jury returned a verdict in favor of the plaintiff for $2,800, and judgment having been entered the defendants took the appeal to No. 127, filing specifications of error raising the same questions raised in the preceding case. The two cases were argued together in this court by the same counsel.</p>

3 OF PHILADELPHIA COUNTY. No. 37 January Term 1890, Sup. Ct.; court below, No. 392 June Term 1888, C. P. No. 3. On August 17, 1888, Washington F. Williamson brought trespass against Charles H. Krumbhaar, sheriff of Philadelphia county, to recover damages for the alleged improper allowance by the defendant of a claim for exemption made by one George W. Rudder, a judgment debtor of the plaintiff. The defendant’s plea was not guilty.

<p>APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY.</p> <p>No. 146 July Term 1889, Sup. Ct.; court below, No. 872 June Term 1888, C. P. No. 1.</p> <p>On July 13, 1888, the Third Reformed Dutch Church of Philadelphia brought assumpsit against Daniel S. Jones, filing a statement of claim which averred as follows:</p> <p>That the plaintiff was duly incorporated on March 17, 1888, and prior to the year 1883, the defendant was and had been for some years treasurer of said church, and as such he held and was possessed of various books of accounts relating to the financial affairs of the church; also, a sum of money now amounting to about $12,000, part of the proceeds of sale of a former church building; also, certain other moneys for the sale of pews, rent of organ, etc., amounting to $2,000; and also had in his hands a certain legacy of $3,000, bequeathed to said church by Mrs. Ann Hertzog, deceased.</p> <p>“ 3. In the year 1882, the former church building at Tenth and Filbert streets having been sold, the congregation of the said plaintiff removed their place of worship to 909 North Broad street, and afterwards to 857 North Broad street, where it has since maintained and is now maintaining the regular services of the Church, in communion with the Reformed Dutch Church in America, the successor to the Reformed Dutch Church in North America, in said charter mentioned. The said defendant being dissatisfied with the removal of the Church, thereupon abandoned the said Church and congregation, nor has he since worshiped with them, and has wrongfully and illegally retained from the plaintiff the sums of money, books and funds belonging to the said plaintiff and denies the right of the said plaintiff to possess the same, although the General Synod of the Reformed Church in America, the Particular Synod of New Brunswick, and the Classis of Philadelphia, being all the church courts or judicatories of the denomination to which the plaintiff belongs have held ‘ that the Church now worshiping at 857 North Broad street, together with all who are in good and regular standing therewith, are the legitimate Third Reformed Dutch Church of Philadelphia.’</p> <p>“4. That the term for which the defendant was elected trustee and treasurer of the plaintiff expired in January, 1883; thereupon, P. W. Dedlow was elected in his place as trustee, and the board of trustees of the plaintiff, duly elected by the holders of sittings, in accordance with the charter, thereupon elected Adrian Van Helden treasurer of the plaintiff, in the place of and as successor to the said defendant. The said Adrian Van Helden, under the direction of the board of trustees of said plaintiff, has made demand upon the said defendant for the delivery of the money, books and papers in his hands, the property of the plaintiff, which the said defendant then and constantly since has refused to do.”</p> <p>On November 1, 1888, in pursuance of a rule taken, the plaintiff filed a warrant of attorney to Mr. J. Rodman Paul, and on December 10, 1888, the defendant filed an affidavit of defence which averred, inter alia:</p> <p>“3. The congregation of the corporation plaintiff never removed their place of worship to 857 North Broad street, and never worshiped there. Certain persons seceded from the regular congregation and removed there, but they did this illegally, and not with the assent of the corporation plaintiff. It is not true that I abandoned the Church or congregation. I have not worshiped with said seceders, but I have at all times maintained my connection with said congregation, and with the Church. I do retain sums of money, books and funds belonging to the corporation plaintiff, but I do this as the treasurer regularly appointed by the board of trustees, who maintain me in said treasurership, and have never removed me.</p> <p>“ 4. I deny the truth of all the averments in the fourth paragraph, saving that it is true I have refused to deliver said money, books and papers to the said Van Helden. I deny, that the said Yan Helden is the treasurer of the Church; that the board of trustees have ever requested me to deliver said property to said Yan Helden, or any other person. I aver that the board of trastees desire me to retain them.”</p> <p>“ 6. I aver that the present suit is not brought by the corporation plaintiff, nor at its request, nor with its assent. I aver that certain seceders from the Church, including George F. Gordon and Adrian Yan Helden, have brought suit without authority, and with the intent of possessing themselves of the funds of the Church without proper authority. I aver that the seal to the warrant of attorney filed is not the true seal of the corporation plaintiff, which is in my custody as treasurer of the trustees. The seal to said warrant is one which has been made by said seceders, without any authorization by the corporation plaintiff. I believe, and expect to prove, that a certain fund of $3,000, referred to in the statement, which was paid over by me to Mr. Gracey, treasurer of the Sunday-school, was subsequently appropriated by said Gordon after it had been thus received, and was converted to his individual use.”</p> <p>On January 7, 1889, a rule was taken for judgment for want of a sufficient.affidavit of defence, and on June 13th, after two supplemental affidavits of defence were filed by leave of court, the rule was made absolute, and judgment entered for the plaintiff and against the defendant for $8,000 United States four per cent bonds; for certain account books, and for $3,458.52, the amount of the Hertzog bequest and interest, with a condition that execution should be stayed to the extent that might he necessary to protect the defendant as garnishee in a certain judgment in attachment. Thereupon the defendant took this appeal, assigning the order entering said judgment as error:</p>

<p>1. When time is not of the essence of the contract, either expressly or from the very nature of the subject, equity will specifically enforce an agreement to sell real estate, notwithstanding the vendee has not tendered performance within the time limited therefor, unless there has been gross laches on his part, or a change of circumstances rendering such enforcement inequitable.</p> <p>2. An enhancement in the price of lands in the neighborhood, subsequent to the date of the contract, does not constitute such a change of circumstances, when it appears to have arisen from the making of a number of purchases by the vendee, and not from a general demand for property, and no perceptible rise is shown to have occurred during the period of the vendee’s delay.</p> <p>(a) The defendant g’ave to the plaintiff a receipt for $50, deposited to secure the consummation of an agreement for the sale by the former to the latter of certain described real estate, the terms of sale being stated in the receipt to be that the price, $6,000, should be paid in cash upon the delivery of a deed to the plaintiff within sixty days from date.</p> <p>(b) The receipt stipulated further that the deposit should be returned in default of such conveyance within sixty days, or, on failure to make settlement within said time, it should be forfeited and treated as liquidated damages; otherwise, to be treated as part of the purchase money and credited thereon in the settlement:</p> <p>3. The contract set out in this receipt was not a mere unilateral agreement, nor such a contract as equity would not enforce specifically; the receipt having been signed by the vendor and delivered to and accepted by the vendee, it created a binding contract specifically enforceable by the latter, notwithstanding that it was not signed by him.</p> <p>4. Whether lime was of the essence of this contract or not, equity would not so treat it when the parties themselves did not, and when the first intimation from the vendor that time was matex’ial came after a dispute on a collateral matter arising three days subsequent to the time limited, during which delay the contract was recognized by the vendor as still in force.</p>

APPEAL BY MIRIAM HELE FROM THE ORPHANS’ COURT OF PHILADELPHIA COUNTY. No. 173 July Term 1889, Sup. Ct.; court below, number and term not given. On February 8, 1889, the account of the Pennsylvania Company for Insurance on Lives and Granting Annuities, trustee of Rebecca Cridland, deceased, under the will of Miriam Cridland, was called for audit.

3 OF PHILADELPHIA COUNTY. No. 85 January Term 1890, Sup. Ct.; court below, No. 711 December Term 1886, C. P. No. 3, in Equity.

<p>APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY.</p> <p>No. 104 January Term 1890, Sup. Ct.; court below, number and term not given.</p> <p>On August 14, 1888, judgment was entered in the court below in favor of the Real Estate Investment Company of Pbiladelpbia and against Oliver Roop and Fanny C. Roop, upon a note with warrant of attorney for f680, dated August 14, 1888, and payable one year after date. The note did not disclose the consideration of the indebtedness evidenced by it. On August 13,1889, upon the petition of the defendants a rule was granted to show cause why the judgment should not be opened and the defendants let into a defence. Neither this petition, nor the answer thereto, was presented in the paper-books.</p> <p>Testimony taken and filed on the part of the petitioners showed that the note for $680 was given for a loan of $500, $180 of the note being for interest for one year at the rate of three per cent per month upon the amount of the loan; that this loan was made to Oliver Roop, the husband of the other defendant, and that his wife, Fanny C. Roop, signed the note as his surety; that the money was paid by checks drawn to her order and was afterwards handed by her to her husband; that the entire amount of the loan was used by Oliver Roop in payment of his business debts and otherwise in connection with his business of furniture storage, carried on by him under the name of Roop & Co., in a building owned by his wife, and that in this business the wife had no interest, nor was she engaged in any business.</p> <p>Testimony taken on tbe part of the plaintiff in the judgment showed that some time prior to the making of the loan, when Mrs. Roop was consulting with the loan agent who negotiated it about a mortgage which was up>on her property, she told the agent that in consequence of the intemperate habits of her husband, “she had to manage the business; she had to conduct the business, it was in her own hands; that business was dull, and that was why she had been unable to pay the interest on the mortgage.” Their testimony was to the effect also, that this loan was made upon the wife’s credit, in the transaction she was treated as the borrower, she had objected to the payment of the proceeds to her husband, and required the checks to be drawn to her order.</p> <p>After argument, the court, without opinion filed, discharged the rule to open the judgment, etc., whereupon the defendants took this appeal, specifying that the court erred :</p> <p>1. In discharging the rule to open the judgment.</p> <p>3. In not striking off the judgment as to Fanny C. Roop.</p> <p>5. In not striking out of the judgment the usurious interest included in it.</p> <p>1. The execution of the note in suit was in excess of the contracting power of Fanny C. Roop. From Dorrance v. Scott, 3 Wh. 309, down to Sellers v. Heinbaugh, 117 Pa. 224, this court has uniformly held that the bond of a married woman is void except when given for the purchase money of land, and even in that case it is enforceable only against that land and not as a personal obligation. The policy of the court has always been against an extension of this liability, and in favor of protecting to the fullest extent the married woman’s estate and property: Schlosser’s App., 58 Pa. 495; Mahon v. Gormley, 24 Pa. 82; and see Huyler v. Atwood, 26 N. J. Eq. 504. The Married Person’s Property Act of June 3,1887, P. L. 332, has not changed this policy except as to three classes of contracts: (a) contracts relating to any trade or business in which the married woman may engage; (J) contracts for necessaries; and (e) contracts for the use, enjoyment and improvement of the wife’s separate estate.' The general language authorizing the making of “ contracts of any kind,” and the giving of notes, etc., “of any kind,” must be understood as confined to contracts and obligations entered into and given in the exercise of the powers conferred respecting the three classes of subjects specified: Endlich & Richards on Married Women, § 101. Had the legislature intended to validate all contracts not expressly prohibited, there would have been no necessity for the enumeration in § 2 of the authorized contracts.</p> <p>2. Neither the record nor the testimony reveals a contract which it was within the power of Mrs. Roop to make. On the uncontradicted evidence, the loan had no relation to any of the subjects upon which the act of 1887 authorizes her to make contracts, but the money was used by her husband for his own purposes. A case almost exactly in point, and showing the judgment to be void, is Bank v. Smith, 43 Conn. 327. When the record shows no ground for the lawful entry of a judgment, the judgment will be set aside: Ringwalt v. Brindle, 59 Pa. 51; Commonwealth v. Hoffman, 74 Pa. Ill; Post v. Wallace, 110 Pa. 125. In actions against married women under the act of April 11, 1848, P. L. 536, it has always been held requisite that the record disclose a cause of action within the provisions of the act; and if it do not, the defect is fatal to the judgment: Parke v. Kleeber, 37 Pa. 254; Dearie v. Martin, 78 Pa. 58, Hecker v. Haak, 88 Pa. 242; Hoff v. Koerper, 103 Pa. 398; Gould v. McFall, 111 Pa. 67; Fenn v. Early, 113 Pa. 268; Needham v. Woollens, 14 W. N. 526. This rule has been applied even in a case where the evidence disclosed a contract within the powers conferred on the married woman by the act of February 29,1872, P. L. 21; as the record of the judgment did not show what the note upon which it was entered was given for, the judgment was held irregular and stricken from the record: Baker v. Singer Mfg. Co., 122 Pa. 370. It is submitted that the same rule applies under the act of 1887: Endlich & Richards on Married Women, §§ 288, 291, 292.</p> <p>3. The court should have reduced the judgment by striking out the usurious interest. While it may not be the intention of the plaintiff to collect this, the defendants have the absolute right to have the illegal consideration excluded from the judgment. Mrs. Roop should have been let into a defence on the ground that she executed the note as surety for the husband. If she was merely surety, the note was void under the act of 1887, and the evidence supports her contention in this respect. The facts of the present case show forcibly to what extent the separate estates of married women will be jeopardized, unless their liability under the act of 1887 is confined strictly to contracts made for their benefit.</p>

<p>APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY.</p> <p>No. 473 January Term 1889, Sup. Ct.; court below, No. 127 March Term 1888, C. P.</p> <p>On February 20,1888, Helen L. Thomas brought trespass against the Citizens Passenger Railway Company of Norris-town, Pa., to recover damages on account of a collision between a street car of the defendant company and the plaintiffs carriage, alleged to have occurred through the defendant’s negligence. The defendant’s plea was not guilty.</p> <p>At the trial on December 19, 1888, the following facts were shown: The defendant company maintains and operates a street railway in the borough of Norristown. Its cars are drawn by horses over a single track laid along the middle of Main street. On the afternoon of December 5, 1887, the plaintiff drove down that street in her phaeton, and stopped and hitched her horse in front of a store below the corner of Main and DeKalb streets, his head pointing down Main street. When she had attended to some errands she returned, and, unhitching the horse, got into the phaeton. After doing so and before starting her horse, she heard the tinkle of the bells upon the horses attached to one of the defendant’s street cars, approaching from behind her upon Main street, on a descending grade. She tried to look back along the street, but the phaeton being closely curtained, she was unable to see the car. She started with the intention of driving down the street a few steps, crossing the rails and proceeding up the street again on the opposite side of the track, thus describing a curve almost in the form of a semi-circle. When she reached the rails and her horse had just started across them, she first caught sight of the car, her view having been obstructed until then by the curtains of her carriage.</p> <p>The plaintiff testified that when she saw the car she did not turn back to let it pass, because it was at least thirty feet from her, and she had reason to think there was time to cross in front of it; did not think there was any risk about it. When, however, the phaeton was almost half way over the track, the car collided with it, wrecking it and injuring the plaintiff’s horse, and, although she herself was not physically injured, she suffered afterward from a shock to her nervous system occasioned by the fright connected with the collision. The plaintiff called, also, Charles M. Wilson, George Holland and Andrew Fox, all of whom witnessed the accident. Their testimony tended to show that the horses drawing the car were proceeding down Main street at a pretty good trot; that, as the car crossed over DeKalb street, the driver looked to one side, along that street, though his head was not turned that way very long; that when his horses had crossed over DeKalb street, but his car was still on it, and Mrs. Thomas’s horse was just stepping on the car track, about twenty-five feet in advance of the car, Wilson called to the driver to hold on, or he would run into the lady’s carriage; that no whistle was sounded by the driver, and the car kept on until it struck the phaeton. Holland said that he did not suppose the accident would have happened if the driver had not looked down DeKalb street, and Wilson and Fox expressed the opinion that he had time to stop the car after Mrs. Thomas started to cross the track. Neither of these witnesses, however, was shown to have any experience or knowledge in the matter of stopping street ears. Wilson testified that he saw the driver apply the brake and swing his horses around to one side, until they were outside the track. Portions of the testimony for the plaintiff are more fully stated in the opinion of the Supreme Court, infra. A plot which was in evidence for the plaintiff, tended to show that the distance between the positions occupied by the car and phaeton respectively, according to the testimony of her witnesses, at the time the plaintiff started to cross the track, was greater than any of the estimates placed upon it by witnesses, and was in reality somewhere near fifty feet.</p> <p>At the close of the plaintiff’s testimony, the defendant moved for judgment of compulsory nonsuit. The court, We AND, J., refused the motion, delivering an oral opinion which is quoted in the opinion of the Supreme Court, infra. The defendant then called witnesses whose testimony tended to show that, at the crossing of DeKalb street and afterward, the car was going not faster than at the rate of four or five miles an hour; that the driver was holding the reins in his left hand and had his right hand on the brake; that while crossing DeKalb street he looked to each side, in compliance with a rule of the company, to see whether there were any persons on that street desiring to take passage on his car; that as soon as he saw the plaintiff’s carriage on the track, he applied the brake and exerted all his force to stop the car, and that, occupied as he was, he did not have time to whistle. Charles Mathias, the driver of the car, testified that he could have stopped it in fifteen or twenty feet, depending upon the gait at which he was going; that when he first saw the plaintiff, she was driving along side of him, and she whipped up her horse and attempted to cross the track immediately in front of his horses, and so close to them that the off horse threw his head around to let her pass. Charles A. Boettcher, who was a passenger upon the street car, testified that the plaintiff’s phaeton was about ten or eleven feet in front of the street-car horses when she attempted to cross the track. The testimony of other witnesses for the defendant tended to show that the distance between the vehicles was less than fifteen feet.</p> <p>At the close of the testimony the court, Weaiíd, J., charged the jury in part as follows:</p> <p>Under the common law, as well as under the statutory law, or ordinances of council, and because of the very necessity and the nature of a street railway, the company is entitled to certain privileges, because they are confined in this mode of travel to the rails, and it necessarily follows that it cannot conveniently turn from its track or avoid certain threatened dangers as can foot passengers or persons with other vehicles. And therefore, it would seem to bo the duty of a person traveling in an ordinary vehicle along the streets of a borough in which a street railway is laid, before attempting to cross it, to look to see whether there is an approaching car. A failure to do so, if a person would cross immediately in front of a car, would be such contributory negligence as would prevent the recovery for damages ensuing thereby. So it would be if a person were to attempt to cross a street without looking, immediately in front of an approaching carriage, because one person has no right to cross a street without looking to see whether there is threatened danger.</p> <p>Now, then, every person in Norristown has a right to cross the tracks of this railway company, provided they do so in a proper manner. A person approaching a car on a street railway is bound to give the right of way to the car for the reasons I have stated, and so a person driving alongside of a street car in the same direction in which it is going would have no right to attempt to cross the track, if by doing so the car would be obliged to stop, because the car would have the right of way. But if a person attempts to cross the tracks at what might appear to be a safe and convenient distance, and if, being in that position, a car should approach and the driver in the course of his duty should see a person in that position, it would be his bounden duty, if he could, to stop his car and not to run down the person so situated. And therefore, [although in this case you should find that this lady may have attempted to cross this track, at what might have appeared to be an unsafe distance, yet if, being in that position, the driver of the street car could have seen her, or did see her, and could have stopped his car in time to avert the accident, it was his duty to have done so. and if he did not, his company would be liable for damages.] 3 Therefore as a result of this, if you should find that this accident was occasioned by the negligence of Mrs. Thomas, she cannot recover, no matter to what extent that negligence contributed to the accident. If it contributed in any manner to the accident she cannot recover. But if it was occasioned by the failure of this street-car driver to stop his car, if he could have done so, then she could recover and the company is liable. Now, keeping in view this principle, let us briefly examine the testimony of this case.....</p> <p>Now, gentlemen of the jury, keeping in view the distances, as testified to by the various witnesses, in your opinion was this driver careless in not stopping his car from the time when he saw, or ought to have seen her, after he crossed DeKalb street? [You will remember this distance is estimated to be from twenty to thirty feet, and he testifies his car could be stopped within a distance of fifteen or twenty feet.] 4 'He had a right to look up and down DeKalb street for approaching passengers, provided it did not interfere with his sight of obstacles on the road before him; for, although this company might by its rules and regulations require its drivers to look for passengers, his primary duty was to look in front of him, so as to avoid accident from persons approaching or crossing his track. Now, [if you find that from the time when he crossed DeKalb street he could have seen this lady crossing the tracks, by the proper performance of his duties, and if he ought to have seen her, and that he had time to stop before he struck her and did not, then he would be guilty of such negligence as would render his company liable in this action.] 5 You will remember all the testimony relating to this particular part of the case, as testified to by Mrs. Thomas, Mr. Wilson, Mr. Fox and Mr. Holland, and say from that as to whether this driver was guilty of negligence, if you find that she crossed this track at the distance specified by her witnesses.</p> <p>On the part of the defendant, however, it is claimed that this lady crossed this track immediately in front of the horses of this car. The driver testifies that he had the linos in his hands; that he had tight reins; that he had his hand on the brake; that the car was slow; and that as he was going down the street past Y ost’s store this lady was driving opposite his car, and that without any notice to him, she crossed, or attempted to cross immediately in front of his horses, almost touching the head of the near horse, and that this compelled him to pull his horses to the left, suddenly put on the brake, and thus cause the collision. If you find that statement to be true, then I charge you as a matter of law that there can be no recovery in this case; because, if this lady drove alongside this car, she necessarily must have known it was there, and if she did know it was there, she had no right to turn her horse across the tracks in the manner testified to by the driver of the oar. The defendants have also called another witness who was a passenger in this car, Mr. Boettcher, whose testimony varies to some extent from that of the driver, and partly, however, corroborates him. He states that he saw this wagon crossing this track and, when it did so cross, it was not more than ten feet from the head of the horses. Now, gentlemen of the jury, if she attempted to cross at that distance from these horses’ heads, was or was not that a negligent act on her part? Could the street-car driver, without any notice, stop his horses within the distance of ten feet, and ought she not to have known that it was dangerous thus to attempt to cross, when the car was coming upon her at that distance? This, however, is a question for you to decide as to whether that part of it was negligence. I instruct you that if she attempted to cross immediately in front of the horses, that in law would raise the presumption of negligence, but [you are to decide as to whether it would be negligence if she attempted to cross at a distance of ten, or fifteen or twenty feet from the car.] 6.....</p> <p>The defendant has requested me to charge you upon several points of law:</p> <p>1. Driving across the ear track, from twenty to thirty feet in front of an approaching car, was negligence on the part of the plaintiff.</p> <p>Answer: This is for the jury to decide, as to whether or not it was negligence thus to drive across.9</p> <p>2. If tlie plaintiff was guilty of any contributory negligence she cannot recover.</p> <p>Answer: This is affirmed.</p> <p>3. Under the law and the evidence, the verdict should be for the defendant.</p> <p>Answer: This is refused.10</p> <p>The verdict of the jury was in favor of the plaintiff for $169.75. A rule for a new trial having been discharged, judgment was entered on the verdict, when the defendant took this appeal, assigning for error [inter alia] :</p> <p>3-6. The parts of the charge embraced in [ ] 3 to 6</p> <p>9,10. The. answers to the defendant’s points.9 10</p>

<p>1. It is a well-nigh universal rule that the judgment of a court of competent jurisdiction upon a point litigated between the parties, whether it be a court of record or not, and whether the proceeding in which the judgment was rendered be according to the common law or summary in its character, is conclusive, so long as it remains in full force, in all subsequent controversies directly involving the same question.</p> <p>2. An adjudication by a justice of the peace in a landlord and tenant proceeding, under the act of April 8, 1830, P. L. 187, finding that the relation of landlord and tenant did not exist, or that there was no rent in arrear, is, until legally set aside or reversed, conclusive upon both parties, and a bar to a proceeding before another justice upon the same cause of action; the dictum to the contrary in Ayres v. Rovinger, 8 Pa. 414, disapproved.</p>

No. 383 January Term 1889, Sup. Ct.; court below, No. 40 December Term 1887, C. P. On September 20,1887, the court below directed the framing of an issue between John R. Flower, as plaintiff, and the Baltimore and Philadelphia Railroad Company, as defendant, in pursuance of an appeal by the latter from the report of viewers previously appointed to assess damages to the plaintiff for certain of his land taken by the defendant in the construction of its railroad.

No. 435 January Term 1889, Sup. Ct.; court below, No. 3 January Term 1889, C. P. To the number and term in the court below, Thomas P. Worrall brought assumpsit against John J. Pyle, on a written contract for services for arranging an exchange of the defendant’s farm for a certain hotel property owned by one Ellis P. Newlin.

FROM THE ORPHAHS’ COURT OF CHESTER COUNTY. No. 86 July Term 1889, Sup. Ct.; court below, number and term, not given. On January 2,1889, the last will and testament of Catharine A. Teaele, who had died on December 19,1888, leaving her husband, John Littleton Teaele, surviving her, was duly admitted to probate before the register of wills of Chester county.

<p>1. Au agreement, between a landowner and a railroad company to convey to the latter a right of way across the premises of the former, covers all damages, of whatever sort, suffered by the landowner, for which he is legally entitled to recover compensation: North & W. Br. Ry. Co. v. Swank, 105 Pa. 555; Hoffeditz v. Railway Co., 129 Pa. 264.</p> <p>2. Wherefore, a release to a railroad company, by a landowner, of all claims for damages which may accrue by reason of the construction and maintenance of the railroad, is a bar to a recovery for injuries caused by a ditch and culvert constructed by the company upon its right of way subsequently to the original location and construction of the railroad.</p>

<p>1. A case stated should be a clear statement of the facts submitted for consideration; and where it is not, but refers for many of the facts relied upon to certain answers and affidavits appended to and made a part of it, it may be quashed on account of the inartificial form in which it is drawn.</p> <p>2. Money deposited in a bank by one person may be shown to be the property of another, either by the depositor or by his attaching creditors ; although, in the absence of any claim by the true owner or hi^ creditors, the bank cannot dispute the right of its depositor, and is bound to honor his cheek: First N. Bank v. Mason, 95 Pa. 113.</p> <p>3. A check drawn against the whole of a specific fund, deposited in bank in the name of the drawer, but belonging in equity to the payee, transfers to the payee, upon its delivery to him, the legal title to the deposit, even as against the drawer: Loyd v. McCaffrey, 46 Pa. 410, and First N. Bank v. Gish, 72 Pa. 13, distinguished.</p> <p>4. When the payee in such a check, in pursuance and execution of a prior parol assignment of the fund, made for a valuable consideration, viz., the payment of a debt, indorses and delivers the check to the assignee, before the service of any attachment at the suit of the payee’s creditors, the legal title to the deposit will thereby pass to the indorsee as against such creditors.</p>

<p>1. Where an assignor for the benefit of creditors reserves in the deed of assignment “ such property as is now by law exempt from levy and sale on execution,” such reservation is sufficient notice of the claim for exemption, botli to the assignee and to all claimants upon the assigned estate.</p> <p>2. And where, in such case, the assignor’s personalty, appraised at $97.75, is retained by him, it is the duty ol the assignee, upon the sale ol the realty, consisting oí a single tract, to pay the balance of the exemption claim out of the proceeds, and no specific appraisement of the land is necessary.</p>

No. 227 January Term 1890, Sup. Ct.; court below, No. 16 January Term 1890, C. P. On January 7,1890, a case stated was agreed upon and filed, in which Levi O. Bielm, treasurer of Bucks county, was plaintiff, and the county of Bucks defendant, showing in substance as follows: The plaintiff, as treasurer of Bucks county during the year 1887, collected state taxes to the amount of ¿32,984.94, out of which he was allowed and retained the sum of $1,962.59, as commissions.

No. 141 July Term 1889, Sup. Ct.; court below, No. 70 January Term 1888, C. P. On December 13, 1887, Hannah M. Irey brought trespass against the Pennsylvania Railroad Company, to recover damages for the death of her husband, Benjamin Irey, charged to the alleged negligence of the defendant company’s employees. Issue.

No. 105 January Term 1890, Sup. Ct.; court below, number and term not given. A case stated was filed in the court below, wherein the city of Chester was plaintiff, and Henry B. Black, defendant, in which it was agreed: In the year 1888 the roadway of Madison street in the city of Chester was paved by the said city with Belgian blocks in front of the lands' of the defendant abutting on said street.

<p>1. As § 5, article XYIT. of the constitution, prohibiting common carriers from engaging in mining, etc., or in any other business than that of common carriers, and from holding lands ribt necessary for their business, affixes no penalty for its violation, lands held in violation thereof are not liable to eseheat, although the franchises of the offending company may be forfeited therefor.</p> <p>(a) The act of April 26, 1855, P. L. 329, prohibits the acquisition or holding by a corporation of any real estate, either directly, or through a trustee or other device whatsoever, unless specially authorized by the laws of the commonwealth, and enacts that all property acquired or held in violation of the prohibition shall be escheated to the commonwealth by proceedings under quo warranto:</p> <p>2. Said act docs not authorize au escheat of lands held and used by a common carrier for the purpose of carrying on the business of mining coal for transportation over its works, for the violation of § 5, article XVII. of the constitution: the escheat which it provides for can be enforced only for the reason that an acquisition or holding of the lands is in violation of the prohibition of the act.</p> <p>3. In order to eseheat laud, under said act of 1855, upon the ground that it is held by a foreign railway corporation, without a license so to do from the commonwealth, it must appear that such corporation has either the legal or equitable title to the land itself; otherwise, no es-cheat can be declared, although such corporation may control the land, through its ownership of the stock of another corporation holding the title by authority of law.</p> <p>(5) A foreign railway company, having no license to hold mineral lands in this state, caused its president to purchase such lands by an agreement in his own name, furnishing to him the money required for a hand payment made on the contract: it theD purchased the charter of a Pennsylvania mining corporation, authorized to hold such lands, and retained all its capital stock, except a few shares to qualify directors.</p> <p>(c) The contract for the purchase of said lands was thereupon assigned to said mining company, which subsequently received from the vendor a conveyance of the legal title: the mining company afterward acquired the stock of another mining company, and conveyed the lands to the latter. A proceeding to escheat the lands was commenced in 1881, after these conveyances were made:</p> <p>4. In such case, when the facts are undisputed, the court should declare their effect as matter of law: the holding by the carrier company of the stock of the mining company was authorized by the act of April 15, 1869, P. L. 31; the transaction did not constitute au unlawful “ device ” ' within the meaning of § 5, act of April 26, 1855, P. L. 329 ; and, in any event, the act of April 8, 1881, P. L. 9, was a bar to the proceeding: Commonwealth v. N. Y. etc. R. Co., 114 Pa. 340, overruled.</p>

<p>APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY.</p> <p>No. 320 January Term 1889, Sup. Ct.; court below, No. 776 December Term 1887, C. P. No. 3, in Equity.</p> <p>On February 10,1888, the Wagner Free Institute of Science filed a bill in equity against tbe city of Philadelphia, Henry Clay and others, praying for an injunction to restrain the defendants from assessing and collecting taxes for the years subsequent to 1884, upon certain real estate which had been given and conveyed to the plaintiff and the revenue of which was devoted to its support, but which was not annexed to or occupied by the institute itself.</p> <p>On the hearing of the cause, set down upon bill and answer, wherein the facts shown were as fully appear in Wagner Institute’s App., 116 Pa. 555, the court “ entered judgment for the defendants.” Thereupon the plaintiff took this appeal specifying that the court erred :</p> <p>1. “ In entering judgment for the defendants in the case.”</p> <p>2. In deciding that the city of Philadelphia was entitled to collect taxes from plaintiff’s real estate described in the bill, and that the acts of the defendants in regard to such collection were not contrary to the provisions of § 10, article I. of the constitution of the United States.</p> <p>3. In refusing to grant the injunction prayed for.</p>

<p>1. When the negligence of the defendant is the ground upon which a recovery in damages is sought, the burden of proof is on the plaintiff and he must show the negligence of which he complains; the only exception to this rule being the case of an injury to a passenger with a common carrier, occurring in consequence of an accident affecting the means and appliances of carriage.</p> <p>2. The maintenance of a trap-door in the floor of a hallway in a manufacturing establishment, as a necessary means of reaching the cellar, when all the employees have knowledge of its existence and use, and the only one of them having occasion to use it has strict oi’ders always to close it after him, is not negligence in the proprietors toward tlieir workmen, although it be without any device for keeping it closed, and the hallway be imperfectly lighted.*</p> <p>8. An employee who, with knowledge that such a trap-door has been used within a few minutes, runs rapidly along the hallway in which it is situated, without looking to see whether it is open or closed, and, the door being open, falls through the opening in consequence of his neglect so to be on the lookout, is guilty of contributory negligence which will prevent a recovery against his employers for the injuries thus received.</p> <p>4 But, leaving out of view the question of contributory negligence, the plaintiff in such case cannot recover when the leaving of the door open was caused by the negligence of a co-employee; and the engineer in charge of a steam engine furnishing heat and power for a printing and engraving establishment, and using such trap-door as the means of getting to and from the engine, is a fellow servant of the foreman of the composing room.</p>

<p>1. The maintenance of an opening in the floor of a cotton mill, a means of access to a well underneath, is not negligence on the part of the owner, when he had provided a cover therefor, strong and safe when in place, had given orders that it be kept in place, and on one or two occasions, when he learned that it was not so kept, had caused it to be nailed down to the floor.*</p> <p>2. In an action by an employee for injuries received by falling into such opening, there being no evidence that the opening was left uncovered by tlie defendant or with his knowledge, and from the evidence it might have been uncovered so shortly before the accident as to have been without his knowledge, it was error to submit to the jury the question of defendant’s responsibility: Hoffman v. Clough, 124 Pa. 505, distinguished.</p>

<p>1. Neither the commonwealth nor any municipality through whose territory a public road passes, is liable to landowners for damages sustained by them through the exercise of the state’s power of eminent domain in the laying out and opening of the road, until made so by legal enactment: Feree v. Meily, 3 Y. 153; and when a statute gives to landowners a specific remedy for the recovery of such damages, that remedy must be pursued.</p> <p>2. When viewers appointed to lay out a road and assess the damages arising therefrom, have given public notice of their meeting, a landowner to whom they have awarded no damages is concluded in a collateral proceeding by a decree confirming their report, although he had no personal notice of the view; such owner should at the earliest opportunity apply for a review, except to the report, or ask for the opening of the confirmation.</p> <p>3. A township, charged by a local statute with the payment of damages arising from the opening of a public road under order of the Court of Quarter Sessions, is not a municipal corporation invested with the power of eminent domain, within the purview of § 8, article XVI. of the constitution, and it incurs no liability to an action of trespass by a landowner for the recovery of such damages.</p>