Volume 146 — Pennsylvania State Reports

No. 141 October Term 1891, Sup. Ct.; court below, No. 4 November Term 1889, Q. S. On September 27, 1889, W. F. Black, W. H. Berlin and J. B. Carson, residents and landowners of Beaver township, Clarion county, presented their petition praying upon the averments therein made, that their several tracts of land, adjacent to the township of Elk, should be annexed to said township for school purposes, but to remain connected with Beaver township for all other purposes; viewers…

No. 106 October Term 1891, Sup. Ct.; court below, No. 100 August Term 1888, C. P. On August 8, 1888, the Linden Steel Co., Limited, issued a scire facias against the Imperial Refining Co., Limited, owner or reputed owner, and the Titusville Iron Works, contractor, upon a mechanics’ lien filed on July 9, 1888, for shell and flange steel plates furnished in and about the erection and construction of a material and essential addition to, and upon the credit of the refinery…

No. 229 October Term 1891, Sup. Ct.; court below, No. 9 December Term 1889, C. P. On October 16, 1889, C. A. Hill brought trespass against Tionesta Township, to recover damages for injuries to the plaintiff’s horse, alleged to have resulted from negligence on the part of the defendant township. * The defendant’s plea was not guilty.

No. 262 October Term 1891, Sup. Ct.; court below, No. 93 August Term 1888, C. P. To tbe number and term of the court below, an appeal was entered from the judgment of a justice of the peace in favor of Jacob Rapp and Nelson Brandon, partners as Rapp and Brandon, against W. R. Crawford, sheriff of Yenango county. The defendant pleaded, not guilty.

No. 57 October Term 1891, Sup. Ct.; court below, No. 8 November Term 1890, Q. S. On November 11, 1890, tbe grand jury returned as a true bill an indictment in two counts against Elizabeth Myers and Ira Myers, the first count charging that on July 6, 1890, the said defendants, with other persons unknown, “ wickedly devising and intending to kidnap, decoy, and carry away a certain child, then and there under the protection, control, and authority of one Jessie Myers,” did…

No. 133 October Term 1891, Sup. Ct.-; court below, No. 8 January Term 1890, C. P. On December 4, 1889, A. L. Confer brought trespass against the New York, Lake Erie & Western Railroad Company. Issue. At the trial, on November 11, 1890, it was shown that the plaintiff owned and operated an oil refinery at Reno, a village on the Allegheny river, west of Oil City. The tracks of the defendant company .separated the refinery plant into two portions.

No. 139 October Term 1891, Sup Ct.; court below, No. 49 March Term 1889, C. P. On December 29, 1888, a summons in ejectment was served at the suit of Thomas M. Henry against Frank McClellan and Jane McClellan, to recover a tract of seventy-two acres in Pulaski township. Issue.

No. 233 October Term 1891, Sup. Ct.; court below, No. 135 January Term 1870, C. P. On November 27, 1889, sur judgment at No. 134 January Term 1890, for six thousand dollars, in favor of George Wise-carver against D. W. Braden, W. T. Lantz, and J. F. Temple, the plaintiff issued an execution attachment summoning W. T. H. Pauley as garnishee. The same day, the sheriff made a return of service upon the defendants and upon the garnishee.

No. 236 October Term 1890, Sup. Ct.; court below, No. 131 January Term 1890, C. P. On December 21, 1889, an execution attachment was issued upon a judgment in favor of E. E. Stranahan against James A. Stranahan, summoning George W. Wright as garnishee. To interrogatories filed and served with the writ, the garnishee answered denying that he was indebted to the defendant, or bad in bis bands any moneys or effects belonging to him, and entered tbe plea of nulla bona.

No. 237 October Term 1891, Sup. Ct.; court below, No. 5 June Term 1890, O. C. On December 2, 1889, John C. Carroll, executor of tbe will of Hugh Gaffney, deceased, having filed his first and final account, and the same having been confirmed, Mr. M. B. Stevens, was appointed auditor to distribute the balance in the hands of the accountant.

No. 4 October Term 1891, Sup. Ct.; court below, No. 56 September Term 1890, Q. S. On September 4,1890, the grand jury returned as a true bill an indictment in a single count, charging that Ellen Drass, Charles Drass and- others, the defendants, on August 2,1890, with force and arms did wilfully, wantonly and maliciously break and throw down a post and picket fence, erected for the enclosure of a lot of ground belonging to one Catharine Mc-Closkey, contrary to the form of the…

No. 6 October Term 1891, Sup. Ct.; court below, No. 27 March Term 1887, O. C. ’ On March 9, 1887, the accounts of J. H. McCain, guardian of Hugh S. Fullerton and others, minor children of J. B. Fullerton, deceased, were presented for confirmation. Exceptions haying, been filed, Mr. R. 8. Martin was appointed auditor to hear and determine the same. On December 5, 1887, the auditor filed his report.

No. 45 October Term 1891, Sup. Ct.; court below, No. 168 December Term 1888, C. P. On October 29, 1888, A. B. Kennedy and Mary J., his wife, in right of said wife, brought assumpsit against James H. McCain, executor of John Gilpin, deceased, filing a statement of claim the first count of which averred that A. B. Kennedy and M. J. Kennedy, his wife, in right of said M. J. Kennedy (formerly Dougherty), complained: “ For that whereas the said John Gilpin did on the fifth day of…

No. 216 October Term 1891, Sup. Ct.; court below, No. 92 May Term 1890, C. P. On March 21, 1890, Henry J. Christner brought trespass against the Cumberland & Elk Lick Coal Co., to recover damages for injuries sustained while in the employ of the defendant company, in mining coal. Issue.

No. 236 October Term 1891, Sup. Ct.; court below, number and term not shown. On November 18,1890, Mrs. Agnes Borham brought trespass against Francis Davis. Issue.

No. 263 October Term 1891, Sup. Ct.; court below, No. 376 June Term 1886, C. P. On May 31,1886, Abner McConnell issued a summons “ in case sur contract,” against “the Apollo Savings Bank, a corporation under the laws of Pennsylvania.” On December 27th the plea of nul tiel corporation was entered. At the trial, on June 5, 1890, additional pleas and specifications were filed, but what they were was not shown in the paper-books.

No. 264 October Term 1891, Sup. Ct.; court below, No. 1 September Term 1890, Q. S. On September 8, 1890, the grand jury returned as a true bill an indictment of Sarah A. McGinty, alias Sarah A. Randolph, for solicitation to commit murder.

No. 276 October Term 1891, Sup. Ct.; court below, No. 196 January Term 1889, C. P. On December 26, 1890, Albert G. Egbert brought assumpsit against P. L. Kimberly, S. B. Griffith and W. H. Griffith, and seven others, “partners under the name and style of L. M. Ormsby & Co., Limited.” Issue. On May 11, 1891, a trial by jury was waived, and the cause submitted to the decision of the court, under the act of April 22, 1874, P. L. 109.

Nos. 41, 280 October Term 1891, Sup. Ct.; court below, No. 95 December Term 1890, C. P. On September 24,1890, tbe Kittanning Insurance Company, incorporated by the act of April 2, 1853, P. L. 280, with its principal office at Kittanning, Pa., by its president presented its petition to the court at chambers, averring in substance as follows: That the assets of the company were not sufficient for carrying on its business; that it had no money to pay its immediate demands, and…

No. 282 October Term 1891, Sup. Ct.; court below, No. 148 June Term 1889, C. P. On April 4,1889, a summons in assumpsit was served in the suit of the Freeport Bank against “ Martin Egan, F. S. McCain, D. O’Neil and John Kirk, trustees or building committee of the Roman Catholic Church of the borough of Leechburg.” On June 8d, a declaration was filed in the common counts, having attached thereto, the copy of a note dated August 11, 1888, for four hundred dollars, at four…

No. 287 October Term 1891, Sup. Ct.; court below, No. 78 June Term 1890, C. P. On June 2,1890, inhabitants of Valley township presented their petition, praying for the division of said township by a certain proposed line.

No. 290 October Term 1891, Sup. Ct.; court below, No. 217 September Term 1890, C. P. On August 12, 1890, O. H. Tebay and I. T. Klingensmith, doing business as Tebay & Klingensmith, issued a scire facias sur mechanics’ lien against Kirkpatrick & Co., Limited, owners or reputed owners, and J. T. Watt, contractor.

Nos. 153, 273 October Term 1891, Sup. Ct.; court below, No. 69 March Term 1888, C. P. On December 23, 1887, Jennings, Beale & Co., Limited, B. F. Jennings, and John Davis filed a bill in equity against Joseph G. Beale, praying upon the facts therein averred that the defendant be restrained from interfering in any manner with the business and works of said association, or of any of its legally constituted officers, or from acting or claiming to act in any way as…

No. 29 October Term 1891, Sup. ,Cfc. • court below, No. 18 September Term 1888, E. D., C. P. On June 27,1890, from a judgment in favor of Levi Porter and T. V. Porter, executors of the will of James Porter, deceased, for use of A. F. Hollister, against Robert Vanderlin, for 12,171.61, entered to No. 72 September Term 1888, by last revival from No. 49 September Term 1885, a fieri facias issued; and on June 30th, a levy was made on the interest of the defendant in a tract of…

No. 50 October Term 1891, Sup. Ct.; court below, No. 341 February Term 1890, C. P. On January 10, 1890, Mattie M. McClintock brought assumpsit against the South Penn Oil Company, filing a statement of claim, which, as afterwards amended, averred in substance as follows: That on December 18, 1889, S. B. Donaldson, administrator d. b. n., c. t. a., of Richard Donaldson, deceased, agreed in writing, in consideration of one hundred and fifty dollars cash in hand paid to him, to…

No. 53 October Term 1891, Sup. Ct.; court below, No. 398 March Term 1877, C. P. On March 1, 1877, John T. Perdue brought trover and conversion for three oil certificates, against H. L. Taylor & Co. On June 1, 1877, in obedience to a rule to plead, the defendants put in a plea of not guilty, and also a special plea.

No. 63 October Term 1891, Sup. Ct.; court below, No. 8 May Term 1889, ,0.

No. 104 October Term 1891, Sup. Ct.; court below, No. 207 November Term 1890, C. P. On September 22, 1890, H. 0.

No. 109 October Term 1891, Sup. Ct.; court below, No. 186 November Term 1890, C. P. ' Returnable to the first Monday of October, 1890, Ellis Jones brought assumpsit against the Western Pennsylvania Natural Gas Co. Issue. At the trial, on March 12,1891, the plaintiff gave in evidence a lease made by the plaintiff to the defendant company on April 29, 1889, demising the plaintiff’s- 'farm of two hundred and twenty acres in Donegal township, for oil and gas production.

No. 113 October Term 1891, Sup. Ct.; court below, number and term not shown. On November 7,1890, Conrad Nicklas, J. L. Christie, and about forty-nine others, presented their petition to the Court of Quarter Sessions averring that they were taxable citizens of Connoquenessing township school district in said county, and further: “ 1.

No. 114 October Term 1891, Sup. Ct.; court below, No. 83 June Term 1891, C. P. On February 13, 1891, Ella J. Cochran, having obtained judgment to No. 186 March Term 1891, for four thousand dollars, against Lydia A. Cochran, and W. S. Cochran, executor of the will of Patrick Graham, deceased, the latter a surety upon the bond of Lydia A. Cochran, guárdian of the plaintiff, issued a scire facias thereon to No. 83 June Term 1891, against “ W. S. Cochran, executor of the last…

Nos. 123, 270 October Term 1891, Sup. Ct.; court below, No. 606, C. P. in Equity. On August 15, 1889, A. W. Acheson filed a bill in equity against M. H. Stevenson, Adolph Schmitz, Effie B. Schmitz, J ohn Burns and J ames M. Hughes. A motion for a preliminary injunction having been heard, the injunction was refused on August 28, 1891; decree affirmed: Acheson v. Stevenson, 130 Pa. 633. The bill filed, as amended, averred in substance as follows: 1.

No. 65 August Term 1890, Sup. Ct.; court below, No. 65 August Term 1890, C. P. On May 19, 1890, James F. Ray and Margaret, his wife, for the use of said Margaret, brought ejectment against Mary Alexander and R. Y. Johnson, executor, for a tract of land in North Strabane tp., containing about one hundred and thirty-five acres. Issue.

<p>1. Tbe act of April 22, 1889, P. L. 39, “ A further supplement to an act regulating boroughs,.....authorizing the corporate authorities to levy and collect a license tax on hacks, carriages, etc., carrying persons or property for hire,” is not unconstitutional, under §§ 3, 6, article III. of the constitution.</p> <p>2. A borough ordinance passed under said act, “ to apply to all vehicles used in carrying persons or property within the borough, or between points within the borough and other points or places, whether the owner reside or the vehicles be kept within the borough or not,” is valid and enforceable.</p> <p>3. On the failure or refusal of any person, carrying persons or property for hire within the limits of a borough enacting such ordinance, to pay the license tax therein provided for, suit may properly be brought for the recovery thereof before a justice of the peace.*</p>

No. 244 October Term 1891, Sup. Ct.; court below, No. 24 December Term 1888, C. P. On April 9, 1888, P. C. Boyle, for use of himself and the county of Venango, brought assumpsit against J. B. Smithman, to No. 164 April Term 1888 of the Court of Common Pleas of Venango county, to recover penalties under the act of May 22, 1878, P. L. 104, for not posting in the office of defendant the monthly statements required by § 5 of said act to be posted in the principal business office…

<p>When a continuous and apparent easement or servitude is imposed by the owner of land upon one portion of it for the benefit of another portion, and the portions are subsequently conveyed to different persons, the purchaser of the servient property, in the absence of an express reservation or agreement on the subject, takes it subject to the easement or servitude so imposed.</p>

No. 294 October Term 1891, Sup. Ct.; court below, No. 63 May Term 1890, Q. S. On May 20,1890, S. E. Taylor, executor of the will of J. W. Hendrix, deceased, filed in the Court of Quarter Sessions the account of said Hendrix, as commissioner of the National Road from March 1, 1889, to March 1,1890.

No. 18 October Term 1890, Sup. Ct.; court below, No. 159 September Term 1886, E. D., C. P. No. 1.

No. 224 October Term 1890, Sup. Ot.; court below, No. 454 January Term 1888, C. P. No. 2. On December 22, 1887, the Pittsburgh Junction Railroad Company filed a bill in equity against the Allegheny Yalley Railroad Company, and W. H. Barnes and John Scott, receivers thereof.

No. 9 October Term 1891, Sup. Ct.; court below, No. 396 December Term 1889, C. P. No. 1. To the first Monday of November, 1889, Samuel W. Ewing and James D. Linn brought trespass against North Versailles township. Issue.

No. 14 October Term 1891, Sup Ct.; court below, No. 568 December Term 1889, C. P. No. 1, in Equity.

No. 17 October Term 1891, Sup. Ct.; court below, No. 257 October Term 1890, C. P. No. 2.

No. 19 October Term 1891, Sup. Ct.; court below, No. 888 June Term 1889, C. P. No. 1. Held: and at the said sale James M. Bailey, one of the defendants, at the request of certain of the bondholders, purchased said property subject to the payment of the said lien securing said bonds, for the benefit of the bondholders, including the bonds in suit; that, subsequently, the bondholders, including the plaintiff in this case, met…

No. 42 October Term 1891, Sup. Ct.; court below, No. 15 September Term 1890, O. and T. On October 14, 1890, the grand jury having returned as a true bill an indictment charging Charles Parker with the offence of rape committed upon the person of Emma Whitney, the defendant, waiving formal arraignment, pleaded not guilty. The cause being called for trial, the jury returned a verdict that they found the defendant not guilty of the felony charged, but guilty of fornication.

No. 61 October Term 1891, Sup. Ct.; court below, No. 785 March Term 1889, C. P. No. 1. To the first Monday of March, 1889, William Dornin brought trespass against Alexander iE. Held: in Commonwealth v. Contner, 18 Pa. 439. In each of these cases, the record showed a levy.

No. 80 October Term 1891, Sup. Ct.; court below, No. 862 July Term 1889, C. P. No. 2. Returnable to the first Monday of'July, 1889, C. C. Eleessor and others brought ejectment against Mary Eleessor, for a lot of ground in Allegheny City. Issue.

No. 82 October Term 1891, Sup. Ct.; court below, No. 278 January Term 1891, C. P. No. 2, in Equity.

<p>1. The owner of a tow-boat has no right to destroy the coal boat of the plaintiffs, sunk in the channel, in the general interest of navigation; but in such case only, as shows clearly that the position of the sunken boat demands its destruction, to save a serious loss of money or property to the defendant.</p> <p>2. That the defendant, in this ease, would have suffered delay and expense by double-tripping in passing the plaintiffs’ sunken boat in sections, was no justification for the destruction of the boat; and whether the defendant should have double-tripped, under all the circumstances, was a question for the jury.</p>

No. 12 October Term 1890, Sup. Ct.; court below, No. 540 October Term 1889, C. P. No. 2. Returnable to the first Monday of October, 1889, Daniel S. Tobin brought trespass against the Western Union Telegraph Company. Issue.

No. 125 October Term 1891, Sup. Ct.; court below, No. 64 March Term 1891, C. P. No. 1. Returnable to the first Monday of January, 1891, William Jenkinson brought assumpsit against Anna Hilands, filing a statement of claim to recover $122.16 upon an account for goods sold and delivered, a copy from the plaintiff’s books of original entry being attached.

No. 94 October Term 1891, Sup. Ct.; court below, No. 444 September Term 1888, C. P. No. 1. On July 12, 1888, an appeal was entered from the judgment of an alderman in favor of Samuel Bing against C. L. Willey. Issue. At the trial, on September 30, 1890, the case, as it went to the jury with some contradiction in the testimony, was as follows : One Fauble was an applicant for a retail license to sell liquors, in March, 1888.

No. 97 October Term 1891, Sup. Ct.; court below, No. 375 October Term 1889, C. P. No. 2. • To the first Monday of October, 1889, Joseph Matthews brought assumpsit against Park Brothers & Co., Limited, to recover damages for a wrongful discharge of the plaintiff from the defendants’ employ. Issue.

No. 102 October Term 1891, Sup. Ct.; court below, No. 622 June Term 1888, C. P. No. 1. On May 10, 1888, sur judgment for one thousand three hundred dollars, in favor of J. C. Gearing and Minnie Gearing, his wife, for use of said wife, against Louis M. Lacher, to No. 518 June Term 1887, an execution attachment was issued and served upon James Getty, Jr., summoned as garnishee.

No. 103 October Term 1891, Sup. Ct.; court below, No. 344 January Term 1890, C. P. No. 2. To the first Monday of December, 1889, Charles Jutte, William C. Jutte and August Jutte, doing business under the firm name of Charles Jutte, brought trespass against the Keystone Bridge Company, to recover damages for the sinking of certain coal barges, in consequence, as was alleged, of negligence on the part of the defendant.

<p>No. 112 October Term 1891, Sup. Ct.; court below, No. 267 April Term 1888, C. P. No. 2.</p> <p>On October 1, 1888, John H. Bailey, assignee of Graff, Bennett & Co., for the benefit of creditors, filed an account showing for distribution the proceeds of certain real estate sold under an order of the court discharged of liens. The account having been confirmed, Mr. John G. MaeConnell was appointed auditor “ to distribute the balance in the hands of the assignee as per his account, and report a schedule of distribution.”</p> <p>On November 19, 1889, the auditor filed a report, to which exceptions were filed by certain claimants under mechanics’ liens against the several parcels of real estate sold. Said exceptions having been argued before the court in banc, the court,</p> <p>Ewing, P. J., on March 7, 1891, filed an opinion sustaining-certain of the exceptions filed, dismissing the others, and decreeing a distribution according to a schedule appended.</p> <p>Thereupon, the assignee took this appeal, assigning said decree for error.</p> <p>On the argument of the case in the Supreme Court, counsel for appellees filed a motion to quash the appeal taken, for the reason, to wit: “ The decree appealed from is one of distribution of a fund in the hands of the said Bailey, as assignee for the benefit of creditors of Graff, Bennett & Co., and he has, as assignee or otherwise, no interest in the decree, or standing to appeal therefrom.</p>

No. 116 October Term 1891, Sup. Ct.; court below, No. 377 March Term 1889, C. P. No. 1. On January .26, 1889, service was accepted of a summons in an action of trespass by Ernest Wrasse, by his next friend, Gustav Wrasse, against the Citizens Traction Company, to recover damages for personal injuries. Issue.

No. 117 October Term 1891, Sup. Ct.; court below, No. 209 January Term 1890, C. P. No. 2. To the first Monday of December, 1889, C. L. Willey issued a scire facias sur mechanics’ lien, filed November 9, 1889, against S. J. Topping, owner or reputed owner, and John Huckenstein et ah, partners as Huckenstein & Co., contractors. Issue.

No. 121 October Term 1891, Sup. Ct.; court below, No. 71 December Term 1891, O. C. On January 15, 1891, the account of R. S. Goe, executor of the will of Catharine Goe, deceased, showing a balance of personalty for distribution to the legatees, was called for audit.

No. 132 October Term 1891, Sup. Ct.; court below, No. 776 March Term 1890, O. P. No. 1. To the first Monday of March, 1890, the Laflin & Rand Powder Company brought assumpsit against “ J. J. Steytler, A. W. Mellon, C. B. McLean, Norman May, F. R. Layng and Wm. J. Morgan, partners doing business as the Youghiogheny Coal Company, Limited.” Issue.

No. 143 October Term 1891, Sup. Ct.; court below, No. 164 January Term 1891, C. P. No. 2. On November 4,1889, there was entered in the court below, by appeal from the judgment of an alderman, an action brought by A. W. E. Bauck against James M. Swan and Isabella A. Swan, his wife.

No. 145 October Term 1891, Sup. Ct.; court below, No. 489 March Term 1890, C. P. No. 1. To the first Monday of February, 1890, Jacob Cable brought ejectment against Henry C. Cable and another, for a tract of about thirty-five acres in RosS township. Issue.

No. 148 October Term 1891, Sup. Ct.; court below, No. 179 June Term 1888, C. P. No. 1. On May 5,1888, an issue was formed on an appeal by Isabel C. Sargeant from the report of viewers assessing damages occasioned by the opening of Negley Avenue, Pittsburgh. In this issue, the claimant was made plaintiff, and the city of Pittsburgh, defendant.

No. 194 October Term 1891, Sup. Ct.; court below, No. 402 June Term 1890, C. P. No. 1. On April 19,1890, an appeal was entered from the judgment of an alderman in favor of J. Sharp McDonald against Thomas Liggett. Issue.

No. 196 October Term 1891, Snp. Ct.; court below, No. 817 September Term 1888, C. P. No. 1. To the first Monday of September, 1888, John Reese brought trespass against Jane Clark, to recover damages for alleged negligence of tbe defendant causing personal injuries to the plaintiff. Issue.

No. 198 October Term 1891, Sup. Ct.; court below, No. 600 July Term 1888, C. P. No. 2. To the first Monday of July, 1888, Benjamin Coursin brought ejectment against John Shrader, for a lot of ground in Lincoln, late Elizabeth township. Issue.

<p>1. Under the act of May 20,1891, P. L. 101, giving a right of appeal from orders opening, vacating, or striking off, etc., “judgments of any kind, whether entered‘by amicable confession, upon warrant of attorney or otherwise,” an appeal will lie from an order, made prior to the passage of the act, opening a judgment taken for want of an appearance.</p> <p>2. An application to open a judgment is an equitable proceeding, addressed to the discretion of the court. ■ The act of May 20, 1891, like the prior act of April 4, 1877,.P. L. 53, allowing an appeal from the refusal to open a judgment, has not taken away such discretion; and on appeal, the Supreme Court will only determine whether the discretion has been properly exercised.</p> <p>3. The question whether terms shall be imposed in the opening 8f a judgment, under either of the acts referred to, is a matter peculiarly within the discretion of the court to which the application is made, and it would require a very strong ease to move the Supreme Court to interfere on that point. In the present case, the discretion was properly exercised.</p>

No. 204 October Term 1891, Sup. Ct.; court below, No. 526 March Term 1889, C. P. No. 1. On February —, 1889, John F. Moore, for the use of C. B. Willey, brought scire facias sur mechanics’ lien against Maria’ Carter and E. I. Carter, her husband. • Issue.

No. 206 October Term 1891, Sup. Ct.; court below, No. 535 September Term 1888, C. P. No. 1. On August 2, 1888, Barbara Steinbrunner brought trespass against the Pittsburgh and Western Railway Company, to recover damages for the death of Xavier Steinbrunner, plaintiff’s husband, alleged to have been caused by the negligence of defendant’s servants. Issue.

No. 221 October Term 1891, Sup. Ct.; court below, No. 947 March Term 1891, C. P. No. 1.

No. 000 January Term 1892, Sup. Ct.' On January 28,1892, Hiram DeWalt and others filed a petition praying the Supreme Court for leave to file in that court a bill in equity, a copy of which accompanied the petition, and to move for an injunction against the defendants named in the bill, upon the grounds therein set forth.

<p>1. Legislation on the subjectof elections is within the constitutional power of the legislature, so long as it merely regulates the exercise of the elective franchise, and does not deny the franchise itself, either directly or by rendering its exercise so difficult and inconvenient as to amount to a denial.</p> <p>2. The act of June 19, 1891, P. L. 349, prescribing and regulating the use of an official ballot, does not transcend the powers of the legislature. While prescribing reasonable regulations, requisite to effect its object, it carefully preserves the right of each elector to vote for whom he pleases, without any unnecessary inconvenience.</p> <p>8. Said act is not in violation of the constitutional provisions that elections shall be free and equal, and that all laws regulating elections shall be uniform throughout the state. Its title is sufficient, and there is nothing in it which is so clearly a violation of the constitution as to justify the court in striking it down.</p> <p>4. If the fact were, as was contended in this case, that the act does not apply in any one of the cities of the commonwealth whose boundaries are not co-extensive with those of the county, it would have to be declared unconstitutional, as local and special legislation; but it applies to all public offices throughout the state.</p> <p>5. Under §28, authorizing any voter to “insert” in the space provided therefor any name not already on the ballot, such insertion need not be by writing, but may be made by the use of a printed adhesive slip; and such use is not excluded, under the maxim, expressio unius, etc., by the fact that § 12 authorizes such slips to be used for another purpose.</p>

Nos. 226, 227 October Term 1891, Sup. Ct.; court below, Nos. 34, 35 March Term 1891, Q. S. On May 19,1891, appeals were allowed, from the summary convictions of W. M. Gillespie and Albert Varner before an alderman, on informations charging, severally, that the defendants, “ on May 10, 1891, the said day being the Lord’s day, commonly called Sunday, did and performed worldly employment and business in said county, the same not being the work of necessitj’- or charity,” in…

No. 230 October Term 1891, Sup. Ct.; court below, No. 97 June Term 1890, C. P. No. 1. To tbe first Monday of April, 1890, J. M. Guffey brought trespass against A. P. Clever and Charles Scarborough. Issue.

<p>No. 232 October Term 1891, Sup. Ct.; court below, No. 495 July Term 1890, C. P. No. 2.</p> <p>On June 19, 1890, Charles J. Clarke, F. C. Miller, Mary L. Crossan, Annie M. Donaldson, Kate C. Hays, Virginia C. Dilworth, Alexina C. Blair, and J. N. Donaldson, committee of W. M. Crossan, a lunatic, brought assumpsit against the Western Assurance Company, of Toronto, Canada, upon a policy of insurance against fire issued by the defendant company to the plaintiffs. Issue. • .</p> <p>At the trial, on May 28,1891, the following facts were shown:</p> <p>The plaintiffs were the owners of the hotel property in Pittsburgh known as the Monongahela House. In 1886 or 1887, George S. Griscom, who was then lessee of the hotel, put into it a system of electric lighting apparatus. This was spoken of in the testimony as an “ electric light plant,” but it did not clearly appear whether it included any machinery for generating electricity, though the arguments of counsel seemed to indicate that it consisted solely of wires, lamps, shades, etc., and that the current by which the lamps were operated was supplied from an outside source. Griscom took out a policy of insurance in the defendant company upon his electric appliances. On the expiration of his term as tenant, these were purchased from him by the plaintiffs, and that policy was assigned to them. The policy in suit was taken out for the purpose of renewing that insurance, and was in the same form. By it the defendant insured the plaintiffs against loss by fire in the sum of $1,250 upon “ electric lamps, shades, wires and other electric fixtures and appurtenances,” while contained in the brick building known as the Monongahela House. The policy contained the following clause:</p> <p>“ This company shall not be liable under this policy for a greater proportion of any loss on the described property, or for loss by or expense of removal from premises endangered by fire, than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property; and the extent of the application of the insurance under this policy, or of the contribution to be made by this company, in case of loss, may be provided for by agreement or condition written hereon, or attached or appended hereto.”</p> <p>By a fire which occurred on December 5, 1889, during the life of this policy, the property covered by it was injured to the extent of $2,120. The defendant before suit brought offered to pay the plaintiffs $890, which the plaintiffs refused to accept.</p> <p>During the trial, the following agreement was entered into and placed on file:</p> <p>It is agreed between the parties to this suit that the sole question to be tried between them is whether the defendant company should pay upon the policy in suit without contribution from the other insurance companies holding, at the time of the loss, insurance on the fixtures of the Monongahela House, being the insurance companies, or any of them, whose names, number of policy and material parts of policy are set out in schedules attached hereto, and marked exhibits A, B, C, D and E.</p> <p>“ And it is further agreed, that if, under the evidence and the law of the case, the defendant company should be held liable solely, for the loss in question, that the costs of the trial shall be paid by the defendant; but if other companies should be found to have been liable to have contributed, and on the basis of such contribution defendant’s liability at the time suit was brought did not exceed $390, then the plaintiffs shall pay the costs.”</p> <p>SCHEDULE A.</p> <p>Policies to Mary L. Crossan, A. M. Donaldson, Kate C. Hays, Virginia C. Dilworth, Alexina C. Blair, and J. N. Donaldson, committee of W. M. Crossan, a lunatic, in the following form : “ On their interest in the brick building with metal roof, including elevators, gas, steam, water, and other fixtures therein, known as the Monongahela House, etc., Pittsburgh, Pa.”</p> <p>No of policy Name of company Amt. of policy</p> <p>16,259. M. and M. Ins. Co., of Pgh. $2,500.</p> <p>and nineteen others, in various amounts aggregating $79,000.</p> <p>schedule B.</p> <p>Policies to F. C. Miller in following form:</p> <p>“ On his individual interest in the five-story brick building known as the Monongahela House, etc., Pittsburgh, Pa.”</p> <p>No. of policy Name of company Amt. of policy</p> <p>137. Farragut. $2,500.</p> <p>and thirteen others, in various amounts aggregating $36,500.</p> <p>SCHEDULE C. ■</p> <p>Policies to Charles J. Clarke in following form:</p> <p>“ On his individual interest in the five-story brick building known as the Monongahela House, etc., Pittsburgh, Pa. It is hereby understood and agreed that the elevators, gas, steam, water, and other fixtures are included in this insurance.”</p> <p>No. of policy Name of company Amt. of policy</p> <p>10,699. House Ins. Co., N. Y. $5,000.</p> <p>and seven others, in various amounts aggregating $36,500.</p> <p>SCHEDULE D.</p> <p>. Policies to Charles J. Clarke, F. C. Miller, Mary L. Crossan, A. M. Donaldson, Kate C. Hays, Virginia C. Dilworth, Alex-in a C. Blair, and J. N. Donaldson, committee of W. M. Crossan, a lunatic, in the following form :</p> <p>“ On household goods and furniture, stoves, wines and liquors, and similar articles, embracing the whole stock belonging to the assured, while contained in the brick building known as the Monongahela House. It is understood and agreed this policy covers also fixtures of every description while contained in buildings herein described.”</p> <p>No. of policy Name of company Amt. of policy</p> <p>12,599. Northern Ass’ce Co. of London. $2,500.</p> <p>12,844. “ “ $2,500.</p> <p>SCHEDULE E.</p> <p>Policy to Charles J. Clarke, F. C. Miller, Mary L. Crossan, A. M. Donaldson, Kate C. Hays, Virginia C. Dilworth, A. C. Blair, and J. N. Donaldson, committee of W. M. Crossan, a lunatic, in the following form:</p> <p>“ On household goods, furniture and fixtures, stock and all stores generally, including wines and liquors and willows in the brick building occupied and known as the Monongahela House, etc., Pittsburgh, Pa.; other insurance permitted without notice till required; natural gas and electric light permit.” No. of policy Name of company Amt. of policy</p> <p>12,885. Home Ins. Co. $2,500.</p> <p>—It was made to appear that there were in the hotel elevators, gas fixtures and chandeliers, office fixtures, desks, shelving, etc., which belonged to the plaintiffs.</p> <p>At the close of the testimony, the court, Ewing, P. J., charged the jury in part as follows :</p> <p>A great many technical defences were set up ; and yesterday during the progress of the case the time was taken up in trying them, until they agreed to come to their supposed honest, genuine defence on the merits on this clause of the policy. And I say, prima facie if there were no facts in the case other than the insurance, the fire, and the loss to an amount beyond the policy,-the defendants were bound to pay, and the burden is on them to show why they should not pay the sum of one thousand two hundred and fifty dollars. They say they have a good defence on this clause of the policy: “ This company shall not be liable under this policy for a greater proportion of any loss on the described property, or for loss by or expense of removal from premises endangered by fire, than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property; ” and they say that the plaintiffs had a large amount of insurance covering this property.</p> <p>The contention arises on the use of the term “ fixtures,” which is a term used generally as between landlord and tenant. Ordinarily it has not much relation to property in and about a house where the property belongs to the owner; for instance, the question as to whether or not this chandelier in front of us is a fixture or not, is not an important one. If it was, as to the tenant occupying the property who had put it up, it would be something he could take away. Now the Supreme Court has said that it is not even a fixture. There has been a great deal of testimony and a large amount of discussion on the question, and we will not take time to go over it, but give you our conclusions, and say to you that it is not a very satisfactory case to us.</p> <p>[We have concluded that there are two policies that the plaintiffs had on this property, which covered this particular property. It is not necessary that it should be merely the same subject matter, if it is a policy that covered the property ; and I have some doubt whether the mere term “ fixtures,” in a policy where the owner of a building is insured would cover this. But the two policies in the Northern Assurance Co. of London, which have been given in evidence by the plaintiffs, specify certain fixtures, such as gas, water and a number of such things, ending up by saying “ It is understood and agreed that this policy covers also all fixtures of every description while contained in the buildings herein described.” I think that is sufficient to cover the electrical apparatus described here, and that the others are not. The question is, could the plaintiffs, if they were to sue these two companies on their policies, independent of their claim against the Western Assurance Company, defendant in this case, could they have recovered for the loss of these electrical appliances ? I think they could, under the evidence on the other policies. I think they could, and therefore we instruct you that defendant has a defence to this extent: The three policies make $6,250 of insurance covering these electrical appliances; of that the defendants have $1,250, and they are therefore bound to pay the one fifth of this loss, which would be $424, with interest added on that from the date of bringing this suit, June 19, 1890. This instruction practically answers the points of the plaintiffs, and they are refused.] 4</p> <p>The plaintiffs request the court to charge : ,</p> <p>1. That, under all the evidence, their verdict should be for the plaintiffs for the full amount of policy in suit, viz., $1,250, with interest from the nineteenth of June, 1890.</p> <p>Answer: Refused.1</p> <p>2. If the jury find from the evidence that the electric wiring and lighting apparatus were put in the Monongahela House by the lessee thereof, without any intention to make same part of the realty, then they are not fixtures, and their verdict should be for the plaintiffs in the full amount of the policy, viz., $1,250, and interest from June 19, 1890.</p> <p>Answer: Refused.8</p> <p>3. If the jury find from the evidence that the interests insured, or the subject matter insured under the other policies mentioned in schedules A, B and C, were different from those insured in the policy of defendant company in suit in this case, then there is no double insurance, and their verdict should be for the plaintiffs for the amount of the policy, viz.,.$1,250, and interest from June 19, 1890.</p> <p>Answer: Refused.3</p> <p>—The jury returned a verdict for the plaintiffs for $448. Judgment having been entered, the plaintiffs took this appeal assigning for error:</p> <p>1-3. The answers to plaintiffs’ points.1 to 3</p> <p>4. The part of the charge embraced in [ ] 4</p>

No. 60 October Term 1891, Sup. Ct.; court below, No. 66 October Term 1888, C. P. No. 2. To the first Monday of August, 1888, James McGowan and William McGowan brought trespass against Austin L. Bailey and others, partners as Bailey, Wilson & Co., to recover damages for injuries alleged to have been done to the land of the plaintiffs in and by and in connection with mining operations carried on by the defendants.

No. 99 October Term 1891, Sup. Ct.; court below, No. 526 January Term 1890, C. P. No. 2. To the first Monday of January, 1890, Dominick McCue brought trespass against the borough of Knoxville. Issue.

No. 242 October Term 1891, Sup. Ct.; court below, No. 283 April Term 1888, C. P. No. 2. - To the first Monday of March, 1888, N. A.… Held: and the plaintiff failing to pay, it was then sold; that neither Mr. Mullins, nor Mr. Hukill, his office assistant, gave any order for the delivery of the scrap to the plaintiff, but Mr. Hukill thought he had given him a note to the freight agent requesting the latter to allow him to see the contents of the car; and that, until the…

No. 243 October Term 1891, Sup. Ct.; court below, No. 318 June Term 1887, O. C. On February 13, 1891, Mary Ann Wilkins, E. J. Wilkins and Miriam Hays presented their petition to the court below for the appointment of a guardian of the persons of Joseph W., Mary J., Henry W., and Francis J. Wilkins, minor children of Joseph W. Wilkins, late of Waukesha county, Wisconsin, deceased, under the age of fourteen years.

No. 285 October Term 1891, Sup. Ct.; court below, No. 92 January Term 1891, C. P. No. 2, in Equity.

<p>(a) In an action for causing the death of a person by unlawfully furnishing liquor to him, the testimony tended to show that the deceased, in consequence of intoxication so caused, fell into a gutter of water and became thoroughly chilled; that he at once became sick, exhibiting symptoms of bronchitis, and after two or three days symptoms of pneumonia:</p> <p>1. The immediate cause of death being the pneumonia, and there being medical testimony tending to show that the exposure would be likely to cause pneumonia, the question of proximate cause was for the jury, who were to determine whether the pneumonia was the result of the exposure, and the consequence, by continuous causation, of the furnishing of the liquor.</p> <p>2. Under the Pennsylvania statutes* a widow may maintain an action for the death of her husband against one who caused it by furnishing to Mm liquor, he being of known intemperate habits or being at the time visibly intoxicated; and the husband’s voluntary taking of the liquor, in these circumstances, is not such contributory negligence as will prevent her recovery.</p>

No. 247 October Term 1891, Sup. Ct.; court below, No. 23 April Term 1890, C. P. No. 2. On January 14,1890, service was accepted of a summons in trespass, brought by Thomas Tunney against Carnegie Brothers & Co., Limited, to recover damages for the death of the plaintiff’s minor son, in consequence of negligence on the part of the defendants. Issue.

<p>1. It is well settled that matters sounding in tort and arising out of a different transaction, cannot be given in evidence as a set-off, by a defendant sued in an action ex contractu. Broad and. liberal as the decisions have been, they have never authorized the admission of proof of damages arising from a technical tort.</p> <p>2. In an action by a landlord to recover rent due upon a lease, the defendant cannot set off against the plaintiff’s demand, a claim for damages on account of a wrongful seizure of the defendant’s goods, under an illegal landlord’s warrant issued by the plaintiff, such claim being the proper subject of an action ex delicto.</p>

No. 249 October Term 1891, Sup. Ct.; court below, No. 568 December Term 1886, C. P. No. 1. To the number and term stated of the court below, G. N. Hoffstot brought an action of debt against L. H. Yoight, to recover the one half of the cost of erecting a party-wall on the line between properties owned by the plaintiff and the defendant respectively. Issue.

Nos. 253, 257 October Term 1891, Sup. Ct.; court below, Nos. 342, 408, 392, 429, 450 July Term 1891, C. P. No. 2.