Volume 145 — Pennsylvania State Reports

No. 85 January Term 1891, Sup. Ct.; court below, number and term not shown.

No. 70 July Term 1890, Sup. Ct.; court below, No. 226 September Term 1885, C. P. On July 30, 1885, under a warrant of attorney, judgment was entered in favor of Dr. H. G. Lomison against H. E. Faust, in a penal sum conditioned for the payment in instalments of |6,500, with interest from March 30, 1885.

Nos. 42, 43 July Term 1891, Sup. Ct.; court below, Nos. 60, 64 March Term 1891, E. D., C. P. On February 28,1891, at a sheriff’s sale adjourned from February 18, and February 25, 1891, upon two alias writs of fieri facias, No. 61 March Term 1891, sur judgment in favor of the South-West Natural Gas Company against the Fayette Fuel-Gas Company, and No. 64 March Term 1891, sur judgment in favor of Noble McCormick et al. against the Fayette Fuel-Gas Company, all the right,…

No. 390 January Term 1891, Sup. Ct.; court below, No. 15 January Tern 1889, C. P. On October 3, 1888, George W. Brown filed in the court below a mechanics’ lien in the following form! “ George W. Brown, of the county of Lancaster, files 'this his claim for the payment of the sum of three hundred dollars, against all those certain two-story brick houses, mansard roofed or cottage style, with two-story and attic back buildings, situated on East Orange street and designated by…

No. 168 July Term 1891, Sup. Ct.; court below, No. 168 June Term 1891, C. P. in Equity.

No. 18 January Terra 1892, Sup. Ct.; court below, No. 9 Equity D. 1891, C. P. On July 80, 1891, Henry S. Heilman, John H. Snavely and Reilly R. Snavely filed a bill in equity praying upon tbe facts averred, shown in the opinion of the court below, for an injunction to restrain the Lebanon & Annville Street-Railway Company from constructing and operating its railway over the land of the plaintiffs within the appropriation of the Berks & Dauphin Turnpike company, without first…

No. 176 July Term 1890, Sup. Ct.; court below, No. 816 December Term 1888, C. P. No. 2. On January 11, 1889, George F. Lasher brought assumpsit against H. D. Stimson. Issue..

<p>(а) On appeal from an official settlement of an account against a foreign corporation, doing business in this state, for tax on its scrip, bonds, etc., under § 4, act of June 30, 1885, P. L. 194, there was no evidence that its bonds, etc., other than those which made up a certain amount, were held by resident owners.</p> <p>(б) Nor was there evidence that, at the time the coupons were paid, the company’s treasurer could know that any, and if any what ones, other than those belonging to the bonds referred to, belonged to bonds held by residents; but there was evidence that of bonds registered for voting á certain amount was held by resident owners:</p> <p>1. The question of the existence of taxable property, is not a question of proportion. Hence, it is not to be assumed that, if all the company’s outstanding bonds were registered, the same proportion belonging to residents would hold, and that defendant should be taxed upon the resulting proportion of the entire indebtedness.*</p> <p>2. The liability of the Hew York, L. E. & W. R. Co., a foreign corporation, for a state tax, under §4, act of June 30, 1885, P. L. 194, upon its corporate indebtedness shown to be held by resident owners, re-affirmed: See Commonwealth v. Hew York, L. E. & W. R. Co., 129 Pa. 463, and Commonwealth v. Lehigh Y. R. Co., 129 Pa. 429.</p>

No. 41 May Term 1891, Sup. Ct.; court below, No. 166 March Term 1891, C. P. On February 6, 1891, from the settlement of an account by the auditor general and state treasurer against the Arrott Steam-Power Mills Company, of Philadelphia, for tax on capital stock, under § 4, act of June 7, 1879, P. L. 114, and § 21, act of J une 1, 1889, P. L. 429, for the year ending the first Monday of November, 1889, the company filed an appeal and specifications of objections.

No. 38 May Term 1891, Sup. Ct.; court below, number and term not shown. On March 5, 1890, from the settlement of an account stated by the auditor general and state treasurer against the Philadelphia & Reading Railroad Company, for tax on capital stock under § 4, act of June 7, 1879, P. L. 114, for the years ending the first Monday of November, 1881, 1885, 1886, 1887, the company entered an appeal and filed specifications of objections.

No. 49 May Term 1891, Sup. Ct.; court below, No. 248 January Term 1891, C. P. On November 11,1890, from an account stated by the auditor general and state treasurer against the Delaware, Lackawanna & Western Railroad Co., for tax on capital stock, under § 4, act of June 7, 1879, P. L. 114, and § 21, act of June 1,1889. P. L. 429, for the year ending the first Monday of November, 1889, the company filed an appeal and specifications of objections.

No. 43 May Term 1889, Sup. Ct.; court below, No. 425 June Term 1888, C. P. On April 26,1888, the Northern Electric Light & Power Company filed its appeal from an account settled by the auditor general and state treasurer, charging the company with a tax upon its capital stock for the tax year 1886, under § 4, act of June 7, 1879, P. L. 112.

No. 24 May Term 1891, Sup. Ct.; court below, No. 30 January Term 1891, C. P. On September 25, 1890, the Central District & Printing Telegraph Company filed its appeal from, and a specification of objections to an account settled by the auditor general and state treasurer, charging said company with tax upon its capital stock for the year ending the first Monday of November, 1889, under §4, act of June 7, 1879, P. L. 114, and § 21, act of June 1,1889, P. L. 429.

Nos. 22, 32, 23, May Term 1891, Sup. Ct.; court below, Nos. 47 June Term, 60 September Term 1890, C. P. COMMONWEALTH V. EDISON ELEC.

No. 25 May Term 1891, Sup. Ct.; court below, No. 32 January Term 1891, C. P. On September 25, 1890, the Philadelphia Company filed its appeal from, and specification of objections to an account settled against the company by the auditor general and state treasurer, for tax on capital stock for the year ending the first Monday of November, 1889, under §4, act of June 7, 1879, P. L. 114, and § 21, act- of June 1, 1889, P. L. 429.

No. 33 May Term 1891, Sup. Ct.; court below, No. 195 September Term 1889, C. P. On July 22, 1889, the Brush Electric Light Company, of Philadelphia, filed its appeal from an account settled by the auditor general and state treasurer, charging the company with taxes on its capital stock for the tax years 1886 and 1887, the appeal being accompanied with a specification of objections.

No. 1 May Term 1891, Sup. Ct.; .court below, No. 121 Equity D., C. P. On April 10,1889, a bill in equity was filed by the commonwealth, ex rel.

No. 12 May Term 1891, Sup. Ct.; court below, No. 72 November Term 1889, C. P. To the number and term of the court below, “James C. Galt and Samuel Galt, in trust,” brought assumpsit against James A. Smith. Issue.

<p>No. 15 May Term 1891, Sup. Ct.; court below, No. 161 January Term 1890, C. P.</p> <p>On October 17, 1890, Mr. William S. Kirkpatrick, attorney general, came into court and gave the court to understand and be informed: *</p> <p>“ That one James B. Denworth, of the city of Williamsport, in the county of Lycoming, hath, since the first day of January, 1889, used and exercised, and still doth use and exercise, the office of recorder in and for the said city of Williamsport, under color of an act of assembly of March 24, 1877, [P. L. 47,] entitled,.....; and. a supplement thereto of May 1, 1879, [P. L. 44,] entitled,.....; and another supplement thereto of February 14, 1881, [P. L. 6,] entitled,....., without any warrant or lawful authority therefor; which color-able office, and the powers, authorities, emoluments and franchises thereto so belonging and appertaining, the said James B. Denworth, during all the time aforesaid, hath usurped, and still doth usurp upon the government of said commonwealth, to the great damage and prejudice of the lawful authorities of the same.</p> <p>“ Whereupon, the said attorney general makes a suggestion and complaint herein, and for due process of law against the said James B. Denworth in this behalf, to be made to answer by what warrant he claims to have, exercise, use, and enjoy the said office.”</p> <p>A writ of quo warranto having been awarded as prayed for, and service thereof accepted, the defendant, on March 31,1890, filed an answer averring as follows :</p> <p>1. “ That the city of Williamsport was, at the time of the passage of an act entitled,...... approved March 24,1877, P. L. 47, and still is, a city whose population does not exceed thirty thousand, and is not less than eight thousand five hundred ; and said city did, by an ordinance duly adopted by the councils thereof and approved by the mayor, accept the provisions of the said act, and cause to be filed in the Court of Common Pleas of the county of Lycoming, in which said city is situated, and also to be recorded by the recorder of deeds of said county, a duly certified copy of the said ordinance, the same being done prior to the passage of the supplement to the said act of 1877, approved May 1, 1.879, P. L. 44, and the supplement approved February 14, 1881, P. L. 6; and the said city of Williamsport, upon the filing and recording of the said ordinance as aforesaid, became, and still is, by the terms of the said act of 1877, and the supplements thereto, entitled to have a recorder for the purposes and with the jurisdiction and powers by the said act and its supplements provided.</p> <p>2. “ Defendant, who was and is a person duly qualified to hold the office of city recorder, within the requirements of the aforesaid act of 1877, and its supplements, was, on the fifteenth day of February, 1887, by the duly qualified electors of the city of Williamsport, elected to fill the office of city recorder of said city, and was, upon t]je fourteenth day of April, 1887, commissioned by the governor of the commonwealth of Pennsylvania, to hold said office for a term of five years, which term has not yet expired; and did, also, before entering upon the discharge of the duties of said office, give the bond required by § 13 of the aforesaid act of 1877, which bond was approved by the Court of Common Pleas of the said county of Lycoming, and filed and recorded as by the said act required; whereupon, by the terms of the aforesaid act of 1877, and its supplements, defendant became, and still is, entitled to hold the office of city recorder of the city of Williamsport.</p> <p>“ Wherefore, defendant prays the judgment of this honorable court whether he should be compelled to make any further answer to the said suggestion of the attorney general, and prays to 'be hence dismissed with his reasonable costs in this behalf most wrongfully sustained.”</p> <p>The same day, the commonwealth, by her attorney general, joined “ issue upon the matters alleged in the answer of the defendant.”</p> <p>The same day, a trial was ordered and a jury called, when the following admissions of fact were made :</p> <p>“ For the purposes of this ease, it is admitted that James B. Denworth, of the city of Williamsport, county of Lycoming, since January 1, 1889, used and exercised, and still does use and exercise, the office of recorder in and for the said city of Williamsport, under color of the act of assembly of March 24, 1877, entitled, . . . , and the supplement thereto of May 1, 1879, entitled, . . . , and another supplement thereto of February 14, 1881, entitled.....</p> <p>“ It is further admitted that the city of Williamsport was, at the time of the passage of said act of assembly and the supplements thereto, and still is, a city whose population does not exceed thirty thousand and is not less than eight thousand five hundred; that said city did, by ordinance duly adopted by councils and approved by the mayor, accept the provisions of said act, and caused to be filed in the Court of Common Pleas of Lycoming county and also to be recorded, a duly certified copy of said ordinance; the same being done prior to the passage of the supplements of May 1,1879, and February 14,1881; that the defendant is eligible to said office under the terms of said act, and was elected by the qualified electors of the said city of Williamsport on February 13, 1887, to fill said office of recorder, and was on April 14, 1887, commissioned under a commission (here produced and shown to the court) by the governor of the commonwealth, for the term of five years to be computed from June 4,1887; that he gave the bond required by the thirteenth section of the act of 1877, duly approved, filed and recorded.”</p> <p>Mr. Sanderson: The above admissions as to facts are subject to objection as to their relevancy. The commonwealth objects to the facts relating to the election of the said Denworth, and the acceptance of the provisions of the acts quoted, and their supplements; also to the oath, bond and commission as irrelevant.</p> <p>Thereupon, the court, McPherson, J., charged the jury:</p> <p>This proceeding is an action brought by the state against the recorder of the city of Williamsport. He was elected under the authority of certain acts of assembly which have been called to our attention, and which we believe to be unconstitutional. [We therefore instruct you to render a verdict in favor of the commonwealth, upon the ground that the acts are unconstitutional, and the defendant has therefore no authority to exercise the office which he has been exercising for the last two years.] Exception.1</p> <p>—The jury returned a verdict for the commonwealth; and on April 9,1890, “ judgment on the verdict.” On April 17th, the defendant filed a certiorari sur appeal to No. 18 May Term 1890, Sup. Ct., but on May 16th, on motion of the defendant’s attorney, a rule was granted to show cause why the judgment entered should not be stricken off. This rule, on December 10, 1890, was made absolute, the judgment theretofore entered stricken off, and it was ordered that a proper form of judgment be drafted by counsel and presented for signature. Subsequently the following order was signed:</p> <p>And, now, December 17, 1890, it is ordered, adjudged and decreed that the defendant, James B. Denworth, hath unlawfully assumed and exercised the duties of the alleged office of recorder of the city of Williamsport; that the act of assembly of March 24, 1877, and its supplements, under which the respondent claims to exercise the said office, are unconstitutional and void; that the defendant is therefore without title to the said office; that he be ousted and forever excluded from the actual exercise thereof, and that the commonwealth have and recover from the respondent the costs of this proceeding.3</p> <p>—Thereupon, the defendant took this appeal, specifying that the court erred :</p> <p>1. In the portion of the charge embraced in [ ] 1</p> <p>2. The facts upon which the issue was joined having been admitted, the learned court erred in not instructing the jury to render a verdict in favor of the defendant.</p> <p>3. In making the order, judgment, or decree.3</p>

No. 37 May Term 1891,' Sup. Ct.; court below, No. 154 September Term 1889, C. P. On June 20, 1889, John Hollenberger brought assumpsit against Daniel Yaukey, to recover $224.75, alleged to be due from the defendant to the plaintiff. The defendant pleaded non-assumpsit. At the trial, on September 8,1890, the facts appeared as stated in the charge of the court, Stewart, P. J.: We propose to relieve you of all consideration in this case and direct what your verdict shall be.

Nos. 42, 43 May Term 1891, Sup. Ct.; court below, Nos. 384, 385 January Term 1891, C. P. Returnable to December 22,1891, the Middletown Furniture Manufacturing Company brought assumpsit against the Philadelphia & Reading Railroad Co. On the same date, the same plaintiff brought trespass against the same defendant. The statements of claim filed were not exhibited in the paper-books. ASSUMRSIT, TO NO. 384.

Nos. 26, 27, 28, 29 May Term 1891, Sup. Ct.; court below, Nos. 81, 81, 82, 83 January Term 1891, C. P. no. 26.

<p>Nos. 50-58 May Term, 1891, Sup. Ct.; court below, Nos. 15-17 February Term 1891 and 6-9, 25, 26 May Term 1891, Q. S.</p> <p>On May 8, 1891, George B. Delamater, George Wallace Delamater and T. A. Delamater filed in the Supreme Court, to No. 50 May Term 1891, a petition for a writ of certiorari to the Court of Quarter Sessions of Crawford county.</p> <p>The petition recited an information, made against the petitioners before a justice of the peace by the county commissioners of Crawford county, on January 9, 1891, and an indictment in several counts based thereon; the latter, returned by the grand jury as a true bill on February 11, 1891, to No. 15 February Term 1891, of the Court of Quarter Sessions of said county, charging that the defendants, being engaged in carrying on a private bank at Meadville, under the firm name of Delamater & Co., and being insolvent, did with knowledge of their insolvency- receive from Henry M. Miller, treasurer of the county of Crawford, certain sums of money the property of said county, as deposits in their said bank, on certain specified dates; contrary to the form of the act, etc. The petition then averred as follows:</p> <p>“ That on the thirteenth day of February, 1891, the trial of said indictment was continued by the court; that the said case is for trial on Monday, May 11, 1891, and your petitioners are advised that it is the intention of the prosecution to force said case for trial at that time.</p> <p>“That there is great and undue excitement and prejudice existing in this case against your petitioners, not only on the part of the public generally, but upon the part of the jurors who would be empaneled to try the cause ; each and every one being interested and prejudiced against your petitioners by the repeated allegations and representations of the prosecutors, and charged in their complaint and in the indictment in this case, that it is the taxpayers’ and jurors’ money which has been used’ by the petitioners, and the recovery of the same will enter into the deliberations of the jury and greatly prejudice their minds.</p> <p>“ That there were over a thousand individual depositors in the said bank of Delamater & Co., the banking office of the defendants complained of in this case, and these resided in nearly every township and district in said county; and these depositors are greatly excited and prejudiced against your petitioners, by reason of the failure of said banking house, under a financial stringency and a sudden and unlooked for pressure upon the bank, to meet their claims. This excitement and prejudice extends from said depositors to their neighbors, relatives and friends in every district throughout the county, and has tended greatly to create and extend the hostility and prejudice against your petitioners, and to inflame and excite the citizens throughout the county against the defendants; and to such an extent as to render it impossible for the petitioners to have a fair trial in said county.</p> <p>“ In connection with these allegations, inflammatory articles against your petitioners have been printed in the public newspapers published in and circulated throughout the county, increasing the excitement and prejudice against your petitioners; and to such an extent as will prevent a fair and impartial trial of the case in this county.</p> <p>“ In support of these representations, your petitioners respectfully present the sworn statements of a large number of citizens and taxpayers residing in different parts of the county, and desire that the same be considered as part of this petition.</p> <p>14 That if your petitioners are tried in Crawford county, they would be tried by a jury selected from the body thereof, who, by reason of the excitement and interest as taxpayers, are greatly prejudiced against your petitioners; that your petitioners aver that a fair and impartial trial cannot be had before a jury of Crawford county, where said interest, excitement and prejudice exist; that no relief is afforded your petitioners by the provision of any act of assembly; there being no provision made, as they are advised, for a change of venue in a case like the present, which is a misdemeanor and not a felony.</p> <p>“ At the term of Court of Quarter Sessions to which said information was returnable, the said case was continued and proceedings were had looking to a settlement of the affairs of said bank, and your petitioners were led to believe from time to time that the case would not be called for trial at the present term, but would be continued and eventually discontinued; that only within a very few days last past, they have been authoritatively advised that the case would be pressed for trial on Monday next; and unless some relief be afforded by this Honorable Court, your petitioners will be forced to trial under the excitement and prejudice described.</p> <p>“ Wherefore your petitioners, protesting that they are not guilty of the offences charged in said indictment, respectfully submit that they are willing, ready and anxious to meet the trial of the issues involved, in any district removed from the great excitement and prejudice existing in this county. Therefore, your petitioners pray your Honorable Court to issue a writ of certiorari directed to said Court of Quarter Sessions of the Peace in and for the county of Crawford, directing said court to forthwith certify to this Honorable Court the record and all proceedings in relation to said case of the Commonwealth v. George B. Delamater, George W. Delamater and T. A. Delamater, at No. 15 February Term 1891, of said court, and that upon return of said writ, your honors will proceed in accordance with law to the trial, decision and determination of said case; and for such other and further relief as to your honors shall seem meet and the circumstances of the case may require.”</p> <p>The foregoing petition was verified by the affidavit of the petitioners, and accompanied with affidavits of eighteen citizens of Crawford county, to the effect, in substance, that there was undue excitement against the defendants throughout said county, especially among the taxpayers and jurors likely to be empaneled to try the case, and such great prejudice that, in the opinion of the affiants, a fair and impartial trial could not be had therein.</p> <p>On the filing of the petition, the Supreme Court made the following order:</p> <p>Per Curiam:</p> <p>The petition of G. B. Delamater and others, and affidavits, having been presented and considered, it is ordered that a rule to show cause why a writ of certiorari should not be issued to remove the record, indictment and proceedings in the above case into this court, be granted, returnable to the first day of the next term in the Middle District, at Harrisburg; a copy of this rule to be served upon the district attorney of Crawford county.</p> <p>Mr. Justice Sterrett dissented from the order, on the ground that no application had been made to the Court of Quarter Sessions for the continuance of the cause.</p> <p>Subsequently, George B. Delamater, G. W. Delamater and T. A. Delamater filed to Nos. 52, 54, 55, 57 May Term 1891, Sup. Ct., other petitions, similar in form, praying for writs of certiorari to remove indictments against the petitioners, at No. 17 February Term, and Nos. 7, 8, 25 May Term 1891, of the Court of Quarter Sessions of Crawford county, wherein they were charged with receiving deposits at their bank aforesaid from divers individuals, after becoming insolvent and with knowledge of their insolvency. Like petitions were filed, also, by Victor M. Delamater to Nos. 51, 58, 56, 58 May Term 1891, Sup. Ct., praying for the removal of indictments against the petitioner, at No. 16 February Term and Nos. 6, 9, 26 May Term 1891, of said Court of Quarter Sessions, charging him with receiving, as cashier of the bank aforesaid, deposits from certain individuals respectively, with knowledge that Delamater & Co. were insolvent. With these petitions were filed additional affidavits of fifty-eight citizens of Crawford county, tending to show the existence of excitement and prejudice against the defendants on the part of the people of said county ; copies of newspaper publications in the Morning Star, a paper published at Meadville, containing comments unfavorable to the defendants, it being averred in the petitions that many similar- publications had been made in the newspapers of the county; and a copy of an anonymous threatening letter addressed to G. W. Delamater, attached to an affidavit averring that it was received through the post-office on May 10,1891, and that many similar letters had been received by G. W. Delamater within the last few months. On the filing of these petitions, the court made orders granting rules to show cause similar to the order made at No. 50 May Term.</p> <p>On the return day of the rules, the district attorney of Crawford county filed an answer denying that there existed such excitement and prejudice against the defendants, on the part of the citizens of Crawford county, as would prevent the securing of a fair and impartial jury, and a fair and impartial trial; averring that the tone of the newspapers of said county had been generally fair and conservative, that the majority of them were friendly to the defendants, and that the circulation of the Morning Star was confined chiefly to Meadville and its vicinity ; that the failure of Delamater & Co caused a loss of several thousand dollars to the taxpayers of the entire state, and the prosecutions had been discussed and commented on by the press throughout the state; and that the applications of the defendants were not made in good faith, for the reasons stated in their petitions, but in the hope that an order for the trial of the cases elsewhere than in Crawford county, would result in their abandonment by reason of inability of the prosecutors to bear the expense of such trials. The answer was accompanied by two hundred and fifty affidavits, made by citizens of Crawford county, denying the allegations of the defendants as to the existence of excitement, etc., and expressing the opinion that an impartial jury could be secured and a fair trial had in that county without difficulty, each affidavit stating the age and occupation of the affiant and the district of the county in which he resided.</p>

No. 19 May Term 1891, Sup. Ct.'; court below, No. 22 March Term 1890, C. P. On January 17, 1890, John E. Horstick brought trespass against J. A. Dunkle and J. B. Ewing, to recover for personal injuries averred to have been caused by negligence of the defendants. The defendants pleaded not guilty.

No. 3. May Term 1892, Sup. Ct.; court below, No. 218 September Term 1891, C. P. On June 30, 1891, upon a suggestion filed by Mr. W. U. Hensel, attorney general, the court below awarded a writ of. quo warranto against D. J. Waller, Jr., requiring him to show by what warrant he claimed to have and exercise the office of superintendent of public instruction; whereupon, the defendant appeared and filed a plea setting up title in himself to said office.

No. 3 May Term 1891, Sup. Ct.; court below, No. 107 January Term 1890, C. P. On January 25, 1890, an appeal was entered by tbe defendant from the judgment of a justice of the peace in favor of Ida G. Horner against Sarah P. Horner. On the same day, the defendant entered a rule on plaintiff “ to declare in thirty days from January 27, 1890, or judgment.” On February 11,1890, the plaintiff filed a statement of claim upon a note as follows : “ $275.

Nos. 46, 47 May Term 1891, Sup. Ct.; court below, No. 90 June Term 1889, C. P. On March 27, 1889, the Pennsylvania Company entered in the court below an appeal from an account for taxes on capital stock, settled by the auditor general and state treasurer.

No. 17 May Term 1890, Sup. Ct.; court below, No. 512 September Term 1887, C. P. On October 6, 1890, tbe judgment of the court below was reversed in the Supreme Court, on the appeal of the plaintiff in the case of the Commonwealth against the Philadelphia & Reading Coal & Iron Company—see Commonwealth v. Coal & Iron Co., 137 Pa. 481,—and judgment entered for the plaintiff, and against the defendant, for the sum of $44,227 and costs, accompanied with the following memorandum:…

No. 13 October Term 1891, Sup. Ct.; court below, No. 19 June Term 1890, O. and T. On June 20,1890, the grand jury returned as a true bill an indictment, based upon the return of a coroner’s inquest, charging Frank Gerade with the murder of Annie Hofer.

No. 9 October Term 1890, Sup. Ct.; court below, No. 251 June Term 1888, C. P. On April 25, 1888, Jacob J. Weaver brought ejectment against John Brenner, for a parcel of land in Summerhill township, containing fifty acres, more or less. On July 1, 1889, after a trial before arbitrators and an appeal from the award, Amos Plummer, committee in lunacy of the defendant, appeared, and filed a plea of not guilty as to part of the land and a disclaimer as to another part.

No. 131 October Term 1891, Sup. Ct.; court below, No. 606 March Term 1891, C. P. No. 1.

No. 191 October Term 1889, Sup. Ct.; court below, No. 344 May Term 1887, C. P. On March 30, 1887, Adam Robb brought trespass on the ease against Carnegie Brothers & Co., Limited, to recover damages for injuries to the plaintiff’s land, arising from the operation of certain coke ovens by the defendants. The defendants pleaded not guilty and the statute of limitations.

No. 124 October Term 1890, Sup. Ct.; court below, No. 116 February Term 1891, C. P. Returnable to the first Monday of January, 1891, the Western & Atlantic Pipe Lines, a company incorporated under the act of April 29, 1874,.

No. 73 October Term 1890, Sup. Ct.; court below, No. 173 April Term 1888, C. P. No. 2. To the number and term of the court below, an appeal was entered by the defendant from the judgment of an alderman entered on December 29, 1887, in favor of Frank Sweeny against W. W. Hunter, for the sum of $43. Issue.

<p>Nos. 37, 36, 38 October Term 1891, Sup. Ct.; court below, No. 8 September Term 1890, Q. S.</p> <p>no. 37.</p> <p>On December 22,1890, John.R. Tate caused to be presented to Mr. Justice Clark at Chambers, a petition for a writ of habeas corpus directed to Samuel W. Bell, sheriff of Lawrence county. The petition made the following averments:</p> <p>“ That on the fifteenth day of December, 1890, at No. 8 September Sessions of the Court of Quarter Sessions of Lawrence county, there was pending and undetermined an indictment against one William D. Wallace, wherein it was charged:</p> <p>“1. That the said William D. Wallace did, on the third day of July, 1890, unlawfully and corruptly promise and agree to give to the said John R. Tate and others, electors and delegates to a nominating convention, convened for the nomination of a candidate for congress in the twenty-fifth congressional district, certain gifts or rewards, to wit, a large sum of money, to wit, $1,200, in consideration that the said John R. Tate and others, electors and delegates aforesaid, would give and'cast their votes in said convention for the nomination of Alexander McDowell, as a candidate for the office of congressman aforesaid ; the said Alexander McDowell being a candidate for said nomination.</p> <p>“2. That said William D. Wallace 'did, on the same day, unlawfully and corruptly solicit, encourage and request the said John R. Tate and others to receive and accept said sum of money as a bribe and pecuniary reward to induce and influence them to make and join in the nomination of said Alexander McDowell as a candidate for said office.</p> <p>“ That on the same fifteenth day of December, 1890, at No. 11 September Session of said court, there was pending and undetermined an indictment charging:</p> <p>“1. That your petitioner, John R. Tate, elector and delegate in the convention aforesaid, did on the third day of July, 1890, unlawfully, wickedly and corruptly accept and receive from said William D. Wallace, and divers other persons unknown, friends of Alexander McDowell, a candidate as aforesaid, a certain gift or reward in money, to wit, the sum of $650, under an agreement and promise that he, the said John R. Tate, elector and delegate as aforesaid, in said convention would give his vote for the nomination of said Alexander McDowell as the candidate aforesaid; and that John R. Tate did on the same day unlawfully, wickedly and corruptly accept and receive the promise of said William D. Wallace and other persons unknown, friends of said Alexander McDowell, that he, the said John R. Tate should thereafter receive a certain gift or reward in money, to wit, the sum of $650, if he, the said John R. Tate, would give his vote in said nominating convention for the nomination of said Alexander McDowell.</p> <p>“ And 2. That said John R. Tate, afterwards on the same day, in pursuance of said unlawful, wicked and corrupt agreement and promise, did give his vote for the nomination of said Alexander McDowell, and did thereupon unlawfully, wickedly and corruptly accept and receive from said William D. Wallace and others unknown, said gift or reward in money, to wit, the sum of $650.</p> <p>“ And 8. That on the same day said John R. Tate did unlawfully, wickedly and corruptly offer and agree with the said William D. Wallace and others unknown, friends of said Alexander McDowell, to give his vote at said nominating convention to said Alexander McDowell, in consideration that for his said vote for said Alexander McDowell, he, the said John R. Tate, should receive a gift or reward in money, to wit, the sum of $650.</p> <p>“And 4. That on the same day, said John R. Tate, a delegate elected from Beaver county, and acting as a delegate in said convention, unlawfully, wickedly and corruptly did solicit, accept and receive from said William D. Wallace and others unknown, a certain bribe in money, to wit, the sum of $650, to induce and influence him, the said John R. Tate, to make and join in the nomination for said office of said Alexander McDowell.</p> <p>“And 5. That on the same da}7, the said John R. Tate, acting as a delegate in said convention, did unlawfully, wickedly and corruptly solicit, accept and receive from said William D. Wallace and others unknown, a certain bribe in money, to wit, the sum of $650, to induce and influence him, the said John R. Tate, then and there to make and join in the nomination for said office of said Alexander McDowell.</p> <p>“ That on the said December 15, 1890, the said William D. Wallace being on trial before the honorable A. L. Hazen, president judge, and his associates and a jury, in the county of Lawrence aforesaid, upon the indictment first above mentioned, your petitioner, John R. Tate, was called as a witness in behalf of the commonwealth against said William D. Wallace, and being duly sworn was inquired of by the acting district attorney as follows:</p> <p>“ Q. State, Mr. Tate, whether you ever heard the defendant in this case, Mr. Wallace, talk about drawing a check at any time during the nominating convention held in this city ?</p> <p>“ Q. State whether you ever heard him make any offers or promises of money to Thomas J. Downing and Edwin Shaffer, in connection with any other person, in case they would vote for Major McDowell?</p> <p>“Q. Did you have any conversation with William D. Wallace about how you should vote that day ?</p> <p>“ Q. State whether Mr. Wallace had any packages of envelopes there that day with money in them.</p> <p>“Q. State whether Mr. Wallace offered any money to Thomas J. Downing and Edwin Shaffer, in connection with any other parties ?</p> <p>“ Q. Was he soliciting you to vote for Major McDowell at the times you were in his office ?</p> <p>“ Q. At the times you were in his office, on the last day of the convention, did he offer you, Downing, or Shaffer, any money as an inducement in case you would vote for Major McDowell, and, if so, how much?</p> <p>“ Q. Didn’t you, when you were asked in the grand jury at the last term of court, whether Mr. Wallace, had offered you $1,200, yourself, Tate, Shaffer and Downing, the last day of the convention, and didn’t you answer that question and say he had? •</p> <p>“Q. Mr. Tate, state whether you ever heard Mr. Wallace talk about drawing a check at any time during the last nominating convention ?</p> <p>“ Q. State whether you know or heard of Mr. Wallace offering to anybody any money there in his office that day ?</p> <p>“ Q. State whether or not Mr. Wallace said anything about drawing a check for any persons, in case they would vote for Major McDowell, and if so, how much, and to whom ?</p> <p>“ Q. Was he soliciting }rou to vote for Major McDowell at the times you were in there in his office ?</p> <p>“ Q. State, Mr. Tate, whether Mr. Wallace, at the time you were in there on the last day of the convention, offered you, Downing, or Shaffer, any money in case you would vote for Major McDowell, and if so, how much, as an inducement to influence you to vote for Major McDowell ?</p> <p>“ Q. Going back to the time that you and Mr. Downing and Mr. Shaffer met Mr. Wallace coming up street, state whether you went into a side street together ?</p> <p>“ Q. You have stated you were in the office of Mr. Wallace the final day of the convention; was there anything said to you by Mr. Wallace that day as to your vote for Major McDowell ?</p> <p>“ Q. Did Mr. Wallace say anything to you about voting for Major McDowell on the third ballot that afternoon ?</p> <p>“Q. State, Mr. Tate, whether Mr. Wallace offered you, Thomas Downing, and Edwin Shaffer, $1,200 in case you would vote for Major McDowell that afternoon on the third ballot ?</p> <p>“ Q. Did he say anything to you about voting for Major McDowell that afternoon ?</p> <p>“ To which several questions your petitioner declined to make answer, stating to the court as the reason for his refusal to answer, that his answers would tend to criminate him, and that he had been so advised by his counsel. Whereupon, the president judge required and directed said John R. Tate, your petitioner, to answer said several questions, stating to.him that his answer could not be used against him in any criminal proceeding against him. But your petitioner still refusing to answer, for the same reason above stated, and also under the advice of his counsel, the court, on December 16, 1890, adjudged him guilty of contempt and committed him to the common jail in custody of the sheriff, until such time as he would purge himself of the contempt.</p> <p>“ Your petitioner was imprisoned in the common jail in the custody of the sheriff until December 17,1890, when he was, by the direction of the court, brought into court, and being inquired of by the president judge, whether he still persisted in his refusal to answer the several questions aforesaid, answered that he did, for the same reasons before stated, whereupon he was remanded to said jail. And, in the afternoon of the same day, being again by the direction of the court brought into court, he, through his counsel, stated to the court that he in refusing to answer the questions asked him on the part of the Commonwealth in the case of Commonwealth v. William D. Wallace, at No. 8 September Sessions 1890, and for which refusal he had been convicted of contempt by said court, had in such refusal no purpose or intention of contumacy or of interfering with'or preventing the course of justice; on the contrary, he said that he was indicted in the same court, at No. 11 September Sessons 1890, for the alleged offence of receiving bribes, offering to accept and receive bribes from William D. Wallace to give his vote, while a delegate to the same nominating convention charged in the indictment against Wallace, and employed counsel to conduct his defence in said case; that his counsel aforesaid had advised and counseled him and he verily believed that an answer to the said questions would tend to criminate him and, could be used as evidence against him on the trial of the case against him; and further, he was so advised and verily believed that the course pursued by him as aforesaid was the only means by which he could protect his legal rights in the conduct of his own defence. He further showed to the court, that with all due respect to his Honor’s judgment, he was still advised by his counsel, that in their opinion the said adjudication was erroneous, and that he intended to remove the case to the Supreme Court, in order that the said judgment might be reviewed therein ; and further, he said that if the Supreme Court should hold and decide that he ought to answer said questions, and his answers would not tend to criminate him, and could not thereafter be used against him, that he would then be willing to answer them. The court thereupon sentenced your petitioner as follows:</p> <p>“ ‘ And, now, December 17,1890, the witnesses, Edwin Shaffer, alias Edward Shaffer, Thomas J. Downing and John R. Tate, are each sentenced to pay a fine of two hundred dollars to the commonwealth, and each to undergo an imprisonment in the common jail in and for the county of Lawrence, until the tenth day of March next; and stand committed to the custody of the sheriff for the purpose of carrying this sentence into effect.’</p> <p>“ By virtue of which, your petitioner is now in the said common jail, in custody of Samuel W. Bell, sheriff.</p> <p>“ Your petitioner therefore avers, that he is unjustly restrained of his liberty and confined in the said common jail of the said county of Lawrence, in the custody of the said Samuel W. Bell, high sheriff of said county, as appears by the warrant of commitment, a copy of which is hereunto attached.</p> <p>“ And therefore prays your Honor to grant a writ of habeas corpus directed to Samuel W. Bell, sheriff, to bring before your Honor your petitioner’s body to do, submit to, receive and abide by whatsoever your Honor shall consider in that behalf.”</p> <p>Upon the presentation of the foregoing petition, Mr. Justice Clark made an order awarding a writ of habeas corpus, returnable forthwith at chambers at Indiana. The writ having been issued and served, the sheriff of Lawrence county, on December 23, 1890, made return thereto that he held the relator in custody by virtue of a certified record of a commitment of which the following was a copy :</p> <p>“ Commonwealth v. “ W. D. Wallace.</p> <p>In the Court of Quarter Sessions of Lawrence county, Pennsylvania. No. 8 September Sessions 1890.</p> <p>“ And now, December 17, 1890, the witnesses Edwin Shaffer, alias Edward Shaffer, Thomas J. Downing and. John R. Tate, are each sentenced to pay a fine of two hundred dollars to the commonwealth, and each to undergo an imprisonment in the common jail in and for the county of Lawrence, until the tenth day of March next; and stand committed to the custody of the sheriff for the purpose of carrying into effect this sentence.</p> <p>By the Court.”</p> <p>Thereupon, the following order was made, Mr. Justice Clark:</p> <p>“ And now, December 23, 1890, this writ of habeas corpus Laving been served, and return thereto made by the sheriff of Lawrence county in due form, the further hearing is continued to the second Monday in January next, at 11 o’clock A M., before the court in banc in the Eastern District, the proceedings to be duly certified by the prothonotary to the Eastern District, to that end; the relator, upon his first entering bail with approved sureties in the sum of $2,500, conditioned for his appearance in the Supreme Court of Pennsylvania on the day and hour aforesaid and that he remain and not depart without leave, but will abide the order of the court in the premises, to be discharged from custody; otherwise the relator to be remanded to the custody of said sheriff. Bail having been entered with sureties as required, the relator is discharged from custody.”</p> <p>nos. 36, 38.</p> <p>With the petition of John R. Tate, similiar petitions were presented to Mr. Justice Clark on behalf of Thomas J. Downing and Edwin Shaffer respectively, these petitioners having been committed by the Court of Quarter Sessions of Lawrence county, at the same túne with Tate, for contempt in refusing to answer questions put to them as witnesses upon the trial of William D. Wallace, which were in the main the same in substance as the questions set out in Tate’s petition, though Downing and Shaffer were asked, in addition, whether they liad received anything from Wallace in consideration of voting for Major McDowell. ' The facts with reference to their refusal to testify in answer to these questions, and the action of the Court of Quarter Sessions thereon, were similar to the facts in the case of Tate. Upon these petitions, similar orders were made by Mr. Justice Clakk, and similar returns were made to the writs of habeas corpus by the sheriff.</p>

No. 1 October Term 1891, Sup. Ct.; court below, No. 120 April Term 1890, C. P. To tbe number and term stated of the court below, an amicable action was entered by John C. Shields, executor of the will of George P. Delo, deceased, against D. M. Delo; and by agreement, the following case was stated for the opinion of the court, in the nature of a special verdict, with the right to either party to enter an appeal to the Supreme Court: “ George P. Delo, of the township of Salem,…

No. 87 October Term 1891, Sup. Ct.; court below, No. 447 August Term 1883, C. P. On August 18,1883, an appeal was entered from the judgment of a justice of the peace in an action by William Wray against H. P. Spence and Daniel Steiner. On December 10, 1884, the plaintiff filed his declaration in assumpsit, and on December 27th, the death of the plaintiff was suggested, and his administrators, James Wray and William A. Wray, were substituted.

No. 181 October Term 1890, Sup. Ct.; court below, No. 1 September Term 1888, C. P. in Eq. On July 20, 1888, the Bridgewater Ferry Company filed a bill in equity against the Sharon Bridge Company, praying upon the facts therein averred, (1) for an injunction restraining the defendant company, its agents and servants, from erecting its bridge as then located, or within three thousand feet of the route or terminal points of the plaintiff company ; (2) for other relief.

No. 281 October Term 1891, Sup. Ct.; court below, No. — August Term 1891, Q. S. On August 24, 1891, the grand jury returned as a true bill an indictment charging Thomas McMahon, Michael McMahon and Charles Miller, in one count with burglary, and in another, with aggravated assault and battery, on the information of JT. L. Anderson. The indictment being certified into the Court of Oyer and Terminer, the prisoner Thomas McMahon was duly arraigned, and pleaded not guilty. Issue.

<p>No. 88 October Term 1891, Sup. Ct.; court below, No. 586 May Term 1888, C. P.</p> <p>On April 28, 1888, Jacob E. Whitehead brought assumpsit against the school district of North Huntingdon township. The plaintiff’s statement of claim, verified by his affidavit and filed with the prsecipe, averred in substance that by a contract in writing the defendant school district employed the plaintiff to teach in Byerly school house No. 4, for a term of seven months beginning in September, 1887, at a salary of $40 per month; that the plaintiff entered upon the performance of his duties as a teacher at said schoolhouse on September 12,1887, and continued to discharge the same until December 19, 1887, when he was dismissed and ousted from his school by the defendant, without reasonable cause and for none of the causes specified in paragraph V., § 28, act of May 8,1854, P. L. 622 ; that during all the term .specified in the contract the plaintiff was ready and willing and able to perform his part thereof, and by reason of his dismissal and ouster he had been damaged in the sum of $160. Appended to the statement of claim was an account charging the defendant with seven months’ salary, at $40 per month, $280, and giving credit for cash paid on account, $120. A copy of the written contract was also appended. It purported to be signed on behalf of the defendant by John Wilson, president of the board of school directors, and countersigned by A. Locke, secretary.</p> <p>The defendant filed an affidavit of defence, averring, in substance, that the plaintiff was charged on November 2, 1887, with having inflicted cruel and severe punishment and treatment on Mary Biliingsly, a pupil in the school taught by him, and that after an investigation of the charge the board of school directors, convened in session on November 12, 1887, requested the plaintiff to resign his position as teacher; that the plaintiff refused to resign, and on November 17, 1887, the board of directors, by unanimous resolution, dismissed him from his employment as teacher, the dismissal to take effect at the end of said month, of which dismissal the plaintiff had due notice, and if he continued to teach said school thereafter, until December 19th, he did so in violation of the action of the directors as aforesaid, and contrary to the notice so given him ; that, under and by virtue of the contract upon which the plaintiff’s action was brought, there was reserved to the board of directors the right to dismiss the plaintiff for any of the causes specified in paragraph V., § 23, act of May 8, 1854, P. L. 622, one of which is cruelty; “and in pursuance of the power and discretion vested in them by the above-recited act of assembly, the terms of said contract and in discharge of their duties as directors, they having dismissed the said plaintiff as aforesaid from his employment aforesaid for the cause of cruelty, so as aforesaid investigated and established, they deny any and all liability of the defendant to the plaintiff as alleged in his affidavit of claim.”</p> <p>The defendant subsequently pleaded non assumpsit, with leave to give in evidence the special matter contained in the affidavit of defence, the same being referred to and made part of the plea.</p> <p>Among the Rules of the court below were the following:</p> <p>“ 6. In actions founded upon deed, bond, bill, note or other instrument of writing, a copy of which shall be filed with or before the declaration, it shall not be necessary for the plaintiff on the trial to prove the execution thereof, or the handwriting of the makers, drawers, indorsers or acceptors thereof; but the same shall be taken as admitted, unless the defendant by affidavit, filed with or before his plea, shall deny that the same was executed by him or with his authority, or that the handwriting is the proper handwriting of said parties.”</p> <p>“ 8. If the plaintiff shall file, on or before the return day of the writ, a specification of the items of his claim and a statement of -the facts necessary to support it, verified by affidavit, such items of the claim and material averments of fact as are not directly traversed or denied by the affidavit of defence shall be taken as admitted.”</p> <p>At the trial, on March 5, 1890, the plaintiff offered in evidence the contract set out in the statement of claim, as having been admitted by the pleadings. The court, overruling an objection by defendant’s counsel, admitted the offer, whereupon the contract was read to the jury. The plaintiff then testified that in pursuance of that contract he taught the Byerly school from September 12, to December 19, 1887, when the directors told him to cease teaching and demanded the key from him ; and that for the time he actually taught there was owing to him from the school district §182, of which he had been paid §120. On cross-examination, he stated that he had been called before the board for a hearing in regard to some trouble in the school, before he was notified to quit teaching.</p> <p>The plaintiff’s case being rested, the defendant called Mary Billingsly and made the following offer:</p> <p>Defendant’s counsel propose to prove by the witness on the stand, who is the young girl on whom the cruelty, as is charged-by the defendant, was committed, the conduct of the teacher in the school at the time; to establish and show for what purpose he was discharged by the directors: for the purpose of showing justification of the conduct on the part of the directors, and to show further that the plaintiff is not entitled to recover under the contract.</p> <p>Objected to, as incompetent and irrelevant.</p> <p>By the court: Objection overruled, offer admitted; exception.1</p> <p>The witness then testified that she was a pupil in the Byerly school; that the plaintiff on November 2, 1887, knocked her down by striking her on the face, rendering her insensible, and causing her face to swell so as to entirely close one of her eyes. Other witnesses testified for the defendant in corroboration of this testimony.</p> <p>The defendant called also John Wilson, the president of the board of school directors, and proposed to show by him the nature and character of the investigation of the charges of cruelty preferred against the plaintiff; how the investigations were conducted, and when the teacher, the plaintiff, was dis missed by the board, and for what reason: this for the purpose of showing that the defendant complied with the law in the hearing and investigation, and that the plaintiff was dismissed properly and legally; and to show that the contract produced in evidence is void thereby.</p> <p>To which offer counsel for the plaintiff objected because it was incompetent and irrelevant: (1) Because the only evidence of dismissal which the law recognized is the minutes of the board of directors. (2) Because it was incompetent and irrelevant whether the board acted upon sufficient or insufficient evidence, so that the board, as such, took action in the manner directed by the act of assembly. (3) The minutes of the board were the best evidence, and secondary evidence was not admissible when the minutes themselves might be produced.</p> <p>By the court: Objection overruled; exception.8</p> <p>The testimony of this witness was substantially to the same effect as the averments contained in the affidavit of defence and he was corroborated by other members of the board.</p> <p>The defendant offered in evidence a minute of the board of school directors, reading as follows:</p> <p>“Mr. J. E. Whitehead, teacher at Byerly’s, demanded a hearing of the board. After a long discussion of his case of cruelty, the board resolved to dismiss him, Mr. J. E. Whitehead, and notified him verbally that he should cease to teach at the end of November.”</p> <p>Objected to.</p> <p>By the court: Offer admitted; exception.3</p> <p>The testimony being closed, the court, Doty, P. J., charged the jury in part as follows:</p> <p>The plaintiff alleges that the dismissal was illegal, and that it does not operate as a defence. This claim is based on the. fourth section of the act of April 11, 1862. This section provides substantially as follows: That whenever a teacher is appointed or dismissed by any school board, it must appear that it was by the affirmative votes of a majority of the whole number of directors or controllers; and in such case the names of the members voting both in the affirmative and negative shall be so entered on the minutes of the board by the secretary. Now, it has been repeatedly held by the Supreme Court that in the appointment and dismissal of teachers in a school district, the provisions of the act of assembly must be strictly complied with. These minutes, therefore, in order to comply with this act of assembly, ought to show either the names of the members voting both in the affirmative and negative of the question of dismissal, or that all the school directors were present, and that the vote was unanimous upon that question. But these minutes do not show either the names of those voting upon the affirmative or negative of the question, nor do they show that the whole board was present and that the vote was unanimous. Nor was it competent, we now think, to introduce parol evidence to show that the whole board was present and that the vote was unanimous. The minutes ought to disclose this fact, if fact it be, upon their face.</p> <p>[But this act of assembly, like any other rule of evidence, is intended to operate equally on all parties. The plaintiff is controlled by it as well as the defendant, and before the plaintiff can recover he must show that he was legally employed. Exhibiting a contract signed by himself and the president and secretary of the school board, is not such an employment as is required by this act of 1862. He fails to bring himself within the requirements of this statute, and this is the foundation of his claim. The able counsel who represent the plaintiff, contend that technically, if not actually, they have shown the existence of a legal employment or contract with the defendant township. In this contention we do not agree. It is alleged that the plaintiff’s narr sets forth such employment, but the plea here is non assumpsit, which denies any such employment. It is further alleged, however, that under provisions of a Rule of Court which we have, the affidavit of claim sets forth that the employment was legally made, and that this averment in the affidavit of claim is not denied in the affidavit of defence which is filed in the case. The only way in which advantage can be taken of this Rule of Court, however, is by making a formal offer so as to bring the matter in evidence before the court and jury; a formal offer of the affidavit of claim in so far as it is not contradicted by the affidavit of defence. That was not done in this case; so that the matter is not before the court and the jury; and we have no evidence whatever of any employment in accordance with the provisions of this act of 1862, unless it be the mere contract which is signed by the president and secretary of the board, and which is in evidence. This we regard as insufficient. We think, therefore, that the plaintiff has failed to make out such a case as will justify a recovery upon his part. The court, therefore, assumes the responsibility of this case, with this view of the law, and we therefore direct you to return a verdict in favor of the defendant.] 4.....</p> <p>—The jury returned a verdict for the defendant as directed. Judgment having been entered, the plaintiff took this appeal, assigning for error:</p> <p>1-8. The admission of defendant’s offers.1 to 3</p> <p>4. The part of the charge embraced in [ ] 4</p>

No. 111 October Term 1891, Sup. Ct.; court below, No. 424 May Term 1887, C. P. On April 9,1887, Paul Clark brought trespass on the case against the Pennsylvania Railroad Company, to recover damages for a diversion by the defendant of the water of a stream known as Clark’s run. Subsequently, the record was amended by adding the names of Dixon Bennett and N. J. Bennett, his wife, in right and for the use of said N. J. Bennett, as co-plaintiffs with Paul Clark.

No. 127 October Term 1891, Sup. Ct.; court below, No. 54 February Term 1891, Q. S. On February 5, 1891, the grand jury returned as a true bill an indictment charging J. Charles Dicken with maintaining a public nuisance. The defendant pleaded not guilty.

No. 129 October Term 1891, Sup. Ct.; court below, No. 18 March Term 1891, O. C. On January 24,1890, George J. Harbison, executor of the will of Rebecca J. Harbison, deceased, filed his account, showing a balance due the estate; and on March 17th, the account being confirmed, Mr. J. F. Feed was appointed auditor to distribute said balance to the persons entitled thereto.

Nos. 135, 147 October Term 1891, Sup. Ct.; court below, No. 2 January Term 1886, C. P. in Eq. On December 19, 1885, Patrick McCullough, for himself and as executor of the will of Patrick McCullough, deceased, filed a bill in equity against W. W. Barr, administrator of Patrick Graham, deceased, Caroline Graham and others, widow and heirs of said Patrick Graham, deceased, averring: “ 1.

Nos. 142, 150, 151 October Term 1891, Sup. Ct.; court below, Nos. 164,-828 January Term 1890; No. 105 April Term 1890, C. P. On November 27,1889, judgment was entered in the court below, by the prothonotary, to No. 164 January Term 1890, in favor of the Farmers’ and Drovers’ National Bank of Waynesburg, against Daniel W. Braden, David A. Shull and Levi Pettit, upon a judgment note under seal, dated July 2, 1889, executed by the defendant Braden as principal, and by the…

No. 213 October Term 1890, Sup. Ct.; court below, No. 58 September Term 1888, C. P. On June 22, 1888, service was made of a summons in an action of assumpsit brought by Philip E. Chapin against the Cambria Iron Company.

No. 77 October Term 1891, Sup. Ct.; court below, No. 32 March Term 1890, C. P. On January 7, 1890, Robert VanHorn brought ejectment against James H. Munnell and James S. Munnell, executors of Abraham VanHorn, deceased,'David Fox and Rachel Fox, for a tract of land in Slipperyrock township. The defendant, Rachel Fox, not having appeared, judgment was entered against her by default. The executors above named pleaded not guilty.

No. 78 October Term 1891, Sup. Ct.; court below, No. 14 December Term 1890, G. P. On September 27,1890, the Pittsburgh & Lake Erie Railroad Company filed its petition for the appointment of viewers to assess damages for the appropriation by said company of a certain strip of land belonging to Robert Graham, for the purposes of its railroad. Viewers appointed having made a report assessing damages, the railroad company entered an appeal therefrom on November 20,1890.

No. 79 October Term 1891, Sup. Ct.; court below, No. 815 December Term 1885, C. P. On December 3, 1885, judgment was entered in the court below in favor of James H. McCain, executor of John Gilpin,; deceased, for $7,095.37, upon a note under seal signed by Peter P..

No. 217 October Term 1891, Sup. Ct.; court below, No. 338 March Term 1888, C. P. On February 24,1888, J. W. Johnston brought account-render against J. H. McCain, executor of John Gilpin, deceased. The defendant pleaded, inter alia, the statute of limitations.

No. 288 October Term 1891, Sup. Ct.; court below, No. 21 December Term 1891, C. P. On September 11, 1891, an amicable action of assumpsit, between Jessie R. Morrison, plaintiff, and Simon Truby, Jr., defendant, was entered in the court below, the following agreed, statement of facts being submitted for the opinion of the court, as if found by special verdict: “ 1.

No. 28 October Term 1891, Sup. Ct.; court below, No. 789 December Term 1889, C. P. No. 1. To the first Monokay of December, 1889, Mary McCrea brought assumpsit against the School District of Pine township, for salary as a teacher. Issue.

<p>No. 267 October Term 1891, Sup. Ct.; court below, number and term not shown.</p> <p>On May 28,1890, the account of Joseph S. and Samuel S. Miller, executors of the will of Samuel P. Miller, deceased, was confirmed, showing a balance of $18,210.56 in the hands of accountants, composed of the proceeds of both real and personal estate. On July 26th, on motion the court appointed Mr. John Gr. Ogle auditor to ascertain advancements and make distribution.</p> <p>The auditor filed a report finding that Samuel P. Miller, the testator, died on February 22,1888, leaving a widow, Susannah Miller, and certain heirs at law, among whom were Susannah Mognet, a daughter, and Albert Myers, the son of the testator’s deceased daughter Barbara, who had been the wife of Samuel P. Myers. The will of the testator, dated January 26, 1886, duly admitted to probate on March 1, 1888, contained the following provisions:</p> <p>“ I give and bequeath to my wife Susannah, should she outlive me, the sum of one thousand dollars.....and the interest of three thousand dollars to be paid her annually by my executors, hereinafter named, as long as she shall bear my name.</p> <p>“ I will and bequeath to my daughter Barbara’s son Albert, equal share of my estate, real and personal, with my other children, after the amount given his mother is deducted; but, if said Albert should die before he has any heirs, then his share shall revert back among my other heirs ; and the two children of my son John, namely John and Mary, shall have the full share of their father John, which would be coming to him after what he received in his lifetime is deducted; but, should one or both of them die before they have any issue, then their share shall revert back to my other heirs.</p> <p>“ I give and bequeath all my estate, real and personal, to my children and their heirs, share and share alike, with the exception above stated, and the further deduction of fifty dollars from the share of Susannah, she having married before she was of age. And I further give and bequeath to my wife Susannah all the furniture and things in the house we live in, with the reservation we now hold by article of agreement.”</p> <p>Albert Myers, the son of Baz-bara, died in the spring of 1890, in the twenty-first year of his age, intestate, unmarried, and without issue, leaving to survive him his father Samuel P. Myers. The contention before the auditor, was as to the distribution of that part of the estate given to Albert Myers. It was urged that, inasmuch as Albert had died after the death of the testator, before receiving any part of the estate, and without issue, the share of the estate given to him should go to the other legatees and devisees of the testator. On the other hand, it was contended that the gift to Albert was absolute, became vested on the death of the testator, and the limitation over was void, as on an indefinite failure of issue.</p> <p>The auditor,—considering Haverstick’s App., 108 Pa. 894; Biddle’s Est., 28 Pa. 59; Vaughan v. Dickes, 20 Pa. 509; Eichelberger v. Barnitz, 9 W. 447; Eby v. Eby, 5 Pa. 463; Mickley’s App., 92 Pa. 517; Smith’s App., 23 Pa. 9; Biddle’s App., 69 Pa. 194; Mengel’s App., 61 Pa. 248; Keene’s App., 64 Pa. 268 ; Leightner v. Leightner, 87 Pa. 144; Koppenhaffer’s App., 87 Pa. 196; Snyder’s App., 95 Pa. 174.; Seibert v. Butz, 9 W. 494; Clark v. Baker, 3 S. & R. 479; Kleppner v. Laverty, 70 Pa. 70; Hancock’s App., 112 Pa. 541; McCormick v. McElligott, 127 Pa. 230 ; Sheets’ Est., 52 Pa. 257,—reported as his opinion that the words of the will of Samuel P. Miller, deceased, denoted an indefinite failure of issue, and that this, according to the authorities, would give Albert Myers an estate-tail in the real estate, enlarged to a fee by § 1, act of April 27, 1855, P. L. 368, and an absolute and vested interest in the personal property. A distribution was therefore reported accordingly, the share of Albert being awarded to his father, Samuel P. Myers.</p> <p>Exceptions filed to the auditor’s report by the other legatees, etc., of the testator having been argued, the court, Baer, P. J., on August 3, 1891, filed the following opinion:</p> <p>The provisions of the will on which the contention arises read as follows: “ I give and bequeath to my daughter Barbara’s son Albert, equal share of my estate, real and personal, with my other children, after the amount given his mother is deducted; but, if said Albert should die before he has any heirs, then his share shall revert back among my other heirs.” A succeeding clause: “ I give and bequeath all my estate, real, and personal, to my children and their heirs, share and share alike, with the exception above stated.” And, in a clause containing a bequest to John and Mary, two children of his son John, it is provided: “ Should one or both of them die before they have any issue, then their share shall revert back to my other heirs.”</p> <p>In the technical and legal sense at common law, the words “ die before he has any heirs ” import an indefinite failure of issue, however grating upon common sense such a legal sense may be. The popular sense of the word heirs, especially in a Pennsylvania German community like this, is children. Though the average Pennsylvania German never heard of the maxim, nemo est hieres viventis, he does know that he must die before he has heirs; and he also knows that one can, and most men do, have children before they die.</p> <p>By § 12, act of April 8, 1838, P. L. 250., every man is taken to know that a devise or legacy to a lineal descendant lapses, if the legatee or devisee die during the lifetime of the testator, without issue. The testator knowing this, why insert a useless clause in the will, which it must be if it is to import a dying before the testator?</p> <p>By § 1, act of June 4,1879, P. L. 88, every man knows that every will shall so be construed as to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. As no contrary intention appears in this will, and the common sense of the word heirs, as in popular use among Pennsylvania Germans, is children, one would naturally conclude, in the light of the will and the statutes, that the words “ dying without heirs,” as used in the will, imported a definite failure of issue. And, if construed to mean children, then, as the limitation must take effect, if at all, within a life in being, it must take effect at the death of Albert, the devisee ; for at that moment it will be definitely known whether he died before he had children, and in such case the report would be wrong. .....</p> <p>But, notwithstanding all that has been here suggested, we are hedged in by rules of law that hold us to the technical legal sense, often in the very teeth of common sense; and hence, we follow the adj udications, and leave a higher tribunal to determine whether even under existing rules it is a doubtful case, to be ruled in favor of the devise over. On all the authorities, following the legal technical sense of the words of the will, we are of opinion the report of the learned auditor is not only very able, but also conclusive.</p> <p>The exceptions are dismissed and report confirmed.</p> <p>—Thereupon the exceptants took this appeal, specifying that the court erred:</p> <p>1. In the conclusion of law that the words of the testator’s will imported an indefinite failure of issue.</p> <p>2, 3. In distributing the share given therein to Albert Myers, deceased, to his father Samuel P. Myers, and in not appropriating the same to the other legatees and devisees of the testator.</p>

No. 228 October Term 1891. On July 7, 1891, Margaret D. Clark and others caused to be presented to Mr. Justice Clark, at chambers, a bill in equity for an injunction against “ The Burgesses and Inhabitants of the Borough of Washington in the county of Washington,” and William J. Dunn.

No. 65 October Term 1890, Sup. Ct.; court below, No. 4 September Term 1884, C. P. in Equity. On September 8, 1884, John Moody and others, heirs at law of John Moody, deceased, filed a bill in equity against John Alexander, praying for specific performance of two separate contracts for the sale of real estate. The bill made averments, in substance, as follows: 1.

<p>No. 182 October Term 1890, Sup. Ct.; court below, No. 177 November Term 1888, C. P.</p> <p>On October 10, 1888, Chrysostom McLaughlin brought assumpsit against Sarah McLaughlin, executrix of the will of Charles McLaughlin, deceased. Issue.</p> <p>At the trial, on August 11, 1890, the plaintiff introduced direct testimony to the effect that in 1871, his father Charles McLaughlin, was very much in debt; that his sons had all left him, save the plaintiff; that the plaintiff, then twenty-three years of age, also determined to go away, and went to a friend’s house; that his father followed him, and told him that he was in debt and not able to work, and that if the plaintiff went away it would leave him in a bad shape; that he said to the plaintiff, in the presence of witnesses testifying, that if the plaintiff would go back home, work as he had theretofore done and help him pay his debts, he would compensate him either in money or land, and in any event he would give him one half the farm at his death; that, accepting this proposition, the plaintiff returned home and helped on the farm until all his father’s debts were paid, to wit, in 1875, and. in fact remained up to the time of his father’s death, or for a period of about seventeen years. It was shown also, that in May, 1871, the plaintiff’s father called in a surveyor and had one half the farm run off; and that he subsequently made a deed therefor to the plaintiff, but never delivered it, and died in 1888 without having paid for the plaintiff’s services, either in money or land. On the part of the defendant, testimony was introduced tending to show that the plaintiff was intemperate; that he frequently became intoxicated and went away, remaining absent for months at a time,—in one instance for two years; and that when absent he worked for others, and on his return home worked for his father for wages, or on the shares.</p> <p>The court, Wilson, P. J., submitted the case to the jury, on the evidence, and answered certain of the points for instruction as follows:</p> <p>2. Under the pleadings and evidence in this case, the jury cannot, in any event, allow the plaintiff for the value of services rendered by him to his father after the time in 1874 or 1875, whichever it was, when the undisputed evidence shows that the father’s debts were paid.</p> <p>Answer: This point is affirmed; and it may also be stated that there can be no recovery for a date, under this point, after the first day of January, 1876.</p> <p>8. If the plaintiff can recover at all, the measure of damages is not the value of the land but only the value of the services rendered by the plaintiff under and in pursuance of the alleged contract, in no event to exceed the value of the land at the death of Charles McLaughlin.</p> <p>Answer: That point is affirmed; and it may be stated in addition thereto that if you so find, it may be added, with interest from the date of the death of Charles McLaughlin.</p> <p>4. The right of the plaintiff to recover cannot be made out by mere preponderance of evidence as in ordinary civil actions.</p> <p>Answer: Affirmed.</p> <p>5. The plaintiff cannot recover, unless he has established the existence of the contract sued upon by clear, direct, positive, express and unambiguous evidence.</p> <p>Answer: Affirmed.</p> <p>6. If the jury find that the evidence offered by the plaintiff to establish the alleged contract between him and his father, is uncertain, ambiguous and indefinite, there can be no recovery.</p> <p>Answer: Affirmed.</p> <p>7. On the whole evidence, the verdict must be for the defendant.</p> <p>Answer: Refused.1</p> <p>The questions for the consideration of the jury are : (1) Was there a contract between the parties ; and if so, what was it ? (2) Was it performed by the plaintiff ? (3) Was there a breach of it by the decedent ? If you determine these questions in the affirmative, then the next thing to be considered is the damages ; and in doing so, you will estimate and compute them in accordance with the instructions heretofore given you. If you find from the proofs that there was no such contract as the law requires, as explained in the points presented by the counsel and the answers thereto by the court, then you will return a verdict for the defendant.</p> <p>—The jury returned a verdict for the plaintiff for 12,154.60. Judgment having been entered, the defendant took this appeal, assigning for error:</p> <p>1. The answer to defendant’s point.1</p>

No. 207, October Term 1890, Sup. Ct.; court below, No. 465 August Term 1888, C. P. On July 27,1888, Rebecca J. Bennett, Annie R. Bennett, and others, brought ejectment against John R. Hayden and the Southwest Pennsylvania Railroad Company, for a tract of one hundred and thirty-five acres in Hempfield township. The defendants pleaded not guilty.

No. 3 October Term 1891, Sup. Ct.; court below, No. 178 October Term 1889, C. P. On September 13,1889, T. R. Sproat brought trespass against “ The Directors of the Poor and of the House of Employment for the county of Greene.” Issue.

No. 7 October Term 1891, Sup. Ct.; court below, No. 239 September Term 1889, C. P. . On August 14, 1889, John M. Kelso and Joseph A. Kelso brought assumpsit against A. F. Reid. Issue. At the trial, on October 18,1890, the plaintiffs proved and gave in evidence a contract under seal, executed by A. F. Reid, of the one part, and JohnM.

No. 129 October Term 1890, Sup. Ct.; court below, No. 202 May Term 1888, C. P. On March 8, 1888, Joseph Lentz brought trespass against Carnegie Brothers and Company, Limited, to recover damages for injuries to the plaintiff’s land, alleged to have been caused by acts of the defendants. The defendants pleaded not guilty and the statute of limitations. The plaintiff gave notice that he would claim damages to the date of trial: See act of May 2, 1876, P. L. 95.

No. 16 October Term 1891, Sup. Ct.; court below, No. 103 April Term 1888, C. P. On March 6, 1888, John H. Smith and otliers, executors of the will of Dennis lams, Sr., deceased, brought assumpsit against Sarah Loafman, to recover upon three several judgment bonds dated September 1, 1885, each for one thousand four hundred dollars, due respectively September 2,1885,1886, 1887.

No. 56 October Term 1891, Sup. Ct.; court below, No. 13 December Term 1889, O. C. On October 31, 1889, George H. Wingert, executor of the will of George M. Kurtz, deceased, filed his account, and on confirmation thereof it was referred to Mr. Henrg 0. Campbell, as auditor, for distribution.

No. 223 October term 1891, Sup. Ct.; court below, No. 9 April Term 1891, C. P. On January 28, 1891, an appeal was entered by tbe defendants from tbe judgment of a justice of the peace in favor of Joseph M. Ogden against A. G. Hatry and the Hazelwood Oil Co. On February 9th, the plaintiff filed a statement of claim, with proper averments, to recover one year’s rental on a lease of land for oil purposes, to wit, eighty dollars, due December 11, 1890.

No. 268 October Term 1891, Sup. Ct.; court below, No. 82 August Term 1890, C. P. On August 11, 1890, Lemuel H. Whitman and Olive M. Whitman, his wife, in right of said Olive, brought an action against Martin O’Connor, for the partition of a tract of land in Sugarcreek township, containing about fifty acres.