Volume 135 — Pennsylvania State Reports

<p>APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF HUNTINGDON COUNTY.</p> <p>No. 12 January Term 1890, Sup. Ct.; court below, No. 87 December Term 1884, C. P.</p> <p>On December 18,1884, John McDonald brought case against the Rockbill Iron & Coal Company, to recover damages for personal injuries alleged to have been received by the plaintiff in consequence of the defendant company’s negligence. The defendant pleaded not guilty.</p> <p>At the trial, on February 14, 1889, the following facts were shown:</p> <p>On January 16,1882, the plaintiff, who was then about fifty-two years of age, was in the employ of the defendant company as a miner of coal in its mine at Robertsdale, Huntingdon county. On the morning of that day, about seven o’clock, he entered the mine by what was known as No. 3 heading, to go to his work. At a point in the mine, about a quarter of a mile from the opening of- No. 3 heading, was a perpendicular shaft, extending from the floor of the main gangway to the surface of the earth, a distance of from 70 to 80 feet. In this shaft were two elevators orcages,” by means of which the loaded mine cars were hoisted to the surface. The machinery was so arranged that while one of the cages was ascending the other would be descending. When they were running, a man was stationed at the top of the shaft to attend to removing the loaded cars from the cages and to return them when emptied. The signals for hoisting the cages were given to the engineer, through this man, by the drivers at the bottom of the shaft, who would call up to him when their cars were placed in the cages. There was no metal speaking-tube between the top and bottom of the shaft. The cages were intended exclusively for hoisting coal, and the miners were not allowed to ride in them, though they sometimes did so. Except by descending the shaft in the cages, the only way by which the miners could enter the mine was through the opening to the surface, at the outer end of heading No. 3.</p> <p>The cages, when at the bottom, rested in excavations about eighteen inches deep, made in the gangway, the purpose of which was to bring the floors of the cages, when at rest, on a level with the floor of the gangway. These excavations were called “ sumps.” At the side o£ one of these sumps a passage, called a man-way, was cut out, around the shaft, sufficiently wide to enable a person to get through when carrying mining tools, by going sidewise. The plaintiff and other miners had to pass the shaft to get to their work, and the only way of doing so was by going through the narrow man-way, or else by crossing one of the sumps. The miners employed in the defendant’s mines, including the plaintiff, wore in the habit of passing over the floors of the cages when they would be resting in the sumps, and, at other times, of stepping into and passing through the sumps themselves. During the winter time the cages would be left at night suspended in the shaft, so as to avoid their freezing to the bottom of tbo sumps; and miners going to tlieir work early in the morning would often cross the sumps while the cages were still in that position. The plaintiff was familiar with the shaft and its surroundings and the manner of operating it.</p> <p>When the plaintiff, on the morning of his injury, reached a point about four or five yards from the shaft, ho passed two drivers, engaged in conversation; one of them had sent up a loaded car, and the other had a car ready to send up and was waiting for the cage to come down. On reaching the shaft the plaintiff attempted to pass around it, but was deterred by reason of an accumulation of ice in the man-way, rendering it slippery. Standing in the man-way, lie looked up the shaft as far as he could see from that position, which was to a height of about eight or ten feet. Neither cage was down at that time. He did not call up to the man at the top, to inquire whether the cages were running, nor make any inquiry of the drivers whom he had passed. Not seeing or hearing anything of them, and supposing that they were swung in the shaft, stationary, he stepped into the sump, with the intention of crossing it. While in the act of so doing, he did not look up; but just as he made a step to go through, after getting his whole body into the sump, being in a stooping position and looking down at the ground to see where he was stepping, he was struck by a descending cage and crushed to the earth underneath it. He testified that he had not time to look up from the sump before bo was struck. Hearing him moan, one of the drivers who was standing near, called up to the man at the top of the shaft to have the cage hoisted again, and this was done almost immediately. The time usually occupied by the cages in descending the shaft was from thirteen to fifteen seconds, but on that morning they were running more slowly than usual. ■ One of the drivers testified that, although hard of hearing, he heard the cage descending before it struck the plaintiff. The plaintiff, however, testified that it made so little noise in running, that it was impossible to hear it. On being asked, upon cross-examination, whether he took much time to examine either the man-way or the sump, the plaintiff replied: “ A. I took time enough to go through ,• just as I got into the sump I was struck, I came there and I couldn’t get through the man-way, and I wanted to get through as soon as I could to my work, and I had no time to take the time, as I thought it was all right.” A large part of the testimony describing the circumstances surrounding the accident, is quoted in the opinion of the Supreme Court, infra.</p> <p>At the close of the testimony, the court, Fixrst, P. J., after reviewing the evidence, charged the jury in part as follows:</p> <p>In 1877 [act of April 18, 1877, P. L. 56], the legislature passed an act providing the method for securing the health and safety of persons employed in the bituminous coal mines in Pennsylvania. Several provisions of this act have been discussed in your hearing before the court. It is only for the purpose of calling your attention to that portion of the act that we deem material, that we say that many of its provisions have no relation to the case that you are sworn to try..... There is, however, one provision in this act of assembly, to which I desire to call your attention, because it has a very important bearing upon the question of fact, which will be submitted to you. It is the latter part of the sixth section, and it is in this language: “ There shall be cut in the side of every hoisting shaft, at the bottom thereof, a traveling way, sufficiently high and wide to enable persons to pass the shaft in going from one side of the mine to the other, without passing over or under the cage or other hoisting apparatus.”. , . . .</p> <p>First, Did the defendant establish a passage way around the shaft, or did the defendant knowingly consent to and permit the miners to use a passage way through this pit? If you find that the defendant permitted a passage way through this pit to be used, then another very important question is to be determined by you before you can find a verdict against the defendant, and that is, did this plaintiff know of the dangerous condition of that passage way; or, by the use of ordinary care and diligence could he have known it at the time ? If he did, or if he could have had such knowledge, and then entered into the pit, he cannot recover, because his injury would be the result of his own negligence; and wherever his negligence causes the injury, or participates in the injury, he cannot recover. If you find he had such knowledge, or ought to have had, under the circumstances of the case, or if you find also he did not use proper precaution, that he did not stop to look and listen, and then was injured, he could not recover.</p> <p>But if you find that the defendant adopted this passage way through the pit, and if you find further from the evidence that the plaintiff used every precaution and care that he should have used under the circumstances, that is, before he entered the pit; that ho looked to see whether the cages were in motion and that he listened to hear whether the cages were in motion, and that having no knowledge of the danger he passed into the pit; if you find that he was careful in all of these particulars, then a recovery may be had by the plaintiff; and we say to you further, that if the plaintiff knew that the cages were in motion and attempted to cross under, that of itself would be negligence on his part, because no man, who should enter under a descending weight of that kind, could expect not to be injured; it would be the ordinary result of going into a dangerous place under such circumstances.</p> <p>If, upon a careful consideration of all the evidence, you find that the defendant was not negligent, your verdict must be for the defendant; or, if you find that although the defendant may have been negligent in some particulars with regard to these mines, and that the negligence of the defendant did not contribute to the injury of the plaintiff, then your verdict must be still for the defendant; if you further find that the plaintiff was negligent, even though the defendant was negligent, there can be no recovery. If, on the other hand, you find negligence on the part of the defendant and it resulted in the injury to the plaintiff, and. you find that the plaintiff used due care and precaution and was not negligent, then it will be your duty to assess damages for the plaintiff for the injuries received on the 16th of January, 1882......</p> <p>The defendant has presented certain points in writing, and has requested the court to answer; it is our duty to read these points and our answers.</p> <p>1. That the testimony of the plaintiff shows that he was guilty of such contributory negligence as to prevent a recovery.</p> <p>Answer: This is a fact for the jury, and not for the court; we have instructed you fully in our general charge on that branch of the case.1</p> <p>2. That the plaintiff, in his testimony, having admitted that “I did not look up when I got into the edge of the*sump ; just as I stepped down a foot or eighteen inches, the cage struck me; I did not stop to look when I stepped in, because I had not time; just as I stepped in I was struck; I was leaning forward looking 'down to the ground; ” he is guilty of such contributory negligence as precludes a recovery.</p> <p>Answer: We cannot affirm this point as a question of law under all the facts in the case. If the jury find that the plaintiff’s own neglect contributed in any degree to his injury, he cannot recover. It is a question of fact for the jury.</p> <p>3. If there was any negligence in the traveling way, pump, and pump timbers, under the fifth section of the act of 1877, it was the negligence of the mine boss, whose duty'it was to keep a careful watch over the same; and, he being a fellow servant of the plaintiff, the defendant is not responsible for his neglect.</p> <p>Answer: The point is not only refused under the eleventh section of the aforesaid act, but under the law generally; because it is the duty of the employer to furnish his servant or employee with instruments and appliances that are reasonably safe for the purpose and use intended.4</p> <p>5. That even if the defendant failed to adopt all the appliances provided for by the act of 1877, there is no evidence to show that the absence of any of them was the proximate cause of the injury, or contributed directly to the damage.</p> <p>Answer: This is refused; the facts are for the jury.3</p> <p>6. That the evidence fails to show that there was any wilful failure on the part of the defendant to comply with the provisions of the act.</p> <p>Answer: Our answer is, that it is immaterial; or, if material, it is for the jury and not for the court. The question here is, was the defendant guilty of any negligence which was the direct cause of the injury?</p> <p>7. That a remedy and penalty having been provided for by the sixteenth section of the act, for the neglect of the duties imposed by the same, such neglect cannot be reviewed in this action.</p> <p>Answer : This is not an action for a penalty under the sixteenth section of the act, but the plaintiff seeks to recover under the eleventh section for the direct damage sustained by him arising from the negligence of the defendant, and which negligence he claims was the direct cause of the injury.</p> <p>8. That the plaintiff has shown no evidence of negligence on part of defendant or any of its employees contributing directly to the injury.</p> <p>Answer: We refuse this point, because we submit the question of negligence of the defendant, as well as the question of contributory negligence on the part of the plaintiff, to the jury.»</p> <p>The verdict of the jury was in favor of the plaintiff for $1,771. A rule for a new trial having been discharged, judgment was entered on the verdict, when the defendant took this appeal, assigning for error :</p> <p>1-4. The answers to defendant’s points.1 to 4</p> <p>1. All the facts affecting the question of contributory negligence were furnished by the plaintiff’s testimony, and it was for the court to pass upon their legal effect: Delaware etc. R. Co. v. Cadow, 120 Pa. 572. The line of decisions laying down an invariable rule to govern the conduct of persons about to cross a railroad track, are applicable to the facts proved in this case. The plaintiff’s conduct, while plausible enough at first blush, is seen, in the light of his own testimony, and in view of his surroundings at the time, to have been utterly reckless. He did not look, in the way the law requires. By simply in-dining his head to one side he could have seen the exact position of the cage, and ascertained to a certainty whether it was in motion and in what direction. His looking from a point of view where his view was obstructed, was foolish negligence: Central R. Co. v. Feller, 84 Pa. 229. Nor could he have listened ; for, as the testimony shows, he would have heard the cages, had he done so. The law requires listening, as well as looking: Penna. R. Co. v. Mooney, 126 Pa. 252.</p> <p>2. He did not stop immediately before stepping into the pit; but, going on the assumption that the cages were swung in the shaft, he blindly rushed into danger, when a delay of a quarter of a minute would have removed all doubt and given him a safe and easy passage. He entered the sump stooping, with his eyes cast to the ground, although a glance upward at that moment would have saved him. Indeed, in view of the slow rate at which the cage was running that morning, it must have been in plain sight and easy reach when he stepped into the sump. It is vain for him to say that he looked and listened: Carroll v. Railroad Co., 12 W. N. 348; Marland v. Railroad Co., 123 Pa. 487. His failure to stop immediately before stepping into the sump was negligence per se : Penna. R. Co. v. Beale, 73 Pa. 509. The fact that he thought the cages were swung in the shaft does not excuse him. No one except a suicide would step into such a place of danger, without some such deceptive flash of thought. Had he paused to think, the presence of the drivers and mule, and the lateness of the hour, would have indicated that the cages were running or about to start.</p> <p>3. The sole reason given by the plaintiff for not proceeding along the man-way, was that it was icy. Voluntarily leaving it on that account, he was injured by an entirely distinct cause, and the man-way was in no sense the direct cause of his injury: South Side Pass. Ry. Co. v. Trich, 117 Pa. 390 ; Lancaster v. Kissinger, 1 Penny. 257; Scranton City v. Hill, 102 Pa. 378. Negligence cannot be imputed to the company for failing to give notice of the starting of the cages in the morning : Lehigh etc. Coal Co. v. Hayes, 128 Pa. 294. The court should have withdrawn from the jury the mass of irrelevant testimony regarding the absence of the speaking tube and other appliances prescribed by the act of April 18, 1877, P. L. 57. As § 2 of the act plainly indicates, these appliances are required only when carriages are used for lowering and hoisting persons, and it is admitted in this case that miners wore forbidden to ride on the cages. The defendant’s third point, respecting responsibility for negligence of the mine boss, should have been affirmed: Redstone Coke Co. v. Roby, 115 Pa. 364. In the case cited the alleged defect was in the ventilating apparatus, but the act of April 18, 1877, § 5, P. L. 57, makes no distinction between that and the traveling way.</p> <p>1. The defendant did not, as required by act of April 18, 1877, P. L. 57, have two openings to the mine, separated by natural strata of at least 150 feet in breadth ; did not have a metal speaking tube from the top to the bottom of the shaft or any means of signaling; did not have a cage exclusively for persons descending and ascending ; had no fence between the shaft and the man-way, and the latter was not such a traveling way as the law requires, if, indeed, it was one at all. Having violated the provisions of the act, the defendant is liable under § 11, for the damages resulting from its failure of duty, and the rule to stop, look and listen has no application whatever, the statute being imperative that an action shall accrue to the injured party.</p> <p>2. If, however, that rule has any application in this case, the plaintiff fulfilled his whole measure of duty in that respect. His testimony shows this, and shows that he took the way across the sump because he judged it the safest. The presumption of law, moreover, is that he stopped to look and listen. But whether he did so or not, it is the province of the jury to determine, as a question of fact: Penna. R. Co. v. Weber, 76 Pa. 170. The court was bound to leave the case to the jury: Patterson v. Railroad Co., 76 Pa. 394; Rummell v. Dilworth, 111 Pa. 343; Penna. Coal Co. v. Nee, 12 Cent. R. 524; Oakland Ry. Co. v. Fielding, 48 Pa. 321; Kay v. Penna. R. Co., 65 Pa. 269. It is only in exceptional cases that the court should determine negligence as matter of law: Phila. etc. Pass. Ry. Co. v. Hassard, 75 Pa. 876. There was such disregard of duty in this case, that the court would have been justified in declaring tlie defendant negligent, as matter of law: Penna. R. Co. v. Ogier, 35 Pa. 60 ; Pittsburgh etc. R. Co. v. McClurg, 56 Pa. 294; West Chester etc. R. Co. v. McElwee, 67 Pa. 311.</p> <p>3. The negligence was not that of the mine boss. He had nothing to do with the construction of the shaft or man-way. He could not construct the stairs or fence off the man-way from the sump. His duty was simply to keep a careful watch and report. It was the duty of the defendant to furnish proper and safe appliances. The answer of the court refusing the defendant’s fifth point and submitting the facts to the jury, was right: .Oakland Ry. Co. v. Fielding, 48 Pa. 320. The general rule applicable to such cases is that “ the injury must be the natural and probable consequence of the negligence ; such a consequence as under the surrounding circumstances of the case might and ought to have been seen by the wrongdoer as likely to flow from his act: ” Lancaster v. Kissinger, 1 Penny. 257. The case was carefully tried and the defendant received at the hands of the court better treatment than it deserved.</p>

<p>1. In the assessment of damages for land taken or injured in the exercise of the right of eminent domain, the market value of the property, before and after the injury, cannot be ascertained by evidence of particular sales, under special circumstances, of other properties alleged to be similarly situated.</p> <p>2. It is competent to adduce testimony as to all matters hearing upon the location, condition and quality of the land in question, and show the general selling price of land in the neighborhood, as data from which the jury may determine the market value, but evidence of particular sales is not admissible.</p> <p>(а) In a proceeding to assess such damages, the court charged that the market value of the land in question might be ascertained by sales of land adjoining, and, when there had been no public sales, from the opinion of men of experience and judgment who were acquainted with the property:</p> <p>3. Such instruction could not be complained of by a party who brought out the only testimony, respecting particular sales, to which it could apply; but it was not erroneous, when, in view of the general tenor of the charge, the reference was plainly to the general selling price, and not to any particular sales.</p> <p>4. If additional fencing is made necessary by the location and construction of a railroad through a tract of land, the increased burden of fencing thus cast upon the land may be considered in assessing the owner’s damages, hut only so far as it depreciates the market value of. the property.</p> <p>(б) The local act of April 9,1868, P. L. 779, makes it the duty of railroad companies in the counties to which it applies, to fence their roads, and in default thereof renders them liable for the value of any horses, cattle, sheep or swine injured in consequence of such neglect. It also imposes a pecuniary penalty for neglect to keep up the fences required :</p> <p>5. Notwithstanding this act, a jury assessing land damages, in a county governed by it, 'may consider whether the construction of a railroad through a farm necessitates a change of internal or additional fencing, to render it convenient for use as a farm, and whether such necessity easts upon it a burden detracting from its market value.</p> <p>6. A farmer, living a few miles distant, who has known a farm for forty years, seeing the greater part of it in passing and repassing upon the public road, has been upon it and at the buildings, and knows the general selling price of land in the neighborhood, is a competent witness as to market value, under the test laid down in Pittsburgh etc. Ry. Co. v. Vance, 115 Pa. 331.</p>

<p>1. A lessee, permitted to hold over after the expiration of Ms term, is in. no sense a trespasser while he continues in possession, but, on the contrary, he has a clear legal right to remain upon the demised premises until he is notified to quit.</p> <p>(a) In assigning a lease to Knarr, Geis stipulated that he should have the occupancy of a part of the premises, free of charge, until the lease ex-pii'ed; and during the residue of the term, and for nine days thereafter, he occupied it apparently under Knarr.</p> <p>(b) At the end of the assigned term, Geis unknown to Knarr received a new lease from the landlord. On his making it known, and asserting a claim thereunder, nine days later, Knarr ordered him to leave, and, on his refusal so to do, ejected him by force:</p> <p>2 Upon these facts, Geis clearly did not have, as against Knarr, such possession as would sustain a verdict convicting Knarr of forcible detainer, his possession, such as it was, being merely by Knarr’s permission,.which the latter was not bound to continue.</p>

No. 333 January Term 1890, Sup. Ct.; court below, No. 382 September Term 1882, C. P. On June 22, 1882, LeRoy Haverly brought ease against the State Line & Sullivan Railroad Company, to recover damages for the loss of certain logs and lumber in which the plaintiff had an interest, alleged to have been destroyed by fire in consequence of the defendant company’s negligence. The defendant’s plea was not guilty.

3 OP PHILADELPHIA COUNTY. No. 211 January Term 1889, Sup. Ct.; court below, No. 465 June Term 1887, C. P. No. 3. On August 18, 1887, John S. Levan brought trespass against Henry Wilten, for the alleged unlawful taking and conversion of a horse. Issue.

<p>[To be reported.]</p>

No. 79 January Term 1890, Sup. Ct.; court below, No.'8 February Term 1888, C. P. On December 30, 1887, John Bare brought trespass against the Pennsylvania Railroad Company to recover damages for personal injuries received. Issue.

No. 343 January Term 1890, Sup. Ct.; court below, No. 1 May Term 1890, C. P. in Equity.

<p>1. Under tbe rules of the Supreme Court requiring that docket entries should be printed, the appellant’s paper-books must contain a literal copy of those entries as they appear upon the record of the court below; to present them in an altered or garbled form is an offence, which if committed intentionally and to deceive will be punished by disbarment.</p> <p>2. Upon a bill filed by a cestui que trust against her trustee, her husband, and the guardian of her children, to set aside a trust for her use during life, and after her death in default of appointment by her, for the use of her right-heirs, the correct practice, although the averments of the bill are admitted by the answers, is to refer the case to a master for a report upon the facts.</p> <p>3. The deed of a single woman, not in contemplation of marriage, conveying her property to a trustee, in trust to pay over to her the income during life, and after her death in trust for her appointees, or, in default of appointment, her right heirs, creates a mere passive trust which may be terminated at any time at the will of the cestui que trust: Dodson v. Ball, 60 Pa. 492 ; Yarnall’s App., 70 Pa. 335.</p> <p>4. Equity will set aside a deed from a single woman to her grandfather, creating an irrevocable separate use for the grantor, when it was not executed in contemplation of marriage nor with the intent to make an irrevocable gift, but upon an assurance by her grandfather and mother that it could bo revoked and -without the advice of counsel upon the point, and the only purpose of its execution has been accomplished.*</p>

<p>[To be reported.]</p>

No. 103 January Term 1890, Sup. Ct.; court below, No. 203 September Term 1888, C. P. On August 18,1888, the Muskegon Curtain-Roll Company brought assumpsit against the Keystone Manufacturing Company. Issue.

<p>APPEAL BY DEPENDANT FROM THE COURT OE COMMON PLEAS OB' CRAWFORD COUNTY.</p> <p>No. 331 January Term 1890, Sup. Ct.; court below, number and term not given.</p> <p>On September 18, 1884, Mrs. Abby M. Brooks brought assumpsit against the First Presbyterian Church and Congregation of Meadville, declaring in the common counts. Issue.</p> <p>At the trial on January 22, 1889, a verdict was rendered in favor of the defendant, but the judgment entered thereon was reversed in the Supreme Court: Brooks v. First P. Church, 128 Pa. 408.</p> <p>The record having been remitted, the case was again called for trial on January 28, 1890, before Mehard, P. J., 35th district, holding special term. The nature of the case presented sufficiently appears in the former report referred to. During the trial, the following offer was made:</p> <p>Defendant’s counsel offer in evidence the record of the Orphans’ Court of Crawford county, No. 50 September Term 1882, containing and showing the following:</p> <p>The presentation of the administration account of the executor of the will of Lindley, wherein credit was claimed by him for $19,257.14, paid by him to the First Presbyterian Church; the filing of exceptions thereto by Abby Brooks, the plaintiff in the case now trying; the reference of the same to an auditor ; the demand of an exceptant for an issue to be determined by the Common Pleas; the report upon the exceptions and the demand; the exceptions to the report of the auditor; the final decree of the Orphans’ Court dismissing all exceptions, and the final confirmation of the auditor’s report and adminis tration account; offered for the purpose of showing that there has been a decree of a court of competent jurisdiction distributing the assets of the estate among the parties claiming to be entitled thereto; that this plaintiff has had her day in the only court having jurisdiction of the distribution of the estate among the creditors, legatees or devisees; and that the claim of the plaintiff in this suit has been passed upon and adjudicated by the Orphans’ Court against this present plaintiff.</p> <p>By the court: I would not rule out the evidence on ground of its being offered out of order; but the offer is overruled, first, because the account of the executor upon which the auditor’s report was based showed a balance in favor of the executor and not in favor of the estate; hence the question of distribution would not arise there, and the distributees would not be called upon to be parties; and, second, because the evidence in this case would not have sustained a judgment or decree against the executor, even had it been given in that case; and, moreover, in the opinion of the court, it would have been irrelevant to the issue which was there tried as to the fact that the assignment was made, inasmuch as there is no allegation here or proof that the accountant was at all implicated in the alleged fraud.1</p> <p>The jury returned a verdict in favor of the plaintiff for $8,292.20. Judgment having been entered, the defendant took this appeal assigning for error:</p> <p>1. The refusal of defendant’s offer.1</p> <p>2-12. The rulings of the court upon offers of testimony, and the answers to points presented for instructions.</p> <p>Upon the call of the case for argument in the Supreme Court, the appellee moved that the appellant’s paper-books be suppressed, and for judgment of non-pros., upon the ground that the testimony was not fully presented in the appellant’s paper-books.</p> <p>Upon the first assignment of error, counsel cited: Kittera’s Est., 17 Pa. 422; Ashford v. Ewing, 25 Pa. 214; Whiteside v. Whiteside, 20 Pa. 474; Shollenberger’s App., 21 Pa. 341; Mussleman’s App., 65 Pa. 480; Dundas’s Est., 73 Pa. 474; Otterson v. Gallagher, 88 Pa. 355; Otterson v. Middleton, 102 Pa. 78; McGettrick’s App., 98 Pa. 9; Thompson’s App., 103 Pa. 603; Noble v. Cope, 50 Pa. 17; Finnel v. Frew, 81 Pa. 362; Federal Ins. Co. v. Robinson, 82 Pa. 357; Wetherald v. Van Stavoren, 125 Pa. 535; Taylor v. Cornelius, 60 Pa. 187.</p> <p>In the brief filed, counsel cited: Chandler’s App., 100 Pa. 262; Peterson v. Lothrop, 34 Pa. 223; Greenl. on Ev., § 523; Kittera’s Est., 17 Pa. 416; Dundas’s Est., 73 Pa. 474; Third Ref. D. Church’s App., 88 Pa. 503; Follansbee v. Walker, 74 Pa. 306.</p>

No. 8 July Term 1890, Sup. Ct.; court below, No. 6 February Term 1890, C. P. in Equity. On February 8, 1890, W. H. Kemble and others filed a bill in equity against the city of Titusville and William H. McDonald, collector of delinquent taxes.

<p>APPEAL BY PLAINTIFF FEOM THE COURT OF COMMON PLEAS OF ERIE COUNTY.</p> <p>No. 9 July Term 1890, Sup. Ct.; court below, No. 2,58 September Term 1886, C. P.</p> <p>On August 21, 1886, Miss M. B. Kies brought case against the city of Erie to recover damages for personal injuries alleged to have been suffered by the plaintiff through the defendant’s negligence. The defendant pleaded not guilty.</p> <p>At the trial on October 7, 1889, the following facts were shown upon the part of the plaintiff:</p> <p>In April, 1886, Peach street was one of the highways of the city of Erie much used by foot passengers. Some years prior thereto, the city became the owner of a lot of ground on the west side of said street, erected thereon a building for the use of its fire department, and at the time named the building was in use for fire department purposes, a fire engine and other apparatus being kept therein. The building was so constructed and arranged that the doors, through which the fire engine and other apparatus would be drawn to a fire, opened outwardly, swinging over and across the sidewalk of the street. There were two doors, each nearly six feet wide. The sidewalk was nearly twelve and one half feet in width; so that the doors, if opened and standing at right angles with the building, would occupy nearly half of the width of the pavement, and when in that position the bottoms of" the doors would be at an average distance of about four inches above the sidewalk. The doors were rather heavy, tlieir frame work being two inches thick. To assist in opening them, springs were affixed to them on the outside. The only testimony describing the operation of these springs was that of John Onslow, who testified as follows:</p> <p>“Q. How are they opened? A. They are opened with a rope that pulls the bolt above and one below, at the same time. Q. When the bolts are pulled what takes place? A. You have to start the door a little bit, and then the spring takes hold and helps swing the door open. Q. State whether or not it is opened quickly on to the sidewalk ? A. Sometimes they are opened quick and sometimes not so quick; if the wind is blowing it is difficult, and you have to follow the door and push it along; and when there is no wind they swing freely.”</p> <p>On April 26, 1886, a short time before noon, the chief of the fire department being at the building on Peach street and about to drive home to his dinner, the doors were opened by John Allen, an employee of the fire department, to permit the chief to pass out with his wagon. At that moment, the plaintiff and her mother were passing along the sidewalk in front of the building, when the plaintiff was struck upon her ankle by one of the doors, receiving an injury which proved to be very serious. The occurrence was thus described by the plaintiff, testifying upon her own behalf:</p> <p>“ Opposite the doors, mother started at something and I looked up to see what it was, and saw the doors open about a foot or more—the engine house doors—and saw the horse’s head right before the doors. Mother ran and I followed and the door followed me up and struck me in the ankle..... Q. How did it come out; whether quickly or forcibly ? A. Very quickly and with great force. Q. What, if any knowledge, had you, prior to these doors being opened at that time, that they opened out that way into the street? A. I was never aware of it. Q. You knew nothing about it? A. No, sir. Q. You were walking on the sidewalk between the building and the curbstone? A. Yes, sir. Q. And you were rather on the west side of the walk ? The walk runs north and south ? A. Yes, sir. Q. And you were on the western portion of the walk? A. Yes, sir. Q. Beyond the centre of the walk, to the west? A; Yes, sir. Q. When you saw the doors open? A. Yes, sir..... Q. And as you came to the engine house you noticed that the doors were opened? A. We were opposite them when they opened. Q. How far did they open? A. They opened out. Q. Clear out? A. Yes, sir..... Q. And you ran ten or twelve feet? A. As much as that, and perhaps more. I wouldn’t be certain. Q. And then this door came and struck you ? A. It struck me while I was running..... Q. Where did your mother go when you ran? A. She was ahead of me..... Q. Did she talk to the fireman? A. Yes, sir. She asked if they didn’t know any better. Q. What did she say ? A. She asked if they didn’t know any better than that. Q. What did he say ? A. Nothing. He had a kind of a smile or a grin on his face, was all, and he didn’t say anything.”</p> <p>The plaintiff’s mother testified as follows :</p> <p>“ Q. When you got up to where the fire department building was, tell the jury what occurred? A. When we came near the door or up by the side of the door, I saw the door open about a foot and I saw the horse there, and I saw Mr. Mosier on the wagon, and of course then I thought I must run and I ran as fast as I could. Q. Where were you when you first saw the opening of the door? A. I was right opposite the door where they open it. They opened it right before my eyes. Q. When you first saw it, the door was just going open? A. Yes, sir, perhaps a foot or so; and I saw the horse and saw Chief Mosier and I knew that he always drove fast and that I must go out of the Avay as fast as possible. And I started to run and she started after me, . . . . Q. Did you know this man Allen, who opened the door? A. No, sir. Q. Didn’t you talk to him that day? A. No, sir; only when I saw she was hurt so bad, I looked back and told them if they didn’t know any better than to throw the door open when people passed by. Q. That was to Allen ? A. That was to both of them. 1 saw two men..... Q. If they had looked out could they have seen you ? A. Yes, sir. Q. They could have prevented that accident? A. Yes, sir. I should think that they ought to look, before they let those doors fly open so. Q. The doors flew open very quickly? A. Yes, sir.”</p> <p>At the close of the testimony for the plaintiff, the defendant’s counsel moved the court, Gunnison, P. J., for a judgment of nonsuit, for the reason that no such negligence had been shown on the part of the defendant as would justify a recovery, and that no liability had been shown on the part of the city; that an employee of the fire department was not a servant of the municipality to a sufficient extent to justify the application of the doctrine of respondeat superior.</p> <p>By the court: We cannot say that the mere building of this building in the way it was built was negligence, or such negligence as would subject the city to damages in this case. A building built that way, and the doors not opening at all, of course could not have caused the injury. It was not the act of the city which caused the injury. It was not its negligence in building the building as it was, or arranging the doors as they were; it was the operation of the doors, and not the construction of the building or the doors; and that operation of the doors, if the evidence is true, was by an emploj-ee of the fire department. That he might be liable individually under the evidence, and under the facts as shown by the plaintiff, would be unquestioned. A right of action would exist against him. But the principles which are laid down in the decisions cited by counsel for the defendant show conclusively that the city is not liable for the act of an employee of the fire department. It was his act. It was the operation of the doors, and not their construction, which caused the injury; for that reason I think this motion will have to be granted.</p> <p>The court then entered a judgment of nonsuit, with leave, etc. A rule to show cause why the judgment should not be lifted having been discharged, the plaintiff took this appeal, assigning the entry of the judgment of nonsuit and the discharge of the rule to show cause why the judgment should not be lifted, for error.</p> <p>1. The legal question to be determined is, whether the city had a right so to construct a building, in such close proximity to the sidewalk, that its ordinary use by the city, for any purpose, was dangerous to the safety of persons lawfully passing along the sidewalk in front of it. There is perhaps no decided case just like this, but the decisions in our books abundantly sustain the principle for which we contend. A municipality is bound to keep its streets and footwalks in repair, and has no more right to create and maintain an element of danger to persons passing in front of its property than an individual, would have: Allentown v. Kramer, 73 Pa. 406; Newlin Tp. v. Davis, 77 Pa. 317¿ Pittsburgh etc. Pass. By. Co. v. Pittsburgh, 80 Pa. 72; Fritsch v. Allegheny, 91 Pa. 228; Erie City v. Schwingle, 22 Pa. 385; Pittsburgh v. Crier, 22 Pa. 55.</p> <p>2. The facts proved in the case clearly show that the city was guilty of negligence in constructing the building so that the doors, when opened, swung out over the sidewalk for the space of nearly six feet. That negligence rendered it liable to the plaintiff, and it cannot be relieved from liability on the ground that the doors were opened by a member of the fire department, who was negligent also: Burrell Tp. v. Uncapher, 117 Pa. 353; Pittston v. Hart, 89 Pa. 389; Lower Macungie Tp. v. Merkhoffer, 71 Pa. 276; Scranton v. Catterson, 94 Pa. 202; Plymouth Tp. v. Graver, 125 Pa. 32. The court will observe that there was no alarm of fire at the time of this accident, and no emergency that can be offered as an excuse for the injury complained of. The case in this respect differs materially from all the cases relied on by the defendant.</p> <p>1. The city is not liable for the carelessness or negligence of employees of the fire department: Freeman v. Philadelphia, 7 W. N. 45; Rosenberry v. Philadelphia, 7 W. N. 558; Knight v. Philadelphia, 15 W. N. 307; Fire Insurance Patrol v. Boyd, 120 Pa. 624; Ford v. Kendall Bor. Sch. D., 121 Pa. 543. This principle is now tacitly conceded by the plaintiff. The entire substance of her case is contained in the proposition that her injury was the result of an improper and negligent construction of the building, such as to render the sidewalk in front of it unsafe. But this proposition assumes, as an established fact, the exact point that was in controversy, and that without any supporting proof.</p> <p>2. There was no evidence that the building, or any part of it, was a dangerous obstruction to the sidewalk, and the testimony submitted naturally and reasonably suggests the conclusion that the doors could have been opened by the persons using them without any danger to passers by. Moreover, this is positively shown by the testimony of the plaintiff’s mother. Nor is there any evidence that the building could have been otherwise constructed for the uses to which it was devoted. All of the testimony, and the inferences legitimately to be drawn therefrom, showed that the plaintiff’s injury was due to the negligence of an employee of the fire department, for which the city was not responsible.</p>

No. 366 January Term 1890, Sup. Ct.; court below, No. 102 February Term 1889, C. P. Returnable to January 7, 1889, William Mell brought trespass against John L. Barner, to recover damages for an alleged abuse of legal process by the defendant. The defendant’s plea was not guilty.

<p>[To be reported.]</p>

No. 405 January Term 1890, Sup. Ct.; court below, No. 57 May Term 1889, C. P. To the number and term of the court below, Prank Clark brought foreign attachment in assumpsit against G. A. Searight, and on January 31, 1890, there was filed an agreement stating the following case for the opinion of the court, in the nature of a special verdict: The defendant on December 3, 1885, made and delivered to plaintiff, at Indianola in the state of Iowa, for a valuable consideration, a…

<p>[To be reported.]</p>

No. 29 January Term 1890, Sup. Ct.; court below, No. 2 October Term 1889, C. P. in Equity.

No. 78 January Term 1890, Sup. Ct.; court below, No. 13 December Term 1884, C. P. On October 6,1884, an appeal was entered in the court below from the judgment of James W. Shaw, recorder of the city of Bradford, in favor of Mary L. Kreiner, by her next friend P. Kearns, against the Rochester and Pittsburgh Railroad Company, for $103.25, the value of a valise and contents.

No. 90 January Term 1890, Sup. Ct.; court below, No. 120 May Term 1887, C. P. On May 16, 1887, Walter Horton and Jerry Crary brought ejectment against D. D. Davidson, for a tract of 306 acres in Spring Creek township. The defendant filed a disclaimer as to 96 acres, leaving 210 acres in controversy. Issue. At the trial on January 30, 1889, the plaintiffs showed title in the Bingham estate, and from said estate to themselves by contract of sale dated April 1,1887.

<p>1. In an action to recover upon a contract to cut and deliver all the logs upon a tract of land, the seller cannot recover unless it is found from the evidence that he has substantially complied with his contract, by cutting and delivering all the logs upon the tract of the kind specified.</p> <p>2. But the leaving back of a few of the logs, which were so covered with brush and snow that they could not be found and got out by reasonable care and diligence, would not be such a failure of substantial performance as would defeat the plaintiff’s right to recover for the timber delivered.</p> <p>3. In ascertaining the quantity of timber cut and delivered, it was not error to admit in. evidence an account of the measurements entered by the plaintiff at the time they were made on boards prepared for the purpose, iu connection with the plaintiff’s testimony showing how the measures were taken and how they were so entered.</p> <p>4. Nor was il error to refuse offers by the defendant to prove the amount of bark that was peeled from the timber cut and sold, or the amount oí unpeeled logs on the tract, as evidencie tending to show the amount oí the timber cut and delivered to the defendant under the contract.</p>

■ No. 168 January Term, 1890, Sup. Ct.; court below, No. 40 December Term 1886, C. P. On October 5, 1886, Laura Enches brought case against the New York, Lake Erie & Western Railroad Company, to recover damages for personal injuries charged to the negligence of the defendant company’s employees. Issue. The case was first tried on May 14, 1888, and a verdict rendered for the plaintiff for §7,750.

No. 27 July Term 1890, Sup. Ct.; court below, No. 163 June Term 1887, C. P. On June 12,1887, a judgment was entered by confession, on a note with warrant of attorney, in favor of F. E. Windsor against F. H. Tillottson for the sum of $945, and on the same day a testatum fieri facias was issued directed to the sheriff of Elk county, and a levy made thereunder upon personal property of the defendant.

<p>1. A fund for distribution, shown by his account to be in the hands of an assignee for the benefit of creditors, may be distributed by an auditor aj>pointed therefor by the Court of Common Pleas, without the fund haying first been paid into court.</p> <p>2. A claim for wages is not entitled to a preference under the act of April 9, 1872, P. L. 47, and its supplements, when the evidence does not show that the labor was in and about the business in which the assignors were engaged, or in and about the property from the sale of which the fund arose.</p>

<p>Where the plaintiff, while on his way to a dance-room in the third story of a building, having a safe entrance by a well-lighted hall and stairway, stepped aside through a door on the second floor out in the dark, upon a platform which he thought was protected by a railing, but fell and was injured, he was guilty of such contributory negligence that in an action against the owner of the building it was proper to direct a verdict for the defendant.</p>

<p>[To be reported.]</p>

No. 17 July Term 1890, Sup. Ct.; court below, No. 173 December Term 1888, C. P. On November 3, 1888, in an action stated in the name of Emily Y. Dikeman v. John A. Butterfield, counsel appeared for defendant and confessed a judgment in ejectment against him and in favor of the plaintiff for two adjoining lots of ground in the city of Bradford, and for the sum of $20 rent unpaid thereon.

<p>(«) A husband signed an agreement with his wife, engaging to treat her kindly and to permit her to do certain things, and acknowledging that he had received from her the sum of $360, which he had used in paying for his property.</p> <p>(6) That acknowledgment was followed by these words: ‘ ‘ for which I hereby confess Judgment with Interest and Costs and release of errors Should I violate the above agreement, and Give the annexed bond for the faithful performance of my part of the foregoing.”</p> <p>(c) Upon another page of the same sheet of paper, he signed a bond in the penal sum of $720, conditioned for the payment to his wife of $360 and the performance in good faith of his agreement with her bearing even date therewith:</p> <p>1. Construed in accordance with the evident intention of the parties, and in such a way as to give effect to the confession of judgment, the agreement did not make the confession operative only in ease of a violation of the other stipulations.</p> <p>2. Wherefore, the confession being a complete and absolute one, and showing on its face a definite amount due, the instrument authorized the entry of judgment thereon by the prothonotary, under the act of February 24, 1806, 4 Sm. L. 278.*</p>

<p>[To be reported.]</p>

<p>[To be reported.]</p>

<p>1. In an action of assumpsit upon a book account, when all the charges in the copy of the account, filed with the statement of claim, bear date more than six years prior to suit brought, an affidavit of defence calling attention to that fact, and averring that the defendant has made no new promise, sufficiently sets up the statute of limitations.</p> <p>2. The copy of ¡1 book account required by the Procedure Act of May 25, 1887, P. L. 271, to be filed with the statement of claim in a suit thereon, is only an appendix or exhibit, which may be helped out by averments in the statement; so that a failure to name the defendant in the copy filed is not a fatal defect upon a motion for judgment for want of a sufficient affidavit of defence.</p> <p>3. The copy, however, is a necessary appendix or exhibit to the statement of claim by the express terms of the act of 1887, under which a correct copy of the book entries is required; and the fact that the copy filed is such, should be made to appear, either upon its face or by categorical averment in the statement.</p> <p>4. When the book entries, a copy of which is filed, all bear date more than six years prior to the issue of the writ, an averment in the statement of claim that the amount of the account became due and payable within the six years, without explaining how or why the charges did not become due at their date, is not sufficient to avoid the bar of the statute of limitations.</p> <p>5. The completeness, as to essential facts, which has always been required in an affidavit of defence, is required equally in a statement of claim under the act of May 25, 1887, P. L. 271 ; its spirit plainly requires that every contract or agreement upon which the claim in any manner depends, though in parol, shall be averred in the statement with accuracy and precision.*</p> <p>6. A judgment for want of a sufficient affidavit of defence is in effect a judgment on demurrer, and, like all such judgments, must be self-sustaining on the face of the record; and hence the fact that the sufficiency of the statement of claim may not have been objected to below, is not a reason why it should not be regarded in the Supreme Court; after a reversal, however, the court below may allow amendments.</p>

<p>1. The plaintiff at whose instance a warrant of arrest under the act of 12, 1842, P. L. 339, was issued, has a right to have an order quashing sueh warrant reviewed by the Supreme Court, but such review will be limited to the regularity of the proceeding as it appears upon the record.*</p> <p>2. If, after hearing testimony, the judge should discharge the defendant from arrest, his action would not bo reviewable; but when, without a hearing on the facts, or any action on the merits of the case, the warrant has been quashed on motion for matter of law appearing on the record, a question for review is presented.</p> <p>3. The object of a warrant of arrest under the act of 1812 and that of an attachment under the act of March 17, 1869, P. L. 8, being the same, to wit, t,o compel payment of a debt fraudulently contracted or evaded, but their mode of reaching it being entirely different, they are not exclusive of each other, and both may be necessary to give complete relief.</p> <p>4. A warrant of arrest may be issued in a suit begun by attachment under the act of 1869, when the attachment has failed to grasp sufficient property to satisfy the claim, or from any other cause has proved an inadequate remedy; and, if so issued, upon an affidavit averring such inadequacy, an order quashing it upon the ground that it would not lie in such a case, is error.</p>

<p>1. A deed conveying lands to hold and retain “asa security, and keep the same for the space of one year after the following notes become due, for the purpose of securing and making safe to creditors the following sums,” and “ after the above-mentioned notes or obligations are paid.....to re-eonvey,” is but a mortgage in trust for the creditor’s named in it.</p> <p>2. Where, in such ease, the account of the mortgage trustee was filed and confirmed and the fund shown thereby distributed, in a court of general jurisdiction, its decree, though the trustee was a non-resident, was conclusive in all collateral proceedings, not only as to all matters that actually were raised, but as to all that might have been raised.*</p>

<p>1. While an incorporated club, organized for patriotic and social purposes, and owuing property, has not a common-law power to expel a member for a minor offence, it may exercise the power of expulsion, even for such an offence, when expressly conferred upon it by its charter: Evans v. Philadelphia Club, 50 Pa. 107, distinguished.</p> <p>2. A provision, in an act of assembly incorporating such a club, which confers upon it the power of expulsion, and the right to regulate by its by-laws the causes of expulsion and the manner of effecting the same, is not in conflict with the constitution of this state or that of the United States, nor can its wisdom or policy be questioned by the courts.</p> <p>3. Under such a provision, a by-law delegating to a majority of the board of directors the power to suspend members “for acts or conduct which they may deem disorderly, or injurious to the interests or hostile to the objects of the ” club, giving a suspended member the right of appeal to the society, and enacting that, unless the sentence be reversed on appeal, he shall forfeit his membership, is valid.</p> <p>4. It is not necessary that such a by-law should in advance designate and define the vai-ious and specific acts which will be deemed disorderly or injurious to the interests of the society: what is orderly, and what is disorderly and injurious conduct, must necessarily be left to the determination of some appropriate tribunal, and this may legally be done.</p> <p>5. When a member of a club, composed of gentlemen associated together for patriotic and social purposes, has been guilty of rude and ungentlemanly conduct in the club house, in that, without cause or provocation, he charged upon a fellow member, to his face, that he was acting like a blackguard, his conduct is a sufficient cause of expulsion under such a by-law.</p> <p>6. It is not essential to the validity of a conviction upon such a charge that there be a finding, in totidem verbis, that the member’s conduct is deemed by the board disorderly or injurious to the club’s interests, especially if the sentence of the board declare him guilty of a violation of the particular by-law: it is not expected that such proceedings will be expressed with absolute technical accuracy.</p> <p>7. If the proceedings in such a case are regular, in accordance with the by-laws upon the subject, and conducted in good faith; if the accused has been accorded a full and fair hearing and a proper finding and judgment have been entered upon the facts, and the whole proceeding is stated with substantial accuracy in the record made thereof, that is sufficient.</p> <p>8. But when the power of expulsion lias been exercised in good faith, and in a reasonable, proper and legal manner, its exercise cannot be questioned collaterally: the courts may judge of the cause of the expulsion and the form of the proceedings, to see whether the corporate tribunal has acted within its jurisdiction and in the line of order, but cannot review the case on its merits.</p> <p>9. Evans v. Philadelphia Club, 50 Pa. 107 ; Butchers’Benef. Ass’n, 35 Pa. 151, and 38 Pa. 298; Beneficial Ass’n, 38 Pa. 299; Society v. Commonwealth, 52 Pa. 125; Franklin Benef. Ass’n v. Commonwealth, 10 Pa. 357; Pitcher v. Board of Trade, 20 111. App. 319, considered.</p>

<p>APPEAR BY USE PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY.</p> <p>No. 219 January Term 1890, Sup. Ct.; court below, No. 18 March Term 1880, M. L. D., C. P. No. 2.</p> <p>To the number and term in the court below, the city of Philadelphia, to the use of Jacob M. Peters, brought scire facias against the “estate of Wilson Jewell, deceased,” and others, upon a municipal claim for paving a part of Penn street. On May 23,1889, the plaintiff and defendants agreed upon the following facts as a case stated:</p> <p>By an ordinance of the city of Philadelphia, duly approved on June 12, 1868, the price of rubble paving in said city was fixed at $1.50 per square yard.</p> <p>In and by a certain resolution of said councils, duly approved on February 24, 1871, it was provided as follows :</p> <p>“ That the department of highways be and is hereby authorized and directed to enter into a contract with a competent paver or pavers who shall be selected by a majority of the owners of property fronting on Penn street, from Sellers street to Unity street, the cost of paving the intersection not to exceed the sum-of $135, for the paving thereof with rubble paving: the conditions of said contract shall be that the contractor or contractors shall collect the cost of said paving from the property owners respectively fronting thereon, and shall enter into an obligation with the city to keep the said paving in good repair for three years after the paving is finished.”</p> <p>In and by a certain other ordinance of said city councils, duly approved on May 11, 1872, it was provided as follows:</p> <p>“ That from and after the passage of this ordinance, ail contracts for grading, paving or repairing of the streets, avenues, or roads in said city, entered into by the department of highways with any person or persons, shall contain the following covenant and condition, viz.: That the said work shall bo fully completed to the satisfaction oE the department of highways, on or before the expiration of two years from the date thereof; provided, that the water pipes are laid on such streets, avenues or roads ; otherwise, the limitation to continue from the date of the completion of the laying of water pipes, and in default thereof, this contract shall be considered null and void.”</p> <p>In and by a certain other resolution of said councils, duly approved on June IB, 1878, the chief commissioner of highways of said city was duly authorized, instructed and directed to enter into a contract on behalf of said city with Jacob M. Peters, for the paving of Penn street, from Unity street to Sellers street, in accordance with the resolution approved February 24, 1871, entitled a “Resolution to authorize the paving of Penn street and other streets with rubble pavement.”</p> <p>Under and in pursuance of said resolution, said chief commissioner of highways did, on July 2, 1873, on behalf of said city, duly enter into a written contract with said Jacob M. Peters for the paving of said Penn street, from Unity to Sellers street, with rubble paving, wherein it was stipulated and agreed on behalf of said city, that it should pay said Peters for said paving, the sum of $1.50 per square yard for each and every square yard thereof in “ assessment bills,” made out by the proper officers, at the rate of $1.50 for each and every square yard of said pavement laid in pursuance of said contract. And said Jacob M. Peters therein agreed on his behalf to do said paving for the price of $1.50 per square yard, and to accept and take from said city, in payment therefor, assessment bills made out as aforesaid, at the rate of $1.50 for each and every square yard thereof, prout contract, which is made a part of this case stated as fully as if entirely and particularly set forth herein. In the latter part of the year 1873, the said Jacob M. Peters, under said contract, paved a part of said Penn street, between the points aforesaid, with rubble pavement, and received from said city in payment therefor assessment bills, made out as aforesaid, at the rate of $1.50 per square yard for each and every square yard thereof then done by him.</p> <p>In and by a certain other ordinance of said councils, duly approved April 24, 1877, it was provided: “That from and after the passage of this ordinance the price or cost for the new paving of the cartways of streets to be charged to the owners of property fronting on such streets, and to the city for intersections, shall not exceed the following, viz.: for paving with cobble stone $1 per square yard; for paving with rubble stone, $1.10 per yard; but, should the bills for such paving remain unsettled and unpaid sixty days after they are legally rendered, there shall be added to the above prices the sum of ten per cent for each square yard paved.”</p> <p>In and by a certain other .ordinance of said councils, duly-approved January 26, 1878, entitled “ An ordinance to put in force and practice a certain ordinance voiding contracts,” it was provided: “That all contracts for grading or paving of streets made for two years or more, and the work remaining uncompleted on January 1, 1878, the said contracts are hereby declared void and of no effect, in accordance with an ordinance entitled ‘ An Ordinance relative to the completion of contracts for the grading, paving or repairing of streets,’ approved May 11, 1872; and that the chief commissioner of highways be and is hereby instructed to notify the contractors in interest not to continue the work on said contracts, and that the city controller be instructed to countersign no warrants for -work done under such contracts after the above mentioned date.”</p> <p>No notice to the contractor in interest was given, as required by the last above .mentioned ordinance.</p> <p>In and by a certain other ordinance of said councils, duly approved December 3, 1878, it was provided : “That an ordinance entitled an ordinance in relation to contracts for street paving, approved December 31, 1862, be and the same is hereby repealed; and all contracts for paving streets entered into by the department of highways, under which work has been ■ done under resolution or ordinance authorizing the same, be and are hereby ratified and approved.”</p> <p>In the latter part of September, 1879, the said Jacob M. Peters, tinder the above mentioned contract, did the work and paving particularly set forth in the claim filed in this case, and which claim is made a part of the case stated, and received from said city in payment therefor an assessment bill against the property described in said claim, made out by the proper officers, at the rate of $1.50 for each and every square yard of said paving.</p> <p>No part of said claim or assessment bill has ever been paid, and the whole thereof still remains unpaid. Said claim was duly filed March 2, 1880. The water pipe was laid in Penn street, between Unity and Sellers streets, in the year 1871.</p> <p>If upon these facts above stated, the court should be of the opinion that said Jacob M. Peters is entitled and has a legal right to demand and claim for said paving at the rate $1.50 per square yard, then judgment to be entered for the plaintiff for the sum of $82.59, with interest from September 23,1879; but if the court should be of opinion that the said Jacob M. Peters has a legal right to but $1.10 per square yard, for said paving, then judgment to be entered for the plaintiff, for the sum of $23.98, with interest from September 23, 1879; but if the court should be of opinion that the said Jacob M. Peters, has no legal claim and is entitled to nothing, then judgment to be entered for the defendants, either party to have the right to a writ of error to the Supreme Court.</p> <p>After argument, the court in banc, on December 28, 1889, without opinion filed, entered judgment for the plaintiff upon the case stated for $38.79, the amount for which it was rendered being calculated upon the basis of $1.10 per square yard for the work done. Thereupon the use plaintiff took this appeal, specifying that the court erred:</p> <p>1. In not entering judgment for the plaintiff, on the case stated, for $32.59, with interest from September 23, 1879.</p> <p>1. The court had no right to disregard the solemn contract and say that Peters should take less for his work than he had agreed to do it for, and less than the amount which the city, in recognition of its obligation, had paid him in assessment bills. The only contract was a clear and plain one for $1.50 per square yard. While courts may construe contracts when their meaning is obscure, they cannot make new contracts for the parties, and there is no room for construction when the language used is clear and unambiguous: Shafer v. Senseman, 125 Pa. 310. This is the law between the parties to the contract, and in such a case as this the property owner has no superior rights; on the contrary, he has nothing to do with the contract made by the city, if authorhy for making it existed: Reilly v. Philadelphia, 60 Pa. 467; Hutchinson v. Pittsburgh, 72 Pa. 320 ; Philadelphia v. Brooke, 81 Pa. 23; Fell v. Philadelphia, 81 Pa. 58; Philadelphia v. Hays, 93 Pa. 72; Philadelphia v. Wistar, 35 Pa. 427. The defendants, of course, had a right to know what the price fixed in the contract was, and to see that the assessment bills conformed thereto, but that was the extent of their rights.</p> <p>2. It is contended that Peters is bound by the ordinance of 1877, fixing the price for new rubble pavement at not exceeding $1.10 per square yard. But, in the first place, there is nothing in the ordinance indicating an intention to change the terms of existing contracts, or contracts previously made; and, secondly, councils had no power to make any such change, for it would be impairing the obligation of a contract. Corporations have no more power in this respect than natural ..persons: Duncombs v. Fort Dodge, 38 la. 283. The ordinance of January 26, 1878, did not avoid the contract with Peters. No time for the completion of the work was fixed in it, and therefore the councils had no power to declare it void, especially without first giving him reasonable notice to proceed and complete the work. But, even if the city had a right to repudiate the contract, the right was personal to itself and could not be taken advantage' of by the defendants who were strangers to the contract: Philadelphia v. Brooke, 81 Pa. 23.</p> <p>3. The city never refused to recognize the contract. It never notified Peters not to go on with his work. When it was completed, the city accepted it and had assessment bills made out at $1.50 per square yard, with which it paid him ; it filed municipal claims for their amounts, and now it unites with him in suing for their recovery. Such acts clearly estop the property owner from questioning the existence of the contract: Philadelphia v. Brooke, supra. But the whole question is settled by the ordinance of December 3, 1878, ratifying contracts under which work had been done. The contract with Peters came directly within its terms, and the ratification bound both the city and the property owners: Philadelphia v. Hays, 93 Pa. 72; Pepper v. Philadelphia, 114 Pa. 96. Upon the faith of this ordinance Peters went on and completed his contract. The case stated admits that he did the work under a contract providing for the payment of $1.50 per square yard. As that contract, if it could have been declared void, was duly ratified, we cannot imagine why the court entered judgment for less than the amount called for both by it and by our assessment bill.</p> <p>While the controversy in this appeal relates simply to the price the plaintiff is entitled to charge, we have also taken an appeal, which raises the question of the right of the plaintiff to recover at all, but which cannot, according to the rules of this court, be argued at the present term. We suggest that the appeal of the plaintiff should not be heard until that of the defendants is ripe for argument, so that the whole case can be disposed of finally. If the plaintiff has a right to be heard now, we present the .following positions as to the questions raised by the present appeal:</p> <p>1. The power to fix the price or cost of paving, as was done by the ordinance of 1877, was conferred by the act of March 30, 1866, P. L. 354, and was recognized in Philadelphia v. Miller, 2 W. N. 302. Peters, and all the world beside, having notice of that ordinance, at the time he took up and went on with the work of paving Penn street, of his own motion, how can he, or the city, in the face of that ordinance, charge more than $1.10 per square yard against property owners for work done after its passage ? The property owners have some rights under the ordinance. Even under the acts of assembly they can defend on the ground that the work was charged to them at more than its worth: § 1, act of April 19, 1843, P. L. 342; Philadelphia v. Burgin, 50 Pa. 539 ; Philadelphia v. Brooke, 81 Pa. 23; Fell v. Philadelphia, 81 Pa. 58; Pepper v. Philadelphia, 114 Pa. 96. The plaintiff cannot escape from the market price fixed by the ordinance of 1877.</p> <p>2. The claim of the use plaintiff that because he had a contract made in 1873, stipulating for a certain rate, then, the market one, he could sit down and wait until, by the decline of market prices to their lowest point, the time for his greatest profit had arrived, and then do the work and charge the owner of the property at the old rate which had become illegal, carries its own answer in a court of justice and equity. The rate specified in the contract was lawful, and perhaps fair, in 1873, when, as is well known prices were at the highest point, but it was a grossly exaggerated one six years later, when the work was actually done. No tribunal will compel a man to pay for work, undertaken without his consent, more than the market rate fixed by the creditor, especially in the circumstances of this case. Had Peters done his work when he contracted to do it, his rates could not have been questioned by the defendants ; but they surely have the right now, after the years of delay in doing the work.</p> <p>3. That the chief commissioner of highways sent Peters assessment bills for the work done in 1879, made out at the old rate of 1873 and not at the price fixed by law when the work was done, is no reason w'hy the defendants should be compelled to pay a much larger sum than their neighbors for the same kind of work done by the same people, at the same time. Such action was a purely ministerial act. Councils alone had the power to ratify. Public agents have no such power, unless it is conferred upon them by statute or ordinance: Reilly v. Philadelphia, 60 Pa. 467; Philadelphia v. Railroad Co., 88 Pa. 314; Elliott N. Bank v. Railroad Co., 2 Lea. B. J. 676; Floyd Acceptances, 74 U. S. 666; Anthony v. Jasper, 101 U. S. 693; Louisiana v. Wood, 102 U. S. 294; Murphy v. Louisville, 9 Bush 189; Cooper v. Lampeter Tp., 8 W. 125 ; Market Co. v. Jackson, 102 Pa. 269. It is alleged that the contract was resurrected and revived by the ordinance of December 3,1878. We deny that this ordinance had such effect, but if the contract was so revived, it was at the then market rates fixed by law, and no other.</p>

APPEAL BY T. II. CRAIGE FROM THE ORPHANS’ COURT OF PHILADELPHIA COUNTY. No. 271 January Term 1890, Sup. Ct.; court below, number and term not given.

<p>[To be reported.]</p>

<p>[To he reported.]</p>

No. 120 July Term 1889, Sup. Ct.; court below, No. 351 September Term 1888, C. P. On September 6,1888, John Wise and James Bishop, executors of William Bishop, deceased, issued a scire facias to revive a judgment for $475.93, originally entered by William Bishop in his lifetime against Alexander Goodhart and Samuel Piper. The defendants pleaded payment, payment with leave.

No. 178 July Term 1889, Sup. Ct.; court below, No. 48 February Term 1885, C. P. On November 20,1884, Howe & Cook, for the use of the Sill B'arm Oil Co., brought assumpsit against Alfred Short. Issue.

No. 2 January Term 1890, Sup. Ct.; court below, No. 2 February Term 1885, C. P. On November 14, 1884, Thomas McLenahan and Charity MoLenaban bis wife, for use of said wife, brought case for slander against William Andrews.

No. 39 January Term 1890, Sup. Ct.; court below, No. 23 February Term 1889, Q. S. On February 13, 1889, tbe grand jury returned as a true bill an indictment which iu the first count charged Thomas Frantz with unlawfully selling liquor in the borough of Conneautville, contrary to tbe provisions of the act of April 9, 1869, prohibiting tbe issuing of licenses to sell liquors for drinking purposes in the boroughs of Conneautville and Spring, in said county, and, in the second…

<p>APPEAL BY DEPENDANT FROM THE COURT OP QUARTER SESSIONS OF ELK COUNTY.</p> <p>No. 311 January Term 1890, Sup. Ct.; court below, No. 3 May Term 1889, Q. S.</p> <p>On April 25,1889, the overseers of the poor of Huston township, Clearfield county, entered in the court below an appeal from an order made by two justices of the peace directing the removal of Nathaniel Harriger, his wife and daughter, from Benezette township, Elk county, to Huston township, Clear-field county.</p> <p>The case was heard by tlie court upon depositions taken, tbe testimony tending to show that Nathaniel Harriger and bis family bad become a charge upon the poor district of Benezette township, in which they had no legal settlement, and that prior thereto they had resided in Huston township, and Nathaniel Harriger had paid a road tax therein for the years 1884 and 1885.</p> <p>After argument, the court, Mayer, P. J., entered a decree discharging the order of removal at the cost of the poor district of Benezette township, filing the following opinion:</p> <p>Nathaniel Harriger, wife and step-daughter became a charge upon the poor district of Benezette township, Elk county, and were removed to the poor district of Huston township, Clear-field county, upon the allegation that the latter district was the place of legal settlement of said pauper. The overseers of the poor of Huston township have appealed from the order of removal, and it is for the court to determine whether said removal was right and should be sustained.</p> <p>The poor district of Benezette township claims that the place of legal settlement of Harriger and family was in Huston township, by reason of the payment of road taxes for two consecutive years, and that this would give them a settlement under the ninth section of the act of June 13,1836, which provides that a settlement may be gained in any district, “ by any such person who shall be charged with, and pay his proportion of any public taxes or levies for two years successively.” The evidence taken on the part of Benezette township shows that Harriger paid road tax in Huston township for the years 1884 and 1885. Is the payment of' road taxes within the meaning and intendment of the act of 1836, and are they such “public rates and levies ” as were contemplated by said act ?</p> <p>The words “ public rates and levies ” have received a judicial construction by the Supreme Court, in the case of Directors of the Poor v. Guardians of the Poor, 5 S. & R. 417. C. J. Tilghman, delivering the opinion of the court, says that by two acts for the relief of the poor, one passed in 1717 and the other passed in 1734, a person might gain a settlement by being charged with and paying his share towards the county taxes or levies for the poor; that county taxes, in those two acts, were distinguished from levies for the poor, and the payment of either gained a settlement; that in 1771 an act was passed for the relief of the poor, in which the expression, county taxes, is altered to public taxes. He proceeds to explain the reason of this alteration; that in the years 1717 and 1734, there was no provincial-tax, and therefore a settlement was gained by payment of county tax; that in 1771 there was a provincial tax, and that the legislature used the word public, instead of county meaning to comprehend in that expression both provincial and comity taxes. The same expression is used in the act of 1836, “ public taxes or levies,” which means state, instead of provincial, or county taxes.</p> <p>We are, therefore, of the opinion that a settlement cannot be gained by the payment of a road tax, but it must be either a state or county tax. The paupers were improperly removed to Huston township, and the order of removal must be discharged, at the cost and expense of the poor district of Benezette township; exception.</p> <p>—Thereupon the poor district of Benezette township filed the following exception :</p> <p>“Now, November 5, 1889, the overseers of the poor district of Benezette except to the decision of the court, that the payment of a road tax for two successive years is not sufficient to give a pauper a settlement, but that it must be a state or county tax.”</p> <p>The poor district of Benezette township then took this appeal, specifying that the court erred:</p> <p>1. In deciding that a settlement could not be gained by the payment of a road tax for two successive years.</p> <p>1. A person charged with and paying “his proportion of any public taxes or levies for two years successively,” in any poor district, gains a settlement thereby: § 9, act of June 13,1836, P. L. 541. In Directors of Poor v. Guardians of Poor, 5 S. & R.417, upon which the court below based its decision, the phrase “public tax ” was construed only as used in the act of March 9,1771, 1 Sm. L. 338, and it was not intended to declare its general meaning, for all time to come, as restricted to provincial, or state and county taxes. The effect of the decision of the court below would bo that one residing in a county which of itself was a poor district, might gain a settlement by the payment of a poor tax, because it is levied by the county; whereas, one might live in an adjoining county, where the townships constitute poor districts, and pay poor taxes for a lifetime, without acquiring a settlement thereby.</p> <p>2. The statutory provision should be considered in the light of its reason and purpose. The reason for it is because the payment of taxes furnishes indisputable proof of actual residence, just as the leasing of real estate, or an indenture to serve, does. And is not this shown by the payment of a township tax, as well as by payment of a county tax? Is it reasonable to say that one actually residing in a township, and contributing to its poor rates his proportion thereof, shall not be entitled to relief from the fund he has helped to create ? It seems to us that the very reason given by Mr. Chief Justice Tilghman, in the case.cited, for the introduction of the word public into the act of 1771, is in harmony with our theory. It was undoubtedly the intention of the act of 1836 to embrace more than state and county taxes. In the case at bar, the settlement is sought to be established bjr the payment of a road tax, but the principle is the same as if it were a poor tax.</p> <p>1. This appeal should be quashed. To render the decrees of the Courts of Quarter Sessions, in such cases, reviewable, it is necessary that upon the hearing exceptions to their decisions upon points of evidence or of law shall be noted and filed of record: Act of March 24, 1868, P. L. 46. There was in this case no exception made or point presented to the court at the hearing or argument, and none was noted by the court and filed of record. The only exception is to the opinion of the court, and upon it no bill was sealed. The Supreme Court has no jurisdiction to review such an exception as this to the opinion of the court below: Lower Augusta v. Selinsgrove, 64 Pa. 166; Overseers of Parker Tp. v. Overseers of East Franklin Tp., 13 W. N. 141; Overseers of Elk Tp. v. Overseers of Beaver Tp., 18 W. N. 438.</p> <p>2. To gain a settlement there must be a strict compliance with all the requirements of the statute: Beaver Tp. Poor D. v. Rose Tp. Poor D., 98 Pa. 636. The act of 1717,1 Weiss & Miller’s L. 72, and that of 1734, Idem 138, provided that a settlement might be gained by the payment of “ county taxes or levies for the poor.” By § 17, act of March 9, 1771, 1 Sm. L. 338, the expression was altered to “public taxes or levies for the poor,” so as to comprehend provincial taxes, which had been imposed in the meantime, as well as county taxes: Directors of Poor v. Guardians of Poor, 5 S. & R. 417. The language of clause II., § 9, act of June 13,1836, P. L. 543, is, “ any public taxes or levies for two years successively,” designedly omitting tlxe words “for tlie poor.” The judicial construction of the words “public taxes,” as meaning state and county taxes, in the case last cited, must be applied to them in the act of 1836.</p> <p>3. Again, if the construction of the act of 1836, contended for by the appellant, is to be adopted, the word “public,” might as well have been omitted entirely. But that word has a well defined meaning, viz., concerning the whole body politic, or all the citizens of the state: 2 Bouv. Law D., 484; 1 Green!. Ev., § 188. State and county taxes are a burden on each and every individual in the state, and are annual throughout tlxe state; while road and poor taxes are local in their nature, and tlxe subjects of taxation upon which they are assessed are more restricted. The office of the word “any ” is simply to preclude all question as to what public taxes, state or county, must be paid. But tlxe four acts referred to are in pari materia and must be construed together: Keeling’s Road, 59 Pa. 358. Neither the letter nor the spirit of the act of 1836 includes township rates and levies.</p>

<p>APPEAL BY DEPENDANT PROM THE COURT OP QUARTER SESSIONS OP WARREN COUNTY.</p> <p>No. 350 January Term 1890, Sup. Ct.; court below, No. 17 March Term 1889, Q. S.</p> <p>On February 7,1889, C. M. Carringer and John Sallarle, overseers of the poor of the township of Jenks in Forest county, presented to the court below their petition averring that under the provisions of the acts of April 9,1844, P. L. 230, and March 31, 1868, P. L. 535, the commissioners of roads and highways of the township of Sheffield, in Warren county, were required to perform in said township the duties of overseers of the poor; that about September 29, 1887, certain persons, coming out of the district of Sheffield into the district of Jenks, fell sick in and became a charge upon the latter district, and,, in caring for and maintaining them during their sickness, in pursuance of an order of relief duly made, the petitioners as overseers of Jenks township necessarily expended the sum of $91.04; that said paupers had a settlement in said township of Sheffield, acquired by the payment of public taxes therein for the years 1884 to 1887 inclusive, but that the commissioners of Sheffield township, after due notice, refused to pay to the petitioners any part of the moneys so expended; praying for a rule upon the said commissioners to show cause why they should not be compelled by mandamus to pay said moneys. A rule to show cause was thereupon granted as prayed for.</p> <p>On May 18,1889, the respondents demurred to the petition, assigning, as causes of demurrer, in substance: (1) that the acts of the petitioners as overseers of the poor in the township of Jenks were unauthorized and void, because by the general act of June 4, 1879, P. L. 78, the entire county of Forest was erected into a single poor district; and (2), that by said act the county of Warren was created a single poor district and the poor district of Sheffield township abolished. The petitioners having filed a joinder, the court on September 2,1889, after argument, overruled the demurrer.1</p> <p>Thereupon the respondents answered the petition, averring in defence thereto that, prior to the alleged furnishing of support and maintenance, and at all times since, the county of Forest, embracing the township of Jenks, constituted a single poor district, by provision of the laws of this commonwealth, and the petitioners possessed no legal rights as overseers of the poor; and the county of Warren, embracing the township of Sheffield, likewise constituted a single poor district, and was so created by the special acts of April 8, 1864, P. L. 438, and April 4, 1866, P. L. (1867) 1412, and by the laws of this commonwealth; that, before the cause of complaint arose, the county commissioners of Warren county had erected a poor house to which all the poor of the county had been removed, a.nd the road commissioners of the various townships had ceased and were not required to exercise the functions of overseers of the poor; that, since the commencement of these proceedings, the special act of March 81, 1868, P. L. 535, was expressly repealed» by the act of May 9, 1889, P. L. 155; and that the respondents had in their hands no funds raised for the support of the poor, and no taxes for that purpose had been levied by the authorities of Sheffield township since the formation of Warren county poor district. The respondents therefore prayed to be dismissed, etc.</p> <p>On November 25, 1889, the petitioners moved the court to make the rule absolute, for want of a sufficient answer.</p> <p>After argument, the court, Brown, P. J., on February 17, 1890, filed the following opinion and decree:</p> <p>At the time the overseers of Jenks township incurred the expenses for which they ask to be reimbursed, such township was a single poor district. We say so, because we are of the opinion that the act of' June 4, 1879, P. L. 78, did not ipso facto make the county of Forest a single poor district.</p> <p>By the special acts of assembly of April 8, 1864, and April 4, 1866, the county of Warren was made a single poor district, and the duties and functions of overseers of the poor devolved upon the commissioners of the Rouse estate, the county commissioners by virtue of their office being the commissioners of the Rouse estate by act of April 5, 1862. By act of March 31, 1868, the road commissioners of the several townships of Warren county are made overseers of the poor within their respective districts, until such poor are committed and delivered to the Rouse Hospital, and the road commissioners are authorized to increase the road taxes to an amount sufficient to carry out the provisions of the act, or, if they deem inexpedient, to levy a separate poor tax.</p> <p>The expenses claimed by the Jenks overseers were incurred and this proceeding commenced while the act of 1868 was in full force. In passing upon the act of 1868, in the case of the House Est. v. Poor Directors, 118 Pa. 1, the Supreme Court say: “ Its obvious effect was to re-enact the several boroughs and townships of the county into poor districts, and to impose on them all the duties of overseers of the poor until they are delivered to the Rouse Hospital.”</p> <p>The act of 1868 was repealed by the act of May 9, 1889, P. L. 155, but the repealing act contained no provision-for the pay-, ment of liabilities previously existing against the township poor districts. It imposed no liability therefor on the county poor district, and had it done so, it is at least doubtful whether such a provision would be valid. There is no averment against the justice of the claim of the petitioners, and we think no doubt of the liability of the township respondent. The repealing act of 1889, does not take away the jurisdiction of the court, and as it provides no other remedy we think the proceeding should go on as if that act had not been passed.</p> <p>The averment of the answer that respondents have no funds in their hands raised for the support of the poor, and that no taxes for that purpose have been levied cannot avail them. The liability having accrued while the act of 1868 was in force, we think it became a township debt payable from the road taxes, especially where no separate poor tax has been levied.</p> <p>The claim in this case is for relief to a man and wife whose settlement was in Sheffield, but who had moved to Jenks township, and there fell sick. The act of June 25,1885, relates only to injured indigent persons and has no bearing on the case before us.</p> <p>The rule to show cause why a mandamus as prayed for should not issue is made absolute, and it is ordered that respondent pay to complainant the sum of $91.04 with interest from December 1,1887, and also the costs of these proceedings.8</p> <p>Thereupon the respondents took this appeal, specifying that the court erred:</p> <p>1. In overruling the demurrer to the petition.1</p> <p>2. In entering the decree in accordance with the prayer of the petition, and ordering the payment of $91.04, with interest and costs.8</p> <p>3. In not dismissing the petition.</p> <p>1. The act of April 8, 1864, P. L. 488, and its supplement of April 4, 1866, P. L. (1867) 1412, abolished the township and borough poor districts in Warren county, made the county a single' poor district, and transferred to the county commissioners, as ex officio commissioners of the Rouse estate, the powers formerly vested in and laid upon the overseers of the poor of the several districts of the county. Under those acts, a portion of the charitable bequest made by Henry R. Rouse was expended in erecting Avhat is, to all intents and purposes, a county poor house, though called the Rouse Hospital. By act of March 31,1868, P. L. 535, certain duties respecting the poor were laid upon township and borough officers in said county, and this court decided in Rouse Est. v. Poor Directors, 118 Pa. 1, that its effect was to re-erect the several boroughs and townships into poor districts, and impose on their officers the duties of overseers of the poor, until the poor under their care were committed and delivered to the Rouse Hospital. That case was decided entirely upon the act of 1868. The general act of June 4, 1879, P. L. 78, was not brought to the notice of the court. We now submit that it necessarily repealed the act of 1878.</p> <p>2. The first section of the act of 1879 absolutely creates each county in the state a poor district. There is no proviso that this section shall not take effect immediately, nor is there any saving of local laws creating smaller districts. On the .contrary, the special saving, in the last section, of local laws relating to poor houses, evidences the intention that each county shall at once be a poor district, Avithout any exceptions. An implication seems to arise from §§ 9, 10 and 18, that township and borough officers are to continue to exercise some functions, until a poor house shall have been erected under the other sections of the act, but such provisions do not apply to Warren and other counties which already possessed poor houses. The construction put upon the act by the court below is, in effect, that § 1 does not go into operation until a poor house has been erected, under the provisions of that laAV; but in that case the act is local, as it could never operate in counties having poor houses already under other laws, nor in any county until two thirds of the overseers think proper to petition the court to order an election, and the people vote to build a poor house. It would therefore be' repugnant to § 7, article III. of the constitution : Frost v. Cherry, 122 Pa. 417; Scranton Sch. D.’s App., 113 Pa. 176.</p> <p>3. Such a construction will be adopted, if possible, as will sustain a law, rather than one which would avoid it. All presumptions are in favor of its constitutionality: Craig v. First P.- Church, 88 Pa. 42; and nothing but a clear violation of the constitution will justify pronouncing it void: Speer v. School Directors, 50 Pa. 150; Hilbish v. Catherman, 64 Pa. 154; Penna. R. Co. v. Riblet, 66 Pa. 164. Unless the court import into the act of 1879 the limitation that it is not to operate until the people have voted and the commissioners have erected a poor house, its provisions are all constitutional. The matter to be submitted to the people is, not whether the law shall operate, but whether a certain expense shall be incurred. If any of the provisions of the act are repugnant to the positive language of § 1, they are formal rather than substantial, and. may well be regarded as directory ; and if the act is incapable of such a construction as will give effect to it as a whole, without transgressing the constitution, the provisions first mentioned in its title, and first declared in the body of it, may well stand alone. Though part of an act be unconstitutional, the remainder is not necessarily so: Cooley’s Const. Lim., 178; Commonwealth v. Potts, 79 Pa. 164. It is submitted, however, that the law can stand as a whole.</p> <p>4. The result of the act of 1879 is that neither plaintiff nor defendant has any standing in court. Forest county, as a poor district, should have relieved the poor persons who became chargeable in Jenks township, and should have proceeded against Warren county, instead of against Sheffield township. And even if the special act of March 31, 1868, P. L. 535, should be held in force, the judgment must be reversed, because Jenks township is not the proper complainant. There is another reason why this proceeding cannot be maintained against the poor district of Sheffield township, viz., that the act of 1868, even if it can be regarded as in force after the passage of the act of 1879, was expressly repealed by the act of May 9,1889, P. L. 155. The road commissioners have no longer any power to levy poor taxes or apply any taxes to the poor. But for the constitutional prohibition, the legislature doubtless would have provided some way of settling up the poor business; but they have not, and the court cannot do so. Possibly the repeal ipso facto transferred all the duties, rights and liabilities of the township and borough districts to the new district, composed of the county; but, however that may be, the township district died when its breath was stopped by the legislature.</p> <p>1. The county of Forest has no poor house and has taken no steps to procure one under the act of June 4, 1879, P. L. 78. Hence the office of overseers of the poor still exists in that county, as appears by §§ 10 and 18 of that act. Warren county has a poor house, and a complete poor system of its own, under local statutes which have received judicial construction in Rouse Est. v. Poor Directors, 118 Pa. 1. The act of June 4, 1879, does not immediately abolish the poor district of the township of Jenks, nor create the poor district of the county of Forest; but, manifestly, until the contingency mentioned in § 18 arises, the office of overseers of the poor exists, and consequently the township poor district continues. The complaint was therefore made by the proper parties in this case. Probably it will not be denied that if the decision in Rouse Est. v. Poor Directors, supra, be the law as to Warren county, the complaint is made against the proper party. But, it is suggested that the act of 1879 was not called to the attention of the court in the case cited; that act, however, could not have produced a different result, as by § 21 thereof all local acts governing the county of Warren were saved from repeal. The act of March 81, 1868, P. L. 535, which is a local act, remains, therefore, in full force.</p> <p>2. As the act of 1879 applies neither to the plaintiff nor the defendant, no question as to its constitutionality properly arises, and we pass that subject by. We had a perfect cause of action, and the right parties were in court, at the time the act of 1868 was repealed by the act of May 9, 1889, P. L. 155. Are we now to be turned out of court, because the repealing act contained no saving clause ? The argument for the appellants is based upon the mistaken assumption that the road commissioners of Sheffield constituted a separate corporation in the discharge of their duties under the act of 1868. Under the authority thereby given, they could pay this claim out of the ordinary road fund, and they may do so still. It neither was nor is necessary to levy a separate poor tax; that was optional with them under the act of 1868. By the repeal of that act, they are relieved of the further care of the poor, and the power to levy a separate tax for the poor is taken from them; but they still have the duty of paying any debts incurred by the township while the act was in force. The repealing act did not take away the jurisdiction of the court. There was no repeal or change of the remedy; but, if there were, the rule is that proceedings continue upon a repeal or change of the remedy merely: Hickory Tree Road, 43 Pa. 139; Bedford v. Shilling, 4 S. & R. 403.</p>

<p>1. In an action on the covenant of general warranty in a deed, where the grantor had no title to the coal under the land which was not excepted from the deed, evidence clearly showing that the grantees know the grantor did not own the coal and did not intend to include it in the sale, and that they never could have supposed they were buying it, is sufficient to warrant the submission of the case to the jury to determine whether the omission to except the coal from the deed was a mutual mistake.</p> <p>2. In such ease, an instruction to the jury that the deed could not be reformed except upon clear and convincing evidence of a mistake on the part of the grantor and the grantees, was not inconsistent with the further instruction that both the grantees need not have been present when the bargain was made, for, where the evidence shows that one of the grantees was conducting the negotiations, he would then be acting for the other as well as for himself, and his negotiations would affect both.</p>

<p>1. A plaintiff in ejectment, who had no greater interest in the pr-emises in controversy than a tenancy from year to year which had terminated before the issuing of his writ, has no standing to maintain his action.</p> <p>2. In such case, as the plaintiff’s right to recover damages depends on his i-ight of possession at the time suit was brought, it was not error to refuse to allow him to file an additional count laying special damages.</p>

No. 75 July Term 1889, Sup. Ct.; court below, No. 292 March Term 1887, C. P. On March 7,1887, an appeal was entered from the judgment of a justice of the peace in an action by A. M. Claybaugh against E. Y. Goodchild. Issue.

No. 280 January Term 1890, Sup. Ct.; court below, No. 88 June Term 1887, C. P. On March 31, 1887, Mr. W. H. Playford, an attorney-at-law, brought assumpsit against A. A. Hutchinson, to recover for professional services rendered. Issue.

No. 318 January Term 1890, Sup. Ct.; court below, No. 141 June Term 1886, C. P. On April 7, 1886, a scire facias to revive was issued to the above stated number and term of the court below, to revive a judgment for $976.80 in favor of Solomon Phillips against Samuel Beatty, Joseph Beatty and Alexander J. Hill, entered to No. 132 December Term 1880.

No. 372 January Term 1890, Sup. Ct.; court below, No. 295 March Term 1886, C. P. ■ On February 12, 1886, “Mary J. Brown and George E. Brown, her husband, in right of said Mary J. Brown,” brought ejectment against Susan McCormick and Robert Patterson, for a lot of land in Uniontown. Issue.

<p>1. While the lapse of timo between the date of an injury and the date of the trial may be considered by a jury in finding the damages recoverable in an action ex delicto, yet it is error to instruct the jury that the plaintiff is entitled to interest on his damages from the time they accrued.</p> <p>2. But, where such instruction has been erroneously given, and the plaintiff, in the Supreme Court, is willing to remit the amount included in the' verdict as interest, the judgment may be amended accordingly, without remanding the cause: Reading etc. R. Co. v. Balthaser, 126 Pa. 1; Richards v. Natural Gas Co., 130 Pa. 37.</p>

<p>[To be reported.]</p>

<p>1. Incompatibility of temper is not a cause for divorce in Pennsylvania, and will not justify an abandonment by tlie husband or by the wife of his or her marital obligations and duties.</p> <p>2. The reasonable cause which will justify a desertion of a wife by her husband, or of a husband by his wife, must he such as would authorize a dissolution of the marriage bond by a divorce.</p> <p>3. A desertion, which is without consent and without sufficient legal cause, is presumed to be wilful and malicious; and, if persisted in for two years or more, it will entitle the injured party to a decree of divorce.</p> <p>4. Where the husband was not derelict in his duty to support his wife and family, his refusal to ¡jay his wife the ¡Drice of his boarding, will not justify her in deserting and abandoning him.</p> <p>5. A proceeding in the Court of Quarter Sessions, under the act of April 13, 1867, P. L. 78, resulting in an order for the payment by the husband of an allowance to Ms wife, will not bar a divorce, at Ms suit, on the ground of desertion.</p>

<p>Under § 47, act of June 16, 1836, P. L. 740, a prosecutor sentenced by the Court of Quarter Sessions to pay or secure the payment of the costs of prósecution in a criminal case, and to stand committed until the sentence is complied with, may be discharged upon his making application for the benefit of the insolvent laws and complying with their provisions, without having undergone any actual imprisonment under the sentence.</p>

<p>[To be reported.]</p>

No. 385 January Term 1890, Sup. Ct.; court below, No. 68 March Term 189o' C. P. On February 15, 1890, the board of directors of the Third… Held: “ The questions raised in this case might not have been raised until years after the act had gone into operation. Suppose that in that ease the court should declare the sections relating to school controllers and taxation unconstitutional, would it necessarily follow that the consolidation of the several districts must also fall?

<p>[To be reported.]</p>

<p>1. When money is deposited in a bank to the credit of “A, attorney for B,” neither the bank nor A can be heard to deny that the money belongs to B; but if, in point of fact, the money belongs to a third person, the latter, on giving notice of his claim to A and the bank, can recover it if he succeed in establishing his right.</p> <p>(a) A debtor agi-eed by parol with certain of his creditors, in consideration of their giving him time to consider whether ho would accept a pi-oposed composition or make a general assignment, to deposit a sum of money with his attorney, to be paid to his ex-editors if a compi-omise should be made, or to his assignee, if he should make an assignment:</p> <p>2. The money not having been specifically and irrevocably appropriated, by this an-angement, to any particular creditor or creditox-s, it remained in the hands of the attorney the property of the debtor, and was liable to attachment as such, although the creditors joining in the an’angement had complied with their agreement to give the debtor time.</p>

<p>1. A mining lease provided that the’lessee should mine ore “ at the rate of fifteen hundred tons per annum, on an average, provided the iron ore can be advantageously mined.” In such case, the lessee was not obliged to continue mining if the expense of doing so was greater than the value of the ore at the mine mouth.</p> <p>(а) Said lease further provided that any excess of fifteen hundred tons of iron ore mined aud carried away in any one year, and paid for, should go as a credit on the iron ore to be mined in future years, and that settlements for ore mined and carried away should be made annually.</p> <p>(б) The lessee did not mine and carry away fifteen hundred tons of ore in any one year. For several years he paid annually to the lessor royalty upon fifteen hundred tons, taking from him receipts stipulating that the amounts paid in excess of the royalty on ore mined and carried away should be credited in future settlements:</p> <p>2. In an action on the lease for royalty upon ore subsequently carried away, these receipts were admissible to show that the lessee was entitled to credits against the royalty claimed, and it was not competent for the lessor to testify that they were explained to him “as simple receipts,” without any intimation “that they changed the lease.”</p>

No. 148 January Term 1890, Sup. Ct.; court below, No. 42 May Term 1888, C. P. On April 27,1888, James Black, as surviving'trustee of Monterey Lodge, No. 242, I. 0. of O. E., brought assumpsit against Adam Oblender and Christian Scheafer. Issue. At the trial on December 3, 1889, it was shown that Adam Oblender was elected and qualified as the treasurer of the lodge for the term of one year, giving bond in fl,000 with Christian Scheafer as his surety.

<p>When a recognizance in the Court of Quarter Sessions, by which a defendant is bound to appear and “ not depart the said court without leave,” is forfeited and respited from term to term, the liability of the bail is fixed when the forfeiture is first adjudged, and it is not affected ".nv subsequent proceedings on the indictment against the principal; any relief after the forfeiture is a matter of grace and not of right.*</p>

<p>Where the Court of Quarter Sessions has jurisdiction and no error appears upon the face of the record, an order of said court refusing to remit the forfeiture of a recognizance for appearance therein, may not be reviewed on an appeal to the Supreme Court: Bross v. Commonwealth, 71 Fa. 262.*</p>

No. 229 January Term 1890, Sup. Ct.; court below, No. 46 August Term 1886, C. P. On June 1, 1886, Jacob Smeich brought assumpsit against Jacob D. Herbst, Jacob Herbst and Henry Strayer. Issue. At the trial on March 19, 1889, the plaintiff put in evidence and sought to recover upon a note without date, reading with certain indorsements upon it as follows: “ 12940.

No. 292 January Term 1890, Sup. Ct.; court below, No. 48 March Term 1888, C. P. On March 3, 1888, Robert H. McKee brought assumpsit against the Susquehanna Mutual Fire Insurance Company upon a policy of insurance against fire, issued to the plaintiff by. the defendant company. Subsequently the suit was marked to the use of John K. McKee. The defendant’s plea was non-, assumpsit.

<p>[To be reported.]</p>

No. 312 January Term 1890, Sup. Ct.; court below, No. 64 October Term 1889, C. P. On October 5,1889, the Union Building and Loan Association brought assumpsit against F. W. Hull, filing a statement of claim averring breaches of a joint and several bond under seal for $500, dated October 11, 1883, executed and delivered by Henry W. Wenger and the defendant, and conditioned to secure the plaintiff against loss by reason of prior mechanics’ liens upon certain premises mortgaged…

<p>APPEAL BY PLAINTIEE EROM THE COHRT OE COMMON PLEAS OE YORK COUNTY.</p> <p>No. 320 January Term 1890, Sup. Ct.; court below, No. 46 January Term 1889, C. P.</p> <p>On December 3, 1888, Mark Radcliffe, trustee for Frank G. Shaffer, Annie Dehuff, Clinton Seitz, William F. Olp and Roland Seitz, brought scire facias sur mortgage against Christina D. Herbst and Jacob S. Herbst, her husband. The mortgage sued on was dated October 19, 1886, was given by the defendants to the plaintiff, and was duly executed by the mortgagors. It recited and secured a bond of the same date, signed by the mortgagors and conditioned for the payment, with interest, two years after date, “ of the sums of money due said cestuis que trust, to wit: to Frank G. Shaffer, $1,108.91; to Annie Dehuff, $1,108.91; to Clinton Seitz, $148; to Wm. F. Olp, $600, and to Roland Seitz, $310, which said sums said Jacob S. Herbst holds for or is indebted to said cestuis que trust as guardian, executor or trustee.”</p> <p>On January 5, 1889, Christina D. Herbst filed an affidavit, setting forth a defence to the plaintiff’s demand as follows :</p> <p>“ That the alleged mortgage upon which this suit is brought was not executed by me, the undersigned, voluntarily and of my own free will and accord, without any coercion or compulsion of my husband, but in fact I was coerced and frightened into executing, signing and acknowledging it, in the presence of Mark Radcliffe, the alleged trustee for Frank G. Shaffer, Annie Dehuff, Clinton Seitz, William F. Olp and Roland Seitz. That I was told by the attorney of said Mark Radcliffe, in the presence of said Radcliffe, who came to my house at Glen Rock, which is about, by railroad, sixteen miles from York, that my husband paid the guardian by notes, and that it was criminal for him, my husband, to do so.</p> <p>“ That my husband, Jacob S. Herbst, informed me a short time before said alleged mortgage was executed, that is an hour or two before the same was signed, that said Radcliffe threatened to prosecute him and send him to jail or penitentiary, if he did not satisfy them or get me to give a mortgage on my property, that is, the same property described in said mortgage upon which this suit is brought. That I was frightened, and believed I was obliged to give the mortgage right off, immediately, and thus frightened I signed and acknowledged the mortgage. That no time was given to consult counsel or friend, or even reflect about the matter, but I was coerced and frightened into executing it. That I have been informed by counsel and believe that the counsel of plaintiff, Radcliffe, was in error when he stated to me that my husband paid the guardian by notes and that it was criminal for him to pay by notes.</p> <p>“ That no money was given by Radcliffe or any other person, to me or my husband, at the time said mortgage was signed or acknowledged. That I have been informed by counsel and believe and so allege, that the bond which is attempted to be secured by said mortgage is not in law a valid bond against me and is not binding upon me; and further, that I am informed and believe the said mortgage given to secure said illegal and invalid bond, at least so far as this affiant is concerned, is also illegal and invalid and cannot be enforced against me..... [Here followed specific averments of payments made, as alleged, by the husband of the affiant, which should have reduced the amounts secured for the cestuis que trust by the mortgage.]</p> <p>“That this affiant is informed by counsel and believes that said mortgage is not a legal and valid instrument against this affiant or her property for a debt existing as alleged against her said husband prior to the execution of said mortgage. That no legal or valid consideration passed to either myself or my said husband at the time of the execution of said mortgage, nor at any time, to me this affiant. That I am informed by counsel and believe, that I cannot give a bond or mortgage legally binding upon me for an old debt of my husband; that I cannot become the surety or security of my husband for an old debt; and that the bond and mortgage given in this case is in substance that, and nothing more nor less. That for and by reason of the facts stated in the foregoing affidavit of defence, I am not legally liable, nor is my property, for the alleged claims in said mortgage mentioned. And that said sum claimed in said scire facias is for a much larger and greater sum than is justly due or owing to said parties named in said mortgage. That the property described in said mortgage is my own property ; the deed therefor is given to me in my own name, and the same was paid for by me with my own money received by me from my father. That said Radcliffe, the trustee mentioned in said mortgage, was present when said threats were made, and when said alleged bond and mortgage were signed and said mortgage acknowledged.”</p> <p>The plaintiff having moved for judgment for want of a sufficient affidavit of defence, the court, Latimer, J., after argument, filed the following opinion:</p> <p>I cannot agree with the learned counsel for the defendant that this mortgage is void because the bond which it was given to secure was executed by the wife jointly with her husband. It is true that a bond executed by a married woman is void and cannot be enforced against her estate. But it is equally true that such a bond, though void as against the married woman is good as against her co-obligor, whether he be her husband or another: Shallcross v. Smith, 81 Pa. 132; Building Association v. Lance, 6 W. N. 218; Unangst v. Fitler, 84 Pa. 135. And a mortgage by a wife of her separate property to secure her husband’s debt is valid and binding; and it affects not the validity of such a mortgage that she joined with her husband in the bond, which though void as to her, remains his debt: Magaw v. Stevenson, 1 Gr. 402-404. But without being astute to construe this affidavit of defence in an unduly favorable light to the defendant, I think it contains enough, if true, which it must be assumed to be, to make out a complete legal defence to the plaintiff’s claim, and therefore the plaintiff’s motion for judgment must be refused.</p> <p>—Thereupon the plaintiff took this appeal, specifying that the court erred:</p> <p>1. In refusing the motion for judgment for want of a sufficient affidavit of defence.</p> <p>—After the appeal was taken, and the certiorari issued thereon from the Supreme Court had been filed in the court below, the latter court, on application of the plaintiff and against the objection of the defendant, sealed a bill of exceptions to its decision, nunc pro tunc, as of the date of the decree.</p> <p>1. By act of April 9, 1868, P. L. 780, affidavits of defence are required in actions of scire facias sur mortgage in York county, and motions for judgment for want of a sufficient affidavit of defence are authorized. The general act of April 18, 1874, P. L. 64, authorizes the review by this court of a refusal of such a motion. The affidavit filed by Mrs. Herbst is vague, prolix and conflicting in its statements. It consists of voluminous expressions of opinion and strong assertions of conclusions of law, but contains no statements of fact sufficient to found a valid legal defence upon. The circumstances by which she alleges that she was coerced, are not sufficient, separately or together, to constitute legal duress. She does not deny that the magistrate’s certificate of the acknowledgment contains the whole truth; nor does she assert that Radcliffe ever made the threats which her husband reported to her, or that he had any knowledge of her husband’s prior persuasions. But such a threat against a third person, even if made directly to the mortgagor, is not duress which will invalidate the instrument: Fulton v. Hood, 34 Pa. 365; Motz v. Mitchell, 91 Pa. 116.</p> <p>2. The dates of the payments alleged in the affidavit aré all from five to six years before the execution of the mortgage, and there is no statement of how much was originally owing, nor anything to indicate that these payments may not all have been made as alleged, and yet the amounts stated in the mortgage may have been due at its date. The reasonable conclusion, therefore, is that these payments were taken into consideration in fixing the amounts for which the mortgage was given, and the fact that they were made is far from conclusive that the whole of the mortgage debt is not justly due: Bruner v. Wallace, 4 W. N. 53; Willard v. Reed, 132 Pa. 5. Again; an affidavit which sets forth that the defendant is informed and .believes that certain things are true, is insufficient if it do not specify the sources of the information: Woolverton v. Smith, 4 W. N. 442; Black v. Halstead, 39 Pa. 64. A general assertion of payment amounts to nothing, unless sustained by particular averments : Audibert v. Young, 1 W. N. 276; Endlich on Aff. of Def., § 359; McCracken v. First R. P. Cong., Ill Pa. 106.</p> <p>3. An affidavit of defence must state the actual facts necessary to constitute the defence, without leaving anything to inference : Blackburn v. Ormsby, 41 Pa. 97; Peck v. Jones, 70 Pa. 83; Moore v. Somerset, 6 W. & S. 262. Where, as in this case, every allegation of fact may be true, and yet the defendant may justly owe the amount sued for, the plaintiff is entitled to judgment: Black v. Halstead, 39 Pa. 64. The allegations respecting the validity of the bond and mortgage given for a debt of the husband, are shadows which were thoroughly disposed of by the opinion of the court below and the cases- therein cited. It makes no difference that the debt to be secured by mortgage is an old debt due from- the husband: Lytle’s App., 36 Pa. 131. The law providing for affidavits of defence is remedial, and intended to prevent vexatious and useless delay and expense, in cases where the defendant has no meritorious or available defence. It should be liberally construed, and when' the affidavit does not allege facts which, if proved as stated, would be a full and complete defence, the plaintiff is entitled to judgment: Vulcanite Paving Co. v. Phila. Traction Co., 115 Pa. 280; Erie City v. Butler, 120 Pa. 374. -</p> <p>1. Fulton v. Hood, 34 Pa. 365, and Motz v. Mitchell, 91 Pa. 116, cited for the plaintiff, did not relate to the validity of a married woman’s acknowledgment alleged to have been procured by coercion. They involved different principles from those applicable in this case. To make the deed or mortgage of a married woman valid, it must be shown by legal evidence that it was executed without any fraud, imposition or coercion, with a full knowledge of its contents and with a will that was perfectly free and not subjected to compulsion, moral or physical. A magistrate’s certificate of the wife’s acknowledgment is not conclusive, but may be contradicted by parol testimony; and, if the mortgagee has a knowledge of facts calculated to put him upon inquiry as to the manner in which the acknowledgment was obtained, he must abide the consequences: Louden v. Blythe, 16 Pa. 532; s. c. 27 Pa. 22; Williams v. Baker, 71 Pa. 476; Heeter v. Glasgow, 79 Pa. 79; Singer Mfg. Co. v. Rook, 84 Pa. 442; Darlington’s App., 86 Pa. 512. Mrs. Herbst’s affidavit alleges coercive threats made in the mortgagee’s presence.</p> <p>2. The allegations of payment are made with sufficient particularity. A comparison of the amount claimed for Frank Shaffer with that claimed for his sister Annie Dehuff, will show that no allowance was made for payments prior to the mortgage, for the amounts claimed for them are precisely the same, whereas the payments made for their use were in different amounts. The affidavit also alleges claims for compensation. It is sufficient if the affidavit sets forth, in words or by necessary inference, facts showing a substantial prima facie defence, which can probably be established: Selden v. Neemes, 43 Pa. 421; Black v. Halstead, 39 Pa. 64; Thompson v. Clark, 56 Pa. 33; without meeting every argument or objection which fine critical skill may adduce: Leibersperger v. Savings Bank, 30 Pa. 531. Moreover a refusal to grant judgment for want of a sufficient affidavit of defence, will not be reviewed under the act of April 18,1874, P. L. 64, except in cases where there is plain error of law: Griffith v. Sitgreaves, 8T* Pa. 378.</p> <p>The exception to the decision of the court below, which the act of 1874 requires to be taken, was taken too late in this case. Nothing that took place in that court, after the filing of the certiorari therein, can be considered here.</p>

No. 387 January Term 1890, Sup. Ct.; court below, No. 46 August Term 1889, C. P. On Juno 3, 1889, a case stated was filed wherein Harry B. King was plaintiff and John J. Frick was defendant, to determine whether the plaintiff under the will of his father, E. A. King, deceased, dated February 7,1877, and duly admitted to probate on May 14, 1877, had a marketable title to certain lands devised to him in said will, which lands be had covenanted to convey to the defendant.

<p>APPEAL BY L. S. MURE EROM THE COURT OE COMMON PLEAS OE LANCASTER COUNTY.</p> <p>No. 402 January Term 1890, Sup. Ct.; court below, Trust Book, No. 12, p. 8.</p> <p>On December 4, 1888, Lewis S. Muir, as assignee for the benefit of creditors of Joseph Kreider and wife, settled an account, which on January 21, 1889, was confirmed nisi.</p> <p>In this account, the accountant charged himself with the Xtroceeds of a farm sold by him under the deed of assignment, with $125 rent received, and with $4 received upon the sale of some rails. Among the credits claimed in the account was one for the payment of $800 to the assignor, Joseph Kreider, in pursuance of a provision in the deed of assignment excepting and reserving “ so much property as would be exempt from levy and sale on execution,” and of a return of apxmaisers finding that the assigned real estate could not be divided, etc., and awarding to the assignor $300 “ out of the proceeds of the sale of the same,” which appraisement was filed in the court below on May 8, 1888. David B. Buch, a lien creditor of the assignor, excepted to the credit so claimed, whereupon the court appointed Mr. W. F. Beyer, auditor, to pass upon this and other exceptions, and to report distribution.</p> <p>The report of the auditor, so far as it related to the matters involved in this controversy was as follows:</p> <p>At the time of the assignment, the assignor owned a small farm of about twelve acres, situated in Warwick township, on which he resided and which he was then engaged in farming. The moneys in the hands of the assignee consist of the proceeds of the sale of this real estate; $125 rent accrued since the assignment, and $4 for rails sold.....</p> <p>Appraisers were regularly appointed and exemption regularly claimed by the assignor. They found no personal property, and awarded the assignor $300 out of the real estate when sold. It is now claimed, on behalf of exceptant, that the assignor was guilty of fraudulent misrepresentations and concealment of his personal property, and has, by denying that he was the owner of the same, forfeited his right to the benefits of the act of assembly.</p> <p>This is a serious charge. The evidence shows that the assignor had for some years been engaged in farming, and that up to about a month prior to the assignment, there was on the farm certain stock and farming implements, of which, to outward appearance, he was the owner. About this time he got into financial difficulties, and, it is claimed, secreted his personal property with intent to defraud Emanuel Kauffman, whom he owed, and J. D. Witters, who on March 31, 1888, issued execution against him. Even if this were true, it would be no evidence of an attempt to defraud the assignee, but as the Witters execution was settled without a sale, the circumstances are evidence to show acts of ownership exercised over these goods by the assignor three weeks before the assignment.</p> <p>It was difficult to obtain answers from the assignor as to some questions, and the one: “ Did you not tell the appraisers . ... . that this property was not yours but your wife’s ? ” he positively refused to answer. Appraisers Pfautz and Badorf, and assignee Murr, all testify that he told them, at the time the appraisement was made, that his'wife owned all the personalty, and that they consequently appraised none of it. David R. Buch testifies that, the day after the assignment, he had a conversation with Mrs. Kreider in her house, and she told him she had nothing. This Mrs. Kreider denies.</p> <p>On August 28,1888, David R. Buch issued a fieri facias and the sheriff levied on the personal property on the assigned premises as the property of Joseph Kreider, defendant in the judgment entered to January Term 1885, No. 522. This was the same personal property that was there at the time of the assignment. Mrs. Kreider then made affidavit that she was the owner of certain articles and served the same upon the sheriff. This notice was respected by the plaintiff, and none of the articles named in it were sold. The sheriff sold the balance of his levy on September 5, 1888, and realized $214.</p> <p>Two questions arise: 1. Was Joseph Kreider the owner of the personal property on this farm at the time of the assignment? 2. Was his conduct such as to forfeit his right to the $300 exemption?</p> <p>As to the first question, there is a conflict of testimony. The auditor is of opinion, and so finds that Joseph Kreider was the owner of the greater part of said personal property at the time of the assignment.</p> <p>As to the second question, it is claimed that the return of the appraisers awarding the assignor $300 from the real estate, is conclusive of his right to receive the same, as no exceptions were filed. This would be true of the confirmation of a widow’s appraisement in the Orphans’ Court: Runyan’s App., 27 Pa. 121. Appraisements of the exemption in assigned estates rest on a different footing. They are simply filed and never confirmed at all. Indeed, it has been decided that the proper place to contest the same, is on distribution before the auditor: Imhoff’s App., 119 Pa. 354. In Strouso v. Becker, 38 Pa. 190, it was decided that if the debtor “equivocates and dissembles, denies the ownership of that which he cannot hide, and embarrasses the officer of the law in the execution of his legal duties, he forfeits, not only his self-respect, but his hold on the exemption provided for honest debtors.” On the same point we may cite, Dieffenderfer v. Fisher, 3 Gr. 31; Huey’s App., 29 Pa. 219; Gilleland v. Rhoads, 34 Pa. 187, and Imhoff’s App., 119 Pa. 350.</p> <p>If the finding of facts by the auditor is correct, that Joseph Kreider was the owner of considerable personal property at the time of his assignment, then, aside from all that previously occurred, he did hinder and embarrass the assignee and subject him to danger of loss and surcharge, by denying the ownership of all the personal property at the time of the appraisement. After the assignment, and before the Buch execution, he sold some of this property and received the proceeds. That his wife was the owner is very doubtful.</p> <p>Under all the circumstances of the case, the auditor is of the opinion that the assignor, Joseph Kreider, has forfeited his right to the $300 exemption, and therefore sustains the third exception, and surcharges the assignee with $300.</p> <p>To the foregoing report, the accountant filed exceptions alleging that the auditor erred, in surcharging the accountant with the $300 paid to Joseph Kreider,8 and in finding that Kreider had forfeited his right to his exemption.® After argument, the court dismissed the exceptions and confirmed the auditor’s report, in the following opinion:</p> <p>On a particular consideration of the exceptions above stated, taken to the findings and rulings of the learned auditor, we must confess that we were impressed with the conviction that they were subversive of the attribute of equity towards the assignor, and that they could not stand the inquisition of the adjudications of our Supreme Court, in cases homogeneous with the present one. However, we consulted closely the authorities cited on the argument, and it is proper to say in answer or explanation of the conviction expressed, that the evidence offered and taken by the auditor, and the judicial rulings of our Supreme Court in similar cases, dispelled those convictions, and that the facts so taken and all substantially included in the findings of the learned auditor are not clearly wrong, and therefore this court cannot reverse them or set them aside. “ In the eye of the law, fraud spoils everything it touches,” say Coulter, J., in Mitchell v. Kintzer, 5 Pa. 216; and the finding of the auditor, here, was that the assignor, Joseph Kreider, was guilty of fraudulent representations and concealment of his personal property, and, by denying that he was the owner of the same, forfeited his right to the benefits of the act of assembly exempting $800 of property of an insolvent from execution and sale.....</p> <p>The foregoing disposes of all the exceptions, and we must now decree the confirmation of the auditor’s report absolutely.</p> <p>—Thereupon the accountant took this appeal, assigning for error:</p> <p>2, 5. The dismissal of the accountant’s exceptions.0 5</p> <p>1. Kreider had an undoubted right to reserve in the deed of assignment property to the extent of $300: Mulford v. Shirk, 26 Pa. 473; Bausman’s App., 90 Pa. 178. The appraisers of the assigned estate were the proper persons to set it apart for him: Peterman’s App., 76 Pa. 116; and the appraisement in this instance was made at the proper time: Shaeffer’s App., 101 Pa. 45. The appraisement, awarding Kreider $300 out of the proceeds of the real estate, having been regularly and properly made and filed, and not excepted to, and no notice whatever having been given to the assignee not to pay the money over in accordance with it, the exceptant cannot now complain of the payment. The law will protect an innocent assignee for tlie benefit of creditors, in making bona fide disbursements, as against a party who has slept upon his rights or is guilty of laches.</p> <p>2. When an assignor is dilatory in claiming the exemption, and thus leads the assignee to believe that it will not be claimed and to make disbursements in that belief, the assignee will be protected against such a claim made upon final distribution: Chilcoat’s App., 101 Pa. 22. Will not similar protection be accorded against the laches of a creditor, who. seeing the assignor claim the exemption, makes no objection and raises no question in regard to it, until after the assignee, being led to believe that it is acquiesced in, has paid it ? The appraisement filed may not seat the claim on the real estate, and may not be conclusive as between debtor and creditor, but it is at least legal notice to all parties requiring them to make known their objections. In all the cases in which assignees have been surcharged with improper payments on account of exemption, they have had notice, in some way, of the invalidity of the claim.</p> <p>3. Imhoff’s App., 119 Pa. 354, upon which the appellee relies, was a case of an appraisement under an execution, and the contest was directly between debtor and creditor. The object of the exemption laws is to afford some immediate relief to the insolvent debtor; and, as the law exacts diligence in making the claim it will also exact diligence on the part of a creditor who contests it. It was the exceptant’s duty to move to set aside the appraisement: Williamson v. Krumbhaar, 132 Pa. 455. That case rules the question raised here. All the statutes giving exemption, being in pari materia, should be construed in reference to one another: Shaeffer’s App., 101 Pa. 45.</p> <p>—Counsel also argued that the testimony did not show the assignor to be guilty of such fraud as would forfeit his right to exemption, citing: Rogers v. Fales, 5 Pa. 154; Hildebrand v. Bowman, 100 Pa. 581; Imhoff’s App. 119 Pa. 350.</p> <p>It would require a strong case of palpable error to justify this court in disturbing the auditor’s finding that the assignor was guilty of the fraud charged against him: Harman’s App., 124 Pa. 624; Scheppers’ App., 125 Pa. 598; Irwin’s Est., 133 Pa. 1. That fraud is an established fact in the ease. By attempting it, Kreider forfeited his right to exemption: Strouse v. Becker, 38 Pa. 190; Imhoffs App., 119 Pa. 350; Gill eland v. Rhoads, 34 Pa. 190; Huey’s App., 29 Pa. 219. The fallacy of the position that, notwithstanding this fraud, the action of the appraisers entitled Kreider to it, and was an absolute and conclusive adjudication of his right, is shown by Mr. Justice Steeeett in Imhoff’s App., 119 Pa. 350. And the attempt to distinguish that case on the ground that the contest there was between the plaintiff and defendant in an execution, presents a distinction without a difference. An assignee, by voluntary payments, cannot disturb the equities and relative rights of creditors: Trickett on Assignments, §§ 162,163,177; Keim’s App., 27 Pa. 42. He makes a voluntary distribution, without consent of the creditors, at his peril.</p>

<p>1. A trust to invest money, eolleet the interest and pay it over to a cestui que trust (luring lile, and at his death to pay the principal to another, is an active trust and vests the legal title to the fund in the trasteo, during the life of the cestui que trust.</p> <p>2. It is not essential, to make such a trust active, that the investment of the principal be authorized in express terms; there being a direction to the trustee to pay over the interest, the duty to invest arises by necessary implication from such direction.</p> <p>(a) A testator directed that a certain part of his estate, less the debts due to him from his son Moses, should be held for Moses by a trustee, who should pay to Moses the yearly income thereof, after deducting taxes and necessary expenses, the principal to be paid to the heirs of Moses at his death.</p> <p>3. It being manifest that the testator intended to sever the product from the fund producing it, and that he used the word heirs in Uie sense of children, and the trust created by him being an active one, the rule in Shelley’s Case had no application.</p> <p>4. The intent of the testator, ascertained from the will in the light of proof that Moses became insolvent a few months before the writing of the will, was to create a spendthrift trust, and this intent is not to be set aside because not clearly expressed by the scrivener, at least as between the trustee and the cestui que trust.</p> <p>5. It is true, that the intent of the testator must be ascertained from the face of his will; but the meaning of the will must be interpreted in the light of all the circumstances by which the testator was surrounded, when he made it, and by which he was probably influenced.</p> <p>6. The trustee in a spendthrift trust, created for the protection of a life tenant of personalty, to whose heirs the principal was bequeathed in remainder, will not be protected by releases from the life-tenant and all his children, in paying over the principal without an order of court, but will be surcharged with such payments.</p>

<p>APPEAL BY PLAINTIEE FROM THE COURT OE COMMON PLEAS OE LANCASTER COUNTY.</p> <p>No. 51 July Term 1890, Sup. Ct.; court below, Eq. D. No. 2, p. 335.</p> <p>On November 14, 1888, Wm. H. Roland, assignee for the benefit of creditors of Peter Boffenmyer, by deed of assignment of August 3, 1888, filed'a bill in equity averring in substance as follows:</p> <p>That on July 9, 1888, D. M. Boffenmyer gave to the defendant bank a promissory note for $1,000, payable at ninety days, and at the same time deposited with said bank, as collateral security, ten shares of the stock of the Quarryville National Bank, with power, in the said note given, to sell the said stock “at the brokers’ board, or at public or private sale, without demanding payment of this note or the debt due thereon, and without further notice, and apply proceeds or as much thereof as may be necessary to the payment of this note, and all necessary expenses and charges, holding myself responsible for any deficiency; ” that on August 3, 1888, said D. M. Boffenmyer by writing under seal assigned his right, title, and interest in and to the said shares of stock to Peter Boffenmyer, and constituted him, his assigns and substitutes, his attorney and attorneys, with power to receive the same, etc., etc., and the said shares of stock, by virtue of the deed of voluntary assignment to the plaintiff passed to the plaintiff as the assignee of the said Peter Boffenmyer, of all which the defendant had notice; that at the time of the maturity of said note, to wit, on October 8, 1888, the plaintiff made a tender to the defendant, in lawful money of the United States, of the amount of said note, and at the same time demanded a return of the said shares of stock held as aforesaid as collateral security; praying: 1. That the defendant be decreed to surrender and transfer to the plaintiff the said ten shares of stock, or, in lieu thereof, the like number of other shares of the stock of said Quarryville National Bank, on the payment by the plaintiff of the amount due on the said note. 2. For further relief.</p> <p>An answer having been filed, the defendant submitting that the plaintiff was not entitled to relief in equity, issue was joined and the cause referred to Mr. W. F. Beyer, as examiner and master.</p> <p>Subsequently, the master filed a report finding certain facts, inter alia, that the stock of the Quarryville National Bank had a market value; that on August 9, 1888, that value was $124.50 per share, and that on that date said stock had been sold by the defendant and the proceeds of sale, over and above the amount required to pay the said note of $1,000, to wit, $265, was applied in part payment of a note for $315 owned by defendant, upon which said D. M. Boffenmyer was an indorser, due and protested on August 6, 1888; and, as a conclusion of law, citing Pittsb. Drove-yard Co.’s App., 123 Pa. 250; Conyngham’s App., 57 Pa. 474; Sunbury etc. R. Co. v. Cooper, 33 Pa. 278; Foil’s App., 91 Pa. 434; Phila. etc. R. Co. v. Stichter, 11 W. N. 325; Lewis on Stock and Bonds, 144-157, the master ruled that, the stock having a known market value and the transaction single, no ground for jurisdiction in equity existed, and recommended that the bill be dismissed.</p> <p>Various exceptions were filed by the plaintiff to the report, as to the findings of fact and law. These exceptions being overruled by the master, were filed to his report in court, and after argument thereof were dismissed, without opinion filed, the master’s report confirmed and a decree dismissing the bill signed, as recommended by the master. Thereupon, the plaintiff took this appeal, assigning the dismissal of his exceptions and the final decree for error.</p> <p>Counsel cited: Conyngham’s App., 57 Pa. 474 ; Story’s Eq. „J., § 1032; 3 Pomeroy’s Eq. J., § 131; Story on Bailments, § 346; Hart v. Ten Eyck, 2 Johns. Ch. 100 ; Brown v. Runnals, 14 Wis. 693; Merrill v. Houghton, 50 N. H. 61; White Mountain R. Co. v. Iron Co., 51 N. H. 57 ; Hasbrouck v. Vandervoort, 4 Sandf. 74; Brush Elec. Co.’s App., 114 Pa. 574; Hall’s App., 112 Pa. 42; Adams’s App., 113 Pa. 449.</p> <p>Counsel cited: 3 Pars, on Cont., 364; Foil’s App., 91 Pa. 434; Conyngham’s App., 57 Pa. 474; Phila. etc. R. Co. v. Stichter, 11 W. N. 325; Goodwin Co.’s App., 117 Pa. 514; Pittsb. Drove-yard Co.’s App., 123 Pa. 250.</p>

No. 54 July Term 1890, Sup. Ct.; court below, No. 99 August Term 1887, C. P. On August 12, 1887, the defendants entered an appeal from the judgment of a justice of the peace, in an action brought by Daniel A. Mayer against Charles J. Rhoads and J. II. Herr, trading as C. J. Rhoads & Co., to recover commissions on a sale of tobacco for the defendants. Issue.

Nos. 60, 61 July Term 1890, Sup. Ct.; court below, No. 51 August Term 1889, E. D. C. P. On June 22, 1889, tbe sheriff of Lancaster county sold a certain house and lot in Lancaster city, as the… Held: to support mechanics’ liens, under the act of 1836, in Lightfoot v. Krug, 35 Pa. 348; Pretz’s App., 35 Pa. 349; Harman v. Cummings, 43 Pa. 322, and numerous other cases.

<p>[To be reported.]</p>

<p>(a) Henry Whitby conveyed real estate to one Carpenter, his heirs and assigns, for the expressed consideration of one dollar; and, by an instrument indorsed upon thatdeed, dated the same day, witnessed by the same person, and expressing the same consideration, Carpenter conveyed the land to Wliitby’s wife.</p> <p>(b) The habendum in the latter conveyance was to the wife, her heirs and assigns, for the use of said wife, her heirs and assigns, “during her continuing the widow of Henry Whitby, in case she survive him, and at her decease, to him, the said Henry Whitby, his heirs and assigns forever, in fee.”</p> <p>(o) Less than a year after that transaction Henry Whitby died, leaving an only son, a little over a year old. His widow afterward married again and died, leaving a will devising and bequeathing her entire estate to her second husband. At the time of her death, said son was nineteen years of age:</p> <p>1. The two deeds were properly construed together as constituting a single transaction, the object of which was a settlement by the husband upon his wife; and, regarded in the light of the situation of the parties, their effect was to give the property to the wife during widowhood, and, upon her marriage, to the son in fee.</p> <p>2. The habendum in the deed to the wife was not void, either as repugnant to the premises, which purported to grant the property to the wife, her heirs and assigns, or upon the ground that it attempted to create a freehold commencing in the future; wherefore, the second husband took no title to the land, under the wife’s will.</p>

<p>[To be reported.]</p>