Volume 14 — Pennsylvania Superior Court Reports

Appeal, No. 12, Jan. T., 1900, by plaintiff in a suit of City of Scranton against Henry T. Koehler, from judgment of C. P. Lackawanna Co., in favor of defendant on case stated. Opinion by W. W. Porter, J. W. D. Porter, J., dissents. Case stated. The facts appear from the case stated as follows: 1. The city of Scranton is a city of the third class and governed by that legislation applicable thereto since April 4,1877. 2.

Appeal, No. 139, April T., 1900, by defendant, in a suit of G. W. Ferrell against B. D. Reed, from judgment of C. P. No. 2, Allegheny Co., April T., 1895, No. 1099, on verdict for plaintiff. Opinion by W. D. Porter, J. Assumpsit.

Appeal, No. 135, April T., 1900, by defendant, in a suit of John Sattler against Frederick Opperman, from judgment of C. P. No. 3, Allegheny Co., May T., 1899, No. 94, on verdict for plaintiff. Opinion by W. D. Porter, J. Trespass. The facts sufficiently appear in the opinion of the court. Defendant submitted among others the following points: [1.

<p>Appeal, No. 191, Oct. T., 1899, by plaintiffs, in a suit of Thomas O’Brian, Sarah O’Brian and Martha Harman, administrators of John O’Brian, deceased, against Clayton Wiggins, from judgment of C. P. Lancaster Co., Aug. T., 1898, No. 6, on verdict for defendant.</p> <p>Opinion by W. D. Pobteb, J.</p> <p>Assumpsit.</p> <p>It appears from the record that this suit was brought to recover the purchase money from defendant, namely $1,200, with interest, under an agreement of private sale of decedent’s real estate subsequently approved and confirmed by the orphan’s court.</p> <p>The following offer of evidence on the part of the plaintiffs was overruled by the trial judge:</p> <p>We offer in evidence the petition of the administrators and the order of the court obtained thereon, and return thereto, for the sale of this property for payment of debts. The order was obtained on August 19, 1897.</p> <p>Objected to by defendant.</p> <p>The Court :</p> <p>That order was ended without any effect and we will disallow the offer and give you an exception. Plaintiff excepts. [10]</p> <p>The court admitted over objection of plaintiffs the following question and answer in direct examination of David McMullen, a witness called by defendant:</p> <p>“ Q. And had Mr. Wiggins or not drawn his judgment bond in favor of George PI. Smith for a certain sum of money?” Objected to by plaintiff. Admitted. Plaintiff excepts. “A. I am unable to say whether he had his judgment bond drawn, but it was arranged he was to give Mr. Wiggins the money at any rate, and was to accept a judgment bond from him for the amount due him from the O’Brien estate.”] [11]</p> <p>At the trial plaintiffs submitted the following points:</p> <p>[1. Under the evidence submitted the verdict of the jury should be in favor of the plaintiffs for the full amount of their claim, to wit: $1,200, with interest from the time the deed was tendered to defendant. Answer: ’Phis point we refuse.] [2]</p> <p>[2. The sale having been made under the Act of May 9, 1889, P. L. 182, by order of the orphans’ court, it was a judicial sale and divested all liens of judgments against the property. Answer: This we answer it could not do under the agreement made privately by one administrator.] [3]</p> <p>[3. The property having been purchased by Clayton Wiggins, and he having no liens against it, he could only pay to the administrators the entire purchase money; the plaintiffs at the time of the order of court confirming the sale, having given and filed with the court their bond with approved security for the faithful application of the proceeds of sale. Answer: This is refused under the agreement made with the defendant before any approval of the court, without which no deed could be made.] [4]</p> <p>[4. There was no tender made in this case by defendant, such as is recognized by the law. Answer: Our answer to that is, there was no objection made except a?to the amount tendered at the time of the tender.] [5]</p> <p>Defendant submitted the following points:</p> <p>[1. The judgments against John O’Brian in favor of George H. Smith, as testified to, being liens of record, at the time the deed was tendered, against the property purchased by Clayton Wiggins from the plaintiffs, it was “ clear of all incumbrances,” and the defendant was not obliged to accept the same under his agreement of purchase, and the verdict of the jury must be in favor of the defendant.</p> <p>These being the only judgments and an arrangement having been made by Wiggins to have them released and make this property clear of all incumbrances, as stated in agreement, and pay balance cash, and the party being present to release the judgments being all the incumbrances. Answer: In this case we say the defendant would not have been obliged to accept his deed, the deed tendered to him on that day without the release of the premises from the liens that were against it at the time it was sold privately to him; and that being offered to' be done at that time, the verdict should be in favor of the defendant.] [6]</p> <p>[2. If the jury believe that there were judgments in fayor of George H. Smith, as has been testified to, and as the records show, and against John O’Brian, which judgments were liens against the real estate in question, and that, when the defendant and his counsel met the plaintiffs with their counsel, tender was made by the defendant to the plaintiffs of the difference between George H. Smith’s liens and the purchase money, $1,200, there can be no recovery for the plaintiffs in this case, and the verdict of the jury must be in favor of the defendant. Answer: That is affirmed under the agreement made between Thomas O’Brian and Wiggins.] [7]</p> <p>The court charged the jury in part as follows :</p> <p>[Now it will not do to say there might have been some other claim against this property — there was no other lien, and none but a lien creditor could prevent a sale of that kind; no other debt, no matter what it might have been, there being no mortgages, would have been a lien on this property; and it was necessary to remove this lien before Mr. Wiggins would be able to accept the deed, because of the irregularity in the first place, and the agreement being made by one of the parties, and the fact that no sale could be made until permission was given by the orphans’ court. That would require, before he was obliged to accept or pay the purchase money, that these liens should be removed.] [8] ....</p> <p>[After that, some time, it was sold by Thomas O’Brian, one of the administrators of John O’Brian, to Clayton Wiggins, at and for the sum of $1,200, upon these terms and articles of agreement, indented, made and agreed upon March 19, 1898, between Thomas O’Brian, administrator of John O’Brian, deceased, of Providence township, of the one part, and Clayton Wiggins, of the same place, of the other part, as follows, to wit: (Court reads to the jury the article of agreement, marked “ J. B. L.”) This was a private sale made by one of the administrators, which he had no authority to do, and could not make so as to convey this title free and clear of all incumbrances on the first of April. The other heirs, however, have joined in that sale by signing the petition, and agreeing it should be sold, and applying to the court for the conveyance of this property.] [9]</p> <p>The court directed a verdict for defendant. Plaintiffs appealed.</p> <p>Errors assigned were (1) in giving binding instructions to defendant. (2-5) Answers to plaintiffs’ points, reciting same. (6, 7) Answers to defendant’s points, reciting same. (8, 9) To portions of the judge’s charge, reciting same. (10,11) To rulings on evidence, reciting same.</p>

Appeal, No. 49, April T., 1900, by the Peoples Light and Heat Company, in a suit of William W. Smith against Y. Q. Hickman and The Peoples Light and Heat Company, from decree of C. P. Washington Co. In equity, No. 1039, granting an injunction. Opinion by W. D. Porter, J. Bill for injunction. The facts sufficiently appear in the opinion of the court below: FINDINGS OF FACT.

Appeal, No. 142, April T., 1900, by defendant, in a suit of I. T. Faulder against Mary Emanuel, from judgment of C. P. No. 1, Allegheny Ció., Dec. T., 1897, No. 904, on verdict for plaintiff. Opinion by W. D. Porter, J. Assumpsit. The facts sufficiently appear in the opinion of the court. Defendant submitted the following point: Under all the evidence in this case the verdict of the jury should be for the defendant. Answer: Refused and bill sealed for defendant.

Appeal, No. 81, April T., 1900, by defendant, in a suit of Anthony Hiyer et al., for use of Katharine S. Venter, against Samuel Rill, in the hands of John H. Hayward, administrator of the estate of Samuel Rill, deceased, from judgment of C. P. No. S, Allegheny Co., May T., 1899, No. 69, on verdict for plaintiff. Opinion by Beaver, J. Soi. fa. sur mortgage.

Appeal, No. 228, April T., 1900, by plaintiff, in suit of Alice Howard against Louis A. Drexler, administrator of estate of Mary Drexler, deceased, from order of C. P. No. 3, Allegheny Co., Aug. T.', 1899, No. 526, discharging rule to show cause why a compulsory nonsuit should not be taken off. Opinion by Beaver, J. Rule to take off nonsuit.

Appeal, No. 105, April T., 1900, by defendant, in suit of D. M. Albright against A. H. Mercer, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1899, No. 400, on verdict for plaintiff. Opinion by Beaver, J. Orlady, J., dissents. Assumpsit.

Appeal, No. 233, April T., 1900, by-defendant, in suit of Kiskiminetas township by the supervisors of roads, against the Conemaugh Gas Company, from decree of C. P. Armstrong Co., June T., 1899, No. 205, directing defendant to bury certain gas pipe. Opinion by Beater, J. Petition of road supervisors to cause defendant to cover or bury its gas pipes within a specified time.

<p>Appeal, No. 79, April T., 1900, by department of public charities of Allegheny county in suit of Butler county against department of public charities from order and decree of Q. S., Butler Co., Dec. T., 1898, No. 10, certifying the city of Allegheny in Allegheny-county as the last legal residence of Nathaniel Sefton at the time of his commitment to the hospital for the insane at Warren, Pa.</p> <p>Opinion by Beaver, J.</p> <p>Rule granted on department of public charities of Allegheny county to show cause why the city of Allegheny, Pennsylvania, should not be certified as the place of last legal settlement of Nathaniel Sefton, a lunatic, etc.</p> <p>The court below held that it had jurisdiction to adjudicate any question of the settlement or residence of Nathaniel Sefton against the poor district of Allegheny city and entered a decree certifying that the city of Allegheny in Allegheny county, Pa., is the last legal place of settlement of Nathaniel Sefton and was so at the time of his commitment to the hospital for the insane at Warren, Pa., and that the city of Allegheny pay the costs of the rule. Defendant appealed.</p> <p>Errors assigned among others were (13) in holding and deciding that the court of quarter sessions of Butler county had jurisdiction in this case to adjudicate any question of the settlement or residence of Nathaniel Sefton against the corporate poor district of Allegheny city, without notice to or service upon the proper corporate officers of the said city. (14) In entering a decree certifying that the city of Allegheny is the last legal place of residence of Nathaniel Sefton, and was so at the time of his commitment to the hospital, and that the costs of this rule be paid by the city of Allegheny, Pa.</p>

Appeal, No. 110, April T., 1900, by plaintiff, in suit of Morris Goldfon against the County of Allegheny, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1899, No. 399, in favor of defendant non obstante veredicto. Opinion by Beaver, J. Assumpsit to recover expenses incurred in the extradition of Louis Levy from Canada.

Appeal, No. 208, April T., 1900, by plaintiff, in suit of William Wallace, trustee of Thomas H. Rose, a bankrupt, against S. R. Camp et al., from judgment of C. P. Crawford Co., Sept. T., 1899, No. 184, on verdict for defendants. Opinion by Beaver, J. Trespass. It appears from the record and evidence that execution was issued on attachment proceedings prior to a decree in bankruptcy, but the constable’s sale was made after the decree was entered.

<p>Appeals — Auditor's findings of fact — Weight of evidence — Decedent's estate — Accounting of executor — Surcharge.</p>

<p>Appeal, No. 114, April T., 1900, by defendant, in suit of I. R. Gress against the Braddock & Homestead Street Railway Company, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1898, No. 77, on verdict for plaintiff.</p> <p>Opinion by Beaver, J.</p> <p>Trespass.</p> <p>It appears from the record and evidence that this and the following case which were argued together, were brought for I. R. Gress and O. N. Gress to recover damages for injuries alleged to have been sustained by negligence of the defendant railway company by a collision of a car with a buggy in which plaintiffs were driving.</p> <p>At the point where the accident occurred, the defendant’s double track street railway occupies a township road along the hillside. The two tracks occupy practically the entire width of the road. The plaintiffs were familiar with the road and its condition, having driven over it frequently.</p> <p>The night on which the accident happened was a very dark night, and at the place where the accident occurred there were no lights. The plaintiffs were driving on the east bound track and drove directly into the front of the moving electric car. The headlight was burning and the car was lighted by electricity so that passengers in the car could see to read by it.</p> <p>The court below submitted the case to the jury solely on the question of negligence in the speed of the car.</p> <p>Verdict and judgment for I. R. Gress for $300. Defendant appealed.</p> <p>Error assigned was in answer to defendant’s first point in each case which was as follows : “ That under the pleadings and evidence in the case the verdict should be for the defendant. Answer: Refused.”</p>

Appeal, No. 172, April T., 1900, by plaintiff, in suit of John Martz against the Consolidated Traction Company, from judgment of C. P. No. 2, Allegheny Co., July T., 1898, No. 120, on verdict for plaintiff. Opinion by Beaver, J. Trespass. It appears from the record that the above and following cases rested upon the same facts and were tried together in the court below. John Martz, appellant first named, was the coachman of George L. Peabody, the other appellant.

Appeal, No. 179, April T., 1900, by Nellie O. Glasser, one of the defendants in suit of Rachel Friday and R. R. Liebendorfer, administrators of the estate of John B. Friday, deceased, against Martin Glasser and Nellie O. Glasser, from order and decree of O. P. Lawrence Co., Sept T., 1899, No. 11, Execution Docket, sustaining exceptions to widow’s exemption. Opinion by Beaver, J. Exceptions to widow’s exemption.

<p>Appeal, No. 173, April T., 1900, by plaintiff, in suit of George L. Peabody against the Consolidated Traction Company, from judgment of C. P. No. 2, Allegheny Co., July T., 1898, No. 121, on verdict for plaintiff.</p> <p>Opinion by Beaver, J.</p>

Appeal, No. 116, April T., 1900, by plaintiff, in suit of Samuel W. Black & Company against A. J. Barr, from judgment of C. P. No. 8, Allegheny Co., May T., 1898, No. 244, on nonsuit. Opinion by Beaver, J. Rice, P. J., and W. D. Porter, J., dissent. Assumpsit to recover commissions as a real estate broker.

<p>Appeal, No. 75, April T., 1900, by defendant, in suit of Louisa Curty against Joseph Monnin, from judgment of C. P. Crawford Co., Sept T., 1898, No. 134, on verdict for plaintiff.</p> <p>Opinion by Beaver, J.</p> <p>Trespass.</p> <p>. It appears from the evidence that on September 26, 1896, Francis Monnin died testate and his will was probated October 12, 1896. The controversy in this case arises out of the following portion of Francis Monnin’s will:</p> <p>“ Item 3d. I give and bequeath to Louisa Curty about thirty acres off from the west side of my farm, commencing on the northwest corner by the land of Polly heirs and public road; tbence east to a maple; thence south by Joseph Monnin’s land and along south line of Brawley’s land and also to said Louisa Curty, five acres joining the twenty-five above described by the south and of the value of eighteen hundred dollars.</p> <p>“Item 4th. I give and bequeath to Joseph Monnin forty-six (46) acres off the east side of the old farm with a barn on the line between said Joseph and Louisa Curty to be his.”</p> <p>Francis Monnin occupied and used in his lifetime a farm consisting of three adjoining parallel strips of land together with a block of five acres lying south of one of these strips. The strip first owned by him was the one on the extreme west — the homestead — described in the deed as twenty-five acres. He afterward bought the strip adjoining this on the east containing about twenty-one and one half acres. Immediately east of this last named piece was a third strip of land containing twenty-seven acres also used as a part of the farm. In the three pieces there were altogether about seventy-five acres and the fences between the pieces of land were removed. The title to the eastern twenty-seven-acre piece was in Virginia Monnin, an unmarried daughter of Francis Monnin and in his son Joseph, the plaintiff in error. The daughter owned an undivided two-thirds interest in said land and lived with her father. In November, 1890, the daughter died unmarried and intestate. Her estate was not settled and the father, inheriting a life estate in her interest in said land, continued to occupy and use the whole farm. There is evidence also that he supposed that instead of inheriting a life estate only, he had inherited his daughter’s interest in the twenty-seven acres in fee.</p> <p>All the lines bounding these several strips of land on the east and west are designated in the deeds as south lines, and they were, in fact, due south, though by the variation of the needle since the lines were run, they now vary from three to five degrees from the present magnetic south.</p> <p>Several years after the death of his daughter and while in possession of these pieces of land, Francis Monnin made a will. He willed to his daughter, Louisa Curty, the west side of the farm, being the homestead, west of a line running south from a maple tree. In another clause of his will he devised to his son, Joseph Monnin, plaintiff in error, forty-six acres off the east side of his farm, “ the barn on the line to be his.”</p> <p>After the death of Francis Monnin and after Louisa Curty had gone into possession of the homestead, Joseph Monnin procured George Long, a surveyor, to run a line south from the maple tree, that is, parallel to the other boundary lines. This line ran through a small barn and divided the whole farm in such a way that there were twenty-six and one half acres west of it (not including the five acres not in controversy) and forty-eight and one half acres east of it, including the twenty-seven acres called the Virginia Monnin land. At the south end of this line Joseph Monnin drove a post firmly into the ground in the presence of a number of witnesses, remarking that he was driving it in so that it could not be moved. Some time afterward Joseph built a fence within one foot of this line along its southern end. Mrs. Curty, the defendant in error, having accepted this as the division line, also built a post and wire fence on the same line along its northern end.</p> <p>When it was discovered by Joseph Monnin that the eastern strip of twenty-seven acres did not belong to Francis Monnin in fee, and could not be operated upon by his will, Joseph Monnin procured W. T. Dutton, another surveyor, and ran a second line diagonally from the maple tree bearing to the westward sufficiently to touch merely the corner of the barn, and continuing in the same direction until it intersected the Brawley line, at a point eight and four tenths rods west of the post, which Joseph Monnin had set at the south end of the line surveyed by Mr. Long. To this survey Mrs. Curty objected. It would make her land eight and one half rods narrower at its south end, than at the Maple tree at the north end.</p> <p>Thereupon, the plaintiff in error, Joseph Monnin, placed a wire from the maple tree to the corner of the barn, destroyed the posts and wires of the defendant in error, and entered upon the land west of the line running south from the maple tree, as surveyed by Mr. Long and afterward resurveyed by Mr. McDowell, destroying Mr. Curty’s crops, doing other acts of trespass.</p> <p>For these 'several acts of trespasses on her land the defendant in error brought this action, which raises the single question whether the correct line is the Long line running south from the maple tree or the Dutton line running diagonally past the corner of the barn.</p> <p>Plaintiff submitted among others the following point:</p> <p>[5. By the plain and unequivocal language of the will the eastern boundary of the plaintiff’s premises is a line running south from an undisputed maple tree. If the jury believe from the evidence that the defendant, without the consent of the plaintiff, cut or destroyed the grass, wheat or rye growing on the west side of said line running south from the said maple tree they should find the defendant guilty of trespass and the verdict should be for the plaintiff. Answer: This point is affirmed, providing, as we before stated, you first find that the plaintiff, Mrs. Curty, was in possession of the premises, as we have instructed you.] [1]</p> <p>The court charged the jury in part as follows:</p> <p>[The legal construction of the will is for the court, and we say to you as a matter of law, that there is not such an ambiguity in this will, under the evidence in this case, that would warrant us in saying to you that the defendant’s contention is correct. We think that the terms of the will fix the line beginning at the maple tree, and passing south, and presumably, upon that theory the parties agree that it is practically on what is known as the Long survey.] [4] ....</p> <p>The question, therefore, comes to the question of trespass, and if a trespass has been committed, what damage the plaintiff has sustained.] [7]</p> <p>Verdict and judgment for plaintiff for $100. Defendant appealed.</p> <p>Errors assigned among others were (1) in answer to plaintiff’s fifth point, reciting point and answer. (4, 7) to portions of the judge’s charge, reciting same.</p>

Appeal, No. 234, April T., 1900, by G. C. Mills and Ida Joiner, in suit of Emory Bristol, against G. C. Mills, executor of C. Ball, deceased, Ida Joiner and William Cross, trustee in bankruptcy, from judgment of C. P. Erie County, Nov. T., 1898, No. 56, on verdict in favor of William Cross, for the property at issue in the case of feigned issue. Opinion by Beaver, J. Feigned issue.

<p>Appeal, No. 154, April T., 1900, by plaintiff, in suit of Hugo E. Lersch against Marion R. Hay, from decree of C. P. Mercer Co., April T., 1899, No. 285, opening judgment in favor of plaintiff.</p> <p>Per Curiam.</p> <p>Rule to open judgment.</p> <p>Material facts appear in the opinion of the court.</p> <p>The court below in its opinion opening the judgment held, inter alia:</p> <p>The law in regard to the opening of judgments is well settled in the state of Pennsylvania by a line of decisions so well known that it is useless for us to quote them, except to say that it is a matter which appeals to the conscience of the court with a view that it uses sound discretion in determining whether or not the facts are such that ought to be tried by a jury. It is a well-established principle in this line that when a written instrument is made and signed under seal that the affidavit of the signer is not sufficient to open the judgment, and some opinions have gone so far as to say that it should require the parol testimony of two witnesses to overcome the written instrument. The general trend of the decisions in the state of Pennsylvania has been that it requires two witnesses, or one witness with such corroborating proofs as would warrant the court to open the judgment, or lead the court to believe that the facts disputed are such that a trial by jury should be granted.</p> <p>In this case we have the testimony of several witnesses as to this transaction, and, indeed, the testimony of the plaintiff himself admits such facts that we believe make an issue that ought to go to the jury, and with this belief, under the law as we deem it to be, we think it proper to open this judgment and allow the questions to be disposed of by a jury.</p> <p>Rule to open the judgment made absolute. Plaintiff appealed.</p> <p>Errors assigned among others were (2) in not discharging the rule to open the judgment. (3) In not setting forth in his opinion the findings of facts and grounds of his decision. (4) In not imposing terms upon the defendant when the judgment was opened.</p>

Appeal, No. 168, April T., 1900, by the city of New Castle, in the matter of the assessment of damages for opening of Atlantic avenue in the city of New Castle, from decree of Q. S. Lawrence Co., Sept. T.', 1899, No. 109, confirming exceptions to report of road viewers. Opinion by Rice, P. J. Exceptions to report of road viewers.

Appeal, No. 24, March T., 1900, by defendant, in suit of Joseph Strause, manager, against Elise Braunreuter, from judgment of C. P. Adams County, Aug. T., 1895, No. 87, on verdict for plaintiff. Opinion by Rige, P. J. Assumpsit. It appears from the record that this was an action brought on a promissory note signed by Adam Braunreuter and Elise Braunreuter, his wife.

Appeal, No. 133, April T., 1900, by defendant, in suit of Myrtle Slease against Robert G. Naysmith, from judgment of C. P. Armstrong Co., Dec. T., 1899, No. 5, on verdict for plaintiff. Opinion by W. D. Porter, J. Appeal from judgment of the justice of the peace. The facts sufficiently appear in the opinion of the court.

Appeal, No. 175, April T., 1900, by defendant, in suit of Harry E. Fabel against Henry Mayer, from judgment of C. P. Erie Co., May T., 1898, No. 99, on verdict for plaintiff. Opinion by W. D. Porter, J. Assumpsit.

Appeal, No. 32, March T., 1900, by defendant, in suit of Sarah J. Snyder against the township of Penn, from judgment of C. P. Perry Co., Aug. T., 1897, No. 24, on verdict for plaintiff. Opinion by W. D. Porter, J., Beaver and W. W. Porter, JJ., dissent. Trespass for personal injuries received through the alleged negligence of defendant. The facts sufficiently appear in the opinion of the court. Defendant submitted among others the following point: [11.

Appeal, No. 22, Feb. T., 1900, by Catharine Kaiser, widow, in the matter of the estate of George J. Kaiser, deceased, from decree of O. C. Lycoming County, March T., 1899, No. 24, refusing writ of partition. Opinion by W. D. Porter, J. Rige, P. J., and Orlady, J., dissent. Petition for writ of partition. The facts sufficiently appear in the opinion of the court. The court below discharged the rule and refused the prayer of the petition. Catharine Kaiser, widow, appealed.

Appeal, No. 232, April T., 1900, by plaintiff, in suit of F. W. Dexter, doing business as F. W. Dexter & Co., against Wm. R. Powell, from judgment of C. P. Erie Co., May T., 1899, No. 263, on verdict for defendant. Opinion by W. D. Porter, J. Assumpsit. • It appears from the record that defendant executed and delivered his promissory note for $20.00 payable six months after date to the Wingate’s Trade Exchange.

Appeal, No. 137, April T., 1900, by defendant in suit of Alexander McClaren against William A. Zalin et al., trading as Citizens’ Oil & Gas Company, from judgment of C. P. Lawrence Co., June T., 1898, No. 57, in favor of plaintiff for want of a sufficient affidavit of defense. Opinion by W. D. Porter, J. Assumpsit for gas rental under an oil and gas lease. The facts sufficiently appear in the opinion of the court.

Appeal, No. 1, Jan. T., 1898, by defendant in suit of Joseph Martachowski, against Frank Orawitz, from judgment of C. P. Luzerne County, Feb. T., 1893, No. 184, on verdict for plaintiff. Opinion by W. D. Porter, J. Trespass. The material facts appear in the opinion of the court. At the trial the court admitted in evidence the record showing the conviction and imprisonment of plaintiff for selling liquor without a license.

Appeal, No. 213, April T., 1900, by James Nightengale, in the matter of the application of the Pitts-burg Brewing Company for a wholesale liquor dealer’s license, from decree of Q. S. Cambria Co., March Sess., 1900, granting said license. Per Curiam. Application for wholesale liquor license.

Appeal, No. 19, Feb. T., 1900, by plaintiff, in suit of Commonwealth of Pennsylvania against John P. Shoemaker, from judgment of Q. S. Lycoming Co., Sept. Sess., 1899, No. 57, on verdict of not guilty. Opinion by W. D. Porter, J. Indictment for maintaining a nuisance. It appears from the record that the indictment was for maintaining a public nuisance by building a barn on the public highway in the village of Clarkstown.

Appeal, No. 74, April T., 1900, by plaintiff, in suit of the Borough of New Brighton against Selina Biddell and W. F. L. Biddell, from order of C. P. Beaver Co., Sept. T., 1898, No. 291, discharging rule for judgment for want of a sufficient affidavit of defense. Opinion by W. D. Porter, J. Sci. fa. sur municipal claim. Material facts sufficiently appear in the opinion of the court. Rule for judgment discharged. Plaintiff appealed.

Appeal, No. 14, Jan. T., 1900, by-plaintiff, in suit of Commonwealth against George J. Llewellyn and William Drury, from judgment of Q. S. Luzerne County, June Sess., 1896, No. 166, finding defendants not guilty. Opinion by W. D. Pobteb, J. Indictment for maintaining a nuisance in the borough of West Pittston.

Appeal, No. 119, April T., 1900, by defendant, in suit of Commonwealth of Pennsylvania for use of Levi Wells, Dairy and Food Commissioner of the Commonwealth of Pennsylvania, against Owen McCann, trading and doing business as McCann & Co., from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1899, No. 271, dismissing exceptions to record of alderman. Opinion by Rice, P. J. Exceptions to judgment of alderman.

<p>Appeal, No. 57, April T., 1900, by plaintiff, in suit of Amos Steelsmith against Andrew M. Aiken et al., from judgment of C. P. Butler Co., Dec. T., 1897, No. 12, from judgment of nonsuit.</p> <p>Opinion by W. D. Porter, J.</p> <p>Assumpsit.</p> <p>It appears from the record that this suit was brought under the Act of June 10,1881, P. L. 110, to recover amount expended by plaintiff in plugging an abandoned well drilled for oil and gas purposes by defendant.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The court below entered judgment of voluntary nonsuit which it subsequently on motion refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off compulsory non-suit.</p>

<p>Decedent's estate — Will—Rule in Shelley's case.</p> <p>A devise “ to my son, Daniel, an undivided one-half interest in ninety-three acres of land situate, etc., during his natural life and then to go to his legal heirs,” vests an absolute estate in fee simple in the devisee. It is clearly a case where the rule in Shelley’s case must be enforced.</p>

Appeal, No. 45, Jan. T., 1900, by N. N. Betts, in suit of John Howie, now to the use of N. N. Betts, cashier, against Evan Lewis, from order of C. P. Bradford Co., May T., 1899, No. 377, making absolute rule to open judgment in a feigned issue. Opinion by W. D. Porter, J. Rule to open' judgment.

<p>Road law — Defective petition — Designation of termini to include road.</p> <p>A petition which discloses an attempt, and that not very well disguised, to locate one fifth of a road in one of the termini, which is followed by the viewers, makes the proceedings so defective that they must be set aside by the appellate court on review.</p>

<p>Practice, Superior Court — Appeals—Defective paper-books.</p> <p>Where the action of the court below, which is assigned for error, consists in the refusal to take off" nonsuit, it is important that plaintiff should print his statement that it may be determined whether the evidence which he produced at the trial was sufficient to support the cause of action of which he complained.</p> <p>Sheriff's liability — Collateral impeachment of judgment.</p> <p>In an action on a sheriff’s bond to enforce liability for failure to make the money on a writ of fieri facias, the court will not inquire collaterally into a judgment directing the sheriff to withdraw from an attachment under the act of 1869. The plaintiff rested his case on the record which disclosed an order dismissing the attachment and refusing an issue of interpleader and directing the sheriff to withdraw from the custody of said goods and chattels. Held, that no mere irregularity in the record can be inquired into in a collateral proceeding and that the record must show that the judgment was void on its face or it must be accepted as conclusive upon the parties.</p> <p>Dissolution of attachment — Discretion of court — Review in collateral proceedings.</p> <p>A court may dissolve an attachment on extrinsic evidence which cannot be put in the record in the exercise of its power to grant summary relief from an abuse of the process of the court and in the exercise of this power the court is vested with a discretion, which, in all collateral proceedings, it must be presumed to have exercised rightly and according to law.</p>

Appeal, No. 46, April T., 1900, by defendant, in suit of John V. Wilson against the Township of O’Hara, from judgment of C. P. No. 1, Allegheny Co., June T., 1898, No. 44, on verdict for plaintiff. Opinion by W. D. Porter, J. Trespass to recover for injuries to plaintiff and his team by falling over the side of a public road in defendant township. The facts sufficiently appear in the opinion of the court. .

Appeal, No. 214, April T., 1900, by defendant, in suit df Commonwealth of Pennsylvania, against M. M. Diefenbacher, from judgment of Q. S. Erie Co., Feb. Sess., 1900, No. 13, on verdict of guilty. Opinion by Rige, P. J. Indictment for unlawful sale of oleomargarine and butterine. The facts sufficiently appear in the opinion of the court. Verdict of guilty and sentence thereon to pay a fine of $100 and costs of prosecution. Defendant appealed.

<p>Appeal, No. 235, April T., 1900, by defendant, in suit of H. H. Foringer, against A. E. Sisson, administrator of the estate of Rose Brown, otherwise Rose Randall, deceased, from judgment of C. P. Erie Co., May T., 1898, No. 203, on verdict for plaintiff.</p> <p>Opinion by Rice, P. J.</p> <p>Assumpsit.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>At the trial the trial judge excluded evidence offered on behalf of the defendant, the offer and rulings thereon being as follows:</p> <p>[Defendant’s counsel offers to prove by the witness that at the time that Mrs. Brown paid Dr. Foringer the $50.00, that it was in full satisfaction of the entire claim which Dr. Foringer had against her, with notice to Dr. Foringer that she would pay no more; that it was not as a payment on account.</p> <p>Objected to as incompetent and irrevelant and that the witness is incompetent to testify, he being the defendant in the case, representing a deceased person and testifying to something that occurred in the lifetime of Mrs. Brown, he being attorney for Mrs. Brown, and that it cannot be given in evidence when Dr. Foringer’s mouth is closed.</p> <p>The Court: I think the objection is well taken. They called a disinterested witness to testify to the instructions given by Mrs. Brown in her lifetime, and that person was competent. But Mr. Sisson is on the record, as a party here, and I do not see how he can give testimony in the case.</p> <p>Offered to ask him in regard to the statements made by Mr. Benson as to what Mr. Sisson told Mr. Benson, for the purpose of contradicting the statements made by Mr. Benson.</p> <p>The Court: The law excludes him entirely, as a witness. Mrs. Brown is dead and that closes the mouth of the opposite party. Now they call a witness to prove declarations of Mrs. Brown and declarations made by her ‘attorney at the time as against Mrs. Brown. That they have a right to do; they call a disinterested witness. Now while Mrs. Brown’s death closes the mouth of the opposite party it certainly would be very novel if her attorney, who was present at the time, could give evidence and the opposite party not give evidence; not the fact that you are the administrator on the record, but the fact that you were the very party who participated in those instructions in behalf of Mrs. Brown. When her death closed the mouth of the opposite party it also closed the mouth of her attorney as to the transaction which occurred at that time.</p> <p>Counsel for defendant claims that as the plaintiff has opened the door by having Mr. Benson testify, that this testimony offered is competent.</p> <p>The Court: I exclude it on the ground that you are the attorney of Mrs. Brown, and her death prevents the other party from giving testimony, and therefore Mr. Sisson, her attorney, is not a competent witness.</p> <p>Counsel for defendant renews the offer of Mr. Sisson to contradict the testimony of Paul A. Benson, as to what took place between Mrs. Brown, Mr. Benson and Mr. Sisson, in connection with the payment of the $50.00 to Dr. Foringer, testified to by Mr. Benson.</p> <p>Objected to as before.</p> <p>The offer showing that the witness is offered for the purpose of contradicting the plaintiff’s witness, Mr. Benson, in relation to what occurred between Mrs. Brown and the witness himself, as attorney for Mrs. Brown, the objection is sustained.] [3]</p> <p>The court charged the jury in part as follows:</p> <p>[We say to you, gentlemen of the jury, as a matter of law, that if you find that the payment of $50.00 was made in February, 1894, as testified to and that is within six years of the bringing of the suit, which was February 24,1898, we say that if you find that that $50.00 was made as a payment on this account, from the testimony, then this account is not barred by the statute of limitations, but the bar of the statute would be removed by such payment.] [1] ....</p> <p>[If this payment was intended to be made by Mrs. Rose Brown and received by Dr. Foringer as a payment on that account, then we say to you as a matter of law that that removes the bar of the statute.] [2]</p> <p>Verdict and judgment for plaintiff for $80.47. Defendant appealed.</p> <p>Errors assigned were (1, 2) to portions of the judge’s charge, reciting same. (3) To rulings on evidence, reciting same.</p>

<p>Appeal, No. 132, April T., 1900, by defendant, in suit of William McClain against County of Lawrence, from judgment of C. P. Lawrence Co., Dec. T., 1899, No. 117, in favor of plaintiff on case stated.</p> <p>Opinion by Rice, P. J.</p> <p>Case stated.</p> <p>The facts sufficiently appear from the case stated, which is as follows:</p> <p>And now, October 2, 1899, it is hereby agreed by and between the parties to the above suit, that the following case be stated for the opinion of the court in the nature of a special verdict.</p> <p>That in the case of Com. v. David Murphy, at No. 24, September sessions, 1899, of the court of quarter sessions of Lawrence county, the defendant being charged with felonious assault with intent to kill and murder, entered the plea of nolle contendere and was sentenced by the court, whereupon the county of Lawrence became immediately liable for the costs of prosecution.</p> <p>That the said William McClain has been engaged in the business of a detective for hire and reward for and during the time since the -- day of May, 1899, and has and is advertising his business to be that of a detective and is conducting a detective agency, having first obtained a license so to do from the court of quarter sessions of the county of Lawrence, wherein the principal office of such detective and such agency is located, to wit: at the city of New Castle in said county, and has in all respects complied with the Act of May 23, 1887, P. L. 173 and the supplements thereto.</p> <p>That the information and complaint charging the said David Murphy with felonious assault with intent to kill and murder, in said case at No. 24, September sessions, 1899, was made before John R. Potter, an alderman in and for said city of New Castle in the county of Lawrence and state of Pennsylvania, on July 13, 1899. That the said John R. Potter, aider-man, on July 13, 1899, issued a warrant in said case to the said William McClain, or next constable. That the said William McClain, plaintiff, on July 13, 1899, arrested the said David Murphy on said warrant and brought the said David Murphy, defendant in said case, to the office of the said John R. Potter, alderman, and the said plaintiff also executed two commitments and two releases and served the subpoenas on the commonwealth’s witnesses for a hearing in said case, issued by the said alderman, and taxed thereon costs amounting to fll.94, as appears on the transcript of the said alderman, and on file in the court of quarter sessions of Lawrence county at No. 24, September sessions, 1899, said transcript being made a part hereof.</p> <p>If the court be of opinion under the law, that the said plaintiff is entitled tó the fees and costs in the said case, then judgment to be entered for the plaintiff and against the defendant in the sum of fll.94, but if not, then judgment to be entered for the defendant, the costs to follow the judgment and either party to have the right of appeal to the Superior Court.</p> <p>Extract from transcript referred to in case stated:</p> <p>Information . . . . . . . f 50</p> <p>Entry ........ 25</p> <p>Warrant . 50</p> <p>Def’t recog. for hearing..... 50</p> <p>Commitment, 2 . . . . . . 1.00</p> <p>Release to jailor ...... 70</p> <p>Subpoena 11 names ...... 1.25</p> <p>Amount carried forward , 14.70</p> <p>Amount brought forward .... $4;70</p> <p>Writing ex. of deft......</p> <p>Hearing 50</p> <p>Continuance .......</p> <p>Oath, 2........20</p> <p>Pros, recog.........</p> <p>Def’t recog. . . . ■ . . . 50</p> <p>Trans, and Cert....... 50</p> <p>$6.40~</p> <p>Witness:</p> <p>James Alison . . .... . . . $ 50</p> <p>Fred Darch . 50</p> <p>Constable:</p> <p>Executing warrant......$1.00</p> <p>Assist . . .......1.00</p> <p>Mileage ........20</p> <p>Serving subpoena......5.50</p> <p>Mileage........24</p> <p>Executing commit., 2 .... . 2.00</p> <p>2 Releases........2.00</p> <p>$11.94</p> <p>Judgment in favor of plaintiff for $11.94. Defendant appealed.</p> <p>Error assigned was entry of judgment on the case stated in favor of plaintiff.</p>

<p>Appeal, No. 131, April T., 1900, by defendants, in suit of commonwealth of Pennsylvania, for use of M. Michel against Lizzie Litvitz and Isaac Gelder, from judgment of C. P. No. 2, Allegheny Go., Jan. T., 1900, No. 161, in favor of plaintiff, for want of a sufficient affidavit of defense.</p> <p>Opinion by Rice, P. J.</p> <p>Assumpsit. Before the court in banc.</p> <p>It appears from the record that the plaintiff’s claim is for $248.24, with interest from November 3, 1897, founded upon a bond in the penal sum of $500, executed by the appellants and approved by the court, of date November 8, 1897, given to secure the dissolution of an attachment issued by the appellee against the appellant, Litvitz, under the provisions of the act of March 17, 1869, pursuant to winch said attachment was dissolved, and the proceeding was subsequently carried on to judgment against said Litvitz for $248.24, with interest from November 3,1897-; and the action on the bond, is to recover the amount of said debt and costs from said Litvitz and the appellant, Gelder, who is her surety on said bond.</p> <p>•..The appellant filed an affidavit of defense, alleging that prior to said attachment the goods attached had been levied under an execution issued from a prior judgment, and were in the custody of the sheriff when said attachment was issued and when it was dissolved, and the same were sold by the sheriff and the proceeds applied to said execution, said goods having remained in his custody after the aforesaid bond was given, and no part thereof, or the proceeds of the sale thereof, ever came to the hands of either of the appellants after said attachment was dissolved, wherefore it became and was impossible for appellants to surrender said goods to meet the judgment obtained by the appellee in said attachment proceeding, and therefore the condition of the bond requiring the payment of said debt and costs never became operative.</p> <p>The appellee entered a rule for judgment for want of a sufficient affidavit of defense, which rule was made absolute, and judgment entered accordingly, no opinion having been filed by the court.</p> <p>Judgment for plaintiff for $500 to be released upon payment of $294.98. Defendants appealed.</p> <p>Error assigned was entry of judgment.</p>

<p>Railroads — Ejection of passenger — Mileage ticket — Cause of action— Proximate cause.</p> <p>A passenger, owner of an exchange mileage ticket, may not recover in trespass for an ejection from a train where he presented the mileage ticket alone without the necessary exchange ticket called for by the contract. The fact that he could not procure the exchange ticket owing to negligent attendance of the ticket agent does not entitle the passenger to claim a passage without guch exchange .ticket contrary to the contract and he may not assign his ejection from the car as a cause of action, of which ejection the failure to furnish the ticket was not the proximate cause.</p> <p>Contract — Railroad—Reasonable regulations.</p> <p>A railroad company may make all reasonable rules regulating special tickets and a passenger may not board a train and demand a passage upon presentation of a contract which upon its face denies him the right to transportation unless accompanied by further evidence, and the conductor was within the limits of his legal duty in ejecting him after opportunity and refusal to pay his fare.</p> <p>Ejection from train — Measure of damages — Neglect to provide exchange mileage tickets.</p> <p>Negligent delay in furnishing the exchange ticket called for by a mileage ticket does not enlarge the contract or change its terms. Bor a breach of such contract the suit must be on the contract and the damages measured by the usual rule based on the results of such delay.</p> <p>Damages for ordinary breach of contract cannot be inflated at will by the party injured illegally boarding a train and inviting an ejection therefrom.</p>

<p>Municipal liens — Police power- — Construction of sidewalks.</p> <p>Assessments for the construction of sidewalks are distinctly referable to the power of police, and are not dependent upon the taxing power, hence it is not material to the right of lien whether property is rural or urban.</p> <p>Municipal liens — Grading sidewalks.</p> <p>There is no legislative authority authorizing municipal authorities to impose upon property owners the burden of grading sidewalks to meet substantial changes in the grade of the cartway, and it has been decided that an assessment against abutting property for the grading of the foot-way cannot be sustained. Steelton Borough v. Booser, 162 Pa. 630.</p> <p>Municipal liens — Grading streets — -Rural districts — Remedy in act of 1891.</p> <p>In grading streets through rural districts the municipalities have, in the Act of May 16, 1891, P. L. 75, an instrument ready fitted to their hands for the collection of the cost of the work from property benefited, and it is not necessary that they should seek remedies not authorized by law, or recover upon principals of doubtful application to the subject-matter.</p>

<p>Will — Construction—General and particular intent — Controlling intent.</p> <p>Where there is a manifest general intent, the construction should be such as to effectuate it, though by that construction some particular intent may be defeated. The intention of a testator is .to be so construed as to be rendered consistent with the rules of law, but, where it is plain, it will be allowed to control the legal operation of the words, however technical.</p> <p>Devise to a class — Overstatement of number.</p> <p>Where the testator overstates t-he number of the objects of his bounty, who are entitled to take as a class under a particular devise, the whole estate will pass to the smaller number who fall within the class.</p> <p>Will — Devise to son for life — Alternative limitations to sons and daughters of life tenant.</p> <p>Testator made the following devise: “The place that William lives upon, he can live upon as long as he chooses, and when he dies or leaves it, it is to descend to his two eldest sons and for want of heirs male it is to descend to his two eldest daughters.” Held, (1) that William took a terminal life estate: (2) that the words “ in default of male heirs ” have the meaning “ and in default of sons ” and that the ultimate devise becomes the gift of a fee after a fee and that the last disposition can take effect only as an executory devise or an alternative limitation, not as a remainder; (3) that William the life tenant died leaving two daughters and the children of an only son, to whom the estate passes under the terms of the devise.</p>

<p>Sheriff — Special deputies — Contract to reimburse — Burden of proof.</p> <p>The furnishing by the sheriff to mine owners of special deputies pending a strike is not unlawful although the sheriff is not legally required so to do, it being outside his official duty. A contract upon the part of defendants to pay such special deputies or to reimburse the sheriff for his expenditures in that behalf is enforceable at law, but the burden is upon the plaintiff, the sheriff, to establish by evidence that the defendants had promised to pay.</p> <p>Evidence — Contract to reimburse sheriff for deputies.</p> <p>In an action by the sheriff to recover for the expenses of special deputies furnished for protection of the defendants’ works, it is proper to admit evidence that the defendants had in the same manner ordered special deputies upon former like occasions and had paid for them, as tending to establish that defendants had actual knowledge that the furnishing of these deputies was not within the line of the sheriff’s official duty, and that they could not demand such service as a matter of right. Such evidence is also admissible as tending to show a course of dealing between the parties with regard to the same subject-matter, and as tending to throw light upon the probabilities or improbabilities of their irreconcilable accounts of the oral arrangement made between them in the transaction out of which the litigation arose. It was also proper to allow plaintiff to ask defendant what was his understanding in view of what be had said and of the previous course of dealing.</p> <p>Contract — Meeting of mind — Charge of court.</p> <p>The trial judge was correct in stating to the jury thau they must not only arrive at the conclusion that there was a union of minds, one agreeing to furnish men if the other would pay for them and the other agreeing to accept the service with the understanding that he should pay7 for them, but that they must reach that conclusion from something that was expressed between the parties.</p> <p>Contract for special deputies — Set-off—Duties of sheriff.</p> <p>It appearing that the services of special sheriff’s deputies had been accepted and retained, the defendant may not defend against his liability to pay for them, on the ground that they had not done alt that he expected of them, or that the sheriff had failed to perform his duty as peace officer. Nor may he set off or recoup damages caused by the strikers, against the money expended by the sheriff for the special deputies, when such damages could not result from any failure of the sheriff to perform any duties growing out of the contract under which the parties were 'acting.</p> <p> Sheriff's duties-as peace officer, not contractual. </p> <p>The official duty of the sheriff is not founded in contract relation and it is against public policy that any private contract should be made with regard to the manner in which he, as sheriff, shall discharge the duty imposed upon him by law to pefserve the public peace.</p>

<p>Waste — Right of life tenant to cut timber.</p> <p>Under the laws of Pennsylvania, a life tenant may out timber for purposes of repair of the premises, or for other purposes required in the reasonable cultivation of the estate, or in the process of clearing the land for cultivation so long as the part so cleared does not cause the proportion of cleared land to timber land upon the whole'tract, to exceed that which is reasonable and proper for purposes of good husbandry.</p> <p>. Will — Effect of directions to convert — Real- estate.</p> <p>Real estate directed to be converted, for purposes of distribution, after the falling in of a life estate, will be treated as personalty, for that purpose, but will remain unchanged as to all beyond what that purpose requires.</p> <p>Waste by life tenant — Measure of damages.</p> <p>The rights and duties of a -life tenant as to standing timber and the measure of damages attending an excess of those rights, or the violation of those duties, are to be determined by the character of the estate of the life tenant. Held, that without regard to where, or in whom, the estates in remainder and reversion are vested, the foundation of the rule that the measure of damages in action for waste against a life tenant shall be the injury to the estate in remainder is to be found in the nature of the property and the fact that the remainderman is not entitled to possession thereof at the time of the injury.</p> <p>Felling timber — Life tenant — Measure of damages.</p> <p>In an action against a life tenant for waste in cutting and selling timber, the jury were properly instructed, as to the measure of damages, that it was not the particular value of any property or timber moved, as merchantable commodity, but the damage done to the land or inheritance which is owned by these reversioners.</p> <p>It was, therefore, proper for the jury to consider the condition in which the woodland was left in determining the effect which the cutting of timber had upon the value of the inheritance.</p> <p>Waste by life tenant — Evidence.</p> <p>In an action against a life tenant by remaindermen for waste in cutting timber, evidence is properly admissible to show the character of trees cut and sold and that they were in a dying condition. The fact that the witness injected into his answer a statement that he had given the decedent advice as to her legal rights did the defendant no harm.</p> <p>Waste by life tenant — Evidence—Burden of proof — Measure of proof.</p> <p>While the presumption is in favor of the life tenant as to the use of timber this presumption only prevails until the contrary appears. This principle determines the burden of proof. The plaintiff in an action of this character must establish to. the satisfaction of the jury, by the preponderance of the evidence not only that the life tenant has committed the acts complained of but that such acts have been injurious to the inheritance.</p> <p>It is imposing however a burden not warranted by law when the trial judge instructs the jury that the plaintiff’s evidence must be “ clear and certain ” that the life tenant had violated her duty.</p>

<p>Pleading — Criminal law — Autrefois acquit.</p> <p>One test to ascertain whether a plea of autrefois acquit be a good bar, is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first. Whether a former acquittal was for the same offense depends on the record pleaded and not on the argument or inference deduced therefrom. If that record shows that the evidence necessary to support a conviction on the present indictment would have been insufficient to procure a legal conviction on the former, the plea of autrefois acquit is not sustained.</p> <p>Railroads — Obstruction of highway — Former acquittal.</p> <p>Evidence sufficient- to convict a railroad company of the distinct offense of neglecting to provide a new road in lieu of a road lawfully taken would be insufficient to convict it of the offense of unlawfully entering upon and obstructing a highway. They are two distinct offenses; the former is not merely the constituent element of the latter.</p> <p>Railroads — Duty to reconstruct highway — TAability of successor to indictment for neglect.</p> <p>Where a railroad company has succeeded by purchase to the franchises, etc., of another company which originally occupied a highway, it becomes subject to the duties and liabilities relating thereto which rested upon the original company, and amongst them the duty to reconstruct the highway injuriously occupied by it.</p> <p>The Allegheny Valley Railway Company was incorporated under the Act of April 4, 1837, P. L. 345, as the Pittsburg, Kittanning & Warren Railroad Company. It was not until the Act of May 8, 1854, P. L. 648, that it was authorized to change the site of any turnpike, etc., upon assuming the burden of reconstructing such road longitudinally occupied. It follows therefore that any duty arising under the act of 1854, falls upon its successor,' the Allegheny Valley Railway Company, which is liable to indictment for neglect of such duty.</p> <p>Railroad's duty of reconstructing public road — Statute of limitations.</p> <p>The statutory duty of a railroad company to reconstruct a road taken by it is a continuing duty, and if not performed by it it devolves upon a railroad company which succeeds by purchase to its franchises and privileges, and mere lapse of time will not absolve it from this duly nor bar the commonwealth.</p> <p>Railroad — Failure to reconstruct highway — Measure of sentence — Specific performance.</p> <p>Under conviction of a railroad company for failure to reconstruct or provide a public highway in lieu of one taken, the sentence can go no further than to punish the offense committed; that offense is the neglect to construct the road within a reasonable time. Performance of that duty cannot be specifically enforced by sentence on this conviction.</p>

<p>Criminal law — Receipt of deposits — Insolvent banker — Pleading—Former acquittal.</p> <p>A former conviction on an indictment drawn under the Act of May 9, 1889, P. L. 145, is not a bar to a subsequent prosecution for having, under the same circumstances, and with the same knowledge of insolvency, as in the former case and on the same day, received from another person a deposit of money.</p> <p>Demurrer to plea of former acquittal — Effect as admission.</p> <p>A demurrer to a plea of former acquittal does not admit the correctness of every argument or inference from the record pleaded that the defendant may see fit to put into his plea.</p> <p>Pleading — Amendment of indictment — Discretion of court.</p> <p>There is no reviewable abuse of discretion where the trial judge permits an indictment against an insolvent banker to be amended by adding the words, “ and of another person being a partner and joint owner with him.” The variance was not material to the merits of the case, nor could it prejudice the defense on the merits.</p> <p>Evidence — Knowledge of insolvency by banker.</p> <p>In an indictment against an insolvent banker the commonwealth is bound to prove defendant’s knowledge of insolvency and in most cases this can only be proved by circumstantial evidence.</p> <p>Proof of defendant’s assets at a date prior to the time of receiving the deposit, followed by evidence of losses thereafter sustained by him in the banking business largely in excess of his entire capital, whereby he became insolvent, and this followed by evidence that he continued to be insolvent down to the date of receiving the deposit, would have a legitimate tendency to prove his knowledge of his insolvency. The longer the condition existed the greater the probability of knowledge.</p> <p>Evidence — Insolvent banker — Assignor—Assignee’s appraisement.</p> <p>On the trial of an insolvent banker who had made an assignment the inventory and appraisement made by the appraisers at the instance of the assignees and the returns of sales of land made by the assignees and approved by the court are admissible in evidence where the assignment was near in point of time to the deposit, as an aid to the jury in determining the issue as to the insolvency of the defendant on the date in question.</p> <p>Evidence — Criminal liability of insolvent banker — Assignee's account.</p> <p>An assignee’s account merely filed is not independent evidence, in a prosecution against the assignor as an insolvent banker that the various items and amounts therein indicated as lost or uncollectible were of no value as assets for payment of creditors. Such account, however, maybe used simply to refresh the recollection of one of the assignees in testifying as to differences between the appraised and actual value of certain items.</p> <p>Practice, Superior Court — Defective assignment — Omission to set out evidence.</p> <p>An assignment will be overruled which alleges error in the admission of evidence when it is utterly impossible to determine whether or not error was committed because it omits to set forth the evidence admitted and the evidence in connection with which it was omitted.</p> <p> Evidence to rebut criminal intent. </p> <p>Whenever the motive, intention or belief of a party charged with a crime is in issue, it is competent for such party to testify directly upon that point and, also to the facts and circumstances accompanying an act, which reasonably tend to repel an unfavorable inference which might be drawn from the act if unexplained and it is error to reject the corroborative testimony of other persons as to the same facts and circumstances.</p> <p>Evidence — Value of particular building.</p> <p>The value of a bank building being in question, an offer is properly rejected to show the valuation put upon another bank by the bank officials, to be followed by evidence that their own building was superior to the other. Such evidence was inadmissible as hearsay and as opening up collateral inquiries not allowable where the question is as to the value of a particular building.</p> <p>Evidence — Market value — Particular sales.</p> <p>Evidence of particular sales of land in the vicinity is not admissible to establish market value of land in question.</p> <p>Evidence — Value of assets — Criminal intent.</p> <p>The value of land having a bearing on criminal intent of defendant indicted as an insolvent banker and the commonwealth having introduced evidence of sale by defendant’s assignees at a certain price per acre as tending to prove value in association with other and independent proof of values, it was error to exclude an offer by defendant to show a sale made by the vendee of the assignee the next day at an increased price.</p> <p>If the assignee’s sale was to be considered by the jury in determining the main question the evidence offered by the defendant should have been received and considered in connection with it.</p> <p>'Evidence — Criminal intent of insolvent banker — Effect of partnership as rebutting intent.</p> <p>The question being as to the criminal intent of an insolvent banker, it was error to reject defendant’s offer to show an alleged partnership in the banking business; that the other partners were liable and that they had property.</p> <p>It would seem however that a partnership existing years ago between defendant and other parties that had not been legally dissolved as to the public, although nonexistent as to the parties at the time of the deposit, would not fill the offer and would not be relevant.</p> <p>Evidence — Bad reputation of witness.</p> <p>A bad reputation for truth and veracity may not be established by proof of a good reputation for truth and integrity of the opposing witness.</p>

<p>Appeal, No. 155, April T., 1900, by defendants, in suit of Commonwealth of Pennsylvania against J. C. Kay and J. B. R. Streator, from judgment of Q. S. Washington Co., Aug. Sess. 1899, No. 150, on verdict of guilty.</p> <p>Opinion by Rice, P. J.</p> <p>Indictment on two counts for embracery and conspiracy.</p> <p>It appears from the record that üpoii petition of the district attorney founded on belief that defendants, together with one Fred Emery, had attempted to corrupt a juror empaneled to try a certain case of the Commonwealth v. Samuel Hazlett, the court ordered an investigation by the grand jury, which body made a presentment upon the return, whereof the court directed the district attorney to send up an indictment against the alleged offenders, which was done, and the same returned to the court as a true bill.</p> <p>The indictment contains two counts, both of which concluded with the averment that the offense charged therein was “ contrary to the form of the act of the general assembly in such case made and provided and against the peace and dignity of the commonwealth of Pennsylvania.” The first count charges the appellants, together with Emery, with an attempt to influence one Frank Watson, a juror empaneled in the aforesaid case; and the second count charges the same defendants with conspiracy to influence said juror.</p> <p>Upon motion to quash the first count on the ground of insufficient certainty of allegations, and the second count on the ground that it failed to conform with any statute relating to conspiracy, the court entertained and allowed a motion of the district attorney to amend the second count by striking therefrom the words “ contrary to the form of the act of the general assembly ” as surplusage, upon notice that the proceeding on said count was at common law, and thereupon the motion to quash the indictment as amended was overruled, and, a severance having been asked by the commonwealth and granted by the court as to Emery, the appellants pleaded “not guilty,” upon which plea issue was joined, and the cause proceeded to trial.</p> <p>At the trial, Chester Brownlee, a witness called by the commonwealth in rebuttal, being on the stand, the commonwealth was permitted to introduce evidence in support of the following offer:</p> <p>[I offer to show by the witness that Ralston, immediately after he got up from the position where Kay and Watson were, stated to this witness his opinion of the condition of the juror, and that he was going to inform Mr. Spr'owls of what he had heard; to be followed by evidence of what he told Mr. Sprowls that same evening, as corroborative of the commonwealth’s witness, Ralston, and as contradicting the statement of the defense.</p> <p>We offer to show by the witness that he saw Major Kay and the juror Watson and the witness Ralston together in the office on the Friday evening that, has been mentioned; that immediately upon their separation Mr. Ralston, the witness, came to him and expressed his opinion of the juror, indicating a conclusion resulting from that conversation that he had overheard there, and stated that he intended to inform one of the commonwealth’s counsel, Mr. Sprowls, of that fact; to be followed by evidence that upon the same evening he, Ralston, recounted to Mr. Sprowls what conversation he had overheard; to be followed by the statement then made by the witness to Mr. Sprowlswhat conversation he had overheard, for the purpose of corroborating the statement of the commonwealth’s witness which has been denied by the defendants and their witnesses. That the time when the witness repeated the conversation which he claimed to have overheard was within a few hours of the time of its occurrence, and before any inquiry, legal or otherwise, had been raised or any litigation suggested.</p> <p>Objected to on the part of the defense, first, because, if competent at all, it is a part of the commonwealth’s case in chief: second, because it is wholly incompetent, as being altogether a matter of hearsay, and for the purpose of repeating the talk or testimony of the commonwealth’s witness.</p> <p>The Court: So far as the objection goes to its being their case in chief, it is always in the discretion of the court as to when testimony shall be introduced, in what order, and the objection is overruled as to that. We will overrule the other objection, asking counsel to shorten it by asking the witness if he has told substantially, immediately afterwards, what he has told upon the stand, and that was communicated to his counsel. On request of defendants, exception allowed and sealed.] [6]</p> <p>A. -S. Sprowls, a witness called by the commonwealth being on the stand, the commonwealth submitted evidence in support of the following offer:</p> <p>[Now, Mr. Sprowls, I want to inquire of you as to a statement made to you by the witness Ralston.</p> <p>Offer asked for.</p> <p>We propose to show by the witness on the stand that in the evening of Friday, May 26, after the court was closed, after supper time, that the witness Ralston came to him and stated to him a conversation that he had overheard between the juror by the name of Watson and one of the defendants, Major Kay, as having occurred that evening at the Auld House. This for the purpose of showing that the witness stated the same facts stated upon the stand here as to that conversation at a time immediately following the conversation, and at a time when no question of litigation or dispute had arisen, in rebuttal of the denial of the defendant of the statement made by the witness on the stand.</p> <p>Objected to as incompetent and irrelevant. Second, because there is nothing in this case, or any offer made, to bring the testimony in the offer within the rule that has been laid down by the Supreme Court with respect to corroborating a witness who has been attacked by showing that what he testifies to at present relating to an event in the past was narrated in substantially the same way by him immediately after the transaction.</p> <p>The court: We think it is competent to show the witness told the same story soon after. Objection overruled, offer admitted for the same reason as in the ruling previous to this. And on request of defendants, exception allowed and sealed.] [7]</p> <p>The Court charged the jury in part as follows :</p> <p>[Gentlemen of the jury: At the May sessions of 1899, of this court, one Samuel Hazlett was tried on an indictment charging him with embezzlement as a banker. The prosecutor in that indictment named was one of his depositors. At the date of that trial there were many prosecutions and indictments pending against the same defendant for the same offense, based on informations made by those having deposited money in his bank. The trial at said term lasted for about ten days, when a verdict was returned by the jury, a part of which finding, relating to a portion of the costs, I have no hesitancy in saying, then shocked the judicial mind.] [9]</p> <p>Verdict of guilty and sentence thereon. Defendants appealed.</p> <p>Errors assigned among others were (6, 7) to rulings on evidence, reciting same. (9) To a portion of the judge’s charge reciting same.</p>

<p>Judgment — Index—Idem sonans — Priority of lien.</p> <p>Where there is no other means of notice but the record, a prior judgment creditor will be postponed in distribution where he has neglected to have it entered either in the correct name of the defendant, or in the name in which he took and held title to the land, or in a name which, though spelled differently, is practically identical in sound with the sound of the correct name as commonly pronounced.</p> <p>In the vernacular the names Baker and Becker are not the same in sound, nor are they so nearly so that it is a matter of indifference whether a judgment against a person of either name is docketed and indexed in the name of Baker or the name of Becker.</p>

<p>Appeal, No. 114, April T., 1900, by plaintiff, in suit of City of Erie against Thomas Paskett, from judgment of C. P. Erie Co., May T., 1899, No. 207, in favor of defendant on case stated.</p> <p>Opinion by Rice, P. J.</p> <p>Case stated. Before Lindsey, P. J., of the 37th judicial district, specially presiding.</p> <p>It appears from the case stated that the question for determination was as to whether defendant was entitled to certain rebate of taxes amounting to $18.84 for year, 1897 and $13.47 for the year 1898, as against the cost of street pavement, by virtue of the provisions of the ordinance of April 1,1880, repealed by ordinance of September 16, 1895, after the paving of the street had been directed to be made but prior to the actual execution of the contract for the paving.</p> <p>The court below entered judgment for defendant, filing the following opinion:</p> <p>There is no substantial difference between this case and Erie v. Griswold, 5 Pa. Superior Ct. 132. In that case all the proceedings and the paving of the street was before the passage of the ordinance repealing the rebate ordinance of April 1, 1880. In this case the contract for the work of paving was not signed and certified by the controller till after the repealing ordinance took effect. The proceedings began in this case by a petition by the owners of property fronting on the street paved the same as .in the Griswold case, and all the proceedings were the same with the single exception mentioned above. [We think the signing of the contract to pave and certificate of the controller were but the carrying out of the contract completed between the city and the defendant before the repeal of the rebate ordinance and the ease is clearly within the city of Erie v. Griswold, supra.</p> <p>It is therefore ordered that judgment be entered for the defendant with costs as provided by the case stated.] [1]</p> <p>Judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in directing judgment for defendant on the case stated, reciting portion of decree.</p>

Appeal, No. 175, Oct. Sess., 1899, by John Meighan, in the matter of the widening of Franklin street from Germantown avenue to Emlen street, from decree of Q. S. Phila. Co., dismissing exceptions to and confirming second report of the jury of view. Opinion by Rice, P. J. W. W. Porter, J., dissents. Exceptions to report of road jury.

<p>Appeals, Nos. 145 and 146, April T., 1900, by defendant, in suit of Martha Helsel and Samuel B. Helsel, against the Consolidated Traction Company, from judgment of C. P. No. 3, Allegheny Co., May T., 1898, No. 158, on verdicts for plaintiffs.</p> <p>Opinion by Rice, P. J.</p> <p>Trespass.</p> <p>It appears from the record that this was an action to recover damages for personal injuries not resulting in death to the wife.</p> <p>The court charged the jury in part as follows: .</p> <p>[The husband is entitled to his wife’s earnings, and is entitled to recover any loss he may have sustained by reason of her not being able to earn as much as she would have, had the accident not occurred.] [1] ....</p> <p>[He would be entitled to recover, in addition to her loss of-earning power, any expense to which he may have been put for nursing during her sickness, but I have no recollection that the g.irls employed were employed to nurse her. If they were, then he would be entitled to recover the amount spent for nursing. My recollection is they were employed to do her work about the house, and that, of course, would be included in the sum you may give him to compensate him for the loss of her earning power during the time that has already elapsed, and during the time that will elapse whilst she is disabled.] [2]</p> <p>Verdict of 1500 for plaintiff, Samuel B. Helsel, and 11,500 for plaintiff, Martha Helsel. Defendant appeal.</p> <p>jErrors assigned were (1, 2) to portions of the judge’s charge, reciting same.</p>

<p>Fraud — False witnesses to declaration of no set-off — Cause of action.</p> <p>An action will lie against a witness who as such attested a declaration of no set-off without having seen the maker thereof sign the same. Whether intended as a fraud or not such action is a fraud in law and makes the witness liable for the damages that the plaintiff may have sustained in consequence of it.</p> <p>Evidence — Depositions—Collateral proceedings.</p> <p>The issue being whether defendant falsely witnessed a declaration of no set-off to a judgment note, it was competent to admit in evidence that part of the deposition of the maker of the note taken on the rule to open judgment in which she denies that she ever signed the declaration of no’ set-off.</p> <p>On the question of damages it was proper to show not only that the paper was a forgery but that the ostensible maker had taken that defense in the proceedings to open the judgment.</p> <p>Practice, C.P. — Evidence—Calculation of interest for jury.</p> <p>Whether a calculation of interest may be sent out with the jury is largely in the discretion of the court, and such discretion will not be reversed where the jury has been carefully instructed as to the proper measure of damages.</p>

<p>Appeal, No. 19, Oct. T., 1900, by defendant, in suit of Commonwealth of Pennsylvania against Cornelius M. Becker, from sentence of Q. S. Schuylkill Co., Sept. T., 1899, No. 1026, on verdict of guilty.</p> <p>Opinion by Rice, P. J.</p> <p>Indictment for false pretenses.</p> <p>It appears from the record that the bill of indictment being lost or mislaid in the above case, the court below permitted the district attorney to file a certified copy of the same. Under objections of defendant the court made the following order: “ And now, to wit: January 3, 1900, the within copy of original bill being presented to the court, the court do direct the same to be filed, to take the place of the original, lost or mislaid.”</p> <p>Defendant was subsequently called for trial, but he refused to plead to the written paper purporting to be a copy of the original bill of indictment and stood mute. Thereupon the court directed the plea of “not guilty” to be entered for defendant. The district attorney then entered said plea and signed the same himself.</p> <p>Verdict of guilty and sentence to pay a fine of $25.00, to return to one, Ketner, $400, to pay the costs, and to be imprisoned in the county jail for six months. Defendant appealed.'</p> <p>Errors assigned among others were (2) in accepting said alleged copy of original bill, and in directing the same to be filed to take the place of original. (6) In receiving evidence tending to show a general reputation for bad character on the part of the defendant after the date of the act complained of in the alleged copy of the original bill of indictment, and before the date of the day that the defendant was prosecuted. (7) In pronouncing judgment on the verdict.</p>

<p>Constitutional law — Discharge of employees — Labor organization— Statute.</p> <p>The Act of June 4, 1897, P. L. 116, prohibiting discharge of employees of corporations because of membership in lawful labor organizations is unconstitutional in that it offends article 3, section 7 of the constitution, which provides, " that the general assembly shall not pass any local or special law .... regulating labor, trade, mining or manufacturing.” Whether the test to be applied to the classification adopted by the legislature in the present instance be necessity or the genuineness and substantial nature of the distinction between employees of corporations and the employees of individuals, firms and limited partnerships with respect to the particular subject of legislation, the act must be declared to be a special law within the true intent and meaning of the constitution.</p>

<p>Interest — Contract for sale of land — Accompanied by possession in vendee —Deferred payments of purchase money.</p> <p>The general rule that interest is not demandable of right until the debt is due, except in pursuance of the terms of an express contract applies where a contract of sale of land is made with future payments at stipulated times accompanied with present possession by the vendee; there being no contract for payment of interest while the instalments were running to maturity.</p>

<p>Lien — Judgment defectively indexed — Notice.</p> <p>If a subsequent incumbrancer have actual notice of a judgment defectively indexed before his rights attach, it is equivalent to the constructive notice required to be given by the judgment docket.</p> <p>Notice — Proof of equivalent knowledge.</p> <p>Proof that brings home knowledge of a fact to a person, if he will but use his senses and reasoning faculties, is in a great variety of eases held to be sufficient to affect him with notice.</p> <p>Judgment index— Omission of middle letter — Effect of notice — Junior lien..</p> <p>Where adebtor is indifferently known as William and William J., obligations being given by the debtor both with and without the middle letter “ J.,” and when the conduct of a mortgagee indicates that he was not misléd by a prior judgment given and recorded without such middle letter, such judgment will not be denied participation in proceeds of sheriff’s sale of land standing in the name of William J,</p>

<p>Appeal, No. 43, Oct. T., 1899, by-defendant, in suit of Jane White against Augustus Black, from judgment of C. P. No. 1, Phila. Co., JuneT., 1893, No. 271, on verdict for plaintiff.</p> <p>Opinion by Rice, P. J.</p> <p>Assumpsit.</p> <p>The facts sufficiéntly appear in the opinion of the court.</p> <p>At the trial the court permitted plaintiff to testify against defendant’s objection as follows:</p> <p>[Mr. White: “ Q. You got your rentals from them — did you lease them to one William Black?”</p> <p>Mr. Shields : I object.</p> <p>“ A. Yes, sir, I did.”</p> <p>Mr. Shields: I object. We have nothing to do with the lease to William Black; the defendant here is Augustus Black.</p> <p>Mr. White: I offer to prove that the defendant assumed William Black’s lease.</p> <p>Judge Beitler : With that offer I will overrule the objection.</p> <p>Exception for defendant.] [1]</p> <p>[Mr. White I offer in evidence the lease from Jane White to William Black for the store and dwelling, 2700 East Cumberland street, in the city of Philadelphia, for the term of one year from the 1st day of June, 1889, at the rent of $360 per annum, to be paid in equal monthly payments of $30.00, and providing, inter alia, that the lessee agrees to pay all extra water rents.</p> <p>Mr. Shields: I object. The lease has not been admitted.</p> <p>Judge Beitler : Mr. Shields has a right to cross-examine on this lease.</p> <p>Mr. Shields: I do not care to cross-examine on it.</p> <p>Mr. White: I offer the lease in evidence.</p> <p>Mr. Shields : I object.</p> <p>Objection overruled. Exception for defendant.] [2]</p> <p>[Mr. White: “ Q. Did William Black go in possession under that lease ? ”</p> <p>Mr. Shields: I object.</p> <p>Objection overruled. Exception for defendant.</p> <p>“A. Yes, sir.”] [3]</p> <p>[The court permitted plaintiff to offer in evidence, against defendant’s objection, the notice to quit given by the plaintiff to the defendant, as administrator of William Black.] [4]</p> <p>[The court admitted, against defendant’s objection, the plaintiff’s offer to prove that the written lease to Augustus Black was not intended by her to operate as such, as follows :</p> <p>Mr. White: I propose to prove by this witness that the lease which has been produced, here by Augustus Black, and which he states was a lease in writing which he went into possession under, was, as a matter of fact, delivered to him in the middle of the term after he had been in; that it was brought to Mrs. White by Augustus Black and her son Charles, and that Augustus Black stated at that time that he had a discu ;- sion going on in court between his sister, who remained there since William Black’s time, and himself, and that he wanted to get her out of the house, and that it was necessary to have this in writing so as to produce it at the trial to show that he was the tenant of this lady; that he didn’t go into possession under it, but that it was given to him simply for the purpose of showing his title, and aot as the lease between the parties.</p> <p>Mr. Shields : I object.</p> <p>Objection overruled. Exception for defendant.] [5]</p> <p>[The court admitted, against defendant’s objection, plaintiff’s offer to prove that the written lease to Augustus Black was not intended as a lease, as follows:</p> <p>Mr. White: I propose to prove by this witness that the lease which has been produced here by Augustus Black, and which he states was a lease in writing which he went into possession under, was, as a matter of fact, delivered to him in the middle of the term after he had been in; that it was brought to Mrs. White by Augustus Black and her son- Charles, and that Augustus Black stated at that time that he had a discussion going on in court between his sister, who remained there since William Black’s time, and himself, and that he wanted to get her out of the house, and that it was necessary to have this writing so as to produce it at the trial, to show that he was the tenant of this lady; that he didn’t go into possession under it, but that it was given to him simply for the purpose of showing his title, and not as a lease between the parties.</p> <p>Mr. Shields : I object. Objection overruled. Exception for defendant.] [6]</p> <p>[The court admitted, against the defendant’s objection, the plaintiff’s offer to identify the notice given by the plaintiff to the defendant, that she would hold him for the rent of the ensuing year, as follows :</p> <p>Mr. White: I propose, further, to show by this witness — I wish to identify the notice which was given to Augustus Black on June 1,1892 — that Mrs. White would hold him for the rent if he moved out, not having given her the three months’ notice. I wish to do that in ■ order to rebut the evidence introduced hy Mr. Shields when he offered the court record, that this lady had, by amending her statement, showed for the first time that she claimed to hold him under the old lease, and to show that even then, before any statement was filed, that this lady notified him that she intended to hold him for lack of the three months’ notice.] [7]</p> <p>The court charged the jury in part as follows:</p> <p>[The lease which is produced here and which is signed by Augustus Black — and it is admitted that she gave him that lease — binds her unless she can show you by clear, precise and satisfactory proof that a fraudulent use is being made of it by Augustus Black.</p> <p>The law encourages the putting of contracts into writing; encourages it because it prevents disputes and ill feelings between neighbors and business men, and because it results in men knowing just where they stand, if they had their contracts in black and white. The law says that these papers shall have a sanctity given to them; that they shall be considered just as they are written, except in some well-defined cases, and one case is where the party holding the paper attempts to make a fraudulent use of it; and I propose to leave it to you in this case to say whether the party who attempts to escape from the lease, Mrs. White, has satisfied you that Augustus Black is attempting to make a fraudulent use of the paper.] [10] ....</p> <p>[Is there anything in the testimony of these two people that without reasonable doubt leads you to believe that this man is not making a fraudulent use of that paper in producing it before you to show it was the lease under which he was a tenant?] [11] ....</p> <p>[The plaintiff says even if this lease was executed just as Augustus Black says it was, and that it was the lease under which he held possession, he was liable and in possession if he stayed in after the close of the year, and that is true as a matter of law, and the plaintiff says she saw skids and barrels on the pavement; that she saw people moving skids and barrels across the street from her property to the property on the other corner, which, on June 1, 1892, the defendant occupied. My recollection is, and I want you to take yours and not mine, is that she did not mention the fact that they were being taken out of the cellar until the close of her testimony, and then did say that she saw people moving barrels from the pavement of one .property to the other property, and she added: “ I saw people taking things out of the cellar.” If on the 2d or 3d day of June the defendant was in possession of that property he was in for k whole year, whether he gave up the key or not.] [13] ... .</p> <p>[Suppose you ignore Augustus Black’s testimony; but you cannot do that without you find something in the case to warrant you in doing that.] [14]</p> <p>Verdict and judgment for plaintiff for 1432.63. Defendant appealed.</p> <p>Errors assigned among others were (1 — 7) to rulings on evidence, reciting same. (10,11,13,14) To portions of the judge’s charge, reciting same. (15) The charge of the court was erroneous and misleading in that it did not fairly and fully present both sides of the case to the jury.</p>

<p>Municipal lien — Front-foot rute — Constitutional law — Statutes.</p> <p>The Act of May 23, 1889, P. L. 277, which provides for the cost of paving streets in cities of the third class, under the front-foot rule is not unconstitutional in that it contains no provision for judicially determining the special benefits, or for notice to property owners of time and place when they can be heard as to the amount of special benefits before the assessment is made.</p> <p>Prior to the decision in Norwood v. Baker, 172 U. S. 269, this could not be regarded as an open question in Pennsylvania and a careful study of that case and of the authorities therein cited by Mr. Justice Harlan, in support of the judgment (many of which distinctly recognize the power of the legislature to adopt this mode of assessment under special circumstances, as, for example, when it is applied to the original paving of a strictly uniform width in the built up portions of a city or large town) fails to disclose that it established a general rule which controls that adopted by the Pennsylvania Supreme Court.</p>

<p>Appeal, No. 15, March T., 1900, by defendant, in suit of city of Harrisburg against G. F. Mish, from judgment of G. P. Dauphin Co., March T., 1896, No. 505, on verdict for plaintiff.</p> <p>Opinion by Rice, P. J.</p> <p>Sci. fa. sur municipal lien.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The defendant submitted among others the following point:</p> <p>[3. The alleged contract between the city of Harrisburg and its contractor under which the improvement of the roadway called Cameron street was made, the cost of which was, in part, assessed upon the property of the defendant, involved an appropriation of money, and, on its face, designated the items of appropriation on which it was founded. The supposed contract was not certified by the city controller of the city of Harrisburg, as required by section 5, article 9, of the act of assembly, approved May 23, 1889, P. L. 277, and therefore never took effect as a contract, and no lien, assessment or other charge can be made upon or against defendant’s property by reason of anything done under said supposed contract, and there can be no recovery against defendant in this case.</p> <p>The Court: The third point is reserved.</p> <p>Defendant also asked the court to instruct the jury that the contract under which the work was done was not certified as required by the act of 1889, and never took effect as a contract, and no assessment or lien can be based thereon. This point was also reserved.</p> <p>The contract referred to in the additional point reserved has been certified by the city controller since the case was tried, and we think that the principles adopted in Harrisburg v. Simpler, 7 Pa. Superior Ct. 491, apply here, and that, as is said by Rice, C. J., delivering the opinion of the court, at page 510, “ the act of the controller in certifying the contract after the completion of the work, where he had authority to certify it before the work began, was, under the circumstances of this case, effective to give it validity as against the defendant.] [9]</p> <p>The jury found a verdict for the full amount of plaintiff’s claim, $ 1,142.16. Defendant moved for judgment non obstante veredicto on the point reserved in the ninth assignment of error. Judgment was entered on the verdict. Defendant appealed.</p> <p>Errors assigned among others were (9) in answer to plaintiff’s third point, reciting point and answer. (17)' In not entering judgment for defendant. (18) In entering judgment for plaintiff.</p>

Appeal, No. 24, Feb. T., 1900, by Joel Seiler, in the matter of the estate of Hannah Seiler, deceased, from decree of O. C. Union Oo., dismissing appeal from the register. Opinion by Rice, P. J. Appeal from the decree of the register of wills admitting to probate a paper purporting to be the last will and testament of Hannah Seiler, deceased. The facts sufficiently appear in the opinion of the court.

Appeal, No. 203, April T., 1899, by L. M. Allison, administrator of the estate of Mary J. Shepard, in the matter of the petition for payment of legacy out of land from decree of O. C. Butler Co., March T., 1898, No. 54, dismissing said petition. Opinion by W. W. Porter, J. Petition for payment of legacy out of land. Before Gbeeb, P. J. The facts sufficiently appear in the opinion of the court. The court below dismissed the petition. L, M. Allison, administrator, appealed.

Appeal, No. 167, April T., 1900, by D. E. Wolfe, in the suit of Peter Ruffner, for use of Henry Miller, against D. E. Wolfe, per Beatty, from judgment of C. P. Armstrong Co., June T., 1887, No. 228, in favor of plaintiff. Opinion by W. W. Porter, J. Assumpsit. It appears from the record that this action arose on a judgment note signed D. E. Wolfe, per Beatty, which had been duly entered up by plaintiff. Subsequently the judgment was opened and defendant let into a defense.

Appeal, No. 171, April T., 1900, by defendants, in suit of Elizabeth Reynolds against Fidelis Lodge, No. 460, Knights of Pythias et al., from decree of C. P. Lawrence Co., Dec. T., 1898, No. 2, dismissing bill in equity. Opinion by W. W. Poetee, J. Hearing on bill and answer. Material facts appear in the opinion of the court.

Appeal, No. 30, April T., 1900, by respondent, in suit of Easton Hull against Daisy Hull, from judgment of C. P. Crawford Co., May T., 1898, No. 56, granting divorce a. v. m. Opinion by W. W. Porter, J. Libel in divorce. It appears from tbe evidence that Easton C. Hull was married to Daisy Cooley, July 4,1894, at Covington, Kentucky, by Judge Shine. The couple lived together about two years after their marriage, most of the time at his father’s house at More-field, Ohio.

Appeal, No. 76, April T., 1900, by Max Geiger et al., claimants, against the estate of Charles Geiger, deceased, from decree of O. C. Beaver Co., June T., 1899, No. 13, dismissing exceptions to auditor’s report in distribution. Opinion by W. W. Poe-tee, J. Exceptions to auditor’s report. The facts sufficiently appear in the opinion of the court.

<p>Appeal, No. 165, April T., 1900, by defendant, in suit of E. L. Bemis, against the Harborcreek Mutual Fire Insurance Company, of Erie, Pennsylvania, from judgment of C. P. Erie Co., Sept. T., 1897, No. 68, on verdict for plaintiff.</p> <p>Opinion by W. W. Porter, J. Rice, P. J., and W. D. Porter, J., dissent.</p> <p>Assumpsit.</p> <p>It appears from the record and the evidence that the action was brought against defendant, a mutual insurance company, to recover for loss on a dwelling house and furniture.</p> <p>The policy was of the form known as the “ Standard Fire Insurance Policy of the States of New York and Pennsylvania,” prescribed by the insurance department, and contained the following condition, viz:</p> <p>“ This entire policy, unless otherwise provided by agreement indorsed hereon, or added hereto, shall be void .... if any change, other than by the death of an insured, take place in the interest, title, or possession, of the subject of the insurance (except change of occupants, without increase of hazard), whether by legal process, or judgment, or by voluntary act of the insured, or otherwise.”</p> <p>On September 16,1896, by general warranty deed, Edwin L. Bemis, the plaintiff, with his wife, conveyed the insured premises to John Morse, the deed being recorded in the office of the recorder of deeds, in and for the county, January 13, 1897, in deed book, No. 120, page 539. The consideration named in the deed was $4,000.</p> <p>On February 20,1897, by deed of general warranty, recorded April 27, 1897, in deed book, No. 122, page 144, John Morse and wife reconveyed the insured premises to Edwin L. Bemis, the plaintiff. The consideration named in the deed was $4,000.</p> <p>It was testified that no consideration passed for either conveyance.</p> <p>No consent or agreement of the company to either conveyance was indorsed upon or added to the policy, as provided in the portion of the policy above quoted. Nor did the company, or any of its officers or agents, have any knowledge or notice of either conveyance until after the building insured was destroyed by fire.</p> <p>On April 3,1897, the building insured was totally destroyed by fire, with a portion of the furniture contained in it.</p> <p>There having been no change in the interest, title or possession of the furniture contained in the building, the loss on it was paid June 1, 1897.</p> <p>The company refused to pay the loss upon the building, upon the ground that the conveyance of it by the plaintiff was a violation of the condition of the policy quoted above.</p> <p>No other objection was made by the company.</p> <p>The court submitted the following points:</p> <p>[That the conveyance by plaintiff and wife, dated September 16, 1896, to John Morse, and recorded in Erie county deed book, No. 120, p. 539, was a violation of the clause in the policy, which reads as follows: “ This entire policy unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if any change, other than by the death of an insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment, or by voluntary act of the insured, or otherwise,” and therefore rendered the policy void. Answer: Under the evidence in this case I decline to affirm that point.] [1]</p> <p>[The subsequent conveyance by John Morse and wife to Edwin L. Bemis dated February 20,1897, and recorded April 27, 1897, twenty-four days after the loss by fire occurred, did not reinstate the policy which had been made void by the deed from E. L. Bemis and wife to John Morse. Answer: The second point assumes that the deed from Bemis to Morse rendered void the policy of insurance. For that reason, under the evidence in this case, I decline to affirm it.] [2]</p> <p>[Under all the evidence the verdict should be for the defendant. Answer: The third point is declined.] [3]</p> <p>The court charged the jury in part as follows:</p> <p>[Now, in view of these authorities, and many others, some of which are referred to in the case above recited, of Burkhart against the Insurance Company, it seems to me that if there was simply a nominal transfer, Mr. Bemis all of the time remaining the sole owner of the property, that it did not avoid the policy. If you are satisfied of the truth of the evidence (which is not contradicted), you should find a verdict for the plaintiff, for the amount of the policy, for the amount of the insurance on the dwelling house, $1,000, with interest from the time when it should have been paid, making in all, at this date, the amount of $1,154.40.] [4]</p> <p>Verdict and judgment for plaintiff for $1,154.50. Defendant appealed,</p> <p>Frrors assigned were (1-3) in answers to defendant’s points, reciting points and answers. (4) To a portion of the judge’s charge, reciting same. (5) In submitting the case to the jury.</p>

Appeal, No. 120, April T., 1900, by defendant, in suit of George T. Owens against F. J. Wehrle, from judgment of G. P. Appeal, No. 120, Allegheny Co., May T., 1899, No. 121, on verdict for plaintiff. Opinion by W. W. Porter, J. Assumpsit.

<p>Appeal, No. 54, April T., 1900, by defendant, in suit of F. H. De Arment for use of T. S. Gamble against D. J. Kennedy, from judgment of C. P. No. 1, Allegheny Go., June T., 1899, No. 504, in favor of plaintiff on case stated.</p> <p>Opinion by W. ¥. Porter, J.</p> <p>Case stated.</p> <p>The following facts appear from the case stated:</p> <p>That on May 15, 1896, D. J. Kennedy, the defendant, entered into an agreement in writing with F. H. De Arment, above named, wherein the said Kennedy agreed to convey, free of all incumbrances, except a certain mortgage for $8,000 a certain piece of land in the nineteenth ward of • the city of Pittsburg, as described in said agreement, to the said F. H. De Arment, and that subsequently, to wit: on June 6, 1896, the said lot was conveyed by deed of general warranty.</p> <p>That on May 15, 1896, at the time of the execution of the agreement aforesaid, Collins avenue, in the city of Pittsburg, being the avenue upon which said lot fronts for a distance of thirty feet, was graded and paved under ordinance of the city of Pittsburg, and that the said improvement was then fully completed. That the said lot of ground was benefited by said improvement and was then liable to an assessment to pay the cost thereof so soon as a board of viewers should be appointed to report thereon. That said board of viewers was not appointed and that no assessment was actually made until after the date of said agreement and deed of conveyance, but that the said board of viewers was appointed and an assessment was made upon said lot in the sum of §69.11 for grading, and §217.93 for paving and curbing. .</p> <p>Plaintiff avers that the said assessment was an incumbrance upon the said lot at the time of the said agreement and conveyance, which the defendant, D. J. Kennedy, under the said agreement, was liable to pay and discharge. Defendant denies that it was such incumbrance and that he is liable to pay the same under said agreement. That if the defendant is liable under said agreement for the payment of the said assessment, he is indebted to the plaintiff herein in the sum of §287.04, with interest from August 8,1898, and costs at Nos. 42 and 58, February term, 1899, M. L. D.</p> <p>Judgment for plaintiff for §287.04. Defendant appealed.</p> <p>Frror assigned was entry of judgment for plaintiff.</p>

<p>Appeal, No. 207, April T., 1900, by defendant, in suit of N. Monsarratt, receiver of the Columbus, Hocking Valley & Toledo Railroad Company, against the Equitable Trust Company, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1899, No. 365, in favor of plaintiff for want of a sufficient affidavit of defense.</p> <p>Opinion by W. W. Porter, J.</p> <p>Rule for judgment for want of a sufficient affidavit of defense</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Judgment for plaintiff for want of a sufficient affidavit of defense for $1,416.39. Defendant appealed.</p> <p>Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Negligence — Drainage of land abutting public roads — Statutes—Act of 1836 — Constitutional law. ’</p> <p>The Act of June 13, 1836, P. L. 551, which gives to supervisors power to remedy obstructions to drains under public roads which pass over private property is constitutional; section 32 gives them power to open, repair and maintain all such drains, and sections 28 and 32 provide a system of procedure in respect to any of the acts authorized and directed by the service provisions and a method is provided for the payment of any damages incurred.</p> <p>It follows that a township is responsible in damages if it ignores the consequences of negligent acts and omissions injuriously affecting owners of property abutting upon roads.</p>

Appeal, No. 147, April T., 1900, by libellant, in suit of Albert R. Klaas against Marie Klaas, from decree of C. P. No. 2, Allegheny Co., July T., 1899, No. 395½, dismissing libel in divorce. Opinion by W. W. Porter, J. Libel in divorce. The following facts appear from the findings of the court be. low: 1. At some time about 1875, William Lake married one, Mary Morgan.

Appeal, No. 220, April T., 1900, by defendant, in a suit of A. L. Coutler against Conemaugb Gas Company, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1898, No. 440, on verdict for plaintiff. Opinion by W. W. Porter, J. Assumpsit. Material facts sufficiently appear in the opinion of the court. Plaintiff submitted the following point: [1.

Appeal, No. 62, April T., 1900, by defendant, in suit of Silas- Wingett, executor of the estate of Hannah Wingett, deceased, against Hamilton K. Bell, from decree of O. C. Washington Co., Feb. T., 1894, No. 64, sustaining bill for support and maintenance. Opinion, by W. W. Porter, J. Hearing on bill, answer and proofs.

Appeal, No. 66, April T., 1900, by-plaintiff, in suit of Rose Bannon, against the Lincoln National Bank and H. F. Doris, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1899, No. 222, in favor of plaintiff. Opinion by W. W. Porter, J. Hearing on bill, answer and proofs.

<p>Master and servant — Risks of employment — Negligence.</p> <p>If an employee having opportunity of becoming acquainted with the risks of his situation, accepts them, he cannot complain if subsequently injured by such exposure. By contracting for the performance of hazardous duties, he assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which causes he has had opportunity to ascertatn.</p>

<p>Appeal, No. 30, March T., 1900, by Huntingdon county, from decree of Q. S. Mifflin Co., April T., 1897, No. 37, refusing to approve the report of the commissioners appointed to run and mark the line between the counties of Huntingdon and Mifflin, and to grant a change of venue.</p> <p>Opinion by Rice, P. J.</p> <p>Exceptions to report of county line commission and petition for change of venue.</p> <p>It appears from the record that on March 8, 1897, the report of the county line commission was filed in the court of quarter sessions of Huntingdon county. Exceptions to this report filed -by Mifflin county were dismissed by Judge Stewart, specially presiding in the court of quarter sessions of Huntingdon county. On June 30, 1897, the decree of the court of quarter sessions of Mifflin county by the associate justices refusing to approve of the report and declining to order the same to be reported was filed. Bailey, P. J., refused to concur in the above decree of the associated judges. An appeal taken to the Superior Court was dismissed October 10,1897. See report of the proceedings in 8 Pa. Superior Ct. 380.</p> <p>On December 19, 1898, a petition of the commissioners of Huntingdon county to the court of quarter sessions of Mifflin county for rule on the commissioners of Mifflin county to show cause why the report and draft made by the county line commission should not be approved was filed. On the same day a decree of the associate judges of Mifflin county was made granting a rule on above petitioners returnable forthwith and argument to be had at once on exceptions. Exceptions to the said decree were filed and appeal taken to the Superior Court, reported in 11 Pa. Superior Ct. 386.</p> <p>On December 19, 1898, exceptions of Mifflin county to the report of county line commission were filed in the court of quarter sessions of Mifflin county. On the same day a supplemental petition of Huntingdon county by its attorneys for rule to show cause on Mifflin county, returnable at a future day and to be heard by a disinterested judicial officer, was filed. On the same day a decree by the associate judges refusing to grant the prayer of the above petition and refusing to call in a disinterested law judge to hear the case, granting exceptions and sealing bill for petitioners, was filed. Evidence was filed December 19, 1898, by the commissioners of Mifflin county in support of the exceptions to the county line report and on December 19, 1898, decree of the associate judges of Mifflin county sustaining exceptions filed by Mifflin county to county line report, and refusing to approve said report and order it to be recorded, filed. On August 23, 1899, the petition of commissioners of Huntingdon county to Hon. John M. Bailey, president judge of the court of quarter sessions of Mifflin county, for change of venue was filed. On October 6, 1899, opinion and decree of Judge Bailey refusing application for change of venue filed, and on December 27,1899, decree of the associate judges of the court of quarter sessions of Mifflin county sustaining exceptions to the report of the county line commission and refusing to approve said report and to order the same to be recorded, filed. Huntingdon county appealed.</p> <p>Errors assigned among others were (1-3) in not affirming the first, fourth and fifth points of Huntingdon county, requesting findings of fact. (13) In making the decree refusing change of venue. (14) In refusing to approve the report of the county line commission and in refusing to order the same to be filed. (15) In overruling the objection of Huntingdon county to the offer in evidence of the minority report of J. C. Swigart, one • of the county line commissioners, and admitting the said report in evidence.</p>

Appeal, No. 143, Oct. T., 1899, by plaintiff, in suit of Kate M. Busch against William Calhoun, Sr., from judgment of C. P. Delaware Co., March T., 1897, No. 156, on verdict for defendant. Opinion by Orlady, J. Trespass to recover damages for the unlawful occupancy of plaintiff’s ground.

<p>Appeal, No. 40, April T., 1900, by-defendant, in suit of Commonwealth of Pennsylvania, against Edward P. Keary, from sentence of Q. S. Allegheny County, March Sessions, 1899, No. 128, on verdict of guilty.</p> <p>Opinion by W. W. Porter, J.</p> <p>Indictment under Act of May 6, 1863, P. L. 582, to prevent frauds upon travelers.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>Verdict of guilty and sentence thereon. Defendant appealed.</p> <p>Errors assigned among others were (4) in refusing defendant’s first point, which was as follows: “ 1. That the act of assembly of May 6, 1863, entitled ‘ An act to prevent frauds upon travelers ’ and the supplements thereto, under which the indictment in this case is based, is unconstitutional and void in this, that it contravenes the bill of rights contained in the constitution of the state of Pennsylvania, and the provision of the fourteenth amendment of the constitution of the United States and the constitution of the United States giving to congress all powers with reference to intestate commerce. Answer : Refused.” (5) In refusing defendant’s second point, which point and answer are as follows: “ 2. That the acts of assembly referred to are unconstitutional in this, that they attempt to make that a crime which is not; and in this case, that the evidence expressly shows that the tickets alleged to have been sold were valid tickets issued by the railroad company. Answer: Refused.” (6) In refusing defendant’s third point, which point and answer are as follows : “ 8. That the acts of assembly in question are an attempt to create a monopoly and assume power not of a legislative nature. Answer: Refused.” (7) In refusing defendant’s fourth point, which point and answer are as follows: “ 4. That the act is not a police regulation or within the police powers of the commonwealth of Pennsylvania. Answer: Refused.”</p>

<p>Municipal lien — Notice—Tenants in common — Question for jury — Service.</p> <p>Where an ordinance requires notice to pave sidewalk to be given to the owners, a service on one of two tenants in common is not, in law, a notice to the cotenant; if, however, the tenant served is the agent of the cotenant, such notice will be sufficient and the question of such agency is properly for the jury.</p>

<p>Appeal, No. 90, April T., 1900, by defendant, in a suit of Phillip Brown, J"r., against Pittsburg, Allegheny & Manchester Traction Company, from judgment of C. P. No. 2, Allegheny Co., April T., 1897, No. 728, on verdict for plaintiff.</p> <p>Opinion by W. W. Porter, J. Rice, P. J. and Orlady, J. dissent.</p> <p>Trespass.</p> <p>The'facts sufficiently appear in the opinion of the court.</p> <p>Verdict and judgment for plaintiff for $1,000, Defendant appealed.</p> <p>Error assigned was in refusing to affirm defendant’s point, which point and answer are as follows : That under all the evidence in this case the verdict should be for the defendant. Answer: Refused. It is for the jury to determine whether or not the verdict should be for the defendant. To which refusal to affirm said point, counsel for defendant excepts, and thereupon billed sealed for defendant.</p>

<p>Appeal, No. 18, Feb. T., 1900, by defendant in suit of Commonwealth of Pennsylvania against James L. Robb, from judgment of C. P. Tioga Co., Sept. T„ 1899, No. 3½ dismissing appeal of defendant from assessment as a dealer in merchandise.</p> <p>Opinion by Orlady, J.</p> <p>Appeal from decision of mercantile appraiser assessing appellant $40.00 as a hay dealer.</p> <p>The following facts appear from the opinion of the court below:</p> <p>It was admitted at the hearing that defendant bought and sold hay, grain and straw during the year 1898, the sales amounting in value to $50,000. The assessment appealed from was based upon the dealings of the defendant for that year in this county. Due and lawful notice of the assessment was given. The defendant appeared before the appraiser and county treasurer, on the day of appeal, and his only objection then made was that he is not liable to a license tax under the law.</p> <p>The defendant has barns at several railway stations in the county for storing hay and straw, but uses them for such storage only when he is unable to get cars in which to make shipment directly to purchasers. In 1898 he sold about $25.00 worth of straw at Wellsboro for local consumption. He does not store grain, having that delivered directly into cars for shipment.</p> <p>The defendant’s place of business, his office and residence are in Wellsboro. But he makes purchases at different places in the county and ships them thence by rail, from the most convenient station. At times he takes orders for these products at places without the county, and ships them wherever the purchasers desire them delivered. Most of his business, however, is done by correspondence and otherwise, at Wellsboro.</p> <p>Defendant filed the following reasons in support of his appeal:</p> <p>1. Dealers in hay, straw and grain are not within the provisions of any act of assembly or law that makes such dealers liable to the payment of a mercantile tax.</p> <p>2. There is no warrant of law for the assessment appealed from. The said assessment is nnjust and illegal. The acts of assembly under which the proposed assessment was made were repealed by the act of the general assembly of Pennsylvania, approved May 2, 1899.</p> <p>The court ordered that the appeal be dismissed and set aside and that defendant pay the costs. Defendant appealed.</p> <p>Error assigned was, in not sustaining the appeal taken by defendant and in not entering judgment in favor of defendant with costs.</p>

<p>Sale — Guaranty of title — Execution—Stay of earlier writ — Effect on junior writ.</p> <p>The fact that an earlier writ was stayed does not affect the levy on another writ which was at the time in the sheriff’s hands and on which the levy on the former writ was noted.</p> <p>A sale and delivery by the sheriff under such second writ disposes of the owner’s title, and will defeat his recovery on a contract of sale in which he had guaranteed to his vendee a clear title. Through plaintiff’s failure to make good his title to the property, his vendees lost the fruit of their attempted purchase, and when it was taken from them by the sheriff’s vendee they had a complete defense to the plaintiff’s claim for the purchase money.</p>

<p>Jurisdiction, O. C. — Discharge of administratrix — Appeal—Review of discretion.</p> <p>The Act of May 1,1861, P. L. 680, invests the orphans’ court with jurisdiction to dismiss an administratrix pendente lite, who has, in the opinion of the court, brought herself within the class of eases in which provision is made for a discharge, and the appellate court will not reverse such an order unless a clear abuse of discretion is manifest.</p> <p>Party interested — Removal of administratrix.</p> <p>Any party interested in an estate where contest has been made and administration raised, pendente lite, has standing under the act of 1861 to invoke action of the orphans’court for the removal of the administratrix, pendente lite upon cause shown.</p>

<p>Appeal, No. 46, Jan. T., 1900, by plaintiff, in suit of James Wallace, Administrator of Bridget Wallace, deceased, against the Metropolitan Life Insurance Company, from judgment of C. P. Luzerne Co., Dec. T., 1895, No. 327, refusing to take off nonsuit.</p> <p>Opinion by Orlady, J.</p> <p>Assumpsit.</p> <p>The action was brought to recover on a policy of $50'0 on the life of Bridget Wallace, the insured.</p> <p>At the trial the court refused to admit the following offer of plaintiff:</p> <p>[Plaintiff proposes to show by the witness on the stand that Mr. Campbell is the general superintendent of defendant company, and he was asked by the witness if it would be necessary for him to furnish proofs of death, and he says that that' was all the proofs he made, and witness asked him why they did not pay the claim, and that Mr. Campbell stated that because the mother was not in sound health at the time the policy was issued. The offer is made for the purpose of showing the defendant waived proofs of death from administrator and denied liability on another ground and the failure to furnish proofs of death.</p> <p>Defendant objected to the offer because the offer shows there was no waiver of proofs of death but on the contrary the proofs had been furnished which were satisfactory.</p> <p>The Court: First show.that Mr. Campbell was the general superintendent. I think the objection well taken. Exception noted, and bill sealed for plaintiff.] [1]</p> <p>The plaintiff then made the following offer which was refused:</p> <p>[Plaintiff proposes to prove that the witness on the stand asked Mr. Campbell who is the general superintendent for this company, has full charge of their business, the reason why they refused to pay this claim, and that Mr. Campbell the superintendent of the company, says that they refused to pay to the plaintiff because the insured was not in sound health at the time the policy issued.</p> <p>Defendant objected to the testimony as being immaterial and irrelevant, it appearing in the testimony of the witness Mr. Campbell, that proofs were furnished, and that there being nothing in the offers in alleging the proofs were given, and further, that the plaintiff so far has failed to show the authority of the alleged superintendent, Mr. Campbell, to bind the company by any declaration of his.</p> <p>The Court: His declaration is not competent unless he had authority to bind the company.] [2]</p> <p>The court entered a judgment of nonsuit which it subsequently on motion refused to take off. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) to rulings on evidence, reciting same.</p>

<p>Appeal, No. 113, April T., 1900, by defendant, in suit of Commonwealth of Pennsylvania, against Michael McMahon, James McMahon and John McMahon, from sentence of Q. S. Allegheny Co., March Sessions, 1899, No. 295, on verdict of guilty.</p> <p>Opinion by Orlady, J.</p> <p>Indictment for a misdemeanor in wilfully burning a building.</p> <p>It appears from the record that the defendants were indicted, pleaded to the indictment, were tried and convicted in the court of quarter sessions. The following appears from the bill of exceptions:</p> <p>On the trial of this cause, while the district attorney was mating his final address to the jury, the defendants’ counsel interrupted him for the purpose of correcting an alleged misstatement of a matter claimed to be material, when the court directed the counsel to withhold any corrections of alleged misstatements until the close of the district attorney’s argument. Defendant’s counsel excepted to this order and requested a bill, which request was granted with directions to counsel to reduce it to writing. At the conclusion of the district attorney’s argument, counsel for the defense called the attention of the court to sever-al alleged misstatements of the district attorney as to matters claimed-to be material.</p> <p>At the instance of counsel for the defendants this bill is sealed, to the order of the court, directing counsel to refrain from mating correction of alleged misstatements until the conclusion of the district attorney’s address.</p> <p>After verdict of guilty, defendants moved for arrest of judgment which motion was overruled in the following decree of the court:</p> <p>[And now, November 25, 1899, before sentence of above defendants, their counsel moved .the court to arrest the judgment in this case, for the following reason: The record, trial and all proceedings in this case are, and have been had in the court of quarter sessions, which court has no jurisdiction of the offense charged in the indictment.] [4]</p> <p>Yerdict of guilty and sentence thereon. Defendants appealed.</p> <p>.Errors assigned among others were (1, 2) in not permitting defendants’ counsel to make corrections in the alleged misstatement in the concluding argument of the district attorney at the time said statements were made, reciting said exceptions. (4) In overruling motion in arrest of judgment, reciting decree.</p>

<p>Question for jury — Negligence—Master and servant.</p> <p>The ease is for the jury where the plaintiff’s proofs disclose a prima facie case of negligence on the part of the defendant in the relations between employer and employee, and the defendant’s proofs directly contradict the plaintiff’s allegations. The case is for the jury where plaintiff’s evidence discloses the necessity for him as an employee to procure a certain tool left in full sight, in the performance of which act he slipped iqto an unguarded tub of scalding water,</p>

<p>Appeal, No. 91, April T., 1900, by defendants, in suit of Frank B. Stockley, receiver of the Peoples’ Mutual Live Stock Insurance Company of Pennsylvania, against John McClurg, Joseph G. McClurg, Hannah McClurg and George W. Watson, trading as James McClurg & Company, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1899, No. 319, in favor of plaintiff, for want of a sufficient affidavit of defense.</p> <p>Opinion by Or-lady, J. Beaver, J., dissents.</p> <p>Assumpsit.</p> <p>It appears from the record that plaintiff brought suit to recover an assessment against the defendant upon outstanding policies which were in force on the dates of the losses. Attached to and made part of the statement filed in the case is a copy of the decree of the common' pleas of Dauphin county in the equity proceedings. The affidavit of defense set up, inter alia, as follows:</p> <p>Defendants are advised and believe that said plaintiff cannot maintain this action, for the reason that the same is not brought in accordance with the act of assembly of the commonwealth of Pennsylvania, approved May 25, 1887, in that the statement filed by the plaintiff is not a concise statement of plaintiff’s demand, nor is said statement accompanied with a copy of the record of the alleged proceedings in equity at No. 463, in the court of common pleas of Dauphin county, as required by said act.</p> <p>The court made absolute the rule for judgment for want of a sufficient affidavit of defense in the following opinion:</p> <p>[This case was argued with No. 395, May term, 1899, in which judgment was refused and to the opinion filed in that ease we refer here.</p> <p>As stated in that opinion we do not consider it necessary for the plaintiff to have filed with his statement of claim a copy of the decree of the court of common pleas of Dauphin county, appointing him receiver, simply for the purpose of maintaining this suit, and had not the affidavit of defense in that case denied the insolvency of the insurance company, thus making valid as á defense the set-off therein alleged, we would have entered judgment in that case in favor of the plaintiff.</p> <p>In the present case the affidavit of defense does not deny the insolvency of the company, and considering, as we do, that the matters set up therein as a defense to the plaintiff’s claim have been judicially passed upon and determined against the defendants, we are of opinion that the affidavit is insufficient and that this rule must be made absolute. It is so ordered.] [1]</p> <p>Judgment for plaintiff for $694.57. Defendants appealed.</p> <p>Error assigned was in making absolute the rule for judgment, reciting opinion of the court below.</p>

<p>Appeal, No. 89, April T., 1900, by defendants, in suit of J. Henry Rahenkamp et al'. against United Traction Company of Pittsburg, Second Avenue Traction Company and the Federal Street & Pleasant Valley Railway Company, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1897, No. 720, on verdict for plaintiffs.</p> <p>Opinion by Orlady, J.</p> <p>Trespass for personal injuries.</p> <p>It appears from the record that by virtue of several ordinances of the city of Pittsburg, and agreements between the companies interested, the Federal Street & Pleasant Valley Passenger Railway Company were permitted to use the tracks of the Pittsburg & Birmingham Traction Company on Smith-field street, and that a frog or switch located there was so constructed as to form a portion of the tracks of both companies. This frog or switch was admittedly out of repairs, and Henry Rahenkamp was killed by reason of its condition.</p> <p>At the trial the plaintiffs discontinued as to the Federal Street & Pleasant Valley Railway Company and the Second Avenue Traction Company, because it appeared that the accident happened after the United Traction Company had succeeded to the rights and duties of these two companies.</p> <p>The court charged the jury in part as follows :</p> <p>[It seems to me that under the circumstances, this switch being allowed for the. benefit of the defendant company, the contract with the Birmingham company not making any special provision for it, it being of substantially one construction, and being a necessary switch to bring these two roads together, it was substantially a part of both roads, each of the roads using it and connected by it are liable for its proper maintenance as far as the public are concerned, no matter what their private agreement might have been among. themselves as to whom should do the work and who should pay for it.] [2]</p> <p>The court was asked by defendants to say as a matter of law that the United Traction Company was not liable in this case, but this request was refused and the case submitted to the jury and a verdict rendered in favor of plaintiffs for $1,250, and judgment entered thereon. Defendants appealed.</p> <p>Errors assigned were (1) refusing binding instructions for defendants. (2) To a portion of the judge’s charge, reciting same.</p>

<p>Fornication and bastardy — Discharge as insolvent — Subsequent attachment and imprisonment.</p> <p>The discharge as an insolvent of a person convicted and sentenced under a charge of fornication and bastardy extinguishes all liability to attachment and imprisonment for failure to pay instalments accruing after discharge, but such discharge does not relieve the defendant from the payment of the accrued weekly amounts by action in assumpsit or by an execution issued upon subsequent earnings or property.</p>

<p>Appeal, No. 22, March T., 1900, by Henry P. Wendt, legatee of Henry Wendt, deceased, from decree of O. C. York Co., dismissing exceptions to auditor’s report in the distribution of the estate of Henry Wendt, deceased.</p> <p>Opinion by Orlady, J.</p> <p>Exceptions to auditor’s report.</p> <p>It appears from the auditor’s report that testator died leaving several children, one of whom, Sallie Wendt, was named as executrix of his will. Exceptions were filed to the account of the executrix by Henry P. Wendt. In one of these exceptions he sought to charge accountant with the value of two railway bonds of the face value of $1,000 each. It appeared from the evidence taken before the auditor that Sallie Wendt, the executrix, never had in her possession but one of the said bonds. There was also evidence tending to show that this bond had been in the possession of her father as his property until a few months previous to his death, and that there had been a gift of the bond to Sallie Wendt by the testator in his lifetime, and the auditor found as a question of fact that there was such gift of said bond by the testator in his lifetime to Sallie Wendt which was valid as a gift inter vivos.</p> <p>The court dismissed the exceptions to the report of the auditor and Henry Wendt appealed.</p> <p>Error assigned among others was in finding as a fact that there was a valid gift by the testator to the accountant in the lifetime of the former, of a Northern Central Railway bond for $1,000.</p>

<p>Appeal, No. 116, April T., 1900, by plaintiff in suit of Samuel W. Black & Co. against A. J. Barr, from judgment of C. P. No. 3, Allegheny Co., May T., 1898, No. 244, of nonsuit.</p> <p>Opinion by Beaver J.</p> <p>Rice, P. J., and W. D. Porter, J., dissent.</p>