Volume 140 — Pennsylvania State Reports

<p>The testimony for the plaintiff, in an action by an employee to recover for personal injuries caused by the breaking of an implement he was using, showing that the implement, apparently sound, broke by reason of a defect not shown to have been known to the defendant before, and not visible at all until afterward, the plaintiff was not entitled to recover.</p>

4 OF PHILADELPHIA COUNTY. No. 57 July Term 1890, Sup. Ct.; court below, No. 35 December Term 1884, C. P. No. 4.

2 OF PHILADELPHIA COUNTY. Nos. 389 January Term 1890,105-114 July Term 1890, Sup. Ct.; court below, No. 18 March Term 1880, M. L. D., C. P. No. 2. On May 23, 1889, a case stated was filed, wherein the city of Philadelphia, to the use of Jacob M. Peters, was plaintiff, and the “ Estate of Wilson Jewell ” and others were defendants. After argument the court in banc, on December 28, 1889, without opinion filed, entered judgment for the plaintiff on the case stated, for $88.79.

2 OF PHILADELPHIA COUNTY. No. 132 July Term 1890, Sup. Ct.; court below, No. 111 M. L. D., C. P. No. 2. On August 30,1889, the city of Philadelphia, to use of John M. Mack, issued a scire facias sur municipal claim for paying, etc., against a lot of ground, etc., on Miller street, owned by Emily M. Baker.

3 OF PHILADELPHIA COUNTY. . No. 25 July Term 1890, Sup. Ct.; court below, No. 170 June Term 1888, C. P. No. 3. On May 17, 1888, Anna Cleary brought trespass against the Philadelphia & Reading Railroad Company, to recover damages incurred by the death of her husband, Martin Cleary, charged to the negligence of the defendant company. Issue.

4 OF PHILADELPHIA COUNTY. No. 46 July Term 1890, Sup. Ct.; court below, No. 288 December Term, 1879, C. P. No. 4. On January 3,1880, the Peoples’ Savings Bank of Pittsburgh brought covenant (subsequently amended to statutory assumpsit) against John Alexander. Issue.

4 OF PHILADELPHIA COUNTY. No. 144 July Term 1890, Sup. Ct.; court below, No. 484 December Term 1888, C. P. No. 4. On February 2, 1889, Samuel Beswick and Edward Kay, trading as Beswick & Kay, brought trespass against George C. Platt, afterwards (perhaps) amended by the statement of claim to assumpsit. Issue.

4 OF PHILADELPHIA COUNTY. No. 170 July Term 1890, Sup. Ct.; court below, No. 516 September Term 1869, Dist. Ct. On November 9, 1869, judgment was entered in favor of Wheelen Brothers against Charles L. Phillips, on a single bill, dated September 11,1869, for §3,369.82, payable one day after date.

<p>APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY.</p> <p>No. 177 July Term 1890, Sup. Ct.; court below, No. 1087 December Term 1887, C. P. No. 3.</p> <p>On February 24,1888, judgment was entered in the court below in favor of Sullivan, Harter & Co., against Charles F. Tinker, upon a single bill, with a warrant to confess judgment, for $524.72, dated February 23, 1888, and payable one day after date. Execution was at once issued upon the judgment, and the sheriff levied on the goods of the defendant subject to a prior levy in favor of Wright Bros. & Co., and on March 5, 1888, he sold the goods for $500.</p> <p>On March 17,1888, E. W. Kohl, as trustee for himself and certain other creditors of Tinker, obtained judgment against the latter for $699.39, and issued an execution thereon. On April 5, 1888, Kohl filed a petition which, after reciting the facts above stated, made the following averments:</p> <p>“That your petitioner believes, and expects to be able to prove, the following material facts, in connection with the distribution of the fund above realized, which facts are now in dispute, viz.:</p> <p>“ That the note on which judgment in the above case was entered was given by the said Charles F. Tinker, defendant, to the said Sullivan, Harker & Co., plaintiffs above named, on February 24, 1888, though dated the day before, to wit, February 23d, at the earnest solicitation of one of them, namely, John C. Sullivan, and upon representations made at and before the signing thereof by him, and in furtherance of an agreement between them, as follows :</p> <p>“That a certain judgment (C. P. No. 3 December Term 1887, No. 1033) obtained against the said Tinker by Wright Bros. & Co.,, for $31.20, on which there was a balance still due of $11.20, having come to the notice of the other creditors of the said Tinker, they would at once press him for payment, and would probably recover judgment against him and sell him out at sheriff’s sale, unless some plan should be adopted to prevent them ; that if he would give the said Sullivan, Harker & Co., the note mentioned, they would hold it as collateral security, enter up judgment on it, and use it to ‘ pull him through ’ his financial difficulties; that they would not issue execution on said judgment, but would hold it against him, so that, should other creditors threaten suit, he could convince them that it would be useless for them to sue or press him for payment, as the said Sullivan, Harker & Co. already had judgment and could at any time sell him out; after giving said note to the plaintiffs, he could refer such creditors to the said John C. Sullivan, and he would ‘satisfy’ them; and that plaintiff would not oblige the said Tinker to discharge his indebtedness to them at once.</p> <p>“ Your petitioner further avers that the said note, on which judgment has been entered as aforesaid, was given and received by the parties thereto, not bona fide, but in pursuance of the agreement aforesaid, and with the purpose and intent, on both sides, to hinder, delay and defraud the other creditors, among whom are this petitioner and his cestuis que trust, of ■their true and lawful actions, suits, debts and damages.</p> <p>“ Your petitioner further says that the defendant, to carry out and in pursuance of the above recited agreement, told various of his creditors, who called upon him to collect their debts, that there was no use in their trying to collect, as he had given a judgment note to Sullivan, Harker & Co. who were going to see him through.”</p> <p>The petitioner prayed that issues be framed to determine the material facts relating to the distribution of the fund. The court thereupon granted a rule for a feigned issue and for the payment of the fund into court, and subsequently made the rule absolute.</p> <p>The sheriff having paid the money into court, a feigned issue was framed between E. W. Kohl, as plaintiff, and Sullivan, Harker & Co., as defendants, to try:</p> <p>“ 1. Whether or not the above judgment was confessed by the said Charles F. Tinker to the said Sullivan, Harker & Co., under and in pursuance of an agreement between the said Sullivan, Harker & Co. and the said Charles F. Tinker, that the said Sullivan, Harker & Co. should not issue execution upon the said judgment, but should hold the said confessed judgment, and the said Charles F. Tinker should inform his other creditors that the said Sullivan, Harker & Co. held the said confessed judgment and would issue execution thereon, if his other said creditors pressed him for payment.</p> <p>“ 2. Whether or not the said confessed judgment was given by the said Charles F. Tinker to the said Sullivan, Harker & Co. for the purpose of hindering and delaying the creditors of the said Charles F. Tinker.”</p> <p>On January 23, 1890, a jury was called, who after trial found for the plaintiff, Kohl, on both issues ; and, on April 19, 1890, the court, on motion of Kohl’s attorney, made an order directing the payment of the fund to him.</p> <p>On May 1, 1890, Sullivan, Harker & Co. filed a petition, averring that the order of April 19, 1890, was made without notice to them, and improvidently, in that the execution of Kohl was not issued until after the sheriff’s sale which produced the fund, and therefore was not a lien thereon; that the petitioners were equitably entitled to at least a part of the fund, by reason of having paid prior liens thereon, as follows: March 6,1888, L. C. Cleeman, Esq., landlord’s claim for rent, $45.00; March 5, 1888, Richard J. Lennon, magistrate, the amount of a prior execution and costs, $80.54, and March 7, 1888, Wright Bros. & Co., the amount of a prior execution and costs, $24.17, amounting together to $99.71. Upon these averments, the petitioners prayed that the order of April 19, 1890, be revoked, etc.</p> <p>The court thereupon granted a rule to show cause why the order awarding the fund to Kohl should not be revoked, and the fund again paid into court. On June 14, 1890, this rule was discharged, the court ordering, however, that Kohl forthwith pay into court the sum of $24.17, being the amount of the debt, interest and costs due on the Wright Bros. & Co., judgment.</p> <p>Thereupon Sullivan, Harker & Co. took this appeal, specifying that the court erred:</p> <p>1. In granting the issue to determine whether the appellants’ judgment was given to hinder, delay and defraud creditors.</p> <p>2. In directing the sheriff to pay the fund in his hands into court.</p> <p>8. In directing the distribution of the fund in court to E. W. Kohl, trustee.</p> <p>4. In not directing said fund to be paid to the appellants.</p> <p>5. In not directing the appellants’ advances for the payment of prior liens to be repaid to them.</p>

<p>APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY.</p> <p>No. 393 January Term 1891, Sup. Ct.; court below, No. 812 December Term 1887, C. P. No. 2.</p> <p>On February 3, 1888, John F. Loew brought assumpsit against Charles S. Austin. Issue.</p> <p>At the trial on January 21, 1890, the plaintiff, under objection and exception to the defendant,1 put in evidence the following note;</p> <p>$400. Philadelphia, July 23, 1882.</p> <p>Six months after date we promise to pay to the order of John F. Loew, Esq., four hundred dollars, with the sloop-yacht Coquette as collateral, without defalcation for value received.</p> <p>Chas. S. Austin Yacht Club, per Chas. S. Austin, Treasurer. [Indorsed.] Chas. S. Austin.</p> <p>The plaintiff then testified as follows: “This transaction arose in this manner. It was when we first met in the club. The club talked of buying a yacht in Boston, but did not have the money. I told them that if I was properly secured, I would loan them the money. They agreed to do it. They drew up a note similar to this, with the yacht as collateral security, and Mr. Austin and Mr. Yanderslice, another member of the club, agreed to indorse the note and become personally responsible for the payment of the debt, in case the yacht was destroyed or lost. This was in the early part of 1876. I think iri May. [Notes previously given, called for, and shown witness.] Those are notes given before the one in evidence. As they bécame due they would be renewed. The interest was paid, from time to time, and on some of them no interest was paid. Mr. Yanderslice was one of the original members; he went out in 1880. He refused to be on the note any longer. Mr. Austin then said he would be alone responsible along with the yacht. He said he would be responsible in case the yacht was lost. $200 was paid on account and the note was renewed for $400, until I got the present note. I spoke to Mr Austin about the note and he said he would not renew it. It was then protested. I spoke to him several times, but he would not recognize me. On December 14, 1887, I asked him what had become of the yacht. He said he had sold it to a man by the name of Perrine, at Barnegat, for $575. I said: ‘We had better have a settlement.’ He said: ‘If you think there is any money owing to you, sue me.’ His wife came along, and he went away. I saw him several times after that ,• he said, ‘ If you think you are entitled to anything sue me for it.’ ”</p> <p>Cross-examined: “There were more than twenty members in the club. It was first called the Charles Abel Yacht Club; afterwards called the Charles S. Austin Yacht Club. It was unincorporated. Each member had a share. I was president of the club. We all had an equal interest in the property of the club outside of my money. The ground I loaned the money on, was upon being properly secured by the note and yacht. From 1876 to 1882, the note was renewed from time to time by order of the club, and interest paid. In case the yacht was lost, Mr. Austin was to be responsible. The only writing was the note itself. I don’t know when the yacht was sold. I heard of it on December 14, 1887. There was a committee appointed to get bids for the sale of the yacht. I presided at the meeting when this committee was directed to get bids. I don’t remember any meeting when Mr. Austin was directed to sell the boat, when I presided. I don’t know that I made any claim at that meeting that the money was to come to me. Mr. Austin was treasurer of the club. The club had no other property than this.”</p> <p>Other members of the club testified to the same effect.</p> <p>In rebuttal, the defendant, called in his own behalf, testified that the last meeting of the club was held April 4, 1882, when the plaintiff was present and presided; that the treasurer, the witness, was authorized to advertise the yacht for sale; that, having advertised but receiving no bids, he sold the yacht in November, 1883, for $575, and out of the money he paid $50 for having the yacht pumped and towed to the place of sale, as well as other bills due to himself and ordered to be paid by the club, to more than the amount received by him for the yacht. The receipted bills being offered in evidence, objection was made, and the offer refused; exception.2</p> <p>The case being closed on the testimony, the court, Hare, P. J., charged the jury as follows:</p> <p>[If you find that the yacht was specifically pledged and continued so, and was sold by the defendant for more than enough to pay plaintiff, the defendant must account to the plaintiff for the sum so received. The claim that the defendant has, out of the price received, paid bills of the club, and for supplies to the yacht, is no defence, and cannot be allowed as a set-off.] 3</p> <p>Defendant requests the court to charge the jury as follows: 2. The uneontradicted fact that the defendant paid bills of the club, and claims for the maintenance of the yacht, from the price received for her sale, to the full amount of said price, is a proper defence, and your verdict should be for the defendant. Answer: Refused.4</p> <p>8. The fact being undisputed that this transaction, the sale of the boat and payment of bills, occurred between partners and in the partnership business, is a proper defence, and your verdict should be for the defendant.</p> <p>Answer: Refused.5</p> <p>4. Under the law and the evidence, the verdict should be for the defendant.</p> <p>Answer: Refused.6</p> <p>—The jury returned a verdict for the plaintiff for 1569.76. A rule for a new trial having been discharged and judgment entered, the defendant took this appeal, assigning for error:</p> <p>1. The admission of the plaintiff’s offer.1</p> <p>2. The refusal of the defendant’s offer.2</p> <p>3. The portion of the charge in [ ] 3</p> <p>4-6. The answers to the defendant’s points.4 to 6</p>

<p>APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.</p> <p>No. 89 July Term 1890, Sup. Ct.; court below, No. 689 December Term 1889, C. P. No. 4.</p> <p>On February 19,1890, R. A. F. Penrose filed a bill in equity against S. F. Nixon and J. F. Zimmerman, averring, in substance, as follows:</p> <p>That in 1860 the plaintiff purchased No. 1331 Spruce street, as a permanent residence, and that portion of Spruce street in which his dwelling was situated was devoted entirely to private residences: that, about 1876, the Broad Street Theatre was erected upon the east side of Broad street, between Lo-oust and Spruce, and immediately adjoining and abutting upon the premises of the plaintiff on the north; that, in 1889, the defendants purchased the unexpired lease of the theatre ; and upon September 17, 1889, opened it to the public. That the engagements of the companies employed by the defendants terminated, in each instance, on the evening of Saturday, and everything belonging to their organizations was packed, moved out and hauled away immediately upon the conclusion of the performance, through a large doorway of the theatre, into Sycamore street.</p> <p>That for this removal, etc., the defendants employed a large number of men, horses, trucks and wagons, and from about 11 o’clock p. M., on Saturday nights, until 2 or 8 o’clock Sunday mornings, the plaintiff was annoyed and disturbed in the quiet enjoyment of his home by the shouting and calling of the employees of the defendants; that loud noises were made by carrying, dropping, loading and arranging the scenery, trunks aSnd boxes on the vehicles used for their transportation, and by the very audible and distressing sounds made by numbers of people, horses and wagons gathered together in an otherwise quiet street of the city, at a late hour of the night, and continuing during the, early hours of the following morning, and the noises were distinctly audible in the plaintiff’s bed, in which he was lying ill unable to sleep in consequence thereof. That these noises were a nuisance, and they deprived plaintiff and his family of the reasonable enjoyment, comfort and quiet of their home, and were detrimental to his health, and would ■ work irreparable damage to him.</p> <p>The bill prayed for an injunction restraining the defendants from making or causing to be made any such noise or noises as were complained of, after 10 o’clock P. M., from which any nuisance, annoyance or distress resulted to the plaintiff.</p> <p>On the hearing of a motion for a preliminary injunction, the plaintiff read the affidavits of himself, his sons, three watchmen and two physicians. These affidavits variously described the noise made on these occasions as annoying, distressing, discomforting, disturbing; averred that there were numbers of men, horses, wagons and trucks; that on one occasion there were 178 pieces of scenery and stage settings placed on Sycamore street; that there was much commotion and noise ; that the noise could be heard all around the square; that it continued until 2 o’clock Sunday morning; that the noises were injurious to the plaintiff, who was sick.</p> <p>The defendants read the affidavits of themselves, three persons living on Sycamore street, and their stage carpenter, denying that the noises were disturbing or distressing, or that they were annoyed thereby. The defendants said that it was necessary to their business for the different companies to move on Saturday nights, and that the wagons, etc., necessary for the transportation of the scenery and baggage were employed by the different companies and not by them ; that there had been only eight removals since they leased the theatre, and that after the present engagement playing therein the building would be closed until October 1st; that on but two occasions was the noise prolonged until after 2 o’clock A. M., and the injunction would work irreparable injury to them.</p> <p>After argument, the court refused the motion for a preliminary injunction, without opinion filed. Whereupon, the plaintiff took this appeal, assigning the order refusing the motion for error.</p>

2 OF PHILADELPHIA COUNTY. No. 169 July Term 1890, Sup. Ct.; court below, No. 156 March Term 1871, Old D. C. In March, 1871, William Potts recovered a judgment for $100 and costs against William Jones, in an action of trover and conversion brought before an alderman, when the defendant entered an appeal. Issue. At the trial on March 30, 1890, the plaintiff testified as follows : “ My business place was in South-Second street market, near Pine street.

2 OF PHILADELPHIA COUNTY. No. 199 July Term 1890, Sup. Ct.; court below, No. 943 March Term 1890, C. P. No. 2.

<p>(a) The sale by a guardian of his wards’ real estate, by order of the Orphans’ Court, bond being approved, was duly confirmed. On the day the deed was made to the purchaser, the latter re-conveyed to the guardian, no purchase money passing between them. Afterward, on petition showing the facts, the sale was confirmed as though by leave of court the guardian had bought as a bidder at his own sale.</p> <p>(b) Subsequently, upon a petition of the guardian averring that he still held the title to the real estate as guardian and omitting reference to the former proceedings, an alias order was made authorizing the sale of the real estate, and, the sale having been made, on bond filed, was duly confirmed. Afterwards, the title was again conveyed to the guardian in his own right, his possession remaining unchanged.</p> <p>(c) While holding the title, thus acquired in his own right the second time, the real estate, by a sheriff’s sale on a judgment sur mortgage made by the guardian when holding the title acquired at the first sale, was sold to the surety on the bond given on the second sale. By proceedings duly confirmed, an account was afterwards stated for the guardian, wherein he was charged with the proceeds of the first Orphans’ Court sale:</p> <p>1. In such case, the surety upon the first bond having paid to the wards judgments recovered in actions thereon after the confirmation of the account stated, had no right to be subrogated to the rights of the wards against the land, or to a decree for contribution against the purchaser at sheriff’s sale, as a surety on the second bond, in the absence of fraud or collusion on the part of the latter affecting the rights of the wards.</p>

4 OF PHILADELPHIA COUNTY. No. 179 July Term 1890, Sup. Ct.; court below, No. 643 December Term 1881, C. P. No. 4, On January 30, 1882, John Holden, as assignee of Catharine Finn, issued a scire facias sur mortgage against Thomas Banes and Robert C. Brodie, administrators of Susanna Banes, deceased. Judgment having been obtained, a levari facias was issued whereon the mortgaged premises were sold.

<p>1. In order that a person who has been injured by an accident may hold another responsible therefor upon the ground of negligence, there must be a causal connection between the negligence and the hurt, and such causal connection must be uninterrupted by the interposition between the negligence and the hurt of any independent human agency.</p> <p>2. A contractor for the erection of a hotel building, who uses improper material in its construction and in other respects departs from the specifioatious embodied in his contract, so that the building when completed is structurally weak and unsafe, will not be liable to a guest of the hotel for an injury caused to him by such defective construction, but occurring after the owner has taken possession.</p> <p>8. The contractor would bo responsible to his employer for any loss sustained by the latter in consequence of his failure to erect the building in conformity with the requirements of the contract; but, to one who was not a party to the contract, and between whom and himself no confidence has been exchanged, he owes no duty which will siq:>pcrt an action: Godley v. Hagerty, 20 Pa. 387; Carson v. Godley, 26 Pa. 111, distinguished.</p> <p>(ia) In an action against a contractor for negligence in the construction of a building, the court charged that the defendant departed from the specifications “glaringly and knowingly,” in a manner “ for which he could have no excuse except the desire to increase his profits,” and that the plaintiff was entitled to recover “for this gross and almost criminal negligence: ”</p> <p>4. Such intense expressions were ill-suited to a judicial charge, and might seriously interfere with a calm and impartial consideration of the facts by the jury; moreover, the instructions thus given were grounds for reversal in assuming the province of the jury, as it was for the jury to pass upon the facts from which the negligence of the defendant was to be found.</p>

<p>(a) Plaintiff entered into a contract to erect for the defendant an elevator for the hotel of the latter, agreeing that if it did not answer, according to the proposals made, he would take it out at Ms own expense, and that payment should be made when it was “ in running order satisfactory to ” the defendant:</p> <p>1. The plaintiff’s testimony, in an action to recover the price, showing that the elevator when in operation was not in running order satisfactory to the defendant, and that the latter’s objections did not arise out of mere caprice, it was not error to enter a peremptory nonsuit: Singerly v. Thayer, 108 Pa. 291.</p>

No. 214 July Term 1890, Sup. Ct.; court below, No. 1 February Term 1890, Q. S. On February 4, 1890, an order was made by the court below allowing to William R. Waldman an appeal from tbe judgment of a magistrate, convicting the appellant of a violation of the act of April 22, 1794, 3 Sm. L. 177, by performing labor on Sunday, January 26 and February 2, 1890, at his place of business in Philadelphia.

4 OF PHILADELPHIA COUNTY. No. 216 July Term 1890, Sup. Ct.; court below, No. 6 December Term 1888, C. P. No. 4. On September 17, 1888, J. H. Lane and H. W. Richardson, late partners.as J. H. Lane & Co., brought foreign attachment against Ambrose White, doing business as Ambrose White & Co., summoning the Philadelphia Insurance, Trust & Safe-Deposit Company as garnishee. The writ was returned served, as to tbe garnisbee, and nihil habet, as to the defendant.

<p>APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 8 OF PHILADELPHIA COUNTY.</p> <p>No. 54 January Term 1891, Sup. Ct.; court below, number and term not given.</p> <p>On January 28, 1885, Oscar P. Saunders, and Oscar P. Saunders executor of Sarah J. Saunders, deceased, in the right of said executor, brought debt against Howard Perkins, under the statutes of Westminster 2d (18 Edw. L, cap. 2, and 1 Rich. II. cap. 12),* to recover from the defendant the amount of a certain judgment in favor of the plaintiff and against one William Quigg.</p> <p>The plaintiff’s statement of claim averred, in substance, that Oscar P. Saunders and Sarah J. Saunders, his wife, in right of the said Sarah J. Saunders, recovered a judgment for $2,300.24, on March 8, 1883, in an action of trespass to No. 213 March Term 1880, in the Court of Common Pleas No. 3 of Philadelphia county, against William Quigg; that on March 21, 1883, the plaintiffs sued out a writ of capias ad satisfaciendum and delivered the same to the sheriff of said county, who arrested the said William Quigg thereunder, and on the same day discharged him upon the entry of bail to apply for the benefit of the insolvent laws; that on February 29, 1884, the application of Quigg for a discharge under the insolvent laws was refused, whereupon he surrendered himself to and into the county jail or prison of said county, of which the defendant Perkins was the superintendent or keeper, and that on the same day the said defendant, against the will of the plaintiffs, voluntarily suffered and permitted the said Quigg to escape from said jail and to go at largo, etc., “ whereby an action has accrued to these plaintiffs to have and demand of the said defendant the said sum of $2,300.24. Yet the said defendant, although often requested, has not paid said sum,” etc.† Issue.</p> <p>At the second trial, on February 1, 1887, the plaintiff, having put in evidence the records of the judgment and the insolvent proceedings mentioned in the statement of claim, called William Quigg, who testified in substance that the witness, after the refusal of his petition for a discharge as an insolvent, went the same day to a deputy sheriff and offered to surrender himself, but the deputy refused to receive him; that the witness, in company with one of his bondsmen and two friends, then went to the county prison, saw the defendant, Perkins, and informed him of all the facts connected with the case, presenting to one of the under-keepers the following paper, which the under-keeper then handed to the defendant:</p> <p>“ In re Insolvency of William Quigg. Common Pleas 3, March Term 1880, No. 213.</p> <p>“ Application for discharge as an insolvent.</p> <p>“ Discharge refused this day, by Judge Finletter; February 29, 1884.</p> <p>“ The above named William Quigg voluntarily surrenders himself in the above matter to the jail of the city and county of Philadelphia, this same day, February 29, 1884.</p> <p>“William Quigg.”</p> <p>Quigg testified, further, that Perkins, after talking with him, examining the paper, and consulting with some one else at the prison, refused to keep the witness, on the ground that there was no proper process upon which to detain him, whereupon the prison gate was unlocked by one of the defendant’s deputies, and the witness and his companions went away. Several other witnesses having testified in corroboration of Quigg, the plaintiff called the defendant Perkins, who testified that he was superintendent of the county prison, which was the only jail in the county, having been appointed as such by the board of prison inspectors, without bond; that the sheriff had no control over the prison except for conducting executions; that all commitments to the prison by the courts, magistrates, etc., were addressed to the witness as keeper of the county prison, and all prisoners in the jail were under his care and custody; that, when the sheriff or his deputy would bring a prisoner to the jail, the officer would retain the original writ and give to the witness an attested copy, which the witness would file away, and if the witness did not have such process he would not keep the prisoner. The defendant also testified to the same effect as Quigg, as to what occurred when the latter came to the jail on February 29, 1884.</p> <p>The testimony being closed, the plaintiff requested the court to instruct the jury:</p> <p>1. That by the uncontradicted testimony which is admitted by the defendant, William Quigg made a valid surrender to the county jail on February 29, 1884.</p> <p>Answer: Refused.1</p> <p>2. That upon such surrender William Quigg was in custody under the capias ad satisfaciendum issued out of this court as of March Term 1880, No. 213.</p> <p>Answer: Refused.3</p> <p>3. That upon such surrender it was the duty of the defendant to detain and safely keep said William Quigg, until he was discharged by due course of law.</p> <p>Answer: Refused.3</p> <p>4. That the defendant’s refusal to detain and safely keep said William Quigg, and permitting him to leave the jail, was a voluntary escape suffered by the defendant.</p> <p>Answer: Refused.4</p> <p>5. That, by reason of such voluntary escape, the defendant became liable to the plaintiff for the amount due by said William Quigg, upon the judgment under which he was arrested by said capias ad satisfaciendum.</p> <p>Answer: Refused.5</p> <p>The court then instructed the jury to find a verdict for the defendant.6</p> <p>The jury rendered a verdict for the defendant as directed. A rule for a new trial having been discharged and judgment entered, the plaintiff took this appeal, assigning for error:</p> <p>1-5. The refusal of plaintiff’s points.1 to 5</p> <p>6. The instruction to the jury to find for the defendant.6</p>

8 OF PHILADELPHIA COUNTY. No. 72 January Term 1891, Sup. Ct.; court below, No. 588 March Term 1885, C. P. No. 3, in Equity.

<p>APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY.</p> <p>No. 73 January Term 1891, Sup. Ct.; court below, No. 84 December Term 1889, C. P. No. 3.</p> <p>On November 30,1889, B. W. Blydenstein, and certain others, trading in London, England, as B. W. Blydenstein & Co., brought assumpsit against Charles F. Haseltine, filing a statement of claim to recover upon certain drafts drawn in London upon the defendant, in Philadelphia, and accepted by him, aggregating ¿£3,400 or $16,654.23. On December 14th, the defendant filed an affidavit of defence, denying liability for a portion only of the aggregate sum claimed upon grounds specifically stated, but admitting liability for the residue.</p> <p>On December 17, 1889, a rule was taken for judgment for want of a sufficient affidavit of defence. After argument thereof, the court, on January 22, 1890, ordered judgment to be entered for the plaintiffs for the amount admitted to be due, and on January 28th, judgment was so entered for $7,508.58. The plaintiffs thereupon issued a writ of fieri facias, and on January 31st, the writ was returned “ stayed,” and by order of the plaintiffs’ attorney the judgment was marked satisfied.</p> <p>On February 24, 1890, the plaintiffs entered a rule on the defendant to plead, as to the portion of the claim denied by the affidavit of defence. No plea being entered, the plaintiffs, on June 18, 1890, entered a rule for judgment for want of a plea, “ for $9,500, the difference between the amount claimed and the amount admitted.” This last rule, on October 11,1890, after argument, was discharged, without opinion filed; whereupon the plaintiffs took this appeal, assigning the discharge of said rule for error.</p>

No. 337 January Term 1890, Sup. Ct.; court below, number and term not given On June 22, 1888, the petition of R. T. Stewart, executor of the will of Elizabeth H. Stewart, was filed, praying upon the facts therein set forth for a citation upon Harry S. Walker, trustee, requiring him to file an account.

■No. 378 January Term 1890, Sup. Ct.; court below, number and term not given. On September 3, 1889, upon tbe petition of citizens of Cheltenham township, three persons were appointed viewers to lay out a public road. The report of the viewers in. favor of opening the road was filed on October 12* 1889, confirmed nisi, and the width thereof fixed. On December 2d, Geo. D. Heist filed exceptions, inter alia, as follows: 3.

FROM THE ORPHANS’ COURT OF MONTGOMERY COUNTY. No. 413 January Term 1890, Sup. Ct.; court below, number and term not given.

APPEAL BY PLAINTIFFS FROM THE ORPHANS’ COURT OF MONTGOMERY COUNTY. No. 71 July Term 1890, Sup. Ct.; court below, number and term not given.

No. 125 July Term 1890, Sup. Ct.; court below, No. 104 June Term 1888, C. P. On December 15, 1888, in proceedings for a divorce, upon the libel of Susan A. Cain against her husband.

No. 93 January Term 1891, Sup. Ct.; court below, number and term not given.

DEMPSTER FROM THE ORPHANS’ COURT OF MONTGOMERY COUNTY. No. 245 January Term 1891, Sup. Ct., court below, number and term not given.

' Nos. 141, 163 July Term 1890, Sup. Ct.; court below, No. 94 October Term 1889, from 2 Eq. D. 233, C. P. On March 31, 1887, B. Adams and James C. Hand & Co. entered judgments by confession against Daniel O. Hitner, for $4,000 and $5,500 respectively, and afterwards issued attachments in execution thereon, served upon Charles L. Hamilton, as garnishee.

THE ORPHANS’ COURT OF MONTGOMERY COUNTY. No. 153 July Term 1890, Sup. Ct.; court below, number and term not given. In the Court below, Mr. J. A. Strassburger was appointed auditor, to determine exceptions and to report a schedule of distribution of the estate of Louisa Rittenhouse, deceased.

<p>When more than two years have elapsed, after a decree of the Court of Common Pleas granting an amendment to the charter of a turnpike company, under the act oí June 4, 1879, P. L. 91, without an appeal or certiorari taken, an appeal from an order refusing to annul the former decree as improvidently made, will be quashed.</p>

<p>When the testimony, submitted on an application for an issue devisavit vel non, showed that, although the testator was an habitual drunkard, yet, when he made Ms will he was entirely sober, possessed testamentary capacity, and there was no evidence that he was subject to undue influence, it was not error to refuse an issue.</p>

BANK FROM THE ORPHANS’ COURT OF MONTGOMERY COUNTY. No. 79 January Term 1891, Sup. Ct.; court below, number and term not shown. On January 7, 1889, upon the petition of Hannah Williams, executrix of the will of Charles Williams, deceased, an order was made for the sale of certain real estate of the testator for the payment of debts.

No. 92 January Term 1891, Sup. Ct.; court below, No. 111 October Term 1890, Q. S. On October 9, 1890, the grand jury returned as a true bill an indictment charging Wharton Barker with committing and maintaining a public nuisance, to wit, tbe removal of a certain board walk, in front of his property on Wyncote Lane, in Cheltenham township. Issue.

4 OF PHILADELPHIA COUNTY. No. 228 January Term 1890, Sup. Ct.; court below, No. 350 September Term 1889, C. P. No. 4, in Equity. On October 3, 1889, service was accepted for the defendant of a bill in equity filed by E. Theresa Riegel, administratrix of the estate of Jacob Riegel, deceased, against the American Life Insurance Company.

3 OF PHILADELPHIA COUNTY. No. 90 January Term 1891, Sup. Ct.; court below, No. 514 September Term 1889, C. P. No. 3, in Equity.

<p>1. When the use oil a steam rolling machine is necessary in the lawful construction or repair of a macadamized roadway, upon a highway already open for public travel, such use is lawful, and it is not negligence per se to permit the machine to stand 011 the highway at rest, over a Sunday, when a reasonably necessary incident of such use.</p> <p>2. The provisions of § 2, act of June 30, 1885, P. L. 251, requiring persons using steam machinery upon highways to perform certain duties upon the approach, in either direction, of any one traveling in a vehicle or with a team, apply only to the operation of the machine, and do not regulate the duties of the owner when his machine is at rest, at night, or on Sunday.</p> <p>3. In the latter instances, it is the duty of the owner who lawfully leaves his machine on the highway, to place it in as favorable a location as possible, with a view to avoid accidents, locating it near one side of the road, so as to give the traveler all the space reasonably convenient to pass by; but the law does not exact impossible or unreasonable things.</p> <p>(a) A steam roller, lawfully in use, in the construction of a macadamized roadway of the width of eighteen feet, in the middle of a highway sixtvsix feet wide, was left standing over Sunday on the edge of the already macadamized part of the road, leaving a clear space of about thirty feet at one side. It was covered with canvas tied at the sides or corners, with no watchman in charge of it:</p> <p>4. As it was reasonably impracticable, to move the machine from the hard road, and the spot on which it stood was the safest one, on that section of the road, where it could be placed when not in use, its owners were not negligent in leaving it there, and were not liable for an accident occurring in broad daylight, through the fright of a horse at the sight of the machine.</p> <p>5. A traveler, who, relying upon his horse or his own ability to control it, attempts, without any other precaution than a reduction of speed, to drive past an object which he knows is well calculated to frighten the animal, cannot charge the consequences of his rashness upon others who have not participated therein nor been guilty of any neglect of duty.</p>

No. 131 July Term 1890, Sup. Ct.; court below, No. 30 October Term 1889, C. P. On June 24, 1889, Charles-B. Wethered and Edmund C. Wethered, trading as Thomas W. Wethered’s Sons, successors to Thomas W. Wethered, brought scire facias sur mechanics’ lien against William E. Garrett, Jr., owner or reputed owner, and Thomas Wynn and Alfred Henwood, trading as Wynn & Henwood, contractors.

No. 225 January Term 1891, Sup. Ct.; court below, No. 4 March Term 1888, C. P. in Equity.

No. 291 January Term 1891, Sup. Ct.; court below, No. 70 April Term 1889, C. P. On March 21, 1889, an issue was directed in a sheriff’s interpleader, wherein James B. Udderzook, the claimant of personal property levied upon as the property of Mary Udderzook, was made plaintiff, and W. S. Harris and A. C. Harris, executors of Maria Criswell and execution creditors of Mary Udderzook, were made defendants. Joinder.

No. 10 July Term 1890, Sup. Ct.; court below, No. 32 August Term 1889, C. P. On Juno 7, 1889, Davis Yearsley, L. C. Emery and H. G. Emery brought replevin against Baldwin Gray, to recover possession of a horse. The writ was returned as served and property bond given by defendant.

No. 149 July Term 1890, Sup. Ct.; court below, number and term not given.

Nos. 158, 159 July Term 1890, Sup. Ct.; court below, number and term not given. On September 16, 1889, Thomas H. Garvin and thirty-nine others presented their petition praying the court, upon the averments therein made, to set off and divide the village of Sharon Hill from the borough of Darby, and to incorporate the said village into a new borough under the name of Sharon Hill. On December 5, 1889, the court directed the petition to be submitted to the grand jury.

<p>(а) By Ms will, dictated at a time when he was seriously ill, a testator gave one half Ms property to his wife, directing “ the other half to be divided equally between Josephine Lukens and the children oí John R. Ash; in the event of the death of Josephine Lukens, her portion to go to the children of John E. Ash.”</p> <p>(б) Josephine Lukens and the mother of the Ash children had been brought up in the testator’s family, and treated by Mm as if they were his own daughters. The last sentence quoted was added to the will after the testator was informed that Josephine Lukens was also seriously ill, and not likely to recover:</p> <p>1. On the distribution of the estate of the testator, under said will, Josephine Lukens, who survived Mm, was entitled absolutely to one half the portion given to her and the children of John E. Ash, and not merely to a life-estate in an equal share thereof with said children.</p>

No. 5 January Term 1891, Sup. Ct.; court below, number and term not given. Held: a return was made on March 24, 1890, the finding reported being in part as follows : “ That, although they do not find the said Sarah Ann Reeves a lunatic, in the general acceptation of that term, they, by reason of her age, ignorance, and the feeble condition of her mind and body, deem her unfit to manage her estate judiciously, and…

No. 407 January Term 1890, Sup. Ct.; court below, No. 39 September Term 1889, Q. S. To the number and term given of the court below, the grand jury returned as a true bill an indictment charging that A. Nelson Lewis, on December 14,1887, with force and arms, etc., did- unlawfully, wantonly and cruelly shoot, wound, torture, abuse and ill-treat a certain pigeon, belonging to the said defendant and divers other persons unknown and then and there in the possession of said…

<p>APPEAL BY T. H. B. JACOBS ET AL. FROM THE ORPHANS’ COURT OF CHESTER COUNTY.</p> <p>No. 76 January Term 1891, Sup. Ct.; court below, number and term not stated.</p> <p>In the court below, Mr. H. H. Grilkyson was appointed auditor, to distribute a balance of a fund arising from personalty in the hands of John J. Kersey, executor of the will of Anna B. Jacobs, deceased, and also to make distribution of a fund arising from the sale by said executor, as trustee under appointment and order of said court, of the real estate of said testatrix.</p> <p>The auditor reported on August 1,1890, finding in substance the following facts:</p> <p>The testatrix was a maiden lady of intelligence and refinement, with a fair knowledge of business affairs, and an equally fair capacity of managing her business. On March 21, 1882, seven years before her death, she made and executed her last will and testament, wherein she bequeathed a number of pecuniary legacies, aggregating $7,700, and several specific legacies of jewelry, silver-ware, furniture, etc.; and provided, further, as follows: “The remainder and residue of my money 1 give and bequeath to the Hospital of the Protestant Episcopal Church in Philadelphia.” Some of her nearest relatives were not mentioned in the will and took nothing thereunder.</p> <p>The will made no mention of any real estate, and, at the date of its execution, the testatrix owned none, her estate then consisting of personal property only, such as bonds, mortgages, securities and cash; it was sufficient, however, to pay in full all the pecuniary legacies given by her will. On March 2, 1886, two years and eleven months before her death, she purchased for the sum of $8,400, certain real estate in the borough of West Chester, of which she died seised, and from the sale of which the real estate fund before the auditor arose. After this purchase, she made no change in her will. There was no evidence that her relations toward her heirs at law and legatees, or any of the circumstances surrounding her, were changed, and, so far as appeared, she had the same reasons thereafter for preferring her legatees to her next of kin as the objects of her bounty, that she had in 1882.</p> <p>The net proceeds of the decedent’s personal estate amounted to $4,806.97, and the real estate fund for distribution amounted to $3,031.70. The heirs at law contended that the decedent died intestate as to her real estate; that the legacies given in her will were not a charge thereon, and that the fund arising from the sale of the realty should be awarded to them, to the exclusion of the legatees.</p> <p>Citing Bender v. Dietrick, 7 W. & S. 287; Baker’s App., 115 Pa. 593; Hancock’s App., 112 Pa. 532; Crisswell v. Grumbling, 107 Pa. 408; Hofius v. Hofius, 92 Pa. 307; Linnard’s Est., 24 W. N. 492; Wiltberger’s Est., 24 W. N. 493; and distinguishing Howe’s App., 126 Pa. 233, the auditor reported as his opinion that the testatrix intended that all her estate should pass to the legatees named in her will, in preference to her next of kin, and that the will sufficiently manifested such an intent; that the word “ money,” in the residuary clause, was evidently meant to include all that she was worth, and was used in its popular sense as comprising every kind of property; that, to construe it literally, would be to over-ride her intention and destroy the whole scheme of the disposition of her property; and that the will must be construed so as to carry out her intention. The auditor, therefore, awarded the fund arising from the real estate to the legatees, reporting a schedule of distribution by which, after applying the personalty to the particular legacies and awarding payment of the remainder of said legacies out of the realty, the residue of the latter fund, amounting to $162.45, was awarded to the residuary legatee.</p> <p>Exceptions to the report of the auditor filed with and overruled by him, and afterwards renewed before the court, were dismissed after argument, Hemphill, J. Thereupon, Thomas H. B. Jacobs and others, next of kin and heirs at law of the testatrix, took this appeal, specifying that the court erred:</p> <p>2. In applying the proceeds of the real estate to the payment of legacies.</p> <p>4. In dismissing the exceptions to the auditor’s report.</p> <p>5. In not awarding the proceeds of the real estate to the decedent’s heirs at law.</p> <p>7. In admitting or considering any testimony to show the quantum of the personal estate, at the date of the will, and at the time of the decedent’s death.</p>

<p>(a) By §66, act of-March 31, 1860, P. L. 400, members, officers and agents of any corporation or public institution are forbidden to be interested “in any contract for the sale or furnishing of any supplies or materials,” to be furnished to or for the use of such corporation or institution:</p> <p>1. A contract entered into in violation of this aot is absolutely void and incapable of ratification: Milford Bor. v. Water Co., 124 Pa. 610. When a contract is prohibited by law, and its execution made a criminal offence, it needs no argument to show that it oannot be warmed into life by a ratification: Per Mr. Chief Justice Paxson.</p> <p>2. But, as the act makes no mention of a purchase of real estate and is a highly penal statute, it cannot be extended by implication beyond its precise meaning, so as to apply to a purchase, by a school board, of real estate in which one of the directors is interested as an owner; and such purchase may be ratified by a new and disinterested board.</p> <p>3. At all events, a bill in equity filed by taxpayers, pi’aying that such a purchase be declared void, cannot be sustained when the school district, which has erected a school building upon the property so purchased, and a number of the persons who were concerned in the sale as vendors, are not made parties to the proceeding.</p>

<p>(а) By an instrument styled a “lease,” the plaintiff “let and demised for use” to the defendant a printing press, at the rent or hire of $3,000, payable in monthly instalments of $100 each, “to be further evidenced by the lessee’s notes bearing legal interest.....which notes are not to be considered as payment of said instalments.” The lease stipulated further:</p> <p>(б) That if the lessee should fully perform his part of the agreement, he might purchase the press at the end of the term by paying $10 in addition to the payments for rent already made, and the lessee would thereupon give him a bill of sale for the press; but if the lessee should make default, the lessor might repossess himself of and enjoy said property “ as though these presents had never been made: ”</p> <p>1. In a suit on certain of the notes given under the agreement, the affidavit of defence averred that the plaintiff, at a date subsequent to the maturity of the notes in suit, took possession of the press in the exercise of the right to do so reserved in the lease. In such case, it was not error to refuse to enter judgment for the plaintiff for want of a sufficient affidavit of defence.</p> <p>2. The notes not being given in satisfaction of the agreement, or of the hire of the property, but the lease and the notes being part and parcel of one transaction, when the agreement was rescinded by the action of the plaintiff with like effect as though it “ had never been made” the notes fell with it for want of consideration, notwithstanding their prior maturity.</p>

<p>APPEAL BY THE PHILADELPHIA BUTCHERS’ HIDE & TALLOW ASSOCIATION FROM THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY.</p> <p>No. 307 January Term 1890, Sup. Ct.; court below, No. 57 December Term 1881, C. P. No. 2.</p> <p>On December 16, 1881, William C. Crawford and others, “for themselves and such other persons, being members of the Philadelphia Butchers’ Hide & Tallow Association, as may become parties to this bill,” filed a bill in equity against John F. Gross, John A. Houseman, Daniel Williams and others. The bill averred that two parcels of real estate, particularly described, situated in the city of Philadelphia, were held in trust by certain of the defendants, for the use and benefit of the association composed of the plaintiffs and their associates, and that the defendants were fraudulently combining and endeavoring to dispossess and deprive the plaintiffs of said premises; praying for an injunction and for general relief.</p> <p>The defendants answered the bill; and John F. Gross, John A. Houseman and Daniel Williams, the defendants who were named in the bill as trustees of the title to the properties in question, filed' a cross-bill against the plaintiffs and others, averring that the members of the Philadelphia Butchers’ Hide & Tallow Association were not all interested in the real estate described in the bill, but only certain persons who had contributed towards its purchase or were the successors of such contributors, and who were holders of certificates of stock issued for such contributions, praying that the court would decree who were the cestuis que trust under the deeds by which the properties were held, and for general relief.</p> <p>The cross-bill having been answered, and issue having been joined upon each bill, the cause was referred by the court to Mr. A. Wilson Norris, as master, who found in substance the following facts:</p> <p>In 1848 and 1849, some thirty or forty butchers of the county of Philadelphia came together, and formed an association to salt the hides of the cattle they slaughtered. This association was variously called: the Hide Association, the Beef Butchers’ Hide Association, the Philadelphia Butchers’ Hide Association, the Beef Butchers’ Hide Association of Philadelphia, the Beef Butchers’ Association, and the Beef Butchers’ Association of the city and county of Philadelphia.</p> <p>There was at that time little, if any, formality required to become a member of the association. Butchers were permitted to bring their hides and deposit them with the employees of the association, and they thereby became members. After-wards, it was necessary for the- butcher, who desired to join the association, to apply to a member who was a depositor, and still later it was required that he should apply to a member of the board of trustees, and his hides were not received unless he was recommended by said trustee. The membership was frequently changed by the withdrawal of some butchers and the admission of others. There were no conditions at that time imposed upon a member, when admitted, other than that he should deposit his hides, and subsequently to the formation of the melting association, both his hides and fat, with the association.</p> <p>The butchers, who thus associated, elected from their number a board of thirteen trustees, whom they charged with the conduct of the business. This board selected from their number a president, treasurer and secretary of the association.</p> <p>Finding that they could not renew the lease of the building in which the business of the association was carried on, the board of trustees on September 17, 1849, adopted a resolution “ on motion of Mr. Alexander, that the trustees recommend to the butchers the purchase of the building used as a salting-house, and recommend each butcher interested to subscribe each to one share bearing six per cent interest.”</p> <p>In pursuance of this plan, as appeared by the minutes of the meeting of the board of trustees of September 24, 1849, a resolution was passed “ on motion of Mr. Alexander, that Mr. John F. Gross, Mr. Henry Aykroyd, and John A. Houseman be a committee to purchase the salting-house of Mr. Lex, for the butchers that subscribe to the stock.” At the same meeting a committee was appointed to wait upon the butchers and receive subscriptions to the stock. Only a portion of those who were members of the association subscribed. It was not made incumbent on the members to subscribe, and their failure to do so in no way affected their rights as members. Nor did the subscription enlarge the rights of the subscribing members. The form of the subscription was in these words:</p> <p>“ Subscriptions to stock in the Beef Butchers’ Hide Association of Philadelphia for the purpose of raising the sum of fll,500, to be applied to the purchase of a certain lot of ground, and building thereon erected, situate on the south side of Willow street, west from Eleventh street, in which to carry on the business of the association:</p> <p>“ The subscribers, whose names are hereto affixed, agree to pay to the trustees of the Beef Butchers’ Hide Association of Philadelphia the sum of twenty-five dollars for each share of stock set opposite their respective names. The said amount to be paid in annual instalments of five dollars on each share of stock, on the first day of January in each year succeeding the date hereof, for which they are to receive from said trustees a certificate or certificates which shall express the number of shares taken, and the amount paid on each share of stock provided for.”</p> <p>The subscribers on making their first payment upon the subscription, received a certificate in the following form:</p> <p>$25. No. 62.</p> <p>The Beef Butchers’ Hide Association of Philadelphia.</p> <p>Capital..........$11,500.</p> <p>This is to certify that Daniel Houseman is entitled to five shares in the stock of the Beef Butchers’ Hide Association of Philadelphia, on which five dollars per share have been paid, subject to all payments due or to become due thereon.</p> <p>Transferable in person or by attorney, in presence of the president or secretary of the association.</p> <p>Henry Aykroyd, President, John A. Houseman, Secretary.</p> <p>At' a meeting of the association held on December 13, 1849, a resolution was adopted, directing “ that the names of J ohn F. Gross, William Keichline and John A. Houseman be inserted in the deed of trust about to be executed of the salting house,” and on February 4, 1850, said property, thereafter designated indifferently by the terms “salting house” and “ hide house,” was conveyed by Elizabeth and Anna M. Lex, the vendors, in consideration of $11,500, to Messrs. Gross, Keichline and Houseman, upon trusts declared in the deed as follows:</p> <p>“ In trust, nevertheless, to, for, and upon the several uses, intents and purposes following: that is to say, in trust to stand seised of the said hereinabove-described premises, to and for the only proper use and benefit of the association known by the name, style, and title of the Beef Butchers’ Association of the city and county of Philadelphia aforesaid, and for such person or persons as shall from time to time compose the same, and for the uses, object, and purposes, and subject to the control of the said association; and upon the further trust, upon the incorporation of the said association, to grant, convey, and assign the said described premises and every part thereof, with the appurtenances, unto the said corporation, their successors and assigns forever.”</p> <p>The deed provided further that the trustees and their survivors might execute and deliver bonds and mortgages to secure the payment of the purchase money,* or other encumbrances that might from time to time be directed by said association, and that they should have full power and authority, upon the direction of said association, to convey said property in fee-simple, free from all right, title, interest and claim whatsoever of said association or any member or members thereof.</p> <p>In 1854, the following form of certificate was issued to subscribers :</p> <p>No. 145. $300.00</p> <p>This is to certify that Daniel Houseman has contributed the sum of $300 toward the purchase by the undersigned, as trustees for the association known by the name, style, and title of the Beef Butchers’ Association of the city and county of Philadelphia, of the lot and buildings on the south side of James street,.....for which sum we agree to pay interest at the rate of six per cent per annum out of the rents and income of the said property.</p> <p>Wm. Keichline, John F. Gross, Jno. A. Houseman, Trustees.</p> <p>Philadelphia, 4th mo. 1, 1854.</p> <p>It was manifest, the auditor found, that this was the certificate which was issued when the subscribers to the purchase of the salting house had paid up all their instalments, as a substitute for the certificates previously issued to them.</p> <p>The business of salting the hides proving profitable, the butchers of the association decided they would form another association for the purpose of rendering the fat of the cattle they killed. Into this association they received mutton butch-, ers, but the association was in the main composed of the beef butchers who comprised the original association for salting hides.</p> <p>This association, likewise, had various names, being indiscriminately called the Fat Association, the Melting Association, the Beef & Mutton Butchers’ Tallow Association, the Beef & Mutton Butchers’ Melting Association of Philadelphia, the Beef & Mutton Butchers’ Tallow Association of the City and County of Philadelphia.</p> <p>This new association had also a board of trustees which was constituted of the same persons as were in the board of the hide association, except that the board of the melting association contained two mutton butchers. This board, also, elected its own president, treasurer, and secretary.</p> <p>The same men acted for both associations, but in a separate capacity for each institution. The business and accounts of the two associations were kept separate, so as to show the interest of each member therein.</p> <p>For the purpose of its business said association also purchased a building, which was thereafter called the “ melting-house ” or the “ fat-house.”*</p> <p>At the commencement of the business of rendering fat, the sum of $6,175 had been raised by subscription among the members of the association. Of this amount $3,000 were paid in cash on account of the purchase money, and the balance, $9,000, in a mortgage. The remainder of the $6,175 was invested in fixtures, and in the expenses necessary to begin the business of the melting association.</p> <p>To the subscribers of this fund of $6,175, a certificate was given in the following form:</p> <p>$20. No. 12.</p> <p>B eef & Mutton Butchers’ Melting Association op Philadelphia.</p> <p>This is to certify that Mr. John Alexander has paid for two shares of stock of the Beef & Mutton Butchers’ Melting Association of Philadelphia, at ten dollars per share (twenty dollars), and on which the holder hereof is entitled to demand and receive six per cent interest, payable annually on the first Monday of April in each year.</p> <p>Dated February 17,1851.</p> <p>William Keichline, President.</p> <p>James A. Gowie, Secretary.</p> <p>[Not transferable to any person or persons except to a beef or mutton butcher.]</p> <p>The above balance of $3,175 was paid into the association in 1853, and had been carried in the treasury ever since.</p> <p>The hide association and the melting association subsequently merged or consolidated and became what is now known as the Philadelphia Butchers’ Hide and Tallow Association. One board of trustees, and a president, treasurer, and secretary, annually elected by this board of trustees, have since conducted the combined business, the board thereafter consisting of fifteen members, five of whom were elected every year. The board of trustees, thus annually elected, and the officers chosen by them, have been ever since in possession of the property and in charge of the business.</p> <p>In 1862 and thereafter, certificates in the following form were given to those who held the scrip or stock :</p> <p>No.— -Shares.</p> <p>The Philadelphia Hide & Tallow Association.</p> <p>This certifies That is entitled to shares in the</p> <p>real estate of the hide-house property of the Philadelphia Hide & Tallow Association, at twenty-five dollars per share amounting to dollars, transferable in person or by attorney on</p> <p>the books of the association.</p> <p>Witness the signatures of the president and secretary at Philadelphia,</p> <p>A. D.186</p> <p>Secretary. President.</p> <p>Precisely similar certificates were issued to those who held stock in the fat-house, with the exception that instead, of the words, “ shares in the real estate of the hide-house property ” they read, “ shares of real estate of the fat-house property.”</p> <p>These certificates were evidently made to be signed by the president and secretary of the Philadelphia Hide & Tallow Association. They were, however, variously signed; some of them by the president and secretary, some by the president and treasurer, some by the trustees, etc.</p> <p>The association continued to pay interest each year to certificate holders. The rate of interest varied, more than six per cent being paid a part of the time.</p> <p>An agreement establishing rules and regulations for the government of the consolidated association was adopted, which all members, old and new, were required to sign. By § 1, article xv., certain admission charges were imposed on all persons becoming members after January 1,1877, and § 2 provided as follows:</p> <p>“ § 2. The funds raised under § 1 of this article shall be held for the purpose of making improvements and extensions to our places of business, and for providing permanent fixtures and implements not properly coming under the head of current expenses for carrying on the business.”</p> <p>The contributions for the purchase of the hide-house and the fat-house were paid directly into the treasury of these respective associations. The payments on account of the purchase-money were made by the officers of these associations. The mortgages, which were made in part payment of the purchase-money, were executed by the trustees designated by the board of trustees of these respective associations. All the improvements were made under the direction of the board of trustees of the hide or fat departments, and out of the funds of these associations. The sum of $3,175 was taken out of the fat-house funds for fixtures, when the building for that association was purchased. The funds for improvements were taken out of the dividends of the depositors. From the admission fund, after the year 1877, very extensive and valuable improvements were made for the purpose of rendering oil, and these improvements were of a permanent character. An engine-house was built; the whole building was strengthened for the reception of the machinery, and a culvert was constructed. A portion of this admission fund, which was received in the hide-house, was used in the improvement of the fat-house property. The money for the improvement of the fat-house was also taken from the admission fund of the sheep butchers, although they had no interest in the rendering of oil. The improvements to the fat-house aggregated $14,000, and the fixtures $8,000 additional. The repairs to the buildings were also made by the association out of its funds. The taxes were also paid in the same way out of the same funds. So also the interest on the mortgages and the interest due on the certificates. In no way was it shown that any other association or any officer other than one of the association ever paid for improvements, fixtures, taxes, insurance, repairs, or interest, or, if there was, it was by some one acting for an officer of tbe association. There did not seem to have been any difference in tbe form of subscriptions or tbe certificates, and the money so raised was applied without any distinction to the purchase of the building or the procurement of fixtures. In a like manner, the money raised by .admission fees was also applied indiscriminately to tlie improvement of either building irrespective of tlie fund out of which, it came.</p> <p>There was some evidence that meetings of the stockholders were held, but no minutes or books of any stockholders’ organization, such as were alleged to have existed, were produced. Tliat the beef butchers’ association named in the deed of trust was an association of stockholders, was nowhere sliown by tbe evidence other than by the statements of witnesses tbat they understood and believed tbat the stockholders were tlie owners of the property, and that it was intended that the property should be held by tbe trustees in the deed for the benefit of those who lield the stock. On the contrary, the evidence of complainants’ witnesses was just as positive that the properties were always considered to be owned by the association, and tbat they never had any claim to tlie real estate by virtue of their stock; that tbe properties were bought for the association, and that they never thought they had any ownership or control over the real estate by reason of their stock, other than that possessed by any other member of tbe association who was not a stockholder. Members sold and re-purchased the stock, and did not think their rights in any way affected thereby. With most of tbe subscribers tbe money was not paid at the time of the subscription, but was taken out of their dividends running over a period of several years. The certificates that were issued were printed and issued by officers of the association for salting hides or rendering fat.</p> <p>Upon the facts found by him, the master reported his opinion in part as follows:</p> <p>The defendants in the original bill and the complainants in the cross-bill, contended that the Beef Butchers’ Association and the Beef & Mutton Butchers’ Tallow Association, named in the deeds of trust for the hide-house and fat-house respectively, are not the same associations as the Beef Butchers’ Hide Association and the Beef & Mutton Butchers’ Tallow Association, but entirely different associations, composed only of those who are stockholders: that these stockholders are either the original subscribers or the successors of those who originally subscribed to the purchase of the buildings in use by the hide and fat associations; that the persons who thus subscribed purchased said properties and are the owners of them; that the trustees named in the deeds were the trustees for said purchasers; that it was never contemplated nor intended that those who were simply depositors in either the hide- or fat-house should participate in the benefits arising from these purchases; that said depositors were merely the lessees of said purchasers and had agreed to pay the amount of interest named in the- certificates of stock held by said purchasers, together with the insurance, taxes, repairs, etc., upon said properties, as the rental for the same; that the certificates which said stockholders held defined the character and extent of the holder’s interest in said real estate, it being distinctly set forth therein that the holder was entitled to so many shares in the real estate of the hide- and fat-house property; that the stockholders were a separate association and were considered and treated as the owners of the real estate, and that this association of stockholders was the association called the Beef Butchers’ Association in the hide-house deed, and the Beef & Mutton Butchers’ Tallow Association in the fat-house deed, and are the cestuis que trust intended by said deeds.....</p> <p>It cannot be successfully contended that the identity of a distinct association from the depositors’ association is shown by the fact that the name in the deed differs from the name of the latter association, for so many different names were used that it is impossible to conclude which was the exact name of the depositors’ association. The different names in the certificates, the various names by which it was called by the members, all go to establish the fact that it had no uniform title, and that the name in the deed, the Beef Butchers’ Association of the City and County of Philadelphia, was as likely to be adopted as any of the other numerous names by which the association was known. Before we are precluded from assuming that this was its name, should it not be shown that there was another and different association, which was known by this name and which had a recognized existence ?</p> <p>There wa.s no evidence to sustain the allegation that the stockholders had regular meetings and had a separate entity as an association, other than the statements of witnesses that they were present at such meetings; and their recollections of them were vague, and certainly not of a character to justify a master in concluding that the stockholders were the identical association intended by solemn instruments of writing like the deeds of trust in this case. If these stockholders had a separate association which consisted only of those who had stock, and they considered themselves the owners of the real estate in dispute, is it reasonable to suppose they would not have some documentary evidence of their existence and their acts? If such a separate association existed, is it not to be presumed it had books and accounts and continuous memoranda that would have contained some evidence of their ownership of the property? Nor is there any evidence that such an association had any officers to look after and watch over their interests. It is probable there were times when those members of the association who held this stock may have met to consider some questions affecting their interests, but certainly if they owned these properties in question they have left no record to show any of the indicia of ownership, and none of their acts indicate that they assumed to control the properties or dictate the uses to be made of them. There is no contemporaneous evidence of any character to show that it was in the contemplation of any one that these deeds were to be made to the use of those who contributed to the purchase, and were to be for the benefit of those who held the stock. Every act leading up to the purchase, and every act following in the improvement and care of the properties to the present day, has been the act of the association, through its properly accredited officers; and, after thirty years of uninterrupted possession and the expenditure of large sums of money in improvements and repairs, the stockholders who appear to have no existence, except by virtue of the certificates they hold, now claim they are the owners of the real estate and are entitled to take possession of it, and that they are the cestuis que trust named in the deeds.</p> <p>Permanent improvements, in the nature of fixtures and extensions to the buildings, have been paid for with funds realized by taking the amount pro rata from the dividends of the depositors. Are the permanent benefits to the real estate thus made to go to the stockholders? Can it be argued that the depositors would thus permit their money to be taken for the improvement of the real estate of the stockholders, with no provision for reimbursement and with no recognized or existing organization or association that could provide for such reimbursement? If the stockholders were considered and treated as the owners of the real estate, is it reasonable to suppose that the depositors, year after year, would allow money to be deducted from their dividends, not only to pay the purchase money for the real estate, but to continuously put permanent improvements thereon?</p> <p>' Under article xv. of the agreement, to be found in the history of the case, it will be seen certain admission charges were imposed upon every new member, and the funds thus raised were to be held for the purpose of making improvements and extensions to the places of business, and for providing permanent fixtures and improvements not properly coming under the head of current expenses for carrying on the business.</p> <p>"Does not this article of the agreement, which was adopted by the depositors, many of whom were stockholders, and which was handed to every new member, and which he was required to sign before he became a member, preclude any other conclusion than that the depositors’ association was the owner of the real estate ? The old and the new members, when they signed that agreement, certainly did not think they were becoming parties to a contract to improve and provide permanent fixtures to the real estate of the stockholders. If there had been any previous 'doubt about the ownership of the real estate, this agreement, made in 1877, to which the depositors and stockholders were parties, and wherein the depositors’ association asserted its ownership of tlie real estate and made provision for its permanent improvement, ought to conclude the parties thereto and estop them from setting up a claim of ownership in conflict with that which is in this agreement so distinctly affirmed.</p> <p>It is true, a number of the witnesses of the complainants testify that the stockholders were regarded as the owners, and were so considered and treated; but a number of the witnesses of defendants just as positively declare that the association was considered the owner, and that no question as to the ownership had ever been raised until this controversy arose. A master certainly would not have any warrant for determining who were the cestuis que trust in these deeds, if he was to rest his decision on this parol testimony, which is the mere opinion of both parties, who are equally positive that they are right. For thirty years no controversy arose in regard to the ownership. During all this time the depositors’ association was in the use and enjoyment of the properties, making such changes therein as would adapt them to its business, expending large amounts of money upon improvements and repairs, exercising all the acts of an owner; and in all these years there are but two or three transactions which may be regarded as the exercise of such a right upon the part of the stockholders.</p> <p>The master cannot find any evidence to show that when the property was purchased an association was then formed, composed exclusively of stockholders; and there is no room whatever for the contention that at that time all the depositors were subscribers, and therefore the acts of the depositors’ association were the acts of the stockholders, for not even a majority of the depositors were subscribers to the fund to purchase the property. All the acts of the members and the records contemporaneous with the purchase, point to the transaction as one intended to be for the benefit of those engaged in the salting of hides. The motive for the purchase was to provide a permanent place for their business, which it had been demonstrated was profitable. When, therefore, they could no longer rent the building, they determined to buy, and their authorized officers proceeded to negotiate and purchase. And so earnest were they in their purpose that they deliberated over the advisability of becoming incorporated, so as to place their rapidly growing business on a permanent basis. When, likewise, they came to make the trust, they declared that it should .he for the benefit, not only of the then existing association, but of those who should from time to time compose the same, not only for them, but also in case of their incorporation, then in trust for such incorporated association. Thus, the business association incorporated was contemplated, and it is therefore clear that this association, whether incorporated or unincorporated, was intended. All these acts and declarations are consistent with the purchase for the depositors5 association, and to provide for those who were to become members thereafter; but there is in them all not a word or act to show that these transactions were the preliminary moves in the formation of an association of butchers to hold real estate to rent to the depositors’ association.....</p> <p>In the opinion of the master the certificates themselves establish the claim of the business association to the property. The first certificate issued in 1851 by the Beef Butchers’ Hide Association of Philadelphia, states that the capital is $11,500, the exact amount paid for the property. This certificate is signed by Henry Aykroyd, as president, and John A. Houseman, as secretary, those gentlemen being at that time respectively the president and secretary of the depositors’ association. Nothing whatever is here said about shares in the real estate, but it is simply a certificate of shares of stock in the Beef Butchers’ Hide Association of Philadelphia. This, it must be conceded, was issued by the business association, and over the signatures of its president and secretary. The recital therein of the amount of capital, viz., $11,500, would seem to imply that the association intended that the property should be a security for the payment of the amount of the certificate. No stipulation for interest is contained in this certificate, as by its terms it appears to be an instalment certificate, and the payment of interest was doubtless reserved until the full amount was paid in. This appears more clearly when we look at the certificate of the Beef & Mutton Butchers’ Melting Association, where the full amount is paid when the shares are taken, and which, in like manner, recites that it is for shares in the stock of said association, but stipulates that six per cent interest is payable thereon annually on the first Monday of April in each year. This certificate is signed by William Keichline, the president, and James A. Growie, the secretary, respectively, of said association. There is certainly nothing in either of these certificates to indicate that the holders thereof were the owners of the real estate. It might with propriety be argued that by the stock of the association was meant the real estate, and that the association intended that the property should be held as securitj’for the debt; but surely no broader inference could be drawn from the terms of the certificates, and even that might be said to be strained.</p> <p>The certificate of 1854 was in the name of the Beef Butchers’ Association of the city and county of Philadelphia. It certifies that the person named therein has contributed a certain amount towards the purchase by the undersigned for the above-named association of the property described, which was the hide-house, for which they agreed to pay six per cent per annum out of the rents and income of the said property. This was signed by the then trustees in the deed. It is manifest that this was the certificate which was issued when the subscribers to the purchase of the hide-house had paid up all their instalments. It was contended that the certificate was evidence of a distinct association from the one for salting hides; that the name therein was the name in the deed of trust, and that the trustees who signed the same were the trustees named in the deed, and therefore it was not the certificate of the business association. It is evident, however, that the trustees did not in their individual capacity undertake to pay, but for the association, and the question again occurs, what association ? Manifestly, the business association ; for Mr. Bonsall, the assistant secretary of the association, in speaking of this certificate, testified that it was a certificate for the whole amount of the holder’s subscription, but that there were other certificates, issued after this, intended to supersede all that had been issued before, which defined the character of the subscriptions particularly; that these last certificates were what was called the regular certificates of stock; that there was some little difference in the signing of them, but the very last was signed, by the president and secretary of the Philadelphia Hide & Tallow Association; that the holders of the other certificates were to surrender them and they were to be canceled, and in lieu thereof a certificate was issued signed by the president and secretary of the association. Now, these last certificates, as will have been observed, certified that the holder was entitled to so many shares in the real estate of the hide- or fat-house property, accordingly as the previous certificates had been issued by either the hide or tallow association. The manifest intent of these certificates was to call in all the certificates and to issue in their stead, as Mr. Bonsall says, other certificates which would define more particularly the character of the subscriptions, and this was doubtless the purpose when the words “ shares in the real estate of the hide-house or fat-house property” were inserted; not to declare that the holder was entitled to so much of the real estate, but that the amount of money which he contributed was secured by the one or the other of the properties to the amount of his subscription ; not that he was a part owner of that particular real estate, but that said real estate was bound for the payment of the amount he had contributed.....</p> <p>—The master, accordingly, recommended a decree as follows: That the Beef Butchers’ Association and the Beef & Mutton Butchers’ Tallow Association were unincorporated associations, and were united together as the Philadelphia Butchers’ Hide & Tallow Association, and that the trustees in the deeds for tire respective properties referred to in the bill, hold the same in trust for the said Philadelphia Butchers’ Hide & Tallow Association; and that the defendants, other than the trustees in the deeds, be enjoined and restrained perpetually from delivering possession of said properties to any person or persons, and from doing any act or acts in regard to the same to the prejudice of complainants and their associates, members of such association, and for carrying into effect the resolution of the board of trustees of December 14,1881; and that the said trustees in the said deeds for said properties be perpetually enjoined and restrained from disturbing the complainants and their associates, members of said association, in the use and enjoyment, possession and occupation of said properties,' and from selling, assigning, transferring, and conveying said properties, or from encumbering tlie same; and tliat tlie defendant, other than the trustees under the deeds, do pay the costs, including tlie master’s fee.</p> <p>Exceptions to the report of the master, filed with and overruled by him and afterwards renewed before the court, were sustained in the following opinion, Hake, P. J.:</p> <p>This case arises out of a bill filed by the complainants and a cross-bill by the defendants, who became actors to vindicate their rights. The inquiry is, which of the contending parties are equitably entitled to certain buildings that have been occupied for many years by unincorporated societies, known, among other names, as the Beef Butchers’ Hide Association of Philadelphia, and the Beef & Mutton Melting Association. The question may' appear a simple one; but the answer to it depends upon conflicting testimony, and a story which is so perplexing that but for the written evidence it would be difficult to arrive at a conclusion.</p> <p>In the year 1849, some forty beef butchers, finding that the hides of the animals which they slaughtered could not advantageously be disposed of while raw, determined to have them cured in a building to be rented for that purpose. A suitable house was accordingly found, the hides salted and sold, and the income distributed among tlie members of the association in proportion to the number of the hides which each of them had contributed.</p> <p>The affairs of the association were managed and the business carried on by a board consisting of a president, secretary, treasurer, and ten others, who directly or through agents salted and sold the hides and accounted for the proceeds. The plan worked well and smoothly; and, had things remained on this basis, the parties would have escaped a tedious and costly litigation. Unfortunately, the owner of the premises refused to renew the lease, and it became necessary to remove, or buy. He agreed to accept $11,500; $3,000 in cash and the rest to remain on mortgage. The managers of the association met, and, on motion of Mr. Alexander, John E. Gross, Henry Aykroyd, and J. A. Houseman were appointed a committee “ to purchase the salting-house of Mr. Lex for the butchers who subscribed to the stock.” The members of the association were called on for subscriptions, and, seventeen having responded, the requisite amount was raised, handed over to the vendor, and the property conveyed by him to three persons, in trust for the only proper use and benefit of the association known by the name of the Beef Butchers’ Association, and “for such persons as shall from time to time compose the same,” and “ for the uses and purposes, and subject to the control of the association; ” and upon the further trust, “ on the incorporation of the said association, to grant and convey the said described premises unto the said corporation, their successors and assignors.” It seems proper to observe that two of the three persons, named in the above conveyance as trustees, were members of the committee appointed to buy for the butchers who subscribed, and the instrument presumably was drawn and should be interpreted in accordance with the instructions then received.</p> <p>The contributors for the purchase of the hide-house entered into the following written agreement, showing their intention and the use to which the money was to be put: [The court here quoted the form of the subscription paper, as given on page 299, supra.]</p> <p>Certificates were issued to the subscribers, in conformity to the above agreement, setting forth the sums which each had contributed, and the • shares to which they were respectively entitled. They are in the following form: [Quoting the certificate given above, page 300.]</p> <p>These instruments, the agreement under which the money was subscribed, the purchase of the hide-house with the amount so raised, and the deed of trust, are the controlling features. Viewed together, they form a consistent whole, and show that the case is not an exception to the general rule, that he who pays should be deemed the purchaser, unless the contrary is apparent. This is a natural inference, which courts of equity have raised to a presumption that may control the effect of deeds and other formally drawn instruments.</p> <p>Agreeably to the deed of trust, the premises were to be held for the use of the Beef Butchers’ Association, and, when they obtained a charter, to be conveyed to the resulting body corporate. This language might seem sufficiently plain, but, in applying it to the facts, we are met by the question which arises where an attempt is made to identify the persons designated individually or collectively in a written instrument.</p> <p>The answer is not always clear, where a gift is made to a man by name, or to a body corporate under the appellation conferred by its charter, but the uncertainty cannot well be greater than where, as in the present instance, the beneficiary is an unincorporated association, known by no established title, and having half a dozen aliases. Had no change occurred, the entire association, as originally constituted, might reasonably have been regarded as answering to the terms of the deed of trust, for, although passing under various appellations, the difference was not great; but the purchase of the hide-house gave birth to a new relation among the subscribers, who, although concerned like the other members in curing hides, had yet a specific interest in the buildings which had been bought with their funds.</p> <p>Relying on a resolution that the purchase would be made for them, they contributed a large sum of money, which no one was personally bound to repay. The property was the •only source to which they could look for reimbursement, and as they would be losers if it proved inadequate, so they might naturally expect to reap the benefit if it rose in value. Such was not, however, their only, or even a principal object. The purchase was made with a view to salting and curing the hides of the animals that they slaughtered. This was the motive which actuated them in the first instance, and they would not have consented to any arrangement tending to a different result. Had the papers been so drawn as to render them legally or equitably tenants in common, any one of their number might have instituted proceedings in partition that would have resulted in a sale and frustrated the purpose which they wished to promote. It was therefore determined to treat the buildings as so much capital, and allot the shares in the ratio of the sums contributed. Stock is a broad term, which may cover chattels, money, or land, and the owners of the stock would own the land, but without power to compel a partition or divert it from the use for which it was bought, unless a majority concurred.</p> <p>It results from what has been said that, at the period when the deed of trust was executed, there were two associations, each composed of butchers, and both interested in curing hides, but differing in this respect, that one contained only such of the members of the other as were willing and able to supply the amount requisite for the purchase of the building where the business was carried on. As between two bodies thus situated, we should obviously incline to that which furnished the purchase money, and for whose use the committee who conducted the negotiations were instructed to buy.</p> <p>The question after all is mainly verbal, what name shall be given to the subject of an undisputed right ? For if the term, “Beef Butchers’ Association of the City and County of Philadelphia,” in the deed of trust, included the depositors as well as the subscribers, the members might still determine who should hold the stock, and, as certificates were only issued to the subscribers, they would own the assets, whether real or personal. Such a result was inevitable, as well as just, because the capital of the association consisted of the land and buildings which had been bought with the subscribers’ money, and they would not have contributed on any other terms.</p> <p>There is another consideration of equal weight. The persons equitably entitled, under the deed of trust, were confessedly those who, had a charter been obtained, would have held under it, and could have required the trustees to convey. Tried by this test there can be no doubt as to the reply. The subscribers held the entire capital, and were to form the proposed corporation. Had they been chartered, no one could have disputed their claim, and it would have been the duty of the trustees to execute a deed.</p> <p>It has been contended that since the agreement between the subscribers, and the certificates which they received, speak of shares of stock, and treat the annual compensation for the use of the hide-house as interest, and not as rent, they cannot be viewed as conferring a right or title to land. This argument overlooks the fact that real estate bought by an unincorporated association, for the purposes of their trade, may be treated as capital stock, and even converted into personal property, as between the owners, if the change is convenient and will promote any beneficial object. Such a conversion does not affect the nature of the property, and merely varies the relations of the parties inter se. The amount falling due annually for the occupation of the buildings might well be distributed as dividends or interest, without ceasing to be payable and collected as rent. There were two objects, one to establish the right of the contributors as owners, the other to define their relations among themselves; and, as the share of each depended on the sum which he had paid, the simplest way was to issue certificates of stock.</p> <p>The success of the hide association led the members to unite with the mutton butchers of Philadelphia in a similar undertaking for disposing of the fat of the sheep and oxen which they turned into beef and mutton. This society, like its prototype, raised money by subscription for the purchase of a building to be held for the use of the Beef & Mutton Butchers’ Tallow Association and conveyed to them when incorporated, and the contributors received certificates which were nearly in the same form as those issued by the hide association. Both companies soon afterward were fused into one, known as the Hide & Tallow Association, and brought under the control of the same officers and board.</p> <p>■ In the year 1862 the certificates previously given were surrendered and others issued in these words : [Quoting the form of certificate given on page 803, supra.]</p> <p>Like certificates were issued to those who held stock in the fat-house, with the exception that instead of the words “ shares in the real estate of the hide-house property,” they read, “shares in the real estate of the fat-house property.” The change was formal rather than real, because, as I have already intimated, the association had no capital except the buildings, but it was probably designed to remove all doubt that the holders of the certificates were specifically interested in the real estate which had been bought with their funds.</p> <p>In estimating the weight due to these instruments, it must be remembered that they came from persons who were familiar - with the transactions from the outset, and acting for the members of the Hide & Tallow Association who had not, as well as for those who had, supplied the funds. No objection seems to have been made by any of the parties interested; and if the officers and trustees of the association had no authority to vary the relations created by the deed of trust, all that they said and did with the assent of the persons interested, should be taken into view in determining what those relations were.</p> <p>The transactions which I have outlined were such as might have been expected from the circumstances and the relative position of the parties. The associations originally formed were so loose as hardly to deserve the name. Every man following the trade of a butcher might become a member on depositing a few pounds of hides or fat, and withdraw at the end of the year or sooner, as freely as he came. There was no capital, and nothing to which the members could lay claim, except the proceeds of the stuff which they had brought to be cured or melted. The purchase of the hide-house worked no change, except that the subscribers took the place of the landlord while remaining, like the other members, tenants. So long as they had hides or fat to be prepared for market, and the rent was paid.out of the proceeds, it was their interest not to eject the depositors, or take any step that would hinder the prosecution of the business which was carried on for the common good. Such was the relation of the parties for more than thirty years, and the long-continued occupancy of the buildings tended to beget the idea that the depositors were the owners, whether they had or had not paid any part of the purchase-money; and, when the subscribers finally asserted their right, it was treated as doubtful or unfounded, and the case brought into court.</p> <p>The exceptions to the master’s report are sustained, and the holders of the certificates declared to be equitably entitled to the lands and building referred to in the pleadings.</p> <p>A formal decree having been entered in accordance with the foregoing opinion, the Philadelphia Butchers’ Hide & Tallow Association took this appeal, specifying inter alia that the court erred:</p> <p>1. In reversing the master and entering the final decree.</p> <p>2. In not entering, as the final decree, the one reported by the master.</p>

<p>APPEAL BY M. A. KNOWLES ET AL. EROM THE COURT OE COMMON PLEAS NO. 4 OE PHILADELPHIA COUNTY.</p> <p>No. 18 July Term 1890, Sup. Ct.; court below, No. 176 June Term 1889, C. P. No. 4.</p> <p>On May 20,1889, Annie G. Graham and others, as heirs at law of Rebecca M. Clark, brought assumpsit for a ground-rent against Hosmer B. Parsons, filing a statement of claim containing, in substance, the following averments:</p> <p>Patrick Lafferty, being the owner in fee of a certain lot of ground in the twenty-sixth ward, Philadelphia, conveyed the same by a deed dated December 5,1872, to Michael Convery, reserving a yearly ground-rent of $37.50, payable in equal half-yearly instalments. By deed dated December 10, 1873, Patrick Lafferty assigned and conveyed said ground-rent to Rebecca M. Clark, who died seised thereof on February 6,1887, leaving a will dated January 2,1847, duly admitted to probate, in the following words :</p> <p>“ First: It is my will that all my funeral expenses and all my just debts be paid.</p> <p>“ All my estate, both real and personal, that I shall inherit as my portion after my father’s death, I give and bequeath to my beloved cousins, Dr. William Gray Knowles and his wife Martha Ann Knowles, their heirs George Gray Knowles, Mary Warfield Knowles, Gustavus Warfield Knowles and Louisa Victoria Knowles, their heirs and assigns forever.</p> <p>“ I hereby nominate and appoint Dr. William Gray Knowles Executor, hereby revoking all wills heretofore by me made.”</p> <p>The statement of claim then averred that, by the terms of said will, Rebecca M. Clark died intestate as to all her estate except that part thereof inherited by her as her portion after her father’s death, and that the estate undisposed of by her will, including said ground-rent, passed to the plaintiffs as her heirs at law; traced the title to the lot of ground aforesaid from Michael Convery, the grantee in the deed creating said ground-rent, to the defendant Parsons, and stated the demand of the plaintiffs to be for $18.75, six months ground-rent, due July 1, 1888, and $18.75 ground-rent for six months, due January 1, 1889, together with interest on each of said sums from the respective dates mentioned.</p> <p>The rent sued for having been claimed by William G. Knowles and Martha A. Knowles his wife, it was agreed by all parties, by a writing filed July 11, 1889, that the defendant Parsons should pay into court the sum of $37.50 in discharge of his liability in this suit, and that said William G. Knowles and wife should appear, and the plaintiffs should interplead with them to determine the ownership of said rent. The original defendant having paid $37.50 into court, William G. Knowles and Martha A. Knowles appeared and filed an affidavit of defence, setting forth that they claimed the ground-rents in question as devisees of Rebecca M. Clark, under circumstances averred in the affidavit as follows:</p> <p>“Sarah L. M. Clark died about the year 1840, intestate, seised of a tract of land of which the premises in question are a part. She left surviving her her husband, Lewis Clark, and six children, of whom Rebecca M. Clark was one, whereby one sixth of the said real estate vested in the said Rebecca M. Clark, subject to the tenancy by the curtesy of the said Lewis Clark.</p> <p>“ The said Lewis Clark died testate in the year 1868, leaving real and personal property, under which will the said Rebecca M. Clark took nothing.....</p> <p>“ In 1869 the children of Sarah L. M. Clark, by mutual deeds of partition, divided a portion of the real estate which had descended to them from their mother; and a large lot of ground, from a portion of which the ground-rent in question was subsequently reserved, was inter alia allotted as the share and portion of said Rebecca M. Clark.</p> <p>“ On December 4,1872, for the purpose of getting the ground improved, the said Rebecca M. Clark conveyed this large lot of ground to Patrick Lafferty in fee-simple, and reserved thereout a yearly ground-rent of $601.80, which ground-rent she extinguished by deed to said Patrick Lafferty on December 15,1878, in consideration of the assignment to her on December 10,1873, of a number of smaller ground-rents issuing out of parts of the said large lot of ground, and including the ground-rent in question, she having originally agreed to accept these smaller improved ground-rents and to extinguish the said paramount ground-rent of $601.80.”</p> <p>The affidavit then averred the death of Rebecca M. Clark, set out a copy of her will identical with the copy thereof given in the plaintiffs’ statement of claim, and denied that she died intestate as to said ground-rent.</p> <p>A rule for judgment for want of a sufficient affidavit of defence having been made absolute, without opinion filed, Martha Ann Knowles and others, substituted as defendants in the place of William G. Knowles who died pending the rule, took this appeal, specifying that the court erred:</p> <p>1. In entering judgment for the plaintiffs.</p>

2 OF PHILADELPHIA COUNTY. No. 42 July Term 1890, Sup. Ct.; court below, No. 527 March Term 1888, C. P. No. 2. On February 1, 1889, a scire facias was issued at the suit of John Crouse and Elizabeth Schwartz, trading as Crouse & Schwartz, to revive against Daniel Murphy, defendant, and Charles Roggenmoser, terre-tenant, a judgment for $1,000, entered on April 27, 1888, in favor of the plaintiff and against said Daniel Murphy.

SMITH, ADMR., FROM THE ORPHANS’ COURT OF PHILADELPHIA COUNTY. No. 94 July Term 1890, Sup. Ct.; court below, No. 418 October Term 1884, O. C. On June 15, 1889, Alfred Smith and Horace T. Smith, trustees for Alonzo Smith, under the will of Stephen Smith, deceased, filed their final account as such trustees. The paper-books did not contain a copy of the account.

<p>No. 57 January Term 1891, Sup. Ct.; court below, No. 213 June Term 1890, C. P. No. 4.</p> <p>On July 3, 1890, Andrew Gillison and others, trading as Gillison, Christie & Lockerbie, brought assumpsit against Thomas B. Wanamaker, to recover the sum of §698.08, with interest from November 1, 1888.</p> <p>The plaintiff’s statement of claim set out a contract dated April 13, 1888, between the defendant, as party of the first part, and the plaintiffs, as parties of the second part, whereby the plaintiffs undertook to construct and complete certain alterations and additions to the dwelling-house of the defendant, at the southeast corner of Eighteenth and Spruce streets, Philadelphia, under the direction of Theophilus P. Chandler, Jr., architect, and in accordance with certain plans and specifications. The material parts of the contract were as follows:</p> <p>“2. It shall be lawful for the said party of the first part at all times to direct in writing any additions to or deviations from the plans and specifications aforesaid, without in any other respect or particular varying this agreement or impairing the force thereof; and in case of any such addition or deviation so directed in writing, such further time shall be allowed for the completion of said work as said architect shall decide to be reasonable; and such sums of money shall be added to or subtracted from the amount of the consideration hereinafter agreed to be paid, as the said architect shall judge the increase or diminution in the amount of work and materials thereby occasioned to be fairly worth; and it is expressly agreed that no alterations or additions are to be paid for unless so directed in writing.”</p> <p>“ 4. If any question should arise during the progress of the work, respecting the true construction or meaning of the drawing or specifications, or in settlement of accounts, it is to be referred to the said. architect, whose decision shall be binding upon both parties.</p> <p>“ 5. No work shall be considered as extra, unless a separate estimate in writing for the same shall have been submitted by the contractor to the architect or the owner, and his signature obtained thereto.”</p> <p>“ 8. Should the contractor fail to finish the work at or before the first day of September, 1888, he shall pay to the party of the first part the sum of five dollars per diem for each and every day thereafter the said work shall remain unfinished, as and for liquidated damages.</p> <p>“ 9. In consideration of the foregoing, the said party of the first part agrees to pay to the said parties of the second part, upon certificate of said architect that the terms of this contract are complied with, within three days after the receipt of the same, said certificate, however, in no way lessening the entire and final responsibility of the parties of the second part, and upon' sufficient evidence that all claims upon the building for work or materials up to the time of each and every payment are discharged, .....the sum of four thousand three hundred dollars, in manner following, viz.: To be made in three payments, at such times and in such amounts as the architect decides.”</p> <p>—After giving a copy of the contract, the statement of claim made the following averments:</p> <p>“ In accordance with said contract, plaintiffs proceeded to and did perform all said work in a good and workmanlike manner, under the direction of the said architect, and in accordance with his plans and specifications.</p> <p>“ During the progress of said work, at the request of said architect, plaintiffs also did the following extra work:</p> <p>Oak ceiling in hall,......$150.00</p> <p>Extra linting plaster in hall, .... 6.00</p> <p>* * * *- * * * *</p> <p>New knobs to front door, ..... 6.50</p> <p>$244.88</p> <p>“.Plaintiffs have been paid, the sum of $3,838, and defendant is also entitled to a deduction of $8.75 for stained glass, leaving due to plaintiffs said sum of $698.08 with legal interest.</p> <p>“ Said work was finished before November 1, 1888. Plaintiffs aver that after the said work was done it was examined by the said architect and approved by him, and his certificate of approval of plaintiffs’ bill, showing a balance of $698.08 due by defendant to plaintiffs, was shown defendant, and demand made for payment thereof; but defendant has neglected and refused to pay the same or any part thereof. And plaintiffs further aver that no liens have been filed against said property, and the time when liens could be filed has long since expired. Plaintiffs, therefore, claim said sum of $698.08, the amount due them according to the decision of the architect, and with legal interest thereon. Hence this suit.”</p> <p>The defendant filed an affidavit averring a defence to a part of the plaintiffs’ claim as follows:</p> <p>“ After said contract had been signed and the specifications agreed upon had been accepted by plaintiffs, and after said work under said specifications had been under way, and this deponent had paid to said plaintiffs the sum of $3,000, on account of same, and whilst this deponent wras away from the city of Philadelphia, during a continued absence of two months, the said plaintiffs did undertake, this deponent is informed, to perform certain extra work, as set out in the statement filed by them in this case, all of which, with the exception of the oak ceiling in hall, was done without the knowledge, request or consent of this deponent, or of any one acting under his direction, and in violation of the second clause of the contract entered into by this deponent with said plaintiffs as aforesaid, and for which this deponent did not agree at any time with said plaintiffs to pay or become responsible for. If said alleged extra work was ordered by any one in the name of this deponent and on his behalf, it was without the knowledge or consent of said defendant.</p> <p>“There is no averment on the part of plaintiffs that this deponent directed or ordered this work to be done, and agreed to pay for the same upon any contract price, or ordered or directed any one to have it done on his behalf or account; nor is there any averment that, at the time the alleged extra work was done, a separate estimate was furnished in writing and signed by this deponent or some one duly authorized by him, as provided for in said contract entered into by this deponent with said plaintiffs.</p> <p>“ Said deponent did contract and agree to pay said plaintiffs, upon the complete finishing of alterations and additions to the said premises, under the terms and conditions of the said contract, the sum of $4,300, and the further sum of $150 for the oak ceiling also contracted for, making in all the sum of $4,450. This deponent has paid said plaintiffs, at divers times, the sum of $3,838; but, as to the said balance due of $612, this deponent claims as a set-off to said amount the sum of $210, due by said plaintiffs to this deponent as damages sustained by him, under the terms and conditions of said contract, for a wilful breach thereof made by them, by reason whereof this deponent did not secure possession of his premises from said plaintiffs at the time agreed upon, to wit, September 1, 1888, but was obliged to wait until October 12, 1888, a period of 42 days, during all of which time he lost the use and occupation of said premises as a dwelling; and also the further sum of $2, being the value of two shovels, the property of this deponent, taken by said plaintiffs at the time they finished their said work under said contract, leaving due by this deponent to said plaintiffs the sum of $400 in cash, which he now admits, and always has heretofore, to be due and payable to said jfiaintiffs, and which said amount he hereby tenders to said plaintiffs.”</p> <p>—A rule for judgment for want of an affidavit of defence having been made absolute, without opinion filed, and judgment entered for $776.96, the defendant took this appeal, specifying that the court erred:</p> <p>1. In entering judgment in favor of plaintiffs and against defendant for want of a sufficient affidavit of defence.</p>

No. 52 July Term 1890, Sup. Ct.; court below, No. 79 April Term 1890, C. P. On February 25,1890, an amicable action between J. P. P. Kistler, executor of Rebecca Kistler, deceased, plaintiff, and D. & J. Mosser, defendants, was entered in tbe court below, a case being stated for the opinion of the court, setting forth as follows: “ Jonas Gildner and wife made an assignment for tbe benefit of creditors to E. K. Gildner, by deed dated February —, 1889.

<p>1. An affidavit of defence to an attorney’s suit to recover for legal services and costs paid, denying evasively the plaintiff’s employment, but admitting that his services were rendered, averring mismanagement and unskilfulness, but not stating wherein the mismanagement and unskilfulness consisted, is insufficient to prevent summary judgment.</p> <p>2. Such a judgment, entered under a rule of court authorizing statements of claim to be filed, in appeals from the judgments of justices of the peace pending at the time of its adoption, and judgment to be taken fifteen days after service thereof on the defendant, for want of a sufficient affidavit of defence, is not irregular and void.</p>

<p>APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY.</p> <p>No. 146 January Term 1891, Sup. Ct.; court below, No. 97 June Term 1889, C. P.</p> <p>On April 23, 1889, James Sutherland brought ejectment against William Ross, for a messuage and lot of ground in the borough of West Conshohocken, fronting 20 feet on Cedar street. Issue.</p> <p>At the trial, on October 15, 1890, the plaintiff showed title by deed from William Davis, Sr., to Nicholas F. Dager, dated April 6, 1871, and deed from Nicholas F. Dager and Elizabeth his wife, to James Sutherland, the plaintiff, dated March 11, 1874. Having shown the defendant’s possession, the plaintiff rested. The defendant then put in evidence the record of a deed dated February 14,1877, purporting to be signed and sealed by the plaintiff and Agnes Sutherland, his wife, and witnessed by Mary Nugent and William Haywood; certified in due form to have been acknowleged before William Haywood, justice of the peace, and purporting to convey the premises in controversy to Nicholas F. Dager, in consideration of $1,000; also a deed from Nicholas F. Dager and Elizabeth, his wife, to the defendant, dated April 3,1887, for the same property.</p> <p>In rebuttal, the plaintiff was called, and his counsel proposed to show by him that the signature, purporting to have been made by the witness to the deed dated February 14,1877, was a forgery. The defendant’s counsel, asking that the witness be sworn upon his voir dire, to ascertain whether he was a competent witness, he was so sworn, and testified that Dager, to whom the deed in question purported to convey the property in controversy, was dead. Thereupon the defendant objected to the offer.</p> <p>Plaintiff’s counsel: We offer to prove by this witness, not a forgery committed by Mr. Dager, but to prove that Mr. Dager employed William Haywood, justice of the peace, as his agent, on February 14, 1877, to prepare and obtain from James Sutherland and his wife a conveyance, in consideration of the payment of the sum of $1,000, of the premises in controversy; and, while in that employment, the agent Haywood prepared or had prepared a deed dated the fourteenth day of February, purporting to be signed by James Sutherland and his wife, and witnessed by Mary Nugent and William Haywood, and purporting to be acknowledged by William Haywood, justice of the peace; and that no such deed was signed by the witness or his wife, or by Mary Nugent, as witness, or acknowledged by Mr. Haywood, justice of the peace.*</p> <p>Defendant objects.</p> <p>By the court: Objection sustained; exception.1</p> <p>Mary Powell, formerly Mary Nugent, the person whose name appeared upon the deed as a subscribing witness, testified for the plaintiff that the attesting signature upon the deed looked like hers, but that she had signed with a pencil, and not with ink, as the signature in question was written; that the paper attested in pencil was smaller than the deed, and she was told at the time that it was an agreement; that Mrs. Sutherland did not sign or acknowledge the paper, and that the only persons present, besides the witness, were the plaint-tiff, his wife, Justice Haywood, and some small children. The witness stated, also, that the occasion referred to in her testimony was the only' one on which she had ever signed her name to any legal document.</p> <p>Agnes Sutherland having been then sworn, and having testified that she was the wife of the plaintiff, plaintiff’s counsel offered to prove by the witness that the certificate of Justice Haywood attached to the deed of February 14, 1877, that he examined her separate and apart from her husband and that she knew the contents of the deed and had attached her signature thereto, was false.</p> <p>Objected to: 1. So far as the husband was incompetent, his wife was incompetent; 2, the testimony is irrelevant, because it cannot affect this suit one way or the other; 3, we being bona fide purchasers for value, had a right to rely upon the Certificate, and having relied upon it, the question cannot be raised.</p> <p>By the court: Objection sustained; exception.3</p> <p>Q. Do you remember the occasion in February, 1877, when Squire Haywood, Mrs. Mary Nugent, your husband and yourself, were present at your residence in Richmond street, Philadelphia ?</p> <p>Mr. Childs: What does he offer to prove ?</p> <p>Mr. Arundel: I propose to ask the witness, whether she was present during the whole time that day, that Justice Haywood was present. I will follow this up by asking the question, whether or not, she was present all the time Justice Haywood was present. I want to show she was present, and I want to ask her whether, while she was present, $1,000, or any sum, was paid by Mr. Haywood, or anybody else, on behalf of this grantee, to her husband, as a consideration for what purports to be this deed.</p> <p>Defendant objects.</p> <p>By the court: Objection sustained; exception.3</p> <p>After further testimony, the court, Swartz, P. J., submitted the case to the jury, who rendered a verdict for the defendant. A rule for a new trial having been discharged and judgment entered, the plaintiff took this appeal, assigning for error :</p> <p>1-8. The refusal of plaintiff’s offers.1 to 3</p>

<p>(a) The House of Refuge of Philadelphia was incorporated by the act of March 23, 1826, P. L. 133, for the purpose of establishing and conducting an institution for the confinement and reformation of youthful delinquents, and was conceded to be an institution of purely public charity.</p> <p>(5) Under the authority of the act of May 13, 1889, P. L. 209, the managers purchased 884 acres of land in Delaware county, and removed the male dopartmentthereto. Said land is cultivated by inmates, to tlio end that they may be trained to agricultural labor; and the sale of the products of the farm defrays a part of the expenses of the institution:</p> <p>1. The land so used is not income-producing in any proper sense; and being in the actual use of the managers and devoted absolutely to the purposes of the institution, as a part of the plant on and by means of which its reformatory work is carried on, it is exempt from taxation, under the act of May 14, 1874, P. L. 158: Wagner Institute’s App., 116 Pa. 555, distinguished.</p>

<p>APPEAL BY DEFENDANT FROM TBCE COURT OF COMMON PLEAS OF CHESTER COUNTY.</p> <p>No. 135 January Term 1891, Sup. Ct.; court below, No. 19 October Term 1889, O. P.</p> <p>On August 27, 1889, Henry L. Bennett brought trespass against Mary D. Biddle, to recover damages for the obstruction by the defendant of an alleged right of way of the plaintiff over the defendant’s land. The defendant pleaded not guilty.</p> <p>At the trial on May 26,1890, the following facts were shown:</p> <p>Jacob Bennett died in 1827, seised of a tract of land in Birmingham township, Chester county, bounded on the east and on the west by public highways. After his death, the tract was divided into two purparts by a line nearly parallel with each of the said boundaries. His son, John Bennett, became the owner of the purpart east of the division line, and another son, Thomas Bennett, became the owner of the other purpart. J ohn Bennett continued the owner of his tract until his death in 1882, when his son, the plaintiff, became its owner. Thomas Bennett died in 1842, and was succeeded in the ownership of his tract by his son, T. Elwood Bennett, who in 1855 conveyed the same to Abraham Huey. By various subsequent conveyances the title to that tract became vested in the defendant.</p> <p>While the two tracts were owned by the brothers, John and Thomas Bennett, respectively, a well defined wagon way extended continuously from the public road, on the east of John’s property, across both farms, to the public road on the west of the property of Thomas, passing through a gate maintained in the division fence between the farms; and each of the brothers, whenever he had occasion so to do, used it in crossing the land of the other to reach the road which did not touch his own property. This mutual use of the wagon way was continued by the respective owners of the farms, after the death of Thomas Bennett, until 1889, although Huey, and his successors in title, were strangers in blood to the plaintiff. A short time before the bringing of this suit, the defendant placed a fence upon her property, in such a way as to obstruct the wagon way and prevent the plaintiff from passing thereon across her farm. There was testimony tending to show that other persons, beside the occupants of the respective farms, had been in the habit of using the wagon way to cross from one of the public roads to the other.</p> <p>At the close of the testimony, the court, Waddell, P. J., charged the jury in part as follows:</p> <p>Now, gentlemen, it is not worth while for the court to take up much time, if any, in presenting any further to you the condition of affairs as we understand they existed, and the question for your consideration, under the instructions of the court, simply is, has the enjoyment of this way for this period of time, as far back as at least 1855, been adverse on the part of Mr. Bennett, this plaintiff? That is, has he claimed it as a right against Mrs. Biddle and her predecessors in title ?</p> <p>It is not necessary that he should have claimed it only against Mrs. Biddle; because you will see that she has owned the property only since 1876, and of course he could not have claimed it for twenty-one years as against her; but, if he has claimed it adversely against her and those who have preceded her in title, for twenty-one years, then he acquired a right of which he cannot now be deprived. It is a well-established principle of law that wherever the facts and circumstances of a case show that the use and enjoyment of a way can be ascribed to some other reason than an adverse enjoyment, it is the duty of the court and jury to so attribute it; and, if this way came into enjoyment by the respective owners of these tracts, because they were brothers, and, as the law says, out of comity, that is, out of friendship, the one for the other, then it would not be an adverse enjoyment.</p> <p>Such may have been the case here. There is nothing in the evidence to show it; and the only way in which that can be reached would be by inference from the fact that these original •owners, when this way was probably started, were brothers, and therefore they each had, the one given to the other by reason of friendship or relationship, the right to pass over the property of the other.</p> <p>[But you will remember, gentlemen, that that condition of things terminated in 1855, when T. Elwood Bennett, who might be regarded as occupying the same position here towards his uncle as his father did, that is, permitting this thing to be done by reason of their relationship, sold his property to a stranger, and that stranger and other strangers have continued to own, occupy, and enjoy it from that time down to this. Thus you will see that as far back as 1855 that condition of things ceased. /Now, we say to you that if the origin of this might be attributed to the friendship of these original owners, still a new condition of things, in the estimation of the court, took place in 1855; and, in our opinion, if the owner, Henry L. Bennett, and his father before him, claimed to use this way over the property of Mr. Huey, who became the owner at that time as successor in title, — if he then used, occupied, and enjoyed this way openly and notoriously, such an occupation without opposition on the part of Mr. Huey and those who succeeded him in title was, in our opinion, adverse.] 1</p> <p>Neither is it necessary, in the estimation of the court, that that enjoyment should be exclusive; that is, I should say more truly, that it should be interfered with, because it was mutual. In other words, [that, because Mr. Bennett, this plaintiff, may have claimed and used this way over Mrs. Biddle’s property, and the owners and occupiers of Mrs. Biddle’s property did the same thing over his, therefore it destroys the idea of adverse occupation and enjoyment. We do not so view the law, that, because these people may have enjoyed this right mutually, the one in consideration of the other, therefore there was a want of adverse enjoyment. I say to you that we do not so consider the law, and in our opinion it will not destroy the adverse occupancy and enjoyment in the one by the other.] 2</p> <p>You of course have nothing to do in this case, so far as the rights of these parties are concerned, with the enjoyment by Mrs. Biddle of any right over Mr. Bennett’s property. It incidentally, of course, enters into the investigation of this case; [but the fact that Mrs. Biddle has claimed, or has used, and those who preceded her have used this way over Mr. Bennett, that because she has thus used the roadway over him, therefore it destroys his right to say that he has acquired a right from her. Such, in our opinion, is not the law; and if he has used and enjoyed this way openly, notoriously, and adversely in the way I have indicated, for twenty-one years, then, in our opinion, he has acquired a right to it, notwithstanding she may have had a light of the same character over his property.] 3</p> <p>But you will see, gentlemen, that this enjoyment, while it is not necessarily exclusive, yet it must be in a way that goes to assert Mr. Bennett’s rights ; that is, that Mrs. Biddle and those who preceded her in title would have a right to infer that he is crossing her property because lie claims the right to do so.</p> <p>If he crosses it ‘along with other people in the neighborhood, comes and goes as they do, there is nothing to put Mrs. Biddle on her guard and to learn that he claims this right any more than the general public. In other words, if Mr. Bennett has passed and re-passed over this property, in a way similar to the neighbors in that community and in no other way, then he has done nothing which would give Mrs. Biddle the right to infer that he was claiming the right to come there. Other people were doing the same thing that he was doing; they were passing through these gates and going from one road to another whenever they pleased, and he was doing the same thing. If the testimony satisfies you of that fact, that this is the way the public in that neighborhood were using this road, then we say to you that there is nothing in the cause that would justify you in saying that Mr. Bennett should have the right to enjoy this way, any more than his neighbors who lived around him. But you must be satisfied of that fact from the testimony. . . .</p> <p>But if you think that Mr. Bennett did use this property for all his purposes in a way different from what the public in that neighborhood used it, then it was notice to Mrs. Biddle, and she was bound to take notice of it; and if she did not assert her rights, or those who preceded her in title did not assert their rights, for twenty-one years, then Mr. Bennett has acquired a right there, and your verdict will be for him.....</p> <p>The defendant asks the court to charge you as follows :</p> <p>2. If the jury find that the travel by the plaintiff, and the owners of his property before him, over the defendant’s farm, began in the intimate relationship of two brothers who owned the two properties, then the mere fact that those who succeeded one brother, as owner of his property, did not put a stop to the other’s habit of passing through it, but let it be done freely as before by the occupant of the other farm, does not give the plaintiff a right of way.</p> <p>Answer: You will see, gentlemen, from what I have already said in the general charge, that I do not agree with the principle of law as set down by the defendant, and therefore dis-affirm that point.4</p> <p>3. If the jury find that the travel from the plaintiff’s farm over that of the defendant, was always coupled with similar travel on the continuance of the same track from the defendant’s farm over that of the plaintiff, to another highway, then the case had no one-sided character which raises a presumption that a permanent right to so pass over the one farm was at the same time acquired by the owner of the other; and, if the facts are as stated, the jury must, find for the defendant.</p> <p>Answer: You will see from what I have already said, I do not agree with the principle of law as stated by the point, and therefore disaffirm that point.5</p> <p>—The jury returned a verdict for the plaintiff “ in the sum of six cents damages' and six cents costs.” A rule for a new trial having been discharged and judgment entered, the defendant took this appeal, assigning for error:</p> <p>1-8. The portions of the charge embraced in [ ] 1 to 3</p> <p>4, 5. The answers to the defendant’s points.4 5</p>

<p>1. Where the owner of mortgaged property caused a third person to give his check in settlement of the mortgage, and, the mortgagee failing to present it for payment with due diligence, the check so given became worthless, the drawer having withdrawn the deposit and become insolvent, the mortgage debt was discharged: Kilpatrick v. B. & L. Ass’n, 119 Pa. 30.</p> <p>2. The evidence as to the authority of the solicitor of a building and loan association to receive a check in satisfaction of the association’s claim against one of two properties covered by a mortgage to it, being partly written and partly parol, it was proper to submit the question of authority to the jury, as one of fact.</p> <p>3. When matters of fact, depending on oral testimony, are connected witli and necessary to a proper understanding of written evidence, the court is not bound to construe the latter as though it stood alone; an admixture of oral and written evidence draws the whole to the jury: Denison v. Wertz, 7 S. & R. 372; Sidwell v. Evans, 1 P. & W. 383; McGee v. Northumberland Bk., 5 W. 32.</p>

<p>APPEAL BY ELIZ. SCHROYER ET AL. FROM THE ORPHANS’ COURT OE LANCASTER COUNTY.</p> <p>No. 150 January Term 1890, Sup. Ct.; court below, number and term not given.</p> <p>On August 18,1888, Barbara Hauer and Thomas M. Grady, administrators of the estate of Christoph Hauer, deceased, settled an account exhibiting a balance in their hands due the estate; and, on October 4, 1888, Mr. William Augustus Atlee, was appointed auditor, to report a distribution of said balance among the persons legally entitled thereto.</p> <p>Before the auditor, Barbara Hauer, the widow of the decedent, presented a claim for $8,227.50, with interest from October 1,1887. The auditor found the facts in relation to this claim to be as follows :</p> <p>Barbara Hauer was the owner, in her own right, of a hotel oi' tavern in the borough of Marietta, known as the Hauer House. Christoph Hauer rented this hotel, in his own name, to Wm. Bowers, from January 1, 1877, to April 1, 1881; to Wm. Fletcher from April 1, 1881 to April 1, 1884; and to Samuel Larzelere and Jonathan Larzelere from April 1, 1884, to October 1, 1887, and received from these tenants the rents aggregating the amount claimed. No evidence was given showing that Barbara Hauer acquiesced in his receiving these rents, gave them to him, or permitted him to appropriate them to his own use; in fact, it was not shown that she was ever present at the transaction of any business connected with the renting of the land or payment of the rent, except on one occasion, when, as Samuel Larzelere testified, “Mrs-. Hauer may have been present on one occasion when I paid him one quarter’s rent; she came into the room.” And she was present when the first tenant talked of renting.</p> <p>It was further shown that on August 2, 1886, Christoph Hauer contracted with Simon B. Stibgen for the purchase of a house and lot of land situated on the north side of Market street, in the borough of Marietta, for the sum of $1,825; that he paid by his own check $125 at that time, and that on August 80, 1886, Simon B. Stibgen and his wife conveyed the land to Barbara Hauer by deed of that date, and Christoph Hauer paid the balance by his own check. This was all that was known of that transaction, with the exception of the testimony of Henry S. Kauffman, in substance to the following effect: On August 2, 1886, Christoph Hauer and he were together, when Hauer said, “ I go out and buy a place.” He went out and came back in about an hour, and said, “ I have bought a house for mother,” meaning Barbara Hauer, “ so that when I am dead she canuot be set out on the street.” Again, he said “He gives her the house.”</p> <p>Christoph Hauer and Barbara Hauer had no children. His death occurred on October 5, 1887.</p> <p>Between 1882 and 1887 the decedent made payments for repairs, taxes, etc., upon his wife’s real estate, the hotel property, amounting in the aggregate to $650.85.</p> <p>Upon the facts so found, the auditor, citing a large number of authorities, reported conclusions of law in substance as follows : (1) That the relation existing between the decedent and his wife, with respect to the money in question, was that of debtor and creditor, the rule being that when a husband receives his wife’s money he must be treated as receiving it for her use, and must account for it, unless he can prove a gift thereof by her to himself; and that the decision in Bardsley’s Est., 7 W. N. 48, drawing a distinction, in this respect, between the receipt by a husband of the corpus of his wife’s estate, and the receipt of income belonging to her, “ is unsupported by reason or authority.” (2) That the statute of limitations did not run against this claim, during the lifetime of the decedent. (8) That the transaction of the purchase of the house from Stibgen, in the name of Mrs. Hauer, must be regarded as a gift by the decedent to his wife, there being no evidence that it was intended as a payment on account of indebtedness; and therefore, the money paid by him for that house could not be deducted from the amount of' her claim. (4) That the payments for repairs, taxes etc., made by the decedent, must be so deducted; and that, after making such deduction, the widow was entitled to receive, as creditor of her husband’s estate, the sum of $2,576.65, with interest from October 5,1887. The auditor accordingly reported a schedule of distribution, in which the sum of $2,817.98 was awarded to Barbara Hauer as a creditor.</p> <p>Exceptions to the report of the auditor were overruled by the court, Pattebsoh, J., and a decree entered confirming the report absolutely; whereupon Elizabeth Schroyer and others, heirs at law of the decedent, took this appeal, specifying that the court erred:</p> <p>1. In allowing the widow’s claim for the rents collected by the decedent.</p> <p>2. In not crediting.upon said claim the price of the property purchased by the decedent in the name of his wife.</p> <p>4. In confirming the report of the auditor.</p>

<p>APPEAL BY G-. D. WOODSIDE PROM THE COURT OE COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY.</p> <p>No. 12 July Term 1890, Sup. Ct.; court below, No. 3 March Term 1889, C. P. No. 2.</p> <p>On December 28, 1888, John J. DeZouche trading as John J. DeZouche & Co., brought foreign attachment in assumpsit against Walter G. Garrison. The writ was served on George D. Woodside and others as garnishees, and on January 5,1889, an appearance was entered for George D. Woodside, garnishee.</p> <p>Having obtained judgment against the defendant for $1,532.67, in default of an appearance, the plaintiff, on September 25, 1889, issued writs of scire facias against the garnishees, service of which was accepted for them. On September 26, 1889, separate interrogatories to Woodside and to the other garnishees were filed, and on March 27,1890, George D. Woodside filed in the court below the following petition:</p> <p>“ The petition of George D. Woodside respectfully represents :</p> <p>“ That he has been summoned as garnishee in the above case, and that interrogatories have been served upon him, and a scire facias upon the judgment obtained has been served upon him.</p> <p>“ That in a certain action in C. P. No. 1, of March Term 1889, No. 663, wherein Anna A. Garrison is plaintiff and your petitioner is defendant, a judgment has been entered against your petitioner in favor of said Anna A. Garrison, in the sum of $464.84.</p> <p>“ That said amount represents the value of certain household effects and personal property, and your petitioner has been put upon notice, personally by counsel and by the proceedings in this case, that the plaintiff herein, John J. DeZouche, claims that as between him and the said Anna A. Garrison the said property belonged to Walter G. Garrison, the defendant herein.*</p> <p>“ That your petitioner is a mere stakeholder of said fund, and is willing and desirous of paying the same to such person as is entitled to the same, or to pay the said money into court.</p> <p>“Your petitioner therefore prays that a decree maybe entered directing that an issue be formed, in which the question shall be whether the right to demand and receive the said sum of $464.84, admitted to be due by the said George D. Wood-side, under the judgment rendered in C. P. No. 1 of March Term 1889, No. 668, is in Anna A. Garrison or John J. De-Zouche, in which issue the said John J. DeZouche shall be the plaintiff and the said Anna A. Garrison the defendant.</p> <p>“ And he will ever pray,” etc.</p> <p>Upon the filing of the petition, the court granted a rule to show cause why the order prayed for should not be made, but subsequently discharged the rule ; whereupon George D. Wood-side took this appeal, specifying that the court erred:</p> <p>1. In discharging the rule for an interpleader.</p> <p>2. In refusing to make the order for an issue prayed for.</p>

<p>APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS NO. 4 of PHILADELPHIA COUNTY.</p> <p>No. 193 July Term 1890, Sup. Ct.; court below, No. 236 March Term 1890, C. P. No. 4.</p> <p>On February 18,1890, Henry W. Sharpless and others, trading as Sharpless Brothers, brought assumpsit against the Hartford Fire Insurance Company, upon a policy of insurance against fire issued by the defendant company to the plaintiffs. Issue.</p> <p>At the trial on May 7, 1890, the following facts were shown:</p> <p>By a policy dated February 28,1889, the defendant company insured the plaintiffs to the amount of $10,000, for the term of one year, “ on merchandise of every description whatever, chiefly dry goods, their own or held in trust, or on consignment, or sold but not removed from the premises, contained in the three-story brick building occupied as a storehouse and for packing and shipping goods, situate on the north side of Jayne street, west of Eighth street, Philadelphia.” Other portions of the policy declared the insurance to be “ against all such immediate loss or damage sustained by the assured, as may occur by fire to the property above specified,.....the amount of the loss or damage to be estimated according to the actual cash value of the property at the time of fire,.....and this company shall not be liable.....for loss or damage to property in any other locality than where originally insured, unless consent to removal is indorsed hereon.”</p> <p>On July 24, 1889, the following indorsement was made on the policy: “ Notice received that the property insured under this policy is about being removed from the premises herein described to northwest corner Fifth and Minor streets, Philadelphia. It is understood and agreed that this policy shall cover pro rata in both places during removal, and thereafter in last-named location only. Rate advanced to ninety cents. Additional premium received, eighteen dollars.” This indorsement was signed by the agents of the company.</p> <p>A fire occurred on the Jayne street premises on November 28, 1889, and the plaintiffs claimed the sum of $987.55 as the portion of their loss covered by the said policy. It was agreed between counsel that the following facts should be regarded as proved in the case:</p> <p>“ There were in the store on Jayne street described in the policy, at the time of the fire, goods valued at $9,642.82. There were in the store at Fifth and Minor streets described in the indorsement on the policy, at the time of the fire, goods worth $88,000 additional. The goods in said JayDe street store had, some of them, been put there before July 24, 1889, and some of them had. been put there after that date. Plaintiffs cannot show by evidence, and no evidence is offered of the fact, how many of said goods were in the said Jayne street store on July 24, 1889, and how many of them had been put into said store thereafter.”</p> <p>At the close of the testimony, the court “ directed a verdict for the plaintiffs, subject to the following points reserved :</p> <p>“1. Whether the time which elapsed between July 24, 1889, and November 23, 1889, four months, was a reasonable time for removal; and</p> <p>“ 2. Whether the plaintiffs were entitled to recover, on proof of value of the burnt property which was in the Jayne street store on November 23, 1889.”</p> <p>On June 30, 1890, a motion for judgment for the defendant non obstante veredicto having been argued, an opinion was filed, Abhold, J., which after stating the facts proceeded:</p> <p>Consent to the removal of property, already insured, to another locality where it is to continue insured, is a new contract of insurance : May on Insurance, § 70 a; citing Rathbone v. Insurance Co., 31 Conn. 193; Kunzee v. Insurance Co., 41 N. Y. 412. The old contract is terminated and a new one takes its place.</p> <p>We think that a fair construction of the agreement and consent for removal, in this case, is that the policy was to cover only such goods as were in the Jayne street store, during the time reasonably required for removal. The policy was a new contract of insurance on goods during removal, and thereafter in the new location only. It was not a straddling policy covering goods in both places during the whole life of the policy, but it covered the goods in both places during removal, and thereafter in the new place only.</p> <p>The time occupied in removal must be such reasonable time as the circumstances necessarily required. But it is essential that the assured should give evidence to prove why there was so much delay in removal, where the delay is so long as four months, and if he does not do so a judge will be justified in saying that it is too great: Peoples Ass’n v. Smith, 126 Pa. 317. Decisions on the length of time covered by the words “ as soon as possible,” furnish some rules which aid us in deciding this question. That phrase means, within a reasonable time; and when the facts are ascertained, the determination of what is a reasonable time is ordinarily for the courts. Where, however, the facts are not clearly established, or the question is dependent upon other controverted matters, it is, under proper instructions, a question for the jury to decide: Home Ins. Co. v. Davis, 98 Pa. 280; American Ins. Co. v. Hazen, 110 Pa. 530; Springfield Ins. Co. v. Brown, 128 Pa. 392. In the absence of any evidence to explain why the goods insured, in the Jayne street store, had not been removed within four months, we feel compelled to say that that space of time was more than could be reasonably required for removal, and that the policy sued upon covered the goods in the Fifth street store only at the time of the fire.</p> <p>We are therefore of the opinion that it was incumbent on the plaintiffs to prove the value of the goods destroyed which were in the Jayne street store during the time reasonably required for removing them to the Fifth street store, and that proof of the value of the goods in the Jayne street store at the time of the fire is insufficient. A contract of fire insurance is a contract of indemnity against loss, and it is essential that the assured should .prove, not only the fact but the amount of the loss, and that it occurred during the time covered by the policy: Kittanning Ins. Co. v. O’Neill, 110 Pa. 548, and cases cited therein.</p> <p>Judgment for the defendent on the points reserved.</p> <p>—Thereupon, the plaintiffs took this appeal specifying that the court erred:</p> <p>1. In entering judgment for the defendant on the points reserved.</p> <p>2. In not entering .judgment for the plaintiff on the points reserved.</p>

<p>The creditors of one who, as the executor of a deceased executor, has filed an account as to the estate of the latter’s testator, being neither legatees, distributees, nor creditors of the estate settled, have no standing to contest the account on the adjudication thereof; McBride’s App., 72 Pa. 480; Braman’s App., 89 Pa. 78; Winton’s App., 111 Pa. 389; High’s Est., 136 Pa.222.</p>

<p>1. The mere fact of the occurrence of an injury to a workman, in the course of his employment, raises no presumption of negligence on the part,of the employer; and for such an injury, the employee can recover against the employer only upon making affirmative proof that the defendant’s culpable negligence produced it.</p> <p>2. In rare instances, such as that presented by the case of Rummel v. Dilworth, 131 Pa. 509, it has been held that the employment of young and inexperienced persons to work amidst dangerous machinery, imposes upon the master the duty of warning such employees of the latent dangers involved in their work:</p> <p>3. But this kind of liability is a very refined one at best, and the essential fact of the existence of the alleged latent danger, as the source of a consequent duty as to information, must necessarily be established clearly, before any charge of negligence in that respect can be sustained: Per Mr. Justice Gbeen.</p> <p>4. When the work and the place are not dangerous, and the materials are those in common use, there is no liability of the master to an employee, injured by an accident, as for a breach of the duly of protection by previous instruction and warning: Allison Mfg. Co. v. McCormick, 118 Pa. 519 ; Gillen v. Rowley, 134 Pa. 209 ; Zurn v. Tetlow, 134 Pa. 213.</p>

4 OF PHILADELPHIA COUNTY. No. 86 July Term 1891, Sup. Ct.; court below, No. 338 June Term 1891, C. P. No. 4. On June 2, 1891, upon the relation of Mr. William U. Hensel, Attorney General, a writ of quo warranto was issued from the court below, returnable forthwith, commanding the sheriff to summon Richard G. Oellers, to show by what warrant he claimed to hold and exercise the office of county treasurer, designated as city treasurer within the city and county of Philadelphia.

<p>APPEAL BY DEFENDANTS FBOM THE COUBT OF COMMON PLEAS OF MONTGOMERY COUNTY.</p> <p>No. 400 January Term 1890, Sup. Ct.; court below, No. 165 October Term 1889, O» P.</p> <p>On September 23, 1889, Mary Rodgers brought trespass against Joseph and John S. Lees, trading under the firm name of James Lees & Sons, to recover for alleged negligence of the defendants, causing the death of the plaintiff’s minor son. The defendants pleaded not guilty.</p> <p>At the trial on March 19,1890, the plaintiff presented testimony tending to establish the following facts:</p> <p>The defendants owned and operated a woolen mill at Bridgeport, Montgomery county, situated at the corner of Fourth and Coates streets. The latter street was open to the public, but was used little, if at all, by any one not connected with the defendants’ mill. Upon the Coates street front of their mill, the defendants maintained certain apparatus used for hoisting materials to the upper floors of the building from the street, and lowering their manufactured product into the street when ready for shipment. The apparatus consisted of a covered projection from the top of the fifth story, in which were placed a drum and a system of pulleys, and from which a wire rope or cable' descended to the ground, being wound up and unwound by steam power. To keep the cable taut while descending without a load, an iron ball, eight or ten inches in diameter, was fastened at the lower end of it. Below the ball was a chain about a foot long, to which were appended two hooks used for attaching the cable to the goods to be raided or lowered. When the cable was let down, the ball rested on the street about two and one half feet from the building line of the mill.</p> <p>The machinery was controlled by an iron rod on the inside of the mill, running from the ground floor to the top, and so arranged that, by pulling the rod, a person on any floor could start and stop the machinery, cause the cable to ascend or descend, or cause the ball and hooks to stop at any of the floors. Several witnesses testified for the plaintiff that the machinery was so arranged as to “knock off” and automatically stop, whenever the ball reached either the top or the bottom of the course through which-it moved, but that sometimes the arrangement for effecting the automatic stoppage was out of order, and then the cable, after once being started, would keep in motion, successively ascending and descending until some one in the mill would stop it bjr means of the controlling rod.</p> <p>On the evening of June 7, 1889, between six and seven o’clock, the plaintiff’s son, Daniel Rodgers, about six years old, while passing along Coates street, met John Kinney, a boy about four years older, in front of the defendants’ mill. At the moment of their meeting, the ball was descending and near the ground. Rodgers said to Kinney, “ Hello, Kinney, I bet I can go up higher on the ball than you.” Kinney remonstrated, telling Rodgers that he would fall; but when the ball reached the ground, Rodgers got upon it, putting his legs around it, holding to the rope, and the ball starting up again, he was carried up with it. After it started he tried to get off, but was unable to do so at once, and was carried to the level of the third story of the mill, when his hold loosened and he fell to the ground, the fall resulting in his death. Kinney testified that he thought the hook underneath the ball caught in Rodgers’ clothing, and prevented him from getting off before the ball got high above the ground.</p> <p>Testimony for the defendants tended to show that the hoist was in use a few moments before the accident, but had been stopped, leaving the ball hanging at the level of the third story, and that the men who had been using it had gone away, after closing up the doors in the upper stories; that the hoist was a machine of a standard make, such as was used in other mills, and that it was arranged with reference to the street in the customary manner; that the automatic attachment for reversing the motion was so arranged that it could be adjusted to operate either when the ball was at the top or at the bottom, but could not be adjusted at one time so as to reverse both at the top and at the bottom. The witnesses, who testified that the ball had been stopped, stated that they were unable to account for its being in motion at the time of the accident, but that somebody must have started it, as when it was once brought to a dead stop the machinery could not start of itself.</p> <p>At the close of the testimony, the court, Swartz, P. J., charged the jury in part as follows:</p> <p>First, was there negligence on the part of the defendants ? The hoisting machine was put into mill No. 6. I charge you that it was not negligence to construct this hoisting apparatus in mill No. 6. The uncontradicted evidence shows that it is an apparatus that is in common use, and is' approved by the experience of those who have knowledge of its working, and therefore, when these defendants availed themselves of the use of this machinery, they were not guilty of any negligence. If they are guilty of any negligence in this case it is not by reason of the construction of the machine, and not by reason of placing the machine and its appliances where they did place it. If there is any negligence in this case, it must be in the operation of the machine, without giving it proper attention or supervision.</p> <p>What was the character of the operation of this machinery, the traveling of this cable, upon the seventh day of June last, when Daniel Rodgers came there, and, as it is said, meddled with the cable ? According to the evidence of his companion, the ball was coming down. He says it was a few feet from the ground when he first saw it, and that it then came down, and Daniel Rodgers sat upon the ball; that then it rested for a minute, I think, as he described it, and then began to ascend. The' little boy that was killed remarked, “I will bet that I can ride up higher on this ball than you can.” You will say from this testimony whether this cable was not at this time, when the boy came there, coming down and again ascending, after .the ball struck the ground. You will take all the testimony in this case in determining what was the manner in which the cable operated at that time. The defendants were' bound to have regard to the thoughtless tastes and traits of childhood. You will say whether the defendants, as prudent and cautious men, ought to have foreseen that there was a reasonable probability that children of tender years, unable to apprehend danger or to avoid it, by reason of their incapacity, would meddle to their injury with this hoisting machine, if the cable were suffered to run slowly to the alley and then reverse itself and return in the same manner. If it was their duty to have foreseen this, then you will say whether .they were negligent, if they suffered the apparatus to be thus operated without being attended by themselves or their employees who were in charge of the machine.</p> <p>It matters not how careful the defendants may have been in their instructions to their employees. If those entrusted with the running of the machine failed to regard the instructions and were negligent in the operation of the machinery, such negligence would be chargeable against the defendants. If you find that this cable was descending and by its own motion returning, when the little boy was brought in contact with it, you will say whether that was dangerous to children that might meddle with the machinery. Was it the duty of these defendants to foresee that an injury might happen to children who would meddle with it ? If you find it was their duty to foresee this, and that this cable was traveling down and then ascending again, you will say whether they ought to have attended it, or whether some one in their employ ought to have had supervision over it, so that if it was dangerous and likely to do injury, those brought in contact with it, such as little children, might be, protected.</p> <p>If you find that this ought to have been done, your next inquiry will be, did they give it that supervision and attention? In order to ascertain this, you will scrutinize carefully all the testimony in this case. The defendants say that they were not responsible for the descending of this ball and its ascending-; that through their employees they guarded it carefully; that, when they were through in their use of it, the employees at the third door of the building put on the brake and fastened it firmly; and that, therefore, even if you should find that it was negligence to have it run down and then return again, without the supervision of any one, they are not accountable for the failure to have some one there ; that they did all that could be reasonably expected of them.</p> <p>I charge you that even if you should find that it was their duty to have supervision over this machine, as it descended upon the ground and ascended again of its own motion, they would not be responsible if they exercised proper supervision when the cable had this motion; and if they, through their employees, fastened it, as the defendants’ witnesses swear it was fastened, you will say whether that was not all that could be done to protect it and keep it safely. If it was locked, or if the brake was put on, the testimony is that it could not be started without an application to the rod that ran from one end of the building to the top; that a bale of a thousand pounds or more might hang attached to it, and still it would remain fixed unless power were applied to the rod connected with the machinery. You will say, therefore, if they put this brake on through their employees, whether they did not do all that it was reasonable to expect of them, whether there was any negligence if they did this. Is there anything else pointed out by which they could have put it in a safer condition ? If not, then I charge you that if they and their employees locked the machinery, that is, put on the brake in this way, they could not be held responsible for negligence. If, however, after it had been thus fastened, those in their employ who had charge of this machinery were again to put it in operation, of course they would be liable for such operation. You will say how this machinery got into operation upon that evening. Why was it that this cable was traveling down and returning, if you find it was so traveling? Were the defendants in any way responsible for its traveling in that manner, and if they were, did they exercise proper supervision that no injury should happen ? If it was their duty, did they exercise proper supervision, and were they guilty of any negligence in not giving it proper supervision ? They were not required to so keep it that nobody could be hurt by it. That is a degree of • duty that is not required of any one, but they were required to exercise the care, prudence and caution that a reasonable man under similar circumstances would have used.</p> <p>The plaintiff says and contends that those in charge of this machinery did not properly secure it; that this is shown by the fact that within a short time after the employees had left the machinery, the ball was found down upon the ground or near the ground, and that all the facts and circumstances in this case show, and that you are so to find, that those in charge of the machinery did not properly protect it. You are to say whether the evidence establishes to your mind that such was the ease. If the weight of the evidence establishes to your mind that this contention on part of the plaintiff is made out, and you find it was negligence, then, although it was the act of an employee having charge of this machine, the defendants would be liable.....</p> <p>There are several points that the defendants ask me to charge upon.</p> <p>1. That the plaintiff’s son was a trespasser, when he undertook to see how far he could ride on the ball of the elevator, and hence the plaintiff cannot recover.</p> <p>Answer: This is refused.1</p> <p>2. That negligence cannot be assumed ; it must be proved.</p> <p>Answer : This is true.</p> <p>3. That there is no evidence of negligence on the part of the defendants, in the use of the elevator, and hence the verdict must be for the defendants.</p> <p>Answer: This is refused. This is a matter for you under the charge of the court.3</p> <p>4. That if the rope and ball of the elevator were let down by some one not in the employment of the defendants, or by an employee outside of the scope of his employment, the verdict must be for the defendants.</p> <p>Answer: This is true, as I have already endeavored to state to you.</p> <p>8. That, under all the evidence in the case, the verdict must be for the defendants.</p> <p>Answer: This is refused. This is a matter entirely for you.8</p> <p>—The verdict of the jury was in favor of the plaintiff for §450. Judgment having been entered the defendants took this appeal, assigning for error:</p> <p>1-3. The answers to defendants’ points.3 to 3</p>

<p>1. A servant who voluntarily undertakes a perilous employment, the dangerous character of which he is acquainted with or has the opportunity to learn, assumes the risks naturally and reasonably incident thereto, even though he undertakes to perform the hazardous duty because urged to do so by the master.</p> <p>(а) The plaintiff was employed by the defendant to blast out “salamander” from the bottom of an iron-furnace, and directed to use dynamite in the blasting. On his complaining to the defendant’s superintendent that the salamander was too hot to work in, the latter told him that it was not too hot, and that the work must be done.</p> <p>(б) The plaintiif then drilled a hole in the salamander, and, in the superintendent’s absence and knowing that the hole was red-hot at the bottom, inserted a dynamite cartridge, which almost instantly exploded, injuring him. The superintendent had not directed dynamite to be put into that hole, or into any other presenting similar conditions :</p> <p>2. The evidence showing that the plaintiff had had opportunities to become acquainted with the explosive character of such cartridges, under the influence of heat, and knew the danger he was encountering, he alone assumed the risk of inserting the blast, in the conditions existing at the time, and was not entitled to recover for his injuries.</p>

No. 58 July Term 1890, Sup. Ct.; court below, No. 63 August Term 1889, C. P. On July 9, 1889, Lydia A. Way brought trespass against E. G. Martin, to recover damages for the breach of a warranty by the defendant on the sale of a horse to the plaintiff.

No. 20 January Term 1891, Sup. Ct.; court below, No. 54 January Term 1890, C. P. On December 21, 1889, Mary Kilpatrick brought trespass against the Pennsylvania Railroad Company, charging negligence whereby personal injuries were inflicted upon her. The defendant pleaded not guilty.

No. 279 January Term 1891, Sup. Ct.; court below, No. 33 September Term 1889, C. P. On May 7,1889, upon the petition of James Chambers, filed under the act of May 24, 1878, P. L. 129, viewers were appointed to assess damages occasioned by a change of the grade of Edwards street, in the borough of South Chester, in front of a lot of ground owned by the plaintiff.

No. 355 January Term 1890, Sup. Ct.; court below, No. 2 March Term 1883, C. P. On January 2, 1883, John P. Hobart, trustee for the heirs and devisees of Isaac Davis, deceased, and others, brought ejectment against Jacob Ulshafer, John Ulshafer, David Ulshafer, and others, for four hundred acres of land in North Union township. The writ was returned, served on January 20th as to the defendants named, and not found as to the others.

<p>(a) The evidence of the plaintiff in an action of assumpsit was to the effect that he had transferred certain judgments to the defendant by an absolute assignment, but without consideration, and for the purpose of enabling the defendant to collect the amount due for the use of the plaintiff.</p> <p>(b) The evidence of the defendant was to the effect that the assignment was absolute, in adjustment of an existing indebtedness, and to give the defendant, as assignee, a preference over other creditors of the plaintiff ; evidence as to the alleged indebtedness being submitted by both parties:</p> <p>1. In such case, it did not follow that, because on its face the assignment was absolute, the defendant was entitled to collect the money due on the judgments and keep it; upon the evidence submitted, the question whether the defendant held the money in trust for the plaintiff was properly for the jury.</p> <p>2. Statements by'the defendant, before the assignment, that he would endeavor to obtain the assignment and the purpose thereof, and like statements, after it, that it had been obtained and the purpose thereof, were competent as admissions by the defendant, though not at the time communicated to the plaintiff.</p>

No. 117 July Term 1890, Sup. Ct.; court below, No. 722 November Term 1889, Q. S. On September 6, 1889, the grand jury returned as a true bill an indictment charging James O’Brien, Martin Eoley and Patrick Gallagher with conspiracy to cheat and defraud the Prudential Insurance Company of America, a New Jersey corporation, out of tbe sum of one thousand dollars, the amount of a certain policy of insurance on the life of Charles O’Brien. Issue.

<p>APPEAL BY DEFENDANT FROM THE COURT OF OYER AND TERMINER OF SCHUYLKILL COUNTY.</p> <p>No. 194 July Term 1890, Sup. Ct.; court below, No. 284 March Term 1890, O. & T.</p> <p>On May 7, 1890, the grand jury returned as a true bill an indictment against Morgan Lewis in three counts. The first count charged an assault and battery, and the second an assault and battery with intent to ravish, upon the person of Lizzie Kimmel.</p> <p>The third count charged that the defendant, “ then and there being of the age of sixteen years and upwards, in and upon the said Lizzie Kimmel, then and there being a woman child under the age of sixteen years, and then and there in the peace of God and of the said commonwealth being, feloniously did make another assault, and her, the said Lizzie Kimmel, then and there feloniously, unlawfully and carnally did know and abuse, and a male bastard child on the body of her, the said Lizzie Kimmel, did beget contrary to the form,” etc.</p> <p>The indictment having been certified unto the Court of Oyer and Terminer, the case was called for trial on May 8, 1890, before Pekshing-, P. J., whereupon the defendant demanded that the commonwealth elect on which count of the indictment the defendant should be tried. The district attorney declining to elect, the defendant then moved the court “to quash the third count of the indictment for misjoinder.”</p> <p>By the court: Motion overruled; exception.1</p> <p>The trial proceeding and having been concluded, the jury found the defendant “ guilty of fornication and bastardy, and not guilty of the other charges.” The defendant then moved for a new trial and in arrest of judgment, for the following among other reasons:</p> <p>3. .The verdict of bastardy could not be found under the indictment.</p> <p>4. The defendant was charged under an act of assembly that permitted of but one of two verdicts by the jury, one of felonious rape, and the other of fornication, and not of a verdict of fornication and bastardy.</p> <p>By the court: Motions overruled.6</p> <p>Sentence having been passed upon the defendant, he took this appeal, specifying that the court erred:</p> <p>1. In not quashing the third count of the indictment.1</p> <p>2. In not quashing the indictment for misjoinder of counts.</p> <p>6. In not arresting the judgment as to the bastardy.6</p> <p>7. In sentencing the defendant under the verdict finding him guilty of fornication and bastardy.</p>

No. 206 July Term 1890, Sup. Ct.; court below, number and term not given. On June 16,1890, Alonzo Owen, an alleged insolvent debtor, presented bis petition for his discharge under the insolvent laws. The schedule of his property attached to his petition showed that he owned a suit of clothes of the value of $3, and an overcoat of the value of six dollars.

No. 145 January Term 1891, Sup. Ct.; court below, No. 342 November Term 1884, C. P. On November 8, 1884, “ Levi Huber and Robert C. Green, trustees, in the order named, for the Equitable Saving Fund… Held: that the conveyance was to be deemed an execution of the power and passed the lunatic’s title: ” Henby v. Warner, 51 Pa. 276.

No. 157 January Term 1891, Sup. Ct.; court below, No. 57 November Term 1883, C. P. On October 6, 1883, James Stoever, administrator of Henry Stoever, deceased, brought assumpsit against Thomas S. Waimer, filing a declaration in the common counts. On November 23d, the defendant, under a rule to plead, pleaded non-assumpsit.

<p>1. In an action brought by an employee for bis wages, the employer, under the plea of non-assumpsit, may prove a loss suffered by reason of the negligent and unskilful manner in which the work was performed, as a pro tanto defence to the plaintiff’s claim.</p> <p>2. When the employee was hired to do certain mechanical work, at so much per day, such defence is available, not only as to the wages of the partícula!1 days upon which the negligence occurred, but also as to the wages earned by the employee upon other days.</p> <p>3. As to the latter, the rule that unliquidated damages arising from a tort, in a separate transaction, cannot be set off in assumpsit, does not apply; for (a) the defence is an equitable one, grounded upon a breach of the contract by the servant, and (5) such hiring is an entire contract.</p>

No. 61 January Term 1891, Sup. Ct.; court below, No. 117 July Term 1885, C. P. On May 19, 1885, William R. Potts and others, surviving partners of Frederick A. Potts, deceased, lately trading as Frederick A. Potts & Co., brought assumpsit against Amanda Taylor and others, executors of Jeremiah Taylor, deceased, and Emanuel Bast.

<p>(a) The administrator of a decedent, who in his lifetime was secretive in his method of taking care of his estate, but intrusted many or most of his loans and collections to his son-in-law, sought to charge the latter for amounts of money alleged to have been received by him and unaccounted for to the decedent:</p> <p>1. In such ease, general assertions by the defendant, in casual conversa^ tions after the decedent’s death, to the effect that he wished there was some one who knew something about the affairs of the deceased, that he himself knew nothing about them whatever, were irrelevant to the issue and inadmissible.</p> <p>2. Slight inaccuracies in reviewing the facts, in a charge to a jury, with expressions of opinion as to the merits of the case, when accompanied by instructions that the facts are for the jury and they should remember them, and the alleged errors were not called to the attention of the court before the jury retired, are not ground for reversal.</p> <p>3. Where a son-in-law, as the agent of his father-in-law, was in the habit of collecting money for the latter and investing it for him, a state of mutual confidence existing, in the absence oí evidence of non-payment, or ol complaint on the part ol the father-in-law in his lifetime, the money must be presumed to have passed into the possession ol the owner: Eavenson’s App., 84 Pa. 172.</p>

<p>•APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF LACKAWANNA COUNTY.</p> <p>No. 301 January Term 1890, Sup. Ct.; court below, No. 430 October Term 1887, C. P.</p> <p>On August 17, 1887, Horton Lee brought trespass for negligence against the Electric Light, Heat & Power Company of Carbondale. Issue.</p> <p>At the trial on January 20,1890, it was shown in substance, that the plaintiff was in the employ of the defendant company as a lineman; that his work was outside the company’s station, but, for six or eight weeks and before he was employed as a lineman, he was employed at the station as a fireman; that on June 21, 1887, he was engaged with other employees in assisting to put a new shaft in place in the station building, under the direction of the company’s superintendent; that over the power-room were trusses or beams running between the tops of the side-wall, and braces extending upward from the beams supporting the roof of the building; that a floor had been laid over these beams along the south side of the building, but none on the north side, which was therefore open, between the beams, from the roof to the floor of the power-room below: that the shaft to be put in place was heavy, and it was necessary to suspend it from above by a sling thrown around a plank across two of the beams; that, in the operation, it became necessary that the sling should be shifted on the plank, and the plaintiff was directed to do it; that, instead of removing a portable ladder from the place where it stood at the east end of the building and using the ladder to get directly to the sling, the plaintiff went aloft by using the ladder where it stood, walked along a beam to the plank with the sling on it, passing an upright brace on his way, shifted the sling, and, on his return, as he swung himself around the brace it fell from its place and the plaintiff was thrown to the floor beneath, receiving severe injuries. The building was properly constructed, but there was evidence that this brace and others supporting the roof had become loosened from the roof by shrinkage; that the superintendent of the company had, knowledge of the fact that the braces needed tightening by bolts and burrs, and that this had been ordered to be done, but neglected. There was some evidence on the part of the defendant tending to show that the plaintiff had not been ordered aloft to shift the sling, but that he suggested the shifting and the manner of doing it himself.</p> <p>At the close of the testimony, the court, Abchbald, P. J., charged the jury in part as follows:</p> <p>The negligence of the company arises, if at all, in this way:</p> <p>The plaintiff says that he was ordered to go up overhead by Mr. Nicholson who was the superintendent. The evidence shows that Mr. Nicholson did have general supervision and control of the employees of the company. He, therefore, to such extent, represented the company. The plaintiff further says that Mr. Nicholson was present when he went out along the truss and swung himself the first time around the brace in question, and that he was there until the plaintiff was on the cross-beam and had changed the sling.</p> <p>If he was there, if you believe that to be the fact, and saw the way that the defendant went out upon the truss, and swung himself around the brace, and knew, as we have evidence that he did know, that this brace was loose, it was his duty to warn the plaintiff that it was loose, or to have had the brace tightened before he allowed the plaintiff to use it in this way. If he allowed the plaintiff to so use it without warning, or without having it fastened, he failed in- a duty at that' time which was due to the plaintiff. It would be the same as to allow him to use any other appliance or portion of the premises which was not, to his knowledge, safe. If it was in fact unsafe, as we certainly must conclude from the evidence that it was, and the superintendent saw the evident purpose to which the plaintiff was putting it, and allowed him to do so without warning, then he failed in his duty, and the neglect of the superintendent in tbis would be a neglect on the part of the company, and make them liable from any resulting accident......</p> <p>Now, the plaintiff must not only establish the negligence of the defendant, but it must appear that he, himself, is guilty of no negligence which contributed also to the accident. If he, himself, is guilty in any degree of contributing negligence, he cannot recover. We cannot weigh as to which was the more negligent, the defendant or the plaintiff, if both were; because, if the plaintiff was in any particular negligent, and his negligence contributed to the accident, then he has failed to establish a legal case. This is a question for you, as all of the questions of fact are. In passing upon it you must remember, however, that the plaintiff was only called upon to exercise ordinary care under the circumstances.</p> <p>The defendants now allege, and have given evidence to sustain this allegation, that Mr. Lee could have used a ladder to get up overhead, and that this could have been readily moved from the place where it was usually standing; and, if it had been used, that he would have escaped any risk and danger, and this accident probably not have resulted. Albert Lee testifies that he and Nicholson used this ladder the night before, in the work which they had to do. The defendant has given some evidence to show that the plaintiff, in his former employment as fireman, and working about the station, used this very same ladder in carboning some of the lights there, but the plaintiff denies that he ever used the ladder, or that he knew anything about its use. Albert Lee says that he has seen parties work up overhead in this station, and that the ordinary way of getting there was by going up the ladder as it stood at one end of the building against the wall. The plaintiff, as I remember liis testimony, in one part says that the ladder eonld not have been placed against the beam upon which the sling hung with safety. There seems to have been some evidence that the ladder was somewhat difficult to move; that one end of it had to be carried out of the door and moved around the engines and steam pipes that were there. I cannot instruct you, as matter of law, that the plaintiff was bound to use this ladder, even though you might now reach the conclusion, reviewing coolly and calmly, as we may here, all the facts, that by the use of the ladder he could have escaped this accident. He was bound to take the ordinary precautions of a prudent man. If, as a matter of fact, you find that in the use of such precaution he should have taken the ladder from its place and put it up against the truss, and so climbed up to the place where this sling was, then he was bound to do that; but that is a question of fact for you. If you find that he neglected to make use of a means which was reasonably evident to him at the time, and thereby ran into this danger, it is his own fault and he cannot of course recover; but if he used the ordinary means of going up overhead, or those which would naturally suggest themselves to him under the circumstances, or would naturally suggest themselves to a person of ordinary prudence, that is all that is required of him.</p> <p>He was, however, bound to use the precaution of an ordinarily prudent man from the beginning to the end. There is no evidence that he knew of the looseness of this brace, at least none that I remember. But, if it was evident to him, or should have been evident to him from observation, and he ueglected to use the precaution which would be thus suggested, then that would be negligence on his part contributing to the accident. Upon this point, Albert Lee says that he saw the brace loose the night before, and crawled under it, as I remember his testimony. The defendants claim that it was readily observable to a person who was under it, as the plaintiff was at the time he went around it the first time. If that is a fact, and the plaintiff saw and knew of the looseness of the brace, or ought to have known it by the exercise of ordinary prudence, then again he would be convicted, if you believe that to be the fact, of negligence which would prevent his recovery here.</p> <p>The first question, then, in the case is, do the facts establish negligence on the part of the defendant company? If they do not, then your verdict must be for the defendant. If, however, you find that the defendant was negligent, under the circumstances as I have endeavored to explain them to you, yet, still, you also find that the plaintiff himself was negligent, and that such negligence contributed to the accident, then there-can be no recoveiy. The plaintiff must establish the two propositions to your satisfaction, that the defendant was negligent and that he was not......</p> <p>The defendant requests that I instruct you:</p> <p>1. That, under all the evidence in the case, the verdict must be for the defendant.</p> <p>Answer: This I cannot do. Questions of fact are involved which it is for you to pass upon and determine.1</p> <p>The plaintiff asks that I instruct you as follows:</p> <p>1. Under all the evidence in this case, it is for the jury to say whether the defendant was guilty of negligence, and it is also for the jury to say whether under all the evidence the plaintiff was guilty of contributory negligence.</p> <p>Answer: This is a correct statement of the law, and I affirm the point.8</p> <p>- — The jury returned a verdict in favor of the plaintiff for $1,250. A rule for a new trial having been discharged and judgment entered, the defendant took this appeal, assigning for error:</p> <p>1. The answer to the defendant’s point.1</p> <p>2. The answer to the plaintiff’s point.2</p>

<p>1. On the distribution of the proceeds of a sheriff’s sale, after a special return, under §§ 1, 2, act of April 20, 1846-, P. L. 411, that the purchaser is a lien creditor, and entitled, etc., the persons interested, questioning or disputing, have an alternative remedy, either an auditor appointed, or an issue; they are not given both.</p> <p>2. In such a distribution, where persons interested applied for the appointment of an auditor, and made a demand for an issue when his report, adverse to their positions, was ready for filing after two years of controversy by them before him, the refusal of the issue prayed for was not error.</p> <p>3. An assignment of error to a final decree on the report of an auditor distributing the proceeds of a sheriff's sale, specifying that the court erred “in confirming the auditor’s report,” is too general to require consideration: [See Rule XXII. of the Supreme Court.]</p>

<p>APPEALS BY JACOB WESSER ET AL. EROM THE COURT OE QUARTER SESSIONS OE LACKAWANNA COUNTY.</p> <p>Nos. 137 July Term 1890, 308 January Term 1891, Sup. Ct.; court below, No. 1 October Term 1886, Q. S.</p> <p>On June 28, 1886, a petition for tbe appointment of viewers to lay out a public road in Roaring Brook township was filed in the court below, and viewers were appointed thereon who reported in favor of opening a road laid out by them. After the usual proceedings, the report was confirmed absolutely on January 24, 1887 ; and, on June 24, 1889, an order to the supervisors of the township, directing the opening of the road, was issued. The order was served on April 24, 1890.</p> <p>On May 8, 1890, Alfred Griffin and Jacob Wesser, supervisors of Roaring Brook township, filed a petition for a stay of the order to open, and for a rule to show cause why the report of viewers laying out the road, and all proceedings thereunder, should not be stricken off. The petition averred that the road as laid out would be useless and burdensome to the public; that it was projected in the interest of one Schoonmaker, for the purpose of developing his private property; that before any part of it had been opened, a petition for its vacation was in circulation among the inhabitants of the township, and that, for the purpose of defeating this petition, Schoonmaker induced one Brink, at that time a supervisor, to open that part of the road located upon Sehoonmaker’s property; that proceedings to vacate the unopened residue were afterwards held at Nos. 4 January Term 1888, and 7 October Term 1889, of the court below, the report of viewers in each of said proceedings being set aside by the court; that one of the viewers who laid out the road was the owner of a lot on or near the road; that said viewers made their report hastily, without fully complying with their duties, having failed to request J. S. Miller over whose property the road was located, to release damages; and that the road was not located at the termini named in the original petition, and was so negligently laid out by courses and distances that it would be difficult, if not impossible, for the supervisors to open and make the same.</p> <p>The court, on May 26, 1890, refused the prayer of the petition, whereupon the petitioners, Griffin and Wesser, on June 12, 1890, took the appeal at No. 137 July Term 1890, specifying that the court erred:</p> <p>1. In refusing to stay the order to open the road.</p> <p>2. In refusing a rule to set aside the report of the viewers.</p> <p>On July 8, 1890, a return was made to the order to open, served on Wesser and Griffin, supervisors, personally, etc. On the same day, upon the filing of affidavits to the effect that the order to open the road had been served, and that a portion thereof remained unopened, the court granted a rule upon said supervisors to show cause why they should not be committed for contempt in disobeying the order of court. To this rule no formal answer was made, but on August 25,1890, the certiorari sur the foregoing appeal was filed.</p> <p>On September 22, 1890, after hearing, the court, Arch-bald, P. J., made the rule absolute in the following opinion:</p> <p>The proceedings to lay out this road were begun June 28, 1886, and the report of the viewers in favor of it was finally confirmed January 24, 1887. The road was thereupon opened in part, but proceedings have been pending since then to obtain the vacation of the balance of it. These proceedings having been unsuccessful, an order to open the road was issued and served upon the supervisors of the township April 24, 1890. On May 8, 1890, the supervisors petitioned for a stay of this order, and to have all the proceedings leading up to it set aside, but this the court, after due consideration, May 26, 1890, refused to allow. From this refusal, the supervisors, on June 12th appealed to the Supreme Court, and in support of that appeal a writ of certiorari has been sued out and served upon us. In the meantime, a rule was entered upon the supervisors to show cause why they should not be committed for contempt in not complying with the order to open the road. The only answer which is made to this rule is the presentation of the writ of certiorari, and the question, therefore, now is as to the effect which is to be given to that writ.</p> <p>The proceedings in road cases are carried to the Supreme Court for review bj means of the common-law writ of certiorari. Except as to Allegheny county: act of April 27, 1869, P. L. 1235, I know of no statute regulating the effect of the writ in such cases, and it is therefore in the present instance to be given its common-law effect. The writ of certiorari at common law is a supersedeas, as soon as it is received by the lower court: Patchin v. Mayor, 15 Wend. 665; Ewing v. Thompson, 48 Pa. 372; and any proceedings, thereafter taken in the case, are, as a rule, of no effect. There is a well-recognized exception, however, to this rule, and that is, that where proceedings have been begun before the writ is received, to carry out the judgment of the court, the certiorari will not stay them. Thus, where a fieri facias had begun to be executed by the sheriff, before the service of the writ, he can go on and finish it, and the court below may even award a venditioni exponas for that purpose: Charter v. Peeter, Cro. Eliz. 597; Blanchard v. Myers, 9 Johns. 66; Patchin v. Mayor, supra.</p> <p>It seems to me that the present case falls within this exception. It is now over three years since the report of the viewers in favor of the road was finally confirmed, and a part of the road has been actually opened. Now, when an order to open the balance of the road is served upon the respondents, and after they have failed to secure a stay of the order, the present writ of certiorari is lodged in this court. It is too late. The order to open the road has gone out and must be executed; the certiorari does not stay the proceedings upon it. Granted, that it removes the record, and arrests the fur‘ther course of the case, still it finds the case with the order to open outstanding and in the hands of the supervisors for execution, with the present proceedings instituted to enforce it. This is analogous to an outstanding execution in the hands of the sheriff instanced above. My opinion is that the writ is not a supersedeas, and that the respondents have shown no sufficient reason for not complying with the order. The rule for an attachment is made absolute.</p> <p>—An attachment having issued against the supervisors, they appeared on October 20,1890, and filed an answer, which, after reciting the various proceedings in the case, and setting forth that Jacob Wesser was elected supervisor in February, 1890, and Alfred Griffin, the other supervisor, had been elected in February, 1889, made further averments in substance as follows :</p> <p>We had no definite knowledge with regard to the road in question, or the opening thereof, until the order to open was served upon us, April 24, 1890. We do not think said road necessary or convenient for the traveling public, but believe it would be burdensome to the township and will compel us to incur an indebtedness against the township of at least $2,000. The assessed valuation of said township for the year 1890 was $66,053. We believe we have no authority to incur an indebtedness, without the assent of the electors, as provided in § 8, article IX., of the constitution of Pennsylvania, where such indebtedness exceeds the sum of two per cent. The repairs of the road already opened, and the building of another road, will exhaust all the funds in our hands ; and the township will be indebted, after all taxes are collected and legally expended, $200 or more, without incurring any expense on the road in suit.</p> <p>We have appealed from the decision of the court refusing to stay the order to open, and caused certiorari to issue from the Supreme Court, which writ has been served and is on 'file in this case. We were advised that the appeal and certiorari would probably stay the proceedings in the lower court, until they were affirmed or reversed by the Supreme Court; and we were further advised that we had no authority to incur an indebtedness in the opening of said road to an amount exceeding two per cent of the assessed valuation of the property for 1890. We understood that the certiorari was a supersedeas; and would stay the proceedings in the lower court. Had that not been the case, a full answer would have been filed before. We have done no act and have neglected or omitted to do nothing, ordered by the court, with any other intention than to legally review the orders of your Honorable Court, as we were informed was our right and we believe to be our duty; and we were impelled to this action by the advice, requests and demands of the citizens and people of Roaring Brook township.</p> <p>—After argument, the court, Archbald, P. J., filed a second opinion in which, citing Bartle v. Des Moines, 38 Ia. 414; Rice v. Des Moines, 40 la. 638, and McCracken v. San Francisco, 16 Cal. 632, it was held that the provisions of § 8, article IX., of the constitution, prohibiting counties, townships, etc., from incurring any new debt, or increasing their indebtedness, to an amount exceeding two per centum of the assessed valuation of the taxable property therein, without the consent of the electors, did not apply to the incurring of a debt which was necessary to meet a public duty imposed by law upon a township, and did not arise out of the voluntary acts of the supervisors. The opinion concluded as follows:</p> <p>I have no authority at this time to modify the final confirmation, nor to call it in question. However unpleasant the duty, I am compelled to carry into effect the decree of the court and to see that the order to open the road is obeyed. The matters set up by the respondents, in their several answers to the present rule, are not available to them, and I have no option but to commit them, unless they are prepared to carry out the order which has been served upon them.</p> <p>Let an attachment issue as prayed for.</p> <p>—Thereupon the respondents took the appeal to No. 308 January Term 1891, specifying that the court erred:</p> <p>1. In ordering the attachment to issue.</p> <p>2. In ordering that the supervisors be committed, unless they were prepared to carry out the order to open the road.</p> <p>3. In deciding that the supervisors must open the road, notwithstanding the indebtedness thereby incurred would exceed two per cent of the assessed value of the taxable property.</p>

<p>APPEAL by plaintiff from the court of common pleas OF LACKAWANNA COUNTY.</p> <p>No. 195 July Term 1890, Sup. Ct.; court below, No. 303 August Term 1879, C. P.</p> <p>On November 1, 1877, Zachariah Bell brought ejectment against B. H. Throop and H. W. Tobias, for a lot of ground in Scranton city. Issue.</p> <p>At the trial on January 13, 1890, the plaintiff adduced evidence of title in Tobias in 1876, under a contract of sale with B. H. Throop, as the attorney in fact of Price and Pancoast, and put in evidence the record of a judgment entered on April 10,1876, for f>313.60, in favor of George Fisher, assignee of Whitmore Brothers; execution process, a sheriff’s sale of the premises in dispute, and deed therefor to the plaintiff dated September 24, 1877. The record of the Fisher judgment showed that on May 30, 1877, a rule on the petition of Tobias, to show cause ’why the judgment against him should not be opened and the execution then pending stayed, was discharged.</p> <p>In the defendants’ case, a record was put in evidence, showing that on April 17, 1877, H. W. Tobias had confessed judgment in favor of B. H. Throop, in an amicable ejectment for the premises in dispute, to be released on payment of $570, balance of purchase money, on or before April 28, 1877 ; also, the execution, on May 2, 1877, of a writ of habere facias, issued April 30, 1877, putting Throop in possession.</p> <p>In rebuttal, the plaintiff Bell put in evidence a deposition of H. W. Tobias, who was making no defence to the suit, and testified, inter alia, that when the property in dispute was being advertised at sheriff’s sale on the Fisher judgment, Throop said to him that if he would get the judgment opened and give him, Throop, a confession in ejectment, he would pay him a specified sum of money. On cross-examination, he stated that the only reason he confessed the judgment in ejectment to Throop was that other parties were crowding him, and Throop promised him the money.</p> <p>The plaintiff offered, also, the deposition of M. A. Tobias, wife of the former witness, “ for the purpose of showing collusion ” between B. H. Throop and her husband. The offer being objected to, it was refused.3</p> <p>The plaintiff then offered the petition of H. W. Tobias for the opening of the Fisher judgment, “ to corroborate the testimony of Tobias that he applied at the instance of Mr. Throop.” The offer being objected to, it was refused.4</p> <p>In sur-rebu±tal, Throop denied that he had solicited Tobias to apply to have the judgment opened, etc., or that he had agreed to give Tobias money, if he would confess the judgment in ejectment to him.</p> <p>At the close of the testimony, the court, GrUífSTEE, J., charged the jury in part as follows:</p> <p>. Upon the part of the plaintiff, it is alleged that this amicable action of ejectment was fraudulent, was entered into with the intent to hinder, delay and defraud the creditors of Henry W. Tobias. Upon the part of the defendants, the allegation of fraud is denied, and it is alleged by the defendants that the amicable action of ejectment was entered into in good faith. And they agree that the contract was long past due, and if the evidence is to be believed, the contract was some years past due. The evidence is that it was entered into in 1869; the last payment became due, under the testimony of Dr. Throop, which is the only testimony bearing upon that question, in 1874, and this amicable action of ejectment, between Price and Pancoast and H. W. Tobias, was not entered into until 1877, three years, perhaps some months more or less; the precise date of the contract was not given, or at least 1 do not recollect it, but nearly three years had elapsed before this amicable action of ejectment was entered into.</p> <p>[Now, so far as the right of the parties to enter into an amicable action of ejectment on a contract for the purchase of land is involved, there can bo no doubt about it. Those things are done every day in this commonwealth. It is a proper and legitimate way of doing business. It is similar to a confession of judgment in a note. It is done almost daily and hourly by all kinds of men doing business.] 1 But, while men have a right to enter into an amicable action, they have no right to enter into such actions for the purpose of defrauding anybody else and the vital question in this case is, whether or not this amicable action of ejectment between Price and Pancoast, upon the one side, and H. W. Tobias on the other, was entered into with the intention of hindering, delaying or defrauding the creditors of Tobias. If it was, then the judgment is thoroughly null and void, so far as those creditors are concerned; but if it was not, then the judgment is valid, and it should be given its full force and effect.</p> <p>Now, the rule is that the burden of proving the fraud is upon the party that alleges it. Fraud is alleged by the plaintiff in this case. Therefore, the burden of proving the fraud is upon the plaintiff, and he must prove the fraud by the fair weight of the evidence. You have heard the testimony of Mr. Tobias read. It is for you to say whether or not that testimony bears the construction put upon it by counsel for plaintiff. You have heard the testimony of Dr. Throop, which is directly contradictory to that of Tobias. It is for you to say which tells the truth. If there is any conflict in the testimony, it is for you to harmonize it if you can, and from the evidence which you believe to find the facts. If you find from the weight of the evidence that this amicable action of ejectment was entered into in good faith, then your verdict should be in favor of the defendants. If you find that it was entered into with the intention of hindering, •delaying or defrauding the creditors of Tobias, not only by To-bias himself, but by Dr. Throop, who was acting as the agent of Price and Pancoast, then your verdict should be for the plaintiff. Dr. Throop must have been a party to that intended fraud; no matter what Tobias intended, if Dr. Throop had no such intention, then Tobias’s fraud would not be binding upon Price and Pancoast. Dr. Throop must have been a party to such fraudulent intent himself.....</p> <p>[There is evidence in the case that Dr. Throop was to pay Tobias something, in case he got this confession of judgment. Now, that of itself, gentlemen of the jury, is not enough. A man may be willing to pay another for a confession of judgment. You must find more than an agreement upon the part of Dr. Throop to pay Tobias, in case he got this amicable confession of judgment. You must find that Dr. Throop obtained it with the intent to defraud, hinder or delay the creditors of Henry W. Tobias. Tobias himself may have signed this instrument with the intent to defraud his creditors, and Dr. Throop not know anything about it. Dr. Throop may have even promised to pay money, but he may have promised to pay the money without any intent to cheat and defraud the creditors. The important question in the case, as I have already stated is, did they enter into this agreement with the intent to cheat, hinder or delay the creditors of Henry W. Tobias? If they did, then the plaintiff is entitled to recover. If they did not, then your verdict should be in favor of defendants.] 3 «•</p> <p>—The jury returned a verdict in favor of the defendants. A rule for a new trial having been discharged and judgment entered, the plaintiff took this appeal, assigning for error:</p> <p>1, 2. The portions of the charge embraced in [ ] 1 8 3, 4. The refusal of the plaintiff’s offers.3 4</p>

No. 196 July Term 1890, Sup. Ct.; court below, No. 136 April Term 1887, C. P. On January 27, 1887, an appeal by the defendant from the judgment of an alderman, in an action by T. J. Wells against R. H. Wilson, was entered. On the same day, the defendant pleaded non-assumpsit and the statute of limitations.